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338 U.S. 384 70 S.Ct. 200 94 L.Ed. 187 O'DONNELLv.ELGIN, J. & E. RY. CO. No. 56. Argued Oct. 21, 1949. Decided Dec. 12, 1949. Rehearing Denied Jan. 16, 1950. See 338 U.S. 945, 70 S.Ct. 427. Mr. Joseph D. Ryan, Chicago, Ill., for petitioner. Mr. Harlan L. Hackbert, Chicago, Ill., for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 This action was brought under the Federal Employers' Liability Act, 45 U.S.C. §§ 51—60, 45 U.S.C.A. §§ 51—60. The complaint mingled in a single count or cause of action charges of general negligence and a specific charge that defendant 'carelessly and negligently' violated the Safety Appliance Act, 45 U.S.C. § 2, 45 U.S.C.A. § 2, by operating a car not equipped with the prescribed coupler. The jury found against plaintiff and judgment for defendant was affirmed by the Court of Appeals. 171 F.2d 973. This result must stand if the jury was properly instructed, as to which the Court of Appeals divided. 2 O'Donnell, whose administratrix is petitioner here and was plaintiff below, met an unwitnessed death while working in defendant's yards as a member of its switching crew. When last seen, he was going to adjust the couplers on certain cars which previously had failed to couple by impact. Shortly after his departure, as the result of the breaking of a coupler, two cars broke loose from a cut of cars that was being moved in a switching operation. Running free, they collided with other standing cars and drove them against those whose couplers decedent had said he was going to adjust. Some time later decedent's mangled body was found lying across one rail of the track on which the cars he had intended to prepare for coupling had stood. That he had gone between them to adjust the couplers is suggested by the fact that they coupled upon impact with the colliding cars, though they previously had failed so to do. Petitioner's contention, from all the circumstances proved, is that O'Donnell's death was proximately caused by the breaking of the coupler, which permitted the two cars to run free, strike the standing cars, and cause unexpected movement of the cars between which O'Donnell was engaged. Respondent contends that they indicate instead that death resulted from a later and independent movement on the track when the runaway cars were hauled out—an event which took place before discovery of decedent's body but after the collision of the two sets of cars. We need not resolve the conflict between these competing theories of causation, for that decision was for the jury. Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 600, 91 L.Ed. 572. 3 Our concern is with the effect accorded by the trial court's instructions to the breaking of the coupler. The issue was defined by the Court of Appeals: 'The record is devoid of any request by plaintiff that the jury be instructed that they might infer negligence from the breaking of the coupler, but in the District Court plaintiff contended for and tendered instructions upon the theory that a breaking of the coupler in and of itself was negligence per se. The court refused to so instruct.' 171 F.2d at page 976. The Court of Appeals, with one dissent, sustained this refusal so to charge, saying, 'We do not believe the Act required defendant to furnish couplers that would not break. We think the true rule is that where a coupler does break, the jury may, if they think it reasonable under all the circumstances, infer that the coupler was defective and was furnished and used in violation of the Act. The cases go no further than to hold that from the breaking of a coupler the jury may infer negligence.' As this view of the Safety Appliance Act appears to conflict with the rule laid down in other jurisdictions,1 we granted certiorari. 337 U.S. 929, 69 S.Ct. 1495. 4 A close and literal reading of the Safety Appliance Act, 45 U.S.C. § 2, 45 U.S.C.A. § 2,2 suggests that two functions only are required of couplers: that they couple automatically by impact and that they uncouple without requiring men to go between the ends of the cars. This construction finds some support in the decisions. See, e.g., St. Louis & San Francisco R. Co. v. Conarty, 238 U.S. 243, 250, 35 S.Ct. 785, 786, 59 L.Ed. 1290; Chicago, B. & Q.R. Co. v. United States, 220 U.S. 559, 571, 31 S.Ct. 612, 614, 55 L.Ed. 582; Louisville & Nashville R. Co. v. Layton, 243 U.S. 617, 37 S.Ct. 456, 61 L.Ed. 931; Johnson v. Southern Pacific Co., 196 U.S. 1, 18, 25 S.Ct. 158, 161, 162, 49 L.Ed. 363. See also United States v. Southern R. Co., D.C. 1905, 135 F. 122, 127; Chesapeake & Ohio R. Co. v. Charlton, 4 Cir., 1917, 247 F. 34, 40; Chicago, M., St. P. & P.R. Co. v. Linehan, 8 Cir., 1933, 66 F.2d 373, 377; Penn v. Chicago & N.W.R. Co., 7 Cir., 1947, 163 F.2d 995, 997. 5 Courts at other times have held, however, that failure of couplers to remain coupled until released constitutes or evidences a violation of the Act just as does their failure to couple upon impact or uncouple from the sides of cars. As stated by the Court of Appeals, Second Circuit, the Act 'is also aimed at insuring couplers that will hold together.' Keenan v. Director General of Railroads, 2 Cir., 1922, 285 F. 286, 290; Philadelphia & R.R. Co. v. Eisenhart, 3 Cir., 1922, 280 F. 271; Erie R. Co. v. Caldwell, 6 Cir., 1920, 264 F. 947; Southern Pacific Co. v. Thomas, 21 Ariz. 355, 188 P. 268; Kowalski v. Chicago, N.W.R. Co., 159 Minn. 388, 199 N.W. 178; McAllister v. St. Louis Merchants' Bridge Terminal R. Co., 324 Mo. 1005, 25 S.W.2d 791; Saxton v. Delaware & Hudson Co., 256 N.Y. 363, 176 N.E. 425; Stewart v. Wabash R. Co., 105 Neb. 812, 182 N.W. 496. And see Reetz v. Chicago & E.R. Co., 6 Cir., 1931, 46 F.2d 50. This appears also to have been the view of this Court in the only case of this nature ever before it. Minneapolis & St. Louis R. Co. v. Gotschall, 244 U.S. 66, 37 S.Ct. 598, 61 L.Ed. 995. See also Minneapolis, St. Paul & Sault Ste. Marie R. Co. v. Goneau, 269 U.S. 406, 46 S.Ct. 129, 70 L.Ed. 335. 6 It is hard to think of a coupler defect in which greater danger inheres to workmen, travelers and all to whom the railroad owes a duty, than one which sets cars running uncontrolled upon its tracks. We find it difficult to read the Safety Appliance Act to require that cars be equipped with appliances which couple automatically by impact and which may be released without going between the ends of cars, but which need not remain coupled in the meantime. The Act so construed would guard against dangers incident to effecting an engagement or disengagement while ignoring the even greater hazards which can result from the failure of a coupling to perform its main function, which is to stay coupled until released. 7 We hold that the Safety Appliance Act requires couplers which, after a secure coupling is effected, will remain coupled until set free by some purposeful act of control. 8 What then should a jury be instructed is the consequence of a failure to provide couplers that so perform? Should the jury be instructed that it must find liability or merely that it may find liability for injuries proximately resulting from the failure? 9 The arguments and instructions in this case, as well as others, and the language of many opinions and texts reflect widespread confusion as to the effect to be accorded a violation of the federal safety applicance statute.3 Part of this confusion is traceable to the diversity of judicial opinion concerning the consequences attributed in negligence actions to the violation of a statute.4 Breach of certain statutes in various jurisdictions will be regarded as some evidence of negligence, to be weighed by the jury along with the facts. Hayes v. Michigan Central R. Co., 111 U.S. 228, 240, 4 S.Ct. 369, 374, 28 L.Ed. 410; Union Pacific R. Co. v. McDonald, 152 U.S. 262, 283, 14 S.Ct. 619, 627, 38 L.Ed. 434. At other times or places, or under other statutes, a violation may be 'prima facie' or 'presumptive' evidence of negligence which defendant must meet or overcome. E.g., Voiles v. Hunt, 213 Iowa 1234, 240 N.W. 703. Courts sometimes talk of it in terms of res ipsa loquitur, cf. Minneapolis & St. Louis R. Co. v. Gotschall, supra, or treat violations as negligence per se. E.g., San Antonio & A.R.R. Co. v. Wagner, 241 U.S. 476, 484, 36 S.Ct. 626, 629, 60 L.Ed. 1110; Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471; Evans v. Klusmeyer, 301 Mo. 352, 359, 256 S.W. 1036, 1037-1038. It is not uncommon that within the same jurisdiction the rule is different as to different statutes. See Martin v. Herzog, 228 N.Y. 164, 168, 126 N.E. 814, 815. But usually, unless the statute sets up a special cause of action for its breach, a violation becomes an ingredient, of greater or lesser weight, in determining the ultimate question of negligence. 10 But this Court early swept all issues of negligence out of cases under the Safety Appliance Act. For reasons set forth at length in our books, the Court held that a failure of equipment to perform as required by the Safety Appliance Act is in itself an actionable wrong, in no way dependent upon negligence and for the proximate results of which there is liability—a liability that cannot be escaped by proof of care or diligence. St. Louis, Iron Mountain & Southern R. Co. v. Taylor, 210 U.S. 281, 294, 28 S.Ct. 616, 620, 52 L.Ed. 1061; Chicago, B. & Q.R. Co. v. United States, supra, 220 U.S. 575—577, 31 S.Ct. 615—617, 55 L.Ed. 582; Delk v. St. Louis & San Francisco R. Co., 220 U.S. 580, 31 S.Ct. 617, 55 L.Ed. 590. These rigorous holdings were more recently epitomized by Chief Justice Hughes, speaking for the Court: 'The statutory liability is not based upon the carrier's negligence. The duty imposed is an absolute one, and the carrier is not excused by any showing of care, however assiduous.' Brady v. Terminal Railroad Ass'n of St. Louis, 303 U.S. 10, 15, 58 S.Ct. 426, 429, 82 L.Ed. 614. 11 Notwithstanding this Court's efforts to distinguish the safety appliance violation case from the common law negligence case, confusion of the two persists,—in part, at least, due to the anomalous procedure by which such claims are litigated. This non-negligence claim, based on a statutory violation, is pursued by action under the Federal Employers' Liability Act, basically a form of action predicated only upon negligence.5 The appliance cause often is joined with one for negligence, and even sometimes, as here, mingled in a single mongrel cause of action. In addition, at trial, certain issues such as causation and extent of injury, for example, are common to both causes of action. All of this has resulted in much borrowing of the language of negligence law to deal with Safety Appliance Act cases. And so, in an early case in which this Court held, 'If this act is violated, the question of negligence in the general sense of want of care is immaterial', we find that it went on nevertheless to say that the violation is treated 'as 'negligence,'—what is sometimes called negligence per se.' San Antonio & A.P.R. Co. v. Wagner, supra, 241 U.S. 476, 36 S.Ct. 630. 12 In a later case, the contention in this Court involved the rule of res ipsa loquitur, a maxim of the law of evidence applicable in some negligence cases. The trial court had charged that from the breaking of the coupler the jury might infer negligence, which was the instruction which had been requested by the plaintiff. The railroad opposed this instruction. This Court, in an opinion anticipatory of this one, upheld the charge against the objection. Since the plaintiff had recovered a verdict, this Court, in affirming, found no occasion to consider whether the plaintiff would have been entitled to a more favorable charge. But the opinion negativing the railroad's objection as inconsistent with the absolute liability imposed by the Act appears in the headnote as a holding 'that, in view of the Safety Appliance Act, negligence might be inferred from the mere opening of the couplers.' Minneapolis & St. Louis R. Co. v. Gotschall, supra (244 U.S. 66, 37 S.Ct. 598). Thus the vocabulary of negligence, appropriated to non-negligence uses, comes to dominate the thought. 13 We no longer insist upon technical rules of pleading, but it will ever be difficult in a jury trial to segregate issues which counsel do not separate in their pleading, preparation or thinking. We think the unfortunately prolonged course of this litigation is in no small part due to the failure to heed the admonition well stated by the Court of Appeals of the Seventh Circuit in a similar case: 'Of course, it is not proper to plead different theories in the same paragraph, but it is not necessarily fatal especially when the adversary makes no objection.' Vigor v. Chesapeake & Ohio R. Co., 1939, 101 F.2d 865, 869. Pleadings will serve the purpose of sharpening and limiting the issues only if claims based on negligence are set forth separately from those based on violation of the appliance acts.6 14 But no matter how the pleadings are allowed to stand, we think it is almost indispensable to an intelligible charge to the jury that a clear separation of the two kinds of actions be observed and impressed. The trial court in this case submitted the whole indiscriminately as a negligence case. This is hardly to be regarded as reversible error, for both counsel pleaded and tried the case as such and their requests were stated entirely in terms of the law of negligence. But the scrambling of the claims in this case illustrates how much evidence may be admitted, submitted and considered on negligence issues that, under our repeated holdings, would be immaterial in case of violation of the Safety Appliance Acts. 15 The plaintiff, for example, can add nothing to the liability incurred from a violation of the Act by producing evidence of negligence. Here there was affirmative and, so far as we can find, uncontradicted testimony that there was 'a partial fracture on the inside of the coupler' indicating that the coupler was weakened by an old defect. However important this evidence might have been in determining common law negligence, it added nothing to the direct case under the Safety Appliance Act made by showing the breaking of the coupler. 16 The defendant stressed evidence that in the switching operation the coupler broke concurrently with an emergency stop. Such evidence might be material on the question of negligence. But the Act certainly requires equipment that will withstand the stress and strain of all ordinary operation, grades, loadings, stops and starts, including emergency stops. A defendant cannot escape liability for a coupler's inadequacy by showing that too much was demanded of it, nor by showing that while the coupler broke it had been properly manufactured, diligently inspected and showed no visible defects. These circumstances do go to the question of negligence; but, even if a railroad should explain away its negligence, that is not enough to explain away its liability if it has violated the Act.7 17 Criticism is made that petitioner's requests to charge were not sufficiently specific. That they were somewhat general in statement and were cast in terms of a negligence case is true. But the Court of Appeals found these requests sufficiently specific and pertinent to the issues to present the question which it decided. And in deciding this question the way it did, we believe it has fallen into error. We make no examination of the charge insofar as it related to the issue of general negligence. As to the claim based on the Safety Appliance Act, we hold that the plaintiff was entitled to a peremptory instruction that to equip a car with a coupler which broke in the switching operation was a violation of the Act, which rendered defendant liable for injuries proximately resulting therefrom, and that neither evidence of negligence nor of diligence and care was to be considered on the question of this liability. 18 Reversed. 19 Mr. Justice FRANKFURTER, Mr. Justice DOUGLAS and Mr. Justice MINTON took no part in the consideration or decision of this case. 20 Mr. Justice BURTON, with whom Mr. Justice REED concurs, dissenting. 21 We do not agree that the Safety Appliance Acts contain a mandatory requirement that cars used in moving interstate traffic must be equipped with couplers that 'will remain coupled until set free by some purposeful act of control.'1 Congress might have so legislated, as it did in the section which required cars to be equipped with 'efficient hand brakes; * * *.'2 See Myers v. Reading Co., 331 U.S. 477, 67 S.Ct. 1334, 91 L.Ed. 1615. However, it did not do so. Accordingly, the trial judge, on this phase of this case, was justified in omitting any instruction to the jury that, if the railroad used a car equipped with a coupler that broke in the switching operation, it thereby violated the Safety Appliance Acts. 22 In our view, the separating of the cars at the broken coupler was properly treated as material evidence from which the jury could infer that the railroad had violated the prohibition of the Acts against using cars '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.'3 Vigor v. Chesapeake & Ohio R. Co., 101 F.2d 865. Cf. Johnson v. Southern Pacific Co., 196 U.S. 1, 25 S.Ct. 158, 49 L.Ed. 363. The jury was adequately instructed to that effect. 1 Philadelphia & R.R. Co. v. Eisenhart, 3 Cir., 1922, 280 F. 271; Keenan v. Director General of Railroads, 2 Cir., 1922, 285 F. 286; McAllister v. St. Louis Merchants Bridge Terminal R. Co., 1930, 324 Mo. 1005, 1014, 25 S.W.2d 791, 796; Southern Pacific Co. v. Thomas, 1920, 21 Ariz. 355, 360—361, 188 P. 268, 270; Kowalski v. Chicago & N.W.R. Co., 1924, 159 Minn. 388, 392—393, 199 N.W. 178, 180; Saxton v. Delaware & Hudson Co., 1931, 256 N.Y. 363, 176 N.E. 425. Cf. Vigor v. Chesapeake & Ohio R. Co., 7 Cir., 1939, 101 F.2d 865, 868; Western & Atlantic R. v. Gentle, 1938, 58 Ga.App. 282, 295, 198 S.E. 257, 265. 2 'It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic 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.' 3 E.g., San Antonio & A.P.R. Co. v. Wagner, 241 U.S. 476, 36 S.Ct. 626, 60 L.Ed. 1110; Minneapolis & St. Louis R. Co. v. Gotschall, 244 U.S. 66, 37 S.Ct. 598, 61 L.Ed. 995; Southern Pacific Co. v. Thomas, 21 Ariz. 355, 361, 188 P. 268, 270; Western & Atlantic R.R. v. Gentle, 58 Ga.App. 282, 198 S.E. 257; Vigor v. Chesapeake & Ohio R. Co., 7 Cir., 101 F.2d 865, 869. See also 2 Roberts, Federal Liabilities of Carriers, §§ 620, 655 et seq., 789, 790 (2d ed. 1929); 2 Shearman & Redfield on Negligence, § 183 (rev. ed. 1941); Thornton, Federal Employers' Liability and Safety Appliance Acts, §§ 289, 302, 311 (3d ed. 1916); Richey's Federal Employers' Liability, Safety Appliance, and Hours of Service Acts, §§ 56 217, 252 (2d ed. 1916). 4 For discussions of the general problem and illustrative cases, see Prosser on Torts, § 39; Harper, Law of Torts, § 78; Bohlen, Cases on Torts, pp. 187—204 (3d ed. 1930); 1 Shearman & Redfield on Negligence, §§ 11, 12 (rev. ed. 1941); 2 Restatement of the Law of Torts, §§ 286—288; Thayer, Public Wrong and Private Action, 27 Harv.L.Rev. 317; Lowndes, Civil Liability Created by Criminal Legislation, 16 Minn.L.Rev. 361. 5 Section 1 of the Federal Employers' Liability Act, 45 U.S.C. § 51, 45 U.S.C.A. § 51, provides 'That every common carrier by railroad * * * shall be liable in damages * * * for such injury or death resulting in whole or in part * * * by reason of any defect or insufficiency, due to its negligence * * *.' And see Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 501—502, 34 S.Ct. 635, 638, 639, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas.1915B, 475. 6 This, after all, is the command of Rule 10(b), Federal Rules of Civil Procedure, 28 U.S.C.A., which provides: 'All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances * * *.' Professor Moore, in discussing this Rule with reference to claims based upon both common law and statutory grounds, states: 'Separate statement by way of counts is not required; separate paragraphing in setting out the grounds in the above actions is desirable and required.' 2 Moore's Federal Practise, 2006—2007 (2d ed. 1948). 7 We do not say that a railroad may never effectively defend under the Act by showing that an adequate coupler failed to hold because it was broken or released through intervening and independent causes other than its inadequacy or defectiveness such, for example, as the work of a saboteur. And we do not find it necessary to consider a situation where an adequate coupler failed to hold because it was improperly set, since such facts are not before us. 1 Supra, 338 U.S. 389, 70 S.Ct. p. 203. 2 36 Stat. 298, 45 U.S.C. § 11, 45 U.S.C.A. § 11. 3 27 Stat. 531, 45 U.S.C. § 2, 45 U.S.C.A. § 2.

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338 U.S. 430 70 S.Ct. 226 94 L.Ed. 236 CARTERv.ATLANTA & ST. ANDREWS BAY RY. CO. No. 23. Argued Oct. 14, 1949. Decided Dec. 19, 1949. Mr. J. Kirkman Jackson, Birmingham, Ala., for petitioner. Mr. B. D. Murphy, Atlanta, Ga., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 The Federal Safety Appliance Acts require railroad cars used in interstate commerce to be equipped with couplers coupling automatically by impact.1 This case brings before us for review another action for damages by a railroad employee under the Safety Appliance Acts and the Federal Employers' Liability Act.2 The trial court instructed the jury that there could be no liability based on any 'defect' in the 'automatic coupling system,' but submitted the case on issues of negligence. There was a verdict against the plaintiff upon which judgment for the railroad was entered. The Court of Appeals affirmed. 170 F.2d 719. We granted certiorari because of the confusion which has developed in the application of the two statutes. 336 U.S. 935, 69 S.Ct. 749. Our duty to review certain cases of this nature is settled. Wilkerson v. McCarthy, 1949, 336 U.S. 53, 69 S.Ct. 413; Keeton v. Thompson, 1945, 326 U.S. 689, 66 S.Ct. 135, 90 L.Ed. 405; Ellis v. Union Pacific R. Co., 1947, 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572. 2 On February 2, 1946, the petitioner was injured while acting as 'swing man' of a switching crew on the respondent railroad. The crew of five men were engaged at night in switching operations at and near the International Paper Company plant in Panama City, Florida. The conductor of the crew had laid out a plan for coupling together a number of cars, some of which were on storage tracks and one on the main line. The ultimate objective was to switch some wood rack cars loaded with pulpwood into the wood yard of the paper concern. In the conductor's absence petitioner was in charge of the switching operations and attempted to carry out the instructions given him. 3 The engine, after coupling in front of it a box car followed by eight flat cars, was engaged in backing the train of cars onto the main line, in order to couple, at the end of the train, a Louisville & Nashville Railroad wood rack car loaded with pulpwood. The petitioner had previously set the brake and had opened both lips of the coupler on the L. & N. car preparatory to attaching the car to the train. He had given the footboard man the slow signal ahead for coupling, which had been passed on to the engineer. The engineer brought the train forward and hit the L. & N. car in the usual manner necessary for coupling, but instead of coupling to the train the L. & N. car started rolling down the tracks, which were, at this point, on a downgrade. 4 Petitioner saw that the L. & N. car had not coupled and ran after it for some fifty or sixty feet, climbed to the bulkhead where the brake wheel was located, and applied the hand brake to stop the car. He was able to bring the car to a stop only after it had left the main line and traveled around a curve for some six car lengths. Looking up, he saw the train moving toward him about twenty feet away at a speed which conflicting testimony places at a maximum of fifteen miles per hour to a minimum of two miles per hour. Petitioner grabbed the brake wheel to brace himself, but the train hit the L. & N. car so violently that it threw the petitioner about six feet down into its hold. This time the coupling was successful, and as the L. & N. car jerked from the impact some of the pulpwood loaded in the car was pitched forward on the petitioner, causing the alleged injuries. 5 The engineer testified that he did not know whether the L. & N. car had safely coupled at the first impact. He contended that after this impact, he received the come-ahead signal from the petitioner, whereupon he moved the train forward at about six miles per hour. The testimony was in sharp conflict with reference to this signal, as well as to other details of the incident. 6 Defendant moved for a directed verdict as to the failure to couple on the ground that while the coupler failed to couple on the initial impact, 'it worked previously and worked subsequently, and the proof shows no defect in it; and under the finding in Western & Atlantic Railroad v. Gentle, (58 Ga.App. 282), 198 S.E. 257, that this rule of law is laid down * * * that the failure of couplers to couple automatically by impact is not per se a violation of this Act * * *.' The District Court granted the motion, instructing the jury 'that there is no evidence in this case * * * from which you could properly find there was defect in this * * * automatic coupling system on that car.' The Court of Appeals affirmed on another theory: that the failure to couple on the first impact 'was the remote, not the proximate, cause of plaintiff's injuries.' 7 The trial court did submit the cause on the more general negligence allegations, and on these a verdict was returned for the respondent. But petitioner objects to those portions of the trial court's charge covering contributory negligence. The Court of Appeals admitted that standing alone, the charge 'might possibly have been prejudicial,' but stated that here it was 'inconsequential.' 8 In these conclusions the court below was in error. 9 First. Since 1893 the Congress has made it unlawful for a railroad company such as respondent to use any car on its line 'not equipped with couplers coupling automatically by impact.' This Court has repeatedly attempted to make clear that this is an absolute duty not based upon negligence, and that the absence of a 'defect' cannot aid the railroad if the coupler was properly set3 and failed to couple on the occasion in question. See O'Donnell v. Elgin, Joliet & Eastern Ry. Co., 1949, 338 U.S. 384, 390, 70 S.Ct. 200, 204, and cases cited. The fact that the coupler functioned properly on other occasions is immaterial. 10 But respondent contends that when the L. & N. car came to rest after the failure of the coupler 'its capacity for doing harm was spent.' The second movement, it argues, in which the coupling worked perfectly, started a new chain of events resulting in Carter's injury. 11 We cannot agree that the various events were so divisible. This was a two-pronged complaint, alleging the right to recover under the Safety Appliance Act and the Federal Employers' Liability Act. In this situation the test of causal relation stated in the Employers' Liability Act is applicable, the violation of the Appliance Act supplying the wrongful act necessary to ground liability under the F.E.L.A. See Moore v. Chesapeake & Ohio R. Co., 1934, 291 U.S. 205, 216, 54 S.Ct. 402, 406, 78 L.Ed. 755; O'Donnell v. Elgin, Joliet & Eastern R. Co., supra; Coray v. Southern Pacific Co., 1949, 335 U.S. 520, 69 S.Ct. 275. Sometimes that violation is described as 'negligence per se,' H.R.Rep.No.1386, 60th Cong., 1st Sess., p. 6; San Antonio & A.P.R. Co. v. Wagner, 1916, 241 U.S. 476, 484, 36 S.Ct. 626, 629, 60 L.Ed. 1110; 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. 12 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. We made clear in Coray v. Southern Pacific Co., supra, 335 U.S. at page 523, 69 S.Ct. at page 277, that if the jury determines that the defendant's breach is 'a contributory proximate cause' of injury, it may find for the plaintiff. See also Union Pacific R. Co. v. Hadley, 1918, 246 U.S. 330, 333, 38 S.Ct. 318, 319, 62 L.Ed. 751; Spokane & I.E.R. Co. v. Campbell, 1916, 241 U.S. 497, 510, 36 S.Ct. 683, 689, 60 L.Ed. 1125. 13 Certainly there was evidence upon which a jury could find a causal relation between the failure to couple, the action of petitioner in running and stopping the rolling car, the engineer's justified assumption that the car had coupled when in fact it had failed to do so, and the continued movement of the train into the standing car, thus causing injury. See Louisville & Nashville R. Co. v. Layton, 1917, 243 U.S. 617, 37 S.Ct. 456, 61 L.Ed. 931; Erie R. Co. v. Caldwell, 6 Cir., 1920, 264 F. 947. It was error to take this phase of the case from the jury. 14 Second. In ruling on petitioner's general negligence allegations the trial court fell into errors in its charge on contributory negligence4 which occur so frequently that we will discuss them briefly. The charge is replete with phrases such as, 'if you should find his (the petitioner's) own negligence was the proximate cause of whatever injury followed,' the verdict must be for the respondent. With proper explanations, the court could have advised the jury that if petitioner's own negligence was the sole proximate cause of his injury, the verdict must be for respondent; but here the court again and again used such phrases as 'if you should find his injury was directly or proximately caused by his own negligence,' verdict must be for the railroad; and 'if you find that his own negligence in no manner contributed to his injury'; 'if you find * * * he was not negligent in any manner,' the verdict must be for the plaintiff. We are unable to say such error was inconsequential. It violates the direct command of the Act of Congress. The 'fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee * * *.' 35 Stat. 66, 45 U.S.C. § 53, 45 U.S.C.A. § 53.5 The negligence of the petitioner and that of the railroad should have been submitted to the jury, and in the light of this comparison a verdict reached that would do justice to all concerned. See Tiller v. Atlantic Coast Line R. Co., 1943, 318 U.S. 54, 65, 63 S.Ct. 444, 450, 87 L.Ed. 610, 143 A.L.R. 967. 15 The judgment is reversed and the case remanded for further proceedings in conformity with this opinion. 16 Reversed. 17 Mr. Justice REED dissents. 18 In his view the failure of the automatic coupler to fasten on the first impact was not a proximate cause of the injury to petitioner. The failure did not contribute to the injury. That was caused by a too rapid coupling on the second effort. 19 Any deficiency in the instructions on negligence was cured by the court's modification of the instruction set out in note 5 of the opinion. 20 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 21 Mr. Justice FRANKFURTER. 22 Properly deeming industrial injuries inherently incidental to the conduct of modern industry, the law throughout the United States deals with them as such on the principle of insurance, not on the principle of negligence. The workmen's compensation laws thereby eliminated all the inevitably casuistic efforts to apply the concepts of 'negligence,' (proximate cause' and 'contributory negligence' which served well enough employer-employee relations which have long since ceased. To apply the concepts of 'negligence' and 'proximate cause' to the infinite complexities of modern industry is like catching butterflies without a net. But as to injuries suffered by railroad employees, courts and juries must continue to apply these concepts so long as the anachronistic Federal Employers' Liability Act remains. 23 Happily, however, Congress has not said that all the casuistries about 'proximate cause' must be adjudicated by three courts. As an indispensable requirement of the functioning of this Court, Congress has left it to our discretion to decide whether, after a District Court and a Court of Appeals or two courts of a State have wrestled with the phantoms of proximate cause, this Court should have another go at it. A law by which injuries sustained by railroad employees in the course of their employment are compensated on the basis of negligence is bound to work injustice, and hardships in particular situations naturally present humane opportunities for alleviation. But no amount of stretching of negligence concepts can change the Act's character and the mischief that it does as a cruel survival of a by-gone era. And it is inconsistent with the functions of this Court to yield to such temptations by taking cases in which a conscientious appellate court felt compelled to decide against a railroad employee on its justifiable application of the dubious requirements of negligence, even though a contrary view might also be taken. Where a case involves no general principle requiring pronouncement but merely its own unique circumstances, such alleviation is inconsistent with the criteria, set forth in Rule 38, governing this Court's discretion in granting a writ of certiorari. 24 The argument at the bar of this Court and the opinions dealing with the merits leave no room for doubt that no general principle is here involved. There is merely a difference in the application of professedly settled rules to the circumstances of this particular case. Three experienced judges of the Court of Appeals have found no error in the judgment that was rendered for the defendant. The division in this Court underlines the fact that the three judges below could not unreasonably have entertained the view they did. I am not remotely suggesting that this Court has not reached the right result, if it had to deal with the merits. For me it is decisive that, since the merits involve merely evaluation of the unique facts in the record, the case does not fall within the proper business of the Court. 25 I would therefore dismiss the writ as improvidently granted. By not doing so, the Court encourages petitions of this character instead of discouraging them. The Court should save its energy for cases it necessarily must adjudicate in order to adjudicate them with due regard for the needs of the deliberative process. The only effective way to respect these considerations is to cease acquiescence in their disregard. See Wilkerson v. McCarthy, 336 U.S. 53, 64, 69 S.Ct. 413, 418 (concurring opinion). 1 'It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic 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. 2 35 Stat. 65, as amended, 45 U.S.C. §§ 51—59, 45 U.S.C.A. §§ 51—59. 3 See Myers v. Reading Co., 1947, 331 U.S. 477, 483, 67 S.Ct. 1334, 1338, 91 L.Ed. 1615. Respondent conceded, in opposing certiorari, that 'the Safety Appliance Act was violated * * *—a coupling failed to couple on impact * * *.' That statement is apparently abandoned now, for the argument is that Carter set the coupler improperly. On the record before us it is clear that that is a jury question. 4 Our ruling here, of course, is directed at the trial court's charge on the petitioner's general negligence allegations. In violations of the Safety Appliance Act, no employee 'shall be held to have been guilty of contributory negligence * * *.' 45 U.S.C. § 53, 45 U.S.C.A. § 53, even for purposes of jury comparison. See Coray v. Southern Pacific Co., supra. 5 Respondent argues that the Court remedied these errors after the oral charge had been given. We see no basis for that conclusion; the Court's action at that time was equivocal at best. The record recites the following: 'Mr. Pettus: Your Honor said if the plaintiff negligently caused his own injury, he could not recover. If the plaintiff by his negligence proximately caused his injury, he couldn't recover. Your Honor omitted 'sole'. In other words, if the plaintiff's negligence were the sole proximate cause, of course he couldn't recover. 'The Court: I will modify it to that extent. That simply means whether his own negligence was wholly responsible for his injury. If he is totally responsible, it would not make any difference as to negligence on the other side. * * * 'Mr. Pettus: We except to that latter part of your Honor's charge, 'would not make any difference on the other side.' We except to your Honor's charge that there was no defect in the hand brake, and also that portion of your Honor's charge that the plaintiff negligently set the hand brake, automatic coupling, and that was the proximate cause, without limiting it and saying it was the sole cause. In other words, was the proximate cause and not the sole cause. And then when your Honor was reading a written charge you said, in explanation, 'if the direct or proximate cause of plaintiff's own negligence.' and we except to that on the ground you did not say it must be the sole cause. We asked you an explanatory charge on that rule, if yur Honor will give it at this time. I think your Honor overlooked charging it. If you will look at the rule. 'The Court: I think I will refuse this charge. 'Mr. Pettus: Refuse it? 'The Court: Yes. Give you an exception.'

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338 U.S. 421 70 S.Ct. 190 94 L.Ed. 225 ALCOA S.S. CO., Inc.v.UNITED STATES. No. 271. Argued Nov. 15, 1949. Decided Dec. 19, 1949. Mr. Melville J. France, New York City, for petitioner. Mr. Samuel D. Slade, Washington, D.C., for respondent. Mr. Justice REED delivered the opinion of the Court. 1 It is principle of American maritime law that ocean carrier freight charges are not earned unless and until the goods are delivered to destination.1 But contractual provisions establishing the shipper's liability for freight regardless of actual delivery have been uniformly held valid,2 and have become common stipulations in carriers' bills of lading. Shipments of government property are made subject to the conditions of the carrier's usual contract of carriage unless the government standard form bill of lading specifically provides otherwise.3 At bar is the single question of contract interpretation whether a carrier's 'Goods or Vessel lost or not lost' provision survives the terms of the government standard form bill of lading. Has the government bill provided against liability for freight charges on public goods lost at sea? 2 On June 13, 1942, petitioner's ship, S. S. Gunvor, shipped a cargo of lumber at Mobile, Alabama, bound for Trinidad under a government form bill of lading. On her first day out she was torpedoed by enemy submarine. Ship and cargo were a total loss. In spite of the carrier's failure to deliver the shipment, the bill of lading was surrendered to it, and its claim for freight on the lost cargo was paid by the War Department on September 15, 1942. On audit, however, the Comptroller General disallowed the payment on the ground that the freight had not been earned, and the sum was offset against other claims admittedly owing to petitioner. Petitioner instituted this suit under the Tucker Act (see 28 U.S.C.A. §§ 1346, 2401, 2402) in the United States District Court for the Southern District of New York to recover the freight claimed. The case in no way concerns liability for the value of the cargo lost. Reversing the conclusion of the District Court, 80 F.Supp. 158, the Court of Appeals for the Second Circuit found in the provisions of the standard government form bill of lading a 'carefully devised plan' to pay freight charges only if the shipment actually arrives at destination.4 We granted certiorari because determination of the issue raised here will guide adjustment of a large body of similar claims now pending. 338 U.S. 813, 70 S.Ct. 80. 3 Review of existing case law and prevailing commercial usage respecting the earning of freight provides no assistance in solving the narrow problem raised by the specific contract now before us. Further, in view of our conclusion in the case, we need not decide whether we may properly consider the Government's extensive argument regarding past administrative practice, nor rule upon its relevance or weight. As to petitioner's citation to two instances where, allegedly, claims similar to this were honored by the Comptroller General, we agree with the court below that a case of consistent administrative practice has not been made out, if indeed such practice is a relevant consideration. We therefore deal only with the bare words of the contract. 4 A brief statement of the general scheme of payment of carrier charges under the government bill of lading will facilitate discussion of the niceties in the draftsmanship. The standard form bill of lading is filled out by the consignor at the time of shipment, signed by the carrier's agent and transmitted to the consignee. The consignee, upon receipt of the goods shipped, endorses the consignee's certificate printed on the bill and hands the bill over to the carrier. The carrier then submits to the appropriate agency the endorsed bill and a standard form government voucher in support of its claim for the freight charges. Setting forth the details of this disbursing machinery, there are printed on the reverse of the bill of lading 'General Conditions and Instructions,' clearly referred to upon the face of the bill.5 5 'Condition 2' of the government bill provides the initial basis for the controversy here: 'Unless otherwise specifically provided or otherwise stated hereon, this bill of lading is subject to the same rules and conditions as govern commercial shipments made on the usual forms provided therefor by the carrier.' Clause 6 of petitioner's bill of lading provides that: 'Full freight to destination * * * and all advance charges against the Goods are due and payable * * * as soon as the Goods are received for purposes of transportation; * * * Goods or Vessel lost or not lost * * *.' 6 It is therefore conceded by all parties that under these two quoted provisions, the United States is obligated to pay freight on the lost Gunvor cargo unless the terms of the government bill 'specifically' negative the carrier's provision. With due regard to the principle of strict construction against the draftsman of a contract, we have concluded that the terms of the government bill of lading are inconsistent with petitioner's Clause 6, and that the United States is not liable for freight on this lost public property. 7 Occupying first place among the 'Conditions' to the bill, and central to the issue here, is the payment provision. '1. Prepayment of charges shall in no case be demanded by carrier, nor shall collection be made from consignee. On presentation to the office indicated on the face hereof of this bill of lading, properly accomplished, attached to freight voucher prepared on the authroized Government form, payment will be made * * *.' 8 The simple provision against 'prepayment' does not, we think, force the conclusion that freight will be paid only on delivered goods. This clause seems to us not to forbid accrual of the freight charge obligation in advance of delivery, but only to prohibit payment in advance.6 But it does seem clear that the second sentence of 'Condition 1' expressly conditions payment upon submission of two documents, the bill of lading 'properly accomplished,' and a freight voucher prepared on the authorized government form. If the carrier is put on express notice that fulfillment of either of these conditions posits actual delivery of the cargo, petitioner's 'lost or not lost' provision must be held vitiated. In fact, both specifically contemplate actual delivery. I. 9 It is petitioner's construction that the bill of lading condition has been fully satisfied. 'Accomplishment' he argues to be a technical term of ancient use in the law of the sea signifying no more than surrender of the bill to the carrier by the consignee or other authorized holder. This may be conceded immediately, and indeed the government bill seems to imply this usage where the term is used alone. But in this one provision on the bill the term is not used alone. Payment is not conditioned upon submission of an 'accomplished' bill of lading; the bill must be 'properly accomplished.'7 Unless the modifier be held to mean nothing, it can only be inferred that more than bare 'accomplishment' is contemplated. The requisites to a 'properly accomplished' bill are specifically set forth. We italicize the pertinent words. 10 Reference to 'Instruction 2' informs the carrier that: 'The consignee on receipt of the shipment will sign the consignee's certificate on the original bill of lading and surrender the bill of lading to the last carrier. The bill of lading then becomes the evidence upon which settlement for the service will be made.' This consignee's certificate, printed on the face of the bill, is denominated a 'Certificate of Delivery,' and is introduced by the words: 'I have this day received * * * the public property described in this bill of lading, in apparent good order and condition, except as noted on the reverse hereof.' 'Condition 6' recites that: 'Receipt of the shipment is made subject to the 'Report of Loss, Damage, or Shrinkage' noted hereon.' and 'Instruction 6' calls for notation of all loss or damage before accomplishment if possible. In sum, 'the' evidence upon which the carrier may rely for payment is the 'accomplished,' or surrendered, bill of lading, accompanied by the 'Certificate of Delivery' signed 'on receipt of the shipment,' with the 'receipt' subject to the loss or damage report. 11 The entries made in the situation at bar are those that could be anticipated from the terms of the bill. The consignee's Certificate of Delivery is endorsed only: 's.s. 'Gunvor' has been lost due to enemy action. * * * For the Acting District Engineer (signature illegible) Superintendent, August 8, 1942.' The indicated spaces on the form were not filled in, nor was any entry made in the 'Report of Loss, Damage, or Shrinkage.' We do not, of course, suggest that the particular entries made on this bill determine the contractual issue, but it seems inescapable that the entry was made entirely for the record in explanation of the failure of the lumber to arrive. Without receipt of the goods, the bill was not, and could not have been, filled in under the strict terms of the standard form which we have stressed, so as to be 'properly accomplished' for purposes of payment to the carrier. II. 12 By the terms of 'Condition 1' of the bill of lading, payment is further conditioned upon submission of the authorized government form voucher, a separate document.8 On the reverse of this voucher form are 'Instructions to Carriers,' referred to on the face of the voucher. In these voucher 'Instructions' appears in unequivocal language, statement of the Government's position that it shall not be held liable for freight on undelivered goods. 'Instruction 6' reads explicitly: 'Payment for transportation charge will be made only for the quantity of stores delivered at destination * * *.'9 13 We think of but one argument which can be advanced against the conclusiveness of this clause. 'Condition 2' on the bill of lading invokes the usual commercial contract terms 'unless otherwise specifically provided or otherwise stated hereon'; it is arguable that 'hereon' does not mean 'thereon,' and that consequently the clear provision of the voucher forbidding payment for non-delivered goods cannot be considered. But, assuming for argument that no reliance may be placed upon the further condition that the bill of lading be 'properly accomplished,' this reasoning leads to the anomalous conclusion that (1) under the piece of paper labeled 'bill of lading' freight is 'earned' though the goods are not delivered; but (2) payment will be made only on a voucher, which expressly denies the right to payment for undelivered goods. Such a construction yields an accrued obligation, without means of collection. We think it more reasonable to accept the available alternative reading, and hold that the words in 'Condition 2' 'otherwise stated hereon' are satisfied by the express reference on the bill to the standard voucher and the specific conditioning of payment upon submission of that voucher. 14 To hold petitioner to the terms of the voucher comports with practicalities. The intent of the Government to condition payment upon delivery we think abundantly clear, and the basic question is whether the Government's draftsmanship succeeds in giving unequivocal notice of this stipulation. The bill expressly summons attention to the voucher; the provision on the voucher is unmistakable. An experienced carrier could not have been unfamiliar with the express terms of a document which it uses regularly, a prescribed document upon which every claim against one of its largest customers must be made. 15 Since it seems to us that the bill of lading's specific conditions for payment can only be satisfied upon delivery of the shipment to destination, we hold the terms of the government bill to be inconsistent with petitioner's 'Goods or Vessel lost or not lost' provision. The decision below is correct, and is affirmed. 16 Affirmed. 17 Mr. Justice FRANKFURTER and Mr. Justice BURTON dissent on the grounds expressed below in the opinion of Judge Augustus N. Hand. 2 Cir., 175 F.2d 661, 663. 18 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 See, e.g., Brittan v. Barnaby, 21 How. 527, 533, 16 L.Ed. 177; Caze & Richaud v. Baltimore Ins. Co., 7 Cranch 358, 362, 3 L.Ed. 370; Robinson, Admiralty, § 82 (1939); Borchard, The Earning of Freight on Uncompleted Voyages, 30 Yale L.J. 362 (1921). 2 E.g., International Paper Co. v. The Gracie D. Chambers, 248 U.S. 387, 39 S.Ct. 149, 63 L.Ed. 318; Allanwilde Transport Corp. v. Vacuum Oil Co., 248 U.S. 377, 39 S.Ct. 147, 63 L.Ed. 312, 3 A.L.R. 15. 3 Government Bill of Lading, Standard Form 1058, approved by the Comptroller General, U.S., August 24, 1928; 8 Comp.Gen. 698; 'Condition 2' quoted 338 U.S. 424, 70 S.Ct. 192, infra. 4 175 F.2d 661, 663. 5 Also printed on the back of the bill are a series of 'Administrative Directions' and a form for 'Report of Loss, Damage, or Shrinkage.' 6 The provision was required by law. For more than a century it had been the expressed legislative will that 'no advance of public money shall be made in any case whatever * * *.' Act Jan. 31, 1823, 3 Stat. 723, 31 U.S.C.A. § 529. The Government interprets a further provision of this statute that '* * * payment shall not exceed the value of the service rendered * * *' to resolve the issue at bar in its favor. Like the court below, we find it unnecessary to pass upon this contention. 7 The only other use of the modifier significantly appears in the parallel provision on the reverse of the voucher. Voucher Instruction 1 reads: 'Payment * * * will be made * * * upon this voucher form, accompanied by the corresponding bills of lading, properly receipted; * * *.' (Italics supplied.) 8 Standard Form 1068, approved by the Comptroller General, U.S., June 26, 1931; 10 Comp.Gen. 588. All claims against the Government for freight or express charges must be made upon this standard voucher. 9 The balance of the sentence is not relevant here. It reads: '* * * except that in case of loss of weight from natural shrinkage en route and weight shipped, as shown by the bill of lading, will be paid for, provided packages are delivered intact.' The syntax of this exception clause is destroyed by the conjunction in italics. Reference to the official copy at 10 Comp.Gen. 589 shows that 'and' is a printer's error. The correct word is 'the'.

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338 U.S. 440 70 S.Ct. 225 94 L.Ed. 244 HUBSCHv.UNITED STATES. SCHWEITZER v. UNITED STATES. Nos. 379, 380. On Application for Approval of Settlement Nov. 25, 1949. Decided Dec. 19, 1949. PER CURIAM. 1 We granted writs of certiorari in these cases, 338 U.S. 814, 70 S.Ct. 44, to review a decision of the Court of Appeals for the Fifth Circuit, 174 F.2d 7, affirming judgments of the District Court for the Southern District of Florida in favor of the United States on claims arising under the Federal Tort Claims Act. Before argument, petitioners and the Solicitor General submitted a joint application for approval of proposed settlements of the claims, citing 28 U.S.C. § 2677, 28 U.S.C.A. § 2677, which reads as follows: 2 'The Attorney General, with the approval of the court, may arbitrate, compromise, or settle any claim cognizable under section 1346(b) of this title (suits under the Tort Claims Act), after commencement of an action thereon.' We construe § 2677 as imposing on the District Court the authority and responsibility for passing on proposed compromises, notwithstanding the judgments of the Court of Appeals affirming the judgments of the District Court heretofore entered herein. The application and stipulations are therefore referred to the United States District Court for the Southern District of Florida with authority to consider and dispose of the same. It is so ordered. 3 Remanded. 4 Mr. Justice DOUGLAS took no part in the consideration or decision of this case.

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338 U.S. 491 70 S.Ct. 292 94 L.Ed. 287 SAVORGNANv.UNITED STATES et al. No. 48. Argued Nov. 7—9, 1949. Decided Jan. 9, 1950. Rehearing Denied March 13, 1950. See 339 U.S. 916, 70 S.Ct. 564. Messrs. Suel O. Arnold, Milwaukee, Wis., Carl A. Flom, Madison, Wis., for petitioner. Mr. Oscar H. Davis, Washington, D.C., for respondents. Mr. Justice BURTON delivered the opinion of the Court. 1 The question is whether, under the special circumstances of this case, a native-born American citizen who became an Italian citizen in 1940, and lived in Italy with her Italian husband from 1941 to 1945, nevertheless retained her American citizenship. For the reasons hereinafter stated, we hold that she did not. The controlling statutes are § 2 of the Citizenship Act of 1907,1 and §§ 401, 403 and 104 of its successor, the Nationality Act of 1940.2 2 The petitioner, Rosette Sorge Savorgnan, brought this action in the United States District Court for the Western District of Wisconsin, under § 503 of the Nationality Act of 1940, 54 Stat. 1171, 8 U.S.C. § 903, 8 U.S.C.A. § 903, for a judgment declaring her to be an American citizen. That court decided in her favor. 73 F.Supp. 109. The United States Court of Appeals for the Seventh Circuit reversed the judgment and remanded the case with directions to dismiss the petition against the United States because it had not consented to be sued, and to enter judgment in favor of the other defendants in conformity with its opinion. 171 F.2d 155. Because of the importance of this decision in determining American citizenship, we granted certiorari. 337 U.S. 914, 69 S.Ct. 1158. 3 Insofar as material, the undisputed facts and those found by the District Court are as follows: 4 The petitioner was born in Wisconsin in 1915 of native-born parents and resided in the United States until July, 1941. In March, 1940, her intended husband, Alessandro Savorgnan, was an Italian citizen, serving as Italian Vice Consul at St. Louis, Missouri. He informed her that, under Italian law, she would have to become an Italian citizen before he could obtain the necessary royal consent to their marriage. She applied for Italian citizenship. He prepared her application. It was in Italian which he understood, but which she did not understand. In August, the petitioner was granted Italian citizenship. In November, she appeared with Savorgnan at the Italian Consulate in Chicago, Illinois, and, in his presence, signed an instrument which contained an oath, in Italian, expressly renouncing her American citizenship and swearing her allegiance to the King of Italy.3 No ceremony or formal administration of the oath accompanied her signature and apparently none was required. She and Savorgnan understood that her signing of this instrument had to do with her citizenship and with securing the required royal consent for Savorgnan to marry her, but he did not translate the instrument or explain its contents to her. The District Court found as a fact that, at the time of signing each of the documents mentioned, the petitioner, although intending to obtain Italian citizenship, had no intention of endangering her American citizenship or of renouncing her allegiance to the United States. 5 December 26, 1940, the petitioner and Savorgnan were married. In July, 1941, when Italian diplomatic officials were required to leave the United States, an Italian diplomatic passport was issued to the petitioner, and she embarked for Italy with her husband. She remained in Italy until November, 1945, except for six months spent in Germany. While in Italy she lived with her husband and his family in Rome, where he worked in the Italian Foreign Ministry. In November, 1945, she returned to America on the Italian diplomatic passport and later requested the Commissioner of the Immigration and Naturalization Service to correct the records of his office to show that she was an American citizen at the time of her return to America. The request was denied and she instituted the present proceeding. 6 There is no evidence of her maintaining, at any time after her marriage, a residence, dwelling place or place of general abode apart from her husband. The District Court, however, found that, at the times of signing her application for Italian citizenship and the instrument containing her oath of allegiance to the King of Italy, she did not intend to establish a 'permanent residence' in any country other than the United States. It found also that when she left America for Italy, 'she did so without any intention of establishing a permanent residence abroad or abandoning her residence in the United States, or of divesting herself of her American citizenship.' See 73 F.Supp. at page 110. We thus face two principal questions: 7 I. What was the effect upon the petitioner's American citizenship of her applying for and obtaining Italian citizenship? The Government contends that she thereby was naturalized in a foreign state in conformity with its laws within the meaning of either § 2 of the Act of 1907 or § 401(a) of the Act of 1940.4 It contends further that § 2 of the Act of 1907 did not require residence abroad as a condition of expatriation, and that she, therefore, was, then and there, effectively expatriated under that Act, merely upon becoming naturalized as an Italian citizen while still remaining in the United States. We agree that she was thus naturalized, but we do not find it necessary to pass upon the further contention that, by obtaining such naturalization in 1940, she then and there expatriated herself, and lost her American citizenship without taking up residence abroad.5 8 II. What was the effect upon the petitioner's American citizenship of her residence in Italy from 1941 to 1945? The Government contends that, even if the petitioner did not lose her American citizenship, in 1940, when she became a naturalized Italian citizen, she lost it when she took up her residence in Italy. We agree. The Government contends that this expatriation was effected either under the Act of 19406 or under the Act of 1907 as continued in effect by a saving clause in the Act of 1940.7 We find it unnecessary to choose between these contentions because each leads to the same conclusion in this case. I. 9 What was the effect upon the petitioner's American citizenship of her applyingfor and obtaining Italian citizenship? 10 The requirements for expatriation under § 2 of the Citizenship Act of 1907 are objective.8 That section provides that 'any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state.'9 11 Traditionally the United States has supported the right of expatriation as a natural and inherent right of all people.10 Denial, restriction, impairment or questioning of that right was declared by Congress, in 1868, to be inconsistent with the fundamental principles of this Government.11 From the beginning, one of the most obvious and effective forms of expatriation has been that of naturalization under the laws of another nation. However, due to the common-law prohibition of expatriation without the consent of the sovereign, our courts hesitated to recognize expatriation of our citizens, even by foreign naturalization, without the express consent of our Government.12 Congress finally gave its consent upon the specific terms stated in the Citizenship Act of 1907 and in its successor, the Nationality Act of 1940. Those Acts are to be read in the light of the declaration of policy favoring freedom of expatriation which stands unrepealed. 3 Hackworth, Digest of International Law §§ 242—250 (1942). 12 A. One contention of the petitioner is the novel one that her naturalization did not meet the requirements of § 2 of the Act of 1907,13 because it did not take place within the boundaries of a foreign state. The answer is that the phrase in § 2 which states that 'any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, * * *' (emphasis supplied) refers merely to naturalization into the citizenship of any foreign state. It does not refer to the place where the naturalization proceeding occurs. The matter is even more clearly dealt with in the Act of 1940.14 Section 401(a) there lists 'Obtaining naturalization in a foreign state, * * *' as a means of losing nationality. Section 403(a) then states that expatriation shall result from the performance of the acts listed in § 401 'within the United States * * *' if and when the national performing them 'thereafter takes up a residence abroad.' Thus Congress expressly recognized that 'naturalization in a foreign state' included naturalization proceedings which led to citizenship in a foreign state, but took place within the United States. 13 B. The petitioner's principal contention is that she did not intend to give up her American citizenship, although she applied for and accepted Italian citizenship, and that her intent should prevail. However, the acts upon which the statutes expressly condition the consent of our Government to the expatriation of its citizens are stated objectively.15 There is no suggestion in the statutory language that the effect of the specified overt acts, when voluntarily done, is conditioned upon the undisclosed intent of the person doing them. 14 The United States has long recognized the general undesirability of dual allegiances. Since 1795, Congress has required any alien seeking American citizenship to declare 'that he both absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever, and particularly by name, the prince, potentate, state or sovereignty, whereof he was before a citizen or subject; * * *.' 1 Stat. 414, see 8 U.S.C. § 735(a), 8 U.S.C.A. § 735(a).16 Temporary or limited duality of citizenship has arisen inevitably from differences in the laws of the respective nations as to when naturalization and expatriation shall become effective. There is nothing, however, in the Act of 1907 that implies a congressional intent that, after an American citizen has performed an overt act which spells expatriation under the wording of the statute, he, nevertheless, can preserve for himself a duality of citizenship by showing his intent or understanding to have been contrary to the usual legal consequences of such an act.17 15 This Court, in interpreting § 3 of the Act of 1907 as it existed from 1907 to 1922, has passed upon substantially this question. Section 3 then provided that 'any American woman who marries a foreigner shall take the nationality of her husband.' 34 Stat. 1228, repealed in 42 Stat. 1022. While that provision was in effect, a woman who was a native-born citizen of the United States married a subject of Great Britain residing in California. The woman had not intended to give up her American citizenship. On being advised that she had done so, she sought a writ of mandamus to compel the local Board of Elections to register her as a voter and she showed that she had the necessary qualifications for registration, provided she established her American citizenship. The Court held that, during her coverture, her expatriation was binding upon her as the statutory consequence of her marriage to a foreigner in spite of her contrary intent and understanding as to her American citizenship. She accordingly was denied relief. Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, Ann.Cas.1916E, 645. See also, Ex parte Griffin, C.C.N.D.N.Y., 237 F. 445. Cf. Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. 16 The petitioner, in the instant case, was a competent adult. She voluntarily and knowingly sought and obtained Italian citizenship.18 Her application for naturalization and her oath of allegiance were in Italian, which she did not understand, but Savorgnan did understand Italian, and he was with her and able to translate and explain them to her when she signed them. She knew that the instruments related to her citizenship and that her signature of them was an important condition upon which her marriage depended. She thus was as responsible for understanding them as if they had been in English. On that basis, she was married. Whatever the legal consequences of those acts may be, she is bound by them. 17 C. The Government contends vigorously that the petitioner's Italian naturalization, in 1940, then and there expatriated her. It contends that this provides sufficient basis, under the Act of 1907, to affirm the decision of the Court of Appeals without reference to the petitioner's subsequent residence abroad. While recognizing the force of this alternative ground for affirmance, we do not rest our decision upon it. It is, however, entitled to be noted. The Government's argument is that, while residence abroad may have been required before the Act of 1907 and is now expressly required by the Act of 1940, it was not required under the Act of 1907. See Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, Ann.Cas.1916E, 645. The Government concedes, however, that, at least since 1933, the State Department has considered residence abroad to be a necessary element of expatriation. 3 Hackworth, Digest of International Law §§ 242—250 (1942). In our view, the petitioner's residence abroad from 1941 to 1945 makes it unnecessary to determine, in this case, what would have been her status if she had not taken up her residence abroad. We accordingly do not do so. II. 18 What was the effect upon the petitioner's American citizenship of her residencein Italy from 1941 to 1945? 19 A. The Nationality Act of 1940, including its repeal of § 2 of the Citizenship Act of 1907, took effect January 13, 1941.19 The petitioner's residence abroad began after that date. It is contended that the effect of such residence may be determined either by the terms of the Act of 1940, or by those of the Act of 1907 continued in force by a saving clause in the Act of 1940.20 We find, however, that the petitioner's residence and her naturalization have the same effect whether or not resort is had to the saving clause. Accordingly, it is not necessary to determine here whether the petitioner's residence and naturalization are to be tested under the saving clause or under the rest of the Act of 1940.21 20 B. The petitioner's residence abroad met the requirements of the Act of 1940. Sections 403(a) and 104 used the terms 'residence' and 'place of general abode' without mention of the intent of the person concerned.22 The Act cleared up the uncertainties which had been left by early decisions as to the type and amount, if any, of residence abroad that was required to establish expatriation.23 In contrast to such terms as: 'temporary residence,' 'domicile,' 'removal, with his family and effects,' 'absolute removal' or 'permanent residence,' the new Act used the term 'residence' as plainly as possible to denote an objective fact.24 To identify the required 'place of residence,' it required only that it be the 'place of general abode.' Confirmation of this intended simplification appears in the Report on Revision and Codification of the Nationality Laws of the United States, submitted by the Secretary of State, Attorney General and Secretary of Labor to Congress on the bill which became the Nationality Act of 1940: 21 'Definitions of 'residence' frequently include the element of intent as to the future place of abode. However, in section 104 hereof no mention is made of intent, and the actual 'place of general abode' is the sole test for determining residence. The words 'place of general abode,' which are taken from the second paragraph of section 2 of the Citizenship Act of March 2, 1907 (34 Stat. 1228), seem to speak for themselves. They relate to the principal dwelling place of a person.'25 22 The District Court did not find that the petitioner failed to take up an actual residence or place of general abode abroad. It found merely that in 'July 1941 when she left this country for Italy she did so without any intention of establishing a permanent residence abroad or abandoning her residence in the United States, * * *.' (Emphasis supplied.) See 73 F.Supp. at page 110. Under the Act of 1940, the issue is not what her intent was on leaving the United States, nor whether, at any later time, it was her intent to have a permanent residence abroad or to have a residence in the United States. The issue is only whether she did, at any time between July, 1941, and November, 1945, in fact 'reside' abroad. The test of such 'residence' is whether, at any time during that period, she did, in fact, have a 'principal dwelling place' or 'place of general abode' abroad. She testified that, from 1941 to 1945, she lived with her husband and his family in Rome, except for six months' internment in Salzburg, Germany. Whatever may have been her reasons, wishes or intent, her principal dwelling place was in fact with her husband in Rome where he was serving in his Foreign Ministry. Her intent as to her 'domicile' or as to her 'permanent residence,' as distinguished from her actual 'residence,' 'principal dwelling place,' and 'place of abode,' is not material. She expatriated herself under the laws of the United States by her naturalization as an Italian citizen followed by her residence abroad.26 23 The judgment of the Court of Appeals, accordingly, is affirmed, and the case is remanded to the District Court with directions to dismiss the petition against the United States and to enter judgment in favor of the other defendants in conformity with this opinion. 24 Affirmed. 25 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 26 Mr. Justice FRANKFURTER, whom Mr. Justice BLACK joins, is of opinion that the judgment of the District Court should be reinstated. Law of course determines the legal consequences of conduct. But both the Citizenship Act of 1907 and the Nationality Act of 1940 raise issues of fact, and the District Court allowably found the facts in favor of the petitioner. Since expatriation does not follow on the basis of such finding, the judgment of the District Court should not have been disturbed. 73 F.Supp. 109. 1 'Sec. 2. That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state. 'When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any other foreign state it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided, however, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe: And provided also, That no American citizen shall be allowed to expatriate himself when this country is at war.' (Emphasis supplied.) 34 Stat. 1228, 8 U.S.C. (1934 ed.) § 17. 2 'Sec. 401. A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: '(a) Obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such person: * * * or '(b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state; * * *.' (Emphasis supplied.) 54 Stat. 1168—1169, 8 U.S.C. § 801(a) and (b), 8 U.S.C.A. § 801(a, b). 'Sec. 403. (a) Except as provided in subsections (g), (h), and (i) of section 401, no national can expatriate himself, or be expatriated, under this section (*) while within the United States or any of its outlying possessions, but expatriation shall result from the performance within the United States or any of its outlying possessions of any of the acts or the fulfillment of any of the conditions specified in this section (*) if and when the national thereafter takes up a residence abroad.' (Emphasis supplied.) 54 Stat. 1169—1170, 58 Stat. 677, 8 U.S.C. § 803(a), 8 U.S.C.A. § 803(a). * The words 'this section' as used in § 403 refer to § 401. This not only is evident from the context but a ready explanation appears from the fact that the language of § 403 originally appeared as a proviso in § 401(h) of H.R. 6127, 76th Cong., 1st Sess. (1940). Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, superseded by H.R. 9980, 76th Cong., 1st Sess. 25 (1940). H.R. 9980 became the Nationality Act of 1940. 'Sec. 104. For the purposes of sections 201, 307(b), 403, 404, 405, 406, and 407 of this Act, the place of general abode shall be deemed the place of residence.' (Emphasis supplied.) 54 Stat. 1138, 8 U.S.C. § 504, 8 U.S.C.A. § 504. 3 A translation shows that this instrument included the following statement: 'The person in question (Rosetta And rus Sorge, who, as Rosette Sorge Savorgnan, later became the petitioner in the instant case), having been requested to take an oath * * * pronounced the following words: "I, Rosetta Andrus Sorge, born an American citizen, declare I renounce and in truth do renounce my American citizenship, and swear to be faithful to H.M. the King of Italy and Albania, Emperor of Ethiopia, to his royal successors, and to loyally observe the statutes and other laws of the Kingdom of Italy." (Emphasis supplied.) 4 See notes 1 and 2, supra. 5 The Government further claims that the petitioner's signing of the instrument containing her oath of allegiance to the King of Italy was an oath of allegiance to a foreign state within the meanings of § 2 of the Act of 1907, and of § 401(b) of the Act of 1940. We agree. 6 See note 2, supra. 7 Section 347(a) of the Act of 1940 is set out in full in note 20, infra. 8 The same is true of the requirements for expatriation under §§ 401(a) and (b) and 403(a) of the Nationality Act of 1940. See notes 1 and 2, supra. See also, Bauer v. Clark, 7 Cir., 161 F.2d 397; Reynolds v. Haskins, 10 Cir., 8 F.2d 473, 45 A.L.R. 759; United States ex rel. De Cicco v. Longo, D.C.Conn., 46 F.Supp. 170; United States ex rel. Wrona v. Karnuth, D.C.W.D.N.Y., 14 F.Supp. 770. 9 For full text, see note 1, supra. 10 The Santissima Trinidad, 7 Wheat. 283, 5 L.Ed. 454; Murray v. The Charming Betsy, 2 Cranch 64, 2 L.Ed. 64; Case of Isaac Williams, opinion of Ellsworth, C.J., see 2 Cranch 82—83, note; Talbot v. Jansen, 3 Dall. 133, 1 L.Ed. 540; Ex parte Griffin, D.C.N.D.N.Y., 237 F. 445; Comitis v. Parkerson, C.C.E.D.La., 56 F. 556, 22 L.R.A. 148; 14 Op.Atty.Gen. 295 (1872 1874); 8 Op.Atty.Gen. 139 (1856—1857). 11 'Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendents, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore, 'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.' 15 Stat. 223—224, R.S. § 1999, 8 U.S.C. § 800, 8 U.S.C.A. § 800. The above language, when enacted, was intended to apply especially to immigrants into the United States. It sought to emphasize the natural and inherent right of such people to expatriate themselves from their native nationalities. It sought also to secure for them full recognition of their newly acquired American citizenship. The language is also broad enough to cover, and does cover, the corresponding natural and inherent right of American citizens to expatriate themselves. 12 See Note 10, supra. 13 See note 1, supra. 14 See note 2, supra. 15 See note 8, supra. 16 The present statute requires an oath in the following form: 'I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I take this obligation freely without any mental reservation or purpose of evasion: So help me God. In acknowledgment whereof I have hereunto affixed my signature.' 54 Stat. 1157, 8 U.S.C. § 735(b), 8 U.S.C.A. § 735(b). 17 See 3 Hackworth, Digest of International Law §§ 243, 244 (1942). The Citizenship Board of 1906, appointed by the Secretary of State, proposed the expatriation provisions of the Act of 1907, and said in support of them: 'It is true that because of conflicting laws on the subject of citizenship in different countries a child may be born to a double allegiance; but no man should be permitted deliberately to place himself in a position where his services may be claimed by more than one government and his allegiance be due to more than one.' H.R. Doc. No. 326, 59th Cong., 2d Sess. 23 (1906—1907). Similarly, the legislative history of the Nationality Act of 1940 contains no intimation that subjective intent is material to the issue of expatriation. On the other hand, it makes it clear that the relevant provisions of the new Act are a restatement of those in § 2 of the Act of 1907, and of the historic policy of the United States. Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, superseded by H.R. 9980, 76th Cong., 1st Sess. 489, 408 (1940). In § 401 of the Act of 1940, Congress added a number of per se acts of expatriation. These included, among others, entering the armed forces of a foreign state, accepting office in a foreign state to which only nationals of such state were eligible, and voting in a political election of a foreign state. Lack of intent to abandon American citizenship certainly could not offset any of these. A fortiori a mature citizen who accepted naturalization into the full citizenship of a foreign state could not have been intended by Congress to have greater freedom to establish duality of citizenship. Congress found it necessary after World War I to enact special legislation to assist men to regain their American citizenship after they had expatriated themselves by taking a foreign oath of allegiance required to permit them to enlist in the armies of certain foreign nations. 40 Stat. 340, 542 et seq. See 55 Cong.Rec. 6935, 7665—7666 (1917); S.Rep. No. 388, 65th Cong., 2d Sess. 7—8 (1917—1918); H.R.Rep. No. 532, 65th Cong., 2d Sess. 3—4 (1917—1918); 56 Cong.Rec. 608—609, 6011—6012 (1917 1918). 18 '* * * the forsaking of American citizenship, even in a difficult situation, as a matter of expediency, with attempted excuse of such conduct later when crass material considerations suggest that course, is not duress.' Doreau v. Marshall, 3 Cir., 170 F.2d 721, 724; but see, in cases of real duress, Dos Reis v. Nicolls, 1 Cir., 161 F.2d 860; Schioler v. United States, D.C.N.D.Ill., 75 F.Supp. 353; In re Gogal, D.C.W.D.Pa., 75 F.Supp. 268. 19 See §§ 504, 601 of the Act of 1940, 54 Stat. 1172, 1174, 8 U.S.C. §§ 904, 906, 8 U.S.C.A. §§ 904, 906. 20 It is apparent that Congress did not intend to leave a gap in the statutory coverage of acts of expatriation. 'Sec. 347. (a) Nothing contained in * * * chapter V (including § 504 which expressly repealed § 2 of the Act of 1907) of this Act, unless otherwise provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization or of citizenship, or other document or proceeding which shall be valid at the time this Act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any act, thing, 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, acts things, or matters, the statutes or parts of statutes repealed by this Act, are hereby continued in force and effect.' 54 Stat. 1168, 8 U.S.C. § 747(a), 8 U.S.C.A. § 747(a). Section 504 also included the following clause: 'The repeal herein provided shall not terminate nationality heretofore lawfully acquired, nor restore nationality heretofore lost under any law of the United States or any treaty to which the United States may have been a party.' 54 Stat. 1174, 8 U.S.C. § 904, 8 U.S.C.A. § 904. 21 Section 403(a) of the Act of 1940 (see note 2, supra) may apply to antecedent naturalizations and oaths of allegiance, as well as to future ones. 'A statute is not made retroactive merely because it draws upon antecedent facts for its operation.' Cox v. Hart, 260 U.S. 427, 435, 43 S.Ct. 154, 157, 67 L.Ed. 332. See also, Reynolds v. United States, 292 U.S. 443, 54 S.Ct. 800, 78 L.Ed. 1353; United States v. Bradley, 7 Cir., 83 F.2d 483; United States ex rel. Rojak v. Marshall, D.C.W.D.Pa., 34 F.2d 219; 39 Op.Atty.Gen. 474 (1937—1940). 22 See Note 2, supra. 23 See note 10, supra. 24 Where 'permanent residence' was intended, the statute used that term. E.g., §§ 308 and 407 of the Act of 1940, 54 Stat. 1143, 1170, 8 U.S.C. §§ 708, 807, 8 U.S.C.A. §§ 708, 807. 25 Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, superseded by H.R. 9980, 76th Cong., 1st Sess. 417 (1940). 26 If the test is to be made under the saving clause quoted in note 20, supra, that may mean that the need and character of her residence are to be determined under the Act of 1907. Under the contention of the Department of Justice no residence abroad would be required. Under the practice of the Department of State some residence abroad would be required. 3 Hackworth, Digest of International Law §§ 242—250 (1942). But we believe that the provisions of §§ 403(a) and 104 of the Act of 1940 substantially reflect the requirements of that residence.

12

338 U.S. 457 70 S.Ct. 288 94 L.Ed. 256 UNITED STATESv.MOORMAN et al. No. 97. Argued Dec. 6, 1949. Decided Jan. 9, 1950. Mr. Morton Lixtin, Washington, D.C., for petitioner. Mr. V. J. Bodovitz, Oklahoma City, Okl., for respondents. Mr. Justice BLACK delivered the opinion of the Court. 1 The questions presented relate to the interpretation and validity of terms in a government construction contract providing that in contractual disputes the decisions of the Secretary of War or his authorized representative shall be final and binding. 2 The respondent partnership entered into a standard form contract with the United States to grade the site of a proposed aircraft assembly plant. Article 1 of the contract provided for payment of 24 cents per cubic yard of grading, satisfactorily completed 'in strict accordance with the specifications, schedules, and drawings, all of which are made a part hereof * * *.' A proposed taxiway was shown on the drawings but was not located within the plant site as described in the specifications. The present controversy concerns the question of whether the contract required respondent to grade this taxiway. 3 On demand of the Government, respondent graded for the taxiway at the point shown on the drawings. It then filed a claim with the contracting officer asking extra compensation, 84 cents per cubic yard instead of the 24 cents specified in the contract. Upon investigation the contracting officer made findings of fact which led him to reject respondent's claim. Appeal was taken to the Secretary of War, whose authorized representative also considered the facts and denied the claim. According to Par. 2 16(a) of the specifications, such a denial is 'final and binding upon the parties' when a contractor claims as here that work demanded is 'outside the requirements of the contract.'1 4 Notwithstanding the foregoing provision that the Secretary of War's decision is final and binding, respondent brought this action in the Court of Claims to recover the extra compensation. He there contended that his right to challenge such administrative findings was measured by Art. 15 of the contract not by Par. 2—16 of the specifications. Article 15 makes a department head's decision 'final and conclusive upon the parties' only when such disputes are over 'questions of fact.'2 Respondent, alleging that the dispute here was over the proper 'interpretation' of the contract, argues that how a contract shall be interpreted is not a 'question of fact' but a 'question of law.' Adding this premise to his assumption that Art. 15 alone governed finality of this administrative decision, respondent contended that the Court of Claims could reconsider the facts, make new findings as a basis for its 'interpretation,' and then overturn the administrative decision. The Court of Claims did all three. On the basis of its new findings and 'interpretation,' the court entered a money judgment for respondent computed at 59.3 cents per cubic yard for the taxiway grading. 82 F.Supp. 1010, 113 Ct.Cl. 159. 5 In petitioning for certiorari the Solicitor General represented that this decision plus previous ones of the Court of Claims had 'weakened and narrowed the effectiveness of the well-established policy of the Government to settle without expensive litigation, disputes arising under its contracts'; and that the total effect of the decisions was to 'add further doubt and confusion to the authority of designated officers of the United States to make final decisions under government contracts.'3 We granted certiorari. 338 U.S. 810, 70 S.Ct. 58. 6 First. Contractual provisions such as these have long been used by the Government. No congressional enactment condemns their creation or enforcement. As early as 1878 this Court emphatically authorized enforcement of contractual provisions vesting final power in a District Quartermaster to fix distances, not clearly defined in the contract, on which payment for transportation was based. Kihlberg v. United States, 97 U.S. 398, 24 L.Ed. 1106. Five years later Sweeney v. United States, 109 U.S. 618, 3 S.Ct. 344, 27 L.Ed. 1053, upheld a government contract providing that payment for construction of a wall should not be made until an Army officer or other agent designated by the United States had certified after inspection that 'it was in all respects as contracted for.' And in Martinsburg & Potomac R. Co. v. March, 114 U.S. 549, 5 S.Ct. 1035, 29 L.Ed. 255, this Court enforced a contract for railroad grading which broadly provided that the railroad's chief engineer should in all cases 'determine the quantity of the several kinds of work to be paid for under the contract, * * * decide every question which can or may arise relative to execution of the contract, and 'his estimate shall be final and conclusive". Id., 114 U.S. at pages 551—552, 5 S.Ct. at page 1036. In upholding the conclusions of the engineer the Court emphasized the duty of trial courts to recognize the right of parties to make and rely on such mutual agreements. Findings of such a contractually designated agent, even where employed by one of the parties, were held 'conclusive, unless impeached on the ground of fraud, or such gross mistake as necessarily implied bad faith.' Id., 114 U.S. 555, 5 S.Ct. 1038. 7 The holdings of the foregoing cases have never been departed from by this Court. They stand for the principle that parties competent to make contracts are also competent to make such agreements. The Court of Claims departed from this established principle in McShain, Inc., v. United States, 88 Ct.Cl. 284, where it refused to recognize as final the decision of a contracting officer, even though the Government and contractor had agreed that his decision should be final. The Court of Claims' holding was based on its conclusion that the contracting officer's decision had been reached by 'interpretation of the contract, drawing, and specifications,' and that parties were incompetent to make such decisions binding except as to questions of fact. Its holding was considered such a departure from established contract law that this Court summarily reversed in a per curiam opinion4 citing only two of the many prior cases on the subject. One of the cited cases had enforced a contract provision that 'the decision of the supervising architect as to the proper interpretation of the drawings and specifications shall be final.' Merrill-Ruckgaber Co. v. United States, 241 U.S. 387, 393, 36 S.Ct. 662, 665, 60 L.Ed. 1058. 8 Similar agreements have been held enforceable in almost every state. See cases collected in Note, 54 A.L.R. 1255 et seq. In one state, Indiana, the courts do seem to hold differently, on the ground that permitting engineers or other persons to make final determinations of contractual disputes would wrongfully deprive the parties of a right to have their controversies decided in courts. See cases collected in Note, 54 A.L.R. 1270—1271. In the McShain case we rejected a contention that this Court should adopt a rule like Indiana's and we reject it now. It is true that the intention of parties to submit their contractual disputes to final determination outside the courts should be made manifest by plain language. Mercantile Trust Co. v. Hensey, 205 U.S. 298, 309, 27 S.Ct. 535, 539, 51 L.Ed. 811, 10 Ann.Cas. 572. But this does not mean that hostility to such provisions can justify blindness to a plain intent of parties to adopt this method for settlement of their disputes. Nor should such an agreement of parties be frustrated by judicial 'interpretation' of contracts. If parties competent to decide for themselves are to be deprived of the privilege of making such anticipatory provisions for settlement of disputes, this deprivation should come from the legislative branch of government. 9 Second. We turn to the contract to determine whether the parties did show an intent to authorize final determinations by the Secretary of War or his representatives in this type of controversy. If the determination here is considered one of fact, Art. 15 of the contract clearly makes it binding. But while there is much to be said for the argument that the 'interpretation' here presents a question of fact, we need not consider that argument. For a conclusion that the question here is one of law cannot remove the controversy from the ambit of Par. 2—16 of the specifications. That section expressly covers all claims by a contractor who, like respondent here, 'considers any work demands of him to be outside the requirements of the contract * * *.' The parties incorporated it into the specifications and made the specifications part of the contract, all of which they had a legal right to do. The section is neither in conflict with nor limited by Art. 15, for the latter expressly excepts from its coverage such special methods of settlement 'otherwise specifically provided in this contract.' 10 The oft-repeated conclusion of the Court of Claims that questions of 'interpretation' are not questions of fact is ample reason why the parties to the contract should provide for final determination of such disputes by a method wholly separate from the fact-limited provisions of Art. 15. To hold that the parties did not so 'intend' would be a distortion of the interpretative process. The language of Par. 2—16 is clear. No ambiguities can be injected into it by supportable reasoning. It states in language as plain as draftsmen could use that findings of the Secretary of War in disputes of the type here involved shall be 'final and binding.' In reconsidering the questions decided by the designated agent of the parties, the Court of Claims was in error. Its judgment cannot stand. 11 Reversed. 12 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 'If the contractor considers any work demanded of him to be outside the requirements of the contract or if he considers any action or ruling of the contracting officer or of the inspectors to be unfair, the contractor shall without undue delay, upon such demand, action, or ruling, submit his protest thereto in writing to the contracting officer, stating clearly and in detail the basis of his objections. The contracting officer shall thereupon promptly investigate the complaint and furnish the contractor his decision, in writing, thereon. If the contractor is not satisfied with the decision of the contracting officer, he may, within thirty days, appeal in writing to the Secretary of War, whose decision or that of his duly authorized representative shall be final and binding upon the parties to the contract. * * *' Paragraph 2—16 of the specifications. 2 'Disputes.—Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed.' Article 15 of the contract. 3 These and other representations in the petition for certiorari in this case are substantially identical with representations made by the Solicitor General in asking this Court to review a former Court of Claims judgment reported in McShain, Inc., v. United States, 88 Ct.Cl. 284. The case there, it was urged, seemed to be the 'culmination of a recent tendency in the Court of Claims to whittle away the authority of designated officers of the United States to make final decisions under contracts.' It was insisted that 'At least, we submit, the power of the Government to make effective contracts of this character should not be so circumscribed except by decision of this Court.' We granted that petition and reversed the judgment without oral argument in a per curiam opinion. United States v. McShain, Inc., 308 U.S. 512, 60 S.Ct. 134, 84 L.Ed. 437. 4 United States v. McShain, Inc., 308 U.S. 512, 60 S.Ct. 134, 84 L.Ed. 437.

89

239 U.S. 635 70 S. Ct. 283 60 L. Ed. 479 ROBERT M. PURCELL et al., Plaintiffs in Error,v.QUAKER REALTY COMPANY, LIMITED. No. 152. Supreme Court of the United States January 10, 1916 Mr. E. Howard McCaleb for plaintiffs in error. Mr. William Winans Wall for defendants in error. Per Curiam: 1 Dismissed for want of jurisdiction upon the authority of (1) Castillo v. McConnico, 168 U. S. 674, 42 L. ed. 622, 18 Sup. Ct. Rep. 229; De Bearn v. Safe Deposit & T. Co. 233 U. S. 24, 34, 58 L. ed. 833, 837, 34 Sup. Ct. Rep. 584; McDonald v. Oregon R. & Nav. Co. 233 U. S. 665, 669, 670, 58 L. ed. 1145, 1148, 1149, 34 Sup. Ct. Rep. 772; (2) Ross v. Oregon, 227 U. S. 150, 161, 57 L. ed. 458, 463, 33 Sup. Ct. Rep. 220, Ann. Cas. 1914C, 224; Moore-Mansfield Constr. Co. v. Electrical Installation Co. 234 U. S. 619, 624, 58 L. ed. 1503, 1505, 34 Sup. Ct. Rep. 941; Willoughby v. Chicago, cago, 235 U. S. 45, 59 L. ed. 123, 35 Sup. Ct. Rep. 23; Cleveland & P. R. Co. v. Cleveland, 235 U. S. 50, 59 L. ed. 127, 35 Sup. Ct. Rep. 21.

1112

338 U.S. 464 70 S.Ct. 266 94 L.Ed. 268 FEDERAL POWER COMMISSIONv.EAST OHIO GAS CO. et al. No. 71. Argued Nov. 10, 1949. Decided Jan. 9, 1950. Rehearing Denied Feb. 20, 1950. See 339 U.S. 905, 70 S.Ct. 515. Mr. Bradford Ross, Washington, D.C., for petitioner. 1 Mr. William B. Cockley, Cleveland, Ohio, for respondent, East Ohio Gas Co. 2 Mr. Harry M. Miller, Columbus, Ohio, for respondents, State of Ohio and Public Utilities Commission of Ohio. 3 Mr. Walter R. McDonald, Washington, D.C., for Indiana Public Service Commission et al., as amici curiae, by Special leave of Court. 4 [Argument of Counsel from page 465 intentionally omitted] 5 Mr. Justice BLACK delivered the opinion of the Court. 6 Section 1(b) of the Natural Gas Act1 provides that the Act 'shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption * * * and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution * * *.' Section 2(6) defines 'natural-gas company' as 'a person engaged in the transportation of natural gas in interstate commerce * * *.' The Federal Power Commission, after hearings, found as facts that respondent East Ohio Gas Company was a natural-gas company and subject to the Commission's jurisdiction.2 On these and subsidiary findings the Company was ordered to keep accounts and submit reports as required by the Act.3 The Commission rejected the Company's contentions4 that its operations were not covered by the Act and that the expense of supplying the required information was so great as to transgress statutory and constitutional limits.5 The Court of Appeals for the District of Columbia, without reaching other contentions, reversed the Commission's orders on the ground that the Company was not 'engaged in the transportation of natural gas in interstate commerce within the meaning of the Act'.6 Importance of the questions to administration of the Act prompted us to grant certiorari. 337 U.S. 937, 69 S.Ct. 1516, 93 L.Ed. 1742. I. 7 East Ohio owns and operates a natural-gas business solely in Ohio, selling gas to more than half a million Ohio consumers through local distribution systems. Most of this natural gas is transported into Ohio from Kansas, Texas, Oklahoma, and West Virginia through pipe lines of Panhandle Eastern Pipe Line Company and of Hope Natural Gas Company, an affiliate of East Ohio. Inside the Ohio boundary these interstate lines connect with East Ohio's large high-pressure lines in which the imported gas, propelled mainly by its own pressure, flows continuously more than 100 miles to East Ohio's local distribution systems. The combined length of these high-pressure trunk lines is at least 650 miles. 8 That this continuous flow of gas from other states to and through East Ohio's high-pressure lines constitutes interstate transportation has been established by numerous previous decisions of this Court. The gas does not cease its interstate journey the instant it crosses the Ohio boundary or enters East Ohio's pipes, even though that Company operates completely within the state where the gas is finally consumed. Respondents do not and cannot claim that their gas is not in interstate commerce.7 As we held in Interstate Natural Gas Co. v. Federal Power Comm., 331 U.S. 682, 688, 67 S.Ct. 1482, 1486, 91 L.Ed. 1742, the meaning of 'interstate commerce' in this Act is no more restricted than that which theretofore had been given to it in the opinions of this Court. 9 Respondents contend, however, that the word 'transportation' in § 1(b) must be construed as applying only to companies engaged in the business of transporting gas in interstate commerce for hire or for sales to be followed by resales, whereas East Ohio does neither. The short answer is that the Act's language did not express any such limitation. Despite the unqualified language of § 1(b) making the Act apply to 'transportation of natural gas in interstate commerce,' respondents ask us to qualify that language by applying it only to businesses which both transport and sell natural gas for resale. They rely on a sentence in the declaration of policy, § 1(a), referring to 'the business of transporting and selling natural gas'. But their contention that the word 'and' in the policy provision creates an unseverable bond is completely refuted by the clearly disjunctive phrasing of § 1(b) itself. As we pointed out in Panhandle Eastern Pipe Line Co. v. Public Service Comm., 332 U.S. 507, 516, 68 S.Ct. 190, 195, 92 L.Ed. 128, § 1(b) made the Natural Gas Act applicable to three separate things: '(1) the transportation of natural gas in interstate commerce; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged in such transportation or sale.' And throughout the Act 'transportation' and 'sale' are viewed as separate subjects of regulation. They have independent and equally important places in the Act. Thus, to adopt respondents' construction would unduly restrict the Commission's power to carry out one of the major policies of the Act. Moreover, the initial interest of Congress in regulation of transportation facilities was reemphasized in 1942 by passage of an amendment to § 7(c) of the Act broadening the Commission's powers over the construction or extension of pipe lines. 56 Stat. 83. This amendment followed a report of the Commission to Congress pointing out that without amendment the Act vested the Commission with inadequate power to make 'any serious effort to control the unplanned construction of natural-gas pipe lines with a view to conserving one of the country's valuable but exhaustible energy resources.'8 We hold that the word 'transportation' like the phrase 'interstate commerce' aptly describes the movements of gas in East Ohio's High-pressure pipe lines.9 10 Respondents also contend that East Ohio is exempt from the Act because all its facilities come within the proviso in § 1(b) making the Act inapplicable 'to the local distribution of natural gas or to the facilities used for such distribution'. But what Congress must have meant by facilities' for 'local distribution' was equipment for distributing gas among consumers within a particular local community, not the high-pressure pipe lines transporting the gas to the local mains. For in decisions prior to enactment of the statute this Court had sharply distinguished between the two: it had made it clear that the national commerce power alone covered the high-pressure trunk lines to the point where pressure was reduced and the gas entered local mains, while the state alone could regulate the gas after it entered those mains.10 The legislative history shows that the attention of Congress was directly focused on the cases drawing this distinction. It was because these cases had barred federal regulation of community supply systems that the Committee Report could correctly describe the 'local distribution' proviso as surplusage which was 'not actually necessary.'11 We are wholly unpersuaded that Congress intended to treat trunk lines like East Ohio's as though they were mere integrated facilities of the numerous community supply systems which they service. Indeed, as respondents admitted upon oral argument here, the logical consequence of such a principle would be that even a pipe line stretching from Texas to Cleveland would be completely exempt from the federal Commission's jurisdiction if it were owned by East Ohio. To draw such a strained inference from the congressional exemption of local distribution systems would ignore the importance of nationally controlling interstate pipe lines in order to preserve 'equality of opportunity and treatment among the various communities and states concerned.' State of Missouri v. Kansas Natural Gas Co., 265 U.S. 298, 310, 44 S.Ct. 544, 546, 68 L.Ed. 1027. 11 What we have said indicates that East Ohio comes squarely within the coverage of the Act as set out in §§ 1(b) and 2(6). Nevertheless respondents contend that this express coverage is restricted by the broad purpose of the Act to provide federal regulation only for those companies which states could not regulate. Urging that all of East Ohio's business is fully subject to regulation by the state, they rely on statements by this Court that Congress intended not to cut down state regulatory power, but rather to supplement it by closing 'the gap created by the prior decisions.' Panhandle Eastern Pipe Line Co. v. Public Service Comm., 332 U.S. 507, 517—519, 68 S.Ct. 190, 195—196, 92 L.Ed. 128; see also Public Utilities Comm. of Ohio v. United Fuel Gas Co., 317 U.S. 456, 467, 63 S.Ct. 369, 375, 87 L.Ed. 396. We adhere to those statements. But prior constitutional decisions, not what we have since decided or would decide today, form the measure of the gap which Congress intended to close by this Act. Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 508, 62 S.Ct. 384, 388, 86 L.Ed. 371; and see Parker v. Motor Boat Sales, 314 U.S. 244, 250, 62 S.Ct. 221, 225, 86 L.Ed. 184. 12 In a series of cases repeatedly called to the attention of the House Committee,12 this Court had declared that states could regulate interstate gas only after it was reduced in pressure and entered a local distribution system. Public Utilities Comm. v. Landon, 249 U.S. 236, 243, 39 S.Ct. 268, 63 L.Ed. 577; State of Missouri v. Kansas Natural Gas Co., 265 U.S. 298, 310, 44 S.Ct. 544, 546, 68 L.Ed. 1027; Poublic Utilities Comm. v. Attleboro Steam & Electric Co., 273 U.S. 83, 89, 47 S.Ct. 294, 496, 71 L.Ed. 549; and see East Ohio Gas Co. v. Tax Comm., 283 U.S. 465, 470 472, 51 S.Ct. 499, 500—501, 75 L.Ed. 1171.13 Under these decisions state regulatory power could not reach high-pressure trunk lines and sales for resale. This was the 'gap' which Congress intended to close. It therefore acted under the federal commerce power to regulate what these decisions had indicated that the states could not. We have already held that in so doing Congress subjected to federal regulation a company transporting interstate gas, and selling it for resale, wholly within one state. Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 62 S.Ct. 384, 86 L.Ed. 371.14 The only respect in which East Ohio differs from that company is that it sells gas direct to consumers rather than for resale. This difference is immaterial. For as we have already pointed out, East Ohio comes directly within the express provision granting power to the Commission to regulate 'transportation of natural gas in interstate commerce,' just as the Illinois company came directly within the express provision covering sale for resale. And in the light of the Illinois Gas decision we cannot see how the 'local distribution' proviso can be construed as encompassing all of East Ohio's operations throughout the state. That proviso cannot mean one thing for "transportation' and another where 'sale for resale' is involved. 13 Here as elsewhere, once a company is properly found to be a 'natural gas company,' no state can interfere with federal regulation. That a state commission might also have some regulatory power would not preclude exercise of the Commission's function. Connecticut Light & Power Co. v. Federal Power Comm., 324 U.S. 515, 533, 65 S.Ct. 749, 757, 89 L.Ed. 1150; Public Utilities Comm. v. Attleboro Steam & Electric Co., 273 U.S. 83, 89—90, 47 S.Ct. 294, 296, 71 L.Ed. 549. Nor does the Act purport to abolish all overlapping. Section 5(b), for example, provides that the Commission may 'investigate and determine the cost of the production or transportation of natural gas by a natural-gas company in cases where the Commission has no authority to establish a rate governing the transportation or sale of such natural gas.' 52 Stat. 824. Yet clearly the state agency establishing such a rate would have equivalent authority. 14 We find no language in the Act indicating that Congress meant to create an exception for every company transporting interstate gas in only one state. Regardless of whether it might have been wiser and more farseeing statesmanship for Congress to have made such an exception, we should not do so through the interpretative process. There is nothing in the legislative history which authorizes us to interpret away the plain congressional mandate. II. 15 A contention not passed on by the Court of Appeals but urged here by respondents, is that compliance with the Commission's accounting and report orders would impose so great a burden on East Ohio 'as to make such orders transgress statutory and constitutional limits.' Our attention is not specifically referred to anything in the record showing that the Commission has required East Ohio to adopt any particular accounting method or make any particular report not reasonably related to the Commission's granted powers in this respect.15 Nor did the Commission fail to make proper findings to support its order. All of the Commission requirements affirmatively appear to call for the precise kind of accounting system, information, and reports that Congress deemed relevant and necessary for the Commission to have in performing its regulatory duties. The principles of law governing such requirements were adequately set out by Mr. Justice Cardozo speaking for the Court in American Telephone & Telegraph Co. v. United States, 299 U.S. 232, 57 S.Ct. 170, 81 L.Ed. 142. See also Northwestern Electric Co. v. Federal Power Comm., 321 U.S. 119, 64 S.Ct. 451, 88 L.Ed. 596. Measured by these criteria for judicial review of such orders, we find no reason to reject the Commission's findings that the orders here issued were necessary and proper as applied to East Ohio. And as to the cost of compliance, it is sufficient to say as the Court said in the American Telephone & Telegraph case, supra, 299 U.S. at page 247, 57 S.Ct. at page 177, 81 L.Ed. 142: 'The evidence does not show that the expense * * * will lay so heavy a burden upon the companies as to overpass the bounds of reason.'16 16 The contention that the Commission's order violates the reserved rights of the states under the Tenth Amendment is foreclosed by the Court's holding in Northwestern Electric Co. v. Federal Power Comm., supra, 321 U.S. at page 125, 64 S.Ct. at page 454, 88 L.Ed. 596. Section 8(a) of the National Gas Act itself provides that 'nothing in this act shall relieve any such natural-gas company from keeping any accounts, memoranda, or records which such natural-gas company may be required to keep by or under authority of the laws of any State.' 17 The Commission's order is valid and should be enforced. 18 Reversed. 19 Mr. Justice DOUGLAS and Mr. Justice BURTON took no part in the consideration or decision of this case. 20 Mr. Justice JACKSON, whom Mr. Justice FRANKFURTER joins, dissenting. 21 If this were a case of applying an explicit policy of Congress to one recalcitrant gas company, there would of course be no dissent. But if it were such, we would not be likely to find the State of Ohio and her Utility Commission, the National Association of Railroad and Utility Commissioners, and public authorities of several states, including some with notable records for protecting the public interest, here helping the utility. This alliance of state authorities against the Federal Power Commission suggests that there must be more to this case than meets the eye. 22 The key to an understanding of the Federal Natural Gas Act is its purpose to supplement but not to supplant state regulation. Before passage of the Act, each state was able to regulate the ultimate price of natural gas distributed to its consumers. Pennsylvania Gas Co. v. Public Service Comm., 252 U.S. 23, 40 S.Ct. 279, 64 L.Ed. 434. This Court has never denied any state that power. But in doing so they were obliged to allow as operating costs what the distributing company paid for the gas when brought into its system from out of the state. This purchase price the state could not regulate, often not even investigate, and the purchases frequently were from affiliates, a fact which might cool the local company's normal zeal to drive a good bargain for itself and its consumers. Hence, the states appealed to Congress to set up machinery to fix the import price of out-of-state gas. This was all that the states asked the Federal Government to do, and it is everything that the Federal Power Commission revealed any purpose to do while the legislation was pending. Its Solicitor summarized the purposes before a subcommittee of the House Committee on Interstate and Foreign Commerce, as follows: 'The whole purpose of this bill is to bring under Federal regulation the pipe lines and to leave to the State commissions control of distributing companies and over their rates, whether that gas moves in interstate commerce or not.' Hearings Before a Sub-committee of the House Committee on Interstate and Foreign Commerce on H.R. 11662, 74th Cong., 2d Sess. 24. That is what the state authorities active in promoting the legislation seem to have believed had been accomplished. 23 East Ohio is an all-Ohio company, deriving income solely from distributing gas directly to Ohio consumers. It sells no gas for resale. All of its assets are located and all of its business is transacted in Ohio. Since 1911, the Ohio State Commission has exercised regulatory powers over it which have included rate-making, authorizing acquisition of sale of property, approval of capitalization and security issues, complete control of accounting practices and requiring detailed periodic reports. Except for inability to fix the price at which gas should be delivered to the company at the state line, Ohio is able to supervise and regulate this utility completely and continuously. 24 The Federal Power Commission, as authorized by the Act, fixed the state-line price that East Ohio must pay for its out-of-state supplies. But now it seeks to go beyond this and superimpose some features of its regulation which conflict with the regulation of the identical subject matter by the State of Ohio. How much farther than the order here under review the Commission will go in supplanting or duplicating state regulation is not clear from its argument, and how far it can go is rendered unclear by the Court's opinion which expressly approves some overlapping but leaves its bounds in carefully stated doubt. The anxiety which this program stirs among other states is explained by its magnitude. The Power Commission in its petition here notes forty-three pending cases in which it takes this same position vis-a-vis state regulation. 25 It appears that the present particular issue arises because the Commission has theories of accounting different from those the state has seen fit to accept. The Federal Commission has ordered East Ohio to change its entire accounting system for all of its properties at a very heavy cost. This requires it either to conduct its accounting contrary to laws of Ohio and the orders of the State Commission or perhaps to keep two sets of books. This is a real conflict in which experience shows state control will wither away and leave the federal rule in possession of the field. 26 This Court can sustain such overlapping and overriding of the state's authority only by repudiating its own recent statements. After reviewing the history of the Natural Gas Act, we have said that 'Congress meant to create a comprehensive scheme of regulation which would be complementary in its operation to that of the states, without any confusion of functions.' Public Utilities Comm. v. United Fuel Gas Co., 317 U.S. 456, 467, 63 S.Ct. 369, 375, 87 L.Ed. 396. In a later case, quoting H.R.Rep.No. 709, 75th Cong., 1st Sess., we said that '(T)he bill was designed to take 'no authority from State commissions' and was 'so drawn as to complement and in no manner usurp State regulatory authority." Federal Power Comm. v. Hope Natural Gas Co., 320 U.S. 591, 610, 64 S.Ct. 281, 291, 88 L.Ed. 333. Quoting the same House Report, we thereafter pointed out that '(T)he 'basic purpose' of Congress in passing the Natural Gas Act was 'to occupy this field in which the Supreme Court has held that the States may not act." Interstate Natural Gas Co. v. Federal Power Comm., 331 U.S. 682, 690, 67 S.Ct. 1482, 1487, 91 L.Ed. 1742. And only last year we observed that, 'The Natural Gas Act was designed to supplement state power and to produce a harmonious and comprehensive regulation of the industry. Neither state nor federal regulatory body was to encroach upon the jurisdiction of the other.' Federal Power Comm. v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 513, 69 S.Ct. 1251, 1260. 27 What defines the point beyond which the provisions of the Act shall not apply? The Court suggests that there is an inherent limitation on the affirmative grant of power which would render surplusage the clause in § 1(b) denying application of the Act to 'the local distribution of natural gas or to the facilities used for such distribution'. Or it may be this exclusionary clause itself. At any rate, the Court finds the dividing line of jurisdiction to be drawn by physical characteristics of the transmission lines. It seizes upon the point where the high pressure at which gas is transmitted any sub-stantial distance is reduced to the low pressure at which it must be served to customers' burners through the community supply lines as the outer limit of the 'local' area reserved to the states. 28 Recognizing the purpose of the Federal Natural Gas Act of June 21, 1938, to regulate only that which was unregulated and unregulatable by the states, the Court assumes that decisions prior to its passage, 'not what we have since decided or would decide today,' fix the states' power for the purposes of measuring that of the Commission. The Court has heretofore followed the principle that Congress does not intend to freeze the impact of its legislation within current judicial decisions in the absence of evidence which makes such intention unmistakable. United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440. But today it makes no effort to look for evidence of such an intention and had it searched it would not have found it. Cf. Helvering v. Griffiths, 318 U.S. 371, 63 S.Ct. 636, 87 L.Ed. 843; Parker v. Motor Boat Sales, 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184. 29 Today's anomalous result whereby the Commission is given regulatory power over the intrastate distribution facilities of a gas company over whose sales it admittedly has no jurisdiction is based upon the premise that paramount in Congress' mind in dealing with cases prior to passage of the Act, was, not the holdings of applicable cases relating to regulation, but the peculiarly mechanistic formula employed principally in 1931 in East Ohio Gas Co. v. Tax Comm., 283 U.S. 465, 51 S.Ct. 499, 75 L.Ed. 1171,1 as a means of holding that the State of Ohio could levy an excise tax based on the entire gross receipts from sales to local consumers by an interstate gas company. 30 I find no convincing indication, either in the language of the Act or in its legislative history, that Congress intended that we should be forever bound, in construing this legislation, either by the then current decisions as to limitations of the Commerce Clause on state power, cf. United States v. South-Eastern Underwriters Ass'n, supra, or by the then current criteria of what separated local from nonlocal facilities. The crucial question is not whether this Court in 1931 would have held a given factual situation without the area of local distribution and beyond the reach of state regulation, but whether this Court today can say that the federal power can be exerted because the state power cannot be exerted. So long as we pay even lip service to Congress' intention to leave to the states that which they can regulate, we cannot satisfactorily beg this question. 31 But even if the Court is to shift to the doctrine that Congress casts its Acts forever in the mold made by prior decisions of this Court, the pressure-reduction station now relied upon to limit 'local' had lost its standing even in tax cases and never was accepted in regulation cases. If Congress was interested in tax case criteria when it passed the Natural Gas Act, it must have known of this Court's disdainful disregard of pressure changes in favor of emphasis on the difference between wholesale and retail distribution less than half a year after the East Ohio tax decision. State Tax Comm. v. Interstate Natural Gas Co., 284 U.S. 41, 52 S.Ct. 62, 76 L.Ed. 156.2 32 And yet, although the Committee Reports and the records of congressional debates on the Natural Gas Act may be scanned in vain for any mention of this pressure-reduction point, we are now asked to believe that Congress fixed it as the point where state control should end and federal control should begin. with this approach, today's decision confines the states' regulatory power to the service area, bounded by the low-pressure transmission system, which means practically within the city gates. By its emphasis on this pressure change the Court finds a plain congressional grant of Commission jurisdiction over high-pressure pipe lines such as those of East Ohio. However, this pressure factor is one which we found immaterial in Interstate Natural Gas Co. v. Federal Power Comm., supra, 331 U.S. at page 689, 67 S.Ct. at page 1486, 91 L.Ed. 1742, where, with rare unanimity, we put our emphasis upon the fact of sale for resale in interstate commerce. But today it is the difference between retail and wholesale operations which is termed immaterial, so long as the factor of high-pressure pipe lines is present. 33 This shift in emphasis rests upon inferences drawn from the legislative history of the Natural Gas Act which are wholly inconsistent with those drawn in our prior decisions examining the subject. Heretofore we have been careful consistently to observe that Congress did not attempt to occupy the entire field within the limits of its constitutional power, and until today we have insisted that in extending federal regulation Congress 'was meticulous to take in only territory which this Court had held the states could not reach.' Panhandle Eastern Pipe Line Co. v. Comm., 332 U.S. 507, 519, 68 S.Ct. 190, 196, 92 L.Ed. 128. We said only two years ago in that case that '(B)y 1938 the Court had delineated broadly between the area of permissible state control and that in which the states could not intrude. The former included interstate direct sales to local consumers, as exemplified in Pennsylvania Gas Co. v. Public Service Comm., 252 U.S. 23, 40 S.Ct. 279, 64 L.Ed. 434; the latter, service interstate to local distributing companies for resale, as held in State of Missouri v. Kansas Natural Gas Co., 265 U.S. 298, 44 S.Ct. 544, 68 L.Ed. 1027, reinforced by Public Utilities Comm. v. Attleboro Steam & Electric Co., 273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549.' And we went on to say that the purpose of the legislation was to make state regulation effective 'by adding the weight of federal regulation to supplement and reinforce it in the gap created by the prior decisions.' Id., 332 U.S. at pages 514, 517, 68 S.Ct. at page 195. And see Interstate Natural Gas Co. v. Federal Power Comm., 331 U.S. 682, 689, 67 S.Ct. 1482, 1486. 91 L.Ed. 1742; also, Federal Power Comm. v. Hope Natural Gas Co., 320 U.S. 591, 609, 64 S.Ct. 281, 291, 88 L.Ed. 333, quoting from Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 506, 62 S.Ct. 384, 387, 86 L.Ed. 371. We could hardly have said more clearly that the 'gap' was in the wholesale realm of the natural-gas industry in interstate commerce. 34 The Court's opinion professes to adhere to these statements relating to the gap Congress intended to close. But it first widens the gap, squarely upon the premise that, under decisions of this Court called to Congress' attention prior to passage of the Act, the state regulatory power could not reach transmission lines for interstate gas outside the point of reduction in pressure. Actually, no decision could have been called to the attention of Congress, and none is or can be cited today, in which this Court held that any of the intrastate transmission lines of any retail gas, electric or similar company, within or without the pressure-reduction point, were beyond the state regulatory authority. Nor was this question even at issue in any case cited by the Court in support of its premise. That is not to say that the question was not considered, however. Quite to the contrary, less than two months before passage of the Natural Gas Act, this Court, through the pen of Mr. Chief Justice Hughes, in a case not cited by the Court, declared that such transmission lines were properly within the sphere of state ratemaking powers. Lone Star Gas Co. v. Texas, 304 U.S. 224, 551, 58 S.Ct. 883, 82 L.Ed. 1304.3 And so if Congress were consulting the decisions of this Court to define the gap in state power, which it must fill with the Commission's function, it found the latest, and all but unanimous one, to declare that no gap such as the Court perceives today was then existent. 35 Although the scope of the Natural Gas Act was not limited to sales of natural gas in interstate commerce for resale, it must be recognized that, if any one thing is clear from the legislative history of this Act, it is that Congress' paramount concern was to establish regulation of such prices.4 And it must likewise be recognized that, whatever of our old doctrines may have been frozen into the Act, could not include the point of pressure reduction and entrance into municipal lines as the measure of state regulatory authority, for no such doctrine can be found in our cases. 36 Thus it is apparent that in selecting the point to mark either the inherent limitation in the Act's affirmative grant of power to the Commission, or the corollary limit imposed by the clause excluding facilities used in local distribution, the Court has resorted to criteria neither supportable by this Court's decisions prior to the Act nor even claimed to be consistent with its most recent doctrines. 37 But if the pressure-reduction point cannot be resurrected from the East Ohio tax case to bound the facilities used in the local distribution of natural gas in interstate commerce, what criteria can we employ? It is not as though a simple, unsophisticated answer were not available. It seems to me that the obvious answer is that intrastate transmission lines of a retail gas company, devoted exclusively to serving communities within the state are facilities used in the local distribution of natural gas and are accordingly excepted from application of the Act. For it must not be forgotten that if justification for today's decision cannot be found in § 1(b) of the Act, it cannot be established by resort to the language of those sections defining the Commission's powers. For § 1(b) is jurisdictional. It sets forth the areas to which the provisions of the Act shall and shall not apply. Its 'but' clause was Congress' assurance to the state bodies sponsoring the legislation that federal control would not extend to the area within their authority. Cf. Connecticut Light & Power Co. v. Federal Power Comm., 324 U.S. 515, 527, 65 S.Ct. 749, 755, 89 L.Ed. 1150. 38 This simple solution squares not only with modern standards, but also with the approach, if it is to be adopted, that Congress in passing this Act froze into law current judicial decisions. It keeps faith with the states. It is decidedly consistent with our recent declaration under the almost identical words of a similar Act that limitation of local facilities was not to be found in the East Ohio tax formula, and that even the transmission lines of a statewide system supplying electric power to consumers in over a hundred communities are 'facilities used in local distribution.' Connecticut Light & Power Co. v. Federal Power Comm., supra. 39 Of course, this solution does not render meaningless the 'transportation of natural gas in interstate commerce' to which the provisions of the Act apply. For instance it would logically enough give to the Federal Power Commission, under the above 'transportation clause,' exclusive jurisdiction over the main transmission lines of a retail gas company which ran through Ohio and on into New York; but it would leave to Ohio exclusive jurisdiction over lateral lines branching out from the main trunk in Ohio and, whether one or one hundred miles long, devoted exclusively to delivering gas to the burner tips in Ohio communities. Similarly, under the hypothesis constructed in the Court's opinion, wherein East Ohio is pictured as having its own transmission lines extending all the way from Texas, it would give exclusively to the Power Commission jurisdiction over those lines beyond the Ohio border as well as over those within or without the state not devoted exclusively to serving Ohio consumers at retail. Again, it would, quite obviously within the words of the Act, give exclusively to the Power Commission jurisdiction over companies which might act in the nature of common carriers transporting gas in interstate commerce for hire. In short it would give to the transportation clause a meaning which, contrary to today's opinion, does not render surplusage the 'sale in interstate commerce of natural gas for resale' to which the provisions also apply.5 40 What the Power Commission asks the Court to do today is not to fill a gap in the state's power to regulate, for there is none, but to create a gap in order to make room for federal power. 41 I can well understand the zeal of the Federal Power Commission to expand its control over the natural gas industry. It sprawls over many states and each system must be physically integrated from the depths of the wells to the consumer's burner tips. Its regulation cannot be uniform if the Federal Commission controls only a middle segment, with production on one end and distribution on the other committed to the control of different states. But that was as far as Congress was willing to supersede state authority. It left the peculiar problems affecting production to the producing states, it left the ultimate protection of consumers to the consuming states, and it left the Federal Power Commission in the middle to fix the rates for gas moving between the two. This obviously subdivides regulation of what has to operate as a unitary enterprise, but that is often the consequence of our federal system. Whatever we may think would be wise policy in this field, the Act which Congress passed places limitations upon the Power Commission, which may chafe but which neither we nor the Commission are free to override. If the Commission had foreshadowed its present course, I do not suppose the Act would have passed, for it certainly would have evoked resistance of the state regulatory agencies instead of their support. 42 Congress may well have believed that diversity of experimentation in the field of regulation has values which centralization and uniformity destroy. As Mr. Justice Brandeis said, 'It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.' New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747. Long before the Federal Government could be stirred to regulate utilities, courageous states took the initiative and almost the whole body of utility practice has resulted from their experiences. 43 We must not forget that regulatory measures are temporary expedients, not eternal verities—if indeed they are verities at all. Certainly one of the matters on which the states might well be indulged—the right to an opinion of their own—is as to the accounting methods of a utility whose whole property and business being accounted for is within the state. Out of their diversity of practice and experience emerge pragmatic tests. What the Federal Power Commission seeks to require of this Ohio gas company, for example, is to revert by accounting methods to emphasis on original cost, a basis which William Jennings Bryan for an earlier generation of progressives eloquently urged this Court to reject in the field of railroad rate-making. Smyth v. Ames, 169 U.S. 466, 18 S.Ct. 418, 42 L.Ed. 819. See Mr. Bryan's argument, 169 U.S. at page 489. That is a basis of which, last month, we said in another connection, 'Original cost is well termed the 'false standard of the past' where, as here, present market value in no way reflects that cost.' United States v. Toronto, Hamilton & Buffalo Navigation Co., 338 U.S. 396, 403, 70 S.Ct. 217, 221. It must be remembered that closer than any federal agency to those they regulate and to their customers are the state authorities, whose mechanisms are less cumbersome and whose principles can much more quickly be adjusted to the changing times. 44 We should not utilize the centralizing powers of the federal judiciary to destroy diversities between states which Congress has been scrupulous to protect. If now and then some state does not regulate its utilities according to the federal standard, it may be a small price to pay for preserving the state initiative which gave us utilities regulation far in advance of federal initiative. 45 I think that observance of good faith with the states requires that we interpret this Act as it was represented at the time they urged its enactment, as its terms read, and as we have, until today, declared it, viz. to supplement but not to supplant state regulation. What amounts to an entrapment of the state agencies that supported this Act under the representation that it would not deprive them of powers but would only make their powers effective will probably not make it easier to get needed regulatory legislation in the future. 1 52 Stat. 821, as amended by 56 Stat. 83, 15 U.S.C. § 717 et seq., 15 U.S.C.A. § 717 et seq. 2 The Commission instituted the proceedings on its own motion and on complaint of the City of Cleveland, Ohio. Later other Ohio cities filed similar complaints. See 1 F.P.C. 586; 4 F.P.C. 15; 4 F.P.C. 497. 3 See note 15, infra. 4 The Public Utilities Commission of Ohio, an intervenor, made substantially the same contentions. 5 74 P.U.R.,N.S., 256. Related orders and discussions appear in 4 F.P.C. 15, 497, 638, 28 P.U.R.,N.S., 129; East Ohio Gas Co. v. Federal Power Comm., 6 Cir., 115 F.2d 385. 6 84 U.S.App.D.C. 312, 316, 173 F.2d 429, 433. 7 See, e.g., Colorado-Wyoming Gas Co. v. Federal Power Commission, 324 U.S. 626, 65 S.Ct. 850, 89 L.Ed. 1235; Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 503—504, 62 S.Ct. 384, 385—386, 86 L.Ed. 371. See also East Ohio Gas Co. v. Tax Commission, 283 U.S. 465, 470, 51 S.Ct. 499, 500, 75 L.Ed. 1171; The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999. 8 Federal Power Commission, Twentieth Annual Report (1940), p. 78. See Wheat, Administration by the Federal Power Commission of the Certificate Provisions of the Natural Gas Act, 14 Geo.Wash.L.Rev. 194, 197. 9 In the Pipe Line cases (United States v. Ohio Oil Co.) 234 U.S. 548, 562, 34 S.Ct. 956, 959, 58 L.Ed. 1459, this Court held that the Uncle Sam Oil Company was not engaged in 'transportation' of oil, within the statutory meaning of that word in the Interstate Commerce Act, where it was 'simply drawing oil from its own wells across a state line to its own refinery, for its own use, and that is all * * *.' This holding as to the meaning of transportation in the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., has slight force, if any, in determination of the word's meaning under this different and far more comprehensive Act. Furthermore, East Ohio is not merely moving gas for processing in its own plants. It buys and transports it for sale; there is no further processing of any kind, except for eventual reduction of pressure. This puts East Ohio's transportation more nearly in the category of that which we held to bring oil transportation within the coverage of the Interstate Commerce Act. Valvoline Oil Co. v. United States, 308 U.S. 141, 145, 60 S.Ct. 160, 162, 84 L.Ed. 151; Champlin Refining Co. v. United States, 329 U.S. 29, 67 S.Ct. 1, 91 L.Ed. 22. In the latter case transported oil was to be sold in interstate commerce, while here the sale was to be made in intrastate commerce. This difference, however, is no persuasive reason why the special holding in the Uncle Sam case should be expanded to control our holding here. 10 In both Public Utilities Comm. v. Landon, 249 U.S. 236, 245, 39 S.Ct. 268, 269, 63 L.Ed. 577, and Pennsylvania Gas Co. v. Public Service Comm., 252 U.S. 23, 28, 40 S.Ct. 279, 280, 64 L.Ed. 434, this Court held that states could regulate retail sales of interstate gas to local consumers. In the Landon case the Court reasoned that state control of a local distributing company was permissible because 'interstate movement ended when the gas passed into local mains.' (249 U.S. 236, 39 S.Ct. 270.) The Pennsylvania Gas decision, however, was based on a completely different line of reasoning. The Court held that the gas continued in interstate commerce until it reached the burner tips, but nevertheless permitted state regulation because retail sales presented a problem of local rather than national concern. In State of Missouri v. Kansas Natural Gas Co., 265 U.S. 298, 310, 44 S.Ct. 544, 546, 68 L.Ed. 1027, the Court resolved these conflicting doctrines by readopting the Landon rule. It limited the Pennsylvania Gas holding to its precise facts by interpreting that decision as resting solely on the Landon principle that states could regulate charges for service to local consumers. Public Utilities Comm. v. Attleboro Steam & Electric Co., 273 U.S. 83, 89, 47 S.Ct. 294, 296, 71 L.Ed. 549, reaffirmed this choice of doctrine, applying it to a company which like East Ohio, transmitted its product (electricity) wholly within one state. In East Ohio Gas Co. v. Tax Comm., 283 U.S. 465, 470—472, 51 S.Ct. 499, 500—501, 75 L.Ed. 1171, the Court recognized that the doctrine of Pennsylvania Gas extending interstate commerce to the burner tips was in conflict with and must yield to the doctrine of the Landon and Kansas Gas cases. See note 13 infra. Thus when the Natural Gas Act was passed this Court's decisions had already resulted in a sharp cleavage between local distribution facilities and high-pressure pipe lines serving those facilities. 11 The Report stated that the proviso was 'not actually necessary, as the matters specified therein could not be said fairly to be covered by the language affirmatively stating the jurisdiction of the Commission.' H.R.Rep. No. 709, 75th Cong., 1st Sess., pp. 3—4. This could only mean that the phrase 'interstate commerce' was construed by the Committee, as it had been by this Court, to exclude 'local distribution.' 12 The record of the Committee hearings considering the proposed bill is crowded with repeated references to the cases discussed in note 10 supra; no other cases received such emphasis. The General Solicitor for the National Association of Railroad and Utilities Commissioners, for example, explained that the East Ohio case 'established very clearly that a State has jurisdiction to regulate the business of distributing gas after it has been imported, and the pressure has been stepped down to permit of local distribution. It, however, leaves the State authorities still subject to the rule announced in the Kansas case. * * *' Hearings before the House Subcommittee of the Committee on Interstate and Foreign Commerce, 74th Cong., 2d Sess., 88. The Solicitor of the Federal Power Commission pointed out in his brief to the same committee that 'The States cannot control the wholesale rates extracted for natural gas thus transported, nor may they regulate any other of the phases of interstate transportation.' Id., 16. Amendments which would have specifically exempted from federal regulation all companies operating wholly within one state were proposed but rejected. 13 See note 10 supra. The East Ohio case cited above concerned the question of whether the company was subject to state taxes. The tax doctrines involved are irrelevant here. Undeniably relevant, however, is the fact that Congress directly considered the doctrine of interstate commerce enunciated in that case: that transportation of out-of-state gas to the local system 'is essentially national—not local—in character and is interstate commerce within as well as without that state.' 283 U.S. 465, 470, 51 S.Ct. 499, 500, 75 L.Ed. 1171. 14 There are implications in the Court's opinion that under prevailing constitutional doctrine a state might now, in the absence of federal legislation, regulate such a company as Illinois Gas or East Ohio. See Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 504, 62 S.Ct. 384, 386, 86 L.Ed. 371, discussed in Panhandle Eastern Pipe Line Co. v. Public Service Comm., 332 U.S. 507, 512, 68 S.Ct. 190, 192, 92 L.Ed. 128. But compare H. P. Hood & Sons v. DuMond, 336 U.S. 525, 545, 69 S.Ct. 657, 668. 15 The orders here primarily rest on Commission regulations pursuant to the following sections. Section 6(b) authorizes the Commission to require a natural gas company to file 'an inventory of all or any part of its property and a statement of the original cost thereof, and * * * keep the Commission informed regarding the cost of all additions, betterments, extensions, and new construction.' 52 Stat. 824, 15 U.S.C. § 717e(b), 15 U.S.C.A. § 717e(b). Section 8(a) makes it the duty of such companies to keep 'such accounts, records of cost-accounting procedures,' etc., as the Commission may by rules and regulations prescribe. Section 10(a) similarly requires 'annual and other periodic or special reports'. Section 5(b) authorizes the Commission to 'investigate and determine the cost of the * * * transportation of natural gas by a natural-gas company' even where the Commission has no authority to establish rates for the transportation or sale of that gas. Section 16 vests the Commission with broad powers to prescribe general orders, rules and regulations found 'necessary or appropriate to carry out the provisions of this act.' 16 The Commission found that East Ohio's estimate placing the cost of compliance at between $1,500,000 and $2,000,000 was 'not convincing, for our experience with other companies with greater property investment indicates that this estimate is considerably exaggerated.' 74 P.U.R.,N.S., 256. 1 In the East Ohio tax case the reduction of pressure and expansion of volume of the gas at the point of entrance into local supply mains was compared to the breaking of an original package after shipment in interstate commerce, so that its contents could be treated, prepared for sale and sold at retail. 2 The question before the Court concerned the power of the State of Mississippi to tax wholesale operations of an interstate pipe-line company. Curtly dismissing the State's arguments resting on the fact that the gas pressure had been reduced before the sale for resale, the Court held, as succinctly stated in the headnote: 'The selling of gas wholesale to local, independent distributors from a supply passing into and through the State in interstate commerce, does not become a local affair and subject to a local privilege tax merely because the vendor, to deliver the quantities sold, uses a thermometer and a meter and reduces the pressure.' In its argument to the Court, 284 U.S. at page 42, 52 S.Ct. at page 62, the state had presented the analogy of pressure reduction to the breaking of an original package shipped in interstate commerce, cf. note 1, supra. State Tax Comm. v. Interstate Natural Gas Co., 284 U.S. 41, 52 S.Ct. 62, 76 L.Ed. 156. 3 In the Lone Star case this Court examined the validity of an order of a Texas commission fixing the rate to be charged by the Lone Star company for gas sold to local distributing companies at the gates of numerous Texas communities. Most of the Lone Star gas was piped from fields in the Texas Panhandle, but across a segment of Oklahoma. A small amount was produced or purchased in Oklahoma, piped into Texas, treated, and added to the local supply. Thus commingled beyond separate recognition, both types of gas were conducted through high-pressure lines and sold to the various retail distributing companies. Because of the interrelated corporate structure of Lone Star and these distributing companies, the Court treated them as one operating unit, and approved the state's exercise of its rate-making power based upon valuation of the entire integrated system. 4 H.R.Rep.No.709, 75th Cong., 1st Sess. 1—2, adopted without change in S.Rep.No.1162, 75th Cong., 1st Sess. 1—2, said of the proposed bill which became the Natural Gas Act: '* * * The States have, of course, for many years regulated sales of natural gas to consumers in intrastate transactions. The States have also been able to regulate sales to consumers even though such sales are in interstate commerce, such sales being considered local in character and in the absence of congressional prohibition subject to State regulation. See Pennsylvania Gas Co. v. Public Service Commission (1920), 252 U.S. 23 (40 S.Ct. 279, 64 L.Ed. 434). There is no intention in enacting the present legislation to disturb the States in their exercise of such jurisdiction. However, in the case of sales for resale, or so-called wholesale sales, in interstate commerce (for example, sales by producing companies to distributing companies) the legal situation is different. Such transactions have been considered to be not local in character and, even in the absence of Congressional action, not subject to State regulation. (See (State of) Missouri v. Kansas (Natural) Gas Co. (1924), 265 U.S. 298 (44 S.Ct. 544, 68 L.Ed. 1027), and Public Utilities Commission v. Attleboro Steam & Electric Co. (1927) 273 U.S. 83 (47 S.Ct. 294, 71 L.Ed. 549)). The basic purpose of the present legislation is to occupy this field in which the Supreme Court has held that the States may not act.' Congressional debates on the bill were similarly concerned with those aspects of the natural gas industry over which no state regulatory control existed. These debates were led, in the House, by Chairman Lea of the Committee on Interstate and Foreign Commerce, and, in the Senate, by Chairman Wheeler of the Committee on Interstate Commerce. In his explanatory statement the former declared, 'The primary purpose of the pending bill is to provide Federal regulation, in those cases where the State commissions lack authority, under the interstate-commerce law. This bill takes nothing from the State commissions; they retain all the State power they have at the present time.' 81 Cong.Rec. 6721. And he added later, 'The object of this bill is to supply regulation in those cases where the State commission has no power to regulate.' Ibid. Committee member Halleck assured the House that, '(T)his bill seeks only to reach those sales where the sale is for resale to the ultimate consumer.' Id., 6723. And in the Senate, Chairman Wheeler declared: 'There is no attempt and can be no attempt under the provisions of the bill to regulate anything in the field except where it is not regulated at the present time. It applies only as to interstate commerce and only to the wholesale price of gas.' 81 Cong.Rec. 9313. Neither the East Ohio case nor its mechanistic formula was emphasized or even adverted to in the Committee Reports or in the congressional debates. 5 The suggested construction also comports with the conclusions of the House and Senate Committee reports, H.R.Rep.No.709, 75th Cong., 1st Sess., 3, and S.Rep.No.1162, 75th Cong., 1st Sess. 3: 'That part of the negative declaration stating that the act shall not apply to 'the local distribution of natural gas' is surplusage by reason of the fact that distribution is made only to consumers in connection with sales, and since no jurisdiction is given to the Commission to regulate sales to consumers the Commission would have no authority over distribution, whether or not local in character.'

78

338 U.S. 451 70 S.Ct. 280 94 L.Ed. 251 UNITED STATESv.CUMBERLAND PUBLIC SERVICE CO. No. 214. Argued Dec. 12, 1949. Decided Jan. 9, 1950. Mr. Hilbert P. Zarky, Washington, D.C., for petitioner. Mr. Cornelius W. Grafton, Louisville, Ky., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 A corporation selling its physical properties is taxed on capital gains resulting from the sale.1 There is no corporate tax, however, on distribution of assets in kind to shareholders as part of a genuine liquidation.2 The respondent corporation transferred property to its shareholders as a liquidating dividend in kind. The shareholders transferred it to a purchaser. The question is whether, despite contrary findings by the Court of Claims, this record requires a holding that the transaction was in fact a sale by the corporation subjecting the corporation to a capital gains tax. 2 Details of the transaction are as follows. The respondent, a closely held corporation, was long engaged in the business of generating and distributing electric power in three Kentucky counties. In 1936 a local cooperative began to distribute Tennessee Valley Authority power in the area served by respondent. It soon became obvious that respondent's Dieselgenerated power could not compete with TVA power, which respondent had been unable to obtain. Respondent's shareholders, realizing that the corporation must get out of the power business unless it obtained TVA power, accordingly offered to sell all the corporate stock to the cooperative, which was receiving such power. The cooperative refused to buy the stock, but countered with an offer to buy from the corporation its transmission and distribution equipment. The corporation rejected the offer because it would have been compelled to pay a heavy capital gains tax. At the same time the shareholders, desiring to save payment of the corporate capital gains tax, offered to acquire the transmission and distribution equipment and then sell to the cooperative. The cooperative accepted. The corporation transferred the transmission and distribution systems to its shareholders in partial liquidation. The remaining assets were sold and the corporation dissolved. The shareholders then executed the previously contemplated sale to the cooperative. 3 Upon this sale by the shareholders, the Commissioner assessed and collected a $17,000 tax from the corporation on the theory that the shareholders had been used as a mere conduit for effectuating what was really a corporate sale. Respondent corporation brought this action to recover the amount of the tax. The Court of Claims found that the method by which the stockholders disposed of the properties was avowedly chosen in order to reduce taxes, but that the liquidation and dissolution genuinely ended the corporation's activities and existence. The court also found that at no time did the corporation plan to make the sale itself. Accordingly it found as a fact that the sale was made by the shareholders rather than the corporation, and entered judgment for respondent. One judge dissented, believing that our opinion in Com'r v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 708, 89 L.Ed. 567, required a finding that the sale had been made by the corporation. Certiorari was granted, 338 U.S. 846, 70 S.Ct. 88, to clear up doubts arising out of the Court Holding Co. case. 4 Our Court Holding Co. decision rested on findings of fact by the Tax Court that a sale had been made and gains realized by the taxpayer corporation. There the corporation had negotiated for sale of its assets and had reached an oral agreement of sale. When the tax consequences of the corporate sale were belatedly recognized, the corporation purported to 'call off' the sale at the last minute and distributed the physical properties in kind to the stockholders. They promptly conveyed these properties to the same persons who had negotiated with the corporation. The terms of purchase were substantially those of the previous oral agreement. One thousand dollars already paid to the corporation was applied as part payment of the purchase price. The Tax Court found that the corporation never really abandoned its sales negotiations, that it never did dissolve, and that the sole purpose of the so-called liquidation was to disguise a corporate sale through use of mere formalisms in order to avoid tax liability. The Circuit Court of Appeals took a different view of the evidence. In this Court the Government contended that whether a liquidation distribution was genuine or merely a sham was traditionally a question of fact. We agreed with this contention, and reinstated the Tax Court's findings and judgment. Discussing the evidence which supported the findings of fact, we went on to say that 'the incidence of taxation depends upon the substance of a transaction' regardless of 'mere formalisms,' and that taxes on a corporate sale cannot be avoided by using the shareholders as a 'conduit through which to pass title.' 5 This language does not mean that a corporation can be taxed even when the sale has been made by its stockholders following a genuine liquidation and dissolution.3 While the distinction between sales by a corporation as compared with distribution in kind followed by shareholder sales may be particularly shadowy and artificial when the corporation is closely held, Congress has chosen to recognize such a distinction for tax purposes. The corporate tax is thus aimed primarily at the profits of a going concern. This is true despite the fact that gains realized from corporate sales are taxed, perhaps to prevent tax evasions, even where the cash proceeds are at once distributed in liquidation.4 But Congress has imposed no tax on liquidating distributions in kind or on dissolution, whatever may be the motive for such liquidation. Consequently, a corporation may liquidate or dissolve without subjecting itself to the corporate gains tax, even though a primary motive is to avoid the burden of corporate taxation. 6 Here, on the basis of adequate subsidiary findings, the Court of Claims has found that the sale in question was made by the stockholders rather than the corporation. The Government's argument that the shareholders acted as a mere 'conduit' for a sale by respondent corporation must fall before this finding. The subsidiary finding that a major motive of the shareholders was to reduce taxes does not bar this conclusion. Whatever the motive and however relevant it may be in determining whether the transaction was real or a sham, sales of physical properties by shareholders following a genuine liquidation distribution cannot be attributed to the corporation for tax purposes. 7 The oddities in tax consequences that emerge from the tax provisions here controlling appear to be inherent in the present tax pattern. For a corporation is taxed if it sells all its physical properties and distributes the cash proceeds as liquidating dividends, yet is not taxed if that property is distributed in kind and is then sold by the shareholders. In both instances the interest of the shareholders in the business has been transferred to the purchaser. Again, if these stockholders had succeeded in their original effort to sell all their stock, their interest would have been transferred to the purchasers just as effectively. Yet on such a transaction the corporation would have realized no taxable gain. 8 Congress having determined that different tax consequences shall flow from different methods by which the shareholders of a closely held corporation may dispose of corporate property, we accept its mandate. It is for the trial court, upon consideration of an entire transaction, to determine the factual category in which a particular transaction belongs. Here as in the Court Holding Co. case we accept the ultimate findings of fact of the trial tribunal. Accordingly the judgment of the Court of Claims is affirmed. 9 Affirmed. 10 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 26 U.S.C. § 22(a), 26 U.S.C.A. § 22(a); Treas.Reg. 103, § 19.22(a)—19. 2 '* * * No gain or loss is realized by a corporation from the mere distribution of its assets in kind in partial or complete liquidation, however they may have appreciated or depreciated in value since their acquisition. * * *' Treas.Reg. 103, § 19.22(a) 21. 3 What we said in the Court Holding Co. case was an approval of the action of the Tax Court in looking beyond the papers executed by the corporation and shareholders in order to determine whether the sale there had actually been made by the corporation. We were but emphasizing the established principle that in resolving such questions as who made a sale, fact-finding tribunals in tax cases can consider motives, intent, and conduct in addition to what appears in written instruments used by parties to control rights as among themselves. See, e.g., Helvering v. Clifford, 309 U.S. 331, 335—337, 60 S.Ct. 554, 556—557, 84 L.Ed. 788; Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670, 164 A.L.R. 1135. 4 It has also been held that where corporate liquidations are effected through trustees or agents, gains from sales are taxable to the corporation as though it were a going concern. See, e.g., First Nat'l Bank of Greeley, Colorado v. United States, 10 Cir., 86 F.2d 938, 941; Treas. Reg. 103, § 19.22(a)—21.

1112

338 U.S. 521 70 S.Ct. 329 64 L.Ed. 307 94 L.Ed. 307 UNITED STATES ex rel. EICHENLAUBv.SHAUGHNESSY. UNITED STATES ex rel. WILLUMEIT v. SHAUGHNESSY. Nos. 3, 82. Argued Nov. 15—16, 1949. Decided Jan. 16, 1950. Mr. George G. Shiya, New York City, for petitioner Eichenlaub. Mr. Eugene H. Nickerson, New York City, for petitioner Willumeit. Mr. Harold D. Cohen, Washington, D.C., for respondent. Mr. Justice BURTON, delivered the opinion of the Court. 1 These cases present the question of whether § 1 of the Act of May 10, 1920,1 authorizes the deportation of an alien under the following circumstances occurring since that Act took effect: (1) The alien was naturalized; (2) while he was a naturalized citizen he was convicted of a conspiracy to violate the Espionage Act of 1917;2 (3) thereafter, in a denaturalization proceeding, his citizenship was revoked and his certificate of naturalization canceled on the ground that he had procured it by fraud; and (4) the proper authority, after the required hearings, found the alien to be an undesirable resident of the United States and ordered him deported. For the reasons hereinafter stated, we hold that the Act authorizes such deportation. 2 No. 3—The Eichenlaub Case. 3 Richard Eichenlaub, the relator, was born in Germany in 1905, and entered the United States from there in 1930. He was naturalized as an American citizen in 1936, and has resided in the United States continuously since his re-entry in 1937, when he returned from a visit to Germany. In 1941, on his plea of guilty in the United States District Court for the Eastern District of New York, he was convicted of conspiring to act as an agent for a foreign government without having been registered with the Secretary of State.3 He was sentenced to imprisonment for 18 months and fined $1,000. In 1944, with his consent, a judgment was entered in the United States District Court for the Southern District of New York canceling his citizenship on the ground of fraud in its procurement.4 Deportation proceedings were then instituted against him5 and, after a hearing before an Immigration Inspector and a review by the Board of Immigration Appeals, the Attorney General, in 1945, ordered his deportation.6 4 This proceeding for a writ of habeas corpus was then filed in the court last named. After hearing, the writ was dismissed and the dismissal was affirmed by the United States Court of Appeals for the Second Circuit. 167 F.2d 659. We denied certiorari. 335 U.S. 867, 69 S.Ct. 137. However, when the Court of Appeals affirmed the Willumeit case, now before us, on the authority of this case, but called attention to the added impression which had been made upon it by the argument in favor of Willumeit on the point above stated, we vacated our denial of certiorari in this case and granted certiorari in both. 337 U.S. 955, 69 S.Ct. 1526. 5 No. 82—The Willumeit Case. 6 In 1905, Otto A. Willumeit, the relator, was born in Lorraine, which at that time was a part of Germany, but at the time of his arrest for deportation had become a part of France. He entered the United States from there in 1925. In 1931 he was naturalized, and he has resided in the United States continuously since his reentry in 1941 after a visit to Mexico. In 1942, on his plea of guilty in the United States District Court for the District of Connecticut, he was convicted of having conspired to violate that portion of the Espionage Act of 1917 which made it a crime to transmit to an agent of a foreign country information relating to the national defense of this country, with intent or reason to believe that such information would be used to the injury of the United States or to the advantage of a foreign nation.7 He was sentenced to imprisonment for five years. In 1944, with his consent, a judgment was entered in the United States District Court for the Northern District of Illinois canceling his citizenship on the ground of fraud in its procurement.8 Deportation proceedings were then instituted against him and, after a hearing before an Immigration Inspector and a review by the Board of Immigration Appeals, the Attorney General, in 1947, ordered his deportation.9 7 This proceeding for a writ of habeas corpus was filed in the United States District Court for the Southern District of New York and, after a hearing, the writ was dismissed. The United States Court of Appeals for the Second Circuit affirmed the dismissal on the authority of its decision in the Eichenlaub case.10 171 F.2d 773. Because of the importance of the issue to American citizenship, we granted certiorari. 337 U.S. 955, 69 S.Ct. 1526. 8 The proper scope of the Act of 1920 as applied to these cases is found in the ordinary meaning of its words. The material provisions of the Act are as follows: 9 '* * * That aliens of the following classes * * * shall, upon the warrant of the (Attorney General), be taken into his custody and deported * * * if the (Attorney General),11 after hearing, finds that such aliens are undesirable residents of the United States, to wit: 10 '(2) All aliens who since August 1, 1914, have been or may hereafter be convicted of any violation or conspiracy to violate any of the following Acts or parts of Acts, the judgment on such conviction having become final, namely: 11 '(a) (The Espionage Act of 1917, as amended).'12 12 The above words require that all persons to be deported under this Act shall be 'aliens.'13 They do not limit its scope to aliens who never have been naturalized. They do not exempt those who have secured certificates of naturalization, but then have lost them by court order on the ground of fraud in their procurement. They do not suggest that such persons are not as clearly 'aliens' as they were before their fraudulent naturalization.14 There is no question as to the power of Congress to enact a statute to deport aliens because of past misconduct.15 That is what Congress did in the Act of 1920, and there is no occasion to restrict its language so as to narrow its plain meaning. 13 The one substantial issue is whether the Act requires that the relators not only must have been 'aliens' at the times when they were ordered deported, but that they must also have had that status at the times when they were convicted of designated offenses against the national security. The Government suggests that one route to a conclusion on this issue is to hold that the relators, as a matter of law, were 'aliens' when so convicted. The basis it suggests for so holding is that the judicial annulment of the relators' naturalizations on the ground of fraud in their procurement deprived them of their naturalizations ab initio. Rosenberg v. United States, 2 Cir., 60 F.2d 475. They thus would be returned to their status as aliens as of the date of their respective naturalizations. Accordingly, they would come within the scope of the Act of 1920, even if that Act were held to require that all offenders subject to deportation under it also must have had an alien status when convicted of the designated offenses. 14 In our opinion, it is not necessary, for the purposes of these cases, to give a retroactive effect to the denaturalization orders. A simpler and equally complete solution lies in the view that the Act does not require that the offenders reached by it must have had the status of aliens at the time they were convicted. As the Act does not state that necessity, it is applicable to all such offenders, including those denaturalized before or after their convictions as well as those who never have been naturalized. The convictions of the relators for designated offenses are important conditions precedent to their being found to be undesirable residents. Their status as aliens is a necessary further condition of their deportability. When both conditions are met and, after hearing, the Attorney General finds them to be undesirable residents of the United States, the Act is satisfied. 15 The statutory language which says that 'aliens who since August 1, 1914, have been or may hereafter be convicted, * * *' (emphasis supplied)16 refers to the requirement that the deportations be applicable to all persons who had been convicted of certain enumerated offenses since about the beginning of World War I (August 1, 1914), whether those convictions were had before or after May 10, 1920. The crimes listed were not crimes in which convictions depended upon the citizenship, or lack of citizenship, of their perpetrators. In fact, they were crimes against the national security, so that their commission by naturalized citizens might well be regarded by Congress as more reprehensible than their commission by aliens who never had been naturalized. 16 The recognized purpose of the Act was deportation. It is difficult to imagine a reason which would have made it natural or appropriate for Congress to authorize the Attorney General to pass upon the undesirability and deportability of an alien, never naturalized, who had been convicted of espionage, but would prohibit the Attorney General from passing upon the undesirability and deportability of aliens, such as the relators in the instant cases, who had procured certificates of naturalization before their convictions of espionage, but later had been deprived of those certificates on the ground of fraud in their procurement. If there were to be a distinction made in favor of any aliens because they were at one time naturalized citizens, the logical time at which that status would be important would be the time of the commission of the crimes, rather than the purely fortuitous time of their conviction of those crimes. Not even such a distinction finds support in the statute. 17 The failure of Congress to give expression to the distinction, here urged by the relators, between aliens who never have been naturalized and those who have been denaturalized, was not due to unfamiliarity with such matters. In 1920, Congress must have been familiar with the status of aliens denaturalized under § 15 of the Act of June 29, 1906, 34 Stat. 601, see 8 U.S.C. § 736, 8 U.S.C.A. § 736,17 or expatriated under § 2 of the Citizenship Act of March 2, 1907, 34 Stat. 1228, see 8 U.S.C. § 801, 8 U.S.C.A. § 801. It had had experience with the deportation of undesirable aliens under § 19 of the Immigration Act of February 5, 1917, 39 Stat. 889, see 8 U.S.C. § 155, 8 U.S.C.A. § 155, as well as under other wartime Acts and Proclamations. There Acts did not distinguish between aliens who never had been naturalized, and those who had obtained naturalization by fraud only to lose it by court decree. If the Act of 1920 had been intended to initiate the distinction here urged by the relators, it is likely that the change would have been made by express provision for it. We find nothing in its legislative history that suggests a congressional intent to distinguish between two such groups of undesirable criminals. 18 The Congressional Committee Reports demonstrate that, while this statute was framed in general language and has remained in effect for 30 years, its enactment originally was occasioned by a desire to deport some or all of about 500 aliens who were then interned as dangerous enemy aliens and who might be found, after hearings, to be undesirable residents, and also to deport some or all of about 150 other aliens who, during World War I, had been convicted of violations of the Espionage Act or other national security measures, and who might be found, after hearings, to be undesirable residents.18 It is hardly conceivable that, under those circumstances, Congress, without expressly saying so, intended to prevent the Secretary of Labor (or his successor, the Attorney General) from deporting alien offenders merely because they had received their respective convictions at times when they held certificates of naturalization, later canceled for fraud. To do so would permit the denaturalized aliens to set up a canceled fraudulent status as a defense, and successfully to claim benefits and advantages under it.19 Congress, in 1920, evidently wanted to provide a means by which to free the United States of residents who (1) had been or thereafter were convicted of certain offenses against the security of the United States, (2) had been or thereafter were found, after hearing, to be undesirable residents of the United States, and (3) being aliens were subject to deportation. Congress said just that. 19 We have given consideration to such other points as were raised by the relators, but we find that they do not affect the result.20 20 The judgment of the Court of Appeals in each case is therefore affirmed. 21 Affirmed. 22 Mr. Justice DOUGLAS and Mr. Justice CLARK took no part in the consideration or decision of these cases. 23 Mr. Justice FRANKFURTER, whom Mr. Justice BLACK and Mr. Justice JACKSON join, dissenting. 24 In light of the attitude with which the doom of deportation has heretofore been viewed by this Court, in the case of those whose lives have been intimately tied to this country, I deem it my duty not to squeeze the Act of May 10, 1920, 41 Stat. 593, as amended, 8 U.S.C. § 157, 8 U.S.C.A. § 157, so as to yield every possible hardship of which its words are susceptible. See Ng Fung Ho v. White, 259 U.S. 276, 284—285, 42 S.Ct. 492, 495, 66 L.Ed. 938; Delgadillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 12, 92 L.Ed. 17; Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433; Bridges v. Wixon, 326 U.S. 135, 147, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103; Fiswick v. United States, 329 U.S. 211, 222, note 8, 67 S.Ct. 224, 230, 91 L.Ed. 196; Klapprott v. United States, 335 U.S. 601, 612, 69 S.Ct. 384, 389, modified, 336 U.S. 942, 69 S.Ct. 384. Because we have been mindful of the fact that such deportation may result 'in loss of both property and life; or of all that makes life worth living', this Court concluded that due process of law requires judicial determination when a claim of citizenship is made in a deportation proceeding, while upon entry or reentry the same claim may be determined administratively. It took into account the great difference 'in security of judicial over administrative action'. Ng Fung Ho v. White, supra, 259 U.S. at pages 284, 285, 42 S.Ct. 492, 495, 66 L.Ed. 938. I am aware of the fact that we are dealing here with a person whose citizenship has been taken from him. I maintain, however, that the rigorous statute permitting deportation of an 'alien' should be read to apply only to one who was an alien when convicted and should not be made to apply to persons in the position of these petitioners. 25 Since such construction is not unreasonable, due regard for consequences demands that the statute be so read. Where, as here, a statute permits either of two constructions without violence to language, the construction which leads to hardship should be rejected in favor of the permissible construction consonant with humane considerations. The Act of May 10, 1920, provides that 'All aliens who since August 1, 1914, have been or may hereafter be convicted' of certain offenses shall be deported upon a finding that they are 'undesirable residents of the United States.' Since neither of the petitioners herein was found to 'have been' convicted of any offense before passage of the Act, they come, it is urged, within the alternative prerequisite. But the statute, in terms, refers to aliens 'who * * * may hereafter be convicted', not persons who are citizens when convicted and later transformed into aliens by the process of denaturalization. And this view of the statute is reinforced by the legislative history as well as by considerations relating to the impact of the Court's decision upon various other congressional enactments not now before us. 26 The Committee reports1 and congressional debate2 make plain that Congress was principally concerned with the status of about 500 persons who had been interned by the President during the First World War as dangerous alien enemies and about 150 aliens who had been convicted under various so-called war statutes. Congress could not have been unaware that naturalized citizens may lose their citizenship; yet nowhere in the legislative history to we find the remotest hint that Congress had also such denaturalized citizens in mind. On the contrary, the debates contain ample evidence that Congress had in mind only persons convicted when aliens.3 27 The Court's decision has serious implications with respect to citizens denaturalized for reasons not involving moral blame,4 and who have, while citizens, committed one of a variety of acts not involving moral obliquity and certainly not endangering the security of the country but which nevertheless are covered by other statutory provisions in language similar to that before us.5 Thus, discriminations would as a matter of policy have to be drawn if this general problem were consciously faced by policy-makers. They are not within the power of this Court to draw. If and when Congress gives the matter thought, it may well draw distinctions between one who was an alien and one who was naturalized at the time of conviction, based on the manner in which citizenship was lost, the type of offense committed, and the lapse of time between conviction and denaturalization. These serious differentiations should not be disregarded by giving a ruthlessly undiscriminating construction to the statute before us not required by what Congress has written. 1 41 Stat. 593, see 8 U.S.C. § 157, 8 U.S.C.A. § 157. 2 Act of June 15, 1917, 40 Stat. 217. 3 This was under § 37 of the general conspiracy statute, 35 Stat. 1096, 18 U.S.C. (1946 ed.) § 88, now 18 U.S.C. § 371, 18 U.S.C.A. § 371; and under § 3 of Title VIII of the Espionage Act of 1917, 40 Stat. 226, 22 U.S.C. § 233, as amended by § 6 of the Act of March 28, 1940, 54 Stat. 80, 22 U.S.C. (1946 ed.) § 601, now 18 U.S.C. § 951, 18 U.S.C.A. § 951. Several other defendants stood trial in this proceeding, and were convicted both on this and on a general espionage count. Their conviction was affirmed on this count, but reversed on the other. United States v. Heine, 2 Cir., 151 F.2d 813. 4 Under § 338 of the Nationality Act of 1940, 54 Stat. 1158 1160, 8 U.S.C. § 738, 8 U.S.C.A. § 738. 5 Under § 1 of the Act of May 10, 1920, 41 Stat. 593—594, 8 U.S.C. § 157, 8 U.S.C.A. § 157. 6 Under the 1940 Reorganization Plan No. V, 54 Stat. 1238, 5 U.S.C.A. § 133t note, the functions and powers of the Secretary of Labor under the Act of May 10, 1920, were transferred to the Attorney General. The warrant of deportation recited that the relator had been 'found to be a member of the undesirable classes of alien residents enumerated * * *' in the Act of May 10, 1920. While the administrative file is not in the printed record, it was used in argument in the Court of Appeals and is on file here. The Board of Immigration Appeals at page 5 of its opinion found as a fact that 'the respondent is an undesirable resident of the United States.' The Court of Appeals, at 2 Cir., 167 F.2d 660, properly recognized this additional matter in the record as justifying its acceptance of the less specific finding recited in the warrant of deportation, and as distinguishing this case from Mahler v. Eby, 264 U.S. 32, 42—46, 44 S.Ct. 283, 287—288, 68 L.Ed. 549, on that point. 7 This conviction was under §§ 2 and 4 of Title I of the act of June 15, 1917, 40 Stat. 218—219, 50 U.S.C. (1946 ed.) §§ 32 and 34, now 18 U.S.C. §§ 794 and 2388, 18 U.S.C.A. §§ 794, 2388. 8 See note 4, supra. In this record the final decree of denaturalization is set forth in full. Among other things, it states that the order admitting the relator to citizenship 'is hereby vacated, annulled and set aside, and that the certificate of citizenship, * * * is hereby cancelled and declared null and void, * * * and the defendant Otto Albert Willumeit is hereby forever restrained and enjoined from setting up or claiming any rights or privileges, benefits or advantages whatsoever under said order, * * * or the certificate of citizenship issued by virtue of said order.' 9 The order was based not only upon § 1 of the Act of May 10, 1920, 41 Stat. 593—594, 8 U.S.C. § 157, 8 U.S.C.A. § 157, the applicability of which in turn was based upon the relator's conviction of a violation of the Espionage Act of 1917, but also upon §§ 13 and 14 of the Immigration Act of 1924, 43 Stat. 161 162, as affected by 46 Stat. 581, 50 Stat. 165, the 1940 Reorganization Plan No. V, 54 Stat. 1238, and 60 Stat. 975, 8 U.S.C. §§ 213 and 214, 8 U.S.C.A. §§ 213, 214, having to do with relator's reentry into the United States from Mexico in 1941. The Court of Appeals found it unnecessary to pass on this alleged ground for deportation in view of its conclusion as to the other ground. 2 Cir., 171 F.2d at 775. We concur for the same reason. As in the Eichenlaub case, the warrant of deportation apparently stated that it was based on the fact that the relator 'had been found to be a member of the undesirable classes of alien residents, * * *.' While the warrant is not printed in the record, the findings of the Commissioner of Immigration and of the Board of Immigration Appeals are printed in full. Each contains an express finding that the relator 'is an undesirable resident of the United States.' Each states reasons for so concluding. 10 The return to the writ of habeas corpus in this case states that, in addition to issuing the above-described warrant of deportation, the Attorney General ordered the relator interned in 1945 as a dangerous alien enemy and, in 1946, ordered the relator removed from this country for that reason. That proceeding derives its authority from the Alien Enemy Act of July 6, 1798, 1 Stat. 577, as it appears in R.S. 4067, as affected by 40 Stat. 531, and Presidential Proclamation No. 2655 of July 14, 1945, 3 C.F.R.1945 Supp. 29, 59 Stat., Pt. 2, 870, see 50 U.S.C. § 21, 50 U.S.C.A. § 21. It thus raises questions as to the 'enemy' status of an alien born in Lorraine, which at the time of his birth was a part of Germany, but at the time of his arrest was a part of France. While the Government refers to this Act in its argument in interpreting the Act of May 10, 1920, as in pari materia, it does not press this arrest as a separate ground for dismissal of the writ of habeas corpus. See United States ex rel. Zeller v. Watkins, 2 Cir., 167 F.2d 279; United States ex rel. Gregoire v. Watkins, 2 Cir., 164 F.2d 137; United States ex rel. D'Esquiva v. Uhl, 2 Cir., 137 F.2d 903; United States ex rel. Umecker v. McCoy, D.C.N.D., 54 F.Supp. 679. The court below did not find it necessary to pass on this issue, 2 Cir., 171 F.2d at page 775, nor do we. 11 See note 6, supra. 12 The first paragraphs of the Act of May 10, 1920, are, in full, as follows: 'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That aliens of the following classes, in addition to those for whose expulsion from the United States provision is made in the existing law, shall, upon the warrant of the Secretary of Labor, be taken into his custody and deported in the 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,' if the Secretary of Labor, after hearing, finds that such aliens are undesirable residents of the United States, to wit: '(1) All aliens who are now interned under section 4067 of the Revised Statutes of the United States and the proclamations issued by the President in pursuant of said section under date of April 6, 1917, November 16, 1917, December 11, 1917, and April 19, 1918, respectively. '(2) All aliens who since August 1, 1914, have been or may hereafter be convicted of any violation or conspiracy to violate any of the following Acts or parts of Acts, the judgment on such conviction having become final, namely: '(a) An Act entitled 'An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,' approved June 15, 1917, or the amendment thereof approved May 16, 1918; * * *.' 41 Stat. 593—594, see 8 U.S.C. § 157, 8 U.S.C.A. § 157. The subsequent subdivisions (2)(b) to (h), inclusive, refer to the Explosives Act, 40 Stat. 385, 50 U.S.C.A. § 121 et seq.; Act Restricting Foreign Travel, 40 Stat. 559; Act Punishing Injury to War Material, 40 Stat. 533; Army Emergency Increase Act, 40 Stat. 80, 884, 955; Act Punishing Threats Against the President, 39 Stat. 919; Trading with the Enemy Act, 40 Stat. 411, 50 U.S.C.A.Appendix, § 1 et seq.; and the Seditions Conspiracy Section of the Penal Code, 35 Stat. 1088. 13 The word 'alien' is not defined in the Act. It is, however, defined in closely related statutes. The Immigration Act of February 5, 1917, provides: 'the word 'alien' wherever used in this Act shall include any person not a native-born or naturalized citizen of the United States; * * *.' 39 Stat. 874, see 8 U.S.C. § 173, 8 U.S.C.A. § 173. The Immigration Act of May 26, 1924, provides: 'The term 'alien' includes any individual not a native-born or naturalized citizen of the United States, * * *.' 43 Stat. 168, see 8 U.S.C. § 224, 8 U.S.C.A. § 224. These definitions are in effect today. In Title 8 of the United States Code they are included in and are made to apply to the entire chapter on Immigration and that chapter includes as § 157 the Act of May 10, 1920. 14 While the Act also makes no express distinction between its applicability to aliens who never have been naturalized and to those who have been naturalized, but have lost their naturalized citizenship by lawful and voluntary expatriation, see 8 U.S.C. §§ 800—810, 8 U.S.C.A. §§ 800—810, the possibility of such a distinction is not before us in the instant cases. The required finding by the Attorney General, after hearing, that any alien who is to be deported is an undesirable resident of the United States prevents the automatic deportation of anyone under this Act without such a hearing and finding. 15 Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283; Ng Fung Ho v. White, 259 U.S. 276, 280, 42 S.Ct. 492, 493, 66 L.Ed. 938; Bugajewitz v. Adams, 228 U.S. 585, 33 S.Ct. 607, 57 L.Ed. 978; Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 1028, 37 L.Ed. 905. 16 See note 12, supra. 17 'The practice of filing proceedings to cancel certificates of naturalization became widespread immediately after The 1906 Act went into effect. In the fiscal year 1907 there were eighty-six certificates cancelled; in 1908 there were four hundred and fifty-seven; and in 1909, nine hundred and twenty-one. During the thirty years following the effective date of the 1906 Act, more than twelve thousand certificates of naturalization were cancelled on the ground of fraud or on the ground that the order and certificate of naturalization were illegally procured.' Cable, Loss of Citizenship 4—5 (1943). 18 See H.R.Rep.No.143 and S.Rep.No.283, 66th Cong., 1st Sess., 58 Cong.Rec. 3362—3376 (1919); Ludecke v. Watkins, 335 U.S. 160, 167—168, note 12, 179—181, 68 S.Ct. 1429, 1433, 1438, 1439, 93 L.Ed. 188. 19 Compare the injunction included in the final decree of denaturalization quoted in note 8, supra. 20 Among these is the claim in the Eichenlaub case that the Act of 1920 does not apply to his conviction under the Espionage Act of 1917, because, in substance, the penalty for its violation had been increased in 1940. This contention is without merit. 1 H.R.Rep.No.143, 66th Cong., 1st Sess. (1919); S.Rep.No.283, 66th Cong., 1st Sess. (1919). 2 58 Cong.Rec. 3361—3377. 3 Representative Gard: 'I assume that everybody will agree with that, that if an alien is tried, is afforded a fair trial and is convicted, then he is a proper subject for deportation.' 58 Cong.Rec. 3371. Representative Robsion, discussing wealthy aliens: 'We permitted them to live here and granted them practically all of the rights of the American citizen. They rewarded our hospitality by joining with our enemies in an effort to destroy us. As they were not citizens, they were not required to take up arms in defense of the country in which they had grown rich.' 58 Cong.Rec. 3374. 4 Citizenship is lost by any person 'Voting in a political election in a foreign state'. 8 U.S.C. § 801(e), 8 U.S.C.A. § 801(e). Bills are now before Congress to restore citizenship to the approximately 4,000 Americans who voted in recent Italian elections. See H.R. 6616 and 6617, 81st Cong., 2d Sess. (1950); H.R.Rep.No.1469, 81st Cong., 2d Sess. (1950); 96 Cong.Rec.App. 117 (January 9, 1950). See also 8 U.S.C. §§ 801(c) and (d), 804, 8 U.S.C.A. §§ 801(c, d), 804; Battaglino v. Marshall, 2 Cir., 172 F.2d 979, certiorari denied 338 U.S. 829, 70 S.Ct. 56. As to denaturalization based on fraud in the procurement of citizenship, see Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525. 5 E.g., 8 U.S.C. § 156a, 8 U.S.C.A. § 156a, provides for the deportation of any alien, with exceptions not here pertinent, 'who, after February 18, 1931, shall be convicted for violation of or conspiracy to violate' any federal or State narcotics law. In United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 60 L.Ed. 604, this Court held that conviction under the Federal Anti-Narcotic Act, 26 U.S.C.A. § 2550 et seq., can be had without the usual requirement of scienter. Even convictions under laws related to the national security involve varying degrees of culpability. This is demonstrated by the remarks of the prosecuting attorney to the District Court concerning Dr. Willumeit, the relator in No. 82, when his sentence was being considered: 'It has been our belief, after having gone into this thing pretty thoroughly with him (the relator), that he was more or less caught in it without perhaps intending to go as far as the others went. '* * * I have a feeling, your Honor, that Dr. Willumeit can be restored to decent citizenship in this country. I think he has something that he can give to America. '* * * I would say that the Government would view a lenient sentence as a just sentence under all the circumstances. We think something can be done with this man. We do not think he is a bad man at heart, your Honor. We think he is probably a good man who got in with bad company and got in with this trouble. 'I say to your Honor I am not his lawyer. I am supposed to be hard with him, I guess, if I believe in it. But in this case I do not feel that this man is a bad actor. I think there is a place for Dr. Willumeit in America in time, and he may become a most useful citizen.'

12

338 U.S. 507 70 S.Ct. 322 94 L.Ed. 299 DICKINSONv.PETROLEUM CONVERSION CORPORATION. No. 150. Argued and Submitted Dec. 5, 1949. Decided Jan. 16, 1950. Messrs. Solomon Kaufman, Samuel Hershenstein, New York City, for petitioner. Mr. Alexander Kahan, New York City, for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 The only issue presented by this case turns on the finality of a judgment for purposes of appeal, a subject on which the volume of judicial writing already is formidable. The Court of Appeals resolved against finality of the decree in question, saying, however, that it did so against the unanimous conviction of the court as constituted but in deference to a precedent established by a differently constituted court of the same Circuit. 173 F.2d 738. Because of this intracircuit conflict, we made a limited grant of certiorari. 338 U.S. 811, 70 S.Ct. 66. That we cannot devise a form of words that will settle this recurrent problem seems certain; but in this case we agree with the convictions of the court below and reverse its judgment. 2 Something over a decade ago, Dickinson sued Lloyd, with whom he had been associated in promoting the Petroleum Conversion Corporation, along with others, to impress an equitable lien upon certain of the Corporation's shares then in Lloyd's name and possession. The District Court dismissed the complaint but the Court of Appeals reversed and directed a new trial. Dickinson v. Rinke, 2 Cir., 132 F.2d. 805, Before retrial, Burnham and Vaughan, on behalf of themselves and such other stockholders as subscribed to a fund to aid the company or its predecessor in its embarrassment, were allowed to intervene. They set up a claim against both plaintiff Dickinson and defendant Lloyd that the stock involved in the controversy between them had been fraudulently issued and demanded that this stock be canceled. They also sought recovery of $87,310.28 from them as unlawful profits secretly realized by breach of their fiduciary duty. Petroleum Conversion Corporation also intervened, making the same general allegations and demands for relief. The Corporation and the class of subscribers thus joined forces to get for one or the other substantially the same remedy against both Dickinson and Lloyd. 3 This triangular controversy was tried and a decree dated April 10, 1947, was entered. The issue here turns on the character of that decree. It recites twenty-three days of trial, the filing of a decision, opinion, findings of fact and conclusions of law, and it 'ordered, adjudged and decreed' that all of the plaintiff Dickinson's claims be dismissed on the merits; that all of the defendant Lloyd's claims there pressed by his administrator be dismissed on the merits; that the class intervenors have judgment of $174,620.56 against both Dickinson and Lloyd's administrator, and that a concourse of all these subscribers be provided by which their several claims could be liquidated and the share of each in the recovery fixed; that Petroleum Conversion Corporation receive 8,200 shares of its stock in the hands of Lloyd's administrator but that its claim to 12,596 additional such shares and its claim to over 244,000 of its shares in possession of the court be dismissed; and Petroleum Conversion Corporation was directed to issue new shares to stockholders of another corporation provided that, if any shares were not distributed for any reason, they be redeposited with the court subject to its further order with jurisdiction retained by the court to supervise the distribution of such shares. It dismissed all other claims of Petroleum Conversion Corporation. 4 From this decree Petroleum took no appeal. The District Court went ahead with hearings to determine claims of over seventy members of the class to share in the aggregate recovery against Dickinson and Lloyd's administrator. On August 3, 1948, the court signed a 'final decree' which apportioned the recovery as between those claimants. It recited that 'the issues reserved in the decree herein dated the 10th day of April, 1947, having been determined by the Court * * * the said decree is hereby made final.' It made no decision as to any issue involving Petroleum and in no way changed the 1947 decree as to it. It also awarded costs which had not been settled in the earlier decree, but made no award against Petroleum. 5 Thereupon Petroleum's receiver in bankruptcy appealed from so much of this 1948 decree as dismissed the claims of Petroleum.1 On motion to dismiss the appeal, the chief question and the only one we granted review, was whether the Corporation could have appealed from the 1947 decree, or whether it could only appeal from the 1948 decree.2 In deciding this motion, the court said: 6 'In the view of all members of the court, as it is now constituted, this should make no difference for the whole counterclaim of the Petroleum Conversion Corporation had been finally disposed of an April tenth, 1947; and as to it the action was at an end as much as though it had been denied the right to intervene at all; indeed, the judgment was more final, so to say, because, unlike the denial of a petition to intervene, it was a bar to any effort to relitigate the claims determined.' 173 F.2d at page 740. 7 But because it could find no basis for distinguishing Clark v. Taylor, 2 Cir., 163 F.2d 940, in which a differently composed court in the same Circuit had sustained what appears to be a contrary position, it held the earlier order not appealable and hence no bar to the present appeal. 173 F.2d at pages 740—741. 8 Half a century ago this Court lamented, 'Probably no question of equity practice has been the subject of more frequent discussion in this court than the finality of decrees. * * * The cases, it must be conceded, are not altogether harmonious.' McGourkey v. Toledo & Ohio Central R. Co., 146 U.S. 536, 544-545, 13 S.Ct. 170, 172, 36 L.Ed. 1079. This lamentation is equally fitting to describe the intervening struggle of the courts; sometimes to devise a formula that will encompass all situations and at other times to take hardship cases out from under the rigidity of previous declarations; sometimes choosing one and sometimes another of the considerations that always compete in the question of appealability, the most important of which are the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.3 9 The liberalization of our practice to allow more issues and parties to be joined in one action and to expand the privilege of intervention by those not originally parties has increased the danger of hardship and denial of justice through delay if each issue must await the determination of all issues as to all parties before a final judgment can be had. In recognition of this difficulty, present Rule 54(b), Federal Rules of Civil Procedure, 28 U.S.C.A., was promulgated. It provides: 10 'When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claim.' 11 The obvious purpose of this section, as indicated by the notes of the advisory committee, is to reduce as far as possible the uncertainty and the hazard assumed by a litigant who either does or does not appeal from a judgment of the character we have here.4 It provides an opportunity for litigants to obtain from the District Court a clear statement of what that court is intending with reference to finality, and if such a direction is denied, the litigant can at least protect himself accordingly. 12 But this new rule—which became effective on March 19, 1948 was not in effect at the time of the 1947 decree in this case and it would not be appropriate to attempt to determine its effect on cases of this kind beyond observing that it may do much to prevent them from coming here. We will not, therefore, try to lay down rules to embrace any case but this. 13 We have held than an order denying intervention to a person having an absolute right to intervene is final and appealable. Brotherhood of Railroad Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 67 S.Ct. 1387, 91 L.Ed. 1646; Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 61 S.Ct. 666, 85 L.Ed. 975. When the application for intervention is denied, the would-be intervenor is foreclosed from further action in the case and its proceedings cannot affect him nor can he affect them. As the court below observed, it is hard to see why the exclusion of an intervenor from the case should be less final when it is based upon the evidence than when it is based upon pleadings. In either case, the lawsuit is all over so far as the intervenor is concerned. 14 When its claims were dismissed by the decree of April 1947, any grievance that Petroleum Conversion Corporation had was fully matured.5 At that point Petroleum was out of the case. The decree was not tentative, informal nor incomplete as to it; and the case was concluded and closed as to its counterclaims. The court's reservation of jurisdiction to supervise the distribution of the shares of stock and the provision for further proceedings to determine the individual shares in the aggregate recovery allowed did not in any manner affect Petroleum's rights. What the court reserved was essentially supervisory jurisdiction over the distribution among the class of the recovery awarded the intervenors as the class' representatives. The only questions were, so to speak, internal to the intervening interest. Petroleum no longer had any concern with these questions and, however they were resolved, Petroleum could not possibly have been affected. The court obviously selected with deliberation the issues it would close by the decree and those it would reserve for future decision. If it had any purpose to leave open any issue concerning Petroleum's contentions, or affecting its interests, half a line in the decree would have done so. But that half-line was not written. 15 We hold the decree of April 10, 1947, to have been a final one as to Petroleum6 and one from which it could have appealed and that its failure to appeal therefrom forfeits its right of review. Its attempt to review the earlier decree by appealing from the later one is ineffective, and its appeal should be dismissed. 16 Reversed. 17 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 18 Mr. Justice BLACK, dissenting. 19 The right to appeal a judgment has long been said to depend or whether it is 'final.' This is a simple question where a court decides all issues simultaneously and enters a final order putting an end to a controversy. But when an order apparently leaves some question or claims open for further court action at a later date, doubts as to finality arise. See, e.g., Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443. Finality and appealability have provided judges, lawyers, and commentators with a perpetual subject for debate.1 But litigants have too often been thrown out of court because their lawyers failed to guess that an order would be held 'final' by an appellate court. The creditors of Petroleum Conversion Corporation, who are prosecuting this action for respondent here, are not the first victims of this jungle of doubt.2 I also doubt that they will be the last victims, despite the Court's hope that the new Rule 54(b) has charted a clear route through the jungle. 20 I see no practical reason why the Court of Appeals should not have been free to review the respondent's challenge to the 1948 decree without regard to appealability of the 1947 decree. A rational system of jurisprudence should not attach inexorable consequences to failure to guess right on a legal question for the solution of which neither statutes nor court opinions have provided even a reasonably certain guide. Where, as here, arguments as to which of two decrees is 'final' may be considered relatively even, an appellate court should be free to find 'finality' in either decree appealed from. Under such a rule a court could consider the many circumstances relevant to orderly appellate administration without penalizing litigants merely because it finds that an earlier decree falls on the 'finality' side of what remains a twilight zone. Cf. Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246. See also dissent in City of Morgantown v. Royal Ins. Co., 337 U.S. 254, 263—264, 69 S.Ct. 1067, 1072. 21 Even if the old 'either-or' rule is applied as to appealability of the 1947 and 1948 decrees here, it seems to me that weightier reasons support holding the latter final. The judge who tried the case and rendered both decrees attributed finality to the decree of 1948 and not to that of 1947. He termed the 1947 order a 'Decree,' the 1948 order a 'Final Decree.' He specifically provided in the 1947 decree 'That the taxation of costs in this case and the entry of judgment therefor, be deferred until the entry of judgment in respect to the matters hereinabove reserved for the future determination of this court.' At his order, both Petroleum and Dickinson received notice of subsequent hearings. Four months before the final 1948 decree the trial judge in a memorandum opinion referred to the 1947 decree as 'interlocutory.' Answering contentions that respondent here should have appealed from the 1947 decree, he stated: 'In my opinion it was not a final decree and was not appealable, at least in so far as it involved the claim for $176,000.' And in the 1948 decree the trial judge for the first time declared that the 1947 decree 'is hereby made final.'3 The creditors prosecuting this appeal for respondent should not be deprived of an opportunity to appeal from the 1948 decree just because attorneys for the corporation failed to appeal from a former decree which the trial judge himself seems to have considered interlocutory and nonappealable.4 22 The holding that Petroleum's appeal from the 1948 judgment must be dismissed may well produce a strange consequence. The reason for dismissal urged here by petitioner Dickinson is that the 1947 decree was final; under his contention, that decree left nothing for the trial court to do except determine the shares of various 'Rinke subscribers' in 'the particular sum' found due to that class from Lloyd and Dickinson, and to assess costs and enter judgment. On this hypothesis the 1947 decree seems just as final on Dickinson's claims and liability as on Petroleum's. The 1947 litigation originated in charges of fraud made by Dickinson against Lloyd. Petroleum and persons designated as 'Rinke subscribers' then intervened, charging fraud against both Dickinson and Lloyd. The 1947 decree rested on findings that the charges against Dickinson and Lloyd had been proven. The court concluded that the Rinke subscribers, and to some extent Petroleum, had been damaged by their fraud. Accordingly the court awarded partial relief to Petroleum on one of its claims, dismissing all its other claims. The court also fixed a particular amount for the Rinke subscribers as a group to recover from Dickinson and the Lloyd estate. That decree, here held final as to Petroleum, apparently had an identical degree of finality as to Dickinson: in addition to fixing the precise sum for which Dickinson and Lloyd were liable to Rinke subscribers as a group, it completely dismissed Dickinson's affirmative claims.5 Yet Dickinson himself has appealed from the 1948 decree,6 and ironically enough he is the only party here urging dismissal of Petroleum's appeal from the same decree. 23 So far as we know, Dickinson's appeal is still pending. With Petroleum out of the case by this Court's judgment, he should certainly not be left free to have his own appeal considered in the Court of Appeals. Permitting him to challenge the 1947 findings would result in appellate review of that decree without the presence of Petroleum, who was one of Dickinson's 1947 adversaries. If Dickinson can challenge the 1947 decree by appeal from the 1948 judgment, Petroleum should also be allowed to challenge it. And if neither can challenge it, the basic questions of fraud and liability are now beyond the reach of appellate review. I cannot join the Court in applying a rule of 'finality' which attaches such consequences to the understandable failure of these parties to appeal from the 1947 decree. 1 As we have already indicated, however, the 1948 decree did not dismiss or decide any of Petroleum's claims except insofar as it may be construed to finalize the 1947 decree. 2 If the 1947 decree was final as to Petroleum for purposes of appeal, Petroleum could not appeal from the 1948 decree. Hill v. Chicago & Evanston R. Co., 140 U.S. 52, 11 S.Ct. 690, 35 L.Ed. 331. 3 The cases and the policy considerations underlying them are collected and discussed in 3 Moore's Federal Practice, 1948 Supp., 172—187; Moore's Commentary on the U.S. Judicial Code, 495 501, 507—518 (1949); Note to Rule 54(b), Advisory Committee's Report of Proposed Amendments to Rules of Civil Procedure (1946); Reformulation of the 'Final Decision' Rule—Proposed Amendment to Rule 54(b), 56 Yale L.J. 141; The Final Judgment Rule in the Federal Courts, 47 Col.L.Rev. 239; Federal Rule 54(b) and the Final Judgment Rule, 47 Mich.L.Rev. 233. 4 Note to Rule 54(b), Advisory Committee's Report of Proposed Amendment to Rules of Civil Procedure (1946) 70—72. See also authorities cited in n. 3, supra. 5 While it should make no difference as to the law that governs finality, it is fair to the law and to the court to dispel the impression that this decision makes the creditors of Petroleum Conversion Corporation 'victime of this jungle of doubt,' or victims of any kind, or that they are in this predicament from a 'failure to guess right on a legal question.' This calls for some further detail irrelevant to the issue of law. The decree of April 10, 1947, awards the recovery of $176,245.24, with interest from 1926, to the Rinke Agency Subscribers, as their several shares might be determined. These were the persons who in 1926 put up the funds, amounting to some $600,000, out of which Dickinson and Lloyd withdrew secret profits in breach of their fiduciary duty to those subscribers. The Petroleum Conversion Corporation had not been organized at the time of this breach of faith and its claim was derived from its predecessor corporation for the financial relief of which this fund was subscribed. It will thus be seen that Petroleum Conversion's claims as to the existence of fraud and secret illegal profits were not based upon any depletion of its own treasury, but of a separate fund subscribed, of which it might ultimately be a beneficiary. The repayment of the secret profits was awarded to those who had put up the money of which they had been defrauded and was not awarded to the Corporation. The decree which it now wants to review was entered on motion of Petroleum's own attorney. Its interests and those of the intervening subscriber class were handled by the same attorney at the trial. A single brief and proposed findings of fact and conclusion of law were jointly submitted by Petroleum and and other intervenors to the trial court, which left it to the court, if recovery were allowed, whether the judgment should be in favor of the Corporation or the subscribers. The court decided the recovery belonged to the subscribers. It was deliberately decided not to appeal the court's dismissal of Petroleum's claims under these circumstances. The attorney now seeking to prosecute an appeal sought in March of 1948 to intervene in District Court on behalf of preferred stockholders. He attacked this cooperation between counsel for the two intervenors and particularly the failure of counsel to appeal the April 10, 1947 decree. As to this charge, the trial judge said: 'In-so-far as their petition for leave to intervene is based on the charge that the Corporation's (Petroleum Conversion Corporation) rights in respect to the $176,000 claim have not been fully and honestly presented, the history of this litigation, as set forth in the Court's opinion of October, 1946, and the trial record show that such charge is baseless.' It was in that connection that the trial court suggested that 'In my opinion it was not a final decree and was not appealable, at least in-so-far as it involved the claim for $176,000.' But the time to appeal was then long past and failure to appeal was not influenced by this statement, nor, so far as appears, by any bewilderment as to the finality of the decree. No appeal was prosecuted because counsel who had fought and won the principal issues in the case thought justice had been done by the decree as it stood. After the final decree, counsel, having been thus criticized, filed on September 1, 1948, a notice of appeal from the final decree. This was on behalf of the trustee for Petroleum, which meanwhile was adjudged bankrupt. But the trustee at once laid the inadvisability of the appeal before the bankruptcy court. He advised the court that 'The trustee is satisfied from his investigation that Judge Leibell had sufficient evidence and supporting authorities for finding as he did and believes that an appeal to the Court of Appeals would probably be fruitless.' He pointed out that the attorney who now proposes to prosecute the appeal had objected to its abandonment, but reported that 'The trustee accordingly proposes not to prosecute said appeal and petitions the approval of this court.' Notice was given to all creditors of the Corporation and, 'no creditors having objected to the recommendations of the trustee,' it was approved. It was provided, however, that, if any creditor desired to prosecute the appeal, without liability upon the bankrupt's estate for costs or expenses unless the appeal was successful, he might do so under § 64, sub. a(1) of the Bankruptcy Act, 60 Stat. 330, 11 U.S.C. § 104(a)(1), 11 U.S.C.A. § 104, sub. a(1). Thereafter, permission so to prosecute this appeal was granted. Counsel has also moved to amend both the notice of appeal and the pleadings, without which he claims the appeal might be irreparably prejudiced. What new issues he would raise we cannot learn from the record before us. Some of us are unable to see that this case exemplifies any such injustice in the rule of finality that the practice should be remolded to allow an appeal from either decree in order to save this appellant. The judgment required repayment of money to seventy and more claimants who were defrauded of it in 1926. The purpose of the appellant is to divert this same money recovery through the trusteeship of a bankrupt corporation, where it would be subject to renewed litigation as to how it shall be distributed and to multiple fees. If the rule of finality we apply means that amends for a 1926 fraud shall be concluded as early as 1950, we do not think that condemns the rule as unjust. 6 The parties have not tendered to this Court, and we did not take by certiorari, any issue as to any appeal by Dickinson. What its fate will be if such an appeal is pending we do not know and the record is not compiled to inform us of its merits. Dickinson, we only know, was a party to the original action; not as Petroleum, an intervenor. The last decree of the court, we know too, awarded costs against him which the former decree did not. And it awarded against him money judgments for specific amounts in favor of particular claimants, whereas the earlier decree adjudged only a general liability to a class. The Court of Appeals will be able to deal with any contentions that the Dickinson appeal should be dismissed, and until it has acted, we draw no inferences from obviously incomplete information on unlitigated issues. 1 See, e.g., Judge Frank, dissenting in Clark v. Taylor, 2 Cir., 163 F.2d 940, 944—953. See also Crick, The Final Judgment as a Basis for Appeal, 41 Yale L.J. 539; Note, Finality of Judgments in Appeals From Federal District Courts, 49 Yale L.J. 1476. 2 The corporation was adjudicated bankrupt in August 1948. On September 1, 1948, the temporary receiver (later appointed trustee) filed an appeal from the 1948 decree. Subsequently he refused to prosecute the appeal, but the bankruptcy court accepted his recommendation that creditors be allowed to do so without expense to the estate. By today's decision the creditors of the bankrupt corporation, who were not represented in the trial below, are deprived of their only opportunity to appeal. 3 Paragraph 3 of the 1948 decree reads: 'That the issues reserved in the decree herein dated the 10th day of April, 1947, having been determined by the Court in its decision and opinion and its Findings of Fact and Conclusions of Law filed herein dated the 24th day of July, 1948, the said decree is hereby made final.' 4 The creditors have contended that the interests of the corporation were not adequately represented at the trial because the corporation attorney regarded it as immaterial whether the corporation or Rinke subscribers obtained the recovery. 5 The possible distinctions between finality as to Dickinson and as to Petroleum, listed by the court in footnote 6 of its opinion, seem unsubstantial. That Petroleum entered the cases as an intervenor is immaterial; having litigated its claims and being bound by the judgment, it is just as much a party as Dickinson. The 1948 decree could have awarded costs against Petroleum as easily as against Dickinson, since the 1947 decree expressly reserved the question of costs as to all parties. And the extent of Dickinson's liability, adjudicated in the 1947 decree, was in no way altered by the 1948 decree allocating recovery among the Rinke subscribers. 6 Lloyd's Administrator is listed in the Court of Appeals opinion as 'appellee—appellant.'

89

338 U.S. 537 70 S.Ct. 309 94 L.Ed. 317 UNITED STATES ex rel. KNAUFFv.SHAUGHNESSY. No. 54. Argued Dec. 5, 1949. Decided Jan. 16, 1950. Mr. Gunther Jacobson, New York City, for petitioner. Mr. Philip R. Monahan, Washington, D.C., for respondent. [Argument of Counsel from page 538 intentionally omitted] Mr. Justice MINTON delivered the opinion of the Court. 1 May the United States exclude without hearing, solely upon a finding by the Attorney General that her admission would be prejudicial to the interests of the United States, the alien wife of a citizen who had served honorably in the armed forces of the United States during World War II? The District Court, for the Southern District of New York held that it could, and the Court of Appeals for the Second Circuit affirmed. 173 F.2d 599. We granted certiorari to examine the question especially in the light of the War Brides Act of December 28, 1945, 8 U.S.C.A. § 232 et seq., 336 U.S. 966, 69 S.Ct. 941. 2 Petitioner was born in Germany in 1915. She left Germany and went to Czechoslovakia during the Hitler regime. There she was married and divorced. She went to England in 1939 as a refugee. Thereafter she served with the Royal Air Force efficiently and honorably from January 1, 1943, until May 30, 1946. She then secured civilian employment with the War Department of the United States in Germany. Her work was rated 'very good' and 'excellent.' On February 28, 1948, with the permission of the Commanding General at Frankfurt, Germany, she married Kurt W. Knauff, a naturalized citizen of the United States. He is an honorably discharged United States Army veteran of World War II. He is, as he was at the time of his marriage, a civilian employee of the United States Army at Frankfurt, Germany. 3 On August 14, 1948, petitioner sought to enter the United States to be naturalized. On that day she was temporarily excluded from the United States and detained at Ellis Island. On October 6, 1948, the Assistant Commissioner of Immigration and Naturalization recommended that she be permanently excluded without a hearing on the ground that her admission would be prejudicial to the interests of the United States. On the same day the Attorney General adopted this recommendation and entered a final order of exclusion. To test the right of the Attorney General to exclude her without a hearing for security reasons, habeas corpus proceedings were instituted in the Southern District of New York, based primarily on provisions of the War Brides Act. The District Court dismissed the writ, and the Court of Appeals affirmed. 4 The authority of the Attorney General to order the exclusion of aliens without a hearing flows from the Act of June 21, 1941, amending § 1 of the Act of May 22, 1918, 55 Stat. 252, 22 U.S.C. § 223, 22 U.S.C.A. § 223.1 By the 1941 amendment it was provided that the President might, upon finding that the interests of the United States required it, impose additional restrictions and prohibitions on the entry into and departure of eprsons from the United States during the national emergency proclaimed May 27, 1941. Pursuant to this Act of Congress the President on November 14, 1941, issued Proclamation 2523, 55 Stat. 1696, 3 CFR, 1943 Cum.Supp., 270—272. This proclamation recited that the interests of the United States required the imposition of additional restrictions upon the entry into and departure of persons from the country and authorized the promulgation of regulations jointly by the Secretary of State and the Attorney General. It was also provided that no alien should be permitted to enter the United States if it were found that such entry would be prejudicial to the interest of the United States.2 5 '(a) For any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe * * *.' 6 Pursuant to the authority of this proclamation the Secretary of State and the Attorney General issued regulations governing the entry into and departure of persons from the United States during the national emergency. Subparagraphs (a) to (k) of § 175.53 of these regulations specified the classes of aliens whose entry into the United States was deemed prejudicial to the public interest. Subparagraph (b) of § 175.57 provided that the Attorney General might deny an alien a hearing before a board of inquiry in special cases where he determined that the alien was excludable under the regulations on the basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest.3 7 It was under this regulation § 175.57(b) that petitioner was excluded by the Attorney General and denied a hearing. We are asked to pass upon the validity of this action. 8 At the outset we wish to point out that an alien who seeks admission to this country may not do so under any claim of right. Admission of aliens to the United States is a privilege granted by the sovereign United States Government. Such privilege is granted to an alien only upon such terms as the United States shall prescribe. It must be exercised in accordance with the procedure which the United States provides. Nishimura Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct. 336, 338, 35 L.Ed. 1146; Fong Yue Ting v. United States, 149 U.S. 698, 711, 13 S.Ct. 1016, 1021, 37 L.Ed. 905. 9 Petitioner contends that the 1941 Act and the regulations thereunder are void to the extent that they contain unconstitutional delegations of legislative power. But there is no question of inappropriate delegation of legislative power involved here. The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255; Fong Yue Ting v. United States, 149 U.S. 698, 713, 13 S.Ct. 1016, 1022, 37 L.Ed. 905. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power. 10 Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive officer under such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien. Nishimura Ekiu v. United States, 142 U.S. 651, 659-660, 12 S.Ct. 336, 338, 35 L.Ed. 1146; Fong Yue Ting v. United States, 149 U.S. 698, 713-714, 13 S.Ct. 1016, 1022, 37 L.Ed. 905; Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881. Cf. Yamataya v. Fisher, 189 U.S. 86, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721. Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent. What was said in Lichter v. United States, 334 U.S. 742, 785, 68 S.Ct. 1294, 1316, 92 L.Ed. 1694, is equally appropriate here: 11 'It is not necessary that Congress supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program. * * * Standards prescribed by Congress are to be read in the light of the conditions to which they are to be applied. 'They derive much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear." Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned. Nishimura Ekiu v. United States, supra; Ludecke v. Watkins, supra. 12 In the particular circumstances of the instant case the Attorney General, exercising the discretion entrusted to him by Congress and the President, concluded upon the basis of confidential information that the public interest required that petitioner be denied the privilege of entry into the United States. He denied her a hearing on the matter because, is his judgment, the disclosure of the information on which he based that opinion would itself endanger the public security. 13 We find no substantial merit to petitioner's contention that the regulations were not 'reasonable' as they were required to be by the 1941 Act. We think them reasonable in the circumstances of the period for which they were authorized, namely, the national emergency of World War II. Nor can we agree with petitioner's assertion that Proclamation 2523, see note 2, supra, authorized only the Secretary of State, and not the Attorney General, to order the exclusion of aliens. See Presidential Proclamation 2850 of August 17, 1949, 14 Fed.Reg. 5173, amending and clarifying Proclamation 2523. We reiterate that we are dealing here with a matter of privilege. Petitioner had no vested right of entry which could be the subject of a prohibition against retroactive operation of regulations affecting her status. 14 It is not disputed that the Attorney General's action was pursuant to the 8 CFR regulations heretofore discussed.4 However, 22 U.S.C. §§ 223, 22 U.S.C.A. § 223,5 authorizes these special restrictions on the entry of aliens only when the United States is at war or during the existence of the national emergency proclaimed May 27, 1941, No. 2487, 50 U.S.C.A.Appendix note preceding section 1.6 For ordinary times Congress has provided aliens with a hearing. 8 U.S.C. §§ 152, 153, 8 U.S.C.A. §§ 152, 153. And the contention of petitioner is that she is entitled to the statutory hearing because for purposes of the War Brides Act, within which she comes, the war terminated when the President proclaimed the cessation of hostilities.7 She contends that the War Brides Act, applicable portions of which are set out in the margin,8 discloses a congressional intent that special restrictions on the entry of aliens should cease to apply to war brides upon the cessation of hostilities. 15 The War Brides Act provides that World War II is the period from December 7, 1941, until the proclaimed termination of hostilities. This has nothing to do with the period for which the regulations here acted under were authorized. The beginning and end of the war are defined by the War Brides Act, we assume, for the purpose of ascertaining the period within which citizens must have served in the armed forces in order for their spouses and children to be entitled to the benefits of the Act. The special procedure followed in this case was authorized not only during the period of actual hostilities but during the entire war and the national emergency proclaimed May 27, 1941. The national emergency has never been terminated. Indeed, a state of war still exists. See Woods v. Cloyd W. Miller Co., 333 U.S. 138, Note 3, 68 S.Ct. 421, 422, 92 L.Ed. 596. Thus, the authority upon which the Attorney General acted remains in force. The Act of June 21, 1941, and the President's proclamations and the regulations thereunder are still a part of the immigration laws. 16 The War Brides Act does not relieve petitioner of her alien status. Indeed, she sought admission in order to be naturalized and thus to overcome her alien status. The Act relieved her of certain physical, mental, and documentary requirements and of the quota provisions of the immigration laws. But she must, as the Act requires, still be 'otherwise admissible under the immigration laws'. In other words, aside from the enumerated relaxations of the immigration laws she must be treated as any other alien seeking admission. Under the immigration laws and regulations applicable to all aliens seeking entry into the United States during the national emergency, she was excluded by the Attorney General without a hearing. In such a case we have no authority to retry the determination of the Attorney General. Ludecke v. Watkins, 335 U.S. 160, 171—172, 68 S.Ct. 1429, 1434—1435, 92 L.Ed. 1881. 17 There is nothing in the War Brides Act or its legislative history9 to indicate that it was the purpose of Congress, by partially suspending compliance with certain requirements and the quota provisions of the immigration laws, to relax the security provisions of the immigration laws. There is no indication that Congress intended to permit members or former members of the armed forces to marry and bring into the United States aliens who the President, acting through the Attorney General in the performance of his sworn duty, found should be denied entry for security reasons. As all other aliens, petitioner had to stand the test of security. This she failed to meet. We find no legal defect in the manner of petitioner's exclusion, and the judgment is affirmed. 18 Affirmed. 19 Mr. Justice DOUGLAS and Mr. Justice CLARK took no part in the consideration or decision of this case. 20 Mr. Justice FRANKFURTER, dissenting. 21 If the essence of statutory construction is to find the thought beneath the words, the views expressed by Mr. Justice JACKSON, in which I fully concur, enforce the purpose of Congress. The contrary conclusion substantially frustrates it. 22 Seventy years ago began the policy of excluding mentally defective aliens from admission into the United States. Thirty years ago it became our settled policy to admit even the most desirable aliens only in accordance with the quota system. By the so-called War Brides Act Congress made inroads upon both these deeply-rooted policies. Act of December 28, 1945, 59 Stat. 659, 8 U.S.C. § 232 et seq., 8 U.S.C.A. § 232 et seq. It lifted the bar against the exclusion even of 'physically and mentally defective aliens.' It did this in favor of 'alien spouses and alien minor children of citizen members who are serving or have served honorably in the armed forces of the United States during World War II.' H.R.Rep.No.1320 and S.Rep.No.860, 79th Cong., 1st Sess. (1945). 23 This was a bounty afforded by Congress not to the alien who had become the wife of an American but to the citizen who had honorably served his country. Congress gave this bounty even though a physically or mentally defective person might thereby be added to the population of the United States. Yet it is suggested that the deepest tie that an American soldier could form may be secretly severed on the mere say-so of an official, however well-intentioned. Although five minutes of cross-examination could enable the soldier-husband to dissipate seemingly convincing information affecting the security danger of his wife, that opportunity need not be accorded. And all this, because of the literal reading of the provision of the War Brides Act that the alien spouse, though physically and mentally defective, is to be allowed to join her citizen husband 'if otherwise admissible under the immigration laws'. Upon that phrase is rested the whole structure of Executive regulation based on § 1 of the Act of May 22, 1918, 40 Stat. 559, as amended by the Act of June 21, 1941, 55 Stat. 252, 22 U.S.C. § 223, 22 U.S.C.A. § 223, regarding the summary exclusion, without opportunity for a hearing, of an alien whose entry the Attorney General finds inimical to the public interest.1 24 This is not the way to read such legislation. It is true also of Acts of Congress that 'The letter Killeth.' Legislation should not be read in such a decimating spirit unless the letter of Congress is inexorable. We are reminded from time to time that in enacting legislation Congress is not engaged in a scientific process which takes account of every contingency. Its laws are not to be read as though every i has to be dotted and every t crossed. The War Brides Act is legislation derived from the dominant regard which American society places upon the family. It is not to be assumed that Congress gave with a bountiful hand but allowed its bounty arbitrarily to be taken away. In framing and passing the War Brides Act, Congress was preoccupied with opening the door to wives acquired by American husbands during service in foreign lands. It opened the door on essentials—wives of American soldiers and perchance mothers of their children were not to run the gauntlet of administrative discretion in determining their physical and mental condition, and were to be deemed nonquota immigrants. Congress ought not to be made to appear to require that they incur the greater hazards of an informer's tale without any opportunity for its refutation, especially since considerations of national security, insofar as they are pertinent, can be amply protected by a hearing in camera. Compare Rule 46 of the Rules of Practice for Admiralty Courts during World War II, 316 U.S. 717; 328 U.S. 882, and see Haydock, Some Evidentiary Problems Posed by Atomic Energy Security Requirements, 61 Harv.L.Rev. 468, 482—83 (1948). An alien's opportunity of entry into the United States is of course a privilege which Congress may grant or withhold. But the crux of the problem before us is whether Congress, having extended the privilege for the benefit not of the alien but of her American husband, left wide open the opportunity ruthlessly to take away what it gave. 25 A regulation permitting such exclusion by the Attorney General's fiat—in the nature of things that high functionary must largely act on dossiers prepared by others—in the case of an alien claiming entry on his own account is one thing. To construe such regulation to be authorized and to apply in the case of the wife of an honorably discharged American soldier is quite another thing. Had Congress spoken explicitly we would have to bow to it. Such a substantial contradiction of the congressional beneficence which is at the heart of the War Brides Act ought not to be attributed to Congress by a process of elaborate implication. Especially is this to be avoided when to do so charges Congress with an obviously harsh purpose. Due regard for the whole body of immigration laws and policies makes it singularly appropriate in construing the War Brides Act to be heedful of the admonition that 'The letter killeth.' 26 Mr. Justice JACKSON, whom Mr. Justice BLACK and Mr. Justice FRANKFURTER join, dissenting. 27 I do not question the constitutional power of Congress to authorize immigration authorities to turn back from our gates any alien or class of aliens. But I do not find that Congress has authorized an abrupt and brutal exclusion of the wife of an American citizen without a hearing. 28 Congress held out a promise of liberalized admission to alien brides, taken unto themselves by men serving in or honorably discharged from our armed services abroad, as the Act, set forth in the Court's opinion, indicates. The petitioning husband is honorably discharged and remained in Germany as a civilian employee. Our military authorities abroad required their permission before marriage. The Army in Germany is not without a vigilant and security-conscious intelligence service. This woman was employed by our European Command and her record is not only without blemish, but is highly praised by her superiors. The marriage of this alien woman to this veteran was approved by the Commanding General at Frankfurt-on-Main. 29 Now this American citizen is told he cannot bring his wife to the United States, but he will not be told why. He must abandon his bride to live in his own country or forsake his country to live with his bride. 30 So he went to court and sought a writ of habeas corpus, which we never tire of citing to Europe as the unanswerable evidence that our free country permits no arbitrary official detention. And the Government tells the Court that not even a court can find out why the girl is excluded. But it says we must find that Congress authorized this treatment of war brides and, even if we cannot get any reasons for it, we must say it is legal; security requires it. 31 Security is like liberty in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl's admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern. In the name of security the police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings. The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected. Cf. In re Oliver, 333 U.S. 257, 268, 68 S.Ct. 499, 505, 92 L.Ed. 682. 32 I am sure the officials here have acted from a sense of duty, with full belief in their lawful power, and no doubt upon information which, if it stood the test of trial, would justify the order of exclusion. But not even they know whether it would stand this test. And anyway, as I have said before, personal confidence in the officials involved does not excuse a judge for sanctioning a procedure that is dangerously wrong in principle. Dissent in Bowles v. United States, 319 U.S. 33, 37, 63 S.Ct. 912, 914, 87 L.Ed. 1194. 33 Congress will have to use more explicit language than any yet cited before I will agree that it has authorized an administrative officer to break up the family of an American citizen or force him to keep his wife by becoming an exile. Likewise, it will have to be much more explicit before I can agree that it authorized a finding of serious misconduct against the wife of an American citizen without notice of charges, evidence of guilt and a chance to meet it. 34 I should direct the Attorney General either to produce his evidence justifying exclusion or to admit Mrs. Knauff to the country. 1 'When the United States is at war or during the existence of the national emergency proclaimed by the President on May 27, 1941, or as to aliens whenever there exists a state of war between, or among, two or more states, and the President shall find that the interests of the United States require that restrictions and prohibitions in addition to those provided otherwise than by this Act be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful— 2 '(3) After the effective date of the rules and regulations hereinafter authorized, no alien shall enter or attempt to enter the United States unless he is in possession of a valid unexpired permit to enter issued by the Secretary of State, or by an appropriate officer designated by the Secretary of State, or is exempted from obtaining a permit to enter in accordance with the rules and regulations which the Secretary of State, with the concurrence of the Attorney General, is hereby authorized to prescribe in execution of these rules, regulations, and orders. 'No alien shall be permitted to enter the United States if it appears to the satisfaction of the Secretary of State that such entry would be prejudicial to the interests of the United States as provided in the rules and regulations hereinbefore authorized to be prescribed by the Secretary of State, with the concurrence of the Attorney General.' 3 CFR, 1943 Cum.Supp., 271. 3 'In the case of an alien temporarily excluded by an official of the Department of Justice on the ground that he is, or may be excludable under one or more of the categories set forth in § 175.53, no hearing by a board of special inquiry shall be held until after the case is reported to the Attorney General and such a hearing is directed by the Attorney General or his representative. In any special case the alien may be denied a hearing before a board of special inquiry and an appeal from the decision of that board if the Attorney General determines that he is excludable under one of the categories set forth in § 175.53 on the basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest.' 8 CFR, 1945 Supp., § 175.57(b). 4 See note 3, supra. 5 See note 1, supra. 6 And at certain other times not material here. 7 Proclamation 2714 of December 31, 1946, 50 U.S.C.A.Appendix, § 601 note, 3 CFR, 1946 Supp., 77. 8 'That notwithstanding any of the several clauses of section 3 of the Act of February 5, 1917, excluding physically and mentally defective aliens, and notwithstanding the documentary requirements of any of the immigration laws or regulations, Executive orders, or Presidential proclamations issued thereunder, alien spouses or alien children of United States citizens serving in, or having an honorable discharge certificate from the armed forces of the United States during the Second World War shall, if otherwise admissible under the immigration laws and if application for admission is made within three years of the effective date of this Act, be admitted to the United States * * *. 'Sec. 2. Regardless of section 9 of the Immigration Act of 1924, any alien admitted under section 1 of this Act shall be deemed to be a nonquota immigrant as defined in section 4(a) of the Immigration Act of 1924. 'Sec. 5. For the purpose of this Act, the Second World War shall be deemed to have commenced on December 7, 1941, and to have ceased upon the termination of hostilities as declared by the President or by a joint resolution of Congress.' 59 Stat. 659, 8 U.S.C. §§ 232—236, 8 U.S.C.A. §§ 232—236. 9 See H.R.Rep. No. 1320, 79th Cong., 1st Sess. (1945); S.Rep. No. 860, 79th Cong., 1st Sess. (1945); 91 Cong.Rec. 11738, 12342 (1945). 1 The Attorney General is to act on information that satisfies him, but not only is there no opportunity for a hearing, but the Attorney General can lock in his own bosom the evidence that does satisfy him. 8 C.F.R. §§ 175.53, 175.57 (1949).

23

338 U.S. 552 70 S.Ct. 317 94 L.Ed. 335 BRYANv.UNITED STATES. No. 178. Argued Dec. 13—14, 1949. Decided Jan. 16, 1950. Rehearing Denied Feb. 13, 1950. See 338 U.S. 957, 70 S.Ct. 491. Mr. Carl J. Batter, Washington, D.C., for petitioner. Miss Melva M. Graney, Washington, D.C., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 The important question presented upon this record is whether the Court of Appeals, when it reverses the District Court because the evidence is not sufficient to sustain a conviction, may direct a new trial where a defendant had made all proper and timely motions for acquittal in the District Court. 2 Petitioner was convicted upon two counts of an attempt to evade the income-tax laws and sentenced to two years' imprisonment on one count and to pay a fine of ten thousand dollars on the other. At the close of the Government's case petitioner moved for a judgment of acquittal, and the motion was renewed at the conclusion of all the evidence. A verdict of guilty was returned, and within five days petitioner made a further motion for judgment of acquittal or in the alternative for a new trial. These motions were all denied. On appeal to the Court of Appeals, the judgment was reversed because the evidence was insufficient to sustain the verdict. 175 F.2d 223. The Court of Appeals remanded with directions to the District Court to grant a new trial. Petitioner moved the Court of Appeals to amend the judgment to 'conform to Rule 29(a) of Federal Rules of Criminal Procedure (18 U.S.C.A.),' alleging that a judgment of acquittal should have been entered. This motion was denied. 3 We granted certiorari to examine the power of the Court of Appeals to grant a new trial under the circumstances of this case. 338 U.S. 813, 70 S.Ct. 69. 4 The extent of the power of federal appellate courts to enter judgment when reversing and remanding cases arising in the lower federal courts has been defined by statutes from the inception of our system of courts. By the Judiciary Act of September 24, 1789, 1 Stat. 85, the Supreme Court was given statutory authority, upon review of a District Court judgment, to order such further proceedings 'as the district court should have rendered or passed.' See Ballew v. United States, 160 U.S. 187, 198—199, 16 S.Ct. 263, 40 L.Ed. 388. In 1872 power was given this Court to 'direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the inferior court as the justice of the case may require.' 17 Stat. 196—97. Our authority to render judgment 'as the justice of the case may require' was continued in those terms until the revision of the Judicial Code in 1948. R.S. § 701, Old Title 28 U.S.C. § 876. This authority was exercised by remanding for a new trial where, on writ of error to a District Court, the judgment was reversed on the ground that the evidence was not sufficient to sustain the verdict. Wiborg v. United States, 163 U.S. 632, 16 S.Ct. 1127, 41 L.Ed. 289. Likewise in Clyatt v. United States, 197 U.S. 207, 25 S.Ct. 429, 49 L.Ed. 726, on writ of certiorari to the Court of Appeals for the Fifth Circuit, a new trial was directed where the evidence was held to be insufficient to sustain the conviction. On a similar ground this Court reversed a judgment and directed that the defendants be discharged. France v. United States, 164 U.S. 676, 17 S.Ct. 219, 41 L.Ed. 595. 5 The authority and practice of the Courts of Appeals have been roughly parallel to those of this Court. When the Circuit Courts of Appeals were established in 1891, it was provided that upon reversal by such courts the 'cause shall be remanded to the * * * district court for further proceedings to be there taken in pursuance of such determination.' 26 Stat. 829, 28 U.S.C. § 877.1 Under this provision the Circuit Courts of Appeals have reversed for insufficiency of the evidence to sustain the verdict and remanded for a new trial in numerous cases, although a verdict should have been directed for the defendant by the District Court. First Circuit: Enrique Rivera v. United States, 57 F.2d 816; Third Circuit: United States v. Di Genova, 134 F.2d 466; United States v. Russo, 123 F.2d 420; Ridenour v. United States, 14 F.2d 888; Eithth Circuit: Pines v. United States, 123 F.2d 825; Scoggins v. United States, 255 F. 825, 3 A.L.R. 1093; Ninth Circuit: Buhler v. United States, 33 F.2d 382; Tenth Circuit: Leslie v. United States, 43 F.2d 288. Under the same statutory authority2 several Circuit Courts of Appeals have directed the discharge of the defendant or the dismissal of the indictment when reversing for insufficiency of the evidence. Second Circuit: United States v. Bonanzi, 94 F.2d 570; Romano v. United States, 9 F.2d 522; Sixth Circuit: Cemonte v. United States, 89 F.2d 362; Ninth Circuit: Klee v. United States, 53 F.2d 58. Since the Federal Rules of Criminal Procedure went into effect on March 21, 1946, three Circuit Courts of Appeals have entered a judgment of acquittal upon reversing for insufficiency of the evidence, relying at least in part on Rule 29.3 Third Circuit: United States v. Bozza, 155 F. 2d 592; United States v. Renee Ice Cream Co., 160 F.2d 353; Seventh Circuit: United States v. Gardner, 171 F.2d 753; Ninth Circuit: Karn v. United States, 158 F.2d 568.4 6 When the Judicial Code was revised in 1948 the provisions of § 876 and § 877 relating to the power of this Court and that of the Courts of Appeals on remand were dovetailed into a single section, 28 U.S.C. § 2106, 28 U.S.C.A. § 2106,5 providing: 7 'The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.' Under this statute for the first time the power of the Supreme Court and the Courts of Appeals to enter judgment when remanding a case to the lower court is set out in identical language in a single section. That coextensive power is to direct 'such appropriate judgment * * * as may be just under the circumstances.' This language is at least as broad as the provisions of § 876 and § 877. As detailed above, this Court and the Courts of Appeals directed new trials as a matter of course under those sections. 8 It is petitioner's position that this previous authority has been abrogated by the advent of the Federal Rules of Criminal Procedure, especially Rule 29(a) and (b).6 Petitioner argues that the Court of Appeals must give the judgment that the trial court would have been required to award had it ruled correctly. Since the Government failed to make out a prima facie case, he claims that he is entitled to a judgment of acquittal because the trial court is required by Rule 29 to enter such judgment on proper motion where it finds the evidence insufficient to sustain a verdict. Petitioner contends in the alternative that Rule 29 applies to the Courts of Appeals, and that the Court of Appeals was itself compelled by the Rule to give a judgment of acquittal when it decided that the evidence was insufficient to sustain the conviction. 9 The Rules are entitled 'Rules of Criminal Procedure for the District Courts of the United States.' Rule 1 defines their scope, stating that 'These rules govern the procedure in the courts of the United States.' The Courts of Appeals are included in the list of courts specified in Rule 54(a)(1) to which the Rules are to apply. It is obvious, nevertheless, that some of the rules are relevant only to preliminary proceedings or to procedure prior to appeal. In our opinion Rule 29 is such a Rule, referring solely to the conduct of trials in the District Courts. It is there that the motion for judgment of acquittal is made. It is the office of the trial court to rule on the motion. We hold that the 'court' referred to in Rule 29 is the District Court. Consequently the Rule does not affect, either to add to or to detract from, the power of Courts of Appeals when remanding a case to the District Court. 10 Of course the Court of Appeals must determine whether the Rule has been observed by the District Court. If it finds that the District Court has erred and has not properly applied the Rule, that is an error of law for which the Court of Appeals may reverse and remand. But when the Court of Appeals remands, Rule 29 does not control its directions to the District Court. The Court of Appeals must look to the statute defining its appellate power, 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, for guidance as to the kind of order which it may direct the District Court to enter. 11 We thus reach the question of whether the direction of a new trial by the Court of Appeals was an 'appropriate' judgment which was 'just' under the circumstances and therefore authorized by § 2106, or whether, as petitioner contends, it was mandatory that the Court of Appeals enter a judgment of acquittal. Whether the direction of a judgment of acquittal or a remand to the District Court without direction by the Court of Appeals would meet those requirements is not before us. 12 As previously stated, the Courts of Appeals had often directed a new trial prior to the enactment of § 2106. The Court of Appeals apparently believed that justice was served by the granting of a new trial in this case. On the motion to amend its order of remand the court stated (175 F.2d 229): 'The majority thinking the defect in the evidence might be supplied on another trial directed that it be had.' And one judge vigorously dissented from the original opinion because he thought that the evidence amply supported the verdict. 13 A new trial was one of the remedies which petitioner sought. He properly gave the District Court an opportunity after verdict to correct its error in failing to sustain his motion for judgment of acquittal at the conclusion of all the evidence, which claimed error was assigned as a ground for a new trial. We agree that on this record the order for a new trial was a just and appropriate judgment which the Court of Appeals was authorized to enter by 28 U.S.C. § 2106, 28 U.S.C.A. § 2106. 14 Petitioner's contention that to require him to stand trial again would be to place him twice in jeopardy is not persuasive. He sought and obtained the reversal of his conviction, assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal. '* * * where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial.' Francis v. Resweber, 329 U.S. 459, 462, 67 S.Ct. 374, 375, 91 L.Ed. 422. See Trono v. United States, 199 U.S. 521, 533 534, 26 S.Ct. 121, 124, 50 L.Ed. 292, a Ann.Cas. 773. The judgment of the Court of Appeals is 15 Affirmed. 16 Mr. Justice BLACK and Mr. Justice REED would affirm with a modification of the judgment to remand to the District Court to decide whether a judgment of acquittal should be entered or a new trial ordered. In their opinion 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, means that the order of an appellate court should be conformable to specific legal limitations. In this case such a limitation is found in Criminal Rule 29. Under that rule the determination as to whether to grant a new trial or to acquit rests with the District Court. See Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849. 17 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 The succeeding section provided that existing methods of review should regulate the system of appeals and writs of error in the Circuit Courts of Appeals and that the judges of the new courts were to have 'the same powers and duties as to the allowance of appeals or writs of error, and the conditions of such allowance, as now by law belong to the justices or judges in respect of the existing courts of the United States * * *.' 26 Stat. 829, § 11. Although in terms this latter section dealt only with the conditions under which appeals or writs of error would be permitted, it was construed by some courts as making 28 U.S.C. § 876, relating to the appellate power of the Supreme Court, applicable to the Circuit Courts of Appeals. Farrar v. Wheeler, 1 Cir., 145 F. 482, 486—87; Whitworth v. United States, 8 Cir., 114 F. 302, 305; Standard Elevator Co. v. Crane Elevator Co., 76 F. 767, 775. Cf. Realty Acceptance Corp. v. Montgomery, 284 U.S. 547, 550, 52 S.Ct. 215, 216, 76 L.Ed. 518; Ballew v. United States, 160 U.S. 187, 201—202, 16 S.Ct. 263, 268—269, 40 L.Ed. 388; Equitable Life Assur. Soc. v. Mercantile Commerce Bank & Trust Co., 8 Cir., 143 F.2d 397, 405; United States v. Illinois Surety Co., 7 Cir., 226 F. 653, 664. 2 Section 877 authorized the Supreme Court on direct appeal or otherwise from the District Court to order the cause remanded to the proper District Court for 'further proceedings to be taken in pursuance of such determination.' On appeal or otherwise to the Supreme Court from the Circuit Courts of Appeals, after review and determination, the cause 'shall be remanded by the Supreme Court to the proper district court for further proceedings in pursuance of such determination.' On appeal or otherwise in a cause coming to the Circuit Court of Appeals from the District Court for review and determination, in which the decision of the Circuit Court of Appeals is final, 'such cause shall be remanded to the said district court for further proceedings to be there taken in pursuance of such determination.' It may be noted that the language giving authority to the Supreme Court to remand a proceeding brought to the Court from the Circuit Court of Appeals did not contain the words 'to be taken' as in the case of the direct proceedings from the District Court. In proceedings from the District Court to the Circuit Court of Appeals, the language was still different. There the remand was 'for further proceedings to be there taken in pursuance of such determination.' We have found no case which has noticed this discrepant language, although in the same section. 3 'Rule 29. Motion for Acquittal. '(a) Motion for Judgment of Acquittal. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right. '(b) Reservation of Decision on Motion. If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the motion is denied and the case is submitted to the jury, the motion may be renewed within 5 days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned the court may on such motion set aside the verdict and order a new trial or enter judgment of acquittal. If no verdict is returned the court may order a new trial or enter judgment of acquittal.' 327 U.S. 853, 18 U.S.C.A. 4 In the instant case the Court of Appeals for the Fifth Circuit discussed but did not decide the applicability of Rule 29 to its judgments. The court was of the opinion that if the Rule applied it authorized the court's direction of a new trial. 5 28 U.S.C. § 344, relevant to review of cases from state courts by the Supreme Court, was also incorporated in § 2106. 6 See note 3, supra.

01

338 U.S. 665 70 S.Ct. 413 94 L.Ed. 439 NEW JERSEY REALTY TITLE INS. CO.v.DIVISION OF TAX APPEALS IN DEPARTMENT OF TAXATION AND FINANCE OF NEW JERSEY etal. No. 147. Argued Dec. 13, 1949. Decided Feb. 6, 1950. Mr. Walter Gordon Merritt, New York City, for appellant. Mr. Vincent J. Casale, Newark, N.J., for appellees. Mr. Justice CLARK delivered the opinion of the Court. 1 A taxing district of New Jersey has levied against the intangible personal property of a domestic corporation an assessment for the taxable year 1945 in the amount of 15 per cent of the taxpayer's paid-up capital and surplus, computed without deducting the principal amount of certain United States bonds and accrued interest thereon. This appeal challenges the validity of the assessment and of the tax statute under which it was levied, on the ground of conflict with Art. I, § 8 of the Federal Constitution, by which Congress is authorized 'To borrow Money on the credit of the United States,' and with § 3701 of the Revised Statutes (1875), 31 U.S.C. § 742, 31 U.S.C.A. § 742, which generally exempts interest-bearing obligations of the United States from state and local taxation. 2 The assessment in question was levied under § 54:4—22 of the Revised Statutes of New Jersey (1937), as amended by Laws of 1938, c. 245, N.J.S.A.1 N.J.Rev.Stat.Cum.Supp., Laws of 1938, 1939, 1940, § 54:4—22. That section provided as follows: 3 'Every stock insurance company organized under the laws of this State, other than a life insurance company, shall be assessed and taxed in the taxing district where its office is situated, upon the full amount or value of its property (exclusive of real estate and tangible personal property, which shall be separately assessed and taxed where the same is located, and exclusive of all shares of stock owned by such insurance company and exclusive of nontaxable property and of property exempt from taxation), deducting from such amount or value all debts and liabilities certain and definite as to obligation and amount, and the full amount of all reserves for taxes, and such proportion of the reserves for unearned premiums, losses and other liabilities as the full amount or value of its taxable intangible property bears to the full amount or value of all its intangible property; provided, however, the assessment against the intangible personal property of any stock insurance company subject to the provisions of this section shall in no event be less than fifteen per centum of the sum of the paid-up capital and the surplus in excess of the total of all liabilities of such company, as the same are stated in the annual statement of such company for the calendar year next proceding the date of such assessment and filed with the Department of Banking and Insurance of the State of New Jersey, after deducting from such total of capital and surplus the amount of all tax assessments against any and all real estate, title to which stands in the name of such company. 4 'The capital stock in any such company shall not be regarded for the purposes of this act (section) as a liability and no part of the amount thereof shall be deducted, and the person or persons or corporations holding the capital stock of such company shall not be assessed or taxed therefor. No franchise tax shall be imposed upon any insurance company included in this section.' (Italics added.)2 5 A corporation subject to this section was taxable at the rate of the local taxing district. 6 Appellant is New Jersey Realty Title Insurance Company, a stock insurance company of New Jersey with its office in the City and taxing district of Newark, County of Essex, New Jersey. For the year 1945 the City of Newark levied an assessment of $75,700 on appellant's intangible personal property and collected from it a tax of $3,906.12 computed thereon. 7 Appellant had filed a return3 based on its balance sheet at the close of business September 30, 1944, showing total assets of $774,972.98, the entirety of which was declared to be intangibles. In calculating its 'total taxable intangibles' appellant deducted the following from its total assets: United States Treasury Bonds of the face amount of $450,000; accrued interest thereon in the amount of $1,682.25; and other nontaxable or exempt property valued at $318,771.95. The aggregate amount of the property thus excluded was $770,454.20. The remainder, $4,518.78, was entered on the return as the total taxable intangibles. From this amount appellant deducted: $25,756.63 as 'debts and liabilities certain'; $28,175.46 as 'reserves for taxes'; and $758.13 as 'proportion of loss and premium.' There is no disagreement with these computations. As observed by the highest court below, these deductions 'left no balance of assessable property subject to tax.' 8 The taxing district therefore assessed appellant's property under the proviso in § 54:4—22 which directed an assessment of not less than 15 per cent of 'the sum of the paid-up capital and the surplus in excess of the total of all liabilities' of appellant as shown by its annual statement for the preceding calendar year filed with the state department of banking and insurance. The manner of computation of the assessment is not explicit in the record. Moreover, the opinion of the highest court of New Jersey is subject to several interpretations as to the proper method of computing the assessment. The court stated that the assessment 'may not be less in amount than 15 percent of the paid-up capital and surplus as defined by the statute.' (64 A.2d 341, 344). (Italics added.) If by the phrase 'as defined by the statute,' the court referred to the language of the proviso in § 54:4—22, 'paid-up capital and the surplus in excess of the total of all liabilities' (italics added), it would seem necessary to deduct liabilities from capital and surplus in determining the basis for the 15 per cent computation. The basis of computation would then be $496,999.70,4 and the 15 per cent sum, $74,549.95. The court subsequently stated that 'The assessment may equal or exceed 15 percent of the paid-up capital and surplus, and does not necessarily have to be precisely the same, but * * * can not be less in amount than 15 percent of the paid-up capital and surplus.' Such references to 'paid-up capital and surplus,' together with the court's characterization of the tax as laid on net worth, suggest that the assessment is computed against appellant's net worth of $547,462.93. On this basis, however, the 15 per cent sum would have been not less than $82,119.43, and the present assessment of less amount would not satisfy the court's interpretation of the statute as requiring a levy of not less than 15 per cent. For our disposition of this case, however, it is unnecessary to choose between these conflicting interpretations of the opinion of the court below. 9 Clearly the State of New Jersey has negatived any purpose to authorize a tax assessment against the appellant's United States bonds. The court below conceded that the securities involved were, at the time of the assessment, exempt from state, municipal or local taxation. It is equally clear, however, that in the computation of the assessment the face value of appellant's government bonds, together with the interest thereon, was in fact included.5 10 Contending that § 54:4—22 as thus applied contravenes paramount federal provisions, appellant sought cancellation of the assessment of appeal to the Division of Tax Appeals in the Department of Taxation and Finance of New Jersey. The Division's opinion recommending dismissal referred to the proceeding as 'a personal property appeal.' Its order of dismissal was reversed by the former New Jersey Supreme Court on writ of certiorari. 137 N.J.L. 444, 60 A.2d 265. That court viewed the levy as an ad valorem tax on personalty; after concluding that the tax would be valid only if the bonds and interest were excluded from the computation, the court construed the tax statute as requiring such exclusion. This ruling was reversed by the Supreme Court of New Jersey as established under the present Constitution of the State. 1 N.J. 496, 64 A.2d 341. The highest court of the state declared that the assessment was 'against the intangible property' but 'concluded that the tax levied * * * is not an ad valorem tax or property tax but rather is a * * * tax upon the net worth of the company.' It held that such a tax, having been imposed without discrimination, was constitutionally permissible. From this decision the present appeal was taken. We noted probable jurisdiction, 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). 11 The assessment must fall as in conflict with § 3701 of the Revised Statutes, providing that 'All stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local authority.' If we consider the assessment as a 15 per cent levy either against capital and surplus less liabilities or against entire net worth, we take as guides to our application of § 3701 the decisions of this Court on the related constitutional question of immunity in Bank of Commerce v. New York City, 1863, 2 Black 620, 17 L.Ed. 451, and the Bank Tax Case, 1865, 2 Wall. 200, 17 L.Ed. 793, which considered assessments under state taxing provisions not substantially distinguishable from New Jersey's § 54:4—22 as thus applied. The Bank of Commerce case involved an assessment levied upon the actual value of the capital stock, less the value of real estate, of a corporate taxpayer which had invested in United States securities all of its assets other than its realty. In holding the tax invalid as an interference with the federal borrowing power, the Court rejected the contention that the assessment should be sustained as a levy upon corporate capital represented by federal securities. In the Bank Tax Case this Court considered assessments levied against 'the amount of * * * capital stock paid in or secured to be paid in, and * * * surplus earnings' of banking corporations which had invested all or a large part of their capital in government securities. As against the contention that this Court should regard as conclusive the state court's characterization of the tax as one laid on capital and surplus, it was held that the assessments were unconstitutional. The Court observed that 'when the capital * * * thus invested is made the basis of taxation of the institutions, there is great difficulty in saying that it is not the stock thus constituting the corpus or body of the capital that is taxed. It is not easy to separate the property in which the capital is invested from the capital itself. * * * The legislature * * * when providing for a tax on * * * capital at a valuation * * * could not but have intended a tax upon the property in which the capital had been invested. * * * such is the practical effect of the tax * * *.' 2 Wall. at pages 208—209. 12 And in Bank v. Supervisors, 1869, 7 Wall. 26, 19 L.Ed. 60, it was held that certain issues of United States notes were exempt from assessment under the statute considered in the Bank Tax Case, supra, in view of a congressional provision, which foreshadowed § 3701, that United States securities 'shall be exempt from taxation by or under State authority.' 12 Stat. 346. And see Farmers' & Mechanics' Savings Bank of Minneapolis, Minnesota v. Minnesota, 1914, 232 U.S. 516, 528, 34 S.Ct. 354, 357, 58 L.Ed. 706; Home Savings Bank v. City of Des Moines, 1907, 205 U.S. 503, 512—513, 27 S.Ct. 571, 573, 51 L.Ed. 901. 13 It matters not whether the tax is, as appellee contends, an indirect or excise levy on net worth measured by corporate capital and surplus or is, as appellant urges, a tax on personal property based on a valuation gauged by capital and surplus. Our inquiry is narrowed to whether in practical operation and effect the tax is in part a tax upon federal bonds. We can only conclude that the tax authorized by § 54:4—22, whether levied against capital and surplus less liabilities or against entire net worth, is imposed on such securities regardless of the accounting label employed in describing it. 14 The court below, describing the tax as levied on net worth and indirectly on capital and surplus measured in part by tax-exempt property, held it valid on the authority of Tradesmens Nat'l Bank of Oklahoma City v. Oklahoma Tax Comm'n, 1940, 309 U.S. 560, 60 S.Ct. 688, 84 L.Ed. 947, and Educational Films Corp. of America v. Ward, 1931, 282 U.S. 379, 51 S.Ct. 170, 75 L.Ed. 500, 71 A.L.R. 1226. The decision in the Tradesmens Bank case does not bear upon the present controversy. There the Court upheld a state tax statute adopted pursuant to an act of Congress authorizing state taxation of national banks. Moreover, the tax there considered, as well as that under scrutiny in the Educational Films Corp. case, was not measured in effect by the amount of the taxpayer's federal securities or interest but was a franchise tax measured by net income.6 The section here in question was not considered as imposing a tax on privilege or franchise by either the New Jersey Legislature7 or the taxing officials8 or by any of the courts below.9 While we are not limited by the State's characterization of its tax, cf. State of Wisconsin v. J. C. Penney Co., 1940, 311 U.S. 435, 443, 61 S.Ct. 246, 249, 85 L.Ed. 267, 130 A.L.R. 1229, we likewise do not think the assessment can be sustained as one levied on a corporate franchise. In considering the similar tax on capital and earned surplus under review in the Bank Tax Case, supra, this Court declared that the levy was 'imposed on the property of the institutions, as contradistinguished from a tax upon their privileges or franchises.' 2 Wall. at page 209. 15 If the assessment is considered to be 15 per cent of capital and surplus less liabilities or of entire net worth, we agree with the court below that the tax levied under § 54:4—22 does not impose a discriminatory burden on federal issues as did the tax statute against which § 3701 was invoked in State ex rel. Missouri Ins. Co. v. Gehner, 1930, 281 U.S. 313, 50 S.Ct. 326, 74 L.Ed. 870. But since the decision in Bank of Commerce v. New York City, supra, it has been understood that a tax on corporate capital measured by federal securities may be invalid even though imposed without discrimination against federal obligations. 16 If, however, the assessment of $75,700 is viewed as if it were levied exclusively upon appellant's net worth remaining after deduction of government bonds and interest, the assessment would be discriminatory since it would be levied at the rate of over 79 per cent of appellant's assessable valuation of $94,936.87 rather than at the rate of 15 per cent prescribed by § 54:4—22. Such increased rate of assessment would result solely from appellant's ownership of federal issues. In the Gehner case, supra, this Court held that § 3701 was offended by a computation which allowed deduction of the full amount of the taxpayer's federal bonds yet at the same time pared down the net value of other allowable exemptions, to the taxpayer's disadvantage, solely because of such ownership of federal bonds. Consistently with the Gehner decision, we can only hold that § 3701 is violated by an automatic increase in the rate of assessment applied to appellant's valuation after deduction of federal bonds. 17 The result which is thus indicated is also required by the legislative purpose, which we have found in § 3701, 'to prevent taxes which diminish in the slightest degree the market value or the investment attractiveness of obligations issued by the United States in an effort to secure necessary credit.' Smith v. Davis, 1944, 323 U.S. 111, 117, 65 S.Ct. 157, 160, 89 L.Ed. 107. 18 The legislative purpose of § 3701 also required the exemption from assessment under § 54:4—22 of interest on federal securities which had accrued but was not yet paid. Cf. Hibernia Savings & Loan Society v. San Francisco, 1906, 200 U.S. 310, 26 S.Ct. 265, 50 L.Ed. 495. Congress on occasion has expressly declared an exemption from state taxation of interest on federal securities,10 and we do not find a contrary purpose disclosed by the omission from § 3701 of the phrase 'and interest thereon.' 19 The assessment for tax under § 54:4—22 of the New Jersey Revised Statutes, N.J.S.A., as levied is in conflict with the paramount provision of § 3701 of the Revised Statutes. The decision of the Supreme Court of New Jersey is reversed. 20 Reversed. 21 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 22 Mr. Justice BLACK, dissenting. 23 I agree that New Jersey cannot tax United States bonds made tax-exempt by Congress. This Court has consistently held, however, that such bonds need not be excluded from computation of a justifiable state tax imposed on corporations created by or doing business within the state. A short time ago we said that 'The power of a state to levy a tax on a legitimate subject, such as a franchise, measured by net assets or net income including tax-exempt federal instrumentalities or their income is likewise well settled.' Tradesmens Nat. Bank of Oklahoma City v. Oklahoma Tax Comm'n, 309 U.S. 560, 564, 60 S.Ct. 688, 691, 84 L.Ed. 947; and see cases there cited. I do not see how the Court's opinion here can possibly be reconciled with that principle, for it seems clear to me that this New Jersey tax as applied falls within such a classification. 24 The state law under which this tax was levied applies only to stock insurance companies organized under New Jersey laws. The first part provides for a tax on intangible property to be computed by a formula which expressly excludes tax-exempt bonds, as well as certain reserves, from the property subject to tax. To avoid the possibility that occasionally this formula might produce no tax at all, New Jersey added a proviso setting a minimum assessment of 15% of corporate net worth. The necessity of such a minimum is clear, for the statute also provides that 'no franchise tax shall be imposed upon any insurance company included in this section.' This tax on an assessment measured by 15% of net worth is the only New Jersey tax to which appellant, a stock insurance company created by and doing business in New Jersey, was subjected for the year in question. Thus, by the terms of the statute and in actual practice, this tax at least replaced a franchise tax. Certainly it was levied 'on a legitimate subject,' within the meaning of the Tradesmens Bank opinion. I can see no practical distinction between this New Jersey tax and a franchise tax, unless the Court is now departing from the sound principle of determining the constitutionality of a state tax 'by its operation rather than by particular descriptive language which may have been applied to it.' Educational Films Corp. v. Ward, 282 U.S. 379, 387, 51 S.Ct. 170, 171, 75 L.Ed. 500, 71 A.L.R. 1226. Yet only by making such a distinction constitutionally determinative can the New Jersey tax be invalidated. See Tradesmens Bank v. Tax Comm'n, supra; Educational Films Corp. v. Ward, supra. If New Jersey had set a minimum tax in dollars which exceeded the tax on appellant here, we could not say that the tax was an unreasonable charge for the advantages accorded appellant by the state. That the minimum tax actually enacted varies fairly with net worth, and that appellant happens to own United States bonds, should not require us to strike down this tax as unconstitutional. And there was certainly no purpose to put a heavier tax burden on appellant merely because it owned tax-exempt bonds. Cf. State ex rel. Missouri Ins. Co. v. Gehner, 281 U.S. 313, 318, 50 S.Ct. 326, 74 L.Ed. 870. 25 But even under the Court's contrary reasoning on that point, I think the tax should stand. It was levied on only $75,700 worth of appellant's property. Appellant conceded in its brief that its 'net worth' exceeded the value of its tax-exempt federal securities by $94,936.87.1 Thus the tax imposed on appellant did not have to touch its tax-exempt bonds. The Court opinion acknowledges, as it must, that New Jersey 'clearly * * * negatived any purpose' to include them in the tax assessment. A legislative purpose to exclude these bonds from assessment is express in the first part of the New Jersey statute. A contrary purpose in the proviso under which appellant is taxed should not be drawn by this Court when appellant's tax-exempt bonds need not be touched by the tax. The assessment of 15% of net worth leaves untaxed 85% of the net worth, which more than covers the amount of the tax-exempt bonds. We cannot say that New Jersey did not intend to accomplish just this result by leaving 85% untaxed. Under these circumstances the decision in State ex rel. Missouri Ins. Co. v. Gehner, supra, on which the Court relies, does not bar upholding the New Jersey tax. The Gehner opinion recognized the power of the state to apply its tax rate to a company's net worth in excess of tax-exempt bonds. 26 Moreover, the New Jersey law does not discriminate against insurance companies owning government bonds. The state statute held invalid in the Gehner case had granted tax exemptions for statutory reserves, etc., but had deprived insurance companies of these exemptions to the extent that the companies owned tax-exempt federal bonds. This Court held such 'discrimination' unconstitutional. But that holding can have no applicability to the New Jersey statute, under which federal bonds in no way deprive their owners of any state exemption. As we have pointed out, the New Jersey tax law did not increase appellant's burden merely because appellant owned tax-exempt bonds. Indeed, appellant's tax is substantially lower than if the funds invested in these bonds had been invested in non-exempt property. 27 I think the decision of the New Jersey court should be affirmed. 1 Section 54:4—22 is included under 'Title 54, Subtitle 2. Taxation of Real and Personal Property in General.' 2 By an amendment adopted in 1945, but not operative on the assessment date here involved, the last sentence of § 54:4—22 as quoted above was deleted. N.J.Rev.Stat.Cum.Supp., Laws of 1945, 1946, 1947, § 54:4—22. 3 The return was on a form furnished by the taxing district and entitled 'Personal Property Return of Stock Insurance Company for Year 1945 Under Section 54:4—22 of Revised Statutes.' 4 The financial statement for 1943 reflected the following items: paid-up capital $250,000; paid-in surplus $250,000; earned surplus $47,462.93; liabilities $50,463.23; United States Treasury Bonds and accrued interest of $452,526.06. Reserves amounted to $161,047.74, not including reserves for federal income tax which are not shown in the record. It seems probable that if the New Jersey court did approve the construction of § 54:4—22 suggested above, it meant to authorize the deduction of nonreserve liabilities only. Both appellant and appellee have assumed in their briefs that if any deduction of liabilities from capital and surplus was authorized under the statute, only nonreserve liabilities were deductible. 5 If under the proviso of § 54:4—22 'the total of all liabilities' of appellant is deductible from 'the paid-up capital and the surplus,' and the 15 per cent must be computed against the figure of $496,999.70, deduction therefrom of appellant's United States bonds and interest leaves only $44,473.64. If, however, the basis of computation is appellant's net worth of $547,462.93, then there is a remainder of $94,936.87 after deducting the government bonds and interest. But neither the appellee nor any of the courts below has sought to uphold the assessment of $75,700 as having been computed solely against this excess over bonds and interest. In fact it may be implied from appellee's brief that if the amount of federal bonds and interest must be deducted from net worth, the excess of net worth after such deduction is subject to assessment at the 15 per cent rate. 6 In all other decisions in which a state tax has been upheld, against the contention that it was in effect levied on a corporate taxpayer's federal bonds or interest, the tax was a franchise levy, measured either by amount of bank deposits, Society for Savings v. Coite, 1868, 6 Wall. 594, 18 L.Ed. 897; Provident Institution for Savings v. Massachusetts, 1868, 6 Wall. 611, 18 L.Ed. 907, or by the market value of the taxpayer's shares, Hamilton Co. v. Massachusetts, 1868, 6 Wall. 632, 18 L.Ed. 904, or by dividends declared or paid, Home Ins. Co. of New York v. New York, 1890, 134 U.S. 594, 10 S.Ct. 593, 33 L.Ed. 1025. 7 See notes 1 and 2 supra. 8 See note 3 supra. 9 The highest court of New Jersey declared that its decision was required 'whether the taxing statute is a franchise tax or a tax upon the net worth of the company, which latter we hold the tax under the statute before us to be.' 1 N.J. 502, 64 A.2d 344. (Italics added.) 10 See 16 Stat. 272, 38 U.S.C.A. § 742; 39 Stat. 1000, 1003, 31 U.S.C.A. § 745 note; 40 Stat. 288, 291, 31 U.S.C.A. § 747. 1 The Court suggests that perhaps the statute should be construed as requiring liabilities other than reserves to be subtracted from net worth before the assessment is computed, in which case the excess over government bonds would be only $44,473.64. I had not understood the appellant to raise such a question in New Jersey or here, nor did I know that appellant challenged the tax as being on too low an assessment. Moreover, in discovering this supposed ambiguity in the statute the Court is supported only by the doubtful premise that the state court, in the absence of any allegation or proof that the tax levied was too small, would be required to recompute the tax itself and then either remand the case or construe the statute in such a way as to justify what may have been merely an arithmetical error. For an instance in which a state court has expressly refused to do either, see State ex rel. Missouri Ins. Co. v. Gehner, 281 U.S. 313, 319, 50 S.Ct. 326, 327, 74 L.Ed. 870. Furthermore, such an interpretation would have absurd consequences. Under it, a company could avoid taxation completely by merely borrowing a few million dollars two days before the operative date of assessment and paying it back two days afterwards: the net worth of the company would not be altered by this transaction, but the liabilities would be increased nand the assessment accordingly reduced) by the amount of the loan obtained. As appellant concedes in its brief, subtracting liabilities from net worth (which is itself determined by subtracting liabilities from assets) would conflict with 'administrative interpretation and practice.' It would also conflict with the state court's statement that the tax is upon net worth. I cannot ascribe such a self-defeating interpretation to the highest court of New Jersey.

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338 U.S. 689 70 S.Ct. 411 94 L.Ed. 474 UNITED STATES et al.v.PACIFIC COAST WHOLESALERS' ASS'N et al. FREIGHT FORWARDERS INSTITUTE v. PACIFIC COAST WHOLESALERS' ASS'N et al. Nos. 113 and 114. Argued Jan. 10, 1950. Decided Feb. 6, 1950. Mr. J. Roger Wollenberg, Washington, D.C., for the United states. Mr. Harry C. Ames, Washington, D.C., for Freight Forwarders Institute. The Court declined to hear further argument. PER CURIAM. 1 The appellee, Pacific Coast Wholesalers' Association, was formed by seven Los Angeles auto parts dealers in 1935; incorporated under California law as a nonprofit corporation in 1943; and had forty-one members and issued freight bills exceeding one million dollars in annual value in 1945. The issue presented is whether this association, with respect to the shipments here involved, is subject to regulation by the Interstate Commerce Commission as a freight forwarder or stands in exempt status under § 402(c)(1) of the Interstate Commerce Act. This section reads as follows: 'The provisions of this part shall not be construed to apply (1) to the operations of a shipper, or a group or association of shippers, in consolidating or distributing freight for themselves or for the members thereof, on a nonprofit basis, for the purpose of securing the benefits of carload, truckload, or other volume rates, * * *.'1 2 The Interstate Commerce Commission, in 1945, considered the status of the appellee in its first decision in this matter. At that time, it concluded that 'It has been established in this proceeding that the traffic handled is for members of the association, that the association was founded and has been operated, in good faith, for the purpose of effectuating savings in freight charges for its members by securing the benefits of carload, truckload, or other volume rates, and that the association is operated on a nonprofit basis. These are operations of the character contemplated by the exemption referred to, and may be continued without obtaining authority therefor from this Commission.' 264 I.C.C. 134, 142. 3 In 1947, the Commission reversed its position as it applied to shipments on a f.o.b. destination or delivered price basis. 269 I.C.C. 504. It left standing the exemption of the association from regulation by the Commission in respect of shipments on f.o.b. origin basis. It was stated that the legal obligation to pay the freight charges rested on the nonmember consignor, who paid the full less-than-carload rate, rather than on the consignee association member. It was therefore held that the difference between the rate paid by the nonmember and the carload transportation cost was profit to the association, and that the association was holding out its service to the general public. In this view, the Commission concluded that appellee was not qualified for the exempt status on f.o.b. destination or delivered price shipments. 4 A decree of the three-judge district court set aside the Commission's order as without rational basis. D.C., 81 F.Supp. 991. The court considered as decisive that no shipments by the association were ever undertaken except at the behest and for the benefit of a member. Looking to the agency between member and association, rather than that between buyer and seller, the court saw no reasonable ground for ruling that the association was on a profit basis, or that it was holding its service out to the general public. We agree. 5 There is nothing in the language of the Act or the legislative history to suggest that Congress intended the exemption to turn on the type of shipment which was involved, whether f.o.b. origin or f.o.b. destination (delivered price). On the contrary, it is clear that the nature of the relationship between the members and the group was thought to be determinative. Under that test, the valid claim of the association to the statutory exemption is established by the original Commission decision. The judgment below is 6 Affirmed. 7 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 56 Stat. 285, 49 U.S.C. § 1002(c)(1), 49 U.S.C.A. § 1002(c)(1).

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338 U.S. 604 70 S.Ct. 403 94 L.Ed. 381 SECRETARY OF AGRICULTUREv.CENTRAL ROIG REFINING CO. et al. PORTO RICAN AMERICAN SUGAR REFINERY, Inc. v. CENTRAL ROIG REFINING CO. et al. GOVERNMENT OF PUERTO RICO v. SECRETARY OF AGRICULTURE et al. Nos. 27, 30, 32. Argued Oct. 17, 1949. Decided Feb. 6, 1950. Mr. Orlando J. Anton Santi, San Juan, P.R., for Porto Rican American Sugar Refinery, Inc. Frederic P. Lee, Washington, D.C., for Central Roig Refining Co. and Western Sugar Refining Co. Messrs. Jose Treas-Monge, Asst. Atty. Gen., of Puerto Rico, Walton Hamilton, Washington, D.C., for the Government of Puerto Rico. Mr. Neil Brooks, Washington, D.C., for Secretary of Agriculture. Mr. Donald R. Richberg, Washington, D.C., for respondents American Sugar Refining Co., et al. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 These three cases bring before us the validity of an order of the Secretary of Agriculture, issued by him on the basis of the Sugar Act of 1948. It is claimed that the Secretary disobeyed the requirements of that Act. If it be found that the Secretary brought himself within the Act, the power of Congress to give him the authority he exercised is challenged. By a series of enactments Congress addressed itself to what it found to be serious evils resulting from an uncontrolled sugar market. The central aim of this legislation was to rationalize the mischievous fluctuations of a free sugar market by the familiar device of a quota system. The Jones-Costigan Act of 1934, 48 Stat. 670, 7 U.S.C.A. §§ 608, 608a, 609—611, 613, 615—617, 620, the Sugar Act of 1937, 50 Stat. 903, and the Sugar Act of 1948, 61 Stat. 922, 7 U.S.C. (Supp. II, 1949), §§ 1100—1160, 7 U.S.C.A. §§ 1100—1160. 2 The volume of sugar moving to the continental United States market was controlled to secure a harmonious relation between supply and demand.1 To adapt means to the purpose of the sugar legislation, the Act of 1948 defines five domestic sugar-producing areas: two in the continental United States, and one each in Hawaii, Puerto Rico and the Virgin Islands. To each area is allotted an annual quota of sugar, specifying the maximum number of tons which may be marketed on the mainland from that area. § 202(a). A quota is likewise assigned to the Philippines. § 202(b). The balance of the needs of consumers in the continental United States, to be determined each year by the Secretary, § 201, is met by importation from foreign countries, predominantly from Cuba, of the requisite amount of sugar. § 202(c). 3 The quotas thus established apply to sugar in any form, raw or refined. In addition, § 207 of the Act establishes fixed limits on the tonnage of 'direct-consumption' or refined sugar2 which may be marketed annually on the mainland from the offshore areas as part of their total sugar quotas. But mainland refiners are not subject to quota limitations upon the marketing of refined sugar. 4 The Puerto Rican quota for 'direct-consumption' sugar is 126,033 tons. This figure had its genesis in the Jones-Costigan Act of 1934, which provided that the quota for each offshore area was to be the largest amount shipped to the mainland in any one of the three preceding years. 48 Stat. 670, 672—73. In the case of Puerto Rico this was computed by the Secretary at 126,033 tons. General Sugar Quota Regulations, Ser. 2, Rev. 1, p. 4, August 17, 1935. By the Sugar Acts of 1937 and 1948, Congress embedded this amount in legislation. All the details for the control of a commodity like sugar could not, of course, be legislatively predetermined. Administrative powers are an essential part of such a regulatory scheme. The powers conferred by § 205(a) upon the Secretary of Agriculture raise some of the serious issues in this litigation. By that section Congress authorized the Secretary to allot the refined sugar quota as well as the inclusive allowance of a particular area among those marketing the sugar on the mainland from that area.3 The section provides that 'Allotments shall be made in such manner and in such amounts as to provide a fair, efficient, and equitable distribution of such quota or proration thereof, by taking into consideration' three factors: (1) 'processings of sugar * * * to which proportionate shares * * * pertained';4 (2) past marketings; and (3) ability to market the amount allotted. 5 On January 21, 1948, the Secretary issued Puerto Rico Sugar Order No. 18, 13 Fed.Reg. 310, allotting the 1948 Puerto Rican refined sugar quota among the various refineries of the island. Having satisfied himself of the need for an allotment the Secretary, in conformity with the procedural requirements of § 205(a), apportioned the quota among the individual refiners, setting forth in appropriate findings the manner in which he applied the three statutory standards for allotment. 6 As to 'past marketings' he found that the proper measure was the average of the highest five years of marketings during the seven-year period of 1935—1941. While recognizing that ordinarily the most recent period of marketings furnished the appropriate data, he concluded that the period 1942 1947 was unrepresentative in that the war needs made those years abnormal and not a fair basis for purposes of the economic stabilization which was the aim of the 1948 Act. Shortages as to transportation, storage and materials, caused by the war, led to special government control. These circumstances resulted in hardships or advantages in varying degrees to different refiners, quite unrelated to a fair system of quotas for the post-war period. 7 Likewise as to 'the ability * * * to market,' the Secretary recognized that marketings during a recent period ordinarily furnished the best measure. But again he found that the derangements of the war years served to make that measure abnormal. He therefore concluded that a fairer guide to his judgment came from the highest marketings of any year during the 1935—1947 period, using, however, present plant capacity as a corrective. 8 The Secretary duly considered 'the processings of sugar' to which proportionate shares pertained, but concluded that this factor could not fairly be applied. This was so because it referred to processings of raw sugar from sugar cane, whereas the three largest Puerto Rican refining concerns restricted themselves to refining raw sugar after it had already been processed. He felt bound, therefore, to give no weight to this factor in the sum he finally struck, and gave equal weight to past marketings and ability to market. 9 Availing themselves of § 205(b), respondents, Central Roig Refining Company and Western Sugar Refining Company, two of the three largest refiners in Puerto Rico, appealed from the Secretary's order to the Court of Appeals for the District of Columbia. They charged the Secretary with disregard of the standards which Congress imposed by § 205(a) for his guidance in making allotment of quotas; they challenged the validity of the Act itself under the Due Process Clause of the Fifth Amendment. Porto Rican American Sugar Refinery, Inc., petitioner in No. 30, the largest of the Puerto Rican refiners, intervened to defend the Secretary's order against the statutory attack. The Government of Puerto Rico, petitioner in No. 32, intervened to urge the unconstitutionality of the statute, which the American Sugar Refining Company and other mainland refiners intervened to meet this attack. Being of opinion that the Secretary's order was not authorized by the Act, the Court of Appeals reversed it. 84 U.S.App.D.C. 161, 171 F.2d 1016. Since the order failed on statutory grounds, a majority of that court did not deem it proper to decide the constitutional question. Because of the obvious importance of the decision below in the administration of the Sugar Act we granted certiorari. 336 U.S. 959, 69 S.Ct. 889. 10 I. In making quota allotments the Secretary of Agriculture must of course keep scrupulously within the limits set by the Sugar Act of 1948. In devising the framework of control Congress fixed the flat quotas for the sugar-producing areas. Congress could not itself, as a practical matter, allot the area quotas among individual marketers. The details on which fair judgment must be based are too shifting and judgment upon them calls for too specialized understanding to make direct congressional determination feasible. Almost inescapably the function of allotting the area quotas among individual marketers becomes an administrative function entrusted to the member of the Cabinet charged with oversight of the agricultural economy of the nation. He could not be left at large and yet he could not be rigidly bounded. Either extreme would defeat the control system. They could be avoided only by laying down standards of such breadth as inevitably to give the Secretary leeway for his expert judgment. Its exercise presumes a judgment at once comprehensive and conscientious. Accordingly, Congress instructed the Secretary to make allotments 'in such manner and in such amounts as to provide a fair, efficient, and equitable distribution' of the quota. 11 In short, Congress gave the Secretary discretion commensurate with the legislative goal. Allocation of quotas to individual marketers was deemed an essential part of the regulatory scheme. The complexity of problems affecting raw and refined sugar in widely separated and economically disparate areas, accentuated by the instability of the differentiating factors, must have persuaded Congress of the need for continuous detailed administrative supervision.5 In any event, such is the plain purport of the legislation. 12 By way of guiding the Secretary in formulating a fair distribution of individual allotments, Congress directed him to exercise his discretion 'by taking into consideration' three factors: past marketings, ability to market, and processings to which proportionate shares pertained. Plainly these are not mechanical or self-defining standards. They in turn imply wide areas of judgment and therefore of discretion. The fact that the Secretary's judgment is finally expressed arithmetically gives an illusory definiteness to the process of reaching it. Moreover, he is under a duty merely to take 'into consideration' the particularized factors. The Secretary cannot be heedless of these factors in the sense, for instance, of refusing to hear relevant evidence bearing on them. But Congress did not think it was feasible to bind the Secretary as to the part his 'consideration' of these three factors should play in his final judgment—what weight each should be given, or whether in a particular situation all three factors must play a quantitative share in his computation. 13 It was evidently deemed fair that in a controlled market each producer should be permitted to retain more or less the share of the market which he had acquired in the past. Accordingly, past marketings were to be taken into consideration in the Secretary's allotments. But the past is relevant only if it furnishes a representative index of the relative positions of different marketers. And there is no calculus available for determining whether a base period for measurement is fairly representative. Whether conditions have been so unusual as to make a period unrepresentative is not a matter of counting figures but of weighing imponderables. If he is to exercise the function of allotting a limited supply among avid contenders for it, the Secretary cannot escape the necessity of passing judgment on their relative competitive positions. For Congress announced that one of the main purposes justifying the making of allotments is 'to afford all interested persons an equitable opportunity to market sugar.' § 205(a). 14 In directing the Secretary to take into consideration ability to market, Congress in effect charged the Secretary with making a forecast of the marketers' capacity to perform in the immediate future. Such a forecast no doubt draws heavily on experience, but history never quite repeats itself even in the vicissitudes of industry. Whether ability to market is most rationally measured by plant capacity or by past performance, whether, if the latter, the base period should be a year and what year or a group of years and what group—these are not questions to be dealt with as statistical problems. They require a disinterested, informed judgment based on circumstances themselves difficult of prophetic interpretation. 15 The proper mode of ascertaining 'processings of sugar * * * to which proportionate shares * * * pertained' is not here in controversy. Perhaps this factor too implies choice. But the question common to all three standards is whether the Secretary may conclude, after due consideration, that in the particular situation before him it is not essential that each of the three factors be quantitatively reflected in the final allotment formula. Concededly, § 205(a) empowers the Secretary to attribute different influences to the three factors. Obviously one factor may be more influential than another in the sense of furnishing a better means of achieving a 'fair, officient, and equitable distribution.' But it is not consonant with reason to authorize the Secretary to find in the context of the situation before him that a criterion has little value and is entitled to no more than nominal weight, but to find it unreasonable for him to conclude that this factor has no significance and therefore should not be at all reflected quantitatively. 16 Congress did not predetermine the periods of time to which the standards should be related or the respective weights to be accorded them. In this respect the sugarquota scheme differs from the quotas designed by Congress for tobacco, wheat, cotton and rice, respectively. See §§ 313(a), 334(a), 344(a) and 353(a) of the Agricultural Adjustment Act of 1938, 52 Stat. 47, 53, 57, 61, as amended, 7 U.S.C. §§ 1313(a), 1334(a), 1344(a), 1353(a), 7 U.S.C.A. §§ 1313(a), 1334(a), 1344(a), 1353(a). Nor do the bare words of § 205(a) confine the Secretary in the responsible exercise of discretion beyond the limitation inherent upon such delegated authority. He is not free to be capricious, to act without reason, that is, in relation to the attainment of the objects declared by § 205(a). The very standards for his conduct, the attainment of 'fair, efficient, and equitable distribution' preclude abstract or doctrinaire categories. A variety of plans of allotment may well conform to the statutory standards. But the choice among permissive plans is necessarily the Secretary's; he is the agency entrusted by Congress to make the choice. 17 These considerations dispose of this phase of the case. We would have to replace the Secretary's judgment with our own to hold that on the record before us he acted arbitrarily in reaching the conviction that the years 1935—1941 furnished a fairer measure of past marketings than the war years 1942—1947. Nor can we hold that it was baseless for him to decide that increased marketings during the war years may be taken to mean improved ability to market but decreased marketings do not justify the opposite conclusion. And it was within his province to exclude from his determination the processings of sugar to which proportionate shares pertained. It is not for us to reject the balance he struck on consideration of all the factors unless we can say that his judgment is not one that a fair-minded tribunal with specialized knowledge could have reached. This we cannot say. We conclude, therefore, that in issuing Order No. 18 the Secretary did not exceed the authority given him by Congress. 18 II. We must therefore face the challenge to the constitutionality of the Act of 1948. This objection to the order in support of their judgment below is clearly open to respondents in Nos. 27 and 30. The Government of Puerto Rico likewise challenges the constitutionality of the Act. But its status in this litigation raises a distinct issue, consideration of which will be postponed for the moment. 19 The sugar problem of the country is an old and obstinate one. For fourteen years Congress grappled with it through the mechanism of quotas. Three enactments, culminating in the Sugar Act of 1948, represented an effort to deal with what were deemed to be the harmful effects on interstate and foreign commerce of progressively depressed sugar prices of earlier years created by world surpluses, or, if one prefers it, by the conditions that reflected the imbalance between production and consumption.6 The legislation presupposes a finding by Congress that producers and marketers of sugar could not adequately respond to market changes merely through the mechanism of a free market and that the public interest, insofar as the Commerce Clause may be drawn upon to meet it, needed controls to supplement and replace the haggling of the market. 20 Congress might of course have limited its intervention to the raw sugar market, trusting that thereby stability in the refined-sugar market would be produced. Congress thought otherwise; it evidently felt that competition among refiners for a legally limited supply of raw sugar, in a period of overexpanded refining capacity,7 ought not to be left at large. In any event, Congress had the constitutional right to think otherwise and to bring the refining of sugar within its regulatory scheme. See Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092; United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446; Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122. 21 It is a commonplace that reforms may bring in their train new difficulties. In any scheme of reform, their prevention or mitigation becomes a proper legislative concern. While ameliorating the effect of disorderly competition, market controls generate problems of their own, not encountered under a competitive system. Such new problems are not outside the conprehensive scope of the great Commerce Clause. Nor does the Commerce Clause impose requirements of geographic uniformity. (Compare Art. I, § 8, cl. 1 and cl. 4.) Congress may devise, as it has done in the Sugar Act of 1948, a national policy with due regard for the varying and fluctuating interests of different regions. See e.g., Clark Distilling Co. of Cumberland, Md. v. Western Maryland R. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845; Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334, 57 S.Ct. 277, 81 L.Ed. 270; Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 66 S.Ct. 1142, 90 L.Ed. 1342, 164 A.L.R. 476. And since the Act of 1948 does not even remotely impinge on any of the specific limitations upon the Commerce Clause (Art. I, § 9, cl. 5 and cl. 6), we are not concerned with the vexing problem of the applicability of these clauses to Puerto Rico. Compare Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088; Dooley v. United States, 183 U.S. 151, 22 S.Ct. 62, 46 L.Ed. 128; Territory of Alaska v. Troy, 258 U.S. 101, 42 S.Ct. 241, 66 L.Ed. 487; Hooven & Allison Co. v. Evatt, 324 U.S. 652, 670, n. 5, 65 S.Ct. 870, 879, 89 L.Ed. 1252. 22 However, not even resort to the Commerce Clause can defy the standards of due process. We assume that these standards extend to regulations of commerce that enmesh Puerto Rico. See United States v. Carolene Products Co., 304 U.S. 144, 148—151, 58 S.Ct. 778, 781, 783, 82 L.Ed. 1234; United States v. Darby, 312 U.S. 100, 125 126, 61 S.Ct. 451, 462, 463, 85 L.Ed. 609, 132 A.L.R. 1430; Balzac v. People of Porto Rico, 258 U.S. 298, 313, 42 S.Ct. 343, 348, 66 L.Ed. 627. The Sugar Act of 1948 is claimed to offend the Due Process Clause of the Fifth Amendment because of the alleged discriminatory character and the oppressive effects of the refined sugar quota established by the Act. If ever claims of this sort carried plausibility, they seem to us singularly belated in view of the unfolding of the Commerce Clause. 23 The use of quotas on refined sugar, legislatively apportioned to different geographic areas and administratively allocated to individual beneficiaries, is a device based on the Agricultural Adjustment Act of 1938, 52 Stat. 31, as amended, 7 U.S.C. § 1281 et seq., 7 U.S.C.A. § 1281 et seq., and sanctioned by this Court in Mulford v. Smith, supra. The problem which confronted Congress was not the setting of quotas abstractly considered but so to fix their amount as to achieve approximate justice in the shares allotted to each area and the persons within it. To recognize the problem is to acknowledge its perplexities. 24 Congress was thus confronted with the formulation of policy peculiarly within its wide swath of discretion. It would be a singular intrusion of the judiciary into the legislative process to extrapolate restrictions upon the formulation of such an economic policy from those deeply rooted notions of justice which the Due Process Clause expresses. To fix quotas on a strict historical basis is hard on latecomers into the industry or on those in it who desire to expand. On the other hand, to the extent that newcomers are allowed to enter or old-timers to expand there must either be an increase in supply or a reduction in the quotas of others. Many other factors must plague those charged with the formulation of policy—the extent to which projected expansion is a function of efficiency or becomes a depressant of wage standards; the wise direction of capital into investments and the economic waste incident to what may be on the short or the long pull overexpansion of industrial facilities; the availability of a more suitable basis for the fixing of quotas, etc., etc. The final judgment is too apt to be a hodge-podge of considerations, including considerations that may well weigh with legislators but which this Court can hardly disentangle. 25 Suffice it to say that since Congress fixed the quotas on a historical basis it is not for this Court to reweigh the relevant factors and, perchance, substitute its notion of expediency and fairness for that of Congress. This is so even though the quotas thus fixed may demonstrably be disadvantageous to certain areas or persons. This Court is not a tribunal for relief from the crudities and inequities of complicated experimental economic legislation. See Wickard v. Filburn, supra, 317 U.S. at page 129, 63 S.Ct. at page 91, 87 L.Ed. 122. 26 Congress, it is insisted, has not established refined sugar quotas for the mainland refiners as it has for the offshore areas. Whatever inequalities may thereby be created, this is not the forum for their correction for the all-sufficient reason that the extent and nature of inequalities are themselves controversial matters hardly meet for judicial solution. Thus, while the mainland refiners are legally free to purchase and refine all sugar within the raw sugar quota and Puerto Rican refiners are limited to their shares of the refined sugar quota, Congress apparently thought that Puerto Rican refiners operated at costs sufficiently low to insulate them from mainland competition. In addition, it is claimed that since the total supply of raw sugar permitted to enter the mainland market is limited the mainland refiners are in effect also subject to the refined sugar quota, although in contrast to the unchanging quotas of the territories the mainland quota will vary with changes in the total consumer demand. Because this demand tends to be stable, however, the mainland refiners' share of the refined sugar has not, it is urged, greatly expanded during the years when quotas were in effect. Congress might well have thought that relatively minor contractions and expansions in supply from year to year should thus be absorbed. 27 Plainly it is not the business of judges to sit in judgment on the validity or the significance of such views. The Act may impose hardships here and there; the incidence of hardship may shift in location and intensity. It is not for us to have views on the merits of this legislation. It suffices that we cannot say, as we cannot, that there is 'discrimination of such an injurious character as to bring into operation the due process clause.' Currin v. Wallace, 306 U.S. 1, 14, 59 S.Ct. 379, 386, 83 L.Ed. 441. Expressions of dissatisfaction by the Executive and in some quarters of Congress that the refined sugar quotas were 'arbitrary,' 'discriminatory,' and 'unfair' may reflect greater wisdom or greater fairness than the collective wisdom of Congress which put this Act on the statute books. But the issue was thrashed out in Congress; Congress is the place for its reconsideration. 28 III. There remains Puerto Rico's right to participate in this litigation. Puerto Rico can have no better standing to challenge the constitutionality of the Sugar Act of 1948 than if it were a fullfledged State. The right of a State to press such a claim raises familiar difficulties. Compare Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078; State of Florida v. Mellon, 273 U.S. 12, 47 S.Ct. 265, 71 L.Ed. 511; Jones ex rel. Louisiana v. Bowles, 322 U.S. 707, 64 S.Ct. 1043, 88 L.Ed. 1551, with State of Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038, 11 Ann.Cas. 488; People of State of New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937; State of Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051. Whatever rights Puerto Rico has as a polity, see People of Porto Rico v. Rosaly, 227 U.S. 270, 33 S.Ct. 352, 57 L.Ed. 507; People of Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235; People of Puerto Rico v. Rubert Hermanos, Inc., 309 U.S. 543, 60 S.Ct. 699, 84 L.Ed. 916, the Island is not a State. Additional legal questions are raised whether Puerto Rico can press the interests that it is here pressing. In view of the conclusion that we have reached on the constitutional issues which had to be met apart from any jurisdictional question, it would entail an empty discussion to decide whether Puerto Rico has a standing as a party in this case. It would in effect be merely an advisory opinion on a delicate subject. Since the real issues raised by Puerto Rico have already been decided in Nos. 27 and 30, it becomes unnecessary to decide the question of Puerto Rico's standing to sue. Wickard v. Filburn, supra, 317 U.S. at page 114, n. 3, 63 S.Ct. at page 83, 87 L.Ed. 122. Nos. 27 and 30 reversed 29 No. 32 dismissed. 30 Mr. Justice BLACK would affirm the judgment of the United States Court of Appeals for the District of Columbia Circuit for the reasons given in the court's opinion. 84 U.S.App.D.C. 161, 171 F.2d 1016. 31 Mr. Justice DOUGLAS took no part in the consideration or disposition of these cases. 1 In the course of this opinion all expressions of an economic character are to be attributed to those who have authority to make such economic judgments—the Congress and the Secretary of Agriculture—and are not to be deemed the independent judgments of the Court. It is not our right to pronounce economic views; we are confined to passing on the right of the Congress and the Secretary to act on the basis of entertainable economic judgments. 2 With minor exceptions not relevant here, the term 'direct-consumption' sugar in the Act refers to refined sugar. 3 The full text of § 205(a) is as follows: 'Whenever the Secretary finds that the allotment of any quota, or proration thereof, established for any area pursuant to the provisions of this Act, is necessary to assure an orderly and adequate flow of sugar or liquid sugar in the channels of interstate or foreign commerce, or to prevent disorderly marketing or importation of sugar or liquid sugar, or to maintain a continuous and stable supply of sugar or liquid sugar, or to afford all interested persons an equitable opportunity to market sugar or liquid sugar within any area's quota, after such hearing and upon such notice as he may by regulations prescribe, he shall make allotments of such quota or proration thereof by allotting to persons who market or import sugar or liquid sugar, for such periods as he may designate, the quantities of sugar or liquid sugar which each such person may market in continental United States, the Territory of Hawaii, or Puerto Rico, or may import or bring into continental United States, for consumption therein. Allotments shall be made in such manner and in such amounts as to provide a fair, efficient, and equitable distribution of such quota or proration thereof, by taking into consideration the processings of sugar or liquid sugar from sugar beets or sugarcane to which proportionate shares, determined pursuant to the provisions of subsection (b) of section 302, pertained; the past marketings or importations of each such person; and the ability of such person to market or import that portion of such quota or proration thereof allotted to him. The Secretary may also, upon such hearing and notice as he may by regulations prescribe, revise or amend any such allotment upon the same basis as the initial allotment was made.' 61 Stat. 926, 7 U.S.C. § 1115, 7 U.S.C.A. § 1115. 4 To help effectuate the marketing controls § 301 of the Act provides that certain payments will be made to farmers only if they limit the marketing of sugar cane or beets grown on their farms to a 'proportionate share' of the quantity necessary to fill the area's quota, plus a normal carry-over. The relevance of this provision here is that processings of sugar grown within the 'proportionate share' restriction are one of the three factors to be considered by the Secretary in the making of allotments under § 205(a). 5 With respect to the Secretary's comparable function of fixing proportionate shares for farms under § 302 of the Act, the House Committee on Agriculture stated: 'In view of the differences in conditions of production obtaining in the various sugar-producing areas, the committee has not attempted to specify the exact manner in which the Secretary shall use production history. It is the judgment of the committee that considerable discretion should be left to the Secretary to deal with the varied and changing conditions in the various producing areas, in order to establish fair and equitable proportionate shares for farms in such areas.' H.R.Rep.No. 796, 80th Cong., 1st Sess. 8. 6 The average price per pound of dutypaid raw sugar gradually declined from 6.98 cents in 1923 to 2.80 cents in early 1932. United States Tariff Comm'n, Report to the President on Sugar, Report No. 73, 2d Ser., p. 46. See also Dalton, Sugar, A Case Study of Government Control, cc. IV, V, especially p. 41; 16 Dept. State Bull. 44. 7 It was estimated that the mainland refineries alone had a capacity in excess of demand of from one-third to one-half. See United States Tariff Comm'n, Report to the President on Sugar, Report No. 73, 2d Series, p. 91; cf. Sugar Institute, Inc. v. United States, 297 U.S. 553, 574, 56 S.Ct. 629, 631, 80 L.Ed. 859.

89

338 U.S. 680 70 S.Ct. 352 94 L.Ed. 457 UNITED STATESv.ALPERS. No. 217. Argued and Submitted Dec. 4, 1949. Decided Feb. 6, 1950. Mr. Joseph W. Bishop, Jr., Washington, D.C., for petitioner. Mr. A. J. Zirpoli, San Francisco, Cal., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 The question in this case is whether the shipment of obscene phonograph records in interstate commerce is prohibited by § 245 of the Criminal Code, which makes illegal the interstate shipment of any 'obscene * * * book, pamphlet, picture, motionpicture film, paper, letter, writing, print, or other matter of indecent character.' Respondent was charged by an information in three counts with knowingly depositing with an express company for carriage in interstate commerce packages 'containing certain matter of an indecent character, to-wit: phonograph records impressed with recordings of obscene, lewd, lascivious and filthy language and obscene, lewd, lascivious and filthy stories.' Respondent, having waived jury trial, was found guilty by the District Court on two counts and was assessed a fine on each. The Court of Appeals reversed, 9 Cir., 175 F.2d 137. We granted certiorari to examine the applicability of § 245 of the Criminal Code to the facts of this case. 338 U.S. 813, 70 S.Ct. 75. 2 The pertinent provisions of the statute are as follows: 'Whoever shall * * * knowingly deposit or cause to be deposited with any express company or other common carrier (for carriage in interstate commerce) any obscene, lewd, or lascivious, or any filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character * * * shall be fined not more than $5,000 or imprisoned not more than five years, or both.' 41 Stat. 1060, 18 U.S.C. § 396, now 18 U.S.C. § 1462, 18 U.S.C.A. § 1462. 3 It is conceded that the phonograph records were obscene and indecent. The only question is whether they come within the prohibition of the statute. 4 We are aware that this is a criminal statute and must be strictly construed. This means that no offense may be created except by the words of Congress used in their usual and ordinary sense. There are no constructive offenses. United States v. Resnick, 299 U.S. 207, 210, 57 S.Ct. 126, 127, 81 L.Ed. 127. The most important thing to be determined is the intent of Congress. The language of the statute may not be distorted under the guise of construction, or so limited by construction as to defeat the manifest intent of Congress. United States v. Raynor, 302 U.S. 540, 552, 58 S.Ct. 353, 358, 82 L.Ed. 413.1 5 In interpreting the statute as applied to this case the Court of Appeals invoked the rule of ejusdem generis. Since the words 'book, pamphlet, picture, motion-picture film, paper, letter, writing, print' appearing in the statute refer to objects comprehensible by sight only, the court construed the general words 'other matter of indecent character' to be limited to matter of the same genus. The Court of Appeals held phonograph records without the statute, so interpreted, since phonograph records are comprehended by the sense of hearing. 6 When properly applied, the rule of ejusdem generis is a useful canon of construction. But it is to be resorted to not to obscure and defeat the intent and purpose of Congress, but to elucidate its words and effectuate its intent. It cannot be employed to render general words meaningless. Mason v. United States, 260 U.S. 545, 554, 43 S.Ct. 200, 202, 67 L.Ed. 396. What is or is not a proper case for application of the rule was discussed in Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 396, 80 L.Ed. 522. In that case a bandit and a companion had kidnaped two police officers for the purpose of avoiding arrest and had transported them across a state line. The defendant was convicted of kidnaping under a federal statute which made it an offense to transport across state lines any person who had been kidnaped 'and held for ransom or reward or otherwise.' The police officers had been held not for ransom or reward but for protection, and it was contended that the words 'or otherwise' did not cover the defendant's conduct, since under the rule of ejusdem generis, the general phrase was limited in meaning to some kind of monetary reward. This Court rejected such limiting application of the rule, saying: 'The rule of ejusdem generis, while firmly established, is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty. Ordinarily, it limits general terms which follow specific ones to matters similar to those specified; but it may not be used to defeat the obvious purpose of legislation. And, while penal statutes are narrowly construed, this does not require rejection of that sense of the words which best harmonizes with the context and the end in view.' 297 U.S. at page 128, 56 S.Ct. at page 397. 7 We think that to apply the rule of ejusdem generis to the present case would be 'to defeat the obvious purpose of legislation.' The obvious purpose of the legislation under consideration was to prevent the channels of interstate commerce from being used to disseminate any matter that, in its essential nature, communicates obscene, lewd, lascivious or filthy ideas. The statute is more fully set out in the margin.2 It will be noted that Congress legislated with respect to a number of evils in addition to those proscribed by the portion of the statute under which respondent was charged. Statutes are construed in their entire context. This is a comprehensive statute, which should not be constricted by a mechanical rule of construction. 8 We find nothing in the statute or its history to indicate that Congress intended to limit the applicable portion of the statute to such indecent matter as is comprehended through the sense of sight. True, this statute was amended in 1920 to include 'motion-picture film.' We are not persuaded that Congress, by adding motion-picture film to the specific provisions of the statute, evidenced an intent that obscene matter not specifically added was without the prohibition of the statute; nor do we think that Congress intended that only visual obscene matter was within the prohibition of the statute. The First World War gave considerable impetus to the making and distribution of motion-picture films. And in 1920 the public was considerably alarmed at the indecency of many of the films.3 It thus appears that with respect to this amendment, Congress was preoccupied with making doubly sure that motion-picture film was within the Act, and was concerned with nothing more or less.4 9 Upon this record we could not hold, nor do we wish to be understood to hold, that the applicable portion of the statute is all-inclusive. As we have pointed out, the same statute contains other provisions relating to objects intended for an indecent or immoral use. But the portion of the statute here in issue does proscribe the dissemination of matter which, in its essential nature, communicates obscene ideas. We are clear therefore that obscene phonograph records are within the meaning of the Act. The judgment of the Court of Appeals is reversed, and the judgment of the District Court is affirmed. 10 Reversed. 11 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 12 Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER and Mr. Justice JACKSON concur, dissenting. 13 I am unable to agree that the conduct of this respondent was made an offense by the language of the statutory provision on which his conviction rests. That provision forbids deposit with an express company, for interstate carriage, of 'any obscene, lewd, or lascivious, or any filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character * * *.' 18 U.S.C. § 396 (1946 Ed.), now § 1462 (1948 Rev), 18 U.S.C.A. § 1462. The crime with which respondent was charged involved phonograph records, which do not come under any specific category listed in the statute. Consequently the information against respondent could only charge violation of the provision's general language barring shipment of 'other matter of indecent character.' The Court sustains the conviction here by reasoning the a phonograph record is 'matter' within the meaning of this congressional prohibition. 14 Our system of justice is based on the principle that criminal statutes shall be couched in language sufficiently clear to apprise people of the precise conduct that is prohibited. Judicial interpretation deviates from this salutary principle when statutory language is expanded to include conduct that Congress might have barred, but did not, by the language it used.1 Compare United States v. Weitzel, 246 U.S. 533, 543, 38 S.Ct. 381, 382, 62 L.Ed. 872, with United States v. Sullivan, 332 U.S. 689, 693—694, 68 S.Ct. 331, 334, 92 L.Ed. 297. 15 The reluctance of courts to expand the coverage of criminal statutes is particularly important where, as here, the statute results in censorship. According to dictionary definitions, 'matter' undeniably includes phonograph records and the substances of which they are made. Indeed, dictionaries tell us that 'matter' encompasses all tangibles and many intangibles, including material treated or to be treated in a book, speech, legal action or the like; matter for discussion, argument, exposition, etc.; and material treated in the medieval metrical romances. The many meanings of 'matter' are warning signals against giving the word the broad construction adopted by the Court. 16 History is not lacking in proof that statutes like this may readily be converted into instruments for dangerous abridgments of freedom of expression. People of varied temperaments and beliefs have always differed among themselves concerning what is 'indecent.' Sculpture, paintings and literature, ranked among the classics by some, deeply offend the religious and moral sensibilities of others.2 And those which offend, however priceless or irreplaceable, have often been destroyed by honest zealots convinced that such destruction was necessary to preserve morality as they saw it. 17 Of course there is a tremendous difference between cultural treasures and the phonograph records here involved. But our decision cannot be based on that difference. Involved in this case is the vital question of whether courts should give the most expansive construction to general terms in legislation providing for censorship of publications or pictures found to be 'indecent,' 'obscene,' etc. Censorship in any field may so readily encroach on constitutionally protected liberties that courts should not add to the list of items banned by Congress.3 18 In the provision relied on, as well as elsewhere in the Act, Congress used language carefully describing a number of 'indecent' articles and forbade their shipment in interstate commerce. This specific list applied censorship only to articles that people could read or see; the Court now adds to it articles capable of use to produce sounds that people can hear.4 The judicial addition here may itself be small. But it is accomplished by a technique of broad interpretation which too often may be successfully invoked by the many people who want the law to proscribe what other people may say, write, hear, see, or read. I cannot agree to any departure from the sound practice of narrowly construing statutes which by censorship restrict liberty of communication. 19 Since Congress did not specifically ban the shipment of phonograph records,5 this Court should not do so. 1 See Horack, The Disintegration of Statutory Construction, 24 Ind.L.J. 335, 343—344 (1949). 2 'Whoever shall bring or cause to be brought into the United States, or any place subject to the jurisdiction thereof, from any foreign country, or shall therein knowingly deposit or cause to be deposited with any express company or other common carrier (for carriage in interstate or foreign commerce) any obscene, lewd, or lascivious, or any filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character, or any drug, medicine, article, or thing designed, adapted, or intended for preventing conception, or producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of the hereinbefore mentioned articles, matters, or things may be obtained or made; or whoever shall knowingly take or cause to be taken from such express company or other common carrier any matter or thing the depositing of which for carriage is herein made unlawful, shall be fined not more than $5,000 or imprisoned not more than five years, or both.' 18 U.S.C. § 396, now 18 U.S.C. § 1462, 18 U.S.C.A. § 1462. 3 See The Motion Picture Industry, 254 Annals of the American Academy of Political and Social Science, pp. 7—9, 140, 155, 157 (1947). 4 H.R.Rep.No.580, 66th Cong., 2d Sess. (1920); S.Rep.No.528, 66th Cong., 2d Sess. (1920); 59 Cong.Rec. 2178—2179, 7162, 7297, 8280, 8334 (1920). 1 The Government points to the legislative history of this and related statutes as proof that Congress intended its language to be most broadly construed. Particularly it relies on the argument that Anthony Comstock, a supporter and promoter of the first federal statutes in this field, had a reputation for 'thoroughness in his pursuit of immorality.' This may be conceded, but we cannot construe this statute on the theory that Mr. Comstock's zeal as a reformer of morals must be considered as determinative legislative history. That zeal was undoubtedly great, so great that if accepted as a criterion of construction the Court could expand the punishment along with the coverage of the Act. 2 See Hannegan v. Esquire, Inc., 327 U.S. 146, 157—158, 66 S.Ct. 456, 461—462, 90 L.Ed. 586; Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251—252, 23 S.Ct. 298, 300, 47 L.Ed. 460. 3 See discussion in 1 Chafee, Government and Mass Communications 200—366. 4 In a second provision of the Act, Congress barred shipment of 'any drug, medicine, article, or thing designed, adapted, or intended for preventing conception, or producing abortion, or for any indecent or immoral use * * *.' A New York statute, Penal Law, Consol.Laws c. 40, § 1141, contains two provisions closely resembling these two provisions in the federal statute. The New York Court of Appeals refused to sustain a conviction for selling phonograph records based on an information charging violation of the first provision of the state act, which was substantially equivalent to the federal provision here involved except that the word 'matter' was modified by the phrase 'written or printed.' The state court did not find it necessary to determine whether a prosecution could have been based on the second provision, which covers 'any article or instrument of indecent or immoral use.' People of the State of New York v. Strassner, 299 N.Y. 325, 87 N.E.2d 280. 5 Since the decision below, a bill has been introduced in the House of Representatives at the request of the Department of Justice to amend the statute so as to prohibit the transportation of obscene phonograph records in interstate commerce. H.R. 6622, 81st Cong., 2d Sess. In requesting this amendment, the Assistant to the Attorney General stated that whether or not the present statute applied to phonograph records was 'questionable,' particularly in the light of the decision below. Recalling the 1920 amendment to bring motion-picture film within the coverage of the statute, he urged that 'Apparently, the time has now arrived for a further amendment to bring obscene phonograph records clearly within the scope of the present section.' This proposed bill is still pending in the House Committee on the Judiciary.

23

338 U.S. 621 70 S.Ct. 392 94 L.Ed. 393 CHAPMAN, Department of Interior,v.SHERIDAN-WYOMING COAL CO., Inc. No. 60. Argued Jan. 9, 1950. Decided Feb. 6, 1950. Mr. Roger P. Marquis, Washington, D.C., for petitioner. Mr. T. Peter Ansberry, Washington, D.C., for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 This action by a lessee of coal-mining rights in public lands seeks to prevent leasing of similar rights in other lands to a competitor. The case is before us only on pleadings. The original complaint was dismissed by the District Court on several grounds but the Court of Appeals affirmed only on the ground that the complaint showed no standing to sue, there being no allegation of special injury to any property right of plaintiff. Sheridan-Wyoming Coal Co. v. Krug, 83 U.S.App.D.C. 162, 168 F.2d 557. It gave leave to apply to the District Court to amend in this respect. The District Court denied the privilege, however, holding that the proposed new matter added nothing material, and that amendment would be idle and needlessly prolong the litigation. This, we think, was equivalent in effect to sustaining a demurrer to the amended complaint and requires us to treat well pleaded facts as true. On this basis, the Court of Appeals reversed and, in substance, held that the amended complaint does state a cause of action. 84 U.S.App.D.C. 288, 172 F.2d 282. We granted certiorari. 338 U.S. 810, 70 S.Ct. 54. 2 The hypothesis on which the legal issues are to be decided is this: 3 At all relevant times the following regulation, promulgated by the Secretary of the Interior, has been in effect: 'Showing reguired that an additional coal mine is needed. The General Land Office will make favorable recommendation that leasing units be segregated and that auctions be authorized only in cases where there has been furnished a satisfactory showing that an additional coal mine is needed and that there is an actual need for coal which cannot otherwise be reasonably met.' 43 CFR 1938, § 1933. 4 It originated in 1934, when the coal industry was demoralized by excess production capacity described in opinions of this Court. Appalachian Coals, Inc., v. United States, 288 U.S. 344, 361, 53 S.Ct. 471, 474, 77 L.Ed. 825; Carter v. Carter Coal Co., 298 U.S. 238, opinion of Cardozo, J., 324, 330, 56 S.Ct. 855, 878, 881, 80 L.Ed. 1160; Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 395, 60 S.Ct. 907, 913, 84 L.Ed. 1263. The policy which the Department embodied in this regulation, and to which it has since adhered, was stated in letters of the Secretary set forth in the margin.1 5 In September, 1943, the Sheridan-Wyoming Coal Company leased additional lands located in Wyoming for coal mining purposes from the Government and, 'in reliance upon the Regulation,' has expended large sums in development and built up a prosperous business in the rather low-grade coal mined and largely consumed in that region. 6 In December, 1943, the Big Horn Company applied for a lease of nearby lands for production of competitive coal, and in 1945 applied for additional lands. Meanwhile Big Horn already had established mines on partially exhausted state-owned lands and desired the federal lands to prolong its business. The Sheridan-Wyoming Company, among others, protested on the basis of the regulation. The protest, after hearings, was overruled and, unless prevented, the Secretary will lease to Big Horn. The Secretary has made no finding that there is need for any additional supply of coal and, in fact, there is no such need. If he leases to Big Horn, the two companies will have capacity to produce in excess of the demand for that grade of coal in the limited market. The investment of Sheridan-Wyoming will be substantially impaired and its volume of sales decreased and profitable markets lost. About these three ultimate facts—the regulation, the lease and the threatened lease to a competitor—the parties have argued several intricate and interesting questions as to the standing of the plaintiff to sue, whether the suit really is one against the United States without sovereign consent and whether the Secretary has abused his power in entertaining the application of Big Horn. These questions we do not need to discuss because of the view we take of more fundamental aspects of the case. We think the facts give rise to no cause of action, because the proposed lease does not breach any contract right or invade any property right of plaintiff and does not violate any law. Hence, the leasing is within the discretionary power of the Secretary and courts will not review its exercise. 7 I. Contract Rights. 8 The court below has sustained the complaint for the principal reason that a lease to Big Horn would breach the lease to plaintiff and that plaintiff has a property right to have the lands involved withheld from lease. 9 It is only on this basis of its property rights, created by contract, that plaintiff has been held to have standing to sue; for, if it has such rights, the court below truly said (172 F.2d 282, 288), 'The prevention of a breach of a restrictive provision in a contract is one of equity's most usual functions.' Credited with 'the status of one claiming a property right by contract, threatened with invasion,' the plaintiff has been termed by the Court of Appeals 'possessor of a valuable right, created by contract in the presence of valid and binding restrictive regulations.' 10 Of course, no express covenant of plaintiff's lease restricts the Secretary from leasing other lands to other applicants. The restrictive covenant is sought to be supplied by implication. The lease, it is reasoned, was expressly made subject to the Mineral Leasing Act, 41 Stat. 437, as amended, 30 U.S.C. §§ 181 et seq., 30 U.S.C.A. § 181 et seq.; the lease constructively includes the statute; the regulation which was not referred to in the lease nevertheless had the force and sanction of statute; hence, the restrictive regulation was a covenant of the lease. It is said the threatened lease would violate the regulation. For the purpose of testing the contract-right theory, we shall assume that it does so. 11 What is the contract property right assumed? It is a right to nondevelopment of coal reserves in an indeterminate but substantial part of the public domain for benefit of its own lease. It is not a right necessary to the fullest physical development and enjoyment of all the lands plaintiff acquired for itself, and is one not normally appurtenant to real estate. The assumed covenant is purely negative in character and its whole burden is upon other premises owned by the United States in which the plaintiff has no other interest. They are premises, moreover, in which it is doubtful whether plaintiff could lawfully acquire any other interest in view of the limited areas which the statute allows to one lessee. By the assumed covenant, alienation and utilization of public lands in the manner authorized by Congress is restricted. This is for an unstated and indeterminable period. And it is accomplished not by a covenant expressed in the lease itself, but by one read into it from the regulations. 12 A competent grantor by appropriate covenants could, of course, convey the right claimed here, and equity would enforce it. But when a right 'consists in restraining the owner from doing that with, and upon, his property which, but for the grant or covenant, he might lawfully have done,' it is an easement, sometimes called a negative easement, or an amenity. Trustees of Columbia College v. Lynch, 70 N.Y. 440, 447, 26 Am.Rep. 615. 'An equitable restriction,' which prevents development of property by building on it, has been said to be 'an easement, or servitude in the nature of an easement,' a 'right in the nature of an easement,' and an 'interest in a contractual stipulation which is made for their common benefit.' Such 'equitable restrictions' are real estate, part and parcel of the land to which they are attached and pass by conveyance. River-bank Improvement Co. v. Chadwick, 228 Mass. 242, 246, 117 N.E. 244, 245, L.R.A. 1918B, 55. A contractual restriction which limits the use one may make of his own lands in favor of another and his lands is 'sometimes called a negative easement, which is the right in the owner of the dominant tenement to restrict the owner of the servient tenement in the exercise of general and natural rights of property.' It is an interest in lands which can pass only by deed and is in every legal sense an incumbrance. Uihlein v. Matthews, 172 N.Y. 154, 158, 64 N.E. 792, 793. 13 But whatever we might determine to be the technical nature of the collateral property right claimed to result from Sheridan's lease, to any extent that it added a property right to the plaintiff's lands it created an incumbrance or subtraction from the aggregate of rights in the United States. Courts would not lightly imply against any land owner a covenant which would restrict alienation or enjoyment of his estate. There are even stronger reasons against implied covenants imposing easements, servitudes, amenities or restrictions upon the public lands. 14 The Mineral Leasing Acts confer broad powers on the Secretary as leasing agent for the Government. We find nothing that expressly prevents him from taking into consideration whether a public interest will be served or injured by opening a particular mine. But we find no grant of authority to create a private contract right that would override his continuing duty to be governed by the public interest in deciding to lease or withhold leases. 15 The leasing Acts strictly limit the area which any one lessee may acquire, either directly or indirectly. 30 U.S.C. § 184, 30 U.S.C.A. § 184. But if, in taking up a permitted allotment of public lands, one may acquire a right that other areas far more extensive must lie fallow and unused for the benefit of his lands, he is acquiring an interest in prohibited lands and an interest that may be worth many times that interest which the statute allows him. And it is acquired without additional purchase price, rental, or royalty. 16 Moreover, it is not denied that the effect of sustaining plaintiff's suit would be to create a monopoly. Of course, it is a little one, limited to low-grade coal and to an advantageous shipping zone. Big Horn, if it gets no lease, must eventually go out of business, leaving its customers to Sheridan. And the United States could not for some period—we do not know how long—admit any other competitor to the field, unless it can be shown that Sheridan's supply is not equal to the market. It may, however, continue to acquire additional reserves as its own approach exhaustion. The whole claim of damage here is that competition from Big Horn will impair this snug little monopoly of the market to which plaintiff thinks it has acquired a property right. 17 But the policy of the leasing statute looks the other way. Besides limiting the leasehold of any one lessee, it prevents mineral rights, on pain of forefeiture, from passing into the hands of any unlawful trust or becoming the subject of any contract or conspiracy in restraint of trade. 30 U.S.C. § 184, 30 U.S.C.A. § 184. Its whole policy seems to contemplate the opening of the public domain to competitive exploitation. It nowhere authorizes anyone to grant or to obtain exclusive rights of access to these coal resources. What lessees can acquire from the Government is a supply of coal, not an exclusive market. We do not say that the Secretary may not withhold, or by regulation provide for withholding, lands from lease because the public interest would be injured, through impairing private business, from excess production capacity. But we find no authority to freeze this public interest into an irrevocable private property right. 18 The allegations of the amended complaint therefore do not show a cause of action to enforce a restrictive covenant or property right against leasing other public lands as authorized by statute. II. Violation of Law or Regulation. 19 Since the District Court was overruled by the Court of Appeals only because of the latter's property rights theory and since the complaint without these allegations had earlier been held insufficient, it may be questioned whether other grounds to sustain the judgment below can be availed of. But even if the allegations fail to show a property right that equity will protect, they might be sufficient to show a special injury or interest, such as would enable plaintiff to raise the question of violation of law or regulation in the proposed leasing. To end a litigation already pending too long, we assume, without deciding, that plaintiff may raise this issue which we now consider. 20 The only claim of law violation is that the Secretary is proposing to violate his own regulation, promulgated pursuant to the Act and hence having the force of law. That it binds him as well as others while it is in effect is not doubted. 21 The regulation on literal reading does not purport to prohibit the Secretary from any leasing unless need for new mines be shown. It does direct the General Land Office (now the Bureau of Land Management) to find need for additional capacity before recommending new leasing. Its recommendation, however, is only advisory and can be overruled or disregarded. On its face, therefore, the regulation would seem to be directed primarily to a procedural matter within the Department of the Interior. However, it is claimed that the letters of Secretary Ickes at the time it was adopted and the uniform practice since, show it to have been a regulation fixing a controlling policy. We proceed on that assumption. 22 In the case before us the Secretary neither repudiates the regulation nor stands upon any right to depart from it. He says that, properly construed, it does not apply to the proposed Big Horn lease. It only prevents a lease which will introduce a new competitor to the filed and not, he says, a lease which would only enable an existing mine and an established business to continue. Sheridan argues that this reasoning sanctions an evasion of the regulation in that Big Horn opened its mine on partially depleted state lands knowing it must get federal lands also or quit. The implication is that state lands were used as a sort of portal in which to stand while prying a federal lease out from under the regulation. Plaintiff insists that the Secretary is required to act in the light of conditions when Big Horn first applied, and not as of now when it has built up a going business on the inadequate state leases, aided by war conditions. 23 But the action is one in equity, and 'equity will administer such relief as the exigencies of the case demand at the close of the trial.' Bloomquist v. Farson, 222 N.Y. 375, 380, 118 N.E. 855, 856; Lightfoot v. Davis, 198 N.Y. 261, 273, 91 N.E. 582, 586, 29 L.R.A.,N.S., 119, 139 Am.St.Rep. 817, 19 Ann.Cas. 747. The question on injunction is whether the action threatened will be a violation if it now takes place in light of conditions shown by the proposed amended complaint. That pleads findings of the Department which show what has happened since the Big Horn application was filed. Without recourse to federal lands, it has established a mine and a business in the face of Sheridan competition. If time has improved Big Horn's position in this respect, it must be noted that the delay in acting on its application has been largely due to plaintiff's protests and litigations. 24 We think a court of equity cannot term unreasonable the view of the Secretary that Big Horn's lease is not for 'an additional coal mine,' need for which must be proved. It does not use federal reserves to add a new competitor to the market. It uses them to keep one there. We think the distinction is substantial and the Secretary's interpretation of the regulation is permissible, even if not inevitable. The declining market following the war and the growing use of oil may present difficult problems of survival for government lessees and of fair dealing for the Secretary. But courts can intervene only where legal rights are invaded or the law violated. 25 We think the District Court rightly concluded that the amended complaint fails to state a legal case for the relief asked. Accordingly, the judgment below is reversed. 26 Reversed. 27 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 'Exhibit 'A' 'Excerpt From Letter of January 24, 1934, From the Secretary of the Interior to the Director of the Bureau of Geological Survey. 'The question of the advisability of withholding new leases of coal lands of the United States has been presented to me. 'It is clear from the language of section 2 of the leasing act of February 25, 1920 (41 Stat. 437 (30 U.S.C.A. §§ 201, 202)), and from the interpretation given to Section 13 of that act (30 U.S.C.A. § 221), relating to oil and gas, by the Supreme Court in the case of United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 51 S.Ct. 502, 75 L.Ed. 1148, that it is within the discretionary authority of the Secretary of the Interior whether he shall issue any coal leases and coal prospecting permits. In the present situation of the coal industry it is desirable that very few, if any, new coal leases or prospecting permits be issued. 'Taking into consideration, however, that there may be some cases where new small coal mines for local needs are advisable and that there may also be cases where leases for shipping mines should not be denied, it is thought that no general order should be issued in effect suspending the operation of the leasing act as to new coal leases and prospecting permits. It is believed that substantially the same result can be reached by declining to offer coal lands for lease or to grant prospecting permits unless an actual need for coal which cannot otherwise be reasonably purchased or obtained is shown. * * * 'Hereafter the offering of coal lands for lease by competitive bidding or the granting of prospecting permits should not be recommended unless you have reliable information that there is an actual need for coal which cannot otherwise be reasonably met.' 'Exhibit 'B' 'Excerpt From Letter of January 24, 1934, From the Secretary of the Interior to the Commissioner of the General Land Office. 'In the present situation of the coal industry it is desirable that very few, if any, new coal leases or prospecting permits be issued. 'Taking into consideration, however, that there may be some cases where new small coal mines for local needs are advisable and that there may also be cases where leases for shipping mines should not be denied, it is thought that no general order should be issued in effect suspending the leasing act as to new coal leases and prospecting permits. It is believed that substantially the same result can be reached by declining to offer coal lands for lease or to grant prospecting permits unless an actual need is shown for coal which cannot otherwise be reasonably purchased or obtained. * * * 'It is advisable that you in the first instance require lease applicants to show fully the need for additional production of coal.'

89

338 U.S. 561 70 S.Ct. 386 94 L.Ed. 346 MANNINGv.SEELEY TUBE & BOX CO. OF NEW JERSEY. No. 70. Argued Nov. 17—18, 1949. Decided Feb. 6, 1950. Mr. Philip B. Perlman, Solicitor General, Washington, D.C., for petitioner. Messrs. George G. Tyler, New York City, Walter J. Bilder, Newark, N.J., for respondent. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 The facts of this case have been agreed upon by stipulation. On December 15, 1941, respondent taxpayer, a New Jersey corporation, filed a corporate tax return for its fiscal period, January 1, 1941, to September 30, 1941. On January 12, 1942, the Commissioner of Internal Revenue assessed the tax,1 which respondent timely paid. Respondent was adjudged a bankrupt and a receiver appointed on July 7, 1943. On August 2, 1943, the Commissioner, using the accelerated procedure applicable in bankruptcy cases,2 assessed deficiencies in the 1941 taxes with interest from the date the tax was properly due to the assessment date.3 2 On March 3, 1944, respondent filed its return for the fiscal period from October 1, 1942, to September 30, 1943, showing a net operating loss4 for that year. This loss, when carried back in accordance with § 122(b)(1) of the Internal Revenue Code,5 was sufficient to abate completely respondent's tax liability for 1941. Respondent then filed claims for a refund of that part of the 1941 tax which had already been paid, and for the abatement of the assessed deficiency and interest. The Commissioner abated the deficiency, but refused to refund all the tax which had been paid, retaining an amount equal to the interest which had been assessed on the deficiency. 3 Respondent then sued the Collector for the interest. The District Court sustained the Collector, holding that the payment of the interest remained an obligation of the taxpayer, even though the assessed deficiency had itself been abated. 1948, 76 F.Supp. 937. The Court of Appeals reversed, holding that the carry-back, in wiping out the debt of the tax deficiency, must also have wiped out the interest which had been assessed on that deficiency. 1948, 172 F.2d 77. Because of the frequency of the use of the carry-back provision of the Internal Revenue Code, we granted certiorari. 1949, 337 U.S. 955, 69 S.Ct. 1531. 4 The general statutory scheme which presents the problem is as follows: As of a certain date the taxpayer has a duty to file a return for the previous fiscal year and pay the amount of the tax actually due for that year.6 If this return is erroneously calculated and the payment is less than the tax properly due, the Commissioner, using the procedure appropriate to the particular situation, may assess a deficiency, the difference between the tax imposed by law and the tax shown upon the return.7 Interest upon this deficiency at the rate of six per cent from the date the tax was lawfully due to the date of the assessment is assessed at the same time as the deficiency.8 If a net operating loss is subsequently sustained, that loss may be carried back and added to the deductions for the two previous taxable years, with appropriate adjustments in the tax liability for those years. The problem with which we are concerned in this case is whether the interest on a validly assessed deficiency is abated when the deficiency itself is abated by the carry-back of a net operating loss. 5 We hold that the interest was properly withheld by the Collector. The subsequent cancellation of the duty to pay this assessed deficiency does not cancel in like manner the duty to pay the interest on that deficiency. From the date the original return was to be filed until the date the deficiency was actually assessed, the taxpayer had a positive obligation to the United States: a duty to pay its tax. See Rodgers v. United States, 1947, 332 U.S. 371, 374, 68 S.Ct. 5, 7, 92 L.Ed. 3; United States v. Childs, 1924, 266 U.S. 304, 309—310, 45 S.Ct. 110, 111, 69 L.Ed. 299; Billings v. United States, 1914, 232 U.S. 261, 285—287, 34 S.Ct. 421, 425—426, 58 L.Ed. 596. For that period the taxpayer, by its failure to pay the taxes owed, had the use of funds which rightfully should have been in the possession of the United States. The fact that the statute permits the taxpayer subsequently to avoid the payment of that debt in no way indicates that the taxpayer is to derive the benefits of the funds for the intervening period. In the absence of a clear legislative expression to the contrary, the question of who properly should possess the right of use of the money owed the Government for the period it is owed must be answered in favor of the Government. 6 It is apparent from an inspection of the Code that Congress intended the United States to have the use of the money lawfully due when it became due. Several sections of the Code prescribe penalties and additions to the tax for negligence and fraud.9 A taxpayer who files a timely return but does not pay the tax on time must pay interest on the tax until payment.10 Even when the Commissioner, at the request of the taxpayer, authorizes an extension of the time of payment, interest must be paid by the taxpayer for the period of the extension.11 And when the Commissioner assesses a deficiency he also may assess interest on that deficiency from the date the tax was due to the assessment date.12 7 The enactment of the carry-back provision in 1942 did not change this policy of the statute requiring prompt payment. This section was intended to afford taxpayers an opportunity to present for tax purposes a realistic, balanced picture of their profits and losses. It permits a taxpayer to add a net operating loss for one year to the deductions for the two previous taxable years. The Report of the Senate Committee on Finance states that the purpose of the section was to afford relief to cases where maintenance and upkeep expenses were deferred to peacetime years because of wartime restrictions. S.Rep. No. 1631, 77th Cong., 2d Sess. 51—52 (1942). But there is no indication that Congress intended to encourage taxpayers to cease prompt payment of taxes. The same Report, explaining the operation of the section which became the present carry-back provision, states, 'A taxpayer entitled to a carry-back of a net operating loss or an unused excess profits credit * * * will not be able to determine the deduction on account of such carry-back until the close of the future taxable year in which he sustains the net operating loss or has the unused excess profits credit. He must therefore file his return and pay his tax without regard to such deduction, and must file his claim for refund at the close of the succeeding taxable year when he is able to determine the amount of such carry-back.' S.Rep. No. 1631 at 123 124. (Italics added.) We can imagine no clearer indication of a Congressional understanding and intent that the carry-back was not to be interpreted as deferring or delaying the prompt payment of taxes properly due. 8 Although it is true that for many purposes the carry-back is equivalent to a de novo determination of the tax, our conclusion that this section does not retroactively alter the duty of a taxpayer to pay his full tax promptly is amply supported by § 3771(e) of the Code.13 That section, an integral part of the carry-back provision, prohibits a taxpayer who does pay a tax which is subsequently abated by a carry-back from claiming interest from the Government for the intervening period. It is clear, therefore, that Congress in 1942 did not intend to change the basic statutory policy: the United States is to have the possession and use of the lawful tax at the date it is properly due. 9 To sustain respondent's contention would be to place a premium on failure to conform diligently with the law. For then a taxpayer who did not pay his taxes on time would receive the full use of the tax funds for the intervening period, while the taxpayer who did obey the statutory mandate and pay his lawful taxes promptly would be prohibited by § 3771(e) from having the use of the money for that period. We cannot approve such a result. 10 Any other interpretation would be inconsistent with the present structure of the Code, as amended by § 4(a) of the Tax Adjustment Act of 1945, 59 Stat. 519, now §§ 3779 and 3780 of the Code. Prior to 1945, the Commissioner had power to authorize, at the request of the taxpayer, an extension of time for the payment of taxes, and interest on such an extension was charged at the rate of six per cent.14 The Tax Adjustment Act of 1945 was passed to improve the cash position of taxpayers by allowing them to defer current tax payments if there was a reasonable chance that these payments would be returned to them in the future because of business losses, and to speed up the refund of taxes paid. H.R.Rep. No. 849, 79th Cong., 1st Sess. 1—6 (1945); Joint Committee on Internal Revenue Taxation Rep. No. 1, 79th Cong., 1st Sess. 6—9 (1945). Under § 3779 a corporation filing its return for the preceding tax year has the right to obtain an extension of time for the payment of the tax for that preceding year. This extension may be obtained if the corporation expects to suffer, in the fiscal year in which the return is filed, a net operating loss sufficient to diminish, by a carry-back, its tax liability for the preceding tax years. At the close of that year, the taxpayer may file, under § 3780, an application for a tentative readjustment of taxes for preceding years, including a quick refund of taxes paid or an abatement of taxes which have been deferred. A corporation which does take advantage of these provisions is not completely absolved from the payment of interest on deferred taxes actually abated. For § 3779(i) expressly provides that the corporation must pay three per cent interest on deferred taxes actually abated by the carry-back and six per cent on those not abated. Again it is apparent that the Code contemplates timely payment of taxes and subsumes the right of the United States to the interim use of the tax payments. 11 It is argued that the conclusion that respondent is not entitled to a refund of the assessed interest is unfair, allegedly discriminating against a taxpayer whose deficiency is assessed under the accelerated bankruptcy procedure in favor of one whose deficiency is assessed under § 272(a)(1), the more customary '90-day letter' Tax Court procedure. This section provides that in the usual case the Commissioner must notify the taxpayer that he intends to assess a deficiency against him. The taxpayer is then allowed ninety days in which to file a petition with the Tax Court for a redetermination of the alleged deficiency, and the Commissioner is restrained from assessing any deficiency until the decision of the Tax Court becomes final. Nor may the Commissioner assess more than the amount the Tax Court determines to be the deficiency. Section 292(a), providing for interest on deficiencies, states, 'Interest upon the amount determined as a deficiency shall be assessed at the same time as the deficiency * * *.' The argument is that if there is no deficiency there can be no interest, and, it is further urged, the Tax Court will normally arrive at a result of no deficiency, for it will take into consideration the net operating loss carry-back in its redetermination. Therefore, no interest will be assessed. 12 At the time of the principal assessment in this case, however, the net operating loss had not yet been reported. Nor has the validity of the deficiency assessment been challenged at any time throughout the litigation. Thus, the comparable situation to the instant case would be, if, before the net operating loss was claimed, the Tax Court was confronted with a deficiency determined by the Commissioner. We see no reason why that method of assessment, or any of the others authorized by statute, would arrive at a different figure because of an unclaimed net operating loss. Whether the language of the Code requires a different result when the loss is claimed before the attempted assessment of the deficiency is a question which is not considered by us on this record. We hold that where a deficiency and interest have been validly assessed under any applicable statutory procedure, a subsequent carry-back with an abatement of the deficiency does not abate the interest previously assessed on that deficiency. 13 Respondent also places great reliance on the principle that 'interest is an accretion to and part of the tax,' and, therefore, must be abated when the tax is abated. The cases to which we have been referred in support of this principle deal with compromises of taxes which were incorrectly assessed at the outset, and not, as here, with a subsequent abatement of a tax correctly assessed. As such, they are not persuasive of a contrary result. 14 Two administrative rulings15 on the carry-back provision of the Revenue Act of 1918, 40 Stat. 1057, are cited as opposed to this interpretation of the Code. We see no need to distinguish these regulations or decisions. Two rulings relating to a carry-back section of twenty-five years ago, not repeated in the intervening quarter-century, are not sufficient to force us to conclude that Congress intended to impart their construction of that section to the present provision. 15 We have considered the remainder of the points raised by the court below and respondent, but for the foregoing reasons are in accord that the judgment of the Court of Appeals must be reversed and the judgment of the District Court affirmed. 16 Reversed. 17 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 The payment in question included corporate income tax, defense tax and excess profits tax. No question is presented as to the correctness of the defense tax payment. 2 Int.Rev.Code, § 274(a), 26 U.S.C.A. § 274(a): 'Upon the adjudication of bankruptcy of any taxpayer in any bankruptcy proceeding or the appointment of a receiver for any taxpayer in any receivership proceeding before any court of the United States or of any State or Territory or of the District of Columbia, any deficiency (together with all interest, additional amounts, or additions to the tax provided for by law) determined by the Commissioner in respect of a tax imposed by this chapter upon such taxpayer shall, despite the restrictions imposed by section 272(a) upon assessments be immediately assessed if such deficiency has not theretofore been assessed in accordance with law. In such cases the trustee in bankruptcy or receiver shall give notice in writing to the Commissioner of the adjudication of bankruptcy or the appointment of the receiver, and the running of the statute of limitations on the making of assessments shall be suspended for the period from the date of adjudication in bankruptcy or the appointment of the receiver to a date 30 days after the date upon which the notice from the trustee or receiver is received by the Commissioner; but the suspension under this sentence shall in no case be for a period in excess of two years. Claims for the deficiency and such interest, additional amounts and additions to the tax may be presented, for adjudication in accordance with law, to the court before which the bankruptcy or receivership proceeding is pending, despite the pendency of proceedings for the redetermination of the deficiency inpursuance of a petition to the Tax Court; but no petition for any such redetermination shall be filed with the Tax Court after the adjudication of bankruptcy or the appointment of the receiver.' 3 Deficiencies were assessed both as to the normal income tax and as to the excess profits tax. Further deficiencies were assessed March 21, 1944. The interest on these deficiencies amounted to $82.66, whereas the interest on the deficiencies assessed in August, 1943, totaled $4,430.68. We feel that any possible difference in result attributable to the timing of the assessment has little effect on the amount to which taxpayer might be entitled in this case, and we do not consider this factor. The record is bare of any claim or payment of interest from the date of the assessment of the deficiency until the date of the claim of the refund. See Int.Rev.Code, § 294(b), 26 U.S.C.A. § 294(b). Respondent does not urge and we need not decide the applicability of City of New York v. Saper, 1949, 336 U.S. 328, 69 S.Ct. 554, where we held that under the circumstances of that case, bankruptcy terminated the running of interest on claims against the bankrupt. In view of the facts that respondent was revested with title to its assets on June 4, 1945, and that the period between the bankruptcy and the major part of the assessment was less than a month, we do not feel that the holding of that case could effect any significant change in the disposition of the problem at hand. 4 Int.Rev.Code § 122(a), 26 U.S.C.A. § 122(a): 'As used in this section, the term 'net operating loss' means the excess of the deductions allowed by this chapter over the gross income, with the exceptions, additions, and limitations provided in subsection (d).' 5 Int.Rev.Code § 122(b)(1), 26 U.S.C.A. § 122(b)(1): 'If for any taxable year beginning after December 31, 1941, the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-back for each of the two preceding taxable years, * * *.' The carry-back operated similarly on the excess profits tax. 26 U.S.C. §§ 710, 728, 729, 26 U.S.C.A. §§ 710, 728, 729 (1946). The entire excess profits section of the Code, passed in 1940, 54 Stat. 975, was repealed in 1945, 59 Stat. 568. 6 See Int.Rev.Code, §§ 52(a), 53(a), 56(a), 26 U.S.C.A. §§ 52(a), 53(a), 56(a). The tax may also be paid in quarterly installments. Int.Rev.Code, § 56(b), 26 U.S.C.A. § 56(b). 7 Int.Rev.Code, § 271(a), 26 U.S.C.A. § 271(a). 8 Int.Rev.Code, § 292(a), 26 U.S.C.A. § 292(a). 9 E.g., Int.Rev.Code, §§ 291(a), 293(a), (b), 26 U.S.C.A. §§ 291(a), 293(a, b). 10 Int.Rev.Code, § 294(a)(1), 26 U.S.C.A. § 294(a)(1). 11 Int.Rev.Code, §§ 56(c)(1), 295, 26 U.S.C.A §§ 56(c)(1), 295. 12 Int.Rev.Code, § 292(a), 26 U.S.C.A. § 292(a). 13 Int.Rev.Code, § 3771(e), 26 U.S.C.A. § 3771(e): 'If the Commissioner determines that any part of an overpayment is attributable to the inclusion in computing the net operating loss deduction for the taxable year of any part of the net operating loss for a succeeding taxable year or to the inclusion in computing the unused excess profits credit adjustment for the taxable year of any part of the unused excess profits credit for a succeeding taxable year, no interest shall be allowed or paid with respect to such part of the overpayment for any period before the filing of a claim for credit or refund of such part of the overpayment or the filing of a petition with the Tax Court, whichever is earlier; * * *' 14 Int.Rev.Code, §§ 56(c), 295, 26 U.S.C.A. §§ 56(c), 295. 15 L.O. 1115, II—2 Cum.Bull. 221 (1923); I.T. 1447, I—2 Cum.Bull. 220 (1922).

1112

338 U.S. 572 70 S.Ct. 379 94 L.Ed. 353 CIVIL AERONAUTICS BOARDv.STATE AIRLINES, Inc. STATE AIRLINES, Inc. v. CIVIL AERONAUTICS BOARD et al. PIEDMONT AVIATION, Inc. v. STATE AIRLINES, Inc. Nos. 157 to 159. Argued Dec. 12, 1949. Decided Feb. 6, 1950. Mr. Frederick W. P. Lorenzen, New York City, for State Airlines, Inc., for respondent. Mr. Emory T. Nunneley, Jr., Washington, D.C., for Civil Aeronautics Board. Mr. Charles H. Murchison, Jacksonville, Fla., for Piedmont Aviation, Inc. Certiorari dismissed: judgment reversed. Mr. Justice BLACK delivered the opinion of the Court. 1 Acting under the Civil Aeronautics Act of 1938,1 the Civil Aeronautics Board (C.A.B.) consolidated some 45 route applications of 25 airlines into one area proceeding, styled the 'Southeastern States Case.' After hearings, it made findings of fact as to what new routes should be established and which of the applicants could best serve these routes. It then entered orders authorizing certificates of convenience and necessity for several new routes in the area. Piedmont Aviation, Inc., was authorized to engage in air transportation of persons, property, and mail along certain of these routes. State Airlines, Inc., was denied authority to act as a carrier on any of them.2 State filed a petition in the United States Court of Appeals for the District of Columbia Circuit asking that court to reverse the orders and remand the case to the Board with directions to grant carrier certificates to State instead of Piedmont.3 The court reversed insofar as the orders awarded certificates to Piedmont but held that it was without power to direct the Board to certify State.4 A crucial ground of the court's reversal was its finding that Piedmont had never filed an application for the particular routes certified, an indispensable prerequisite to certification as the Court of Appeals interpreted the Civil Aeronautics Act. A second ground for reversal was that since Piedmont had filed no application for the particular routes certified, State failed to have sufficient notice that the Board might consider Piedmont as a competing applicant, and thus was deprived of a fair opportunity to discredit Piedmont's fitness and ability to serve those routes. A third ground was that the Board's findings that Piedmont was fit and able to serve the routes 'were, in the legal sense, arbitrary and capricious and lacked the support of substantial evidence.' Both Piedmont and the Board petitioned for review of the court's reversal, while State cross-petitioned for review of the court's refusal to direct certification of State.5 We granted certiorari because a final determination of the questions involved, particularly those involving interpretation of the Act, is of importance for future guidance of the Board in carrying out its congressionally imposed functions. 338 U.S. 812, 70 S.Ct. 67. 2 Fitst. We hold that Piedmont's applications were sufficient to permti certification of Piedmont for the routes awarded. The contrary holding of the Court of Appeals rested primarily on its interpretation of § 401(d)(1) and (2) of the Civil Aeronautics Act. The particular language most relied on by the court was that which empowers the Board to issue certificates 'authorizing the whole or any part of the transportation covered by the application, if it finds that the applicant is fit, willing, and able to perform such transportation properly * * *.' (Italics used by the Court of Appeals.)6 The Court of Appeals read this language as showing a congressional purpose to bar the Board from granting any certificates in which the routes awarded deviate more than slightly from the precise routes defined in the application. We think that such a narrow interpretation is not compelled by the language of § 401(d) and that the Act as a whole refutes any intent to freeze the Board's procedures in so rigid a mold. 3 The language of § 401[d][1] and (2) unqualifiedly gives the Board power, after application and appropriate findings, to issue certificates for the whole or any part of transportation covered in an application. This manifests a purpose generally to gear the award of certificates to an application procedure. But Congress made no attempt in (1) and (2) of § 401(d) to define the full reach or contents of an application. These subsections do not even require an applicant to designate the terminal cities or the intermediate points a proposed route would serve. A different provision, § 401(b), contains the only requirements directly imposed by Congress—that an application must be in writing and verified.7 With this one exception, § 401(b) provides that an application 'shall be in such form and contain such information * * * as the Board shall by regulation require.' And in § 1001 Congress granted the Board authority to 'conduct its proceedings in such manner as will be conducive to the proper dispatch of buiness and to the ends of justice.' Thus, except for the statutory requirement of written and verified applications, Congress plainly intended to leave the Board free to work out application procedures reasonably adapted to fair and orderly administration of its complex responsibilities. 4 Here the Board decided that the policies of the Act could best be served by a consolidated area proceeding. In doing so it did not exceed its procedural discretion. Only through such joint hearings could the Board expeditiously decide what new routes should be established, if any, and which of the numerous applicants should be selected as appropriate carriers for different routes. And in such a proceeding, as the Board has found, limiting all applications to the precise routes they describe would destroy necessary flexibility. For the Board's decision as to what new routes are actually available is not reached until long after the applications are filed. Recognizing this, Piedmont, like other airlines, inserted a so-called 'catchall clause' in its applications, broadly requesting authority to transport on 'the routes detailed herein, or such modification of such routes as the Board may find public necessity and convenience require.' It also included a general prayer 'for such other and further relief, general and specific, under Section 401 of the * * * Act * * * as the Board may deem appropriate, and to which the applicant may be entitled in any proceeding in which the application may be heard in part or in its entirety.' 5 We are convinced that the Board, in awarding routes varying from those specifically detailed in Piedmont's application, has not departed from the congressional policy hinging certification generally on application procedures. While the routes sought by Piedmont did differ markedly from those awarded,8 they were all in the general area covered by the consolidated hearings. All twenty-five applicants had asked for routes somewhere in the area, and many of these routes overlapped. In such an area proceeding it would exalt imaginery procedural rights above the public interest to hold that the Board is hamstrung by the lack of foresight or skill of a draftsman in describing routes. The flexible requirements set by the Board were reasonable. They accorded with the policies of the Act. The Board in well-considered opinions held that Piedmont's application met these requirements. That application also met the congressional requirements of writing and verification. So far as § 401(d)(1) and (2) are concerned, the Board acted within its power in entering the orders. 6 Second. The Court of Appeals recognized that full hearings were held in the area proceedings after due notice to all interested parties. But that court nevertheless held that State was without adequate notice that the Board might consider Piedmont as an applicant for routes encroaching on those sought by State. This contention largely rests on the statutory interpretation we have rejected. State argues, however, that since it never considered Piedmont as a possible applicant for the routes awarded, it failed to produce available evidence and arguments to convince the Board that Piedmont was not fit and able to serve as a carrier on the routes. 7 This challenge is substantial. The Board's major standard is the public interest in having convenient routes served by fit and able carriers. These questions are to be determined in hearings after notice. The prime purpose of allowing interested persons to offer evidence is to give the Board the advantage of all available information as a basis for its selection of the applicant best qualified to serve the public interest. Cf. Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 477, 642, 60 S.Ct. 693, 698, 84 L.Ed. 869, 1037. If the Board had neglected this purpose, State could rightly complain. 8 Here, however, we find that the Board fully appreciated its responsibility in this respect. It seems plain to us from the entire record that State did fully recognize that Piedmont was a potential competitive applicant in the consolidated proceedings. Their applications in large part sought certificates in the same general area. Each argued against the other before the Board. 9 Moreover, after issuance of the order, the Board granted State a limited rehearing to show, if it could, that the proceeding should be reopened to enable State to offer new evidence against Piedmont's fitness and ability. In the rehearing argument, State's main contention was that the Board lacked jurisdiction because of the limited nature of Piedmont's application, a contention we have already rejected. But State also contended that had it known Piedmont to be an actual competitor, State would have made diligent efforts by cross-examination and otherwise to prevent the Board's finding that Piedmont's qualifications were superior to State's. The record reveals that the Board gave most careful consideration to all the contentions made by State's counsel. The Board in an opinion discussed each of those contentions. 8 C.A.B. 716. With particular reference to the general contention that in reopened proceedings State could offer evidence to refute the Board's findings of Piedmont's superior qualifications, the Board said: 'Although in the course of subsequent argument State asserted that had it been aware of the situation it might have presented additional or different evidence and would have enlarged upon its inquiries into Piedmont's case, it did not in the course of the argument or in its petition for reconsideration, specify what the nature of such additional evidence or inquiries would have been.'9 Id., at 721. It was in this setting that the Board held State's showing inadequate to justify new hearings concerning the respective qualifications of State and Piedmont. In reaffirming its previous holding of Piedmont's superior qualifications, the Board said: 'The only practical approach that can be taken in cases of this type is to consider the applications, not with a view as to how an individual proposal would benefit the applicant, or whether a particular proposed route is required precisely as set forth in an application, but rather to consider the entire case with the objective of establishing a sound transportation pattern in the area involved.'10 8 C.A.B. at 722. 10 We think the standard adopted by the Board under which the public interest is given a paramount consideration is a correct standard. And since the Board's conclusion that the proceeding should not be reopened represents its informed judgment after a searching inquiry, we accept its conclusion. Because of the foregoing and other circumstances disclosed by the record we think there is no ground for State's contention that it failed to have a fair hearing. See Chicago, St. Paul, Minneapolis & Omaha R. Co. v. United States, 322 U.S. 1, 3, 64 S.Ct. 842, 843, 88 L.Ed. 1093. 11 Third. During the rehearing argument, counsel for State was asked by a member of the Board whether State took the position that Piedmont was 'not capable of running the route that was awarded.' He replied: 'We are taking the position that both State and Piedmont are fit and able, it's a question of which has demonstrated in this record to be more fit, willing and able.' State nevertheless contends here, and the Court of Appeals held, that there was no sufficient evidence to support the Board's finding of Piedmont's fitness and ability. This contention, like others, rests almost wholly on the argument that Piedmont had not applied for the particular routes awarded and thus could not have evidenced its ability to handle those routes. The Court of Appeals also emphasized the fact that the routes awarded required Piedmont to transport over mountains, whereas the detailed passenger routes for which it had applied would not have crossed the mountains; it contrasted this with State's applications, which had specifically shown routes crossing the mountains. Precisely what added skills, if any, are required for flights across mountains is a matter of proof. In the extensive hearings held in this area proceeding, each applicant was required to and did offer evidence concerning fitness and ability. Much of this evidence concerned the financial condition and experience in aviation of both Piedmont and State. The Board's opinions show the painstaking consideration given this evidence. The Board found both airlines fit and able, but found the evidence of qualifications as between the two weighted on Piedmont's side. We hold that the conclusion was supported by substantial evidence. 12 In view of our conclusion we need not consider the allegations of State's cross-petition in No. 158 and that case is therefore dismissed. In Nos. 157 and 159 the judgment of the Court of Appeals is reversed. It is so ordered. 13 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 14 Mr. Justice REED, with whom Mr. Justice FRANKFURTER joins, dissenting. 15 The Civil Aeronautics Board has been authorized by Congress to award certificates of convenience and necessity to applicants for air routes. The Board may give to one applicant, and deny to others, the exclusive privilege of serving an air route to the applicant's private profit. A determination by the Board, however, involves more than a choice among competing individuals; the Board has been made the guardian of the national interest and the arbiter of the conflicting concerns of various communities. The interests to be protected are so important that Congress has legislated to insure that those seeking this unique public privilege be not insulated from challenge and competition. The Civil Aeronautics Act provides, 52 Stat. 987, § 401: 16 'Application for Certificate 17 '(b) Application for a certificate shall be made in writing to the Authority and shall be so verified, shall be in such form and contain such information, and shall be accompanied by such proof of service upon such interested persons, as the Authority shall be regulation require. 'Notice of Application 18 '(c) Upon the filing of any such application, the Authority shall give due notice thereof to the public by posting a notice of such application in the office of the secretary of the Authority and to such other persons as the Authority may by regulation determine. Any interested person may file with the Authority a protest or memorandum of opposition to or in support of the issuance of a certificate. Such application shall be set for public hearing, and the Authority shall dispose of such application as speedily as possible. 19 'Issuance of Certificate 20 '(d) (1) The Authority shall issue a certificate authorizing the whole or any part of the transportation covered by the application, if it finds that the applicant is fit, willing, and able to perform such transportation properly, and to conform to the provisions of this Act and the rules, regulations, and requirements of the Authority hereunder, and that such transportation is required by the public convenience and necessity; otherwise such application shall be denied.' 21 The procedures so defined by Congress provide the frame within which the Board's discretion may freely move. So long as that discretion is exercised within the frame, the courts should not interfere. But because the responsibility placed in the Board by Congress is great, and because the damage a Board error in awarding a certificate may cause to other carriers and the public is irreparable, the courts should insist that the procedures be strictly followed. 22 They were not followed here. In 1945 the Civil Aeronautics Board consolidated for a common hearing the applications, particularized as required by the statute and regulations, of twenty-five air-line companies which had filed documents seeking certificates for forty-five specific routes, varying considerably, but all within an area that extends roughly from Maryland to Florida, Virginia to Missouri. After settling upon the few routes to be awarded, the Commission, without further notice to anyone, selected for one of these Piedmont, which had asked for a quite different route. How much the route granted differed from that applied for may be seen readily by a glance at the maps in 84 U.S.App.D.C. 374, 377, 174 F.2d 510, at page 513. This Court says it differed 'markedly.' 23 An administrative body must follow carefully the specific requirements laid down by Congress to protect the public from administrative absolutism. To insist that the statute be followed is not mere search for precision. The fact that State knew of the award of the route to Piedmont in time to apply for a rehearing does not justify the failure of the Board to give not only State, but others as well, an opportunity to contest fairly for the selected route before the Board's opinions crystallized. 24 Since the error of the Board lay in its failure to follow required procedure, it should be enough to call for a new determination if on additional evidence from State or the public, or on a different manner of presentation, the Board might have made its award to a carrier other than Piedmont. That it is not fanciful to assume it might have done so may be inferred from the statement of the Board in its first opinion that even then the choice between State and Piedmont was 'a close and difficult question.' 7 C.A.B. 863, 901. Moreover, when the limited rehearing was granted, the issue, at least in the mind of one member of the Commission, may have shifted. At one point this member said: 'Yes, but apart from all these legalisms, isn't the real issue whether or not we made a mistake and picked a carrier who cannot run this route? If we really get down and try to find what is the public interest, isn't that the real point?' This is quite different from the question of which carrier can best serve the public interest, convenience and necessity. 25 I see no objection to a proceeding in which applications for separately defined routes in a single large region are considered together. But within the framework of an 'area proceeding' the procedure for notice required by the statute should have been followed. After deciding on the routes for the 'area,' the Board should have permitted applicants to amend their applications to conform with the selected routes. Such material changes as Piedmont would have had to make would have required public notice under § 401(c) of the statute, and thus the attention of competing air lines and interested municipalities would have been directed to the controlling question of which air line would best serve the public interest on the selected route. This would have been the 'proper dispatch' of business that the statute requires. 26 It is true that a remand might well result in the issuance again of a certificate to Piedmont. That award, however, would be on an amended application and on proper notice, and, at least, the public and Piedmont's possible competitors would have an opportunity to be heard after preparation and in regular course. 27 The judgment of the Court of Appeals should be affirmed. 1 52 Stat. 973, 49 U.S.C. § 401 et seq., 49 U.S.C.A. § 401 et seq. 2 The several opinions of the Board are reported. 7 C.A.B. 863; 8 C.A.B. 585 and 716. 3 Authority for judicial review is given by § 1006 of the Act, 52 Stat. 1024, 49 U.S.C. § 646, 49 U.S.C.A. § 646. 4 84 U.S.App.D.C. 374, 174 F.2d 510. 5 The Board's petition is our Docket No. 157; Piedmont's is No. 159; State's cross-petition is No. 158. 6 There are slight but immaterial variants in the relevant language as it appears in (1) and (2) of § 401(d). Those subsections, as italicized by the Court of Appeals, read: '(1) The Board shall issue a certificate authorizing the whole or any part of the transportation covered by the application, if it finds that the applicant is fit, willing, and able to perform such transportation properly, and to conform to the provisions of this chapter (originally this Act) and the rules, regulations, and requirements of the Board hereunder, and that such transportation is required by the public convenience and necessity; otherwise such application shall be denied. '(2) In the case of an application for a certificate to engage in temporary air transportation, the Board may issue a certificate authorizing the whole or any part thereof for such limited periods as may be required by the public convenience and necessity, if it finds that the applicant is fit, willing, and able properly to perform such transportation and to conform to the provisions of this chapter and the rules, regulations, and requirements of the Board hereunder.' 7 'Application for a certificate shall be made in writing to the Board and shall be so verified, shall be in such form and contain such information, and shall be accompanied by such proof of service upon such interested persons, as the Board shall be regulation require.' Civil Aeronautics Act of 1938, as amended, § 401(b). 8 The Court of Appeals placed in its opinion two maps charting the passenger routes applied for by Piedmont and State and indicating that the routes awarded Piedmont far more nearly approximated those sought by State. The Board and State take the position that these maps do not show all of the points and routes applied for by either airline, and the Court of Appeals said as much with reference to the maps. But the view we take makes it unnecessary to elaborate the different views as to the precise routes for which Piedmont and State applied. 9 The record does show a statement by State's counsel, made near the end of the rehearing argument, that 'had State known that Piedmont was an applicant for these routes' it could have proven in the original hearings that Piedmont did not have 'facilities for all types of overhaul.' It may be that this general suggestion can be considered as a request by State to reopen the proceedings for proof on this particular single point. If so considered, it is sufficient to point out that the Board found that Piedmont had adequate financing to obtain all necessary equipment, which is a major cousideration in determining the comparative fitness and ability as between applicants who propose to operate newly established routes. See the case cited in the Board's opinion, American Export Airlines, Inc., Trans-Atlantic Service, 2 C.A.B. 16, 38 (1940). 10 In this Court a suggestion is made that two sentences by one member of the Board during the rehearing argument indicate that the Board acted on a wrong standard of public interest: 'Yes, but apart from all these legalisms, isn't the real issue whether or not we made a mistake and picked a carrier who cannot run this route? If we really get down and try to find what is the public interest, isn't that the real point?' It is said that this statement departs from the standard of 'public interest, convenience, and necessity.' But in the statement itself the Board member pointed out that the proper standard was 'the public interest.' Moreover, he went on to say that 'the important thing is not whether you win or Piedmont wins but whether the people of North Carolina and Kentucky and Virginia and that area in there get the kind of service that they should.'

78

338 U.S. 586 70 S.Ct. 370 94 L.Ed. 363 REGENTS OF UNIVERSITY SYSTEM OF GEORGIAv.CARROLL et al. No. 83. Argued Dec. 9, 1949. Decided Feb. 6, 1950. Mr. Hamilton Lokey, Atlanta, Ga., for petitioner. Mr. James A. Branch, Atlanta, Ga., for respondents. Mr. Max Goldman, Washington, D.C., for the Federal Communications Commission, as amicus curiae, by Special leave of Court. Mr. Justice REED delivered the opinion of the Court. 1 The Federal Communications Commission renewed a radio license only after the applicant, the Board of Regents, carried out a required repudiation of a contract with other persons, respondents here. The Commission had determined that unless the contract were given 'no further effect' a renewal of the license would not in the public interest. This was based on findings that the contract seriously jeopardized the applicant's financial position and that it allowed the other persons to profit from a situation created by a previous contract with the applicant that the Commission had held illegal. May a state now enforce the repudiated contract against the applicant although this would have the practical effect of nullifying the repudiation required by the Commission? That is the federal question presented in this proceeding. 2 The question arises in this way. The Georgia School of Technology received radio station WGST in 1923 as a gift. Petitioner1 operated the station until January 1930, when it made a contract with the Southern Broadcasting Company for the operation of the station. The contract was to run for a ten-year period, and the company was to receive all the earnings of the station except a percentage of the gross receipts. This percentage, which varied up to 10%, was to be paid Regents. Southern Broadcasting Stations, Inc., of which respondents are the former stockholders, succeeded to the rights of the company. The contract was extended for a period to end January 6, 1950. On execution both the original contract and the extenstion were filed with the Commission. 10 F.C.C. 110, 114. 3 Various renewals of petitioner's license were made during this period, but when petitioner applied for a renewal in 1940, the Federal Communications Commission ordered a hearing to determine whether the contract arrangement constituted a violation of the Federal Communications Act and whether renewal of the license to petitioner would serve the public interest, convenience and necessity. Southern was permitted to intervene in the proceeding. 4 The Commission found that although the contract provided that its execution should not release the licensee from its right and duty to maintain general control over the station, actually petitioner had exercised only nominal authority. The contract itself stipulated that Southern should arrange the programs and attend to all program details. In the operations under the contract Southern had purchased additional equipment and apparatus without consulting with petitioner, and since 1930 nothing had been spent by petitioner for purchase or maintenance of the equipment. Southern had contracted in its own name with buyers of broadcasting time and for network service. 5 From these facts the Commission determined that Southern's operation of petitioner's station violated the Commission's rule that a licensee must be responsible for the control and operation of the station, and that a licensee may not transfer to any person its responsibility as licensee except with the Commission's written consent. It also held that the Communications Act of 1934, 47 U.S.C.A. § 151 et seq., had been violated.2 6 The Commission issued proposed findings of fact and conclusions of law on March 23, 1943. This decision refused the application for renewal of the license. It said, however, that 'The Commission will consider the issuance of a renewal of the license to Georgia School of Technology provided the Commission is given assurance that the applicant is prepared to and will in fact assume and discharge the full responsibilities of a licensee.' 10 F.C.C. at 121. It permitted temporary continued operation. The proposal was adopted by the Commission May 8, 1943. No appeal was taken by petitioner or respondents from this order. See 47 U.S.C. § 402, 47 U.S.C.A. § 402. 7 In order to obviate the Commission's objection to Southern's operation of the station, petitioner on April 15, 1943, entered into the contract here in issue. Under it petitioner purchased from respondents all the shares of stock of Southern, and, as the consideration, agreed to pay each month a sum equal to 15% of the net billings3 of the station until January 6, 1950. Petitioner proceeded to liquidate Southern and to transfer the assets, consisting of station equipment, broadcasting contracts and sundries, to itself in trust for the Georgia School of Technology. Since July 9, 1943, petitioner has itself managed, directed and controlled the affairs of the station. 8 On May 23, 1943, petitioner filed another application for renewal of its license. While respondents had actual knowledge of this second proceeding, they were never parties to it by intervention or otherwise. After hearings, the Commission held that the public interest, convenience or necessity would not be served by a grant of the application. Estimating that under the new contract petitioner would be paying out 70% of the net earnings of the station, it found that petitioner's financial ability to conduct the station in the public interest would be jeopardized. It was concerned especially because it thought that the use of so much of the station income for the contract obligations would lessen the station's ability to enter the fields of FM and television. The Commission also found that the contract represented an effort to give further effect to the earlier managerial arrangements, which it had held violative of the Act and its regulations. It thought that the agreed price for the stock—estimated at over $300,000—was excessive because the equipment had only an estimated value of $50,000. Southern's title to that was questionable, and Southern had no 'legal interest' in the operation of the station. While the Commission did not undertake to pass upon the validity of the stock purchase contract as a matter of contract law, it concluded (11 F.C.C. 71, 76): 'A grant of the renewal application under circumstances where a party to an arrangement found by the Commission to be in contravention of law would continue to profit from such arrangement would not be in the public interest since it would, in effect, condone such illegality and thwart the Commission's efforts to enforce the requirements of the act.' The Commission on September 19, 1945, again denied the application, but it allowed the petitioner to continue operations and to make a new application provided it should affirmatively show 'that no further effect is given to the agreements' between petitioner and respondents. One of these agreements is the stock purchase contract involved in this present litigation. 9 Thereupon, the Regents on October 11, 1945, adopted a resolution repudiating the stock purchase contract, and added a copy of the resolution to its pending application for renewal of its license.4 By a statement attached to its application, the Regents informed the Commission that respondents had been notified of the resolution and announced that no settlement would be made with respondents without Commission approval.5 Respondents do not deny notice of the repudiation. On March 7, 1946, the Commission issued to petitioner the requested license, and has since renewed it for the period ending May 1, 1950. Thus petitioner has been able to operate its station without interruption throughout the years. 10 Until the repudiation, the agreed payments had been made under the contract. After the notice to respondents petitioner made no further payments, nor did it at any time, so far as the record indicates, make any effort or offer to return to respondents the property and the intangible assets acquired through the contract. The Regents cannot now restore the parties to their former position. The proceeding on review was brought by the respondents for an accounting on the contract in the Superior Court of Fulton County, Georgia, in June, 1947, for the sums accruing from August, 1945. 11 Petitioner defended the action on the ground that to permit recovery would be an interference with the Commission's power over broadcasting. It also contended that the Commission's requirement of disaffirmance made the purchase contract impossible of performance.6 The case was submitted by stipulation and documentary evidence, and there was no conflict as to the facts. The trial court entered a judgment for the amounts due under the contract through August, 1947, some $145,000. The court held that 'The Federal Communications Commission was without jurisdiction to nullify, change or anywise modify the duties and obligations of the parties to the contract of April 15, 1943.' It also decided that the Commission order requiring disaffirmance of the purchase contract 'does not constitute a valid defense or bar as a matter of fact or law to the right of the plaintiffs to enforce the provisions of the contract of April 15, 1943, on the ground that said order has rendered performance on the part of the defendant Board of Regents impossible.' 12 The Court of Appeals of Georgia accepted the trial court's determinations and affirmed.7 Since an important question of the relation of federal administrative power to state judicial power was involved, we granted certiorari. 338 U.S. 846, 70 S.Ct. 86. 13 We may summarily dispose of the defense of impossibility of performance. It is a matter of state law. It was a defense made in a state court to a contract entered into under the law of Georgia. Since petitioner actually was an operating licensee up to the entry of the judgment, the state court thought petitioner remained liable under the contract. 14 Whatever power the Federal Communications Commission had to affect the rights of the parties under these contracts rests on the Communications Act of 1934 and its amendments. The sections pertinent to the determination of this case appear in the margin.8 15 To lay bare the controlling issue in this case, we can remove several matters from discussion as not significant to our decision. There is no challenge to the Commission's ruling that Southern's operation of the station violated § 310(b) and the regulations in that it constituted a transfer of the licensee's responsibilities without consent of the Commission.9 We assume its soundness. Similarly we accept the ruling that the payments contemplated under the stock purchase contract made the petitioner financially unacceptable as a licensee,10 and we assume the validity of the Commission's conclusion that petitioner might be denied a license because the price promised respondents under the stock purchase contract permitted them to profit from their prior invalid arrangement.11 Thus our inquiry is narrowed to the point of whether in the light of the Supremacy Clause of the Constitution, Art. 6, cl. 2, a state may enter a judgment that grants respondents a recovery on the very stock purchase contract that justified the Commission's refusal of a license.12 16 Our former decisions interpretative of the Communications Act furnish a basis for examining this question. As an administrative body, the Commission must find its powers within the compass of the authority given it by Congress.13 When to assert its undoubted power to regulate radio channels,14 Congress set up the Federal Communications Commission, it prescribed licensing as the method of regulation. 47 U.S.C. § 307, 47 U.S.C.A. § 307. In its action on licenses, the Commission is to be guided by what we have called the 'touchstone' of 'public convenience, interest, or necessity.'15 Since the licensee receives no rights in the channel beyond the term of its license, the Commission may grant a license to a competitor even though it results in an economic injury to an existing station.16 Although the licensee's business as such is not regulated, the qualifications of the licensee and the character of its broadcasts may be weighed in determining whether or not to grant a license. Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 475, 642, 60 S.Ct. 693, 697, 84 L.Ed. 869, 1037; National Broadcasting Co., Inc., v. United States, 319 U.S. 190, 218, 227, 63 S.Ct. 997, 1010, 1014, 87 L.Ed. 1344. These cases make clear that the Commission's regulatory powers center around the grant of licenses. They contain no reference to any sanctions, other than refusal or revocation of a license, that the Commission may apply to enforce its decisions.17 17 Radio Station WOW, Inc., v. Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092, which required an examination into the respective powers of state courts and the Communications Commission, is particularly applicable to this case. The owner of licensed station WOW had leased the facilities for a term of years and had secured approval from the Commission of a transfer of the license to the lessee. The state courts set aside the lease for fraud and ordered a retransfer of the physical facilities to the lessor. The essential holding, so far as it relates to our present problem, lies in these words, 326 U.S. at page 131, 65 S.Ct. page 1481: 'We have no doubt of the power of the Nebraska court to adjudicate, and conclusively, the claim of fraud in the transfer of the station by the Society to WOW and upon finding fraud to direct a reconveyance of the lease to the Society. And this, even though the property consists of licensed facilities and the Society chooses not to apply for retransfer of the radio license to it, or the Commission, upon such application, refuses the retransfer. The result may well be the termination of a broadcasting station.' In the WOW case, the Commission had not passed upon the question of fraud, but if at the time of the state adjudication there had been a finding by the Commission that the facts did not justify a refusal to transfer the license, this finding would not have affected the right of the state court to determine independently the issue of fraud. 18 We now come to consider the arguments put forward to show that under the Act the Commission's orders are effective to bar recovery. One suggestion is that petitioner's position has a specific statutory basis in § 303(r), which permits the Commission to prescribe such 'conditions' as are 'necessary to carry out the provisions' of the Act. We do not think the suggestion is sound. Congress has enabled the Commission to regulate the use of broadcasting channels through a licensing power. It is in connection with this power that § 303(r) is to be interpreted. The Commission may impose on an applicant conditions which it must meet before it will be granted a license, but the imposition of the conditions cannot directly affect the applicant's responsibilities to a third party dealing with the applicant. 19 Petitioner also urges that a state court judgment should not be allowed to thwart the Commission's efforts to enforce the requirements of the Act.18 Since the Communications Act does not specifically empower the Commission to adjudicate the contractual liability of a licensee for its contracts or to declare a licensee's contracts unenforceable in the courts, for this defense petitioner must depend upon general implications from the Act. 20 The argument is that if before it issues a license the Commission cannot be assured that it has secured an effective cancellation of a contract like the one in suit, it must choose between two undersirable alternatives. It must either condone the violation of its rules for operation and forsake its duty to insure that only the financially able may be licensees, or it must deprive the public of the advantage of a station under the management of the Board of Regents. 21 The renewal application indeed presented the Commission with a hard choice. For ten years the operating arrangement had continued. Suddenly, after the station had been brought to a favorable profit position under Southern's management, the Commission became conscious of the violation of law involved in the management contract. When the management contract was superseded by the purchase contract, the Commission insisted that petitioner could not be a suitable licensee unless the latter contract were given 'no effect.' For some reason, which has not been explained to us, the Commission was satisfied that the contract was of 'no effect' when the petitioner made a unilateral disaffirmance, and it did not think it necessary to require that Southern agree to the cancellation before a license would issue. 22 This choice of method lay within the Commission's power. Considerations unknown to us may have dictated this procedure. Before issuing a license in similar cases, however, the Commission has successfully obtained from both parties to a contract clear and unequivocal assent to its cancellation.19 Indeed, the Commission might refuse to issue a license until the applicant has demonstrated that it has been freed by the state courts from the obnoxious contract.20 23 But if the Commission was placed in a dilemma from which it had no escape, that dilemma was the inevitable result of the statutory scheme of licensing. The Commission itself has indicated to Congress that it is embarrassed by its inability to issue cease and desist orders, that it has at its disposal only the cumbersome weapons of criminal penalties and license refusal and revocation.21 But, so far as we are aware, the Commission request did not go beyond asking for power to issue a cease and desist order against a licensee. No power was sought against a third party. Under the present statute, the Commission could make a choice only within the scope of its licensing power, i.e., to grant or deny the license on the basis of the situation of the applicant. It could insist that the applicant change its situation before it granted a license, but it could not act as a bankruptcy court to change that situation for the applicant. The public interest, after all, is in the effective use of the available channels, and only to that extent in what particular applicant receives a license.22 The Commission has said frequently that controversies as to rights between licensees and others are outside the ambit of its powers.23 We do not read the Communications Act to give authority to the Commission to determine the validity of contracts between licensees and others. 24 Finally, we find irrelevant the fact that respondents had knowledge of the Commission proceeding denying a license unless the stock purchase contract were given 'no effect.' Even if we should assume that respondents had the right to intervene in that proceeding and to appeal from the Commission's decision, their failure to do so could not destroy their rights under the contract. It could affect them no more than to prevent them from challenging in any court the Commission's decision that a license might be denied Regents for the reasons given by the Commission.24 We have assumed the correctness of the refusal to grant a license, but we hold that the Commission's order cannot directly affect the validity of the contract. It is a most extraordinary rule that would require respondents to intervene upon pain of suffering a binding judgment which the Commission could not have lawfully imposed upon them had they been actual parties. 25 Affirmed. 26 Mr. Justice BALCK and Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 As nothing of importance in this case turns upon the details of title, we hereafter refer to the petitioner as petitioner or Regents. We treat it as owner, applicant for license or licensee. Contracts for the operation of WGST were made by the Board of Trustees of the Georgia School of Technology until by state legislation management of the School affairs passed from that Board to the Board of Regents of the University System of Georgia. Thereafter the Regents handled the station for the School. The applications for license have been made and the licenses issued in the name of the Georgia School of Technology. 2 10 F.C.C. 110, 120. The Commission based its ruling particularly on its interpretation of the rule in F.C.C. Rules & Regulations § 1.364 (Part I, Revised to Feb. 1, 1945), and on §§ 301, 307, 308, 309 and 310 of the Communications Act (47 U.S.C.), 47 U.S.C.A. §§ 301, 307—310. It also called attention to the application form for renewals, one of the questions on which, No. 11c, asked: 'Does applicant have absolute control of station, both as to physical operation and programs broadcast?' 3 I.e., the sales of broadcasting time less commissions or disbursements to others. 4 'Resolved, by the Board of Regents of the University System of Georgia that the ruling of the Federal Communications Commission having made the contract with the stockholders of Southern Broadcasting Stations, Inc. legally impossible of performance, the board hereby approves the action of its WGST Radio Committee in directing that said contract be not further complied with. This action is taken without prejudice to a fair adjustment or settlement of whatever rights the said stockholders may have, subject to the approval or consent of the Federal Communications Commission.' 5 'The agreement effective April 15, 1943, was cancelled by the Regents of the University System of Georgia by resolution adopted at a meeting of the Board of Regents held on October 11, 1945. A true and correct copy of the resolution is hereto attached as Exhibit J. The other parties to the agreement have been notified orally of the cancellation of the agreement and no payments under the agreement have been made since the issuance of the proposed decision of the Commission in Docket No. 6534 on September 20, 1945. The Board of Regents will not undertake to negotiate any adjustment or settlement with the other parties to the agreement unless and until said parties first obtain the approval or consent of the Federal Communications Commission to negotiate a settlement of whatever rights said parties may have under the agreement.' 6 There are further allegations of defense in the answer that may be summarized as a statement that respondents had actual knowledge of the filing of the renewal application that resulted in issuance of the license; that respondents had actual knowledge of the hearings, of the proposed decision and of the final order of the Commission. The petitioner further alleged that respondents knew the operation of the station depended upon the grant of a license. We consider these allegations as to notice only as they bear upon the effect of the Board order on petitioner's responsibility under the contract. Petitioner did not plead them as an estoppel to recovery. Neither of the Georgia courts treated the allegations as a basis of estoppel under the law of Georgia. This would be a matter of state law. 7 78 Ga.App. 292, 50 S.E.2d 808, certiorari by the Sup.Ct. of Georgia denied, 78 Ga.App. 898. 8 47 U.S.C., 47 U.S.C.A. § 151. 'For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make (it) available, so far as possible, to all the people of the United States * * * there is * * * created a commission to be known as the 'Federal Communications Commission' * * *.' § 154. '(i) The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.' § 301. 'It is the purpose of this chapter, among other things, to maintain the control of the United States over all the channels of interstate and foreign radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license. No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio * * *, except under and in accordance with this chapter and with a license in that behalf granted under the provisions of this chapter.' § 303. 'Except as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall— '(r) Make such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this chapter, * * *.' § 307. '(a) The Commission, if public convenience, interest, or necessity will be served thereby, subject to the limitations of this chapter, shall grant to any applicant therefor a station license provided for by this chapter.' § 307. '(d) * * * but action of the Commission with reference to the granting of such application for the renewal of a license shall be limited to and governed by the same considerations and practice which affect the granting of original applications.' § 308. '(b) All such applications shall set forth such facts as the Commission by regulation may prescribe as to the citizenship, character, and financial, technical, and other qualifications of the applicant to operate the station; * * *.' § 309. '(a) If upon examination of any application for a station license or for the renewal or modification of a station license the Commission shall determine that public interest, convenience, or necessity would be served by the granting thereof, it shall authorize the issuance, renewal, or modification thereof in accordance with said finding. * * *' § 310. '(b) The station license required * * *, the frequencies authorized to be used by the licensee, and the rights therein granted shall not be transferred, assigned, or in any manner either voluntarily or involuntarily disposed of, or indirectly by transfer of control of any corporation holding such license, to any person, unless the Commission shall, after securing full information, decide that said transfer is in the public interest, and shall give its consent in writing.' § 312. '(a) Any station license may be revoked for false statements either in the application or in the statement of fact which may be required by section 308 of this title, or because of conditions revealed by such statements of fact as may be required from time to time which would warrant the Commission in refusing to grant a license on an original application, or for failure to operate substantially as set forth in the license, or for violation of or failure to observe any of the restrictions and conditions of this chapter or of any regulation of the Commission authorized by this chapter or by a treaty ratified by the United States: * * *.' § 405. 'After a decision, order, or requirement has been made by the Commission in any proceeding, any party thereto may at any time make application for rehearing of the same, or any matter determined therein, and it shall be lawful for the Commission in its discretion to grant such a rehearing if sufficient reason therefor be made to appear: * * *.' 9 10 F.C.C. 110, 120; 11 F.C.C. 71, 76. 10 11 F.C.C. 71 at 75; see § 308(b), note 8. See Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 475, 642, 60 S.Ct. 693, 697, 84 L.Ed. 869, 1037. 11 11 F.C.C. 71, 76. 12 The Georgia court similarly conceived the issue: 'The Federal Communications Commission is an administrative agency of the Federal Government, empowered to enforce the provisions of the Communications Act of 1934, 47 U.S.C.A. § 151 et seq., and has the power and authority to grant or refuse licenses to radio broadcasting stations, with a view to subserving the public interest so that the people shall have the best possible radio service; but nothing in the power granted to the Commission or in said Communications Act of Congress gives to the commission the power and authority to regulate the private contracts and business of those operating radio broadcasting stations, where the same is not necessary in the protection of the public interest, and where such contracts do not affect the interstate transactions of the radio station.' 78 Ga.App. 292, 50 S.E.2d 808, 809. 'The Federal Communications Commission has power in the 'public interest' under said act to refuse licenses to stations which engage in practices contrary to the public interest, convenience or necessity. In each case that comes before it, the Commission must exercise ultimate judgment whether the grant of a license in the particular instance would serve the public interest, convenience or necessity. * * * 'The Federal Communications Commission has the power and authority in granting a license to a radio station to see that the public interest and convenience are subserved thereby, and an important element of public interest and convenience affecting the issue of a radio broadcasting license is the ability of the licensee to render the best practicable service to the community reached by his broadcasts. The commission must see to it that all applicants for radio station licenses have the necessary technical ability to broadcast programs, and that the stations are properly constructed and properly and adequately manned and do not interfere with other stations, and that all licensees are responsible, morally and financially. * * *' Id., 78 Ga.App. 298 299, 50 S.E.2d 812, 813. '* * * Matters of private concern, and contracts affecting such rights, which do not have as their subject matter the rights conferred by a license or do not substantially affect such rights, are not within the scope of the commission's power to regulate and control in the public interest broadcasting by radio stations and licenses to such stations. * * *' Id., 78 Ga.App. 300, 50 S.E.2d 813. There is some language in the opinion (78 Ga.App. 292, 302, 50 S.E.2d 808, 814) from which it might be inferred that the Court of Appeals thought that it could review the conclusion of the Commission that the issuance of the license with the contract in effect would adversely affect the public interest. In view of the statements above and the general tenor of the opinion, we are satisfied that the Court of Appeals did not claim a power to decide the contract's effect upon an applicant's ability to meet the requirements necessary for a license from the Commission. The Court of Appeals bottomed its decision on the lack of power in the Commission to affect legal responsibility under this contract. 13 American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110, 23 S.Ct. 33, 39, 47 L.Ed. 90; Helvering v. Sabine Transp. Co., 318 U.S. 306, 311, 63 S.Ct. 569, 572, 87 L.Ed. 773; Addison v. Holly Hill Fruit Products, 322 U.S. 607, 617—618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488, 153 A.L.R. 1007; Ashbacker Radio Corp. v. F.C.C., 326 U.S. 327, 333, dissent, 335, 66 S.Ct. 148, 151, 152, 90 L.Ed. 108, Cf. § 9(a) Administrative Procedure Act, 60 Stat. 242, 5 U.S.C.A. § 1008(a): 'Sec. 9. In the exercise of any power or authority— '(a) In General.—No sanction shall be imposed or substantive rule or order be issued except within jurisdiction delegated to the agency and as authorized by law.' 14 Federal Radio Commission v. Nelson Bros. Bond and Mortgage Co., 289 U.S. 266, 279, 53 S.Ct. 627, 633, 77 L.Ed. 1166, 89 A.L.R. 406; National Broadcasting Co., Inc., v. United States, 319 U.S. 190, 210, 63 S.Ct. 997, 1006, 87 L.Ed. 1344. 15 Federal Communications Comm. v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656; National Broadcasting Co., Inc., v. United States. 319 U.S. 190, 216, 63 S.Ct. 997, 1009, 87 L.Ed. 1344, 47 U.S.C. § 307(a), 47 U.S.C.A. § 307(a). 16 Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 473, 475, 476, 642, 60 S.Ct. 693, 696, 697, 698, 84 L.Ed. 869, 1037. 17 The Communications Act has no provision such as appears in the National Labor Relations Act, § 10(c), 49 Stat. 454, 29 U.S.C.A. § 160(c), authorizing the Labor Board to require affirmative action from those who violate the Labor Act. Yet even in cases under that Act, third persons were left free to assert rights under their contracts. National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 365, 60 S.Ct. 569, 577, 84 L.Ed. 799. 18 11 F.C.C. 71, 76. 19 Matter of Westinghouse Electric and Manufacturing Co., 8 F.C.C. 195; In re Cornell University (WHCU), Docket No. 5820 (Order, Oct. 15, 1940). 20 See Matter of the City of Camden (WCAM), 4 Pike and Fischer Radio Regulations 344, 384. 21 Hearings before a Subcommittee of the Committee on Interstate and Foreign Commerce on S. 1333, 80th Cong., 1st Sess. 14, 51. 22 National Broadcasting Co., Inc., v. United States, supra, 319 U.S. at pages 215—216, 218, 63 S.Ct. at pages 1009, 1010, 87 L.Ed. 1344. 23 See In re Petition of Fannie I. Leese, et al., 5 F.C.C. 364; Matter of Hearst Radio, Inc., 7 F.C.C. 292, 295; In re Assignment of License of Station WMCA, 10 F.C.C. 241, 242. 24 See Red River Broadcasting Co. v. Federal Communications Comm., 69 App.D.C. 1, 98 F.2d 282.

910

338 U.S. 632 70 S.Ct. 357 94 L.Ed. 401 UNITED STATESv.MORTON SALT CO. UNITED STATES v. INTERNATIONAL SALT CO. Nos. 273 and 274. Argued Dec. 14, 1949. Decided Feb. 6, 1950. [Syllabus from pages 632-634 intentionally omitted] Mr. Philip Elman, Washington, D.C., for petitioner. Mr. L. M. McBride, Chicago, Ill., for Morton Salt Co. Mr. Frederic R. Sanborn, New York City, for International Salt Co. Mr. Justice JACKSON delivered the opinion of the Court. 1 This is a controversy as to the power of the Federal Trade Commission to require corporations to file reports showing how they have complied with a decree of the Court of Appeals enforcing the Commission's cease and desist order, in addition to those reports required by the decree itself. 2 Proceedings under § 5 of the Federal Trade Commission Act1 culminated in a Commission order requiring respondents Morton Salt Company and International Salt Company, together with eighteen other salt producers and a trade association, to cease and desist from stated practices in connection with the pricing, producing and marketing of salt. The Court of Appeals for the Seventh Circuit affirmed the order with modifications and commanded compliance. Salt Producers Ass'n v. Federal Trade Comm., 134 F.2d 354. The decree directed that reports of the manner of compliance be filed with the Commission within ninety days, but it reserved jurisdiction 'to enter such further orders herein from time to time as may become necessary effectively to enforce compliance in every respect with this decree and to prevent evasion thereof.' The decree expressly was 'without prejudice to the right of the United States, as provided in Section 5(l) of the Federal Trade Commission Act, to prosecute suits to recover civil penalties for violations of the said modified order to cease and desist hereby affirmed, and without prejudice to the right of the Federal Trade Commission to initiate contempt proceedings for violations of this decree.' The reports of compliance were subsequently filed and accepted, and there the matter appears to have rested for a little upwards of four years. 3 On September 2, 1947, the Commission ordered additional and highly particularized reports to show continuing compliance with the decree. This was done without application to the court, was not authorized by any provision of its decree, and is not provided for in § 5 of the statute under which the Commission's original cease and desist order had issued. The new order recited that it was issued on the Commission's own motion pursuant to its published Rule of Practice No. XXVI2 and the authority granted by subsections (a) and (b) of § 6 of the Trade Commission Act. It ordered these and other parties restrained by the earlier decree to file within thirty days 'additional reports showing in detail the manner and form in which they have been, and are now, complying with said modified order to cease and desist and said decree.' It demanded of each producer a 'complete statement' of the 'prices, terms, and conditions of sale of salt, together with books or compilations of freight rates used in calculating delivered prices, price lists and price announcements distributed, published or employed in marketing salt from and after January 1, 1944.' From the Salt Producers Association it required information as to its activities and services. The Association and some of the producers reported satisfactorily. These two respondents did not. Instead, each informed the Commission in general terms that it had complied with the decree in the manner previously reported, but that it doubted the Commission's jurisdiction to require further reports and declined to supply the particulars demanded. Neither asked any hearing or made objection to the scope of the order. 4 The Commission next gave respondents notices asserting their default and calling attention to penalties provided in § 10 of the Act. Neither respondent asked any hearing on the notice of default. These suits were then commenced in the name of the United States in District Court under §§ 9 and 10 of the Trade Commission Act, asking mandatory injunctions commanding respondents to report as directed, together with judgment against each for $100 per day while default continued. Respondents answered. Both sides moved for summary judgments. The court found no dispute as to material facts and dismissed the complaints for want of jurisdiction. 80 F.Supp. 419. The Court of Appeals, by divided vote, affirmed. 174 F.2d 703. We granted certiorari, 338 U.S. 857, 70 S.Ct. 100, because the case involved issues of some importance to enforcement of the Act and of court decrees under it and under other Acts which provide similar methods to enforce orders of administrative bodies. 5 The Government's suits and the Commission's order are challenged upon a variety of grounds, not all of which were considered by the Court of Appeals. They include contentions that (1) the order constitutes an interference with the decree and an invasion of the powers of the Court of Appeals; (2) the Commission's Rule XXVI is ultra vires and violates the Federal Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq.; (3) the procedure is unauthorized by those sections of the Act on which it is based; (4) it is novel and arbitrary and violates the Fourth and Fifth Amendments to the Constitution. For reasons given, we reject each of these contentions. 6 I. Invasion of Court of Appeals Jurisdiction. 7 The respondents' case and the decision below are rested heavily on this argument that the Commission is invading the province of the judiciary. The Court of Appeals held that the Commission's order of September 2, 1947, represented an unauthorized attempt to enforce that court's decree. It pointed out that the statute had made the court's own jurisdiction of the proceeding 'exclusive' and its own decree final. It considered that 'every vestige of jurisdiction' (174 F.2d 703, 706) over that subject was 'firmly and exclusively lodged in (the) Court of Appeals.' It noted that it had required filing of only the original compliance reports, and that it had protected its jurisdiction by reserving power to enter further orders necessary to enforce compliance and prevent evasion. It thought that the effect of the Commission's proceedings was to assert 'such jurisdiction to reside elsewhere.' 8 It seems conceded, however, that some power or duty, independently of the decree, must still have resided in the Commission.3 Certainly entry of the court decree did not wholly relieve the Commission of responsibility for its enforcement. The decree recognized that. It left to the Commission the right and hence the responsibility 'to initiate contempt proceedings for the violation of this decree.' This must have contemplated that the Commission could obtain accurate information from time to time on which to base a responsible conclusion that there was or was not cause for such a proceeding. The decree also required the original report showing the manner and form of each respondent's compliance to be filed, not with the court but with the Commission. Presumably the Commission was expected to scrutinize it and, if insufficient on its face, to reject it and move the court to take notice of the default. And the duty likewise was left upon the Commission to move the court if any respondent made a false report. The duty would appear to be the same if a temporary compliance were truly reported but conduct resumed which would violate the decree. In addition, the Trade Commission has a continuing duty to prevent unfair methods of competition and unfair or deceptive acts or practices in commerce. That responsibility as to all within the coverage of the Act is not suspended or exhausted as to any violator whose guilt is once established. 9 If the Commission had petitioned the court itself to order additional reports of compliance, it could properly have been required to present some evidence of probable violation to overcome the 'presumption of legality,' of innocence, and of obedience to the law which respondents here urge. Courts hesitate to alter or supplement their decrees except the need be proved as well as asserted. Evidence the Commission did not have; it had at most a suspicion, or let us say a curiosity as to whether respondents' reported reformation in business methods was an abiding one. 10 Must the decree, after a single report of compliance, rest upon respondents' honor unless evidence of a violation fortuitously comes to the Commission? May not the Commission, in view of its residual duty of enforcement affirmatively satisfy itself that the decree is being observed? Whether this usurps the courts' own function is, we think, answered by consideration of the fundamental relationship between the courts and administrative bodies. 11 The Trade Commission Act is one of several in which Congress, to make its policy effective, has relied upon the initiative of administrative officials and the flexibility of the administrative process. Its agencies are provided with staffs to institute proceedings and to follow up decrees and police their obedience. While that process at times is adversary, it also at times is inquisitorial. These agencies are expected to ascertain when and against whom proceedings should be set in motion and to take the lead in following through to effective results. It is expected that this combination of duty and power always will result in earnest and eager action but it is feared that it may sometimes result in harsh and overzealous action. 12 To protect against mistaken or arbitrary orders, judicial review is provided. Its function is dispassionate and disinterested adjudication, unmixed with any concern as to the success of either prosecution or defense. Courts are not expected to start wheels moving or to follow up judgments. Courts neither have, nor need, sleuths to dig up evidence, staffs to analyze reports, or personnel to prepare prosecutions for contempts. Indeed, while some situations force the judge to pass on contempt issues which he himself raises, it is to be regretted whenever a court in any sense must become prosecutor. Those occasions should not be needlessly multiplied by denying investigative and prosecutive powers to other lawful agencies. 13 The court in this case advisedly left it to the Commission to receive the report of compliance and to institute any contempt proceedings. This was in harmony with our system. When the process of adjudication is complete, all judgments are handed over to the litigant or executive officers, such as the sheriff or marshal, to execute. Steps which the litigant or executive department lawfully takes for their enforcement are a vindication rather than a usurpation of the court's power. In the case before us, it is true that the Commission's cease and desist order was merged in the court's decree; but the court neither assumed to itself nor denied to the Commission that agency's duty to inform itself and protect commerce against continued or renewed unlawful practice. 14 This case illustrates the difference between the judicial function and the function the Commission is attempting to perform. The respondents argue that since the Commission made no charge of violation either of the decree or the statute, it is engaged in a mere 'fishing expedition' to see if it can turn up evidence of guilt. We will assume for the argument that this is so. Courts have often disapproved the employment of the judicial process in such an enterprise. Federal judicial power itself extends only to adjudication of cases and controversies and it is natural that its investigative powers should be jealously confined to these ends. The judicial subpoena power not only is subject to specific constitutional limitations, which also apply to administrative orders, such as those against self-incrimination, unreasonable search and seizure, and due process of law, but also is subject to those limitations inherent in the body that issues them because of the provisions of the Judiciary Article of the Constitution. 15 We must not disguise the fact that sometimes, especially early in the history of the federal administrative tribunal, the courts were persuaded to engraft judicial limitations upon the administrative process. The courts could not go fishing, and so it followed neither could anyone else. Administrative investigations fell before the colorful and nostalgic slogan 'no fishing expeditions.' It must not be forgotten that the administrative process and its agencies are relative newcomers in the field of law and that it has taken and will continue to take experience and trial and error to fit this process into our system of judicature. More recent views have been more tolerant of it than those which underlay many older decisions. Compare Jones v. Securities & Exchange Comm., 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015; with United States v. Morgan, 307 U.S. 183, 191, 59 S.Ct. 795, 799, 83 L.Ed. 1211. 16 The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law. 17 Of course, the Commission cannot intrude upon or usurp the court's function of adjudication. The decree is always what the court makes it; the court's jurisdiction to review is and remains exclusive, its judgment final. What the Commission has done, however, is not to modify but to follow up this decree. It has not asked this report in the name of the court, or in reliance upon judicial powers, but in reliance upon its own law-enforcing powers. 18 That Congress did not regard it as a judicial function to investigate compliance with court decrees, at least initially, is shown by its action as to other antitrust decrees. Section 6(c) of the Act under consideration specifically authorizes the Commission, on its own initiative and without leave of court, to investigate compliance with final decrees in cases prosecuted by the Attorney General and not involving the Commission as a party. Congress obviously deemed it a function of the Commission, rather than of the courts, to probe compliance with such decrees, even when it had no part in obtaining them. It surely was not because of fear it would involve collision with the judicial function that Congress omitted express authorization for the Commission to follow up decrees in its own cases. Express grant of power would only seem necessary as to decrees in which the Commission had no other interest. 19 Whether the Commission has invaded any private right of respondents, we consider under later rubrics. Our only concern under the present heading is whether the Commission's order infringes prerogatives of the court. We hold it does not. 20 II. Violation of the Administrative Procedure Act. 21 The Administrative Procedure Act was framed against a background of rapid expansion of the administrative process as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices. It created safeguards even narrower than the constitutional ones, against arbitrary official encroachment on private rights. 22 Thus § 3(a) of the Act requires every agency to which it applies, which includes the Federal Trade Commission, to publish in the Federal Register certain statements of its rules, organization and procedure, 'including the nature and requirements of all formal or informal procedures available,' and adds that, 'No person shall in any manner be required to resort to organization or procedure not so published.' In addition § 6(b) proscribes any requirement of a report or other investigative demand 'in any manner or for any purpose except as authorized by law.' 23 Principally on the basis of these two sections respondents contend that the current order cannot be enforced except in violation of the Administrative Procedure Act. Have the respondents been ordered to comply with procedure of which they were not put on notice by publication in the Federal Register? And to the extent that the procedure had been defined and published, was it authorized by law? 24 The pertinent provisions of the Administrative Procedure Act became effective September 11, 1946. On December 11, 1946, the Federal Trade Commission published in the Federal Register its Rules of Practice, 11 Fed.Reg. 14233—14239. The Commission's Rule XXVI, id., 14237, republished without change in 12 Fed.Reg. 5444, 5448, sets the time limit for filing initial reports of compliance with Commission orders and asserts the Commission's right to require, within its sound discretion, the filing of further compliance reports thereafter.4 In § 7.12 of its Statement of Organization, Procedures, and Functions, 12 Fed.Reg. 5450, 5452, the Commission restated its right to require by order 'such supplemental reports of compliance as it considers warranted,' and defined the contents of such a report.5 25 We conclude that the Commission's published Rule XXVI announced the right it claims in this case to demand of a party against whom an enforcement decree has been entered that it 'file with the Commission, from time to time thereafter, further reports in writing, setting forth in detail the manner and form in which they are complying with said order * * *.' Taken together with the Commission's Statement of Organization, Procedures, and Functions, supra, if indeed not by itself, Rule XXVI amply met the requirements of § 3(a) of the Administrative Procedure Act. 26 Respondents hardly challenge this conclusion. Theirs is the more subtle argument that requirement of supplemental reports following court enforcement of a Commission order is unauthorized by statute and ultra vires, so that no valid notice of Rule XXVI had been or could be given, as required by § 3(a) of the Administrative Procedure Act. Also, it is said to be in direct violation of § 6(b) of that Act. This leads to the question of statutory authority for the order to report, a question we must determine even apart from consideration of the Administrative Procedure Act. Accordingly we turn to the Federal Trade Commission Act itself to see whether it contains statutory authority for the Commission's Rule XXVI, as well as for its order here sought to be enforced, issued, as it was, pursuant to the procedures proclaimed in that Rule. If we find such statutory authority, we must conclude that the objections under the Administrative Procedure Act are taken in vain. 27 III. Statutory Authority to Require Reports. 28 The Court of Appeals found the Commission to be without statutory authority to require additional reports as to compliance. Section 6 of the Federal Trade Commission Act, it thought, could not be invoked in connection with a decree sought and entered pursuant to § 5, which sections the court regarded as insulated from each other and directed to wholly different situations. Section 6, so it was held, authorized requirements only of 'special reports' supplemental to 'annual reports' and could not be authority for requiring special reports supplemental to a report of compliance required by court decree in a § 5 case. 29 At the root of this position lies the elaborate and plausible argument of respondents that §§ 5 and 6 of the Act set up self-sufficient, independent and exclusive procedures for dealing with different matters and that therefore neither section can be supported or aided by the other. Respondents also say that the present use of the asserted power is novel and unprecedented in Commission practice and introduces a new method of investigating compliance. Respondents are not without statements by the Commission or its officials, dicta from judicial opinions, views of text writers and facts of legislative history which give some support to this theory. But this Court never before has been called upon to deal consciously and squarely with the subject. 30 The fact that powers long have been unexercised well may call for close scrutiny as to whether they exist; but if granted, they are not lost by being allowed to lie dormant, any more than nonexistent powers can be prescripted by an unchallenged exercise. We know that unquestioned powers are sometimes unexercised from lack of funds, motives of expediency, or the competition of more immediately important concerns. We find no basis for holding that any power ever granted to the Trade Commission has been forfeited by nonuser. 31 The Commission's organic Act, § 5, comprehensively provides substantive and procedural rules for checking unfair methods of competition. The procedure is complete from complaint and service of process through final order, court review, and enforcement proceedings to recover penalties which are not those here sued for. This entire subject of unfair competition, it is true, came into the bill late in its legislative history and dealt with a commercial evil quite different from the target of prior antitrust laws. It is to be noted, however, that although complete otherwise, this section confers no power to investigate this or any other matter. That power, without which all others would be vain, must be found in other sections of the Act. The Commission, for power to investigate compliance with a § 5 order, has turned to § 6, which authorizes it to require certain reports but is not expressly applicable to a § 5 case. Respondents say it might better have turned to § 9, which authorizes it to send investigators to examine their books, copy documents and issue subpoenas, and which is expressly applicable to § 5 proceedings. 32 Section 6, on which the Commission relies, among other things and with exceptions not material, adds the power 'to investigate from time to time the organization, business, conduct, practices, and management of any corporation engaged in commerce, * * * and its relation to other corporations and to individuals, associations, and partnerships.' It also authorizes the Commission 'to require, by general or special orders, corporations engaged in commerce * * * to file with the commission in such form as the commission may prescribe, annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective corporations filing such reports or answers in writing.' 33 To one informed of no fact apart from this text, it would appear to grant ample power to order the reports here in question. Respondents are in the class subject to inquiry, the call is for what appears to be a special report and the matter to be reported would seem to be as to business conduct and practices about which the Commission is authorized to inquire. But respondents advance several arguments to persuade us that this seemingly comprehensive power is subject to limitations not evident in the text. 34 Respondents derive from legislative history their contention that Congress divided the duties and powers of the Commission into two separate categories, one in § 6 merely re-enacting the old powers of investigation and publicity in antitrust matters 'essentially a mere continuance of the former powers of the old Bureau of Corporations.' The other was a new unfair-competition power, self-contained and sealed off in § 5. It is argued that the reports set forth in § 6 can be required only 'in support of general economic surveys and not in aid of enforcement proceedings under Section 5.' 35 While we find a good deal which would warrant our concluding that § 6 was framed with the pre-existing antitrust laws in mind, and in the expectation that the information procured would be chiefly useful in reports to the President, the Congress, or the Attorney General, we find nothing that would deny is use for any purpose within the duties of the Commission, including a § 5 proceeding. A construction of such an Act that would allow information to be obtained for only a part of a Commission's functions and would require the Commission to pursue the rest of its duties as if the information did not exist would be unusual, to say the least. The information was such as the Commission was authorized to obtain and we think it could be required for use in determining whether there had been proper compliance with the court's decree in a § 5 case. 36 It is argued, however, and the court below has agreed, that the 'special report' authorized by statute does not embrace the one here asked as to the method of compliance with the decree. We find nothing in the legislative history that would justify so limiting the meaning of special reports, or holding that the report here asked is not such a one. The very House Committee Report (H.R.Rep.No.533, 63d Cong., 2d Sess.) which the court below thought sustained respondents' contention, we read in its context to support the Commission. Speaking of what became this section, the Report said, 'The commission, under this section, may also require such special reports as it may deem advisable. By this means, if the ordinary data furnished by a corporation in its annual reports does not adequately disclose its organization, financial condition, business practices, or relation to other corporations, there can be obtained by a special report such additional information as the commission may deem necessary.' Id., at p. 4. An annual report of a corporation is a recurrent and relatively standardized affair. The special report was used to enable the Commission to elicit any information beyond the ordinary data of a routine annual report. If the report asked here is not a special report, we would be hard put to define one. 37 Nor does the fact that § 5 applies to individuals, partnerships, and corporations, while §§ 6(b) and 10 apply only to corporations, lead us to conclude that the Act must not be read as an integrated whole. The argument that, because the reporting and penalty provisions of the latter extend only to corporations they must not be invoked to implement, as against corporations, a § 5 proceeding which contemplates action against persons and partnerships as well, would have force were there not sound reason for more drastic powers to compel disclosure from corporations than from natural persons. What the former may be compelled to disclose without objection the latter may withhold, or reveal only after exacting the price of immunity from prosecution. Corporations not only have no constitutional immunity from self-incrimination, but the disparity between artificial and natural persons is so significant that differing treatment can rarely be urged as an objection to a particular construction of a statute. Moreover, Congress may have considered that the volume or proportion of unincorporated business or the relatively small size of individually owned enterprises, or even a lesser capacity and disposition to resist made it possible to omit persons from duties and penalties imposed on artificial combinations of capital. 38 We conclude that the authority of the Commission under § 6 to require special reports of corporations includes special reports of the manner in which they are complying with decrees enforcing § 5 cease and desist orders. 39 IV. Rights Under Fourth and Fifth Amendments. 40 The Commission's order is criticized upon grounds that the order transgresses the Fourth Amendment's proscription of unreasonable searches and seizures and the Fifth Amendment's due process of law clause. 41 It is unnecessary here to examine the question of whether a corporation is entitled to the protection of the Fourth Amendment. Cf. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614, 166 A.L.R. 531. Although the 'right to be let alone—the most comprehensive of rights and the right most valued by civilized men,' Brandeis, J., dissenting in Olmstead v. United States, 277 U.S. 438, 471, at page 478, 48 S.Ct. 564, 570, 572, 72 L.Ed. 944, 94 A.L.R. 376, is not confined literally to searches and seizures as such, but extends as well to the orderly taking under compulsion of process, Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Hale v. Henkel, 201 U.S. 43, 70, 26 S.Ct. 370, 377, 50 L.Ed. 652, neither incorporated nor unincorporated associations can plead an unqualified right to conduct their affairs in secret. Hale v. Henkel, supra; United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, 152 A.L.R. 1202. 42 While they may and should have protection from unlawful demands made in the name of public investigation, cf. Federal Trade Comm. v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696, 32 A.L.R. 786, corporations can claim no equality with individuals in the enjoyment of a right to privacy. Cf. United States v. White, supra. They are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities. The Federal Government allows them the privilege of engaging in interstate commerce. Favors from government often carry with them an enhanced measure of regulation. Cf. Graham v. Brotherhood of Locomotive Firemen, 338 U.S. 232, 70 S.Ct. 14; Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen & Engineers, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; Wickard v. Filburn, 317 U.S. 111, at page 129, 63 S.Ct. 82, 91, 87 L.Ed. 122. Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless lawenforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest. 43 Of course a governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power. Federal Trade Comm. v. American Tobacco Co., supra. But it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant. 'The gist of the protection is in the requirement. expressed in terms, that the disclosure sought shall not be unreasonable.' Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208, 66 S.Ct. 494, 505, 90 L.Ed. 614, 166 A.L.R. 531. Nothing on the face of the Commission's order transgressed these bounds. 44 Nor do we consider whether, for reasons peculiar to these cases not apparent on the face of the orders, these limits are transgressed. Such questions are not presented by the procedure followed by respondents. Before the courts will hold an order seeking information reports to be arbitrarily excessive, they may expect the supplicant to have made reasonable efforts before the Commission itself to obtain reasonable conditions. Neither respondent raised objection to the order's sweep, nor asked any modification, clarification or interpretation of it. Both challenged, instead, power to issue it. Their position was that the Commission had no more authority to issue a reasonable order than an unreasonable one. That, too, was the defense to this action in the court below. 45 Of course, there are limits to what, in the name of reports, the Commission may demand. Just what these limits are we do not attempt to define in the abstract. But it is safe to say that they would stop the Commission considerably short of the extravagant example used by one of the respondents of what it fears if we sustain this order—that the Commission may require reports from automobile companies which include filing automobiles. In this case we doubt that we should read the order as respondents ask to require shipment of extensive files or gifts of expensive books. This is not a necessary reading certainly, and other parties to the decree seem to have been able to satisfy its requirements. 46 If respondents had objected to the terms of the order, they would have presented or at least offered to present evidence concerning any records required and the cost of their books, matters which now rest on mere assertions in their briefs. The Commission would have had opportunity to disclaim any inadvertent excesses or to justify their demands in the record. We think these respondents could have obtained any reasonable modifications necessary, but, if not, at least could have made a record that would convince us of the measure of their grievance rather than ask us to assume it. 47 It is argued that if we sustain this use of § 6, the power will be unconfined and its arbitrary exercise subject to no judicial review or control, unless and until the Government brings suit, as here, for penalties. The Government, it is said, may delay such action while ruinous penalties accumulate and defendant runs the risk that his defenses will not be sustained. However, we are not prepared to say that courts would be powerless if after an effort to clarify or modify such an order it still is considered to be so arbitrary as to be unlawful and the Government pursues a policy of accumulating penalties while avoiding a judicial test by refusing to bring action to recover them. Since we do not think this record presents the question, we do not undertake to determine whether the Declaratory Judgments Act, 28 U.S.C.A. §§ 2201, 2202, the Administrative Procedure Act, or general equitable powers of the courts would afford a remedy if there were shown to be a wrong, or what the consequences would be if no chance is given for a test of reasonable objections to such an order. Cf. Oklahoma Operating Co. v. Love, 252 U.S. 331, 40 S.Ct. 338, 64 L.Ed. 596. It is enough to say that, in upholding this order upon this record, we are not to be understood as holding such orders exempt from judicial examination or as extending a license to exact as reports what would not reasonably be comprehended within that term as used by Congress in the context of this Act. 48 The judgment accordingly is reversed. 49 Reversed. 50 Mr. Justice DOUGLAS and Mr. Justice MINTON took no part in the consideration or decision of these cases. 1 The Federal Trade Commission was established, under the Federal Trade Commission Act, 38 Stat. 717, as amended 52 Stat. 111, 1028, 15 U.S.C. § 41 et seq., 15 U.S.C.A. § 41 et seq., to prevent unfair methods of competition and unfair or deceptive acts or practices in interstate commerce by certain persons, partnerships or corporations. Under § 5(b) of that Act the Commission is empowered and directed, following suitable hearing and determination, to order that those found guilty of such practices cease and desist therefrom; and under §§ 5(c) and 5(d) exclusive jurisdiction to affirm, enforce, modify, or set aside such orders is placed in the appropriate Court of Appeals, whose judgment and decree are final except insofar as they may be subject to review here. Civil penalties for violations of cease and desist orders are provided for, § 5(l), to be recovered in civil actions brought by the United States. Under §§ 6(a) and 6(b) of the Act, the Commission is authorized to compile information concerning, and to investigate, the organization, business, conduct, practices, and management of any corporation within its jurisdiction, and to require any such corporation to file 'annual or special, or both annual and special, reports or answers in writing to specific questions,' concerning such information. For the purposes of the Act, the Commission is empowered, in § 9, to examine and copy documentary evidence of any corporation being investigated or proceeded against, and to require attendance of witnesses and production of all such documentary evidence. The same section also gives District Courts jurisdiction to compel compliance with the subpoena as well as other provisions of the Act or any order of the Commission made in pursuance thereof. And, finally, in § 10, it is provided that, 'If any corporation required by this Act to file any annual or special report shall fail so to do within the time fixed by the commission for filing the same, and such failure shall continue for thirty days after notice of such default, the corporation shall forfeit to the United States the sum of $100 for each and every day of the continuance of such failure, which forfeiture * * * shall be recoverable in a civil suit in the name of the United States * * *.' The present action was brought to compel the filing of reports ordered by the Commission and for money judgment under § 10 for respondents' default to do so. 2 See note 4, infra. 3 For example, one of the respondents frankly states: '* * * At no time has this respondent attempted to argue that it was immune to investigation by the Federal Trade Commission simply by virtue of the original case having come within the jurisdiction of the Court of Appeals. This respondent assumes that in some manner or other the Commission can, if it chooses, continue to police the compliance of this respondent by appropriate investigatory procedures. Whether or not the appropriate procedure is (a) by petitioning the Court of Appeal for permission to investigate the respondent with a view to possible contempt or Section 5(l) proceedings, (b) by an assertion of a right of investigation under Section 9, even though it be an investigation supplemental to a Court of Appeals decree, or (c) by an assertion of an alleged inherent right of investigation under Section 5, is a matter of law not at issue in this case, and it represents an issue as to which this respondent at the moment is completely indifferent. * * *' 4 '§ 2.26. Reports showing compliance with orders and with stipulations. (a) In every case where an order to cease and desist is issued by the Commission for the purpose of preventing violations of law and in every instance where the Commission approves and accepts a stipulation in which a party agrees to cease and desist from the unlawful methods, acts or practices involved, the respondents named in such orders and the parties so stipulating shall file with the Commission, within sixty days of the service of such order and within sixty days of the approval of such stipulation, a report, in writing, setting forth in detail the manner and form in which they have complied with said order or with said stipulation; Provided, however, That if within the said sixty (60) day period respondent shall file petition for review in a circuit court of appeals, the time for filing report of compliance will begin to run de novo from the final judicial determination * * *. '(b) Within its sound discretion, the Commission may require any respondent upon whom such order has been served and any party entering into such stipulation, to file with the Commission, from time to time thereafter, further reports in writing, setting forth in detail the manner and form in which they are complying with said order or with said stipulation. * * *' 5 '§ 7.12. Compliance and enforcement. (a) Reports of compliance with orders to cease and desist are required in accordance with the provisions of § 2.26 of the rules of practice. The Commission may by order require such supplemental reports of compliance as it considers warranted. Reports of compliance must consist of a full statement showing the manner and form in which the order has been complied with. Mere statements that the respondent is not violating the order are not acceptable. A factual showing is required sufficient to enable the Commission to appraise the manner and form of compliance. '(b) After an order to cease and desist issued by the Commission pursuant to the Federal Trade Commission Act has become final as provided for under section 5 of that act, and the Commission has reason to believe that a respondent has violated such order, it shall certify the facts concerning the violation to the Attorney General, who may institute a suit in one of the District Courts of the United States for the recovery of civil penalties as provided in the act. In proceedings under the Federal Trade Commission Act, where a Circuit Court of Appeals of the United States has by decree commanded obedience to the Commission's order, enforcement may be accomplished by way of contempt proceedings in the Circuit Court. With respect to orders under the various provisions of the Clayton Act, enforcement must be accomplished by way of contempt proceedings. * * *'

89

338 U.S. 655 70 S.Ct. 398 94 L.Ed. 424 WISSNER et al.v.WISSNER. No. 119. Argued Dec. 6—7, 1949. Decided Feb. 6, 1950. Rehearing Denied March 27, 1950. See 339 U.S. 926, 70 S.Ct. 619. Under the National Service Life Insurance Act providing that insured shall have right to designate beneficiaries of insurance and that payments to named beneficiary shall not be subject to attachment, levy, or seizure, etc., proceeds of policy wherein insured had designated his mother as beneficiary and his father as contingent beneficiary were payable to mother notwithstanding that premiums on policy were paid out of insured's army pay which was community property under law of insured's domicile, and judgment of state court to the contrary which also required that all future payments immediately upon receipt by beneficiary should be paid to insured's widow could not stand. 38 U.S.C.A. § 454a; National Service Life Insurance Act of 1940, § 602(g, i), 38 U.S.C.A. § 802(g, i). Mr. Carlos J. Badger, Modesto, Cal., for appellants. Mr. Leslie A. Cleary, Modesto, Cal., for appellee. Mr. Morton Hollander, Washington, D.C., for the United States, as amicus curiae, by special leave of Court. Mr. Justice CLARK delivered the opinion of the Court. 1 We are to determine whether the California community property law, as applied in this case, conflicts with certain provisions of the National Service Life Insurance Act of 1940;1 and if so, whether the federal law is consistent with the Fifth Amendment to the Constitution of the United States. The cause is here on appeal from the final judgment of a California District Court of Appeal, the Supreme Court of California having denied a hearing. Reading the opinion below as a decision that the federal statute was unconstitutional, we noted probable jurisdiction. 28 U.S.C. § 1257(1), 28 U.S.C.A. § 1257(1). 2 The material facts are not in dispute. Appellants are the parents, and appellee the widow, of Major Leonard O. Wissner, who died in India in 1945 in the service of the United States Army. He had enlisted in the Army in November 1942 and in January 1943 subscribed to a National Service Life Insurance policy in the principal sum of $10,000, which policy was in effect at the date of his death. The opinion below indicates that the decedent and appellee were estranged at the time he entered the Army or shortly thereafter. In January 1943 he requested his attorney to 'get an insurance policy away' from appellee. After six months in the service decedent stopped the allotment to his wife, and in September 1943 expressed the wish that he 'could find some way of forcing plaintiff to a settlement and a divorce.' It is not surprising, therefore, that, without the knowledge or consent of his wife, the Major named his mother principal and his father contingent beneficiary under his National Service Life Insurance policy. Since his death the United States Veterans' Administration has been paying his mother the proceeds of the policy in monthly installments. 3 In 1947 the Major's widow brought action against the appellants in the Superior Court for Stanislaus County, State of California, alleging that under California community property law she was entitled to one-half the proceeds of the policy. Appellants answered that their designation as beneficiaries was 'final and conclusive as against any claimed rights' of appellee. The court found that the decedent and his widow had been married in 1930, and until the date of Major Wissner's death had been legally domiciled there and subject to the state's community property laws. Major Wissner's army pay, which was held to be community property under California law,2 was the source of the premiums paid on the policy. But no claim was made for the premiums; the widow sought the proceeds of the insurance. The court concluded that, consistent with California law in the ordinary insurance case, the proceeds of this policy 'were and are the community property' of the widow and the decedent, and entered judgment for appellee for one-half the amount of payments already received, plus interest, and required appellants to pay appellee one-half of all future payments 'immediately upon the receipt thereof' by appellees or either thereof. The District Court of Appeal affirmed, 1949, 89 Cal.App.2d 759, 201 P.2d 837, holding that appellee had a 'vested right' to the insurance proceeds, and the Supreme Court of California denied a hearing, one judge dissenting. 4 We are of the opinion that the decision below was incorrect. The National Service Life Insurance Act is the congressional mode of affording a uniform and comprehensive system of life insurance for members and veterans of the armed forces of the United States. A liberal policy toward the serviceman and his named beneficiary is everywhere evident in the comprehensive statutory plan. Premiums are very low and are waived during the insured's disability; costs of administration are borne by the United States; liabilities may be discharged out of congressional appropriations. 5 The controlling section of the Act provides that the insured 'shall have the right to designate the beneficiary or beneficiaries of the insurance (within a designated class), * * * and shall * * * at all times have the right to change the beneficiary or beneficiaries * * *.' 38 U.S.C. § 802(g), 38 U.S.C.A. § 802(g). Thus Congress has spoken with force and clarity in directing that the proceeds belong to the named beneficiary and no other. Pursuant to the congressional command, the Government contracted to pay the insurance to the insured's choice. He chose his mother. It is plain to us that the judgment of the lower court, as to one-half of the proceeds, substitutes the widow for the mother, who was the beneficiary Congress directed shall receive the insurance money. We do not share appellee's discovery of congressional purpose that widows in community property states participate in the payments under the policy, contrary to the express direction of the insured. Whether directed at the very money received from the Government or an equivalent amount, the judgment below nullifies the soldier's choice and frustrates the deliberate purpose of Congress. It cannot stand. 6 The judgment under review has a further deficiency so far as it ordered the diversion of future payments as soon as they are paid by the Government to the mother. At least in this respect, the very payments received under the policy are to be 'seized,' in effect, by the judgment below. This is in flat conflict with the exemption provision contained in 38 U.S.C. § 454a, 38 U.S.C.A. § 454a, made a part of this Act by 38 U.S.C. § 816, 38 U.S.C.A. § 816: Payments to the named beneficiary 'shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. * * *' 7 We recognize that some courts have ruled that this and similar exemptions relating to pensions and veterans' relief do not apply when alimony or the support of wife or children is in issue. See Schlaefer v. Schlaefer, 1940, 71 App.D.C. 350, 112 F.2d 177, 130 A.L.R. 1014; Tully v. Tully, 1893, 159 Mass. 91, 34 N.E. 79; Hodson v. New York City Employees' Retirement System, 1935, 243 App.Div. 480, 278 N.Y.S. 16; In re Guardianship of Bagnall, 1947, 238 Iowa 905, 29 N.W.2d 597, and cases therein cited. But cf. Brewer v. Brewer, 1933, 19 Tenn.App. 209, 84 S.W.2d 1022, 1040. We shall not attempt to epitomize a legal system at least as ancient as the customs of the Visigoths,3 but we must note that the community property principle rests upon something more than the moral obligation of supporting spouse and children: the business relationship of man and wife for their mutual monetary profit. See de Funiak, Community Property, § 11 (1943). Venerable and worthy as this community is, it is not, we think, as likely to justify an exception to the congressional language as specific judicial recognition of particular needs, in the alimony and support cases. Our view of those cases, whatever it may be, is irrelevant here.4 Further, Congress has provided in the National Service Life Insurance Act that the chosen beneficiary of the life insurance policy shall be, during life, the sole owner of the proceeds. 8 The constitutionality of the congressional mandate above expounded need not detain us long. Certainly Congress in its desire to afford as much material protection as possible to its fighting force could wisely provide a plan of insurance coverage. Possession of government insurance, payable to the relative of his choice, might well directly enhance the morale of the serviceman. The exemption provision is his guarantee of the complete and full performance of the contract to the exclusion of conflicting claims. The end is a legitimate one within the congressional powers over national defense, and the means are adapted to the chosen end. The Act is valid. McCulloch v. Maryland, 1819, 4 Wheat. 316, 421, 4 L.Ed. 579. And since the statute which made the insurance proceeds possible was explicit in announcing that the insured shall have the right to designate the recipient of the insurance, and that 'No person shall have a vested right' to those proceeds, 38 U.S.C. § 802(i), 38 U.S.C.A. § 802(i), appellee could not, in law, contemplate their capture. The federal statute establishes the fund in issue, and forestalls the existence of any 'vested' right in the proceeds of federal insurance. Hence no constitutional question is presented. However 'vested' her right to the proceeds of nongovernmental insurance under California law, that rule cannot apply to this insurance. Compare W. B. Worthen Co. v. Thomas, 1934, 292 U.S. 426, 54 S.Ct. 816, 78 L.Ed. 1344, 93 A.L.R. 173; Lynch v. United States, 1934, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434. See Hines v. Lowrey, 1938, 305 U.S. 85, 59 S.Ct. 31, 83 L.Ed. 56; Norman v. Baltimore & Ohio R. Co., 1935, 294 U.S. 240, 55 S.Ct. 407, 79 L.Ed. 885, 95 A.L.R. 1352; Ruddy v. Rossi, 1918, 248 U.S. 104, 39 S.Ct. 46, 63 L.Ed. 148, 8 A.L.R. 843. 9 The judgment below is reversed. 10 Reversed. 11 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 12 Mr. Justice MINTON, dissenting. 13 Mr. Justice FRANKFURTER, Mr. Justice JACKSON, and I are unable to agree with the majority in this case. The husband's earnings are community property under § 161a, California Civil Code. The wife has a vested interest in one-half of such earnings. United States v. Malcolm, 282 U.S. 792, 51 S.Ct. 184, 75 L.Ed. 714; Bank of America Nat. Trust & Savings Ass'n v. Mantz, 4 Cal.2d 322, 49 P.2d 279; Cooke v. Cooke, 65 Cal.App.2d 260, 150 P.2d 514. 14 If the premiums on a policy in a private insurance company had been paid out of community property without the wife's consent, the wife could claim her proportionate share of the insurance. Grimm v. Grimm, 26 Cal.2d 173, 157 P.2d 841; Cooke v. Cooke, supra; Bazzell v. Endriss, 41 Cal.App.2d 463, 107 P.2d 49; Mundt v. Connecticut General Life Ins. Co., 35 Cal.App.2d 416, 95 P.2d 966.1 15 It is claimed that the exemption provision of the federal statute prevents the same rule from applying here. This provision, 49 Stat. 609, 38 U.S.C. § 454a, 38 U.S.C.A. § 454a, provides: 16 'Payments of benefits due or to become due * * * shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.' 17 What did Congress contemplate by the enactment of this provision? I think the statute presupposes that the beneficiary is the undisputed owner of the proceeds, and that a creditor has sought to reach the fund on an independent claim. Under those circumstances the remedy is denied, for the statute immunizes the fund from levy or attachment. That is not the case before us. The nature of this dipute is a claim by the wife that she is the owner of a half portion of these proceeds because such proceeds are the fruits of funds originally hers. 18 And recognition of her status as an owner glaringly reveals the irrelevancy of the choice of beneficiary provision. 54 Stat. 1010, 38 U.S.C. § 802(g), 38 U.S.C.A. § 802(g). Congress stated that the serviceman was to have the right to designate his beneficiary. When he has done so all other persons than the one selected are foreclosed from claiming the proceeds as beneficiary. No further effect has the statute. Here the wife makes no claim to rights as a beneficiary. I am not persuaded that either the choice of beneficiary or the exemption provision should carry the implication of wiping out family property rights, which traditionally have been defined by state law. Fully to respect the right which Congress gave the serviceman to designate his beneficiary does not require disrespect of settled family law and the incidents of the family relationship. As noted in the opinion of the Court, analogous occasions have found courts expressing greater reluctance to obliterate rights recognized by the states.2 19 Even accepting the Court's view that the exemption provision applies to the wife, it was intended to protect the fund from attachment, levy, or seizure only so long as it could be identified as a fund. No attachment, levy, or seizure is attempted here. This was an action at law for a money judgment. Appellee obtained a judgment for one-half of the payments that had been collected by the beneficiaries and for one-half of those to be collected thereafter. Payments received under the policy are only the measure of the recovery. 20 To allow such a judgment does not interfere with the fund or the free designation of the beneficiary by the serviceman. I cannot believe that Congress intended to say to a serviceman, 'You may take your wife's property and purchase a policy of insurance payable to your mother, and we will see that your defrauded wife gets none of the money.' Certainly Congress did not intend to upset the long-standing community property law of the states where it was not necessary for the protection of the Government in its relation to the soldier or to the integrity of the fund from 'attachment, levy, or seizure.' These are words of art. They have a definite meaning and usage in the law. This usage is not present here. I find nothing in the section that prohibits the beneficiary from being sued at any time on a matter growing out of the transaction by which the soldier acquired the insurance, at least where there is no attempt to attach, levy, or seize the fund. It was the fund Congress was interested in protecting, not the beneficiary. I would affirm. 1 54 Stat. 1008, as amended, 38 U.S.C. § 801 et seq., 38 U.S.C.A. § 801 et seq. Amendments added in 1946, 60 Stat. 781, do not concern us here. 2 We assume the correctness of the lower court's statement of state law. See also French v. French, 1941, 17 Cal.2d 775, 112 P.2d 235, 134 A.L.R. 366. The view we take of this case makes it unnecessary to decide whether California is entitled to call army pay community property. 3 See Lobingier, An Historical Introduction to Community Property Law, 8 Nat.L.Rev. (No. 2), p. 45 (1928); de Funiak, Community Property, c. II (1943). 4 There are, of course, support aspects to the community property principle, and in some cases they may be of considerable importance. Likewise alimony may not be limited to the amount essential to support the divorced spouse. But we do not think the Congress would have intended decision to turn on factual variations in the spouse's need. If there is a distinction to be drawn, we think it must be based upon a generalization as to the dominating characteristics of a particular class of cases—alimony cases, support cases, community property cases. The alimony cases have uniformly been decided on that basis. 1 '* * * the only test applied to this problem has been whether the premiums (on a policy issued on the life of a husband after coverture) are paid entirely from community funds. If so, the policy becomes a community asset and the nonconsenting wife may recover an undivided one-half thereof 'without regard' * * * to the disproportionate size of the premium when compared with the face of the policy.' Mundt v. Connecticut General Life Ins. Co., 35 Cal.App.2d at page 421, 95 P.2d at page 969. 2 The Court has sought to distinguish, unsuccessfully I think, the many cases holding that payments received as pension, disability insurance, or veterans' compensation are not exempted from claims for alimony or family support by exemption statutes in the pattern of § 454a. Exhaustive discussions may be found in In re Bagnall's Guardianship, 238 Iowa 905, 29 N.W.2d 597; Schlaefer v. Schlaefer, 71 App.D.C. 350, 112 F.2d 177, 130 A.L.R. 1014. See also Gaskins v. Security-First Nat. Bank of Los Angeles, 30 Cal.App.2d 409, 86 P.2d 681; Hollis v. Bryan, 166 Miss. 874, 143 So. 687. Cf. Note, 11 A.L.R. 123 and succeeding annotations.

910

338 U.S. 692 70 S.Ct. 472 94 L.Ed. 478 UNITED STATESv.BENEDICT et al. No. 45. Argued Nov. 8, 1949. Decided Feb. 13, 1950. Mr. Arnold Raum, Washington, D.C., for petitioner. Mr. Theodore Pearson, New York City, for respondents. Mr. Justice BURTON delivered the opinion of the Court. 1 The question presented is whether trustees, who, in 1944, permanently set aside a charitable contribution from gains realized upon the disposition of capital assets held for more than six months, were entitled, in computing the federal income tax of the trust, to deduct the full amount of the contribution,1 although only half of those were taken into account in computing net income.2 For the reasons hereafter stated, our answer is in the negative. 2 The respondents are trustees of a trust created by the will of John E. Andrus. The will directs that the net income of the trust be divided into 100 parts, 55 to be paid to certain individual beneficiaries and 45 to the Surdna Foundation, Inc., a charitable corporation.3 Pursuant to those terms the trustees permanently set aside for the Foundation 45% of the trust's net income for the fiscal year ended April 30, 1944, the period involved in this case. 3 In their fiduciary tax return, the trustees reported ordinary net income of $240,567.73, and deducted from it, as a charitable contribution, the $108,255.48 (45% of that net income) which they had set aside for the Surdna Foundation. This was done under § 162(a) of the Internal Revenue Code.4 The trustees also reported gains of $60,374.01 on the disposition of capital assets held for more than six months. Of these gains, they took into account only 50%, amounting to $30,187.01, in computing the trust's taxable income. This was done under § 117(b).5 An uncontroverted deduction of $329.60, representing the carry-over of a 1942 loss, reduced this amount to $29,857.41. From this the trustees deducted 45%, representing a proportionate share of the trust's contribution to the Surdna Foundation. This deduction amounted to $13,435.83, leaving a taxable net income of $16,421.58, on which a tax of $5,480.35 was paid, plus interest. 4 In 1947 the trustees filed a claim for a refund of $5,157.41. They based their claim upon a 1946 decision of the Tax Court as to the 1941 taxes of a nearly identical trust. Andrus Trust No. 1 v. Commissioner, 7 T.C. 573. On that basis, the trustees claimed a deduction from the aforesaid $29,857.41, not only of a proportionate share of the contribution which the trust had set aside from capital gains, but of the entire amount of that contribution. This increased that deduction from $13,435.83 (45% of $29,857.41) to $27,168.31 (45% of the total capital gains of $60,374.01), and correspondingly reduced the trust's taxable net income from $16,421.58 to $2,689.10. 5 In July, 1947, the Court of Appeals for the Second Circuit unanimously reversed the Tax Court in the case relating to 1941 taxes. Commissioner of Internal Revenue v. Central Hanover Bank Co., 163 F.2d 208, certiorari denied, November, 1947, 332 U.S. 830, 68 S.Ct. 208, 92 L.Ed. 404. The Commissioner, however, took no action on the trustees' claim for a refund relating to 1944 taxes, and, in 1948, the trustees filed this proceeding for its recovery through the Court of Claims. With one judge dissenting, that court decided in their favor. 81 F.Supp. 717, 112 Ct.Cl. 550. To resolve the resulting conflict, we granted certiorari. 336 U.S. 966, 69 S.Ct. 940. 6 An illustration based upon the facts in the instant case will bring the statutory problem into clearer focus. A trust realizes gains of $60,000 during the tax year from the sale of capital assets held for more than six months. From these it makes a charitable contribution of 50%. Section 162(a) of the Code6 provides that a trust may deduct any part of its 'gross income' which it contributes to such a charity as the one selected. Section 117(b)7 provides that only 50% of such gains shall be taken into account in computing net income. 7 The trustees contend that, for tax purposes, the entire $60,000 is 'gross income,' that from this amount the $30,000 charitable contribution may be deducted under § 162(a), and that the entire remaining $30,000 is to be left out of account by force of § 117(b), thereby leaving no taxable net income, although $30,000 goes to individual beneficiaries. The Commissioner, however, contends that only the $30,000 of the recognized capital gains that is taken into account by force of § 117(b) constitutes 'gross income,' and that necessarily the other $30,000 that is not to be taken into account for tax purposes is not 'gross income.' Beginning, thus, with $30,000 of gross income, the Commissioner allows a deduction from it of that proportionate part of the charitable contribution that is attributable to the half of the recognized capital gains which has been taken into account. That deduction amounts to $15,000, leaving a taxable net income of $15,000. 8 The narrow statutory question thus presented is whether the entire recognized capital gains or only that half taken into account under § 117(b) shall constitute gross income for tax purposes. Stated conversely, the question is whether that half of a taxpayer's recognized capital gains that is not taken into account for tax purposes shall be left out of account by way of its initial exclusion from gross income, or by way of its subsequent deduction from gross income. On this precise question the Code is silent. No provision of the Code and nothing in the legislative history or administrative practice expressly settles the course to be followed. We, therefore, seek the purposes of the applicable sections of the Code and adopt that construction which best gives effect to those purposes. 9 We find that the obvious purpose of § 162(a) is to encourage the making of charitable contributions out of the gross income of a trust and, to that end, it completely exempts such contributions from income tax, without the limitations imposed upon charitable contributions made by individuals or corporations.8 This purpose is served by each of the constructions of the Code suggested by the parties. Under either method of computation the beneficiaries of the charitable contribution will receive it in full and free of tax. 10 We then find that the effect of § 117(b) is to tax recognized capital gains like ordinary income, except that the tax on capital gains held for more than six months is to be computed on 50% of the amount on which it would be computed if those gains were ordinary income. The Commissioner's solution accomplishes precisely that result and thus serves that purpose. In the illustration, if the gains were ordinary income, the amount subject to tax, after the deduction of the charitable contribution, would be $30,000. As it is, the amount subject to tax is $15,000. The trustees' construction in the instant case would result in taxing the capital gains at substantially less than 50% of the amount at which they would be taxed if they were ordinary income. To the extent that the amount subject to tax goes below that percentage, it fails to give effect to the purpose of § 117(b).9 In the more extreme circumstances suggested by the illustration, this construction would entirely eliminate the tax. 11 We, therefore, approve that interpretation of § 117(b) and the definition of statutory gross income adopted by the Commissioner. We treat the words in § 117(b), which state that only 50% of certain recognized capital gains 'shall be taken into account in computing * * * net income,' as applying to the entire computation of the tax, beginning with the statement of the gross income of the trust and concluding with its taxable net income.10 We treat that percentage of capital gains which expressly is not to be taken into account in computing taxable net income as also excluded from statutory gross income.11 12 Accordingly, the acceptance by the Commissioner of the original return is approved and the judgment of the Court of Claims is reversed. 13 Reversed. 14 Mr. Justice BLACK and Mr. Justice JACKSON are of the opinion that the judgment of the Court of Claims should be affirmed for the reasons which it gave. 15 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 16 Mr. Justice FRANKFURTER. 17 The contrariety of views expressed by the Tax Court, the Court of Appeals for the Second Circuit, the Court of Claims and now by this Court in the task of harmonizing §§ 22(a), 117(b) and 162(a) of the Internal Revenue Code, 26 U.S.C.A. §§ 22(a), 117(b), 162(a), conclusively proves the opaqueness, if not inherent incongruity, of those provisions. Courts must do the best they can with such materials since the power to write or rewrite legislation is not theirs. But the fact that a taxpayer may astutely apply his income so as to reduce the net base on which a tax is to be levied is not in itself ground for rejecting a construction of the Revenue Code which permits the reduced base, even though the particular mode of distributing his income may not have been contemplated in the enactment of the classes of exemptions and deductions within which the taxpayer brings himself. I, too, recoil from a bizarre result and if legislation is ambiguous its construction should avoid such a result. But the rationale of construction ought not to be based on the impact of a single bizarre instance. 18 A deduction for trust income applied to charitable purposes should not be disallowed merely because one taxpayer can effect the payment of a lower income tax than another through the mode by which the charitable contribution is made. Thus, where the trust instrument provides that all charitable donations shall be allocated from ordinary income and not from capital gains, the taxpayer may doubtless deduct such charitable contributions in full and may at the same time report any capital gains under the special capital gains provisions of the Code. This would secure the very benefits sought by the taxpayers here. The rule enunciated by the Court may therefore itself rest tax liability on the astuteness shown in drawing the trust instrument allocating income for charitable purposes. 19 Since I am not alone in entertaining these doubts and they have not been dispelled, it seems appropriate to express them. 1 '§ 162. Net income. 'The net income of the estate or trust shall be computed in the same manner and on the same basis as in the case of an individual, except that— '(a) There shall be allowed as a deduction (in lieu of the deduction for charitable, etc., contributions authorized by section 23(o)) any part of the gross income, without limitation, which pursuant to the terms of the will or deed creating the trust, is during the taxable year paid or permanently set aside for the purposes and in the manner specified in section 23(o), or is to be used exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, or for the establishment, acquisition, maintenance or operation of a public cemetery not operated for profit; * * *.' (Emphasis supplied.) 53 Stat. 66, 26 U.S.C. § 162(a), 26 U.S.C.A. § 162(a). 2 '§ 117. Capital gains and losses '(b) Percentage Taken Into Account.—In the case of a taxpayer, other than a corporation, only the following percentages of the gain or loss recognized upon the sale or exchange of a capital asset shall be taken into account in computing net capital gain, net capital loss, and net income: '100 per centum if the capital asset has been held for not more than 6 months; '50 per centum if the capital asset has been held for more than 6 months.' 53 Stat. 50—51, as amended, 56 Stat. 843, 26 U.S.C. § 117(b), 26 U.S.C.A. § 117(b). 3 The will creating the trust contained no provision as to the kind of income from which the charitable contributions were to be set aside, and it is not disputed that the trustees properly set aside the contributions proportionately from capital gains and all other income. There is nothing to indicate that the trustees, in setting aside the contribution, attempted to allocate them to any particular part or percentage of the capital gains. See Helvering v. Bliss, 293 U.S. 144, 149—150, 55 S.Ct. 17, 19, 20, 79 L.Ed. 246, 95 A.L.R. 207; Grey v. Commissioner, 7 Cir., 118 F.2d 153, affirming 41 B.T.A. 234; Scott v. United States, 78 F.Supp. 811, 815—816, 111 Ct.Cl. 610, 618—620; Newbury v. United States, 57 F.Supp. 168, 102 Ct.Cl. 192; Meissner v. Commissioner, 8 T.C. 780; Estate of Traiser v. Commissioner, 41 B.T.A. 228; Montgomery, Federal Taxes, Estates, Trusts and Gifts 179 (1948—1949); 2 Nossaman, Trust Administration and Taxation 115—116 (1945). 4 See note 1, supra. 5 See note 2, supra. 6 See note 1, supra. 7 See note 2, supra. 8 United States v. Pleasants, 305 U.S. 357, 363, 59 S.Ct. 281, 284, 83 L.Ed. 217; Old Colony Trust Co. v. Commissioner, 301 U.S. 379, 384, 57 S.Ct. 813, 816, 81 L.Ed. 1169; Helvering v. Bliss, 293 U.S. 144, 147, 55 S.Ct. 17, 19, 79 L.Ed. 246, 95 A.L.R. 207. When the words 'without limitation,' in § 162(a), are read in connection with § 23(o), 53 Stat. 13—15, as amended, 53 Stat. 880, and 56 Stat. 826, 26 U.S.C. § 23(o), 26 U.S.C.A. § 23(o) their effect is only to make inapplicable the limitation of 15%, under § 23(o), and any other statutory limitation which otherwise might apply to charitable contributions made out of the gross income of an estate or trust. Grey v. Commissioner, 41 B.T.A. 234, 243, affirmed, 7 Cir., 118 F.2d 153. See also, Old Colony Trust Co. v. Commissioner, 301 U.S. 379, 382—384, 57 S.Ct. 813, 816, 81 L.Ed. 1169; Commissioner of Internal Revenue v. Central Hanover Bank Co., 2 Cir., 163 F.2d 208, 211; Frank Trust of 1931 v. Commissioner, 3 Cir., 145 F.2d 411, 413; Scott v. United States, 78 F.Supp. 811, 815—816, 111 Ct.Cl. 610, 618—620; Newbury v. United States, 57 F.Supp. 168, 102 Ct.Cl. 192. For the comparable 5% limitation applicable to charitable contributions made by corporations, see 53 Stat. 15—16, as amended, 56 Stat. 822, 26 U.S.C. § 23(g), 26 U.S.C.A. § 23(g). 9 See note 2, supra. The alternative computation of the tax on capital gains provided by § 117(c)(2) of the Code is consistent with this result. 53 Stat. 51, as amended, 56 Stat. 843—844, 26 U.S.C. § 117(c)(2), 26 U.S.C.A. § 117(c)(2). 10 It is unnecessary to review the intricate arguments presented as to the terminology of the Code. They do not compel the adoption of either interpretation or preclude the conclusion here reached. This is not a case in which the trust or the statute has required or even authorized the trustees to earmark their charitable contributions as coming from any particular items of trust income, or from any particular kind of trust income. The issue does not involve any possible allocation of a charitable deduction to ordinary income rather than to capital gains. For the requirement that, under § 162(a), each contribution in order to be deductible must be made or permanently set aside pursuant to the terms of the will or deed creating the trust, and also must be from a part of the gross income of the trust, see Old Colony Trust Co. v. Commissioner, 301 U.S. 379, 57 S.Ct. 813, 81 L.Ed. 1169; Frank Trust of 1931 v. Commissioner, 3 Cir., 145 F.2d 411; Wellman v. Welch, 1 Cir., 99 F.2d 75; Estate of Tyler v. Commissioner, 9 B.T.A. 255, 262—263. 11 See Commissioner v. Central Hanover Bank Co., 2 Cir., 163 F.2d 208, 210; Frank Trust of 1931 v. Commissioner, supra; Wellman v. Welch, supra; Green v. Commissioner, 7 T.C. 263, 277; Maloy v. Commissioner, 45 B.T.A. 1104, 1107.

1112

339 U.S. 56 70 S.Ct. 430 94 L.Ed. 653 UNITED STATESv.RABINOWITZ. No. 293. Argued Jan. 11, 1950. Decided Feb. 20, 1950. Mr. Philip B. Perlman, Solicitor General, Washington, D.C., for petitioner. Mr. Abraham Lillienthal, New York City, for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 Respondent was convicted of selling and of possessing and concealing forged and altered obligations of the United States with intent to defraud. The question presented here is the reasonableness of a search without a search warrant of a place of business consisting of a one-room office, incident to a valid arrest. 2 On February 1, 1943, a printer who possessed plates for forging 'overprints' on canceled stamps was taken into custody. He disclosed that respondent, a dealer in stamps, was one of the customers to whom he had delivered large numbers of stamps bearing forged overprints.1 On Saturday, February 6, 1943, with this information concerning respondent and his activities in the hands of Government officers, a postal employee was sent to respondent's place of business to buy stamps bearing overprints. He bought four stamps. On Monday, February 8, the stamps were sent to an expert to determine whether the overprints were genuine. On February 9 the report was received showing the overprints to be forgeries, having been placed upon the stamps after cancellation, and not before as was the Government's practice. On February 11 a further statement was obtained from the printer who had made the overprints. On February 16, 1943, a warrant for the arrest of respondent was obtained. 3 In 1941 respondent had been convicted and sentenced to three months' imprisonment on a plea of guilty to a two-count indictment charging the alteration of obligations of the United States, that is, of overprinting Government postage stamps, and the possession of a plate from which a similitude of a United States obligation had been printed. Thus, when the warrant for arrest was obtained, the officers had reliable information that respondent was an old offender, that he had sold four forged and altered stamps to an agent of the Government, and that he probably possessed several thousand altered stamps bearing forged overprints. While the warrant of arrest was not put in evidence is contained, as a Government witness testified on cross-examination, authority to arrest for more than the sale of the four stamps; it covered all the Government officers' information.2 4 Armed with this valid warrant for arrest, the Government officers, accompanied by two stamp experts, went to respondent's place of business, a one-room office open to the public. The officers thereupon arrested the respondent, and over his objection searched the desk, safe, and file cabinets in the office for about an hour and a half. They found and seized 573 stamps, on which it was later determined that overprints had been forged, along with some other stamps which were subsequently returned to respondent. 5 Respondent was indicted on two counts. He was charged in count one with selling four forged and altered stamps, knowing they were forged and altered and with the intent that they be passed as geniune.3 The second count charged that he did keep in his possession and conceal, with intent to defraud, the 573 forged and altered stamps.4 6 Respondent made timely motions for suppression and to strike the evidence pertaining to the 573 stamps, all of which were eventually denied. Respondent was convicted on both counts after trial before a jury in which he offered no evidence. Relying on Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, the Court of Appeals, one judge dissenting, reversed on the ground that since the officers had had time in which to procure a search warrant and had failed to do so the search was illegal, and the evidence therefore should have been excluded. 2 Cir., 176 F.2d 732. We granted certiorari to determine the validity of the search because of the question's importance in the administration of the law of search and seizure. 338 U.S. 884, 70 S.Ct. 187. 7 Were the 573 stamps, the fruits of this search, admissible in evidence? If legally obtained, these stamps were competent evidence to show intent under the first count of the indictment, and they were the very things the possession of which was the crime charged in the second count. 8 The Fourth Amendment provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' 9 It is unreasonable searches that are prohibited by the Fourth Amendment. Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543, 39 A.L.R. 790. It was recognized by the framers of the Constitution that there were reasonable searches for which no warrant was required. The right of the 'people to be secure in their persons' was certainly of as much concern to the framers of the Constitution as the property of the person. Yet no one questions the right, without a search warrant, to search the person after a valid arrest. The right to search the person incident to arrest always has been recognized in this country and in England. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177. Where one had been placed in the custody of the law by valid action of officers, it was not unreasonable to search him. 10 Of course, a search without warrant incident to an arrest is dependent initially on a valid arrest. Here the officers had a warrant for respondent's arrest which was, as far as can be ascertained, broad enough to cover the crime of possession charged in the second count, and consequently respondent was properly arrested. Even if the warrant of arrest were not sufficient to authorize the arrest for possession of the stamps, the arrest therefor was valid because the officers had probable cause to believe that a felony was being committed in their very presence. Carroll v. United States, 267 U.S. 132, 156—157, 45 S.Ct. 280, 286, 69 L.Ed. 543, 39 A.L.R. 790. 11 The arrest was therefore valid in any event, and respondent's person could be lawfully searched. Could the officers search his desk, safe and file cabinets, all within plain sight of the parties, and all located under respondent's immediate control in his one-room office open to the public? 12 Decisions of this Court have often recognized that there is a permissible area of search beyond the person proper. Thus in Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145, this Court stated: 13 'The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted.' 14 The right 'to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed' seems to have stemmed not only from the acknowledged authority to search the person, but also from the longstanding practice of searching for other proofs of guilt within the control of the accused found upon arrest. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177. It became accepted that the premises where the arrest was made, which premises were under the control of the person arrested and where the crime was being committed, were subject to search without a search warrant. Such a search was not 'unreasonable.' Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5; Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287; Boyd v. United States, 116 U.S. 616, 623—624, 6 S.Ct. 524, 528, 29 L.Ed. 746. 15 In Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231, the officers had a warrant to search for liquor, but the warrant did not describe a certain ledger and invoices pertaining to the operation of the business. The latter were seized during the search of the place of business but were not returned on the search warrant as they were not described therein. The offense of maintaining a nuisance under the National Prohibition Act, 27 U.S.C.A. § 1 et seq., was being committed in the room by the arrested bartender in the officers' presence. The search warrant was held not to cover the articles seized, but the arrest for the offense being committed in the presence of the officers was held to authorize the search for and seizure of the ledger and invoices, this Court saying: 16 'The officers were authorized to arrest for crime being committed in their presence, and they lawfully arrested Birdsall. They had a right without a warrant contemporaneously to search the place in order to find and seize the things used to carry on the criminal enterprise. * * * The closet in which liquor and the ledger were found was used as a part of the saloon. And, if the ledger was not as essential to the maintenance of the establishment as were bottles, liquors and glasses, it was none the less a part of the outfit or equipment actually used to commit the offense. And, while it was not on Birdsall's person at the time of his arrest, it was in his immediate possession and control. The authority of officers to search and seize the things by which the nuisance was being maintained extended to all parts of the premises used for the unlawful purpose.' Marron v. United States, 275 U.S. 192, 198—199, 48 S.Ct. 74, 76, 77. 17 We do not understand the Marron case to have been drained of contemporary vitality by Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374, and United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775. Those cases condemned general exploratory searches, which cannot be undertaken by officers with or without a warrant. In the instant case the search was not general or exploratory for whatever might be turned up. Specificity was the mark of the search and seizure here. There was probable cause to believe that respondent was conducting his business illegally. The search was for stamps overprinted illegally, which were though upon the most reliable information to be in the possession of and concealed by respondent in the very room where he was arrested, over which room he had immediate control and in which he had been selling such stamps unlawfully. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, which has not been overruled, is ample authority for the more limited search here considered. In all the years of our Nation's existence, with special attention to the Prohibition Era, it seems never to have been questioned seriously that a limited search such as here conducted as incident to a lawful arrest was a reasonable search and therefore valid.5 It has been considered in the same pattern as search of the person after lawful arrest. 18 What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are 'unreasonable' searches and, regrettably, in our discipline we have no ready litmuspaper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374. Reasonableness is in the first instance for the District Court to determine. We think the District Court's conclusion that here the search and seizure were reasonable should be sustained because: (1) the search and seizure were incident to a valid arrest; (2) the place of the search was a business room to which the public, including the officers, was invited; (3) the room was small and under the immediate and complete control of respondent; (4) the search did not extend beyond the room used for unlawful purposes; (5) the possession of the forged and altered stamps was a crime, just as it is a crime to possess burglars' tools, lottery tickets or counterfeit money.6 19 Assuming that the officers had time to procure a search warrant, were they bound to do so? We think not, because the search was otherwise reasonable, as previously concluded. In a recent opinion, Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, this Court first enunciated the requirement that search warrants must be procured when 'practicable' in a case of search incident to arrest. On the occasion of the previous suggestion of such a test, Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, the Court had been scrupulous to restrict the opinion to the familiar situation there presented. Prohibition agents, having received complaints for about a year, went at 2:30 a.m. to a garage adjacent to a house, flashed a light through a small opening, and then broke in and seized liquor. The Court emphasized that 'No one was within the place, and there was no reason to think otherwise.' Id. 286 U.S. at page 5, 52 S.Ct. at page 467. Lest the holding that such a search of an unoccupied building was unreasonable be thought to have broader significance the Court carefully stated in conclusion: 'This record does not make it necessary for us to discuss the rule in respect of searches in connection with an arrest. No offender was in the garage; the action of the agents had no immediate connection with an arrest. The purpose was to secure evidence to support some future arrest.' Id. 286 U.S. at page 6, 52 S.Ct. at page 467. 20 A rule of thumb requiring that a search warrant always be procured whenever practicable may be appealing from the vantage point of easy administration. But we cannot agree that this requirement should be crystallized into a sine qua non to the reasonableness of a search. It is fallacious to judge events retrospectively and thus to determine, considering the time element alone, that there was time to procure a search warrant. Whether there was time may well be dependent upon considerations other than the ticking off of minutes or hours. The judgment of the officers as to when to close the trap on a criminal committing a crime in their presence or who they have reasonable cause to believe is committing a felony is not determined solely upon whether there was time to procure a search warrant. Some flexibility will be accorded law officers engaged in daily battle with criminals for whose restraint criminal laws are essential. 21 It is appropriate to note that the Constitution does not say that the right of the people to be secure in their persons should not be violated without a search warrant if it is practicable for the officers to procure one. The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. It is not disputed that there may be reasonable searches, incident to an arrest, without a search warrant. Upon acceptance of this established rule that some authority to search follows from lawfully taking the person into custody, it becomes apparent that such searches turn upon the reasonableness under all the circumstances and not upon the practicability of procuring a search warrant, for the warrant is not required. To the extent that Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled. The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances—the total atmosphere of the case. It is a sufficient precaution that law officers must justify their conduct before courts which have always been, and must be, jealous of the individual's right of privacy within the broad sweep of the Fourth Amendment. 22 We do not treat additional questions raised by respondent in his brief to support the judgment of the Court of Appeals. We consider it appropriate to dispose of these issues on the basis of the excellent discussion below. 23 The motion to suppress the evidence was properly denied by the District Court. The judgment of the Court of Appeals is reversed. 24 Reversed. 25 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 26 Mr. Justice BLACK, dissenting. 27 Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, was decided on the unarticulated premise that the Fourth Amendment of itself barred the use of evidence obtained by what the Court considered an 'unreasonable' search. I dissented in that case. Later, concurring in this Court's decision in Wolf v. Colorado, 338 U.S. 25, 39—40, 69 S.Ct. 1359, 1367, I stated my agreement with the 'plain implication' of the Wolf opinion that 'the federal exclusionary rule is not a command of the Fourth Amendment but is a judicially created rule of evidence which Congress might negate.' In the light of the Wolf case, the Trupiano rule is not a constitutional command, but rather an evidentiary policy adopted by this Court in the exercise of its supervisory powers over federal courts. Cf. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. The present case comes within that rule: the trial court admitted certain evidence procured by a search and seizure without a search warrant although the officers had ample time and opportunity to get one. Whether this Court should adhere to the Trupiano principle making evidence so obtained inadmissible in federal courts now presents no more than a question of what is wise judicial policy. Although the rule does not in all respects conform to my own ideas, I think that the reasons for changing it are outweighed by reasons against its change. 28 In recent years, the scope of the rule has been a subject of almost constant judicial controversy both in trial and appellate courts. In no other field has the law's uncertainty been more clearly manifested. To some extent that uncertainty may be unavoidable. The Trupiano case itself added new confusions 'in a field already replete with complexities.' Trupiano v. United States, supra, 334 U.S. 716, 68 S.Ct. 1238. But overruling that decision merely aggravates existing uncertainty. For as Mr. Justice Frankfurter points out, today's holding casts doubt on other cases recently decided. And I do not understand how trial judges can be expected to foresee what further shifts may occur. In my judgment it would be wiser judicial policy to adhere to the Trupiano rule of evidence, at least long enough to see how it works. 29 That rule is based upon very strict requirements designed to narrow the occasions upon which officers can make searches and seizures without judicial warrant. Unquestionably its application will now and then permit a guilty person to escape conviction because of hasty or ill-advised action on the part of enforcement officers. But the same may be said of the requirements of the Fourth Amendment which the exclusionary rule was fashioned to implement. The framers of the Fourth Amendment must have concluded that reasonably strict search and seizure requirements were not too costly a price to pay for protection against the dangers incident to invasion of private premises and papers by officers, some of whom might be overzealous and oppressive. See dissent in Feldman v. United States, 322 U.S. 487, 500—502, 64 S.Ct. 1082, 1088—1089, 88 L.Ed. 1408, 154 A.L.R. 982. Nor can I see where the enforcement of criminal justice is likely to be seriously handicapped by adhering to the Trupiano holding. 30 I would affirm the judgment of the Court of djQ Mr. Justice FRANKFURTER, whom Mr. Justice JACKSON joins, dissenting. 31 The clear-cut issue before us is this: in making a lawful arrest, may arresting officers search without a search warrant not merely the person under arrest or things under his immediate physical control, but the premises where the arrest is made, although there was ample time to secure such a warrant and no danger that the 'papers and effects' for which a search warrant could be issued would be despoiled or destroyed? 32 The old saw that hard cases make bad law has its basis in experience. But petty cases are even more calculated to make bad law. The impact of a sordid little case is apt to obscure the implications of the generalization to which the case gives rise. Only thus can I account for a disregard of the history embedded in the Fourth Amendment and the great place which belongs to that Amendment in the body of our liberties as recognized and applied by unanimous decisions over a long stretch of the Court's history. 33 It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment. A disregard of the historic materials underlying the Amendment does not answer them. 34 1. It is true also of journeys in the law that the place you reach depends on the direction you are taking. And so, where one comes out on a case depends on where one goes in. It makes all the difference in the world whether one approaches the Fourth Amendment as the Court approached it in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177, in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426, in Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, or one approaches is as a provision dealing with a formality. It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece or paper. 2. This is the Fourth Amendment: 35 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' 36 These words are not just a literary composition. They are not to be read as they might be ready by a man who knows English but has no knowledge of the history that gave rise to the words. The clue to the meaning and scope of the Fourth Amendment is John Adams' characterization of Otis' argument against search by the police that 'American independence was then and there born.' 10 Adams, Works 247. One cannot wrench 'unreasonable searches' from the text and context and historic content of the Fourth Amendment. It was the answer of the Revolutionary statesmen to the evils of searches without warrants and searches with warrants unrestricted in scope. Both were deemed 'unreasonable.' Words must be read with the gloss of the experience of those who framed them. Because the experience of the framers of the Bill of Rights was so vivid, they assumed that it would be carried down the stream of history and that their words would receive the significance of the experience to which they were addressed—a significance not to be found in the dictionary. When the Fourth Amendment outlawed 'unreasonable searches' and then went on to define the very restricted authority that even a search warrant issued by a magistrate could give, the framers said with all the clarity of the gloss of history that a search is 'unreasonable' unless a warrant authorizes it, barring only exceptions justified by absolute necessity. Even a warrant cannot authorize it except when it is issued 'upon probable cause * * * and particularly describing the place to be searched, and the persons or things to be seized.'1 With all respect I suggest that it makes a mockery of the Fourth Amendment to sanction search without a search warrant merely because of the legality of an arrest. I have yet to hear the answer to Judge Learned Hand's reasoning below that to make the validity of a search 37 'depend upon the presence of the party in the premises searched at the time of the arrest. * * * would make crucial a circumstance that has no rational relevance to the purposes of the privilege. The feelings which lie behind it have their basis in the resentement, inevitable in a free society, against the invasion of a man's privacy without some judicial sanction. It is true that when one has been arrested in his home or his office, his privacy has already been invaded; but that interest, though lost, is altogether separate from the interest in protecting his papers from indiscriminate rummage, even though both are customarily grouped together as parts of the 'right of privacy.' * * * The history of the two privileges is altogether different; the Fourth Amendment distinguishes between them; and in statutes they have always been treated as depending upon separate conditions.' 2 Cir., 176 F.2d 732, 735. 38 3. This brings me to a consideration of the right of search and seizure 'incident to arrest.' Undue haste in coming to that issue too readily leads to getting off the track of the Fourth Amendment. The Government argued as though the Constitution said search of premises may be at large whenever an arrest is made in them. The utterly free hand, for all practical purposes, this gives the arresting officers to rummage all over the house is, I think, inevitable unless the basis of any right to search as an incident to arrest is put in proper focus. Photographs can be so taken as to make a midget look like a giant, and vice versa. The same kind of distortion results if a legal doctrine embedded in a larger matrix of principle is taken out of the matrix and elevated to an independent position. In plain English, the right to search incident to arrest is merely one of those very narrow exceptions to the 'guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case.' Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 329, 41 L.Ed. 715. 39 4. What, then, is the exception to the prohibition by the Fourth Amendment of search without a warrant in case of a legal arrest, whether the arrest is on a warrant or based on the historic right of arrest without a warrant if a crime is committed in the presence of the arrester? The exception may in part be a surviving incident of the historic role of 'hue and cry' in early Anglo-Saxon law. See Judge Cardozo in People v. Chiagles, 237 N.Y. 193, 196, 142 N.E. 583, 584, 32 A.L.R. 676. Its basic roots, however, lie in necessity. What is the necessity? Why is search of the arrested person permitted? For two reasons: first, in order to protect the arresting officer and to deprive the prisoner of potential means of escape, Closson v. Morrison, 47 N.H. 482, 93 Am.Dec. 459, and, secondly, to avoid destruction of evidence by the arrested person. See Reifsnyder v. Lee, 44 Iowa 101, 103, 24 Am.Rep. 733; Holker v. Hennessey, 141 Mo. 527, 540, 42 S.W. 1090, 1093, 39 L.R.A. 165, 64 Am.St.Rep. 524. From this it follows that officers may search and seize not only the things physically on the person arrested, but those within his immediate physical control. What a farce it makes of the whole Fourth Amendment to say that because for many legal purposes everything in a man's house is under his control therefore his house—his rooms—may be searched. Of course in this field of law, as in others, opinions sometimes use language not with fastidious precision. Apart from such instances of loose use of language, the doctrine of search incidental to arrest has, until very recently, been strictly confined to the necessities of the situation, i.e., the search of the person and those immediate physical surroundings which may fairly be deemed to be an extension of his person. 40 5. Another exception to the constitutional prohibition of unreasonable searches is likewise rooted in necessity. The search without a warrant of moving objects—vehicles and vessels—was sanctioned in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 L.R.A. 790, on the ground that 'it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' 267 U.S. at page 153, 45 S.Ct. at page 285. Furthermore, the limits of the exception were carefully defined in terms of necessity, for the Court added: 41 'In cases where the securing of a warrant is reasonably practicable, it must be used and when properly supported by affidavit and issued after judicial approval protects the seizing officer against a suit for damages. In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause.' 267 U.S. at page 156, 45 S.Ct. at page 286. 42 Even as to moving vehicles, this Court did not lay down an absolute rule dispensing with a search warrant. It limited dispensation to the demands of necessity, where want of time precluded the obtaining of a warrant. The necessity founded on the time factor which guided the Court in the Carroll case cannot justify the search here made of the respondent's premises, for there was ample time to obtain a warrant before the arrest and even on the occasion of the arrest. 43 6. It is in this connection that the body of congressional enactments becomes significant, particularly legislation contemporaneous with the adoption of the Bill of Rights. If explicit legislation was deemed necessary to inspect without warrant even vessels and vehicles, and if Congress has been very niggardly in giving authority to search even with a warrant—niggardly both as to the officers who may obtain such warrants and as to strictly defined circumstances under which search is allowed—the attitude disclosed by this impressive legislation bears powerfully on the historic purposes of the Fourth Amendment and the functions that it fulfills in our democracy. It deserves to be recalled that Congress, despite repeated requests by Attorneys General, long refused to make search by warrant generally available as an aid to criminal prosecution. It did not do so until the First World War and even then it did not do so except under conditions most carefully circumscribed.2 44 7. With only rare deviations, such as today's decision, this Court has construed the Fourth Amendment 'liberally to safeguard the right of privacy.' United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877, 82 A.L.R. 775.3 The guiding line in dealing with the Fourth Amendment was set forth in Gouled v. United States, 255 U.S. 298, 303—304, 41 S.Ct. 261, 263: 45 'It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177, and in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (24 A.L.R. 1426)) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments. The effect of the decisions cited is: That such rights are declared to be indispensable to the 'full enjoyment of personal security, personal liberty and private property'; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen—the right, to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or 'gradual depreciation' of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous, executive officers.' 46 8. The opinion of the Court insists, however, that its major premise—that an arrest creates a right to search the place of arrest—finds support in decisions beginning with Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341. These decisions do not justify today's decision. They merely prove how a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision. This progressive distortion is due to an uncritical confusion of (1) the right to search the person arrested and articles in his immediate physical control and (2) the right to seize visible instruments or fruits of crime at the scene of the arrest with (3) an alleged right to search the place of arrest. It is necessary in this connection to distinguish clearly between prohibited searches and improper seizures. It is unconstitutional to make an improper search even for articles that are appropriately subject to seizure when found by legal means. E.g., Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951. Thus, the seizure of items properly subject to seizure because in open view at the time of arrest does not carry with it the right to search for such items. 47 The doctrine of the right to search the place of arrest announced today rests on the precarious foundation of this passage in the Weeks case: 48 'What, then, is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the government always recognized under English and American law, to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bishop, Crim. Proc., § 211; Wharton, Crim. Pl. & Pr., 8th ed., § 60; Dillon v. O'Brien, 16 Cox C.C. 245. * * * Nor is it the case of burglar's tools or other proofs of guilt found upon his arrest within the control of the acused.' 232 U.S. 383, 392, 34 S.Ct. 344. 49 The statement does not even refer to a right to search the place of arrest, and the authorities cited merely support the assertion of a right to search the person arrested and to seize visible instruments or fruits of crime.4 50 The authority to search which flows from the right to arrest was next discussed by this Court in Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 287: 51 'When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution.' While broader than the Weeks statement, this is still far from claiming the right to search a place merely because of an arrest there. What was said in the earlier case about articles in the control of the arrested person not being in issue is now stated positively as a right to seize whatever is found in the control of the person arrested. This Carroll statement is based on what was said in Weeks, and on two State cases which did not enunciate a right to search the place of arrest.5 52 These limited statements in the Weeks and Carroll opinions were uncritically expanded in Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 5: 53 'The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted. See Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, (287), 69 L.Ed. 543 (39 L.R.A. 790); Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341 (344), 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177.' 54 If such a right was 'not to be doubted' it certainly cannot be supported by the cases cited. Carroll and Weeks may have established a right to seize visible evidences of crime and to search the person arrested and even objects he physically controls, but neither case so much as hints that there is a right to search the entire place of arrest for 'things connected with the crime.' 55 In Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 1016, these carelessly phrased dicta were for the first time reflected in the result. The statement in the opinion that officers 'had a right without a warrant contemporaneously to search the place in order to find and seize the things used to carry on the criminal enterprise', 275 U.S. at page 199, 48 S.Ct. at page 77, was drastically qualified by Go-Bart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 158, 75 L.Ed. 374, and United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775. The teaching of those cases is that the warrant of arrest carries with it authority to seize all that is on the person, or in such immediate physical relation to the one arrested as to be in a fair sense a projection of his person. The Lefkowitz decision emphasized that the things seized in Marron 'being in plain view were picked up by the officers as an incident of the arrest. No search for them was made.' 285 U.S. at 465, 52 S.Ct. 423. Thus explained, Marron stands merely for the historically justified right to seize visible instruments of crime at the scene of the arrest. 56 In reliance on the prior dicta and on the Marron decision, it was asserted in Harris v. United States, 331 U.S. 145, 150, 67 S.Ct. 1101, that 'Search and seizure incident to lawful arrest is a practice of ancient origin.' Literally, this is true: the right to search the person arrested and to seize visible instruments of crime has a good legal title. But judicial history cannot be avouched if this statement is meant to cover the right to search the place of arrest. Such a claim can only be made by sliding from a search of the person to a search for things in his 'possession' or 'in his immediate control,' without regard to the treacherous ambiguity of these terms, and then using these phrases, taken out of their original context, so as to include the entire premises. 57 The short of it is that the right to search the place of arrest is an innovation based on confusion, without historic foundation, and made in the teeth of a historic protection against it. 58 9. If the exception of search without a warrant incidental to a legal arrest is extended beyond the person and his physical extension, search throughout the house necessarily follows. I am aware that most differences in the law depend on differences of degree. But differences though of degree must not be capricious; the differences must permit rational classification. If upon arrest you may search beyond the immediate person and the very restricted area that may fairly be deemed part of the person, what rational line can be drawn short of searching as many rooms as arresting officers may deem appropriate for finding 'the fruits of the crime'? Is search to be restricted to the room in which the person is arrested but not to another open room into which it leads? Or, take a house or an apartment consisting largely of one big room serving as dining room, living room and bedroom. May search be made in a small room but not in such a large room? If you may search the bedroom part of a large room, why not a bedroom separated from the dining room by a partition? These are not silly hard cases. They put the principle to a test. The right to search an arrested person and to take the stuff on top of the desk at which he sits has a justification of necessity which does not eat away the great principle of the Fourth Amendment. But to assume that this exception of a search incidental to arrest permits a free-handed search without warrant is to subvert the purpose of the Fourth Amendment by making the exception displace the principle. History and the policy which it represents alike admonish against it. 59 10. To tear 'unreasonable' from the context and history and purpose of the Fourth Amendment in applying the narrow exception of search as an incident to an arrest is to disregard the reason to which reference must be made when a question arises under the Fourth Amendment. It is to make the arrest an incident to an unwarranted search instead of a warrantless search an incident to an arrest. The test by which searches and seizures must be judged is whether conduct is consonant with the main aim of the Fourth Amendment. The main aim of the Fourth Amendment is against invasion of the right of privacy as to one's effects and papers without regard to the result of such invasion. The purpose of the Fourth Amendment was to assure that the existence of probable cause as the legal basis for making a search was to be determined by a judicial officer before arrest and not after, subject only to what is necessarily to be excepted from such requirement. The exceptions cannot be enthroned into the rule. The justification for intrusion into a man's privacy was to be determined by a magistrate uninfluenced by what may turn out to be a successful search for papers, the desire to search for which might be the very reason for the Fourth Amendment's prohibition. The framers did not regard judicial authorization as a formal requirement for a piece of paper. They deemed a man's belongings part of his personality and his life. In dealing with the question, this Court in United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877, 82 A.L.R. 775, approvingly cited what was said by Judge Learned Hand in United States v. Kirschenblatt, 2 Cir., 16 F.2d 202, 203, 51 A.L.R. 416: 60 'Whatever the casuistry of border cases, it is broadly a totally different thing to search a man's pockets and use against him what they contain, from ransacking his house for everything which may incriminate him, once you have gained lawful entry, either by means of a search warrant or by his consent. The second is a practice which English-speaking peoples have thought intolerable for over a century and a half. It was against general warrants of search, whose origin was, or was thought to be, derived from Star Chamber, and which had been a powerful weapon for suppressing political agitation, that the decisions were directed, of which Entick v. Carrington, 19 How.St. Trials, 1029, is most often cited. These cases were decided just after the colonists had been hotly aroused by the attempt to enforce customs duties by writs of assistance, and when within 30 years they framed the Fourth Amendment it was general warrants that they especially had in mind. Boyd v. U.S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. 61 'After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him, appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis the power would not exist, if the supposed offender were not found on the premises; but it is small consolation to know that one's papers are safe only so long as one is not at home. Such constitutional limitations arise from grievances, real or fancied, which their makers have suffered, and should go pari passu with the supposed evil. They withstand the winds of logic by the depth and toughness of their roots in the past. Nor should be forget that what seems fair enough against a squalid huckster of bad liquor may take on a very different face, if used by a government determined to suppress political opposition under the guise of sedition.' 11. By the Bill of Rights the founders of this country subordinated police action to legal restraints, not in order to convenience the guilty but to protect the innocent. Nor did they provide that only the innocent may appeal to these safeguards. They knew too well that the successful prosecution of the guilty does not require jeopardy to the innocent. The knock at the door under the guise of a warrant of arrest for a venial or spurious offense was not unknown to them. Compare the statement in Weeks v. United States, 232 U.S. 383, 390, 34 S.Ct. 341, 343, that searches and seizures had been made under general warrants in England 'in support of charges, real or imaginary.' We have had grim reminders in our day of their experience. Arrest under a warrant for a minor or a trumped-up charge has been familiar practice in the past, is a commonplace in the police state of today, and too well-known in this country. See Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. The progress is too easy from police action unscrutinized by judicial authorization to the police state. The founders wrote into the Constitution their conviction that law enforcement does not require the easy but dangerous way of letting the police determine when search is called for without prior authorization by a magistrate. They have been vindicated in that conviction. It may safely be asserted that crime is most effectively brought to book when the principles underlying the constitutional restraints upon police action are most scrupulously observed. 62 The highly experienced Commission on Law Observance and Enforcement appointed by President Hoover spoke of 'the high standards of conduct exacted by Englishmen of the police.' Vol. IV Reports of the National Commission on Law Observance and Enforcement ('Lawlessness in Law Enforcement') p. 259. It is suggested that we cannot afford the luxury of such theoretically desirable subordination of the police to law because greater obedience to law is part of English life generally. I do not think that acceptance of lower standards than those prevailing in England should be written by us into law. That only serves to encourage low standards, not to elevate them. It is unfair to our people to suggest that they cannot attain as high standards as do the British in guarding against police excesses without impairing effective means for combatting crime. Experience proves that it is a counsel of despair to assume that the police cannot be kept within the bounds of the principles which the Fourth and Fifth Amendments embody except at the cost of impotence in preventing crime and dealing sternly with its commission. 63 12. To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an 'unreasonable search' is forbidden—that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response. There must be a warrant to permit search, barring only inherent limitations upon that requirement when there is a good excuse for not getting a search warrant, i.e., the justifications that dispense with search warrants when searching the person in his extension, which is his body and that which his body can immediately control, and moving vehicles. It is for this Court to lay down criteria that the district judges can apply. It is no criterion of reason to say that the district court must find it reasonable. 64 13. Even if the test of reasonableness is to be taken out of the context of the history and purpose of the Fourth Amendment, the test should not be limited to examination of arresting officers' conduct in making the arrest. Their conduct prior to arrest is no less relevant. In any event, therefore, the presence or absence of an ample opportunity for getting a search warrant becomes very important. It is not a rule of thumb. It is a rule of the Fourth Amendment and of the reasons for its adoption. It is not a rule invented in Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663. It is not a rule of those who came on this Court in recent years. The decision in Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, turned on it. It was not a sentimental Court that stated in Taylor: 65 'Although over a considerable period numerous complaints concerning the use of these premises had been received, the agents had made no effort to obtain a warrant for making a search. They had abundant opportunity so to do and to proceed in an orderly way even after the odor had emphasized their suspicions; there was no probability of material change in the situation during the time necessary to secure such warrant. Moreover, a short period of watching would have prevented any such possibility.' 286 U.S. at page 6, 52 S.Ct. at page 467. 66 That the arrest in that case was made after the search was begun does not affect its importance. Opportunity to obtain a search warrant is either relevant or irrelevant in determining the application of the Fourth Amendment. As the Court conceives the test of unreasonableness, different factors may be given varying weight. But opportunity to obtain a warrant cannot be relevant in one situation and totally irrelevant in another. That is the significance of the Taylor case. 67 In the case before us there is not the slightest suggestion that the arresting officers had not the time to secure a search warrant. The arrest and search were made on February 16, 1943. On February 1, there was strong evidence that respondent had in his possession large numbers of stamps bearing forged overprints, in violation of 18 U.S.C. § 265 (1948 Revised Criminal Code, 18 U.S.C.A. § 472). On February 6, a postal employee purchased from respondent four stamps bearing overprints and, on February 9, reports were received showing the overprints to be forgeries. Thus, the Government had at least seven, and more accurately fifteen, days in which to procure a search warrant. Nor was this a case in which the need for a search became apparent at the time of arrest. The arresting officers were accompanied by two stamp experts, whose sole function was to examine the fruits of the search which they knew would be made. This is hardly a natural description of a 'search incidental to an arrest.' 68 It is most relevant that the officers had 'no excuse for not getting a search warrant', 2 Cir., 176 F.2d 732, 735, for that is precisely what the Fourth Amendment was directed against—that some magistrate and not the police officer should determine, if such determination is not precluded by necessity, who shall be rummaging around in my room, whether it be a small room or a very large room, whether it be one room, or two rooms, or three rooms, or four rooms. 69 14. It is not as though we are asked to extend a mischievous doctrine that has been shown to hamper law enforces. We are asked to overrule decisions based on a long course of prior unanimous decisions, drawn from history and legislative experience. In overruling Trupiano we overrule the underlying principle of a whole series of recent cases: United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, based on the earlier cases. For these cases ought not to be allowed to remain as derelicts on the stream of the law, if we overrule Trupiano. These are not outmoded decisions eroded by time. Even under normal circumstances, the Court ought not to overrule such a series of decisions where no mischief flowing from them has been made manifest. Respect for continuity in law, where reasons for change are wanting, alone requires adherence to Trupiano and the other decisions. Especially ought the Court not reenforce needlessly the instabilities of our day by giving fair ground for the belief that Law is the expression of chance—for instance, of unexpected changes in the Court's composition and the contingencies in the choice of successors. 1 The stamps involved were genuine postage stamps. At certain times the Government has printed the name of a particular state or possession on stamps prior to post office sale. Canceled stamps bearing these overprints have an unusual value for stamp collectors. 2 'Q. Now, when you went to Mr. Rabinowitz's place of business, all you had with you was a warrant to arrest him in connection with the alleged sale of those four stamps; is that correct? A. And all information contained in the arrest warrant; yes. 'Q. I didn't hear the last part of your answer. A. In our questions a few minutes back, I stated that the four stamps were specifically mentioned in the application for the warrant for arrest, but that there was other information in my possession that was included in that warrant for arrest. 'Q. Well, wasn't the warrant of arrest issued solely on the charge that Mr. Rabinowitz had sold four stamps containing false or altered overprints? Wasn't that what the warrant of arrest was issued for? A. Primarily, yes, but not completely.' 3 18 U.S.C. (1946 ed.) § 268 (1948 Revised Criminal Code, 18 U.S.C.A. § 473). 4 18 U.S.C. (1946 ed.) § 265. All of these stamps are defined by statute as obligations of the United States. 18 U.S.C. (1946 ed.) § 261 (1948 Revised Criminal Code, 18 U.S.C.A. §§ 8, 472). 5 When construing state safeguards similar to the Fourth Amendment of the Federal Constitution, state courts have shown little hesitancy in holding that incident to a lawful arrest upon premises within the control of the arrested person, a search of the premises at least to the extent conducted in the instant case is not unreasonable. See, e.g.: Argetakis v. State, 24 Ariz. 599, 212 P. 372; Italiano v. State, 141 Fla. 249, 193 So. 48, certiorari denied, 310 U.S. 640, 60 S.Ct. 1088, 84 L.Ed. 1408; State v. Conner, 59 Idaho 695, 89 P.2d 197; State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743; State ex rel. Wong You v. District Court, 106 Mont. 347, 78 P.2d 353; Davis v. State, 30 Okl.Cr. 61, 234 P. 787: State ex rel. Fong v. Superior Court, 29 Wash.2d 601, 188 P.2d 125, certiorari denied, 337 U.S. 956, 69 S.Ct. 1525; State v. Adams, 103 W.Va. 77, 136 S.E. 703, 51 A.L.R. 407. 6 There is no dispute that the objects searched for and seized here, having been utilized in perpetrating a crime for which arrest was made, were properly subject to seizure. Such objects are to be distinguished from merely evidentiary materials which may not be taken into custody. United States v. Lefkowitz, supra, 285 U.S. at page 464—466, 52 S.Ct. 420, 423, 76 L.Ed. 877, 82 A.L.R. 775; Gouled v. United States, 255 U.S. 298, 309—311, 41 S.Ct. 261, 265, 65 L.Ed. 647. This is a distinction of importance, for 'limitations upon the fruit to be gathered tend to limit the quest itself. * * *' United States v. Poller, 2 Cir., 43 F.2d 911, 914, 74 A.L.R. 1382. 1 For a more detailed summary of the English and American history underlying the Fourth Amendment, see the dissenting opinions in Davis v. United States, 328 U.S. 582, 603—605, 66 S.Ct. 1256, 1266, 1267, 90 L.Ed. 1453, and Harris v. United States, 331 U.S. 145, 157—162, 67 S.Ct. 1098, 1104, 1107, 91 L.Ed. 1399. The impact of this history was such that every State of the Union now affords constitutional safeguards against governmental search and seizure. Its contemporary vitality is emphasized by New York's adoption of such a provision as recently as 1938. N.Y.Const. of 1938, Art. 1, § 12. 2 See Title XI of the Act of June 15, 1917, 40 Stat. 217, 228, now Rule 41 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. For a table of congressional legislation, indicating its scope, see the Appendix to the dissenting opinion in Davis v. United States, 328 U.S. 582, 616, 66 S.Ct. 1256, 1272, 90 L.Ed. 1453. 3 See also an analysis of the cases in the Appendix to the dissenting opinion in Harris v. United States, 331 U.S. 145, 175, 67 S.Ct. 1098, 1121, 91 L.Ed. 1399. 4 A fair sample is § 60 of Wharton, Crim. Plead. and Practice, 8th ed.: 'Right to Take Money from the Person of the Defendant,' which discusses only the right to search the person arrested. Again, in Dillon v. O'Brien and Davis, 16 Cox C.C. 245, the issue was the right of arresting officers to seize apparent evidences of crime, not their right to rifle files in an effort to turn up the evidence. 5 Getchell v. Page, 103 Me. 387, 69 A. 624, 18 L.R.A.,N.S., 253, 125 Am.St.Rep. 307, was an action for trespass for the seizure of accoutrements of liquor-making under a warrant which authorized the search and seizrue of intoxicating liquor. The decision that the officer was not liable for the seizure under those circumstances does not support an independent right to search the place of arrest. In Kneeland v. Connally, 70 Ga. 424, 425, the other case cited, the court actually held that the trial court had no jurisdiction of the case. It went on to say that 'just as a warrant to arrest a man charged with murder would carry with it authority to seize the bloody knife or smoking pistol which killed,' the instruments of the crime of gaming could be seized in arresting a proprietor of a gambling house. But once again no authority to search for these instruments was suggested.

01

339 U.S. 9 70 S.Ct. 457 94 L.Ed. 604 SOLESBEEv.BALKCOM, Warden of the State Penitentiary, Tattnall, Georgia. No. 77. Argued and Submitted Nov. 15, 1949. Decided Feb. 20, 1950. Rehearing Denied March 27, 1950. See 339 U.S. 926, 70 S.Ct. 618. Mr. Benjamin E. Pierce, Augusta, Ga., for appellant. Mr. Eugene Cook, Atlanta, Ga., for appellee. Mr. Justice BLACK delivered the opinion of the Court. 1 Petitioner was convicted of murder in a Georgia state court. His sentence was death by electrocution. Subsequently he asked the Governor to postpone execution on the ground that after conviction and sentence he had become insane. Acting under authority granted by § 27-2602 of the Georgia Code1 the Governor appointed three physicians who examined petitioner and declared him sane. Petitioner then filed this habeas corpus proceeding again alleging his insanity. He contended that the due process clause of the Fourteenth Amendment required that his claim of insanity after sentence be originally determined by a judicial or administrative tribunal after notice and hearings in which he could be represented by counsel, cross-examine witnesses and offer evidence. He further contended that if the tribunal was administrative its findings must be subject to judicial review. The trial court sustained the constitutional validity of § 27-2602, holding that determination of petitioner's sanity by the Governor supported by the report of physicians had met the standards of due process. The State Supreme Court affirmed, 205 Ga. 122, 52 S.E.2d 433, 436. The constitutional questions being substantial, see Phyle v. Duffy, 334 U.S. 431, 439, 68 S.Ct. 1131, 1134, 92 L.Ed. 1494, the case is here on appeal under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). 2 In affirming, the State Supreme Court held that a person legally convicted and sentenced to death had no statutory or constitutional right to a judicially conducted or supervised 'inquisition or trial' on the question of insanity subsequent to sentence.2 It viewed the Georgia statutory procedure for determination of this question as motivated solely by a sense of 'public propriety and decency'—an 'act of grace' which could be 'bestowed or withheld by the State at will' and therefore not subject to due process requirements of notice and hearing. The court cited as authority, among others, our holding in Nobles v. State of Georgia, 168 U.S. 398, 18 S.Ct. 87, 42 L.Ed. 515. Compare Burns v. United States, 287 U.S. 216, 223, 53 S.Ct. 154, 156, 77 L.Ed. 266. 3 In accordance with established policy we shall not go beyond the constitutional issues necessarily raised by this record. At the outset we lay aside the contention that execution of an insane person is a type of 'cruel and unusual punishment' forbidden by the Fourteenth Amendment. See Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422. For the controlling Georgia statutes neither approve the practice of executing insane persons, nor is this petitioner about to be executed on such a premise. It is suggested that the reasoning of the Georgia Supreme Court in this case requires us to pass upon the state statute as though it had established a state practice designed to execute persons while insane. But we shall not measure the statute by some possible future application. Our holding is limited to the question of whether the method applied by Georgia here to determine the sanity of an already convicted defendant offends due process. 4 Postponement of execution because of insanity bears a close affinity not to trial for a crime but rather to reprieves of sentences in general. The power to reprieve has usually sprung from the same source as the power to pardon. Power of executive clemency in this country undoubtedly derived from the practice as it had existed in England. Such power has traditionally rested in governors or the President, although some of that power is often delegated to agencies such as pardon or parole boards. Seldom, if ever, has this power of executive clemency been subjected to review by the courts. See Ex parte United States, 242 U.S. 27, 42, 37 S.Ct. 72, 74, 61 L.Ed. 129, L.R.A.1917E, 1178, Ann.Cas.1917B, 355, and cases collected in Note, 38 L.R.A. 577, 587. 5 We are unable to say that it offends due process for a state to deem its Governor an 'apt and special tribunal'3 to pass upon a question so closely related to powers that from the beginning have been entrusted to governors. And here the governor had the aid of physicians specially trained in appraising the elusive and often deceptive symptoms of insanity. It is true that governors and physicians might make errors of judgment. But the search for truth in this field is always beset by difficulties that may beget error. Even judicial determination of sanity might be wrong. 6 Recently we have pointed out the necessary and inherent differences between trial procedures and post-conviction procedures such as sentencing. Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079. In that case we emphasized that certain trial procedure safeguards are not applicable to the process of sentencing. This principle applies even more forcefully to an effort to transplant every trial safeguard to a determination of sanity after conviction. As was pointed out in the Nobles case, supra, to require judicial review every time a convicted defendant suggested insanity would make the possibility of carrying out a sentence depend upon 'fecundity in making suggestion after suggestion of insanity.' Nobles v. State of Georgia, supra, 168 U.S. at pages 405—406, 18 S.Ct. at pages 89—90, 42 L.Ed. 515. See also Phyle v. Duffy, supra. To protect itself society must have power to try, convict, and execute sentences. Our legal system demands that this governmental duty be performed with scrupulous fairness to an accused. We cannot say that it offends due process to leave the question of a convicted person's sanity to the solemn responsibility of a state's highest executive with authority to invoke the aid of the most skillful class of experts on the crucial questions involved. 7 This leaves the contention that the Georgia statutes do not make provisions for an adversary hearing in which a convicted defendant can be present by friends, attorneys, or in person, with the privilege of cross-examining witnesses and offering evidence. Whether this Governor declined to hear any statements on petitioner's behalf, this record does not show. We would suppose that most if not all governors, like most if not all judges, would welcome any information which might be suggested in cases where human lives depend upon their decision. 8 Both the Nobles and the Phyle cases stand for the universal common-law principle that upon a suggestion of insanity after sentence, the tribunal charged with responsibility must be vested with broad discretion in deciding whether evidence shall be heard. This discretion has usually been held nonreviewable by appellate courts.4 The heart of the common-law doctrine has been that a suggestion of insanity after sentence is an appeal to the conscience and sound wisdom of the particular tribunal which is asked to postpone sentence. We cannot say that the trust thus reposed in judges should be denied governors, traditionally charged with saying the last word that spells life or death. There is no indication that either the Governor or the physicians who acted on petitioner's application violated the humanitarian policy of Georgia against execution of the insane. We hold that the Georgia statute as applied is not a denial of due process of law. 9 Affirmed. 10 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 11 Mr. Justice FRANKFURTER, dissenting. 12 In the history of murder, the onset of insanity while awaiting execution of a death sentence is not a rare phenomenon. The legal problems which such supervening insanity raises happily do not involve explorations of the pathological processes which give rise to the conflict between socalled legal and medical insanity. See M'Naghten's Case, 10 Cl. & F. 200 (1843); Glueck, Mental Disorder and the Criminal Law passim (1925); Minutes of Evidence before the 1949 Royal Commission on Capital Punishment. The case now before the Court presents a familiar constitutional issue placed in the setting of a claim of supervening insanity. 13 The question is this: may a State without offending the Due Process Clause of the Fourteenth Amendment put to death one on whose behalf it is claimed that he became insane while awaiting execution, if all opportunity to have his case put is denied and the claim of supervening insanity is rejected on the basis of an ex parte inquiry by the Governor of the State? This issue was before the Court very recently, but in the circumstances the matter was not ripe for decision. Phyle v. Duffy, 334 U.S. 431, 68 S.Ct. 1131, 92 L.Ed. 1494. On the record before us the issue must be met. Unlike the situation in Phyle v. Duffy, it cannot be urged that the Georgia judgment under review leaves open the opportunity for a hearing which was given when Phyle v. Duffy went back to the California courts. 34 Cal.2d 144, 208 P.2d 668. We cannot avoid now deciding whether one awaiting electrocution who makes a substantial claim that he has become insane can be denied opportunity to address the mind of the Governor, or those who advise him, in order to establish the fact of such insanity. In Phyle's case, the Court recognized 'the gravity of the questions here raised under the due process clause.' 334 U.S. at page 439, 68 S.Ct. at page 1134, 92 L.Ed. 1494. Apparently between June, 1948 and today the gravity seems to have been dispelled. These grave questions are now almost summarily answered. It cannot be due to the weightiness of the argument presented at the bar of this Court for none was made here by Georgia, and its slight brief hardly discusses the problems. 14 The immediate question before us depends on the view one takes of the legal right of a State to execute a person become insane after sentence. If the Due Process Clause of the Fourteenth Amendment does not bar the State from infliction of the death sentence while such insanity persists, of course it need make no inquiry into the existence of supervening insanity. If it chooses to make any inquiry it may do so entirely on its own terms. If the Due Process Clause does limit the State's power to execute such an insane person, this Court must assert the supremacy of the Due Process Clause and prohibit its violation by a State. 15 The Court in an easy, quick way puts this crucial problem to one side as not before us. But in determining what procedural safeguards a State must provide, it makes all the difference in the world whether the United States Constitution places a substantive restriction on the State's power to take the life of an insane man. If not to execute is merely a benevolent withholding of the right to kill, the State may exercise its benevolence as it sees fit. But if Georgia is precluded by the Due Process Clause from executing a man who has temporarily or permanently become insane, it is not a matter of grace to assert that right on behalf of the life about to be taken. If taking life under such circumstances is forbidden by the Constitution, then it is not within the benevolent discretion of Georgia to determine how it will ascertain sanity. Georgia must afford the rudimentary safeguards for establishing the fact. If Georgia denies them she transgresses the substance of the limits that the Constitution places upon her. 16 Does the Due Process Clause then bar a State from executing a man under sentence of death while insane? It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply embedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just. The more fundamental the beliefs are the less likely they are to be explicitly stated. But respect for them is of the very essence of the Due Process Clause. In enforcing them this Court does not translate personal views into constitutional limitations. In applying such a large, untechnical concept as 'due process,' the Court enforces those permanent and pervasive feelings of our society as to which there is compelling evidence of the kind relevant to judgments on social institutions. 17 That it offends our historic heritage to kill a man who has become insane while awaiting sentence cannot be gainsaid. This limitation on the power of the State to take life has been part of our law for centuries, recognized during periods of English history when feelings were more barbarous and men recoiled less from brutal action than we like to think is true of our time. Due process is itself 'a historical product,' Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 67 L.Ed. 107, and it requires no expansion of its purposes to find in the Fourteenth Amendment a restriction upon State action that carries such impressive credentials of history as does that forbidding the State to kill an insane man though under sentence of death: 18 'It was further provided by the said Act of 33 H. 8. that if a man attainted of treason became mad, that notwithstanding he should be executed; which cruell and inhumane law lived not long, but was repealed, for in that point also it was against the common law, because by intendment of law the execution of the offender is for example, ut poena ad paucos, metus ad omnes perveniat, as before is said: but so it is not when a mad man is executed, but should be a miserable spectacle, both against law, and of extreame inhumanity and cruelty, and can be no example to others.' Coke, Third Institutes 6 (1644). 19 'And it seems agreed at this Day, That if one who has committed a capital Offence, become Non Compos before Conviction, he shall not be arraigned; and if after Conviction, that he shall not be executed.' 1 Hawkins, Pleas of the Crown 2 (1716). 20 '* * * for nothing is more certain in Law, than that a Person who falls mad after a Crime suppos'd to be committed, shall not be try'd for it; and if he fall mad after Judgment, he shall not be executed: tho I do not think the reason given for the Law in that Point will maintain it, which is, that the End of Punishment is the striking a Terror into others, but the execution of a Madman had not that effect; which is not true, for the Terror to the living is equal, whether the Person be mad or in his Senses. * * * But the true reason of the Law I think to be this, a Person of non sana Memoria, and a Lunatick during his Lunacy, is by an Act of God (for so it is call'd, tho the means may be humane, be it violent, as hard Imprisonment, terror of Death, or natural, as Sickness) disabled to make his just Defence, there may be Circumstances lying in his private Knowledg, which would prove his Innocency, of which he can have no advantage, because not known to the Persons who shall take upon them his Defence. * * * 21 'The King is therefore no otherwise benefited by the destruction of his Subjects, than that the Example deters others from committing the like Crimes; and there being so many to be made Examples of, besides those on whom the misfortunes of Madness fall, it is inconsistent with humanity to make Examples of them; it is inconsistent with Religion, as being against Christian Charity to send a great Offender quick, as it is stil'd, into another World, when he is not of a capacity to fit himself for it. But whatever the reason of the Law is, it is plain that the Law is so * * *.' Remarks on the Tryal of Charles Bateman by Sir John Hawles, Solicitor-General in the reign of King William III, 3 State-Tryals 651, 652—53 (1719). 22 'If a man in his sound memory commits a capital offense, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such his phrenzy, but be remitted to prison until that incapacity be removed; the reason is, because he cannot advisedly plead to the indictment. * * * And if such person after his plea, and before his trial, become of non sane memory, he shall not be tried; or, if after his trial he become of non sane memory, he shall not receive judgment; or, if after judgment he become of non sane memory, his execution shall be spared; for were he of sound memory, he might allege somewhat in stay of judgment or execution.' 1 Hale, The History of Pleas of the Crown 34-35 (1736).1 23 'Another cause of regular reprieve is, if the offender become non compos * * * if after judgment, he shall not be ordered for execution: for 'furiosus solo furore punitur,' and the law knows not but he might have offered some reason, if in his senses, to have stayed these respective proceedings.' 4 Bl. Comm. 388-89 (1769). 24 However quaint some of these ancient authorities of our law may sound to our ears, the Twentieth Century has not so far progressed as to outmode their reasoning. We should not be less humane than were Englishmen in the centuries that preceded this Republic.2 And the practical considerations are not less relevant today than they were when urged by Sir John Hawles and Hale and Hawkins and Blackstone in writings which nurtured so many founders of the Republic. If a man has gone insane, is he still himself? Is he still the man who was convicted? In any event 'were he of sound memory, he might allege somewhat' to save himself from doom. It is not an idle fancy that one under sentence of death ought not, by becoming non compos, be denied the means to 'allege somewhat' that might free him. Such an opportunity may save life, as the last minute applications to this Court from time to time and not always without success amply attest.3 25 The short of it is that American law is not more brutal than what is revealed as the unbroken command of English law for centuries preceding the separation of the Colonies. The Court puts out of sight, as it were, what is basic to a disposition of this case, namely, that not a State in the Union supports the notion that an insane man under sentence of death would legally be executed. If respect is to be given to claims so deeply rooted in our common heritage as this limitation upon State power, the Fourteenth Amendment stands on guard to enforce it. 26 Unless this restriction on State power is fully recognized and its implications are duly respected, the crucial questions presented by this case are avoided. We are here not dealing with the Crown's prerogative of mercy continued through the pardoning power in this country as an exercise of grace. See Ex parte Grossman, 267 U.S. 87, 45 S.Ct. 332, 69 L.Ed. 527, 38 A.L.R. 131. Nor are we dealing with the range of discretion vested in judges by penal laws carrying flexible instead of fixed penalties. See Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079. We are dealing with a restriction upon the States against taking life if a certain fact is established, to-wit, insanity, like unto other restrictions upon the State in taking liberty or property. In view of the Due Process Clause it is not for the State to say: 'I choose not to take life if a man under sentence becomes insane.' The Due Process Clause says to a State: 'Thou shalt not.' 27 And so we come to the implications of this constitutional restriction upon a State in order to determine whether it can deny all opportunity to lay before some agency of government facts and circumstances which, if true, must stay the executioner's hand. 28 The manner in which the States have dealt with this problem furnishes a fair reflex, for purposes of the Due Process Clause, of the underlying feelings of our society about the treatment of persons who become insane while under sentence of death. 29 Six States no longer have the death penalty. (See Appendix, Part A.) As to the remaining 42: 30 I. In 30 States, execution of the death penalty is suspended upon a determination of insanity supervening after sentence. 31 (a) Of these, 9 States provide (5 by statute and 4 under common law) that the inquiry shall be entirely judicial. (Part B.) 32 (b) Of these, 14 States provide for the ultimate determination of snaity or insanity by a judge or jury after a hearing, upon initiation of the hearing by a designated prison or police official. 33 (1) Of these, 2 States provide for judicial review of the official's decision not to initiate a hearing. (Part C-I.) 34 (2) Of these, 12 States have no legislation or adjudication defining whether the official's decision is subject to review. (Part C-II.) (c) Of these, 7 States provide for the ultimate determination of sanity by the Governor or by a body of physicians and laymen. 35 (1) Of these, 1 State appears to afford an opportunity to be heard. (Part D-I.) 36 (2) Of these, 3 States appear to provide for an ex parte inquiry. (Part D-II.) 37 (3) Of these, 3 States have no provision indicating the nature of the inquiry. (Part D-III.) 38 II. In 3 States, suspension of execution of the death penalty because of insanity is at the discretion of the Governor. (Part E.) 39 III. As to 9 States, the available legislation and decisions afford no clear basis for classification. Of these, 4 give strong indications that execution of the death penalty is suspended upon insanity supervening after sentence,4 3 offer insufficient material even for inference, and 2 offer no relevant material. (Part F.) 40 We start with the fact that not a single State gives any indication of having uprooted the heritage of the common law which deemed it too barbarous to execute a man while insane. This brings us to the mode of establishing the crucial basis for the lawful killing by a State, namely, that it kill not an insane person. Nine States make the necessary inquiry entirely judicial. Fourteen more States put the responsibility for initiating judicial inquiry, with various alternatives of judge and jury, upon an appropriate official. In ten States the determination of sanity is vested in the Governor either with or without the aid of advisors or in a separate administrative board. But even as to these, in only six States, including Georgia, is it clear that such an inquiry may be entirely behind closed doors without any opportunity for submission of facts on behalf of the person whose sanity is to be determined as a prerequisite to killing him. 41 This impressive body of State legislation signifies more than the historic continuity of our repulsion against killing an insane man even though he be under sentence of death. The vindication of this concern turns on the ascertainment of what is called a fact, but which in the present state of the mental sciences is at best a hazardous guess however conscientious. If the deeply rooted principle in our society against killing an insane man is to be respected, at least the minimum provision for assuring a fair application of that principle is inherent in the principle itself. And the minimum assurance that the life-and-death guess will be a truly informed guess requires respect for the basic ingredient of due process, namely, an opportunity to be allowed to substantiate a claim before it is rejected. 42 This is a requirement that this Court has enforced again and again when mere interests of property were involved. See e.g., Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Priest v. Board of Trustees of Las Vegas, 232 U.S. 604, 34 S.Ct. 443, 58 L.Ed. 751. It cannot be that the Court is more concerned about property losses that are not irremediable than about irretrievable human claims. If, as was held only the other day, due process saves a man from being sent to jail for sixty days on a charge of contempt because he was tried in secret, In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, due process ought also to vindicate the self-respect of society by not sending a man to his death on the basis of a proceeding as to his sanity in which all opportunity on his behalf has been denied to show that he is in fact in that condition of insanity which bars the State from killing him. He should not be denied the opportunity to inform the mind of the tribunal—be it a Governor, a board or a judge—that has to decide between life and death, not as a matter of grace but on the basis of law. For if he be insane his life cannot be forfeit except in violation of the law of the land. 43 If a man 'is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged' before being convicted, In re Oliver, supra, 333 U.S. at page 272, 68 S.Ct. at page 507, 92 L.Ed. 682, he should no less be allowed to have someone speak for him when the issue is not merely a prerogative of mercy or the exercise of discretion which modern penological thought, translated into legislation, vests in judges in imposing sentence. The killing of an insane man under sentence, it needs to be repeated, is in our law not a matter of discretion. Not to kill such an insane man 'has its roots in our English common law heritage' no less deep than not to convict him without a hearing. See In re Oliver, supra, 333 U.S. at page 266, 68 S.Ct. at page 504, 92 L.Ed. 682. The rule against killing an insane person embedded so deeply in our law as to be protected by substantive aspects of due process requires as part of procedural due process that the victim be given an opportunity through counsel or the next of kin to invoke the substantive principle of due process. 44 Since it does not go to the question of guilt but to its consequences, the determination of the issue of insanity after sentence does not require the safeguards of a judicial proceeding. See Ng Fung Ho v. White, 259 U.S. 276, 284-285, 42 S.Ct. 492, 495, 66 L.Ed. 938. Nor need the proceeding be open; it may be in camera. But precisely because the inquiry need not be open and may be made in camera, it must be fair in relation to the issue for determination. In the present state of the tentative and dubious knowledge as to mental diseases and the great strife of schools in regard to them, it surely operates unfairly to make such determinations not only behind closed doors but without any opportunity for the submission of relevant considerations on the part of the man whose life hangs in the balance. 45 To say that an inquiry so conducted is unfair because of the treacherous uncertainties in the present state of psychiatric knowledge is not to impugn the good faith of Governors or boards in excluding what is sought to be put before them on behalf of a putative insane person. The fact that a conclusion is reached in good conscience is no proof of its reliability. The validity of a conclusion depends largely on the mode by which it was reached. A Governor might not want to have it on his conscience to have sent a man to death after hearing conflicting views, equally persuasive, regarding the man's sanity. Claims obviously frivolous need of course not be heard, even as this Court does not listen to claims that raise no substantial question. It is not suggested that petitioner's claim of insanity was baseless. 46 It is a groundless fear to assume that it would obstruct the rigorous administration of criminal justice to allow the case to be put for a claim of insanity, however informal and expeditious the procedure for dealing with the claim. The time needed for such a fair procedure could not unreasonably delay the execution of the sentence unless in all fairness and with due respect for a basic principle in our law the execution shoud be delayed. The risk of an undue delay is hardly comparable to the grim risk of the barbarous execution of an insane man because of a hurried, one-sided, untested determination of the question of insanity, the answers to which are as yet so wrapped in confusion and conflict and so dependent on elucidation by more than one-sided partisanship. 47 To deny all opportunity to make the claim that was here made on behalf of the petitioner is in my view a denial of due process of law. APPENDIX TO OPINION OF FRANKFURTER, J. 48 State legislation and judicial decisions concerning execution of death penalty where insanity supervenes after sentence.1 49 A. States in which problem does not arise because they have no death penalty:2 50 (1) Me.Rev.Stat. c. 117, § 1 (1944). 51 (2) Mich.Comp.Laws, § 750.316 (1948). 52 (3) Minn.Stat. § 619.07 (Henderson 1945), M.S.A. § 619.07. 53 (4) N.D.Rev.Code, § 12-2713 (1943).3 54 (5) R.I.Gen.Laws, c. 606, § 2 (1938).3 55 (6) Wis.Stat. § 340.02 (1947). 56 B. States suspending execution of death penalty under statutory or common law provisions for hearing before judge or judge and jury upon initiation by judge:4 I. Statutory Procedure: 57 (7) Ala.Code Ann. tit. 15, § 427 (1940). 58 (8) Colo.Stat.Ann. c. 48, §§ 6, 7 (1935). See Bulger v. People, 61 Colo. 187, 156 P. 800. 59 (9) Ill.Rev.Stat. c. 38, §§ 593—594 (1949). See People v. Geary, 298 Ill. 236, 131 N.E. 652; People v. Preston, 345 Ill. 11, 177 N.E. 761. 60 (10) La.Code Crim.Law & Proc.Ann.Art. 267 (1943). See State v. Allen, 204 La. 513, 15 So.2d 870; 18 Tul.L.Rev. 497; State v. Gunter, 208 La. 694, 23 So.2d 305; State v. Hebert, 187 La. 318, 174 So. 369; La.Laws 1918, No. 261, p. 483. 61 (11) N.J.Stat.Ann. § 2:193—12 (1939) in connection with In re Lang, 77 N.J.L. 207, 71 A. 47; In re Herron, 77 N.J.L. 315, 72 A. 133; Id., 79 N.J.L. 67, 73 A. 599. II. Common law procedure: 62 (12) North Carolina. See State v. Vann, 84 N.C. 722, 724; State v. Godwin, 216 N.C. 49, 3 S.E.2d 347; State v. Sullivan, 229 N.C. 251, 49 S.E.2d 458. See also N.C.Gen.Stat.Ann. §§ 122-84, 122-85 (Supp.1949). 63 (13) South Carolina. See State v. Bethune, 88 S.C. 401, 71 S.E. 29. See also S.C.Code Ann. § 6239 (1942). 64 (14) Tennessee. See Jordan v. State, 124 Tenn. 81, 90—91, 135 S.W. 327, 329—330, 34 L.R.A.,N.S., 1115; Bonds v. State, 8 Tenn. 143, 17 Am.Dec. 795. See also Tenn.Code Ann. §§ 4476, 4502 (Williams 1934). 65 (15) Washington. See State v. Nordstrom, 21 Wash. 403, 58 P. 248, 53 L.R.A. 584; Grossi v. Long, 136 Wash. 133, 238 P. 983; State ex rel. Alfani v. Superior Court, 139 Wash. 125, 245 P. 929, 49 A.L.R. 801; State v. Davis, 6 Wash.2d 696, 717, 108 P.2d 641, 652—651. 66 C. States suspending execution of death penalty under statutory provisions for hearing before judge or jury upon initiation by designated prison or police official:5 67 I. Official's refusal to initiate subject to judicial review: 68 (16) Ark.Stat.Ann. §§ 41-109, 43-2622 (1947). See Howell v. Kincannon, 181 Ark. 58, 24 S.W.2d 953; Howell v. Todhunter, 181 Ark. 250, 25 S.W.2d 21; Shank v. Todhunter, 189 Ark. 881, 75 S.W.2d 382. 69 (17) Cal.Pen.Code, §§ 1367, 3701—3703 (1949). See Phyle v. Duffy, 34 Cal.2d 144, 208 P.2d 668. 70 II. Whether official's refusal to initiate inquiry is subject to review undefined by legislation or adjudication: 71 (18) Idaho Code Ann. §§ 19-2709 to 19-2712, 19-3301 (1948). 72 (19) Ky.Rev.Stat. § 431.240 (1948). See Ky.Codes, Crim.Prac. §§ 295—296 (1948); Barrett v. Commonwealth, 202 Ky. 153, 259 S.W. 25; Stucker v. Commonwealth, 261 Ky. 618, 88 S.W.2d 280; Murrell v. Commonwealth, 291 Ky. 65, 163 S.W.2d 1. 73 (20) Mo.Rev.Stat.Ann. §§ 4192—4194 (1939). 74 (21) Mont.Rev.Codes Ann. §§ 94-8009 to 94-8012 (1947). 75 (22) Nev.Comp.Laws Ann. §§ 11192.01 to 11192.06 (Supp.1945). 76 (23) N.M.Stat.Ann. §§ 42-1404 to 42-1407 (1941). 77 (24) Ohio Gen.Code Ann. §§ 13456-8, 13456-9 (1939). 78 (25) Okl.Stat.Ann. tit. 22, §§ 1005—1008 (1937). See Bingham v. State, 82 Okl.Crim. 305, 169 P.2d 311. 79 (26) Pa.Stat.Ann. tit. 50, § 48 (Supp.1948). See Commonwealth v. Barnes, 280 Pa. 351, 124 A. 636 (whether statute applies after conviction and sentence or whether common law principles govern is not clear). But cf. Ex parte McGinnis, Pa.Sup., 14 Wkly. Notes Cas. 221. 80 (27) Tex.Stat., Code Crim.Proc. arts. 921—927 (1948), Vernon's Ann.C.C.P. arts. 921—927. See Dotson v. State, 149 Tex.Crim.R. 434, 195 S.W.2d 372. A hearing may also be initiated on the affidavits of two private physicians. Cf. Ex parte Millikin, 108 Tex.Crim. 121, 299 S.W. 433; Millikin v. Jeffrey, 117 Tex. 134, 299 S.W. 393 (similar earlier statute). 81 (28) Utah Code Ann. §§ 105—37—9 to 105—37—12 (1943). See State ex rel. Johnson v. Alexander, 87 Utah 376, 49 P.2d 408; State v. Green, 88 Utah 491, 55 P.2d 1324. 82 (29) Wyo.Comp.Stat.Ann. §§ 10-1701, 10-1702 (1945). 83 III. Official's refusal to initiate given explicit finality without review: 84 None. 85 D. States suspending execution of death penalty under statutory provisions for inquiry by Governor or by a body of physicians and laymen on initiation by designated prison or police official: 86 I. Proceeding appears to afford opportunity to be heard: 87 (30) Iowa Code, §§ 792.5 to 792.7 (1946), I.C.A. II. Proceeding appears to be ex parte: 88 (31) Conn.Gen.Stat. § 8817 (1949). 89 (32) Kan.Gen.Stat.Ann. § 62-2406 (1935). 90 (33) Neb.Rev.Stat. § 29-2509 (1943). See In re Grammer, 104 Neb. 744, 178 N.W. 624. 91 III. Whether proceeding is ex parte or affords opportunity to be heard is uncertain: 92 (34) Ariz.Code Ann. §§ 44-2307, 44-2309 (1939). 93 (35) Fla.Stat. § 922.07 (1941), F.S.A. 94 (36) Miss.Code Ann. § 2558 (1942). 95 E. States in which suspension of execution of death penalty because of insanity is at discretion of Governor: 96 (37) Ga.Code Ann. §§ 27-2601, 27-2602 (1936), Solesbee v. Balkcom, 205 Ga. 122, 52 S.E.2d 433. 97 (38) Indiana. Diamond v. State, 195 Ind. 285, 144 N.E. 466 (only remedy is reprieve by Governor). 98 (39) Mass.Gen.Laws, c. 279, § 48 (1932), Juggins v. Executive Council, 257 Mass. 386, 154 N.E. 72 (only remedy seems to be reprieve by Governor with advice and consent of Executive Council). 99 F. States as to which legislation or judicial decisions afford no clear basis for classification: 100 (40) Delaware. Compare Del.Rev.Code § 3083 (1935) (insanity after conviction but before sentence in capital cases); id. § 3084 (insanity while serving imprisonment sentence). 101 (41) Maryland. Compare Md.Ann.Code Gen.Laws art. 27, § 798; art. 59, § 47 (1939) (insanity while serving imprisonment sentence). 102 (42) New Hampshire. 103 (43) N.Y.Crim.Code, § 495-a. Compare 2 Rep.Atty.Gen.N.Y. 294, 297 (1914), with People v. Skwirsky, 213 N.Y. 151, 153—154, 107 N.E. 47—48. 104 (44) Oregon. Compare Or.Comp.Laws Ann. §§ 26-930, 26-931 (1940) (insanity at trial). 105 (45) South Dakota. Compare S.D.Code § 34.2001 (1939) (a person cannot 'be tried, adjudged to punishment, or punished for a public offense while he is insane'); id. §§ 34.2002 to 34.2004 (insanity after conviction but before sentence). 106 (46) Vermont. 107 (47) Virginia. Compare Va.Code Ann. §§ 19-208, 37-93 (1950) (insanity after conviction but before sentence); id. § 19-209 (insanity while serving imprisonment sentence). 108 (48) West Virginia. Compare W.Va.Code Ann. § 6198 (1949) (insanity after conviction or while serving sentence). 1 'Disposition of insane convicts. * * * Upon satisfactory evidence being offered to the Governor that the person convicted of a capital offense has become insane subsequent to his conviction, the Governor may, within his discretion, have said person examined by such expert physicians as the Governor may choose; and said physicians shall report to the Governor the result of their investigation; and the Governor may, if he shall determine that the person convicted has become insane, have the power of committing him to the Milledgeville State Hospital until his sanity shall have been restored, as determined by laws now in force. * * *' Ga.Code Ann. § 27-2602, section 1074, P.C., Acts 1903, p. 77. 2 'No person who has been convicted of a capital offense shall be entitled to any inquisition or trial to determine his sanity.' Ga.Code Ann. § 27-2601, section 1073, P.C., Acts 1903, p. 77. 3 Nobles v. Georgia, 168 U.S. 398, 409, 18 S.Ct. 87, 88, 91, 42 L.Ed. 515. 4 See cases collected in Notes, Ann.Cas.1916E 424 et seq.; 49 A.L.R. 801 et seq.; 38 L.R.A. 577 et seq. 1 The first publication of Hale's Pleas of the Crown was of course based upon the manuscript left by him at his death in 1676. See 6 Holdsworth, A History of English Law 574, 589—90 (1924). 2 See Report of the Committee on Insanity and Crime, Cmd. No. 2005, pp. 17, 19 (1923). 3 Insane persons do not have the capacity to plead or be tried. See Youtsey v. United States, 6 Cir., 97 F. 937; Forthoffer v. Swope, 9 Cir., 103 F.2d 707. After sentence of death, the test of insanity is whether the prisoner has not 'from the defects of his faculties, sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate which awaits him, a sufficient understanding to know any fact which might exist which would make his punishment unjust or unlawful, and the intelligence requisite to convey such information to his attorneys or the court.' In re Smith, 25 N.M. 48, 59, 176 P. 819, 823, 3 A.L.R. 83. See also People v. Geary, 298 Ill. 236, 131 N.E. 652; In re Grammer, 104 Neb. 744, 178 N.W. 624. 4 In these 4 States, 3 have statutory provisions dealing with insanity after conviction but before sentence, and 1 has a provision dealing with insanity after conviction. Compare State v. Allen, 204 La. 513, 15 So.2d 870. 1 It is appropriate to give warning that the meaning attributed to some of the statutes cited in this Appendix does not have the benefit of guiding State adjudication and that, even when such adjudication is available to throw light on statutory meaning or on the State's common law, classification has been based on judicial pronouncements which are not always explicit holdings. The ascertainment of the law of a State when there is not a clear ruling by the highest court of that State is treacherous business. It should also be added that while this Appendix is based on the latest legal materials in the Library of this Court that is no guarantee that there may not be still later relevant local materials. 2 The statutes cited give the penalty for first degree murder. See also Gru nhut, Penal Reform 7 (1948). 3 The penalty for first degree murder is life imprisonment unless a person is under sentence of life imprisonment at the time of conviction. 4 In all States providing for suspension of death penalty upon supervening insanity, the procedural problem raises two questions: (1) who shall decide whether there has ben a sufficient prima facie showing of insanity to warrant initiation of a further proceeding; (2) who shall be the fact finder in such proceeding. I. Statutory procedure: 5 See note 4 supra. Most of the States in Parts C and D require the official responsible for initiating the further inquiry to act if there is 'good reason,' or a like ground, for believing that the convicted man is insane. In some of thse States the relevant statute provides that the official 'may' act where 'good reason' exists, thereby raising the familiar problem as to when 'may,' considering its function, means 'must' in legislative English. Compare Howell v. Todhunter, 181 Ark. 250, 25 S.W.2d 21.

34

339 U.S. 33 70 S.Ct. 445 94 L.Ed. 616 WONG YANG SUNGv.McGRATH, Attorney General of the United States, et al. No. 154. Argued Dec. 6, 1949. Decided Feb. 20, 1950. Judgment Modified March 13, 1950. See 339 U.S. 908, 70 S.Ct. 564. Mr. Irving Jaffe, Washington, D.C., for petitioner. Mr. Robert W. Ginnane, Washington, D.C., for respondents. [Argument of Counsel from page 34 intentionally omitted] Mr. Justice JACKSON delivered the opinion of the Court. 1 This habeas corpus proceeding involves a single ultimate question—whether administrative hearings in deportation cases must conform to requirements of the Administrative Procedure Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq. 2 Wong Yang Sung, native and citizen of China, was arrested by immigration officials on a charge of being unlawfully in the United States through having overstayed shore leave as one of a shipping crew. A hearing was held before an immigrant inspector who recommended deportation. The Acting Commissioner approved; and the Board of Immigration Appeals affirmed. 3 Wong Yang Sung then sought release from custody by habeas corpus proceedings in District Court for the District of Columbia, upon the sole ground that the administrative hearing was not conducted in conformity with §§ 5 and 11 of the Administrative Procedure Act.1 The Government admitted noncompliance, but asserted that the Act did not apply. The court, after hearing, discharged the writ and remanded the prisoner to custody, holding the Administrative Procedure Act inapplicable to deportation hearings. 80 F.Supp. 235. The Court of Appeals affirmed. 84 U.S.App.D.C. 419, 174 F.2d 158. Prisoner's petition for certiorari was not opposed by the Government and, because the question presented has obvious importance in the administration of the immigration laws, we granted review. 338 U.S. 812, 70 S.Ct. 66. I. 4 The Administrative Procedure Act of June 11, 1946, supra, is a new, basic and comprehensive regulation of procedures in many agencies, more than a few of which can advance arguments that its generalities should not or do not include them. Determination of questions of its coverage may well be approached through consideration of its purposes as disclosed by its background. 5 Multiplication of federal administrative agencies and expansion of their functions to include adjudications which have serious impact on private rights has been one of the dramatic legal developments of the past half-century.2 Partly from restriction by statute, partly from judicial self-restraint, and partly by necessity—from the nature of their multitudinous and semilegislative or executive tasks—the decisions of administrative tribunals were accorded considerable finality, and especially with respect to fact finding.3 The conviction developed, particularly within the legal profession, that this power was not sufficiently safeguarded and sometimes was put to arbitrary and biased use.4 6 Concern over administrative impartiality and response to growing discontent was reflected in Congress as early as 1929, when Senator Norris introduced a bill to create a separate administrative court.5 Fears and dissatisfactions increased as tribunals grew in number and jurisdiction, and a succession of bills offering various remedies appeared in Congress.6 Inquiries into the practices of state agencies, which tended to parallel or follow the federal pattern, were instituted in several states, and some studies noteworthy for thoroughness, impartiality and vision resulted.7 7 The Executive Branch of the Federal Government also became concerned as to whether the structure and procedure of these bodies was conducive to fairness in the administrative process. President Roosevelt's Committee on Administrative Management in 1937 recommended complete separation of adjudicating functions and personnel from those having to do with investigation or prosecution.8 The President early in 1939 also directed the Attorney General to name 'a committee of eminent lawyers, jurists, scholars, and administrators to review the entire administrative process in the various departments of the executive Government and to recommend improvements, including the suggestion of any needed legislation.'9 8 So strong was the demand for reform, however, that Congress did not await the Committee's report but passed what was known as the Walter-Logan bill, a comprehensive and rigid prescription of standardized procedures for administrative agencies.10 This bill was vetoed by President Roosevelt December 18, 1940,11 and the veto was sustained by the House.12 But the President's veto message made no denial of the need for reform. Rather it pointed out that the task of the Committee, whose objective was 'to suggest improvements to make the process more workable and more just,' had proved 'unexpectedly complex.' The President said, 'I should desire to await their report and recommendations before approving any measure in this complicated field.'13 9 The committee devided in its views and both the majority and the minority submitted bills14 which were introduced in 1941. A subcommittee of the Senate Judiciary Committee held exhaustive hearings on three proposed measures,15 but, before the gathering storm of national emergency and war, consideration of the problem was put aside. Though bills on the subject reappeared in 1944,16 they did not attract much attention. 10 The McCarran-Sumners bill, which evolved into the present Act, was introduced in 1945.17 Its consideration and hearing, especially of agency interests, was painstaking. All administrative agencies were invited to submit their views in writing. A tentative revised bill was then prepared and interested parties again were invited to submit criticisms.18 The Attorney General named representatives of the Department of Justice to canvass the agencies and report their criticisms, and submitted a favorable report on the bill as finally revised.19 It passed both Houses without opposition and was signed by President Truman June 11, 1946.20 11 The Act thus represents a long period of study and strife; it settles long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest. It contains many compromises and generalities and, no doubt, some ambiguities. Experience may reveal defects. But it would be a disservice to our form of government and to the administrative process itself if the courts should fail, so far as the terms of the Act warrant, to give effect to its remedial purposes where the evils it was aimed at appear. II. 12 Of the several administrative evils sought to be cured or minimized, only two are particularly relevant to issues before us today. One purpose was to introduce greater uniformity of procedure and standardization of administrative practice among the diverse agencies whose customs had departed widely from each other.21 We pursue this no further than to note that any exception we may find to its applicability would tend to defeat this purpose. 13 More fundamental, however, was the purpose to curtail and change the practice of embodying in one person or agency the duties of prosecutor and judge. The President's Committee on Administrative Management voiced in 1937 the theme which, with variations in language, was reiterated throughout the legislative history of the Act. The Committee's report, which President Roosevelt transmitted to Congress with his approval as 'a great document of permanent importance,'22 said: 14 '* * * the independent commission is obliged to carry on judicial functions under conditions which threaten the impartial performance of that judicial work. The discretionary work of the administrator is merged with that of the judge. Pressures and influences properly enough directed toward officers responsible for formulating and administering policy constitute an unwholesome atmosphere in which to adjudicate private rights. But the mixed duties of the commissions render escape from these subversive influences impossible. 15 'Furthermore, the same men are obliged to serve both as prosecutors and as judges. This not only undermines judicial fairness; it weakens public confidence in that fairness. Commission decisions affecting private rights and conduct lie under the suspicion of being rationalizations of the preliminary findings which the commission, in the role of prosecutor, presented to itself.' Administrative Management in the Government of the United States, Report of the President's Committee on Administrative Management, 36—37 (1937). 16 The Committee therefore recommended a redistribution of functions within the regulatory agencies. '(I)t would be divided into an administrative section and a judicial section' and the administrative section 'would formulate rules, initiate action, investigate complaints * * *' and the judicial section 'would sit as an impartial, independent body to make decisions affecting the public interest and private rights upon the basis of the records and findings presented to it by the administrative section.' Id. at 37. 17 Another study was made by a distinguished committee named by the Secretary of Labor, whose jurisdiction at the time included the Immigration and Naturalization Service. Some of the committee's observations have relevancy to the procedure under examination here. It said: 'The inspector who presides over the formal hearing is in many respects comparable to a trial judge. He has, at a minimum, the function of determining—subject to objection on the alien's behalf what goes into the written record upon which decision ultimately is to be based. Under the existing practice he has also the function of counsel representing the moving party—he does not merely admit evidence against the alien; he has the responsibility of seeing that such evidence is put into the record. The precise scope of his appropriate functions is the first question to be considered.' The Secretary of Labor's Committee on Administrative Procedure, The Immigration and Naturalization Service, 77 (Mimeo. 1940). Further: 18 'Merely to provide that in particular cases different inspectors shall investigate and hear is an insufficient guarantee of insulation and independence of the presiding official. The present organization of the field staff not only gives work of both kinds commonly to the same inspector but tends toward an identity of viewpoint as between inspectors who are chiefly doing only one or the other kind of work. * * * 19 '* * * We recommend that the presiding inspectors be relieved of their present duties of presenting the case against aliens and be confirmed (sic) entirely to the duties customary for a judge. This, of course, would require the assignment of another officer to perform the task of a prosecuting attorney. The appropriate officer for this purpose would seem to be the investigating inspector who, having prepared the case against the alien, is already thoroughly familiar with it. * * * 'A genuinely impartial hearing, conducted with critical detachment, is psychologically improbable if not impossible, when the presiding officer has at once the responsibility of appraising the strength of the case and of seeking to make it as strong as possible. Nor is complete divorce between investigation and hearing possible so long as the presiding inspector has the duty himself of assembling and presenting the results of the investigation. * * *' Id. at 81—82. 20 And the Attorney General's Committee on Administrative Procedure, which divided as to the appropriate remedy,23 was unanimous that this evil existed. Its Final Report said: 'These types of commingling of functions of investigation or advocacy with the function of deciding are thus plainly undesirable. But they are also avoidable and should be avoided by appropriate internal division of labor. For the disqualifications produced by investigation or advocacy are personal psychological ones which result from engaging in those types of activity; and the problem is simply one of isolating those who engage in the activity. Creation of independent hearing commissioners insulated from all phases of a case other than hearing and deciding will, the Committee believes, go far toward solving this problem at the level of the initial hearing provided the proper safeguards are established to assure the insulation. * * *' Rep. Atty. Gen. Comm. Ad. Proc. 56 (1941), S. Doc. No. 8, 77th Cong., 1st Sess. 56 (1941). 21 The Act before us adopts in general this recommended form of remedial action. A minority of the Committee had, furthermore, urged an even more thoroughgoing separation and supported it with a cogent report. Id., at 203 et seq. 22 Such were the evils found by disinterested and competent students. Such were the facts before Congress which gave impetus to the demand for the reform which this Act was intended to accomplish. It is the plain duty of the courts, regardless of their views of the wisdom or policy of the Act, to construe this remedial legislation to eliminate, so far as its text permits, the practices it condems. III. 23 Turning now to the case before us, we find the administrative hearing a perfect exemplification of the practices so unanimously condemned. 24 This hearing, which followed the uniform practice of the Immigration Service,24 was before an immigrant inspector, who, for purposes of the hearing, is called the 'presiding inspector.' Except with consent of the alien, the presiding inspector may not be the one who investigated the case. 8 C.F.R. 150.6(b).25 But the inspector's duties include investigation of like cases; and while he is today hearing cases investigated by a colleague, tomorrow his investigation of a case may be heard before the inspector whose case he passes on today. An 'examining inspector' may be designated to conduct the prosecution, 8 C.F.R. 150.6(n), but none was in this case; and, in any event, the examining inspector also has the same mixed prosecutive and hearing functions. The presiding inspector, when no examining inspector is present, is required to 'conduct the interrogation of the alien and the witnesses in behalf of the Government and shall cross-examine the alien's witnesses and present such evidence as is necessary to support the charges in the warrant of arrest.' 8 C.F.R. 150.6(b). It may even become his duty to lodge an additional charge against the alien and proceed to hear his own accusation in like mammer. 8 C.F.R. 150.6(1). Then, as soon as practicable, he is to prepare a summary of the evidence, proposed findings of fact, conclusions of law, and a proposed order. A copy is furnished the alien or his counsel, who may file exceptions and brief, 8 C.F.R. 150.7, whereupon the whole is forwarded to the Commissioner. 8 C.F.R. 150.9. 25 The Administrative Procedure Act did not go so far as to require a complete separation of investigating and prosecuting functions from adjudicating functions. But that the safeguards it did set up were intended to ameliorate the evils from the commingling of functions as exemplified here is beyond doubt. And this commingling, if objectionable anywhere, would seem to be particularly so in the deportation proceedings, where we frequently meet with a voteless class of litigants who not only lack the influence of citizens, but who are strangers to the laws and customs in which they find themselves involved and who often do not even understand the tongue in which they are accused. Nothing in the nature of the parties or proceedings suggests that we should strain to exempt deportation proceedings from reforms in administrative procedure applicable generally to federal agencies. 26 Nor can we accord any weight to the argument that to apply the Act to such hearings will cause inconvenience and added expense to the Immigration Service. Of course it will, as it will to nearly every agency to which it is applied. But the power of the purse belongs to Congress, and Congress has determined that the price for greater fairness is not too high. The agencies, unlike the aliens, have ready and persuasive access to the legislative ear and if error is made by including them, relief from Congress is a simple matter. 27 This brings us to contentions both parties have advanced based on the pendency in Congress of bills to exempt this agency from the Act. Following an adverse decision,26 the Department asked Congress for exempting legislation,27 which appropriate committees of both Houses reported favorably but in different form and substance.28 Congress adjourned without further action. The Government argues that Congress knows that the Immigration Service has construed the Act as not applying to deportation proceedings, and that it 'has taken no action indicating disagreement with that interpretation'; that therefore it 'is at least arguable that Congress was prepared to specifically confirm the administrative construction by clarifying legislation.' We do not think we can draw that inference from incompleted steps in the legislative process. Cf. Helvering v. Hallock, 309 U.S. 106, 119—120, 60 S.Ct. 444, 451, 84 L.Ed. 604, 125 A.L.R. 1368. 28 On the other hand, we will not draw the inference, urged by petitioner, that an agency admits that it is acting upon a wrong construction by seeking ratification from Congress. Public policy requires that agencies feel free to ask legislation which will terminate or avoid adverse contentions and litigations. We do not feel justified in holding that a request for and failure to get in a single session of Congress clarifying legislation on a genuinely debatable point of agency procedure admits weakness in the agency's contentions. We draw, therefore, no inference in favor of either construction of the Act—from the Department's request for legislative clarification, from the congressional committees' willingness to consider it, or from Congress' failure to enact it. 29 We come, then, to examination of the text of the Act to determine whether the Government is right in its contentions: first, that the general scope of § 5 of the Act does not cover deportation proceedings; and, second, that even if it does, the proceedings are excluded from the requirements of the Act by virtue of § 7. IV. 30 The Administrative Procedure Act, § 5, establishes a number of formal requirements to be applicable 'In every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.' The argument here depends upon the words 'adjudication required by statute.' The Government contends that there is no express requirement for any hearing or adjudication in the statute authorizing deportation,29 and that this omission shields these proceedings from the impact of § 5. Petitioner, on the other hand, contends that deportation hearings, though not expressly required by statute, are required under the decisions of this Court,30 and the proceedings, therefore, are within the scope of § 5. 31 Both parties invoke many citations to legislative history as to the meaning given to these key words by the framers, advocates or opponents of the Administrative Procedure Act. Because § 5 in the original bill applied to hearings required 'by law,'31 because it was suggested by the Attorney General that it should be changed to 'required by statute or Constitution,'32 and because it finally emerged 'required by statute,' the Government argues that the section is intended to apply only when explicit statutory words granting a right to adjudication can be pointed out. Petitioner on the other hand cites references which would indicate that the limitation to statutory hearing was merely to avoid creating by inference a new right to hearings where no right existed otherwise. We do not know. The legislative history is more conflicting than the text is ambiguous. 32 But the difficulty with any argument premised on the proposition that the deportation statute does not require a hearing is that, without such hearing, there would be no constitutional authority for deportation. The constitutional requirement of procedural due process of law derives from the same source as Congress' power to legislate and, where applicable, permeates every valid enactment of that body. It was under compulsion of the Constitution that this Court long ago held that an antecedent deportation statute must provide a hearing at least for aliens who had not entered clandestinely and who had been here some time even if illegally. The Court said: 'This is the reasonable construction of the acts of Congress here in question, and they need not be otherwise interpreted. In the case of all acts of Congress, such interpretation ought to be adopted as, without doing violence to the import of the words used, will bring them into harmony with the Constitution.' The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86, 101, 23 S.Ct. 611, 615, 47 L.Ed. 721. 33 We think that the limitation to hearings 'required by statute' in § 5 of the Administrative Procedure Act exempts from that section's application only those hearings which administrative agencies may hold by regulation, rule, custom, or special dispensation; not those held by compulsion. We do not think the limiting words render the Administrative Procedure Act inapplicable to hearings, the requirement for which has been read into a statute by the Court in order to save the statute from invalidity. The exempt hearings of less than statutory authority, not those of more than statutory authority. We would hardly attribute to Congress a purpose to be less scrupulous about the fairness of a hearing necessitated by the Constitution than one granted by it as a matter of expediency. 34 Indeed, to so construe the Immigration Act might again bring it into constitutional jeopardy. When the Constitution requires a hearing, it requires a fair one, one before a tribunal which meets at least currently prevailing standards of impartiality. A deportation hearing involves issues basic to human liberty and happiness and, in the present upheavals in lands to which aliens may be returned, perhaps to life itself. It might be difficult to justify as measuring up to constitutional standards of impartiality a hearing tribunal for deportation proceedings the like of which has been condemned by Congress as unfair even where less vital matters of property rights are at stake. 35 We hold that the Administrative Procedure Act, § 5, does cover deportation proceedings conducted by the Immigration Service. V. 36 The remaining question is whether the exception of § 7(a) of the Administrative Procedure Act exempts deportation hearings held before immigrant inspectors. It provides: 37 'Sec. 7. In hearings which section 4 or 5 requires to be conducted pursuant to this section— 38 '(a) Presiding Officers.—There shall preside at the taking of evidence (1) the agency, (2) one or more members of the body which comprises the agency, or (3) one or more examiners appointed as provided in this Act; but nothing in this Act shall be deemed to supersede the conduct of specified classes of proceedings in whole or part by or before boards or other officers specially provided for by or designated pursuant to statute. * * *' 60 Stat. 237, 241, 5 U.S.C. § 1006, 5 U.S.C.A. § 1006. 39 The Government argues that immigrant inspectors are 'specially provided for by or designated pursuant to' § 16 of the Immigration Act, which, in pertinent part, reads: '* * * The inspection * * * of aliens, including those seeking admission or readmission to or the privilege of passing through or residing in the United States, and the examination of aliens arrested within the United States under this Act,33 shall be conducted by immigrant inspectors, except as hereinafter provided in regard to boards of special inquiry. * * * Said inspectors shall have power to administer oaths and to take and consider evidence touching the right of any alien to enter, reenter, pass through, or reside in the United States, and, where such action may be necessary, to make a written record of such evidence; * * *' 39 Stat. 874, 885, as amended, 8 U.S.C. § 152, 8 U.S.C.A. § 152. 40 Certainly nothing here specifically provides that immigrant inspectors shall conduct deportation hearings or be designated to do so. This language does direct them to conduct border inspections of aliens seeking admission. They may administer oaths and take, record, and consider evidence. But these functions are indispensable to investigations which are concededly within their competence. And these functions are likewise necessary to enable the preparation of complaints for prosecutive purposes. But that Congress by grant of these powers has specially constituted them or provided for their designation as hearing officers in deportation proceedings does not appear. 41 Section 7(a) qualifies as presiding officers at hearings the agency and one or more of the members of the body comprising the agency, and it also leaves untouched any others whose responsibilities and duties as hearing officers are established by other statutory provision. But if hearings are to be had before employees whose responsibility and authority derives from a lesser source, they must be examiners whose independence and tenure are so guarded by the Act as to give the assurances of neutrality which Congress thought would guarantee the impartiality of the administrative process. 42 We find no basis in the purposes, history or text of this Act for judicially declaring an exemption in favor of deportation proceedings from the procedural safeguards enacted for general application to administrative agencies. We hold that deportation proceedings must conform to the requirements of the Administrative Procedure Act if resulting orders are to have validity. Since the proceeding in the case before us did not comply with these requirements, we sustain the writ of habeas corpus and direct release of the prisoner. 43 Reversed. 44 Mr. Justice DOUGLAS and Mr. Justice CLARK took no part in the consideration or decision of this case. 45 Mr. Justice REED, dissenting. 46 The Court, it seems to me, has disregarded a congressional exemption of certain agencies, including the Immigration and Naturalization Service, from some of the requirements of the Administrative Procedure Act. Such judicial intrusion into the legislative domain justifies a protest. It may be useful to call attention to the necessity of recognizing specific exceptions to general rules. This protest is rested on the ground that immigrant inspectors performing duties under § 16 of the Immigration Act are within the exception provided by § 7(a) of the Administrative Procedure Act. The Court's opinion discusses this point under subdivision V. The sections are there set out and can be examined by the reader. 47 In this case no one questions the constitutionality of the hearing Wong received before the immigrant inspector, with administrative review by the Commissioner and the Board of Immigration Appeals. The question on which I disagree with the Court is whether the Administrative Procedure Act permits an inspector of the Immigration and Naturalization Service to serve as a presiding officer at a deportation hearing. 48 Section 7(a) of the Administrative Procedure Act provides that the official presiding at the taking of evidence shall be an agency, an agency member or an examiner appointed under that Act. There is an exception to this requirement. It reads as follows: 'but nothing in this Act shall be deemed to supersede the conduct of specified classes of proceedings in whole or part by or before boards or other officers specially provided for by or designated pursuant to statute.' It is this exception that made it proper for an immigrant inspector to preside at this deportation hearing. 49 Under § 16 of the Immigration Act, 39 Stat. 874, 885, the 'inspection * * * of aliens, including those seeking admission or readmission to or the privilege of passing through or residing in the United States, and the examination of aliens arrested within the United States under this Act, shall be conducted by immigrant inspectors * * *. Said inspectors shall have power to administer oaths and to take and consider evidence touching the right of any alien to enter, reenter, pass through, or reside in the United States, and, where such action may be necessary, to make a written record of such evidence; * * *.' It seems to me obvious that the exception provided in § 7(a) covers immigrant inspectors dealing with the arrest of an alien for violation of the Immigration Act. The examination of arrested aliens at a deportation proceeding is surely a specified class of proceedings under § 7(a) of the Administrative Procedure Act, and it is surely conducted by an officer 'specially provided for by * * * statute.' 50 The reason for the exception in § 7(a) was not spelled out in the legislative history or in the Act itself. The exception may have been made to retain smoothness of operation in the several agencies where there were officials specially provided for by statute or designated pursuant to a statute. When making exceptions from the requirements as to separation of the investigatory and adjudicatory functions, it was natural to include officers specially designated by statute to sit in judgment. Agency members are excluded from these requirements of the Administrative Procedure Act. They, too, have investigatory and adjudicatory duties. Since the members of the agency and the statutorily designated officers were specially selected for the functions they were to perform, Congress probably reposed confidence in their experience and expertness. It doubtless did not wish to disorganize administration until time showed whether that confidence was well placed.1 51 Since the Court does not accept my view of the reach of § 7(a), it would be useless to undertake an analysis of the other questions presented by the petition for certiorari. 1 Particularly invoked are § 5(c), 60 Stat. 237, 240, 5 U.S.C. § 1004(c), 5 U.S.C.A. § 1004(c), which provides in part: 'The same officers who preside at the reception of evidence pursuant to section 7 shall make the recommended decision or initial decision required by section 8 except where such officers become unavailable to the agency. Save to the extent required for the disposition of ex parte matters as authorized by law, no such officer shall consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate; nor shall such officer be responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency. No officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency in any case shall, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 8 except as witness or counsel in public proceedings. * * *'; and § 11, 60 Stat. at page 244, 5 U.S.C. § 1010, 5 U.S.C.A. § 1010, which provides in part: 'Subject to the civil-service and other laws to the extent not inconsistent with this Act, there shall be appointed by and for each agency as many qualified and competent examiners as may be necessary for proceedings pursuant to sections 7 and 8, who shall be assigned to cases in rotation so far as practicable and shall perform no duties inconsistent with their duties and responsibilities as examiners. Examiners shall be removable by the agency in which they are employed only for good cause established and determined by the Civil Service Commission (hereinafter called the Commission) after opportunity for hearing and upon the record thereof. Examiners shall receive compensation prescribed by the Commission independently of agency recommendations or ratings and in accordance with the Classification Act of 1923, as amended, except that the provisions of paragraphs (2) and (3) of subsection (b) of section 7 of said Act, as amended, and the provisions of section 9 of said Act, as amended, shall not be applicable. * * *' 2 See e.g., Blachly and Oatman, Administrative Legislation and Adjudication 1 (1934); Landis, The Administrative Process 1 (1938); Pound, Administrative Law 27 (1942); Carrow, Background of Administrative Law 1 (1948); The Federal Administrative Procedure Act and the Administrative Agencies 4 (N.Y.U.1947); Final Report of Attorney General's Committee on Administrative Procedure 7 (1941), contained in S. Doc. No. 8, 77th Cong., 1st Sess. (1941); Cushman, The Independent Regulatory Commissions, cc. II—V (1941); Frankfurter, The Task of Administrative Law, 75 U. of Pa.L.Rev. 614 (1927); materials cited in n. 4, infra. 3 See e.g., Dickinson, Administrative Justice and the Supremacy of Law, passim (1927); Final Report of Attorney General's Committee on Administrative Procedure, supra, at 11—18, 75—92; and see, materials cited in n. 4, infra. 4 E.g., Root, Public Service by the Bar, 41 A.B.A.Rep. 355, 368 (1916); Hughes, Some Aspects of the Development of American Law, 39 N.Y.B.A.Rep. 266, 269 (1916); Sutherland, Private Rights & Government Control, 42 A.B.A.Rep. 197, 205 (1917); Address of President Guthrie, 46 N.Y.B.A.Rep. 169, 186 (1923). After 1933, when the American Bar Association formed a Special Committee on Administrative Law, the Bar's concern can be traced in this Committee's reports. E.g., 58 A.B.A.Rep. 197, 407 (1933); 59 A.B.A.Rep. 539 (1934); 61 A.B.A.Rep. 720 (1936); 62 A.B.A.Rep. 789 (1937). 5 S. 5154, 70th Cong., 2d Sess. (1929). 6 S. 1835, 73d Cong., 1st Sess. (1933); S. 3787, H.R. 12297, 74th Cong., 2d Sess. (1936); S. 3676, 75th Cong., 3d Sess. (1938); H.R. 6324, H.R. 4235, H.R. 4236, S. 915, S. 916, 76th Cong., 1st Sess. (1939); S. 674, S. 675, S. 918, H.R. 3464, H.R. 4238, H.R. 4782, 77th Cong., 1st Sess. (1941); H.R. 4314, H.R. 5081, H.R. 5237, S. 2030, 78th Cong., 2d Sess. (1944); H.R. 1203, S. 7, 79th Cong., 1st Sess. (1945). 7 E.g., Benjamin, Administrative Adjudication in the State of New York (1942); Tenth Biennial Report of the Judicial Council to the Governor and Legislature of California (1944). See also Fesler, The Independence of State Regulatory Agencies (1942); Handbook of the National Conference of Commissioners on Uniform State Laws, 226 et seq. (1943); 63 A.B.A.Rep. 623 (1938). 8 Administrative Management in the Government of the United States, Report of the President's Committee on Administrative Management 37 (1937). 9 The quoted statement is from President Roosevelt's message to Congress of December 18, 1940, vetoing H.R. 6324, the so-called Walter-Logan bill. H.R.Doc.No. 986, 76th Cong., 3d Sess., 3—4 (1940). The origin and orders leading to the creation of the Attorney General's Committee are set out in Appendix A of the Committee's Final Report, supra. 10 S. 915, H.R. 6324, 76th Cong., 1st Sess. (1939). 11 86 Cong.Rec. 13942—3 (1940), reprinted in H.R.Doc.No. 986, 76th Cong., 3d Sess. (1940). 12 86 Cong.Rec. 13953 (1940). 13 86 Cong.Rec. at 13943; H.R.Doc.No. 986, supra, 4. 14 These bills appear at pp. 192 and 217 of the Committee's Final Report, supra. The majority bill became S. 675, 77th Cong., 1st Sess. (1941) and the minority recommendation was embodied in S. 674, 77th Cong., 1st Sess. (1941). 15 The hearings ran from April 2 to July 2, 1941, and, with an appendix, have been collected in four parts and over 1,600 pages. Hearings before Subcommittee of the Committee on the Judiciary on S. 674, S. 675 and S. 918, 77th Cong., 1st Sess. (1941). 16 H.R. 4314, H.R. 5081, H.R. 5237, S. 2030, 78th Cong., 2d Sess. (1944). 17 S. 7 and H.R. 1203, 79th Cong., 1st Sess. (1945). 18 See H.R.Rep.No. 1980, 79th Cong., 2d Sess. 14—15 (1946); S.Rep.No. 752, 79th Cong., 1st Sess. 4—5 (1945), reprinted in S.Doc.No. 248, 79th Cong., 2d Sess., at 185, 190—191, and 233, 248 249, respectively. 19 S.Rep.No. 752, 79th Cong., 1st Sess. 37—45 (1945); 92 Cong.Rec.App. A—2982—5 (1946). 20 92 Cong.Rec. 2167 (1946) (passage by the Senate); 92 Cong.Rec. 5668 (1946) (amended version passed by House); 92 Cong.Rec. 5791 (1946) (House version agreed to by Senate); 92 Cong.Rec. 6706 (1946) (approved by the President). 21 H.R.Rep.No. 1980, 79th Cong., 2d Sess. 16 (1946); Final Report of the Attorney General's Committee on Administrative Procedure, 20 (1941); McFarland, Analysis of the Federal Administrative Procedure Act, in Federal Administrative Procedure Act and the Administrative Agencies 16, 22 (N.Y.U.1947). See also Hearings before Subcommittee No. 4 of the House Committee on the Judiciary on H.R. 4236, H.R. 6198, and H.R. 6324, 76th Cong., 1st Sess. 14, 31 (1939); S.Rep.No. 442, 76th Cong., 1st Sess. 9 (1939); H.R.Rep.No. 1149, 76th Cong., 1st Sess. 2—3 (1939); S.Doc.No. 71, 76th Cong., 1st Sess. 5 (1939). 22 81 Cong.Rec. 187, 191 (1937). 23 See n. 14, supra. 24 See 8 C.F.R. 150.1 et seq. 25 The initial step in a deportation case is the investigation of an alien by an immigrant inspector. 8 C.F.R. 150.1. This is followed by issuance of a warrant of arrest, 8 C.F.R. 150.2—150.4, and incarceration, unless the alien is released under bond. 8 C.F.R. 150.5. The formal hearing follows. 26 Eisler v. Clark, D.C.1948, 77 F.Supp. 610. 27 S. 2755 and H.R. 6652, 80th Cong., 2d Sess. (1948). 28 S.Rep.No. 1588, H.R.Rep.No. 2140, 80th Cong., 2d Sess. (1948). 29 Section 19(a) of the Immigration Act of February 5, 1917, 39 Stat. 874, 889, as amended, 8 U.S.C. § 155(a), 8 U.S.C.A. § 155(a), provides in part: '* * * any alien who shall have entered or who shall be found in the United States in violation of this Act, or in violation of any other law of the United States * * * shall, upon the warrant of the Attorney General, be taken into custody and deported. * * * In every case where any person is ordered deported from the United States under the provisions of this Act, or of any law or treaty, the decision of the Attorney General shall be final.' See Note 33, infra. 30 The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86, 100, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721; Kwock Jan Fat v. White, 253 U.S. 454, 459, 464, 40 S.Ct. 566, 568, 569, 64 L.Ed. 1010; Bridges v. Wixon, 326 U.S. 135, 160, 65 S.Ct. 1443, 1455, 89 L.Ed. 2103 (concurring opinion). 31 Section 301 of the bills proposed in the majority and minority recommendations of the Final Report of the Attorney General's Committee on Administrative Procedure, pp. 195, 232—233. 32 Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 674, S. 675 and S. 918, 77th Cong., 1st Sess. 1456 (1941). 33 The original Act, 39 Stat. 886, reads 'under this Act,' although in the codification, 8 U.S.C. § 152, 8 U.S.C.A. § 152, it reads 'under this section.' The former is controlling. 1 U.S.C. (Supp. II, 1949) §§ 112, 204(a), 1 U.S.C.A. §§ 112, 204(a). 1 Thus the congressional committee warned that should the exception 'be a loophole for avoidance of the examiner system in any real sense, corrective legislation would be necessary. That provision is not intended to permit agencies to avoid the use of examiners but to preserve special statutory types of hearing officers who contribute something more than examiners could contribute and at the same time assure the parties fair and impartial procedure.' S.Doc.No. 248, 79th Cong.2d Sess., p. 216.

12

339 U.S. 1 70 S.Ct. 468 94 L.Ed. 599 DISTRICT OF COLUMBIAv.LITTLE. No. 302. Argued Jan. 11—12, 1950. Decided Feb. 20, 1950. Mr. Chester H. Gray, Washington, D.C., for petitioner. Mr. Jeff Busby, Washington, D.C., for respondent. Anne X. Alpern, Pittsburgh, Pa., for the National Institute of Municipal Law Officers as amicus curiae. Mr. Justice BLACK delivered the opinion of the Court. 1 An information was filed against the respondent Geraldine Little in the Municipal Court for the District of Columbia charging that she had interfered with a District Health Department inspector in the performance of his official duties. The evidence showed that respondent had told the health officer, who had no search warrant, not to enter her home to inspect its sanitary condition; she had also refused to unlock her door. She was convicted and fined $25. The Municipal Court of Appeals reversed, holding that the Fourth Amendment's prohibition against unreasonable searches and seizures forbade the health officer to enter respondent's private home without a search warrant. 62 A.2d 874. The United States Court of Appeals for the District of Columbia Circuit affirmed on the same grounds. 85 U.S.App.D.C. 242, 178 F.2d 13. The case raises important questions concerning legal provisions for protecting the health of the people by special and periodic inspection and elimination of potential sources of disease. We granted certitorari, 338 U.S. 866, 70 S.Ct. 141. 2 In this Court the constitutional arguments have extended far beyond the comparatively narrow issues involved in the particular case. At one extreme the District argues that the Fourth Amendment has no application whatever to inspections and investigations made by health officers; that to preserve the public health, officers may without judicial warrants enter premises, public buildings and private residences at any reasonable hour, with or without the owner's consent. At the opposite extreme, it is argued that no sanitary inspection can ever be made by health officers without a search warrant, except with a property owner's consent. Between these two extremes are suggestions that the Fourth Amendment requires search warrants to inspect premises where the object of inspections is to obtain evidence for criminal punishment or where there are conditions imminently dangerous to life and health, but that municipalities and other governing agencies may lawfully provide for general routine inspections at reasonable hours without search warrants. An impressive array of facts is also presented concerning the uniform practices of agencies of local governments to provide for such general routine inspections in connection with sanitation, plumbing, buildings, etc. 3 Neither the facts of this case, nor the District law on which the prosecution rests, provide a basis for a sweeping determination of the Fourth Amendment's application to all these varied types of investigations, inspections and searches. Yet a decision of the constitutional requirement for a search in this particular case might have far reaching and unexpected implications as to closely related questions not now before us. This is therefore an appropriate case in which to apply our sound general policy against deciding constitutional questions if the record permits final disposition of a cause on non-constitutional grounds. See Rescue Army v. Municipal Court, 331 U.S. 549, 568 575, 67 S.Ct. 1409, 1419—1423, 91 L.Ed. 1666, and cases there cited. Applying this policy, we find it unnecessary to decide whether the Fourth Amendment required a search warrant here. For even if the Health Officer had a lawful right to inspect the premises without a warrant, we are persuaded that respondent's statements to the officer were not an 'interference' that made her guilty of a misdemeanor under the controlling District law.1 4 The District regulation which respondent was convicted of violating is set out in part below.2 It requires that occupants of premises in the District shall keep them 'clean and wholesome'; that Health Officers shall 'examine or cause to be examined any building supposed or reported to be in an unsanitary condition'; and that 'any person violating * * * any of the provisions of these regulations, or interfering with or preventing any inspection authorized thereby, shall be deemed guilty of a misdemeanor. * * *' An occupant of respondent's house reported to the Health Officer that conditions inside her home were very far from 'clean and wholesome.'3 The Health Officer then went to respondent's home. She was away and the door was locked. The officer had no search warrant. While he was standing outside the door, respondent returned. She protested the right of the inspector to enter her private home, claiming that his entry would violate her constitutional rights. She neither used nor threatened force of any kind.4 In view of these facts found by the courts below, the question boils down to whether respondent's mere refusal to unlock the door accompanied by remonstrances on substantial constitutional grounds was the kind of interference prohibited by the regulation.5 We hold that it was not. 5 Although force or threatened force is not always an indispensable ingredient of the offense of interfering with an officer in the discharge of his duties, mere remonstrances or even criticisms of an officer are not usually held to be the equivalent of unlawful interference.6 Nor does any express language in the District regulation controlling here impose any duty on home owners to assist health officers to enter and inspect their homes. It does not even prohibit 'hindering' or 'refusing to permit any lawful inspection,' in sharp contrast with a separate inspection statute enacted by Congress for the District which adds these phrases to prohibitions against 'interference' and 'prevention.'7 The word 'interfere' in this regulation cannot fairly be interpreted to encompass respondent's failure to unlock her door and her remonstrances on constitutional grounds. 6 Had the respondent not objected to the officer's entry of her house without a search warrant, she might thereby have waived her constitutional objections.8 The right to privacy in the home holds too high a place in our system of laws to justify a statutory interpretation that would impose a criminal punishment on one who does nothing more than respondent did here. The judgment of the Court of Appeals affirming the Municipal Court of Appeals judgment setting aside the conviction is affirmed. 7 Affirmed. 8 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 9 Mr. Justice BURTON, with whom Mr. Justice REED concurs, dissenting. 10 If this Court is to interpret an ordinance of the District of Columbia, it seems to me that the action of the respondent was an effective interference with an inspector of the District Health Department in the performance of his official duties, and that such conduct of the respondent violated the ordinance that is before us. In my opinion, also, the duties which the inspector was seeking to perform, under the authority of the District, were of such a reasonable, general, routine, accepted and important character, in the protection of the public health and safety, that they were being performed lawfully without such a search warrant as is required by the Fourth Amendment to protect the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. 11 Accordingly, the conviction of the respondent should be sustained, and the judgment of the United States Court of Appeals affirming the judgment of the Municipal Court of Appeals setting aside that conviction should be reversed. 1 The lower courts, apparently preoccupied with the constitutional issue, did not refer to this question. Ordinarily we would hesitate to decide questions of District law on which the courts of the District have not spoken. See, e.g., Griffin v. United States, 336 U.S. 704, 718, 69 S.Ct. 814, 820, and cases there cited. Here, however, the interpretative question is so enmeshed with constitutional issues that complete disposition by this Court is in order. 2 '2. That it shall be the duty of every person occupying any premises, or any part of any premises, in the District of Columbia, or if such premises be not occupied, of the owner thereof, to keep such premises or part * * * clean and wholesome; if, upon inspection by the Health Officer or an Inspector of the Health Department it be ascertained that any such premises, or any part thereof, or any building, yard, * * * is not in such condition as herein required, the occupant or occupants of such premises or part, or the owner thereof, as hereinbefore specified, shall be notified thereof and required to place the same in a clean and wholesome condition; and in case any person shall fail or neglect to place such premises or part in such condition within the time allowed by said notice he shall be liable to the penalties hereinafter provided. '10. That the Health Officer shall examine or cause to be examined any building supposed or reported to be in an unsanitary condition, and make a record of such examination; * * *.' '12. That any person violating, or aiding or abetting in violating, any of the provisions of these regulations, or interfering with or preventing any inspection authorized thereby, shall be deemed guilty of a misdemeanor, and shall, upon conviction in the Police Court, be punished by a fine of not less than $5 nor more than $45.' Commissioners' Regulations Concerning the Use and Occupancy of Buildings and Grounds, promulgated April 22, 1897, amended July 28, 1922. 3 The complaint was that 'there was an accumulation of loose and uncovered garbage and trash in the halls of said premises and that certain of the persons residing therein had failed to avail themselves of the toilet facilities.' 4 There was evidence that some distance away from the home respondent attempted to grab some papers from the officer. The Municipal Court of Appeals and the Court of Appeals for the District both held that the information on which respondent was convicted was not based on this incident. Those courts and the Municipal Court in which respondent was convicted all treated the conviction as having been based on respondent's refusal to unlock the door on the ground that the officer was without constitutional right to enter. 5 The information charged that respondent 'did * * * hinder, obstruct, and interfere with an inspector of the Health Department * * *.' The regulation on which the prosecution was based does not include the words 'hinder' and 'obstruct.' These words do appear in an Act of Congress which provides for an abatement of nuisances in the District and specifically authorizes persons delegated by the District Commissioners to enter premises 'during all reasonable hours, to inspect the same and to do whatever may be necessary to correct' a condition amounting to a nuisance. 34 Stat. 115. But that Act is not involved in this case. 6 See cases collected in Notes, 48 A.L.R. 746, 749, 755; Ann.Cas.1914B, 814. 7 'Sec. 11. That no person shall interfere with any member of the board for the condemnation of insanitary buildings or with any person acting under authority and by direction of said board in the discharge of his lawful duties, nor hinder, prevent, or refuse to permit any lawful inspection or the performance of any work authorized by this Act to be done by or by authority and direction of said board.' 34 Stat. 157, 159. There is another interesting difference between the above statute and the regulation here involved. The statute expressly limits inspection to the hours between 8 a.m. and 5 p.m.; the regulation has no limitation of this or indeed of any other type, though petitioner admits that a requirement of 'reasonableness' should be read into it. See also 49 Stat. 1917, 1919, § 10. 8 See collections cited in note 6 supra.

01

339 U.S. 87 70 S.Ct. 503 94 L.Ed. 675 UNITED STATESv.BURNISON et al. UNITED STATES v. GAYETTY et al. Nos. 171, 188. Argued Dec. 13, 1949. Decided March 13, 1950. Mr. Melvin Richter, Washington, D.C., for appellant. Mr. J. Harold Decker, Los Angeles, Cal., for Gayetty and others. Mr. Justice REED delivered the opinion of the Court. 1 These appeals involve the power of the California Supreme Court to declare invalid testamentary dispositions to the United States by two California residents. The bequest to the United States in No. 171 included only personal property; in No. 188 the United States was designated to receive both real property and United States bonds. The situs of all the property is assumed to be California. After appropriate procedural steps, the California Supreme Court held void these testamentary gifts and directed that they be distributed to the statutory heirs of each decedent.1 The two cases were consolidated for argument below and will be considered here in one opinion. 2 The California court construed § 27 of the California Probate Code2 to prevent a California domiciliary from making an unrestricted testamentary gift to the United States, although such a gift may be made to California, its counties and municipal corporations.3 The court arrived at this interpretation despite the contention of the United States that it would raise serious constitutional questions. The construction of the California Code by the California Supreme Court is, of course, binding on us. It leaves us, however, with the federal constitutional questions that the United States urged the California court to avoid. 3 In these appeals the United States makes two contentions. It urges that the California Code, as interpreted, violates the Supremacy Clause of the Constitution, art. 6, cl. 2, in that it infringes upon the 'inherent sovereign power' of the United States to receive testamentary gifts. Alternatively it argues that the Code effects an unconstitutional discrimination against the National Government, since a testamentary gift may be made by a Californian to California, but may not be made to the United States. 4 We have no doubt that the receipt of gifts, testamentary and nontestamentary, is within the ambit of federal powers. Uninterrupted usage from the foundation of the Government has sanctioned it. The first question here, therefore, is whether the power to receive testamentary gifts reaches so far as to forbid a state to deny a testator the right to will his property to the United States. 5 To answer this question affirmatively would require us to overrule United States v. Fox, 94 U.S. 315, 24 L.Ed. 192, decided at the 1876 Term by a unanimous Court and frequently cited with approval. A devise of New York realty to the United States had been held void by the Court of Appeals4 under a New York statute that declared land in New York could be devised only to natural persons and such corporations as New York had expressly authorized to take by devise. Although it was not specifically urged that the Supremacy Clause precludes a state's interference with the power of the United States to receive testamentary gifts, this point was necessarily involved in the United States' argument that the New York prohibition violated an essential attribute of national sovereignty—the right to acquire property by all methods known to the law. In affirming, this Court held that the power to control devises of property was in the State, and that therefore a person must 'devise his lands in that State within the limitations of the statute or he cannot devise them at all.'5 6 In asking us to overrule the Fox case, the United States contends that since it has the power to accept testamentary gifts, the Supremacy Clause bars a state from stopping this stream of federal revenue at its source. The argument is that every authorized activity of the United States represents an exercise of its governmental power,6 and that therefore the power to receive property through a will is a governmental power. Since a state cannot interpose 'an obstacle to the effective operation of a federal constitutional power',7 the Government argues a state cannot interfere with this power to receive. This argument fails to recognize that the state acts upon the power of its domiciliary to give and not on the United States' power to receive. As a legal concept a transfer of property may be looked upon as a single transaction or it may be separated into a series of steps. The approach chosen may determine legal consequences.8 Where powers flow so distinctly from different sources as do the power to will and the power to receive, we think the validity of each step is to be treated separately. 7 The United States would have no semblance of a claim here were it not for wills probated under California law. The Fox case is only one of a long line of cases which have consistently held that part of the residue of sovereignty retained by the states, a residue insured by the Tenth Amendment,9 is the power to determine the manner of testamentary transfer of a domiciliary's property and the power to determine who may be made beneficiaries.10 It would be anomalous to hold that, because of an amorphous doctrine of national sovereignty, federal constitutional law reached into a California statute and made importent that state's restrictions on the designation of beneficiaries 8 The United States' argument leads to the conclusion that no obstruction whatever may be put in the way of the United States' power to receive by will. Thus the United States could claim rights under the will of a testator whom the state had declared incompetent, or under a will that had not been witnessed and attested according to the laws of the state. The United States could take to the complete exclusion of a surviving spouse, notwithstanding the state law. 9 The case of United States v. Perkins, 163 U.S. 625, 16 S.Ct. 1073, 41 L.Ed. 287, makes clear that obstacles may be put by states to the passage of property by will to the United States. There the New York Court of Appeals had upheld the application of the New York inheritance tax to personalty bequeathed the United States. Although there is no doubt that where the United States acts in its sovereign capacity, it is free from state taxes on that activity,11 this Court, in affirming, said: 10 'Certainly, if it be true that the right of testamentary disposition is purely statutory, the state has a right to require a contribution to the public treasury before the bequest shall take effect. * * * 11 'We think that it follows from this that the act in question is not open to the objection that it is an attempt to tax the property of the United States, since the tax is imposed upon the legacy before it reaches the hands of the government. The legacy becomes the property of the United States only after it has suffered a diminution to the amount of the tax, and it is only upon this condition that the legislature assents to a bequest of it.'12 12 We shall not overrule the Fox case, and, of course, we find no distinction between realty and personalty. Within broad limits, the state has power to say what is devisable and to whom it may be given. We may assume with the United States that the state's power over testamentary gifts is not absolute,13 but we find nothing in the Supremacy Clause which prohibits the state from preventing its domiciliary from willing property to the Federal Government.14 13 The alternative contention is that § 27 of the Probate Code, as interpreted, discriminates against the United States in violation of the Constitution. The argument is that even if the Supremacy Clause would not be violated if the statute provided that no governmental body could be made the beneficiary of a California will, there is a violation of the Supremacy Clause when the United States is treated less advantageously than California. Apparently the capacity of the United States to receive gifts is analogized to the right of a person to sue on a federal cause of action in a state court. Reliance is placed on the cases which have held that federal rights must be enforced by the courts of a state when 'ordinary jurisdiction as prescribed by local laws is appropriate to the occasion.'15 Thus, urges appellant, since state courts may not discriminate in the availability of judicial relief between state created rights and federally created rights, no more can a state discriminate between California and the United States as beneficiaries under wills. 14 When a state refuses to hear pleas based on federally created rights while it takes cognizance of those created by state law, there may be invalid discrimination because by the Supremacy Clause federal laws are made laws of the state.16 Therefore to allow a suit based on state law and to refuse one based on federal law could 'discriminate' without any reason for the classification.17 But the United States' capacity to receive, even though called a 'right' or a 'power,' is not a 'law of the state.' As we have shown in the earlier discussion, that capacity cannot be magically transformed into something that must be enforced. The cases upholding the rights of persons to sue are not in point. 15 In a sense, of course, the United States is being treated differently from California, and differences and distinctions in a state's treatment of persons are frequently claimed to be discriminatory in violation of the Equal Protection and Privileges and Immunities Clauses of the Fourteenth Amendment. But such differences and distinctions, even when applied to persons clearly protected by the Fourteenth Amendment, are not in themselves unconstitutional. It is only when the variations are arbitrary and without reasonable legal basis that an unconstitutional discrimination occurs. A long line of decisions has molded this judicial concept.18 Thus, although we should make the somewhat dubious assumption that the United States must receive equal protection under the Fourteenth Amendment, there is no constitutional violation. California's decision to permit only itself and its subordinate municipalities to be unlimited governmental beneficiaries under the wills of its domiciliaries is based on a permissible distinction. It is justified by reason of the state's close relationship with its residents and their property.19 A state may by statute properly prefer itself in this way, just as states have always preferred themselves in escheat. 16 Affirmed. 17 Mr. Justice BLACK dissents. 18 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 In re Estate of Burnison, 33 Cal.2d 638, 204 P.2d 330; In re Estate of Sanborn, 33 Cal.2d 647, 204 P.2d 335. 2 Probate Code of California, § 27: 'Who may take by will. A testamentary disposition may be made to the state, to counties, to municipal corporations, to natural persons capable by law of taking the property, to unincorporated religious, benevolent or fraternal societies or associations or lodges or branches thereof, and to corporations formed for religious, scientific, literary, or solely educational or hospital or sanatorium purposes, or primarily for the public preservation of forests and natural scenery, or to maintain public libraries, museums or art galleries, or for similar public purposes. No other corporation can take under a will, unless expressly authorized by statute.' 3 One judge dissented on the authority of In re Estate of Hendrix, 77 Cal.App.2d 647, 651—653, 176 P.2d 398, 400—402. The Hendrix will bequeathed property to the United States Veterans' Administration for the aid, comfort and assistance of disabled veterans. The California District Court of Appeal, 77 Cal.App.2d at page 651, 176 P.2d page 400, declared that this was really a bequest to the United States, a corporation, and that its agency, the designated beneficiary, was expressly authorized by California Probate Code § 27 to take property under a will. Thus the bequest was valid. In its opinion in the present case, the Supreme Court held that this language had been unnecessary to the decision and refused to extend it to the gifts now under consideration. It thought that the Hendrix gift was good as one for charitable purposes to a legally constituted institution. The Supreme Court thought a gift to the United States 'without qualification as to administration or purpose,' 33 Cal.2d 646, 204 P.2d 335, did not come under the classifications of associations or corporations in § 27. 4 Matter of Will of Fox, 52 N.Y. 530, 11 Am.Rep. 751. 5 United States v. Fox, 94 U.S. 315, 321, 24 L.Ed. 192. 6 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, 120 A.L.R. 1466; Pittman v. Home Owners' Loan Corp., 308 U.S. 21, 32, 60 S.Ct. 15, 17, 84 L.Ed. 11, 124 A.L.R. 1263; Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 102, 62 S.Ct. 1, 5, 86 L.Ed. 65. 7 United States v. Belmont, 301 U.S. 324, 331, 332, 57 S.Ct. 758, 761, 81 L.Ed. 1134. 8 Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355. 9 United States v. Sprague, 282 U.S. 716, 733, 51 S.Ct. 220, 222, 75 L.Ed. 640, 71 A.L.R. 1381; United States v. Darby, 312 U.S. 100, 123, 657, 61 S.Ct. 451, 461, 85 L.Ed. 609, 132 A.L.R. 1430. 10 Mager v. Grima, 8 How. 490, 493—494, 12 L.Ed. 1168; United States v. Fox, 94 U.S. 315, 321, 24 L.Ed. 192; United States v. Perkins, 163 U.S. 625, 627, 628, 16 S.Ct. 1073, 1074, 41 L.Ed. 287; Plummer v. Coler, 178 U.S. 115, 137, 20 S.Ct. 829, 837, 44 L.Ed. 998; Maxwell v. Bugbee, 250 U.S. 525, 536, 40 S.Ct. 2, 5, 63 L.Ed. 1124; Lyeth v. Hoey, 305 U.S. 188, 193, 59 S.Ct. 155, 158, 83 L.Ed. 119, 119 A.L.R. 410; Irving Trust Co. v. Day, 314 U.S. 556, 562, 62 S.Ct. 398, 401, 86 L.Ed. 1734, 137 A.L.R. 1093; Demorest v. City Bank Farmers Trust Co., 321 U.S. 36, 48, 64 S.Ct. 384, 391, 88 L.Ed. 526. 11 Mayo v. United States, 319 U.S. 441, 63 S.Ct. 1137, 87 L.Ed. 1504, 147 A.L.R. 761. 12 United States v. Perkins, 163 U.S. 625, 628, 630, 16 S.Ct. 1073, 1075, 41 L.Ed. 287. 13 Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633, 170 A.L.R. 953. Cf. Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249. 14 As was pointed out in the Fox case, our determination does not affect the right of the United States to acquire property by purchase or eminent domain in the face of a prohibitory statute of the state. Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449. An authorized declaration of taking or a requisition will put realty or personalty at the disposal of the United States for 'just compensation.' It may tax testamentary transfers. Its powers will not suffer. 15 Second Employers' Liability Cases, (Mondou v. New York, N.H. & H.R. Co.), 223 U.S. 1, 56, 32 S.Ct. 169, 177, 56 L.Ed. 327, 38 L.R.A., N.S., 44; Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747; McKnett v. St. Louis & S.F.R. Co., 292 U.S. 230, 54 S.Ct. 690, 78 L.Ed. 1227. 16 Claflin v. Houseman, 93 U.S. 130, 136, 23 L.Ed. 833; Second Employers' Liability Cases, supra, 223 U.S. 57, 32 S.Ct. 178. 17 McKnett v. St. Louis & S.F.R. Co., supra, 292 U.S. 234, 54 S.Ct. 692; cf. Douglas v. New York, N.H. & H.R. Co., supra. 18 E.g., City and County of Denver v. New York Trust Co., 229 U.S. 123, 33 S.Ct. 657, 57 L.Ed. 1101; Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 S.Ct. 370, 60 L.Ed. 679, L.R.A. 1917A, 421, Ann.Cas.1917B, 455; La Tourette v. McMaster, 248 U.S. 465, 39 S.Ct. 160, 63 L.Ed. 362; Maxwell v. Bugbee, 250 U.S. 525, 40 S.Ct. 2, 63 L.Ed. 1124; New York Rapid Transit Corp. v. City of New York 30 U.S. 573, 58 S.Ct. 721, 82 L.Ed. 1024; Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 66 S.Ct. 850, 90 L.Ed. 1096. 19 Board of Education of Kentucky Annual Conference of Methodist Episcopal Church v. State of Illinois, 203 U.S. 553, 27 S.Ct. 171, 51 L.Ed. 314, 8 Ann.Cas. 157; cf. Connecticut Mutual Life Ins. Co. v. Moore, 333 U.S. 541, 551, 68 S.Ct. 682, 688, 92 L.Ed. 863.

910

339 U.S. 113 70 S.Ct. 499 94 L.Ed. 698 REIDERv.THOMPSON. No. 403. Argued Feb. 7, 1950. Decided March 13, 1950. Rehearing Denied April 10, 1950. See 339 U.S. 936, 70 S.Ct. 663. Mr. Eberhard P. Deutsch, New Orleans, La., for petitioner. Mr. M. Truman Woodward, Jr., New Orleans, La., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 The question in this case is whether a claim for relief under the so-called Carmack Amendment to the Interstate Commerce Act has been stated against respondent carrier. The District Court held that a claim within the Amendment had not been stated. The Court of Appeals for the Fifth Circuit affirmed by a divided court. 176 F.2d 13. Because the case presents an issue of importance in the application of a federal statute governing liability of common carriers for damage to goods transported by them, we granted certiorari. 338 U.S. 890, 70 S.Ct. 243. 2 The Carmack Amendment in pertinent part provides: 'Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation from a point in one State or Territory or the District of Columbia to a point in another State, Territory, District of Columbia, or from any point in the United States to a point in an adjacent foreign country shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property, caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading * * *.' 34 Stat. 593, 595, as amended, 49 U.S.C. § 20(11), 49 U.S.C.A. § 20(11). 3 Respondent railroad received a shipment of wool and skins at New Orleans, Louisiana, for transportation to Boston, Massachusetts, by way of its line and connecting carriers, and issued its original through bill of lading for the shipment. Petitioner, who alleged that he was the lawful holder of the bill of lading and owner of the goods, sued respondent, as receiving carrier under the Carmack Amendment, for damages, asserting that the shipment was in good order and condition when received by respondent at New Orleans and was damaged on arrival in Boston. Respondent filed a motion to dismiss on the ground that the complaint did not state a claim against respondent upon which relief could be granted. The Court of Appeals affirmed the District Court's order granting this motion and dismissing the suit. 4 It is not disputed that if these were all the facts in the case the courts below were in error. Clearly respondent is a common carrier subject to the Act, and a claim for relief against respondent, as receiving carrier, on account of damage to a shipment of goods moving from a point in one state to a point in another state was pleaded under the Carmack Amendment. See Galveston, H. & S.A.R. Co. v. Wallace, 223 U.S. 481, 32 S.Ct. 205, 56 L.Ed. 516. But from a stipulation filed in the District Court and considered with the pleadings, we learn that the shipment originated in Buenos Aires, Argentina. The goods were transported by steamship from there to New Orleans on an occean bill of lading, freight for which was payable at Buenos Aires. What is stipulated to be an accurate English translation of the ocean bill of lading reads in part: 5 'The Shipper, Ship, Consignee, Destination and Goods which are specified in this bill of lading are the following: 6 Shipper: Emilio Rosler S.R.L. Ship: Rio Parana 7 Port of Shipment: Buenos Aires Port of Discharge of the Ship New Orleans 8 destination of the goods: _ _ (if the goods are to be transshipped out of the port of discharge) 9 Shipper to the Order of: The First National Bank of Boston 10 Notice of arrival should be addressed to (if consigned to Shipper's Order) Rudolph Reider 39 South Street Boston Mass. U.S.A.' 11 The domestic bill of lading issued by respondent at New Orleans recited that the goods were received from H. P. Lambert Co. and consigned to the same H. P. Lambert Co. at Boston. The Court of Appeals (176 F.2d 13, 14) characterized this railroad bill as a 'supplemental bill of lading' issued by the domestic carrier to cover its portion of the transportation and delivery of a 'through foreign shipment', and held that the Carmack Amendment was not intended to apply to such a foreign shipment. The tests laid down in United States v. Erie R. Co., 280 U.S. 98, 50 S.Ct. 51, 74 L.Ed. 187, and Texas & New Orleans R. Co. v. Sabine Tram Co., 227 U.S. 111, 33 S.Ct. 229, 57 L.Ed. 442, were applied by the Court of Appeals in determining that the transaction was a 'through foreign shipment.' And Missouri Pacific R. Co. v. Porter, 273 U.S. 341, 47 S.Ct. 383, 71 L.Ed. 672, was relied on as authority for the proposition that the Carmack Amendment was not intended to apply to such a shipment. 12 Reliance on the cited cases is misplaced. The issue in the Porter case, supra, was totally different from the question here.1 And whether the commerce is properly characterized as foreign or domestic is, in our view of the case, not material. 13 The issue is whether this transaction is within the Carmack Amendment. But basically, the problem here is one of liability. The contract giving rise to liability—the bill of lading—is our primary aid in solving that problem. So we turn to the contract to ascertain whether it evidences a transaction within the Carmack Amendment. 14 Does the fact that the shipment in this case originated in a foreign country take it without the Carmack Amendment? We think not. There was no through bill of lading from Buenos Aires to Boston. The record does not show the slightest privity between respondent and the ocean carrier. The contract for ocean transportation terminated at New Orleans. Having terminated, nothing of it remained for the new, separate, and distinct domestic contract of carriage to 'supplement.' Even the parties to the ocean bill of lading and the domestic bill of lading were different. If the various parties dealing with this shipment separated the carriage into distinct portions by their contracts, it is not for courts judicially to meld the portions into something they are not. The test is not where the shipment originated, but where the obligation of the carrier as receiving carrier originated. Rice v. Oregon Short Line R. Co., 33 Idaho 565, 198 P. 161; Barrett v. Northern Pacific R. Co., 29 Idaho 139, 157 P. 1016; Baltimore & Ohio R. Co. v. Montgomery & Co., 19 Ga.App. 29, 90 S.E. 740. Thus it is not significant that the shipment in this case originated in a foreign country, since the foreign portion of the journey terminated at the border of the United States. The obligation as receiving carrier originated when respondent issued its original through bill of lading at New Orleans. That contract of carriage was squarely within the provisions of the statute. 15 The case of Alwine v. Pennsylvania R. Co., 141 Pa.Super. 558, 15 A.2d 507, much relied upon by respondent and the Court of Appeals, is not in point. We need not now determine whether that case was correctly decided. For purposes of this case it is sufficient to note that there the Pennsylvania court emphasized that the shipment came into this country on a through bill of lading from Canada. The contract of carriage did not terminate at the border, as in the instant case. Nor does Mexican Light & Power Co. v. Texas Mexican R. Co., 331 U.S. 731, 67 S.Ct. 1440, 91 L.Ed. 1779, aid respondent. There an export shipment on a through bill of lading from Pennsylvania to the international boundary, destined for a point in Mexico, was damaged in Mexico. The Texas Mexican Co., the last in a series of carriers handling the shipment in this country, issued a second bill of lading at Laredo, Texas, for the carriage on into Mexico. Recovery was sought against the Texas Mexican Co. as initial (receiving) carrier under the Carmack Amendment. This Court held that it was not a receiving carrier because its duties were controlled by the first bill, and the second bill was without consideration and void. As the dissenting judge below said: 'That case rules nothing as to a reverse shipment * * * .' And it could hardly be contended that respondent's domestic bill of lading here was void. As a matter of fact, the shipment in this case could not have moved an inch beyond New Orleans under the ocean bill; and the Carmack Amendment required respondent to issue a through bill of lading for the carriage from New Orleans to Boston. 16 We disavow, as did both the concurring judge and the dissenting judge below, any intimation that our holding might impose liability on a domestic carrier for damage attributable to an ocean carrier. The complaint in this case alleges that the shipment was received by respondent in good order and condition and was damaged when delivered. Unless petitioner can prove the case stated by his complaint, respondent is not liable. 17 The purpose of the Carmack Amendment was to relieve shippers of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods. To hold otherwise than we do would immunize from the beneficial provisions of the Amendment all shipments originating in a foreign country when reshipped via the very transportation chain with which the Amendment was most concerned. Respondent was the receiving carrier squarely within the wording and meaning of the Carmack Amendment. The judgment of the Court of Appeals is 18 Reversed. 19 Mr. Justice DOUGLAS and Mr. Justice JACKSON took no part in the consideration or decision of this case. 20 Mr. Justice FRANKFURTER, dissenting. 21 The problem presented by this case is whether a shipment which constitutes an organic transaction in commerce between a nonadjacent foreign country and the continental United States for every other aspect of the Interstate Commerce Act should be treated as such for purposes of § 20(11) of that Act, familiarly known as the Carmack Amendment. 49 U.S.C. § 20(11), 49 U.S.C.A. § 20(11). Since I agree with the answer given by the Court of Appeals I ought not to join in reversing its decision. 22 That court's position is supported by this Court's view of the matter in Missouri Pacific R. Co. v. Porter, 273 U.S. 341, 344, 345, 47 S.Ct. 383, 384, 71 L.Ed. 672, read in the light of the criteria for determining what constitutes a shipment in foreign commerce. See United States v. Erie R. Co., 280 U.S. 98, 50 S.Ct. 51, 74 L.Ed. 187. To be sure, the precise question now here was not the issue in the Porter case. But what was there said as to the scope of the Carmack Amendment in relation to such commerce with a nonadjacent foreign country was relevant to the immediate question in the Porter case considered in its true aspect. In order to decide the precise question of that case the Court had to consider the regulatory scheme of liability under the Interstate Commerce Act in its entirety. The conclusion of the Porter case—that the Carmack Amendment does not apply to an unbroken transaction of commerce with a nonadjacent foreign country—carried the authority of the two Justices, Butler and Brandeis, who between them had had the most comprehensive experience with the working of the Interstate Commerce Act. As Judge Hutcheson indicated in his concurring opinion below, the answer to our problem is not to be had by taking words of the Carmack Amendment out of the illuminating context of the regulatory scheme of which they are a part. A legal faggot ought not to be broken into verbal sticks. 1 The Court there briefly alluded to the coverage of the Carmack Amendment. But the sole issue in the Porter case was whether federal regulation of bills of lading had covered the field to the exclusion of state regulation of the same subject matter. The Court's discussion of the Carmack Amendment there does not control our decision in this case.

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339 U.S. 96 70 S.Ct. 509 94 L.Ed. 683 AFFOLDERv.NEW YORK, C. & ST. L.R. CO. No. 200. Argued Nov. 18, 1949. Decided March 13, 1950. Mr. William H. Allen, St. Louis, Mo., for petitioner. Mr Lon Hocker, St. Louis, Mo., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 We have for review a judgment of the Court of Appeals for the Eighth Circuit, reversing petitioner's recovery of an $80,000 judgment against the respondent railroad based on an alleged violation of the Federal Safety Appliance Act1 and the Federal Employers' Liability Act.2 Petitioner was a member of a crew engaged in classifying, or sorting, a number of railroad cars in the respondent's yards. Twenty-four cars had been coupled together on one track. The twenty-fifth, a Rock Island car, was kicked eastward down the track to couple with the others. It did so, its east end joining the other cars. A Pennsylvania car was the next car kicked eastward down the track, but it and the Rock Island car failed to couple together. After three or four other cars had been added, the Rock Island car and the twenty-four others to which it was attached began rolling down the track. Petitioner ran after the moving train of cars in an attempt to board and stop them, as was his duty. His leg was lost as he fell under a car in this attempt. 2 The trial was to a jury, petitioner contending that the failure of the Pennsylvania car to join the Rock Island car on impact was in itself a violation of the Safety Appliance Act, resulting in the separation and his injury. Respondent took the position that the criterion of the Act is, 'were they (the cars) equipped with efficient couplers?' and not 'did they (the couplers) in fact fail to couple?'; and that if there was a violation of the Act, it was not the proximate cause of the injury. The jury returned a verdict for $95,000 which, upon remittitur, was reduced to $80,000. A judgment in this amount was entered 1948, 79 F.Supp. 365. On appeal the judgment was reversed. 8 Cir., 1949, 174 F.2d 486. We granted certiorari. 1949, 338 U.S. 813, 70 S.Ct. 73. 3 The Court of Appeals determined the issue of proximate cause favorable to petitioner, and respondent admits that the 'problem of causal connection vel non in the Affolder case is legally identical with the same problem in the Carter case. (Carter v. Atlanta & Saint Andrews Bay R. Co., 1949, 338 U.S. 430, 70 S.Ct. 226.)' We agree and consequently hold the issue correctly determined below. 4 Nor do we think that any question regarding the normal efficiency of the couplers is involved in an action under the Safety Appliance Acts. As we said in O'Donnell v. Elgin, Joliet & Eastern R. Co., 1949, 338 U.S. 384, 70 S.Ct. 200, and the Carter case, supra, the duty under the Acts is not based on the negligence of the carrier but is an absolute one requiring performance 'on the occasion in question.' (174 F.2d 489.) 5 The Court of Appeals based its disposition of the case on the reasoning that the charge3 given the jury contained 'no explanation of the legal effect' of the direct proof of the separation of the cars 'and the permissible use which the jury could make of it * * *.' We think the Court of Appeals erroneously concluded that the jury could find for the plaintiff only if it inferred 'bad condition of the couplers and consequent violation of defendant's statutory duty * * *.' This was the same error the Court of Appeals for the Seventh Circuit made in O'Donnell, supra, in an opinion relied upon by respondent in the present cause. In subsequently reversing the judgment of the Court of Appeals, we held that the plaintiff did not have to show a 'bad' condition of the coupler; she was entitled to a peremptory instruction that to equip a car with a coupler which failed to perform properly 'in the switching operation was a violation of the Act, which rendered defendant liable for injuries proximately resulting therefrom, and that neither evidence of negligence nor of diligence and care was to be considered on the question of this liability.' Further, we said, 'a failure of equipment to perform as required by the Safety Appliance Act is in itself an actionable wrong * * *.' (338 U.S. 384, 70 S.Ct. 204.) 6 Of course this assumes that the coupler was placed in a position to operate on impact. Thus, if 'the failure of these two cars to couple on impact was because the coupler on the Pennsylvania car had not been properly opened', the railroad had a good defense. The Court of Appeals also found fault with the charge on the ground that it deprived defendant of this defense. We cannot agree. The trial court directed the jury at least three times that it was for them to determine the reason why the cars separated and specifically called their attention to the testimony of the head switchman, thus emphasizing the possibility that his failure, if any, to open the coupler was the cause of the separation. Likewise, the argument of counsel, both for plaintiff and defendant, clearly reveals that the sole question with regard to this issue was whether, after the couplers were placed in open or proper position, they failed to couple automatically on impact.4 The jury, by its verdict, resolved the question against the respondent. 7 We think the charge, taken as a whole sufficiently informed the jury of the relevant legal rules. 8 We agree with the Court of Appeals that the amount of damages awarded by the District Court's judgment is not monstrous in the circumstances of this case. Barry v. Edmunds, 1886, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729. Accordingly, the judgment of the Court of Appeals is reversed and that of the District Court affirmed. 9 Reversed. 10 Mr. Justice FRANKFURTER would dismiss this writ as improvidently granted, for reasons set forth by him in Carter v. Atlanta & St. Andrews Bay R. Co., 338 U.S. 430, 437, 70 S.Ct. 226, 230. 11 Mr. Justice REED dissents. He would affirm on the failure of the trial court to make clear to the jury that the carrier was not liable under the Safety Appliance Act if the failure to couple was due to negligence in setting the coupler. See New York, C. & St. L.R. Co. v. Affolder, 8 Cir., 174 F.2d 486, 491, and O'Donnell v. Elgin, J. & E.R. Co., 338 U.S. 384, 394, note 7, 70 S.Ct. 200, 206. 12 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 13 Mr. Justice JACKSON, dissenting. 14 The only issue surviving in this case is whether the charge gave the jury a sufficiently clear and correct knowledge of the law to be applied. 15 The Court of Appeals thought the charge as a whole 'very probably gave the jury the impression' that it need only find that two cars failed to couple on impact to establish a violation of the Safety Appliance Act. This, as the Court recognizes, is not the law. Before a failure to couple establishes a defective coupler, it must be found that it was properly set so it could couple. If it was not adjusted as such automatic couplers must be, of course the failure is not that of the device. 16 The instructions contained language quoted by this Court that would suggest this rule. Other language was used, however, which might well cancel the effect of that quoted. Judge Collet, for the Court of Appeals, said, 'We are unable to escape the conclusion that the instruction was not sufficiently clear and definite in that respect.' 174 F.2d at 491. 17 If the charge seemed so foggy to a Court of Appeals, generally familiar with what the trial judge was driving at, I do not see how this Court can be so confident that it did not mislead a jury of laymen. That confidence is all upon which we reverse the judgment. We cannot know any more about its effect than did the Court of Appeals; and that court happened to have been composed of judges, two of whom have had the experience of presiding over jury trials in District Court, which gives them a better informed mind on the subject than we have. I should be inclined to agree with them that the charge leaves the subject in so much confusion that I do not know just what the instruction did amount to. The most that can happen under the decision now being reversed is to resubmit the case to a jury that probably would be more carefully and clearly instructed. 18 In any event, I do not think this is the kind of issue that meets the qualifications we have ourselves laid down for grant of certiorari. Supreme Court Rule 38(5), 28 U.S.C.A. No question of law is, or could be, settled unless we could devise some measure of incoherence so that lower courts would know how much we will think is too much. Short of that, we only substitute our own impression for that of the Court of Appeals as to the probable psychological effect of the instruction in this individual case. All that was written in favor of dismissing a writ as improvidently granted in Carter v. Atlanta & St. Andrews Bay R. Co., 338 U.S. 430, 437, 70 S.Ct. 226, 230, and Wilkerson v. McCarthy, 336 U.S. 53, 65—77, 69 S.Ct. 413, 419—424, seems especially applicable here. I would dismiss this writ as improvidently granted. 1 'It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic 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. 2 35 Stat. 65, as amended, 45 U.S.C. §§ 51—60, 45 U.S.C.A. § 51—60. 3 The trial court's charge is set out at length in the opinion of the Court of Appeals, 174 F.2d 486, 488—491. 4 Defendant had introduced in evidence a small model of the coupler involved and an expert had demonstrated its workings to the jury. Counsel for defendant argued to the jury: 'He (plaintiff's counsel) says it is only necessary to show that there was no coupling. I say he is wrong. I say he must show that there was a failure to couple because the car was not equipped with couplers coupling automatically on impact. If they did not couple, and if they did not couple because of some other reason * * * then there is no liability in this case.' Defendant's counsel, in using the model, explained his position: If 'This lock was held up so that the knuckle would not lock back, it was closed, tell me, ladies and gentlemen, would this knuckle be opened or closed following the accident? Well, obviously, if the failure of the coupling to make was because the knuckle was not locked closed, it would have to be open following the accident, and Millikan testified that the knuckle (an hour after the accident) was not only closed * * * but the pin was seated, the lock was down * * *. Now, the answer to that, ladies and gentlemen, is the only possible answer * * * this knuckle was closed when the Pennsylvania car was kicked down on the Rock Island car.' Plaintiff's counsel countered: 'I don't say, and never told you, never will, nor will the Court, that if there is merely separation of cars, plaintiff shall recover. I simply told you, if there is a separation of cars after those devices were put in operation and did not operate, then they failed to perform their duty, regardless of how they operated before or since, and that we do not have to prove—and the Court will tell you that emphatically any defect.' As to whether the knuckle was opened, there was this argument by plaintiff's counsel: 'Now, let me ask you, did Tielker (the head switchman) open that knuckle or not open it? He says that when he went to open that knuckle, he had difficulty in opening it—he had to push it three times, when it failed to open the first time, showing something was stuck. 'This bad-order card—remember this is on the front end of it and that is car Pennsylvania 727512. * * * they find that bent operating lever rod, or bent operating lever bracket, don't they? They find that themselves. This is their card, this is their record. 'What does this card do then that I have in my hand? What does it do? It confirms Tielker, doesn't it?'

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339 U.S. 103 70 S.Ct. 495 94 L.Ed. 691 HIATT, Warden,v.BROWN. No. 359. Argued Feb. 6—7, 1950. Decided March 13, 1950. Rehearing Denied April 17, 1950. See 339 U.S. 939, 70 S.Ct. 672. Consistent interpretation of Article of War by the Army as vesting a discretion in appointing authority as to availability of a member of the Judge Advocate General's Department for appointment as law member of a general court-martial was entitled to great weight in determination by Supreme Court of the meaning of the article. Articles of War, art. 8, 10 U.S.C.A. § 1479. Exercise of discretion conferred on appointing authority by Article of War in matter of designating a member of the Judge Advocate General's Department as law member for general court-martial could be reviewed by courts only if gross abuse of that discretion would have given rise to a defect in jurisdiction of the court-martial. Articles of War, art. 8, 10 U.S.C.A. § 1479. Under Article of War requiring that law member of general court-martial be an officer of Judge Advocate General's Department unless one was not available for the purpose, neither appointment of officer from Judge Advocate General's Department to a capacity other than law member on court nor reassignment of that officer to other duty at time of trial disclosed abuse of discretion. Articles of War, art. 8, 10 U.S.C.A. § 1479. Where court-martial had jurisdiction of accused and of offense of murder charged, and acted within its lawful powers, correction of any errors was for the military authorities and it was improper for Court of Appeals to extend its review, for purpose of determining compliance with due process of law, to such matters as propositions of law set forth in Staff Judge Advocate's report, sufficiency of evidence to sustain conviction, adequacy of pretrial investigation, and competency of law member and defense counsel. Articles of War, arts. 8, 92, 10 U.S.C.A. §§ 1479, 1564; 28 U.S.C.A. § 1254(1); U.S.C.A.Const. Amend. 5. [Syllabus from pages 103-105 intentionally omitted] Mr. Stanley M. Silverberg, Washington, D.C., for petitioner. Mr. Walter G. Cooper, Atlanta, Ga., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 Respondent, while serving as an enlisted soldier in the United States Army in Germany, was convicted by a general court-martial of committing murder on December 25, 1946, in violation of the 92d Article of War, 41 Stat. 805, 10 U.S.C. § 1564, 10 U.S.C.A. § 1564. The sentence imposed was dishonorable discharge, forfeiture of all pay and allowances, and life imprisonment, which was reduced to twenty years upon recommendation of the Judge Advocate General. On petition for a writ of habeas corpus, the District Court for the Northern District of Georgia ordered respondent discharged from the federal penitentiary in Atlanta, 81 F.Supp. 647 (1948), and the Court of Appeals for the Fifth Circuit affirmed, one judge dissenting. 175 F.2d 273, 277 (1949). Both the District Court and the Court of Appeals concluded that the military tribunal which convicted respondent was improperly constituted and lacked jurisdiction of the offense. The Court of Appeals held further that the record was 'replete with highly prejudicial errors and irregularities' which deprived respondent of due process of law under the Fifth Amendment and afforded an independent ground for sustaining the writ. We brought the case here, on petition of the warden having custody of respondent, in view of the importance of the decision below in the administration of military justice. 1949, 338 U.S. 890, 70 S.Ct. 239. Our jurisdiction to review the judgment of the Court of Appeals is under 28 U.S.C. § 1254(1), 28 U.S.C.A. § 1254(1).1 2 Respondent was tried in Germany on January 9 and 14, 1947, before a general court-martial which had been appointed by order of the commanding general of the Continental Base Section, European Theatre, on December 7, 1946. The detail appointed was comprised of a trial judge advocate and two assistant trial judge advocates, defense counsel and two assistant defense counsel, the law member and twelve other officers. The ranking officer of the detail, a Colonel of the Field Artillery with twenty-five years of commissioned service, was appointed law member. The only member of the detail appointed from the Judge Advocate General's Department was a captain who was designated an assistant trial judge advocate.2 He was absent from respondent's trial on verbal orders of the commanding general. 3 The Court of Appeals determined that under these circumstances the court-martial had been appointed in disregard of the 8th Article of War, 41 Stat. 788, 10 U.S.C. § 1479, 10 U.S.C.A. § 1479. The relevant provision of this article as in force at the time of respondent's trial is set forth in the margin.3 The article was interpreted by the Court of Appeals as requiring, 'certainly in times of peace, that the presence of a duly qualified law member from the Judge Advocate General's Department be made a jurisdictional prerequisite to the validity of such court-martial proceeding, except in the single instance where such officer is actually, and in fact, 'not available." 175 F.2d at page 276. The Court of Appeals held that the availability of a law member from the Judge Advocate General's Department was conclusively indicated by the order detailing an officer from that department in another capacity without any explanation. Thus the court concluded that the proceeding was void. 4 We are unable to agree with the Court of Appeals that this record discloses any disregard of the 8th Article of War in the appointment of the tribunal which convicted respondent. 5 Under the interpretation placed on the 8th Article by the court below, an officer from the Judge Advocate General's Department was 'available' for appointment as law member if he was appointed on the detail in another capacity and nothing otherwise appeared to negative his availability as law member. The article has been construed differently by the Court of Appeals for the Second Circuit in Henry v. Hodges, 1948, 171 F.2d 401. In that case, in which the interpretative issue was similarly raised on petition for habeas corpus, one officer from the Judge Advocate General's Department had been appointed trial judge advocate and a second designated counsel for another accused. The court through Judge Learned Hand declared: 6 'There remains the * * * question * * * whether any member of the Judge Advocate General's Department was 'available' at the time. We cannot say that it was not more in the interest of justice to detail Beatty to defend Feltman than to put him on the court; or that it was not better judgment to make Swan a prosecutor than a judge * * *. The whole question is especially one of discretion; and, if it is ever reviewable, certainly the record at bar is without evidence which would justify a review. The commanding officer who convenes the court must decide what membership will be least to the 'injury of the service,' and what officers are 'available.' 'Available' means more than presently 'accessible'; it demands a balance between the conflicting demands upon the service, and it must be determined on the spot.' 171 F.2d at page 403. 7 We agree with the latter interpretation that the availability of an officer as law member was intended by Congress to be a matter within the sound discretion of the appointing authority. Ordinarily the 'availability' of military personnel who are subject to assignment by an appointing authority is understood to depend upon a discretionary determination by the superior. Cf. Kahn v. Anderson, 1921, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469; Swaim v. United States, 1897, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823; Mullan v. United States, 1891, 140 U.S. 240, 11 S.Ct. 788, 35 L.Ed. 489; Martin v. Mott, 1827, 12 Wheat. 19, 6 L.Ed. 537. Moreover, the phrase adopted in the 8th Article, 'available for the purpose,' expresses a clear intent that the concept of availability should include the exercise of discretion by the appointing authority.4 8 The 8th Article has also been consistently interpreted and applied by the Army as vesting a discretion in the appointing authority, which when exercised is conclusive in determining not only the accessibility of personnel but also the suitability of the officer detailed as the law member of a general court-martial. CM 231963, Hatteberg, 18 B.R. 349, 366—369 (1943); CM ETO 804, Ogletree, 2 B.R. (ETO) 337, 346 (1943); CM 209988, Cromwell, 9 B.R. 169, 196 (1938); Digest of Opinions of The Judge Advocate General (1912—1940) § 365(9). This established interpretation is entitled to great weight in our determination of the meaning of the article. Cf. United States ex rel. Hirshberg v. Cooke, 1949, 336 U.S. 210, 216, 69 S.Ct. 530, 533. 9 The exercise of the discretion thus conferred on the appointing authority may be reviewed by the courts only if a gross abuse of that discretion would have given rise to a defect in the jurisdiction of the court-martial.5 However, we need not determine at this time whether the provision of the 8th Article relied upon below imposed a requirement going to the jurisdiction of the court-martial, for nothing in the record here involved indicates that the discretion of the appointing authority was improperly exercised. Clearly no abuse is disclosed by the appointment of an officer from the Judge Advocate General's Department to a capacity other than law member on the detail, or by reassignment of that officer to other duty at the time of trial, or by the standard of competence in legal matters shown by the law member at the trial. 10 The Court of Appeals also concluded that certain errors committed by the military tribunal and reviewing authorities had deprived respondent of due process.6 We think the court was in error in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate's report, the sufficiency of the evidence to sustain respondent's conviction, the adequacy of the pretrial investigation, and the competence of the law member and defense counsel. Cf. Humphrey v. Smith, 1949, 336 U.S. 695, 69 S.Ct. 830. It is well settled that 'by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial * * *. The single inquiry, the test, is jurisdiction.' In re Grimley, 1890, 137 U.S. 147, 150, 11 S.Ct. 54, 34 L.Ed. 636. In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision. Application of Yamashita, 1946, 327 U.S. 1, 8-9, 66 S.Ct. 340, 344, 345, 90 L.Ed. 499; Swaim v. United States, supra, 165 U.S. at page 562, 17 S.Ct. at page 451, 41 L.Ed. 823. 11 It results that the judgment is reversed. 12 Reversed. 13 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 14 Mr. Justice BURTON, concurring. 15 I concur on the ground that the clause in the 8th Article of War, which deals with the availability of an officer of the Judge Advocate General's Department and is here at issue, is purely directory, and not jurisdictional. The 8th Article, in any event, calls for the appointment as the law member of a general court-martial of an officer meeting certain specifications. He must be either an officer of the Judge Advocate General's Department or he must be selected by the appointing authority as specially qualified for his duties. The unavailability of an officer of the Judge Advocate General's Department merely opens the field of eligibility to other branches of the service. 16 It may be assumed that, when the general court-martial involved in this case was appointed, it was a jurisdictional requirement that there be a law member appointed to it. It also may be assumed that it was a jurisdictional requirement that, if the appointing authority determined that no officer of the Judge Advocate General's Department was then 'available for the purpose,' such authority was restricted to the appointment of 'an officer of some other branch of the service selected by (him) * * * as specially qualified to perform the duties of law member.' (Emphasis supplied.) If the officer who was appointed met neither requirement, it may be assumed that the court-martial would have been without jurisdiction. If, however, as in this case, it is not questioned that the law member met the second requirement, I believe that we should not permit a review here of the discretion used by the appointing authority in determining the preliminary administrative question of whether or not an officer of the Judge Advocate General's Department was 'available for the purpose.' We should not permit it, even if it is alleged that the appointing authority's discretion in this regard was grossly abused. That detail was a matter within his administrative responsibility and should not be available as a basis for collateral attack upon the jurisdiction of an otherwise qualified and competent general court-martial. 1 Respondent contends that this Court lacks jurisdiction to review a court of appeals' judgment ordering discharge of a prisoner or affirming such an order, in view of the omission from revised Title 28 of any provision comparable to former § 463(c) which expressly authorized review of such judgments on certiorari. We think this contention is without merit in view of the broad provision of § 1254 that 'Cases in the courts of appeals may be reviewed by the Supreme Court * * * (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case * * *.' 2 The Court of Appeals stated in its opinion that two officers of the Judge Advocate General's Department were appointed to the detail. However, the record indicates that only one of those mentioned below was appointed from that department. 3 'The authority appointing a general court-martial shall detail as one of the members thereof a law member, who shall be an officer of the Judge Advocate General's Department, except that when an officer of that department is not available for the purpose the appointing authority shall detail instead an officer of some other branch of the service selected by the appointing authority as specially qualified to perform the duties of law member. * * *' 41 Stat. 788, 10 U.S.C. § 1479, 10 U.S.C.A. § 1479. The 8th Article was amended substantially in 1948, 62 Stat. 628 629. See note 5, infra. 4 The relevant legislative history of the provision of the 8th Article relating to the law member supports this interpretation. Prior to the adoption of the 8th Article of War in 1920, military law did not provide for the service of a law member on a court-martial. Under the impetus for reform following World War I, the original draft of what became the 8th Article provided that every general court-martial should have a judge advocate whose duties were to be similar to those of the 'law member,' as finally provided for. The proposed Article would have provided further that such judge advocate of the court be a member of the Judge Advocate General's Department or an officer whose qualifications were approved by the Judge Advocate General. Hearings on S. 64, Subcommittee of the Senate Committee on Military Affairs, 66th Cong., 1st Sess., p. 5. The proposed Article was, however, abandoned for the provisions of the 8th Article. See 18 B.R. 349, 366—367 (1943). 5 The 8th Article of War, as in force since February 1, 1949, expressly imposes as a jurisdictional requirement that the law member be an officer from the Judge Advocate General's Department or an officer whose qualification for such detail has been certified by the Judge Advocate General. 62 Stat. 628—629. 6 The following instances of error in the military proceedings were cited by the Court of Appeals: '(1) Accused was convicted on the theory that although he was on duty as a sentry at the time of the offense, it was incumbent upon him to retreat from his post of duty. '(2) Accused has been convicted of murder on evidence that does not measure to malice, premeditation, or deliberation. '(3) The record reveals that the law member appointed was grossly incompetent. '(4) There was no pre-trial investigation whatever upon the charge of murder. '(5) The record shows that counsel appointed to defend the accused was incompetent, gave no preparation to the case, and submitted only a token defense. '(6) The appellate reviews by the Army reviewing authorities reveal a total misconception of the applicable law.' 175 F.2d at page 277.

12

339 U.S. 157 70 S.Ct. 545 94 L.Ed. 731 STANDARD-VACUUM OIL CO.v.UNITED STATES. No. 18. Argued Oct. 13, 1949. Decided March 27, 1950. Mr. Albert R. Connelly, New York City, for petitioner. Mr. Newell A. Clapp, Washington, D.C., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 On December 5, 1947, petitioner filed suit in the Court of Claims to recover just compensation for certain of its properties in the Philippine Islands which the United States had allegedly requisitioned for military purposes. On March 24, 1948, petitioner filed an amended petition, including for the first time the claims here involved, the Seventh and the Fifteenth. A second amended petition was filed June 1, 1948. In the Seventh claim of the amended petition, petitioner alleged that the United States on or about December 18, 1941, requisitioned and took certain petroleum products and other personal and real property of petitioner located in the Philippine Islands. The Fifteenth claim of the amended petition contained an allegation, inter alia, that during the period from December, 1941 to January, 1942, respondent took and disbursed certain other petroleum products of petitioner located at another place in the Philippine Islands.1 In the interim between the filing of the first and the second amended petitions, on April 12, 1948, the United States had filed a motion to dismiss the Seventh and Fifteenth claims on the ground that it appeared on the face of the amended petition that the claims sued upon each accrued more than six years prior to the filing of the amended petition, that the claims were therefore barred by § 156 of the Judicial Code,2 and the Court of Claims was without jurisdiction to hear said claims. The court allowed this motion to stand directed against the second amended petition. After hearing argument, the court sustained the motion to dismiss, and did dismiss the Seventh and Fifteenth claims. 80 F.Supp. 657, 658, 112 Ct.Cl. 137. We granted certiorari, 336 U.S. 935, 69 S.Ct. 745, on the assumption that the record presented the question whether deprivation of access to information bearing on the existence of petitioner's claims during the Japanese occupation of the Philippine Islands could or did affect the operation of the six-year statute. But since the record does not properly present that question, we cannot answer it. 2 The case reaches us upon pleadings that allege only the fact of taking in 1941 and 1942, more than six years before the Seventh and Fifteenth claims were filed by petitioner. We do not intimate that any facts could have the effect of relieving petitioner from the limitation of the statute, nor what facts should be alleged that could have that effect. 3 It might be assumed in favor of petitioner's pleadings what is judicially known, that the Japanese were, for all practical purposes, in complete control of the Philippine Islands by May 1942 and continued in control until sometime subsequent to October 1944, when the United States Army returned. But it cannot be assumed that petitioner was deprived of information about its property before and during that period. The pleadings do not so inform, and certainly a court could not know judicially the facts of petitioner's information or lack of information. Then there is the period from the United States reoccupation in 1945 to March 24, 1948. With respect to this period of United States control of the Islands, nothing is alleged by petitioner concerning its deprivation of or access to information about the taking of its property at the times set forth in the claims. 4 True, the discussion of petitioner's claims seems to have been at large before the Court of Claims as to the information or lack of information petitioner had concerning its claims and as to the effect such information or lack thereof might have had upon petitioner's right to file the claims more than six years after they accrued. The majority opinion of the Court of Claims recites: 5 'Plaintiff alleges that because of the loss and destruction of its records proper claims could not be filed until the Japanese occupation had ended and opportunity had to reconstruct statistically the properties, stocks, equipment, etc., owned by it at the time of requisitioning or destruction.' 80 F.Supp. at 658, 112 Ct.Cl. at 139. 6 There are no such allegations in the amended petition. What allegations there are in the petition bring the case squarely within the statute, which denies the Court of Claims power to entertain an action brought more than six years after the action accrues. 7 Thus the case was decided not only upon what was alleged in the pleadings but upon other allegations as well, as to which no clear inkling appears in the record. Because the Court of Claims considered these additional allegations, it is urged that we should also consider them. But we cannot consider such allegations in determining the sufficiency of the cause stated. After all, pleadings and the making of a proper record have not been dispensed with. They still have a function to perform. This case points up that function. We will not review questions not clearly raised on the record. 8 Since it is apparent that facts were considered by both the Court of Claims and counsel that were not in the pleadings, and the court's opinion and judgment take cognizance of such facts, the judgment is vacated and the cause is remanded. The Court of Claims may permit further pleadings if in the court's discretion such further pleadings seem proper and just. If permission to plead further is denied, or if petitioner fails to plead further should permission be granted, the cause shall be dismissed. 9 It is so ordered. 10 Judgment vacated and cause remanded. 11 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 This portion of the Fifteenth claim is hereafter referred to as the Fifteenth claim. 2 'Every claim against the United States cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court * * * within six years after the claim first accrues. * * *' 36 Stat. 1139, 28 U.S.C. § 262, now 62 Stat. 976, 28 U.S.C. § 2501, 28 U.S.C.A. § 2501.

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339 U.S. 162 70 S.Ct. 519 94 L.Ed. 734 DENNISv.UNITED STATES. No. 14. Argued Nov. 7, 1949. Decided March 27, 1950. Rehearing Denied May 1, 1950. See 339 U.S. 950, 70 S.Ct. 799. Mr. George W. Crockett, Jr., Washington, D. C., for petitioner. Mr. Philip B. Perlman, Sol. Gen., Washington, D. C., for respondent. [Argument of Counsel from page 163 intentionally omitted] Mr. Justice MINTON delivered the opinion of the Court. 1 The question we have for determination here is whether a challenge for cause to jurors on voir dire because of employment by the Federal Government should have been sustained under the circumstances of this case. 2 Petitioner was convicted of violating R.S. § 102, 2 U.S.C. § 192, 2 U.S.C.A. § 192, for willfully failing to appear before the Committee on Un-American Activities of the House of Representatives in compliance with a subpoena duly served upon him. The Court of Appeals affirmed, 84 U.S.App.D.C. 31, 171 F.2d 986. We granted certiorari limited to the question whether Government employees could properly serve on the jury which tried petitioner. 337 U.S. 954, 69 S.Ct. 1527. 3 Petitioner voluntarily appeared before the House Committee on Un-American Activities which had under consideration two bills to outlaw the Communist Party. Petitioner was and is General Secretary of the Communist Party of the United States. On his voluntary appearance before the Committee, petitioner refused to answer questions as to his name and the date and place of his birth. The Chairman of the Committee directed that a subpoena be served forthwith upon petitioner, requiring him to appear before the Committee on April 9, 1947. On the appointed date petitioner sent a representative but did not appear in accordance with the subpoena. The Committee reported his refusal to appear to the House of Representatives, and the House adopted a resolution certifying the report of the Committee to the United States Attorney for the District of Columbia. Petitioner was subsequently indicted. 4 When the case was called for trial, petitioner made a motion for transfer upon the ground that he could not obtain a fair and impartial trial in the District of Columbia. In his affidavit supporting the motion, he posited this contention mainly on the ground that Government employees, who comprise a large part of the District's population, are subject to Executive Order 9835, 5 U.S.C.A. § 631 note, 12 Fed.Reg. 1935, providing standards for their discharge upon reasonable grounds for belief that they are disloyal to the Government of the United States. He argued that Government employees would be afraid to risk the charge of disloyalty or possible termination of employment which would allegedly flow from a vote for acquittal. The motion for a transfer was denied. 5 Both sides conducted further voir dire examination at the conclusion of the court's questioning of the panel. Attorney for petitioner questioned individually each member of the panel who indicated that he was employed by the Government. He then challenged for cause all Government employees. The court denied the challenge. Petitioner exercised two of his three peremptory challenges against Government employees. He exhausted all his peremptory challenges. Seven of the twelve finally selected were Government employees. Each of the seven expressed the belief that he could render a fair and impartial verdict. 6 Is petitioner entitled to a new trial because his challenge to the Government employees for cause was not sustained? The question of the presence of Government employees on District of Columbia juries is not a new controversy. It has been before this Court on three previous occasions. Crawford v. United States, 212 U.S. 183, 29 S.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392; United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78; Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201. In the Crawford case the defendants were charged with a conspiracy to defraud the United States. The Court held that the statute prescribing the eligibility of jurors in the District of Columbia did not control the subject. The Court turned to the common law in force in Maryland when the District was formed, and found that a servant was subject to challenge for cause at common law where the master was party to the case on trial. In such a case, bias would be implied as a matter of law. The Court concluded that it was error to deny a challenge for cause to a Government employee in a case to which the Government was a party. 7 In 1935 Congress, prompted by the paucity of qualified jurors which resulted from the Crawford decision, passed an Act redefining eligibility for jury service in the District of Columbia. After exempting certain classes, the Act provided: 'All other persons, otherwise qualified according to law whether employed in the service of the Government of the United States or of the District of Columbia * * * shall be qualified to serve as jurors in the District of Columbia and shall not be exempt from such service * * *.' 49 Stat. 682, D.C. Code, § 11-1420 (1940). 8 The constitutionality of this Act was sustained in United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78, where the defendant was charged with petty larceny from a private corporation. The defendant contended that the presence of Government employees on the jury denied the right of trial by an impartial jury within the meaning of the Sixth Amendment to the Constitution of the United States. He pointed out that under the common law as expounded by Blackstone, a King's servant and therefore a Government employee could not serve on a jury, and he argued that this view was carried into the Sixth Amendment. 9 Chief Justice Hughes, speaking for the Court, meticulously examined the problem. He found that Blackstone's statement of disqualification had reference only to servants of private parties, and that there was no established practice with respect to the King's servants at common law. The Court was of the view that even if such a common law disqualification existed, Congress had power to remove it. Unlike the statute in the Crawford case, the 1935 Act left no doubt that Congress intended to qualify Government employees as jurors. The constitutionality of such a declaration was presented for the first time. The opinion carefully emphasized that the Act left accused persons free to show the existence of actual bias. Only the question of implied bias was presented. The Court concluded that the guarantee of an impartial jury was not impaired, stating: 'It is manifest that the act was passed to meet a public need and that no interference with the actual impartiality of the jury was contemplated. The enactment itself is tantamount to a legislative declaration that the prior disqualification was artificial and not necessary to secure impartiality. * * * To impute bias as matter of law to the jurors in question here would be no more sensible than to impute bias to all storeowners and householders in cases of larceny or burglary.' United States v. Wood, supra, 299 U.S. at pages 148-149, 150, 57 S.Ct. at pages 186, 187, 81 L.Ed. 78. 10 Only last term in Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, the problem of jury service by Government employees was reexamined. There the defendant was tried and convicted of violating the Narcotics Act, 26 U.S.C.A. § 2550 et seq., by a jury of the District of Columbia composed entirely, due to circumstances fortuitous or otherwise, of Federal Government employees. Mr. Justice Rutledge, speaking for the Court, reexamined the rule of the Wood case that Government employees are not disqualified as a matter of law from serving on a jury in a case to which the Government is a party. Government employees were again held to be subject to challenge only for 'actual bias.' 11 It would be a work of supererogation to attempt to clarify the statement of the law after the Wood and Frazier cases. Some may doubt the wisdom of the Court's decision in laying down the rule, but there can be no doubt that this Court has spoken very clearly, not only once, but twice. 12 No question of actual bias is before us. The way is open in every case to raise a contention of bias from the realm of speculation to the realm of fact. In both the Wood and Frazier cases this Court stressed that while impaneling a jury the trial court has a serious duty to determine the question of actual bias, and a broad discretion in its rulings on challenges therefor. United States v. Wood, supra, 299 U.S. at pages 133-134, 150, 57 S.Ct. at pages 179, 187, 81 L.Ed. 78; Frazier v. United States, supra, 335 U.S. at pages 511-512, 69 S.Ct. at page 209. We reaffirm those principles. In exercising its discretion, the trial court must be zealous to protect the rights of an accused. And we agree that this the court must do without reference to an accused's political or religious beliefs, however such beliefs may be received by a predominant segment of our population. Ideological status is not an appropriate gauge of the high standard of justice toward which our courts may not be content only to strive. But while one of an unpopular minority group must be accorded that solicitude which properly accompanies an accused person, he is not entitled to unusual protection or exception. 13 Petitioner asserts that in order to secure the constitutional guarantee of trial by an impartial jury all Government employees must be held, in the special circumstances of this case, to be biased as a matter of law. It is not contended that bias appears as a fact from the record. As far as it appears, the court was willing to consider any evidence which would indicate that investigatory agencies of the Government had recognized in the past or would take cognizance in the future of a vote of acquittal, but no such proof was made. Nor was there evidence with respect to the existence of a climate of opinion among Government employees that they would jeopardize their tenure or provoke investigation by such a verdict. Rather petitioner asks that bias be implied from the recitation of the following circumstances: He is a Communist; the instigator of the charges is the Un-American Activities Committee which allegedly would take notice of a vote for acquittal; the issue in the case is contempt of Congress; in contempt cases the Government's interest is the vindication of a direct affront, as distinguished from its role in an ordinary prosecution. But petitioner primarily bases his case on a request, in effect, that judicial notice be taken of an aura of surveillance and intimidation which is said to exist in the District because of Executive Order 9835, outstanding at the time of the trial. 14 The 'Loyalty Order,' as it is popularly known, requires the investigation of all persons entering civilian employment with the United States; as to those already in service, heads of departments and agencies are charged with the duty of making certain that disloyal persons are not retained. Petitioner maintains that because of this Order, Government employees would be hesitant to vote for acquittal because such action might be interpreted as 'sympathetic association' with Communism. 15 Of course, the Loyalty Order could be the subject of judicial notice. Such notice, however, would give only limited illumination. It is proper to observe that the Loyalty Order is not directed solely against Communists, and that the crime of which petitioner was convicted is not a crime peculiar to Communists. Further, the Loyalty Order preceded the instant trial only by about three months. It was promulgated by the President on March 21, 1947. This trial began on June 23, 1947, and was concluded on June 26, 1947. On May 9, 1947, the President submitted to Congress a request for an appropriation to carry out the Loyalty Order,1 which was not enacted into law until July 31, 1947.2 It was not until August 18, 1947, that Standard Form 84, requesting certain pertinent information from each federal employee, was made available.3 16 The administrative implementation of Executive Order 9835, which was yet to come, was apparently not the subject of anticipatory fear by these jurors. Their answers to interrogatories on the influence of the Loyalty Order were categorically to the contrary.4 We must credit these representations, and this is particularly so in the absence of any evidence which would indicate an opposite opinion among Government employees. One may not know or altogether understand the imponderables which cause one to think what he thinks, but surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter. 17 Ultimately, petitioner's contentions amount to this: Since he is a Communist, in view of all the surrounding circumstances an exception must be carved out of the rule laid down in the statute, and construed in Wood and Frazier, that there is no implied bias by reason of Government employment. Thus the rule would apply to any one but a Communist tried for contempt of a congressional committee, but not to a Communist. We think the rule in Wood and Frazier should be uniformly applied. A holding of implied bias to disqualify jurors because of their relationship with the Government is no longer permissible. The Act makes no exception for distinctive circumstances. It states that: 'All * * * persons * * * whether employed in the service of the government of the United States or of the District of Columbia * * * shall be qualified to serve as jurors in the District of Columbia and shall not be exempt from such service * * *.' Preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury. We adhere to our holding that the enactment of the statute is within the power of Congress, and that therefore employees of the Federal Government are not challengeable solely by reason of their employment. 18 It follows that we are unable to conclude that the failure to sustain the challenge for cause denied petitioner an 'impartial jury.' 'Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.' United States v. Wood, supra, 299 U.S. at pages 145-146, 57 S.Ct. at page 185, 81 L.Ed. 78. In this case, no more than the trial court can we without injustice take judicial notice of a miasma of fear to which Government employees are claimed to be peculiarly vulnerable—and from which other citizens are by implication immune. Vague conjecture does not convince that Government employees are so intimidated that they cringe before their Government in fear of investigation and loss of employment if they do their duty as jurors, which duty this same Government has imposed upon them. There is no disclosure in this record that these jurors did not bring to bear, as is particularly the custom when personal liberty hinges on the determination, the sense of responsibility and the individual integrity by which men judge men. 19 The judgment is affirmed. 20 Affirmed. 21 Mr. Justice REED concurs in the opinion and judgment of the Court. 22 He reads the Court's decision to mean that Government employees may be barred for implied bias when circumstances are properly brought to the court's attention which convince the court that Government employees would not be suitable jurors in a particular case. Absent such a showing, however, Government employees may not be barred from jury service merely because they are Government employees. 23 Mr. Justice DOUGLAS and Mr. Justice CLARK took no part in the consideration or decision of this case. 24 Mr. Justice JACKSON, concurring in the result. 25 In but two ways could the Court avoid affirming the conviction of Dennis. One is to rescind the general rule established in Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, that a jury is, in contemplation of law 'impartial,' even when entirely composed of government employees. The other is to retain, and thereby strengthen, that general rule but create a special exemption for Communists. 26 I adhere with increasing conviction to my dissent in Frazier v. United States, supra, 335 U.S. at page 514, 69 S.Ct. at page 210. The Court there dug a pit dangerous for civil liberties. The right to fair trial is the right that stands guardian over all other rights. Reference to the reports will show what otherwise one would not believe: that the Court, by a bare majority, held it to be entirely fair to try a person before a jury consisting solely of government employees, plus the fact that one juror and the wife of another worked in the office of the department head responsible for enforcement of the law charged to be violated. The common instinct of men for fair dealing and the experience of trial lawyers alike reject this holding. Whenever any majority can be mustered to overrule that weird and misguided decision, I shall be one of it. 27 But the way for the Court to get out of the hole it fell into with Frazier is not to dig another and worse one. We are actually urged to hold that the kind of jury a defendant may have depends upon his political opinions or affiliations. The offense for which Dennis was tried was contempt of a Committee of Congress. That is not an offense that touches the immediate security of the Nation. Nor does guilt or innocence depend upon defendant's political views or party membership. Of course, he is, and the jury was bound to learn that he is, a prominent figure in the Communist Party. But the same acts would be the same offense if he were an orthodox Democrat. The sole ground for creating an exemption from the Frazier rule is that the defendant is a Communist, and Communists are now exceedingly unpopular in Washington. I agree that this highlights the unfairness of the Frazier rule and provides reason for overruling it; but I do not agree that it justifies the proposed exception to that decision. 28 The Frazier doctrine was promulgated by a majority of the Court which well knew that its rule would apply to this type of case and in these times. That decision was handed down on December 20, 1948, with this present case just around the corner. Dennis had already been convicted and his conviction had been affirmed in highly publicized proceedings occurring only a few city blocks from us; and his petition for certiorari had been filed in this Court. The four of us dissenting in Frazier warned specifically that the Government in these times is using its power as never before to pry into lives and thoughts of government employees. All that is urged now is more of the same and there is nothing in this situation that should not have been within the contemplation of the Court when the Frazier case was decided the way it was. The proposal now is a partial repeal—for Communists only. 29 Courts should give to a Communist every right and advantage that they give to any defendant. But it is inconceivable that being a Communist can entitle a defendant to more. Let us picture the proposal in operation. Two defendants are brought to trial for contempt of Congress. One, a Communist, has defied the UnAmerican Activities Committee. The other, a Republican, has defied the Committee investigating the State Department. Both make well-founded claims that the Executive branch of the Government is hostile to them; both ask to exclude its employees from the jury so they may be tried by persons under no obligation to their adversaries. The proposal is that the trial judge should grant the motion of the Communist and deny that of the Republican! What then becomes of equal justice under law? 30 It is true that Communists are the current phobia in Washington. But always, since I can remember, some group or other is being investigated and castigated here. At various times it has been Bundists and Germans, Japanese, lobbyists, tax evaders, oil men, utility men, bankers, brokers, labor leaders, Silver Shirts and Fascists. At times, usually after dramatic and publicized exposures, members of these groups have been brought to trial for some offense. I think that none of them at such times ever should be forced to defend themselves against the Government's accusations before the Government's employees. But so long as accused persons who are Republicans, Dixiecrats, Socialists, or Democrats must put up with such a jury, it will have to do for Communists. 31 Mr. Justice BLACK, dissenting. 32 The petitioner, Dennis, was convicted of wilfully refusing to give testimony before the House Committee on Un-American Activities. The evidence against him was exceptionally strong. But no matter how strong that evidence, he had a constitutional right to have it passed on by an impartial jury.1 No juror can meet the test of 'impartiality' if he has good reason to fear that a vote for acquittal would subject him to harassing investigations and perhaps cost him his job. On this ground the government employees called for jury duty were challenged for cause by petitioner. I am convinced that denial of this challenge deprived Dennis of an impartial jury. 33 Although each juror asserted that he or she could vote for acquittal without fear of adverse consequences, that cannot be accepted as conclusive evidence of impartiality. The test of bias sufficient to exclude a juror for cause is not what the particular juror believes he could do. Long ago Chief Justice Marshall ruled that a person 'may declare that he feels no prejudice in the case; and yet the law cautiously incapacitates him from serving on the jury because it suspects prejudice, because in general persons in a similar situation would feel prejudice.' 25 Fed.Cas. at page 50, No. 14,692g. 1 Burr's Trial 414. And this Court, while recognizing that persons of the 'highest honor and greatest self-sacrifice' would not be influenced by fear of financial losses, has said that 'every procedure which would offer a possible temptation to the average man as a judge * * * not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law.' Tumey v. State of Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749, 50 A.L.R. 1243.2 34 We did not depart from the 'average man' test in United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78, or Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201. Those cases involved convictions for theft and dope-peddling. They did hold that proof of mere governmental employment was not enough, standing alone, automatically to impute disqualifying bias in every criminal proceeding brought by the Federal Government. But both opinions clearly indicated that 'particular issues or circumstances' might require exclusion of government employees in order to assure an impartial jury.3 In complete harmony with the principle declared in the Burr and Tumey cases, our Wood opinion cautioned that a government employee could be disqualified if 'in view of the nature or circumstances of his employment, or of the relation of the particular governmental activity to the matters involved in the prosecution, or otherwise, he had actual bias * * *.'4 299 U.S. at page 134, 57 S.Ct. at page 179, 81 L.Ed. 78. And the Frazier opinion emphasized that these factors would support disqualification of government employees for 'actual bias' without proof of 'prejudice in the subjective sense'. 335 U.S. at pages 510-511, n. 19, 69 S.Ct. at page 208. 35 Special circumstances of the type supporting disqualification under these decisions are, in my judgment, clearly shown by this record. The difficulty of securing an impartial jury at all is revealed by the number of potential jurors who felt that Dennis's position as Secretary of the Communist Party in this country would alone prevent their giving him a fair trial.5 And the prevailing pattern of loyalty investigations and threatened purges makes it wholly unrealistic to expect government employees to enter the jury box with that quality of disinterestedness essential to complete impartiality. 36 The reasons urged for disqualifying government employees were first presented to the trial court in an affidavit supporting petitioner's motion for change of venue. The sworn allegations of that affidavit were never denied by the Government. In essence, the affidavit pointed out that all federal employees were under constant scrutiny by various agencies and congressional committees for possible sympathy with Communists or with affiliated organizations; that under Executive Order 9835, issued following vigorous demands by the congressional committee which had initiated the prosecution of Dennis, any of these employees would lose his job if a 'loyalty test' revealed 'reasonable grounds' for belief that he was disloyal; that members of the same committee had stated that anything less than imposition of maximum punishment on Dennis would expose the persons responsible therefor to charges of disloyal sympathy with Communism;6 and that consequently a vote for acquittal would jeopardize the job of any government employee so voting.7 Petitioner again cited the 'loyalty test' in challenging for cause all governmental employees called as jurors, although he did not bother to reargue the facts because his reasons were 'clear to us all.' Thus petitioner called the trial judge's attention to substantial facts in support of his challenges. 37 To say that employees of the United States could meet objective tests of complete impartiality in the trial of cases like this is to disregard human nature. Probably at no period of the nation's history has the 'loyalty' of government employees been subjected to such constant scrutiny and investigation by so many government agents and secret informers. And for the past few years press and radio have been crowded with charges by responsible officials and others that the writings, friendships, or associations of some government employee have branded him 'disloyal.' Government employees have good reason to fear that an honest vote to acquit a Communist or any one else accused of 'subversive' beliefs, however flimsy the prosecution's evidence, might be considered a 'disloyal' act which could easily cost them their job. That vote alone would in all probability evoke clamorous demands that he be publicly investigated or discharged outright; at the very least it would result in whisperings, suspicions, and a blemished reputation. 38 In the Wood case this Court regarded as 'far-fetched and chimerical' the suggestion that no government employee could have voted for acquittal of theft without endangering his job. I agree. But under the circumstances here it seems equally 'farfetched and chimerical' to suggest that government employees, however convinced of innocence, would feel completely free to acquit a defendant charged with disobeying a command of the Committee on Un-American Activities. My belief is that no defendant charged with such an offense, whatever his political affiliation, should be forced to accept a government employee as a juror. Nor should the Government want such an unfair advantage. Of course this advantage makes convictions easier. That is precisely what the Sixth Amendment was designed to prevent. It commands impartiality in the jury-box. Impartiality cannot survive in the shadow of threats to a juror's reputation and livelihood. 39 Mr. Justice FRANKFURTER, dissenting. 40 Acquiescence in a precedent does not require approval of its extension. Although I adhere to the views expressed by Mr. Justice Jackson for the minority in Frazier v. United States, 335 U.S. 497, 514, 69 S.Ct. 201, 210, I do not urge that it be overruled. But in abiding by it I need not assent to enlarging the areas of its undesirability. The constitutional command for trial by an 'impartial jury' casts upon the judiciary the exercise of judgment in determining the circumstances which preclude that free, fearless and disinterested capacity in analyzing evidence which is indispensable if jurymen are to deal impartially with an accusation. The judgment that a court must thus exercise in finding 'disqualification for bias' of persons who belong to a particular class is a psychological judgment. It is a judgment founded on human experience and not on technical learning. And so it does not follow that merely because government employees are not automatically disqualified as jurors in every prosecution in the District of Columbia they should not be disqualified in prosecutions that are deemed to concern the security of the nation. 41 The reason for disqualifying a whole class on the ground of bias is the law's recognition that if the circumstances of that class in the run of instances are likely to generate bias, consciously or unconsciously, it would be a hopeless endeavor to search out the impact of these circumstances on the mind and judgment of a particular individual. That is the reason why the influences of consanguinity or of financial interest are not individually canvassed. Law as a response to life recognizes the operation of such influences even though not consciously or clearly entertained. The appearance of impartiality is an essential manifestation of its reality. This is the basic psychological reason why the Founders of this country gave the judiciary an unlimited tenure. Impartiality requires independence, and independence, the Framers realized, requires freedom from the effect of those 'occasional ill-humors in the society,' which as Alexander Hamilton put it in The Federalist are 'the influence of particular conjunctures.' The Federalist, No. 78 at 400 (Beloff ed. 1948). 42 One of the greatest of judges has assured us that 'Judges are apt to be naif, simple-minded men.' Holmes, Collected Legal Papers 295. Only naivete could be unmindful of the force of the considerations set forth by Mr. Justice BLACK, and known of all men. There is a pervasiveness of atmosphere in Washington whereby forces are released in relation to jurors who may be deemed supporters of an accused under a cloud of disloyalty that are emotionally different from those which come into play in relation to jurors dealing with offenses which in their implications do not touch the security of the nation. Considering the situation in which men of power and influence find themselves through such alleged associations, it is asking more of human nature in ordinary government employees than history warrants to ask them to exercise that 'uncommon portion of fortitude' which the Founders of this nation thought judges could exercise only if given a life tenure. The Federalist, supra. 43 A government employee ought not to be asked whether he would feel free to decide against the Government in cases that to the common understanding involve disloyalty to this country. Questions ought not to be put to prospective jurors that offer no fair choice for answer. Men ought not to be asked in effect whether they are brave or wholly indifferent to the enveloping atmosphere. They should not be asked to confess that they are weaklings nor should it be assumed that they are fully conscious of all the pressures that may move them. They may not know what judges of considerable forensic experience know, that one cannot have confident knowledge of influences that may play and prey unconsciously upon judgment. See, e. g., Mr. Justice Oliver in Rex v. Davies, [1945] 1 K. B. 435, 445. The well-known observations of Mr. Justice Holmes on these psychological influences are here pertinent: 'This is not a matter for polite presumptions; we must look facts in the face. Any judge who has sat with juries knows that, in spite of forms, they are extremely likely to be impregnated by the environing atmosphere.' Frank v. Mangum, 237 U.S. 309, 345, 349, 35 S.Ct. 582, 594, 595, 59 L.Ed. 969. Nor is it irrelevant to note that we are living in a time when inroads have been made on the secrecy of the jury room so that, upon failure to agree, jurors are subjected to harassment to disclose their position in the jury room. Ought we to expose our administration of criminal justice to situations whereby federal employees must contemplate inquisitions into the manner in which they discharged their juror's oath? 44 To conclude that government employees are not disqualified in prosecutions inherently touching the security of the Government, at a time when public feeling on these matters is notoriously running high, because they are not ipso facto disqualified from sitting in a prosecution against a drug addict or a petty thief, is to say that things that are very different are the same. The doctrine of the Frazier case does not require such disregard of the relevant. To recognize the existence of what is characterized as a phobia against a particular group is not to discriminate in its favor. If a particular group, no matter what its beliefs, is under pressure of popular hostility, exclusion of potential jurors peculiarly susceptible to such pressure is not an expression of regard for political opinions but recognition by law of the facts of life. It does not follow that because members of different but respected political parties can sit in judgment upon one another where punishment is involved, all members of such parties, no matter what their relation to an operating bias, can freely and fairly sit in judgment upon those belonging to an ostracized group. 45 Let there be no misunderstanding. To recognize the existence of a group whose views are feared and despised by the community at large does not even remotely imply any support of that group. To take appropriate measures in order to avert injustice even towards a member of a despised group is to enforce justice. It is not to play favorites. The boast of our criminal procedure is that it protects an accused, so far as legal procedure can, from a bias operating against such a group to which he belongs. This principle should be enforced whatever the tenets of the group—whether the old Locofocos or the Know-Nothings, the Ku Klux Klan or the Communists. This is not to coddle Communists but to respect our professions of equal justice to all. It was a wise man who said that there is no greater inequality than the equal treatment of unequals. 46 We are concerned with something far more important than sustaining a particular conviction. Many and conflicting are the criteria by which a society is to be deemed good, but perhaps no test is more revealing than the characteristics of its punitive justice. No single aspect of our society is more precious and more distinctive than that we seek to administer criminal justice according to morally fastidious standards. These reveal confidence in our institutions, respect for reason, and loyalty to our professions of fairness. The powerful claim in behalf of our civilization represented by our system of criminal justice will be vindicated and strengthened if those who in the popular mind appear to threaten the very existence of the Government are tried by citizens other than those in the immediate employ of the Government at the seat of Government. 1 H. R. Doc. No. 242, 80th Cong., 1st Sess. (1947); 93 Cong.Rec. 4977 (1947). 2 61 Stat. 696, 700. See Investigations Subcommittee on Expenditures, Investigation of Federal Employees Loyalty Program, S.Rep.No.1775, 80th Cong., 2d Sess. (1948). 3 Federal Personnel Manual I2-4. In a press release dated November 7, 1947, the Civil Service Commission announced the appointment of the Loyalty Review Board. A statement of the Board with respect to its regulations was published on January 20, 1948. 13 Fed.Reg. 253. 4 'Mr. McCabe: You are familiar with the Government loyalty oath investigation? 'Juror Holford: I believe I am. I have heard something of it. 'Mr. McCabe: Do you feel that rendering a verdict of not guilty in this case, if you come to that conclusion, it would stop you, any criticism or embarrassment among your fellow employees? 'Juror Holford: None whatsoever. 'Mr. McCabe: Or by your superiors? 'Juror Holford: No. 'Mr. McCabe: You would not have any thought that would be taken as evidence of friendliness to communism? 'Juror Holford: No; I am not worried about my job that way.' * * * 'Mr. McCabe: Now, Mr. Jones, you have heard, have you, of the loyalty test or loyalty investigation which is going on to test the loyalty of Government employees? Have you heard of that? 'Mr. Jones: Yes, I have. 'Mr. McCabe: Are you aware of the fact that one of the tests that might disqualify or prevent you from Government employment is friendly association with any Communist person or any Communist organizations? 'Mr. Jones: That would not. I am a Civil Service employee. I have taken an examination for my job. 'Mr. McCabe: Yes. Are you aware of the fact that, despite any Civil Service protection, still a finding that you were in friendly association with any Communist or Communist organization would render you ineligible to continue in your Government position? 'Mr. Jones: It would not. 'Mr. McCabe: What? 'Mr. Jones: It would not.' The replies of the other jurors were in a similar vein. 1 The Sixth Amendment provides that defendants charged with crimes in federal courts 'shall enjoy the right to * * * trial, by an impartial jury'. And see Tumey v. State of Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749, 50 A.L.R. 1243: 'No matter what the evidence was against him, he had the right to have an impartial judge.' This case related to financial interests of a mayor trying defendants, but the principles there declared are equally applicable to jurors who must judge the guilt or innocence of a defendant. 2 See note 1, supra. 3 In the Frazier case one juror and the wife of another were enployed in the Department of Treasury, which was charged with enforcing the anti-narcotic laws. This Court did not decide whether such employment would distinguish these jurors from other government employees sufficiently to support a timely challenge, because the only special challenge raising this ground was belatedly made in a motion for new trial. 4 The Court also stated that bias could not be imputed 'simply by virtue of governmental employment, without regard to any actual partiality growing out of the nature and circumstances of particular cases.' 299 U. S. at 149, 57 S.Ct. at page 187, 81 L.Ed. 78. 5 The difficulty of obtaining an impartial jury in cases where popular indignation is aroused became manifest during World War I. Judge Amidon, a veteran trier of Espionage Act cases, described his experiences as follows: 'For the first six months after June 15, 1917, I tried war cases before jurymen who were candid, sober, intelligent business men, whom I had known for thirty years, and who under ordinary circumstances would have had the highest respect for my declarations of law, but during that period they looked back into may eyes with the savagery of wild animals, saying by their manner, 'Away with this twiddling, let us get at him.' Men believed during that period that the only verdict in a war case, which could show loyalty, was a verdict of guilty.' Quoted in Chafee, Free Speech in the United States 70 (1941Ed.). 6 In this connection the affidavit asserted that committee members 'have stated openly on the floor of the House of Representatives that they demand a prosecution and conviction of, and the imposition of the maximum punishment on this defendant. They have charged that anything less would open the persons responsible therefor to a charge of disloyalty, and sympathy to Communism.' In oral argument on the motion for charge of venue and an accompanying motion for continuances, counsel elaborated on one facet of this charge by reading from the Congressional Record a colloquy between a member of the committee and other congressmen. The substance of the colloquy was that the Attorney General should be impeached unless he obtained quick trials of Dennis and others charged with contempt by the committee. 93 Cong.Rec. 3815, 3816. 7 The affidavit read in part: 'The enormous consequences of the Executive Order referred to above make it absolutely impossible to secure a fair and impartial trial in the District of Columbia for a leader of the Communist Party, particularly when the charge against him is laid by the Committee on Un-American Activities. The finding of disloyalty involves not only discharge from employment but a permanent branding as a disloyal and undesirable person, endangering the possibility of earning a livelihood in the future. No individual can be expected lightly to take the risk of incurring such consequences to himself, his family and his associates. The meaning of 'sympathetic association' is undefined in the Executive Order and there is no assurance that it may not be construed by the Attorney General to include a recognition of the rights of a member of the Communist Party. And even if the Attorney General himself would not so construe it, it is impossible to assume that persons selected for jury duty will run the risk of a charge of sympathy with Communism flowing from voting for an acquittal of so prominent a leader of the Communist Party.'

01

339 U.S. 186 70 S.Ct. 537 94 L.Ed. 750 UNITED STATES et al.v.UNITED STATES SMELTING REFINING & MINING CO. et al. No. 173. Argued and Submitted Feb. 13, 14, 1950. Decided March 27, 1950. Rehearing Denied May 29, 1950. See 339 U.S. 972, 70 S.Ct. 994. Mr. Allen Crenshaw, Washington, D.C., for appellant Interstate Commerce Commission. Mr. Joseph W. Bishop, Jr., Washington, D.C., for appellant The United States. Mr. John F. Finerty, Pittsburgh, Pa., for appellees American Smelting Co. et al. Mr. Otis J. Gibson, Denver, Colo., for appellee Denver and Rio Grande Western Railroad Co. Mr. Elmer B. Collins, Omaha, Neb., for appellee Union Pacific Railroad Co. Mr. Charles A. Horsky, Washington, D.C., for appellee United States Smelting, Refining & Mining Co. Mr. Stanley T. Wallbank, Denver, Colo., for Intervenor Colorado Mining Association. Mr. S. J. Quinney, Salt Lake City, Utah, for Intervenor Utah Mining Association. Mr. Clinton D. Vernon, Salt Lake City, Utah, for Intervenor Public Service Commission of Utah and State of Utah. [Argument of Counsel from page 187 intentionally omitted] Mr. Justice MINTON delivered the opinion of the Court. 1 The Interstate Commerce Commission instituted the proceedings leading to the orders here involved as its Seventy-fifth and Seventy-sixth Supplemental Reports to Ex part 104, Practices of Carriers Affecting Operating Revenues or Expenses, Part II, Terminal Services, 209 I.C.C. 11. The proceedings concerned the switching and spotting services rendered by appellee-carriers at the Garfield and Murray, Utah, and Leadville, Colorado, plants of the American Smelting Company, and the Midvale, Utah, plant of the United States Smelting Company. Extensive hearings were held in these supplemental proceeding for the purpose of determining the respective points at which the carriers' line-haul transportation service ended and the extent of the service the carriers might render in the discharge of their obligation to deliver the freight at these four plants. 2 It will not be necessary to detail the physical characteristics of each of the plants involved here. Each has a receiving yard or interchange tracks upon which incoming and outgoing freight is switched. Beyond the interchange tracks switching services are numerous and extensive within the plants. The Garfield plant may be described as indicative of the situation at all the plants.1 There, frozen ore is handled in six distinct movements. A large amount of intraplant switching is done by the carriers. To perform these switching services at Garfield requires three traincrew shifts daily. In one twelve-month period at this plant, 22,982 carloads of inbound and 6,960 carloads of outbound freight were handled. 3 On October 14, 1946, the Commission entered its first orders in these proceedings, enjoining appellee-carriers from performing switching and spotting service in violation of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq. On petition to the District Court, a statutory three-judge court sitting, the orders were held unlawful. The court was of the opinion that each of the Commission's orders was based on the premise that the line-haul rates did not cover the intraplant services, and held that such a finding was not supported by the evidence. In addition, the court found that the Commission had not 'presumed to exercise the authority which is intended to be conferred under Ex Parte 104 in that the order made is not specifically based upon that authority.' The matter was remanded to the Commission 'for such action as it might find justifiable in the premises,' and the Commission was 'temporarily enjoined from requiring its formal order to be carried into force and effect * * *.' The Commission on remand reopened the case but took no more evidence. It restated the ground for its action and entered cease and desist orders against the carriers. On petition of the appellees, the District Court again held the orders unlawful and permanently enjoined their enforcement. It is from this judgment that the Commission and the United States have appealed. 4 The Commission undertook its general investigation, Ex parte 104, in the interest of establishing a uniform and equal service for shippers. The Commission concluded that carrier obligation for transportation service ends customarily when delivery is made at a convenient point on the siding inside or outside a consignee's plant. This delivery is such as may be accomplished in one continuous movement without 'interruption' occasioned for the convenience of the industry, and is only the equivalent of team track or simple placement switching. In the Commission's view as developed in Ex parte 104, such a convenient delivery point marks the beginning and end of what is termed 'line-haul' transportation, and is the extent of the service which may be performed under the line-haul rate. The Commission's authority to determine the point where transportation duty ends and industry convenience begins was upheld by this Court in United States v. American Sheet & Tin Plate Co., 301 U.S. 402, 57 S.Ct. 804, 81 L.Ed. 1186. We have repeatedly sustained the Commission in its application of Ex parte 104 principles to particular plants where it has prohibited the performance of services beyond the point fixed under a line-haul rate.2 In issuing cease and desist orders in these cases the Commission has acted pursuant to its duty to enforce § 6(7) of the Interstate Commerce Act, which section prohibits departure from filed tariffs and the rendering of preferential services.3 5 As stated, the purpose of these proceedings before the Commission was to determine the beinning and end of line-haul service at appellee-smelters' plants. The next question was whether the service rendered by the carriers conformed to the services delimited by the Commission. Thus the Commission, it its proceedings after remand, was not concerned with the question of whether reasonable rates were in force, as it explained in its second report in the American Smelting Company case: 6 'The question of the reasonableness of published rates or of charges that are or may be fixed for performing industrial services can be decided only in a proceeding brought, or investigation instituted, under different provisions of the act. It is our purpose to make it entirely clear here that our order herein is based solely upon our findings herein, which in turn are based solely upon the principles and authority established with the approval of the Supreme Court in our original and supplemental reports in Ex Parte No. 104, Part II, and that said order is not based in whole or in part upon any conclusions or findings in connection with tariff provisions or testimony as to whether the published rates are reasonable and do or do not include compensation for switching within the plant areas. We hereby repudiate any reference or conclusion to the contrary conveyed by our discussion or evidence relative to such questions and the conclusions based thereon in our prior supplemental report herein.' 270 I.C.C. 362. 7 With that clear and distinct statement of what it was doing and what it was not doing, the Commission made its findings of fact which appear in the margin.4 The essential part of the findings is that line-haul began and ended at the interchange tracks, known as 'assembly yard' at Midvale, the plant of United States Smelting, and the 'plant yuard' at Garfield, 'hold tracks' at Murray, and 'flat yard' at Leadville, the plants of American Smelting; that all services beyond these points were excess services not required of the carrier as part of its line-haul carriage; and that the performance of services beyond these points without compensatory charges results in preferential service in violation of § 6(7). 8 That the Commission is authorized to establish the point where line-haul service begins and ends is not to be doubted. The question, in reviewing the Commission's determination of the convenient points at which line-haul or carrier transportation service begins and ends, is whether such determination is supported by substantial evidence,5 as this Court said in United States v. Wabash R. Co., 321 U.S. 403, 408, 64 S.Ct. 752, 754: 9 'In sustaining the Commission's findings in these proceedings, as in related cases, this Court has held that the point in time and space at which the carrier's transportation service ends is a question of fact to be determined by the Commission and not the courts, and that its findings on that question will not be disturbed by the courts if supported by evidence.' In the instant case there is substantial evidence to support the Commission's findings that the convenient points for the beginning and end of line-haul were at the interchange tracks, more specifically characterized above. The Commission had before it the extensive record of the basic proceeding, which the District Court did not have, together with the instant supplemental proceedings. The Commission's findings were based in part on the testimony of its experts who had made personal surveys and observations of switching and car movements at these plants. It is apparent from the record that extensive intraplant services were performed on instructions of and for the convenience of the appellee-smelters. When a car is followed through its intraplant movements on a map it is demonstrated that extensive services were performed in excess of those which were established as the permissible limit of line-haul in Ex parte 104. The Commission's designation of the convenient delivery points at each of these plants must be sustained. 10 The contention of appellees is that there are now in effect tariffs that compensate for line-haul and plant services. These tariffs will be separately discussed below. Appellees urge that the carriers cannot be guilty of violating § 6(7) when they are fully compensated for carrier services in line-haul and plant services beyond that, since the smelters do not then receive a preferential service not accorded to shippers generally. The corollary of this contention is that to require payment for the plant services in addition to the line-haul rates, in accordance with the Commission's orders, would be to require the smelters to pay twice for the services. 11 This Court has emphasized that the preference involved in these proceedings is based upon an application of the standards derived from Ex parte 104 to the unique conditions at particular plants, a preference necessarily resulting when a service is rendered 'in excess of that which the carriers are obliged to perform by their tariffs.' United States v. Wabash R. Co., supra, 321 U.S. 412, 413, 64 S.Ct. 756. In Corn Products Refining Co. v. United States, 331 U.S. 790, 67 S.Ct. 1521, 91 L.Ed. 1819, this Court affirmed per curiam a decision upholding the exclusion, on grounds of irrelevancy, of evidence pertaining to the custom and practice of carriers in making delivery to other shippers. If custom may not be used to interpret 'line-haul' after demarcation of transportation and industry service by the Commission, we think it follows that a carrier definition written into filed tariffs does not make impotent the Commission's authority to define the point. 12 A tariff, effective June 25, 1938, is considered applicable only to the Midvale, Garfield, and Murray plants. By this tariff the 'line-haul rate includes movement of loaded cars to track scales and subsequent delivery to any designated track within the plant which can be accomplished by one uninterrupted movement * * * from the road-haul point of delivery to the switching line.'6 There are additional charges for other services in the plants. 13 If the Commission has the authority to fix the point at which line-haul begins and ends, and we have held that it has, and it designates Point X, obviously the carriers cannot by tariff fix line-haul at Point Y, a further point, and even add one subsequent movement. That would deprive the Commission of its right to determine the point. In the Commission's judgment, which is supported by the evidence, delivery to Point X is the equivalent of team track and simple placement service—the service other shippers receive under a line-haul rate. For the carriers to give the appellee-smelters service to Point Y plus 1 is to accord them service different from that given other shippers under Ex parte 104 and supplemental proceedings. By the orders in the instant cases, line-haul is translated, as it were, into the tariffs as beginning and ending where the Commission fixed it and not where the appellee-carriers fixed it by tariff. Thereafter, the charge for line-haul must be to the interchange tracks and not to the point fixed in the tariff. Transportation to the latter point at the line-haul rate would be preferential and would violate § 6(7). 14 The tariff which is considered by appellee-carriers as applicable only to the Leadville plant is set forth in the margin.7 It may be noted that this tariff does not provide, as does the 1938 tariff applicable to the other plants, that the line-haul rate includes the intraplant services. Further, the 'movement' specified in delivery of a line-haul shipment includes not just one, as provided by the 1938 tariff, but several switching operations which the Commission has classified as 'interrupted' terminal switching services, performed for the convenience of the industry only. 15 The Commission has fixed the point at which line-haul or transportation service ends as the 'flat yard' at Leadville and finds there are services performed beyond this point. These industry services must be so compensated for, and may not be wrapped up in delivery of a line-haul shipment. 16 'Since the Commission finds that the carriers' service of transportation is complete upon delivery to the industries' interchange tracks, and that spotting within the plants is not included in the service for which the line-haul rates were fixed, there is power to enjoin the performance of that additional service or the making of an allowance to the industry which performs it.' United States v. American Sheet & Tin Plate Co., 301 U.S. 402, 408, 57 S.Ct. 804, 807. 17 Obviously the plant services at Leadville are different from those at Midvale, Garfield, and Murray under the 1938 tariff, which only emphasizes the wisdom of Congress in empowering the Commission to fix the point where line-haul begins and ends with a view to giving all shippers equivalent service. The Commission has standardized such service as team track or simple placement switching. What we now hold is that the Commission has the power to fix the point at which line-haul or carrier service begins and ends. This is necessary because the need for switching varies from plant to plant; indeed, some plants may need no intraplant switching service. Thus, unless the Commission can fix the beginning and ending point of the line-haul, some shippers would pay an identical line-haul rate for less service than that required by other industrial plants. See Baltimore & Ohio R. Co. v. United States, 305 U.S. 507, 526, 59 S.Ct. 284, 83 L.Ed. 318. A different point fixed by the carrier in its tariff gives service in excess of that accorded shippers generally as established in Ex parte 104, and therefore amounts to an unlawful preferential service. 18 As to the argument that to require the carriers to conform to the Commission's orders would require the appellee-smelters to pay twice for their service, the short answer is that appellees misconceive the scope of this proceeding, which is solely to define what is embraced in line-haul transportation. We accept the admonition of the Commission in its second report, quoted supra, and reiterated in its brief, that it was not here concerned, and made no finding, as to whether the charge made for the service was or was not compensatory. We think that the Commission has authority to exclude rate questions from this proceeding. If the carriers so wish, they may file a new tariff to conform their charges to the services indicated in the Commission's order. 49 U.S.C. § 6(1) and (3), 49 U.S.C.A. § 61(1, 3). If the carrier makes a double or unreasonable charge, the industry may be heard upon the reasonableness of the rate. 49 U.S.C. §§ 9, 13, 15, 49 U.S.C.A. §§ 9, 13, 15. 19 Finally it is contended that the District Court judgment should be affirmed because there was no appeal from the judgment and mandate when the case was sent back to the Commission, the court having found that there was no evidence to sustain a Commission finding that the line-haul rates were not compensatory for the services rendered. Appellees argue that that decision became the law of the case. 20 The rule of the law of the case is a rule of practice, based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter. Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152; Insurance Group Committee v. Denver & R.G.W.R. Co., 329 U.S. 607, 612, 67 S.Ct. 583, 585, 91 L.Ed. 547. It is not applicable here because when the case was first remanded, nothing was finally decided. The whole proceeding thereafter was in fieri. The Commission had a right on reconsideration to make a new record. Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 374—375, 59 S.Ct. 301, 307, 308, 83 L.Ed. 221. When finally decided, all questions were still open and could be presented. The fact that an appeal could have been taken from the first order of the District Court was not because it was a final adjudication but because a temporary injunction had been granted in order to maintain the status quo. This was an interlocutory order that was appealable because Congress, notwithstanding its interlocutory character, had made it appealable. 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. The appellants might have appealed, but they were not bound to. We think that it requires a final judgment to sustain the application of the rule of the law of the case just as it does for the kindred rule of res judicata. Compare United States v. Wallace & Tiernan Co., 336 U.S. 793, 800—801, 69 S.Ct. 824, 828, 829. And although the latter is a uniform rule, the 'law of the case' is only a discretionary rule of practice. It is not controlling here. See Southern R. Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 67 L.Ed. 283. 21 Judgment reversed. 22 Mr. Justice JACKSON dissents. 23 Mr. Chief Justice VINSON and Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 The plants are described in detail by the Commission in its reports, 263 I.C.C. 749, 266 I.C.C. 476, 270 I.C.C. 385; 263 I.C.C. 719, 266 I.C.C. 349, 270 I.C.C. 359. 2 Corn Products Refining Co. v. United States, 331 U.S. 790, 67 S.Ct. 1521, 91 L.Ed. 1819; Hanna Furnace Corp. v. United States, 323 U.S. 667, 65 S.Ct. 41, 89 L.Ed. 543; United States v. Wabash R. Co., 321 U.S. 403, 64 S.Ct. 752, 88 L.Ed. 827; United States v. Pan American Petroleum Corp., 304 U.S. 156, 58 S.Ct. 771, 82 L.Ed. 1262; A. O. Smith Corp. v. United States, 301 U.S. 669, 57 S.Ct. 936, 81 L.Ed. 1333; Goodman Lumber Co. v. United States, 301 U.S. 669, 57 S.Ct. 936, 81 L.Ed. 1333. 3 'No carrier, unless otherwise provided by this chapter, shall engage or participate in the transportation of passengers or property, as defined in this chapter, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this chapter; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs.' 24 Stat. 379, as amended, 49 U.S.C. § 6(7), 49 U.S.C.A. § 6(7). 4 The following were the findings of fact relating to the Garfield, Murray and Leadville plants of American Smelting. The findings with respect to the Midvale plant of United States Smelting were substantially identical. '(1) That it is the duty and obligation of the smelters to obtain and certify to the carriers the values of ores for the purpose of ascertaining freight charges, and that the carriers are not under any obligation or duty to perform any switching or other services for the purpose of ascertaining, or assisting the smelters in ascertaining, such values. '(2) That the 'plant yard' at the Garfield plant, the 'hold tracks' at the Murray plant, and the 'flat yard' at the Leadville plant, hereinafter referred to collectively as the 'convenient points' as described in the prior supplemental reports herein, are reasonably convenient points for the delivery and receipt of carload traffic moving to and from the plants of the American Smelting & Refining Company. '(3) That the several respondents serving said plants move loaded and empty freight cars from said convenient points to points within the plant areas, from such points within the plant areas to the convenient points, and between points within the plant areas. '(4) That the said services rendered within the plant areas to and from the convenient points are in excess of those rendered shippers generally in the receipt and delivery of traffic on team tracks or industrial sidings or spurs. '(5) That the said services rendered between points within the plant areas are in excess of those rendered shippers generally in the receipt and delivery of traffic on team tracks or industrial sidings or spurs. '(6) That the services from and to the convenient points and between points within the plant areas are not and cannot be performed in a continuous movement without interruption or interference at respondents' operating convenience because of the disabilities of the plants, including the manner in which the industrial operations are conducted, all as explained in the prior supplemental reports. '(7) That the said services rendered between the convenient points and points in the plant areas and between points within the plant areas are in excess of those performed in simple switching and team-track delivery and are industrial or plant services which respondents are not obligated to and should not perform at the line-haul rates. '(8) That the common-carrier transportation which respondents are obligated to perform begins and ends at the convenient points, and that all services beyond those points in the plant areas are industrial or plant services for which respondents should make reasonably compensatory charges. '(9) That the performance by respondents without reasonably compensatory charges in addition to the line-haul rates of the described services within the plant areas beyond the convenient points at any and all of the said plants results in the American Smelting & Refining Company receiving a preferential service not accorded shippers generally and results in the refunding or remitting of a portion of the rates and charges collected in violation of section 6(7) of the act.' Id., at 367—368. 5 See Interstate Commerce Commission v. Hoboken Manufacturers' R. Co., 320 U.S. 368, 378, 64 S.Ct. 159, 164, 88 L.Ed. 107; United States v. Pan American Petroleum Corp., 304 U.S. 156, 158, 58 S.Ct. 771, 773, 82 L.Ed. 1262; United States v. American Sheet & Tin Plate Co., 301 U.S. 402, 408, 409, 57 S.Ct. 804, 807, 808, 81 L.Ed. 1186. 6 An 'uninterrupted movement' is defined in the tariff as 'one continuous movement of switching locomotive and crew without interruption, resulting from orders from, or requirements of, the smelter.' 266 I.C.C. at 353—354. 7 This tariff is almost identical with that which was applicable to all of the plants in 1920. The smelters, we are informed, pay the 1938 tariff under protest, and insist upon the 1920 tariff. 'DELIVERY OF LINE-HAUL CARLOAD SHIPMENT DESTINED TO SMELTER AT LEADVILLE, COLO. 'Delivery of a line-haul carload shipment destined to smelter at Leadville, Colo., will include movement within smelter plant over track scales, to and from thaw-house, to and from a smelter sampler or to and from a combination sampler and concentrator to a designated unloading point indicated by the sampling company.'

89

339 U.S. 142 70 S.Ct. 530 94 L.Ed. 721 RAILWAY LABOR EXECUTIVES' ASS'Nv.UNITED STATES et al. No. 337. Argued and Submitted Feb. 14, 1950. Decided March 27, 1950. Rehearing Denied May 1, 1950. See 339 U.S. 950, 70 S.Ct. 800. Mr. Edward J. Hickey, Jr., Washington, D.C., for appellant. Mr. Daniel W. Knowlton, Washington, D.C., for appellee Interstate Commerce Commission. Mr. W. S. Macgill, Washington, D.C., for the appellees Railroad Intervenors. Messrs. Philip B. Perlman, Sol. Gen., Herbert A. Bergson, Robert L. Stern, Richard E. Guggenheim, Washington, D.C., for appellee, The United States. Mr. Justice BURTON delivered the opinion of the Court. 1 We are called upon to decide whether the Interstate Commerce Commission, in approving a consolidation of railroad facilities under § 5(2)(f) of the Interstate Commerce Act,1 has the power to extend the period of protection of the interests of the railroad employees beyond four years from the effective date of the order. For the reasons hereafter stated, we hold that the Commission has that power. 2 In 1947, the City of New Orleans, Louisiana, and several common carriers by railroad, all appellees herein, filed with the Interstate Commerce Commission a joint application for authority to construct, acquire and jointly own or use certain lines of railroad, as well as to abandon certain other lines or operations, as incidents to the construction of a passenger terminal at New Orleans. The Railway Labor Executives' Association, appellant herein, intervened as a representative of the interests of the employees of the railroads. Division 4 of the Commission entered a report and order, effective May 17, 1948, approving and authorizing the transactions. New Orleans Union Passenger Terminal Case, 267 I.C.C. 763, and see Oklahoma R. Co. Trustees Abandonment, 257 I.C.C. 177, 197—201. 3 The order required the construction of the proposed lines to commence by December 31, 1948 (later extended to December 31, 1949), and to be completed by December 31, 1953 (later extended to December 31, 1954). It contained detailed provisions for the compensatory protection of employees affected by the consolidation, but all such protection was to end by May 17, 1952. The order disclosed that many employees affected by the consolidation would not be displaced until the completion of the project and that, therefore, they would receive no compensatory protection.2 4 After unsuccessfully seeking reconsideration and modification of the order by the full Commission, the appellant sued the United States, see 28 U.S.C. § 2322, 28 U.S.C.A. § 2322, in the District Court for the District of Columbia, asking that court to set aside that part of the Commission's order which limited the period of protection to four years. The Commission and the railroads intervened, answers were filed and, no facts being in dispute, all parties sought a summary judgment. The case was heard by a three-judge District Court, see 28 U.S.C. §§ 1336, 2325 and 2284, 28 U.S.C.A. §§ 1336, 2325, 2284, which granted the defendants' motions for summary judgment and dismissed the complaint. D.C.Cir., 84 F.Supp. 178. The case is here on direct appeal. 28 U.S.C. §§ 1253 and 2101(b), 28 U.S.C.A. §§ 1253, 2101(b). 5 Section 5(2)(f) of the Interstate Commerce Act provides: 6 'As a condition of its approval, under this paragraph (2), of any transaction involving a carrier or carriers by railroad subject to the provisions of this part, the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected. In its order of approval the Commission shall include terms and conditions providing that during the period of four years from the effective date of such order such transaction will not result in employees of the carrier or carriers by railroad affected by such order being in a worse position with respect to their employment, except that the protection afforded to any employee pursuant to this sentence shall not be required to continue for a longer period, following the effective date of such order, than the period during which such employee was in the employ of such carrier or carriers prior to the effective date of such order. Notwithstanding any other provisions of this Act, an agreement pertaining to the protection of the interests of said employees may hereafter be entered into by any carrier or carriers by railroad and the duly authorized representative or representatives of its or their employees.' 54 Stat. 906—907, 49 U.S.C. § 5(2)(f), 49 U.S.C.A. § 5(2)(f). 7 The appellant and the United States3 contend that the first sentence of § 5(2)(f) requires the Commission to condition its approval upon a fair and equitable arrangement to protect the interests of railroad employees affected by this consolidation. They contend also that the second sentence prescribes a minimum of protection but does not restrict the Commission's power, under the first sentence, to prescribe further protection if such protection is deemed necessary to make the arrangement fair and equitable to the employees. The Commission, on the other hand, argues that the second sentence sets an inflexible standard for the fair and equitable arrangement required by the first sentence. The Commission concludes, therefore, that, in this case, it has power to require only such an arrangement as will prevent the affected employees from being in a worse position with respect to their employment for a maximum period of four years from the effective date of the order approving the project.4 8 Before the Transportation Act of 1940 brought § 5(2)(f) into the Interstate Commerce Act, there was no statutory provision specifically requiring the protection of employees affected by consolidations of railroad facilities. The precursor of this provision was § 5(4)(b), as amended by the Emergency Railroad Transportation Act of 1933. That section authorized the Commission to approve consolidations 'upon the terms and conditions * * * found to be just and reasonable.'5 There was, however, a widespread awareness in the railroad industry that many of the economies to be gained from consolidations or abandonments could be realized only at the expense of displaced railroad labor. The interests of such employees were recognized in the Washington Job Protective Agreement of 1936.6 This was a collective bargaining contract approved by about 85% of the railroad carriers and 20 of the 21 railroad brotherhoods. It contained a schedule of substantial financial benefits recommended for employees adversely affected by consolidations or so-called 'coordinations.'7 9 Section 5(4)(b) and the Washington Agreement were both in effect when, in 1939, this Court held that the Commission had power to prescribe terms and conditions comparable to those in the Washington Agreement. United States v. Lowden, 308 U.S. 225, 60 S.Ct. 248, 84 L.Ed. 208. The Commission's requirement, in that case, of a protective period of five years was sustained. Thus, at the time of the enactment of § 5(2)(f), the Commission already had power to determine and prescribe just and reasonable terms and conditions to protect employees affected by consolidations.8 10 The legislative history of § 5(2)(f) shows that one of its principal purposes was to provide mandatory protection for the interests of employees affected by railroad consolidations. In 1938, the President appointed a Committee of Sex to consider the transportation problem and recommend legislation.9 It was composed equally of representatives of railroad management and railroad labor. They endorsed the Washington Agreement and recommended amending § 5 of the Interstate Commerce Act so as to include the following: 11 'After the details of any proposed consolidation have been determined by the interests involved, they should be embodied in an application for approval, addressed to the Transportation Board. In passing upon such an application, the Board should be governed by the following considerations: 12 '(d) The interests of the employees affected. The Board shall examine into the probable results of the proposed consolidation and require, as a prerequisite to its approval, a fair and equitable arrangement to protect the interests of the said employees.'10 13 March 30, 1939, Senators Wheeler and Truman introduced S. 2009, which, in § 49(3)(c), contained substantially the above language: 14 'The Commission shall require, as a prerequisite to its approval of any proposed transaction under the provisions of this section, a fair and equitable arrangement to protect the interests of the employees affected.'11 15 In the meantime, the House of Representatives considered a comparable bill, H.R. 4862, introduced by Representative Lea. Extended hearings were held. On the issue before us, this bill contained the same language as did the Senate bill. It required, as a prerequisite to the Commission's approval, 'a fair and equitable arrangement to protect the interests of the employees affected.'12 When S. 2009 reached the House, the Committee in charge of it struck out everything after the enacting clause, substituted the text of the House bill and recommended its passage. In it, the provision in question took the form of an amendment to § 5 of the Interstate Commerce Act. 16 If this provision, which later became the first sentence of § 5(2)(f), now stood alone as it did then, the Commission unquestionably would have power to grant at least as much relief to employees as it had under § 5(4)(b). The crucial question is whether the second sentence of § 5(2)(f), which was inserted soon thereafter, amounts not only to an additional provision for the protection of labor, but also to a limitation upon the discretion vested in the Commission by the first sentence. 17 The second sentence of § 5(2)(f) has a singificant history of its own. On the floor of the House, Representative Harrington suggested the following proviso to follow the first sentence: 18 'Provided, however, That no such transaction shall be approved by the Commission if such transaction will result in unemployment or displacement of employees of the carrier or carriers, or in the impairment of existing employment rights of said employees.'13 19 The Harrington Amendment thus introduced a new problem. Until it appeared, there had been substantial agreement on the need for consolidations, together with a recognition that employees could and should be fairly and equitably protected. This amendment, however, threatened to prevent all consolidations to which it related. 20 With the Harrington Amendment in it the bill went to conference.14 It came out with all provisions relating to consolidations under § 5 eliminated. The House, however, recommitted the bill to conference with instructions to insert a modified form of the first sentence of § 5(2)(f), together with a modified form of the Harrington Amendment. The modification of the first sentence merely extended the original language as to fair and equitable arrangements so as to include abandonments as well as consolidations.15 The modification of the Harrington Amendment is not now material. 21 The second conference reported § 5(2)(f) in the final form in which it was enacted into law. It retained the first sentence in its original language.16 In the second sentence, however, it included a substantial change in the Harrington proposal. It limited it to the four years following the effective date of the Commission's order of approval. It provided also that in each case the protective period was not to exceed the length of each employee's employment by a carrier prior to the effective date of the Commission's order of approval. This clause emphasized the separability of the second sentence, for it provided that 'the protection afforded to any employee pursuant to this sentence shall not be required to continue for a longer period, * * *' than that prescribed. (Mephasis supplied. See 339 U.S. 145, 70 S.Ct. 531, supra, for full text of the clause.) 22 The second sentence thus gave a limited scope to the Harrington Amendment and made it workable by putting a time limit upon its otherwise prohibitory effect. There was no comparable need for such a restriction upon the first sentence. We find, therefore, that the time limit in the second sentence now applies to it and to it alone. As thus limited, that sentence adds a new guaranty of protection for the interests of employees, without restricting the Commission's power to require greater protection as part of a fair and equitable arrangement. This serves the purpose of the sentence to increase, rather than to decrease, the protective effect of the paragraph. 23 Under the Commission's order in the instant case, employees displaced through the early elimination of grade crossings or otherwise may receive compensatory protection up to May 17, 1952, but employees displaced after that date will receive none. They will have had long notice that, by 1954, they may be displaced. But that much 'protection' against the adverse effects of the consolidation would have been available to them without § 5(2)(f). Neither such discrimination nor such insubstantial 'protection' is consistent with the purpose or the history of the provision. 24 The Commission's interpretation of this statute, although entitled to weight, is not persuasive. Its present view of its authority is out of harmony with its broad view of its authority under § 5(4)(b), approved in United States v. Lowden, supra. It also is inconsistent with the broad construction given by this Court to § 1(18, 20) as to abandonments. Interstate Commerce Commission v. Railway Labor Executives Ass'n, 315 U.S. 373, 62 S.Ct. 717, 86 L.Ed. 904. The Commission's own decisions under § 5(2)(f), relied upon here, have been made in cases in which the adverse effects of the approved transactions were to be felt by the employees long before the expiration of four years from the effective date of the order of approval.17 For example, in Chicago, M., St. P. & P.R. Co. Trustees Construction, 257 I.C.C. 292, which is principally relied upon by the Commission, the construction originally was required to be completed December 31, 1943, and that date was extended to December 31, 1944, but the effective date of the order of approval was April 26, 1942, so that the minimum protective period of four years did not expire until 1946. In that case, the Commission did not eliminate all compensatory protection as it has for many employees here. 25 We conclude, therefore, that the Commission, while required to observe the provisions of the second sentence of § 5(2)(f) as a minimum protection for employees adversely affected, is not cnfined to the four-year protective period as a statutory maximum. The Commission has the power to require a fair and equitable arrangement to protect the interests of railroad employees beyond four years from the effective date of the order approving the consolidation. 26 The judgment of the District Court is reversed and the case is remanded to that court with directions to remand it to the Interstate Commerce Commission for further proceedings in conformity with this opinion. It is so ordered. 27 Reversed and remanded with directions. 28 Mr. Justice JACKSON dissents upon the ground that resort to legislative history to vary the terms of the statute is not justified in this case. 29 Mr. Chief Justice VINSON and Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 30 Mr. Justice FRANKFURTER, whom Mr. Justice REED joins, dissenting. 31 The sole question before us is the proper construction to be given to the amendment made to § 5(2)(f) of the Interstate Commerce Act by the Act of September 18, 1940, 54 Stat. 899, 906 907. The District Court agreed with the construction given to the provision by the Interstate Commerce Commission. In the court below, but not here, the Department of Justice joined the Interstate Commerce Commission in urging this construction upon that court. I do not think the arguments which the Government urged below have been adequately answered, and I therefore yield to them. I cannot do better than state them in the Government's own language: 32 'The section contains the clear and precise provision that the four-year period shall commence from the effective date of the order of approval. Had Congress intended that the period shall run from the date when the consolidation goes into effect or, as argued by plaintiff, from the date the employees are adversely affected, such words easily could and would have been used by Congress. Nor does the section give to the Commission discretion in applying a period other than four years from the effective date of the order of approval. The terminology in the statute is that the Commission shall include the four-year limitation therein provided. To provide a different period in the Commission's order would be contrary to the specific requirement imposed upon the Commission by the statute. 33 'Congress deliberately fixed the period of protection to start from the effective date of the order and not the date an employee is adversely affected. 34 'In the light of the clear unambiguous and specific language of Section 5(2) (f), its consistent interpretation and application by the Commission since its enactment and over a long period of years, and the legislative history of the statute, the order of the Commission herein should not be disturbed.' 35 I would affirm the judgment of the District Court. 1 54 Stat. 906—907, 49 U.S.C. § 5(2)(f), 49 U.S.C.A. § 5(2)(f). 2 'The total number of employees on the New Orleans lines that probably would be affected * * * has been estimated * * * at 1,022, and the number required to operate and maintain the union passenger terminal has been estimated at 680. As provided in the terminal agreement, so far as feasible the terminal manager will recruit the necessary personnel from supervisory and other employees displaced at the 5 separate stations to be abandoned on a completion of the union passenger terminal. The estimates indicate a net displacement of about 350 employees, of whom 9 are bridge tenders and about 108 are crossing watchmen now employed on tracks which will be retired or over which train and yard movements will be reduced; but the opinion is expressed that the number eventually displaced will not exceed 300.' New Orleans Union Passenger Terminal Case, 267 I.C.C. 763, 777—778. 3 Although in the District Court the United States supported the Commission, it has here filed a brief supporting the appellant. 4 'As the record shows definitely that employees will be affected adversely by the applicant's proposals, it is appropriate in this case that we require a fair and equitable arrangement to protect the interests of employees so affected. We think that the benefit of such an arrangement necessarily must extend to all the railroad employees affected by exercise of the authorizations herein granted. But we also think that the fair and equitable arrangement contemplated by section 5(2)(f) is measured by the specification therein of a protective period of 4 years from the effective date of our order approving a transaction within the scope of section 5(2). As was decided in Chicago, M., St. P. & P.R. Co. Trustees Construction, supra, 257 I.C.C. 292), we have no authority to prescribe any other period.' New Orleans Union Passenger Terminal Case, 267 I.C.C. 763, 782. 5 '* * * If after such hearing the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed consolidation, * * * will promote the public interest, it may enter an order approving and authorizing such consolidation, * * * upon the terms and conditions and with the modifications so found to be just and reasonable.' 48 Stat. 217. 6 The agreement is published in the Hearings held by the House Committee on Interstate and Foreign Commerce on H.R. 2531, 76th Cong., 1st Sess. 231—241 (1939). 7 George M. Harrison, President of the Railway Labor Executives' Association, recommended the enactment of the substance of the proposals of the Washington Agreement into law, so that the Commission might be able to make use of those proposals where appropriate. Those proposals included compensatory relief for employees, dating from the taking effect of a 'coordination.' As applied to a particular employee, the Agreement stated that the taking effect of a coordination 'means the date in said period when that employee is first adversely affected as a result of said coordination.' Id. at p. 232. It prescribed rates of compensation for employees deprived of their employment, for those continued in service but displaced from their former positions, and for those required to move to new places of residence, etc. It related individual protective periods to prior lengths of service. In some instances, it limited relief to five years from the effective date of the coordination. 8 It was estimated that the compensatory relief at issue in United States v. Lowden, supra, would consume, in five years, $290,000 out of the $500,000 of contemplated savings to result to the railroads. Shortly before that decision, Congress approved, in the bill still pending before it, the language which was to become the first sentence of § 5(2)(f). This Court said of such approval: 'We think the only effect of this action was to give legislative emphasis to a policy and a practice already recognized by § 5(4)(b) by making the practice mandatory instead of discretionary, as it had been under the earlier act.' Id., 308 U.S. at page 239, 60 S.Ct. at page 255. See also, Interstate Commerce Commission v. Railway Labor Executives Ass'n, 315 U.S. 373, 379, 62 S.Ct. 717, 721, 86 L.Ed. 904. 9 Letter of December 23, 1938, transmitting a report to the President from a Committee appointed by him September 20, 1938, to consider the transportation problem and recommend legislation. Hearings before the Senate Committee on Interstate Commerce on S. 1310, 2016, 1869 and 2009, 76th Cong., 1st Sess. 3—5 (1939). See also, H.R. Doc. No. 583, 75th Cong., 3d Sess. 1 (1938), as to the earlier Committee of Three appointed for the same purpose. 10 Hearings before the House Committee on Interstate and Foreign Commerce on H.R. 2531, 76th Cong., 1st Sess. 275 (1939). And see supporting testimony of George M. Harrison at pp. 216—217. The Committee recommended vesting the protective power in a Transportation Board, for which the Interstate Commerce Commission was later substituted. 11 As this provision was derived from the recommendation of the Committee of Six, the testimony of George M. Harrison, a member of that Committee, throws light upon its meaning. He said: 'In the report of the Committee of Six we do not undertake to lay down the specific, detailed protection that should be accorded labor by the Commission, but we were much of the opinion that in prescribing the protection the Commission would undoubtedly follow what seems to be generally the practice; and that is represented in an agreement that now exists between substantially all of the railroads and all of the employees' labor unions. It provides a schedule of benefits and protections.' Hearings before the Senate Committee on Interstate Commerce on S. 1310, 2016, 1869 and 2009, 76th Cong., 1st Sess. 34 (1938). 12 H.R. Rep. No. 1217, 76th Cong., 1st Sess. 12 (1939), and see Hearings before the House Committee on Interstate and Foreign Commerce on H.R. 2531, 76th Cong., 1st Sess. 184, 193—194, 214, 260 (1939). 13 84 Cong.Rec.Pt. 9, 9882 (1939). This proposal was not without precedent. In the Emergency Railroad Transportation Act of 1933, 48 Stat. 211, there were many temporary provisions which originally were to expire in 1934 and finally did expire in 1936. Among these was § 7(b). It provided that no employee was to be deprived of employment or be in a worse position with respect to his job by reason of any action taken pursuant to the authority conferred by the Act. That provision, on a temporary and independent basis, thus coexisted with the permanent amendments which were then made to § 5 of the Interstate Commerce Act, including § 5(4)(b). 14 While the bill was in conference, the Legislative Committee of the Interstate Commerce Commission sent a communication to Congress condemning the principle of the amendment and upholding the sufficiency of the first sentence of § 5(2)(f): 'As for the (Harrington) proviso, the object of unifications is to save expense, usually by the saving of labor. Employees who may be displaced should, in the case of railroad unifications, be protected by some such plan as is embodied in the so-called 'Washington agreement' of 1936 between the railroad managements and labor organizations. The proviso, by prohibiting any displacement of employees, goes much too far, and in the long run will do more harm than good to the employees.' Interstate Commerce Commission Report on S. 2009, Omnibus Transportation Legislation, p. 67 (76th Cong., 3d Sess., House Committee Print), transmitted January 29, 1940. 15 '(f) As a prerequisite to its approval of any consolidation, merger, purchase, lease, operating contract, or acquisition of control, or any contract, agreement, or combination mentioned in this section, in respect to carriers by railroad subject to the provisions of part 1, and as a prerequisite to its approval of the substitution and use of another means of transportation for rail transportation proposed to be abandoned, the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected. * * *' 86 Cong.Rec.Pt. 6, 5886 (1940). 16 See H.R. Rep. No. 2832, 76th Cong., 3d Sess. 68—69 (1940), and remarks by Representative Lea, Chairman of House Conferees, 86 Cong.Rec.Pt. 6, 10178 (1940), and of Representative Wolverton at p. 10189. The Commission's powers as to abandonments are thus left to § 1(18, 20), to which the Harrington Amendment has no possible application. They are as follows: '(18) * * * no carrier by railroad subject to this Act shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity permit of such abandonment. '(20) The commission shall have power to issue such certificate * * * and may attach to the issuance of the certificate such terms and conditions as in its judgment the public convenience and necessity may require. * * *' 41 Stat. 477 478, 49 U.S.C. § 1(18) and (20), 49 U.S.C.A. § 1(18, 20). Under § 1(18) and (20), the Commission has authority, in its sound discretion, to prescribe the period and the conditions of the protection needed by employees adversely affected by abandonments. See Interstate Commerce Commission v. Railway Labor Executives Ass'n, 315 U.S. 373, 62 S.Ct. 717, 86 L.Ed. 904. In that case, this Court reversed the narrow interpretation which had been given by the Commission to § 1(20) in Chicago G.W.R. Co. Trackage, 207 I.C.C. 315, 322. The Commission had held that it was without authority to prescribe conditions for the protection of the interests of the displaced employees. Both the District Court of the District of Columbia and this Court recognized that the authority granted by § 1(18, 20) might be narrower than that applicable to consolidations under § 5(4)(b), see United States v. Lowden, 308 U.S. 225, 60 S.Ct. 248, 84 L.Ed. 208, but held, nevertheless, that it gave the Commission authority to protect the employees affected. Under the restrictive interpretation which the Commission seeks to apply to its power in the instant case, it would be prohibited from applying its full discretion to employees displaced by consolidations, at the same time that it is authorized to apply its full discretion to those displaced by abandonments. See Interstate Commerce Commission v. Railway Labor Executives Ass'n, 315 U.S. 373, 62 S.Ct. 717, 86 L.Ed. 904. This distinction would be peculiarly discriminatory in the instant case where the consolidation includes many abandonments. 17 Chicago, B. & Q.R. Co. Abandonment, 257 I.C.C. 700; Chicago, M., St. P. & P.R. Co. Trustees Construction, 257 I.C.C. 292; Oklahoma R. Co. Trustees Abandonment, 257 I.C.C. 177, 196 202; Texas & P.R. Co. Operation, 247 I.C.C. 285, 295, 296.

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339 U.S. 121 70 S.Ct. 547 94 L.Ed. 707 UNITED STATESv.COMMODITIES TRADING CORPORATION et al. COMMODITIES TRADING CORPORATION et al. v. UNITED STATES. Nos. 156, 163. Argued Jan. 10, 11, 1950. Decided March 27, 1950. Rehearing Denied May 1, 1950. See 339 U.S. 950, 70 S.Ct. 800. Mr. Oscar H. Davis, Washington, D.C., for The United States. Mr. Edward L. Blackman, New York City, for Commodities Trading Corporation et al. Mr. Justice BLACK delivered the opinion of the Court. 1 Commodities Trading Corporation brought this suit in the Court of Claims to recover 'just compensation' for about 760,000 pounds of whole black pepper requisitioned by the War Department in 1944 from Commodities' stock of 17,000,000 pounds. The United States contended that the OPA ceiling price of 6.63 cents per pound was just compensation. Commodities denied this, claiming 22 cents per pound. It argued that Congress did not and could not constitutionally fix the ceiling price as a measure for determining what is just compensation under the Constitution Commodities also contended that, for reasons peculiar to its own situation, application of the ceiling price in this instance would be particularly unjust. The Court of Claims fixed 'just compensation' at 15 cents per pound. In so doing, that court took into consideration what it terms 'retention value,' explained as an allowance for the price Commodities 'undoubtedly could have secured for its pepper had it been permitted to hold it until after restrictions had been removed * * *.' The court also considered how much the precise pepper requisitioned cost Commodities, the prices at which that company sold pepper after the government requisition, subsequent OPA ceiling prices, and the average price of pepper for the past 75 years. 83 F.Supp. 356, 358, 113 Ct.Cl. 244. We granted the petitions of both parties for certiorari. 338 U.S. 857, 70 S.Ct. 98, 99. 2 First. The questions presented are controlled by the clause of the Fifth Amendment providing that private property shall not be 'taken for public use, without just compensation.' This Court has never attempted to prescribe a rigid rule for determining what is 'just compensation' under all circumstances and in all cases. Fair market value has normally been accepted as a just standard. But when market value has been too difficult to find, or when its application would result in manifest injustice to owner or public, courts have fashioned and applied other standards.1 Since the market value standard was developed in the context of a market largely free from government controls, prices rigidly fixed by law raise questions concerning whether a 'market value' so fixed can be a measure of 'just compensation.' United States v. John J. Felin & Co., 334 U.S. 624, 68 S.Ct. 1238, 92 L.Ed. 1614. Whatever the circumstances under which such constitutional questions arise, the dominant consideration always remains the same: What compensation is 'just' both to an owner whose property is taken and to the public that must pay the bill? The word 'just' in the Fifth Amendment evokes ideas of 'fairness' and 'equity,' and these were the primary standards prescribed for ceiling prices under the Emergency Price Control Act.2 As assurance that prices fixed under its authority by the administrative agency would be 'generally fair and equitable', Congress provided that price regulations could be subjected to judicial review. All legitimate purchases and sales had to be made at or below ceiling prices. And most businessmen were compelled to sell because, for example, their goods were perishable or their businesses depended on continuous sales. Thus ceiling prices of commodities held for sale represented not only market value but in fact the only value that could be realized by most owners. Under these circumstances they cannot properly be ignored in deciding what is just compensation. 3 The extent to which ceiling prices should govern courts in such a decision is another matter. Congress did not expressly provide that prices fixed under the Price Control Act should constitute the measure of just compensation for property taken under the Fifth Amendment.3 And § 4(d) provides that the Act shall not be construed as requiring any person to sell. But § 1(a) declared the Act's purposes 'to assure that defense appropriations are not dissipated by excessive prices' and to 'prevent hardships * * * to the Federal, State, and local governments, which would result from abnormal increases in prices * * *.' Congress thus plainly contemplated that these governments should be able to buy goods fulfilling their wartime needs at the prices fixed for other purchasers. The crucial importance of this in the congressional plan for a stabilized war economy to limit inflation and prevent profiteering is shown by the fact that during the war approximately one-half of the nation's output of goods and services went to federal, state and local governments.4 And should judicial awards of just compensation be uniformly greater in amount than ceiling prices, expectations of pecuniary gains from condemnations might prompt many owners to withhold essential materials until the Government requisitioned them. We think the congressional purpose and the necessities of a wartime economy require that ceiling prices be accepted as the measure of just compensation, so far as that can be done consistently with the objectives of the Fifth Amendment. 4 Second. It is contended that acceptance of ceiling prices as just compensation would be inconsistent with the Fifth Amendment because such prices fail to take into account a factor designated by the Court of Claims as 'retention value.' This concept stems largely from the Emergency Price Control Act's provision that the Act shall not be construed as compelling an owner to sell his property against his will. Translating the provision as conferring on an owner the 'right to hold his property until he can get for it whatever anyone is willing to pay,' the Court of Claims held that it gave rise to a 'retention value' which must be added to the ceiling price in order to meet the constitutional requirement of 'just compensation.'5 5 In enacting that provision Congress merely refused to take from owners their long-existing 'right to hold' until they wanted to sell. It did not create a new 'right to hold' as against a constitution Government taking, or engraft added values of any kind on property which happens to be requisitioned at a time when prices are fixed by law. We cannot justifiably stretch this provision into a command that the Government pay owners a 'retention value' for property taken. 6 Nor can we construe the Fifth Amendment as supporting the Court of Claims 'retention value' rule. In peace-time when prices are not fixed, the normal measure of just compensation has been current market value; retention value has never been treated as a separate and essential factor. True, current market value may sometimes be higher because a buyer anticipates future rises in prices. And exceptional circumstances can be conceived which would justify resort to evidential forecasts of potential future values in order to determine present market value. But the general constitutional rule declared and applied by the Court of Claims did not rest on exceptional circumstances. 7 A persuasive reason against the general rule declared by the Court of Claims is the highly speculative nature of proof to show possible future prices on which 'retention value' must depend. In this case, for instance, no one knew how long the war would last nor how long economic conditions due to war might lead Congress to continue price-fixing legislation. Predictions on these subjects were guesses, not informed forecasts. And even if such predictions were reasonably certain, there remained other unknowns. How much more than the ceiling price would a speculative purchaser have paid for property at the time of seizure? To what extent, if at all, would the lifting of war controls raise prices above the controlled ceilings? And as of what date should future value be estimated? The Court of Claims opinion indicates how haphazard such calculations must be: its figure of 15 cents per pound appears to be a rough judicial compromise between the ceiling price and the 22 cents claimed, not a weighted average drawn from the varied assortment of doubtful factors considered by the court. Moreover, that figure seems completely divorced from the conjectured postwar price, a factor crucially significant in the court's 'retention value' concept. 8 An equally forceful objection to the 'retention value' rule is the discrimination it would breed. Only a limited group of owners could take advantage of the rule: those who have nonperishable products so essential for war purposes that refusal to sell would result in governmental requisition. And many of these would be financially unable to withhold their goods on such a gamble. Thus owners able to hold essential nonperishable goods until requisition would become a favored class at the expense of other owners not so fortunate. Moreover, even within that favored class the 'retention value' rule would create discrimination against owners impelled by a sense of duty to sell their goods to the Government at ceiling prices without waiting for requisition. A premium would be placed on recalcitrance in time of war. 9 A rule so difficult to apply and leading to such discriminatory and unjust results cannot be required by the Fifth Amendment's command for payment of 'just compensation.' 10 Third. While there is no constitutional obstacle to treating 'generally fair and equitable' ceiling prices as the normal measure of just compensation for commodities held for sale, there must be room for special exceptions to such a general rule. For unfair hardship may be inflicted on a particular dealer by valid ceiling prices which are 'generally' fair. Bowles v. Willingham, 321 U.S. 503, 516—518, 64 S.Ct. 641, 648—649, 88 L.Ed. 892. But the ceiling price of pepper, fair and just to the trade generally, should be accepted as the maximum measure of compensation unless Commodities has sustained the burden of proving special conditions and hardships peculiarly applicable to it.6 Cf. Marion & Rye Valley R. Co. v. United States, 270 U.S. 280, 285, 46 S.Ct. 253, 255, 70 L.Ed. 585. 11 Commodities contends that it proved the existence of such conditions. It points to the statement of the Court of Claims that the 'so-called 'retention value' is particularly applicable in this case' (113 Ct.Cl. 244, 83 F.Supp. 357) because Commodities was an 'investor' in pepper rather than a 'trader.' The company accumulated its large supply at intervals during the 1933—1941 period, expecting to hold it to sell when the price went up. The court found that Commodities could reasonably expect this rise: the nature of production was such that periods of abundance and scarcity were bound to alternate, and during the preceding 75 years the price of pepper had shown marked fluctuations in fairly regular cycles. Most of Commodities' pepper was bought when prices were low. It is argued that as an 'investor' Commodities should not be deprived of the pecuniary benefits which future high prices would have afforded but for the Government's taking. 12 Under this state of facts the situation of Commodities differed only in degree, if at all, from that of myriad other commodity owners who quite naturally wished to hold their goods for higher prices. Postwar inflationary influences are common and generally expected. Price cycles, seasonal and otherwise, are also well-recognized economic phenomena. Doubtless owners of steel, textiles, foodstuffs, and other goods could produce evidence similar to that offered in regard to pepper to show cyclical fluctuations in their prices. Nor would there be much difficulty in showing that a great many owners had bought, produced, or manufactured their various merchandise with the idea of withholding from markets to await expected higher prices. Many lost anticipated profits due to price control or requisition. Sacrifices of this kind and others far greater are the lot of a people engaged in war. That a war calls for sacrifices is of course no reason why an unfair and disproportionate burden should be borne by Commodities. But the facts here show no such burden on Commodities. Commodities, just like other traders in pepper and other products, bought pepper with the intention of ultimately selling on the market. No more than any other owner is Commodities entitled to 'retention value,' a value based on speculation concerning the price it might have obtained for pepper after the war and after price controls were removed. 13 Another contention is that the particular pepper turned over to the Government cost Commodities more than the ceiling price, and that this is a special circumstance sufficient to preclude use of the ceiling price here. The Court of Claims did find that the average cost to Commodities of the precise pepper taken, including labor costs, storage, interest, insurance, taxes and other expenses, was 12.7 cents per pound. The Government challenges these findings and also claims that Commodities selected its high-cost pepper for delivery under the requisition. Pointing out that pepper is fungible and that only relevant cost figure is the average cost to Commodities of all its pepper, the Government asserts that this average cost was less than the ceiling price. 14 We do not consider these contentions of the Government because we think that the cost of the pepper delivered provides no sufficient basis for specially excluding Commodities from application of the ceiling price. The general rule has been that the Government pays current market value for property taken, the price which could be obtained in a negotiated sale, whether the property had cost the owner more or less than that price. Vogelstein & Co. v. United States, 262 U.S. 337, 340, 43 S.Ct. 564, 565, 67 L.Ed. 1012. The reasons underlying the rule in cases where no government-controlled prices are involved also support its application where value is measured by a ceiling price. In neither instance should the Government be required to make good any losses caused by the fact that the owner purchased goods at a price higher than market value on the date of taking. Especially is this true where the resulting loophole in wartime regulation would be available only to dealers in essential nonperishable commodities who have enough funds and storage space to withhold goods until the Government is forced to requisition them. 15 We have considered all other contentions of Commodities and find that none of them present reasons sufficient to justify awarding Commodities an amount in excess of ceiling prices. In the final analysis all its arguments rest on the principle that the Government must pay Commodities for potential profits lost because of war and the consequent price controls. We cannot hold that the Fifth Amendment requires the Government to give owners of requisitioned goods such a special benefit. 16 The judgment of the Court of Claims is reversed and the cause is remanded with directions to enter an appropriate judgment based on the maximum ceiling price of the pepper at the time it was taken. It is so ordered. 17 Reversed and remanded with directions. 18 Mr. Chief Justice VINSON and Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 19 Mr. Justice FRANKFURTER, dissenting in part. 20 In 1933 Commodities Trading Corporation began to accumulate an inventory of black pepper, not as a trader in pepper but as an investor in a nonperishable commodity. It based this investment policy on the fairly regular cyclical fluctuations of pepper prices over a period of about seventy-five years. This regularity was due to the fact that pepper plantings in Sumatra, French Indo-China and India, which supplied almost all of it, fluctuated with the price of pepper in the world market. Neglect of their crops by the native growers in periods of depressed prices lowered supply; thereby prices were raised and this in turn stimulated new plantings. Since it takes the pepper plant about four years to bear, prices would normally maintain their high level for about that period. The operations of Commodities were based on the expectation that it would profitably adjust the sale of its holdings to the cyclical movement. 21 By 1938 Commodities had accumulated 25,000,000 pounds; by December, 1941, it had disposed of about 8,000,000 pounds. The rest it withheld from the market until the requisition here in controversy was made by the War Department, in May, 1944. December, 1941, is a significant date because a ceiling price on pepper was then established. The price at which it was pegged—6.75 cents per pound, amended shortly thereafter to 6.50 cents plus limited carrying charges—approximated the market price at the time the free market in pepper came to an end. This free market price was responsive to the then unusually large inventory of pepper in the country, amounting to from 78,000,000 to 100,000,000 pounds, a three-year supply. The Government forbade importation of high-priced pepper from India, and the other sources of supply were cut off by the Japanese invasion. As a result, stocks rapidly declined, the fall being accelerated after the imposition of ceiling prices by a desire on the part of many importers to avoid additional carrying charges. By September, 1943, only about 28,000,000 pounds were in the hands of importers. Of this Commodities held, as we have seen, 17,000,000. From about the middle of 1942 activity had steadily shrunk and by early 1944 pepper was not for sale. 22 In May, 1944, the War Department requisitioned from Commodities about 760,000 pounds of black pepper. Commodities rejected the Government's offer of compensation at the ceiling price and this suit to recover 'just compensation' followed. 23 On the basis of its 'special findings of fact' the Court of Claims held that the ceiling price was not the measure of just compensation for the requisitioned pepper. It deemed the right to withhold from sale nonperishable goods until after price control terminated a value of substance to be included in ascertaining just compensation. The inclusion of this 'retention value' in the present circumstances was especially appropriate, so the Court of Claims reasoned, because Commodities was not a trader but a long-term investor. After the controls were removed in 1946, pepper sold at 50 to 60 cents a pound and upward and the Court of Claims deemed these free market values relevant in determining the just compensation for the pepper requisitioned in 1944. In giving an award above the ceiling price, that court was further influenced by the fact that the cost of the pepper it attributed to Commodities—12.7 cents per pound—exceeded the ceiling. Taking all the factors it deemed relevant into account, 15 cents per pound was found by that court to be just compensation for the pepper taking. 24 I. The 'just compensation' required by the Bill of Rights when 'private property (is) taken for public use' has a way of attracting far-flung contentions. So here, extreme positions are taken regarding the relevance of ceiling prices to 'just compensation.' On the one hand it is urged that ceiling prices are to be treated as though they represent value determined by a free market. On the other hand it is insisted that since it would be unjust for the Government itself to fix the compensation for what it takes, ceiling prices should be ignored. I agree with what I understand to be the Court's view in rejecting both these absolutes. 25 War conditions drastically change the economic environment in which a free market has its justification. The purpose of government controls is to terminate such a distorted free market. Since ceiling prices are required by law to be 'generally fair and equitable'1 and govern voluntary sales of property, they are not irrelevant in assessing just compensation. The value of private property is not immutable; especially is it not immune from the consequences of governmental policies. In the exercise of its constitutional powers, Congress, by general enactments may in diverse ways cause even appreciable pecuniary loss without compensation. 'Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. * * * When (the diminution) reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts.' Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322, 28 A.L.R. 1321. See also Hudson County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828, 14 Ann.Cas. 560; Pipeline Cases (U.S. v. Ohio Oil Co.), 234 U.S. 548, 561, 34 S.Ct. 956, 958, 58 L.Ed. 1459; Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 67 L.Ed. 107. 26 It does not follow that controlled prices automatically meet the requirements for just compensation in the forcible taking of property simply because they replaced free market prices which could no longer be relied on to reflect the normal play of free economic forces. A system of price controls which is 'generally fair and equitable' may give rise to individual instances of hardship in the requisitioning of property no matter how conscientiously and competently administered. See Bowles v. Willingham, 321 U.S. 503, 516—518, 64 S.Ct. 641, 648—649, 88 L.Ed. 892. The hardship may reach such magnitude in an individual instance as to make a taking by the public at a ceiling price unjust compensation. Of course war means burdens, and there is no calculus by which they can be fairly distributed. From any point of view the ultimate sacrifices are uncompensable. But these considerations are not relevant in carrying out the Fifth Amendment. When there is a taking of property for public use, whether in war or in peace, the burden of the taking is the community's burden. The owner should be requited by that which satisfies prevailing standards of justice. This limitation upon the power of eminent domain has throughout our history been left for judicial application. We would be faced with a new problem had Congress specified that the ceiling prices should be the limit of just compensation. Such a statute would call for the usual respect to be accorded to the judgment of Congress in passing on the validity of legislation when the power of Congress to legislate is limited by broad standards and not by restrictions almost technical in their nature. We are relieved from a consideration of any such question because Congress chose not to make ceiling price the measure of 'just compensation.' It is therefore an inescapable judicial duty to explore the elements relevant to just compensation even for the taking of property which, as to voluntary transactions, is subject to price control. The standard of just compensation is not mechanically to be replaced by ceiling prices. 27 It takes us some distance neither wholly to accept nor wholly to reject price ceilings as just compensation. The complications introduced by the displacement of free market prices by controlled prices serve to intensify the usual wariness against undue generalizations in ascertaining the value of specific property taken for public purposes. Cautious empiricism is the most promising attitude in dealing with problems of this sort. This means hugging as closely as possible the shore of the circumstances of the particular case. 28 On the present record only two issues need to be faced. In arriving at just compensation did the Court of Claims properly take into account (1) a 'retention value' and (2) the cost of the pepper to Commodities. 29 II. The Court of Claims appears to have recognized as a component of just compensation the right of a property owner to withhold his property for some future opportunity of enhanced realization, even though he be in the same boat with all other owners for whom the ceiling price is a fair measure. In its bearing upon our immediate problem, recognition of such a 'retention value' as part of the contemporaneous value of what was taken would have required the power to 'divine prophetically' the war's end and the lifting of controls by Congress as well as the state of the pepper market thereafter. This is 'to exact gifts that mankind does not possess.' International Harvester Co. of America v. Commonwealth of Kentucky, 234 U.S. 216, 223, 224, 34 S.Ct. 853, 855, 856, 58 L.Ed. 1284. To allow such wild imagination to enter into the practical determination of what is just compensation would merely sanction unbridled drafts on the Treasury. It would encourage every property owner to hold his goods off the market and to force the Government to requisition rather than purchase. That, by such retention, profits might be realized in the distant future is not an interest which the Constitution protects. 30 The diffused loss of profit throughout the nation's economy must be borne as a part of the common lot. Of a different order of loss would be a taking of the pepper at ceiling prices, if the ceiling price was far below the cost of the pepper to Commodities and such cost was incurred in the normal course of long-term holding operations. This might present a situation whereby the owner of the requisitioned property would be asked to bear more than its fair share of the just economic burden of the war. 31 III. The Court of Claims found that the cost to Commodities of the requisitioned pepper was 12.7 cents per pound compared with the ceiling price of 6.5 cents. The Government challenges the cost figures. It points out that Commodities kept its cost records on the basis of specific bags of pepper, each bag being recorded at its invoice cost and the applicable carrying charges. Commodities selected the bags of pepper delivered to the Government. Apparently it chose the bags which had the highest invoice cost and the greatest carrying charges, the pepper bought in 1933—1936. Assuming that costs higher than ceiling prices may affect just compensation, the Court of Claims should have considered whether the high cost of the pepper turned over to the Government was due to Commodities' accounting system. Since pepper is fungible and does not have age value, for all that appears Commodities' method of computing costs may have been unfair to the Government. 'Just compensation' is not a function of a seller's theory of accounting. 32 The Court's opinion, however, holds that whatever the costs they are irrelevant in assessing just compensation. Thereby the Court disregards in the concrete the principle which it avows in the abstract—namely, that ceiling prices are not to be deemed as though they were values arrived at in a free market and that individual instances of hardship may properly receive individual consideration. The Court urges that high costs would be irrelevant in peacetime when an uncontrolled market determines value. Compare Vogelstein & Co. v. United States, 262 U.S. 337, 43 S.Ct. 564, 67 L.Ed. 1012. But a controlled market is not an uncontrolled market. Only by treating a controlled market as the equivalent of an uncontrolled market can ceiling prices be made the equivalent of market value and thereby the measure of just compensation. 33 Since 'just compensation' is not easily reduced to quantitative determination, the price which is arrived at through the haggling of the market is the accepted norm in determining just compensation. The law sensibly recognizes that market price reflects fair dealing by men who are freely engaged in it. But the psychological basis for the norm is gone when the area of fair dealing is eliminated. The replacement of the free jostling of the desires of buyers and sellers by government edict is no doubt due to the realization that under the abnormal circumstances of war a free market in the sense of being uncontrolled is not a fair market. But such price regulation is the imposition of the will of outsiders and not the distillation of freely directed wills guided by self-interest. The norm of price fixing by government is thus very different from the usual price fixing by free exchange. Governmental price fixing carries its own valid titles for respect by the courts. But it does not carry that title of self-determination, as it were, which is implied by a free market price. Want of a free market value does not require us to embrace automatically the ceiling price in disregard of other relevant circumstances bearing on justice in a particular case. 34 Costs, unlike 'retention value,' do not yield inherently speculative results. Including costs in computing just compensation does not give the condemnee a 'war profit' nor make inroads on the system of price controls. Such inclusion is a safeguard against discriminating hardships resulting from a formula which is generally fair but which by its nature cannot be fair to each individual. By the terms of the Price Control Act the only standard which Congress laid down for price fixing was that the ceiling price be 'generally fair and equitable'. The Act itself made no provision for individual relief from the general price. The administrative discretion for enforcing the Act vested in the Price Administrator no doubt authorized him to qualify the prices he fixed by procedure for individual relief therefrom. As to many commodities the maximum price schedules did include such provisions. The price regulation regarding the pepper requisitioned from Commodities contained no such provision. There was no way, therefore, by which Commodities could have had relief from any unfairness of the maximum price affecting its pepper by reason of the high cost which, on the basis of legitimate business considerations, it paid. 35 It is significant that Congress provided in § 4(d) of the Emergency Price Control Act that 'Nothing in this Act shall be construed to require any person to sell any commodity * * *.' 56 Stat. 28, 50 U.S.Appendix, § 904(d), 50 U.S.C.A.Appendix, § 904(d). This protective provision is peculiarly applicable to sellers who had acquired nonperishable property by way of reasonable investment at costs above the ceiling price. Under § 4(d) they were not required to take a loss. But today's decision withdraws that statutory protection from those subjected to the exercise of the Government's power of condemnation. It may be that, despite § 4(d), certain sellers with high costs would have had to sell in the private market because of economic factors. There is considerable difference, however, between hardships resulting from the impersonal workings of a general regulation and the personal operation of the power of eminent domain, under which Government officials have complete discretion to select the individual who shall give up his property at a loss for the public good. 36 We need not decide whether costs exceeding the ceiling price are always relevant to just compensation or the extent to which they may qualify the ceiling price. It is enough to hold that, if Commodities' costs, fairly measured, were greater than the ceiling price for pepper, it is fair to take them into account. We are not dealing here with a hoarder or with one who bought property at recklessly high costs in the expectation that, in any event, the Government would reimburse him. Commodities did not suddenly shift from 'seller' to 'holder' upon imposition of controls in 1941; while it reduced its total stocks between 1938 and 1941, the Court of Claims found that it was essentially a 'holder' from 1933 on. Nor did Commodities make substantial sales to private persons at the ceiling price, and hold out against the Government. It merely exercised its statutory right to refuse to sell, a decision ethically justified if by selling it would incur an honest loss. 37 IV. The error of the Court of Claims in applying the doctrine of 'retention value' requires reversal of its judgment. That court should reexamine Commodities' costs and if, under a fair accounting theory, those costs prove to be higher than ceiling, they should be considered in the computation of just compensation. 38 Mr. Justice JACKSON, dissenting. 39 When Congress enacted the Emergency Price Control Act, it provided that 'Nothing in this Act shall be construed to require any person to sell any commodity * * *.' 56 Stat. 28, § 4(d), 50 U.S.C.Appendix, § 904(d), 50 U.S.C.A.Appendix, § 904(d). Of course, Congress did not thereby surrender the Government's right to requisition any goods it might want under the usual eminent domain powers and for 'just compensation.' Why then this provision? 40 It seems obvious that the purpose was to avoid just what the Court does today—making ceiling prices for voluntary sales the measure of compensation for compulsory sales. This separation was not made as a favor to profiteers. In United States v. John J. Felin & Co., 334 U.S. 624, 650, 68 S.Ct. 1238, 1251, 92 L.Ed. 1614, writing in dissent for Mr. Justice Douglas and myself, I set forth considerations which weighed heavily upon those proponents of price controls who wanted the controls to operate smoothly and expeditiously and also to avoid constitutional litigation, or at least adverse decisions. I said there: 41 'It is hard to see how just compensation can be the legal equivalent of a controlled price, unless a controlled price is also always required to equal just compensation. It never has been held that in regulating a commodity price the Government is bound to fix one that is adequately compensatory in the constitutional sense, so long as the owner is free to keep his property or to put it on the market as he chooses. If the Government were required to do so, the task of price regulation would be considerably, if not disastrously, complicated and retarded. It seems quite indispensable to the Government itself, for the long-range success of price controls, that fixed prices for voluntary sales be not identified with the just compensation due under the Constitution to one who is compelled to part with his property.' 334 U.S. at page 651, 68 S.Ct. at page 1251. 42 The Court today nullifies the congressional policy that no one is compelled to sell under the Act by using the condemnation power to compel the sale and this Act to fix the price. It also makes the constitutional provision for just compensation meaningless since the Government may first fix the price, as if no sales were compelled, and then compel the sales at the prices so fixed. I think the constitutional power to fix prices for voluntary sale in interstate commerce is much less confined than the power to fix prices for taking property. But hereafter, the price fixed may have to be tested by whether it would be just compensation for a compulsory sale. 43 I agree that the court below erred in its theory of 'retention value.' It did so by making the same basic error this Court is making: that of combining two separate systems—price fixing and condemnation. It considered that because the Emergency Price Control Act said a claimant was not required to sell under the Act, he might retain his property for some future rise in market. But it is not that Act which makes him sell. It is under the power of eminent domain that the Government expropriates this pepper. And under that power he has no right of delay and hence no retention value. He must part with his property on demand, and the issue is what is just compensation at that time. 44 At the time of this expropriation there was, insofar as market price were concerned, a controlled market in the United States—controlled by the Government that was doing the expropriating. There was also a world market, with far higher market prices, to which the Government would have had recourse had not these parties earlier imported a large supply. Moreover, while the ceiling price on whole pepper was kept at a low figure, the price on ground pepper to the public showed what seems to be an unaccountably large spread. The problem of combining all relevant considerations that go to a valuation is a difficult one. 45 I concur in the reversal but would return the case for redetermination of the value at the date of requisition without allowance for 'retention value.' I should not direct that the ceiling price be used as the sole measure of just compensation. 1 See, e.g., United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55; Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236. 2 56 Stat. 23, 50 U.S.C.Appendix, § 901 et seq., 50 U.S.C.A.Appendix, § 901 et seq. 3 Had Congress prescribed a rule that prices fixed under the Act should constitute the measure of constitutional 'just compensation,' courts upon proper challenges would have been faced with responsibility of determining whether that rule satisfied the requirements of the Fifth Amendment. Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60. Compare Monongahela Navigation Co. v. United States, 148 U.S. 312, 327, 13 S.Ct. 622, 37 L.Ed. 463. 4 Eighth Report of the Director of War Mobilization and Reconversion, October 1, 1946, H.R.Doc. 45, 80th Cong., 1st Sess. p. 7. 5 Pertinent parts of the Court of Claims discussion of 'retention value' were: 'We have several times held that, in determining just compensation, we must take into account the plaintiff's right to hold its property until restrictions on its disposition are removed. Seven-Up Bottling Co. of Los Angeles v. United States, 68 F.Supp. 735, 107 Ct.Cl. 402; Kaiser v. United States, 69 F.Supp. 588, 108 Ct.Cl. 47; Adler Metal Products Corp. v. United States, 71 F.Supp. 239, 108 Ct.Cl. 102; Pantex Pressing Machine Co. v. United States, 71 F.Supp. 859, 108 Ct.Cl. 735. 'The Government in time of war has the undoubted right to say to the citizen, if you want to sell your property you must not sell it for more than a certain price; but the Government has no right to take the property and pay for it no more than this fixed price, unless that price justly compensates the owner, taking into consideration his right to hold his property until he can get for it whatever anyone is willing to pay.' 83 F.Supp. 357, 113 Ct.Cl. 259—260. 6 Commodities had petitioned the Price Administrator in 1943 to amend the applicable regulation so as to permit higher prices for proper by allowances for storage expenses. This petition was denied. Nothing in the record indicates that the Emergency Court of Appeals was ever asked to consider ceiling prices for pepper. 1 Emergency Price Control Act § 2(a), 56 Stat. 24, 50 U.S.C.Appendix, § 902(a), 50 U.S.C.A. Appendix, § 902(a).

34

339 U.S. 200 70 S.Ct. 587 94 L.Ed. 761 DARRv.BURFORD, Warden, Oklahoma State Penitentiary. No. 51. Submitted Dec. 5, 1949. Decided April 3, 1950. Mr. John B. Ogden, of Oklahoma City, Okl., for petitioner. Mr. Mac Q. Williamson and Mr. Sam H. Lattimore, Oklahoma City, Okl., for respondent. Mr. Justice REED delivered the opinion of the Court. 1 Petitioner Darr, an inmate of the Oklahoma state penitentiary, has been denied federal habeas corpus for failure to exhaust his other available remedies. Petitioner's omission to apply here for certiorari from the state court's denial of habeas corpus was held an error, fatal to consideration on the merits. Therefore the merits of petitioner's claims of imprisonment in violation of the Constitution are not before us. The petition for certiorari requires us to pass solely upon the correctness of the lower court's view that ordinarily a petition for certiorari must be made to this Court from a state court's refusal of collateral relief before a federal district court will consider an application for habeas corpus on its merits. 2 Petitioner was serving a term in the Oklahoma state penitentiary when, on November 28, 1930, he was summoned to appear in another Oklahoma county to plead to two separate charges of armed bank robbery. In January of 1931, he was tried by jury, and convicted on the first charge; petitioner then pleaded guilty to the second. He was sentenced to two terms of forty years each, to run consecutively, and the first sentence is now being served. No appeal from the conviction was taken, but in 1947 petitioner applied to the Oklahoma Court of Criminal Appeals for habeas corpus. Judging only from the state court's opinion,1 for the original petition is not included in the record before us, petitioner alleged in the state court that he had been without funds to employ counsel, that he had not had the aid of counsel of his own choosing, and had not been provided sufficient time to procure and prepare witnesses for his defense. These allegations were reviewed by the state court and the writ was denied on the merits. No application for certiorari was made here. 3 Petitioner then filed in the United States District Court for the Eastern District of Oklahoma the application for habeas corpus here at bar. The allegations were those passed upon by the Oklahoma Court of Criminal Appeals, with the addition of a claim that petitioner's plea of guilty to the second armed robbery charge had been coerced. After hearing petitioner's testimony in open court, the District Judge examined into the merits sufficiently to assure himself that no extraordinary circumstances existed sufficient to justify federal inquiry into the merits of petitioner's allegations without the exhaustion of all other available remedies.2 He then concluded that the writ must be discharged as to the first sentence since petitioner had not applied for certiorari here from the state court's denial of habeas corpus. The allegations of a coerced plea underlying the second sentence could not properly be considered, held the court, first, because petitioner had not raised the point in the state proceeding, and further because petitioner is not presently being detained under that sentence. Therefore no adjudication on the merits was given.3 The Court of Appeals for the Tenth Circuit affirmed, one judge dissenting from the proposition that application for certiorari is a requisite step in the exhaustion of remedy.4 4 It is not argued that the courts below state the law incorrectly insofar as the second conviction is concerned. It has long been settled that the federal courts will not consider on habeas corpus claims which have not been raised in the state tribunal;5 and in any event, it is unquestioned doctrine that only the sentence being served is subject to habeas corpus attack.6 Further, since neither court based its conclusion upon petitioner's failure to appeal from his initial conviction, that issue is not before us. There is no problem of jurisdiction or power in the federal courts to consider applications for habeas corpus. Nor is there at issue the effect of a refusal of certiorari by this Court upon future applications for federal habeas corpus by the state prisoner. The issue of exhaustion of remedy, however, is not only of vital concern to those who would seek the protection of the Great Writ, but in the case of state prisoners is crucial to the relationship between the state and federal sovereignties in the exercise of their coordinate power over habeas corpus. Doubt respecting this issue should not go unresolved. We therefore granted certiorari. 337 U.S. 923, 69 S.Ct. 1169. 5 The writ of habeas corpus commands general recognition a the essential remedy to safeguard a citizen against imprisonment by State or Nation in violation of his constitutional rights.7 To make this protection effective for unlettered prisoners without friends or funds, federal courts have long disregarded legalistic requirements in examining applications for the writ and judged the papers by the simple statutory test of whether facts are alleged that entitle the applicant to relief.8 6 This favorable attitude toward procedural difficulties accords with the salutary purpose of Congress in extending in 1867 the scope of federal habeas corpus beyond an examination of the commitment papers under which a prisoner was held to the "very truth and substance of the causes of his detention."9 Through this extension of the boundaries of federal habeas corpus, persons restrained in violation of constitutional rights may regain their freedom. But since the 1867 statute granted jurisdiction to federal courts to examine into alleged unconstitutional restraint of prisoners by state power it created an area of potential conflict between state and federal courts. As it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, the federal courts sought a means to avoid such collisions. Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.10 7 Since habeas corpus is a discretionary writ, federal courts had authority to refuse relief as a matter of comity until state remedies were exhausted. Through this comity, the doctrine of exhaustion of state remedies has developed steadily from cases refusing federal habeas corpus before state trial to a statutory direction that federal courts shall not grant the writ to a state prisoner until state remedies have been exhausted. Ex parte Royall,11 decided in 1886, held that a federal district court had jurisdiction to release before trial a state prisoner who was held in violation of federal constitutional rights, but it approved denial of the writ as a matter of discretion. It was not to be presumed that 'the decision of the state court would be otherwise than is required by the fundamental law of the land, or that it would disregard the settled principles of constitutional law announced by this court * * *.'12 Analogy was found in earlier cases where state and federal jurisdiction to attach property had been found to overlap. Apropos were the words of the Court in Covell v. Heyman:13 8 'The forbearance which courts of coordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity with perhaps no higher sanction than the utility which comes from concord; but between state courts and those of the United States, it is something more. It is a principle of right and of law, and therefore of necessity.' 9 In the same term of court the doctrine was advanced to its next stage, for in Ex parte Fonda,14 the prisoner sought his federal relief in this Court after his state conviction, but before he had prosecuted his appeal to the state appellate tribunal. Stressing the importance of noninterference with the orderly processes of appellate review, this Court denied to writ, for if the trial court had erred to the prejudice of petitioner's constitutional rights, it could not be assumed that the state appellate court would suffer the error to go uncorrected.15 10 The established doctrine was applied to meet the variations presented by the cases. By 1891, it was clear that a federal circuit court committed no error in refusing a writ on the ground that the petitioner had not come to this Court on writ of error;16 and a great body of cases affirmed this holding that the petitioner should be 'put to his writ of error'.17 Baker v. Grice18 states the reason for the rule that after a final determination of the case by the state court, the federal courts will even then generally leave the petitioner to his remedy by writ of error from this Court. 11 '* * * It is an exceedingly delicate jurisdiction given to the federal courts, by which a person under an indictment in a state court, and subject to its laws, may, by the decision of a single judge of the federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the state, and finally discharged therefrom, and thus a trial by the state courts of an indictment found under the laws of a state be finally prevented.' 12 And to this the Court added, in Markuson v. Boucher,19 the explicit reason why the exhaustion principle must extend to remedies available in this Court as well as those open in the state tribunals. 13 'The jurisdiction is more delicate, the reason against its exercise stronger, when a single judge is invoked to reverse the decision of the highest court of a State in which the constitutional rights of a prisoner could have been claimed * * *.' 14 In 1913, a petitioner was denied an original writ here even though he had appealed and had applied for state habeas corpus, with the comment that writ of error to this Court was required.20 And following next upon the heels of an adjudication that a state habeas corpus action is a 'suit' yielding a final reviewable judgment,21 came the leading case of Mooney v. Holohan,22 clearly establishing the rule that available collateral attacks in the state tribunals must be exhausted in addition to direct attacks on the conviction.23 In 1944 the unanimous per curiam opinion of Ex parte Hawk stated the fully developed and established exhaustion doctrine in its most frequently quoted form.24 15 'Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted.' The doctrine of Ex parte Hawk has been repeatedly approved,25 and in White v. Ragen, the same Court again unanimously restated that principle in the clearest language.26 16 'Where the highest state court in which a decision could be had, considers and adjudicates the merits of a petition for habeas corpus, state remedies, including appellate review, are not exhausted so as to permit the filing of a petition for habeas corpus in a federal District Court, unless the federal question involved is presented to this Court on certiorari or appeal from the state court decision.' 17 Thus comity, which had constrained the lower federal courts to refuse a grant of the Great Writ when remedies in state courts were still open, brought forth the related rule that lower federal courts ordinarily will not allow habeas corpus if the applicant has not exhausted his remedy in this Court by certiorari or appeal from state courts' refusal of relief on collateral attack. 18 In Wade v. Mayo alone,27 a case decided less than four years later does there appear language that may be construed as a departure from the established rule. The District Court was allowed to hear Wade's petition for habeas corpus even though he had not applied here for certiorari, because there was grave doubt whether the state judgment constituted an adjudication of a federal question. The Court said, 334 U.S. at page 682, 68 S.Ct. at page 1275: 19 'That doubt was such as to make it reasonably certain that this Court would have denied certiorari on the theory that an adequate state ground appeared to underlie the judgment. His failure to make this futile attempt to secure certiorari accordingly should not prejudice his subsequent petition for habeas corpus in the District Court.' 20 We had pointed out in White v. Ragen, supra, a per curiam expressly reiterating the Hawk doctrine, that where a state court's 'decision is based upon some other adequate non-federal ground, it is unnecessary for the petitioner to ask this Court for certiorari in order to exhaust his state remedies, since we would lack jurisdiction to review the decision of the state court'.28 21 Not limiting its discussion to the holding on the Hawk exception, however, Wade also treated with the general Hawk rule of the necessity for review here before seeking the writ in the federal district court. The thought behind the language on that point evidently was that review here is not usually required as a condition to a hearing on the merits in the district court. Wade did recognize that failure to come here might be relevant in determining whether a district court should entertain an application. On page 680 of 334 U.S., at page 1274 of 68 S.Ct., 92 L.Ed. 1647 it is said: 22 'After state procedure has been exhausted, the concern is with the appropriate federal forum in which to pursue further the constitutional claim. The choice lies between applying directly to this Court for review of the constitutional issue by certiorari or instituting an original habeas corpus proceeding in a federal district court. Considerations of prompt and orderly procedure in the federal courts will often dictate that direct review be sought first in this Court. And where a prisoner has neglected to seek that review such failure may be a relevant consideration for a district court in determining whether to entertain a subsequent habeas corpus petition.' 23 We do not stop to reexamine the meaning of Wade's specific language. Whatever deviation Wade may imply from the established rule will be corrected by this decision. 24 Ex parte Hawk prescribes only what should 'ordinarily' be the proper procedure; all the cited cases from Ex parte Royall to Hawk recognize that much cannot be foreseen, and that 'special circumstances' justify departure from rules designed to regulate the usual case. The exceptions are few but they exist.29 Other situations may develop. Compare Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. Congress has now made statutory allowance for exceptions such as these, leaving federal courts free to grant habeas corpus when the exist 'circumstances rendering such (state) process ineffective to protect the rights of the prisoner.' 28 U.S.C. § 2254, 28 U.S.C.A. § 2254. 25 In § 2254 of the 1948 recodification of the Judicial Code Congress gave legislative recognition to the Hawk rule for the exhaustion of remedies in the state courts and this Court.30 This was done by embodying in the new statute the rulings drawn from the precedents.31 The rulings had been definitively restated in Hawk. That case had represented an effort by this Court to clear the way for prompt and orderly consideration of habeas corpus petitions from state prisoners. This Court had caused the Hawk opinion to be distributed to persons seeking federal habeas corpus relief from state restraint and the opinion had been generally cited and followed.32 There is no doubt that Congress thought that the desirable rule drawn from the existing precedents was stated by Hawk, for the statutory reviser's notes inform us that 26 'This new section is declaratory of existing law as affirmed by the Supreme Court. See Ex parte Hawk, 1944, 64 S.Ct. 448, 321 U.S. 114, 88 L.Ed. 572.'33 27 While this section does not refer expressly to the requirement for application to this Court for review, it must be read in the light of the statement quoted supra, 339 U.S. 207, 70 S.Ct. 592, from Hawk. So read, there was occasion neither for the draftsmen of § 2254 to make reference to review in this Court, nor for the committees of the House or Senate or members of Congress to comment upon it. It is immaterial whether as a matter of terminology it is said that review in this Court of a state judgment declining relief from state restraint is a part of the state judicial process which must be exhausted, or whether it is said to be a part of federal procedure. The issue cannot be settled by use of the proper words. Hawk treated review here as a state remedy. Wade thought it was not state procedure. But undoubtedly review here is a part of the process by which a person unconstitutionally restrained of his liberty may secure redress. Ex parte Hawk had made it clear that all appellate remedies available in the state court and in this Court must be considered as steps in the exhaustion of the state remedy in the sense that the term is used, perhaps inexactly, in the field of habeas corpus.34 Consideration of the legislative history of § 2254 reveals no suggestion that the draftsmen intended to alter the sense of the term as defined in Hawk or to differentiate between exhaustion of state remedies and review in this Court. All the evidence manifests a purpose to enact Hawk into statute. The reviser's notes, explicitly stating this purpose, remained unchanged throughout the bill's legislative progress.35 So did the statement of the exhaustion principle contained in the first paragraph of § 2254 down to the first 'or.'36 None of the changes or additions made by the Senate to § 2254 affected the problem of review here. They were directed at other issues.37 28 It seems sure that Congress drafted and enacted § 2254 expecting review here in conformity with the Hawk rule. Nothing indicates to us a desire on the part of Congress to modify the language. We think the rule of the Hawk case that ordinarily requires an effort to obtain review here has been accepted by Congress as a sound rule to guide consideration of habeas corpus in federal courts. 29 There is an insistence voiced by the dissent that we determine what effect the lower federal courts should accord a denial of certiorari by this Court when the state prisoner later applies for federal habeas corpus. The issue of the effect of such a denial apparently could arise only in a case where after our refusal, the state prisoner presented his application to another federal court. It is not here in this case. We doubt the effectiveness of a voluntary statement on a point not in issue.38 Whether a refusal to grant certiorari imports an opinion on any issue or not, the reason persists for requiring an application here from the state refusal before application to another federal court. 30 There should be no controversy over whether the refusal of certiorari 'would serve the purpose of an adjudication on the merits.' All the authorities agree that res judicata does not apply to applications for habeas corpus. The courts must be kept open to guard against injustice through judicial error.39 Even after this Court has declined to review a state judgment denying relief, other federal courts have power to act on a new application by the prisoner.40 On that application, the court may require a showing of the record and action on prior applications, and may decline to examine further into the merits because they have already been decided against the petitioner.41 Thus there is avoided abuse of the writ by repeated attempts to secure a hearing on frivolous grounds, and repeated adjudications of the same issues by courts of coordinate powers. 31 In this way the record on certiorari in this Court is brought to the attention of the trial court. There have been statements made in former opinions of this Court as to the effect of denial of petitions for habeas corpus.42 Records presented to this Court on petitions in habeas corpus cases raise many different issues. There may be issues of state procedure, questions of fact regarding the alleged violations of constitutional rights, and issues of law respecting the scope of constitutional rights problems made difficult by the frequent practice of state courts to dismiss the applications without opinion. If this Court has doubts concerning the basis of state court judgments, the matter may be handled as in Burke v. State of Georgia, 338 U.S. 941, 70 S.Ct. 422, with an express direction that the petitioner may proceed in the federal district court without prejudice from the denial of his petition for certiorari. If the District Court feels that error may have occurred, it has power to examine the application to see if circumstances exist to justify it in holding a hearing on the merits. Such freedom of action protects the Great Writ without trivializing it.43 32 But it is argued that if the denial of certiorari mean nothing, the result of our decision is to force a 'meaningless step.' We do not agree. Though our denial of certiorari carry no weight in a subsequent federal habeas corpus proceeding, we think a petition for certiorari should nevertheless be made before an application may be filed in another federal court by a state prisoner. The requirement derives from the basic fact that this republic is a federation, a union of states that has created the United States. We have detailed the evolution of and the reason for the conclusion that the responsibility to intervene in state criminal matters rests primarily upon this Court. It is this Court which ordinarily should reverse state court judgments concerning local criminal administration. The opportunity to meet that constitutional responsibility should be afforded. Even if the District Court may disregard our denial of certiorari, the fact that power to overturn state criminal administration must not be limited to this Court alone does not make it less desirable to give this Court an opportunity to perform its duty of passing upon charges of state violations of federal constitutional rights. This Court has evolved a procedure which assures an examination into the substance of a prisoner's protest against unconstitutional detention without allowing destructive abuse of the precious guaranty of the Great Writ. Congress has specifically approved it. Though a refusal of certiorari have no effect upon a later application for federal habeas corpus, a petition for certiorari here ordinarily should be required. 33 The answer to petitioner's argument that he should not be required to seek review here from a state's refusal to grant collateral relief before applying to other federal courts involves a proper distribution of power between state and federal courts. The sole issue is whether comity calls for review here before a lower federal court may be asked to intervene in state matters. We answer in the affirmative. Such a rule accords with our form of government. Since the states have the major responsibility for the maintenance of law and order within their borders, the dignity and importance of their role as guardians of the administration of criminal justice merits review of their acts by this Court before a prisoner, as a matter of routine, may seek release from state process in the district courts of the United States. It is this Court's conviction that orderly federal procedure under our dual system of government demands that the state's highest courts should ordinarily be subject to reversal only by this Court and that a state's system for the administration of justice should be condemned as constitutionally inadequate only by this Court. From this conviction springs the requirement of prior application to this Court to avoid unseemly interference by federal district courts with state criminal administration. 34 As the Hawk requirement, we think, has always been the rule, no change in procedure is necessary and the reiteration of the rule in this decision can, of course, result in no shifting of the burden of work among federal courts.44 No person restrained by state process could heretofore have been certain of a hearing on the merits of his application to a federal district court unless he had sought review in this Court of the state's refusal to release him.45 Further the rule contributes toward expeditious administration since it raises the constitutional issue in a federal forum immediately, without the necessity of a second trial court proceeding and the compilation of a second record. And while the rule has the merit of reasonable certainty, it does not err on the side of unreasonable rigidity. Flexibility is left to take care of the extraordinary situations that demand prompt action. Solicitous as we are that no man be unconstitutionally restrained and that prompt, certain and simple methods for redress be available, those ends for which modern habeas corpus has been evolved can best be achieved by requiring in ordinary cases the exhaustion of state remedies and review here. 35 The present case involves a refusal on the merits of state collateral relief from a conviction allegedly obtained in violation of the Constitution. No review was sought in this Court of the state's refusal. Instead, without alleging that review had been sought in this Court and without reliance upon any pleaded facts to excuse such failure, the petitioner filed his application for this habeas corpus in the District Court. Limiting its consideration of the application solely to the question as to whether this was an extraordinary instance that required disregard of accustomed procedure, the District Court found that this was not a case of peculiar urgency. We agree with the lower court's conclusion that it should go no further into consideration of the application. A conviction after public trial in a state court by verdict or plea of guilty places the burden on the accused to allege and prove primary facts, not inferences, that show, notwithstanding the strong presumption of constitutional regularity in state judicial proceedings, that in his prosecution the state so departed from constitutional requirements as to justify a federal court's intervention to protect the rights of the accused.46 The petitioner has the burden also of showing that other available remedies have been exhausted or that circumstances of peculiar urgency exist. Nothing has been pleaded or proved to show that here exceptional circumstances exist to require prompt federal intervention. Oklahoma denied habeas corpus after obviously careful consideration.47 If that denial violated federal constitutional rights the remedy was here, not in the District Court, and the District Court properly refused to examine the merits. 36 Affirmed. 37 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 38 Mr. Justice BURTON, with whom Mr. Justice CLARK joins, concurs in the judgment and opinion of the Court, except for any indication it may contain that, although the reasons for a denial of certiorari are not stated, they nevertheless may be inferred from the record. He believes that the nature of the proceeding is such that, when the reasons for a denial of certiorari are not stated, the denial should be disregarded in passing upon a subsequent application for relief, except to note that this source of possible relief has been exhausted. 39 Mr. Justice FRANKFURTER, whom Mr. Justice BLACK joins, dissenting.* 40 This case concerns the exercise by the District Courts of their habeas corpus jurisdiction on behalf of State prisoners when a petition for certiorari to review a State court's determination of a federal claim was not first brought in this Court. In the generality of instances the issue is whether denial of certiorari is a prerequisite to resort to the District Courts. The case thus raises serious questions affecting the relations between State and federal authorities as well as between this Court and the lower federal courts. My view in brief is that federal courts must withhold interference with State criminal justice until every opportunity available in the State courts for the vindication of a federal right has been exhausted. Whether the State remedies have been so exhausted often involves elusive questions of local law with which district judges are more familiar than we can be without the light the lower courts afford us. Therefore, the power of the District Courts to issue a writ of habeas corpus should not be barred simply because a petition for certiorari was not first made in this Court. To hold otherwise is to disregard the settled rule that denial of certiorari has no legal significance or, in the alternative, if denial of certiorari remains without bearing on the merits in habeas corpus as in other cases, to require the State prisoner to go through the motion of securing a denial is to command a gesture which is meaningless to him and burdensome to this Court. In any event, to leave the District Courts in the dark as to what a denial of certiorari means in habeas corpus cases is not consistent with the fair administration of justice. 41 1. The course of our decisions on the power of the lower federal courts to entertain an application for a writ of habeas corpus on behalf of State prisoners has not run smooth. There is a reason. This seemingly technical problem of jurisdiction concerns the relation of the United States and the courts of the United States to the States and the courts of the States. Under any circumstances this 'is a very delicate matter that has occupied the thoughts of statesmen and judges for a hundred years * * *.' Memorandum of Mr. Justice Holmes, August 20, 1927, denying an application for stay pending a petition for certiorari. 5 The Sacco-Vanzetti Case 5516. 42 Prior to the Civil War, habeas corpus was available in the United States courts, barring limited exceptions, only for those in federal custody. The Act of February 5, 1867, extended the power of the United States courts to grant writs of habeas corpus to 'all cases where any person may be restrained of his * * * liberty in violation of the constitution, or of any treaty or law of the United States * * *.' 14 Stat. 385. A conflict between State and federal authorities in relation to the administration of criminal justice touches that 'very delicate matter' at its most sensitive point. The Act of 1867 opened wide the door to that conflict. It has become intensified during the last twenty years because of the increasing subjection of State convictions to federal judicial review through the expanded concept of due process. See, e.g., Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, and Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406. It ought not to be too surprising, therefore, that the full implications of federal restrictions upon the free range of a State's criminal justice have taken time to unfold. 43 2. Decisions on matters of procedure within the Court's control ought not to be like shifting sand. Quick fluctuations in them should be avoided unless a rule of practice has proven itself mischievous in practice. The real question before us in this case is whether Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647, should be overruled. Whether this overruling is to be done forthrightly by two words saying the case 'is overruled' or the overruling is euphemistically done by fifteen words hardly changes the fact. Respect for an explicit adjudication on a matter of procedure very recently rendered after the fullest consideration, as well as the soundness of the decision, should lead us to adhere to Wade v. Mayo. 44 3. The weight which attaches to a decision of this Court particularly on matters of practice is naturally enough affected by the circumstances attending it. Apart from the intrinsic justification of Wade v. Mayo on grounds of policy, to which I shall shortly advert, that decision was a product of the deliberative process at its weightiest. On original submission in October, 1947, and full consideration by the Court, the case was restored to the docket in November, 1947, was resubmitted on March 9, 1948, received thorough reconsideration by the Court, and after long incubation was decided on June 14, 1948. The procedural issue which received this unusual attention was thus phrased in the Court's opinion: 'whether it was proper for a federal district court to entertain a habeas corpus petition filed by a state prisoner who, having secured a ruling from the highest state court on his federal constitutional claim, had failed to seek a writ of certiorari in this Court'. 334 U.S. at pages 674 675, 68 S.Ct. at page 1272. 45 This is the way the issue was framed in the dissenting opinion: 'The first question in this case is whether Wade's failure to bring a writ of certiorari to this Court from the judgment of the Florida Supreme Court in his state habeas corpus proceeding should affect his effort to obtain release through a federal writ of habeas corpus. Or, to rephrase the problem, should certiorari to this Court be considered a part of the state remedy for purposes of the well-recognized doctrine of exhaustion of state remedies?' 334 U.S. at page 686, 68 S.Ct. at page 1277, 92 L.Ed. 1647. 46 The problem as rephrased in the dissent stated with precision the decisive inquiry. Relief from a federal court cannot come until corrective State process to vindicate the claimed federal right is unavailable. This has been so ever since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868. Therefore, if the 'state remedies' which must be exhausted include an application for review of a State court's decision by our discretionary writ of certiorari, it would be premature for a District Court to entertain a petition for habeas corpus before such application. That question—whether a petition for certiorari is to be deemed part of the 'state remedies'—had never been canvassed by this Court. The Court had made some uncritical assertions about it and in a moment I shall deal with them. But the problem had never been critically analyzed until the issue became determinative of the decision in Wade v. Mayo. 47 4. The answer which the dissent gave to the problem determined the dissent. It concluded 'that certiorari should be considered a part of the state procedure for purposes of habeas corpus.' 334 U.S. at page 689, 68 S.Ct. at page 1279. The Court's analysis of the problem led to the contrary result. While fully acknowledging the principle that State remedies must be exhausted before relief can be sought in a federal court, it rejected the notion that an application to this Court for review by certiorari can be deemed part of the State remedies. 48 5. Now the Court likewise rejects the basis of the dissent in Wade v. Mayo—that a petition for certiorari is to be deemed part of State remedies and as such must be exhausted. But it retains the conclusion which was drawn from the rejected premise. It does so in complete disregard of our repeated insistence regarding the significance of denial of petitions for certiorari, reflecting the narrow range of inquiry not going to the merits which alone is open on such petitions. Likewise disregarded are practical considerations relating to the administration of this Court's business, particularly the inherent difficulties of ascertaining in this Court in the first instance the available remedies under State procedure, which is a threshold question in determining whether State remedies have been exhausted. 49 6. Of course a State prisoner can come here and seek review, by way of certiorari, of a denial by the State court of his alleged federal constitutional right. The Court may grant his petition and decide the issue against him. If the petition is granted and the State's view of his federal claim is sustained here, he may still sue out a writ in the District Court. The doctrine of res judicata is inapplicable. In the Sacco-Vanzetti case, application was first made to the Circuit Justice, then to the Senior Circuit Judge, and thereafter to the District Judge. See 5 The Sacco-Vanzetti Case 5532, 5533, 5534. To be sure, prior denials carry considerable weight in disposing of a later application, but merely by way of safeguard against 'abusive use' of the writ while fully respecting 'its recognized status as a privileged writ of freedom'. Salinger v. Loisel, 265 U.S. 224, 232, 44 S.Ct. 519, 522, 68 L.Ed. 989. 50 Our problem is not whether a petitioner may come here after exhausting his State remedies but whether he must come here and have his petition for certiorari denied as a condition to invoking a federal court's jurisdiction on habeas corpus. An answer to this question necessarily turns on the significance of a denial of certiorari. Mr. Justice Reed's opinion makes a Delphic disposition of this issue, which will inevitably create confusion among federal judges. It surely does not make for clarity of doctrine nor does it promote the practical administration of justice to suggest that denial of certiorari may be given weight upon later application for habeas corpus in lower federal courts, but to refuse to be explicit. On the basis of this pronouncement, how are some 200 district judges to dispose of petitions for habeas corpus brought by State prisoners after denial of certiorari here? The opinion in effect invites them to take into consideration the prior denial here, but then threatens them with possible reversal for so doing. 51 The state of uncertainty in which the District Courts are left must lead to conflicting interpretations of our undisclosed meaning. Some judges will infer that denial of certiorari bears on the exercise of habeas corpus jurisdiction. Others will feel they should adhere to this Court's old avowals concerning denial until they are told explicitly to the contrary. Most confusing of all, many judges, as is the way of judges, are unlikely to resolve the ambiguity decisively. Instead, they will take an equivocal position in denying a writ of habeas corpus, relying in part on the discretionary aspect of habeas corpus and in part on the fact that this Court denied certiorari. Such a disposition will either lead lawyers to be dubious about pressing an appeal, or, if the District Court's decision be appealed, such a blend of reasons in denying the writ is not likely to be overturned by a Court of Appeals, and it would be most natural for this Court not to grant certiorari to review such a case. The significance of a denial of certiorari given by the lower courts would not be presented in such an unentangled form as would commend itself according to normal criteria for a grant of certiorari. Adjudication by this Court of the specific issue will thus be greatly delayed. The result may well be that denial of certiorari would in practice attain a significance which the Court is unwilling to give it by candid adjudication. 52 It is, of course, one of our functions to resolve conflicts among the lower courts. But it is not our duty to stimulate such conflicts. Especially with regard to habeas corpus should be avoid such ambiguity. 'The great writ of liberty' ought not to be treated as though we were playing a game. When a question affecting the habeas corpus jurisdiction of the District Courts is before us, it is our duty to guide the District Courts and not refuse to guide them. We cannot avoid an answer on the ground that the question is not before the Court. Opinions are required in our legal system in order that the reasoning which justifies a conclusion may be made manifest. The disclosure of the reasoning by which a conclusion is reached cannot remotely be deemed dictum. A decision implies the process of reasoning which requires it. It is essential to be clear about what denial of certiorari means before determining whether a petition for certiorari is prerequisite to the exercise of habeas corpus jurisdiction by a District Court. Surely it is necessary to consider what a procedural requirement means before making it a requirement. 53 7. The significance of a denial of a petition for certiorari ought no longer to require discussion. This Court has said again and again and again that such a denial has no legal significance whatever bearing on the merits of the claim. The denial means that this Court has refused to take the case. It means nothing else. The State court's judgment is left undisturbed without any legal reinforcement whatever of the views which the State court expressed. Counsel at the bar have frequently been stopped for drawing comfort out of such a denial and the Court's opinions have indicated impatience with failure to recognize that the only thing that such a denial imports is that there were not four members of the Court who deemed it desirable, for their respective reasons, to review a decision of the lower court. Even before the Judiciary Act of 1925 so vastly extended this Court's certiorari jurisdiction, the Court said: 'The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times'. United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361. This note of impatience has been sounded repeatedly. 54 The wholly negative meaning of a denial of certiorari is not so merely because we have said it. We have said it because it must be so unless the whole conception of certiorari in relation to the business of this Court is to be radically transformed. Such a revolutionary change cannot justifiably be taken in relation to one large group of cases without drastic revision of the Court's treatment of such cases, with far-reaching consequences to the business of the Court and its proper discharge. 55 Nothing is more basic to the functioning of this Court than an understanding that denial of certiorari is occasioned by a variety of reasons which precludes the implication that were the case here the merits would go against the petitioner. Petitions may have been denied because, even though serious constitutional questions were raised, it seemed to at least six members of the Court that the issue was either not ripe enough or too moribund for adjudication; that the question had better await the perspective of time or that time would soon bury the question or, for one reason or another, it was desirable to wait and see; or that the constitutional issue was entangled with nonconstitutional issues that raised doubt whether the constitutional issue could be effectively isolated; or for various other reasons not relating to the merits. Divergent and contradictory reasons often operate as to the same petition and lead to a common vote of denial. The want of explanations for denials of certiorari is in part due to the fact that a collective reason frequently could not be given. To suggest that a District Court can determine the significance to be attached to this Court's denial of certiorari by an examination of the record on certiorari here is to offer the District Courts darkness without Ariadne's thread. Particularly is this true in cases sought to be brought here from the State courts in which State and federal grounds are frequently entangled and an unambiguous federal question often does not emerge from the record. 56 To attach significance to a denial of a certiorari petition regarding the merits of the issues raised by the petition would be to transform a mechanism for keeping cases out of this Court into a means of bringing them in. It would contradict all that led to the adoption of certiorari jurisdiction and would reject the whole course of the Court's treatment of such petitions, both in practice and profession. For if denial does import an expression of opinion upon the merits of the case, then we must deal with the merits of the case. During the last four fiscal years the District Courts throughout the country had annually from 500 to 600 habeas corpus cases brought by petitioners under State custody. To overrule Wade v. Mayo and to make it the duty of this Court to pass on the merits of anything like the number of these cases which would have to be brought here on petitions for certiorari from the State courts would throw an almost impossible burden upon the Court.1 57 8. We certainly ought not to condition the power of the local District Court to entertain a petition for habeas corpus on a prior denial of a petition for certiorari here if such denial carries no other significance than does the denial of certiorari in any other class of cases. Meaningless multiplication of steps in the legal process can hardly be deemed a virtue in judicial administration. Nor would it be more respectful of the dignity of a State court for the District Court to disagree with the State court's view of federal law if such disagreement came after this Court had denied certiorari rather than before. 58 It is suggested, however, that this Court should have the first opportunity to consider whether a State court was right in having denied a constitutional claim—what has been colloquially called a 'first-crack' policy. The most weighty considerations of practical administration counsel against it. The burden of the Court's volume of business will be greatly increased, not merely because a greater number of certiorari petitions would be filed, but by reason of the effective pressure toward granting petitions more freely. For if the 'first-crack' policy has any validity, it would require that every doubt be resolved in favor of granting certiorari, rather than leaving the case to the District Courts. 59 Moreover, State court decisions involving denial of federal claims made in collateral attack on a conviction are frequently decisions based merely on allegations in the pleadings. This Court can dispose of them only as a matter of abstract pleading. The District Courts, on the other hand, can hold hearings when deemed appropriate, consider allegations on their merits if they are at all substantial and dispose of what often turn out to be unmeritorious claims. Thus, the impact upon federal-State relationships of reversals of State court decisions, which this Court may not be able to avoid when it is limited to the pleadings, may well be avoided by lower federal courts, looking beyond paper allegations to the merits. 60 9. There is still another reason why it makes against, not for, sound administration of justice to bar exercise by a District Court of its habeas corpus jurisdiction merely because the discretionary power of this Court to review a State court decision has not been invoked. It is that cases involving federal claims by State prisoners so frequently involve questions of State law which must be answered before the federal issue can be reached. State questions are of two kinds: (1) Did the adverse State ruling exhaust the prisoner's available State remedies? (2) May the State court's judgment be deemed to rest on some State ground? 61 Nothing stands out more prominently in the Court's experience with these cases than the doubts and difficulties in ascertaining the law controlling local practice and local remedies. Thus, according to the procedure of one State a constitutional issue like that in Mooney v. Holohan, supra, must be raised by habeas corpus, not coram nobis, while in another State only coram nobis is available, not habeas corpus. Although a State court may have felt that it wrote clearly, we may not be able to read it clearly or at least in unison; some members of the Court read it one way, some another. See, e.g., People of State of New York ex rel. Whitman v. Wilson, 318 U.S. 688, 63 S.Ct. 840, 87 L.Ed. 1083; Morhous v. Supreme Court of New York, 293 N.Y. 131, 56 N.E.2d 79; People v. Sadness, 300 N.Y. 69, 89 N.E.2d 188. 62 The difficulties in determining exhaustion of State remedies are illustrated by a litigation another stage of which was reached by denial of certiorari last Monday. Hawk v. State of Nebraska, 339 U.S. 923, 70 S.Ct. 612. At an earlier date, the Supreme Court of Nebraska had affirmed a denial of habeas corpus by the lower State court. Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181. This Court granted certiorari and reversed on the merits, acting on the assumption that a federal right had been disregarded, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61, despite our earlier statement in Ex parte Hawk, 321 U.S. 114, 116, 64 S.Ct. 448, 449, 88 L.Ed. 572, to the effect that State remedies could not be deemed exhausted in Nebraska until coram nobis had been attempted. On the remand, the Nebraska Supreme Court advised us that we had misconceived its opinion and misunderstood local procedure—that it had not denied a federal claim out of hand but decided only that habeas corpus was not the proper procedural road to take in Nebraska. 146 Neb. 875, 22 N.W.2d 136. Hawk then applied for a writ of habeas corpus in the federal District Court for Nebraska, but was told that he must first try coram nobis in the State courts. 66 F.Supp. 195, affirmed sub nom. Hawk v. Jones, 8 Cir., 160 F.2d 807. The district judge showed his knowledge of his local law, for when the federal claim was asserted by coram nobis it was heard on the merits, decided by a Nebraska trial court against the petitioner and affirmed by the Nebraska Supreme Court, Hawk v. State, 151 Neb. 717, 39 N.W.2d 561. 63 The Hawk litigation illustrates the importance of the doctrine of exhaustion of State remedies. That doctrine is vital to the harmonious functioning of two judicial systems where one is subordinate to the other. But the litigation also shows that waste and friction are bound to be promoted if review of State court decisions in this field will have to come here initially. We are dealing with elusive and treacherous local legal materials which in their nature are not within the special competence of this Court. Such materials look one way if one examines only the dead letter of print. But to one brought up within the local system they carry meaning which never can be got from books. See Diaz v. Gonzalez, 261 U.S. 102, 106, 43 S.Ct. 286, 287, 67 L.Ed. 550. The surefooted manner in which the federal district judge dealt with Nebraska procedure in Hawk v. Olson, supra, indicates that he would not have made the error into which this Court fell. The Nebraska situation is representative of the difficulties and doubts that this Court has encountered again and again in regard to the local remedies available. The matter comes peculiarly within the rule of wisdom, often applied by this Court, whereby questions of local law and local practices will not be decided here but will be submitted to the knowledgeable views of federal judges in the various localities. See Gardner v. State of New Jersey, 329 U.S. 565, 583, 67 S.Ct. 467, 476, 91 L.Ed. 504, and cases cited. This rule respects all the considerations that preclude intervention by a federal court until the State courts have fully acted. 64 Burke v. State of Georgia, 338 U.S. 941, 70 S.Ct. 422, is another admirable illustration of why we should not require cases raising a dubious constitutional question as to the validity of State convictions to be brought here before habeas corpus is sought in the District Courts. That we denied certiorari 'without prejudice' to future proceedings in the District Court carried no legal significance.2 The case merely demonstrates how frequently in this situation preliminary questions of State procedure and State court jurisdiction are involved. Instead of allowing these local issues to be canvassed initially in the District Courts, it is now proposed to deal with cases like Burke v. State of Georgia by requiring that they be brought here enveloped in the fog of State procedural law and then leaving it to the District Courts to lift the fog after we have concluded that it is took thick for us to pierce. Such procedure, I submit, would neither further the administration of justice nor be conducive to the proper use of this Court's time for the effective conduct of its inescapable business nor advance the self-esteem of State courts. 65 10. Nor need we be concerned lest the federal District Courts will lightly inject themselves into the State criminal process and open wide the State prison doors. Experience completely dispels such excogitated fears. The District Courts are presided over by judges who are citizens of the State, with loyalties to it no less strong than those of the judges of the State courts. Judges often come to the federal courts from the State courts. The proof of the pudding is in the eating. The showing is overwhelming that the District Courts grant writs of habeas corpus most sparingly and only with due regard for this Court's decisions under the Due Proess Clause.3 66 Even though a petition for habeas corpus in a federal District Court may involve constitutional questions which were found against the petitioner by the highest court of his State, the District Court is not sitting as a court of review of the State court. A petition for habeas corpus in a federal court, after the State process has been exhausted, 'comes in from the outside,' as Mr. Justice Holmes phrased it in his dissenting opinion in Frank v. Mangum, 237 U.S. 309, 345, 346, 35 S.Ct. 582, 594, 595, 59 L.Ed. 969; a view which established itself as law in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. If it be suggested that as a matter of appearance, legal analysis apart, a federal District Court might be granting relief which the highest court of the State had denied, the same unanalyzed appearance would attach to a District Court's granting relief after this Court had denied it. 67 11. Due regard for State and federal relations as expressed in the doctrine of exhaustion of State remedies and adherence to the function played by certiorari in the business of this Court combine to reject as erroneous the notion that federal District Courts are to be barred from exercising their habeas corpus jurisdiction if certiorari was not first sought here. The error derives from the assumption that a petition for certiorari to this Court was included in the 'State remedies available' which must be exhausted before a federal court can entertain a writ of habeas corpus. This assumption appears for the first time in a per curiam opinion in Ex parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 450, 88 L.Ed. 572. It was repeated, though not in issue, in the per curiam in White v. Ragen, 324 U.S. 760, 764, 65 S.Ct. 978, 980, 89 L.Ed. 1348. A consideration of what actually was said in Ex parte Hawk on this matter makes it perfectly clear how the misconception about certiorari in relation to the District Court's jurisdiction in habeas corpus crept into Ex parte Hawk. The following is everything contained in Ex parte Hawk on the subject: 'Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted. Tinsley v. Anderson, 171 U.S. 101, 104—105, 18 S.Ct. 805, 807, 43 L.Ed. 91; Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760; United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 46 S.Ct. 1, 70 L.Ed. 138; Mooney v. Holohan, supra, 294 U.S. 103, 115, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Ex parte Abernathy, 320 U.S. 219, 64 S.Ct. 13, 88 L.Ed. 3.' 321 U.S. at pages 116—117, 64 S.Ct. at page 450, 88 L.Ed. 572. 68 The essence of this statement is the doctrine of exhaustion of State remedies. Two of the citations—Mooney v. Holohan and Ex parte Abernathy—have only that relevance. The three other citations—Tinsley v. Anderson; Urquhart v. Brown; United States ex rel. Kennedy v. Tyler—are directed to the particularization in the main statement as to the exhaustion of 'all state remedies available, including all appellate remedies * * * in this Court * * *.' These three cases illustrate a series of decisions in this Court holding that a lower federal court ordinarily ought not to exercise its jurisdiction in habeas corpus in favor of one in State custody even after a final determination by the highest court of a State unless he has availed himself of his remedy 'to review it by writ of error from this court.' Tinsley v. Anderson, 171 U.S. 101, 105, 18 S.Ct. 805, 807, 43 L.Ed. 91. 69 Of course. A writ of error was a writ of right. It makes all the difference in the world whether a prisoner knocks at the door of this Court to invoke its grace or has unquestioned access for the final determination of the federal question as to which the highest court of the State was merely an intermediate tribunal. The latter was the situation in the three cases cited in Ex parte Hawk. In the writ of error cases this Court held habeas corpus in the lower federal courts ought not to take the place of a mandatory appeal. Markuson v. Boucher, 175 U.S. 184, 20 S.Ct. 76, 44 L.Ed. 124. 70 But this jurisdictional situation was drastically changed by the Act of September 6, 1916, 39 Stat. 726, and the Act of February 13, 1925, 43 Stat. 936. The whole purport of this transforming jurisdictional legislation was to bar the door of this Court to litigation like this flood of habeas corpus cases. After this shift from review as of right to review by grace, it could no longer be said that a litigant forwent his right to have this Court review and reverse a State court. The right was gone. Only an opportunity—and a slim one—remained. It completely misconceives the doctrine which required a case to be brought to this Court by writ of error, because it was the duty of this Court to adjudicate the claim on the merits, to apply it to the totally different factors involved in certiorari. All the considerations of policy required that the process of constitutional adjudication through writ of error be exhausted before a lower federal court could step in. Until Ex parte Hawk there was no suggestion of assimilating certiorari to the writ of error doctrine. In the present context of the Court's business in relation to these cases—their volume and the required knowledge of local law with which the local federal judges are much more familiar than we can possibly be—all considerations of policy urge against requiring certiorari to be filed and denied before the District Court may be allowed to exercise jurisdiction. 71 The reasons underlying stare decisis are not applicable to such a procedural suggestion as Ex parte Hawk made regarding the requirement of petitioning this Court for certiorari before evoking the District Court's jurisdiction on habeas corpus. That suggestion never was translated into practice so far as the records of this Court disclose. What was specifically decided in Ex parte Hawk did become the practice of this Court—that is, petitions for leave to file a writ of habeas corpus in this Court under § 262 of the Judicial Code, now 28 U.S.C. § 1651, 28 U.S.C.A. § 1651, were thereafter denied. But no instance has been revealed in which this Court acted on the suggestion that exhaustion of State remedies includes denial of certiorari here. Apart from the fact that Wade v. Mayo displaced the inclusion of certiorari as part of the State remedies, it was recognized at the last term of Court that the scope of Ex parte Hawk was that it expressed the 'doctrine of exhaustion of state remedies'. Young v. Ragen, 337 U.S. 235, 238, 69 S.Ct. 1073, 1074. 72 12. A final point remains and that is the suggestion that the provision of the 1948 revision of the Judicial Code requires adherence to what was said in Ex parte Hawk about resort to certiorari. The Code provisions say no such thing nor do the Reviser's notes. Section 2254 of Title 28 merely formulates the judicial doctrine first announced by this Court in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868—the doctrine of exhaustion of State remedies: 'An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State * * *. 73 An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.' Wade v. Mayo made it clear that certiorari is not a remedy 'available in the courts of the State' and no claim is now made to the contrary. With that abandonment goes the uncritical inclusion by Ex parte Hawk of certiorari among the remedies of the State. Wade v. Mayo, to be sure, could not have been before the Congress, but the Reviser characterized § 2254 as 'declaratory of existing law as affirmed by the Supreme Court,' adding 'See Ex parte Hawk.' That decision is sound enough in its essential requirement for 'exhaustion of state remedies'. The slip in analysis it contained as to what are 'State remedies' is surely not the equivalent of an enactment by Congress. A far more persuasive case for finding reenactment by Congress of a decision of this Court was rejected in Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084. 74 13. In short, the decision reached today has alternative consequences neither of which, I respectfully submit, can be justified. In barring a District Court from entertaining a petition for habeas corpus on behalf of a State prisoner prior to denial of certiorari here, the decision must mean either (1) that denial of a petition for certiorari in this class of cases, unlike denials in all other classes of cases, would serve the purpose of an adjudication on the merits, thereby carrying with it all the weight that an adjudication on the merits by this Court should carry with a District Court even in habeas corpus cases, or (2) that such a denial, as is true of denials in any other type of case, has no legal significance. 75 The first alternative—that in habeas corpus cases denial of certiorari has the effect of a disposition on the merits—would require a complete change in our consideration of such petitions by this Court. They would have to be treated as we now treat cases in which a petition for certiorari is granted so as to be heard on the merits. This would cast a new burden upon the Court full of the direst consequences to the proper disposition of the rest of the business of the Court. In addition, if denial of certiorari as though on the merits but without full dress consideration would, for all effective purposes, preclude resort to the District Courts on a claim that State custody is in violation of the Constitution, it would judicially nullify the habeas corpus jurisdiction which was first given to the lower federal courts by the Act of February 5, 1867, and has ever since been retained. On the second alternative, i.e., that denial of certiorari in habeas corpus cases is like any other denial of certiorari, the Court would announce that a meaningless step in this Court is an indispensable preliminary to going to the local District Court. 76 I agree with the opinion of Judge Phillips below that the case should be reversed and remanded to the District Court. 77 Mr. Justice JACKSON, being of the opinion that this is the better of the two unsatisfactory courses open to us, joins this opinion. 1 Ex parte Darr, 84 Okl.Cr. 352, 182 P.2d 523. 2 77 F.Supp. 553, 556. 3 77 F.Supp. 553. 4 172 F.2d 668. 5 Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210, 45 L.Ed. 249. 6 McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238. 7 Hawk v. Olson, 326 U.S. 271, 274, 66 S.Ct. 116, 118, 90 L.Ed. 61. 8 Holiday v. Johnston, 313 U.S. 342, 350, 550, 61 S.Ct. 1015, 1017, 85 L.Ed. 1392; Price v. Johnston, 334 U.S. 266, 291 292, 68 S.Ct. 1049, 1062, 1063, 92 L.Ed. 1356; 28 U.S.C. § 2242, 28 U.S.C.A. § 2242, restating R.S. § 754. 9 See Hawk v. Olson, supra, 326 U.S. at pages 274—275, motes 3, 4, 66 S.Ct. at page 118. 10 Comity through discretion in granting habeas corpus had an antecedent in an early statutory command restraining federal injunctive interference with state courts. 28 U.S.C. § 2283, 28 U.S.C.A. § 2283, 1 Stat. 334, § 5; see Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892. Cf. the three-judge district court provisions, 28 U.S.C. §§ 2281, 2284, 28 U.S.C.A. §§ 2281, 2284. 11 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868. 12 117 U.S. 241, 252, 6 S.Ct. 734, 740, 29 L.Ed. 868; Cook v. Hart, 146 U.S. 183, 13 S.Ct. 40, 36 L.Ed. 934. 13 111 U.S. 176, 182, 4 S.Ct. 355, 358, 28 L.Ed. 390. 14 117 U.S. 516, 6 S.Ct. 848, 29 L.Ed. 994. 15 In re Duncan, 139 U.S. 449, 454, 11 S.Ct. 573, 574, 35 L.Ed. 219. 16 In re Wood, 140 U.S. 278, 11 S.Ct. 738, 742, 35 L.Ed. 505. 17 In re Jugiro, 140 U.S. 291, 11 S.Ct. 770, 35 L.Ed. 510; In re Frederich, 149 U.S. 70, 77—78, 13 S.Ct. 793, 795, 796, 37 L.Ed. 653; People of State of New York v. Eno, 155 U.S. 89, 98, 15 S.Ct. 30, 33, 39 L.Ed. 80; Pepke v. Cronan, 155 U.S. 100, 15 S.Ct. 34, 39 L.Ed. 84; Whitten v. Tomlinson, 160 U.S. 231, 242, 16 S.Ct. 297, 301, 40 L.Ed. 406; Tinsley v. Anderson, 171 U.S. 101, 104 105, 18 S.Ct. 805, 807, 43 L.Ed. 91; State of Minnesota v. Brundage, 180 U.S. 499, 503, 21 S.Ct. 455, 457, 45 L.Ed. 639; Reid v. Jones, 187 U.S. 153, 23 S.Ct. 89, 47 L.Ed. 116; Urquhart v. Brown, 205 U.S. 179, 181—182, 27 S.Ct. 459, 460, 51 L.Ed. 760; United States ex erl. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 2, 70 L.Ed. 138. 18 169 U.S. 284, 291, 18 S.Ct. 323, 326, 42 L.Ed. 748. 19 175 U.S. 184, 187, 20 S.Ct. 76, 77, 44 L.Ed. 124. 20 Ex parte Spencer, 228 U.S. 652, 660—661, 33 S.Ct. 709, 711, 57 L.Ed. 1010. 21 People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 70, 49 S.Ct. 61, 64, 73 L.Ed. 184, 62 A.L.R. 785. 22 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406. 23 The point has been confirmed many times. Ex parte Botwinski, 314 U.S. 586, 62 S.Ct. 476, 86 L.Ed. 473; Ex parte Davis, 317 U.S. 592, 63 S.Ct. 26, 87 L.Ed. 486; Ex parte Williams, 317 U.S. 604, 63 S.Ct. 431, 87 L.Ed. 491; Ex parte Abernathy, 320 U.S. 219, 64 S.Ct. 13, 88 L.Ed. 3; and see cases cited in Note 25, infra. 24 321 U.S. 114, 116—117, 64 S.Ct. 448, 450, 88 L.Ed. 572. 25 White v. Ragen, 324 U.S. 760, 767, 65 S.Ct. 978, 982, 89 L.Ed. 1348; House v. Mayo, 324 U.S. 42, 46, 48, 65 S.Ct. 517, 520, 521, 89 L.Ed. 739; Marino v. Ragen, 332 U.S. 561, 564, 68 S.Ct. 240, 242, 92 L.Ed. 170; Wade v. Mayo, 334 U.S. 672, 679, 68 S.Ct. 1270, 1274, 92 L.Ed. 1647; Young v. Ragen, 337 U.S. 235, 238, 69 S.Ct. 1073, 1074. And see note 32 infra. 26 324 U.S. 760, 764, 65 S.Ct. 978, 981, 89 L.Ed. 1348. 27 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647. 28 324 U.S. 760, 765, 65 S.Ct. 978, 981, 89 L.Ed. 1348. In the White case we concluded that the state ground was the refusal by the Supreme Court of Illinois to entertain applications with possible fact controversies. 324 U.S. at pages 766—767, 65 S.Ct. at pages 981, 982. We made it clear that while proper procedure does not require review in this Court of a judgment denying habeas corpus on an adequate state ground, other available state remedies must be exhausted before an application should be entertained in a district court. 324 U.S. at page 767, 65 S.Ct. at page 982. 29 See White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868. 30 Young v. Ragen, 337 U.S. 235, 238, 69 S.Ct. 1073, 1074. 28 U.S.C. § 2254, 28 U.S.C.A. § 2254, reads: 'An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. 'An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he had the right under the law of the State to raise, by any available procedure, the question presented.' 31 Hearings before a Subcommittee of the Senate Judiciary Committee on H.R.3214, April 22 to June 7, 1948, 80th Cong., 2d Sess., p. 28. See 28 U.S.C.Congressional Service, p. XXVIII; H.R.Rep.No. 308 on H.R.3214, 80th Cong., 1st Sess., p. 3. 32 See Lyon v. Harkness, 1 Cir., 151 F.2d 731, 733; United States ex rel. Monsky v. Warden of Clinton State Prison, 2 Cir., 163 F.2d 978, 980; Stonebreaker v. Smyth, 4 Cir., 163 F.2d 498, 501, 502; Nusser v. Aderhold, 5 Cir., 164 F.2d 127; Makowski v. Benson, 6 Cir., 158 F.2d 158; United States ex rel. Ross v. Nierstheimer, 7 Cir., 159 F.2d 994; Guy v. Utecht, 8 Cir., 144 F.2d 913, 915; Gordon v. Scudder, 9 Cir., 163 F.2d 518; Herzog v. Colpoys, 79 U.S.App.D.C. 81, 143 F.2d 137, 138. 33 See S.Rep.No. 1559, 80th Cong., 2d Sess., p. 9 and H.R.Rep.No. 308, 80th Cong., 1st Sess., p. A 180. 34 Subsequent statements by Judge John J. Parker, who served as Chairman of the Judicial Conference of Senior Circuit Judges, Committee on Habeas Corpus, are instructive. '* * * The thing in mind in the drafting of this section was to provide that review of state court action be had so far as possible only by the Supreme Court of the United States, whose review of such action has historical basis, and that review not be had by the lower federal courts, whose exercise of such power is unseemly and likely to breed dangerous conflicts of jurisdiction. * * * One of the incidents of the state remedy is (the) right to apply to the Supreme Court for certiorari. If a petitioner has failed to make such application after the refusal of the state court to release him, he cannot be said to have exhausted the remedies available to him under state procedure, provided he has the right to apply again to the state courts for relief as a basis for application to the Supreme Court for certiorari. * * * The fact that certiorari from the Supreme Court to the state court may be called a federal remedy is not determinative of the question here involved. The crucial matter is that petitioner still has a right to attack in the courts of the state the validity of his conviction and, upon the record made in such attack, to petition the highest court of the land for a review. So long as such right remains, he does not have, and ought not have, the right to ask a review by one of the lower federal courts. * * *' Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171, 176—177. Wade v. Mayo, supra, had no effect on the discussion of § 2254, since it came down two days prior to the enactment of the new code, too late for consideration. 35 See H.R.Rep.No. 308, 80th Cong., 1st Sess., p. A 180, and final reviser's note to § 2254. 36 See Note 30 supra. Compare § 2254, H.R. 3214, Union Calendar #140, H.R.Rep.No. 308, 80th Cong., 1st Sess. with § 2254, H.R. 3214 in Senate, S.Rep.No. 1559, 80th Cong., 2d Sess., p. 9. 37 The two exceptions at the last of the first paragraph provide for particular situations in the states. The definition of exhaustion in the last paragraph was made by the Senate at the instance of the Judicial Conference of Senior Circuit Judges. S.Rep.No. 1559, 80 Cong., 2d Sess., p. 9. Report of the Judicial Conference, September Session 1947, p. 17. H.R. 3214 had permitted federal habeas corpus not only where state remedies had been exhausted but where 'there is no adequate remedy available in' the state court. The Senate Report informs us that the purpose of the Senate amendment was 'to substitute detailed and specific language for the phrase 'no adequate remedy available.' That phrase is not sufficiently specific and precise, and its meaning should, therefore, be spelled out in more detail in the section as is done in the amendment.' S.Rep.No. 1559, 80th Cong., 2d Sess., p. 10. 38 Compare Bowen, L.J., in Cooke v. New River Co., 38 Ch.D. 56, 70—71: '* * * like my Brothers who sit with me, I am extremely reluctant to decide anything except what is necessary for the special case, because I believe by long experience that judgments come with far more weight and gravity when they come upon points which the Judges are bound to decide, and I believe that obiter dicta, like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the Judges who have uttered them, and are a great source of embarrassment in future cases.' Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 399—400, 5 L.Ed. 257; Wright v. United States, 302 U.S. 583, 593—594, 58 S.Ct. 395, 399, 82 L.Ed. 439. 39 Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 521, 68 L.Ed. 989. 40 Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868. 41 Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989, note 39 supra. 42 Ex parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 450, 88 L.Ed. 572; House v. Mayo, 324 U.S. 42, 48, 65 S.Ct. 517, 521, 89 L.Ed. 739; White v. Ragen, 324 U.S. 760, 764—765, 65 S.Ct. 978, 980, 981, 89 L.Ed. 1348. 43 Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857. 44 See note 32, supra. 45 Wade v. Mayo, 334 U.S. 672, 681, 68 S.Ct. 1270, 1275, 92 L.Ed. 1647. 46 In re Cuddy, 131 U.S. 280, 9 S.Ct. 703, 33 L.Ed. 154; Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, 146 A.L.R. 357; Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 579, 85 L.Ed. 830; Hawk v. Olson, 326 U.S. 271, 279, 66 S.Ct. 116, 120, 90 L.Ed. 61. * Mr. Justice Jackson also joined in this opinion. See 339 U.S. 238, 70 S.Ct. 607. 47 Ex parte Darr, 84 Okl.Cr. 352, 182 P.2d 523. 1 Judge Learned Hand has carried the requirement of eliciting a denial of a petition for certiorari in habeas corpus cases to its logical conclusion by giving such denial conclusive effect on the merits. Schechtman v. Foster, 2 Cir., 172 F.2d 339, 342—343. That is the logical conclusion of such a requirement—but it is the logic of unreality. For it flies in the face of the actualities of a denial. The considerations entering into such denials have necessitated the hitherto settled principle that denial carries no suggestion of adjudication on the merits. 2 The considerations that lead to an explicit statement that denial of certiorari is 'without prejudice' to other avenues of relief because it does not bear on the merits of course carry no negative implication that in the absence of such a phrase the denial is with prejudice. 3 The Administrative Office of the United States Courts has compiled the following statistics: Fiscal Years 1945-46 1946-47 1947-48 1948-49 Habeas corpus cases involving State prisoners disposed of by District Courts........... 503. 481. 487 610 Cases in which petitioners were successful........ 14. 13. 11 10 Percentage of cases in which petitioners were successful. 2.8%. 2.7% 2.3% 1.6% See Speck, Statistics on Federal Habeas Corpus, 10 Ohio State L. J. 337, 357 (1949).

89

339 U.S. 255 70 S.Ct. 585 94 L.Ed. 811 ORDER OF RY. CONDUCTORS OF AMERICAv.SOUTHERN RY. CO. No. 438. Argued Feb. 8—9, 1950. Decided April 10, 1950. Mr. V. C. Shuttleworth, Cedar Rapids, Iowa, for petitioner. Mr. W. Scott Mcagill, Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 This case raises the same statutory question as Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577. The petitioner, Order of Railway Conductors, is the only accredited bargaining representative of conductors employed by the respondent Southern Railway. A dispute arose between certain conductors and the railroad concerning the railroad's obligation under the collective-bargaining agreement to give conductors extra pay for certain services. The claims of the conductors were referred to the union, which sought by negotiation to persuade the railroad to pay. The railroad refused, and thereafter prayed a South Carolina state court for a declaratory judgment interpreting the agreement as not requiring the claimed payments. The trial court first refused to exercise jurisdiction. Citing Order of Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318, it held that state courts, like federal courts, should leave settlement of such disputes to the National Railroad Adjustment Board. The state Supreme Court reversed, holding that the state court did have power to interpret the bargaining agreement and adjudicate the dispute. 210 S.C. 121, 41 S.E.2d 774. After a lengthy trial the lower court held that the collective agreement did not require the compensation sought by the conductors and entered the declaratory judgment requested. The Supreme Court affirmed. 215 S.C. 280, 54 S.E.2d 816. 2 For reasons set out in the Slocum case, 339 U.S. 239, 70 S.Ct. 577, we hold that the South Carolina state court was without power to interpret the terms of this agreement and adjudicate the dispute. We discuss this case separately because it sharply points up the conflicts that could arise from state court intervention in railroad-union disputes. After the railroad had sued in the state court, the union filed a petition for hearing and award before the Adjustment Board. The state court nevertheless proceeded to adjudicate the dispute. Sustaining the state court's action would invite races of diligence whenever a carrier or union preferred one forum to the other. And if a carrier or a union could choose a court instead of the Board, the other party would be deprived of the privilege conferred by § 3, First (i) of the Railway Labor Act, 48 Stat. 1191, 45 U.S.C. § 153, First (i), 45 U.S.C.A. § 153, First (i), which provides that after negotiations have failed 'either party' may refer the dispute to the appropriate division of the Adjustment Board. 3 The judgment of the South Carolina Supreme Court is reversed, and the cause is remanded for proceedings not inconsistent with this opinion. 4 It is so ordered. 5 Mr. Justice REED is of the view that the decision below should be affirmed for the reasons set out in his dissent in Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577. 6 Mr. Justice DOUGLAS took no part in the consideration or decision of this case.

910

339 U.S. 258 70 S.Ct. 586 94 L.Ed. 815 MORFORDv.UNITED STATES. No. 236. Distributed Oct. 9, 1949. Decided April 10, 1950. Messrs David Rein, Washington, D.C., Abraham J. Isserman, Los Angeles, Cal., Joseph Forer, Washington, D.C., for petitioner. Messrs. Philip B. Perlman, Sol. Gen., Washington, D.C., Alexander M. Campbell, Asst. Atty. Gen., Robert S. Erdahl, Washington, D.C., for the United States. PER CURIAM. 1 In this case the trial court did not permit counsel for petitioner to interrogate prospective government employee jurors upon voir dire examination with specific reference to the possible influence of the 'Loyalty Order,' Executive Order No. 9835, 5 U.S.C.A. § 631 note, on their ability to render a just and impartial verdict. Such questioning was permitted in Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519; see n. 4 of the Court's opinion, Id., 339 U.S. 170—171, 70 S.Ct. 522. 2 We said in Dennis that 'Preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury.' Id., 339 U.S. 171—172, 70 S.Ct. 523. Since that opportunity was denied in this case, the petition for writ of certiorari is granted and the judgment of the Court of Appeals is reversed. 3 Mr. Justice BLACK and Mr. Justice FRANKFURTER concur in the reversal for the reasons expressed in their opinions in Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519. 4 Mr. Justice DOUGLAS concurs in the reversal of the judgment. Since, however, counsel requested that all government employees be excluded from the jury in these cases, he thinks the request should have been granted for the reasons stated by the dissenting Justices in Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, and in Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519. 5 Mr. Justice CLARK took no part in the consideration or decision of this case.

01

339 U.S. 239 70 S.Ct. 577 94 L.Ed. 795 SLOCUMv.DELAWARE, L. & W.R. CO. No. 391. Argued Feb. 8, 1950. Decided April 10, 1950. Messrs. Leo J. Hassenauer, Chicago, Ill., Manly Fleischmann, Buffalo, N.Y., for petitioner. Mr. Pierre W. Evans, Elmira, N.Y., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 Section 3 of the Railway Labor Act confers jurisdiction on the National Railway Adjustment Board to hold hearings, make findings, and enter awards in all disputes between carriers and their employees 'growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions * * *.'1 The question presented is whether state courts have power to adjudicate disputes involving such interpretations when the Adjustment Board has not acted. 2 The respondent railroad has separate collective-bargaining agreements with the Order of Railroad Telegraphers and the Brotherhood of Railway Clerks.2 A dispute arose between the two unions concerning the scope of their respective agreements. Each claimed for its members certain jobs in the railroad yards at Elmira, New York. The railroad agreed with the Clerks Union. The chairman of Telegraphers protested, urging reassignment of the work to members of his union and claiming back pay on behalf of certain individual members. The claims were pursued in 'the usual manner' required by § 3, First (i) of the Railway Labor Act, 45 U.S.C. § 153, First (i), 45 U.S.C.A. § 153, First (i), as a prerequisite to invoking jurisdiction of the Adjustment Board.3 That section further provides that, '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 * * *.' 3 Instead of invoking the jurisdiction of the Adjustment Board, the railroad filed this action for declaratory judgment in a New York state court, naming both unions as defendants. It prayed for an interpretation of both agreements, and for a declaration that the Clerks' agreement, not the Telegraphers', covered the jobs in controversy. It also asked for a declaration that the Telegraphers must refrain from making similar claims under its bargaining agreement. Telegraphers moved to dismiss the case on the ground that the Railway Labor Act left the state court without jurisdiction to interpret the contracts and adjudicate the dispute. That motion was denied. 274 App.Div. 950, 83 N.Y.S.2d 513. After a trial, the court interpreted the contracts as the railroad had urged, and entered the requested declarations. This judgment was affirmed by the Court of Appeals of New York, two judges dissenting. 299 N.Y. 496, 87 N.E.2d 532.4 The majority thought that our opinion in Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, left state courts free to adjudicate disputes arising out of a carrier-union collective agreement without obtaining the Board's interpretation of that agreement. The dissenting judges, however, relied on Order of Ry. Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318, where we held that federal courts should not interpret such agreements prior to interpretation by the Adjustment Board. They asserted that this rule was also applicable in state courts. We granted certiorari to consider these questions. 338 U.S. 890, 70 S.Ct. 242. 4 The first declared purpose of the Railway Labor Act 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. This purpose extends both to disputes concerning the making of collective agreements and to grievances arising under existing agreements. See Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 722, 65 S.Ct. 1282, 1289, 89 L.Ed. 1886. The plan of the Act is to provide administrative methods for settling disputes before they reach acute stages that might be provocative of strikes. Carriers are therefore required to negotiate with bargaining representatives of the employees. Virginian R. Co. v. System Federation, 300 U.S. 515, 547, 548, 57 S.Ct. 592, 599, 81 L.Ed. 789. The Act also sets up machinery for conciliation, mediation, arbitration and adjustment of disputes, to be invoked if negotiations fail. 5 In this case the dispute concerned interpretation of an existing bargaining agreement. Its settlement would have prospective as well as retrospective importance to both the railroad and its employees, since the interpretation accepted would govern future relations of those parties. This type of grievance has long been considered a potent cause of friction leading to strikes. It was to prevent such friction that the 1926 Act provided for creation of various Adjustment Boards by voluntary agreements between carriers and workers. 44 Stat. 578. But this voluntary machinery proved unsatisfactory, and in 1934 Congress, with the support of both unions and railroads, passed an amendment which directly created a national Adjustment Board composed of representatives of railroads and unions.5 48 Stat. 1189-1193. The Act thus represents a considered effort on the part of Congress to provide effective and desirable administrative remedies for adjustment of railroad-employee disputes growing out of the interpretation of existing agreements. The Adjustment Board is well equipped to exercise its congressionally imposed functions. Its members understand railroad problems and speak the railroad jargon.6 Long and varied experiences have added to the Board's initial qualifications. Precedents established by it, while not necessarily binding, provide opportunities for a desirable degree of uniformity in the interpretation of agreements throughout the nation's railway systems. 6 The paramount importance of having these chosen representatives of railroads and unions adjust grievances and disputes was emphasized by our opinion in Order of Conductors v. Pitney, supra. There we held, in a case remarkably similar to the one before us now, that the Federal District Court in its equitable discretion should have refused 'to adjudicate a jurisdictional dispute involving the railroad and two employee accredited bargaining agents * * *.' Our ground for this holding was that the court 'should not have interpreted the contracts * * *' but should have left this question for determination by the Adjustment Board, a congressionally designated agency peculiarly competent in this field. 326 U.S. at pages 567-568, 66 S.Ct. at page 325, 90 L.Ed. 318. This reasoning equally supports a denial of power in any court—state as well as federal—to invade the jurisdiction conferred on the Adjustment Board by the Railway Labor Act. 7 Our holding here is not inconsistent with our holding in Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad's action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the Board. 8 We hold that the jurisdiction of the Board to adjust grievances and disputes of the type here involved is exclusive.7 The holding of the Moore case does not conflict with this decision, and no contrary inference should be drawn from any language in the Moore opinion. It was error for the New York courts to uphold a declaratory judgment interpreting these collective-bargaining agreements. The judgment of the New York Court of Appeals is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. 9 It is so ordered. 10 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 11 Mr. Justice REED, dissenting. 12 The Court denies 'power in any court—state as well as federal to invade the jurisdiction conferred on the Adjustment Board by the Railway Labor Act.' It says 'that the jurisdiction of the Board to adjust grievances and disputes of the type here involved is exclusive.' Read literally, this language would indicate that the Court holds that the Board in most cases not only has exclusive jurisdiction for the institution of proceedings to determine rights under railroad collective-bargaining agreements, but also for their final determination, i.e., that there is no judicial review of the Board's awards, except those for money. The Court, however, in note 7 states that it is not 'called upon to decide any question concerning judicial proceedings to review board action or inaction.' From this I take it that the Court means only to hold that the Board has what might be called exclusive primary jurisdiction and that the decision is to have no implications for later cases which might pose the issue of judicial review of Board 'action or inaction.'1 Nevertheless I think the Court's decision lacks statutory basis, and I dissent from its opinion and judgment. 13 Since the Court's decision will be referred to as a precedent for solving administrative jurisdiction problems, it seems worth while to set out my reasons for disagreeing with the Court's opinion. We can foresee only a part of the complications that this ruling of exclusive primary jurisdiction may bring into the administration of the Railway Labor Act. The determination of what adjudicatory body has power to judge a controversy is basic to all litigation. Jurisdiction that has always been recognized to exist in state courts should not be taken from them by inference drawn with difficulty from the statute by this Court after contrary conclusions by two state courts.2 The passage of a federal law creating a forum for the enforcement of certain contract rights connected with commerce does not necessarily withdraw from state courts their recognized jurisdiction over these contract controversies. The purpose to limit enforcement to the federal forum must be found in the federal statute in express words or necessary implication.3 14 The Court calls attention to nothing to supply these requisites. There is not a line in the statute, and so far as I can ascertain, not a suggestion in the hearings that the creation of the Adjustment Board was intended by Congress to close the doors of the courts to litigants with otherwise justiciable controversies. The only expression in the statute which might conceivably support the Court is the general declaration of the Act's purpose '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.'4 But this expression is as consistent with an intention to provide an alternative forum as to provide an exclusive one. Experience has not demonstrated that the settlement of grievances has been any the less prompt and orderly in the courts than it has been in the Board.5 15 Neither the Act nor our precedents support the Court's ruling. In the section which conferred jurisdiction on the board, § 3 First (i), Congress provided that disputes 'shall' be first handled by negotiations between the parties and on their failure 'may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board * * *.'6 The use of 'may' and 'shall' in the 1934 Railway Labor Act may not be decisive, but I fail to see how it can now be disregarded completely, when at the time of Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, the use of 'may' seemed an indication of congressional purpose sufficient to furnish a ground for holding that courts had concurrent primary jurisdiction.7 16 The ruling in Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075, does not support today's decision. In that case this Court held repugnant to the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., a suit in a state court to recover unreasonable carrier charges. The Act had given the Commission power to determine the reasonableness of rates filed and published under its provisions. It also prohibited explicitly preferences and discriminations in favor of shippers. The Court held that if a shipper could recover in the courts part of a tariff charge, he would receive a discriminatory preference. Since this would be wholly inconsistent with the Interstate Commerce Act, state courts were without jurisdiction to entertain suits for the recovery of unreasonable charges.8 By necessary inference the Commission was found to have the sole power to entertain originally proceedings which might result in the alteration of an established schedule. But the Court was careful to say that a statute was not to be construed as taking away a common-law right unless it were found that it was 'so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy.'9 The Railway Labor Act has no rule of law, similar to that against preferences, that would be controverted if different courts in different states should construe identical collective-bargaining agreements differently. If, to preserve uniformity in the rulings of the Board, it were necessary that it have exclusive primary jurisdiction over grievance disputes, Congress would hardly have provided, as it did, that carriers and railroads by agreement might set up system and regional boards independent of the National Board.10 The Abilene case was pressed by four dissenters as controlling authority to compel the conclusion that the Board had exclusive jurisdiction in Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886.11 But on the tacit assumption that courts were not ousted of their jurisdiction, we upheld the right of employees to sue the carrier although the employment relationship still existed. 17 The case before us is quite different from Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61, and General Committee of Adjustment of Brotherhood of Locomotive Engineers for Missouri K.T.R.R. v. Missouri-K.-T.R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76. Those concerned controversies of a kind unfamiliar to courts, and they involved the Mediation Board, which could impose sanctions only when the parties agreed to accept its awards.12 We held that the issues in those cases were not justiciable in the federal courts, since the 'concept of mediation is the antithesis of justiciability.'13 Here, the controversy relates to the interpretation of contracts, a function courts have always performed, and 'it is not to be lightly assumed that the silence of the statute bars from the courts an otherwise justiciable issue'.14 18 Nor did Order of Railway Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318, determine the present jurisdictional issue. In a federal bankruptcy court handling a railroad reorganization, an interpretation of a collective-bargaining agreement was sought. We declared that the federal equity court should 'exercise equitable discretion to give (the National Railroad Adjustment Board) the first opportunity to pass on the issue.'15 Thus we determine only that under the circumstances of that case the District Court as a matter of discretion should have remanded to the Board a controversy over the meaning of the collective-bargaining agreement, and at the same time should have retained jurisdiction to apply the Board's interpretation to the controversy. There was no intimation that the obligation to send the controversy to the Board was any more universal than the obligation of an equity court to sometimes remit parties to the state courts for a preliminary decision on state law.16 There was no ruling that Congress had deprived the District Court of jurisdiction. Today the Court is compelled to extend the Pitney precedent from 'discretion' to 'jurisdiction' because federal courts lack power to order state courts to exercise in a particular manner their equitable discretion. But the Court's inability to secure a flexible rule does not warrant the Court to impose on the state courts a rigid one. 19 Congress surely would not have granted this exclusive primary power to adjudicate contracts to a body like the Board. It consists of people chosen and paid, not by the Government, but by groups of carriers and the large national unions.17 Congress has furnished few procedural safeguards. There is no process for compelling the attendance of witnesses or the production of evidence. There is no official record, other than that of the informal pleadings. Hearings are conducted without witnesses.18 The Board has operated without giving individuals, a chance to be heard unless they were presented by unions.19 20 Throughout this opinion I have assumed that the Court means only to impose a requirement of primary recourse to the Board. But that inevitably means many litigants would be deprived of access to the courts. The extent of judicial review of awards other than money awards is doubtful, and it is highly questionable whether even a money award can be reviewed in the courts if only the carrier wishes review.20 Most important, the statute provides no relief for a petitioning party—be he union, individual or carrier against an erroneous order of the Board.21 This Court may be hard put to protect the rights of minorities under these circumstances.22 21 Nevertheless the Court says that Congress has forced the parties into a forum that has few of the attributes of a court, but which may be the final judge of the rights of individuals. Our duty as a court does not extend to a determination of the wisdom of putting a solution of industry problems into the hands of industry agencies so far as the Constitution will permit.23 Some may deem it desirable to weld various industries or professions into self-governing forms, completely free from judicial intervention. This desire may spring from a conviction that experience and training in highly specialized fields give the members of a group that understanding and capacity which will enable them to govern their internal affairs better than would courts dealing with the generality of human relations and only occasionally with these specialized controversies. Congress, however, has never completely so isolated an industry from the rest of the nation. There is too much interrelation and interdependence between such groups and the rest of the population. In some instances the Congress has given great sweep to agencies in some fields. Even special courts have been created, such as the Court of Customs and Patent Appeals. When Congress has created these administrative agencies and special courts, it has carefully outlined their powers, provided stated protections for individual rights, and has furnished neutral officials. But here, although none of these protections have been provided, the Court finds an underlying purpose in Congress to abolish, without discussion, judicial jurisdiction. 22 When an administrative body varies so markedly from the kind which experience has shown may safely be given final power over people's rights, it should not be assumed that Congress intended the primary jurisdiction of the Board to be exclusive. A more definite expression is required. The decision of the Court places it in a dilemma of its own creation—it must in the future build up a complex system of review, or it must say that Congress intended to leave the rights of many individuals and organizations to the unreviewable discretion of a privately selected board. By giving effect to the plain words of the statute which confer on the Board a jurisdiction only concurrent with the courts, we should avoid the necessity for judicial legislation in unexplored areas of the law. If unseemly results should follow, the legislative body would have the facilities to undertake the important and extensive task of deciding what should be the proper distribution of authority between courts and administrative bodies in connection with railroad labor relations. Courts should await specific legislative direction instead of reading into a statute a purpose to transfer jurisdiction from state courts to a federal board. 1 48 Stat. 1185, 1189—1193, 45 U.S.C. § 153, 45 U.S.C.A. § 153. 2 The full name of the latter union is Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees. 3 '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 * * * 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. 4 The Appellate Division of the Supreme Court (3d Dept.) also affirmed both the order of the trial court denying the motion to dismiss, 269 App.Div. 467, 57 N.Y.S.2d 65, and the subsequent judgment on the merits, 274 App.Div. 950, 83 N.Y.S.2d 513. An opinion of the New York Supreme Court denying the Union's motion to remove the action to the U.S. District Court is reported at 183 Misc. 454, 50 N.Y.S.2d 313. The opinion of the United States District Judge remanding the case to the state court is reported in D.C., 56 F.Supp. 634. 5 'These unadjusted disputes have become so numerous that on several occasions the employees have resorted to the issuance of strike ballots and threatened to interrupt interstate commerce in order to secure an adjustment. This has made it necessary for the President of the United States to intervene and establish an emergency board to investigate the controversies. This condition should be corrected in the interest of industrial peace and of uninterrupted transportation service. This bill, therefore, provides for the establishment of a national board of adjustment to which these disputes may be submitted if they shall not have been adjusted in conference between the parties.' H.R. Rep. No. 1944, 73d Cong., 2d Sess. 3. 6 For an interesting discussion of the Act's history and purposes, see Garrison, 'The National Railroad Adjustment Board: A Unique Administrative Agency,' 46 Yale L.J. 567 et seq. 7 We are not confronted here with any disagreement or conflict in interest between an employee and his bargaining representative, as in Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. Nor are we called upon to decide any question concerning judicial proceedings to review board action or inaction. 1 The sections of the statute which bear on appealability are 48 Stat. 1191, § 3 First (m) and (p). See Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, dissent, 761, 65 S.Ct. 1282, 1307, 89 L.Ed. 1886. 2 Delaware, L. & W.R. Co. v. Slocum, 299 N.Y. 496, 87 N.E.2d 532; Southern R. Co. v. Order of Ry. Conductors of America, 210 S.C. 121, 41 S.E.2d 774. See also Adams v. New York, C. & St. L.R. Co., 7 Cir., 121 F.2d 808. 3 Cf. United States v. Bank of New York & Trust Co., 296 U.S. 463, 479, 56 S.Ct. 343, 348, 80 L.Ed. 331; see Claflin v. Houseman, 93 U.S. 130, 136, 23 L.Ed. 833. 4 48 Stat. 1187, § 2(5). 5 See Fifteenth Annual Report of the National Mediation Board, p. 12; Monograph of the Attorney General's Committee on Administrative Procedure, Part 4, Railway Labor, p. 16, S. Doc. No. 10, 77th Cong., 1st Sess. (1941). 6 48 Stat. 1191, § 3 First (i): '(i) 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, 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.' 7 312 U.S. 630, 635—636, 61 S.Ct. 754, 756, 85 L.Ed. 1089: 'It is to be noted that the section pointed out, § 153(i), as amended in 1934, provides no more than that disputes 'may be referred * * * to the * * * Adjustment Board * * *.' It is significant that the comparable section of the 1926 Railway Labor Act (44 Stat. 577, 578), had, before the 1934 amendment, provided that upon failure of the parties to reach an adjustment a 'dispute shall be referred to the designated adjustment board by the parties, or by either party * * *.' Section 3(c). This difference in language, substituting 'may' for 'shall', was not, we think, an indication of a change in policy, but was instead a clarification of the law's original purpose. For neither the original 1926 Act, nor the Act as amended in 1934, indicates that the machinery provided for settling disputes was based on a philosophy of legal compulsion. On the contrary, the legislative history of the Railway Labor Act shows a consistent purpose on the part of Congress to establish and maintain a system for peaceful adjustment and mediation voluntary in its nature.' 8 204 U.S. 426, 440—441, 27 S.Ct. 350, 355, 51 L.Ed. 553, 9 Ann.Cas. 1075: 'For if, without previous action by the Commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that, unless all courts reached an identical conclusion, a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary, dependent upon the divergent conclusions reached as to reasonableness by the various courts called upon to consider the subject as an original question. Indeed, the recognition of such a right is wholly inconsistent with the administrative power conferred upon the Commission, and with the duty, which the statute casts upon that body, of seeing to it that the statutory requirement as to uniformity and equality of rates is observed.' 9 204 U.S. 426, 436—437, 27 S.Ct. 350, 353, 354, 51 L.Ed. 553, 9 Ann.Cas. 1075: 'As the right to recover, which the court below sustained, was clearly within the principles just stated, and as it is conceded that the act to regulate commerce did not, in so many words, abrogate such right, it follows that the contention that the right was taken away by the act to regulate commerce rests upon the proposition that such result was accomplished by implication. In testing the correctness of this proposition we concede that we must be guided by the principle that repeals by implication are not favored, and, indeed, that a statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required; that is to say, unless it be found that the pre-existing right is to repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory.' 10 48 Stat. 1193, § 3 Second. 11 325 U.S. 711, dissent, 759, 65 S.Ct. 1282, 1307, 89 L.Ed. 1886. The dissenters insisted, 325 U.S. at page 760, 65 S.Ct. at page 1306, 89 L.Ed. 1886: 'The considerations making for harmonious adjustment of railroad industrial relations through the machinery designed by Congress in the Railway Labor Act are disregarded by allowing that machinery to be by-passed and by introducing dislocating differentiations through individual resort to the courts in the application of a collective agreement.' 12 48 Stat. 1195, § 5 First; 44 Stat. 584, § 8. 13 General Committee of Adjustment of Brotherhood of Locomotive Engineers for Missouri K.T.R.R. v. Missouri-K.T.R. Co., 320 U.S. 323, 337, 64 S.Ct. 146, 152, 88 L.Ed. 76. Not long after these decisions were handed down we explained them as follows: 'This result was reached because of this Court's view that jurisdictional disputes between unions were left by Congress to mediation rather than adjudication. 320 U.S. 302 and 337, 64 S.Ct. 97 and 152. That is to say, no personal right of employees enforcible in the courts, was created in the particular instances under consideration. 320 U.S. 337, 64 S.Ct. 152. But where rights of collective bargaining, created by the same Railway Labor Act, contained definite prohibitions of conduct or were mandatory in form, this Court enforced the rights judicially. 320 U.S. 330, 331, 64 S.Ct. 149, 150. Cf. Texas & N.O.R. Co. v. Brotherhood of Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034; Virginian Ry. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789.' Stark v. Wickard, 321 U.S. 288, 306—307, 64 S.Ct. 559, 569, 88 L.Ed. 733. See Steele v. Louisville & N.R. Co., 323 U.S. 192, 207, 65 S.Ct. 226, 234, 89 L.Ed. 173. 14 Stark v. Wickard, 321 U.S. 288, 309, 64 S.Ct. 559, 570, 88 L.Ed. 733. 15 Order of Railway Conductors v. Pitney, 326 U.S. 561, 567, 66 S.Ct. 322, 325, 90 L.Ed. 318. 16 Ibid., cf. Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333; Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9. 17 48 Stat. 1189, § 3, First (a)(b)(c)(g). 18 Monograph, n. 5, supra, pp. 11—14; see Garrison, National Railroad Adjustment Board, 46 Yale L.J. 567, 576 et seq. 19 Monograph, n. 5, supra, p. 7. 20 See Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 124 F.2d 235, 246; affirmed by an equally divided court, 319 U.S. 732, 63 S.Ct. 1430, 87 L.Ed. 1694. 21 48 Stat. 1191, § 3, First (m) and (p). Garrison, National Railroad Adjustment Board, 46 Yale L.J. 567, 591. 22 See Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; Steele v. Louisville & N.R. Co., 323 U.S. 192, 206, 65 S.Ct. 226, 233, 89 L.Ed. 173. Compare Howard v. Thompson, D.C., 72 F.Supp. 695; State ex rel. St. Louis-S.F.R. Co. v. Russell, 358 Mo. 1136, 219 S.W.2d 340; Edwards v. Capital Airlines, 84 U.S.App.D.C. 346, 350, 176 F.2d 755, 759 et seq. Cf. Shields v. Utah Idaho R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111. 23 See Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 284, 15 L.Ed. 372; Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938.

910

339 U.S. 276 70 S.Ct. 641 94 L.Ed. 834 SOUTH et al.v.PETERS, Chairman of the Georgia State Democratic Executive Committee, et al. No. 724. On Jurisdictional Statement and Motion to Dismiss or Affirm April 5, 1950. Decided April 17, 1950. Rehearing Denied May 15, 1950. See 339 U.S. 959, 70 S.Ct. 980. Mr. Hamilton Douglas, Jr., Atlanta, Ga., for appellants. Messrs. Eugene Cook, Atlanta, Ga., M. H. Blackshear, Dublin, Ga., M. F. Goldstein, B. D. Murphy, Atlanta, Ga., for appellees. PER CURIAM. 1 The Georgia statute which appellants attack as violative of the Fourteenth and Seventeenth Amendments provides that county unit votes shall determine the outcome of a primary election.1 Each county is allotted a number of unit votes, ranging from six for the eight most populous counties, to two for most of the counties. The candidate who receives the highest popular vote in the county is awarded the appropriate number of unit votes. Appellants, residents of the most populous county in the state, contend that their votes and those of all other voters in that county have on the average but one-tenth the weight of those in the other counties. Urging that this amounts to an unconstitutional discrimination against them, appellants brought this suit to restrain adherence to the statute in the forthcoming Democratic Party primary for United States Senator, Governor and other state offices. 2 The court below dismissed appellants' petition. We affirm. Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a state's geographical distribution of electoral strength among its political subdivisions. See MacDougall v. Green, 1948, 335 U.S. 281, 69 S.Ct. 1; Colegrove v. Green, 1946, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432; Wood v. Broom, 1932, 287 U.S. 1, 8, 53 S.Ct. 1, 3, 77 L.Ed. 131; cf. Johnson v. Stevenson, 5 Cir., 1948, 170 F.2d 108. 3 Affirmed. 4 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 5 I suppose that if a State reduced the vote of Negroes, Catholics, or Jews so that each got only one-tenth of a vote, we would strike the law down. The right to vote in a primary was held in Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759, to be covered by the Equal Protection Clause of the Fourteenth Amendment. And where, as in Georgia, a party primary election is an integral part of the state election machinery, the right to vote in it is protected by the Fifteenth Amendment. Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110. And see United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368. Under both Amendments discriminations based on race, creed or color fall beyond the pale. 6 Yet there is evidence in this case showing that Georgia's County Unit System of consolidating votes in primary elections makes an equally invidious discrimination. Under this primary law the nomination does not go to the candidate who gets the majority or plurality of votes. Votes are counted county by county. The winner in each county gets a designated number of votes—six in the most populous counties, four in the next most populous, two in each of the rest. 7 Plaintiffs are registered voters in Georgia's most populous county—Fulton County. They complain that their votes will be counted so as drastically to reduce their voting strength. 8 They show that a vote in one county will be worth over 120 times each of their votes. They show that in 45 counties a vote will be given twenty times the weight of each of theirs. They show that on a state-wide average each vote outside Fulton County will have over 11 times the weight of each vote of the plaintiffs. 9 Population figures show that there is a heavy Negro population in the large cities. There is testimony in the record that only in those areas have Negroes been able to vote in important numbers. Yet the County Unit System heavily disenfranchises that urban Negro population. The County Unit System has indeed been called the 'last loophole' around our decisions holding that there must be no discrimination because of race in primary as well as in general elections. 10 The racial angle of the case only emphasizes the bite of the decision which sustains the County Unit System of voting. The discrimination against citizens in the more populous counties of Georgia is plain. Because they are city folks their voting power is only an eleventh or a hundred and twentieth of the voting power of other citizens. I can see no way to save that classification under the Equal Protection Clause. The creation by law of favored groups of citizens and the grant to them of preferred political rights is the worst of all discriminations under a democratic system of government. 11 The County Unit System has other constitutional infirmities. Article I, § 2 of the Constitution provides that members of the House of Representatives shall be 'chosen' by the people. And the Seventeenth Amendment provides that Senators shall be 'elected by the people.' These constitutional rights extend to the primary where that election is an integral part of the procedure of choosing Representatives or Senators or where in fact the primary effectively controls the choice. United States v. Classic, supra. In Georgia's primary to be held on June 28, 1950, a United States Senator will be nominated. Certainly in a State like Georgia where the Democratic nomination is equivalent to election, it would be a travesty to say that the true election in the constitutional sense comes later. 12 There is more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to pull a lever in a voting booth. The right to vote includes the right to have the ballot counted. United States v. Classic, supra; Ex parte Yarborough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274. It also includes the right to have the vote counted at full value without dilution or discount. United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341. That federally protected right suffers substantial dilution in this case. The favored group has full voting strength. The groups not in favor have their votes discounted. 13 In Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, we had before us a case involving the division of Illinois into congressional districts in such a way that gross inequalities in voting resulted. Citizens of heavily populated districts sued to enjoin state officials from holding an election under the Illinois law governing congressional districts. There was an argument, persuasive to three members of the Court, that the issue presented was of a political nature and not justiciable, that it was an effort to get the federal courts 'to reconstruct the electoral process of Illinois in order that it may be adequately represented in the councils of the Nation.' 328 U.S. 552, 66 S.Ct. 1199, 90 L.Ed. 1432. And in MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, the Court on a closely divided vote refused to interfere with the provisions of the Illinois law governing the formation of a new political party. There is no such force in the argument that the question in the present case is political and not justiciable. 14 Plaintiffs sue as individuals to enforce rights political in origin and relating to political action. But as Mr. Justice Holmes said of the same argument in Nixon v. Herndon, supra, 273 U.S. at page 540, 47 S.Ct. 446, 71 L.Ed. 759, it is 'little more than a play upon words' to call it a political suit and therefore a nonjusticiable one. The rights they seek to enforce are personal and individual. Moreover, no decree which we need enter would collide either with Congress or with the election. Georgia need not be remapped politically. The Georgia legislature need not take new action after our decree. There is no necessity that we supervise an election. There need be no change or alteration in the place of the election, its time, the ballots that are used, or the regulations that govern its conduct. The wrong done by the County Unit System takes place not only after the ballots are in the box but also after they have been counted. The impact of the decree would be on the tallying of votes and the determination of what names go on the general election ballot. The interference with the political processes of the state is no greater here than it is when ballot boxes are stuffed or other tampering with the votes occurs and we take action to correct the practice. And related considerations, which led Mr. Justice Rutledge to conclude in Colegrove v. Green that the Court should not exercise its equity powers in that election, are lacking here. There is time to act, since the state primary is called for June 28, 1950. Relief can be certain. No conflict with any policy of Congress is possible. There is no overhauling of the State's electoral process. 15 The case is of greater importance than the rights of plaintiffs in this next election may appear to be. We have here a system of discrimination in primary voting that undermines the advances made by the Nixon, Classic, and Allwright cases. Those decisions are defeated by a device as deeply rooted in discrimination as the practice which keeps a man from the voting booth because of his race, creed, or color or which fails to count his vote after it has been cast. 16 It is said that the dilution of plaintiffs' votes in the present case is justified because equality of voting is unnecessary in the nomination of United States Senators. Thus it is pointed out that in some states nomination is by conventions. But that proves too much. If that premise is allowed, then the whole ground is cut from under our primary cases since Nixon v. Herndon, which have insisted that where there is voting there be equality. Indeed the only tenable premise under the Fourteenth, Fifteenth and Seventeenth Amendments is that where nominations are made in primary elections, there shall be no inequality in voting power by reason of race, creed, or color or other invidious discrimination. 1 Ga.Code Ann. § 34-3212 et seq. (1936). Although this particular statute was enacted in 1917, the county unit has been basis in the state electoral scheme since Georgia's first constitution in 1777.

89

339 U.S. 261 70 S.Ct. 644 94 L.Ed. 816 UNITED STATESv.WESTINGHOUSE ELECTRIC & MANUFACTURING CO. No. 26. Argued Oct. 13—14, 1949. Decided April 17, 1950. Mr. Roger P. Marquis, Washington, D.C., for petitioner. Mr. Milton J. Donovan, Springfield, Mass., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 On February 18, 1943, the United States filed a petition in the United States District Court for the District of Massachusetts to condemn certain land and buildings in Springfield, Massachusetts, for use by the Army for a term initially ending June 30, 1943, with a right to renew for additional yearly periods during the existing national emergency, at the election of the Secretary of War.1 On the same day the District Court authorized the United States to take immediate possession. The respondent, Westinghouse Electric and Manufacturing Company, was lessee of a portion of the condemned property, using it as a warehouse, under a lease dated January 19, 1942, for a term expiring on October 31, 1944. Respondent, in order to comply with the District Court's order of immediate possession, incurred expenses for the removal of its personal property. Subsequently, the Secretary of War exercised his right of renewal and extended the Government's occupancy for two additional yearly periods ending on June 30, 1945. Thus, although the occupancy taken by the United States was initially for a period less than the remainder of respondent's term the renewals eventually exhausted respondent's leasehold. 2 At the time of the initial taking as well as upon each yearly extension, sums were deposited into the District Court as estimated just compensation. It was stipulated that these sums represented the fair market value of the bare, unheated warehouse space taken, leaving open the question whether, as a matter of law, the removal costs incurred by the respondent were to be taken into account in computing just compensation for what was condemned. It was further stipulated that the removal expenses were both reasonable and necessary, and that, taking such removal costs into account, the market rental value of the premises was $25,600 greater on a sublease given by respondent to a temporary occupier than as bare unheated warehouse space. 3 The District Court ruled that removal expenses should be included in the measure of just compensation, and awarded to respondent the stipulated amount. 71 F.Supp. 1001. The Court of Appeals affirmed, 1 Cir., Chief Judge Magruder dissenting. 170 F.2d 752. The disagreement was due not to differences of independent views but to conflicting meanings drawn from the decisions of this Court in United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311, 156 A.L.R. 390, and United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729. The need for clarification led us to bring the case here. 336 U.S. 950, 69 S.Ct. 879. 4 The General Motors and Petty Motor cases concerned themselves with the situation in which the Government does not take the whole of a man's interest but desires merely temporary occupancy of premises under lease. General Motors held that when such occupancy is for a period less than an outstanding term, removal costs may be considered in the award of 'just compensation' to the temporarily ejected tenant—not as an independent item of damage, but as bearing on the rental value such premises would have on a voluntary sublease by a long-term tenant to a temporary occupier.2 5 In this holding of what is just, within the requirements of the Fifth Amendment, the Court was scrupulously careful not to depart from the settled rule against allowance for 'consequential losses' in federal condemnation proceedings. 323 U.S. at page 379, 65 S.Ct. at page 360 et seq. When there is an entire taking of a condemnee's property, whether that property represents the interest in a leasehold or a fee, the expenses of removal or of relocation are not to be included in valuing what is taken. That rule was found inapplicable to the new situation presented by the General Motors case—inapplicable, that is, where what was to be valued was 'a right of temporary occupancy of a building equipped for the condemnee's business, filled with his commodities, and presumably to be reoccupied and used, as before, to the end of the lease term on the termination of the Government's use.' 323 U.S. at page 380, 65 S.Ct. at page 360. 6 Petty Motor made clear that the taking of the whole of a tenant's lease does not fall within the General Motors doctrine. The reason for the distinction between the two situations was made explicit in Petty Motor: 'There is a fundamental difference between the taking of a part of a lease and the taking of the whole lease. That difference is that the lessee must return to the leasehold at the end of the Government's use or at least the responsibility for the period of the lease, which is not taken, rests upon the lessee. This was brought out in the General Motors decision. Because of that continuing obligation in all takings of temporary occupancy of leaseholds, the value of the rights of the lessees, which are taken, may be affected by evidence of the cost of temporary removal.' 327 U.S. at page 379—380, 66 S.Ct. at page 600, 90 L.Ed. 729. 7 While it is true that in both the General Motors and Petty Motor cases the Government had retained an option to vary the duration of its occupancy—in the former case it could extend, and in the latter it could shorten—the legal significance of such an option with respect to removal costs was not squarely in issue. It is now. Where the Government initially takes an occupancy for less than the outstanding term of a lease but then exercises its renewal option so as to exhaust the entire lease, shall this be treated merely as a temporary occupancy during part of an outstanding lease and thus within the General Motors doctrine, or as a taking of the whole lease and hence within Petty Motor?3 8 Here, as in General Motors, the Government initially took over only part of an outstanding lease. But here the Secretary of War in fact continued the Army's occupancy of the premises beyond the expiration of Westinghouse's lease. Judged by the event, therefore, this case was unlike General Motors in that what the Government took was the whole of the lease. It was thus like Petty Motor. The formal difference between this case and Petty Motor was that in this case the Government began with an occupancy shorter than the outstanding lease with a contingent reservation for its extension, while in Petty Motor there was a contingent reservation to shorten an occupancy that nominally exhausted the lease. 9 To make a distinction between taking a part of a lease with notice that the period of occupancy may be extended for the rest of the leasehold, and formally taking a whole leasehold with the right to occupy only a portion of it and throw up the rest, is to make the constitutional requirement for just compensation turn on a wholly barren formality. It is barren because a taking of a contingent occupancy by the Government could be cast in either form by those in charge of its condemnation proceedings without the slightest difference to the Government's interest. The reason for condemnation for a period shorter than a tenant's outstanding term with notice that extensions may absorb the balance of the term (i.e., the form in this case), or for condemnation formally for the whole of an unexpired leasehold with notice that the Government's occupancy may be terminated before the outstanding term has expired (i.e., the form in Petty Motor), is precisely the same. It is a recognition of the contingencies which may determine the duration of the emergency during which the Government seeks temporary occupancy of leased premises. And so it takes a flexible term, casting the burden of the contingency upon the ousted tenant. 10 Under either type of condemnation the United States may in fact move out before the ousted leaseholder's term has expired, thus imposing upon him the duty to return to the premises or make some other burdensome adjustment. In that event, he is placed in precisely the same boat as was the General Motors Corporation, and the cost of removal is therefore admissible in evidence 'as bearing on the market rental value of the temporary occupancy taken.' 323 U.S. at page 383, 65 S.Ct. at page 361, 89 L.Ed. 311, 156 A.L.R. 390. Contrariwise, under either type of condemnation the Government may continue its occupancy throughout the tenant's term. In that event, the situation is governed by Petty Motor and removal costs may not be taken into account. The final severance of a lessee's occupancy as against a temporary interruption of an outstanding leasehold, even though not definitively fixed at the outset, is a difference in degree wide enough to justify a difference in result. 11 The test of the outcome—is the Government merely a temporary occupier of an unexpired leasehold or has it absorbed the term of the lease?—has actuality behind it. Until events have made it clear, we cannot know whether the tenant will have to move back into his leased premises or make some other adjustment, and thus we cannot know whether the reason for the General Motors doctrine operates. 12 Condemnation for indefinite periods of occupancy was a practical response to the uncertainties of the Government's needs in wartime. Law has sufficient flexibility to accommodate itself to these uncertainties by making what is a relatively minor item await the event. To do so does not keep the litigation open longer than it has to be kept open, because the total award for the Government's occupancy cannot be determined until its duration is known. The usual rule for ascertaining value at the time of taking is not disrespected if one item is made a function of the future because only then can it be known whether that item forms a part of what has been 'taken.' The alternative is to require a forecast of the possibility that the tenant will have to move back into the premises. The factors on which such a forecast must be based are too contingent, too unique for guidance by experience, to permit rational assessment. This is a situation whether the law should express 'a judgment from experience as against a judgment from speculation'. Tanner v. Little, 240 U.S. 369, 386, 36 S.Ct. 379, 384, 60 L.Ed. 691. Or, as it was put by Mr. Justice Cardozo for the Court in a relevant situation: 'Experience is then available to correct uncertain prophecy. Here is a book of wisdom that courts may not neglect. We find no rule of law that sets a clasp upon its pages, and forbids us to look within.' Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 698, 53 S.Ct. 736, 739, 77 L.Ed. 1449, 88 A.L.R. 496. 13 An award based on removal costs will of course be delayed until it is known whether the Government's occupancy has exhausted the tenant's leasehold. But this presents no real administrative difficulties. That the essential facts here became known before the time for judicial determination hardly makes this case atypical. Even in the cases where the event is still open, the cost of moving out, insofar as it is to be reflected in just compensation, may be treated as a segregated item. Thus, its amount may be ascertained at an early stage of the judicial proceedings, but the judgment made conditional upon the outcome of the Government's occupancy. And rental payments due from the Government need not be postponed. So long as the duration of the Government's occupancy is undetermined, the District Court must necessarily retain the case for the periodic determination and payment of rental compensation. This is so in the absence of any problem arising out of removal costs. No unfairness or embarassment to the displaced tenant is thus involved by leaving liability based on removal to await the event. 14 In the case before us, it was known at the time of trial in the District Court that respondent's term had been exhausted by the Government's occupancy. Accordingly, the judgment is reversed insofar as it awards $25,600 to respondent. 15 Reversed. 16 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 17 Mr. Justice JACKSON, dissenting. 18 Difficulties in resolving the controversy over removal costs are caused by a condemnation policy under which the Government, in taking temporary use of property, also condemns an option to renew or shorten the period of use. While we have decided cases in which questions concerning options were raised, United States v. General Motors Corp., 322 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311, 156 A.L.R. 390; United States v. Petty Motors Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729, I think that the Court has not fully faced up to the implications of the optioning policy. 19 Valuation problems of the past have been simple contrasted to those the new policy imposes upon courts. Condemnation in the main was of title to physical properties, and the problem of just compensation was one of asecrtaining the equivalent in money at the date of appropriation—a date that had already arrived. The courts were dealing with a single point of time and with facts and conditions which were at least in experience, not prophecy. 20 In recent years, the Government embarked upon a new type of condemnation.1 It does not take title to the property and put into the pockets of the owners the current money equivalent. Instead, it keeps the owners' capital tied to their investments and pays them only an estimated value of its future use. This requires courts to predict values over a period of time. 21 Valuing time is the essence of much business and of most speculation. All options, futures, insurance contracts, leases, investments, deferred deliveries and commitments involve an appraisal of time. And though it takes us into the realm of pure conjecture, it may be possible, however unsatisfactorily, to fix values for rights of future occupancy if the period of the occupancy can be known. 22 The Government, however, has adopted the policy of expropriating for a 'flexible term' by condemning a right to shorten or to extend the use from time to time as may please it. This type of condemnation denies courts even a defined time period to evaluate, and it is small wonder that the Court concludes this leaves the factors too contingent and unique 'to permit rational assessment.' This raises the question whether Congress ever authorized a type of expropriation that can not be rationally compensated. 23 The statute upon which the taking in this case rests—one of the broadest of its kind ever enacted by Congress—authorizes various officers '* * * to acquire by condemnation, any real property, temporary use thereof, or other interests therein, together with any personal property located thereon or used therewith, that shall be deemed necessary, for military, naval, or other war purposes * * *.' 56 Stat. 177. Its legislative history provides no explanation of the language which authorizes taking 'any real property, temporary use thereof or other interest therein,'2 nor does it offer any reason for its inclusion.3 But Congress had no apparent expectation that it would authorize condemnations for unstated periods of time.4 The announced purpose of the legislation was to increase the number of federal officials authorized to institute condemnation proceedings, to authorize the possession and use of property prior to the completion of condemnation proceedings, and to eliminate uncertainties regarding the taking in the same proceeding of personalty located upon or used along with the real property being condemned.5 And though authority for condemning less than a fee had existed theretofore, the whole question of taking temporary uses was in some doubt.6 24 It is plain that Congress contemplated only such takings as were necessary. We should give this a broad construction; we may even go so far as to say that the necessity for a taking is a political or policy question not usually subject to judicial review. But the statute implies some foundation in necessity and nothing can be less necessary than condemnation of an option to take property or its possession. 25 The United States needs no such option, for its inherent condemnation power, by its very nature, is a perpetual option to take, at any time, any property it needs. The effect of condemning an option to take at some future time is to increase the element of uncertainty and speculation in the liquidation of an award. Furthermore, such purpose is wholly one-sided. If, let us say, the price level should fall, the Government, even though it wants the property, is not bound to keep it on the option terms. That is the essence of option. But it may abandon the option and take the property under a new declaration, thereby getting a new valuation in the light of the lower price level. If, however, prices go up, the Government can use its condemned option to keep the owner from enjoying the rising value of his property as other owners may do. The taking of a term with an option to lengthen is therefore no more than a hedge against inflation. 26 This same one-sidedness inheres in the policy of taking a term with an option to shorten. Specific authority exists for Government officials to dispose of surplus properties taken for war purposes;7 indeed such authority is contained in the very statute under consideration.8 Various officials are given power to 'lease, sell, or otherwise dispose of' any properties taken by condemnation which become surplus or unnecessary. And so, if the Government condemned for a term with an option to shorten, and then determined that the property so taken was no longer necessary, it would sell, lease, or otherwise dispose of the remainder of the term at the then current market price. This it would certainly do if the price level had risen. But if prices had fallen, it could avoid the loss of trading on the open market by exercising the option to shorten, cut down the term and put on the owner the burden of salvaging its surplus property. The taking of a term with an option to shorten is therefore no more than a hedge against deflation. 27 It seems unlikely that Congress intended to authorize such speculative transactions as result from an option to increase or decrease the time period. If we change the terms of the taking so that the time is known but the space is indefinite, the hazard to the Government becomes quickly apparent; if we had a declaration taking such part of a property as from time to time the Government would want, we would have to compensate on the basis that the taking was of the maximum within its terms. Such indefinite takings invite excessive awards, for the speculation involved is involuntary with the claimant and its outcome controlled by, and hedged in the interest of, the Government. Cf. United States v. Certain Parcels of Land, etc., D.C., 55 F.Supp. 257, 265. 28 The Court gives up the effort to value what is taken and determines to postpone determination of compensation to await the event. This expedient recognizes, but does not fairly solve, the problem engendered by this type of condemnation. If there is a present taking, the property owner is entitled to pocket his compensation. It seems hardly fair that the owner, dispossessed for a time which he cannot learn, must wait indefinitely to be paid anything except bare rental, regardless of the other expense he may be put to. How can the owner know whether to sell his removable property, store it, or perhaps to liquidate his business, or seek a new location, without knowing the length of time for which the Government is taking his premises? The property owner cannot await the happening of the event to make these essential business judgments. To let the Government take an option and pay for it only if it decides to exercise it, is to give the Government a 'Heads I win; Tails you lose' position in a gamble the property owner has not willingly joined.9 29 I think we should hold the effort to condemn options to be a nullity for want of congressional authorization and determine claims for just compensation on the basis of the fixed term specified in the declaration. If the Government, upon expiration of the fixed term, desires to continue in possession, it may file a new declaration of taking and have the value of that term fixed in the light of conditions that then prevail. If it abandons the property before the fixed term expires, it has surplus property on its hands to dispose of as it may choose. These are not, of course, very satisfactory results, but they would come nearer obeying the constitutional mandate of 'just compensation' than the delayed decision course adopted by the Court. 1 The petition was filed under § 201 of Title II of the Second War Powers Act of 1942, 56 Stat. 176, 177, 50 U.S.C.App. § 632, 50 U.S.C.A.Appendix, § 632. This section authorized certain officials 'to acquire by condemnation, any real property, temporary use thereof, or other interest therein,' for purposes related to the war. Plainly it conferred power to condemn interests in realty normally purchased by private persons, including, of course, options to renew. 2 This holding in the General Motors case was the Court's determination, without any congressional action, of what constituted 'just compensation' under the Fifth Amendment. 3 Problems relating to the valuation of renewal options are not before us on this record. It need hardly be said that provision for renewal does not necessiate the same rental for the renewed period as for the initial period. Whether a rental for each renewed period was initially fixed in this case is not disclosed by the stipulated facts. 1 See Just, Condemnation Procedure During World War II, 12 Geo.Wash.L.Rev. 286; Dolan, Present Day Court Practice in Condemnation Suits, 31 Va.L.Rev. 9. 2 E.g., cf. S.Rep.No.989, 77th Cong., 2d Sess. 4 (1942). (The bill covers interests in real property, including easements and other rights appurtenant thereto.) Hearings before Committee on the Judiciary on S. 2208, 77th Cong., 2d Sess. 15 (1942). (It would enable the acquisition of leaseholds or of any other property.) 3 Title II of the Second War Powers Act, 56 Stat. 177, 50 U.S.C.A.Appendix, § 632, the statute here involved, was amendatory to the Act of July 2, 1917, 40 Stat. 241, To Authorize Condemnation Proceedings of Lands for Military Purposes. As originally introduced, the 1917 Act contained authorization for only the condemnation of 'any land, * * * or right pertaining thereto.' 55 Cong.Rec. 3632 (1917). But upon the unexplained recommendation of the then Secretary of War, the words 'temporary use thereof or other interest therein' were inserted after the word 'land.' See H.R.Rep.No.83, 65th Cong., 1st Sess. (1917); 55 Cong.Rec. 3991, 4130—4131, 4263 (1917). These words were carried over by the amendatory Act without comment. See generally, Senate Committee Print, Statements in Executive Session on S. 2208, 77th Cong., 2d Sess. 6—7, 13—16; S.Rep.No.989, 77th Cong., 2d Sess. 4 (1942); Hearings before the House Committee on the Judiciary on S. 2208, 77th Cong., 2d Sess. 10, 15—23 (1942); H.R.Rep.No.1765, 77th Cong., 2d Sess. 6 (1942); 88 Cong.Rec. 1639—1641, 1644—1645, 1647—1650, 1653—1656. 4 See, e.g., testimony of Attorney General Biddle in Hearings before the House Committee on the Judiciary on S. 2208, n. 2, supra, at 19: 'Mr. Hancock of New York. Is it possible under a condemnation Act to acquire a temporary use? 'Mr. Biddle. Yes, sir. 'Mr. Hancock of New York. In that case the title would revert back to the original owner after the temporary use. 'Mr. Biddle. Yes. 'Mr. Hancock of New York. But you can acquire property by a lease? 'Mr. Biddle. Yes. You can condemn it for a certain length of time.' (Emphasis added.) See also materials cited in nn. 2, 3, supra, and 5, 6, infra. 5 E.g., Committee Print, n. 3, supra, at 6; S.Rep.No.989, n. 3, supra, at 4; Hearings, n. 3, supra, at 10, 15—23; H.R.Rep.No.1765, n. 3, supra, at 6. 6 See 88 Cong.Rec. 1644—45, 1647—48, 1653. See also n. 4, supra. 7 E.g., 54 Stat. 712, 50 U.S.C.A.Appendix, § 1171(b). 8 54 Stat. 713; 56 Stat. 177. And see 88 Cong.Rec. 1648. 9 It is unnecessary, if Congress has not authorized such condemnations, to rely on any constitutional doubts concerning them. But we should note that a local scheme not too unlike the Government's condemnation policies has been successfully challenged on constitutional grounds in at least one jurisdiction. The General City Law of New York provides that city planning boards may file master plans providing for the development of the city, and 'for the purpose of preserving the integrity of such official map' no permits, as a general matter, will issue for building in the bed of any street or highway laid out on the map; and this, despite the fact that the map may at all times be modified and the proposed construction may never be carried out. N.Y. General City Law, McK.Consol.Laws, c. 21, §§ 26—39. This law empowers a municipality to restrict the use of private property which it may at some future time decide to take. See Matter of the City of New York, 196 N.Y. 255, 259, 89 N.E. 814, 815—816, 36 L.R.A.,N.S., 273, 17 Ann.Cas. 1032. It grants, in effect, a form of restrictive option. And although it was drafted with an eye to avoiding the pitfalls which brought invalidation upon an earlier similar scheme, see Forster v. Scott, 136 N.Y. 577, 32 N.E. 976, 18 L.R.A. 543, it has already been subjected to a preliminary constitutional skirmish. See Platt v. City of New York, 196 Misc. 360, 92 N.Y.S.2d 138, reversed on other grounds, 276 App.Div. 873, 93 N.Y.S.2d 738. And other courts have indicated that, where a right is so vague that a judicial determination cannot be made of just compensation for its taking, the right to expropriate fails, see Albright v. Sussex County Lake and Park Comm., 71 N.J.L. 303, 307—308, 57 A. 398, 400—401, 69 L.R.A. 768, 108 Am.St.Rep. 749, 2 Ann.Cas. 48, and that certain personal rights are not subject to condemnation. Hamilton, Glendale & Cincinnati Traction Co. v. Parrish, 67 Ohio St. 181, 192—193, 65 N.E. 1011, 1014, 60 L.R.A. 531. These cases do not govern us, but they indicate that we are on the very fringes of unconstitutionality and might well indulge in an interpretation of the statute which will keep us clearly out of it.

34

339 U.S. 321 70 S.Ct. 640 94 L.Ed. 877 SHIPMAN et al.v.DU PRE et al. No. 689. On Jurisdictional Statement Distributed March 31, 1950. Decided April 24, 1950. Mr. Aaron Kravitch, Savannah, Ga. Phyllis Kravitch, Savannah, Ga., Mr. Joseph Fromberg, Charleston, S.C., for appellants. Messrs. John M. Daniel, Columbia, S.C., T. C. Callision, Lexington, S.C., R. Hoke Robinson, Asst. Atty. Gen. of South Carolina, for appellees. PER CURIAM. 1 Appellants sought a declaratory judgment that certain sections of the South Carolina statute, Code 1942, § 3408, as amended by Act April 21, 1948, 45 St. at Large, p. 2059, regulating the fisheries and shrimping industry were unconstitutional and interlocutory and permanent injunctions restraining the state officials from carrying out those provisions. The statutory three-judge District Court assumed jurisdiction, decided the issues on the merits, and dismissed the complaint. 88 F.Supp. 482. From the papers submitted on appeal, it does not appear that the statutory sections in question have as yet been construed by the state courts. We are therefore of opinion that the District Court erred in disposing of the complaint on the merits. See American Federation of Labor v. Watson, 327 U.S. 582, 595—599, 66 S.Ct. 761, 767—769, 90 L.Ed. 873. 2 The judgment of the District Court is vacated and the cause is remanded to that court with directions to retain jurisdiction of the complaint for a reasonable time, to afford appellants an opportunity to obtain, by appropriate proceedings, a construction by the state court of the statutory provisions involved. 3 Judgment vacated and cause remanded with directions. 4 Mr. Justice DOUGLAS dissents.

89

339 U.S. 306 70 S.Ct. 652 94 L.Ed. 865 MULLANEv.CENTRAL HANOVER BANK & TRUST CO. et al. No. 378. Argued and Submitted Feb. 8, 1950. Decided April 24, 1950. Mr. Kenneth J. Mullane, New York City, for appellants. Mr. Albert B. Maginnes, New York City, for appellee, Central Hanover Bank and Trust Co. Mr. James N. Vaughan, New York City, for appellee, James N. Vaughan, Guardian et al. Mr. Justice JACKSON delivered the opinion of the Court. 1 This controversy questions the constitutional sufficiency of notice to beneficiaries on judicial settlement of accounts by the trustee of a common trust fund established under the New York Banking Law, Consol.Laws, c. 2. The New York Court of Appeals considered and overruled objections that the statutory notice contravenes requirements of the Fourteenth Amendment and that by allowance of the account beneficiaries were deprived of property without due process of law. 299 N.Y. 697, 87 N.E.2d 73. The case is here on appeal under 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. 2 Common trust fund legislation is addressed to a problem appropriate for state action. Mounting overheads have made administration of small trusts undesirable to corporate trustees. In order that donors and testators of moderately sized trusts may not be denied the service of corporate fiduciaries, the District of Columbia and some thirty states other than New York have permitted pooling small trust estates into one fund for investment administration.* The income, capital gains, losses and expenses of the collective trust are shared by the constituent trusts in proportion to their contribution. By this plan, diversification of risk and economy of management can be extended to those whose capital standing alone would not obtain such advantage. 3 Statutory authorization for the establishment of such common trust funds is provided in the New York Banking Law, § 100-c, c. 687, L.1937, as amended by c. 602, L.1943 and c. 158, L.1944. Under this Act a trust company may, with approval of the State Banking Board, establish a common fund and, within prescribed limits, invest therein the assets of an unlimited number of estates, trusts or other funds of which it is trustee. Each participating trust shares ratably in the common fund, but exclusive management and control is in the trust company as trustee, and neither a fiduciary nor any beneficiary of a participating trust is deemed to have ownership in any particular asset or investment of this common fund. The trust company must keep fund assets separate from its own, and in its fiduciary capacity may not deal with itself or any affiliate. Provisions are made for accountings twelve to fifteen months after the establishment of a fund and triennially thereafter. The decree in each such judicial settlement of accounts is made binding and conclusive as to any matter set forth in the account upon everyone having any interest in the common fund or in any participating estate, trust or fund. 4 In January, 1946, Central Hanover Bank and Trust Company established a common trust fund in accordance with these provisions, and in March, 1947, it petitioned the Surrogate's Court for settlement of its first account as common trustee. During the accounting period a total of 113 trusts, approximately half inter vivos and half testamentary, participated in the common trust fund, the gross capital of which was nearly three million dollars. The record does not show the number or residence of the beneficiaries, but they were many and it is clear that some of them were not residents of the State of New York. 5 The only notice given beneficiaries of this specific application was by publication in a local newspaper in strict compliance with the minimum requirements of N.Y. Banking Law § 100-c(12): 'After filing such petition (for judicial settlement of its account) the petitioner shall cause to be issued by the court in which the petition is filed and shall publish not less than once in each week for four successive weeks in a newspaper to be designated by the court a notice or citation addressed generally without naming them to all parties interested in such common trust fund and in such estates, trusts or funds mentioned in the petition, all of which may be described in the notice or citation only in the manner set forth in said petition and without setting forth the residence of any such decedent or donor of any such estate, trust or fund.' Thus the only notice required, and the only one given, was by newspaper publication setting forth merely the name and address of the trust company, the name and the date of establishment of the common trust fund, and a list of all participating estates, trusts or funds. 6 At the time the first investment in the common fund was made on behalf of each participating estate, however, the trust company, pursuant to the requirements of § 100-c(9), had notified by mail each person of full age and sound mind whose name and address was then known to it and who was 'entitled to share in the income therefrom * * * (or) * * * who would be entitled to share in the principal if the event upon which such estate, trust or fund will become distributable should have occurred at the time of sending such notice.' Included in the notice was a copy of those provisions of the Act relating to the sending of the notice itself and to the judicial settlement of common trust fund accounts. 7 Upon the filing of the petition for the settlement of accounts, appellant was, by order of the court pursuant to § 100-c(12), appointed special guardian and attorney for all persons known or unknown not otherwise appearing who had or might thereafter have any interest in the income of the common trust fund; and appellee Vaughan was appointed to represent those similarly interested in the principal. There were no other appearances on behalf of any one interested in either interest or principal. 8 Appellant appeared specially, objecting that notice and the statutory provisions for notice to beneficiaries were inadequate to afford due process under the Fourteenth Amendment, and therefore that the court was without jurisdiction to render a final and binding decree. Appellant's objections were entertained and overruled, the Surrogate holding that the notice required and given was sufficient. 75 N.Y.S.2d 397. A final decree accepting the accounts has been entered, affirmed by the Appellate Division of the Supreme Court, In re Central Hanover Bank & Trust Co., 275 App.Div. 769, 88 N.Y.S.2d 907, and by the Court of Appeals of the State of New York, 299 N.Y. 697, 87 N.E.2d 73. 9 The effect of this decree, as held below, is to settle 'all questions respecting the management of the common fund.' We understand that every right which beneficiaries would otherwise have against the trust company, either as trustee of the common fund or as trustee of any individual trust, for improper management of the common trust fund during the period covered by the accounting is sealed and wholly terminated by the decree. See Matter of Hoaglund's Estate, 194 Misc. 803, 811—812, 74 N.Y.S.2d 156, 164, affirmed 272 App.Div. 1040, 74 N.Y.S.2d 911, affirmed 297 N.Y. 920, 79 N.E.2d 746; Matter of Bank of New York, 189 Misc. 459, 470, 67 N.Y.S.2d 444, 453; Matter of Security Trust Co. of Rochester, 189 Misc. 748, 760, 70 N.Y.S.2d 260, 271; Matter of Continental Bank & Trust Co., 189 Misc. 795, 797, 67 N.Y.S.2d 806, 807—808. 10 We are met at the outset with a challenge to the power of the State—the right of its courts to adjudicate at all as against those beneficiaries who reside without the State of New York. It is contended that the proceeding is one in personam in that the decree affects neither title to nor possession of any res, but adjudges only personal rights of the beneficiaries to surcharge their trustee for negligence or breach of trust. Accordingly, it is said, under the strict doctrine of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, the Surrogate is without jurisdiction as to nonresidents upon whom personal service of process was not made. 11 Distinctions between actions in rem and those in personam are ancient and originally expressed in procedural terms what seems really to have been a distinction in the substantive law of property under a system quite unlike our own. Buckland and McNair, Roman Law and Common Law, 66; Burdick, Principles of Roman Law and Their Relation to Modern Law, 298. The legal recognition and rise in economic importance of incorporeal or intangible forms of property have upset the ancient simplicity of property law and the clarity of its distinctions, while new forms of proceedings have confused the old procedural classification. American courts have sometimes classed certain actions as in rem because personal service of process was not required, and at other times have held personal service of process not required because the action was in rem. See cases collected in Freeman on Judgments, §§ 1517 et seq. (5th ed.). 12 Judicial proceedings to settle fiduciary accounts have been sometimes termed in rem, or more indefinitely quasi in rem, or more vaguely still, 'in the nature of a proceeding in rem.' It is not readily apparent how the courts of New York did or would classify the present proceeding, which has some characteristics and is wanting in some features of proceedings both in rem and in personam. But in any event we think that the requirements of the Fourteenth Amendment to the Federal Constitution do not depend upon a classification for which the standards are so elusive and confused generally and which, being primarily for state courts to define, may and do vary from state to state. Without disparaging the usefulness of distinctions between actions in rem and those in personam in many branches of law, or on other issues, or the reasoning which underlies them, we do not rest the power of the State to resort to constructive service in this proceeding upon how its courts or this Court may regard this historic antithesis. It is sufficient to observe that, whatever the technical definition of its chosen procedure, the interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is so insistent and rooted in custom as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident, provided its procedure accords full opportunity to appear and be heard. 13 Quite different from the question of a state's power to discharge trustees is that of the opportunity it must give beneficiaries to contest. Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. 14 In two ways this proceeding does or may deprive beneficiaries of property. It may cut off their rights to have the trustee answer for negligent or illegal impairments of their interests. Also, their interests are presumably subject to diminution in the proceeding by allowance of fees and expenses to one who, in their names but without their knowledge, may conduct a fruitless or uncompensatory contest. Certainly the proceeding is one in which they may be deprived of property rights and hence notice and hearing must measure up to the standards of due process. 15 Personal service of written notice within the jurisdiction is the classic form of notice always adequate in any type of proceeding. But the vital interest of the State in bringing any issues as to its fiduciaries to a final settlement can be served only if interests or claims of individuals who are outside of the State can somehow be determined. A construction of the Due Process Clause which would place impossible or impractical obstacles in the way could not be justified. 16 Against this interest of the State we must balance the individual interest sought to be protected by the Fourteenth Amendment. This is defined by our holding that 'The fundamental requisite of due process of law is the opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363. This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest. 17 The Court has not committed itself to any formula achieving a balance between these interests in a particular proceeding or determining when constructive notice may be utilized or what test it must meet. Personal service has not in all circumstances been regarded as indispensable to the process due to residents, and it has more often been held unnecessary as to nonresidents. We disturb none of the established rules on these subjects. No decision constitutes a controlling or even a very illuminating precedent for the case before us. But a few general principles stand out in the books. 18 An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357; Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363; Priest v. Board of Trustees of Town of Las Vegas, 232 U.S. 604, 34 S.Ct. 443, 58 L.Ed. 751; Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520. The notice must be of such nature as reasonably to convey the required information, Grannis v. Ordean, supra, and it must afford a reasonable time for those interested to make their appearance, Roller v. Holly, supra, and cf. Goodrich v. Ferris, 214 U.S. 71, 29 S.Ct. 580, 53 L.Ed. 914. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied. 'The criterion is not the possibility of conceivable injury, but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.' American Land Co. v. Zeiss, 219 U.S. 47, 67, 31 S.Ct. 200, 207, 55 L.Ed. 82, and see Blinn v. Nelson, 222 U.S. 1, 7, 32 S.Ct. 1, 2, 56 L.Ed. 65, Ann.Cas.1913B, 555. 19 But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, compare Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, with Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446, 57 A.L.R. 1230, or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. 20 It would be idle to pretend that publication alone as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts. It is not an accident that the greater number of cases reaching this Court on the question of adequacy of notice have been concerned with actions founded on process constructively served through local newspapers. Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed. The chance of actual notice is further reduced when as here the notice required does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention. In weighing its sufficiency on the basis of equivalence with actual notice we are unable to regard this as more than a feint. 21 Nor is publication here reinforced by steps likely to attract the parties' attention to the proceeding. It is true that publication traditionally has been acceptable as notification supplemental to other action which in itself may reasonably be expected to convey a warning. The ways or an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel or entry upon real estate in the name of law may reasonably be expected to come promptly to the owner's attention. When the state within which the owner has located such property seizes it for some reason, publication or posting affords an additional measure of notification. A state may indulge the assumption that one who has left tangible property in the state either has abandoned it, in which case proceedings against it deprive him of nothing, cf. Anderson National Bank v. luckett, 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692, 151 A.L.R. 824; Security Savings Bank v. California, 263 U.S. 282, 44 S.Ct. 108, 68 L.Ed. 301, 31 A.L.R. 391, or that he has left some caretaker under a duty to let him know that it is being jeopardized. Ballard v. Hunter, 204 U.S. 241, 27 S.Ct. 261, 51 L.Ed. 461; Huling v. Kaw Valley Ry. & Imp. Co., 130 U.S. 559, 9 S.Ct. 603, 32 L.Ed. 1045. As phrased long ago by Chief Justice Marshall in The Mary, 9 Cranch 126, 144, 3 L.Ed. 678, 'It is the part of common prudence for all those who have any interest in (a thing), to guard that interest by persons who are in a situation to protect it.' 22 In the case before us there is, of course, no abandonment. On the other hand these beneficiaries do have a resident fiduciary as caretaker of their interest in this property. But it is their caretaker who in the accounting becomes their adversary. Their trustee is released from giving notice of jeopardy, and no one else is expected to do so. Not even the special guardian is required or apparently expected to communicate with his ward and client, and, of course, if such a duty were merely transferred from the trustee to the guardian, economy would not be served and more likely the cost would be increased. 23 This Court has not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights. Cunnius v. Reading School District, 198 U.S. 458, 25 S.Ct. 721, 49 L.Ed. 1125, 3 Ann.Cas. 1121; Blinn v. Nelson, 222 U.S. 1, 32 S.Ct. 1, 56 L.Ed. 65, Ann.Cas.1913B, 555; and see Jacob v. Roberts, 223 U.S. 261, 32 S.Ct. 303, 56 L.Ed. 429. 24 Those beneficiaries represented by appellant whose interests or whereabouts could not with due diligence be ascertained come clearly within this category. As to them the statutory notice is sufficient. However great the odds that publication will never reach the eyes of such unknown parties, it is not in the typical case much more likely to fail than any of the choices open to legislators endeavoring to prescribe the best notice practicable. 25 Nor do we consider it unreasonable for the State to dispense with more certain notice to those beneficiaries whose interests are either conjectural or future or, although they could be discovered upon investigation, do not in due course of business come to knowledge of the common trustee. Whatever searches might be required in another situation under ordinary standards of diligence, in view of the character of the proceedings and the nature of the interests here involved we think them unnecessary. We recognize the practical difficulties and costs that would be attendant on frequent investigations into the status of great numbers of beneficiaries, many of whose interests in the common fund are so remote as to be ephemeral; and we have no doubt that such impracticable and extended searches are not required in the name of due process. The expense of keeping informed from day to day of substitutions among even current income beneficiaries and presumptive remaindermen, to say nothing of the far greater number of contingent beneficiaries, would impose a severe burden on the plan, and would likely dissipate its advantages. These are practical matters in which we should be reluctant to disturb the judgment of the state authorities. 26 Accordingly we overrule appellant's constitutional objections to published notice insofar as they are urged on behalf of any beneficiaries whose interests or addresses are unknown to the trustee. 27 As to known present beneficiaries of known place of residence, however, notice by publication stands on a different footing. Exceptions in the name of necessity do not sweep away the rule that within the limits of practicability notice must be such as is reasonably calculated to reach interested parties. Where the names and post office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency. 28 The trustee has on its books the names and addresses of the income beneficiaries represented by appellant, and we find no tenable ground for dispensing with a serious effort to inform them personally of the accounting, at least by ordinary mail to the record addresses. Cf. Wuchter v. Pizzutti, supra. Certainly sending them a copy of the statute months and perhaps years in advance does not answer this purpose. The trustee periodically remits their income to them, and we think that they mgith reasonably expect that with or apart from their remittances word might come to them personally that steps were being taken affecting their interests. 29 We need not weigh contentions that a requirement of personal service of citation on even the large number of known resident or nonresident beneficiaries would, by reasons of delay if not of expense, seriously interfere with the proper administration of the fund. Of course personal service even without the jurisdiction of the issuing authority serves the end of actual and personal notice, whatever power of compulsion it might lack. However, no such service is required under the circumstances. This type of trust presupposes a large number of small interests. The individual interest does not stand alone but is identical with that of a class. The rights of each in the integrity of the fund and the fidelity of the trustee are shared by many other beneficiaries. Therefore notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of all, since any objections sustained would inure to the benefit of all. We think that under such circumstances reasonable risks that notice might not actually reach every beneficiary are justifiable. 'Now and then an extraordinary case may turn up, but constitutional law, like other mortal contrivances, has to take some chances, and in the great majority of instances, no doubt, justice will be done.' Blinn v. Nelson, supra, 222 U.S. at page 7, 32 S.Ct. at page 2, 56 L.Ed. 65, Ann.Cas.1913B, 555. 30 The statutory notice to known beneficiaries is inadequate, not because in fact it fails to reach everyone, but because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand. However it may have been in former times, the mails today are recognized as an efficient and inexpensive means of communication. Moreover, the fact that the trust company has been able to give mailed notice to known beneficiaries at the time the common trust fund was established is persuasive that postal notification at the time of accounting would not seriously burden the plan. 31 In some situations the law requires greater precautions in its proceedings than the business world accepts for its own purposes. In few, if any, will it be satisfied with less. Certainly it is instructive, in determining the reasonableness of the impersonal broadcast notification here used, to ask whether it would satisfy a prudent man of business, counting his pennies but finding it in his interest to convey information to many persons whose names and addresses are in his files. We are not satisfied that it would. Publication may theoretically be available for all the world to see, but it is too much in our day to suppose that each or any individual beneficiary does or could examine all that is published to see if something may be tucked away in it that affects his property interests. We have before indicated in reference to notice by publication that, 'Great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact.' McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 61 L.Ed. 608, L.R.A.1917F, 458. 32 We hold the notice of judicial settlement of accounts required by the New York Banking Law § 100-c(12) is incompatible with the requirements of the Fourteenth Amendment as a basis for adjudication depriving known persons whose whereabouts are also known of substantial property rights. Accordingly the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. 33 Reversed. 34 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 35 Mr. Justice BURTON, dissenting. 36 These common trusts are available only when the instruments creating the participating trusts permit participation in the common fund. Whether or not further notice to beneficiaries should supplement the notice and representation here provided is properly within the discretion of the State. The Federal Constitution does not require it here. * Ala.Code Ann., 1940, Cum.Supp.1947, tit. 58, §§ 88 to 103, as amended, Laws 1949, Act 262; Ariz.Code Ann., 1939, Cum.Supp.1949, §§ 51-1101 to 51-1104; Ark.Stat.Ann.1947, §§ 58-110 to 58-112; Cal.Bank.Code Ann., Deering 1949, § 1564; Colo.Stat.Ann., 1935, Cum.Supp.1947, c. 18, §§ 173 to 178; Conn.Gen.Stat.1949 Rev., § 5805; Del.Rev.Code, 1935, § 4401, as amended, Laws 1943, c. 171, Laws 1947, c. 268; (D.C.) Pub.Law No. 416, 81st Cong., 1st Sess., c. 767, Oct. 27, 1949, 63 Stat. 938; Fla.Stat., 1941, §§ 655.29 to 655.34, F.S.A.; Ga.Code Ann., 1937, Cum.Supp.1947, §§ 109-601 to 109-622; Idaho Code Ann., 1949, Cum.Supp.1949, §§ 68-701 to 68-703; Ill.Rev.Stat., 1949, c. 16 1/2, §§ 57 to 63; Ind.Stat.Ann., Burns 1950, §§ 18-2009 to 18-2014; Ky.Rev.Stat., 1948, § 287.230; La.Gen.Stat.Ann., 1939, § 9850.64, Act No. 81 of 1938, § 64; Md.Ann.Code Gen.Laws, 1939, Cum.Supp.1947, art. 11, § 62A; Mass.Ann.Laws, 1933, Cum.Supp.1949, c. 203A; Mich.Stat.Ann., 1943, Cum.Supp.1949, §§ 23.1141 to 23.1153, Comp.Laws 1948, §§ 555.101—555.113; Minn.Stat., 1945, § 48.84, as amended, Laws 1947, c. 234, M.S.A.; N.J.S.A., 1939, Cum.Supp.1949, §§ 17:9A—36 to 17:9A—46; N.C.Gen.Stat., 1943, §§ 36 47 to 36—52; Ohio Gen.Code Ann. (Page's 1946), Cum.Supp.1949, §§ 715 to 720, 722; Okla.Stat.1941, Cum.Supp.1949, tit. 60, § 162; Pa.Stat.Ann., 1939, Cum.Supp.1949, tit. 7, §§ 819—1109 to 819 1109d; So.Dak.Laws 1941, c. 20; Vernon's Tex.Rev.Civ.Stat.Ann., 1939, Cum.Supp.1949, art. 7425b—48; Vt. Stat., 1947 Rev., § 8873; Va.Code Ann., 1950, §§ 6-569 to 6-576; Wash.Rev.Stat.Ann., Supp.1943, §§ 3388 to 3388—6; W.Va.Code Ann., 1949, § 4219 (1) et seq.; Wisc.Stat., 1947, § 223.055.

34

339 U.S. 282 70 S.Ct. 629 94 L.Ed. 839 CASSELLv.STATE OF TEXAS. No. 46. Argued Nov. 10, 1949. Decided April 24, 1950. Mr. Chris Dixie, Houston, Tex., for petitioner. Mr. Joe R. Greenhill, Houston, Tex., for respondent. Mr. Justice REED announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice CLARK concurred. 1 Review was sought in this case to determine whether there had been a violation by Texas of petitioner's federal constitutional right to a fair and impartial grand jury. The federal question was raised by a motion to quash the indictment on the ground that petitioner, a Negro, suffered unconstitutional discrimination through the selection of white men only for the grand jury that indicted him. After full hearing, the trial court denied the motion, and this action was sustained by the Court of Criminal Appeals of Texas in affirming petitioner's conviction. Cassell v. State, 216 S.W.2d 813. 2 The Court of Criminal Appeals accepted the federal rule that a Negro is denied the equal protection of the laws when he is indicted by a grand jury from which Negroes as a race have been intentionally excluded. Cassell v. State, supra, 216 S.W.2d 819; Neal v. State of Delaware, 103 U.S. 370, 394, 26 L.Ed. 567; Smith v. State of Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84; Hill v. State of Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559; Akins v. State of Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692. It was from an examination of facts that the court deduced its conclusion that racial discrimination had not been practiced. Since the result reached may deny a federal right, we may reexamine the facts to determine whether petitioner has sustained by proof his allegation of discrimination.1 Certiorari was granted, 336 U.S. 943, 69 S.Ct. 805, to consider petitioner's claim that in this case Negroes were omitted from the list of grand jurymen either because of deliberate limitation by the Dallas County jury commissioners, or because of failure by the commissioners to acquaint themselves with available Negroes. 3 Acting under the Texas statutes,2 the Dallas County grand-jury commissioners chose a list of sixteen males3 for this September 1947 grand jury from citizens eligible under the statute.4 The judge chose twelve of these for the panel.5 No challenge is now made to the fairness of this statutory system. We have approved it.6 4 Petitioner's attack is upon the way the statutory method of grand-jury selection has been administered by the jury commissioners.7 One charge is that discrimination must have been practiced because the Negro proportion of grand jurors is less than the Negro proportion of the county's population. Under the 1940 census the total population of Dallas County was 398,564, of whom 61,605 were Negroes.8 This is about 15.5%. In weighing this matter of custom, we limit ourselves, as do the parties, to the period between June 1, 1942, when Hill v. Texas, supra, was decided, and November 1947, when petitioner was indicted. There were 21 grand juries in this period; of the 252 members of the panels,9 17, or 6.7% were Negroes. But this apparent discrepancy may be explained by the fact that Texas grand jurors must possess certain statutory qualifications.10 Grand jurors must ordinarily be eligible to vote; eligibility requires payment of a poll tax;11 and the validity of the poll-tax requirement is not challenged. The record shows 5,500 current Negro poll-tax payers in Dallas County in 1947, and nothing indicates that this number varied substantially from year to year.12 The corresponding figure for all poll-tax payers, male and female, is 83,667.13 These figures would indicate that as a proportional matter 6.5% of grand jurors would be Negroes, a percentage approximating the ratio of Negroes actually sitting on the 21 grand jury panels.14 Without more it cannot be said that Negroes had been left off grand-jury panels to such a degree as to establish a prima facie case of discrimination.15 5 A different question is presented by petitioner's next charge that subsequent to the Hill case the Dallas County grand-jury commissioners for 21 consecutive lists had consistently limited Negroes selected for grand-jury service to not more than one on each grand jury. The contention is that the Akins case has been interpreted in Dallas County to allow a limitation of the number of Negroes on each grand jury, provided the limitation is approximately proportional to the number of Negroes eligible for grand-jury service. Since the Hill case the judges of the trial court have been careful to instruct their jury commissioners that discrimination on grounds of race or color is forbidden.16 The judge did so here.17 If, notwithstanding this caution by the trial court judges, commissioners should limit proportionally the number of Negroes selected for grand-jury service, such limitation would violate our Constitution. Jurymen should be selected as individuals, on the basis of individual qualifications, and not as members of a race. 6 We have recently written why proportional representation of races on a jury is not a constitutional requisite.18 Succinctly stated, our reason was that the Constitution requires only a fair jury selected without regard to race. Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color,19 proportional limitation is not permissible. That conclusion is compelled by the United States Code, Title 18, § 243, 18 U.S.C.A. § 243,20 based on § 4 of the Civil Rights Act of 1875. While the language of the section directs attention to the right to serve as a juror, its command has long been recognized also to assure rights to an accused. Prohibiting racial disqualification of Negroes for jury service, this congressional enactment under the Fourteenth Amendment, § 5,21 has been consistently sustained and its violation held to deny a proper trial to a Negro accused.22 Proportional racial limitation is therefore forbidden. An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race. 7 Our holding that there was discrimination in the selection of grand jurors in this case, however, is based on another ground. In explaining the fact that no Negroes appeared on this grand-jury list, the commissioners said that they knew none available who qualified; at the same time they said they chose jurymen only from those people with whom they were personally acquainted.23 It may be assumed that in ordinary activities in Dallas County, acquaintanceship between the races is not on a sufficiently familiar basis to give citizens eligible for appointment as jury commissioners an opportunity to know the qualifications for grand-jury service of many members of another race. An individual's qualifications for grand-jury service, however, are not hard to ascertain,24 and with no evidence to the contrary, we must assume that a large proportion of the Negroes of Dallas County met the statutory requirements for jury service.25 When the commissioners were appointed as judicial administrative officials, it was their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color.26 They did not do so here, and the result has been racial discrimination. We repeat the recent statement of Chief Justice Stone in Hill v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559: 'Discrimination can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case discrimination necessarily results where there are qualified negroes available for jury service. With the large number of colored male residents of the county who are literate, and in the absence of any countervailing testimony, there is no room for inference that there are not among them householders of good moral character, who can read and write, qualified and available for grand jury service.' The existence of the kind of discrimination described in the Hill case does not depend upon systematic exclusion continuing over a long period and practiced by a succession of jury commissioners. Since the issue must be whether there has been discrimination in the selection of the jury that has indicted petitioner, it is enough to have direct evidence based on the statements of the jury commissioners in the very case. Discrimination may be proved in other ways than by evidence of long continued unexplained absence of Negroes from many panels. The statements of the jury commissioners that they chose only whom they knew, and that they knew no eligible Negroes in an area where Negroes made up so large a proportion of the population, prove the intentional exclusion that is discrimination in violation of petitioner's constitutional rights. 8 The judgment of the Court of Criminal Appeals of Texas is reversed. 9 Reversed. 10 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 11 Mr. Justice FRANKFURTER, whom Mr. Justice BURTON and Mr. Justice MINTON join, concurring in the judgment. 12 It has been settled law since 1880 that the Civil War Amendments barred the States from discriminating because of race in the selection of juries, whether grand or petty. As a result, a conviction cannot stand which is based on an indictment found by a grand jury from which Negroes were kept because of discrimination. Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567; Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757. We ought not to reverse a course of decisions of long standing directed against racial discrimination in the administration of justice. But discrimination in this context means purposeful, systematic non-inclusion because of color. Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559. It does not mean an absence of proportional representation of the various racial components of the relevant political unit from which a grand jury is drawn or an isolated instance of disparity among such components. Akins v. State of Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692; Fay v. People of State of New York, 332 U.S. 261, 284, 67 S.Ct. 1613, 1625, 91 L.Ed. 2043. Assuming that the grand-jury pool fairly enough reflects the racial composition of the community, there is no basis for a claim of constitutional discrimination if without design it comes to pass that a particular grand jury has no representation of a particular race. The Civil War Amendments did not deprive the States of their power to define qualifications for grand-jury service relevant to the functions of a grand jury, nor did they turn matters that are inherently incommensurable into mere matters of arithmetic. The Constitution has not withdrawn the administration of criminal justice, of which the jury system is a part, from the States. It does command that no State purposefully make jury service turn on color. 13 A claim that the constitutional prohibition of discrimination was disregarded calls for ascertainment of two kinds of issues which ought not to be confused by being compendiously called 'facts.' The demonstrable, outward events by which a grand jury came into being raise issues quite different from the fair inferences to be drawn from what took place in determining the constitutional question: was there a purposeful non-inclusion of Negroes because of race or a merely symbolic representation, not the operation of an honest exercise of relevant judgment or the uncontrolled caprices of chance? 14 This Court does not sit as a jury to weigh conflicting evidence on underlying details, as for instance what steps were taken to make up the jury list, why one person was rejected and another taken, whether names were picked blindly or chosen by judgment. This is not the place for disputation about what really happened. On that we accept the findings of the State court. But it is for this Court to define the constitutional standards by which those findings are to be judged. Thereby the duty of securing observance of these standards may fall upon this Court. The meaning of uncontrovertible facts in relation to the ultimate issue of discrimination is precisely the constitutional issue on which this Court must pass. See Watts v. State of Indiana, 338 U.S. 49, 50—51, 69 S.Ct. 1347, 1348. Of course even as to this, as always when a State court judgment is claimed to be in disregard of the Constitution, appropriate respect should be given to the judgment of the State court. And so we are brought to this case. 15 If the record here showed no more than that the grand-jury commissioners had considered the Negroes with whom they were acquainted—just as they considered white persons whom they knew and had found them to be either unqualified for grand-jury service or qualified but unavailable, and did so not designedly to exclude Negroes, the State court's validation of the local procedure would have to prevail. We ought not to go behind such a conscientious process, however rough and ready the procedure of selection by jury commissioners. To find in such honest even if pragmatic selection of grand jurors the operation of unconstitutional standards would turn this Court into an agency for supervising the criminal procedure of the forty-eight States. Such an assumption of authority by this Court would jeopardize the practical functioning of grand juries throughout the country in view of the great variety of minority groups that compose our society. 16 A different situation would be presented by an unquestioned showing that jury commissioners had such a limited personal knowledge of potentially qualified Negro jurors that their purposeful limitation of choice to the negligibly few Negroes known to them would inevitably imply designed exclusion of eligible Negroes. The record here affords no basis whatever for such a finding. It indicates the contrary. 17 The record does disclose stark facts requiring reversal on a very different basis. If one factor is uniform in a continuing series of events that are brought to pass through human intervention, the law would have to have the blindness of indifference rather than the blindness of impartiality not to attribute the uniform factor to man's purpose. The purpose may not be of evil intent or in conscious disregard of what is conceived to be a binding duty. Prohibited conduct may result from misconception of what duty requires. Such misconception I believe to be the real situation on the record before us. 18 The governing facts are briefly stated. In Hill v. Texas, supra, this Court found discrimination in the selection of grand jurors in Dallas County, Texas, by virtue of the fact that, despite a large number of Negroes qualified for grand-jury service, none had been drawn. In the course of the five and a half years between that decision and the time of the drawing of the grand jury which found the indictment now challenged, there were twenty-one grand-jury panels.1 On each of these twenty-one consecutive panels there was never more than one Negro. This selection was made from lists which were not the result of a drawing of lots but the personal choice of the grand-jury commissioners. The available evidence clearly indicates that no more than one Negro was chosen by the commissioners for each of the twenty-one lists. Only one Negro was placed on the list—he did not serve on the panel—for the second grand jury in Dallas County after the decision in Hill v. Texas. Again, as to the grand jury which figured in Akins v. Texas, supra, only one Negro was placed on the list, and he served as a grand juror. 325 U.S. at 405, 65 S.Ct. at 1280, 89 L.Ed. 1692. And in Weems v. State, 148 Tex.Crim. 154, 157, 185 S.W.2d 431, 433, it was stipulated that only one Negro, who did not serve on the panel, was on the list. In the present case it is conceded that no Negro was placed on the list. The State makes no contrary claim as to any of the other grand-jury lists though the facts regarding them are peculiarly within the State's knowledge. In view of this background, the assumption that more than one Negro was placed on the lists is inconceivable. 19 To assume that the commissioners did tender to the judges lists containing more than one Negro would lead inescapably to the conclusion that the judges systematically discriminated against Negroes. This is so because it just does not happen that from lists of sixteen it is always Negroes (barring one) that judges unpurposefully reject. I cannot attribute such discrimination to the trial judges of Dallas County. I can decline to attribute such discrimination to these judges only by concluding that the judges were never given the opportunity to select more than one Negro. 20 The grand-jury commissioners here received instructions from the judge not to 'discriminate,' and I have no doubt that they tried conscientiously to abide by them. The difficulty lies in what they conceived to be the standard for determining discrimination, as revealed by their action. The number of Negroes both qualified and available for jury service in Dallas County precluded such uniform presence of never more than one Negro on any other basis of good faith than that the commissioners were guided by the belief that one Negro on the grand jury satisfied the prohibition against discrimination in Hill v. Texas. That this was their view is compelled by their testimony at the hearing on the motion to quash the indictment.2 21 This is of course a misconception. The prohibition of the Constitution against discrimination because of color does not require in and of itself the presence of a Negro on a jury. But neither is it satisfied by Negro representation arbitrarily limited to one. It is not a question of presence on a grand jury nor absence from it. The basis of selection cannot consciously take color into account. Such is the command of the Constitution. Once that restriction upon the State's freedom in devising and administering its jury system is observed, the States are masters in their own household. If it is observed, they cannot be charged with discrimination because of color, no matter what the composition of a grand jury may turn out to be. 22 On this record I cannot escape the conclusion that the judgment below is not based on an allowable finding of facts behind which this Court cannot go. It derives from the ultimate constitutional significance of undisputed facts. These bear no other rational meaning than purposeful discrimination. It does not neutralize the discrimination that it may well have been due to a misconception by the grand-jury commissioners of the requirements of this Court's decisions. 23 This compels reversal of the judgment. 24 Mr. Justice CLARK, concurring. 25 For the reasons stated by Mr. Justice JACKSON, it seems to me quite doubtful as an original issue whether a conviction should be reversed because of purposeful exclusion of the members of a race from the grand jury which returned the indictment. However, I think we must adhere to the settled course of decision by this Court with respect to such exclusion. 26 I am unable to conclude that from the date of the decision in Hill v. State of Texas, 1942, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559, to the date of the trial of this case there has been purposeful systematic limitation of the number of Negroes on grand juries in Dallas County. The only evidence relied upon to establish such limitation is with regard to the composition of the twenty-one grand juries, including the jury returning the indictment of petitioner, which were impaneled during this period. But each of these grand juries of twelve persons was selected by a judge from a list of sixteen persons prepared by commissioners. The record shows only those Negroes who have actually served on the grand juries and not those who were on the commissioners' lists. We cannot conclude that there has been uniformity as to race in the selections of commissioners when we do not know how many Negroes have been on their lists. Even if judicial notice is taken of the racial composition of three lists during the period in question, which are reported in Akins v. State of Texas, 1945, 325 U.S. 398, 405, 65 S.Ct. 1276, 1280, 89 L.Ed. 1692, and in Weems v. State, 1945, 148 Tex.Crim. 154, 157, 185 S.W.2d 431, 433, there remain sixty-eight persons on the lists whose race is not ascertainable from the record or from any concession of counsel. Nor do I think that alternatively we are compelled by the statistics relied upon by petitioner to conclude that the judges purposefully discriminated during this period. Any presumption as to the purpose of the judges, or of the commissioners whom the judges appointed, instructed and supervised, must be that they intended no racial limitation. And the testimony of the judge who impaneled the grand jury in this case and a number of other grand juries during the period under review, as well as the testimony of the commissioners in this case as to the judge's instructions to them, indicates that he has not purposefully limited participation on account of race. In the face of this presumption and testimony, I think that, even if there was more than one Negro on each of the commissioners' list, we could not infer any purpose on the part of the judges to limit Negro participation solely because of race. The burden of showing facts which permit an inference of purposeful limitation is on the defendant. Martin v. State of Texas, 1906, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497. I do not find the present record persuasive that there was such limitation. 27 The difficulties facing grand jury commissioners are well illustrated by this case. On the one hand they are told that purposeful discrimination is inferred from the available statistics during the previous five and one-half years, showing that no more than one Negro was chosen for each of 21 grand juries; that this indicates that the commissioners must have been guided by the misconceived view that the presence of one Negro on the grand jury satisfied constitutional requirements. But they are also told quite properly that a token representation of a race on a grand jury is not a constitutional requisite; that in fact it may reach the point of illegality; that representation on the grand jury by race in proportion to population is not permissible for there must be 'neither inclusion nor exclusion because of race.' Under these circumstances one may, like Job's comforter, only add to the commissioners' distress by writing further. But it does appear to me from this record that their responsibility is broader than they understood it to be. They frankly stated that in making up the list they discussed only those persons whom they knew personally, and that they considered only one Negro, a school principal who could not serve. The record indicates clearly that there were Negroes qualified and available whom the commissioners did not know but whom upon inquiry they should have considered. Their responsibility was to learn whether there were persons among the Negroes they did not know who were qualified and available for service. Hill v. State of Texas, 1942, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Smith v. State of Texas, 1940, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84. The elimination of this large group in the community from the commissioners' consideration deprived petitioner of constitutional safeguards as defined in the decisions of this Court. For this reason I concur in the opinion of Mr. Justice REED and in the judgment of reversal. 28 Mr. Justice JACKSON, dissenting. 29 The case before us is that of a Negro convicted of murder by crushing the skull of a sleeping watchman with a piece of iron pipe to carry out a burglary. No question is here as to his guilt. We are asked to order his release from this conviction upon the sole ground that Negroes were purposefully discriminated against in selection of the grand jury that indicted him. It is admitted that Negroes were not excluded from the trial jury by which he was convicted. 30 In setting aside this conviction, the Court is moved by a desire to enforce equality in that realm where, above all, it must be enforced—in our judicial system. But this conviction is reversed for errors that have nothing to do with the defendant's guilt or innocence, or with a fair trial of that issue. This conflicts with another principle important to our law, viz., that no conviction should be set aside for errors not affecting substantial rights of the accused. 31 This Court has never weighed these competing considerations in cases of this kind. The use of objections to the composition of juries is lately so much resorted to for purposes of delay, however, and the spectacle of a defendant putting the grand jury on trial before he can be tried for a crime is so discrediting to the administration of justice, that it is time to examine the basis for the practice. I. 32 It is the command of the Fourteenth Amendment that Negro citizens be afforded the same opportunities to serve upon grand juries as are afforded white citizens. Moreover, Congress, which is authorized to provide for its enforcement, has enacted that 'no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; * * *.' Act of March 1, 1875, c. 114, § 4, 18 Stat. 336, 62 Stat. 696, 18 U.S.C. § 243, 18 U.S.C.A. § 243. 33 The substantive right is thus clear. But whose right is it? The right is conferred upon the qualified colored citizen to serve on equal terms with the qualified white citizen. This defendant is not here asking that right for himself. He claims that failure to give other Negroes an equal right to sit on the grand jury gives him quite a different right—a right not to be indicted by it. Two reasons occur to me which could justify this Court in translating the wrong to those Negroes excluded from a grand jury into a right of this defendant to void an indictment. One is that the absence of Negroes on the grand jury prejudiced this defendant. The other is that it is the only practicable method for enforcing the right of qualified Negroes to serve on grand juries. It is doubtful if either of these can be sustained. II. 34 Congress, which has implemented the right of Negroes to serve on juries, had also commanded all United States Courts to give judgment 'without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.'1 And this same congressional policy was manifested in a provision directing that no indictment found and presented by a grand jury in United States Courts 'shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.';2 and also in the provision that a motion to quash an indictment shall fail where the ground is that one or more members of the grand jury were unqualified, but where it appears that twelve or more qualified jurors concurred in the finding of the indictment.3 35 This Court never has explained how discrimination in the selection of a grand jury, illegal though it be, has prejudiced a defendant whom a trial jury, chosen with no discrimination, has convicted. The reason this question was not considered perhaps is that, in the earlier cases where convictions were set aside, the discrimination condemned was present in selecting both grand and trial jury and, while the argument was chiefly based on the latter, the language of the opinions made no differentiation, nor for their purpose did they need to. Cf. Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664; Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567; see also Bush v. Commonwealth of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354; Gibson v. State of Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Hale v. Commonwealth of Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050. Only within the last few years have convictions been set aside for discrimination in composition of the grand jury alone, and in these the question now under consideration was not discussed. Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559. 36 It is obvious that discriminatory exclusion of Negroes from a trial jury does, or at least may, prejudice a Negro's right to a fair trial, and that a conviction so obtained should not stand. The trial jury hears the evidence of both sides and chooses what it will believe. In so deciding, it is influenced by imponderables unconscious and conscious prejudices and preferences—and a thousand things we cannot detect or isolate in its verdict and whose influence we cannot weigh. A single juror's dissent is generally enough to prevent conviction. A trial jury on which one of the defendant's race has no chance to sit may not have the substance, and cannot have the appearance, of impartiality, especially when the accused is a Negro and the alleged victim is not. 37 The grand jury is a very different institution. The States are not required to use it at all. Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 292, 28 L.Ed. 232. Its power is only to accuse, not to convict. Its indictment does not even create a presumption of guilt; all that it charges must later be proved before the trial jury, and then beyond a reasonable doubt. The grand jury need not be unanimous. It does not hear both sides but only the prosecution's evidence, and does not face the problem of a choice between two adversaries. Its duty is to indict if the prosecution's evidence, unexplained, uncontradicted and unsupplemented, would warrant a conviction. If so, its indictment merely puts the accused to trial. The difference between the function of the trial jury and the function of the grand jury is all the difference between deciding a case and merely deciding that a case should be tried. 38 It hardly lies in the mouth of a defendant whom a fairly chosen trial jury has found guilty beyond reasonable doubt, to say that his indictment is attributable to prejudice. In this case a trial judge heard the prosecution's evidence, ruled it sufficient to warrant a conviction, appellate courts have held the same, and no further question about it is before us. Moreover, a jury admittedly chosen without racial discrimination has heard the prosecution's and defendant's evidence and has held that guilt beyond a reasonable doubt has been proved. That finding, too, has been affirmed on appeal and is not here. Under such circumstances, it is frivolous to contend that any grand jury, however constituted, could have done its duty in any way other than to indict. III. 39 Congress has provided means other than release of convicted defendants to enforce this right of the Negro community to participate in grand jury service; and they are, if used, direct and effective remedies to accomplish this purpose. 40 '(W)hoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen' because of his color or race has committed a federal crime and is subject to a fine of not more than $5,000. 62 Stat. 696, 18 U.S.C. § 243, 18 U.S.C.A. § 243. 41 Congress has also provided that 'every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.' 17 Stat. 13, 8 U.S.C. § 43, 8 U.S.C.A. § 43. (Emphasis supplied.) 42 These criminal and civil remedies for discriminatory exclusions from the jury have been almost totally neglected both by the Federal Government and by Negro citizens entitled to sit as jurors. Back in 1878 a state judge was indicted in federal court for violation of the Act and this Court sustained it. Ex parte Commonwealth of Virginia, 100 U.S. 339, 25 L.Ed. 676. That case has been allowed to stand as solitary and neglected authority for direct enforcement of the Negro's right to sit on juries. 43 Qualified Negroes excluded by discrimination have available, in addition, remedies in courts of equity. I suppose there is no doubt, and if there is this Court can dispel it, that a citizen or a class of citizens unlawfully excluded from jury service could maintain in a federal court an individual or a class action for an injunction or mandamus against the state officers responsible. Cf. Hague v. Committee for Industrial Organizations, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Douglas v. Jeannette, 319 U.S. 157, 63 S.Ct. 882, 87 L.Ed. 1324, 146 A.L.R. 81; Morris v. Williams, 8 Cir., 149 F.2d 703; Myerson v. Samuel, D.C., 74 F.Supp. 315; Roles v. School Board, D.C., 61 F.Supp. 395. If the order were evaded or disobeyed, imprisonment for contempt could follow. IV. 44 It is implicit in the Court's decision that the federal penal statute, 18 U.S.C. § 243, 18 U.S.C.A. § 243, supra, has been violated. So in effect it holds that the crime of discrimination offsets the crime of murder and that the State must start over again, if death of witnesses, loss of evidence or other conditions wrought by time do not prevent. 45 I do not see how this Court can escape the conclusion that any discrimination in selection of the grand jury in this case, however great the wrong toward qualified Negroes of the community, was harmless to this defendant. To conclude otherwise is to assume that Negroes qualified to sit on a grand jury would refuse even to put to trial a man whom a lawfully chosen trial jury found guilty beyond a reasonable doubt. 46 The Negro's right to be selected for grand jury service is unquestionable and should be directly and uncompromisingly enforced. But I doubt if any good purpose will be served in the long run by identifying the right of the most worthy Negroes to serve on grand juries with the efforts of the least worthy to defer or escape punishment for crime. I cannot believe that those qualified for grand jury service would fail to return a true bill against a murderer because he is a Negro. But unless they would, this defendant has not been harmed. 47 I would treat this as a case where the irregularity is not shown to have harmed this defendant, and affirm the conviction. But in this and similar cases, I would send a copy of the record to the Department of Justice for investigation as to whether there have been violations of the statute and, if so, for prosecution. 1 Norris v. State of Alabama, 294 U.S. 587, 590, 55 S.Ct. 579, 580, 79 L.Ed. 1074; Pierre v. State of Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 538, 83 L.Ed. 757; Smith v. State of Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84; Fay v. People of State of New York, 332 U.S. 261, 272, 67 S.Ct. 1613, 1619, 91 L.Ed. 2043. 2 Texas Code of Criminal Procedure (Vernon, 1948), Arts. 333 340. 3 Id., Art. 338. Under the Texas Constitution and statutes, women may not serve on Texas juries. Texas Constitution, Art. 5, § 13, Vernon's Ann.St.; Harper v. State, 90 Tex.Cr.R. 252, 234 S.W. 909. 4 Texas Code of Criminal Procedure (Vernon, 1948): 'Art. 339. * * * No person shall be selected or serve as a grand juror who does not possess the following qualifications: '1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror. '2. He must be a freeholder within the State, or a householder within the county. '3. He must be of sound mind and good moral character. '4. He must be able to read and write. '5. He must not have been convicted of any felony. '6. He must not be under indictment or other legal accusation for theft or of any felony.' 5 Id., Art. 357. 6 Smith v. State of Texas, supra, 311 U.S. at page 130, 61 S.Ct. at page 165, 85 L.Ed. 84. See Zimmerman v. State, Md., 59 A.2d 675, 676—677, affirmed under title Zimmerman v. Maryland, 336 U.S. 901, 69 S.Ct. 469; Fay v. People of State of New York, 332 U.S. 261, 266, 272, 67 S.Ct. 1613, 1616, 1619, 91 L.Ed. 2043; Morse, A Survey of the Grand Jury System, Part II, 10 Ore.L.Rev. 217, 226—239. 7 There is no suggestion in the case that any judge of the county trial courts discriminated against Negroes in his selection from the lists of the members for the grand juries. 8 Sixteenth Census of the United States: 1940, Population Volume II, Part 6, p. 795. 9 We use the word 'panel' to mean the grand jury which is the final result of the statutory procedure. See Texas Code of Criminal Procedure, Art. 360. The record does not indicate the number of Negroes who were placed on the lists of sixteen, but did not serve. All that appears in this connection is that no Negroes were placed on the list in this case. 10 See note 4, supra. 11 Texas Constitution, Art. 6, § 2; Vernon's Texas Civil Statutes, 1948, Art. 2955; Conklin v. State, 144 Tex.Cr.R. 210, 162 S.W.2d 416. 12 There is some obscurity in the record as to whether the above figure of Negro poll-tax payers refers to males only or to men and women. Tex.Cr.App., 216 S.W.2d 813, 816, 819. The testimony and the statistics in the briefs cause us to conclude that the figure refers to all eligible Negro voters. 13 Texas Almanac, 1947—1948, p. 421. 14 In our computations we have used statistics which include both men and women, because in many cases statistical breakdowns in terms of sex are not available. Although only men may serve on the grand juries, the use of totals including both sexes should make for only minor variations in the percentages. 15 Compare Norris v. State of Alabama, 294 U.S. 587, 591, 55 S.Ct. 579, 580, 79 L.Ed. 1074; Pierre v. State of Louisiana, 306 U.S. 354, 361, 59 S.Ct. 536, 540, 83 L.Ed. 757; Smith v. State of Texas, 311 U.S. 128, 129, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. State of Texas, 316 U.S. 400, 401—403, 62 S.Ct. 1159, 1160, 1161, 86 L.Ed. 1559. 16 Akins v. State of Texas, 325 U.S. 398, 404, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692. 17 Cassell v. State, Tex.Cr.App., 216 S.W.2d 813. 18 Akins v. State of Texas, supra, 325 U.S. 403, 65 S.Ct. 1279, 89 L.Ed. 1692. 19 Neal v. State of Delaware, 103 U.S. 370, 394, 26 L.Ed. 567; Akins v. State of Texas, supra, 404, 65 S.Ct. 1279, 89 L.Ed. 1692. 20 'No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000.' 21 'Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.' 22 See Neal v. State of Delaware, supra, 103 U.S. 385, 386, 26 L.Ed. 567; Hill v. State of Texas, supra, 316 U.S. 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559; Fay v. People of State of New York, supra, 332 U.S. 284, 67 S.Ct. 1625, 91 L.Ed. 2043. 23 One commissioner said: 'I was not personally acquainted with any negro citizen of Dallas County that I thought was qualified to sit on the Grand Jury, at that time. I did not know a one personally that I would recommend, myself, at that time. '* * * The reason that I did not submit the name of a negro in my 6 names that I submitted was because I did not know any negro citizen that I felt was qualified with reference to education and business ability to serve on this Grand Jury.' Another said: 'We did not select a negro when I served as a Commissioner; we did disregard color, race or creed; I did not know plenty of negroes that I said would be qualified. I know a lot of negroes that are qualified lawyers, doctors, Superintendents of Schools and that sort of thing but the particular thing is that their occupation precludes their serving. You could not ask a doctor or lawyer to serve 3 months of their time, either white or colored; that limited us as to the number that we could select. I knew a lot of white and colored people that were qualified. 'I did not select a negro on this Grand Jury Panel but I tried.' This commissioner had sought a Negro High School Principal for the list. The third said: 'The reason a negro was not selected was not because we discriminated; I only appointed those that I personally knew to be qualified. 'If the name of any qualified negro citizen—been submitted at that time, who had given his permission and said that he had time to serve, I certainly would have submitted his name along with the other 15 names, if it was somebody that would have been acceptable to me.' 24 See Texas Code of Criminal Procedure, Arts. 339, 355. In large centers methods of selection other than personal acquaintanceship have been found convenient. Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043. 25 Pierre v. State of Louisiana, 306 U.S. 354, 360, 59 S.Ct. 536, 539, 83 L.Ed. 757. 26 Smith v. Texas, supra, 311 U.S. 131—132, 61 S.Ct. 165, 166, 85 L.Ed. 84. There was a further discussion of the duty of jury commissioners to familiarize themselves with jury eligibles in Hill v. State, 144 Tex.Cr.R. 415, 418, 157 S.W.2d 369, 371. The commissioners' lack of acquaintance with available Negroes was not deemed sufficient by the state court to justify reversal. We disagreed and reversed. 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559. 1 I use the term 'panel,' as does Mr. Justice REED in his opinion, to mean the grand jury of twelve selected from the list of sixteen persons tendered to the judge by the grand-jury commissioners. 2 The following is a fair compilation of the testimony of the three grand-jury commissioners on this point: '* * * it was discussed in the Jury Room (among) we Commissioners that an effort had been made to secure a negro for the Grand Jury * * *.' 'The reason that a negro was not put on this Grand Jury was not because I had not made an effort to secure one * * *.' 'I did not select a negro on this Grand Jury Panel but I tried.' 'As far as I know, there was not a negro on the October, 1947, Term of Grand Jury; I have never seen them in a body. When the information came to me I tried to contact a negro * * *.' 'The reason a negro was not selected was not because we discriminated * * *.' 'If the name of any qualified negro citizen (had) been submitted at that time, who had given his permission and said that he had time to serve, I certainly would have submitted his name along with the 15 other names, if it was somebody that would have been acceptable to me.' 1 The quoted language appeared in 40 Stat. 1181, 28 U.S.C. § 391 (1940 ed.) This provision was repealed in the revision of the Judicial Code in 1948, Act of June 25, 1948, c. 646, § 39, 62 Stat. 992, 998, apparently because it had been embodied in Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., see Note of the Advisory Committee following Rule 52(a); but was partially reenacted by Act of May 24, 1949, c. 139, § 110, 63 Stat. 105, and now appears as § 2111, 28 U.S.C., Supp. III, 1950, 28 U.S.C.A. § 2111. 2 17 Stat. 198, 18 U.S.C. § 556 (1940), repealed in the 1948 revision of the Criminal Code, Act of June 25, 1948, c. 645, § 21, 62 Stat. 862, 866, apparently for the reason that it had been incorporated in Rules 6 and 52, Federal Rules of Criminal Procedure, 18 U.S.C.A. See Notes of Advisory Committee following Rules 6 and 52. 3 48 Stat. 649, 18 U.S.C. § 554a (1940 ed.), repealed by Act of June 25, 1948, c. 645, § 21, 62 Stat. 862, 866, apparently because of its incorporation into Rule 6(b)(2), Federal Rules of Criminal Procedure, 18 U.S.C.A. See Note of advisory Committee following Rule 6(b)(2).

12

339 U.S. 485 70 S.Ct. 711 94 L.Ed. 1007 UNITED STATESv.NATIONAL ASSOCIATION OF REAL ESTATE BOARDS et al. No. 428. Argued March 31, 1950. Decided May 8, 1950. Messrs. Peyton Ford and Victor H. Kramer, Assts. to the Attorney General, for the United States. Mr. William E. Leahy, Washington, D.C., for appellees Washington Real Estate Board et al. Mr. Roger J. Whiteford, Washington, D.C., for appellees National Association of Real Estate Boards and Herbert U. Nelson. [Argument of Counsel from page 486 intentionally omitted] Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This is a civil action brought by the United States to enjoin appellees1 from engaging in a price-fixing conspiracy in violation of § 3 of the Sherman Act, 26 Stat. 209, 15 U.S.C. § 3, 15 U.S.C.A. § 3.2 The core of the case is the charge that the members of the Washington Real Estate Board combined and conspired to fix the commission rates for their services when acting as brokers in the sale, exchange, lease and management of real property in the District of Columbia. 2 The same conspiracy was charged in a criminal proceedings.3 The criminal case was tried first. At the end of the Government's case the court granted the defendants' motion for a judgment of acquittal. D.C., 80 F.Supp. 350. Appellees then moved for summary judgment in this civil suit, contending that the judgment of acquittal in the criminal case is res judicata here. That motion was denied.4 3 The civil case was then tried. It was stipulated that the trial would be on the record in the criminal case, the United States reserving the right to offer additional exhibits. No evidence was offered by appellees. The court entered judgment for the appellees, holding that the agreement to fix the rates of brokerage commissions, which had been shown, was not a violation of the Act. D.C., 84 F.Supp. 802. The case is here on appeal. 32 Stat. 823, 62 Stat. 989, 15 U.S.C. § 29, 15 U.S.C.A. § 29. 4 First. The fact that no interstate commerce is involved is not a barrier to this suit. Section 3 of the Sherman Act5 is not leveled at interstate activities alone. It also puts beyond the pale certain conduct purely local in character and confined to the District of Columbia. That Congress has the power so to legislate for the District by virtue of Art. I, § 8, Clause 17 of the Constitution and did so by § 3 was settled by Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 432—435, 52 S.Ct. 607—609, 76 L.Ed. 1204. 5 Second. The Washington Board has adopted standard rates of commissions for its members—charges which cover the wide range of services furnished by a real estate agent. The Board's code of ethics provides that 'Brokers should maintain the standard rates of commission adopted by the board and no business should be solicited at lower rates.' Members agree to abide by this code. The prescribed rates are used in the great majority of transactions, although in exceptional situations a lower charge is made. But departure from the prescribed rates has not caused the Washington Board to invoke any sanctions. Hence the District Court called the rate schedules 'non-mandatory.' 6 Enough has been said to show that under our decisions an illegal price-fixing scheme has been proved, unless the fixing of real estate commissions is not included in the prohibitions of § 3 of the Act. Price-fixing is per se an unreasonable restraint of trade. It is not for the courts to determine whether in particular settings price-fixing serves an honorable or worthy end. An agreement, shown either by adherence to a price schedule or by proof of consensual action fixing the uniform or minimum price, is itself illegal under the Sherman Act, no matter what end it was designed to serve. That is the teaching of an unbroken line of decisions. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218 et seq., 60 S.Ct. 811, 841 et seq., 84 L.Ed. 1129; United States v. Paramount Pictures, 334 U.S. 131, 142, 143, 68 S.Ct. 915, 921, 922, 92 L.Ed. 1260. And the fact that no penalties are imposed for deviations from the price schedules is not material. See Eastern States Lumber Assn. v. United States, 234 U.S. 600, 608—609, 34 S.Ct. 951—953, 58 L.Ed. 1490, L.R.A.1915A, 788; American Column & Lumber Co. v. United States, 257 U.S. 377, 411, 42 S.Ct. 114, 121, 66 L.Ed. 284, 21 A.L.R. 1093; Federal Trade Commission v. Pacific States Paper Trade Assn., 273 U.S. 52, 62, 47 S.Ct. 255, 257, 71 L.Ed. 534. Subtle influences may be just as effective as the threat or use of formal sanctions to hold people in line. 7 Third. The critical question is whether the business of a real estate agent is included in the word 'trade' within the meaning of § 3 of the Act. The District Court thought not. It was of the view that where personal services are involved, a combination to fix the price or compensation is legal. It seemingly was influenced by the declaration in § 6 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 17, 15 U.S.C.A. § 17, that 'the labor of a human being is not a commodity or article of commerce * * * nor shall such (labor) organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.' But we think it a misconception to assimilate the services involved here to those of employees or to compare the present case to those involving the application of the antitrust laws to labor unions. Cf. Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311, 128 A.L.R. 1044; United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788. We do not have here any more than we did in American Medical Ass'n v. United States, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. 434, or United States v. Women's Sportswear Mfrs. Ass'n, 336 U.S. 460, 69 S.Ct. 714, cf. Columbia River Packer's Ass'n v. Hinton, 315 U.S. 143, 62 S.Ct. 520, 86 L.Ed. 750, an aspect of the employee-employer relationship to which the antitrust laws have made special concessions. 8 Members of the Washington Board are entrepreneurs. Some are individual proprietors; others are banks or corporations. Some may have no employees; others have large staffs. But each is in business on his own. The fact that the business involves the sale of personal services rather than commodities does not take it out of the category of 'trade' within the meaning of § 3 of the Act. The Act was aimed at combinations organized and directed to control of the market by suppression of competition 'in the marketing of goods and services.' See Apex Hosiery Co. v. Leader, supra, 310 U.S. at page 493, 60 S.Ct. at page 992. 9 Justice Story in The Schooner Nymph, 18 Fed.Cas. No. 10388, pages 506, 507, while construing the word 'trade' in the Coasting and Fishery Act of 1793, 1 Stat. 305, said, 10 'The argument for the claimant insists, that 'trade' is here used in its most restrictive sense, and as equivalent to traffic in goods, or buying and selling in commerce or exchange. But I am clearly of opinion that such is not the true sense of the word, as used in the 32d section (46 U.S.C.A. § 325). In the first place, the word 'trade' is often, and indeed generally, used in a broader sense, as equivalent to occupation, employment, or business, whether manual or mercantile. Wherever any occupation, employment, or business is carried on for the purpose of profit, or gain or a livelihood, not in the liberal arts or in the learned professions, it is constantly called a trade. Thus, we constantly speak of the art, mystery, or trade of a housewright, a shipwright, a tailor, a blacksmith, and a shoe-maker, though some of these may be, and sometimes are, carried on without buying or selling goods.' 11 It is in that broad sense that 'trade' is used in the Sherman Act. That has been the consistent holding of the decisions. The fixing of prices and other unreasonable restraints have been consistently condemned in case of services as well as goods. Transportation services, United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 312, 17 S.Ct. 540, 547, 41 L.Ed. 1007; United States v. Joint Traffic Ass'n, 171 U.S. 505, 19 S.Ct. 25, 43 L.Ed. 259, cleaning, dyeing, and renovating wearing apparel, Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 52 S.Ct. 607, 76 L.Ed. 1204, the procurement of medical and hospital services, American Medical Ass'n v. United States, supra, 317 U.S. 528, 63 S.Ct. 328, 87 L.Ed. 434, the furnishing of news or advertising services, Indiana Farmers Guide Pub. Co. v. Prairie Farmer Pub. Co., 293 U.S. 268, 55 S.Ct. 182, 79 L.Ed. 356; Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013,—these indicate the range of business activities that have been held to be covered by the Act. In Atlantic Cleaners & Dyers v. United States, supra, 286 U.S. 435, 437, 52 S.Ct. 609, 610, 76 L.Ed. 1204, the Court rejected the view that 'trade' as used in § 3 should be interpreted in the narrow sense which would exclude personal services. It held, speaking through Mr. Justice Sutherland, that § 3 used the word in the broad sense in which Justice Story used it in The Schooner Nymph, supra. Chief Justice Groner made an extended analysis and summary of the problem in United States v. American Medical Ass'n, 72 App.D.C. 12, 110 F.2d 703, 707—711, where the Court of Appeals for the District of Columbia held that the practice of medicine in the District was a 'trade' within the meaning of § 3 of the Act. Its conclusion was that the term included 'all occupations in which men are engaged for a livelihood.' We do not intimate an opinion on the correctness of the application of the term to the professions. We have said enough to indicate we would be contracting the scope of the concept of 'trade,' as used in the phrase 'restraint of trade,' in a precedent-breaking manner if we carved out an exemption for real estate brokers. Their activity is commercial and carried on for profit. The fact that no goods are manufactured or bought or sold in the process is as irrelevant here as it was in Atlantic Cleaners & Dyers v. United States, supra. No reason of policy has been advanced for reading § 3 of the Act less literally than its terms suggest. The competitive standards which the Act sought to preserve in the field of trade and commerce seem as relevant to the brokerage business as to other branches of commercial activity. 12 Hopkins v. United States, 171 U.S. 578, 19 S.Ct. 40, 43 L.Ed. 290, and Anderson v. United States, 171 U.S. 604, 19 S.Ct. 50, 43 L.Ed. 300, are not opposed to this conclusion. It was held in those cases that commission merchants and yard traders on livestock exchanges were not engaged in interstate commerce even though the livestock moved across state lines, cf. Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229, and therefore that the rules and agreements between the merchants and traders (which included in the Hopkins case the fixing of minimum fees) did not fall under the ban of the Sherman Act. But we are not confronted with that problem here. As noted, we are concerned here not with interstate commerce but with trade or commerce in the District of Columbia. 13 Fourth. Appellees claim that the judgment of acquittal in the criminal action is res judicata in this action. Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917, is contra and rules this case. There Mitchell had been tried and acquitted of a criminal charge of wilfully attempting to evade payment of his income tax. Thereafter suit was brought to collect the taxes owed plus a 50 per cent penalty for fraudulent evasion. The acquittal in the criminal case was held not to be a bar to the collection of the penalty.6 'The difference in degree of the burden of proof in criminal and civil cases' was held to preclude application of the doctrine of res judicata in the civil suit. 303 U.S. 397, 58 S.Ct. 632, 82 L.Ed. 917. In the present case the motions for judgment of acquittal raised the question whether the evidence overcame all reasonable doubt of the guilt of appellees.7 The ruling on them did not determine whether by the lesser degree of proof required in a civil case appellees might be found to have conspired to fix commissions. The civil action is independent of the criminal cause, Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 52, 33 S.Ct. 9, 16, 57 L.Ed. 107, and is remedial in nature. It has been repeatedly held that though the civil suit is bottomed on the same facts, it is not barred by the prior judgment of acquittal in the criminal case. See Stone v. United States, 167 U.S. 178, 17 S.Ct. 778, 42 L.Ed. 127; Murphy v. United States, 272 U.S. 630, 47 S.Ct. 218, 71 L.Ed. 446; Helvering v. Mitchell, supra. The result is not altered by the circumstance that the court in ruling on the sufficiency of the evidence may have started with an erroneous construction of the law. 14 Fifth. The District Court found that two of the appellees National Association and Herbert U. Nelson8—did not conspire with the Washington Board to fix and prescribe the rates of commission to be charged by the members of the latter. No more particularized findings were made. Appellant asks us to set aside that ruling. The question is whether we may do so in light of Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A., which provides in part: 15 '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.' 16 The National Association is a nationwide, incorporated trade association of which the Washington Board is a member. Active members of the Washington Board are also members of the National Association. The National Association has a code of ethics which includes an article stating that 'the schedules of fees established by the various Real Estate Boards are believed to represent fair compensation for services rendered in their communities and should be observed by every Realtor.' It is provided in the by-laws of the National Association (1) that each member board shall adopt the code of ethics of the National Association as a part of its rules and regulations for violation of which disciplinary action may be taken, and (2) that any member board that neglects or refuses to maintain and enforce the code of ethics with respect to the activities of its constituent members may be expelled from membership in the National Association. The appellant also points to evidence showing the activities of the National Association in developing a national schedule of commissions which, it is alleged, were influential in shaping the fees adopted by the Washington Board in 1944. 17 Appellant relies chiefly on the code of ethics and by-laws of the National Association, as it clearly may, Associated Press v. United States, supra, 326 U.S. at pages 8, 12, 65 S.Ct. 1418, 1420, 89 L.Ed. 2013, to establish the restraint of trade. But we cannot say that the District Court was 'clearly erroneous' in finding that the National Association and Nelson were not laced into the conspiracy to fix the commissions in the District of Columbia. The statement in the code of ethics that the schedule of fees 'should be observed' is somewhat ambiguous. It may be advisory only. The provision of the by-laws that violations of the code of ethics of the National Association should be the basis of disciplinary action against both member boards and their constituent members is aimed at thirty-five articles of the code of ethics, not selectively at the fee provision. So we are left somewhat in doubt as to the extent if any to which the National Association and Nelson were architects of the fee-fixing conspiracy or participants in it. At best their relationship to it is on this record a somewhat attenuated one. 18 It is not enough that we might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent. See United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179; United States v. United States Gypsum Co., 333 U.S. 364, 394—395, 68 S.Ct. 525, 541, 92 L.Ed. 746. We are not given those The judgment of the District Court is reversed except as to the National Association and Nelson; and as to them it is affirmed. 19 Affirmed in part and reversed in part. 20 Mr. Justice FRANKFURTER and Mr. Justice CLARK took no part in the consideration or decision of this case. 21 Mr. Justice JACKSON, dissenting. 22 If real estate brokerage is to be distinguished from the professions or from other labor that is permitted to organize, the Court does not impart any standards for so doing. 23 It is certain that those rendering many kinds of service are allowed to combine and fix uniform rates of pay and conditions of service. This is true of all laborers, who may do so within or without unions and whose unions frequently do include owners of establishments that employ others, such as automobile sales agencies. See, for example, International Brotherhood of Teamsters, etc. v. Hanke, 339 U.S. 470, 70 S.Ct. 773. I suppose this immunity is not confined to those whose labor is manual and is not lost because the labor performed is professional. The brokerage which is swept under the antitrust laws by this decision is perhaps a border-line activity. However, the broker furnishes no goods and performs only personal services. Capital assets play no greater part in his service than in that of the lawyer, doctor or office worker. Services of the real estate broker, if not strictly fiduciary, are at least those of a trusted agent and, oftentimes, advisory as to values and procedures. I am not persuaded that fixing uniform fees for the broker's labor is more offensive to the antitrust laws than fixing uniform fees for the labor of a lawyer, a doctor, a carpenter, or a plumber. I would affirm the decision of the court below. 1 National Association of Real Estate Boards, a nation-wide incorporated trade association; Herbert U. Nelson, its executive vice-president; Washington Real Estate Board, an incorporated association of real estate brokers in Washington, D.C.; and 15 of its members individually and as representatives of a class consisting of all members of the Washington Board. 2 'Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such Territory and another, or between any such Territory or Territories and any State or States or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, is declared illegal.' 3 The indictment was returned against the Washington Real Estate Board and the National Association of Real Estate Boards. 4 An appeal from that order was dismissed. D.C.Cir., 176 F.2d 631. 5 See note 2, supra. 6 Since the Court ruled that the 50 per cent penalty was not a criminal penalty but a civil administrative sanction, 303 U.S. 398—406, 58 S.Ct. 632, 636, 82 L.Ed. 917, the case was considered distinct from Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684, which held that the facts ascertained in a criminal case as between the United States and the claimant could not be again litigated between them in a civil suit which was punitive in character. The fact that in case of corporations dissolution can result from a civil suit under the antitrust laws does not make the proceeding any the less remedial. The civil suit aims to put an end to the restraint, not to impose punishment for past acts. See Schine Chain Theatres v. United States, 334 U.S. 110, 128, 68 S.Ct. 947, 957, 92 L.Ed. 1245. 7 The motions apparently were made under Rule 29 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which provide in part: 'Motion for Judgment of Acquittal. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.' 8 See note 1, supra.

78

339 U.S. 323 70 S.Ct. 724 94 L.Ed. 884 UNITED STATESv.BRYAN. No. 99. Argued Dec. 15, 1949. Decided May 8, 1950. Rehearing Denied June 5, 1950. See 339 U.S. 991, 70 S.Ct. 1018. Mr. Philip B. Perlman, Sol. Gen., Washington, D.C., for the United states. Messrs. O. John Rogge, Washington, D.C., and Benedict Wolf, New York City, for respondent. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 Respondent is the executive secretary of an organization known as the Joint Anti-Fascist Refugee Committee (hereinafter referred to as the association) and as such has custody of its records. Prior to April 4, 1946, the Committee on Un-American Activities of the House of Representatives, which was conducting an investigation into the activities of the association, had attempted without success to procure these records from respondent and from the chairman of the association's executive board, Dr. Edward K. Barsky. On March 29, 1946, the Committee issued subpoenas to each of the known members of the executive board summoning them to appear in the Committee's room on April 4, 1946, at 10 a.m., to testify and produce certain specified records of the association, and an identical subpoena directed to the association by name was served upon respondent Bryan in her official capacity. 2 Bryan and the members of the executive board appeared before the Committee at the date and time set out in the subpoenas and in response thereto. Each person so summoned failed to produce any of the records specified in the subpoenas. The members of the executive board made identical statements in which each declared that he or she did not have possession, custody or control of the records; that Miss Bryan, the executive secretary, did. Respondent admitted that the records were in her possession but refused to comply with the subpoena because 'after consulting with counsel (she) came to the conclusion that the subpoena was not valid' because the Committee had no constitutional right to demand the books and records. Asked whether the executive board supported her action, she refused to answer because she did not think the question pertinent. 3 The Committee on Un-American Activities then submitted its report and resolution to the House. Setting out at length the Committee's attempts to procure the records of the association, the report concludes: 'The willful and deliberate refusal of Helen R. Bryan and the members of the executive board of the Joint Anti-Fascist Refugee Committee as named herein to produce the books, papers, and records called for in the subpoenas deprives your committee of evidence necessary in the conduct of its investigation of the Joint Anti-Fascist Rufugee Committee, which evidence is pertinent to the said investigation and places the said persons in contempt of the House of Representatives of the United States.'1 4 The resolution directing the Speaker to certify the Committee's report to the United States Attorney for the District of Columbia for legal action was approved by the full House after debate.2 5 Respondent was indicted for violation of R.S. § 102,3 in that she had failed to produce the records called for in the subpoenas and had thereby wilfully made default. Act the trial she contended, inter alia, that she was not guilty of wilful default because a quorum of the Committee on Un-American Activities had not been present when she appeared on the return day. However, the trial court withdrew that issue from the jury's consideration by instructing the jury 'as a matter of law, that the Committee on Un-American Activities of the House of Representatives was a validly constituted committee of the Congress, and was at the time of the defendant's appearance.' Respondent was found guilty, 72 F.Supp. 58, but the Court of Appeals for the District of Columbia, one judge dissenting, reversed the judgment on the ground that the presence of a quorum of the Committee at the hearing on April 4, 1946, was a material question of fact in the alleged offense and should have been submitted to the jury. 84 U.S.App.D.C. 394, 174 F.2d 525. We granted a writ of certiorari, 338 U.S. 846, 70 S.Ct. 87, to consider this important question affecting the procedures of congressional committees. 6 First. R.S. § 102 was enacted in 1857. Its purpose, as stated by its sponsors, was to avoid the procedural difficulties which had been experienced by the House of Representatives when person cited for contempt of the House were brought before its bar to show cause why they should not be committed, and, more important, to permit the imprisonment of a contemnor beyond the expiration of the current session of Congress.4 Transmission of the fact of the commission of a contempt to the prosecuting authority is made under the Seal of the House of Senate by the Speaker or President of the Senate.5 The judicial proceedings are intended as an alternative method of vindicating the authority of Congress to compel the disclosure of facts which are needed in the fulfillment of the legislative function. In re Chapman, 1897, 166 U.S. 661, 671—672, 17 S.Ct. 677, 681, 41 L.Ed. 1154; Jurney v. MacCracken, 1935, 294 U.S. 125, 151, 55 S.Ct. 375, 379, 79 L.Ed. 802. 7 'Default' is, of course, a failure to comply with the summons. In this case we may assume, without deciding, that the subpoena served on respondent required her to produce the records of the association before the Committee on Un-American Activities, sitting as a committee.6 Upon that assumption, respondent takes the position that, absent a quorum, the Committee was without power to receive the records on the return day; that she cannot be guilty of a default in failing to produce papers before an 'agency organizationally defective,' which, for that reason, 'cannot be obstructed.' Respondent does not and cannot, in view of the jury's verdict, contest the finding that she deliberately and intentionally refused to produce the papers called for in the subpoena. Her contention is that a quorum of the Committee was required to meet to witness her refusal. Reliance is placed upon certain precedents of the House of Representatives, which hold that a committee report may be challenged in the House on the ground that a quorum of the committee was not present when the report was approved, and upon this Court's recent decision in Christoffel v. United States, 1949, 338 U.S. 84, 69 S.Ct. 1447. 8 The Christoffel case is inapposite. For that decision, which involved a prosecution for perjury before a congressional committee, rests in part upon the proposition that the applicable perjury statute requires that a 'competent tribunal' be present when the false statement is made. There is no such requirement in R.S. § 102. It does not contemplate some affirmative act which is made punishable only if performed before a competent tribunal, but an intentional failure to testify or produce papers, however the contumacy is manifested. Respondent attempts to equate R.S. § 102 with the perjury statute considered in the Christoffel case by contending that it applies only to the refusal to testify or produce papers before a committee—i.e., in the presence of a quorum of the committee. But the statute is not so limited. In the first place, it refers to the wilful failure by any person 'to give testimony or to produce papers upon any matter under inquiry before * * * any committee of either House of Congress,' not to the failure to testify before a congressional committee. And the fact that appearance before a committee is not an essential element of the offense is further emphasized by additional language in the statute, which, after defining wilful default in the terms set out above, continues, 'or who, having oppeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, * * *.' (Emphasis supplied.) 9 It is clear that R.S. § 102 is designed to punish the obstruction of inquiries in which the Houses of Congress or their committees are engaged. If it is shown that such an inquiry is, in fact, obstructed by the intentional withholding of documents, it is unimportant whether the subpoenaed person proclaims his refusal to respond before the full committee, sends a telegram to the chairman, or simply stays away from the hearing on the return day. His statements or actions are merely evidence from which a jury might infer an intent to default. A proclaimed refusal to respond, as in this case, makes that intent plain. But it would hardly be less plain if the witness embarked on a voyage to Europe on the day before his scheduled appearance before the committee. 10 Of course a witness may always change his mind. A default does not mature until the return date of the subpoena, whatever the previous manifestations of intent to default. But when the Government introduced evidence in this case that respondent had been validly served with a lawful subpoena directing her to produce records within her custody and control, and that on the day set out in the subpoena she intentionally failed to comply, it made out a prima facie case of wilful default. 11 Second. It is argued, however, that even if the Government is not required to prove presence of a quorum affirmatively, lack of a quorum is a defense raising material questions of fact which should have been submitted to the jury. The theory is that if the subpoena required production of the records before the Committee on Un-American Activities qua committee, respondent could not have complied with the subpoena in the absence of a quorum had she wished to do so, and therefore her default is not wilful, albeit deliberate and intentional. While she did not introduce any direct evidence at the trial, respondent appropriately raised the defense by cross-examination and by her motions, requests and objections. 12 Ordinarily, one charged with contempt of court for failure to comply with a court order makes a complete defense by proving that he is unable to comply. A court will not imprison a witness for failure to produce documents which he does not have unless he is responsible for their unavailability, cf. Jurney v. MacCracken, supra, or is impeding justice by not explaining what happened to them, United States v. Goldstein, 2 Cir., 1939, 105 F.2d 150. 13 On the other hand, persons summoned as witnesses by competent authority have certain minimum duties and obligations which are necessary concessions to the public interest in the orderly operation of legislative and judicial machinery. A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity. We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned. See e.g., Blair v. United States, 1919, 250 U.S. 273, 281, 39 S.Ct. 468, 471, 63 L.Ed. 979; Blackmer v. United States, 1932, 284 U.S. 421, 438, 52 S.Ct. 252, 255, 76 L.Ed. 375. 14 Certain exemptions from attending or, having attended, giving testimony are recognized by all courts. But every such exemption is grounded in a substantial individual interest which has been found, through centuries of experience, to outweigh the public interest in the search for truth. Dean Wigmore stated the proposition thus: 'For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man's evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.'7 15 Every exemption from testifying or producing records thus presupposes a very real interest to be protected. If a privilege based upon that interest is asserted its validity must be assessed. Since we assume in this case that the subpoenas refer to the production of papers before the Committee qua committee, we agree that respondent could rightfully have demanded attendance of a quorum of the Committee and declined to testify or to produce documents so long as a quorum was not present. But the courts need not treat as important that which the witness obviously regarded as unimportant.8 Testimonial compulsion is an intensely practical matter. If, therefore, a witness seeks to excuse a default on grounds of inability to comply with the subpoena, we think the defense must fail in the absence of even a modicum of good faith in responding to the subpoena. That such was the situation in this case does not admit of doubt. 16 In the first place, if respondent had legitimate reasons for failing to produce the records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have required that she state her reasons for noncompliance upon the return of the writ. At the time and place specified in the subpoenas the Chairman of the Committee and a number of other members—whether or not a quorum was present at any time is not clear from the record—presented themselves for the taking of testimony and receipt of papers. The defect in composition of the Committee, if any, was one which could easily have been remedied. But the Committee was not informed until the trial, two years after the refusal to produce the records, that respondent sought to excuse her noncompliance on the ground that a quorum of the Committee had not been present. For two years, now grown to four, the Committee's investigation was obstructed by an objection which, so far as we are informed, could have been rectified in a few minutes. 17 Such a patent evasion of the duty of one summoned to produce papers before a congressional committee cannot be condoned. Suppose one who has been summoned to produce papers fails to deliver them as required but refuses to give any reason. May he defend a prosecution for wilful default, many months later, on the ground that he had not been given a sufficient time to gather the papers? We think such a contention hardly tenable. Yet, at the return date, compliance with the subpoena was 'impossible' just as in the present case. To deny the Committee the opportunity to consider the objection or remedy it is in itself a contempt of its authority and an obstruction of its procxesses. See Bevan v. Krieger, 1933, 289 U.S. 459, 464—465, 53 S.Ct. 661, 662—663, 77 L.Ed. 1316. 18 In the second place, the fact that the alleged defect upon which respondent now insists is, in her own estimation, an immaterial one, is clearly shown by her reliance before the Committee upon other grounds for failing to produce the records. She does not deny, and the transcript of the hearing makes it perfectly clear, that she would not have complied with the subpoenas no matter how the Committee had been constituted at the time. This Court considered a similar question in Hale v. Henkel, 1906, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652, where a witness had refused in the trial court to produce certain books and papers called for by a subpoena duces tecum on three grounds, one of which was that it was impossible to collect the records within the time allowed. The Court pointed out that 'Had the witness relied solely upon the first ground, doubtless the court would have given him the necessary time.' 201 U.S. at page 70, 26 S.Ct. at page 377. But having refused compliance for other reasons which the lower court could not remedy, the witness could not later complain of its refusal to do a meaningless act—to grant him additional time to gather papers which he had indicated he would not produce in any event.9 Here respondent would have the Committee go through the empty formality of summoning a quorum of its members to gather in solemn conclave to hear her refuse to honor its demands. Presumably the same formalism would be required if respondent had informed the Committee that she was not coming at all and did not do so. 19 In a not dissimilar case, Judge Learned Hand stated what we consider to be the basic question before us and gave the answer which we think must necessarily follow. He said: 20 'The question is no less than whether courts must put up with shifts and subterfuges in the place of truth and are powerless to put an end to trifling. They would prove themselves incapable of dealing with actualities if it were so, for there is no surer sign of a feeble and fumbling law than timidity in penetrating the form to the substance.' Loubriel v. United States, 2 Cir., 1926, 9 F.2d 807, 808. 21 We hold that the Government is not required to prove that a quorum of the Committee was present when the default occurred, and that under the circumstances disclosed by this record a defense of lack of a quorum was not open to respondent. 22 Third. Respondent also contended at the trial that the court erred in permitting the Government to read to the jury the testimony she had given before the House Committee when called upon to produce the records. She relies upon R.S. § 859, now codified in § 3486 of Title 18 U.S.C., 18 U.S.C.A. § 3486, which provides that 'No testimony given by a witness before * * * any committee of either House, * * * shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. * * *' Admittedly her testimony relative to production of the books comes within the literal language of the statute; but the trial court thought that to apply the statute to respondent's testimony would subvert the congressional purpose in its passage.10 We agree. 23 We need not set out the history of the statute in detail. It should be noted, however, that its function was to provide an immunity in subsequent criminal proceedings to witnesses before congressional committees, in return for which it was thought that witnesses could be compelled to give self-incriminating testimony.11 That purpose was effectively nullified in 1892 by this Court's decision in Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, holding that R.S. § 860,12 a statute identical in all material respects with R.S. § 859, was not a sufficient substitute for the constitutional privilege of refusing to answer self-incriminating questions. Under that decision, a witness who is offered only the partial protection of a statute such as §§ 859 and 860—that his testimony may not be used against him in subsequent criminal proceedings—rather than complete immunity from prosecution for any act concerning which he testifies13 may claim his privilege and remain silent with impunity. 24 Section 860 was ultimately repealed. Its usefulness undermined by the Counselman decision, it remained on the statute books until 1910, 'a shield to the criminal and an obstruction to justice.'14 But the attention of Congress has not, apparently, been called to the anomaly presented by the continued existence of R.S. § 859, which, like § 860, was a constituent part of an immunity 'bargain' declared invalid in the Counselman case.15 The courts must, therefore, give effect to the statute. Cameron v. United States 1914, 231 U.S. 710, 720, 34 S.Ct. 244, 247, 58 L.Ed. 448. 25 Since respondent did not refuse to answer the questions put to her by members of the House Committee, her argument is not of denial of any constitutional right but solely that R.S. § 859 bars use of her testimony in her trial for wilful default.16 The history of that statute, its original purpose, and its present status are all relevant considerations in its interpretation. Despite the fact that the literal language would encompass testimony elicited by the House Committee in its questioning of respondent relative to the production of the records of the association, the Court will not reach that result if it is contrary to the congressional intent and leads to absurd conclusions. United States v. Kirby, 1869, 7 Wall. 482, 486, 19 L.Ed. 278; Glickstein v. United States, 1911, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128. And we are clearly of the opinion that the congressional purpose would be frustrated if the words, 'in any criminal proceeding,' were read to include a prosecution for wilful default under R.S. § 102. 26 That purpose was 'more effectually to enforce the Attendance of Witnesses * * * and to compel them to discover Testimony.'17 It had been the experience of Congress prior to 1857 that witnesses could not be compelled to disclose desired information, in part because of insufficient penalties for nondisclosure, and in part because of the constitutional privilege against self-incrimination. In an attempt to surmount the latter obstacle, Congress enacted what became R.S. § 859. By granting an immunity, it was the congressional intent to compel testimony which had hitherto been unavailable. 27 It is now contended that the protection of the statute, which was extended to witnesses in an effort to obtain testimony, protects equally the person who wilfully withholds testimony and is prosecuted for his wilful default. This contention completely ignores the purpose of the immunity. In the first place, it imputes to Congress the contradictory and irrational purpose of granting an immunity from prosecution for contempt in order to obtain evidence of that contempt. And in the second place, it assumes that Congress had some purpose to compel testimony of the kind here involved—statements of refusal by the witness to answer questions or produce documents—in return for which it was willing to grant an immunity. Such an assumption cannot be made. These statements have always been available to the Houses of Congress in contempt proceedings. They are uniformly printed in the reports of committees recommending contempt action18 and are relied upon by the Houses when deliberating in contempt cases.19 In short, the purpose of the statute contradicts its application to testimony of this kind. 28 Furthermore, to hold such testimony inadmissible in a prosecution for wilful default is to conclude that Congress, for no discernible reason, made proof of contempt vastly more difficult before the courts than in its own chambers, since, as we have indicated, the Houses of Congress themselves are accustomed to rely upon such testimony. There is not a hint of any such purpose in the legislative history of the statute or the decisions construing it. On the contrary, this Court has often noted that prosecution under R.S. § 102 was intended 'merely to supplement the power of contempt by providing for additional punishment.' Jurney v. MacCracken, supra, 294 U.S. at page 151, 55 S.Ct. at page 379. 29 The debates attending enactment of the statutes here in question and the decisions of this and other federal courts construing substantially identical statutes make plain the fact that Congress intended the immunity therein provided to apply only to past criminal acts concerning which the witness should be called to testify.20 30 The offense of contempt of Congress, with which we are presently concerned, on the other hand, matures only when the witness is called to appear before the committee to answer questions or produce documents and wilfully fails to do so. Until that moment he has committed no crime. There is, in our jurisprudence, no doctrine of 'anticipatory contempt.' While the witness' testimony may show that he has elected to perjure himself or commit contempt, he does not thereby admit his guilt of some past crime about which he has been summoned for questioning but commits the criminal act then and there. 31 In Glickstein v. United States, supra, this Court considered the problem thereby presented. It was there held that perjury committed in the course of testimony given pursuant to statute falls outside the purview of § 7(9) of the Bankruptcy Act, 11 U.S.C. § 25(10), 11 U.S.C.A. § 25(10), which, like R.S. § 859, provides that no testimony given by the witness (at a creditors' meeting) shall be used against him in any criminal proceedings. In the Court's view, such an immunity 'relates to the past, and does not endow the person who testifies with a license to commit perjury.' Id., 222 U.S. at page 142, 32 S.Ct. at page 73, 56 L.Ed. 128. The distinction is fully spelled out in a Circuit Court of Appeals opinion, Edelstein v. United States, 8 Cir., 1906, 149 F. 636, 9 L.R.A.,N.S., 236, which was cited with approval in the Glickstein case: 32 'To hold that the statute protects a bankrupt from the use of his evidence in a prosecution for perjury while actually testifying would defeat the obvious purposes of the act. It would, in effect, say to the bankrupt: You may forego the exercise of your constitutional privilege, and consent to testify concerning the conduct of your business, and in that way promote the efficient administration of your estate and benefit your creditors, and by so doing secure the immunity provided for; but if you give false testimony, calculated to embarrass the administration of your estate and to defeat the just rights of your creditors, and thereby commit a crime specially denounced against you, you shall enjoy the same immunity therefor. Moreover, it would, in effect, secure to the bankrupt the immunity in question for violating his part of the compact, namely, to testify—that is, to testify truthfully—by virtue of which he secured a right to the immunity. We are not willing to impute to Congress any such contradictory and absurd purpose. The words 'any criminal proceeding' cannot sensibly or reasonably be construed so literally and generally as to include the criminal proceeding provided by law for false swearing in giving his testimony. They obviously have reference to such criminal proceedings as arise out of past transactions, about which the bankrupt is called to testify.' 149 F. at pages 643—644. 33 That statement is at least equally applicable to statements made by the witness in refusing to answer questions or produce papers. Such, in fact, was the rationale and decision of the Third Circuit Court of Appeals in just such a case. See In re Kaplan Bros., 1914, 213 F. 753. And see Cameron v. United States, supra, 231 U.S. at page 719, 34 S.Ct. at page 247, 58 L.Ed. 448; McCarthy v. Arndstein, 1924, 266 U.S. 34, 42, 45 S.Ct. 16, 17, 69 L.Ed. 158. 34 The same reasons that led this Court to conclude that the clause excepting a prosecution for perjury from the reach of another immunity statute 'was added only from superfluous caution and throws no light on the construction', Heike v. United States, 1913, 227 U.S. 131, 141, 33 S.Ct. 226, 227, 57 L.Ed. 450, Ann.Cas.1914C, 128, lead us to hold that Congress did not intend the term, 'any criminal proceeding,' to encompass a prosecution of the witness for wilful default under R.S. § 102. A contrary view would simply encourage the refusal of witnesses to answer questions or produce papers, quite contrary to the purpose of the statute. 35 Respondent advances several contentions which were not passed upon by the Court of Appeals. We do not decide them at this time. The judgment of the Court of Appeals is reversed. 36 Reversed. 37 Mr. Justice FRANKFURTER agrees with this opinion except as to the portion marked Third, involving the applicability of § 3486 of Title 18 U.S.C., 18 U.S.C.A. § 3486, to the facts of this case, which requires him to dissent from the judgment of reversal. 38 Mr. Justice DOUGLAS and Mr. Justice CLARK took no part in the consideration or decision of this case. 39 Mr. Justice JACKSON, concurring. 40 With the result I am in agreement, but I do not see how this decision and that in the Christoffel case, 338 U.S. 84, 69 S.Ct. 1447, can coexist. 41 The Court is agreed that this defendant could rightly demand attendance of a quorum of the Committee and decline to testify or to produce documents so long as a quorum was not present. Therefore the real question here is whether, without making any demand, the issue may be raised for the first time long afterwards in a trial for contempt. 42 This case is the duplicate of Christoffel in this respect: in both cases defendants have sought to raise the question of no quorum for the first time in court, when they are on trial for an offense, without having raised it in any manner before the Committee while there was time to remedy it. The Court is now saying, quite properly I think, that this question must be raised at the time when it can be corrected, and proper records made, and cannot be kept as an ace up the sleeveto be produced years later at a trial. But in Christoffel, the majority took the opposite view and said, 'In a criminal case affecting the rights of one not a member, the occasion of trial is an appropriate one for petitioner to raise the question.' Supra, 338 U.S. at page 88, 69 S.Ct. at page 1450. If this statement of the law is to be left standing, I do not see how we can say that what was timely for Christoffel is too late for Bryan. It is plain we are not following the Christoffel decision and so I think we should candidly overrule it. 43 The practice of withholding all objection until time of trial is not helpful in protecting a witness' right to a valid Committee. It prevents correction of any error in that respect and profits only the witness who seeks a concealed defect to exploit. Congressional custom, whether written or not, has established that Committee Members may indulge in temporary absences, unless there is objection, without disabling those remaining from continuing work as a Committee. Members may step out to interview constituents, consult members of their staffs, confer with each other, dictate a letter, or visit a washroom, without putting an end to the Committee—but always subject to call whenever the point of no quorum is raised; that is notice that someone deems their personal presence important. This is the custom Christoffel, in effect, denied to members of Congress. A Member now steps out of a committee room at risk of nullifying the whole proceeding. 44 It is ironic that this interference with legislative procedures was promulgated by exercise within the Court of the very right of absentee participation denied to Congressmen. Examination of our journal on the day Christoffel was handed down shows only eight Justices present and that four Justices dissented in that case. The prevailing opinion does not expressly indicate the Justices who joined in it, but only four nondissenting Justices were present to do so. On the record this would show only an equally divided Court, which would affirm the judgment below. The only way the four who were present and for a reversal could have prevailed was by counting for it one shown by the record to be absent. There is not even any public record to show that in absentia he joined the decision, or approved the final opinion, or considered the matter after the dissent was circulated; nor is there any written rule or law which permitted him to do so. 45 I want to make it clear that I am not criticizing any Justice or suggesting the slightest irregularity in what was done. I have no doubt that authorization to include the absent Justice was given; and I know that to vote and be counted in absentia has been sanctioned by practice and was without objection by anyone. It is the fact that it is strictly regular and customary, according to our unwritten practice, to count as present for purposes of Court action one physically absent that makes the denial of a comparable practice in Congress so anomalous. Of course, there is this difference: The absent Congressman was only necessary to a quorum; the absent Justice was necessary to a decision. No Committee action was dependent upon the Representatives presumed to be absent in the Christoffel case. All they could have done if present was to listen. In our own case, personal judgment and affirmative action of the absent member was necessary to make the Christoffel opinion a decision of the Court. 46 The ruling of the Court today seems irreconcilable with the Court's decision in that case. True, the ink on Christoffel is hardly dry. But the principle of stare decisis, which I think should be the normal principle of judicial action, is not well served by failing to make explicit an overruling which is implicit in a later decision. Unless we really accede to its authority, it were far better to undo Christoffel before it becomes embedded in the law as a misleading influence with the profession. Of course, it is embarrassing to confess a blunder; it may prove more embarrassing to adhere to it. In view of the holding today, I think that the decision in the Christoffel case should be forthrightly and artlessly overruled. 47 Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER concurs, dissenting. 48 18 U.S.C. § 3486, 18 U.S.C.A. § 3486, provides that no testimony given by a witness before any committee of either house 'shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony.' The Court admits that use of such testimony in convicting Bryan for wilful failure to produce records violated the 'literal language' of § 3486, but declines to give effect to that language. I dissent from the Court's refusal to abide by this congressional mandate. 49 The statutory exception of 'prosecution for perjury' shows that the attention of Congress was focused on whether committee testimony should be admissible in any special type of criminal prosecution. Yet the Court now reads the statute as if Congress had forbidden the use of committee testimony 'except in a prosecution for perjury or for failure to produce records.' Such extensive judicial law-making is particularly questionable when used to restrict safeguards accorded defendants in criminal cases. Moreover, this statute springs from Congress' recognition of the constitutional privilege against compulsory self-incrimination. The Court's narrowing of the statute makes a radical departure from the principle underlying previous interpretations of other immunity legislation. 50 Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000; United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376. 51 The reasons given by the Court for its amendment of the statute have an anomalous basis: the Court feels compelled to alter the clear language of § 3486 in order not to 'subvert the congressional purpose' which it admits has already been irrevocably frustrated by the decision in Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. 52 Moreover, the statutory language is so clear and precise that dubious legislative history cannot contradict it. And no part of that history even tends to show that Congress meant to permit use of a witness' testimony to convict him of any crime other than perjury. There is a justifiable reason for the perjury exception. The crime consists of the testimony itself, without which no prosecution would be possible. Not so with default in producing papers. That crime is based not on a witness' testimony but rather on his failure to produce—conduct which can be proved by members of a committee, clerks, or spectators. There is therefore no basis for saying that application of the statute as Congress wrote it would lead to 'absurd conclusions' by encouraging the 'refusal of witnesses to answer questions or produce papers.' 53 As for other essential elements of the crime, such as power to produce, they cannot be proved by evidence extracted from a defendant under compulsion. A witness summoned to testify and produce papers is no less entitled to invoke the protection of this statute and of the Fifth Amendment's privilege against self-incrimination than is any other defendant. One who has failed to produce certainly could not be compelled to answer questions concerning his power to produce, thereby making him a 'witness against himself.' If application of the statute as Congress wrote it would lead to 'absurd conclusions,' so would the Fifth Amendment. 54 The Court finds comfort in the statement that the Committee testimony of witnesses is 'uniformly printed in the reports of committees recommending contempt action' to the houses of Congress. However extensive this practice may be, it would not justify the use of such evidence in a criminal trial. By its own terms 18 U.S.C. § 3486, 18 U.S.C.A. § 3486, is expressly limited to 'criminal proceedings in any court.'1 55 For these reasons the judgment should be reversed and the cause remanded for a new trial. 1 92 Cong.Rec. 3762, 79th Cong., 2d Sess. (1946). 2 Id., at 3773. 3 11 Stat. 155, as amended, R.S. § 102, 2 U.S.C. § 192, 2 U.S.C.A. § 192. '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.' 4 See, e.g., remarks of Representative Orr, Cong.Golbe, 34th Cong., 3d Sess. 405 (1857). 5 R.S. § 104, 2 U.S.C. § 194, 2 U.S.C.A. § 194. 6 The subpoena read as follows: 'By Authority of the House of Representatives of the Congress of the United States of America, 'To the Sergeant-at-Arms, or His Special Messenger: 'You are hereby commanded to summon the Joint Anti-Fascist Refugee Committee, 192 Lexington Avenue, New York City, a voluntary organization, to be and appear before the Un-American Activities Committee, of the House of Representatives of the United States, of which the Honorable John S. Wood is chairman, and to bring with you all books, ledgers, records, and papers relating to the receipt and disbursement of money by or on account of the Joint Anti-Fascist Refugee Committee or any subsidiary or subcommittee thereof, together with all correspondence and memoranda of communications by any means whatsoever with persons in foreign countries. The said books, papers, and records demanded herein are for the period from January 1, 1945 up to and including the date of this subpoena, in their chamber in the city of Washington, on April 4, 1946, at the hour of 10 a.m., then and there to testify touching matters of inquiry committed to said committee; and (she) is not to depart without leave of said committee. 'Herein fail not, and make return of this summons. * * *' 7 Wigmore, Evidence (3d ed.) § 2192. 8 It is, of course, clear that respondent's 'inability' to comply with the subpoena because a quorum of the Committee was not present amounts to no more than the claim that she is excused from doing so. The jury found that she had power to produce the papers. The question therefore arises as to what possible prejudice respondent might have suffered if she had turned over the records to less than a quorum of the Committee. In the case of oral testimony, a witness might well desire to appear only if a quorum was present because of a feeling that some committee members, unrestrained by presence of a majority, might exceed proper bounds of inquiry. But that consideration is obviously inapplicable to the production of papers and is irrelevant here in any event since respondent testified. 9 See also, Blackmer v. United States, 1932, 284 U.S. 421, 443, 52 S.Ct. 252, 257, 76 L.Ed. 375; Leber v. United States, 9 Cir., 1909, 170 F. 881, 888; London Guarantee & Accident Co., Ltd., v. Doyle & Doak, C.C.1905, 134 F. 125; State ex rel. Berge v. Superior Court, 1929, 154 Wash. 144, 281 P. 335. 10 See the court's opinion in United States v. Barsky, D.C.1947, 72 F.Supp. 165, affirmed Barsky v. United States, 1948, 83 U.S.App.D.C. 127, 138, 167 F.2d 241, 252. 11 R.S. § 859, as originally enacted in 1857, was a part of § 2 of a comprehensive statute, 11 Stat. 155, designed on the one hand to compel the testimony of witnesses and on the other hand to protect them from prosecution for crimes revealed by their testimony. Section 1 of the Act became R.S. § 102, 2 U.S.C. § 192, 2 U.S.C.A. § 192. As first enacted, § 2 not only prevented the use of a witness' testimony in subsequent criminal proceedings but gave him complete immunity from prosecution 'for any fact or act touching which he shall be required to testify.' 11 Stat. 156. This latter provision was deleted in 1862, 12 Stat. 333, leaving only the partial protection of § 859, which was in effect declared insufficient to require a witness to give self-incriminatory testimony in Counselman v. Hitchcock, 1892, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. 12 R.S. § 860 applied to evidence obtained from a party or witness in any 'judicial proceeding' and provided that such evidence should not be used against such person in any criminal proceeding. 13 See Brown v. Walker, 1896, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819. 14 H.R.Rep.No.266, 61st Cong., 2d Sess., which was concurred in by the Senate Committee reporting the repealer, states: 'This section (860) was enacted apparently for the purpose of enabling the Government to compel the disclosure of incriminating testimony on condition that the witness disclosing the same would be given immunity. In the case of Counselman v. Hitchcock (142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110) it was held that legislation can not abridge a constitutional privilege, and that it can not replace or supply one, at least unless it is so broad as to have the same extent in scope and effect, and that said section 860 of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for the prohibition, and that in view of the constitutional provision (article 5 of the amendments) a statutory enactment to be valid must afford absolute immunity against future prosecution for the offense to which the section relates. 'Since the decision above referred to section 860 has possessed no usefulness whatever, but has remained in the law as an impediment to the course of justice. Under it a witness can not be compelled to give any incriminating testimony whatever, but if he chooses to go on the witness stand and testify as to any matter whatever, even of his own volition, and, whether incriminatory or not, his testimony can not thereafter be brought up against him in any criminal proceedings. He can not be confronted with his own testimony or his own previous statement under oath even on cross-examination. The statute has become a shield to the criminal and an obstruction to justice.' 15 In 1938 Congress made minor amendments to the statutes in question without recognizing their inconsistency with the Counselman case. 52 Stat. 943. See S.Rep.No.2108, 75th Cong., 3d Sess. 16 United States v. Monia, 1943, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376, is, of course, inapplicable. That decision relates to the necessity of making a claim of immunity under the particular statute there involved. The opinion specifically states that the constitutional privilege, as distinguished from the statutory immunity under consideration in that case, must be claimed. Id., 317 U.S. at page 427, 63 S.Ct. at page 410. 17 See 11 Stat. 155. 18 See, e.g., S.Rep.No.254, 73d Cong., 2d Sess., the Report of a Special Committee on Investigation of Air Mail and Ocean Mail Contracts, setting out in great detail the testimony of William P. MacCracken, Jr., et al., 'in order that the Senate may determine whether or not any action shall be taken by the Senate with a view to proceeding against the said William P. MacCracken, Jr. * * * in the nature of a proceeding for contempt or otherwise. * * *' See Jurney v. MacCracken, 1935, 294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802. 19 The incident giving rise to enactment of the statute illustrates the point. A corespondent of the New York Times, having made charges of corruption on the part of members of the House of Representatives in connection with pending legislation, was called before a select committee of the House and asked to name the Representatives involved. He declined to do so for the reason that the information had been given to him in confidence. The committee's questions and the witness' answers are set out at length in the Congressional Globe, 34th Cong., 3d Sess., pp. 403 404, as a part of the committee's report and resulted in his being called to the bar of the House 'to answer as for a contempt of the authority of this House,' and in his subsequent commitment. These proceedings were carried on in conjunction with consideration of the statute in the House. The contention now made would impute to Congress an intent to deprive the courts of the very information upon which the House had acted in the case giving rise to the statute. 20 Representative Orr: 'The bill provides that no persons called before that committee to testify before them shall be subjected to criminal prosecution for any offense they may have committed, and for which their testimony would furnish the basis of an indictment.' Cong.Globe, 34th Cong., 3d Sess. 406. Representative Washburn: 'The second section of the bill declares that no person summoned as a witness shall be excused from answering a question for the reason that his answer would criminate himself; and provides that he shall be exempt from punishment for any offense which he may testify that he has committed, and that on trial for such offense in any court in the country such evidence shall not be used against him.' Id. at 428. Senator Seward: 'The second section of the bill provides that such person shall have the benefit of being exempt from prosecution as to the matter concerning which he is called to testify.' Id. at 444. (Emphasis supplied throughout.) It may be pointed out that since the statute, as originally enacted, had the effect of granting total immunity from prosecution for any fact or act touching which the witness testified, adoption of respondent's contention would mean that Congress originally intended to immunize the witness who states before the committee that he will not answer questions or produce papers from any prosecution for his default. 1 This distinction between criminal trials and contempt proceedings at the bar of Congress is eminently reasonable in view of the practical differences between the two. See dissenting opinion in United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739. For a discussion of congressional contempt procedures, see Eberling, Congressional Investigations 179 and passim (Columbia University Press, 1928).

01

339 U.S. 454 70 S.Ct. 781 94 L.Ed. 978 INTERNATIONAL UNION OF UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C.I.O., et al.v.O'BRIEN, Wayne County Prosecuting Attorney, et al. No. 456. Argued March 30, 1950. Decided May 8, 1950. Mr. Joseph L. Rauh, Jr., Washington, D.C., for appellants. Mr. David P. Findling, Washington, D.C., for N.L.R.B. amicus curiae by special leave of Court. Mr. Edmund E. Shepherd, Lansing, Mich., for appellees. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 The constitutionality of the strike vote provision of the Michigan labor mediation law1 is before us in this case. Appellants struck against Chrysler Corporation in May, 1948, without conforming to the prescribed state procedure. The strike was called to enforce demands for higher wages, and it was conducted peacefully. To enjoin possible criminal prosecution,2 appellants instituted this suit in the state courts, contending that the statute violated the Due Process and Commerce Clauses of the Federal Constitution, Amend. 14; art. 1, § 8, cl. 3. The trial court upheld their contentions but the Michigan Supreme Court reversed. 1949, 325 Mich. 250, 38 N.W.2d 421. We find no need to discuss the due process point, inasmuch as we hold that the court below erred in its decision on the commerce power. 2 Congress has not been silent on the subject of strikes in interstate commerce. In the National Labor Relations Act of 1935, 49 Stat. 449, 29 U.S.C. § 151, 29 U.S.C.A. § 151 et seq., as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C.(Supp. III) § 141, 29 U.S.C.A. § 141, et seq., Congress safeguarded the exercise by employees of 'concerted activities' and expressly recognized the right to strike.3 It qualified and regulated that right in the 1947 Act. It established certain prerequisites, with which appellants complied, for any strike over contract termination or modification. § 8(d), 29 U.S.C.A. § 158(d). These include notices to both state and federal4 mediation authorities; both did participate in the negotiations in this case. In provisions which did not affect appellants, Congress forbade strikes for certain objectives and detailed procedures for strikes which might create a national emergency. §§ 8(b)(4), 206—210, 29 U.S.C.A. §§ 158(b)(4), 176—180. None of these sections can be read as permitting concurrent state regulation of peaceful strikes for higher wages. Congress occupied this field and closed it to state regulation. Plankinton Packing Co. v. Wisconsin Board, 1950, 338 U.S. 953, 70 S.Ct. 491; LaCrosse Telephone Corp. v. Wisconsin Board, 1949, 336 U.S. 18, 69 S.Ct. 379; Bethlehem Steel Co. v. New York Labor Board, 1947, 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234; Hill v. State of Florida ex rel. Watson, 1945, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782. 3 Even if some state legislation in this area could be sustained, the particular statute before us could not stand. For it conflicts with the federal Act. The Michigan law calls for a notice given 'In the event the parties * * * are unable to settle any dispute' to be followed by mediation, and if that is unsuccessful, by a strike vote within twenty days, with a majority required to authorize a strike. Under the federal legislation, the prescribed strike notice can be given sixty days before the contract termination or modification. § 8(d). The federal Act thus permits strikes at a different and usually earlier time than the Michigan law; and it does not require majority authorization for any strike. This requirement of approval by a majority of the employees was contained in the Bill which passed the House of Representatives;5 but the Act as finally adopted deliberately refrains from imposing the prerequisite of majority approval in each of its references to strike votes. §§ 203(c), 209(b)—210, 29 U.S.C.A. §§ 173(c), 179(b)—180. 4 Finally, the bargaining unit established in accordance with federal law may be inconsistent with that required by state regulation. Though the unit for the Michigan strike vote cannot extend beyond the State's borders, the unit for which appellant union is the federally certified bargaining representative includes Chrysler plants in California and Indiana as well as Michigan. Chrysler Corp., 42 N.L.R.B. 1145 (1942). Without question, the Michigan provision conflicts with the exercise of federally protected labor rights. A state statute so at war with federal law cannot survive. Plankinton Packing Co. v. Wisconsin Board, 1950, 338 U.S. 953, 70 S.Ct. 491; LaCrosse Telephone Corp. v. Wisconsin Board, 1949, 336 U.S. 18, 69 S.Ct. 379; Bethlehem Steel Co. v. New York Labor Board, 1947, 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234; Hill v. State of Florida ex rel. Watson, 1945, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782. 5 International Union, U.A.W., A.F. of L. Local 232 v. Wisconsin Board, 1949, 336 U.S. 245, 69 S.Ct. 516, upon which Michigan principally relies, was not concerned with a traditional, peaceful strike for higher wages. The employees' conduct there was 'a new technique for bringing pressure upon the employer', a 'recurrent or intermittent unannounced stoppage of work to win unstated ends.' 336 U.S. at pages 249, 264, 69 S.Ct. at pages 519, 527. That activity we regarded as 'coercive,' similar to the sit-down strike held to fall outside the protection of the federal Act in National Labor Relations Board v. Fansteel Metallurgical Corp., 1939, 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599, and to the labor violence held to be subject to state police control in Allen-Bradley Local No. 1111 v. Wisconsin Board, 1942, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154. In the Wisconsin Auto Workers case, we concluded that the union tactic was 'neither forbidden by Federal statute nor was it legalized and approved thereby.' 336 U.S. at page 265, 69 S.Ct. at page 527. 'There is no existing or possible conflict or overlapping between the authority of the federal and state Boards, because the federal Board has no authority either to investigate, approve or forbid the union conduct in question. This conduct is governable by the state or it is entirely ungoverned.' 336 U.S. at page 254, 69 S.Ct. at page 521. Clearly, we reaffirmed the principle that if 'Congress has protected the union conduct which the state has forbidden * * * the state legislation must yield.' 336 U.S. at page 252, 69 S.Ct. at page 520. That principle is controlling here. 6 Reversed. 7 Mr. Justice DOUGLAS concurs in the result. 1 Mich.Stat.Ann. (Cum.Supp.1949) §§ 17.454(1) et seq.; Mich. Comp.Laws 1948, § 423.1 et seq. At the time of appellants' strike, the pertinent provisions of the law read as follows: 'Sec. 9. No strike or lockout shall take place or be put into effect until and unless each of the steps have been taken and the requirements complied with as provided in this act. '1. In the event the parties thereto are unable to settle any dispute, the employees or their representative, in the case of impending strike, or the employer or his agent, in the case of an impending lockout, shall serve notice upon the board of such dispute together with a statement of the issues involved. * * * not less han 10 days before the strike or lockout is to become effective, or in case of an industry affected with a public interest or a public utility or hospital, said notice shall be so served not less than 30 days before the strike or lockout is to become effective. '2. Upon receipt of such notice it shall be the duty of the board to exercise the powers herein granted to effect a settlement of such dispute by mediation between the parties. Prior to the calling of an election as provided hereinafter, it shall be the duty of each of the parties to such dispute to actively and in good faith participate in the mediation thereof. * * * 'Sec. 9a. In the event that it becomes apparent to the board that there is no reasonable probability of settlement of such dispute by mediation and that further efforts to that end would be without avail, there shall be held in the case of any impending strike, an election upon such issue which election shall be conducted and supervised by the board. In the event either party to said dispute notifies the board in writing * * * that in the opinion of such party, further efforts to settle such dispute by mediation would be without avail, it shall be the duty of the board to cause an election to be held within 10 days of the receipt of such notice unless it is not practical to hold such election within said period, in which event said election shall be held within 20 days of receipt of such notice. * * * Every employee in the bargaining unit shall be entitled to vote in such election and in order to authorize a strike under the provisions of this act, a majority of all employees in such bargaining unit must vote in favor of such action.' 'In 1949, the last requirement was amended to read, 'a majority of all employees casting valid ballots must vote in favor of such action.' This change is not material to our decision. 2 The court below held that appellants' acts 'rendered (them) subject to threatened criminal prosecuion * * *.' 325 Mich. at page 254, 38 N.W.2d at page 422. See § 22. We are of course bound by this interpretation of the state law. 3 See §§ 7, 2(3), 13 of both Acts, 29 U.S.C.A. § 152(3), 157, 163; H.R.Rep.No. 510, 80th Cong., 1st Sess. 59 (1947); S.Rep.No.105, 80th Cong., 1st Sess. 28 (1947); statement of Senator Taft, 93 Cong.Rec. 3835 (1947), which includes the following: 'That means that we recognize freedom to strike when the question involved is the improvement of wages, hours, and working conditions, when a contract has expired and neither side is bound by a contract. * * * We have considered the question whether the right to strike can be modified. I think it can be modified in cases which do not involve the basic question of wages, prices, and working conditions. * * * So far as the bill is concerned, we have proceeded on the theory that there is a right to strike and that labor peace must be based on free collective bargaining. We have done nothing to outlaw strikes for basic wages Hours, and working conditions after proper opportunity for mediation.' 4 Congress created a new federal agency, the Federal Mediation and Conciliation Service, to assist in the peaceful settlement of disputes. §§ 202—204, 29 U.S.C.A. §§ 172—174. 5 H.R. 3020, 80th Cong., 1st Sess. § 2(11)(B)(vi)(h) (1947). The legislative history demonstrates that this proposal was rejected on the merits, and not because of any desire to leave the states free to adopt it. See, e.g., H.R.Rep.No. 510, 80th Cong., 1st Sess. 34—35 (1947); testimony of Governor Stassen, Hearings before Senate Committee on Labor and Public Welfare on S. 55 and S.J. Res. 22, 80th Cong., 1st Sess. 562—65, 572—78, 586—89 (1947).

910

339 U.S. 470 70 S.Ct. 773 94 L.Ed. 995 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS UNION, LOCAL 309, et al.v.HANKE et al. AUTOMOBILE DRIVERS & DEMONSTRATORS LOCAL UNION NO. 882 et al. v. CLINE. Nos. 309, 364. Argued Feb. 9—10, 1950. Decided May 8, 1950. Rehearing Denied June 5, 1950. See 339 U.S. 991, 70 S.Ct. 1018. Mr. Samuel B. Bassett, Seattle, Wash., for petitioners. Mr. J. Will Jones, Seattle, Wash., for respondents A. E. Hanke and others. Mr. C. M. McCune, Seattle, Wash., for respondent George E. Cline. Mr. Justice FRANKFURTER announced the judgment of the Court and an opinion in which The CHIEF JUSTICE, Mr. Justice JACKSON and Mr. Justice BURTON concurred. 1 These two cases raise the same issues and are therefore disposed of in a single opinion. The question is this: Does the Fourteenth Amendment of the Constitution bar a State from use of the injunction to prohibit the picketing of a business conducted by the owner himself without employees in order to secure compliance by him with a demand to become a union shop? 2 In No. 309, respondents A. E. Hanke and his three sons, as copartners, engaged in the business of repairing automobiles, dispensing gasoline and automobile accessories, and selling used automobiles in Seattle. They conducted their entire enterprise themselves, without any employees. At the time the senior Hanke purchased the business in June, 1946, which had theretofore been conducted as a union shop, he became a member of Local 309 of the International Brotherhood of Teamsters, which includes in its membership persons employed and engaged in the gasoline service station business in Seattle. Accordingly, the Hankes continued to display in their show window the union shop card of their predecessor. Local 309 also included the Hankes' business in the list of firms for which it urged patronage in advertisements published in the Washington organ of the International Brotherhood of Teamsters, distributed weekly to members. As a result of the use of the union shop card and these advertisements, the Hankes received union patronage which they otherwise would not have had. 3 Automobile Drivers and Demonstrators Local 882, closely affiliated with Local 309 and also chartered by the International Brotherhood of Teamsters, includes in its membership persons engaged in the business of selling used cars and used car salesmen in Seattle. This union negotiated an agreement in 1946 with the Independent Automobile Dealers Association of Seattle, to which the Hankes did not belong, providing that used car lots be closed by 6 p.m. on weekdays and all day on Saturdays, Sundays and eight specified holidays. This agreement was intended to be applicable to 115 used car dealers in Seattle, all except ten of which were self-employers with no employees. 4 It was the practice of the Hankes to remain open nights, weekends and holidays. In January, 1948, representatives of both Locals called upon the Hankes to urge them to respect the limitation on business hours in the agreement or give up their union shop card. The Hankes refused to consent to abide by the agreement, claiming that it would be impossible to continue in business and do so, and surrendered the union shop card. The name of the Hankes' business was thereafter omitted from the list published by Local 309 in its advertisements. 5 Soon afterwards the Local sent a single picket to patrol up and down peacefully in front of the Hankes' business between the hours of 8:30 a.m. and 5 p.m., carrying a 'sandwich sign' with the words 'Union People Look for the Union Shop Card' and a facsimile of the shop card. The picket also wrote down the automobile license numbers of the Hankes' patrons. As a result of the picketing, the Hankes' business fell off heavily and drivers for supply houses refused to deliver parts and other needed materials. The Hankes had to use their own truck to call for the materials necessary to carry on their business. 6 To restrain this conduct, the Hankes brought suit against Local 309 and its officers. The trial court granted a permanent injunction against the picketing and awarded the Hankes a judgment of $250, the sum stipulated by the parties to be the amount of damage occasioned by the picketing. The Supreme Court of Washington affirmed. 33 Wash.2d 646, 207 P.2d 206. 7 The background in No. 364 is similar. George E. Cline engaged in the used car business in Seattle, performing himself the services of his business here relevant. He was induced by the threat of picketing to join Automobile Drivers Local 882 in 1946, and in that year he also became a member of the Independent Automobile Dealers Association of Seattle which negotiated with Local 882 the agreement as to business hours to which reference has been made. 8 In August, 1947, Cline advised Local 882 that he did not intend to continue membership in the union and that he was no longer a member of the Independent Automobile Dealers Association. He announced that he did not consider himself bound by the agreement as to business hours and that he intended to operate on Saturdays. When Cline proceeded to do so Local 882 began to picket his business. 9 The picketing was conducted peacefully, normally by two pickets who patrolled up and down carrying 'sandwich signs' stating that Cline was unfair to the union. The pickets took down the automobile license numbers of Cline's patrons, and when inquiry was made by patrons as to why they were doing so, their reply was: 'You'll find out.' Because of interference by the pickets with the use of one of Cline's driveways, he was forced to close it to avoid the possibility of one of the pickets being run over. As a result of the picketing, Cline's business fell off and, as in No. 309, drivers for supply houses refused to deliver parts and other needed materials. Cline had to use his own vehicle to call for supplies necessary to carry on the business. 10 Local 882 reached a new agreement with the Independent Automobile Dealers Association in April, 1948. As a condition to removal of the picket line, the union demanded that Cline agree to keep his business closed after 1 p.m. on Saturdays and to hire a member of the union as a salesman to be compensated at the rate of seven percent of the gross sales regardless of whether they were made by Cline or this employee. Suit by Cline to restrain patrolling of his business resulted in a permanent injunction against the union and its officers—Cline waived his claim for damages—and the Supreme Court of Washington, relying on its decision in the Hanke case, affirmed. 33 Wash.2d 665, 207 P.2d 216. 11 On both these cases we granted certiorari to consider claims of infringement of the right of freedom of speech as guaranteed by the Due Process Clause of the Fourteenth Amendment. 338 U.S. 903, 70 S.Ct. 305. 12 Here, as in Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, we must start with the fact that while picketing has an ingredient of communication it cannot dogmatically be equated with the constitutionally protected freedom of speech. Our decisions reflect recognition that picketing is 'indeed a hybrid.' Freund, On Understanding the Supreme Court 18 (1949). See also Jaffe, In Defense of the Supreme Court's Picketing Doctrine, 41 Mich.L.Rev. 1037 (1943). The effort in the cases has been to strike a balance between the constitutional protection of the element of communication in picketing and 'the power of the State to set the limits of permissible contest open to industrial combatants.' Thornhill v. State of Alabama, 310 U.S. 88, 104, 60 S.Ct. 736, 745, 84 L.Ed. 1093.1 A State's judgment on striking such a balance is of course subject to the limitations of the Fourteenth Amendment. Embracing as such a judgment does, however, a State's social and economic policies, which in turn depend on knowledge and appraisal of local social and economic factors, such judgment on these matters comes to this Court bearing a weighty title of respect. 13 These two cases emphasize the nature of a problem that is presented by our duty of sitting in judgment on a State's judgment in striking the balance that has to be struck when a State decides not to keep hands off these industrial contests. Here we have a glaring instance of the interplay of competing social-economic interests and viewpoints. Unions obviously are concerned not to have union standards undermined by non-union shops. This interest penetrates into self-employer shops. On the other hand, some of our profoundest thinkers from Jefferson to Brandeis have stressed the importance to a democratic society of encouraging self-employer economic units as a counter-movement to what are deemed to be the dangers inherent in excessive concentration of economic power. 'There is a widespread belief * * * that the true prosperity of our past came not from big business, but through the courage, the energy, and the resourcefulness of small men * * * and that only through participation by the many in the responsibilities and determinations of business can Americans secure the moral and intellectual development which is essential to the maintenance of liberty.' Mr. Justice Brandeis, dissenting in Liggett Co. v. Lee, 288 U.S. 517, 541, 580, 53 S.Ct. 481, 502, 77 L.Ed. 929, 85 A.L.R. 699. 14 Whether to prefer to union or a self-employer in such a situation or to seek partial recognition of both interests, and, if so, by what means to secure such accommodation, obviously presents to a State serious problems. There are no sure answers, and the best available solution is likely to be experimental and tentative, and always subject to the control of the popular will. That the solution of these perplexities is a challenge to wisdom and not a command of the Constitution is the significance of Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229. Senn, a self-employed tile layer who occasionally hired other tile layers to assist him, was picketed when he refused to yield to the union demand that he no longer work himself at his trade. The Wisconsin court found the situation to be within the State's anti-injunction statute and denied relief. In rejecting the claim that the restriction upon Senn's freedom was a denial of his liberty under the Fourteenth Amendment, this Court held that it lay in the domain of policy for Wisconsin to permit the picketing: 'Whether it was wise for the state to permit the unions to do so is a question of its public policy—not our concern.' 301 U.S. at page 481, 57 S.Ct. at page 863. 15 This conclusion was based on the Court's recognition that it was Wisconsin, not the Fourteenth Amendment, which put such picketing as a 'means of publicity on a par with advertisements in the press.'2 301 U.S. at page 479, 57 S.Ct. at page 862. If Wisconsin could permit such picketing as a matter of policy it must have been equally free as a matter of policy to choose not to permit it and therefore not to 'put this means of publicity on a par with advertisements in the press.' If Wisconsin could have deemed it wise to withdraw from the union the permission which this Court found outside the ban of the Fourteenth Amendment, such action by Washington cannot be inside that ban.3 16 Washington here concluded that, even though the relief afforded the Hankes and Cline entailed restriction upon communication that the unions sought to convey through picketing, it was more important to safeguard the value which the State placed upon self-employers, leaving all other channels of communication open to the union. The relatively small interest of the unions considerably influenced the balance that was struck. Of 115 used car dealers in Seattle maintaining union standards all but ten were self-employers with no employees. 'From this fact,' so we are informed by the Supreme Court of Washington, 'the conclusion seems irresistable that the union's interest in the welfare of a mere handful of members (of whose working conditions no complaint at all is made) is far outweighed by the interests of individual proprietors and the people of the community as a whole, to the end that little businessmen and property owners shall be free from dictation as to business policy by an outside group having but a relatively small and indirect interest in such policy.' 33 Wash.2d 659, 207 P.2d at page 213. 17 We are, needless to say, fully aware of the contentious nature of these views. It is not our business even remotely to hint at agreement or disagreement with what has commended itself to the State of Washington, or even to intimate that all the relevant considerations are exposed in the conclusions reached by the Washington court. They seldom are in this field, so deceptive and opaque are the elements of these problems. That is precisely what is meant by recognizing that they are within the domain of a State's public policy. Because there is lack of agreement as to the relevant factors and divergent interpretations of their meaning, as well as differences in assessing what is the short and what is the long view, the clash of fact and opinion should be resolved by the democratic process and not by the judicial sword. Invalidation here would mean denial of power to the Congress as well as to the forty-eight States. 18 It is not for us to pass judgment on cases not now before us. But when one considers that issues not unlike those that are here have been similarly viewed by other States4 and by the Congress of the United States,5 we cannot conclude that Washington, in holding the picketing in these cases to be for an unlawful object, has struck a balance so inconsistent with rooted traditions of a free people that it must be found an unconstitutional choice. Mindful as we are that a phase of picketing is communication, we cannot find that Washington has offended the Constitution. 19 We need not repeat the considerations to which we adverted in Hughes v. Superior Court that make it immaterial, in respect to the constitutional issue before us, that the policy of Washington was expressed by its Supreme Court rather than by its legislature. The Fourteenth Amendment leaves the States free to distribute the powers of government as they will between their legislative and judicial branches. Dreyer v. People of State of Illinois, 187 U.S. 71, 83—84, 23 S.Ct. 28, 32, 47 L.Ed. 79; Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 225, 29 S.Ct. 67, 69, 53 L.Ed. 150. '(R)ights under that amendment turn on the power of the state, no matter by what organ it acts.' State of Missouri v. Dockery, 191 U.S. 165, 170-171, 24 S.Ct. 53, 54, 48 L.Ed. 133, 63 L.R.A. 571. 20 Nor does the Fourteenth Amendment require prohibition by Washington also of voluntary acquiescence in the demands of the union in order that it may choose to prohibit the right to secure submission through picketing. In abstaining from interference with such voluntary agreements a State may rely on self-interest. In any event, it is not for this Court to question a State's judgment in regulating only where an evil seems to it most conspicuous. 21 What was actually decided in American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Bakery & Pastry Drivers & Helpers Local 802 v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178, and Cafeteria Employees Union, Local 302, v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58, does not preclude us from upholding Washington's power to make the choice of policy she has here made. In those cases we held only that a State could not proscribe picketing merely by setting artifical bounds, unreal in the light of modern circumstances to what constitutes an industrial relationship or a labor dispute.6 See Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv.L.Rev. 1, 30 (1947). The power of a State to declare a policy in favor of self-employers and to make conduct restrictive of self-employment unlawful was not considered in those cases. Indeed in Wohl this Court expressly noted that the State courts had not found that the picketing there condemned was for a defined unlawful object. 315 U.S. 774, 62 S.Ct. 818, 86 L.Ed. 1178. 22 When an injunction of a State court comes before us it comes not as an independent collocation of words. It is defined and confined by the opinion of the State court. The injunctions in these two cases are to be judged here with all the limitations that are infused into their terms by the opinions of the Washington Supreme Court on the basis of which the judgments below come before us. So read, the injunctions are directed solely against picketing for the ends defined by the parties before the Washington court and this Court. To treat the injunctions otherwise—to treat them, that is, outside the scope of the issues which they represent—is to deal with a case that is not here and was not before the Washington court. In considering an injunction against picketing recently, we had occasion to reject a similar claim of infirmity derived not from the record but from unreality. What we then said is pertinent now: 'What is before us * * * is not the order as an isolated, self-contained writing but the order with the gloss of the Supreme Court of Wisconsin upon it.' Hotel & Restaurant Employees' International Alliance, Local No. 122, v. Wisconsin E.R.B., 315 U.S. 437, 441, 62 S.Ct. 706, 708, 86 L.Ed. 946. Our affirmance of these injunctions is in conformity with the reading derived from the Washington court's opinions. If astuteness may discover argumentative excess in the scope of the injunctions 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 cases on remand reach the Washington court. 23 Affirmed. 24 Mr. Justice CLARK concurs in the result. 25 Mr. Justice BLACK dissents for substantially the reasons given in his dissent in Carpenters & Joiners Union of America, Local No. 213, v. Ritter's Cafe, 315 U.S. 722, 729—732, 62 S.Ct. 807, 810—812, 86 L.Ed. 1143. 26 Mr. Justice DOUGLAS took no part in the consideration or decision of these cases. 27 Mr. Justice MINTON, with whom Mr. Justice REED joins, dissenting. 28 Petitioners in each of these cases were 'permanently restrained and enjoined from in any manner picketing' the places of business of respondents. The picketing here was peaceful publicity, not enmeshed in a pattern of violence as was true in Milk Wagon Drivers Union of Chicago, Local 753, v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, 132 A.L.R. 1200; nor was there violence in the picketing, as in Hotel & Restaurant Employees' International Alliance, Local No. 122, v. Wisconsin E.R.B., 315 U.S. 437, 62 S.Ct. 706, 86 L.Ed. 946. The decrees entered in the instant cases were not tailored to meet the evils of threats and intimidation as Cafeteria Employees Union, Local 302, v. Angelos, 320 U.S. 293, 295, 64 S.Ct. 126, 88 L.Ed. 58, indicates they might have been; nor were they limited to restraint of picketing for the purpose of forcing the person picketed to violate the law and public policy of the state, as were the decrees in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, and Building Service Employees Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784. The abuses of picketing involved in the above cases were held by this Court not to be protected by the Fourteenth Amendment from state restraint. 29 It seems equally clear to me that peaceful picketing which is used properly as an instrument of publicity has been held by this Court in Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Bakery & Pastry Drivers & Helpers Local 802 v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178; and Cafeteria Employees Union, Local 302, v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58, to be protected by the Fourteenth Amendment. I do not understand that in the last three mentioned cases this Court, as the majority in its opinion says, 'held only that a State could not proscribe picketing merely by setting artificial bounds, unreal in the light of modern circumstances, to what constitutes an industrial relationship or a labor dispute.' If the states may set bounds, it is not for this Court to say where they shall be set, unless the setting violates some provision of the Federal Constitution. I understand the above cases to have found violations of the federal constitutional guarantee of freedom of speech, and the picketing could not be restrained because to do so would violate the right of free speech and publicity. This view is plainly stated by this Court in Cafeteria Employees Union, Local 302, v. Angelos, 320 U.S. at page 295, 64 S.Ct. at page 127: 'In Senn v. Tile Layers Protective Union, Local No. 5, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229, this Court ruled that members of a union might, 'without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.' 301 U.S. at page 478, 57 S.Ct. at page 862, 81 L.Ed. 1229. Later cases applied the Senn doctrine by enforcing the right of workers to state their case and to appeal for public support in an orderly and peaceful manner regardless of the area of immunity as defined by state policy. A.F. of L. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Bakery and Pastry Drivers and Helpers Local 802 v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178.' 30 All the recent cases of this Court upholding picketing, from Thornhill to Angelos, have done so on the view that 'peaceful picketing and truthful publicity' (see 320 U.S. at page 295, 64 S.Ct. at page 127, 88 L.Ed. 58) is protected by the guaranty of free speech. This view stems from Mr. Justice Brandeis' statement in Senn that 'Members of a union might, without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.' 301 U.S. 468, 478, 57 S.Ct. 857, 862, 81 L.Ed. 1229. In that case Justice Brandeis was dealing with action of Wisconsin that permitted picketing by a labor union of a one-man shop. Of course, as long as Wisconsin allowed picketing, there was no interference with freedom of expression. By permitting picketing the State was allowing the expression found in 'peaceful picketing and truthful publicity.' There was in that posture of the case no question of conflict with the right of free speech. But because Wisconsin could permit picketing, and not thereby encroach upon freedom of speech, it does not follow that it could forbid like picketing; for that might involve conflict with the Fourteenth Amendment. It seems to me that Justice Brandeis, foreseeing the problem of the converse, made the statement above quoted in order to indicate that picketing could be protected by the free speech guaranty of the Federal Constitution. Whether or not that is what Justice Brandeis meant, I think this Court has accepted that view, from Thornhill to Angelos. It seems to me too late now to deny that those cases were rooted in the free speech doctrine. I think we should not decide the instant cases in a manner so alien to the basis of prior decisions. 31 The outlawing of picketing for all purposes is permitted the State of Washington by the upholding of these broad decrees. No distinction is made between what is legitimate picketing and what is abusive picketing. '(H)ere we have no attempt by the state through its courts to restrict conduct justifiably found to be an abusive exercise of the right to picket.' Angelos case, 320 U.S. at page 295, 64 S.Ct. at page 127, 88 L.Ed. 58. 32 Because the decrees here are not directed at any abuse of picketing but at all picketing, I think to sustain them is contrary to our prior holdings, founded as they are in the doctrine that 'peaceful picketing and truthful publicity' is protected by the constitutional guaranty of the right of free speech. I recognize that picketing is more than speech. That is why I think an abuse of picketing may lead to a forfeiture of the protection of free speech. Tested by the philosophy of prior decisions, no such forfeiture is justified here. 33 I would reverse the judgments in these two cases. 1 It is relevant to note that the Alabama statute held unconstitutional in the Thornhill case had been construed by the State courts to prohibit picketing without '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.' 310 U.S. at page 99, 60 S.Ct. at page 743. 2 The Court said: 'In declaring such picketing permissible, Wisconsin has put this means of publicity on a par with advertisements in the press.' 301 U.S. at page 479, 57 S.Ct. at page 862. To assume that this sentence is to be read as though the picketing was permitted by Wisconsin not as a matter of choice but because the Fourteenth Amendment compelled its allowance is to assume that so careful a writer as Mr. Justice Brandeis, the author of the Court's opinion, meant the above sentence to be read as though it contained the bracketed insertion as follows: 'In declaring such picketing permissible, Wisconsin (recognized that the Fourteenth Amendment) has put this means of publicity on a par with advertisements in the press.' In other words, it is suggested that the bracketed interpolation which Justice Brandeis did not write is to be read into what he did write although thereby its essential meaning would be altered. 3 Of course, the true significance of particular phrases in Senn appears only when they are examined in their context: 'Clearly the means which the statute authorizes—picketing and publicity—are not prohibited by the Fourteenth Amendment. Members of a union might, without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution. The state may, in the exercise of its police power, regulate the methods and means of publicity as well as the use of public streets.' 301 U.S. at page 478, 57 S.Ct. at page 862. 4 See, e.g., Bautista v. Jones, 25 Cal.2d 746, 155 P.2d 343; Dinoffria v. International Brotherhood of Teamsters and Chauffeurs, 331 Ill.App. 129, 72 N.E.2d 635; Saveall v. Demers, 322 Mass. 70, 76 N.E.2d 12, 2 A.L.R.2d 1190. 5 Section 8(b)(4)(A) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, makes it an unfair labor practice for a union 'to engage in * * * a strike * * * where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization.' 61 Stat. 141, 29 U.S.C. (Supp. III) § 158(b)(4)(A), 29 U.S.C.A. § 158(b)(4)(A). See also § 10(l) of the National Labor Relations Act, as amended, and § 303 of the Labor Management Relations Act, 29 U.S.C.A., §§ 160(l), 187. 6 As to the Court's duty to restrict general expressions in opinions in earlier cases to their specific context, see Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 399—400, 5 L.Ed. 257; Armour & Co. v. Wantock, 323 U.S. 126, 132—133, 65 S.Ct. 165, 168, 89 L.Ed. 118.

23

339 U.S. 382 70 S.Ct. 674 94 L.Ed. 925 AMERICAN COMMUNICATIONS ASS'N, C.I.O., et al.v.DOUDS. UNITED STEEL WORKERS OF AMERICA et al. v. NATIONAL LABOR RELATIONS BOARD. Nos. 10, 13. Argued Oct. 10, 11, 1949. Decided may 8, 1950. Rehearing Denied June 5, 1950. See 339 U.S. 990, 70 S.Ct. 1017. [Syllabus from pages 382-384 intentionally omitted] Mr. Victor Rabinowitz, New York City, for appellant American Communications Ass'n. Mr. Thomas E. Harris, Washington, D.C., for petitioners United Steelworkers. Mr. Philip B. Perlman, Sol. Gen., Washington, D.C., for appellee National Labor Relations Board. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 These cases present for decision the constitutionality of § 9(h) of the Labor Management Relations Act of 1947.1 This section, commonly referred to as the non-Communist affidavit provision, reads as follows: 'No investigation shall be made by the (National Labor Relations) Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, no petition under section 9(e)(1) shall be entertained, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 10, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelvemonth period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit 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. The provisions of section 35 A of the Criminal Code shall be applicable in respect to such affidavits.' 2 In No. 10, the constitutional issue was raised by a suit to restrain the Board from holding a representation election in a bargaining unit in which appellant union was the employee representative, without permitting its name to appear on the ballot, and, should the election be held, to restrain the Board from announcing the results or certifying the victor, until a hearing was granted to appellant. A hearing had been denied because of the noncompliance with s 9(h). The complaint alleged that this requirement was unconstitutional. Appellee's motion to dismiss the complaint was granted by the statutory three-judge court, Wholesale and Warehouse Workers Union, Local 65 v. Douds, D.C. 1948, 79 F.Supp. 563, with one judge dissenting. Since the constitutional issues were properly raised and substantial, we noted probable jurisdiction. 3 No. 13 is the outcome of an unfair labor practice complaint filed with the Board by petitioner unions. The Board found that Inland Steel Company had violated the Labor Relations Act in refusing to bargain on the subject of pensions. 77 N.L.R.B. 1 (1948). But the Board postponed the effective date of its order compelling the company to bargain, pending the unions' compliance with § 9(h). Both sides appealed: the company urged that the Act had been misinterpreted; the unions contended that § 9(h) was unconstitutional and therefore an invalid condition of a Board order. When the court below upheld the Board on both counts, Inland Steel Co. v. N.L.R.B., 7 Cir., 1948, 170 F.2d 247, with one judge dissenting as to § 9(h), both sides filed petitions for certiorari. We denied the petition pertaining to the pension issue, 1949, 336 U.S. 960, 69 S.Ct. 887, but granted the petition directed at the affidavit requirement, 1949, 335 U.S. 910, 69 S.Ct. 480, because of the manifest importance of the constitutional issues involved. I. 4 The constitutional justification for the National Labor Relations Act was the power of Congress to protect interstate commerce by removing obstructions to the free flow of commerce. National Labor Relations Board v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. That Act was designed to remove obstructions caused by strikes and other forms of industrial unrest, which Congress found were attributable to the inequality of bargaining power between unorganized employees and their employers. It did so by strengthening employee groups, by restraining certain employer practices, and by encouraging the processes of collective bargaining. 5 When the Labor-Management Relations Act was passed twelve years later, it was the view of Congress that additional impediments to the free flow of commerce made amendment of the original Act desirable. It was stated in the findings and declaration of policy that: 6 'Experience has further demonstrated that certain practices by some labor organizations, their officers, and members have the intent or the necessary effect of burdening or obstructing commerce by preventing the free flow a goods in such commerce through strikes and other forms of industrial unrest or through concerted activities which impair the interest of the public in the free flow of such commerce. The elimination of such practices is a necessary condition to the assurance of the rights herein guaranteed.'2 7 One such obstruction, which it was the purpose of § 9(h) of the Act to remove, was the so-called 'political strike.' Substantial amounts of evidence were presented to various committees of Congress, including the committees immediately concerned with labor legislation, that Communist leaders of labor unions had in the past and would continue in the future to subordinate legitimate trade union objectives to obstructive strikes when dictated by Party leaders, often in support of the policies of a foreign government. And other evidence supports the view that some union leaders who hold to a belief in violent overthrow of the Government for reasons other than loyalty to the Communist Party likewise regard strikes and other forms of direct action designed to serve ultimate revolutionary goals as the primary objectives of labor unions which they control.3 At the committee hearings, the incident most fully developed was a strike at the Milwaukee plant of the Allis-Chalmers Manufacturing Company in 1941, when that plant was producing vital materials for the national defense program. A full hearing was given not only to company officials, but also to leaders of the international and local unions involved. Congress heard testimony that the strike had been called solely in obedience to Party orders for the purpose of starting the 'snowballing of strikes' in defense plants.4 8 No useful purpose would be served by setting out at length the evidence before Congress relating to the problem of political strikes, nor can we attempt to assess the validity of each item of evidence. It is sufficient to say that Congress had a great mass of material before it which tended to show that Communists and others proscribed by the statute had infiltrated union organizations not to support and further trade union objectives, including the advocacy of change by democratic methods, but to make them a device by which commerce and industry might be disrupted when the dictates of political policy required such action. II. 9 The unions contend that the necessary effect of § 9(h) is to make it impossible for persons who cannot sign the oath to be officers of labor unions. They urge that such a statute violates fundamental rights guaranteed by the First Amendment: the right of union officers to hold what political views they choose and to associate with what political groups they will, and the right of unions to choose their officers without interference from government.5 The Board has argued, on the other hand, that § 9(h) presents no First Amendment problem because its sole sanction is the withdrawal from noncomplying unions of the 'privilege' of using its facilities. 10 Neither contention states the problem with complete accuracy. It cannot be denied that the practical effect of denial of access to the Board and the denial of a place on the ballot in representation proceedings is not merely to withhold benefits granted by the Government but to impose upon noncomplying unions a number of restrictions which would not exist if the Board had not been established.6 The statute does not, however, specifically forbid persons who do not sign the affidavit from holding positions of union leadership nor require their discharge from office. The fact is that § 9(h) may well make it difficult for unions to remain effective if their officers do not sign the affidavits. How difficult depends upon the circumstances of the industry the strength of the union and its organizational discipline. We are, therefore, neither free to treat § 9(h) as if it merely withdraws a privilege gratuitously granted by the Government, nor able to consider it a licensing statute prohibiting those persons who do not sign the affidavit from holding union office. The practicalities of the situation place the proscriptions of § 9(h) somewhere between those two extremes. The difficult question that emerges is whether, consistently with the First Amendment, Congress, by statute, may exert these pressures upon labor unions to deny positions of leadership to certain persons who are identified by particular beliefs and political affiliations. III. 11 There can be no doubt that Congress may, under its constitutional power to regulate commerce among the serveal States, attempt to prevent political strikes and other kinds of direct action designed to burden and interrupt the free flow of commerce. We think it is clear, in addition, that the remedy provided by § 9(h) bears reasonable relation to the evil which the statute was designed to reach. Congress could rationally find that the Communist Party is not like other political parties in its utilization of positions of union leadership as means by which to bring about strikes and other obstructions of commerce for purposes of political advantage, and that many persons who believe in overthrow of the Government by force and violence are also likely to resort to such tactics when, as officers, they formulate union policy. 12 The fact that the statute identifies persons by their political affiliations and beliefs, which are circumstances ordinarily irrelevant to permissible subjects of government action, does not lead to the conclusion that such circumstances are never relevant. In re Summers, 1945, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795; Hamilton v. Regents of University of California, 1934, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343. We have held that aliens may be barred from certain occupations bacause of a reasonable relation between that classification and the apprehended evil, State of Ohio ex rel. Clarke, Ohio v. Deckebach, 1927, 274 U.S. 392, 47 S.Ct. 630, 71 L.Ed. 1115; Pearl Assurance Co. v. Harrington, 1941, 313 U.S. 549, 61 S.Ct. 1120, 85 L.Ed. 1514, even though the Constitution forbids arbitrary banning of aliens from the pursuit of lawful occupations. Truax v. Raich, 1915, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283; Takahashi v. Fish and Game Commission, 1948, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478. Even distinctions based solely on ancestry, which we declared 'are by their very nature odious to a free people,' have been upheld under the unusual circumstances of wartime. Hirabayashi v. United States, 1943, 320 U.S. 81, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774.7 If accidents of birth and ancestry under some circumstances justify an inference concerning future conduct, it can hardly be doubted that voluntary affiliations and beliefs justify a similar inference when drawn by the legislature on the basis of its investigations. 13 This principle may be illustrated by reference to statutes denying positions of public importance to groups of persons identified by their business affiliations. One federal statute,8 for example, provides that no partner or employee of a firm primarily engaged in underwriting securities may be a director of a national bank. This Court noted that the statute is directed 'to the probability or likelihood, based on the experience of the 1920's that a bank director interested in the underwriting business may use his influence in the bank to involve it or its customers in securities which his underwriting (firm) has in its portfolio or has committed itself to take.' Board of Governors v. Agnew, 1947, 329 U.S. 441, 447, 67 S.Ct. 411, 414, 91 L.Ed. 408. It was designed 'to remove tempting opportunities from the management and personnel of member banks.' Id., 329 U.S. at page 449, 67 S.Ct. at page 415. There was no showing, nor was one required, that all employees of underwriting firms would engage in such conduct. Because of their business connections, carrying as they do certain loyalties, interests and disciplines, those persons were thought to pose a continuing threat of participation in the harmful activities described above. Political affiliations of the kind here involved, no less than business affiliations, provide rational ground for the legislative judgment that those persons proscribed by § 9(h) would be subject to 'tempting opportunities' to commit acts deemed harmful to the national economy. In this respect, § 9(h) is not unlike a host of other statutes which prohibit specified groups of persons from holding positions of power and public interest because, in the legislative judgment, they threaten to abuse the trust that is a necessary concomitant of the power of office. 14 If no more were involved than possible loss of position, the foregoing would dispose of the case. But the more difficult problem here arises because, in drawing lines on the basis of beliefs and political affiliations, though it may be granted that the proscriptions of the statute bear a reasonable relation to the apprehended evil, congress has undeniably discouraged the lawful exercise of political freedoms as well. Stated otherwise, the problem is this: Communists, we may assume, carry on legitimate political activities. Beliefs are inviolate. Cantwell v. Connecticut, 1940, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128 A.L.R. 1352. Congress might reasonably find, however, that Communists, unlike members of other political parties, and persons who believe in overthrow of the Government by force, unlike persons of other beliefs, represent a continuing danger of disruptive political strikes when they hold positions of union leadership. By exerting pressures on unions to deny office to Communists and others identified therein, § 9(h) undoubtedly lessens the threat to interstate commerce, but it has the further necessary effect of discouraging the exercise of political rights protected by the First Amendment. Men who hold union offices often have little choice but to renounce Communism or give up their offices. Unions which wish to do so are discouraged from electing Communists to office. To the grave and difficult problem thus presented we must now turn our attention. IV. 15 The unions contend that once it is determined that this is a free speech case the 'clear and present danger' test must apply. See Schenck v. United States, 1919, 249 U.S. 47, 39 S.Ct. 247, 279, 63 L.Ed. 470. But they disagree as to how it should be applied. Appellant in No. 10 would require that joining the Communist Party or the expression of belief in overthrow of the Government by force be shown to be a clear and present danger of some substantive evil, since those are the doctrines affected by the statute. Petitioner in No. 13, on the other hand, would require a showing that political strikes, the substantive evil involved, are a clear and present danger to the security of the Nation or threaten widespread industrial unrest. 16 This confusion suggests that the attempt to apply the term, 'clear and present danger,' as a mechanical test in every case touching First Amendment freedoms, without regard to the context of its application, mistakes the form in which an idea was cast for the substance of the idea. The provisions of the Constitution, said Mr. Justice Holmes, 'are not mathematical formulas having their essence in their form; they are organic, living institutions transplanted from English soil. The(ir) significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.' Gompers v. United States, 1914, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. 1115. Still less should this Court's interpretations of the Constitution be reduced to the status of mathematical formulas. It is the considerations that gave birth to the phrase, 'clear and present danger,' not the phrase itself, that are vital in our decision of questions involving liberties protected by the First Amendment. 17 Although the First Amendment provides that Congress shall make no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of constitutional government to survive. If it is to survive it must have power to protect itself against unlawful conduct and, under some circumstances, against incitements to commit unlawful acts. Freedom of speech thus does not comprehend the right to speak on any subject at any time. The important question that came to this Court immediately after the First World War was not whether, but how far, the First Amendment permits the suppression of speech which advocates conduct inimical to the public welfare.9 Some thought speech having a reasonable tendency to lead to such conduct might be punished. Justice Holmes and Brandeis took a different view. They thought that the greater danger to a democracy lies in the suppression of public discussion; that ideas and doctrines thought harmful or dangerous are best fought with words. Only, therefore, when force is very likely to follow an utterance before there is a chance for counter-argument to have effect may that utterance be punished or prevented.10 Thus, 'the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the state (or Congress) constitutionally may seek to prevent * * *.' Mr. Justice Brandeis, concurring in Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 647, 71 L.Ed. 1095. By this means they sought to convey the philosophy that, under the First Amendment, the public has a right to every man's views and every man the right to speak them. Government may cut him off only when his views are no longer merely views but threaten, clearly and imminently, to ripen into conduct against which the public has a right to protect itself. 18 But the question with which we are here faced is not the same one that Justices Holmes and Brandeis found convenient to consider in terms of clear and present danger. Government's interest here is not in preventing the dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result therefrom it free speech is practiced. Its interest is in protecting the free flow of commerce from what Congress considers to be substantial evils of conduct that are not the products of speech at all. Section 9(h), in other words, does not interfere with speech because Congress fears the consequences of speech; it regulates harmful conduct which Congress has determined is carried on by persons who may be identified by their political affiliations and beliefs. The Board does not contend that political strikes, the substantive evil at which § 9(h) is aimed, are the present or impending products of advocacy of the doctrines of Communism or the expression of belief in overthrow of the Government by force. On the contrary, it points out that such strikes are called by persons who, so Congress has found, have the will and power to do so without advocacy or persuasion that seeks acceptance in the competition of the market.11 Speech may be fought with speech. Falsehoods and fallacies must be exposed, not suppressed, unless there is not sufficient time to avert the evil consequences of noxious doctrine by argument and education. That is the command of the First Amendment. But force may and must be met with force. Section 9(h) is designed to protect the public not against what Communists and others identified therein advocate or believe, but against what Congress has concluded they have done and are likely to do again. 19 The contention of petitioner in No. 13 that this Court must find that political strikes create a clear and present danger to the security of the Nation or of widespread industrial strife in order to sustain § 9(h) similarly misconceives the purpose that phrase was intended to serve. In that view, not the relative certainty that evil conduct will result from speech in the immediate future, but the extent and gravity of the substantive evil must be measured by the 'test' laid down in the Schenck case. But there the Court said that: 'The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.' Schenck v. United States, supra, 249 U.S. at page 52, 39 S.Ct. at page 249, 63 L.Ed. 470. (Emphasis supplied.) 20 So far as the Schenck case itself is concerned, imminent danger of any substantive evil that Congress may prevent justifies the restriction of speech. Since that time this Court has decided that however great the likelihood that a substantive evil will result, restrictions on speech and press cannot be sustained unless the evil itself is 'substantial' and 'relatively serious,' Brandeis, J., concurring in Whitney v. California, supra, 274 U.S. at pages 374, 377, 47 S.Ct. at pages 647, 649, 71 L.Ed. 1095, or sometimes 'extremely serious,' Bridges v. California, 1941, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192, 159 A.L.R. 1346. And it follows therefrom that even harmful conduct cannot justify restrictions upon speech unless substantial interests of society are at stake. But in suggesting that the substantive evil must be serious and substantial, it was never the intention of this Court to lay down an absolutist test measured in terms of danger to the Nation. When the effect of a statute or ordinance upon the exercise of First Amendment freedoms is relatively small and the public interest to be protected is substantial, it is obvious that a rigid test requiring a showing of imminent danger to the security of the Nation is an absurdity. We recently dismissed for want of substantiality an appeal in which a church group contended that its First Amendment rights were violated by a municipal zoning ordinance preventing the building of churches in certain residential areas. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Porterville, 1949, 338 U.S. 805, 70 S.Ct. 78. And recent cases in this Court involving contempt by publication likewise have no meaning if imminent danger of national peril is the criterion.12 21 On the contrary, however, the right of the public to be protected from evils of conduct, even though First Amendment rights of persons or groups are thereby in some manner infringed, has received frequent and consistent recognition by this Court. We have noted that the blaring sound truck invades the privacy of the home and may drown out others who wish to be heard. Kovacs v. Cooper, 1949, 336 U.S. 77, 69 S.Ct. 448. The unauthorized parade through city streets by a religious or political group disrupts traffic and may prevent the discharge of the most essential obligations of local government. Cox v. New Hampshire, 1941, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049, 133 A.L.R. 1396. The exercise of particular First Amendment rights may fly in the face of the public interest in the health of children, Prince v. Massachusetts, 1944, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, or of the whole community, Jacobson v. Massachusetts, 1905, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765, and it may be offensive to the moral standards of the community, Reynolds v. United States, 1878, 98 U.S. 145, 25 L.Ed. 244; Davis v. Beason, 1890, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637. And Government's obligation to provide an efficient public service, United Public Workers v. Mitchell, 1947, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754, and its interest in the character of members of the bar, In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945), sometimes admit of limitations upon rights set out in the First Amendment. And see Giboney v. Empire Storage & Ice Co., 1949, 336 U.S. 490, 499—501, 69 S.Ct. 684, 689—690. We have never held that such freedoms are absolute. The reason is plain. As Chief Justice Hughes put it, 'Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.' Cox v. New Hampshire, supra, 312 U.S. at page 574, 61 S.Ct. at page 765, 85 L.Ed. 1049, 133 A.L.R. 1396. 22 When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented. The high place in which the right to speak, think, and assemble as you will was held by the Framers of the Bill of Rights and is held today by those who value liberty both as a means and an end indicates the solicitude with which we must view any assertion of personal freedoms. We must recognize, moreover, that regulation of 'conduct' has all too frequently been employed by public authority as a cloak to hide censorship of unpopular ideas. We have been reminded that 'It is not often in this country that we now meet with direct and candid efforts to stop speaking or publication as such. Modern inroads on these rights come from associating the speaking with some other factor which the state may regulate so as to bring the whole within official control.'13 23 On the other hand, legitimate attempts to protect the public, not from the remote possible effects of noxious ideologies, but from present excesses of direct, active conduct are not presumptively bad because they interfere with and, in some of its manifestations, restrain the exercise of First Amendment rights. Reynolds v. United States, supra; Prince v. Massachusetts, supra; Cox v. New Hampshire, supra; Giboney v. Empire Storage & Ice Co., supra. In essence, the problem is one of weighing the probable effects of the statute upon the free exercise of the right of speech and assembly against the congressional determination that political strikes are evils of conduct which cause substantial harm to interstate commerce and that Communists and others identified by § 9(h) pose continuing threats to that public interest when in positions of union leadership. We must, therefore, undertake the 'delicate and difficult task * * * to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.' Schneider v. State, 1939, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155. V. 24 The 'reasons advanced in support of the regulation' are of considerable weight, as even the oppenents of § 9(h) agreed. They are far from being '(m) ere legislative preferences or beliefs respecting matters of public convenience (which) may well support regulation directed at other personal activities, but be insufficient to justify such as disminishes the exercise of rights so vital to the maintenance of democratic institutions.'14 It should be emphasized that Congress, not the courts, is primarily charged with determination of the need for regulation of activities affecting interstate commerce. This Court must, if such regulation unduly infringes personal freedoms, declare the statute invalid under the First Amendment's command that the opportunities for free public discussion be maintained. But insofar as the problem is one of drawing inferences concerning the need for regulation of particular forms of conduct from conflicting evidence, this Court is in no position to substitute its judgment as to the necessity or desirability of the statute for that of Congress. Cf. United Public Workers v. Mitchell, supra, 330 U.S. at pages 95, 102, 67 S.Ct. at pages 565, 570, 91 L.Ed. 754. In Bridges v. California, supra, we said that even restrictions on particular kinds of utterances, if enacted by a legislature after appraisal of the need, come to this Court 'encased in the armor wrought by prior legislative deliberation.' 314 U.S. at page 261, 62 S.Ct. at page 193, 86 L.Ed. 192, 159 A.L.R. 1346. Compare Gitlow v. New York, 1925, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. The deference due legislative determination of the need for restriction upon particular forms of conduct has found repeated expression in this Court's opinions. 25 When compared with ordinances and regulations dealing with littering of the streets or disturbance of householders by itinerant preachers, the relative significance and complexity of the problem of political strikes and how to deal with their leaders becomes at once apparent. It must be remembered that § 9(h) is not an isolated statute dealing with a subject divorced from the problems of labor peace generally. It is a part of some very complex machinery set up by the Federal Government for the purpose of encouraging the peaceful settlement of labor disputes. Under the statutory scheme, unions which become collective bargaining representatives for groups of employees often represent not only members of the union but nonunion workers or members of other unions as well. Because of the necessity to have strong unions to bargain on equal terms with strong employers, individual employees are required by law to sacrifice rights which, in some cases, are valuable to them. See J. I. Case Co. v. National Labor Relations Board, 1944, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762. The loss of individual rights for the greater benefit of the group results in a tremendous increase in the power of the representative of the group—the union. But power is never without responsibility. And when authority derives in part from Government's thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself. See Graham v. Brotherhood of Locomotive Firemen, 1949, 338 U.S. 232, 70 S.Ct. 14; Steele v. Louisville & N.R. Co., 1944, 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen, 1944, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; Wallace Corp. v. National Labor Relations Board, 1944, 323 U.S. 248, 255, 65 S.Ct. 238, 241, 89 L.Ed. 216; Railway Mail Association v. Corsi, 1945, 326 U.S. 88, 94, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072. 26 We do not suggest that labor unions which utilize the facilities of the National Labor Relations Board become Government agencies or may be regulated as such. But it is plain that when Congress cothes the bargaining representative 'with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents,'15 the public interest in the good faith exercise of that power is very great. 27 What of the effects of § 9(h) upon the rights of speech and assembly of those proscribed by its terms? The statute does not prevent or punish by criminal sanctions the making of a speech, the affiliation with any organization, or the holding of any belief. But as we have noted, the fact that no direct restraint or punishment is imposed upon speech or assembly does not determine the free speech question. Under some circumstances, indirect 'discouragements' undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions or taxes. A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature. 28 But we have here no statute which is either frankly aimed at the suppression of dangerous ideas16 nor one which, although ostensibly aimed at the regulation of conduct, may actually 'be made the instrument of arbitrary suppression of free expression of views.' Hague v. Committee for Industrial Organization, 1939, 307 U.S. 496, 516, 59 S.Ct. 954, 964, 83 L.Ed. 1423.17 There are here involved none of the elements of censorship or prohibition of the dissemination of information that were present in the cases mainly relied upon by those attacking the statute.18 The 'discouragements' of § 9(h) proceed not against the groups or beliefs identified therein, but only against the combination of those affiliations or beliefs with occupancy of a position of great power over the economy of the country. Congress has concluded that substantial harm, in the form of direct, positive action, may be expected from that combination. In this legislation, Congress did not restrain the activities of the Communist Party as a political organization; nor did it attempt to stifle beliefs. Compare West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674.19 Section 9(h) touches only a relative handful of persons, leaving the great majority of persons of the identified affiliations and beliefs completely free from restraint. And it leaves those few who are affected free to maintain their affiliations and beliefs subject only to possible loss of positions which Congress has concluded are being abused to the injury of the public by members of the described groups. 29 We have previously had occasion to consider other statutes and regulations in which the interests involved were, in large measure, like those now being considered. In United Public Workers v. Mitchell, supra, we upheld a statute which provided that employees of the Federal Government could not participate in partisan political activities, concededly a First Amendment right, if they would retain their positions. The decision was not put upon the ground that government employment is a privilege to be conferred or withheld at will. For it was recognized that Congress may not 'enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office, or that no federal employee shall attend Mass or take any active part in missionary work.' 330 U.S. at page 100, 67 S.Ct. at page 569, 91 L.Ed. 754. But the rational connection between the prohibitions of the statute and its objects, the limited scope of the abridgment of First Amendment rights, and the large public interest in the efficiency of government service, which Congress had found necessitated the statute, led us to the conclusion that the statute may stand consistently with the First Amendment. 30 Similarly, in Re Summers, supra, we upheld the refusal of a state supreme court to admit to membership of its bar an otherwise qualified person on the sole ground that he had conscientious scruples against war and would not use force to prevent wrong under any circumstances. Since he could not, so the justices of the state court found, swear in good faith to uphold the state constitution, which requires service in the militia in time of war, we held that refusal to permit him to practice law did not violate the First Amendment, as its commands are incorporated in the Due Process Clause of the Fourteenth Amendment. Again, the relation between the obligations of membership in the bar and service required by the state in time of war, the limited effect of the state's holding upon speech and assembly, and the strong interest which every state court has in the persons who become officers of the court were thought sufficient to justify the state action. See also Hamilton v. Regents of University of California, supra. 31 It is contended that the principle that statutes touching First Amendment freedoms must be narrowly drawn dictates that a statute aimed at political strikes should make the calling of such strikes unlawful but should not attempt to bring about the removal of union officers, with its attendant effect upon First Amendment rights. We think, however, that the legislative judgment that interstate commerce must be protected from a continuing threat of such strikes is a permissible one in this case. The fact that the injury to interstate commerce would be an accomplished fact before any sanctions could be applied, the possibility that a large number of such strikes might be called at a time of external or internal crisis, and the practical difficulties which would be encountered in detecting illegal activities of this kind are factors which are persuasive that Congress should not be powerless to remove the threat, not limited to punishing the act. We recently said that 'nothing in the Constitution prevents Congress from acting in time to prevent potential injury to the national economy from becoming a reality.' North American Co. v. Securities & Exchange Commission, 1946, 327 U.S. 686, 711, 66 S.Ct. 785, 799, 90 L.Ed. 945. While this statement may be subject to some qualification, it indicates the wide scope of congressional power to keep from the channels of commerce that which would hinder and obstruct such commerce. VI. 32 Previous discussion has considered the constitutional questions raised by § 9(h) as they apply alike to members of the Communist Party and affiliated organizations and to persons who believe in overthrow of the Government by force. The breadth of the provision concerning belief in overthrow of the Government by force would raise additional questions, however, if it were read very literally to include all persons who might, under any conceivable circumstances, subscribe to that belief. 33 But we see no reason to construe the statute so broadly. It is within the power and is the duty of this Court to construe a statute so as to avoid the danger of unconstitutionality if it may be done in consonance with the legislative purpose. United States v. Congress of Industrial Organizations, 1948, 335 U.S. 106, 120 121, 68 S.Ct. 1349, 1356; United States v. Delaware & Hudson Co., 1909, 213 U.S. 366, 407—408, 29 S.Ct. 527, 535, 53 L.Ed. 836. In enacting § 9(h), Congress had as its objective the protection of interstate commerce from direct interference, not any intent to disturb or proscribe beliefs as such. Its manifest purpose was to bring within the terms of the statute only those persons whose beliefs strongly indicate a will to engage in political strikes and other forms of direct action when, as officers, they direct union activities. The congressional purpose is therefore served if we construe the clause, '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,' to apply to persons and organizations who believe in violent overthrow of the Government as it presently exists under the Constitution as an objective, not merely a prophecy. Congress might well find that such persons—those who believe that the present form of the Government of the United States should be changed by force or other illegal methods—would carry that objective into their conduct of union affairs by calling political strikes designed to weaken and divide the American people, whether they consider actual overthrow of the Government to be near or distant. It is to those persons that § 9(h) is intended to apply, and only to them. We hold, therefore, that the belief identified in § 9(h) is a belief in the objective of overthrow by force or by any illegal or unconstitutional methods of the Government of the United States as it now exists under the Constitution and laws thereof. 34 As thus construed, we think that the 'belief' provision of the oath presents no different problem from that present in that part of the section having to do with membership in the Communist Party. Of course we agree that one may not be imprisoned or executed because he holds particular beliefs. But to attack the straw man of 'thought control' is to ignore the fact that the sole effect of the statute upon one who believes in overthrow of the Government by force and violence—and does not deny his belief—is that he may be forced to relinquish his position as a union leader. That fact was crucial in our discussion of the statute as it relates to membership in the Communist Party. To quote, with pertinent substitutions, an apt statement of that principle, post, 339 U.S. 434, 70 S.Ct. 702: 'The Act does not suppress or outlaw the (belief in overthrow of the Government), nor prohibit it or (those who hold that belief) from engaging in any above-board activity * * *. No individual is forbidden to be or to become a philosophical (believer in overthrow of Government) or a full-fledged member of (a group which holds that belief). No one is penalized for writing or speaking in favor of (such a belief) or its philosophy. Also, the Act does not require or forbid anything whatever to any person merely because he is (a believer in overthrow of the Government by force). It applies only to one who becomes an officer of a labor union.' 35 If the principle that one may under no circumstances be required to state his beliefs on any subject nor suffer the loss of any right or privilege because of his beliefs be a valid one, its application in other possible situations becomes relevant. Suppose, for example, that a federal statute provides that no person may become a member of the Secret Service force assigned to protect the President unless he swears that he does not believe in assassination of the President. Is this beyond the power of Congress, whatever the need revealed by its investigations? An affirmative answer hardly commends itself to reason unless, indeed, the Bill of Rights has been converted into a 'suicide pact.' Terminiello v. Chicago, 1949, 337 U.S. 1, 37, 69 S.Ct. 894, 910, dissenting opinion. Yet the example chosen is far-fetched only because of the manifest absurdity of reliance upon an oath in such a situation. One can have no doubt that the screening process in the selection of persons to occupy such positions probes far deeper than mere oath-taking can possibly do. 36 To hold that such an oath is permissible, on the other hand, is to admit that the circumstances under which one is asked to state his belief and the consequences which flow from his refusal to do so or his disclosure of a particular belief make a difference. The reason for the difference has been pointed out at some length above. First, the loss of a particular position is not the loss of life or liberty. We have noted that the distinction is one of degree, and it is for this reason that the effect of the statute in proscribing beliefs—like its effect in restraining speech or freedom of association—must be carefully weighed by the courts in determining whether the balance struck by Congress comports with the dictates of the Constitution. But it is inaccurate to speak of § 9(h) as 'punishing' or 'forbidding' the holding of beliefs, any more than it punishes or forbids membership in the Communist Party. 37 Second, the public interest at stake in ascertaining one's beliefs cannot automatically be assigned at zero without consideration of the circumstances of the inquiry. If it is admitted that beliefs are springs to action, it becomes highly relevant whether the person who is asked whether he believes in overthrow of the Government by force is a general with five hundred thousand men at his command or a village constable. To argue that because the latter may not be asked his beliefs the former must necessarily be exempt is to make a fetish of beliefs. The answer to the implication that if this statute is upheld 'then the power of govenment over beliefs is as unlimited as its power over conduct and the way is open to force disclosure of attitudes on all manner of social, economic, moral and political issues,' post, 339 U.S. 438, 70 S.Ct. 704, is that that result does not follow 'while this Court sits.'20 The circumstances giving rise to the inquiry, then, are likewise factors to be weighed by the courts, giving due weigh, of course, to the congressional judgment concerning the need. In short, the problem of balancing the conflicting individual and national interests involved is no different from the problem presented by proscriptions based upon political affiliations. 38 Insofar as a distinction between beliefs and political affiliations is based upon absence of any 'overt act' in the former case, it is relevant, if at all, in connection with problems of proof. In proving that one swore falsely that he is not a Communist, the act of joining the Party is crucial. Proof that one lied in swearing that he does not believe in overthrow of the Government by force, on the other hand, must consist in proof of his mental state. To that extent they differ. 39 To state the difference, however, is but to recognize that while objective facts may be proved directly, the state of a man's mind must be inferred from the things he says or does. Of course we agree that the courts cannot 'ascertain the thought that has had no outward manifestation.' But courts and juries every day pass upon knowledge, belief and intent—the state of men's minds having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred. See 2 Wigmore, Evidence (3d ed.) §§ 244, 256 et seq. False swearing in signing the affidavit must, as in other cases where mental state is in issue, be proved by the outward manifestations of state of mind. In the absence of such manifestations, which are as much 'overt acts' as the act of joining the Communist Party, there can be no successful prosecution for false swearing.21 40 Considering the circumstances surrounding the problem—the deference due the congressional judgment concerning the need for regulation of conduct affecting interstate commerce and the effect of the statute upon rights of speech, assembly and belief—we conclude that § 9(h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, does not unduly infringe freedoms protected by the First Amendment. Those who, so Congress has found, would subvert the public interest cannot escape all regulation because, at the same time, they carry on legitimate political activities. Cf. Valentine v. Chrestensen, 1942, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262. To encourage unions to displace them from positions of great power over the national economy, while at the same time leaving free the outlets by which they may pursue legitimate political activities of persuasion and advocacy, does not seem to us to contravene the purposes of the First Amendment. That Amendment requires that one be permitted to believe what he will. It requires that one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result therefrom. It does not require that he be permitted to be the keeper of the arsenal. VII. 41 There remain two contentions which merit discussion. One is that § 9(h) is unconstitutionally vague. The other is that it violates the mandate of Art. I, § 9 of the Constitution that 'No Bill of Attainder or ex post facto Law shall be passed.' 42 The argument as to vagueness stresses the breadth of such terms as 'affiliated,' 'supports' and 'illegal or unconstitutional methods.' There is little doubt that imagination can conjure hypothetical cases in which the meaning of these terms will be in nice question. The applicable standard, however, is not one of wholly consistent academic definition of abstract terms. It is, rather, the practical criterion of fair notice to those to whom the statute is directed. The particular context is all important. 43 The only criminal punishment specified is the application of § 35(A) of the Criminal Code, 18 U.S.C. § 1001, 18 U.S.C.A. § 1001, which covers only those false statements made 'knowingly and willfully.' The question in any criminal prosecution involving a non-Communist affidavit must therefore be whether the affiant acted in good faith or knowingly lied concerning his affiliations, beliefs, support of organizations, etc. And since the constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning, the fact that punishment is restricted to acts done with knowledge that they contravene the statute makes this objection untenable. As this Court pointed out in United States v. Ragen, 1942, 314 U.S. 513, 524, 62 S.Ct. 374, 379, 86 L.Ed. 383, 'A mind intent upon willful evasion is inconsistent with surprised innocence.' Cf. Omaechevarria v. Idaho, 1918, 246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763; Hygrade Provision Co. v. Sherman, 1925, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402; Screws v. United States, 1945, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, 162 A.L.R. 1330. Without considering, therefore, whether in other circumstances the words used in § 9(h) would render a statute unconstitutionally vague and indefinite, we think that the fact that under § 35A of the Criminal Code no honest, untainted interpretation of those words is punishable removes the possibility of constitutional infirmity. 44 The unions' argument as to bill of attainder cites the familiar cases, United States v. Lovett, 1946, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252; Ex parte Garland, 1867, 4 Wall. 333, 18 L.Ed. 366; Cummings v. Missouri, 1866, 4 Wall. 277, 18 L.Ed. 356. Those cases and this also, according to the argument, involve the proscription of certain occupations to a group classified according to belief and loyalty. But there is a decisive distinction: in the previous decisions the individuals involved were in fact being punished for past actions; whereas in this case they are subject to possible loss of position only because there is substantial ground for the congressional judgment that their beliefs and loyalties will be transformed into future conduct. Of course, the history of the past conduct is the foundation for the judgment as to what the future conduct is likely to be; but that does not alter the conclusion that § 9(h) is intended to prevent future action rather than to punish past action. 45 This distinction is emphasized by the fact that members of those groups identified in § 9(h) are free to serve as union officers if at any time they renounce the allegiances which constituted a bar to signing the affidavit in the past. Past conduct, actual or threatened by their previous adherence to affiliations and beliefs mentioned in § 9(h), is not a bar to resumption of the position. In the cases relied upon by the unions on the other hand, this Court has emphasized that, since the basis of disqualification was past action or loyalty, nothing that those persons proscribed by its terms could ever do would change the result. See United States v. Lovett, supra, 328 U.S. at page 314, 66 S.Ct. at page 1078, 90 L.Ed. 1252; Cummings v. Missouri, supra, 4 Wall. at page 327, 18 L.Ed. 356. Here the intention is to forestall future dangerous acts; there is no one who may not by a voluntary alteration of the loyalties which impel him to action, become eligible to sign the affidavit. We cannot conclude that this section is a bill of attainder. 46 In their argument on this point, the unions seek some advantage from references to English history pertinent to a religious test oath. That experience is written into our Constitution in the following provision of Article VI' 'The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.' It is obvious that not all oaths were abolished; the mere fact that § 9(h) is in oath form hardly rises to the stature of a constitutional objection. All that was forbidden was a 'religious Test.' We do not think that the oath here involved can rightly be taken as falling within that category. 47 Clearly the Constitution permits the requirement of oaths by officeholders to uphold the Constitution itself. The obvious implication is that those unwilling to take such an oath are to be barred from public office. For the President, a specific oath was set forth in the Constitution itself. Art. II, § 1. And Congress has detailed an oath for other federal officers.22 Obviously the Framers of the Constitution thought that the exaction of an affirmation of minimal loyalty to the Government was worth the price of whatever deprivation of individual freedom of conscience was involved. All that we need hold here is that the casting of § 9(h) into the mold of an oath does not invalidate it, if it is otherwise constitutional. 48 We conclude that § 9(h) of the National Labor Relations Act, as amended by the Labor-Management Relations Act, 1947, as herein construed, is compatible with the Federal Constitution and may stand. The judgments of the courts below are therefore affirmed. 49 Affirmed. 50 Mr. Justice DOUGLAS, Mr. Justice CLARK and Mr. Justice MINTON took no part in the consideration or decision of these cases. 51 Mr. Justice FRANKFURTER, concurring in the Court's opinion except as to Part VII. 52 'Scarcely any political question arises in the United States,' observed the perceptive de Tocqueville as early as 1835, 'that is not resolved, sooner or later, into a judicial question.' 1 Democracy in America 280 (Bradley ed. 1948). And so it was to be expected that the conflict of political ideas now dividing the world more pervasively than any since this nation was founded would give rise to controversies for adjudication by this Court. 'The judicial Power' with which alone this Court is invested comes into operation only as to issues that the long tradition of our history has made appropriate for disposition by judges. When such questions are properly here they are to be disposed of within those strict confines of legal reasoning which laymen too often deem invidiously technical. This restriction to justiciable issues to be disposed of in the unrhetorical manner of opinion-writing reflects respect by the judiciary for its very limited, however great, function in the proper distribution of authority in our political scheme so as to avoid autocratic rule. No doubt issues like those now before us cannot be completely severed from the political and emotional context out of which they emerge. For that very reason adjudication touching such matters should not go one whit beyond the immediate issues requiring decision, and what is said in support of the adjudication should insulate the Court as far as is rationally possible from the political conflict beneath the legal issues. 53 The central problem presented by the enactment now challenged is the power of Congress, as part of its comprehensive scheme for industrial peace, to keep Communists out of controlling positions in labor unions as a condition to utilizing the opportunities afforded by the National Labor Relations Act, as amended by the Labor Management Relations Act 1947.1 Wrapped up in this problem are two great concerns of our democratic society the right of association for economic and social betterment and the right of association for political purposes. It is too late in the day to deny to Congress the power to promote industrial peace in all the far-flung range of interstate commerce. To that end, Congress may take appropriate measures to protect interstate commerce against disruptive conduct not fairly related to industrial betterment within our democratic framework. It is one thing to forbid heretical political thought merely as heretical thought. It is quite a different thing for Congress to restrict attempts to bring about another scheme of society, not through appeal to reason and the use of the ballot as democracy has been pursued throughout our history, but through an associated effort to disrupt industry. 54 Thus stated, it would make undue inroads upon the policy-making power of Congress to deny it the right to protect the industrial peace of the country by excluding from leadership in trade unions which seek to avail themselves of the machinery of the Labor Management Relations Act those who are united for action against our democratic process. This is so not because Congress in affording a facility can subject it to any condition it pleases. It cannot. Congress may withhold all sorts of facilities for a better life but if it affords them it cannot make them available in an obviously arbitrary way or exact surrender of freedoms unrelated to the purpose of the facilities. Congress surely can provide for certain clearly relevant qualifications of responsibility on the part of leaders of trade unions invoking the machinery of the Labor Management Relations Act. The essential question now is whether Congress may determine that membership of union officers in the Communist Party creates such an obvious hazard to the peace-promoting purposes of the Act that access to the machinery of the Act may be denied unions which prefer their freedom to have officers who are Communists to their opportunities under the Act. 55 When we are dealing with conflicting freedoms, as we are on the issues before us, we are dealing with large concepts that too readily lend themselves to explosive rhetoric. We are also dealing with matters as to which diffent nuances in phrasing the same conclusion lead to different emphasis and thereby eventually may lead to different conclusions in slightly different situations. From my point of view these are issues as to which it would be desirable for the members of the Court to write full length individual opinions. The Court's business in our time being what it is precludes this. It must suffice for me to say that the judgment of Congress that trade unions which are guided by officers who are committed by ties of membership to the Communist Party must forego the advantages of the Labor Management Relations Act is reasonably related to the accomplishment of the purposes which Congress constitutionally had a right to pursue. To deny that that is a judgment which Congress may, as a matter of experience enforce even though it involves the indicated restrictions upon freedom would be to make naivete a requirement in judges. Since the Court's opinion, in the main, expresses the point of view which I have very inadequately sketched, I join it except as qualified in what follows. 56 Congress was concerned with what it justifiably deemed to be the disorganizing purposes of Communists who hold positions of official power in labor unions, or, at the least, what it might well deem their lack of disinterested devotion to the basic tenets of the American trade union movement because of a higher loyalty to a potentially conflicting cause. But Congress did not choose merely to limit the freedom of labor unions which seek the advantages of the Labor Management Relations Act to be led by officers who are not willing to disavow membership in the Communist Party. The scope of its legislation was much more extensive. 57 Legislation, in order to effectuate its purposes, may deal with radiations beyond the immediate incidence of a mischief. If a particular mischief is within the scope of congressional power, wide discretion must be allowed to Congress for dealing with it effectively. It is not the business of this Court to restrict Congress to narrowly in defining the extent or the nature of remedies. How to curb an evil, what remedies will be effective, the reach of a particular evil and therefore the appropriate scope of a remedy against it—all these are in the main matters of legislative policy not open to judicial condemnation. There are, of course, some specific restrictions in devising remedies. No matter what its notions of policy may be, the Eighth Amendment, for example, bars Congress from inflicting 'cruel and unusual punishments.' I do not suppose it is even arguable that Congress could ask for a disclosure of how union officers cast their ballots at the last presidential election even though the secret ballot is a relatively recent institution. See Wigmore, The Australian Ballot System 3, 15, 22 (1889). So also Congress must keep within the contours of the 'due process' requirement of the Fifth Amendment, vague as they are. In order to curb a mischief Congress cannot be so indefinite in its requirements that effort to meet them raises hazards unfair to those who seek obedience or involves surrender of freedoms which exceeds what may fairly be exacted. These restrictions on the broad scope of legislative discretion are merely the law's application of the homely saws that one should not throw out the baby with the bath or burn the house in order to roast the pig. 58 In my view Congress has cast its net too indiscriminately in some of the provisions of § 9(h). To ask avowal that one 'does not believe in, and is not a member of on supports any organization that believes in * * * the overthrow of the United States Government * * * by any illegal or unconstitutional methods' is to ask assurances from men regarding matters that open the door too wide to mere speculation or uncertainty. It is asking more than rightfully may be asked of ordinary men to take oath that a method is not 'unconstitutional' or 'illegal' when constitutionality or legality is frequently determined by this Court by the chance of a single vote.2 It does not meet the difficulty to suggest that the hazard of a prosecution for perjury is not great since the convictions for perjury must be founded on willful falsity. To suggest that a judge might not be justified in allowing a case to go to a jury, or that a jury would not be justified in convicting, or that, on the possible happening of these events, an appellate court would be compelled to reverse, or, finally, that resort could be had to this Court for review on a petition for certiorari, affords safeguards too tenuous to neutralize the danger. See Musser v. Utah, 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562. The hazards that were found to be fatal to the legislation under review in Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840, appear trivial by comparison with what is here involved. 59 It is not merely the hazard of prosecution for perjury that is dependent on a correct determination as to the implications of a man's belief or the belief of others with whom he may be associated in an organization concerned with political and social issues. It should not be assumed that oaths will be lightly taken; fastidiously scrupulous regard for them should be encouraged. Therefore, it becomes most relevant whether an oath which Congress asks men to take may or may not be thought to touch matters that may not be subjected to compulsory avowal of belief or disbelief. In the uncertainty of the reach of § 9(h), one may withhold an oath because of conscientious scruples that it covers beliefs whose disclosure Congress could not in terms exact. If a man has scruples about taking an oath because of uncertainty as to whether it encompasses some beliefs that are inviolate, the surrender of abstention is invited by the ambiguity of the congressional exaction. As Mr. Justice JACKSON'S opinion indicates, probing into men's thoughts trenches on those aspects of individual freedom which we rightly regard as the most cherished aspects of Western civilization. The cardinal article of faith of our civilization is the inviolate character of the individual. A man can be regarded as an individual and not as a function of the state only if he is protected to the largest possible extent in his thoughts and in his beliefs as the citadel of his person. Entry into that citadel can be justified, if at all, only if strictly confined so that the belief that a man is asked to reveal is so defined as to leave no fair room for doubt that he is not asked to disclose what he has a right to withhold. 60 No one could believe more strongly than I do that every rational indulgence should be made in favor of the constitutionality of an enactment by Congress. I deem it my duty to go to the farthest possible limits in so construing legislation as to avoid a finding that Congress has exceeded the limits of its powers. See, e.g., United States v. Lovett, 328 U.S. 303, 318, 329, 66 S.Ct. 1073, 1080, 1085, 90 L.Ed. 1252; Shapiro v. United States, 335 U.S. 1, 36, 68 S.Ct. 1375, 1393, 92 L.Ed. 1787; United States v. C.I.O., 335 U.S. 106, 124, 129, 68 S.Ct. 1349, 1358, 1360, 92 L.Ed. 1849. 61 If I possibly could, to avoid questions of unconstitutionality I would construe the requirements of § 9(h) to be restricted to disavowal of actual membership in the Communist Party, or in an organization that is in fact a controlled cover for that Party or of active belief, as a matter of present policy, in the overthrow of the Government of the United States by force. But what Congress has written does not permit such a gloss nor deletion of what it has written. See Yu Cong Eng v. Trinidad, 271 U.S. 500, 46 S.Ct. 619, 70 L.Ed. 1059. I cannot deem it within the righful authority of Congress to probe into opinions that involve only an argumentative demostration of some coincidental parallelism of belief with some of the beliefs of those who direct the policy of the Communist Party, though without any allegiance to it. To require oaths as to matters that open up such possibilities invades the inner life of men whose compassionate thought or doctrinaire hopes may be as far removed from any dangerous kinship with the Communist creed as were those of the founders of the present orthodox political parties in this country. 62 The offensive provisions of § 9(h) leave unaffected, however, the valid portions of the section. In § 16, Congress has made express provision for such severance. Since the judgments below were based in part on what I deem unconstitutional requirements I cannot affirm but would remand to give opportunity to obey merely the valid portions of § 9(h). 63 Mr. Justice JACKSON, concurring and dissenting, each in part. 64 If the statute before us required labor union officers to forswear membership in the Republican Party, the Democratic Party or the Socialist Party, I suppose all agree that it would be unconstitutional. But why, if it is valid as to the Communist Party? 65 The answer, for me, is in the decisive differences between the Communist Party and every other party of any importance in the long experience of the United States with party government. In order that today's decision may not be useful as a precedent for suppression of any political opposition compatible with our free institutions, I limit concurrence to grounds and distinctions explicitly set forth herein, without which I should regard this Act as unconstitutional. 66 To state controlling criteria definitively is both important and difficult, because those Communist Party activities visible to the public closely resemble those of any other party. Parties, whether in office or out are often irresponsible in their use and abuse of freedoms of speech and press. They all make scapegoats of unpopular persons or classes and make promises of dubious sincerity or feasibility in order to win votes. All parties, when in opposition, strive to discredit and embarrass the Government of the day by spreading exaggerations and untruths and by inciting prejudiced or unreasoning discontent, not even hesitating to injure the Nation's prestige among the family of nations. The Communist Party, at least outwardly, only exaggerates these well-worn political techniques and many persons are thus led to think of it as just another more radical political party. If it were nothing but that, I think this legislation would be unconstitutional. There are, however, contradictions between what meets the eye and what is covertly done, which, in my view of the issues, provide a rational basis upon which Congress reasonably could have concluded1 that the Communist Party is something different in fact from any other substantial party we have known, and hence may consitutionally be treated as something different in law. I. 67 From information before its several Committees and from facts of general knowledge, Congress could rationally conclude that, behind its political party facade, the Communist Party is a conspiratorial and revolutionary junta, organized to reach ends and to use methods which are incompatible with our constitutional system. A rough and compressed grouping of this data2 would permit Congress to draw these important conclusions as to its distinguishing characteristics. 68 1. The goal of the Communist Party is to seize powers of government by and for a minority rather than to acquire power through the vote of a free electorate. It seeks not merely a change of administration, or of Congress, or reform legislation within the constitutional framework. Its program is not merely so socialize property more rapidly and extensively than the other parties are doing. While the difference between other parties in these matters is largely as to pace, the Communist Party's difference is one of direction. 69 The Communist program only begins with seizure of government, which then becomes a means to impose upon society an organization on principles fundamentally opposed to those presupposed by our Constitution. It purposes forcibly to recast our whole social and politial structure after the Muscovite model of police-state dictatorship. It rejects the entire religious and cultural heritage of Western civilization, as well as the American economic and political systems. This Communist movement is a belated counter-revolution to the American Revolution, designed to undo the Declaration of Independence, the Constitution, and our Bill of Rights, and overturn our system of free, representative self-government. 70 Goals so extreme and offensive to American tradition and aspiration obviously could not be attained or approached through order or with tranquility. If, by their better organization and discipline, they were successful, more candid Communists admit that it would be to an accompaniment of violence, but at the same time they disclaim responsibility by blaming the violence upon those who engage in resistance or reprisal. It matters little by whom the first blow would be struck; no one can doubt that an era of violence and oppression, confiscations and liquidations would be concurrent with a regime of Communism. 71 Such goals set up a cleavage among us too fundamental to be composed by democratic processes. Our constitutional scheme of elections will not settle issues between large groups when the price of losing is to suffer extinction. When dissensions cut too deeply, men will fight, even hopelessly, before they will submit.3 And this is the kind of struggle projected by the Communist Party and inherent in its program. 72 2. The Communist Party alone among American parties past or present is dominated and controlled by a foreign government. It is a satrap party which, to the threat of civil disorder, adds the threat of betrayal into alien hands. 73 The chain of command from the Kremlin to the American party is stoutly denied and usually invisible, but it was unmistakably disclosed by the American Communist Party somersaulting in synchronism with shifts in the Kremlin's foreign policy. Before Munich, Soviet policy was anti-German—'anti-fascist'—and the Communists in this country were likewise. However, when Salin concluded a nonaggression pact with Hitler and Nazi Germany and the Soviet Union became partners in the war, the Communists here did everything within their power to retard and embarrass the United States' policy of rendering aid short of war to victims of aggression by that evil partnership. When those partners again fell out and Russian policy once more became anti-German, the Communists in this country made an abrupt and fierce reversal and were unconscionable in their demands that American soldiers, whose equipment they had delayed and sabotaged, be sacrificed in a premature second front to spare Russia. American Communists, like Communists elsewhere in the world, placed Moscow's demand above every patriotic interest. 74 By lineage and composition the Communist Party will remain peculiarly susceptible to this alien control. The entire apparatus of Communism—its grievances, program, propaganda and vocabulary were evolved for Eastern and Central Europe, whose social and political conditions bear no semblance to our own. However gifted may have been the Communist Party's founders and leaders—Marx, Engels, Lenin and Stalin—not one of them ever lived in America, experienced our conditions, or imbibed the spirit of our institutions. 75 The Communist Party is not native to this country and its beginnings here were not an effort of Americans to answer American problems. Nor is it the response to a quest by American political leaders for lessons from European experiences. As a consequence, the leaders of the American Communist Party have been otherwise insignificant personalities, without personal political followings or aptitudes for our political methods, adapted by training only to boring their way into the labor movement, minority groups and coteries of naive and confused liberals, whose organizations they have captured and discredited and among whom they lie in wait for further orders. 76 The Old World may be rich in lessons which our statesmen could consult with advantage. But it is one thing to learn from or support, a foreign power because that policy serves American interests, and another thing to support American policies because they will serve foreign interests.4 In each country where the Communists have seized control, they have so denationalized its foreign policy as to make it a satellite and vassal of the Soviet Union and enforced a domestic policy in complete conformity with the Soviet pattern, tolerating no deviation in deference to any people's separate history, tradition or national interests. 77 3. Violent and undemocratic means are the calculated and indispensable methods to attain the Communist Party's goal. It would be incredible naivete to expect the American branch of this movement to forego the only methods by which a Communist Party has anywhere come into power. In not one of the countries it now dominates was the Communist Party chosen by a free or contestible election; in not one can it be evicted by any election. The international police state has crept over Eastern Europe by deception, coercion, coup d'etat, terrorism and assassination. Not only has it overpowered its critics and opponents; it has usually liquidated them. The American Communist Party has copied the organizational structure and its leaders have been schooled in the same technique and from the same tutors. 78 The American Communists have imported the totalitarian organization's disciplines and techniques, notwithstanding the fact that this country offers them and other discontented elements a way to peaceful revolution by ballot.5 If they can persuade enough citizens, they may not only name new officials and inaugurate new policies, but, by amendment of the Constitution, they can abolish the Bill of Rights and set up an absolute government by legal methods. They are given liberties of speech, press and assembly to enable them to present to the people their proposals and propaganda for peaceful and lawful changes, however extreme. But instead of resting their case upon persuasion and any appeal inherent in their ideas and principles, the Communist Party adopts the techniques of a secret cabal—false names, forged passports, code messages, clandestine meetings. To these it adds occasional terroristic and threatening methods, such as picketing courts and juries, political strikes and sabotage. 79 This cabalism and terrorism is understandable in the light of what they want to accomplish and what they have to overcome. The Communist program does not presently, nor in foreseeable future elections, commend itself to enough American voters to be a substantial political force. Unless the Communist Party can obtain some powerful leverage on the population, it is doomed to remain a negligible factor in the United States. Hence, conspiracy, violence, intimidation and the coup d'etat are all that keep hope alive in the communist breast. 80 4. The Communist Party has sought to gain this leverage and hold on the American population by acquiring control of the labor movement. All political parties have wooed labor and its leaders. But what other parties seek is principally the vote of labor. The Communist Party, on the other hand, is not primarily interested in labor's vote, for it does not expect to win by votes. It strives for control of labor's coercive power—the strike, the sit-down, the slowdown, sabotage, or other means of producing industrial paralysis. Congress has legalized the strike as labor's weapon for improving its own lot. But where Communists have labor control, the strike can be and sometimes is perverted to a party weapon. In 1940 and 1941, undisclosed Communists used their labor offices to sabotage this Nation's effort to rebuild its own defenses. Disguised as leaders of free American labor, they were in truth secret partisans of Stalin, who, in partnership with Hitler, was overrunning Europe, sending honest labor leaders to concentration camps, and reducing labor to slavery in every land either of them was able to occupy. No other important political party in our history has attempted to use the strike to nullify a foreign or a domestic policy adopted by those chosen under our representative system. 81 This labor leverage, however, usually can be obtained only by concealing the Communist tie from the union membership. Whatever grievances American workmen may have with American employers, they are too intelligent and informed to seek a remedy through a Communist Party which defends Soviet conscription of labor, forced labor camps and the police state. Hence the resort to concealment, and hence the resentment of laws to compel disclosure of Communist Party ties. The membership is not likely to entrust its bargaining power, its records, and its treasury to such hands. When it does, the union finds itself a more or less helpless captive of the Communist Party. Its officers cease to be interested in correcting grievances but seek to worsen and exploit them; they care less for winning strikes than that they be long, bitter and disruptive. They always follow the Communist Party line, without even knowing its source or its objectives. The most promising course of the Communist Party has been the undercover capture of the coercive power of strategic labor unions as a leverage to magnify its power over the American people. 82 5. Every member of the Communist Party is an agent to execute the Communist program. What constitutes a party? Major political parties in the United States have never been closely knit or secret organizations. Any one who usually votes the party ticket is reckoned a member, although he has not applied for or been admitted to membership, pays no dues has taken no pledge, and is free to vote, speak and act as he wills. Followers are held together by rather casual acceptance of general principles, the influence of leaders, and sometimes by the cohesive power of patronage. Membership in the party carries with it little assurance that the member understands or believes in its principles and none at all that he will take orders from its leaders. One may quarrel with the party and bolt its candidates and return again as much a member as those who were regular. And it is often a source of grief to those who have labored long in the vineyard that late arrivals are taken into the party councils from other parties without scrutiny. Of course, when party organization is of this character, there is little ground for inference that all members are committed to party plans or that they are agents for their execution. 83 Membership in the Communist Party is totally different. The Party is a secret conclave. Members are admitted only upon acceptance as reliable and after indoctrination in its policies, to which the member is fully committed. They are provided with cards or credentials, usually issued under false names so that the identification can only be made by officers of the Party who hold the code. Moreover, each pledges unconditional obedience to party authority. Adherents are known by secret or code names. They constitute 'cells' in the factory, the office, the political society, or the labor union. For any deviation from the party line they are purged and excluded. 84 Inferences from membership in such an organization are justifiably different from those to be drawn from membership in the usual type of political party. Individuals who assume such obligations are chargeable, on ordinary conspiracy principles, with responsibility for and participation in all that makes up the Party's program. The conspiracy principle has traditionally been employed to protect society against all 'ganging up' or concerted action in violation of its laws. No term passes that this Court does not sustain convictions based on that doctrine for violations of the antitrust laws or other statutes.6 However, there has recently entered the dialectic of politics a cliche used to condemn application of the conspiracy principle to Communists. 'Guilt by association' is an epithet frequently used and little explained, except that it is generally accompanied by another slogan, 'guilt is personal.' Of course it is; but personal guilt may be incurred by joining a conspiracy. That act of association makes one responsible for the acts of others committed in pursuance of the association. It is wholly a question of the sufficiency of evidence of association to imply conspiracy. There is certainly sufficient evidence that all members owe allegiance to every detail of the Communist Party program and have assumed a duty actively to help execute it, so that Congress could, on familiar conspiracy principles, charge each member with responsibility for the goals and means of the Party. 85 Such then is the background which Congress could reasonably find as a basis for exerting its constitutional powers, and which the judiciary cannot disregard in testing them. On this hypothesis we may revert to consideration of the contention of unconstitutionality of this oath insofar as it requires disclosure of Communist Party membership or affiliation. II. 86 I cannot believe that Congress has less power to protect a labor union from Communist Party domination than it has from employer domination. This Court has uncompromisingly upheld power of Congress to disestablish labor unions where they are company-dominated and to eradicate employer influence, even when exerted only through spoken or written words which any person not the employer would be free to utter.7 87 Congress has conferred upon labor unions important rights and powers in matters that affect industry, transport, communications, and commerce. And Congress has not now denied any union full self-government nor prohibited any union from choosing Communist officers. It seeks to protect the union from doing so unknowingly. And if members deliberately choose to put the union in the hands of Communist officers, Congress withdraws the privileges it has conferred on the assumption that they will be devoted to the welfare of their members. It would be strange indeed if it were constitutionally powerless to protect these delegated functions from abuse and misappropriation to the service of the Communist Party and the Soviet Union. Our Constitution is not a covenant of nonresistance toward organized efforts at disruption and betrayal, either of labor or of the country. 88 Counsel stress that this is a civil-rights or a free-speech or a free-press case. But it is important to note what this Act does not do. The Act does not suppress or outlaw the Communist Party, nor prohibit it or its members from engaging in any aboveboard activity normal in party struggles under our political system. It may continue to nominate candidates, hold meetings, conduct campaigns and issue propaganda, just as other parties may. No individual is forbidden to be or to become a philosophical Communist or a full-fledged member of the Party. No one is penalized for writing or speaking in favor of the Party or its philosophy. Also, the Act does not require or forbid anything whatever to any person merely because he is a member of, or is affiliated with, the Communist Party. It applies only to one who becomes an officer of a labor union. 89 I am aware that the oath is resented by many labor leaders of unquestioned loyalty and above suspicion of Communist connections, indeed by some who have themselves taken bold and difficult steps to rid the labor movement of Communists. I suppose no one likes to be compelled to exonerate himself from connections he has never acquired. I have sometimes wondered why I must file papers showing I did not steal my car before I can get a license for it. But experience shows there are thieves among automobile drivers, and that there are Communists among labor leaders. The public welfare, in identifying both, outweighs any affront to individual dignity. 90 In weighing claims that any particular activity is above the reach of law, we have a high responsibility to do so in the light of present-day actualities, not nostalgic idealizations valid for a simpler age. Our own world, organized for liberty, has been forced into deadly competition with another world, organized for power. We are faced with a lawless and ruthless effort to infiltrate and disintegrate our society. In cases involving efforts of Congress to deal with this struggle we are clearly called upon to apply the longstanding rule that an appointive Judiciary should strike down no act produced by the democratic processes of our representative system unless unconstitutionality is clear and certain. 91 I conclude that we cannot deny Congress power to take these measures under the Commerce Clause to require labor union officers to disclose their membership in or affiliation with the Communist Party. III. 92 Congress has, however, required an additional disclaimer, which in my view does encounter serious constitutional objections. A union officer must also swear that 'he does not believe in * * * the overthrow of the United States Government by force or by any illegal or unconstitutional methods.'8 93 If Congress has power to condition any right or privilege of an American citizen9 upon disclosure and disavowal of belief on any subject, it is obviously this one. But the serious issue is whether Congress has power to proscribe any opinion or belief which has not manifested itself in any overt act. While the forepart of the oath requires disclosure and disavowal of relationships which depend on overt acts of membership or affiliation, the afterpart demands revelation and denial of mere beliefs or opinions, even though they may never have matured into any act whatever or even been given utterance. In fact, the oath requires one to form and express a conviction on an abstract proposition which many good citizens, if they have thought of it at all, have considered too academic and remote to bother about. 94 That this difference is decisive on the question of power becomes unmistakable when we consider measures of enforcement. The only sanction prescribed, and probably the only one possible in dealing with a false affidavit, is punishment for perjury. If one is accused of falsely stating that he was not a member of, or affiliated with, the Communist Party, his conviction would depend upon proof of visible and knowable overt acts or courses of conduct sufficient to establish that relationship. But if one is accused of falsely swearing that he did not believe something that he really did believe, the trial must revolve around the conjecture as to whether he candidly exposed his state of mind. 95 The law sometimes does inquire as to mental state, but only so far as I recall when it is incidental to, and determines the quality of, some overt act in question. From its circumstances, courts sometimes must decide whether an act was committed intentionally or whether its results were intended, or whether the action taken was in malice, or after deliberation, or with knowledge of certain facts. But in such cases the law pries into the mind only to determine the nature and culpability of an act, as a mitigating or aggravating circumstance, and I know of no situation in which a citizen may incur civil or criminal liability or disability because a court infers an evil mental state where no act at all has occurred.10 Our trial processes are clumsy and unsatisfying for inferring cogitations which are incidental to actions, but they do not even pretend to ascertain the thought that has had no outward manifestation. Attempts of the courts to fathom modern political meditations of an accused would be as futile and mischievous as the efforts in the infamous heresy trials of old to fathom religious beliefs. 96 Our Constitution explicitly precludes punishment of the malignant mental state alone as treason, most serious of all political crimes, of which the mental state of adherence to the enemy is an essential part. It requires a duly witnessed overt act of aid and comfort to the enemy. Cramer v. United States, 325 U.S. 1, 65 S.Ct. 918, 89 L.Ed. 1441. It is true that in England of olden times men were tried for treason for mental indiscretions such as imagining the death of the king. But our Constitution was intended to end such prosecutions. Only in the darkest periods of human history has any Western government concerned itself with mere belief, however eccentric or mischievous, when it has not matured into overt action; and if that practice survives anywhere, it is in the Communist countries whose philosophies we loathe. 97 How far we must revert toward these discredited systems if we are to sustain this oath is made vivid by the Court's reasoning that the Act applies only to those 'whose beliefs strongly indicate a will to engage in political strikes * * *.' Since Congress has never outlawed the political strike itself, the Court must be holding that Congress may root out mere ideas which, even if acted upon, would not result in crime. It is a strange paradox if one may be forbidden to have an idea in mind that he is free to put into execution. But apart from this, efforts to weed erroneous beliefs from the minds of men have always been supported by the argument which the Court invokes today, that beliefs are springs to action, that evil thoughts tend to become forbidden deeds. Probably so. But if power to forbid acts includes power to forbid contemplating them, then the power of government over beliefs is as unlimited as its power over conduct and the way is open to force disclosure of attitudes on all manner of social, economic, moral and political issues. 98 These suggestions may be discounted as fanciful and farfetched. But we must not forget that in our country are evangelists and zealots of many different political, economic and religious persuasions whose fanatical conviction is that all thought is divinely classified into two kinds—that which is their own and that which is false and dangerous. Communists are not the only faction which would put us all in mental strait jackets. Indeed all ideological struggles, religious or political, are primarily battles for dominance over the minds of people. It is not to be supposed that the age-old readiness to try to convert minds by pressure or suppression, instead of reason and persuasion, is extinct. Our protection against all kinds of fanatics and extremists, none of whom can be trusted with unlimited power over others, lies not in their forbearance but in the limitations of our Constitution. 99 It happens that the belief in overthrow of representative government by force and violence which Congress conditionally proscribes is one that I agree is erroneous. But 'if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.' Holmes, J., dissenting in United States v. Schwimmer, 279 U.S. 644, 654—655, 49 S.Ct. 448, 451, 73 L.Ed. 889. Moreover, in judging the power to deny a privilege to think otherwise, we cannot ignore the fact that our own Government originated in revolution and is legitimate only if overthrow by force may sometimes be justified. That circumstances sometimes justify it is not Communist doctrine but an old American belief.11 100 The men who led the struggle forcibly to overthrow lawfully constituted British authority found moral support by asserting a natural law under which their revolution was justified, and they broadly proclaimed these beliefs in the document basic to our freedom. Such sentiments have also been given ardent and rather extravagant expression by Americans of undoubted patriotism.12 Most of these utterances were directed against a tyranny which left no way to change by suffrage. It seems to me a perversion of their meaning to quote them, as the Communists often do, to sanction violent attacks upon a representative government which does afford such means. But while I think Congress may make it a crime to take one overt step to use or to incite violence or force against our Government, I do not see how in the light of our history, a mere belief that one has a natural right under some circumstances to do so can subject an American citizen to prejudice any more than possession of any other erroneous belief. Can we say that men of our time must not even think about the propositions on which our own Revolution was justified? Or may they think, provided they reach only one conclusion—and that the opposite of Mr. Jefferson's? 101 While the Governments, State and Federal, have expansive powers to curtail action, and some small powers to curtail speech or writing, I think neither has any power, on any pretext, directly or indirectly to attempt foreclosure of any line of thought. Our forefathers found the evils of free thinking more to be endured than the evils of inquest or suppression. They gave the status of almost absolute individual rights to the outward means of expressing belief. I cannot believe that they left open a way for legislation to embarrass or impede the mere intellectual processes by which those expressions of belief are examined and formulated. This is not only because individual thinking presents no danger to society, but because thoughtful, bold and independent minds are essential to wise and considered self-government. 102 Progress generally begins in skepticism about accepted truths. Intellectual freedom means the right to re-examine much that has been long taken for granted. A free man must be a reasoning man, and he must dare to doubt what a legislative or electoral majority may most passionately assert. The danger that citizens will think wrongly is serious, but less dangerous than atrophy from not thinking at all. Our Constitution relies on our electorate's complete ideological freedom to nourish independent and responsible intelligence and preserve our democracy from that submissiveness, timidity and herd-mindedness of the masses which would foster a tyranny of mediocrity. The priceless heritage of our society is the unrestricted constitutional right of each member to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored. 103 The idea that a Constitution should protect individual nonconformity is essentially American and is the last thing in the world that Communists will tolerate. Nothing exceeds the bitterness of their demands for freedom for themselves in this country except the bitterness of their intolerance of freedom for others where they are in power.13 An exaction of some profession of belief or nonbelief is precisely what the Communists would enact—each individual must adopt the ideas that are common to the ruling group. Their whole philosophy is to minimize man as an individual and to increase the power of man acting in the mass. If any single characteristic distinguishes our democracy from Communism it is our recognition of the individual as a personality rather than as a soulless part in the jigsaw puzzle that is the collectivist state. 104 I adhere to views I have heretofore expressed, whether the Court agreed, West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674, or disagreed, see dissenting opinion in United States v. Ballard, 322 U.S. 78, 92, 64 S.Ct. 882, 889, 88 L.Ed. 1148, that our Constitution excludes both general and local governments from the realm of opinions and ideas, beliefs and doubts, heresy and orthodoxy, political, religious or scientific. The right to speak out, or to publish, also is protected when it does not clearly and presently threaten some injury to society which the Government has a right to protect. Separate opinion, Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430. But I have protested the degradation of these constitutional liberties to immunize and approve mob movements, whether those mobs be religious or political, radical or conservative, liberal or illiberal, Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 882, 87 L.Ed. 1324, 146 A.L.R. 81; Terminiello v. Chicago, 337 U.S. 1, 13, 69 S.Ct. 894, 899, or to authorize pressure groups to use amplifying devices to drown out the natural voice and destroy the peace of other individuals. Saia v. People of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448. And I have pointed out that men cannot enjoy their right to personal freedom if fanatical masses, whatever their mission, can strangle individual thoughts and invade personal privacy. Martin v. Struthers, 319 U.S. 141, dissent at page 166, 63 S.Ct. 862, at page 882, 87 L.Ed. 1313. A catalogue of rights was placed in our Constitution, in my view, to protect the individual in his individuality, and neither statutes which put those rights at the mercy of officials nor judicial decisions which put them at the mercy of the mob are consistent with its text or its spirit. 105 I think that under our system, it is time enough for the law to lay hold of the citizen when he acts illegally, or in some rare circumstances when his thoughts are given illegal utterance. I think we must let his mind alone.14 IV. 106 The task of this Court to maintain a balance between liberty and authority is never done, because new conditions today upset the equilibriums of yesterday. The seesaw between freedom and power makes up most of the history of governments, which, as Bryce points out, on a long view consists of repeating a painful cycle from anarchy to tyranny and back again. The Court's day-to-day task is to reject as false, claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend existence of our society, and to reject as false, claims in the name of security which would undermine our freedoms and open the way to oppression. These are the competing considerations involved in judging any measures which government may take to suppress or disadvantage its opponents and critics. 107 I conclude that today's task can only be discharged by holding that all parts of this oath which require disclosure of overt acts of affiliation or membership in the Communist Party are within the competence of Congress to enact and that any parts of it that call for a disclosure of belief unconnected with any overt act are beyond its power.15 108 Mr. Justice BLACK, dissenting. 109 We have said that 'Freedom to think is absolute of its own nature; the most tyrannical government is powerless to control the inward workings of the mind.'1 But people can be, and in less democratic countries have been, made to suffer for their admitted or conjectured thoughts. Blackstone recalls that Dionysius is 'recorded to have executed a subject barely for dreaming that he had killed him; which was held sufficient proof that he had thought thereof in his waking hours.'2 Such a result, while too barbaric to be tolerated in our nation, is not illogical if a government can tamper in the realm of thought and penalize 'belief' on the ground that it might lead to illegal conduct. Individual freedom and governmental thought-probing cannot live together. As the Court admits even today, under the First Amendment 'Beliefs are inviolate.' 110 Today's decision rejects that fundamental principle. The Court admits, as it must, that the 'proscriptions' of § 9(h) of the National Labor Relations Act as amended by the Taft-Hartley Act rest on 'beliefs and political affiliations,' and that 'Congress has undeniably discouraged the lawful exercise of political freedoms' which are 'protected by the First Amendment.' These inescapable facts should compel a holding that § 9(h) conflicts with the First Amendment. 111 Crucial to the Court's contrary holding is the premise that congressional power to regulate trade and traffic includes power to proscribe 'beliefs and political affiliations.' No case cited by the Court provides the least vestige of support for thus holding that the Commerce Clause restricts the right to think. On the contrary, the First Amendment was added after adoption of the Constitution for the express purpose of barring Congress from using previously granted powers to abridge belief or its expression. Freedom to think is inevitably abridged when beliefs are penalized by imposition of civil disabilities. 112 Since § 9(h) was passed to exclude certain beliefs from one arena of the national economy, it was quite natural to utilize the test oath as a weapon. History attests the efficacy of that instrument for inflicting penalties and disabilities on obnoxious minorities. It was one of the major devices used against the Huguenots in France, and against 'heretics' during the Spanish Inquisition. It helped English rulers identify and outlaw Catholics, Quakers, Baptists, and Congregationalists—groups considered dangerous for political as well as religious reasons.3 And wherever the test oath was in vogue, spies and informers found rewards far more tempting than truth.4 Painful awareness of the evils of thought espionage made such oaths 'an abomination to the founders of this nation,' In re Summers, 325 U.S. 561, 576, 65 S.Ct. 1307, 1315, 89 L.Ed. 1795, dissenting opinion. Whether religious, political, or both, test oaths are implacable foes of free thought. By approving their imposition, this Court has injected compromise into a field where the First Amendment forbids compromise. 113 The Court assures us that today's encroachment on liberty is just a small one, that this particular statutory provision 'touches only a relative, a handful of persons, leaving the great majority of persons of the identified affiliations and beliefs completely free from restraint.' But not the least of the virtues of the First Amendment is its protection of each member of the smallest and most unorthodox minority. Centuries of experience testify that laws aimed at one political or religious group, however rational these laws may be in their beginnings, generate hatreds and prejudices which rapidly spread beyond control. Too often it is fear which inspires such passions, and nothing is more reckless or contagious. In the resulting hysteria, popular indignation tars with the same brush all those who have ever been associated with any member of the group under attack or who hold a view which, though supported by revered Americans as essential to democracy, has been adopted by that group for its own purposes. 114 Under such circumstances, restrictions imposed on proscribed groups are seldom static,5 even though the rate of expansion may not move in geometric progression from discrimination to arm-band to ghetto and worse. Thus I cannot regard the Court's holding as one which merely bars Communists from holding union office and nothing more. For its reasoning would apply just as forcibly to statutes barring Communists and their suspected sympathizers from election to political office, mere membership in unions, and in fact from getting or holding any jobs whereby they could earn a living. 115 The Court finds comfort in its assurance that we need not fear too much legislative restriction of political belief or association 'while this Court sits.' That expression, while felicitous, has no validity in this particular constitutional field. For it springs from the assumption that individual mental freedom can be constitutionally abridged whenever any majority of this Court finds a satisfactory legislative reason. Never before has this Court held that the Government could for any reason attaint persons for their political beliefs or affiliations. It does so today. 116 Today the 'political affiliation' happens to be the Communist Party: testimony of an ex-Communist that some Communist union officers had called 'political strikes' is held sufficient to uphold a law coercing union members not to elect any Communist as an officer. Under this reasoning, affiliations with other political parties could be proscribed just as validly. Of course there is no practical possibility that either major political party would turn this weapon on the other, even though members of one party were accused of 'political lockouts' a few years ago and members of the other are now charged with fostering a 'welfare state' alien to our system. But with minor parties the possibility is not wholly fanciful. One, for instance, advocates socialism;6 another allegedly follows the Communist 'line'; still another is repeatedly charged with a desire and purpose to deprive Negroes of equal job opportunities. Under today's opinion Congress could validly bar all members of these parties from officership in unions or industrial corporations; the only showing required would be testimony that some members in such positions had, by attempts to further their party's purposes, unjustifiably fostered industrial strife which hampered interstate commerce. 117 It is indicated, although the opinion is not thus limited and is based on threats to commerce rather than to national security, that members of the Communist Party or its 'affiliates' can be individually attainted without danger to others because there is some evidence that as a group they act in obedience to the commands of a foreign power. This was the precise reason given in Sixteenth-Century England for attainting all Catholics unless they subscribed to test oaths wholly incompatible with their religion.7 Yet in the hour of crisis, an overwhelming majority of the English Catholics thus persecuted rallied loyally to defend their homeland against Spain and its Catholic troops.8 And in our own country Jefferson and his followers were earnestly accused of subversive allgiance to France.9 At the time, imposition of civil disability on all members of his political party must have seemed at least as desirable as does § 9(h) today. For at stake, so many believed, was the survival of a newly-founded nation, not merely a few potential interruptions of commerce by strikes 'political' rather than economic in origin. 118 These experiences underline the wisdom of the basic constitutional precept that penalties should be imposed only for a person's own conduct, not for his beliefs or for the conduct of others with whom he may associate. Guilt should not be imputed solely from association or affiliation with political parties or any other organization, however much we abhor the ideas which they advocate. Schneiderman v. United States, 320 U.S. 118, 136—139, 63 S.Ct. 1333, 1342, 1343, 87 L.Ed. 1796.10 Like anyone else, individual Communists who commit overt acts in violation of valid laws can and should be punished. But the postulate of the First Amendment is that our free institutions can be maintained without proscribing or penalizing political belief, speech, press, assembly, or party affiliation.11 This is a far bolder philosophy than despotic rulers can afford to follow. It is the heart of the system on which our freedom depends. 119 Fears of alien ideologies have frequently agitated the nation and inspired legislation aimed at suppressing advocacy of those ideologies.12 At such times the fog of public excitement obscures the ancient landmarks set up in our Bill of Rights. Yet then, of all times, should this Court adhere most closely to the course they mark. This was done in De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278, where the Court struck down a state statute making it a crime to participate in a meeting conducted by Communists. It had been stipulated that the Communist Party advocated violent overthrow of the Government. Speaking through Chief Justice Hughes, a unanimous Court calmly announced time-honored principles that should govern this Court today: 'The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutinal government.' 1 61 Stat. 136, 146, 29 U.S.C. (Supp. III), § 141, § 159(h), 29 U.S.C.A. § 141, § 159(h), amending the National Labor Relations Act of 1935, 49 Stat. 449, 29 U.S.C. § 151 et seq., 29 U.S.C.A. § 151 et seq. 2 29 U.S.C. (Supp. III) § 151, 29 U.S.C.A. § 151. 3 A detailed description of the aims and tactics of the Socialist Workers Party, for example, may be found in the transcript of record in Dunne v. United States, 1943, 320 U.S. 790, 64 S.Ct. 205, 88 L.Ed. 476, certiorari denied. We cite the record as evidence only and express no opinion whatever on the merits of the case. See record, pp. 267—271, 273—274, 330—332, 439, 475, 491—492, 495—496, 535, 606, 683—688, 693, 737, 804—805. 4 See hearings before House Committee on Education and Labor on Bills to Amend and Repeal the National Labor Relations Act, 80th Cong., 1st Sess. 3611—3615. 5 The First Amendment provides: 'Congress shall make no law * * * abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.' 6 For example, a union whose officers do not file an affidavit in compliance with § 9(h) may not enter into a union shop contract with an employer, as it was free to do before passage of the National Labor Relations Act. A noncomplying union is excluded from the ballot in representation proceedings. If another union is certified, the noncomplying union incurs the disabilities of §§ 8(b)(4)(C) and 303(a)(3), as it would not have done prior to 1935. Similarly, certain strikes and boycotts are prohibited to noncomplying unions by §§ 8(b)(4)(B), 8(b)(4)(C), and 8(b)(4)(D) of the Act. 7 See also Luria v. United States, 1913, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101; Mackenzie v. Hare, 1915, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, Ann.Cas.1916E, 645; Lapides v. Clark, 1949, 85 U.S.App.D.C. 101, 176 F.2d 619. 8 Sections 30 and 32 of the Banking Act of 1933, 48 Stat. 162, 193, 194, as amended, 49 Stat. 684, 709, 12 U.S.C. §§ 77, 78, 12 U.S.C.A. §§ 77, 78. 9 See Schenck v. United States, 1919, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Frohwerk v. United States, 1919, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561; Debs v. United States, 1919, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566; Abrams v. United States, 1919, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173; Schaefer v. United States, 1920, 251 U.S. 466, 40 S.Ct. 259, 64 L.Ed. 360; Pierce v. United States, 1920, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542; Gitlow v. New York, 1925, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. 10 '* * * no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.' Mr. Justice Brandeis, concurring in Whitney v. California, 1927, 274 U.S. 357, 377, 47 S.Ct. 641, 649, 71 L.Ed. 1095. 11 See Mr. Justice Holmes, dissenting in Abrams v. United States, 1919, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173. 12 Bridges v. California, 1941, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346; Pennekamp v. Florida, 1946, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; Craig v. Harney, 1947, 331 U.S. 367, 67S.Ct. 1249, 91 L.Ed. 1546. 13 Mr. Justice Jackson, concurring in Thomas v. Collins, 1945, 323 U.S. 516, 547, 65 S.Ct. 315, 330, 89 L.Ed. 430. 14 Schneider v. State, 1939, 308 U.S. 147, 161, 60 S.Ct. 146, 151. 15 Steele v. Louisville & N.R. Co., 1944, 323 U.S. 192, 202, 65 S.Ct. 226, 232, 89 L.Ed. 173. 16 Cf. cases cited in note 9, supra, and Whitney v. California, 1927, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; Fiske v. Kansas, 1927, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108; Stromberg v. California, 1931, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484; Near v. Minnesota, 1931, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; De Jonge v. Oregon, 1937, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Herndon v. Lowry, 1937, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066. 17 Cf. Grosjean v. American Press Co., 1936, 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; Thomas v. Collins, 1945, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430. 18 In Cox v. New Hampshire, 1941, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396, Mr. Chief Justice Hughes, speaking for an unanimous Court, stated the considerations thought controlling in a number of these cases: 'In Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, the ordinance prohibited the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the city manager, thus striking at the very foundation of the freedom of the press by subjecting it to license and censorship. In Hague v. Committee for Industrial Organization, supra (307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423) the ordinance dealt with the exercise of the right of assembly for the purpose of communicating views; it did not make comfort or convenience in the use of streets the standard of official action but enabled the local official absolutely to refuse a permit on his mere opinion that such refusal would prevent 'tiots, disturbances or disorderly assemblage'. The ordinance thus created, as the record disclosed, an instrument of arbitrary suppression of opinions on public questions. The court said that 'uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right'. In Schneider v. State, 308 U.S. 147, at page 163, 60 S.Ct. 146, at page 151, 84 L.Ed. 155, the ordinance was directed at canvassing and banned unlicensed communication of any views, or the advocacy of any cause, from door to door, subject only to the power of a police officer to determine as a censor what literature might be distributed and who might distribute it. In Cantwell v. Connecticut, 310 U.S. 296, at page 305, 60 S.Ct. 900, at page 904, 84 L.Ed. 1213, 128 A.L.R. 1352, the statute dealt with the solicitation of funds for religious causes and authorized an official to determine whether the cause was a religious one and to refuse a permit if he determined it was not, thus establishing a censorship of religion.' 312 U.S. at pages 577—578, 61 S.Ct. at page 766. 19 In the Barnette case, the Court was careful to point out that the sole interest of the State was in securing uniformity of belief by compelling utterance of a prescribed pledge, and that refusal to comply with the State order resulted in punishment for both parent and child: 'The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine whether the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual. The State asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child. The latter stand on a right of self-determination in matters that touch individual opinion and personal attitude.' 319 U.S. at pages 630 631, 63 S.Ct. at page 1181. 20 Panhandle Oil Co. v. State of Mississippi ex rel. Knox, 1928, 277 U.S. 218, 223, 48 S.Ct. 451, 453, 72 L.Ed. 857, 56 A.L.R. 583, dissenting opinion. The words of Mr. Justice Holmes, while written concerning a very different problem, are well worth rereading in this connection: 'It seems to me that the State Court was right. I should say plainly right, but for the effect of certain dicta of Chief Justice Marshall which culminated in or rather were founded upon his often quoted proposition that the power to tax is the power to destroy. In those days it was not recognized as it is today that most of the distinctions of the law are distinctions of degree. If the States had any power it was assumed that they had all power, and that the necessary alternative was to deny it altogether. But this Court which so often has defeated the attempt to tax in certain ways can defeat an attempt to discriminate or otherwise go too far without wholly abolishing the power to tax. The power to tax is not the power to destroy while this Court sits. The power to fix rates is the power to destroy if unlimited, but this Court while it endeavors to prevent confiscation does not prevent the fixing of rates. A tax is not an unconstitutional regulation in every case where an absolute prohibition of sales would be one. People of State of New York ex rel. Hatch v. Reardon, 204 U.S. 152, 162, 27 S.Ct. 188, (191), 51 L.Ed. 415, (9 Ann.Cas. 736.)' 21 While it is true that state of mind is ordinarily relevant only when it is incidental to, and determines the quality of, some overt act, but cf. Hamilton v. Regents of University of California, 1934, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343; In re Summers, 1945, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795, the fact must not be overlooked that mental state in such cases is a distinct issue, 2 Wigmore, Evidence (3d ed.) §§ 244, 266, of which the 'overt act' may or may not be any proof. For example, the physical facts surrounding a death by shooting may be as consistent with a finding of accident as of murder. Wilfullness, malice and premeditation must therefore be proved by evidence wholly apart from the act of shooting. 22 23 Stat. 22, 5 U.S.C. § 16, 5 U.S.C.A. § 16. 1 Section 9(h) requires each officer of a union seeking to invoke the machinery of Labor Management Relations Act to submit an affidavit '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.' 61 Stat. 146, 29 U.S.C.Supp. III § 159(h), 29 U.S.C.A. § 159(h). The provisions of what is now 18 U.S.C. § 1001, 18 U.S.C.A. § 1001, formerly § 35(A) of the Criminal Code, are made applicable in respect to such affidavits. 2 As to the dubious scope of the term 'affiliated' in the statute, see Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103. 1 Of course, it is not for any member of this Court to express or to act upon any opinion he may have as to the wisdom, effectiveness or need of this legislation. Our 'inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it.' United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234. 2 It is unnecessary to set out a comprehensive compendium of the materials which Congress may or could have considered, or to review the voluminous evidence before its several Committees, much of which is already referred to in the Court's opinion. Most of this information would be of doubtful admissibility or credibility in a judicial proceeding. Its persuasiveness, validity and credibility for legislative purposes are for Congress, see n. 1, supra. I intimate no opinion as to its sufficiency for purposes of a criminal trial. An introduction to the literature on the subject may be found in: Cohen and Fuchs, Communism's Challenge and the Constitution, 34 Cornell L.Q. 182; Moore, The Communist Party of the U.S.A., 39 Am.Pol.Sci.Rev. 31; Timasheff, The Schneiderman Case—Its Political Aspects, 12 Ford.L.Rev. 209; Note, 32 Geo.Wash.L.Rev. 403, 411—418; Emerson & Helfeld, Loyalty Among Government Employees, 58 Yale L.J. 1, 61—64; Donovan & Jones, Program For a Democratic Counter Attack to Communist Penetration of Government Service, 58 Yale L.J. 1211, 1215—1222; and see Notes, 48 Col.L.Rev. 253; 96 U. of Pa.L.Rev. 381; 1 Stanford L.Rev. 85; 23 Notre Dame Law 577; 34 Va.L.Rev. 439, 450. See also Mills, The New Men of Power (1948) 186—200; Levenstein, Labor Today and Tomorrow (1945) 159—177; Teller, Management Functions Under Collective Bargaining (1947) 401—410; Smith, Spotlight On Labor Unions (1946) 40—43, 63—67, 79—82; Taft, Economics and Problems of Labor (1948) 499—501, 722; Saposs, Left Wing Unionism (1926) 48—65; Foster, From Bryan to Stalin (1937) 275—277; Gitlow, I Confess (1940) 334—395; The Communist in Labor Relations Today (Research Institute of America, New York, March 28, 1946); Baldwin, Union Administration and Civil Liberties, 248 Annals 54, 59; Labor Abroad, Dec. 1947, No. 5 (U.S. Dept. of Labor, Bureau of Labor Statistics): 3; Labor of Labor Statistics) 3; Labor Labor, Bureau of Labor Statistics) 1—3; Postwar Labor Movement in Italy, 68 Monthly Labor Review, (U.S. Dept. of Labor, Bureau of Labor Statistics) 49. For the story of American political parties see Binkley, American Political Parties (1945 2d Ed.); 2 Bryce, the American Commonwealth (2d Ed. rev. 1890); and on the Communist Party, in addition to materials above cited, Odegard and Helms, American Politics (1938) 795—797. 3 Such is the view of students of Western society, with outlook so opposed as Lord Balfour and Harold Laski. Balfour wrote: 'Our alternating Cabinets, though belonging to different parties, have never differed about the foundation of society, and it is evident that our whole political machinery presupposes a people so fundamentally at one that they can afford to bicker; and so sure of their own moderation that they are not dangerously disturbed by the never-ending din of political conflict. May it always be so.' Preface to the World's Classics edition of Bagshot's English Constitution, p. xxiii. Laski commented: 'In an interesting passage (citing the above) Lord Balfour has drawn attention to the fact that the success of the British Constitution in the Nineteenth Century—it is worth adding the general success of representative government was built upon an agreement between parties in the state upon fundamental principles. There was, that is, a kindred outlook upon large issues; and since fighting was confined to matters of comparative detail, men were prepared to let reason have its sway in the realm of conflict. For it is significant that in the one realm where depth of feeling was passionate—Irish home rule—events moved rapidly to the test of the sword; and the settlement made was effected by violence and not by reason.' Laski, Liberty in the Modern State, 238. If we substitute the Civil War for Irish home rule, these statements become as applicable to the United States as they are to England. 4 To compare attacks against Thomas Jefferson with attacks against the Communist leaders—as Communists generally do (e.g. Dennis, Let the People Know (1947) 13)—would be meaningful only if his character and motives were comparable to those of the Communist leaders. When we consider that Jefferson was the author of Virginia's Statute of Religious Liberty, the war Governor of Virginia, risked his life to sign the Declaration of Independence, was Secretary of State in President Washington's Cabinet and became President of the United States through the influence of Alexander Hamilton, it seems sacrilegious to liken Jefferson's motives in supporting certain phases of French policy with Communist allegiance to the Kremlin. 5 Changes as decisive as those wrought by most revolutions resulted from the election of Jefferson in 1800, Jackson in 1828, Lincoln in 1860, and Roosevelt in 1932. 6 I have taken pains to point out that the whole doctrine of conspiracy and its abuse presents a danger to the fair administration of justice. Concurring opinion, Krulewitch v. United States, 336 U.S. 440, 445, 69 S.Ct. 716, 719. 7 See cases collected in Thomas v. Collins, 323 U.S. 516, 548, 65 S.Ct. 315, 330, 89 L.Ed. 430. 8 The Act lays down other requirements for the oath which do not require extended discussion, as, for example, the clause 'is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force.' For reasons set forth in parts I and II, Congress would undoubtedly have power to require disclosure of membership in an organization which had the characteristics of the Communist Party or other characteristics of similar gravity. As drawn, this clause might, however, apply to membership in a mere philosophical or discussion group. 9 This part of the oath was obviously intended to disclose persons not members of or affiliated with the Communist Party but who were a part of the undertow of the Communist movement. It was probably suggested by the long-standing requirement of somewhat similar oaths in immigration and naturalization matters. There is, however, no analogy between what Congress may require of aliens as a condition of admission or of citizenship and what it may require of a citizen. 10 See Holmes, The Common Law, Lectures II, III and IV, pp. 65—68, 132, et seq. 11 Nothing is more pernicious than the idea that every radical measure is 'Communistic' or every liberal-minded person a 'Communist.' One of the tragedies of our time is the confusion between reform and Communish—a confusion to which both the friends and enemies of reform have contributed, the one by failing to take a clear stand against Communists and Communism and the other by characterizing even the most moderate suggestion of reform as 'Communistic' and its advocates as 'Communists.' Unquestioning idolatry of the status quo has never been an American characteristic. 12 A surprising catalogue of statements could be compiled. The following are selected from Mencken, A New Dictionary of Quotations, under the rubric 'Revolution': 'Whenever any government becomes destructive of these ends (life, liberty and the pursuit of happiness) it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.' Thomas Jefferson, The Declaration of Independence, July 4, 1776. 'The community hath an indubitable, inalienable, and indefeasible right to reform, alter or abolish government, in such manner as shall be by that community judged most conducive to the public weal.' The Pennsylvania Declaration of Rights, 1776. 'It is an observation of one of the profoundest inquirers into human affairs that a revolution of government is the strongest proof that can be given by a people of their virtue and good sense.' John Adams, Diary, 1786. 'What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.' Thomas Jefferson, Letter to W. S. Smith, Nov. 13, 1787. 'An oppressed people are authorized whenever they can to rise and break their fetters.' Henry Clay, Speech in the House of Representatives, March 4, 1818. 'Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better.' Abraham Lincoln, Speech in the House of Representatives, 1848. 'All men recognize the right of revolution: that is, the right to refuse allegiance to, and to resist, the government when its tyranny or its inefficiency are great and unendurable.' H. D. Thoreau, An Essay on Civil Disobedience, 1849. 'This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it.' Abraham Lincoln, Inaugural Address, March 4, 1861. 'Whenever the ends of Government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the People may, and of a right ought to reform the old, or establish a new government; the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish and destructive of the good and happiness of mankind.' Declaration of Rights of Maryland, 1867. 'The right of revolution is an inherent one. When people are oppressed by their government, it is a natural right they enjoy to relieve themselves of the oppression, if they are strong enough, either by withdrawal from it, or by overthrowing it and substituting a government more acceptable.' U.S. Grant, Personal Memoirs, I, 1885. Quotations of similar statements could be multiplied indefinitely. Of course, these quotations are out of their context and out of their times. And despite their abstract theories about revolt, it should also be noted that Adams, Jefferson, Lincoln and Grant were uncompromising in putting down any show of rebellion toward the Government they headed. The revolutionary origin of our own Government has inclined Americans to value revolution as a means to liberty and loosely to think that all revolutionists are liberals. The fact is, however, that violent revolutions are rare which do more i the long run than to overthrow one tyranny to make way for another. The cycle from revolt to reaction has taken less than a score of bloody years in the great revolutions. The Puritan Commonwealth under Cromwell led but to the Restoration; the French by revolution escaped from the reign of Louis XVI to the dictatorship of Napoleon; the Russians overthrew the Czar and won the dictatorship of Lenin and Stalin; the Germans deposed the Kaiser and fell victims of a dictatorship by Hitler. I am convinced that force and violence do not serve the cause of liberty as well as nonviolence. See Fischer, Gandi and Stalin, passim. But the sentiments I have quoted have strong appeal to the impetuous and are deeply imbedded in American tradition. 13 Prime Minister Atlee recently stated: 'I constantly get hypocritical resolutions protesting against alleged infringements of freedom in this country. I get protests because we keep out from places where secret work is carried on people who cannot be trusted. This from Communists who know that their fellows in Communist countries carry on a constant purge and ruthlessly remove from office anyone who shows the slightest sign of deviating from what their rulers consider to be orthodoxy. It is sickening hypocrisy.' London Times, Weekly Edition, July 6, 1949. 14 The Court appears to recognize and compound the constitutional weakness of this statute and, to save this part of the oath from unconstitutionality, declines to read the text 'very literally.' It renders the Act to call for disclaimer of belief in forcible overthrow only as an objective but not as a prophecy. And furthermore, one is allowed to believe in forcible overthrow, even as an objective, so long as the belief does not relate to the Government 'as it now exists.' I think we do not make an Act constitutional by making it vague but only compound its invalidity. Cf. Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. 15 This conclusion, if it prevailed, would require decision of the effect of partial invalidity on the whole and the applicability of the severability clause. As it does not prevail, discussion of the question would be academic. 1 Dissenting opinion in Jones v. Opelika, 316 U.S. 584, 618, 62 S.Ct. 1231, 1249, 86 L.Ed. 1691, 141 A.L.R. 514, adopted as the Court's opinion in 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290. See also Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128 A.L.R. 1352. 2 4 Blackstone, Commentaries 79 (6th ed. Dublin 1775). 3 The increasing restrictions and punishment imposed on these groups are shown by the following examples. In 1558 Parliment prescribed an oath, which no conscientious Catholic could take, for all judges, ecclesiastical ministers, those receiving pay from the Queen, and those taking university degrees; four years later the oath was extended to schoolmasters, lawyers, sheriffs, and court officers. In 1593 all Protestants were required to attend Anglican services and forbidden to hold nonconformist religious meetings. And Catholics convicted of failing to attend Anglican services regularly were restricted to within five miles of their dwellings. In 1609 such Catholics were barred even from serving as executors, guardians, physicians, or apothecaries, and their right to prosecute suits in court was practically abolished; it was also made treason to be converted or convert anyone else to Catholicism. Between 1661 and 1677, Parliament outlawed attendance at any non-Anglican religious services, and required those holding civil, military, or municipal office to subscribe to an oath which effectively barred Catholics and non-Anglican Protestants. Punishment for violations of these and the many similar statutes ranged from fines and imprisonment to exile and death. See, e.g., 1 Eliz. c. 1; 5 Eliz. c. 1; 35 Eliz. cc. 1, 2; 3 Jac. I cc. 4, 5; 7 Jac. I cc. 2, 6; 13 Car. II Stat. 2, c. 1; 13 & 14 Car. II cc. 1, 4, 33; 22 Car. II c. 1; 25 Car. II c. 2; 30 Car. II Stat. 2. As for the political motivations and objectives of these statutes, see, e.g., the declaration of purpose in 35 Eliz. c. 2, quoted in note 7 infra. 4 Under the Stuart monarchs in England it was standard practice to give an informer one-third of the fines collected from his victim. E.g., 3 Jac. I c. 5. And a few were sufficiently daring and unscrupulous to obtain the more satisfying reward of fame. A notorious example took place in England during the reign of Charles II: 'The political atmosphere was electric. * * * Thus it is not strange that when Titus Oates, an Anglican clergyman who had been reconciled the year before to Rome, came forward in August, 1678, to denounce a vast Jesuit conspiracy against the King's life and the Protestant religion, his tale of wild lies met with a degree of credence that later ages would perhaps have refused to it. * * * The Pope, he declared, had commanded, and the Jesuits undertaken, a conquest of the kingdom; * * * In all the arrangements he had been, he said, a trusted emissary * * *. Over a hundred conspirators, mostly Jesuits, were mentioned by name * * *. Oates was examined at the Council Board. The King caught him lying, but the extent and gravity of his charges demanded investigation; * * * In one important point Oates' story was confirmed. * * * There was no 'plot' in Oates' sense; but there was quite enough of plotting to cost men their heads under the English law of treason * * *.' 5 Cambridge Modern History, 220 221. 5 See note 3 supra. And see the comment on such legislation in II Hallam, The Constitutional History of England 473 (London, 1829): 'It is the natural consequence of restrictive laws to aggravate the disaffection which has served as their pretext; and thus to create a necessity for a legislature that will not retrace its steps, to pass still onward in the course of severity.' 6 Proscriptions based on affiliation with the Socialist Party are not unprecedented. In 1920 the New York Assembly, upon allegations that the party was disloyal, suspended five legislators elected on the Socialist ticket. The vigorous protests of a Bar Association committee headed by Charles Evans Hughes, later Chief Justice of this Court, were of no avail. See John Lord O'Brian, Loyalty Tests and Guilt by Association, 61 Harv.L.Rev. 592, 593. 7 35 Eliz. c. 2, for example, was aimed at 'sundry wicked and seditious Persons, who terming themselves Catholicks, and being indeed Spies and Intelligencers, * * * and hiding their most destable and devilish Purposes under a false Pretext of Religion and Conscience, do secretly wander and shift from Place to Place within this Realm, to corrupt and seduce her Majesty's Subjects, and to stir them to Sedition and Rebellion.' 8 As is evidenced by the statute quoted in note 7 supra, the test oaths, the drastic restrictions and the punishment imposed on Catholics were 'based on the assumption that all Catholics were politically hostile to the Queen, and were at one with Allen and the Jesuits in seeking her deposition and the conquest of the country by Spain. The patriotic action of the Catholics at home through the crisis of the Spanish Armada proved the weakness of this assumption. In the hour of peril the English Catholics placed loyalty to their Queen and country before all other considerations. * * * The injustice of imputing treachery to the whole Catholic population was proved beyond question.' 3 Cambridge Modern History 351. 9 Castigating Jefferson and his followers as 'jacobins,' a 'French faction' guilty of 'subversion,' Fisher Ames warned: '(T)he jacobins have at last made their own discipline perfect: they are trained, officered, regimented and formed to subordination, in a manner that our militia have never yet equalled. * * * (A)nd it is as certain as any future event can be, that they will take arms against the laws as soon as they dare. * * *' Ames, Laocoon, printed in Works of Fisher Ames 94, 101, 106 (Boston, 1809). 10 And see, e.g., John Lord O'Brian, Loyalty Tests and Guilt by Association, 61 Harv.L.Rev. 592. That article quotes the following from a Memorial submitted to the New York Assembly by a special committee of the Bar Association of the City of New York protesting the suspension of five Socialist legislators: 'it is of the essence of the institutions of liberty that it be recognized that guilt is personal and cannot be attributed to the holding of opinion or to mere intent in the absence of overt acts. * * *' O'Brian points out that this Memorial was 'largely written by' Charles Evans Hughes. Id. at 594. 11 'If there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand, undisturbed, as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it. I know, indeed, that some honest men fear that a republican government cannot be strong; that this Government is not strong enough. But would the honest patriot, in the full tide of successful experiment abandon a Government which has so far kept us free and firm, on the theoretic and visionary fear that this Government, the world's best hope, may by possibility want energy to preserve itself?' Thomas Jefferson, First Inaugural Address, March 4, 1801. This address, along with other writings on freedoms guaranteed by the First Amendment, is reprinted in Jones, Primer of Intellectual Freedom 142 (Harvard University Press, 1949). 12 For discussion of early American models, the Alien and Sedition Acts, see Bowers, Jefferson and Hamilton, 1925, c. XVI, 'Hysterics,' and c. XVII, 'The Reign of Terror'; 1 Morison, Life of Otis, c. VIII, 'A System of Terror.'

23

339 U.S. 497 70 S.Ct. 755 94 L.Ed. 1017 POWELL et al.v.UNITED STATES CARTRIDGE CO. AARON et al. v. FORD, BACON & DAVIS, Inc. CREEL et al. v. LONE STAR DEFENSE CORPORATION. Nos. 96, 79, 58. Argued and Submitted Dec. 8—9, 1949. Decided May 8, 1950. Mr. Thomas Bond, St. Louis, Mo., for petitioners R. M. Powell and others. Bessie Margolin, Washington, D.C., for the United States, as amicus curiae, by special leave of Court. Mr. June P. Wooten, Little Rock, Ark., for petitioners Julia Rhoda Aaron and others. Messrs. Pat Coon, Dallas, Tex., C. M. Kennedy, Texarkana, Tex., for petitioners Roy Creel and others. Mr. William L. Marbury, Baltimore, Md., for respondents. Mr. Robert H. McRoberts, St. Louis, Mo., for respondent U.S. Cartridge Co. Mr. Otto Atchley, Texarkana, Tex., for respondent Lone Star Defense Corporation. Mr. E. L. McHaney, Jr., Little Rock, Ark., for respondent Ford, Bacon & Davis, Inc. Mr. Justice BURTON delivered the opinion of the Court. 1 The question in each of these cases is whether the Fair Labor Standards Act of 1938, as amended,1 applies to a person employed, by a private contractor at a Government-owned munitions plant operated by the contractor under a cost-plus-a-fixed-fee contract made with the United States. We hold that the Act does apply but we do not reach the question of the validity of the individual claims based upon it. 2 This issue was argued here in Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct. 1031, 92 L.Ed. 1347. We, however, remanded that case and withheld decision of the issue, awaiting a more solid basis of findings. 334 U.S. at page 257, 68 S.Ct. at page 1034, 92 L.Ed. 1347. Each of the instant cases presents such a basis. 3 No. 96 (The Powell Case). 4 In December, 1940, the United States contracted with The United States Cartridge Company, respondent herein, as 'an independent contractor and in no wise an agent of the Government' on a cost-plus-a-fixed-fee basis to operate the Government's St. Louis Ordnance Plant in Missouri.2 The contract stated that it was authorized by the Act of July 2, 1940.3 It provided that the respondent would operate the Government's plant for the manufacture of certain types and questities of small arms ammunition, that the Government would reimburse the respondent for its expenditures in such operation and, in addition, pay the respondent a fixed fee based upon the types and quantities of ammunition it supplied. The title to the site, plant, equipment and, in general, to the raw material, work in progress and finished munitions was to be in the Government.4 Most of the materials were to be supplied by the Government. The contract provided expressly for the reimbursement of the respondent's expenses for labor. The respondent, in turn, agreed to supply practically all services incident to the setting up of an efficient operating force and to the operation of the plant until the required ammunition had been produced. The respondent was made responsible for storing the materials, supplies and finished ammunition and for loading the ammunition on cars or other carriers in accordance with the Government's instructions. The ammunition generally was shipped by common carrier on Government bills of lading to military destinations outside of Missouri. The Government reserved large rights of supervision, auditing and inspection to be exercised through its 'Contracting Officer.' The employees, including the petitioners, were to be hired, assigned, directed, supervised, paid and discharged by the respondent. The contract stated expressly that all persons engaged in the work 'shall be subject to the control and constitute employees of the Contractor * * *.' It quoted all of the 'representations and stipulations' relating to employment directed by the Walsh-Healey Act.5 Under it, the contracting officer (subject to a right of appeal) could require the respondent to dismiss any employee whom he deemed incompetent or whose retention 'is deemed' not to be in the public interest. The contract made no express reference to the Fair Labor Standards Act. However, in a booklet which was distributed by the respondent, each employee at the St. Louis Ordnance Plant was informed, among other things, that 'There will be eight hours in any working day, and forty hours will constitute a working week. * * * When production demands require a longer work day, or longer work week, the Company will pay the legal overtime rate as provided under the Walsh-Healey Act, and the Fair Labor Standards Act.' (Emphasis supplied.) 5 The 59 individual petitioners were employed in the safety department of the plant. They alleged that, under the Fair Labor Standards Act, they were entitled to overtime pay which they had not received. They sued in the United States District Court for the Eastern District of Missouri to recover that pay, plus liquidated damages and an attorney's fee. The respondent denied liability on many grounds, including those that the Fair Labor Standards Act did not apply to employees at the St. Louis Ordnance Plant and that, in any event, these petitioners were not entitled to any recovery under that Act. After trial, the District Court entered judgment in favor of the petitioners for the total sum of $246,251.44 (twice the amount of the overtime pay claimed), plus $24,625 as an attorney's fee and costs. The respondent moved for a new trial so that the Portal-to-Portal Act of 1947,6 which had been adopted five days before the District Court's judgment, might be applied to the issues. The motion was denied and the case was appealed. While the appeal was pending in the United States Court of Appeals for the Eighth Circuit, the decision of this Court in Kennedy v. Silas Mason Co., supra, was announced. The Court of Appeals thereupon heard a reargument of this case with special reference to the issues raised in the Silas Mason case. Sitting en banc, it reversed the District Court and held that the Fair Labor Standards Act did not apply to employment at the St. Louis Ordnance Plant. 8 Cir., 174 F.2d 718. All seven judges held that the Walsh-Healey Act applied to such employment to the exclusion of the Fair Labor Standards Act. Four of those judges also joined in an opinion, 174 F.2d page 726, stating that the Act of July 2, 1940, had given discretion to the Secretary of War to determine what overtime regulations should be applicable to Government-owned privately operated plants and that, through his adoption of the Walsh-Healey Act, he had rendered the Fair Labor Standards Act inapplicable under this contract. The Court of Appeals did not reach the merits of the individual claims of the petitioners under the Fair Labor Standards Act. We granted certiorari. 338 U.S. 810, 70 S.Ct. 57. 6 No. 79 (The Aaron Case). 7 This case presents substantially the same issue as that in the Powell case, but it relates to employees at the Arkansas Ordnance Plant. The issue arises on a summary judgment of the United States District Court for the Eastern District of Arkansas in favor of the respondent, rendered on pleadings, supporting affidavits, admissions of fact and answers to interrogatories. The plant was operated by the respondent under a cost-plus-a-fixed-fee contract entered into with the United States in July, 1941, and generally comparable, for present purposes, with that in the Powell case. The petitioners, 1,278 in number, were handlers, carriers and processors of explosives, who claimed additional compensation under the Fair Labor Standards Act for approximately 35 minutes before, and 30 minutes after, their scheduled work in the plant. The respondent answered and moved for summary judgment on three grounds—that the petitioners were not engaged in the kind of work that is covered by the Fair Labor Standards Act, that they are not within the coverage of the Act because they were employees of the United States, and that, by virtue of the Portal-to-Portal Act of 1947, they are not entitled to recover in any event. 8 In rendering judgment for the respondent, the District Court adopted its opinion in Barksdale v. Ford, Bacon & Davis, 70 F.Supp. 690. Without passing on other contentions, it there held that the Fair Labor Standards Act was not applicable because, in processing and assembling munitions under like conditions, the respondent had not been engaged 'in the production of goods for commerce' within the meaning of that Act. The Court of Appeals for the Eighth Circuit affirmed, 174 F.2d 730, on authority of its decision in the Powell 9 case, supra. We granted certiorari. 337 U.S. 955, 69 S.Ct. 1533. No. 58 (The Creel Case). DP This case, from the Fifth Circuit, presents substantially the same issue as do the Powell and Aaron cases. The issue arises on a summary judgment in favor of the respondent, rendered by the United States District Court for the Eastern District of Texas on pleadings and supporting affidavits. Here the Lone Star Ordnance Plant, near Texarkana, Texas, was owned by the Government and operated by the respondent under a cost-plus-a-fixed-fee contract entered into with the United States in July, 1941, comparable in its material features to those in the Powell and Aaron cases. The petitioners, several hundred in number, were employed at the plant in capacities such as those of truck drivers, lift-fork operators, loaders and unloaders. Their services were used in the production of munitions, such as shells, bombs, detonators and other ordnance items. The title to substantially all of the raw material, work in progress and finished products was in the Government. Most of the materials were furnished by the Government and the finished products were shipped in accordance with Government instructions on Government bills of lading to military destinations, usually outside of Texas. The petitioners sued for overtime pay claimed to be due them under the Fair Labor Standards Act. Quoting from the opinion of the District Court in the Barksdale case, supra, the trial court gave judgment for the respondent. The Court of Appeals for the Fifth Circuit affirmed. 171 F.2d 964. It stated that the respondent, on the record before it, was an agency of the Government, was not an independent contractor and was not engaged in commerce within the meaning of the Fair Labor Standards Act. We granted certiorari. 337 U.S. 923, 69 S.Ct. 1170. We heard this case with the Powell and Aaron cases. 10 The United States filed a brief and argued here, as amicus curiae, in support of the petitioners on the limited issue now before us. 11 I. The Petitioners Were Not Employees of the United States Within the Meaning of the Fair Labor Standards Act. 12 If the petitioners were employees of the United States, the Fair Labor Standards Act excludes them from its coverage.7 A similar defense is presented through the claim that the respondents were not independent contractors but were agencies of the United States, representing and binding the United States as their principal in the employment of petitioners. 13 In each contract, there was a provision comparable to the following quoted from the contract in the Powell case: 14 'Article I—E—Authority of the Contractor. 15 'In carrying out the work under this Title I the Contractor is authorized to do all things necessary or convenient in and about the operating and closing down of the Plant, or any part thereof, including (but not limited to) the employment of all persons engaged in the work hereunder, (who shall be subject to the control and constitute employees of the Contractor), * * *.' (Emphasis supplied.) 16 Each contract is replete with references to the persons employed as the 'employees of the Contractor' or 'persons employed by the Contractor.' 17 The contract in the Powell case contained the following additional clause: 18 'Article III—A—Status of Contractor. 19 'It is expressly understood and agreed by the Contractor and the Government that in the performance of the work provided for in this contract, the Contractor is an independent contractor and in no wise an agent of the Government.' (Emphasis supplied.) Such provisions are persuasive that the petitioners should be recognized here as employees of the respective respondents and the respondents as independent contractors. The respondents argue, however, that the context of the times, other provisions of the contracts and the practice under the contracts deprive these statements of their ordinary meaning. We find, on the contrary, that each of these sources supplies additional evidence that these provisions correctly state the true relationship between the petitioners and respondents. 20 For example, we find in these contracts a reflection of the fundamental policy of the Government to refrain, as much as possible, from doing its own manufacturing and to use, as much as possible (in the production of munitions), the experience in mass production and the genius for organization that had made American industry outstanding in the world.8 The essence of this policy called for private, rather than public, opperation of war production plants. This purpose shines through the following clause in the contract in the Powell case: 'Whereas, The Government desires to have the Contractor, as an independent contractor on a cost-plus-a-fixed-fee basis, make all necessary preparations for the operation of said plant, including the training of operating personnel * * * but excluding the procurement and supervision of the installation of manufacturing facilities (to be done, under a like contract, by the contractor's parent corporation, Western Cartridge Company); and operate said plant; * * *.' (Emphasis supplied.) 21 It would have been simple for the Government to have ordered all of this production to have been done under governmental operation as well as under governmental ownership. To do so, however, might have weakened our system of free enterprise. We relied upon that system as the foundation of the general industrial supremacy upon which ultimate victory might depend. In this light, the Government deliberately sought to insure private operation of its new munitions plants. 22 In these great projects built for and owned by the Government, it was almost inevitable that the new equipment and materials would be supplied largely by the Government and that the products would be owned and used by the Government. It was essential that the Government supervise closely the expenditures made and the specifications and standards established by it. These incidents of the program did not, however, prevent the placing of managerial responsibility upon independent contractors. 23 The relationship of employee and employer between the worker and the contractor appears not only in the express terminology that has been quoted. It appears in the substantial obligation of the respondent-contractors to train their working forces, make job assignments, fix salaries, meet payrolls, comply with state workmen's compensation laws and Social Security requirements and 'to do all things necessary or covenient in and about the operating and closing down of the Plant, * * *.'9 24 The insertion in each of these contracts of the representations and specifications that are set forth in the Walsh-Healey Act was, in itself, a recognition by the Secretary of War of the independent contractor status of the respondents. 25 The petitioner-employees and the Government expressly disavow, in their briefs, any employment relationship between them. The managerial duties imposed upon the respondents were the duties of employers. That such duties be performed by private contractors was a vital part of the Government's general production policy. In the light of these considerations, we conclude that the respective respondents, in form and in substance, were the employers of these petitioners within the meaning of the Fair Labor Standards Act.10 II. Petitioners Were Engaged in the Production of Goods for Commerce Within the Meaning of the Fair Labor Standards Act. 26 Before discussing the definitions assigned by the Act to the words 'commerce' and 'goods,' it is helpful to examine the Act as a whole in the light of the time of its adoption. It was adopted in 1938, during an industrial depression. It expressly stated its purposes.11 This Court has further expounded them.12 In this Act, the primary purpose of Congress was not to regulate interstate commerce as such. It was to eliminate, as rapidly as practicable, substandard labor conditions throughout the nation. It sought to raise living standards without substantially curtailing employment or earning power. Roland Electrical Co. v. Walling, 326 U.S. 657, 669—670, 66 S.Ct. 413, 418, 419, 90 L.Ed. 383. The Government's munitions plants provided an appropriate place for the beneficial application of the Act's standards of working conditions without danger of reduced employment through loss of business. This Act would fail materially in its purpose if it did not reach the producers of the tremendous volume of wartime goods destined for interstate transportation. In 1941—1945 the manufacture of munitions was a major source of employment. Wages and hours in that industry were a major factor in fixing the living standards of American labor. 27 A. The 'transportation' of munitions of the United States to destinations outside of the state of their production is 'commerce' within the meaning of the Act. The Act applies to 'employees * * * engaged in commerce or in the production of goods for commerce.'13 The precise question here is whether the munitions were produced for 'commerce' when such production was for transportation outside of the state and for use by the United States in the prosecution of war, but not for sale or exchange. 28 Section 3(b) of the Act contains the following definition of 'commerce': '(b) 'Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof.' (Emphasis supplied.) 52 Stat. 1060, 29 U.S.C. § 203(b), 29 U.S.C.A. § 203(b). 29 This definition is an exercise by Congress of its constitutional power 'To regulate Commerce with foreign Nations, and among the several States, * * *.' U.S.Const. Art. I, § 8, Cl. 3. Such power has been held repeatedly to include the power to regulate interstate shipments or transportation as such, and not merely to regulate shipments or transportation of articles that are intended for sale, exchange or other trading activities.14 30 Congress could have expressly exempted from the Act employees engaged in producing goods for interstate transportation not leading to a sale or exchange. Congress also could have exempted employees engaged in producing munitions for use by the United States in war, rather than for sale or exchange by it. Congress might even have exempted all employees producing goods in any Government-owned plants. However, Congress stated no such exemptions. On the contrary, Congress included, by express definition of terms, employees engaged in the production of goods for interstate transportation. 31 In view of these considerations, we find no merit in an interpretation of the Act which would exclude from its coverage those employees who were engaged in the production of munitions for interstate transportation for use or consumption, as distinguished from transportation of them for sale or exchange. 32 B. The munitions produced were 'goods' within the meaning of the Fair Labor Standards Act. The respondents argue that, even though the munitions were produced for commerce, they were not 'goods' within the meaning of the Act. Section 3(i) defines 'Goods' as follows: '(i) 'Goods' means goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.' (Emphasis supplied.) 52 Stat. 1061, 29 U.S.C. § 203(i), 29 U.S.C.A. § 203(i). 33 Respondents claim that this language excludes the petitioners from the coverage of the Act because the petitioners were engaged in producing munitions which thereafter, and prior to their interstate transportation, were to be delivered to the United States as the ultimate consumer. This interpretation would deprive the original jurisdictional fact—that at the time the munitions were produced they were intended for interstate transportation—of its covering effect merely because those munitions, upon a later delivery to the United States, would then cease to be 'goods' within the meaning of the Act. 34 We believe that the crucial fact which establishes the coverage of the Act is the status of the munitions, as 'goods,' during the time they were being produced. The literal meaning of the exclusionary clause in § 3(i), and that which best serves the purposes of the Act, is merely that, after the products shall have been delivered into the actual physical possession of their ultimate consumer, they then shall cease to be 'goods.' This retains the important effect that, thereafter, it is not a violation of § 15(a)(1)15 for the ultimate consumer to transport the products outside of the state. This interpretation was adopted by the Wage and Hour Administrator. 1940 WH Man. 131, 133. It was readopted without change in the July, 1947, revision of the Administrator's Interpretations. 12 Fed.Reg. 4585, 29 C.F.R. § 776.7(h).16 35 We hold, therefore, that the fact that the munitions were produced for delivery, into the actual physical possession of the United States as their ultimate consumer, before their subsequent interstate shipment, does not deprive the employees who produced the munitions of the benefits of the Fair Labor Standards Act. It is not material whether such interstate transportation was to take place before or after the delivery of the munitions to the United States. In either event, the employees were engaged in the production of 'goods' for 'commerce.' To hold otherwise would restrict the Act not only arbitrarily but also inconsistently with its broad purposes. 36 III. The Walsh-Healey Act and the Fair Labor Standards Act Are Not Mutually Exclusive. 37 The Walsh-Healey Act was adopted about one year after the National Industrial Recovery Act17 had been declared unconstitutional. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947. Seeking then to regulate wages and hours of employees, the Walsh-Healey Act kept within a narrow field of assured constitutionality. It prescribed that, in Government contracts for the manufacture or furnishing of materials, supplies, articles and equipment in any amount exceeding $10,000, the contractor pay its employees not less than the minimum wages determined by the Secretary of Labor to be the prevailing minimum wages for persons employed on similar work in the locality. It prescribed also that no such employees be permitted to work in excess of eight hours in any one day or in excess of 40 hours in any one week,18 that no male person under 16 years of age, no female person under 18 years of age and no convict labor be employed by the contractor, and that no part of the contract be performed or any of the material, supplies, articles or equipment be manufactured or fabricated under working conditions unsanitary, hazardous or dangerous to the health and safety of the employees. 38 The Fair Labor Standards Act of 1938 was passed nearly two years later by the next Congress. It presented a different and broader approach. It was not restricted to public contracts. The sponsor of the bill stated that it was intended to carry out the suggestions made by the President in his message to Congress. 81 Cong.Rec. 4960, 4961 (1937). In that message, the President said: '* * * to protect the fundamental interests of free labor and a free people we propose that only goods which have been produced under conditions which meet the minimum standards of free labor shall be admitted to interstate commerce. Goods produced under conditions which do not meet rudimentary standards of decency should be regarded as contraband and ought not to be allowed to pollute the channels of interstate trade.' 39 The Act declared its purposes in bold and sweeping terms.19 Breadth of coverage was vital to its mission. Its scope was stated in terms of substantial universality amply broad enough to include employees of private contractors working on public projects as well as on private projects. Where exceptions were made, they were narrow and specific. It included as employees 'any individual employed by an employer' § 3(e), and defined an employer so as amply to cover an individual or corporation employing persons on public contracts, while expressly excluding, as an employer, 'the United States or any State or political subdivision of a State, * * *' § 3(a) and (d). It devoted § 13 to listing exemptions of specific classes of employees. For example, it exempted any seaman, any employee of a carrier by air subject to Title II of the Railway Labor Act, 45 U.S.C.A. §§ 181—188, and any employee employed in agriculture. It exempted certain employees under § 204 of the Motor Carrier Act, 1935, 49 U.S.C.A. § 304,20 but limited their exemption to the maximum hour provisions in § 7. It also exempted any employee of an employer subject to Part I of the Interstate Commerce Act, 49 U.S.C.A. §§ 1—27. Sich specificity in stating exemptions strengthens the implication that employees not thus exempted, such as employees of private contractors under public contracts, remain within the Act. 40 The Act includes the following affirmative statement as to the relation of its provisions to other laws: 41 'Relation To Other Laws 42 'Sec. 18. No provision of this Act or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this Act or a maximum workweek lower than the maximum workweek established under this Act, and no provision of this Act relating to the employment of child labor shall justify noncompliance with any Federal or State law or municipal ordinance establishing a higher standard than the standard established under this Act. No provision of this Act shall justify any employer in reducing a wage paid by him which is in excess of the applicable minimum wage under this Act, or justify any employer in increasing hours of employment maintained by him which are shorter than the maximum hours applicable under this Act.' 52 Stat. 1069, 29 U.S.C. § 218, 29 U.S.C.A. § 218. 43 The above language discloses a congressional awareness that the coverage of the Fair Labor Standards Act overlaps that of other federal legislation affecting labor standards. In other enactments we find collateral recognition that the Walsh-Healey Act might apply to the same employment as the Fair Labor Standards Act. An amendment to the Walsh-Healey Act, in 1942, recognized this possibility.21 Similarly, the Portal-to-Portal Act of 1947 indicated that persons employed by Government contractors, and thus protected by the Walsh-Healey Act, were entitled to the benefits of the Fair Labor Standards Act.22 44 Despite evidence that the two statutes define overlapping areas, respondents contend that they should be construed as being mutually exclusive. There has been no presentation of instances, however, where compliance with one Act makes it impossible to comply with the other. There has been no demonstration of the impossibility of determining, in each instance, the respective wage requirements under each Act and then applying the higher requirement as satisfying both. 45 The Government has presented, as a considered analysis of the overlapping effects of these Acts, excerpts from the Manual of Instructions for the Administration of Contracts (War Department, Office of the Chief of Ordance, 1941). These are published in the appendix to the brief of the United States. Their forthright treatment and detailed suggested solutions of the practical aspects of the supplementary use of the two Acts are impressive. 46 In some, and probably most, instances, the 'prevailing minimum wages' required by the Walsh-Healey Act were more advantageous to employees than the minimum wages prescribed by the Fair Labor Standards Act at the times here under review.23 On the other hand, the remedial procedure under the later Act was generally more advantageous to employees than the procedure under the earlier Act. 47 We conclude that the Acts are not mutually exclusive. The applicability of the Walsh-Healey Act to the contracts before us therefore does not preclude the application of the Fair Labor Standards Act to employees under the same contracts. We find the Acts to be mutually supplementary. 48 IV. Neither the Act of July 2, 1940, nor the Action of the Secretary of War Taken Pursuant to it Excludes the Applicability of the Fair Labor Standards Act. 49 We find in the Act of July 2, 1940,24 no such recognition of the uniqueness of War Department contracts for the private operation of Government-owned munitions plants as is claimed in the concurring opinion below in the Powell case.25 Without more specific provisions than this Act contains, we cannot interpret it as excluding, or as granting, authority to executive officers to exclude, employees in such plants from the benefits of the general wage and hour provisions which Congress has established in the Walsh-Healey Act and more fully and recently in the Fair Labor Standards Act. 50 The purposes of this temporary Act of 1940 were the clarification of the contractmaking authority of the War Department under existing general law, with such exceptions as were expressly noted, the elimination of certain hazards, and the making of additional grants of emergency authority to the President. For example, this Act referred expressly to the Walsh-Healey Act as applicable to the new War Department contracts when entered into with or without advertising. This was helpful because, when the Walsh-Healey Act was adopted, the contracts to which it applied did not include contracts negotiated without advertising for competitive bids. Similarly, the 1940 Act expressly suspended certain specific limitations on the War Department, e.g., requirements of the congressional approval of estimates and the making of appropriations prior to undertaking construction of certain buildings, § 1(a), restrictions on leasing, § 1(b), restrictions on the assignment of personnel, § 2(b), limitations on the number of serviceable aircraft, § 3, and restrictions as to civil service employees. § 4(a), 5 U.S.C.A. § 653. No suggestion was made of a suspension of part or all of the Fair Labor Standards Act, nor was anything authorized that would violate that Act. 51 The single reference made in the 1940 Act to the Walsh-Healey Act was to insure the applicability of the latter Act to negotiated contracts. This appears from the following revealing statement made on the floor of the Senate by Senator Wagner, the author of the amendment containing the reference: 52 'A question has arisen—and the amendment is simply to remove the ambiguity—as to whether the Walsh-Healey Act, which is now definitely applicable to a contract for the purchase of supplies as a result of advertising, will also apply to a negotiated contract. * * * 53 '* * * Unless this amendment is adopted we would have this anomalous situation: Under a contract entered into with the Government as the result of public bidding one set of minimum wages, that is, the prevailing wages (under the Walsh-Healey Act), would be applied, whereas under another contract entered into as a result of negotiations, a much lower minimum wage would be paid, that is, the flat minimum under the Wage and Hour Act (the Fair Labor Standards Act). This situation would present an opportunity for exploitation, since a contractor under a negotiated contract might be paying wages in some instances 25 percent to 75 percent below those required under the Healey-Walsh Act. I am sure that we would not want to invite any such exploitation.' (Emphasis supplied.) 86 Cong.Rec. 7924 (1940). 54 See also, 86 Cong.Rec. 7839—7843, and H.R.Rep.No.2685, 76th Cong., 3d Sess. 1 (1940). 55 We have considered the other contentions of the respondents, including the weight to be given to the Statement of Labor Policy issued by the War and Navy Departments in 1942,26 but we do not find in them a convincing refutation of the foregoing conclusions. We, accordingly, find that the Fair Labor Standards Act of 1938, as amended, is applicable to the issues presented in each of the instant cases. We do not reach the validity of the individual claims of the petitioners made in reliance upon that Act. 56 In No. 96, Powell et al. v. The United States Cartridge Company, the judgment of the Court of Appeals is reversed and the cause is remanded to that court for further consideration of the errors asserted on appeal but not reviewed by that court. 57 In No. 79, Aaron et al. v. Ford, Bacon and Davis, and in No. 58, Creel v. Lone Star Defense Corporation, the judgments of the respective Courts of Appeals are reversed and the causes are remanded to the respective District Courts for further proceedings in conformity with this opinion. 58 Judgments reversed and causes remanded. 59 Mr. Justice DOUGLAS and Mr. Justice CLARK took no part in the consideration or decision of any of these cases. 60 Mr. Justice FRANKFURTER, whom Mr. Justice JACKSON joins, dissenting. 61 These cases do not present just another one of those situations in the long series in which the Court has been called upon to give a sympathetic construction to the Fair Labor Standards Act. We do not here have a controversy involving relations between a capitalist employer and his employees. The real controversy is between the Department of the Army which conceived, formulated, and administered a scheme for the production of war mate riel by means of Government-owned plants and the Wage and Hour Division of the Department of Labor which administers the Fair Labor Standards Act. We do not have here, in short, the resistance of private employers to the demands of their employees. Here a vast claim on the Treasury of the United States is in issue. The issue should be decided in light of the fact that Congress has manifested in the most emphatic way that the Fair Labor Standards Act is not to be stretched to the extent that sophistical argumentation can stretch its scope but is to be applied in a commonsensical way.1 Fine distinctions in the application of the statute can hardly be avoided. That makes it all the more necessary to hew close to the line marked out by the specific facts of the cases before us. The caution that general propositions do not decide concrete cases is particularly to be heeded in dealing with an enactment framed in terms of legal categories having diverse and conflicting contents. It begs the real question to purport to solve a particular problem merely by invoking such a category. 62 Not only is it important to be heedful of what these cases are really about; it is no less important to be mindful of what they are not about. The problem before us is not the applicability of the Fair Labor Standards Act to work done under all Government contracts, or even to work under all varieties of war production contracts, cost-plus-fixed-fee or otherwise. What is involved is the particular kind of cost-plus-fixed-fee contracts for the operation of ordnance plants under the Act of July 2, 1940, which authorized the Secretary of War to provide for the operation of such plants 'through the agency of selected qualified commercial manufacturers.'2 54 Stat. 713, 50 U.S.C.App. § 1171(b), 50 U.S.C.A.Appendix, § 1171(b). 63 An analysis of the nature of the interrelationship of Government, contractor and employees is necessary to put the issues in their proper perspective. The facts are substantially the same in all three cases, but since the findings in No. 79, Aaron v. Ford, Bacon & Davis, Inc., are particularly detailed, further discussion will center on that case. 64 The United States contracted with respondent Ford, Bacon & Davis, Inc. in July, 1941, for the operation of the Government-owned Arkansas Ordnance Plant and production there of munitions for war—detonators, percussion elements, artillery primers, fuses, boosters and powder train fuses. The plant was a military reservation under the immediate control of an ordnance officer designated by the Chief of Ordnance. Munition quotas and specifications were set by the Government, and inspection by Government officials at each stage of production checked compliance with rules promulgated by the Government not merely as to safety but as to production as well. The contract was terminable at will by the Government and under it the 'normal factors which go to make up commercial profit are lacking.' War and Navy Departments' Statement of Labor Policy Governing Government-Owned, Privately Operated Plants (1942), digested in 2 CCH War Law Serv. 24,862 et seq. The United States owned all materials and equipment used in connection with the operation of the plant. Ninety-five per cent were furnished by the Government directly; the remainder was obtained by the contractor after approval by the Government. The United States obtained title to the latter purchases at the point of origin, and shipment to the plant was on Government bills of lading at a reduced rate and without payment of transportation tax. Title to all materials, equipment, and work in process in the plant was at all times in the United States. Finished products were shipped out of Arkansas to military facilities on Government bills of lading. 65 Under the contract the Government paid all expenses of operating the plant, including labor costs. The contractor was even allowed costs of production of munitions that did not meet specifications and could not be used. The Government contracted for electric power, telephone, teletype and telegraph services itself and paid the bills directly, and provided employees traveling on business with tax-free transportation tickets. At no time did the contractor have to advance its own money—expenses were paid out of available Government funds. For its services in operating the plant, the contractor was paid a fixed fee. 66 The War and Navy Departments' Statement of Labor Policy forbade agreements between the contractor and personnel 'which, in the opinion of either the Secretary of War or the Secretary of the Navy, will have the effect of restricting or hampering maximum output.' Although the contract provided that the contractor was to hire all employees and that they were to be 'subject to the control and constitute employees of the Contractor,' the Government retained the right to approve or disapprove the employment of all personnel and could require the dismissal of any employee deemed 'incompetent or whose retention is deemed to be not in the public interest.' No key employee could be assigned to service until the Contracting Officer approved a statement submitted to him on the employee's previous and proposed salary, qualifications and experience. All wage and salary rates and other changes in status were subject to Government approval, and the Government audited in advance of payment all time cards and payrolls and witnessed the actual payment to employees. The requirement of approval of wage rates was neither a dead letter nor a formality. Proposed wage scales were in fact rejected by the War Department. 67 Work under the contract was specifically made subject to the Walsh-Healey Act, 49 Stat. 2036, 41 U.S.C. § 35 et seq., 41 U.S.C.A. § 35 et seq. This statute was enacted by Congress after the National Industrial Recovery Act was invalidated, with a view to directing 'Government purchases along lines tending to maintain the advance in wages and purchasing power achieved under the N.R.A.' S.Rep.No.1157, 74th Cong., 1st Sess. 1 (1935). See also S.Rep.No.1193, 74th Cong., 1st Sess. (1935); H.R.Rep.No.2946, 74th Cong., 2d Sess. (1936). To that end, § 1(b) requires that employees of Government contractors be paid not less than the 'prevailing minimum wages for persons employed on similar work or in the particular or similar industries or groups of industries currently operating in the locality in which the materials, supplies, articles, or equipment are to be manufactured or furnished.' Provision is also made, inter alia, for maximum hours, with overtime permitted at 'not less than one and one-half times the basic hourly rate.' Pursuant to § 2 of the statute the contract made the contractor liable to the United States for any underpayment of wages for the benefit of underpaid employees.3 68 Two years after the Walsh-Healey Act became law, Congress by the Fair Labor Standards Act of 1938 fixed specific minimum hourly wages and maximum hours for employees 'engaged in commerce or in the production of goods for commerce.' 52 Stat. 1062, 1063, 29 U.S.C. §§ 206, 207, 29 U.S.C.A. §§ 206, 207. Section 16(b) of that Act gives employees a right of action against their employer for unpaid minimum wages or overtime compensation and for 'an additional equal amount as liquidated damages. * * * The court in such action shall, in addition to any judgment awarded to the plaintiff * * * allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.' 69 The Court now holds that the Fair Labor Standards Act is applicable to employees of cost-plus-fixed-fee contractors irrespective of the ultimate liability of the United States under the contracts for whatever sums are recovered in these suits. As we said in Kennedy v. Silas Mason Co., 334 U.S. 249, 254, 68 S.Ct. 1031, 1033, 92 L.Ed. 1347, the contractor 'in a sense, is no more than a nominal defendant, for it is entitled to reimbursement from the Government.' The reach of the liability which today's decision establishes is indicated by the agreed statement that in the Aaron case alone, a 'conservative estimate of the total amount in suit, exclusive of liquidated damages and costs, is in excess of $500,000.00.' It was estimated by the Secretary of War in 1946 that the amount at stake in 'existing suits and potential suits * * * may in the aggregate exceed $250,000,000, substantially all of which will be reimbursable to the contractor.'4 The Court creates such a drain on the Treasury by imputing to the Congress which enacted the Fair Labor Standards Act—and which of course could not possibly have foreseen the cost-plus-fixed-fee arrangements involved here—the intention, in effect, to open the Treasury not only to huge claims for overtime but in addition to demands for like amounts as 'liquidated damages,' and attorney's fees. In the absence of a shred of evidence to indicate that Congress contemplated such a result or would have countenanced it, I cannot bring myself to attribute to Congress the desire to place such a double burden upon the fisc. 70 Certainly such a result should have a more salient justification than abstract argumentation about words not having fixed scope or function. Our decisions have made one thing clear about the Fair Labor Standards Act: its applicability is not fixed by labels that parties may attach to their relationship nor by common law categories nor by classifications under other statutes. Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772; Walling v. Portland Terminal Co., 330 U.S. 148, 150, 67 S.Ct. 639, 91 L.Ed. 809; McComb v. McKay, 8 Cir., 164 F.2d 40; cf. United States v. United Mine Workers, 330 U.S. 258, 285, 286, 67 S.Ct. 677, 691, 692, 91 L.Ed. 884. Unless we are to disregard this guidance of wisdom in construing so dynamic a code as the Fair Labor Standards Act, designation in the contracts of the contractors as the 'employers' of the personnel in the ordnance plants cannot be decisive. Again, the bare words of the definitions in that Act, never self-applying in particular cases, are especially inconclusive here because the cost-plus-fixed-fee arrangements adopted for the operation of these plants were of such an unprecedented character. We are dealing with economic arrangements which in their scope and incidence were aptly characterized by the War and Navy Departments' Statement of Labor Policy: 'The industrial units thus created are unique.' In such unique situations especially we should heed our admonition against perverting 'the process of interpretation by mechanically applying definitions in unintended contexts.' Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 764, 69 S.Ct. 1274, 1279. In law as elsewhere words of many-hued meanings derive their scope from the use to which they are put. 71 No doubt, as suggested, the purpose of the Fair Labor Standards Act should guide our reading of it. The aim of the Act, set forth in § 2(a), is to eliminate 'in industries engaged in commerce or in the production of goods for commerce * * * labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.' But to find that this Act does not fit the contracts in suit neither negatives congressional concern for the welfare of the employees involved nor deprives them of protection consonant with the humane motives underlying the Act. The Walsh-Healey Act itself serves as proof of congressional provision for civilized standards for employees carrying out Government contracts. Pursuant to that statute, the policy under the contracts here was to pay time and one-half for overtime to employees in nonsupervisory classifications. The degree of control exerted by the Government over working conditions and wage rates, Government audit of time cards and payrolls, the presence of Government officers at the time employees were paid, and the power of the Government to withhold payments otherwise due the contractor or to sue for departure from specified standards and use the recovery to compensate aggrieved employees furnished a scheme of safeguards to assure fair dealing. 72 It is said that the Fair Labor Standards Act has been interpreted administratively as covering the employees in these cases. But the agency of Government charged with the formulation and supervision of these contracts, the Department of the Army, supports the position of the contractors here. Correspondence between the War and Navy Departments and the Attorney General in 1944 shows the initial reluctance of the two Departments to have suits against cost-plus-fixed-fee contractors under the Fair Labor Standards Act defended on the basis of the inapplicability of the statute did not stem from lack of conviction about the validity of the defense. Rather, the War and Navy Departments feared that its successful assertion would have significant implications for the construction of the National Labor Relations Act and would 'result in an impairment of the jurisdiction of the National Labor Relations Board over war plants or cause a substantial legal doubt to be cast upon such jurisdiction.' This fear was engendered by the unresourceful advice of a Government lawyer as to the subjection of the employment under these contracts to the collective-bargaining policy of the Wagner Act if the Fair Labor Standards Act was not applicable. In view of such advice, the War and Navy Departments concluded that the interest in efficient prosecution of the war would best be served by preserving at war plants the degree of supervision over labor relations embodied in the National Labor Relations Act even at the expense of abandoning attacks upon the applicability of the Fair Labor Standards Act to cost-plus-fixed-fee contractors. See also 22 Comp.Gen. 277. To find 'administrative interpretation' in a decision of Government departments, acting under legal advice, that a concession as to a statute's applicability was an expedient step in the war production program is to disregard the justification for utilizing 'administrative interpretation' as a gloss on ambiguous legislation. 73 The Government exerted close supervision over every phase of operations at these ordnance plants, specifying articles to be manufactured, production quotas and methods of production. Government control was particularly dominant with respect to personnel policies, including phases of hiring and firing, job assignments, working conditions, wage rates, and overtime compensation. The investment in plant and facilities was entirely the Government's, and the Government bore all the expenditures and all the risks of operation. As between the contractors and the workers, the operation was wanting in the characteristic aspects of the normal employer-employee relation. In view of these factors and the applicability of the Walsh-Healey Act with its protective features for plant personnel, I see no basis for attributing to Congress the intention to make these contractors 'employers' within the meaning of the Fair Labor Standards Act when such a result would have fiscal consequences neither foreseen nor, on any reasonable assumption, desired by Congress. Cf. United States v. Wittek, 337 U.S. 346, 69 S.Ct. 1108. Since the United States is not an 'employer' within the meaning of the statute, the overtime provisions are inapplicable. 74 These considerations call for affirmance without discussion of other grounds which have been advanced for sustaining the judgments below, some of which at least have commended themselves to several Courts of Appeals. 1 52 Stat. 1060 et seq., 53 Stat. 1266, 54 Stat. 615—616, 55 Stat. 756, 61 Stat. 87, 63 Stat. 446, 910—920, 29 U.S.C. §§ 201 219, 29 U.S.C. (Supp. III) §§ 201—217, 29 U.S.C.A. c. 8, §§ 201 219. 2 Congress charged the War and Navy Departments with the operation of about 100 giant Government-owned munitions plants. Those Departments had the option of operating them themselves or through commercial contractors. So as to utilize fully the labor and management resources of the nation and to minimize encroachment upon its industrial structure, both Departments chose the latter course. As to the general war production policies, see Lichter v. United States, 334 U.S. 742, 767—768, 68 S.Ct. 1294, 1307, 1308, 92 L.Ed. 1694. Out of 143 billion dollars of contracts made by the War Department between 1941 and 1946, over 40 billions were cost-plus contracts. Out of 68 billion dollars of Navy contracts, 18 billions were cost-plus contracts. Hearings before Subcommittee of the Senate Committee on the Judiciary on S. No. 70, 80th Cong., 1st Sess. 422—423, 624—626 (1947). The quotation in the text is from the contract in this case, see 339 U.S. 505, 70 S.Ct. 760, infra. 3 54 Stat. 712—714, 50 U.S.C.App. §§ 1171, 1172, 50 U.S.C.A.Appendix, §§ 1171, 1172. 4 Article III—F, 3 of the contract stated that: 'The title to all work under this contract, completed or in the course of construction or manufacture, and to all the Ammunition manufactured or in the process of being manufactured, shall be in the Government. Likewise, upon delivery at the site of the work, or at an approved storage site, title to all purchased materials, tools, machinery, equipment and supplies, for which the Contractor shall be entitled to be reimbursed under Title II hereof, shall vest in the Government. The Government shall bear all risk incident to such ownership. These provisions as to title being vested in the Government shall not operate however, to relieve the Contractor from any duties imposed upon it under the terms of this contract.' (Emphasis supplied.) 5 Adopted June 30, 1936, 49 Stat. 2036 et seq., 41 U.S.C. § 35 et seq., 41 U.S.C.A. § et seq. 6 61 Stat. 84—90, 29 U.S.C. (Supp. III) §§ 216, 251—262, 29 U.S.C.A. §§ 216, 251—262. 7 'Sec. 3. As used in this Act— '(d) 'Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State, * * *. '(e) 'Employee' includes any individual employed by an employer.' (Emphasis supplied.) 52 Stat. 1060, 29 U.S.C. § 203(d) and (e), 29 U.S.C.A. § 203(d, e). 8 For a review of the development of the war production program and its reliance on private industry, see Lichter v. United States, 234 U.S. 742, 758—766, 68 S.Ct. 1294, 1303, 1307, 92 L.Ed. 1694. 9 If the workers were employees of the United States, state workmen's compensation laws and other comparable laws would be inapplicable. In the St. Louis and Arkansas Ordnance plants the contractor, in order to explain the relationships being established, issued a booklet to each new employee. The manual thus used at the St. Louis plant is entitled 'Your Job with the St. Louis Ordnance Plant.' It opens with the statement 'Every prospective employee of United States Cartridge Company should read this booklet describing the Company's policy and procedure.' (Emphasis supplied.) It describes the relationship between the United States Government, the company and 'Our Employees.' For example, it says 'The Company * * * is responsible to the United States Government for ammunition production, to the City of St. Louis in maintaining a successful civic enterprise, and to our employees, for the establishment of working conditions conducive to the health and happiness of each man and woman employed in the plant.' It explains the financial basis of its cost-plus contract of management as follows: 'In the final analysis, your wages come from the United States Government, whose only source of income is taxes collected from you and all other citizens. The United States Cartridge Company is merely managing the plant for the Federal Government.' It adds that 'When production demands require a longer work day, or longer work week, the Company will pay the legal overtime rate as provided under the Walsh-Healey Act, and the Fair Labor Standards Act.' 10 See the dissenting opinion of Circuit Judge Hutcheson in Kennedy v. Silas Mason Co., 5 Cir., 164 F.2d 1016, 1019—1020, the reasoning of which is in accord with our decision: 'Here the whole elaborate system was designed and operated so that the United States should not be the employer.' 164 F.2d at page 1020. Cf. Curry v. United States, 314 U.S. 14, 62 S.Ct. 48, 86 L.Ed. 9, and State of Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3. Those cases held that the contractors, under Government cost-plus-a-fixed-fee contracts, were, as such, subject to state use taxes and state sales taxes. 11 'Sec. 2. (a) The Congress hereby finds that the existence, in industries engaged in commerce or in the production of goods for commerce, of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers (1) causes commerce and the channels and instrumentalities of commerce to be used to spread and perpetuate such labor conditions among the workers of the several States; (2) burdens commerce and the free flow of goods in commerce; (3) constitutes an unfair method of competition in commerce; (4) leads to labor disputes burdening and obstructing commerce and the free flow of goods in commerce; and (5) interferes with the orderly and fair marketing of goods in commerce. '(b) It is hereby declared to be the policy of this Act, through the exercise by Congress of its power to regulate commerce among the several States, to correct and as rapidly as practicable to eliminate the conditions above referred to in such industries without substantially curtailing employment or earning power.' (Emphasis supplied.) 52 Stat. 1060, 29 U.S.C. § 202, 29 U.S.C.A. § 202. 12 While one major means of spreading substandard labor conditions was recognized to be through the lowering of prices for goods produced under substandard conditions, there has been no attempt in the Act, or in this Court's discussion of the Act, to limit its coverage to employees engaged in producing goods solely for competitive markets. An announced purpose of the Act was to raise living standards and to eliminate 'labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers * * *.' (§ 2(a), see note 11, supra.) That purpose was concerned directly with any widespread existence of substandard wages, hours or working conditions. That such conditions could be reached by Congress through its regulation of interstate transportation of the products of those conditions had been forcefully stated in the dissent of Mr. Justice Holmes in Hammer v. Dagenhart, 247 U.S. 251, 277—281, 38 S.Ct. 529, 533, 534, 62 L.Ed. 1101, 3 A.L.R. 649, Ann.Cas.1918E, 724. In 1941, this Court expressly approved that reasoning and upheld the constitutionality of the Fair Labor Standards Act. United States v. Darby, 312 U.S. 100, 115—117, 61 S.Ct. 451, 457, 458, 85 L.Ed. 609, 132 A.L.R. 1430. The language of Mr. Justice Stone in speaking for the Court in that case is significant. It extended to interstate shipments and transportation of proscribed products in general: 'While manufacture is not of itself interstate commerce the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of the commerce. * * * It is conceded that the power of Congress to prohibit transportation in interstate commerce includes noxious articles, Lottery Case, supra, (Champion v. Ames, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492); Hipolite Egg Co. v. United States, 220 U.S. 45, 31 S.Ct. 364, 55 L.Ed. 364; cf. Hoke v. United States, supra, (227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523, 43 L.R.A., N.S., 906, Ann.Cas.1913E, 905); stolen articles, Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699, 37 A.L.R. 1407; kidnapped persons, Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522, and articles such as intoxicating liquor or convict made goods, traffic in which is forbidden or restricted by the laws of the state of destination. Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334, 57 S.Ct. 277, 81 L.Ed. 270. 'Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause. Subject only to that limitation, * * * we conclude that the prohibition of the shipment interstate of goods produced under the forbidden substandard labor conditions is within the constitutional authority of Congress. 'The obvious purpose of the Act was not only to prevent the interstate transportation of the proscribed product, but to stop the initial step toward transportation, production with the purpose of so transporting it.' United States v. Darby, supra, 312 U.S. at pages 113, 115, 117, 61 S.Ct. at pages 456, 457, 458. For further legislative history of the Act, see Roland Electrical Co. v. Walling, 326 U.S. 657, 668—669, n. 5, 66 S.Ct. 413, 418, 90 L.Ed. 383. 13 See. 6. (a) Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce (certain minimum wages). * * * 'Sec. 7. (a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce (longer than certain maximum hours). * * *' 52 Stat. 1062, 1063, 29 U.S.C. §§ 206(a) and 207(a), 29 U.S.C.A. §§ 206(a), 207(a). 14 E.g., Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119; Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522; Thornton v. United States, 271 U.S. 414, 46 S.Ct. 585, 70 L.Ed. 1013; Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699, 37 A.L.R. 1407; United States v. Hill, 248 U.S. 420, 39 S.Ct. 143, 63 L.Ed. 337; Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168. See also, United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 549, 64 S.Ct. 1162, 1171, 88 L.Ed. 1440; Bell v. Porter, 7 Cir., 159 F.2d 117, 118—119. 15 'Sec. 15. (a) * * * it shall be unlawful for any person— '(1) to transport, offer for transportation, ship, deliver, or sell in commerce, or to ship, deliver, or sell with knowledge that shipment or delivery or sale thereof in commerce is intended, any goods in the production of which any employee was employed in violation of section 6 (minimum wages) or section 7 (maximum hours), * * *. 'Sec. 16. (a) Any person who willfully violations any of the provisions of section 15 shall upon conviction thereof be subject to a fine of not more than $10,000, or to imprisonment for not more than six months, or both. * * *' (Emphasis supplied.) 52 Stat. 1068, 1069, 29 U.S.C. §§ 215(a)(1) and 216(a), 29 U.S.C.A. §§ 215(a)(1), 216(a). 16 'Irrespective of the question as to who is the ultimate consumer, however, it is our opinion that the employees of the container manufacturer are subject to the act. The fact that products lose their character as 'goods' when they come into the actual physical possession of the ultimate consumer does not affect the coverage of the act as far as the employees producing the products are concerned. The facts at the time that the products are being produced determine whether an employee is engaged in the production of goods for commerce, and at the time of the production of the containers they were clearly 'goods' within the meaning of the statute since they were not, at that point of time, in the actual physical possession of the ultimate consumer. All that the term 'goods' quoted above is intended to accomplish is to protect ultimate consumers, other than producers, manufacturers, or processors of the goods in question from the 'hot goods' provision of section 15(a)(1). This seems clear from the language of the statute. * * * But Congress clearly did not intend to permit an employer to avoid the minimum wage and maximum hours standards of the act by making delivery within the State into the actual physical possession of the ultimate consumer who transports or ships the goods outside the State. Thus, it is our opinion that employees engaged in building a boat for delivery to the purchaser at the boatyard are within the coverage of the act if the employer, at the time the boat is being built, intends, hopes, or has reason to believe that the purchaser will sail it outside the State.' 29 C.F.R. § 776.7(h). 17 48 Stat. 195. 18 This clause was amended in 1942 by adding the following: 'Provided, That the provisions of this subsection (c) shall not apply to any employer who shall have entered into an agreement with his employees pursuant to the provisions of paragraphs 1 or 2 of subsection (b) of section 7 of an Act entitled 'Fair Labor Standards Act of 1938'.' 56 Stat. 277, 41 U.S.C. § 35(c), 41 U.S.C.A. § 35(c). Those paragraphs relate to collective bargaining agreements covering 26 or 52 consecutive workweeks and exempting the employer making them from charges of violation of the usual maximum hour provisions of the Fair Labor Standards Act. This amendment thus recognized the application of the Fair Labor Standards Act to employment to which the Walsh-Healey Act also applied. 19 See note 11, supra. 20 See Pyramid Motor Corp. v. Ispass, 330 U.S. 695, 67 S.Ct. 954, 91 L.Ed. 1184; Levinson v. Spector Motor Service, 330 U.S. 649, 67 S.Ct. 931, 91 L.Ed. 1158; Southland Gasoline Co. v. Bayley, 319 U.S. 44, 63 S.Ct. 917, 87 L.Ed. 1244; Overnight Motor Transport Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682; United States v. American Trucking Ass'ns, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345. 21 See note 18, supra. 22 'Section 1. (a) The Congress hereby finds that the Fair Labor Standards Act of 1938, as amended, has been interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, upon employers with the results that, if said Act as so interpreted or claims arising under such interpretations were permitted to stand, * * * (9) the cost to the Government of goods and services heretofore and hereafter purchased by its various departments and agencies would be unreasonably increased and the Public Treasury would be seriously affected by consequent increased cost of war contracts; * * * 'The Congress further finds and declares that all of the results which have arisen or may arise under the Fair Labor Standards Act of 1938, as amended, as aforesaid, may (except as to liability for liquidated damages) arise with respect to the Walsh-Healey and Bacon-Davis Acts and that it is, therefore, in the national public interest and for the general welfare, essential to national defense, and necessary to aid, protect, and foster commerce, that this Act shall apply to the Walsh-Healey Act and the Bacon-Davis Act.' (Emphasis supplied.) 61 Stat. 84—85, 29 U.S.C. (Supp. III) § 251(a), 29 U.S.C.A. § 251(a). 23 The 1949 amendments to the Fair Labor Standards Act, including especially the increase of minimum wages from 40 cents to 75 cents and hour, demonstrate, however, the growing importance of the application of the Fair Labor Standards Act. 63 Stat. 446, 910—920, 29 U.S.C. (Supp. III) § 202, et seq., especially § 206(a)(1), 29 U.S.C.A. § 202 et seq., especially § 206(a) (1). 24 54 Stat. 712—714, 50 U.S.C.App. §§ 1171, 1172, 50 U.S.C.A.Appendix, §§ 1171, 1172. 25 174 F.2d 718, 726—730. 26 This Statement of Labor Policy was emphasized by counsel for the respondent in the Aaron case. Much of it is published in Regulations—Army: Ordnance Procurement Instructions, 2 CCH War Law Serv. §§ 9,101.1, 9,104.3, 9,104.4, 9,105.2 and 9,105,3. 1 Congress found that the construction which this Court placed upon the Fair Labor Standards Act in Jewell Ridge Coal Corp. v. Local No. 6167, 325 U.S. 161, 65 S.Ct. 1063, 89 L.Ed. 1534; Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515; Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 68 S.Ct. 1186, 92 L.Ed. 1502; Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296, and Farmers Reservoir and Irrigation Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, misconceived the purposes of Congress. See Portal-to-Portal Act of 1947, 61 Stat. 84, 29 U.S.C. (Supp. III) § 251 et seq., 29 U.S.C.A. § 251 et seq.; Act of July 20, 1949, 63 Stat. 446, 29 U.S.C. (Supp. III) § 207(e)(1, 2), (f); 29 U.S.C.A. § 207(e)(1, 2), (f); Fair Labor Standards Amendments of 1949, §§ 11, 14, 63 Stat. 910, 917, 919, 29 U.S.C. (Supp. III), §§ 213, 216, 29 U.S.C.A. §§ 213, 216. 2 The Secretary of the Navy was authorized to enter into contracts for private operation of Navy installations on a cost-plus-fixed-fee basis by §§ 2(a) and 8(b) of the Act of June 28, 1940. 54 Stat. 677, 680, 50 U.S.C.App. §§ 1152(a)(1), 1158(b), 50 U.S.C.A.Appendix, §§ 1152(a)(1), 1158(b). 3 Section 2 provides: 'Any sums of money due to the United States of America by reason of any violation of any of the representations and stipulations of said contract * * * may be withheld from any amounts due on any such contracts or may be recovered in suits brought in the name of the United States of America by the Attorney General thereof. All sums withheld or recovered as deductions, rebates, refunds, or underpayments of wages shall be held in a special deposit account and shall be paid, on order of the Secretary of Labor, directly to the employees * * * on whose account such sums were withheld or recovered.' 4 Under the Fair Labor Standards Act even employers who acted with the utmost good faith are liable for liquidated damages and attorneys' fees in addition to unpaid minimum wages or overtime compensation. The severe impact a large, unforeseen nonreimbursed liability would have upon a fixed-fee contractor receiving an annual fee of $420,000 as in the Aaron case is manifest.

67

339 U.S. 532 70 S.Ct. 784 94 L.Ed. 1045 BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 262, et al.v.GAZZAM. No. 449. Argued Feb. 9, 1950. Decided May 8, 1950. Rehearing Denied June 5, 1950. See 339 U.S. 991, 70 S.Ct. 1019. Messrs. Daniel D. Carmell, Walter F. Dodd, Chicago, Ill., for petitioner. Mr. Alfred J. Schweppe, Seattle, Wash., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 It is the public policy of the State of Washington that employers shall not coerce their employees' choice of representatives for purposes of collective bargaining. Do the First and Fourteenth Amendments to the Federal Constitution permit the State, in reliance on this policy, to enjoin peaceful picketing carried on for the purpose of compelling an employer to sign a contract with a labor union which coerces his employees' choice of bargaining representative? 2 The State answered in the affirmative. an injunction was issued in narrow terms enjoining petitioners 'from endeavoring to compel plaintiff to coerce his employees to join the defendant union or to designate defendant union as their representative for collective bargaining, by picketing the hotel premises of plaintiff * * *.' The Supreme Court of Washington affirmed, 34 Wash.2d 38, 207 P.2d 699, and we granted certiorari. 338 U.S. 903, 70 S.Ct. 308. 3 At the time of the controversy, respondent employed about fifteen persons at Enetai Inn, a small hotel which he operates in Bremerton, Washington. Just prior to May 1, 1946, representatives of the petitioner union called upon respondent about organizing his employees and asked him to sign a contract with the union which would require his employees to join the union. None of the employees was a member of any union active in the area. Respondent replied that that was a matter for the employees to decide. He gave the union and its representatives permission freely to visit and solicit his employees for membership while he was absent on a brief trip to Los Angeles. Upon his return, the union representatives again approached him about signing a contract. The representatives admitted that they had not secured any members among the employees, and respondent again replied that it was a matter for the employees. On May 2, 1946, respondent was advised that the union proposed to have the Enetai Inn placed on the 'We Do Not Patronize' list, and a meeting for the purpose of attempting to reach a settlement was suggested. At the meeting held a few days later respondent was represented by his attorney. The union still insisted that respondent sign the contract, and respondent through his attorney still declined to sign on the ground that that would require him to coerce his employees to join a union, contrary to state law. 4 The union asked for and was granted a meeting with respondent's employees at which the union representatives might present their case. Six representatives of organized labor attended this meeting, held on May 10, 1946. Eleven of the employees attended. One was a bellboy whose work the union apparently did not wish to have covered. Respondent was again represented by his attorney. The union representatives were given complete and unhampered opportunity to present their arguments for unionization to the employees. No statement was made by anyone on behalf of respondent or the employees. After the union representatives had completed their presentation, all withdrew except the employees who then took a vote as to whether they wished to join the union. Of the eleven voting, nine voted against joining, one was undecided, and the bellboy, whose membership the union did not desire, voted to join. The result was immediately reported to the union representatives and to respondent's attorney. Several days latter respondent was notified that his hotel had been placed on the 'We Do Not Patronize' list and pickets began walking in front of his hotel bearing a sign reading: 'Enetai Inn—Unfair to Organized Labor.' The picketing was carried on by a single picket at a time and was intermittent and peaceful. 5 With the exception of refusing to sign to contract requiring his employees to join the union, respondent had complied with all of the requests and demands of the union. That single refusal was what caused the union to brand respondent's place of business as unfair. After the picketing started, respondent's attorney agreed to talk to respondent again to see if he would consider signing the contract. After consulting with respondent, the attorney wrote the union's attorney that respondent was willing to negotiate further with the union but would not sign the type of contract that had been tendered him. The union then offered a contract which provided that present employees should not be required to join the union as a condition of continued employment, but that any employees hired in the future would be required to join within fifteen days or be discharged. The new contract also provided that the union should be the bargaining representative for both union and nonunion employees. The second contract was just the first contract in slow motion. Respondent refused to sign it for the same reason he had refused to sign the previously tendered contract. 6 The peaceful picketing continued, and on June 29, 1946, respondent filed this suit for an injunction and damages. On the first hearing the trial court granted petitioners' motion for a nonsuit and dismissed the complaint. The Supreme Court of Washington reversed on appeal. 29 Wash.2d 488, 188 P.2d 97. Upon remand the trial court on September 20, 1948, entered judgment for respondent for damages for the 'wrongful picketing' in the sum of $500 and permanently enjoined petitioners in the previously quoted language. This judgment the Supreme Court of Washington affirmed on July 1, 1949, by a divided court. 34 Wash.2d 38, 207 P.2d 699. 7 The State of Washington has what is sometimes referred to as a 'Little Norris—LaGuardia Act,'1 which provides that no injunction shall issue in a 'labor dispute,' as defined in the Act, except in conformity with the provisions of the Act; nor shall any injunction issue contrary to the public policy declared in the Act. No 'labor dispute' as determined by the law of Washington was held to exist in this case. There was no injunction against picketing generally. It was held that the objective of the picketing was violative of the public policy against employer coercion of employees' choice of bargaining representative, and that the picketing should be enjoined on that narrow ground.2 8 Does the injunction, limited as it is to restraining petitioners from picketing respondent's hotel for the purpose of compelling him to coerce his employees' choice of bargaining representative, constitute an abridgment of the right of free speech under the First and Fourteenth Amendments? 9 This Court has said that picketing is in part an exercise of the right of free speech guaranteed by the Federal Constitution. Cafeteria Employees Union, Local 302 v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58; Bakery & Pastry Drivers & Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Senn v. Tile Layers Protective Union, Local No. 5, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229. But since picketing is more than speech and establishes a locus in quo that has far more potential for inducing action or nonaction than the message the pickets convey, this Court has not hesitated to uphold a state's restraint of acts and conduct which are an abuse of the right to picket rather than a means of peaceful and truthful publicity. Thus in Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, 132 A.L.R. 1200, the picketing in issue, considered in isolation, was peaceful, but had been found to be enmeshed with and set in such a background of violence that it was a part of a pattern of violence. This Court held that peaceful picketing under such circumstances might properly be enjoined by the State. 10 In Hotel & Restaurant Employees' International Alliance, Local No. 122 v. Wisconsin Employment Relations Board, 315 U.S. 437, 62 S.Ct. 706, 86 L.Ed. 946, this Court upheld the right of Wisconsin through its Employment Relations Board to issue a cease and desist order against violence in picketing and boycotting by the union unvolved. Carpenters & Joiners Union of America, Local No. 213 v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143, upheld a decree enjoining the union from picketing a cafe having no business connection with the place where the industrial dispute centered. And in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, the Court sustained a decree enjoining picketing which was peaceful and informative but was carried on for the purpose of coercing the employer to violate the antitrust law of Missouri. 11 The public policy of any state is to be found in its constitution, acts of the legislature, and decisions of its courts. 'Primarily it is for the lawmakers to determine the public policy of the state.' Twin City Pipe Line Company v. Harding Glass Company, 283 U.S. 353, 357, 51 S.Ct. 476, 478, 75 L.Ed. 1112, 83 A.L.R. 1168. 12 The State of Washington has by legislative enactment declared its public policy on the subject of organization of workers for bargaining purposes. The pertinent part of this statute is set forth in the margin.3 The meaning and effect of this declaration of policy is found in its application by the highest court of the State to the concrete facts of the instant case. Under the so-enunciated public policy of Washington, it is clear that workers shall be free to join or not to join a union, and that they shall be free from the coercion, interference, or restraint of employers of labor in the designation of their representatives for collective bargaining. Picketing of an employer to compel him to coerce his employees' choice of a bargaining representative is an attempt to induce a transgression of this policy, and the State here restrained the advocates of such transgression from further action with like aim. To judge the wisdom of such policy is not for us; ours is but to determine whether a restraint of picketing in reliance on the policy is an unwarranted encroachment upon rights protected from state abridgment by the Fourteenth Amendment. 13 Petitioners insist that the Swing case, supra, is controlling. We think not. 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. The State has not here, as in Swing, relied on the absence of an employer-employee relationship. Thus the State has not, as was the case there, excluded 'workingmen from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him.' 312 U.S. at page 326, 61 S.Ct. at page 570, 85 L.Ed. 855. 14 The Washington statute has not been construed by the Washington courts in this case to prohibit picketing of workers by other workers. The construction of the statute which we are reviewing only prohibits coercion of workers by employers. We cannot agree with petitioners' reading of this injunction that 'whatever types of picketing were to be carried out by the union would be in violation of the decree.' Respondent does not contend that picketing per se has been enjoined but only that picketing which has as its purpose violation of the policy of the State. There is no contention that picketing directed at employees for organization purposes would be violative of that policy. The decree does not have that effect. 15 We are of the opinion that Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, controls the disposition of this case, and that it therefore must be affirmed. In the Giboney case it is true that the state law which made the objective of the picketing unlawful had criminal sanctions. The Washington statute here has no criminal sanctions. Petitioners seek to distinguish Giboney on that ground. This Court there said: 'But placards used as an essential and inseparable part of a grave offense against an important public law cannot immunize that unlawful conduct from state control. * * * And it is 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.' 336 U.S. at pages 502—503, 69 S.Ct. page 690. It is not the presence of criminal sanctions which makes a state policy 'important public law.' Much public policy does not readily lend itself to accompanying criminal sanctions. Whether to impose criminal sanctions in connection with a given policy is itself a question of policy. 16 Here, as in Giboney, the union was using its economic power with that of its allies to compel respondent to abide by union policy rather than by the declared policy of the state. That State policy guarantees workers free choice of representatives for bargaining purposes. If respondent had complied with petitioners' demands and had signed one of the tendered contracts and lived up to its terms, he would have thereby coerced his employees. The employees would have had no free choice as to whether they wished to organize or what union would be their representative. 17 The public policy of Washington relied upon by the courts below to sustain this injunction is an important and widely accepted one. The broad purpose of the Act from which this policy flows was to prevent unreasonable judicial interference with legitimate objectives of workers. But abuse by workers or organizations of workers of the declared public policy of such an Act is no more to be condoned than violation of prohibitions against judicial interference with certain activities of workers. We therefore find no unwarranted restraint of picketing here. The injunction granted was tailored to prevent a specific violation of an important state law. The decree was limited to the wrong being perpetrated, namely, 'an abusive exercise of the right to picket.' Cafeteria Employees Union, Local 302 v. Angelos, 320 U.S. at page 295, 64 S.Ct. at page 127, 88 L.Ed. 58. The judgment is affirmed. 18 Affirmed. 19 Mr. Justice BLACK is of the opinion that this case is controlled by the principles announced in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, and therefore concurs in the Court's judgment. 20 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 Washington Labor Disputes Act, Rem.Rev.Stat., Supp.1940, § 7612—1 et seq. Certain sections of this Act were held unconstitutional by the Washington Court in Blanchard v. Golden Age Brewing Company, 188 Wash. 396, 63 P.2d 397. 2 The Washington Supreme Court reviewed its decisions in this field in its first opinion in the instant case. O'Neil v. Building Service Employees International Union No. 6, 9 Wash.2d 507, 115 P.2d 662, 137 A.L.R. 1102, and S. & W. Fine Foods v. Retail Delivery Drivers and Salesmen's Union, Local No. 353, 11 Wash.2d 262, 118 P.2d 962, had treated any peaceful picketing as lawful. American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855, was held to be controlling in both cases. But in the instant case, both the O'Neil and S. & W. cases were characterized as wrong in principle and were expressly overruled. The court quoted from Swenson v. Seattle Central Labor Council, 27 Wash.2d 193, 206, 177 P.2d 873, 880, 170 A.L.R. 1082, where it was said that peaceful picketing is an exercise of the right of free speech which loses the protection of constitutional guaranty where 'it steps over the line from persuasion to coercion.' 3 'In the interpretation of this act and in determining the jurisdiction and authority of the courts of the State of Washington, as such jurisdiction and authority are herein defined and limited, the public policy of the State of Washington is hereby declared as follows: 'Whereas, Under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protections; therefore, the following definitions of, and limitations upon, the jurisdiction and authority of the courts of the State of Washington are hereby enacted.' Rem.Rev.Stat., Supp. 1940, § 7612—2.

23

339 U.S. 349 70 S.Ct. 739 94 L.Ed. 906 UNITED STATESv.FLEISCHMAN. No. 98. Argued Dec. 15, 1949. Decided May 8, 1950. Rehearing Denied June 5, 1950. See 339 U.S. 991, 70 S.Ct. 1017. Mr. Philip B. Perlman, Sol. Gen., Washington, D.C., for petitioner. Messrs. O. John Rogge, Washington, D.C., Benedict Wolf, New York City, for respondents. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 Respondent Fleischman is a member of the executive board of an organization known as the Joint Anti-Fascist Refugee Committee (hereinafter referred to as the association), which, during 1945 and 1946, was under investigation by the House Committee on Un-American Activities. In furtherance of its investigation, the Committee issued subpoenas on March 29, 1946, to each of the members of the executive board and to Helen R. Bryan, the executive secretary of the association, demanding that they produce certain of the association's records in the Committee's chamber on April 4, 1946. Fleischman and the other members of the board appeared on that date in response to the subpoenas but did not produce the records. The Committee thereupon reported to the House that the members of the executive board were in contempt of that body. After debate, the House voted to direct the Speaker to certify the Committee's report to the United States District Attorney for legal action. 2 Respondent and the other members of the executive board were jointly indicted for wilful default under R.S. § 102,1 but Fleischman was tried separately from the others. Her defense, like that of Bryan,2 consisted in part in the contention that she could not be guilty of wilful default because a quorum of the Committee had not been present when she appeared in response to the subpoena. The trial court withdrew that issue from the jury, holding 'as a matter of law, that the Committee on Un-American Activities of the House of Representatives was a validly constituted committee of Congress, and was at the time of the defendant's appearance.' The Court of Appeals for the District of Columbia reversed, one judge dissenting, 84 U.S.App.D.C. 388, 174 F.2d 519, on the ground that presence of a quorum of the Committee at the time of respondent's appearance was a material question of fact for the jury. The court also divided on the question of whether there was sufficient evidence to support the conviction, a majority holding the evidence sufficient. We granted a writ of certiorari, 338 U.S. 846, 70 S.Ct. 86, to consider these important questions arising under R.S. § 102. 3 The quorum question is governed by our decision this day in United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724. Like Bryan, respondent testified before the Committee on the return day of the subpoena without making any suggestion of lack of a quorum. That issue was raised for the first time at the trial, two years after her appearance before the Committee, where she had given other reasons for her failure to produce the documents. Under the circumstances disclosed by this record, we think the defense of lack of quorum was not available to her. 4 The question of the admissibility of her testimony before the House Committee at her trial for wilful default is likewise governed by our decision in the Bryan case where we held that R.S. § 859, 18 U.S.C. § 3486, 18 U.S.C.A. § 3486, cannot be read to prevent the introduction of testimony of this kind at a trial for wilful default under R.S. § 102. 5 There remains the question of the sufficiency of the evidence to support the verdict of guilt in this case. That evidence consisted in part of the record of the Committee's unsuccessful efforts over a period of four months to obtain the books and papers of the association from its chairman and executive secretary, of which there is evidence of respondent's knowledge.3 Other evidence introduced may reasonably be taken to establish the following facts: Following its unsuccessful attempts to obtain the records from the chairman and executive secretary, the Committee issued subpoenas to all sixteen members of the executive board of the association, commanding them to appear on April 4, 1946, in the Committee's chamber, there to produce the records. The subpoena served on respondent was addressed to her as 'a member of the executive board of the Joint Anti-Fascist Refugee Committee.'4 The board had power, its members acting jointly, to direct Miss Bryan to produce the records, to transfer custody of the documents to some other person, or to remove her from office.5 But during the interval between March 29, when the subpoenas were issued, and April 4, when its members appeared before the Committee, no meeting of the executive board was held to discuss compliance. A number of members of the board met in an attorney's office in New York on April 2, when he gave to each a typewritten statement to read to the Committee. 6 All of the members who had been subpoenaed appeared at the time and place specified in the subpoenas. No one produced the records. Each of the sixteen members of the board, including respondent, read or handed to the Committee the identically worded statements prepared by the association's attorney. These statements read: 'I individually do not have possession, custody, or control over any of the material requested in the subpoena which was served upon me. The books, rescords, and correspondence of the Joint Anti-Fascist Refugee Committee are in the possession, custody, and control of Miss Helen R. Bryan, the executive secretary of our organization, and she is the legal custodian of the material. Since I do not have either in my possession, custody, or control the books, records, and documents described in the subpoena, I am unable to comply with your order to produce them.' 7 Upon being questioned by the Committee as to whether she, individually, would give her consent to production of the books, respondent's answer was that that question was 'not pertinent'; that she would decide only at a meeting of the board. 8 Respondent and the other members of the board were jointly indicted on a charge that they 'appeared before the Congressional Committee in the City of Washington, District of Columbia, on April 4, 1946, but failed to produce the records called for in the subpoenas, as they had power to do, and thereby wilfully made default.' As we have pointed out, there is evidence to support the charge that the records were under the joint control of the members of the executive board and that the individual members, acting together, had power to produce them. It is contended, however, that respondent (in this respect no different from any other member) had no individual control over the records, and that there is thus no evidence that the nonproduction of the records resulted from anything she personally did or omitted to do. 9 It seems elementary that the only manner by which a duty requiring the joint participation of several persons may be performed is by a combination of individual performances. And conversely, the failure to perform such a duty is the result of a failure by some or all of the persons who have been ordered to act together to discharge their responsibilities. This failure is not necessarily the result of a conspiracy, which premises an agreement of some kind. One may, either alone or in concert with others, fail to perform his individual part of a task requiring joint participation. 10 When one accepts an office of joint responsibility, whether on a board of directors of a corporation, the governing board of a municipality, or any other position in which compliance with lawful orders requires joint action by a responsible body of which he is a member, he necessarily assumes an individual responsibility to act, within the limits of his power to do so, to bring about compliance with the order. It may be that the efforts of one member of the board will avail nothing. If he does all he can, he will not be punished because of the recalcitrance of others. Commissioners v. Sellew, 1879, 99 U.S. 624, 627, 25 L.Ed. 333. But to hold that, because compliance with an order directed to the directors of a corporation or other organization requires common action by several persons, no one of them is individually responsible for the failure of the organization to comply, is effectually to remove such organizations beyond the reach of legislative and judicial commands. This Court and the state courts which have considered the matter6 have adopted a contrary view. In Wilson v. United States, 1911, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558, Mr. Justice Hughes stated the proposition thus: 'A command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for the performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience, and may be punished for contempt.' Id. 221 U.S. at page 376, 31 S.Ct. at page 543. (Emphasis supplied.) See also Commissioners v. Sellew, supra.7 11 Nor is a distinction to be drawn on the ground that a corporation was there involved while the Joint Anti-Fascist Refugee Committee is an unincorporated association. Brown v. United States, 1928, 276 U.S. 134, 141—142, 48 S.Ct. 288, 289, 72 L.Ed. 500, makes it clear that a subpoena directed to an unincorporated association and its officers is equally valid. If the legislative committee had a right to demand the records, the directing officers of the association are quite as responsible for their production as if they were corporate officers. Cf. United States v. White, 1944, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, 152 A.L.R. 1202.8 12 The question that remains is whether, after introducing evidence that the board had power to produce the records, that it had not done so, and that each member of the board had read the identical statements quoted above as his reason for noncompliance, the Government has the further burden of proving that each individual member had not done that which was within his power to bring about compliance with the Committee's order. It may well be that respondent's prepared statement before the Committee and her answers to the Committee's questions are sufficient in themselves to satisfy that requirement. For they indicate clearly that respondent had assumed no personal duty to do anything. The prepared statement was, of course, a patent evasion of the Committee's demands. While stating that each member of the executive board individually did not have control over the records, it does not deny, as it could not, that the members had power jointly to comply with the subpoenas. Since the subpoenas required that they act jointly—the previous demands on the chairman and the executive secretary individually having been of no avail—the statement that the members individually had no power to comply is completely irrelevant. 13 And when the Committee asked respondent whether she, personally, would permit the Committee to have access to the books, her answer again was an evasion. She said: 'I don't think it is pertinent to say what I should do a week from now.' 14 The difficulty with the position is that it is not for her nor any other member of the board to say that she would make up her mind next week. The return day of the subpoena had arrived. No one so much as hinted that there had been no time to act. The members had gathered in an attorney's office on April 2, when they received their statements. There was evidence that some members had gathered informally elsewhere to discuss the question of compliance. In fact all were present in the anteroom of the Committee's chamber on the morning of April 4. If there had been the slightest bent toward compliance, the opportunities were there. When respondent appeared before the Committee, she was asked in effect, as of that time, whether she was a party to the joint refusal to produce the records: 'Would you now, right here now, give your consent to this committee to (see the books and records)?' As one of the members of the Committee stated to respondent: 'That is the main thing, the whole case.' Her answer was no answer. 15 It may be argued, however, that respondent may have adopted the position of the other members of the board only after she had tried in good faith to bring about compliance with the subpoena. Or perhaps she had been ill or necessarily out of town immediately prior to April 4. Granting that these or other excuses for nonaction may exist, must the Government negative each, or was the burden on respondent to advance them as defensive matter? 16 We think that the circumstances of this case fairly bring into play the familiar doctrine in criminal cases that 'it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could be readily disproved by the production of documents or other evidence probably within the defendant's possession or control.' Rossi v. United States, 1933, 289 U.S. 89, 91—92, 53 S.Ct. 532, 533, 77 L.Ed. 1051, and authorities cited. The considerations that govern this question have been well stated by Mr. Justice Cardozo in discussing a similar question—the constitutionality of a statute which shifted the burden of proof in a criminal prosecution to the defendant. He said: 17 'The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. 18 '* * * For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance * * * or, if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception. Greenleaf, Evidence, Vol. 1, § 79.* The list is not exhaustive. Other instances may have arisen or may develop in the future where the balance of convenience can be redressed without oppression to the defendant through the same procedural expedient. The decisive considerations are too variable, too much distinctions of degree, too dependent in last analysis upon a common sense estimate of fairness or of facilities of proof, to be crowded into a formula. Once can do no more than adumbrate them; sharper definition must await the specific case as it arises.' Morrison v. People of State of California, 1934, 291 U.S. 82, 88—91, 54 S.Ct. 281, 284, 78 L.Ed. 664.9 19 In this situation, manifestly, the prosecution is under a serious practical handicap if it must prove the negative proposition—that respondent did not or had no good reason for failing to try to comply with the subpoena insofar as she was able. The possibilities of time and circumstance are of such wide range as to defy inclusive rebuttal. On the other hand, the burden of the affirmative was not an oppressive one for respondent to undertake; the relevant facts are peculiarly within her knowledge. She was called upon merely to introduce evidence as to what steps she took after receiving the subpoena, or, if she took no action, any evidence tending to excuse her omission. Respondent does not lose the presumption of innocence that surrounds the defendant in a criminal prosecution. That presumption continues to operate until overcome by proof of guilt beyond a reasonable doubt and is not to be confused with burden of proof, which is a rule affecting merely the time and manner of proof. See 1 Wharton, Evidence (11th Ed.) §§ 199—204.10 20 Even though we assume, therefore, contrary to the reasonable inferences to be drawn from respondent's statements before the Committee, that she may have made some effort to bring about compliance with the subpoena, or had some excuse for failing to do so, we think that under the circumstances here presented the burden was upon her to present evidence to sustain such a defense. And, in the absence of such evidence, we conclude that the evidence adduced by the Government amply sustains the conviction. Respondent is no more or less guilty than any other member of the board. If she can escape prosecution by remaining quiescent, so can all the others. If hers is a valid defense, then all that the directors of a corporation need do when they and the corporation are served with subpoenas is to refrain from discussing compliance with the order. No one need make any attempt to comply, for none of them 'individually' has control over the action—or nonaction—of the corporation. A stratagem so transparent does not cast a shadow of substance.11 21 It should be emphasized that we are not dealing with the duties of witnesses summoned by one committee but with the obligations owed by persons summoned by authority of the Senate or House of Representatives to appear before any person or group designated by that authority. Reforms in the practices and procedures of certain committees are vigorously demanded by persons both within and without Congress. We would not be understood in this case as expressing either approval or disapproval of those practices. But the remedy, if any is needed, is certainly not to destroy the effective operation of all committees, which is the necessary result if they cannot compel the disclosure of facts. A subpoena is a sterile document if its orders may be flouted with impunity. 22 Respondent advances a number of contentions which were not passed upon by the Court of Appeals. We do not decide them at this time. The judgment of the Court of Appeals is 23 Reversed. 24 Mr. Justice DOUGLAS and Mr. Justice CLARK took no part in the consideration or decision of this case. 25 Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER concurs, dissenting. 26 The Court holds that there is sufficient evidence in this record to support the conviction of respondent Fleischman under R.S. § 102. I cannot agree. Whether the evidence is sufficient depends primarily on what conduct is made criminal by R.S. § 102 and what action is required by a subpoena duces tecum. My views on these questions differ so drastically from those of the Court that I shall present them, and the conclusions which they dictate, before turning to the Court's opinion. 27 I. R.S. § 102 provides: 'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers * * * willfully makes default, * * * shall be deemed guilty of a misdemeanor.' This criminal statute is limited by its terms to just two types of congressional orders: (1) a subpoena to give testimony, and (2) a subpoena to produce papers. The latter type of order is involved here. 28 Refusal to comply with a subpoena to produce papers can be punished only if the witness has power to produce. It is a complete defense for him to show that the papers are not in his possession or under his control. For a subpoena duces tecum does not require a witness 'to sue and labor in order to obtain the possession of any instrument from another for the purpose of its production afterwards by himself. * * *' Munroe v. United States, 1 Cir., 216 F. 107, 111—112, L.R.A.1915B, 980, quoting Lord Ellenborough's opinion in Amey v. Long, 9 East 473, 483; see the general discussion in Notes, L.R.A.1915B, 980—985; 32 Am.St.Rep. 648. A command to produce is not a command to get others to produce or assist in producing. Of course Congress, like a court, has broad powers to supplement its subpoena with other commands requiring the witness to take specific affirmative steps reasonably calculated to remove obstacles to production. But even though disobedience of such supplementary orders can be punished at the bar of Congress as contempt, Jurney v. MacCracken, 294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802, it does not come within the limited scope of R.S. § 102. Only by importing the broad contempt powers of Congress into this criminal statute can this Court say that it does. I cannot agree to such cavalier expansion of any criminal provision. 29 Prosecution under R.S. § 102 is thus limited to a range far narrower than is a proceeding for contempt, either in court or at the bar of Congress. And even under the notoriously broad contempt power, punishment is justifiable only when a person has failed to comply with an order specifying precisely what he must do, and when he has power himself to do what is ordered.1 Certainly no less precise standard should be established in prosecutions for violation of a criminal statute. Cf. Pierce v. United States, 314 U.S. 306, 310—311, 62 S.Ct. 237, 239, 86 L.Ed. 226. 30 Viewed in this light, the evidence in this case unmistakably falls short of proving that Fleischman disobeyed the subpoena or violated the statute. The Government did succeed in establishing that she had received the subpoena, knew approximately what documents she was required to produce, and yet failed to produce them. But an essential ingredient of the offense—that she had power to produce those records on April 4—remains completely unsubstantiated.2 The Government does not contend that Fleischman had power to produce except by acting jointly with other members of the board. And, for the reasons stated above, the subpoena addressed to Fleischman as an individual board member imposed on her no duty to prod others to produce, or to initiate joint action aimed at production.3 31 Because of the limited scope of R.S. § 102 and the complete absence of proof that Fleischman had power to produce the subpoenaed documents, her conviction of the crime created by that statute should be set aside. 32 II. The Court does not dispute that the evidence is insufficient to uphold Fleischman's conviction under the established principles outlined above. Rather it constructs a novel legal theory which, however plausible on the surface, will not stand detailed analysis. 33 The chain of reasoning on which its legal theory hangs appears to be this: Fleischman and other members of the executive board were served with separate subpoenas ordering each to produce papers of the association on April 4; Bryan, the executive secretary, had possession of the papers; the individual subpoenas imposed on each board member a personal duty to do all each could to bring about joint action that would cause production; had Fleischman performed her individual part of this joint task, she might have prevailed on the board to pass a resolution which might have forced Bryan to produce; Fleischman failed to show that she had done all she could to bring about that result; therefore Fleischman was properly convicted of the crime of wilfully disobeying the subpoena addressed to her as an individual member of the board. 34 In this intricate chain, certain crucial links are entirely missing and others are far too weak to sustain a criminal conviction: 35 A. The foundation of the Court's theory is that a subpoena duces tecum addressed to an individual board member, includes the command that he do 'all he can' to bring about joint board action to produce the subpoenaed papers.4 This doctrine expands the scope of the subpoena duces tecum far beyond its traditional boundaries, which are outlined in Part I supra. No precedent for such an expansion can be found in the two cases relied on by the Court. 36 Commissioners v. Sellew, 99 U.S. 624, 25 L.Ed. 333, merely approved issuance of a writ of mandamus to a county commission ordering specific action on a specific date as specifically required by Kansas statutes. Such is the traditional function of mandamus. Seldom has a judicial order been more explicit. In sharp contrast to Fleischman, the commissioners were not required to hazard the least guess as to what action would satisfy the judicial mandate. Both the mandate and the applicable state statutes told them precisely what to do.5 37 Nor does the opinion in Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558, support today's holding that an order to produce papers requires a person, without further orders, to take action getting others to produce. The Court relies on a dictum that corporate officials can be required to take 'appropriate action' to secure performance of a corporate duty. Even the dictum, however, must be read in the context of that case. Wilson, the president of a corporation to which a subpoena was addressed, had actual custody of the subpoenaed records. Appearing before the grand jury with several corporation directors, he refused to produce. The directors denied power to make him do so. In the resulting contempt proceedings, the prosecuting attorney complained that the Government had been after the records 'in one way or another before this same grand jury for nearly a month.' He emphasized that many of the directors had frequently appeared before the grand jury, and indeed had spent the entire preceding day there.6 In view of the frequent and prolonged appearances of the directors before the grand jury, even a passing acquaintance with how a grand jury operates would make it inconceivable that 'one way or another' did not include oral orders to take action aimed at forcing Wilson to turn over the records. Whether such orders were specific enough to justify holding the directors in contempt, or whether failure to take any action would justify punishment for violation of the subpoena itself without first ordering the directors to take specific steps, became immaterial when the directors passed a resolution ordering Wilson to produce. The directors were found innocent, and the only issues before this Court involved Wilson's guilt. Read in this context, the dictum on which the Court relies affords no support whatever for its conclusion here that a subpoena, of itself, imposes the amorphous duty of 'appropriate action' to get others to produce. Moreover, citation of the Sellew case as authority for the dictum clearly indicates that the 'appropriate action' would have to be designated and commanded by specific orders. Nothing in the Wilson opinion can fairly be interpreted as supplanting, or even casting doubt on, the traditional rule that failure to take action required by an order can be punished only if the action is clearly, specifically, and unequvocally commanded by that order.7 38 Apparently the only reason given for discarding this rule is the Court's statement that failure to construe an individual subpoena as requiring joint action by members of a board would 'remove such organizations beyond the reach of legislative and judicial commands.' That fear is without foundation. A custodian wilfully failing to produce records can be prosecuted under R.S. § 102. And under 18 U.S.C. § 2, 18 U.S.C.A. § 2, any one 'aiding or abetting' her also becomes a principal in that offense and is similarly subject to R.S. § 102. Moreover, a conspiracy to prevent production would certainly provide grounds for conviction. Thus there is no question that Fleischman's conviction could be sustained if there had been sufficient evidence that she actually aided or encouraged the custodian's refusal to produce, or conspired to accomplish that result.8 And in the rare instance where these sanctions seem unlikely to secure compliance, Congress can always fall back upon its arsenal of supplementary orders enforced by congressional contempt proceedings:9 officers with authority to call a board meeting can be ordered to do so, and board members can be ordered to vote for resolutions calculated to foster production. It can be safely presumed that any organization capable of escaping this barrage would not be brought into line by today's expansion of R.S. § 102. A subpoena is not made 'sterile' by holding that it commands only what it says it commands. 39 In fact, the Court's new doctrine creates a danger far more genuine than what it allegedly avoids. While in contempt proceedings a witness in doubt as to just what action is demanded can be given more precise orders before a tribunal decides to punish him for noncompliance, no such flexibility exists in criminal prosecutions under R.S. § 102. As applied to such prosecutions, the sweeping requirement that a witness not having custody or control of subpoenaed documents must do 'all he can' to secure their production places him in an unfair dilemma. Caution dictates that he 'sue and labor' to obtain the papers, however great and however useless the effort and expense. On the other hand, common sense counsels that he make such practical efforts as would satisfy a reasonable jury—and not until the jury has spoken will he know whether he guessed right. 40 Not even after today's opinion can Fleischman—or, for that matter, anyone else-know precisely what steps were required of her to encourage production of documents which she herself could not produce.10 41 B. Even if the theory on which this Court upholds Fleischman's conviction were tenable, it is, as might be expected from its novelty, completely different from the theory on which the case was tried. An essential element in the trial judge's charge was his instruction that the jury could find Fleischman guilty only if it found that she had 'acted in concert with other members of the executive board' to prevent production. But the Court, without even attempting to support her conviction on this theory, substitutes a theory involving completely different problems of proof and evidence.11 The issue of whether Fleischman had failed to attempt to persuade others to produce was not being tried, and there was no reason for her to introduce evidence concerning it. The question on review is not whether the record as a whole exudes a general impression of guilt, but whether the evidence supports a finding of guilt of the issues presented to the jury by the trial judge's charge, Bollenbach v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 405, 90 L.Ed. 350. This Court should heed its mandates forbidding state appellate courts to uphold convictions on any theory materially different from that on which the case was presented to the jury. See Cole v. State of Arkansas, 333 U.S. 196, 201—202, 68 St.Ct. 514, 517, 92 L.Ed. 644. 42 C. The Court relies heavily on statements made by Fleischman before the congressional committee. But these statements are expressly made inadmissible by 18 U.S.C. § 3486, 18 U.S.C.A. § 3486, which provides that no testimony given by a witness before any committee of either house 'shall be used as evidence in any criminal proceeding against him in any Court, except in a prosecution for perjury committed in giving such testimony.' See United States v. Bryan, 339 U.S. 323, 346, 70 S.Ct. 724, 738. 43 Nor does Fleischman's testimony, even if admissible, support the inferences drawn from it by this Court. Weighty significance is attached to her refusal to say how she would vote on the question of production if a board meeting were held. Suffice it to say that no meeting had been held following her receipt of the subpoena, no future meeting had any relevance whatever to the past offense with which she was charged, and the subpoena did not order her to take action at a board meeting anyway. See part I supra. 44 Equally unwarranted is the inference drawn by the Court from the fact that Fleischman and other board members read the same statement denying individual possession or control over the subpoenaed documents. The Court refers to this statement, prepared by a lawyer, as a 'patent evasion' of the committee's order. On the contrary, I regard the denial of individual power to produce as a complete and adequate response to the individual subpoenas. And surely, although the Committee would not permit counsel for witnesses to enter the committee room, witnesses have always been entitled to get advice from a qualified lawyer and present a statement prepared by him without having inferences of guilt drawn from that fact. 45 D. Power to produce is an essential ingredient of any offense under R.S. § 102, and the indictment necessarily alleged that 'each and all' of the board members had such power. Thus proof of Fleischman's power to produce the subpoenaed papers is undeniably vital to the Court's theory of the case. 46 The only evidence tending to show power in the board itself to produce is that it had authority over the policies and activities of the association, and had power to suspend Bryan at any regular board meeting.12 Assuming that the board could have ordered Bryan to produce under threat of suspension, the Wilson case demonstrates that prospective obedience to such a potential board order cannot accurately be inferred merely from the supremacy of a board. And this record is barren of any evidence to support a finding that Bryan would have complied on April 4th with a board order. 47 Equally important under the Court's theory is the question of Fleischman's own power to bring about production. The Court holds that membership on the board gave her one-eighteenth of the board's official 'power,' which it considers enough to support conviction. But her fraction of official 'power' could be exercised only at an official meeting. There is no showing that any meeting was held between March 29 and April 4, or that Fleischman had power to call such a meeting.13 And I do not understand the Court to say that the 'power to produce' which Fleischman criminally failed to exercise was solely some imagined personal ability, unconnected with her official capacity, to attempt to cajole the chairman into calling a meeting or ordering production. 48 Upon a showing merely that the board controlled the 'policies and activities' of the association and that she was a board member, the Court imposes on Fleischman the burden of disproving the crucial allegation of 'power to produce' by establishing that she had done 'all she could' to bring about production. In effect it has set up a presumption that every board member automatically has such power, and has saddled Fleischman with the burden of proving her innocence by showing that the presumption should not apply to her.14 In the absence of some showing that she had authority to call or an opportunity to vote at an official board meeting, or at least had substantial influence over other board members, this is every bit as arbitrary as the presumption rejected in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519.15 That case directly bars use of such a device to shift the burden of proof, however convenient it would be for the prosecutor. And without that device, the Government's case was clearly insufficient to support the verdict. 49 The time-honored rule, that the Government is required to prove every essential ingredient of an offense it charges, provides a safeguard essential to preservation of individual liberty against governmental oppression. It should not be sacrificed in order to sustain the conviction of a single defendant whose guilt the Government has plainly failed to prove. 50 If the Court's theory merely had any one of the above flaws, its chain of reasoning would break. With all four, it collapses. The judgment of the Court of Appeals should be affirmed. 51 Mr. Justice FRANKFURTER, dissenting. 52 Any one who 'willfully makes default' in obeying a valid subpoena to produce records before a committee of Congress has, ever since 1857, been guilty of a federal offense. Act of January 24, 1857, 11 Stat. 155; R.S. § 102, as amended by Joint Resolution of June 22, 1938, 52 Stat. 942, now 2 U.S.C. § 192, 2 U.S.C.A. § 192. This was the offense for which respondent was prosecuted. The trial court thus put to the jury the theory of the prosecution: 'If you find that the members of the executive board, directly or indirectly, had custody or dominion and control over the records subpoenaed and could have produced the records called for, but wilfully failed and refused to do so, and that the defendant Fleischman acted in concert with other members of the executive board, either throughout or at any point, to prevent the committee from getting the subpoenaed records, then you may find the defendant Fleischman guilty, if you find that the other elements hereinafter set out have been proved by the United States beyond a reasonable doubt.' 53 The only 'other element' that bears on the issue of the sufficiency of the evidence was the court's explanation that the requirement that the default be made 'willfully' means that the default must be 'deliberate and intentional.' 54 The indictment against respondent also had a count charging her and others with conspiring to make willful default of congressional subpoenas. It is inappropriate to consider whether the evidence would have been sufficient to bring respondent within the expansive range of a conspiracy charge or whether evidence that could have been admitted under such a charge but was not admissible in this trial would have sufficed to prove guilt. For its own good reasons the Government dismissed the conspiracy charge against Fleischman. A careful study of the record compels the conclusion that Edgerton, J. conveyed fairly and in balance all that the Government proved against respondent on the charge on which she was tried: 'Appellant testified without contradiction that she could not produce the records because they were not in her possession or control. She refused to express either willingness or unwillingness that they be produced.8 Even this refusal did not occur until she was questioned by members of the Congressional Committee on April 4. The records were in possession of one Bryan, subject to control by an Executive Board of about 18 members of whom appellant was one. Long before April 4 Bryan, directed by other members of the Board but not by the appellant, had determined not to produce the records. There is no evidence that appellant ratified or approved the action of the other members of the Board. The government says 'In taking part in a combined action to withhold records from a Congressional Committee the appellant acted at her own peril.' But I have not been able to find any evidence, and no evidence has been pointed out, that the appellant took part in a combined action to withhold records. It has been suggested that she might have asked the Board, or Bryan, to produce the records. But there is no evidence that if she had asked them they would have complied. There is no evidence that the nonproduction of the records in the committeeroom resulted either from anything the appellant did or from anything she omitted to do.' 84 U.S.App.D.C. 388, 390, 174 F.2d 519, 521. 55 The respondent was summoned to produce papers before a congressional committee and did not produce them. For this non-action she was prosecuted as a person who 'willfully makes default' in not producing the papers. I believe in giving penal statutes a scope their words would receive 'in everyday speech.' McBoyle v. United States, 283 U.S. 25, 26, 51 S.Ct. 340, 75 L.Ed. 816, and see Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722. If language in a criminal statute is to be read with the normal meaning of English speech, 'willfully makes default' surely conveys the thought of a substantial tie between the non-production of papers and the non-action to which it is attributed. This record is barren of the proof which under our system of punitive justice would have warranted a jury to find that respondent was actively or passively responsible for the non-production of the papers she was asked to produce. 56 This conclusion does not imply the slightest relaxation of the duty of obedience to the lawful commands of congressional committees in exercising their power of testimonial compulsion. McGrain v. Dautherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1. But regard for that power does not call for the slightest relaxation of the requirements of our criminal process. A penal statute must not be applied beyond its terms, and the crime defined by it and charged in an indictment must be established by proof beyond a reasonable doubt. 57 It may well be that the House committee should have asked respondent to try to have convened a meeting of the executive board with a view to asking the custodian of the records to produce them. Such a procedure is suggested by what was done in Wilson v. United States, 221 U.S. 361, 370-371, 31 S.Ct. 538, 540, 55 L.Ed. 771, Ann.Cas.1912D, 558. Had respondent refused she would have subjected herself to a contempt proceeding for disobedience of a command of the committee. But this is not such a proceeding. As to the offense for which she was prosecuted, I agree with Judge Edgerton that an acquittal should have been directed. 1 11 Stat. 155, as amended, R.S. § 102, 2 U.S.C. § 192, 2 U.S.C.A. § 192. '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.' 2 See United States v. Bryan, 339 U.S. 323; 70 S.Ct. 724. 3 This evidence consisted of a resolution passed by the executive board on December 14, 1945, condemning the Committee's investigation and directing Miss Bryan to consult with an attorney with a view toward protecting the records from the Committee, and the minutes of a meeting of February 11, 1946, at which the executive board voted to instruct Dr. Barsky not to produce the records before the Committee, as he had been ordered to do. While respondent did not participate in either of these actions, her knowledge of the Committee's efforts to obtain the records and the board's previous actions with respect thereto was shown by evidence of her attendance of a board meeting in March, 1946, when Dr. Barsky reported concerning his appearance before the Committee on February 13, and the association's attorney was present and talked to the board about its legal position in the matter. 4 The subpoena served on Mrs. Fleischman read as follows: 'Copy, By Authority of the House of Representatives of the Congress of the United States of America, 'To the Sergeant-at-Arms, or His Special Messenger: 'You are hereby commanded to summon Mrs. Ernestina G. Fleischman, 'Voice of Fighting Spain,' 1 Columbus Avenue, New York City, a member of the executive board of the Joint Anti-Fascist Refugee Committee, to be and appear before the Un-American Activities Committee of the House of Representatives of the United States, of which the Honorable John S. Wood is chairman, and to bring with you all books, ledgers, records, and papers relating to the receipt and disbursement of money by or on account of the Joint Anti-Fascist Refugee Committee or any subsidiary or subcommittee thereof, together with all correspondence and memoranda of communications by any means whatsoever with persons in foreign countries. The said books, papers and records demanded herein are for the period from January 1, 1945 up to and including the date of this subpoena, in their chamber in the city of Washington, on April 4, 1946, at the hour of 10 a.m., then and there to testify touching matters of inquiry committed to said Committee; and (she) is not to depart without leave of said committee. 'Herein fail not, and make return of this summons. * * *' It is now suggested that this subpoena is defective because addressed not to the association by name but to respondent as a member of the executive board of the association, and Wilson v. United States, 1911, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558 and Commissioners v. Sellew, 1879, 99 U.S. 624, 25 L.Ed. 333 are distinguished on that ground. We can think of no clearer way of notifying respondent that she was required to perform her duty as a member of the governing board of the association than to serve an individual subpoena upon her, addressed to her in her official capacity as a member of the executive board, and calling for the production of papers which she knew were under the control of the executive board. This subpoena makes explicit what is merely implicit in subpoenas addressed to an organization by name and served on individual directors, as was done in the Wilson case. 5 Mrs. Fleischman's testimony concerning the powers and authority of the executive board was as follows: 'The Chairman: There isn't any other authority higher than the executive board? 'Mrs. Fleischman: No. 'The Chairman: And on all matters of policy, direction of the activities of the Joint Anti-Fascist Refugee Committee, the executive board is the highest authority? 'Mrs. Fleischman: Yes. 'The Chairman: Now, as a member of that board—you say you are a member now? 'Mrs. Fleischman: Yes. 'The Chairman: As a member of that board are you willing, so far as you personally are concerned, as a member of that board are you now willing to permit this committee of Congress to see those books and records called for in that subpoena? 'Mrs. Fleischman: I don't know what I would do. It would require a meeting of the board.' (Emphasis supplied.) There was also testimony that the board had power to transfer custody of the records from Bryan to some other person and that, in fact, the vote at the February 11 meeting had been on that very question. 6 For applications of this principle in the analogous situation presented by noncompliance with a mandamus, see State ex rel. Gulf Life Ins. Co. v. City of Live Oak, 1936, 126 Fla. 132, 170 So. 608; Littlefield v. Town of Adel, 1921, 151 Ga. 684, 108 S.E. 56; Smith v. Lott, 1923, 156 Ga. 590, 119 S.E. 400, 30 A.L.R. 145; McCulloch v. State, 1910, 174 Ind. 525, 92 N.E. 543; Middle States Utilities Co. v. City of Osceola, 1942, 231 Iowa 462, 1 N.W.2d 643; Kentucky Culvert Mfg. Co. v. Elliott County Fiscal Court, 1931, 239 Ky. 797, 40 S.W.2d 375; State ex rel. City of Minneapolis v. Minneapolis Street R. Co., 1923, 154 Minn. 401, 191 N.W. 1004; Heather v. City of Palmyra, 1927, 317 Mo. 1320, 298 S.W. 750; Commonwealth ex rel. Brown v. Schmidt, 1926, 287 Pa. 150, 134 A. 478; Butler County v. Pittsburgh, H., B. & N.C.R. Co., 1929, 298 Pa. 347, 148 A. 504. 7 It is suggested that the Wilson case is distinguishable because it may be inferred from the fact that, according to Government counsel, the Government had been after the records 'in one way or another' for nearly a month that the subpoenas duces tecum served upon the directors had been supplemented by oral orders. There is not one word in the Wilson record that supports such an inference. On the contrary, the grand jury's presentment was not for failure to obey any oral commands but 'for failure to obey a certain subpoena issued out of this Court, dated October 28, 1910.' Vide the following: 'The Court: What is the presentment precisely? 'Mr. Wise (Government Counsel): The Grand Jury presents that the corporation is in contempt of this court in not obeying the subpoena, that these gentlemen are in contempt of Court in that they have known and had actual notice of the subpoenas issued to the corporation requiring it to produce these books, and in defiance of this court and of its process have failed to take any action to have their corporation comply with the process * * *.' 8 The argument that respondent was tried and convicted upon a theory different from that upon which the evidence is here found sufficient to sustain the conviction is refuted by the record, which is full of discussion concerning the import of the Wilson case. The following is representative: 'Mr. Rogge (counsel for respondent): * * * Let's look at the Wilson case again, which the Court of Appeals passed on (in Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, 251). It says if your members have the right to direct the corporation and fail to take appropriate action; in order to be free of guilt here did Ernestina have to be a propagandist and go to the board members and say before taking action— 'The Court (interposing): When she takes on the responsibility of an executive board member certain responsibilities flow along with that when she does it. 'Mr. Rogge: She is a member of the executive board. The evidence has shown that. * * * The record also shows that, what you get down to is that Ernestina, in order not to be guilty here, had to see to it that some sort of an affirmative action was taken, and I do not think that is required even under the Wilson case.' * The Court's footnote reads: 'Instances of the application of this principle can be cited in profusion. The cases that follow are typical examples: King v. Turner, 5 Maule & Sel. 206, where a defendant having game in his possession in violation of a statute whereby possession was generally a crime, was held to have the burden of proving his special qualifications (cf. Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904, supra; also Spieres v. Parker, 1 T.R. 144, per Lord Mansfield); Fleming v. People, 27 N.Y. 329, a prosecution for bigamy, where, on proof that the defendant had contracted a second marriage during the lifetime of his first wife, the burden was laid upon him to prove exceptional circumstances that would have made the marriage lawful; and finally such cases as Potter v. Deyo, 19 Wend. (N.Y.), 361, 363, and United States v. Turner (D.C.), 266 F. 248 (typical of a host of others) where a defendant has been subjected to the burden of producing a license or a permit for a business or profession that would otherwise be illegal. Cf. United States v. Hayward, 26 Fed.Cas. page 240, No. 15,336; Board of Com'rs Excise of Auburn v. Merchant, 103 N.Y. 143, 8 N.E. 484, 57 Am.Rep. 705.' 9 See also Williams v. United States, 1943, 78 U.S.App.D.C. 147, 138 F.2d 81, 153 A.L.R. 1213. In Tot v. United States, 1943, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, this Court refused to uphold a federal statute creating a presumpton that firearms found in the possession of one who has previously been convicted of a crime of violence were received by him in interstate or foreign commerce after July 30, 1938, on the ground that the presumption is 'inconsistent with any argument drawn from experience.' Id. 319 U.S. at page 468, 63 S.Ct. at page 1245. 10 This conclusion is buttressed by the fact that such a burden ordinarily is cast upon members of the governing boards of corporations and associations which have not complied with court orders, when they are brought into court on contempt charges. In Wilson v. United States, 1911, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558, where Wilson, the president of the corporation, had custody of the books and had removed them to his home, the corporation and five of its directors were served with subpoenas to produce. The directors appeared in court and were not held in contempt although they did not produce the books because, as this Court noted in its opinion: 'On behalf of the directors before the court, it was stated that they had made efforts to obtain the books for production before the grand jury, but that Wilson had declined to surrender them. They presented the minutes of a meeting of the board of directors held on that day, at which these directors, (i.e. those who had been served with subpoenas) constituting a majority of the board, had passed a resolution demanding of Wilson the possession of the letterpress copy books called for by the subpoena 'for the production of the same before the Federal grand jury." Id. 221 U.S. at page 371, 31 S.Ct. at page 540. Again, in contrasting Wilson's actions with those of the directors, the Court stated: 'The appellant did not attempt to assert any right on (the corporation's) part; his conduct was in antagonism to the corporation, so far as its attitude is shown. A majority of the directors, not including the appellant, appeared before the court and urged their solicitude to comply with the writ. They presented their formal action, taken at a meeting of the board, in which they demanded of the appellant the delivery of the books for production before the grand jury.' Id. 221 U.S. at page 376, 31 S.Ct. at page 542. In considering this practice it should be noted that in criminal contempts, as in criminal cases, the presumption of innocence obtains; proof of guilt must be beyond a reasonable doubt; and the defendant may not be compelled to be a witness against himself. Gompers v. Bucks Stove & Range Co., 1911, 221 U.S. 418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797, 34 L.R.A., N.S., 874; United States v. Goldman, 1928, 277 U.S. 229, 235—236, 48 S.Ct. 486, 487, 488, 72 L.Ed. 862; Michaelson v. United States ex rel. Chicago, St. P., M. & O.R. Co., 1924, 266 U.S. 42, 67, 45 S.Ct. 18, 20, 69 L.Ed. 162, 35 A.L.R. 451. 11 The proposition that one who tries but fails to obtain compliance with a subpoena requiring the joint action of several persons has made a useless and 'empty gesture' which should not be compelled by the courts overlooks the fact that if enough members of the governing body make the attempt required by the subpoenas their joint effort will ordinarily be successful. In the Wilson case itself the difference between imprisonment of the directors for contempt and their acquittal was their 'empty gesture' of calling upon Wilson to produce the records. See note 10, supra. 1 The two components of this general principle and their application to this case are discussed in II (A) and II (D) infra. 2 The Court's attempt to offset this deficiency is discussed in II (D) infra. 3 Whether joint action would have been rerequired by a subpoena addressed to the board is completely irrelevant for the reasons set out in note 4 infra. It should be noted, however, that an order to the board as an entity necessarily implies joint action; one addressed to an individual member does not. Moreover, the former is sufficiently specific if it tells the board exactly what to do; the latter must tell the individual what to do. In either case, the recipient must have power to do what is ordered before punishment is justified. 4 While a subpoena was also addressed to the board as an entity, there is utterly no evidence that Fleischman ever knew of it. Therefore, like the Court, we treat the case as if no board subpoena had ever been issued. 5 The string of mandamus cases cited in note 6 of the Court's opinion are equally inapplicable for the same general reason. No case cited supports the Court's position. 6 It should be noted that the directors appeared in response to a subpoena addressed to the corporation. Unlike Fleischman, they were not subpoenaed individually. See note 3 supra. 7 See, e.g., McFarland v. United States, 7 Cir., 295 F. 648, 650: 'Certainly before one may be punished for contempt for violating a court order, the terms of such order should be clear and specific, and leave no doubt or uncertainty in the minds of those to whom it is addressed.' See also Berry v. Midtown Service Corp., 2 Cir., 104 F.2d 107, 111, 122 A.L.R. 1341, and National Labor Relations Board v. New York Merchandise Co., 2 Cir., 134 F.2d 949, 952. In the latter case the court, in an opinion by Judge Learned Hand, characterizes as 'cardinal' the rule that 'no one shall be punished for the disobedience of an order which does not definitely prescribe what he is to do.' For application of the same general rule to contempt proceedings for enforcement of a court decree, see Terminal R.R. Ass'n of St. Louis v. United States, 266 U.S. 17, 29, 45 S.Ct. 5, 8, 69 L.Ed. 150. 8 One count of the indictment actually charged Fleischman and other members of the board with conspiracy. That count was dismissed. As for Fleischman's guilt as an 'aider and abettor,' that question was submitted to the jury by the trial judge's charge. In affirming, this Court does not even suggest that there was evidence to show that Fleischman had ever aided or encouraged Bryan or any one else. That Fleischman's conviction cannot be upheld under existing doctrines does not establish the inadequacy of those doctrines for any purpose except convicting one whose guilt as charged has not been proven. 9 See Part I supra. 10 There is not the slightest indication that anything Fleischman could have done even had a prospect of fostering compliance with the subpoena. See II (D) infra. Apparently Fleischman's conviction is being upheld because she failed to make some undefined empty gesture. 11 The Court attempts to justify its change of theories by quoting from a bench argument between Fleischman's attorney and the trial judge. Such an argument cannot alter the theory on which the case was submitted to the jury by the judge's charge. 12 Even this evidence comes primarily from Fleischman's testimony before the congressional committee, and should therefore be held inadmissible. See United States v. Bryan, 339 U.S. 323, 346, 70 S.Ct. 724, 738. 13 The Court intimates that Fleischman could have called a meeting when members of the board were gathered in an attorney's office on April 2d, or an informal gathering of members elsewhere. It should be noted that the prosecutor labored valiantly at the trial to establish that Fleischman visited the attorney's office or attended some informal meeting. He failed completely in this effort. Despite repeated questions to several witnesses, not one response was evoked indicating that Fleischman ever saw or communicated with a single board member during the interval between the time she was subpoenaed and the time the members met in the anteroom of the committee. As for the suggestion that Fleischman might have called a meeting in the anteroom of the Committee's chambers, it is strange doctrine to assert that the Committee's command that all members appear was enough to require automatically that each member call a meeting. If that was what the Committee wanted, it could have ordered a meeting itself. In any event, 'opportunity' to call a meeting cannot be equated with official 'power' to call a meeting. There is no evidence even intimating that she had such authority. 14 This theory sharply contrasts with the established principle that corporate and association officials, like other persons, can be held guilty only for their own crime, and not for the crimes of their associates in which there is no proof that they participated. Any contrary doctrine is a startling innovation in the laws of this country. See United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 406—407, 67 S.Ct. 775, 781, 91 L.Ed. 973. See also cases collected in Notes, 33 A.L.R. 787; 16 L.R.A.,N.S., 333; 8 Ann.Cas. 383. 15 See note 9 of the Court's opinion. Under the Tot rule, the minimum justification for such a presumption would be general experience that the most insignificant member of a board has power, if she 'does all she can,' to secure board production of documents held by its custodian. Experience not only fails to support this premise; as any one familiar with the loose-jointed structure of nonprofit associations should know, most members or most boards are wholly subordinate to the executive secretary and the chairman. This is one of the 'many significant respects' in which such associations obviously differ from business corporations. See United States v. White, 322 U.S. 694, 697, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542, 152 A.L.R. 1202. Not a single line in Rossi v. United States, 289 U.S. 89, 53 S.Ct. 532, 77 L.Ed. 1051, or Morrison v. People of State of California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664, supports the 'presumption' retroactively created here. As a basis of 'power to produce,' mere board membership is no substitute for possession, custody or control. 8 "The Chairman: Mrs. Fleischman; I am going to ask you now for your personal permission. I am requesting you personally to permit this committee of Congress to have access to those books. Will you give it to us or not? So far as you are able to do, will you give it to us? "Mrs. Fleischman: That is expressing my opinion, Mr. Chairman. I cannot say what the board will do. "The Chairman: I am not asking what the board will do. I am asking what you will do. "Mrs. Fleischman: I do not know, because the thing comes to the board to discuss, and I don't think it is pertinent to say what I should do a week from now. It is a special meeting.' 'I know of nothing else in the record that comes nearer than this to supporting an inference that appellant refused to produce the records or expressed unwillingness to produce them.'

01

339 U.S. 460 70 S.Ct. 718 94 L.Ed. 985 HUGHES et al.v.SUPERIOR COURT OF CALIFORNIA IN AND FOR COUNTY OF CONTRA COSTA. No. 61. Argued Nov. 8—9, 1949. Decided May 8, 1950. Mr. Bertram Edises, Oakland, Cal., for petitioner. Mr. Frank S. Richards, San Francisco, Cal., for respondents. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Does the Fourteenth Amendment of the Constitution bar a State from use of the injunction to prohibit picketing of a place of business solely in order to secure compliance with a demand that its employees be in proportion to the racial origin of its then customers? Such is the broad question of this case. 2 The petitioners, acting on behalf of a group calling themselves Progressive Citizens of America, demanded of Lucky Stores, Inc., that it hire Negroes at its grocery store near the Canal Housing Project in Richmond, California, as white clerks quit or were transferred, until the proportion of Negro clerks to white clerks approximated the proportion of Negro to white customers. At the time in controversy about 50% of the customers of the Canal store were Negroes. Upon refusal of this demand and in order to compel compliance, the Canal store was systematically patrolled by pickets carrying placards stating that Lucky refused to hire Negro clerks in proportion to Negro customers. 3 Suit was begun by Lucky to enjoin the picketing on appropriate allegations for equitable relief. The Superior Court of Contra Costa County issued a preliminary injunction restraining petitioners and others from picketing any of Lucky's stores to compel 'the selective hiring of negro clerks, such hiring to be based on the proportion of white and negro customers who patronize plaintiff's stores.' In the face of this injunction, petitioners continued to picket the Canal store, carrying placards reading: 'Lucky Won't Hire Negro Clerks in Proportion to Negro Trade—Don't Patronize.' In conformity with State procedure, petitioners were found guilty of contempt for 'wilfully disregarding' the injunction and were sentenced to imprisonment for two days and fined $20 each. They defended their conduct by challenging the injunction as a deprivation of the liberty assured them by the Due Process Clause of the Fourteenth Amendment. The intermediate appellate court annulled the judgment of contempt, Cal.App., 186 P.2d 756, but it was reinstated on review by the Supreme Court of California. That court held that the conceded purpose of the picketing in this case—to compel the hiring of Negroes in proportion to Negro customers—was unlawful even though pursued in a peaceful manner. Having violated a valid injunction petitioners were properly punishable for contempt. 'The controlling points,' according to the decision of the Supreme Court of California, 'are that the injunction is limited to prohibiting picketing for a specific unlawful purpose and that the evidence justified the trial court in finding that such narrow prohibition was deliberately violated.' 32 Cal.2d 850, 856, 198 P.2d 885, 888. We brought the case here to consider claims of infringement of the right of freedom of speech as guaranteed by the Due Process Clause of the Fourteenth Amendment. 336 U.S. 966, 69 S.Ct. 930. 4 First. Discrimination against Negroes in employment has brought a variety of legal issues before this Court in recent years. Graham v. Brotherhood of Locomotive Firemen and Enginemen, 338 U.S. 232, 70 S.Ct. 14; Railway Mail Ass'n v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072; Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 304 U.S. 542, 58 S.Ct. 703, 82 L.Ed. 1012. See also Myrdal, An American Dilemma cc. 13—14 (1944). Such discrimination raises sociological problems which in some aspects and within limits have received legal solutions. California has been sensitive to these problems and decisions of its Supreme Court have been hostile to discrimination on the basis of color. James v. Marinship Corp., 25 Cal.2d 721, 155 P.2d 329, 160 A.L.R. 900; Williams v. International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, 27 Cal.2d 586, 165 P.2d 903. This background of California's legal policy is relevant to the conviction of its court that it would encourage discriminatory hiring to give constitutional protection to petitioners' efforts to subject the opportunity of getting a job to a quota system. The view of that court is best expressed in its own words: 5 'It was just such a situation—an arbitrary discrimination upon the basis of race and color alone, rather than a choice based solely upon individual qualification for the work to be done—which we condemned in the Marinship case, supra, (25 Cal.2d 721, 737, 745, 155 P.2d 329). The fact that those seeking such discrimination do not demand that it be practiced as to all employes of a particular employer diminishes in no respect the unlawfulness of their purpose; they would, to the extent of the fixed proportion, make the right to work for Lucky dependent not on fitness for the work nor on an equal right of all, regardless of race, to compete in an open market, but rather, on membership in a particular race. If petitioners were upheld in their demand then other races, white, yellow, brown and red, would have equal rights to demand discriminatory hiring on a racial basis. Yet that is precisely the type of discrimination to which petitioners avowedly object.' 32 Cal.2d at 856, 198 P.2d at 889. 6 These considerations are most pertinent in regard to a population made up of so many diverse groups as ours. To deny to California the right to ban picketing in the circumstances of this case would mean that there could be no prohibition of the pressure of picketing to secure proportional employment on ancestral grounds of Hungarians in Cleveland, of Poles in Buffalo, of Germans in Milwaukee, of Portuguese in New Bedford, of Mexicans in San Antonio, of the numerous minority groups in New York, and so on through the whole gamut of racial and religious concentrations in various cities. States may well believe that such constitutional sheltering would inevitably encourage use of picketing to compel employment on the basis of racial discrimination. In disallowing such picketing States may act under the belief that otherwise community tensions and conflicts would be exacerbated. The differences in cultural traditions instead of adding flavor and variety to our common citizenry might well be hardened into hostilities by leave of law. The Constitution does not demand that the element of communication in picketing prevail over the mischief furthered by its use in these situations. 7 Second. '(T)he domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states,' Palko v. State of Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 153, 82 L.Ed. 288, no doubt includes liberty of thought and appropriate means for expressing it. But while picketing is a mode of communication it is inseparably something more and different. Industrial picketing '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.' Mr. Justice Douglas, joined by Black and Murphy, JJ., concurring in Bakery & Pastry Drivers & Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 775, 776, 62 S.Ct. 816, 819, 86 L.Ed. 1178. Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line. But the very purpose of a picket line is to exert influences, and it produces consequences, different from other modes of communication. The loyalties and responses evoked and exacted by picket lines are unlike those flowing from appeals by printed word. See Gregory, Labor and the Law 346—48 (rev. ed. 1949); Teller, Picketing and Free Speech, 56 Harv.L.Rev. 180, 200 02 (1942); Dodd, Picketing and Free Speech: A Dissent, 56 Harv.L.Rev. 513, 517 (1943); Hellerstein, Picketing Legislation and the Courts, 10 N.C.L.Rev. 158, 186—87, n. 135 (1932). 8 Third. A State may constitutionally permit picketing despite the ingredients in it that differentiate it from speech in its ordinary context. Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229. And we have found that because of its element of communication picketing under some circumstances finds sanction in the Fourteenth Amendment. Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Bakery & Pastry Drivers & Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178; Cafeteria Employees Union v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58. However general or loose the language of opinions, the specific situations have controlled decision. It has been amply recognized that picketing, not being the equivalent of speech as a matter of fact, is not its inevitable legal equivalent. Picketing is not beyond the control of a State if the manner in which picketing is conducted or the purpose which it seeks to effectuate gives ground for its disallowance. See Dorchy v. State of Kansas, 272 U.S. 306, 47 S.Ct. 86, 71 L.Ed. 248; Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, 132 A.L.R. 1200; Hotel and Restaurant Employees' International Alliance, Local No. 122 v. Wisconsin Employment Relations Board, 315 U.S. 437, 62 S.Ct. 706, 86 L.Ed. 946; Carpenters & Joiners Union of America, Local No. 213 v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684; 'A state is not required to tolerate in all places and all circumstances even peaceful picketing by an individual.' Bakery & Pastry Drivers & Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, supra, 315 U.S. at page 775, 62 S.Ct. at page 819, 86 L.Ed. 1178. 9 The constitutional boundary line between the competing interests of society involved in the use of picketing cannot be established by general phrases. Picketing when not in numbers that of themselves carry a threat of violence may be a lawful means to a lawful end. See American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 206—207, 42 S.Ct. 72, 77, 66 L.Ed. 189, 27 A.L.R. 360. The California Supreme Court suggested a distinction between picketing to promote discrimination, as here, and picketing against discrimination: 'It may be assumed for the purposes of this decision, without deciding, that if such discrimination exists, picketing to protest it would not be for an unlawful objective.' 32 Cal.2d at 855, 198 P.2d at 888. We cannot construe the Due Process Clause as precluding California from securing respect for its policy against involuntary employment on racial lines by prohibiting systematic picketing that would subvert such policy. See Giboney v. Empire Storage & Ice Co., supra. 10 Fourth. The fact that California's policy is expressed by the judicial organ of the State rather than by the legislature we have repeatedly ruled to be immaterial.* Castillo v. McConnico, 168 U.S. 674, 684, 18 S.Ct. 229, 233, 42 L.Ed. 622; Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270, 48 A.L.R. 1102; Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254; Skiriotes v. State of Florida, 313 U.S. 69, 79, 61 S.Ct. 924, 930, 85 L.Ed. 1193; Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 402, 88 L.Ed. 497. For the Fourteenth Amendment leaves the States free to distribute the powers of government as they will between their legislative and judicial branches. Dreyer v. People of State of Illinois, 187 U.S. 71, 83—84, 23 S.Ct. 28, 32, 47 L.Ed. 79; Soliah v. Heskin, 222 U.S. 522, 524, 32 S.Ct. 103, 56 L.Ed. 294; Erie R. Co. v. Board of Public Util. Com'rs, 254 U.S. 394, 413, 41 S.Ct. 169, 172, 65 L.Ed. 322; Prentis v. Atlantic Coast Line R. Co., 211 U.S. 210, 225, 29 S.Ct. 67, 69, 53 L.Ed. 150; Keller v. Potomac Elec. Power Co., 261 U.S. 428, 443, 43 S.Ct. 445, 448, 67 L.Ed. 731. '(R)ights under that amendment turn on the power of the state, no matter by what organ it acts.' State of Missouri v. Dockery, 191 U.S. 165, 170—171, 24 S.Ct. 53, 54, 48 L.Ed. 133, 63 L.R.A. 571. 11 It is not for this Court to deny to a State the right, or even to question the desirability, of fitting its law 'to a concrete situation through the authority given * * * to its courts.' Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc., supra, 312 U.S. at page 297, 61 S.Ct. at page 557, 85 L.Ed. 836, 132 A.L.R. 1200. It is particularly important to bear this in mind in regard to matters affecting industrial relations which, until recently, have 'been left largely to judicial lawmaking and not to legislation.' Carpenters & Joiners Union of America, Local No. 213, v. Ritter's Cafe, supra, 315 U.S. at page 724, 62 S.Ct. at page 808, 86 L.Ed. 1143. In charging its courts with evolving law instead of formulating policy by statute, California has availed itself of the variety of law-making sources, and has recognized that in our day as in Coke's 'the law hath provided several weapons of remedy.' Coke, The Compleat Copyholder § 9 in Three Law Tracts (1964). California chose to strike at the discrimination inherent in the quota system by means of the equitable remedy of injunction to protect against unwilling submission to such a system. It is not for this Court to deny to California that choice from among all 'the various weapons in the armory of the law.' Tigner v. State of Texas, 310 U.S. 141, 148, 60 S.Ct. 879, 882, 84 L.Ed. 1124, 130 A.L.R. 1321. 12 The policy of a State may rely for the common good on the free play of conflicting interests and leave conduct unregulated. Contrariwise, a State may deem it wiser policy to regulate. Regulation may take the form of legislation, e.g., restraint of trade statutes, or be left to the ad hoc judicial process, e.g., common law mode of dealing with restraints of trade. Either method may outlaw an end not in the public interest or merely address itself to the obvious means toward such end. The form the regulation should take and its scope are surely matters of policy and, as such, within a State's choice. 13 If because of the compulsive features inherent in picketing, beyond the aspect of mere communication as an appeal to reason, a State chooses to enjoin picketing to secure submission to a demand for employment proportional to the racial origin of the then customers of a business, it need not forbid the employer to adopt such a quota system of his own free will. A State is not required to exercise its intervention on the basis of abstract reasoning. The Constitution commands neither logical symmetry nor exhaustion of a principle. 'The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific.' Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69—70, 33 S.Ct. 441, 443, 57 L.Ed. 730. A State may 'direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed.' Central Lumber Co. v. State of South Dakota, 226 U.S. 157, 160, 33 S.Ct. 66, 67, 57 L.Ed. 164. See also Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 81, 31 S.Ct. 337, 341, 55 L.Ed. 369, Ann.Cas.1916C, 160; Keokee Consolidated Coke Co. v. Taylor, 234 U.S. 224, 227, 34 S.Ct. 856, 58 L.Ed. 1288; Miller v. Wilson, 236 U.S. 373, 384, 35 S.Ct. 342, 344, 59 L.Ed. 628, L.R.A.1915F, 829; Farmers & Merchants Bank of Monroe, N.C. v. Federal Reserve Bank, 262 U.S. 649, 661—662, 43 S.Ct. 651, 656, 67 L.Ed. 1157, 30 A.L.R. 635; James-Dickinson Farm Mortgage Co. v. Harry, 273 U.S. 119, 125, 47 S.Ct. 308, 310, 71 L.Ed. 569; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 46, 57 S.Ct. 615, 628, 81 L.Ed. 893, 108 A.L.R. 1352. Lawmaking is essentially empirical and tentative, and in adjudication as in legislation the Constitution does not forbid 'cautious advance, step by step, and the distrust of generalities.' Carroll v. Greenwich Insurance Co., 199 U.S. 401, 411, 26 S.Ct. 66, 67, 50 L.Ed. 246. 14 The injunction here was drawn to meet what California deemed the evil of picketing to bring about proportional hiring. We do not go beyond the circumstances of the case. Generalizations are treacherous in the application of large constitutional concepts. 15 Affirmed. 16 Mr. Justice BLACK and Mr. Justice MINTON are of the opinion that this case is controlled by the principles announced in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, and therefore concur in the Court's judgment. 17 Mr. Justice REED, concurring. 18 I read the opinion of the Supreme Court of California to hold that the pickets sought from Lucky Stores, Inc., discrimination in favor of persons of the Negro race, a discrimination unlawful under California law. Such picketing may be barred by a State. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684. 19 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. * The range of policy in proscribing or permitting picketing for various ends is illustrated by a recent bill against picketing of courts passed by the New York State Legislature but votoed by Governor Dewey. See N.Y. Times, Apr. 11, 1950, p. 21, col. 1.

23

339 U.S. 542 70 S.Ct. 806 94 L.Ed. 1053 CAPITOL GREYHOUND LINES et al.v.BRICE, Commissioner of Motor Vehicles of Maryland. No. 118. Argued Dec. 5, 1949. Decided May 15, 1950. Clarence W. Miles, Baltimore, Md., for appellants. Hall Hammond, Baltimore, Md., for appellee. Mr. Justice BLACK delivered the opinion of the Court. 1 The basic question presented is whether one of two Maryland taxes imposed on all common carriers transporting passengers over Maryland roads can be exacted from interstate carriers consistently with the commerce clause of the Federal Constitution. Art. 1, § 8, cl. 3. A subsidiary contention impliedly raised by carrier appellants here is that the tax is invalid as applied to them. The Supreme Court of Maryland upheld the tax, Md., 64 A.2d 284. The case of here on appeal under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). 2 The tax challenged by appellants is prescribed by § 25A of Art. 66 1/2 of the Annotated Code of Maryland, 1947 Cum.Supp. In the language of appellants that section imposes 'a tax of 2% upon the fair market value of motor vehicles used in interstate commerce as a condition precedent to the issuance of certificates of title thereto (the issuance of such certificates being a further condition precedent to the registration and operation of such vehicles in the State of Maryland) * * *.'1 3 First. Appellants do not contend that as interstate carriers they are wholly exempt from state taxation. This Court and others have consistently upheld taxes on interstate carriers to compensate a state fairly for the privilege of using its roads or for the cost of administering state traffic regulations.2 Courts have invoked the commerce clause to invalidate state taxes on interstate carriers only upon finding that: (1) the tax discriminated against interstate commerce in favor of intrastate commerce; (2) the tax was imposed on the privilege of doing an interstate business as distinguished from a tax exacting contributions for road construction and maintenance or for administration of road laws; or (3) the amount of the tax exceeded fair compensation to the state.3 This Maryland tax applies to interstate and intrastate commerce without discrimination. The tax proceeds are used by Maryland wholly for road purposes, and the State Supreme Court held that the tax was imposed for the privilege of road use. And neither in the Maryland courts nor here have appellants specifically charged that the amount of taxes imposed on carriers will always be in excess of fair compensation. Their challenge is leveled against the formula, not the amount. 4 The taxes upheld have taken many forms. Examples are taxes based on mileage, chassis weight, tonnage-capacity, or horsepower, singly or in combination—a list which does not begin to exhaust the innumerable factors bearing on the fairness of compensation by each carrier to a state.4 The difficulty in gearing taxes to these factors was recognized by this Court as early as Kane v. State of New Jersey, 242 U.S. 160, 168, 37 S.Ct. 30, 32, 61 L.Ed. 222, where it said that so long as fees are reasonable in amount 'it is clearly within the discretion of the state to determine whether the compensation for the use of its highways by automobiles shall be determined by way of a fee, payable annually or semiannually, or by a toll based on mileage or otherwise.'5 Later, in rejecting contentions that the validity of taxes must be determined by formula rather than result, the Court held that a flat fee on the privilege of using state highways 'is not a forbidden burden on interstate commerce' unless 'unreasonable in amount.' Morf v. Bingaman, 298 U.S. 407, 412, 56 S.Ct. 756, 758, 80 L.Ed. 1245. See also Aero Mayflower Transit Co. v. Board of R. R. Com'rs, 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99, and annotation thereto, 92 L.Ed. 109, 119—120. Yet clearly a flat fee is not geared to mileage, weight or any other factor relevant in considering the fairness of compensation for road use. Thus, unless we are to depart from prior decisions, the Maryland tax based on the cost of the vehicles should be judged by its result, not its formula, and must stand unless proven to be unreasonable in amount for the privilege granted. 5 Appellants, however, in effect urge that we make an exception to the general rule and strike down this tax formula regardless of whether the amount of the tax is within the limits of fair compensation. No tax precisely like this has previously been before us. Appellants argue that a tax on vehicle value should be forbidden by the commerce clause because it varies for each carrier without relation to road use. In support of this contention, they point to the facts shown in this record. Each of the appellant carriers, according to admitted allegations, bought a new passenger-carrying vehicle and declared a purpose to use its vehicle on one of its Maryland routes. The Maryland portions of these three routes are 9, 41 and 64 miles respectively. The state taxes computed on the fair market value of each vehicle are $505.17, $580 and $372.55, respectively. This showing does indicate that the title tax falls short of achieving uniformity among carriers in relation to road use. Moreover, as argued, it may well be unwise to subject carriers to the monetary temptation incident to the application of a tax that hits a carrier only when it purchases a bus. But that is not our issue. And it should be noted that the total charge of Maryland for the privilege of using its roads will not show the same disparity among carriers. For Maryland also charges a mileage tax,6 and this tax added to the title tax is what Maryland actually charges for its road privileges. Thus the total charge as among carriers does vary substantially with the mileage traveled. 6 We recognize that in the absence of congressional action this Court has prescribed the rules which determine the power of states to tax interstate traffic, and therefore should alter these rules if necessary to protect interstate commerce from obstructive barriers. But with full appreciation of congenital infirmities of the Maryland formula—and indeed of any formula in this field—as well as of our present rules to test its validity, we are by no means sure that the remedy suggested by appellants would not bring about greater ills. Complete fairness would require that a state tax formula vary with every factor affecting appropriate compensation for road use. These factors, like those relevant in considering the constitutionality of other state taxes, are so countless that we must be content with 'rough approximation rather than precision.' International Harvester Co. v. Evatt, 329 U.S. 416, 422—423, 67 S.Ct. 444, 447, 91 L.Ed. 390. Each additional factor adds to administrative burdens of enforcement,7 which fall alike on taxpayers and government. We have recognized that such burdens may be sufficient to justify states in ignoring even such a key factor as mileage, although the result may be a tax which on its face appears to bear with unequal weight upon different carriers. Aero Mayflower Transit Co. v. Georgia Public Service Comm'n, 295 U.S. 285, 289, 55 S.Ct. 709, 710, 79 L.Ed. 1439. Upon this type of reasoning rests our general rule that taxes like that of Maryland here are valid unless the amount is shown to be in excess of fair compensation for the privilege of using state roads. 7 Our adherence to existing rules does not mean that any group of carriers is remediless if the total Maryland taxes are out of line with fair compensation due to Maryland. Under the rules we have previously prescribed, such carriers may challenge the taxes as applied, and upon proper proof obtain a judicial declaration of their invalidity as applied. Ingels v. Morf, 300 U.S. 290, 57 S.Ct. 439, 81 L.Ed. 653. Cf. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001. 8 If a new rule prohibiting taxes measured by vehicle value is to be declared, we think Congress should do it.8 We decline to hold that this Maryland title tax law is wholly invalid however applied. 9 Second. Little need be said as to the faint contention here that the taxes actually levied against appellants are in excess of a fair compensation for the privilege of using Maryland roads. While the State Supreme Court did pass on this question, holding that appellants had failed to prove excessiveness, the assignments of error here did not specifically mention such a challenge. That court satisfactorily disposed of any question of the size of the fees in relationship to the road privileges granted. The burden of proof in this respect is on a carrier who challenges a state law. Clark v. Paul Gray, Inc., 306 U.S. 583, 598—600, 59 S.Ct. 744, 752, 753, 83 L.Ed. 1001. We agree with the Supreme Court of Marylnd that here there is a complete and utter lack of proof sufficient to invalidate the state law on this ground. See Dixie Ohio Express Co. v. State Revenue Commission of Georgia, 306 U.S. 72, 77—78, 59 S.Ct. 435, 437, 438, 83 L.Ed. 495. 10 Affirmed. 11 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 12 Mr. Justice FRANKFURTER, whom Mr. Justice JACKSON joins, dissenting. 13 Once more we are called upon to subject a State tax on interstate motor traffic to the scrutiny which the Commerce Clause requires so that interstate commerce may enjoy freedom from State taxation outside of those narrow limits within which States are free to burden such commerce. 14 The essential facts are easily stated. By various provisions of Maryland law, an interstate motor carrier may not operate its vehicles within the State until it has registered them. As a prerequisite to registration the carrier must obtain a certificate of title for each vehicle. Section 25A of Article 66 1/2 of the Annotated Code of Maryland, 1947 Cum.Supp., imposes a so-called titling tax of 2% of the 'fair market value' of each motor vehicle 'for the issuance of every original certificate of title * * * and * * * every subsequent certificate of title * * * in the case of sales or resales * * *.'1 Thus, the tax does not strike at periodic intervals but only when a purchase has been made of a motor vehicle which is to be operated in whole or part on Maryland highways, whether the vehicle be new or old. The entire proceeds of the tax are devoted to road purposes. 15 Appellants operate interstate bus lines, in part over Maryland roads.2 Each purchased a bus, but refused to pay the tax on the ground that § 25A was invalid under the Commerce Clause as applied to interstate carriers. They were denied certificates of title by the State and thereupon filed petitions for mandamus to secure them. The Maryland Court of Appeals sustained the levy, 64 A.2d 284, and the case is here on appeal. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). 16 I. Since 'a state may not (levy) a tax on the privilege of engaging in interstate commerce,' the titling tax can be sustained only if it be a fair imposition for the use of highways constructed and maintained by Maryland or for the cost of traffic regulation. Interstate Transit, Inc. v. Lindsey, 283 U.S. 183, 185, 51 S.Ct. 380, 381, 75 L.Ed. 953, see also Dixie Ohio Express Co. v. State Revenue Comm'n, 306 U.S. 72, 76, 59 S.Ct. 435, 437, 83 L.Ed. 495. The right of a State to levy such a compensatory tax also as to interstate commerce for special benefits is well settled. The subjection of interstate motor traffic to such State power is only a particular application of a general principle. Clyde Mallory Lines v. State of Alabama, 296 U.S. 261, 267—268, 56 S.Ct. 194, 196, 197, 80 L.Ed. 215, and cases cited. But whether the tax now under review comes within the scope of the principle must be tested by the considerations which have guided prior adjudication. (All of the cases in which this Court has dealt with out specific problem are listed, and their relevant facts described, in an Appendix to this opinion, post, 339 U.S. p. 561, 70 S.Ct. 817.) If a new principle is to be announced, it, too, must stand the test of reason in relation to the Commerce Clause. 17 Since the levy is upon commerce exclusively interstate, and therefore inevitably an inroad upon its normal freedom from State burdens, Maryland must justify it as a means of securing compensation for the road use which the State affords and for which it may exact a return. Interstate Transit, Inc. v. Lindsey, 283 U.S. 183, 51 S.Ct. 380, 75 L.Ed. 953. This requirement is not a close accounting responsibility, however, for the States are free to exercise a loose judgment in fixing a quid pro quo. Thus, tax formulas dependent on actual use of the State's highways satisfy the constitutional test, without more, since they reflect an obvious relationship between what is demanded and what is given by the State. Taxes based on miles or ton-miles have encountered no difficulty here. Interstate Busses Corp. v. Blodgett, 276 U.S. 245, 48 S.Ct. 230, 72 L.Ed. 551; Continental Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155, 81 A.L.R. 1402. 18 Again, if the State makes clear by disposition of the tax proceeds or by statutory declaration that the tax is levied to secure compensation for road use, the tax classification will be sustained if it may fairly be attributed to the privilege of road use, as distinguished from actual use. Compare Interstate Transit, Inc. v. Lindsey, 283 U.S. 183, 51 S.Ct. 380, 75 L.Ed. 953 (no allocation of proceeds) with Clark v. Poor, 274 U.S. 554, 47 S.Ct. 702, 71 L.Ed. 1199 (allocation); see Appendix, post, 339 U.S. p. 561, 70 S.Ct. 817. Thus, mileage may be ignored and an annual tax may be based on horsepower, Hendrick v. State of Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385, and Kane v. State of New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222; on carrying capacity, Clark v. Poor, 274 U.S. 554, 47 S.Ct. 702, 71 L.Ed. 1199, and Hicklin v. Coney, 290 U.S. 169, 54 S.Ct. 142, 78 L.Ed. 247; and on manufacturer's rated capacity, Dixie Ohio Express Co. v. State Revenue Comm'n, 306 U.S. 72, 59 S.Ct. 435, 83 L.Ed. 495. And the Court has upheld flat fees imposed without regard to size or weight factors. Aero Mayflower Transit Co. v. Georgia Public Service Comm'n, 295 U.S. 285, 55 S.Ct. 709, 79 L.Ed. 1439; Morf v. Bingaman, 298 U.S. 407, 56 S.Ct. 756, 80 L.Ed. 1245; Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001; Aero Mayflower Transit Co. v. Board of Railroad Com'rs, 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99. 19 From this body of decisions, the Court now extracts the principle that so long as a tax is levied for highway purposes and does not formally discriminate against interstate commerce, it cannot be attacked for its tax formula or classification, but only for 'excessiveness' of amount. Such a view collides with the guiding limitation upon State power announced in Interstate Transit, Inc. v. Lindsey, 283 U.S. 183, 186, 51 S.Ct. 380, 381, 75 L.Ed. 953, that a tax intended to compensate for road use 'will be sustained unless the taxpayer shows that it bears no reasonable relation to the privilege of using the highways or is discriminatory.' This wary qualification was formulated for the Court by Mr. Justice Brandeis, who was most alert not to deny to States the right to make interstate commerce pay its way. Likewise, today's opinion disregards McCarroll v. Dixie Greyhound Lines, Inc., 309 U.S. 176, 60 S.Ct. 504, 84 L,.ed. 683, holding a tax invalid simply because the standard of measurement was found to be unrelated to what the State gave. In that case, the tax was declared to be imposed upon the privilege of highway use and the proceeds were allocated, and, as here, it was sought to justify the tax as levied for that purpose. There was no showing that the State was collecting sums in excess of its needs or that the carrier was being subjected to severe economic strain. The defect lay in the capricious tax formula. 20 In no prior case has the Court upheld a tax formula bearing no reasonable relationship to the privilege of road use. No support to the result now reached is lent by the fact that State tax formulas need not be limited to factors reflecting actual road use, such as mileage, but may be measured by the privilege of highway use extended to all alike. In a case involving a flat tax characterized as 'moderate,' the matter was illuminatingly put for the Court by Mr. Justice Cardozo: 21 'There would be administrative difficulties in collecting on that basis i.e., mileage). The fee is for the privilege for a use as extensive as the carrier wills that it shall be. There is nothing unreasonable or oppressive in a burden so imposed. * * * One who receives a privilege without limit is not wronged by his own refusal to enjoy it as freely as he may.' Aero Mayflower Transit Co. v. Georgia Public Service Comm'n, 295 U.S. 285, 289, 55 S.Ct. 709, 711, 79 L.Ed.1439. 22 Systems of taxation need not achieve the ideal. But the fact that the Constitution does not demand pure reason and is satisfied by practical reason does not justify unreason. Though a State may levy a tax based upon the privilege granted, as distinguished from its exercise, this does not sanction a tax the measure of which has no reasonable relation to the privilege. Reason precludes the notion that a tax for a privilege may disregard the absence of a nexus between privilege and tax. Our decisions reflect that reason. A State naturally may deem factors of size or weight to be relevant. Hicklin v. Coney, 290 U.S. 169, 173, 54 S.Ct. 142, 144, 78 L.Ed. 247. Since the relationship of these factors to highway construction and maintenance costs cannot be measured with even proximate accuracy, the States are not hobbled in exercising rough judgment in devising tax formulas, giving to size, weight and other relevant factors such respect as is fairly within the restraints of decency. Cf. Clark v. Paul Gray, Inc., 306 U.S. 583, 594, 59 S.Ct. 744, 750, 83 L.Ed. 1001. And a State, with an eye to the problems of tax administration, may also reasonably conclude that under some circumstances such factors are not sufficiently significant or material to call for insistence upon impractical details, and that a flat tax is proper. In the cases involving flat taxes the Court carefully pointed out that the classification was reasonable on the facts before it. Morf v. Bingaman, 298 U.S. 407, 410, 56 S.Ct. 756, 757, 80 L.Ed. 1245; Clark v. Paul Gray, Inc., 306 U.S. 583, 600, 59 S.Ct. 744, 753, 83 L.Ed. 1001; Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U.S. 495, 506, 68 S.Ct. 167, 173, 92 L.Ed. 99. 23 Maryland's titling tax fails to meet the justifications that sustain a State's power to levy a tax on what is exclusively the carrying on ot interstate commerce. Giving the State court's judgment every indulgence for supporting its validity, one cannot find any fair relationship between the tax and actual road use or the privilege of such use. The value of a vehicle is not a practical function of what the State affords. It has at best a most tenuous relationship to the privilege of using the roads, since differences in value are due to a vehicle's appointments or its age or to other factors which have no bearing on highway use. Differences in the cost of vehicles based on such factors, reflecting in large measure the financial condition of owners or their investment policies, can hardly furnish a standard by which a return for road use may be measured. 24 This irrelevance in the basis of the tax is reinforced by the irrelevance of its incidence. For the tax is exacted not only on the original purchase of the vehicle but upon its subsequent transfer to a new owner. If the tax be treated as one on the vehicle, then it is attributable not to the privilege of road use but to a shift in its ownership. If the tax is deemed to be upon the owner, then it depends not upon the privilege of road use but upon the frequency of turnover of his equipment. Unlike all the comparable taxes heretofore sustained, the Maryland tax is measured by considerations extraneous to the State's right to impose it. 25 The Court in effect concedes this, but proceeds on the theory that the basis of such a road tax need not be intrinsically reasonable. Validity is treated as a question of dollars and cents; only the amount of the tax may be questioned. It should occasion no surprise that such a test breaks wholly new ground. Amount has of course played a part in the total context of prior decisions and it raises issues to which I shall shortly advert. But a test of amount has never been regarded as in itself a substitute for a reasonable tax classification. While novelty of doctrine does not prove unconstitutionality, neither does it establish constitutionality. If no prior decision gives any warrant for determining the validity of a State tax on commerce going through it merely by the size of the financial burden which such a tax entails, the reason is obvious enough. It would cast what is surely not a judicial function upon this Court to decide how big an amount, abstractly considered, can economically be absorbed by a carrier engaged exclusively in interstate commerce as an exaction by each State through which the carrier passes.3 Contrariwise, it is within the competence of judges to determine the fair relevance of criteria in achieving allowable ends. How criteria work in specific cases involves familiar practicalities in the administration of law. 26 No doubt difficulties are encountered by the States in formulating classifications for tax purposes which express the needed accommodation in our federalism between due regard for the special facilities afforded by States to interstate commerce for which they require compensation, and that freedom of commerce across State lines the desire for which was one of the propelling forces for the establishment of this nation and the benefits of which are one of its greatest sources of strength. Of course this Court must not unduly rein in States. Practical, not ideal, lines must be drawn, which means the within the broadest reach of policy relevant to the States' basis of taxation a wide choice must be allowed to the States of possible taxes on motor vehicles traveling in interstate commerce. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001. But simply because many tax formulas may be devised does not mean that any formula will do. Of course, the problem involves matters of degree. Drawing lines, recognition of differences of degree, is perhaps the chief characteristic of the process of constitutional adjudication. Difficulties in applying the test of reason do not justify abandonment of reason for the impossible task of deciding fiscal fairness to each individual carrier. 27 II. Since the basis of its imposition is fatally defective, the Maryland tax cannot be saved by its amount. But quite apart from its formula, there are serious questions relating to the amount of this tax which the Court disregards. There is a show of fairness in the Court's suggestion that the tax will be declared bad if the amount exacted exceeds 'fair compensation' to the States. The term is not selfdefining and no intimation is afforded regarding the standards by which excessiveness is to be determined. Reference is made to Ingels v. Morf, 300 U.S. 290, 57 S.Ct. 439, 81 L.Ed. 653. Presumably, therefore, the Court is still committed to the view that a tax may not be so high that amounts collected by the State are clearly in excess of the costs of the special facilities or regulations for which the tax is professedly levied. Like other forms of interstate commerce, motor carriers should be required to contribute their fair share, broadly conceived, of the State's distinctive contribution for the carrying on of such commerce. Under the guise of a special compensatory tax, however, a State may not exact more than the value of the services to be compensated. There is no showing that the tax levied here is excessive in this sense. 28 But for the proper maintenance of our federal system, and more particularly for the rigorous safeguarding of the national interests in interstate commerce, it is not sufficient that a State exact no more than the value of what it gives—with all the elusiveness of determining such value. A State must not play favorites in the operation of its taxing system between business confined within its boarders and the common interests of the nation expressed through business conducted across State lines. Such favoritism is barred whether it is overtly designed or results from the actual operation of a taxing scheme. The Maryland tax does not obviously discriminate against interstate commerce. But a tax for the privilege of road use may impose serious disadvantages upon that commerce. 29 So long as a State bases its tax on a relevant measure of actual road use, obviously both interstate and intrastate carriers pay according to the facilities in fact provided by the State. But a tax levied for the privilege of using roads, and not their actual use, may, in the normal course of operations and not as a fanciful hypothesis, involve an undue burden on interstate carriers. While the privilege extended by a State is unlimited in form, and thus theoretically the same for all vehicles, whether interstate or intrastate, the intrastate vehicle can and will exercise the privilege whenever it is in operation, while the interstate vehicle must necessarily forego the privilege some of the time simply because of its interstate character, i.e., because it operates in other States as well. In the general average of instances, the privilege is not as valuable to the interstate as to the intrastate carrier. And because it operates in other States there is danger—and not a fanciful danger—that the interstate carrier will be subject to the privilege taxes of several States, even though his entire use of the highways is not significantly greater than that of intrastate operators who are subject to only one privilege tax.4 30 When a privilege tax is relatively small in amount, and therefore to be treated as a rough equivalent for what the State may exact with due regard to administrative practicalities, the danger of an unfair burden falling upon interstate commerce remains correspondingly small. Cf. Union Brokerage Co. v. Jensen, 322 U.S. 202, 210-211, 64 S.Ct. 967, 972, 973, 88 L.Ed. 1227, 152 A.L.R. 1072. But a large privilege tax presents dangers not unlike those arising from unapportioned gross receipts taxes on interstate transportation beyond a State's power to impose. Cf. Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653, 68 S.Ct. 1260, 92 L.Ed. 1633. These practical considerations prevailed against a State in Sprout v. City of South Bend, 277 U.S. 163, 48 S.Ct. 502, 72 L.Ed. 833, 62 A.L.R. 45: 31 'A flat tax, substantial in amount, and the same for busses plying the streets continuously in local service and for busses making, as do many interstate busses, only a single trip daily, could hardly have been designed as a measure of the cost or value of the use of the highways.' 277 U.S. at page 170, 48 S.Ct. at page 504, 72 L.Ed. 833, 62 A.L.R. 45.5 32 That the Court has at all times been aware of this problem is demonstrated by its reiteration throughout the relevant decisions that the charge must be 'reasonable in amount.' See especially Aero Mayflower Transit Co. v. Georgia Public Service Comm., 295 U.S. 285, 289, 55 S.Ct. 709, 711, 79 L.Ed. 1439: 'The fee is moderate in amount,' and Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U.S. 495, 507, 68 S.Ct. 167, 173, 92 L.Ed. 99: '* * * the aggregate amount of both taxes combined is less than that of taxes heretofore sustained.' 33 The problem is inescapably one of determining how much is too much, in the total nature of the tax. Thus, it becomes important to see how the Maryland tax compares in amount with similar taxes in prior cases. This is done, not to test the tax as individually applied to appellants, but to determine whether general application of a tax of this magnitude may fairly be deemed to burden interstate commerce unduly. Examination of decided cases reveals that the largest flat tax heretofore sustained was $15 for six months or $30 per year, and the largest annual tax based upon size or weight was $75.6 See Appendix to this opinion, post, 337 U.S. p. 561, 70 S.Ct. 817. The Maryland taxes on the three appellants amounted to $372, $505 and $580, but since the Maryland tax is not annual, these amounts are not comparable to amounts previously sustained. In order to equate them, information is needed as to the number of years typical motor carriers are likely to operate such busses over Maryland roads. Even taking the assumption of the Maryland Court of Appeals, not based on any evidence in the record, that five years was a fair estimate,7 the amounts are in excess of any sustained by this Court. Therefore even if the Court were to accept the formula of the Maryland titling tax, the case should be remanded for a finding of the anticipated period of use in order to have some basis of appraising the validity of the amount. 34 III. The Court's failure to treat the danger that large privilege taxes will unduly burden interstate commerce—quite apart from excessiveness in terms of State costs—is not unlike its explicit rejection of the requirement that the taxing formula be reasonably related to the purpose which alone justifies the tax. Both problems involve the resolution of conflicting interests, which in application inevitably requires nice distinctions. In this case the Court attempts to avoid difficulties through what seems to me to be an exercise in absolutes. These problems involve questions of reasonableness and degree but their determination affects the harmonious functioning of our federal system. I do not believe they can be solved by disregarding the national interest merely because a State tax levied in a particular case does not on its face appear monstrous in amount. See Hudson County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828, 14 Ann.Cas. 560. 35 I would reverse. APPENDIX 36 Analysis of Decisions Involving State Taxation of Motor Vehicles 37 in Interstate Commerce for State Highway Privileges1 Type of vehicle subject Name of case to tax Basis of tax 38 1. Hendrick v. State of All vehicles Horsepower 39 Maryland, 235 U.S. 610, 40 35 S.Ct. 140 (1915). 41 2. Kane v. State of New All vehicles Horsepower Jersey, 242 U.S. 160, 37 42 S.Ct. 30 (1916). 43 3. Clark v. Poor, 274 U.S. Property carrier for hire Manufacturer's rated carrying 44 554, 47 S.Ct. 702 (1927). hire. capacity plus regularity 45 of routes 46 4. Interstate Busses Corp. Passenger carrier for hire Mileage 47 v. Blodgett, 276 U.S. 48 245, 48 S.Ct. 230 (1928). 49 5. Sprout v. City of South Passenger carrier for hire Seating capacity Bend, 277 U.S. 163, 48 50 S.Ct. 502 (1928). 51 6. Interstate Transit, Inc. Passenger carrier for hire Seating capacity 52 v. Lindsey, 283 U.S. 183, 53 51 S.Ct. 380 (1931). 54 7. Continental Baking Co. Carrier of own property Gross-ton mileage 55 v. Woodring, 286 U.S. for sale. 56 352, 52 S.Ct. 595 (1932). 57 8. Hicklin v. Coney, 290 Property carrier for hire Carrying capacity 58 U.S. 169, 54 S.Ct. 142 (1933). 59 9. Aero Mayflower Transit Property carrier for hire Flat tax Co. v. Georgia Public 60 Service Comm., 295 U. 61 S. 285, 55 S.Ct. 709 (1935). 62 10. Morf v. Bingaman, 298 Vehicles transported Flat tax 63 U.S. 407, 56 S.Ct. 756 for sale on own 64 (1936). wheels, usually in"caravans." 65 (a) Under own power 66 (b) Being towed. 67 11. Ingels v. Morf, 300 U.S. Vehicles transported Flat tax 68 290, 57 S.Ct. 439 (1937). for sale on own 69 wheels, usually in "caravans." 70 12. Dixie Ohio Express Co. Property carrier for 71 v. State Revenue hire, having— 72 Comm., 306 U.S. 72, 59 (a) 1 1/2-ton trucks. (a) Manufacturer's 73 S.Ct. 435 (1939). rated capacity. 74 (b) 2-ton trucks. 75 (b) Same. 76 (c) Trailers. (c) Weight. 77 13. Clark v. Paul Gray, Inc., Vehicles transported Flat tax 78 306 U.S. 583, 59 S.Ct. 744 for sale on own 79 (1939). wheels usually in "caravans." 14. McCarroll v. Dixie Passenger carrier for hire All gasoline over 20 gallons 80 Greyhound Lines, Inc., carried in tanks of 81 309 U.S. 176, 60 S.Ct. vehicle into State 82 504 (1940). for use by vehicle 83 15. Aero Mayflower Transit Property carrier for hire Two flat taxes Co. v. Board of 84 Railroad Comm'rs, 332 U.S. 85 495, 68 S.Ct. 167 (1947). TABLE CONTINUED Range of 86 tax amounts 87 for the 88 Amount of tax entire Legislative indication of 89 involved2 class2 road-use purpose Decision 90 1. Not in issue3 $6-$18 Funds allocated for road use. Valid. 91 2. $10 $3-$10 Funds allocated for road use. Valid. 92 3. Not in issue3 $20-$200 Funds allocated for road use. Valid. 93 4. 1¢ per mile Funds allocated for road use. Valid. 94 5. $50 $25-$75 None Invalid, as not being for 95 the privelege of road use. 96 6. $500 $50-$750 None Invalid as not being for the 97 privelege of road use. 98 7. 5/10 mill per Funds allocted for road use. Valid. 99 gross-ton mile. 100 8. Not in issue3 $30-$400 Funds allocated for road use. Valid. 101 9. $25 Funds allocated for road use. Valid. 102 10. Statutory declaration, Valid. 103 without allocation of funds. 104 (a) $7.50. 105 (b) $5.00. 106 (no time limit) 107 11. $15 (for 90 days) Statutory declaration Invalid, as excessive in amount 108 that purpose was reimbursement in relation to such expenses 109 for regulatory expenses. 110 12. Not known Statutory declaration without Valid. 111 allocation of funds 112 (a) $50. 113 (b) $75. 114 (c) $50. 115 13.$15 (for six Statutory declaration without Valid. 116 months). allocation of funds 117 14.6.5¢ per gallon Funds allocated for road use. Invalid, becausr formula bore 118 no reasonable relation 119 to road use 120 15.$25 in total Statutory declaration without Valid. 121 allocation of funds. 1 The information set forth is derived from the record, briefs and opinion in each case. 2 Unless otherwise indicated, all taxes expressed in terms of fixed amounts were levied on an annual basis. 3 The attack in these cases was upon the statute as a whole, not on the specific amount of tax due and so no evidence was introduced as to such amount. 1 Maryland also imposes a tax for each passenger seat of one-thirtieth of a cent per mile traveled on Maryland roads. Maryland Ann.Code (1947 Cum.Supp.), Art. 81, § 218. Prior to 1947 the mileage tax applied both to interstate and intrastate carriers; the 2% 'titling tax' here challenged applied to intrastate carriers only. At that time the state legislature made significant changes. It made the titling tax applicable to interstate as well as to intrastate carriers and reduced the seatmile tax from one-eighteenth cent to one-thirtieth cent. Chapters 560 and 326, 1947 Laws of the General Assembly of Maryland. 2 See cases collected in Notes, 75 L.Ed. 953 and 92 L.Ed. 109. 3 Sprout v. City of South Bend, 277 U.S. 163, 48 S.Ct. 502, 72 L.Ed. 833, 62 A.L.R. 45; Interstate Transit, Inc. v. Lindsey, 283 U.S. 183, 51 S.Ct. 380, 75 L.Ed. 953; Ingels v. Morf, 300 U.S. 290, 57 S.Ct. 439, 81 L.Ed. 653. And see case collections cited in note 2, supra. 4 For examples of the many factors on which taxes have been hinged, see Note, 92 L.Ed. 109, 119—123. 5 This statement was made in a case where flat license fees were based on a vehicle's rated horsepower. In that case the person held liable for the state tax was a nonresident driving through the state. By citation of this case we do not mean to imply that the constitutional rule relating to a state's power to collect for the use of its roads by occasional travelers is as broad as where road use by carriers is involved. See Aero Mayflower Transit Co. v. Board of R.R. Com'rs, 332 U.S. 495, 503, 68 S.Ct. 167, 171, 92 L.Ed. 99. See also the opinions in Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119. 6 See note 1, supra. 7 One example of the complexities springing from state attempts to weigh numerous factors was the Indiana tax upheld in Eavey Co. v. Department of Treasury of Indiana, 216 Ind. 255, 264, 24 N.E.2d 268, 272, which was '* * * based upon the carrying capacity, number of wheels per axle, load per axle, size of tires used, weight, and other elements described in the act, all of which bear a direct relation to the hazards of the highways.' 8 Congress has passed comprehensive legislation regulating interstate carriers in which it is declared that 'nothing in this chapter shall be construed to affect the powers of taxation of the several States * * *.' 49 U.S.C. § 302(b), 49 U.S.C.A. § 302(b). See Brashear Freight Lines v. Public Service Comm'n, D.C., 23 F.Supp. 865; see also Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969, 135, A.L.R. 1347. It is interesting to note that the Interstate Commerce Commission charged with the duty of fixing rates and administering the Motor Carrier Act requires carriers to keep accounts showing the 'cost of all taxes, licenses and fees assessed for the privilege of operating revenue vehicles over the highways, such as registration fees, license plate fees, * * * certificate of title fees * * * and similar items * * *.' Title 49, § 182.5220, Code of Fed. Regs., 1947 Supp. 1 The relevant portion of § 25A reads more fully as follows: 'In addition to the charges prescribed by this Article there is hereby levied and imposed an excise tax for the issuance of every original certificate of title for motor vehicles in this State and for the issuance of every subsequent certificate of title for motor vehicles in this State in the case of sales or resales thereof, and on and after July 1, 1947, the Department of Motor Vehicles shall collect said tax upon the issuance of every such certificate of title of a motor vehicle at the rate of two per centum of the fair market value of every motor vehicle for which such certificate of title is applied for and issued.' 2 Although two of the appellants also engage to some extent in intrastate transportation, it was not argued either here or below that this has any bearing on the case. Cf. Sprout v. City of South Bend, 277 U.S. 163, 170—171, 48 S.Ct. 502, 504, 72 L.Ed. 833, 62 A.L.R. 45. 3 The Court, to be sure, does not avow that the validity of the tax depends on the relation of its size to the financial condition of the carrier. But such is the effective consequence of the considerations by which it determines validity. Once the Court abandons, as it does, an inquiry into the reasonableness of the tax basis in relation to the allowable purposes of the tax, there is nothing by which the validity of the imposition can be judged except its effect upon the finances of the carrier, unless perchance the matter is to be left wholly at large. Even in that event, the Court is bound to make ad hoc judgments that the particular amount a State asks of a carrier is not going to hurt it. 4 These dangers are heightened when the tax falls upon an interstate motor carrier authorized to operate only on a fixed route. Quite illustrative of the seriousness of the general problem are the facts concerning one of appellants here, Capitol Greyhound Lines, which is authorized by the I.C.C. to operate a bus line over a fixed route between Cincinnati, Ohio and Washington, D.C., a distance of about 496 miles, only nine of which are over Maryland's State roads. To say that Capitol has an unlimited privilege to use Maryland's roads and is therefore being treated on a par with intrastate carriers is to ignore the admonition that 'Regulation and commerce among the states both are practical rather than technical conceptions * * *.' Galveston, Harrisburg and San Antonio R. Co. v. State of Texas, 210 U.S. 217, 225, 28 S.Ct. 638, 639, 52 L.Ed. 1031. 5 Mr. Justice Brandeis' reference to a flat tax was not intended to exclude size or weight taxes, for the Sprout case involved a tax based upon seating capacity. Rather, he was referring to privilege, as distinguished from mileage, taxes. The potentiality of unfair burdens on interestate commerce was presented sharply in the Sprout case since the tax was levied by a municipality and there were 33 other cities along the route of the interstate carrier. See 277 U.S. at page 164, 48 S.Ct. at page 503, 72 L.Ed. 833, 62 A.L.R. 45. 6 The statute in Clark v. Poor, 274 U.S. 554, 47 S.Ct. 702, 71 L.Ed. 1199, provided for a range of taxation of from $20 to $200, and that in Hicklin v. Coney, 290 U.s. 169, 54 S.Ct. 142, 78 L.Ed. 247, a range of from $30 to $400. But in neither case was evidence introduced as to the amounts to which the particular vehicle owners would be subject, and so the Court was not faced with the question whether the amount was reasonable. See Appendix, n. 3, post, 339 U.S. p. 561, 70 S.Ct. 817. 7 The Maryland court estimated the 'useful life' of the busses. It should have considered the probable period of use by a typical motor carrier since the tax is imposed upon any transfer of the vehicle to another.

78

339 U.S. 583 70 S.Ct. 820 94 L.Ed. 1081 BROWN SHOE CO., Inc.v.COMMISSIONER OF INTERNAL REVENUE. No. 445. Argued April 5, 1950. Decided May 15, 1950. Mr. Charles B. McInnis, Washington, D.C., for petitioner. Mr. Harry Marselli, Washington, D.C., for respondent. Mr .justice CLARK delivered the opinion of the Court. 1 This proceeding seeks redetermination of petitioner's excess profits tax, computed by the invested capital method, for the fiscal years ended 1942 and 1943.1 The issues arise from the payment of cash and the transfer of other property to petitioner by certain community groups as an inducement to the location or expansion of petitioner's factory operations in the communities. Petitioner claimed, and the Commissioner disallowed, (1) a deduction from gross income for depreciation on the property contributed and on the full cost of property acquired in part with contributed cash or equivalent funds, and (2) inclusion of the total value of the contributions in petitioner's equity invested capital. The Tax Court reversed the Commissioner's ruling in part. 10 T.C. 291, 1948. The Court of Appeals for the Eighth Circuit held with the Commissioner on all issues. 175 F.2d 305, 1949. We granted certiorari, 1950, 338 U.S. 909, 70 S.Ct. 348, in view of an asserted conflict between the decision below and that of the Court of Appeals for the Third Circuit in Commissioner v. McKay Products Corp., 1949, 178 F.2d 639, reversing the Tax Court, 1947, 9 T.C. 1082. 2 Two questions must be determined: First, whether petitioner in computing its normal tax net income, which is adjusted in determining excess profits net income, is entitled to deductions for depreciation with respect to property transferred to it from community groups or acquired with cash to the extent received from such groups. Petitioner contends that the properties so acquired were depreciable as 'gifts' under § 113(a)(2) of the Internal Revenue Code, 26 U.S.C.A. § 113(a)(2), or as 'contribution to capital' under § 113(a)(8)(B) or both; as to the properties acquired with cash it contends alternatively that they had 'cost' to the taxpayer under § 113(a).2 Second, we must decide whether in computing petitioner's invested capital credit the aggregate value of the assets transferred by the community groups may be included in equity invested capital under § 718(a) of the Code, 26 U.S.C.A. § 718(a), either as a 'contribution to capital' or as 'accumulated earnings and profits.'3 3 Petitioner is a New York corporation which at all times material conducted manufacturing operations in a number of plants located in Illinois, Indiana, Missouri and Tennessee. From 1914 to 1939 petitioner received in seventeen transactions an aggregate of $885,559.45 in cash and $85,471.56 in buildings4 from various community groups in twelve towns. Except in one instance, each transfer was pursuant to a written contract between petitioner and the respective community group. The contracts were of three types: The first required petitioner to locate, construct and equip, or to enlarge a factory in the community, to operate the factory 'continuously so long as it is practicable in the conduct of its business for at least a period of ten years,' and to meet a minimum payroll, in consideration of which the community group agreed to transfer land and cash 'to be used for the payment of suitable factory building or buildings'; in one instance existing building were also transferred and in another instance only buildings and no cash sum. Under this type of contract petitioner was obligated in the event of noncompliance to transfer the building back to the community group or to repay the sum. Under a second type of agreement petitioner in consideration of a cash payment undertook to enlarge an existing factory and to operate it for a period of ten years with a stipulated minimum addition to personnel. A third type of contract called only for the construction of an addition to petitioner's existing factory in consideration of a cash sum. Contracts of the latter type were in the nature of supplementary agreements with community groups and may have involved an obligation on the part of petitioner to continue operation of the additional plant facilities for the unexpired remainder of a period not exceeding ten years agreed upon in an earlier contract. No restriction was imposed in any instance as to the use which petitioner might make of the property contributed or acquired with cash, or of the proceeds if the property should be disposed of, after expiration of the required period of operation. The Tax Court assumed performance by petitioner according to the terms of the agreements, and the Court of Appeals did not differ. In the case of eleven contracts the stipulated period for performance had expired prior to the taxable years in question. 4 The single transaction which was not based upon such contractual obligations involved a $10,000 cash bonus paid in 1914, according to the minutes of petitioner's board of directors, 'as a part of * * * organization expenses in starting the factory' in the particular town. 5 The cash sums received by petitioner from the groups were not earmarked for, or held intact and applied against, the plant acquisitions in the respective communities but were deposited in petitioner's general bank account from which were paid general operating expenses and the cost of all assets acquired, including factory buildings and equipment in the towns involved. The cash payments were debited to cash account on the assets side of petitioner's ledger and were credited to earned surplus either upon receipt or after having first been assigned to contributed surplus. The values of the buildings acquired were set up in a building account on the assets side and were credited to surplus.5 In every instance the cash received by petitioner from a community group was less than the amount expended by it for the acquisition or construction of the local factory building and equipment. 6 In computing its normal tax net income for the taxable years in controversy petitioner deducted depreciation on the buildings transferred by the community groups and on the full cost of the buildings and equipment acquired or enlarged in the communities from which it had received cash. Petitioner also included the total of $971,031.01 in cash and other property in its equity invested capital. 7 The Commissioner disallowed depreciation deductions with respect to the buildings transferred (in the value of $85,471.56) and the properties acquired with cash to the extent paid to petitioner by the groups (in the value of $885,559.45).6 In computing the amount of depreciation to be allowed, the Commissioner deducted that portion of the cost of the buildings, land and machinery which was paid with such contributed cash or equivalent funds.7 The Commissioner in making such reductions allocated the cash contribution to each item, such as buildings, land if any had been purchased, and machinery in the proportion of the total cost of such item to the total cost of the project. The Commissioner also disallowed inclusion in equity invested capital of the total assets transferred, reducing such capital as computed by petitioner by $971,031.01. 8 The Tax Court reversed the Commissioner's disallowance of depreciation with respect to that portion of the acquisitions paid for with cash. It concluded that these items had 'cost' and therefore 'basis' to petitioner, since they had been paid for from petitioner's own unrestricted funds in which the cash contributions had been deposited without earmarking; as to the buildings transferred, the Court sustained the Commissioner on the ground that these transfers were not gifts and therefore the transferor's basis was not available to petitioner. It held that the petitioner was in error in recording the contributions in equity invested capital as 'contributions to capital' because only stockholders could make such contributions.8 The Court of Appeals, reversing the Tax Court as to the allowance of depreciation deductions with respect to property acquired with cash, held that to the extent of the contributions there was no cost to petitioner.9 9 We think the assets transferred to petitioner by the community groups represented 'contributions to capital' within the meaning of § 113(a)(8)(B) and required no reduction in the depreciation basis of the properties acquired.10 The values which the taxpayer received were additions to 'capital' as that term has commonly been understood in both business and accounting practice;11 conformably with this usage the pertinent Treasury Regulations have consistently recognized that contributions to capital may originate with persons having no proprietary interest in the business.12 That this interpretation is in harmony with broad congressional policy as to depreciation deductions was emphasized by the Third Circuit when considering the similar situation presented in Commissioner v. McKay Products Corp., supra, 178 F.2d at 643: '* * * the assets received * * * are being used by the taxpayer in the operation of its business. They will in time wear out, and if (the taxpayer) is to continue in business, the physical plant must eventually be replaced. Looking as they do toward business continuity, the Internal Revenue Code's depreciation provisions—and especially those which provide for a substituted rather than a cost basis—would seem to envision allowance of a depreciation deduction in situations like this. * * *' The Commissioner contends, however, that this conclusion was foreclosed by Detroit Edison Co. v. Commissioner, 1943, 319 U.S. 98, 63 S.Ct. 902, 904, 87 L.Ed. 1286. That decision denied inclusion in the base for depreciation of electric power lines the amount of payments received by the electric company for construction of the line extensions to the premises of applicants for service. It was held that to the extent of such payments the electric lines did not have cost to the taxpayer, and that such payments were neither gifts nor contributions to the taxpayer's capital. We do not consider that case controlling on the issue whether contributions to capital are involved here. Because in the Detroit Edison case 'The payments were to the customer the price of the service,' the Court concluded that 'it overtaxes imagination to regard the farmers and other customers who furnished these funds as makers either of donations or contributions to the Company.' Since in this case there are neither customers nor payments for service, we may infer a different purpose in the transactions between petitioner and the community groups. The contributions to petitioner were provided by citizens of the respective communities who neither sought nor could have anticipated any direct service or recompense whatever, their only expectation being that such contributions might prove advantageous to the community at large. Under these circumstances the transfers manifested a definite purpose to enlarge the working capital of the company.13 10 The assets transferred by the community groups are likewise contributions to petitioner's capital for the purpose of computing its invested capital credit.14 Cf. I.R.C. § 728, 26 U.S.C.A. § 728. Precisely the same interpretation has been placed by the relevant Treasury Regulations upon the term 'contribution to capital' appearing in § 718(a) as upon the like expression in the income tax provisions.15 That the excess profits tax provision characterizes capital contributions as being 'invested' and 'paid in' does not indicate, as the Commissioner urges, that the concept of capital is the constricted one of legal capital or capital originating with persons having a proprietary interest in the business; we think instead that the taxpayer's investment includes certain values which are properly 'treated as his investment,' cf. Reisinger v. Commissioner, 2 Cir., 1944, 144 F.2d 475, 477—478 though not having cost to the taxpayer. Cf. I.R.C. § 723, 26 U.S.C.A. § 723. It would have been an oddity for Congress to make the inclusion of actual capital contributions in equity invested capital turn upon whether the transferor owned or failed to own one or two shares of stock in the corporation at the time of the transfer.16 11 The decision of this Court in LaBelle Iron Works v. United States, 1921, 256 U.S. 377, 41 S.Ct. 528, 65 L.Ed. 998, is not to the contrary. That case was decided under the excess profits tax law of 1917, 40 Stat. 302 et seq., in which 'invested capital' was defined as '(1) Actual cash paid in, (2) the actual cash value of tangible property paid in other than cash, for stock or shares * * * at the time of such payment * * * and (3) paid in or earned surplus and undivided profits used or employed in the business * * *.' 40 Stat. 306, § 207. The Court held that neither unearned appreciation in value of the taxpayer's ore lands nor the surrender of old stock in exchange for new issues based upon that value, could be regarded as 'the actual cash value of tangible property paid in other than cash' or as 'paid in or earned surplus and undivided profits.' The includability of contributions by outsiders in invested capital was not passed upon.17 12 To the extent that petitioner acquired property involved in this controversy after December 31, 1920, it is entitled to deductions on account of depreciation under § 113(a)(8)(B). It also may include the value of the contributions from community groups in equity invested capital under § 718(a) (1) and (2). The judgment of the Court of Appeals is reversed and the case remanded with directions to remand to the Tax Court for further proceedings in conformity with this opinion. 13 Reversed. 14 Mr. Justice BLACK agrees with the Court of Appeals and would affirm its judgment. 1 The tax in controversy is imposed under the excess profits tax provisions of the Second Revenue Act of 1940, 54 Stat. 974, 975, as amended, I.R.C. § 710 et seq., 26 U.S.C.A. § 710 et seq. The tax is levied upon excess profits net income remaining after allowance of a $5,000 specific exemption and an excess profits credit representing a normal profit. The Act permitted computation of the credit on the basis either of average income over a base period or of 'invested capital,' which includes equity invested capital and 50 percent of borrowed capital. The excess profits tax provisions of the Act were repealed in 1945. 59 Stat. 556, 568. 2 Section 23(l) of the Code, 26 U.S.C.A. § 23(l) permits a deduction from gross income for depreciation of property, and § 23(n) provides that the 'basis' for depreciation shall be as provided in § 114, 26 U.S.C.A. § 114, which adopts the 'adjusted basis' provided in § 113(b) for determining gain. This subsection in turn refers to § 113(a) which provides that the 'basis (unadjusted)' shall be the 'cost' of the property, with certain exceptions including the following: § 113(a)(2) provides in relevant part that 'If the property was acquired by gift after December 31, 1920, the basis shall be the same as it would be in the hands of the donor or the last preceding owner by whom it was not acquired by gift * * *'; § 113(a)(8) provides that 'If the property was acquired after December 31, 1920, by a corporation * * * (B) as paid-in surplus or as a contribution to capital, then the basis shall be the same as it would be in the hands of the transferor * * *.' 3 Section 718(a) provides relevantly: '* * * The equity invested capital for any day of any taxable year * * * shall be the sum of the following amounts, reduced as provided in subsection (b)— '(1) * * * Money proviously paid in for stock, or as paid-in surplus, or as a contribution to capital; '(2) * * * Property (other than money) previously paid in (regardless of the time paid in) for stock, or as paid-in surplus, or as a contribution to capital. * * *; '(4) * * * The accumulated earnings and profits as of the beginning of such taxable year * * *.' 54 Stat. 974, 982, 26 U.S.C. (1940 ed.) § 718(a)(1, 2, 4), 26 U.S.C.A. § 718(a)(1, 2, 4). 4 The value of the land upon which the buildings were located was not included in petitioner's books and is unimportant for this proceeding. 5 Both courts below and the Commissioner have expressly assumed, as petitioner asserts, that the receipts of property and cash were not taxed as income. 6 The Commissioner does not deny that such deductions were disallowed for the first time in 1943, following the decision in Detroit Edison Co. v. Commissioner, 1943, 319 U.S. 98, 63 S.Ct. 902, 87 L.Ed. 1286. 7 The amount thus disallowed on account of depreciation was $22,472.60 for the fiscal year ended 1942 and $24,307.10 for the fiscal year ended 1943. There was no determination by the Commissioner of a deficiency in petitioner's normal tax for either year. 8 The Tax Court relied at this point upon McKay Products Corp. v. Commissioner, 1947, 9 T.C. 1082, which followed Frank Holton & Co. v. Commissioner, 1928, 10 B.T.A. 1317, and A.C.F. Gasoline Co. v. Commissioner, 1927, 6 B.T.A. 1337, decided under earlier excess profits tax laws, and Liberty Mirror Works v. Commissioner, 1944, 3 T.C. 1018, involving § 718. The opinions in Frank Holton & Co. and Liberty Mirror Works regarded LaBelle Iron Works v. United States, 1921, 256 U.S. 377, 41 S.Ct. 528, 65 L.Ed. 998, as controlling. 9 For this result the Court of Appeals cited Detroit Edison Co. v. Commissioner, 1943, 319 U.S. 98, 63 S.Ct. 902, 87 L.Ed. 1286; Commissioner v. Arundel-Brooks Concrete Corp., 4 Cir., 1945, 152 F.2d 225, 162 A.L.R. 1200; and its own prior decision in C. L. Downey Co. v. Commissioner, 8 Cir., 1949, 172 F.2d 810. In affirming on the invested capital issue the Court of Appeals relied in part on LaBelle Iron Works v. United States, note 8 supra, and on the Detroit Edison case. 10 See O'Meara, Contributions to Capital by Non-Shareholders, 3 Tax L.Rev. 568, 572 (1948). No suggestion is made by the Commissioner that because the transfers were the subject of contract they were not 'contributions' within the statute. 11 See, e.g., Current Problems in Accounting—Proceedings of the Accounting Institute, 941, p. 20 (Revised Statement by American Accounting Association of Accounting Principles underlying Corporate Financial Statements); Guthmann and Dougall, Corporate Financial Policy 525 (1940); Harvey, Some Indicia of Capital Transfers under the Federal Income Tax Laws, 37 Mich.L.Rev. 745, 747, n. 6 (1939); Marple, Capital Surplus and Corporate Net Worth 12, 136—137 (1936). Cf. Magill, Taxable Income 389 (Rev.Ed.1945); 1 Mertens, Law of Federal Income Taxation § 5.14 (1942); Texas & Pac. R. Co. v. United States, 1932, 286 U.S. 285, 289, 52 S.Ct. 528, 76 L.Ed. 1108; Lykes Bros. S.S. Co., Inc., 1940, 42 B.T.A. 1395, 1401, affirmed 5 Cir., 1942, 126 F.2d 725, 727; Helvering v. Claiborne-Annapolis Ferry Co., 4 Cir., 1938, 93 F.2d 875, 876. 12 Treas.Reg. 86, Art 113(a)(8)—1; Treas.Reg. 94, Art. 113(a)(8)—1; Treas.Reg. 101, Art. 113(a)(8)—1; Treas.Reg. 103, § 19.113(a)(8)—1; and Treas.Reg. 111, § 29.113(a)(8)—1 have read in part: 'In respect of property acquired by a corporation after December 31, 1920, from a shareholder as paid-in surplus, or from any person as a contribution to capital, the basis of the property in the hands of the corporation is the basis which the property would have had in the hands of the transferor if the transfer had not been made. * * *' The provision of § 113(a)(8)(B), Revenue Act of 1932, in which the term 'contribution to capital' first appeared in federal revenue legislation, was reenacted without change in the Act of 1934 and, following the above interpretation in the regulations, in the Acts of 1936 and 1938 and in the Internal Revenue Code. 13 Commissioner v. Arundel-Brooks Concrete Corp., 4 Cir., 1945, 152 F.2d 225, relied upon by the court below, involved only the issue whether the full cost of a concrete mixing plant, the construction of which was financed in part by payments from a nearby supplier of a raw material used in mixing concrete, was depreciable to the taxpayer; there was no 'contribution to capital' issue, the only question being one of cost basis. However, the payments in that case were made in consideration of services rendered. The construction of the concrete plant directly benefited the supplier of raw materials by insuring the use of its sole product by the taxpayer; the supplier was also served through a business affiliation with the parent of the wholly owned taxpayer in the form of an exclusive marketing arrangement which saved the supplier the expense of a sales organization. See Arundel-Brooks Concrete Corp. v. Commissioner, 4 Cir., 1942, 129 F.2d 762. 14 See Brewster, The Federal Excess Profits Tax, 110—111 (1941). 15 Treas.Reg. 109, § 30.718—1; Treas.Reg. 112, § 35.718—1. The Commissioner agrees that the term 'contribution to capital' is used with the same meaning in §§ 113(a)(8)(B) and 718(a). 16 See 2 Montgomery's Federal Taxes—Corporations and Partnerships—1946—47, p. 372. 17 In Southern Pac. Co. v. Edwards, D.C.S.D.N.Y.1932, 57 F.2d 891, the court held that a capital donation originating with a non-stockholder was includable in invested capital as 'paid-in surplus' under the 1917 Act. However, contributions to capital account from outsiders are often thought of as contributed or donated capital surplus rather than as paid-in surplus, see e.g., Hoagland, Corporation Finance 555 (3d Ed.1947); we think that for this reason among others Congress added the term 'contribution to capital' to the excess profits tax provisions of the 1940 Act, as it had to the Revenue Acts (§ 113(a)(8)) since 1932, to indicate that contributions from outsiders intended as additions to capital should be included in the computation. See S.Rep.No.665, 72d Cong., 1st Sess. 27—28 (1932); H.R.Rep.No.1492, 72d Cong., 1st Sess. 13 (1932).

1112

339 U.S. 577 70 S.Ct. 830 94 L.Ed. 1077 NATIONAL LABOR RELATIONS BOARDv.POOL MFG. CO. No. 435. Argued April 18, 1950. Decided May 15, 1950. Mr. A. Norman Somers, Washington, D.C., for petitioner. Mr. John M. Scott, Fort Worth, Tex., for respondents. Mr. Justice CLARK delivered the opinion of the Court. 1 This case is a companion to National Labor Relations Board v. Mexia Textile Mills, 339 U.S. 563, 70 S.Ct. 826. Respondent is a manufacturer of clothing in Texas, and is engaged in interstate commerce within the meaning of the labor relations acts.1 In December 1943, the National Labor Relations Board designated Local Union No. 251 of the United Garment Workers of America, affiliated with the American Federation of Labor, the exclusive bargaining representative of certain of respondent's employees. In December 1945, the Union charged the respondent with violations of §§ 8(1) and 8(5) of the National Labor Relations Act in connection with a strike going on at that time. The Board's complaint was issued pursuant to these charges in April 1946; a hearing was held; the Trial Examiner's intermediate report was issued; and, since no exceptions to the report were entered by the respondent, the Board, on August 26, 1946, adopted the Trial Examiner's findings,2 conclusions and recommendations, and ordered the respondent to cease and desist its refusal to bargain with the Union. With certain limitations, the company was also ordered to offer reinstatement and back pay to employees who had gone on strike. 70 N.L.R.B. 540 (1946). 2 Two and one-half years later, on February 17, 1949, the Board petitioned the Court of Appeals for the Fifth Circuit for the enforcement of its order. Respondent moved for leave to adduce additional evidence. It stated that it had bargained with the Union since the date of the order, but that no agreement had been reached; that the Union had made no effort to bargain since early in 1948; that respondent questioned whether the Union retained the majority of employees in the bargaining unit, since certain employees had informed respondent that they had left the Union, and the Union's organizer had stated, according to respondent, that a rival union had a 'substantial group' within its membership; that these facts had come to respondent's attention since the 'record in the instant case was closed and completed'; and finally that the passage of the statute imposing a duty upon the Union to bargain with the respondent might affect the disposition of the case before the Board. 3 On May 13, 1949, the Court of Appeals for the Fifth Circuit entered an order identical in pertinent part with that quoted in National Labor Relations Board v. Mexia Textile Mills, 339 U.S. 563, 70 S.Ct. 826. We granted certiorari, 1950, 338 U.S. 909, 70 S.Ct. 349. 4 Although respondent concedes that the decision in the Mexia case governs the case at bar, a single issue may deserve separate treatment. In the instant case the Board waited two and one-half years before it sought enforcement of its order. There is a suggestion that the length of the delay may have influenced the Court of Appeals in ordering the Board to take evidence on the question of compliance. We regard this as doubtful, in view of its identical action in the Mexia case, when the petition for enforcement was filed only nine months after the Board's order. But in any event we view the delay as without consequence in this case. 5 The Board is of course charged with primary responsibility in effectuating the policies of the Act. It has determined that those policies are advanced in some cases by resorting to the processes of negotiation with the employer rather than the compulsion, as well as the trouble and expense, of an enforcement decree. See § 202.13 of the Board's earlier regulations regarding the Labor Management Relations Act, 12 Fed.Reg. 5651, 5653 (1947). In some cases delay in enforcement may be helpful in reaching an immediate solution of the problem; in others, exhaustion of negotiation techniques before a decree is requested may consume many months after the Board's order and before such techniques fail. We are of the opinion that a strict judicial time limitation of the duration presented in the instant case would frustrate the deliberate purpose of Congress in permitting, but not requiring, resort to an enforcement decree.3 Cf. § 10(b), which states a definite period of limitation regarding charges filed with the Board. Compare National Labor Relations Board v. American Creosoting Co., 6 Cir., 1943, 139 F.2d 193; National Labor Relations Board v. Electric Vacuum Cleaner Co., 1942, 315 U.S. 685, 697—698, 62 S.Ct. 846, 852, 86 L.Ed. 1120. We must not forget that the 'question whether the settlement (with the employer) shall be accepted as definitive is for the Board to decide * * *.' National Labor Relations Board v. General Motors Corp., 2 Cir., 1950, 179 F.2d 221, 222. The employer, who could have obtained review of the Board order when it was entered, § 10(f), is hardly in a position to object. National Labor Relations Board v. Todd Co., 2 Cir., 1949, 173 F.2d 705; National Labor Relations Board v. Andrew Jergens Co., 9 Cir., 1949, 175 F.2d 130, 134. 6 The contrary argument was made in more explicit terms in National Labor Relations Board v. Crompton-Highland Mills, 1949, 337 U.S. 217, 69 S.Ct. 960, a case also coming to us from the Court of Appeals for the Fifth Circuit. The Board's petition for enforcement had been filed more than a year and three months after its order. In its brief in this Court as well as in response to the petition for enforcement in the Court of Appeals, the employer alleged that it had bargained collectively with the Union for nearly two years prior to the petition for enforcement, and that the Board's order requiring collective bargaining should not be enforced. Noting the delay, respondent asked that it be afforded 'an opportunity to prove the pertinent facts.' The Court of Appeals denied the Board's 'belated' petition for enforcement for a reason not pertinent here, coupled with 'the earnest assertions by the respondent that it has complied with the Board's previous order * * *.' 5 Cir., 1948, 167 F.2d 662, 663. This Court reversed, holding 'that the Board's order to cease and desist is justified, under the circumstances of this case * * *.' The Court stated that 'Even though the employer, since January 1, 1946, may have carried on collective bargaining in good faith as to rates of pay and other matters, a decree enforcing the original order against making a general increase without consulting the collective bargaining representatives is justifiable. '* * * an order of the character made by the Board, lawful when made, does not become moot because it is obeyed or because changing circumstances indicate that the need for it may be less than when made.' National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 831, 115 A.L.R. 307. See also, Federal Trade Comm. v. Goodyear Tire & Rubber Co., 304 U.S. 257, 58 S.Ct. 863, 82 L.Ed. 1326.' 337 U.S. at page 225, 69 S.Ct. at page 964, n. 7. 7 We think the rationable of the Crompton-Highland case is persuasive here. Otherwise those intent upon violating the Act have a ready means of escape through the use of delaying tactics in negotiation, culminating in the filing of motions to adduce evidence when enforcement is sought, thus effectively frustrating the Board's order. We need not now face the question whether a Court of Appeals may under § 10(e) refer a matter back to the Board for appropriate action on a showing by the employer that subsequent to the Board's order, but before the petition for enforcement several years later, a rival union has filed before the Board a petition for recognition, not yet acted upon, which claims that the bargaining representative no longer has a majority of the employees. Nor need we decide whether a period of delay through its length alone may mature into a denial of an enforcement decree or make necessary the adduction of additional evidence. Cf. National Labor Relations Board v. Eanet, 1949, 85 U.S.App.D.C. 371, 179 F.2d 15. We decide only that in this case the Board's delay in filing its petition was not fatal, and cannot save the order entered below. Like its companion, this order of the Court of Appeals must be vacated and the enforcement of the Board order decreed pursuant to § 10(e), unless 'extraordinary circumstances' are pleaded which justify the respondent's failure to urge its objections before the Board. 8 Order vacated. 9 Mr. Justice FRANKFURTER and Mr. Justice JACKSON, dissenting. For dissenting opinion, see 339 U.S. 563, 70 S.Ct. 833. 1 49 Stat. 449, 29 U.S.C. § 151 et seq., 29 U.S.C.A. § 151 et seq., 61 Stat. 136, 29 U.S.C. (Supp. III) § 141 et seq., 29 U.S.C.A. § 141 et seq. 2 Including the Trial Examiner's rejection of the employer's allegation that the Union no longer represented the majority in the bargaining unit. 3 'The Senate amendment followed the present language of the act, which permits the Board to petition for enforcement, but does not require it to do so. The conference agreement adopts the language of the Senate amendment.' H.R.Conf.Rep.No.510, on H.R. 3020, 80th Cong., 1st Sess., p. 55.

89

339 U.S. 563 70 S.Ct. 833 94 L.Ed. 1067 NATIONAL LABOR RELATIONS BOARD, petitioner,v.MEXIA TEXTILE MILLS, Inc. NATIONAL LABOR RELATIONS BOARD, petitioner, v. POOL MANUFACTURING COMPANY. Nos. 434, 435. Decided May 15, 1950. Mr. A. Norman Somers, of Washington, D.C., for petitioner. Mr. John M. Scott, of Fort Worth, Tex., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 This is a proceeding brought by the National Labor Relations Board charging unfair labor practices of the respondent, Mexia Textile Mills, a manufacturer of cotton goods at Mexia, Texas, engaged in interstate commerce within the meaning of the National Labor Relations Act1 and the Labor Management Relations Act, 1947.2 On the Board's petition for enforcement of its cease and desist order, the Court of Appeals for the Fifth Circuit referred the case back to the Board with directions to take evidence and report whether the order had been complied with by the respondent; if so, whether the matter should not be dismissed as moot; and if not, what recommendations the Board had to make. We granted certiorari upon the claim that the effect of the order of the Court of Appeals was at variance with previous decisions of this Court. 1950, 338 U.S. 909, 70 S.Ct. 348. 2 The pertinent facts are these. In November 1944, the Board conducted an election at the respondent's plant, in which the Textile Workers Union of America, C.I.O., received an overwhelming majority.3 The Board thereupon certified that Union as the exclusive representative of those production and maintenance employees who constituted the appropriate bargaining unit designated by the Board. In January 1947 the Union filed a charge with the Board complaining that respondent had refused to bargain collectively in good faith with the Union, and was thus guilty of unfair labor practices within the meaning of §§ 8(1) and 8(5) of the National Labor Relations Act. The Board issued its complaint pursuant to those charges in June 1947. Respondent, in answer, admitted that it was engaged in interstate commerce within the meaning of the Act, denied the charges contained in the complaint, and alleged, inter alia, that the Union no longer represented a majority of employees in the bargaining unit, though the number of employees who had withdrawn was unknown to respondent. A hearing was held before a trial examiner in August 1947. The Trial Examiner denied respondent's motions for a more definite statement of the complaint, and for an order permitting the inspection and copying of certain evidence. Respondent's counsel thereupon withdrew from the hearing and took no further part therein. 3 In December 1947 the Trial Examiner issued his report. He concluded that 'From the evidence, it is apparent that, although the respondent conferred with the Union on possible contract provisions, it did not bargain in good faith and had no intention of doing so.' The failure to bargain was manifest from evidence of incidents taking place from the time of the certification of the Union until a month before its complaint was filed. Unilateral wage increases and respondent's efforts to shunt the Union representatives from one company official to another in search of the final authority in wage and contract negotiations—these and other findings led the Examiner to conclude that 'an unmistakable effort to escape genuine collective bargaining' and demonstated. Further, the Examiner determined, there was no merit in the respondent's contention that the Union did not retain the membership of a majority of employees in the bargaining unit. Respondent, having taken no part in the hearing, did not of course introduce any evidence to support its allegation. 4 The Examiner recommended, in substance, that respondent be ordered to cease and desist from its refusal to bargain in good faith with the Union. No exceptions to the report were filed within the time permitted by § 10(c) of the Labor Management Relations Act, and in July 1948 the Board adopted the Trial Examiner's findings and issued the recommended order, as required by § 10(c). 5 In April 1949 the Board petitioned the Court of Appeals for the Fifth Circuit for enforcement of its order. Respondent filed a motion for the taking of additional evidence, alleging that since the report of the Trial Examiner, 'during the year 1948,' it had 'entered into good faith bargaining with the Union,' but that an agreement had been prevented by the Union's 'arbitrary, capricious and intransigent attitude * * *.' A copy of a letter respondent had sent to the Board's Regional Director, shortly after the Trial Examiner's report, was attached to respondent's motion. The letter stated that while respondent 'did not see fit to argue' about past 'disagreements and strikes' before the Trial Examiner, it was then 'more than willing to accept (his) recommendations * * *.' Respondent also alleged that after 'the record in the instant case was closed' it had come to the conclusion that the Union no longer represented a majority of employees in the bargaining unit. 6 On June 3, 1949, the Court of Appeals for the Fifth Circuit ordered that 'action on petitioner's motion should be deferred and the matter be referred back to the Board with directions to take evidence and report: (1) whether and to what extent its order had been complied with by respondent; (2) whether and why, if the order has been complied with, the matter should not be dismissed as moot; and (3) if the matter is not moot, what recommendations or requests the Board has to make in the premises * * *.' 7 We think it plain from the cases that the employer's compliance with an order of the Board does not render the cause moot, depriving the Board of its opportunity to secure enforcement from an appropriate court.4 Indeed, the Court of Appeals for the Fifth Circuit has apparently recognized this rule both before and after the decision in the instant cases.5 A Board order imposes a continuing obligation; and the Board is entitled to have the resumption of the unfair practice barred by an enforcement decree. As the Court of Appeals for the Second Circuit remarked, 'no more is involved than whether what the law already condemned, the court shall forbid; and the fact that its judgment adds to existing sanctions that of punishment for contempt, is not a circumstance to which a court will ordinarily lend a friendly ear.' National Labor Relations Board v. General Motors Corp., 1950, 179 F.2d 221, 222. The Act does not require the Board to play hide-and-seek with those guilty of unfair labor practices. 8 That the respondent doubts the Union's ability to muster a majority of the employees in the bargaining unit does not justify the denial of an enforcement decree. Explicit congressional policy stands in the way of permitting the employers to stall enforcement of the Board's orders on this ground. Under § 9(c) of the Act 'an employee or group of employees or any individual or labor organization acting in their behalf' may 'assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in section 9(a) * * *.' § 9(c)(1)(A)(ii). Petitions by the employer concerning selection of bargaining representatives are limited to those 'alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in section 9(a) * * *.' § 9(c)(1)(B). To authorize the employer to assert diminution in membership in the certified union in an enforcement proceeding subverts the statutory mandate to leave these matters to the Board in separate proceedings under § 9(c).6 9 It is of course equally clear that a motion for leave to adduce additional evidence pursuant to § 10(e) of the labor relations acts is 'addressed to the sound judicial discretion of the court.' Southport Petroleum Co. v. National Labor Relations Board, 1942, 315 U.S. 100, 104, 62 S.Ct. 452, 454, 455, 86 L.Ed. 718; National Labor Relations Board v. Indiana & Michigan Electric Co., 1943, 318 U.S. 9, 63 S.Ct. 394, 87 L.Ed. 579. We are told that the order of the Court of Appeals is justified in this case because the issue of compliance, so clearly irrelevant in the ordinary course of review, is imbued with relevance should the respondent's counsel move to adduce additional evidence when the case reaches the Court of Appeals. 10 The cases are to the contrary. National Labor Relations Board v. Condensor Corp., 3 Cir., 1942, 128 F.2d 67, 81; National Labor Relations Board v. Swift & Co., 8 Cir., 1942, 129 F.2d 222, 224; National Labor Relations Board v. American Potash & Chemical Corp., 9 Cir., 1938, 98 F.2d 488, 493, and cases therein cited. If compliance with an order of the Board is irrelevant to the reviewing court's function after the new evidence has been adduced, we do not see that there is point in adducing evidence of that compliance. This Court has emphasized that the 'power to adduce additional evidence granted to the Circuit Court of Appeals by § 10(e) cannot be employed to enlarge the statutory scope of judicial review.' National Labor Relations Board v. Donnelly Garment Co., 1947, 330 U.S. 219, 234—235, 67 S.Ct. 756, 764, 91 L.Ed. 854. As the managers on the part of the House of Representatives for the Conference Committee reported concerning the Wagner Act, that statute contemplated that there be 'immediately available to the Board an existing court decree to serve as a basis for contempt proceedings,' in the event a renewal of the unfair practice occurs after the enforcement order. H.R.Rep.No.1371, 74th Cong., 1st Sess., p. 5. See also H.R.Conf.Rep.No. 510, on H.R.3020, 80th Cong., 1st Sess., &. 55; compare H.R.Rep.No.245, on H.R.3020, 80th Cong., 1st Sess., pp. 43, 93. Section 10(e), which 'in effect formulates a familiar principle regarding newly discovered evidence,' National Labor Relations Board v. Donnelly Garment Co., supra, 330 U.S. at page 234, 67 S.Ct. at page 764, 91 L.Ed. 854, does not authorize a discretion so broad that evidence irrelevant as a matter of law may be considered 'material.' Compare Griffin v. United States, 1949, 336 U.S. 704, 708, 69 S.Ct. 814, 815, with United States v. Johnson, 1946, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562. 11 The cases cited by respondent to not touch this controlling issue. The order of the Court of Appeals must be vacated and the enforcement of the Board order decreed pursuant to § 10(e), unless 'extraordinary circumstances' are pleaded which justify the respondent's failure to urge its objections before the Board. 12 Order vacated. 13 Mr. Justice FRANKFURTER, whom Mr. Justice JACKSON joins, dissenting. 14 Compliance with an order of the National Labor Relations Board is, of course, no defense to the Board's petition for judicial enforcement of its order. Therefore, a Court of Appeals would be abusing the authority conferred by § 10(e) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947,* if, upon such a petition for enforcement, it even temporarily withheld enforcement merely for the purpose of asking the Board to report to it whether the order had already been complied with. Even if it had, the Board is entitled to a formal decree as a safeguard against repetition of the unfair labor practice. If in the cases before us the Court of Appeals had, by seeking light from the Board on the issue of compliance, in effect ruled that compliance with an order of the Board was relevant to enforcement, it would be incumbent upon this Court, in the fair administration of law, to issue its discretionary writ of certiorari and reverse the orders of the Court of Appeals summarily. 15 But the action of the Court of Appeals in these two cases cannot fairly be interpreted as definance of the settled principle of law that compliance by an employer with the Board's order is not a defense to an application for its enforcement. In a series of decisions prior to its actions in these two cases the Court of Appeals for the Fifth Circuit, in common with all other circuits, has enforced orders of the Board despite allegations of compliance. Nor are these two cases to be interpreted as departures from the principle which that court has heretofore recognized and obeyed. It has explictly advised us that the opinions and orders in these two cases 'were not intended to be, they were not, departures' from the established rule. National Labor Relations Board v. Cooper Co., 5 Cir., 179 F.2d 241. Whatever justification there may have been when we granted certiorari for attributing to the court below a volte-face on its own repeated application of a settled principle of law, there was none after its decision in the Cooper case ten days later. Yet it is only by attributing to the Court of Appeals a departure which that court has disavowed that it may be charged with an abuse of discretion which alone would have warranted our taking these cases for review. 16 The fact is that in both these cases representations were made to the Court of Appeals of circumstances arising subsequent to the orders issued by the Board which amount to more than a claim that the employer had complied with what the Board had directed. The claims concern change in the union affiliation of employees and recalcitrance on the part of the union, and not of the employer, toward effectuating the Board's order. To be sure, there was a clause in the court's order which, taken abstractly, looked as though the court desired to be informed on the issue of compliance and the Court of Appeals did not spell out with particularity these other claims, but they were embraced in a catchall clause for further 'evidence and report' by the Board. 17 This raises for me important issues of judicial administration. Due regard for the considerations that should govern the exercise of our discretionary jurisdiction and for the effective functioning of the Courts of Appeals in the whole scheme of the federal judiciary indicates dismissal of these writs. 18 We are dealing with one of the appellate tribunals of the United States to which Congress has seen fit to commit the final determination of this type of controversy, subject only to the reviewing power of this Court. Review is to be exercised, however, not as a matter of course, but only in those rare instances where constitutional issues, or conflicts of circuits, or obvious considerations of a public importance call for our adjudication. In establishing the Courts of Appeals, Congress intended to create courts of great dignity and ability whose decisions were to be final except in the very limited instances where the Supreme Bench should pronounce for the whole nation. This design for the Courts of Appeals was powerfully reinforced by the Judiciary Act of 1925, 43 Stat. 936, in that it withdrew all but a few categories of cases from the obligatory jurisdiction of this Court. The volume of business that would be drawn to this Court by the overriding national importance of the issues was bound to be so heavy that adequate disposition of them was assumed to preclude the grant of certiorari in cases, however erroneously decided below, in which the incidence of error was too small compared with the drain that their consideration would make on the thought and energy demanded of this Court by the cases which inevitably belong here. And so the Court has said again and again that the writ of certiorari ought not to be employed to bring here cases which, in their essential impact, concern a restricted and perhaps a unique set of circumstances and do not involve the pronouncement by a Court of Appeals of a general doctrine on which this Court ought to have the last say. 19 No candid student of the actual operation of certiorari can feel confident that the criteria professed for its exercise have been adequately respected. This Court is too frequently engaged in deciding cases which ought not to occupy the highest Court in the land, because they divert its energy from those matters to which it cannot give too much unburdened thought. And when comparison is made between the issues at stake in petitions that have been granted and those in which petitions have been denied, the contrast is at times glaring. 20 This has two consequences that are to be deprecated in the administration of the federal courts, and they are avoidable without aiming at the moon. By taking cases that ought not to be taken we obviously encourage petitions to be filed that have no excuse for being here. The fact that term after term hundreds of petitions are denied indicates that our screening process is such as to encourage the hope that is eternal in the breast of losing counsel. One does not have to be an easy generalizer of national characteristics to believe that litigiousness is one of our besetting sins. A relaxed observance of the considerations that supposedly govern our certiorari jurisdiction is not calculated to discourage litigiousness. 21 Equally undersirable is the effect, however insidious, upon Courts of Appeals. If, barring only exceptional cases, they are to be deemed final courts of appeals, consciousness of such responsibility will elicit in them, assuming they are manned by judges fit for their tasks, the qualities appropriate for such responsibility. Contrariwise, encouragement in regarding Courts of Appeals merely as way-stations to this Court is bound to have a weakening effect on the administration of tribunals whose authority and qualities we should be alert to promote. 22 These are general considerations, but due regard for them goes, I believe, to the very marrow of high judicial performance. Let me apply them to the cases in hand. A year ago three circuit judges of long experience deferred motions of the National Labor Relations Board for enforcement of its orders (one of which had been outstanding for two and one-half years) by requesting the Board for 'additional evidence' which these judges deemed material. The Court made this request under § 10(e) of the National Labor Relations Act, as amended by the Labor Management Relations Act, with respect to various claims, outlined above, as they emerged in the proceedings before it. When it was confronted with the employers' applications for leave to adduce such additional evidence, the court presumably examined the cases in this Court as to the nature of its power to grant them and noted that our cases held that such applications are 'addressed to the sound judicial discretion of the court.' Southport Petroleum Co. v. National Labor Relations Board, 315 U.S. 100, 104, 62 S.Ct. 452, 455, 86 L.Ed. 718; National Labor Relations Board v. Donnelly Garment Co., 330 U.S. 219, 233, 234, 67 S.Ct. 756, 763—764, 91 L.Ed. 854. In granting the applications, the court, expressly reserving decision on the merits, merely referred the matters back to the Board for its assistance in furnishing further information and for its recommendations and requests 'in the light of such further information.' Indeed, that court has rather plaintively explained that in the two cases which are now reversed 'nothing was decided.' National Labor Relations Board v. Cooper Co., 5 Cir., 179 F.2d 241. 23 The Court nottes that the Board has held that the continued majority status of a certified union may be challenged by an employer in § 9(c) proceedings. Whitney's, 81 N.L.R.B. 75. There is neither explicit authorization nor explicit denial in the statute of the right of an employer to make such a challenge in enforcement proceedings. Nothing in the text or context of the statute or any consideration underlying its policy precludes the relevance of continued majority status to enforcement, especially where loss of majority may be due to employee dissatisfaction with alleged union intransigence. It appears to me arbitrary to deny to a Court of Appeals, in the fair exercise of its discretion under § 10(e), the right to ask the Board for light on this issue, if for no other reason than that the Board's views would be helpful in the judicial determination of the issue. 24 Fully mindful of the heavy load of cases before the Board, I venture to suggest that it could have speedily disposed of the matters that on the record appeared to trouble the Court of Appeals, could have reported back to the court, and could have secured a prompt disposition of its petitions for enforcement. Any adverse rulings by the court could then have been brought here by the Board, not with any ambiguity inherent in a discretionary ruling, but with the full clarity of an adjudication on the merits. Instead, the Board comes here to review the court's interim orders, petitions for certiorari resting on a special set of unique circumstances are granted, and the Court of Appeals is now reversed by attributing to it a disavowed disregard of an imporant principle in the administration of the Labor Management Relations Act. 25 In the light of the entire series of decisions by the Court of Appeals for the Fifth Circuit, both before and after the orders in this case, it does not seem to me reasonable to interpret the orders now before us as demands on the Board for findings merely as to compliance with the orders sought to be enforced. That court's decisions preclude such intendment. Since the record permits, we ought to attribute to a Court of Appeals not a willful disregard of principle and, as such, an abuse of discretion, but an honest desire to get light on happenings after the Board's orders relevant to its duties as a court of equity. Courts of Appeals are also human institutions. By attributing to the Court of Appeals an abusive exercise of discretion when the record may fairly be otherwise interpreted, we not only needlessly rebuke that court; we take action calculated to chill other judges in exercising with utter freedom a discretion which we have heretofore pronounced they possess. 26 I would leave the action of the Court of Appeals to take the course which I believe wisely should have been taken when their orders were entered. To that end, I would dismiss these writs as improvidently granted. 1 49 Stat. 449, 29 U.S.C. § 151 et seq., 29 U.S.C.A. § 151 et seq. 2 61 Stat. 136, 29 U.S.C. (Supp. III) § 141 et seq., 29 U.S.C.A. § 141 et seq. 3 146 of the 164 valid votes were cast in favor of the union, of the approximately 186 eligible voters. 4 National Labor Relations Board v. Pennsylvania Greyhound Lines, 1938, 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 831, 115 A.L.R. 307; Consolidated Edison Co. of New York v. National Labor Relations Board, 1938, 305 U.S. 197, 230, 59 S.Ct. 206, 217, 83 L.Ed. 126; National Labor Relations Board v. Crompton-Highland Mills, 1949, 337 U.S. 217, 225, 69 S.Ct. 960, 963; National Labor Relations Board v. Draper Corp., 1 Cir., 1947, 159 F.2d 294, 297; National Labor Relations Board v. Remington Rand, 2 Cir., 1938, 94 F.2d 862, 869—870; National Labor Relations Board v. Condensor Corp., 3 Cir., 1942, 128 F.2d 67, 81; National Labor Relations Board v. Baltimore Transit Co., 4 Cir., 1944, 140 F.2d 51, 55; National Labor Relations Board v. Toledo Desk & Fixture Co., 6 Cir., 1946, 158 F.2d 426; National Labor Relations Board v. Bachelder, 7 Cir., 1942, 125 F.2d 387, 388; National Labor Relations Board v. Swift, & Co., 8 Cir., 1942, 129 F.2d 222, 224; National Labor Relations Board v. American Potash & Chemical Corp., 9 Cir., 1938, 98 F.2d 488; Pueblo Gas & Fuel Co. v. National Labor Relations Board, 10 Cir., 1941, 118 F.2d 304, 307. Cf. Federal Trade Commission v. Goodyear Tire & Rubber Co., 1938, 304 U.S. 257, 58 S.Ct. 863, 82 L.Ed. 1326. 5 National Labor Relations Board v. Fickett-Brown Mfg. Co., 5 Cir., 1944, 140 F.2d 883, 884; National Labor Relations Board v. Cooper Co., 5 Cir., 1950, 179 F.2d 241. 6 See National Labor Relations Board v. Remington Rand, 2 Cir., 1938, 94 F.2d 862, 869—870. See also, §§ 203.46, 203.47 of the Board's regulations under the Wagner Act, 11 Fed.Reg. 177A 605, 177A—610 (1946), and §§ 203.52 and 203.53 of the rules printed at 13 Fed.Reg. 5651, 5662 (1947); National Labor Relations Board v. Biles-Coleman Lumber Co., 9 Cir., 1938, 96 F.2d 197. Compare Franks Bros. Co. v. National Labor Relations Board, 1944, 321 U.S. 702, 705—706, 64 S.Ct. 817, 88 L.Ed. 1020. The Board has held that it is the forum before which an employer may challenge a certified union's continued representative status, Matter of whitney's, 81 N.L.R.B. 75 (1949), in § 9(c) proceedings. * Section 10(e) provides in part: 'If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board, its member, agent, or agency, the court may order such additional evidence to be taken before the Board, its members, agent, or agency, and to be made a part of the transcript.' 61 Stat. 148, 29 U.S.C. (Supp. III), § 160(e), 29 U.S.C.A. § 160(e).

89

339 U.S. 605 70 S.Ct. 854 94 L.Ed. 1097 GRAVER TANK & MFG. CO., Inc., et al.v.LINDE AIR PRODUCTS CO. No. 2. Reargued March 30, 1950. Decided May 29, 1950. Motion to Issue Mandate Denied June 5, 1950. See 70 S.Ct. 1017. Mr. Thomas V. Koykka, Cleveland, Ohio, for petitioners. Mr. John T. Cahill, New York City, Richard R. Wolfe, Chicago, Ill., for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 Linde Air Products Co., owner of the Jones patent for an electric welding process and for fluxes to be used therewith, brought an action for infringement against Lincoln and the two Graver companies. The trial court held four flux claims valid and infringed and certain other flux claims and all process claims invalid. 86 F.Supp. 191. The Court of Appeals affirmed findings of validity and infringement as to the four flux claims but reversed the trial court and held valid the process claims and the remaining contested flux claims. 167 F.2d 531. We granted certiorari, 335 U.S. 810, 69 S.Ct. 50, 93 L.Ed. 366, and reversed the judgment of the Court of Appeals insofar as it reversed that of the trial court, and reinstated the District Court decree. 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672. Rehearing was granted, limited to the question of infringement of the four valid flux claims and to the applicability of the doctrine of equivalents to findings of fact in this case. 337 U.S. 910, 69 S.Ct. 1046, 93 L.Ed. 1722. 2 At the outset it should be noted that the single issue before us is whether the trial court's holding that the four flux claims have been infringed will be sustained. Any issue as to the validity of these claims was unanimously determined by the previous decision in this Court and attack on their validity cannot be renewed now by reason of limitation on grant of rehearing. The disclosure, the claims, and the prior art have been adequately described in our former opinion and in the opinions of the courts below. 3 In determining whether an accused device or composition infringes a valid patent, resort must be had in the first instance to the words of the claim. If accused matter falls clearly within the claim, infringement is made out and that is the end of it. 4 But courts have also recognized that to permit imitation of a patented invention which does not copy every literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such a limitation would leave room for—indeed encourage—the unscrupulous copyist to make unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of law. One who seeks to pirate an invention, like one who seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and shelter the piracy. Outright and forthright duplication is a dull and very rare type of infringement. To prohibit no other would place the inventor at the mercy of verbalism and would be subordinating substance to form. It would deprive him of the benefit of his invention and would foster concealment rather than disclosure of inventions, which is one of the primary purposes of the patent system. 5 The doctrine of equivalents evolved in response to this experience. The essence of the doctrine is that one may not practice a fraud on a patent. Originating almost a century ago in the case of Winans v. Denmead, 15 How. 330, 14 L.Ed. 717, it has been consistently applied by this Court and the lower federal courts, and continues today ready and available for utilization when the proper circumstances for its application arise. 'To temper unsparing logic and prevent an infringer from stealing the benefit of the invention'1 a patentee may invoke this doctrine to proceed against the producer of a device 'if it performs substantially the same function in substantially the same way to obtain the same result.' Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147. The theory on which it is founded is that 'if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form or shape.' Union Paper-Bag Machine Co. v. Murphy, 97 U.S. 120, 125, 24 L.Ed. 935. The doctrine operates not only in favor of the patentee of a pioneer or primary invention, but also for the patentee of a secondary invention consisting of a combination of old ingredients which produce new and useful results, Imhaeuser v. Buerk, 101 U.S. 647, 655, 25 L.Ed. 945, although the area of equivalence may vary under the circumstances. See Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 414—415, 28 S.Ct. 748, 749, 52 L.Ed. 1122, and cases cited; Seymour v. Osborne, 11 Wall. 516, 556, 20 L.Ed. 33; Gould v. Rees, 15 Wall. 187, 192, 21 L.Ed. 39. The wholesome realism of this doctrine is not always applied in favor of a patentee but is sometimes used against him. Thus, where a device is so far changed in principle from a patented article that it performs the same or a similar function in a substantially different way, but nevertheless falls within the literal words of the claim, the doctrine of equivalents may be used to restrict the claim and defeat the patentee's action for infringement. Westinghouse v. Boyden Power Brake Co., 170 U.S. 537, 568, 18 S.Ct. 707, 722, 42 L.Ed. 1136. In its early development, the doctrine was usually applied in cases involving devices where there was equivalence in mechanical components. Subsequently, however, the same principles were also applied to compositions, where there was equivalence between chemical ingredients. Today the doctrine is applied to mechanical or chemical equivalents in compositions or devices. See discussions and cases collected in 3 Walker on Patents (Deller's ed. 1937) §§ 489—492; Ellis, Patent Claims (1949) §§ 59—60. 6 What constitutes equivalency must be determined against the context of the patent, the prior art, and the particular circumstances of the case. Equivalence, in the patent law, is not the prisoner of a formula and is not an absolute to be considered in a vacuum. It does not require complete identity for every purpose and in every respect. In determining equivalents, things equal to the same thing may not be equal to each other and, by the same token, things for most purposes different may sometimes be equivalents. Consideration must be given to the purpose for which an ingredient is used in a patent, the qualities it has when combined with the other ingredients, and the function which it is intended to perform. An important factor is whether persons reasonably skilled in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was. 7 A finding of equivalence is a determination of fact. Proof can be made in any form: through testimony of experts or others versed in the technology; by documents, including texts and treatises; and, of course, by the disclosures of the prior art. Like any other issue of fact, final determination requires a balancing of credibility, persuasiveness and weight of evidence. It is to be decided by the trial court and that court's decision, under general principles of appellate review, should not be disturbed unless clearly erroneous. Particularly is this so in a field where so much depends upon familiarity with specific scientific problems and principles not usually contained in the general storehouse of knowledge and experience. 8 In the case before us, we have two electric welding compositions or fluxes: the patented composition, Unionmelt Grade 20, and the accused composition, Lincolnweld 660. The patent under which Unionmelt is made claims essentially a combination of alkaline earth metal silicate and calcium fluoride; Unionmelt actually contains, however, silicates of calcium and magnesium, two alkaline earth metal silicates. Lincolnweld's composition is similar to Unionmelt's, except that it substitutes silicates of calcium and manganese—the latter not an alkaline earth metal—for silicates of calcium and magnesium. In all other respects, the two compositions are alike. The mechanical methods in which these compositions are employed are similar. They are identical in operation and produce the same kind and quality of weld. 9 The question which thus emerges is whether the substitution of the manganese which is not an alkaline earth metal for the magnesium which is, under the circumstances of this case, and in view of the technology and the prior art, is a change of such substance as to make the doctrine of equivalents inapplicable; or conversely, whether under the circumstances the change was so insubstantial that the trial court's invocation of the doctrine of equivalents was justified. 10 Without attempting to be all-inclusive, we note the following evidence in the record: Chemists familiar with the two fluxes testified that manganese and magnesium were similar in many of their reactions (R. 287, 669). There is testimony by a metallurgist that alkaline earth metals are often found in manganese ores in their natural state and that they serve the same purpose in the fluxes (R. 831—832); and a chemist testified that 'in the sense of the patent' manganese could be included as an alkaline earth metal (R. 297). Much of this testimony was corroborated by reference to recognized texts on inorganic chemistry (R. 332). Particularly important, in addition, were the disclosures of the prior art, also contained in the record. The Miller patent, No. 1,754,566, which preceded the patent in suit, taught the use of manganese silicate in welding fluxes (R. 969, 971). Manganese was similarly disclosed in the Armor patent, No. 1,467,825, which also described a welding composition (R. 1346). And the record contains no evidence of any kind to show that Lincolnweld was developed as the result of independent research or experiments. 11 It is not for this Court to even essay an independent evaluation of this evidence. This is the function of the trial court. And, as we have heretofore observed, 'To no type of case is this * * * more appropriately applicable than to the one before us, where the evidence is largely the testimony of experts as to which a trial court may be enlightened by scientific demonstrations. This trial occupied some three weeks, during which, as the record shows, the trial judge visited laboratories with counsel and experts to observe actual demonstrations of welding as taught by the patent and of the welding accused of infringing it, and of various stages of the prior art. He viewed motion pictures of various welding operations and tests and heard many experts and other witnesses.' 336 U.S. 271, 274—275, 69 S.Ct. 535, 537, 93 L.Ed. 672. 12 The trial judge found on the evidence before him that the Lincolnweld flux and the composition of the patent in suit are substantially identical in operation and in result. He found also that Lincolnweld is in all respects equivalent to Unionmelt for welding purposes. And he concluded that 'for all practical purposes, manganese silicate can be efficiently and effectively substituted for calcium and magnesium silicates as the major constituent of the welding composition.' These conclusions are adequately supported by the record; certainly they are not clearly erroneous.2 13 It is difficult to conceive of a case more appropriate for application of the doctrine of equivalents. The disclosures of the prior art made clear that manganese silicate was a useful ingredient in welding compositions. Specialists familiar with the problems of welding compositions understood that manganese was equivalent to and could be substituted for magnesium in the composition of the patented flux and their observations were confirmed by the literature of chemistry. Without some explanation or indication that Lincolnweld was developed by independent research, the trial court could properly infer that the accused flux is the result of imitation rather than experimentation or invention. Though infringement was not literal, the changes which avoid literal infringement are colorable only. We conclude that the trial court's judgment of infringement respecting the four flux claims was proper, and we adhere to our prior decision on this aspect of the case. 14 Affirmed. 15 Mr. Justice MINTON took no part in the consideration or decision of this case. 16 Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting. 17 I heartily agree with the Court that 'fraud' is bad, 'piracy' is evil, and 'stealing' is reprehensible. But in this case, where petitioners are not charged with any such malevolence, these lofty principles do not justify the Court's sterilization of Acts of Congress and prior decisions, none of which are even mentioned in today's opinion. 18 The only patent claims involved here describe respondent's product as a flux 'containing a major proportion of alkaline earth metal silicate.' The trial court found that petitioners used a flux 'composed principally of manganese silicate.' Finding also that 'manganese is not an alkaline earth metal,' the trial court admitted that petitioners' flux did not 'literally infringe' respondent's patent. Nevertheless it invoked the judicial 'doctrine of equivalents' to broaden the claim for 'alkaline earth metals' so as to embrace 'manganese.' On the ground that 'the fact that manganese is a proper substitute * * * is fully disclosed in the specification' of respondent's patent, it concluded that 'no determination need be made whether it is a known chemical fact outside the teachings of the patent that manganese is an equivalent * * *.' Since today's affirmance unquestioningly follows the findings of the trial court, this Court necessarily relies on what the specifications revealed.1 In so doing, it violates a direct mandate of Congress without even discussing that mandate. 19 R.S. § 4888, as amended, 35 U.S.C. § 33, 35 U.S.C.A. § 33, provides that an applicant 'shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.' We have held in this very case that this statute precludes invoking the specifications to alter a claim free from ambiguous language, since 'it is the claim which measures the grant to the patentee.'2 Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 277, 69 S.Ct. 535, 538, 93 L.Ed. 672. What is not specifically claimed is dedicated to the public. See, e.g., Miller v. Brass Co., 104 U.S. 350, 352, 26 L.Ed. 783. For the function of claims under R.S. § 4888, as we have frequently reiterated, is to exclude from the patent monopoly field all that is not specifically claimed, whatever may appear in the specifications. See, e.g., Marconi Wireless Co. v. United States, 320 U.S. 1, 23, 63 S.Ct. 1393, 1403, 87 L.Ed. 1731, and cases there cited. Today the Court tacitly rejects those cases. It departs from the underlying principle which, as the Court pointed out in White v. Dunbar, 119 U.S. 47, 51, 7 S.Ct. 72, 74, 30 L.Ed. 303, forbids treating a patent claim 'like a nose of wax, which may be turned and twisted in any direction, by merely referring to the specification, so as to make it include something more than, or something different from, what its words express. * * * The claim is a statutory requirement, prescribed for the very purpose of making the patentee define precisely what his invention is; and it is unjust to the public, as well as an evasion of the law, to construe it in a manner different from the plain import of its terms.' Giving this patentee the benefit of a grant that it did not precisely claim is no less 'unjust to the public' and no less an evasion of R.S. § 4888 merely because done in the name of the 'doctrine of equivalents.' 20 In seeking to justify its emasculation of R.S. § 4888 by parading potential hardships which literal enforcement might conceivably impose on patentees who had for some reason failed to claim complete protection for their discoveries, the Court fails even to mention the program for alleviation of such hardships which Congress itself has provided. 35 U.S.C. § 64, 35 U.S.C.A. § 64, authorizes reissue of patents where a patent is 'wholly or partly inoperative' due to certain errors arising from 'inadvertence, accident, or mistake' of the patentee. And while the section does not expressly permit a patentee to expand his claim, this Court has reluctantly interpreted it to justify doing so. Miller v. Brass Co., 104 U.S. 350, 353—354, 26 L.Ed. 783. That interpretation, however, was accompanied by a warning that 'Reissues for the enlargement of claims should be the exception and not the rule.' 104 U.S. at page 355, 26 L.Ed. 783. And Congress was careful to hedge the privilege of reissue by exacting conditions It also entrusted the Patent Office, not the courts, with initial authority to determine whether expansion of a claim was justified,3 and barred suits for retroactive infringement based on such expansion. Like the Court's opinion, this congressional plan adequately protects patentees from 'fraud,' 'piracy,' and 'stealing.' Unlike the Court's opinion, it also protects business men from retroactive infringement suits and judicial expansion of a monopoly sphere beyond that which a patent expressly authorizes. The plan is just, fair, and reasonable. In effect it is nullified by this decision undercutting what the Court has heretofore recognized as wise safeguards. See Milcor Steel Co. v. Fuller Co., 316 U.S. 143, 148, 62 S.Ct. 969, 972, 86 L.Ed. 1332. One need not be a prophet to suggest that today's rhapsody on the virtue of the 'doctrine of equivalents' will, in direct contravention of the Miller case supra, make enlargement of patent claims the 'rule' rather than the 'exception.' 21 Whatever the merits of the 'doctrine of equivalents' where differences between the claims of a patent and the allegedly infringing product are de minimis, colorable only, and without substance, that doctrine should have no application to the facts of this case. For the differences between respondent's welding substance and petitioner's claimed flux were not nearly so slight. The claims relied upon here did not involve any mechanical structure or process where invention lay in the construction or method rather than in the materials used. Rather they were based wholly on using particular materials for a particular purpose. Respondent's assignors experimented with several metallic silicates, including that of manganese. According to the specifications (if these are to be considered) they concluded that while several were 'more or less efficacious in our process, we prefer to use silicates of the alkaline earth metals.' Several of their claims which this Court found too broad to be valid encompassed manganese silicate; the only claims found valid did not. Yet today the Court disregards that crucial deficiency, holding those claims infringed by a composition of which 88.49% by weight is manganese silicate. 22 In view of the intense study and experimentation of respondent's assignors with manganese silicate, it would be frivolous to contend that failure specifically to include that substance in a precise claim was unintentional. Nor does respondent attempt to give that or any other explanation for its omission. But the similar use of manganese in prior expired patents, referred to in the Court's opinion, raises far more than a suspicion that its elimination from the valid claims stemmed from fear that its inclusion by name might result in denial or subsequent invalidation of respondent's patent. 23 Under these circumstances I think petitioner had a right to act on the belief that this Court would follow the plain mandates of Congress that a patent's precise claims mark its monopoly boundaries, and that expansion of those claims to include manganese could be obtained only in a statutory reissue proceeding. The Court's ruling today sets the stage for more patent 'fraud' and 'piracy' against business than could be expected from faithful observance of the congressionally enacted plan to protect business against judicial expansion of precise patent claims. Hereafter a manufacturer cannot rely on what the language of a patent claims. He must be able, at the peril of heavy infringement damages, to forecast how far a court relatively inversed in a particular technological field will expand the claim's language after considering the testimony of technical experts in that field. To burden business enterprise on the assumption that men possess such a prescience bodes ill for the kind of competitive economy that is our professed goal. 24 The way specific problems are approached naturally has much to do with the decisions reached. A host of prior cases, to some of which I have referred, have treated the 17-year monopoly authorized by valid patents as a narrow exception to our competitive enterprise system. For that reason, they have emphasized the importance of leaving business men free to utilize all knowledge not preempted by the precise language of a patent claim. E.g., Sontag Stores Co. v. Nut Co., 310 U.S. 281, 60 S.Ct. 961, 84 L.Ed. 1204, and cases there cited. In the Sontag case Mr. Justice McReynolds, speaking for a unanimous Court, said in part: 'In the case under consideration the patentee might have included in the application for the original patent, claims broad enough to embrace petitioner's accused machine, but did not. This 'gave the public to understand' that whatever was not claimed 'did not come within his patent and might rightfully be made by anyone." 310 U.S. at page 293, 60 S.Ct. at page 966, 967, 84 L.Ed. 1204. 25 The Court's contrary approach today causes it to retreat from this sound principle. The damages retroactively assessed against petitioner for what was authorized until today are but the initial installment on the cost of that retreat. 26 Mr. Justice DOUGLAS, dissenting. 27 The Court applies the doctrine of equivalents in a way which subverts the constitutional and statutory scheme for the grant and use of patents. 28 The claims of the patent are limited to a flux 'containing a major proportion of alkaline earth metal silicate.' Manganese silicate, the flux which is held to infringe, is not an alkaline earth metal silicate. It was disclosed in the application and then excluded from the claims. It therefore became public property. See Mahn v. Harwood, 112 U.S. 354, 361, 5 S.Ct. 174, 178, 6 S.Ct. 451, 28 L.Ed. 665. It was, to be sure, mentioned in the specifications. But the measure of the grant is to be found in the claims, not in the specifications. Milcor Steel Co. v. Fuller Co., 316 U.S. 143, 145, 146, 62 S.Ct. 969, 970, 971, 86 L.Ed. 1332. The specifications can be used to limit but never to expand the claim. See McClain v. Ortmayer, 141 U.S. 419, 424, 12 S.Ct. 76, 77, 35 L.Ed. 800. 29 The Court now allows the doctrine of equivalents to erase those time-honored rules. Moreover, a doctrine which is said to protect against practicing 'a fraud on a patent' is used to extend a patent to a composition which could not be patented. For manganese silicate had been covered by prior patents, now expired. Thus we end with a strange anomaly: a monopoly is obtained on an unpatented and unpatentable article. 1 L. Hand in Royal Typewriter Co. v. Remington Rand, 2 Cir., 168 F.2d 691, 692. 2 Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. provides in part: '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.' 1 For this reason the tidbits of evidence painstakingly selected from the record by this Court have no significance, since the trial court avowedly did not look beyond the specifications themselves. 2 This Court's approval of the trial judge's resort to specifications is ironic as well as unfortunate. In its original opinion this Court rejected respondent's contention that the very language invoked here to support infringement should be applied to validate a claim otherwise too board to be upheld. 336 U.S. 271, 277, 69 S.Ct. 535, 538, 93 L.Ed. 672. 3 'This provision was inserted in the law for the purpose of relieving the courts from the duty of ascertaining the exact invention of the patentee by inference and conjecture, derived from a laborious examination of previous inventions, and a comparison thereof with that claimed by him. This duty is now cast upon the Patent Office. There his claim is, or is supposed to be, examined, scrutinized, limited, and made to conform to what he is entitled to. If the office refuses to allow him all that he asks, he has an appeal. But the courts have no right to enlarge a patent beyond the scope of its claim as allowed by the Patent Office, or the appellate tribunal to which contested applications are referred. When the terms of a claim in a patent are clear and distinct (as they always should be), the patentee, in a suit brought upon the patent, is bound by it. Merrill v. Yeomans, 94 U.S. 568, 24 L.Ed. 235.' Keystone Bridge Co. v. Phoenix Iron Co., 95 U.S. 274, 278, 24 L.Ed. 344.

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339 U.S. 594 70 S.Ct. 870 94 L.Ed. 1088 EWING, Federal Security Administrator, et al.v.MYTINGER & CASSELBERRY, Inc. No. 568. Argued April 19—20, 1950. Decided May 29, 1950. Rehearing Denied Oct. 16, 1950. See 71 S.Ct. 69. Mr. Robert L. Stern, Washington, D.C., for appellants. Mr. Charles S. Rhyne, Washington, D.C., for appellee. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This is an appeal1 from a three-judge District Court specially constituted on appellee's application for an injunction to restrain enforcement of a portion of an Act of Congress for repugnance to the Due Process Clause of the Fifth Amendment.2 2 Section 304(a) of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1044, 21 U.S.C. § 334(a), as amended, 62 Stat. 582, 21 U.S.C.Supp. III § 334(a), 21 U.S.C.A. § 334(a), permits multiple seizures of misbranded articles 'when the Administrator has probable cause to believe from facts found, without hearing, by him or any officer or employee of the Agency that the misbranded article is dangerous to health, or that the labeling of the misbranded article is fraudulent, or would be in a material respect misleading to the injury or damage of the purchaser or consumer.'3 3 Appellee is the exclusive national distributor of Nutrilite Food Supplement, an encapsulated concentrate of alfalfa, water cress, parsley, and synthetic vitamins combined in a package with mineral tablets. There is no claim that the ingredients of the preparation are harmful or dangerous to health. The sole claim is that the labeling was, to use the statutory words, 'misleading to the injury or damage of the purchaser or consumer' and that therefore the preparation was 'misbranded' when introduced into interstate commerce. 4 This was indeed the administrative finding behind eleven seizures resulting in that number of libel suits, between September and December, 1948. The misbranding, it was found, resulted from the booklet which accompanied the preparation.4 Shortly thereafter the present suit was instituted to have the multiple seizure provision of § 304(a) declared unconstitutional and to dismiss all libel cases except the first one instituted. The District Court held that appellants had acted arbitrarily and capriciously in violation of the Fifth Amendment in instituting multiple libel suits without first affording the appellee a hearing on the probable cause issue; that the multiple seizure provision of § 304(a) was unconstitutional under the Due Process Clause of the Fifth Amendment; and that appellants should be permanently enjoined from instituting any action raising a claim that the booklet accompanying the preparation was a misbranding since it was not fraudulent, false, or misleading. D.C., 87 F.Supp. 650. 5 First. The administrative finding of probable cause required by § 304(a) is merely the statutory prerequisite to the bringing of the lawsuit. When the libels are filed the owner has an opportunity to appear as a claimant and to have a full hearing before the court.5 This hearing, we conclude, satisfies the requirements of due process. 6 At times a preliminary decision by an agency is a step in an administrative proceeding. We have repeatedly held that no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before the final administrative order becomes effective. See Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694; Inland Empire Council v. Millis, 325 U.S. 697, 65 S.Ct. 1316, 89 L.Ed. 1877; Opp Cotton Mills v. Administrator of Wage & Hour Division of Dept. of Labor, 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624. 7 But this case does not go as far. Here an administrative agency is merely determining whether a judicial proceeding should be instituted. Moreover, its finding of probable cause, while a necessary prerequisite to multiple seizures, has no effect in and of itself. All proceedings for the enforcement of the Act or to restrain violations of it must be brought by and in the name of the United States. § 307. Whether a suit will be instituted depends on the Attorney General, not on the administrative agency. He may or may not accept the agency's recommendation. If he does, seizures are made and libels are instituted. But the seizures and suits are dependent on the discretion of the Attorney General. 8 It is said that these multiple seizure decisions of the Administrator can cause irreparable damage to a business. And so they can. The impact of the initiation of judicial proceedings is often serious. Take the case of the grant jury. It returns an indictment against a man without a hearing. It does not determine his guilt; it only determines whether there is probable cause to believe he is guilty. But that determination is conclusive on the issue of probable cause. As a result the defendant can be arrested and held for trial. See Beavers v. Henkel, 194 U.S. 73, 85, 24 S.Ct. 605, 607, 48 L.Ed. 882; Ex parte United States, 287 U.S. 241, 250, 53 S.Ct. 129, 131, 77 L.Ed. 283. The impact of an indictment is on the reputation or liberty of a man. The same is true where a prosecutor files an information charging violations of the law. The harm to property and business can also be incalculable by the mere institution of proceedings. Yet it has never been held that the hand of government must be stayed until the courts have an opportunity to determine whether the government is justified in instituting suit in the courts. Discretion of any official may be abused. Yet it is not a requirement of due process that there be judicial inquiry before discretion can be exercised. It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination. Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 596—597, 51 S.Ct. 608, 611, 75 L.Ed. 1289; Bowles v. Willingham, 321 U.S. 503, 520, 64 S.Ct. 641, 650, 88 S.Ct. 892; Yakus v. United States, 321 U.S. 414, 442—443, 64 S.Ct. 660, 675, 676, 88 L.Ed. 834. 9 One of the oldest examples is the summary destruction of property without prior notice or hearing for the protection of public health. There is no constitutional reason why Congress in the interests of consumer protection may not extend that area of control. It may conclude, as it did here, that public damage may result even from harmless articles if they are allowed to be sold as panaceas for man's ills. A requirement for a hearing, as a matter of constitutional right, does not arise merely because the danger of injury may be more apparent or immediate in the one case than in the other. For all we know the most damage may come from misleading or fraudulent labels. That is a decision for Congress, not for us. The decision of Congress was that the administrative determination to make multiple seizures should be made without a hearing. We cannot say that due process requires one at that stage. 10 Second. The District Court had no jurisdiction to review the administrative determination of probable cause. 11 The determination of probable cause in and of itself had no binding legal consequence any more than did the final valuation made by the Interstate Commerce Commission in United States v. Los Angeles & S.L.R. Co., 273 U.S. 299, 47 S.Ct. 413, 71 L.Ed. 651. It took the exercise of discretion on the part of the Attorney General, as we have pointed out above, to bring it into play against appellee's business. Judicial review of such a preliminary step in a judicial proceeding is so unique that we are not willing easily to infer that it exists. 12 Judicial review of this preliminary phase of the administrative procedure does not fit the statutory scheme nor serve the policy of the Act. Congress made numerous administrative determinations under the Act reviewable by the courts.6 But it did not place the finding of probable cause under § 304(a) in that category. This highly selective manner in which Congress has provided for judicial review reinforces the inference that the only review of the issue of probable cause which Congress granted was the one provided in the libel suit. Cf. Switchmen's Union of North American v. National Mediation Board, 320 U.S. 297, 305—306, 64 S.Ct. 95, 99, 88 L.Ed. 61. 13 The purpose of the multiple seizure provision is plain. It is to arrest the distribution of an article that is dangerous, or whose labeling is fraudulent or misleading, pending a determination of the issue of adulteration or misbranding. The public therefore has a stake in the jurisdictional issue before us. If the District Court can step in, stay the institution of seizures, and bring the administrative regulation to a halt until it hears the case, the public will be denied the speedy protection which Congress provided by multiple seizures. It is not enough to say that the vitamin preparation in the present case is not dangerous to health. This preparation may be relatively innocuous. But the statutory scheme treats every 'misbranded article' the same in this respect—whether it is 'dangerous to health,' or its labeling is 'fraudulent,' or materially 'misleading to the injury or damage of the purchaser or consumer.'7 What we do today determines the jurisdiction of the District Court in all the case in that category. If the court in the present case can halt all multiple seizures but one, so can the court in other cases. The means which Congress provided to protect consumers against the injurious consequences of protracted proceedings would then be seriously impaired. Congress weighed the potential injury to the public from misbranded articles against the injury to the purveyor of the article from a temporary interference with its distribution and decided in favor of the speedy, preventive device of multiple seizures. We would impair or destroy the effectiveness of that device if we sanctioned the interference which a grant of jurisdiction to the District Court would entail. Multiple seizures are the means of protection afforded the public. Consolidation of all the libel suits so that one trial may be had8 is the relief afforded the distributors of the articles.9 14 Reversed. 15 Mr. Justice BURTON concurs in the result. 16 Mr. Justice CLARK took no part in the consideration or decision of this case. 17 Mr. Justice FRANKFURTER, dissenting. 18 While I agree with the Court as to the constitutional and statutory issues canvassed in its opinion, I am unable to answer Mr. Justice JACKSON'S dissent, and I must therefore yield to it. 19 Of course Congress may constitutionally vest judicially unreviewable discretion in an executive agency to initiate multiple suits in order to stop trafficking in pernicious drugs or even in those that are harmless, where efficacy is misrepresented. I agree that it has done so in the Federal Food, Drug, and Cosmetic Act of 1938. 52 Stat. 1040, 21 U.S.C. § 301 et seq., 21 U.S.C.A. § 301 et seq. But it does not at all follow that Congress has thereby cut off the right of access to the courts to prove that the enforcing agency has not acted within the broadest bounds of fair discretion, rare as the occasion may be for such an attempt and however improbable its success. 20 Such I understand to be the nature of the proceedings below and such the basis of the District Court's decree. Unless we can say, as I cannot, that the findings in support of it have no support in the evidence, we should not hold that the court below was without jurisdiction to entertain the suit. 21 The limited claim which the District Court sustained falls precisely within the qualification left open by this Court in a leading case sustaining the power of Congress to vest unreviewable discretion in executive agencies. When the Court was urged to deny this power of Congress and 'extreme cases' were put showing 'how reckless and arbitrary might be the action of Executive officers,' the Court made this answer: 22 'It will be time enough to deal with such cases as and when they arise. Suffice it to say that the courts have rarely, if ever, felt themselves so restrained by technical rules that they could not find some remedy, consistent with the law, for acts whether done by government or by individual persons, that violated natural justice or were hostile to the fundamental principles devised for the protection of the essential rights of property.' Monongahela Bridge Co. v. United States, 216 U.S. 177, 195, 30 S.Ct. 356, 361, 54 L.Ed. 435. 23 Mr. Justice Harlan, speaking for the Court, cast its thought in the language current at the time. But the thought behind the words is not outmoded and controls, I believe, the case before us. 24 Mr. Justice JACKSON, dissenting. 25 The Court does not deal at all with what appears to be the ultimate issue decided by the court below. 26 The trial court of three judges wrote no opinion but made forty-three detailed findings of fact which would require twenty of these printed pages to reproduce and which summarize a 1,500-page record of a long trial. Those findings are made largely on undisputed evidence and on evidence from government sources. This Court does not criticize or reverse any of them. 27 The substance of these is to find that the Government instituted a multiplicity of court actions, with seizures in widely separated parts of the country, with a purpose to harass appellee and its dealers and intending that these actions and the attendant publicity would injure appellee's business before any of the issues in such cases could be tried. This, the court held, was justified by no emergency, the product being, at worst, harmless and having been marketed for years with knowledge of the Department. 28 Assuming as I do that the Act on its face is not constitutionally defective, the question remains whether it has been so misused by refusal of administrative hearing, together with such irreparable injury in anticipation of judicial hearing, as to deny appellee due process of law or to amount to an abuse of process of the courts. 29 The Government has sought and received from this Court protection against a multiplicity of suits under circumstances where injury was less apparent than in this. Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153. The holding of the court below and the contention of the appellee here that the Government is not entitled to so apply the statute as to bring multiple actions designed to destroy a business before it can be heard in its own defense is not frivolous, to say the least. 30 I am constrained to withhold assent to a decision that passes in silence what I think presents a serious issue. 1 62 Stat. 928, 961, 28 U.S.C. §§ 1253, 2101, 28 U.S.C.A. §§ 1253, 2101. 2 62 Stat. 968, 28 U.S.C. §§ 2282, 2284, 28 U.S.C.A. §§ 2282, 2284. 3 The provision of which the quoted portion is a part reads as follows: 'Any article of food, drug, device, or cosmetic that is adulterated or misbranded when introduced into or while in interstate commerce or while held for sale (whether or not the first sale) after shipment in interstate commerce, or which may not, under the provisions of section 404 or 505, be introduced into interstate commerce, shall be liable to be proceeded against while in interstate commerce, or at any time thereafter, on libel of information and condemned in any district court of the United States within the jurisdiction of which the article is found: Provided, however, That no libel for condemnation shall be instituted under this Act, for any alleged misbranding if there is pending in any court a libel for condemnation proceeding under this Act based upon the same alleged misbranding, and not more than one such proceeding shall be instituted if no such proceeding is so pending, except that such limitation shall not apply (1) when such misbranding has been the basis of a prior judgment in favor of the United States, in a criminal, injunction, or libel for condemnation proceeding under this Act, or (2) when the Administrator has probable cause to believe from facts found, without hearing, by him or any officer or employee of the Agency that the misbranded article is dangerous to health, or that the labeling of the misbranded article is fraudulent, or would be in a material respect misleading to the injury or damage of the purchaser or consumer.' 4 The Booklet, How to Get Well and Stay Well, is used by salesmen in soliciting prospective customers. A version of the booklet in use in 1947 represented that Nutrilite had 'cured or greatly helped' such 'common ailments' as 'Low blood pressure, Ulcers, Mental depression, Pyorrhea, Muscular twitching, Rickets, Worry over small things, Tonsilitis, Hay Fever, Sensitiveness to noise, Underweight, Easily tired, Gas in Stomach, Cuts heal slowly, Faulty vision, Headache, Constipation, anemia, Boils, Flabby Hysterical tendency, Eczema, Overweight, Faulty memory, Lack of ambition, Certain bone conditions, Nervousness, Nosebleed, Insomnia (sleeplessness), Allergies, Asthma, Restlessness, Bad skin color, Poor appetite, Biliousness, Neuritis, Night blindness, Migraine, High blood pressure, Sinus trouble, Lack of concentration, Dental caries, Irregular heartbeat, Colitis, Craving for sour foods, Arthritis (rheumatism), Neuralgia, Deafness, Subject to colds.' This version is the basis for an indictment now pending in the Southern District of California charging Lee S. Mytinger and William, S. Casselberry with the misbranding of Nutrilite in violation of the Federal Food, Drug, and Cosmetic Act. After a hearing prior to the indictment, appellee revised the booklet. Direct curative claims were eliminated. But pages 41—52 of the revised booklet were devoted to case histories explaining that Nutrilite brought relief from such ailments as diabetes, feeblemindedness, stomach pains, sneezing and weeping. Appellant Crawford, Associate Commissioner of Food and Drugs, concluded that there was probable cause to believe and that he did believe that this version of the booklet was misleading. On September 28 and 30, 1948, he recommended seizures of Nutrilite shipments. Appellee thereafter ordered its salesmen to remove pages 37 58 which contained the case histories. The pages which remained pointed to the dangers and prevalence of illness, described the discovery of Nutrilite, and recommended the booklet to those who wanted to get well and stay well. On December 2, 1948, appellant Larrick, Assistant Commissioner of Foods and Drugs, made a probable cause determination on these pages of the booklet and recommended seizure. Six new pages were thereafter added to the booklet. On December 9, 1948, appellant Dunbar, Commissioner of Foods and Drugs, made a probable cause determination on that version of the booklet and recommended further seizures. 5 § 304(b) provides in part: 'The article shall be liable to seizure by process pursuant to the libel, and the procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty; except that on demand of either party any issue of fact joined in any such case shall be tried by jury.' 6 Review of an order of the Administrator refusing to permit an application for a new drug to become effective or suspending the effectiveness of an application is authorized in § 505(h), 21 U.S.C. § 355(h), 21 U.S.C.A. § 355(h). Orders of the Administrator in connection with issuing, amending, or repealing regulations under §§ 401, 403(j), 404(a), 406(a) and (b), 501(b), 502(d), 502(h), 504, 604 are expressly made reviewable by § 701(e) and (f), 21 U.S.C. § 371(e) and (f), 21 U.S.C.A. § 371(e, f). 7 See § 304(a) note 3, supra. 8 Sec. 304(b) provides in part: 'When libel for condemnation proceedings under this section, involving the same claimant and the same issues of adulteration or misbranding, such pending in two or more jurisdictions, such pending proceedings, upon application of the claimant seasonably made to the court of one such jurisdiction, shall be consolidated for trial by order of such courts, and tried in (1) any district selected by the claimant where one of such proceedings is pending; or (2) a district agreed upon by stipulation between the parties. If no order for consolidation is so made within a reasonable time, the claimant may apply to the court of one such jurisdiction, and such court (after giving the United States attorney for such district reasonable notice and opportunity to be heard) shall by order, unless good cause to the contrary is shown, specify a district of reasonable proximity to the claimant's principal place of business, in which all such pending proceedings shall be consolidated for trial and tried. Such order of consolidation shall not apply so as to require the removal of any case the date for trial of which has been fixed. The court granting such order shall give prompt notification thereof to the other courts having jurisdiction of the cases covered thereby.' 9 Congress has granted distributors through the provision for consolidation of all libel suits the measure of relief which courts at times grant through a stay of multiple actions. See Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153.

34

339 U.S. 660 70 S.Ct. 910 94 L.Ed. 1188 QUICKSALLv.PEOPLE OF STATE OF MICHIGAN. No. 33. Argued Feb. 6, 1950. Decided June 5, 1950. Motion for Leave to File Petition for Rehearing Denied Oct. 9, 1950. See 71 S.Ct. 13. Mr. Isadore Levin, Detroit, Mich., for petitioner. Mr. Edmund E. Shepherd, Lansing, Mich., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Petitioner is in custody of the State of Michigan under a sentence of life imprisonment for first-degree murder, confirmed upon collateral attack by a judgment of the Supreme Court of Michigan, here challenged. He claims that he was deprived of his right to counsel to the extent that the Due Process Clause of the Fourteenth Amendment secures that right. The generalizations that are relevant to such a claim no longer call for elaboration. They have been set forth in a series of recent opinions.1 It is now settled that as to its administration of criminal justice, a State's duty to provide counsel, so far as the United States Constitution imposes it, is but one aspect of the comprehending guaranty of the Due Process Clause of a fair hearing on an accusation, including adequate opportunity to meet it. And so we turn to the facts of this case. 2 By information filed in the Circuit Court for Kalamazoo County, Michigan, on July 16, 1937, Charles Quicksall, the petitioner, was charged with the murder of one Grace Parker. She was a married woman, and Quicksall was her paramour. Petitioner had been a hospital patient, under police guard, between the time of Mrs. Parker's death on July 2 and July 15, when he was taken before the Municipal Justice Court where, after waiving examination, he was bound over for trial. On arraignment the next day before the Kalamazoo Circuit Court he pleaded guilty to the charge of murder. There is no evidence that at the time of his plea petitioner requested counsel or that appointed counsel was offered him. The circumstances attending the plea were thus formally stated by the judge who received it: 3 'The record may show that this respondent (petitioner) has just offered to plead guilty and has pleaded guilty to a charge of murder; that after a full statement by the respondent in response to numerous questions by the Court in open Court and after a private interview with respondent at chambers, in both of which he has freely and frankly discussed the details of this homicide as claimed by him, the Court being clearly satisfied that the plea of guilty is made freely, understandingly and voluntarily, an order has been entered accepting such plea of guilty.'2 4 As required by the local law, the court then proceeded to inquire into the degree of crime. Mich.Stat.Ann. § 28.550 (Henderson 1938), Comp.Laws 1948, § 750.318. The course of this inquiry is shown by a summary of what developed. Quicksall, who was forty-four years old at the time, had been married and divorced twice. He had served penitentiary terms in Ohio and Michigan. He had lived with the Parkers in Ohio and in Kalamazoo, and he had become 'intimate' with Mrs. Parker. She and Quicksall had made an agreement that if that 'ever got caught' in their 'unlawful intimate relationship' they 'would die together.' About a week before Mrs. Parker's death on July 2, petitioner was asked by her husband to leave his house, but on that day, at Mrs. Parker's request, he returned to see her. She told him that her husband had threatened to leave and divorce her, and she asked Quicksall to keep their agreement to die together. Thereupon she produced a revolver, and petitioner shot her and then himself. Neighbors who reached the Parker house shortly thereafter saw Mrs. Parker, very near death, lying on a bed, with a revolver near her. On being asked who shot her, she replied, 'Charley did.' Petitioner was lying on the floor, unconscious, next to the bed. A deputy sheriff who searched the premises found a note on the dresser in the bedroom reading: 'July 2, 1937. I am dying, Grace and I together, because we cannot live apart. Charles Quicksall.' 5 At the conclusion of these proceedings the court stated: 6 'In this case, the respondent (petitioner) having been arraigned on the information charging him with murder, and having pleaded guilty thereto and said plea of guilty having been accepted by the Court, after an exhaustive interview with the respondent both in open Court and at chambers, and the Court having proceeded with an examination of witnesses to determine the degree of the crime, after hearing the testimony of the witnesses Horace Cobb, Jesse Pierce, Cora Ketter and Charles Conner, and the testimony of the respondent, himself, unsworn, regarding the circumstances of this crime, and it appearing from the testimony of such witnesses and from the statement of the respondent that the killing was deliberate and premeditated, and under the testimony of the respondent himself that it was in pursuance of a suicide pact, so-called, the Court finds and determines that respondent is guilty of murder in the first degree, and it is, therefore, ordered and adjudged that respondent be and he is guilty of murder in the first degree.' 7 Michigan, as is well known, having long ago abolished capital punishment, Quicksall was sentenced to solitary confinement at hard labor for life. Mich.Stat.Ann. § 28.548 (Henderson 1938), Comp.Laws 1948, § 750.316. 8 Almost ten years after his sentence, on April 18, 1947, the petitioner asked the Circuit Court for Kalamazoo County to vacate it and to grant him a new trial. He claimed the sentence had a constitutional infirmity in that he did not have the assistance of counsel and was prevented from communicating with counsel of his choice while he was hospitalized. He also claimed that his plea of guilty had been induced by misrepresentations on the part of the prosecuting attorney and the sheriff who, he asserted, had told him that the charge against him was manslaughter for which his sentence would be from two to fifteen years. 9 The motion to vacate the sentence was heard before the same judge who had received his plea of guilty and sentenced him. Petitioner was asked whether he desired to have a lawyer in this proceeding, and he replied that he did not: 'Well, your Honor, it took me a long time to prepare the motion, and I figure that I would be just as well qualified to present it myself.' In answering questions propounded by the judge, petitioner admitted that he knew he had been bound over on a murder charge. He also recalled that after the judge had informed him that his guilt had been determined to be of murder in the first degree he was given full opportunity to say what he had to say before sentence was imposed, but had nothing to say. Cf. Canizio v. New York, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545. However, he professed not to be able to recall details of the proceedings because of illness at the time. A deputy sheriff who had guarded petitioner during his hospitalization after the shooting testified that on the following day petitioner had said to him: 'How long will I have to lay here? I wish to Christ it had taken effect on me like it did on her. If I get over this it will mean life for me anyway.' Notes made contemporaneously supported this testimony. The prosecuting attorney at the time of sentencing was by reason of paralysis unavailable as a witness. The sheriff testified that neither he nor the prosecuting attorney, so far as he had knowledge, had refused petitioner permission to communicate with his family, friends, or a lawyer. Petitioner cross-examined the sheriff, but declined to question the deputy sheriff. 10 The trial judge took no stock in the reconstructing memory of the petitioner and denied his motion. The Supreme Court of Michigan affirmed. 322 Mich. 351, 33 N.W.2d 904. We brought the case here out of a zealous regard for due observance of the safeguards of the Fourteenth Amendment in the enforcement of a State's penal code. 336 U.S. 916, 69 S.Ct. 635, 93 L.Ed. 1079. The record exacts the holding that the petitioner has failed to sustain the burden of proving such a disregard of fundamental fairness in the imposition of punishment by the State as alone would justify this Court to invalidate the sentence by reason of the Due Process Clause. 11 Petitioner makes no claim that he did not know of his right to be assisted by counsel, see Mich.Stat.Ann. § 28.854 (Henderson 1938), Comp.Laws 1948, § 763.1, and in view of his 'intelligence, his age, and his earlier experiences in court,' the Supreme Court of Michigan rejected the notion that he was not aware of his right to be represented by an attorney. 322 Mich. 351 at page 355, 33 N.W.2d 904 at page 906. Cf. Gryger v. Burke, 334 U.S. 728, 730, 68 S.Ct. 1256, 1257, 92 L.Ed. 1683. Since the Michigan courts disbelieved petitioner's allegations that he had not been allowed to communicate with his family, his friends or a lawyer, and no request was made by him for legal aid, the only question is whether, in the circumstances of this case, the failure of the record to show that he was offered counsel offends the Due Process Clause. 12 At least 'when a crime subject to capital punishment is not involved, each case depends on its own facts.' Uveges v. Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 186; Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595. To invalidate a plea of guilty the prisoner must establish that 'for want of benefit of counsel an ingredient of unfairness actively operated in the process that resulted in his confinement.' Foster v. Illinois, 332 U.S. 134, 137, 67 S.Ct. 1716, 1718, 91 L.Ed. 1955; see Gibbs v. Burke, 337 U.S. 773, 781, 69 S.Ct. 1247, 1251, 93 L.Ed. 1686. Here petitioner's claim that the consequences of his plea of guilty had been misrepresented was disbelieved by the tribunal especially qualified to sit in judgment upon its credibility. See Wade v. Mayo, 334 U.S. 672, 683, 684, 68 S.Ct. 1270, 1275—1276, 92 L.Ed. 1647. In the light of what emerged in this proceeding upon a scrutiny of what took place before the same judge ten years earlier, when petitioner's plea of guilty was tendered and accepted, it would stultify the Due Process Clause to find that any right of the petitioner was infringed by the sentence which he incurred.3 Foster v. Illinois, supra, 332 U.S. at page 138, 67 S.Ct. at page 1718; Bute v. Illinois, 333 U.S. 640, 670—674, 68 S.Ct. 763, 778—780, 92 L.Ed. 986. 13 Affirmed. Mr. Justice BLACK dissents 14 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Canizio v. New York, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545; Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172; De Meerleer v. Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584; Foster v. Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955; Gayes v. 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. 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. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247. 2 Mich.Stat.Ann. § 28.1058 (Henderson 1938), Comp.Laws 1948, § 768.35, provides: 'Whenever any person shall plead guilty to an information filed against him in any court, it shall be the duty of the judge of such court, before pronouncing judgment or sentence upon such plea, to become satisfied after such investigation as he may deem necessary for that purpose respecting the nature of the case, and the circumstances of such plea, that said plea was made freely, with full knowledge of the nature of the accusation, and without undue influence. And whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered and order a trial of the issue thus formed.' 3 Assertions now made concerning irregularities in the hearing on the degree of the crime were not urged before the Michigan courts. They cannot be considered here for the first time, even as to their supposed bearing on the right to counsel.

01

339 U.S. 707 70 S.Ct. 918 94 L.Ed. 1221 UNITED STATESv.STATE OF TEXAS. No. 13, Original. Argued on Motion for Judgment March 28, 1950. Decided June 5, 1950. As Amended on Denial of Rehearing Oct. 16, 1950. Sol. Gen. Philip B. Perlman, Washington, D.C., for plaintiff. Messrs. Price Daniel, J. Chrys Dougherty, Austin, Tex., for defendant. [Argument of Counsel from page 708 intentionally omitted] Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This suit, like its companion United States v. State of Louisiana, 339 U.S. 699, 70 S.Ct. 914, invokes our original jurisdiction under Art. III, § 2, Cl. 2 of the Constitution and puts into issue the conflicting claims of the parties to oil and other products under the bed of the ocean below low-water mark off the shores of Texas. 2 The complaint alleges that the United States was and is 'the owner in fee simple of, or possessed of paramount rights in, and full dominion and power over, the lands, minerals and other things underlying the Gulf of Mexico, lying seaward of the ordinary low-water mark on the coast of Texas and outside of the inland waters, extending seaward to the outer edge of the continental shelf and bounded on the east and southwest, respectively, by the eastern boundary of the State of Texas and the boundary between the United States and Mexico.' 3 The complaint is in other material respects identical with that filed against Louisiana. The prayer is for a decree adjudging and declaring the rights of the United States as against Texas in the above-described area, enjoining Texas and all persons claiming under it from continuing to trespass upon the area in violation of the rights of the United States, and requiring Texas to account to the United States for all money derived by it from the area subsequent to June 23, 1947. 4 Texas opposed the motion for leave to file the complaint on the grounds that the Attorney General was not authorized to bring the suit and that the suit, if brought, should be instituted in a District Court. And Texas, like Louisiana, moved to dismiss on the ground that since Texas had not consented to be sued, the Court had no original jurisdiction of the suit. After argument we granted the motion for leave to file the complaint. 337 U.S. 902, 69 S.Ct. 1040, 93 L.Ed. 1716. Texas then moved to dismiss the complaint on the ground that the suit did not come within the original jurisdiction of the Court. She also moved for a more definite statement or for a bill of particulars and for an extension of time to answer. The United States then moved for judgment. These various motions were denied and Texas was granted thirty days to file an answer. 338 U.S. 806, 70 S.Ct. 36. 5 Texas in her answer, as later amended, renews her objection that this case is not one of which the Court has original jurisdiction; denies that the United States is or ever has been the owner of the lands, minerals, etc., underlying the Gulf of Mexico within the disputed area; denies that the United States is or ever has been possessed of paramount rights in or full dominion over the lands, minerals, etc., underlying the Gulf of Mexico within said area except the paramount power to control, improve, and regulate navigation which under the Commerce Clause the United States has over lands beneath all navigable waters and except the same dominion and paramount power which the United States has over uplands within the United States, whether privately or state owned; denies that these or any other paramount powers or rights of the United States include ownership or the right to take or develop or authorize the taking or developing of oil or other minerals in the area in dispute without compensation to Texas; denies that any paramount powers or rights of the United States include the right to control or to prevent the taking or developing of these minerals by Texas or her lessees except when necessary in the exercise of the paramount federal powers, as recognized by Texas, and when duly authorized by appropriate action of the Congress; admits that she claims rights, title, and interests in said lands, minerals, etc., and says that her rights include ownership and the right to take, use, lease, and develop these properties; admits that she has leased some of the lands in the area and received royalties from the lessees but denies that the United States is entitled to any of them; and denies that she has no title to or interest in any of the lands in the disputed area. 6 As an affirmative defense Texas asserts that as an independent nation, the Republic of Texas had open, adverse, and exclusive possession and exercised jurisdiction and control over the land, minerals, etc., underlying that part of the Gulf of Mexico within her boundaries established at three marine leagues from shore by her First Congress and acquiesced in by the United States and other major nations; that when Texas was annexed to the United States the claim and rights of Texas to this land, minerals, etc., were recognized and preserved in Texas; that Texas continued as a State, to hold open, adverse and exclusive possession, jurisdiction and control of these lands, minerals, etc., without dispute, challenge or objection by the United States; that the United States has recognized and acquiesced in this claim and these rights; that Texas under the doctrine of prescription has established such title, ownership and sovereign rights in the area as preclude the granting of the relief prayed. 7 As a second affirmative defense Texas alleges that there was an agreement between the United States and the Republic of Texas that upon annexation Texas would not cede to the United States but would retain all of the lands, minerals, etc., underlying that part of the Gulf of Mexico within the original boundaries of the Republic. 8 As a third affirmative defense Texas asserts that the United States acknowledged and confirmed the three-league boundary of Texas in the Gulf of Mexico as declared, established, and maintained by the Republic of Texas and as retained by Texas under the annexation agreement. 9 Texas then moved for an order to take depositions of specified aged persons respecting the existence and extent of knowledge and use of subsoil minerals within the disputed area prior to and since the annexation of Texas, and the uses to which Texas has devoted parts of the area as bearing on her alleged prescriptive rights. Texas also moved for the appointment of a special master to take evidence and report to the Court. 10 The United States opposed these motions and in turn moved for judgment asserting that the defenses tendered by Texas were insufficient in law and that no issue of fact had been raised which could not be resolved by judicial notice. We set the case down for argument on that motion. 11 We are told that the considerations which give the Federal Government paramount rights in, and full dominion and power over, the marginal sea off the shores of California and Louisiana (see United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889; United States v. State of Louisiana, supra) should be equally controlling when we come to the marginal sea off the shores of Texas. It is argued that the national interests, national responsibilities, and national concerns which are the basis of the paramount rights of the National Government in one case would seem to be equally applicable in the other. 12 But there is a difference in this case which, Texas says, requires a different result. That difference is largely in the preadmission history of Texas. 13 The sum of the argument is that prior to annexation Texas had both dominium (ownership or proprietary rights) and imperium (governmental powers of regulation and control) as respects the lands, minerals and other products underlying the marginal sea. In the case of California we found that she, like the original thirteen colonies, never had dominium over that area. The first claim to the marginal sea was asserted by the National Government. We held that protection and control of it were indeed a function of national external sovereignty. 332 U.S. 31—34, 67 S.Ct. 1664—1666. The status of Texas, it is said, is different: Texas, when she came into the Union, retained the dominium over the marginal sea which she had previously acquired and transferred to the National Government only her powers of sovereignty—her imperium—over the marginal sea. 14 This argument leads into several chapters of Texas history. 15 The Republic of Texas was proclaimed by a convention on March 2, 1836.1 The United States2 and other nations3 formally recognized it. The Congress of Texas on December 19, 1836, passed an act defining the boundaries of the Republic.4 The southern boundary was described as follows: 'beginning at the mouth of the Sabine river, and running west along the Gulf of Mexico three leagues from land, to the mouth of the Rio Grande.'5 Texas was admitted to the Union in 1845 'on an equal footing with the original States in all respects whatever.'6 Texas claims that during the period from 1836 to 1845 she had brought this marginal belt into her territory and subjected it to her domestic law which recognized ownership in minerals under coastal waters. This the United States contests. Texas also claims that under international law, as it had evolved by the 1840's, the Republic of Texas as a sovereign nation became the owner of the bed and sub-soil of the marginal sea vis-a -vis other nations. Texas claims that the Republic of Texas acquired during that period the same interest in its marginal sea as the United States acquired in the marginal sea off California when it purchased from Mexico in 1848 the territory from which California was later formed. This the United States contests. 16 The Joint Resolution annexing Texas7 provided in part: 'Said State, when admitted into the Union, after ceding to the United States, all public edifices, fortifications, barracks, ports and harbors, navy and navy-yards, docks, magazines, arms, armaments, and all other property and means pertaining to the public defence belonging to said Republic of Texas, shall retain all the public funds, debts, texes, and dues of every kind, which may belong to or be due and owing said republic; and shall also retain all the vacant and unappropriated lands lying within its limits, to be applied to the payment of the debts and liabilities of said Republic of Texas, and the residue of said lands, after discharging said debts and liabilities, to be disposed of as said State may direct; but in no event are said debts and liabilities to become a charge upon the Government of the United States.' (Italics added.) 17 The United States contends that the inclusion of fortifications, barracks, ports and harbors, navy and navy-yards, and docks in the cession clause of the Resolution demonstrates an intent to convey all interests of the Republic in the marginal sea, since most of these properties lie side by side, with, and shade into, the marginal sea. It stresses the phrase in the Resolution 'other property and means pertaining to the public defence.' It argues that possession by the United States in the lands underlying the marginal sea is a defense necessity. Texas maintains that the construction of the Resolution both by the United States and Texas has been restricted to properties which the Republic actually used at the time in the public defense. 18 The United States contends that the 'vacant and unappropriated lands' which by the Resolution were retained by Texas do not include the marginal belt. It argues that the purpose of the clause, the circumstances of its inclusion, and the meaning of the words in Texas and federal usage given them a more restricted meaning. Texas replies that since the United States refused to assume the liabilities of the Republic, it was to have no claim to the assets of the Republic except the defense properties expressly ceded. 19 In the California case, neither party suggested the necessity for the introduction of evidence. 332 U.S. 24, 67 S.Ct. 1661, 91 L.Ed. 1889. But Texas makes an earnest plea to be heard on the facts as they bear on the circumstances of her history which, she says, sets her apart from the other States on this issue. 20 The Court in original actions, passing as it does on controversies between sovereigns which involve issues of high public importance, has always been liberal in allowing full development of the facts. United States v. State of Texas, 162 U.S. 1, 16 S.Ct. 725, 40 L.Ed. 867; State of Kansas v. State of Colorado, 185 U.S. 125, 144, 145, 147, 22 S.Ct. 552, 558, 559, 560, 46 L.Ed. 838; State of Oklahoma v. State of Texas, 253 U.S. 465, 471, 40 S.Ct. 580, 582, 64 L.Ed. 1015. If there were a dispute as to the meaning of documents and the answer was to be found in diplomatic correspondence, contemporary construction, usage, international law and the like, introduction of evidence and a full hearing would be essential. 21 We conclude, however, that no such hearing is required in this case. We are of the view that the 'equal footing' clause of the Joint Resolution admitting Texas to the Union disposes of the present phase of the controversy. 22 The 'equal footing' clause has long been held to refer to political rights and to sovereignty. See Stearns v. State, of Minnesota, 179 U.S. 223, 245, 21 S.Ct. 73, 81, 45 L.Ed. 162. It does not, of course, include economic stature or standing. There has never been equality among the States in that sense. Some States when they entered the Union had within their boundaries tracts of land belonging to the Federal Government; others were sovereigns of their soil. Some had special agreements with the Federal Government governing property within their borders. See Stearns v. State of Minnesota, supra, 179 U.S. pages 243—245, 21 S.Ct. pages 80—81. Area, location, geology, and latitude have created great diversity in the economic aspects of the several States. The requirement of equal footing was designed not to wipe out those diversities but to create parity as respects political standing and sovereignty. 23 Yet the 'equal footing' clause has long been held to have a direct effect on certain property rights. Thus the question early arose in controversies between the Federal Government and the States as to the ownership of the shores of navigable waters and the soils under them. It was consistently held that to deny to the States, admitted subsequent to the formation of the Union, ownership of this property would deny them admission on an equal footing with the original States, since the original States did not grant these properties to the United States but reserved them to themselves. See Pollard's Lessee v. Hagan, 3 How. 212, 228—229, 11 L.Ed. 565; Mumford v. Wardwell, 6 Wall. 423, 436, 18 L.Ed. 756; Weber v. Board of Harbor Com'rs, 18 Wall. 57, 65—66, 21 L.Ed. 798; Knight v. United Land Ass'n, 142 U.S. 161, 183, 12 S.Ct. 258, 264, 35 L.Ed. 974; Shively v. Bowlby, 152 U.S. 1, 26, 14 S.Ct. 548, 557, 38 L.Ed. 331; United States v. Mission Rock Co., 189 U.S. 391, 404, 23 S.Ct. 606, 608, 47 L.Ed. 865. The theory of these decisions was aptly summarized by Mr. Justice Stone speaking for the Court in United States v. State of Oregon, 295 U.S. 1, 14, 55 S.Ct. 610, 615, 79 L.Ed. 1267 as follows:8 'Dominion over navigable waters and property in the soil under them are so identified with the sovereign power of government that a presumption against their separation from sovereignty must be indulged, in construing either grants by the sovereign of the lands to be held in private ownership or transfer of sovereignty itself. See Commonwealth of Massachusetts v. State of New York, 271 U.S. 65, 89, 46 S.Ct. 357, 361, 70 L.Ed. 838. For that reason, upon the admission of a state to the Union, the title of the United States to lands underlying navigable waters within the state passes to it, as incident to the transfer to the state of local sovereignty, and is subject only to the paramount power of the United States to control such waters for purposes of navigation in interstate and foreign commerce.' 24 The 'equal footing' clause, we hold, works the same way in the converse situation presented by this case. It negatives any implied, special limitation of any of the paramount powers of the United States in favor of a State. Texas prior to her admission was a Republic. We assume that as a Republic she had not only full sovereignty over the marginal sea but ownership of it, of the land underlying it, and of all the riches which it held. In other words, we assume that it then had the dominium and imperium in and over this belt which the United States now claims. When Texas came into the Union, she ceased to be an independent nation. She then became a sister State on an 'equal footing' with all the other States. That act concededly entailed a relinquishment of some of her sovereignty. The United States then took her place as respects foreign commerce, the waging of war, the making of treaties, defense of the shores, and the like. In external affairs the United States became the sole and exclusive spokesman for the Nation. We hold that as an incident to the transfer of that sovereignty and claim that Texas may have had to the marginal sea was relinquished to the United States. 25 We stated the reasons for this in United States v. State of California, supra, 332 U.S. page 35, 67 S.Ct. pages 1658, 1666, 91 L.Ed. 1889, as follows: 'The three-mile rule is but a recognition of the necessity that a government next to the sea must be able to protect itself from dangers incident to its location. It must have powers of dominion and regulation in the interest of its revenues, its health, and the security of its people from wars waged on or too near its coasts. And in so far as the nation asserts its rights under international law, whatever of value may be discovered in the seas next to its shores and within its protective belt, will most naturally be appropriated for its use. But whatever any nation does in the open sea, which detracts from its common usefulness to nations, or which another nation may charge detracts from it, is a question for consideration among nations as such, and not their separate governmental units. What this Government does, or even what the states do, anywhere in the ocean, is a subject upon which the nation may enter into and assume treaty or similar international obligations. See United States v. Belmont, 301 U.S. 324, 331—332, 57 S.Ct. 758, 761, 762, 81 L.Ed. 1134. The very oil about which the state and nation here contend might well become the subject of international dispute and settlement.' And so although dominium and imperium are normally separable and separate,9 this is an instance where property interests are so subordinated to the rights of sovereignty as to follow sovereignty. 26 It is said that there is no necessity for it—that the sovereignty of the sea can be complete and unimpaired no matter if Texas owns the oil underlying it. Yet as pointed out in United States v. State of California, once low-water mark is passed the international domain is reached. Property rights must then be so subordinated to political rights as in substance to coalesce and unite in the national sovereign. Today the controversy is over oil. Tomorrow it may be over some other substance or mineral or perhaps the bed of the ocean itself. If the property, whatever it may be, lies seaward of low-water mark, its use, disposition, management, and control involve national interests and national responsibilities. That is the source of national rights in it. such is the rationale of the California decision, which we have applied to Louisiana's case. The same result must be reached here if 'equal footing' with the various States is to be achieved. Unless any claim or title which the Republic of Texas had to the marginal sea is subordinated to this full paramount power of the United States on admission, there is or may be in practical effect a subtraction in favor of Texas from the national sovereignty of the United States. Yet neither the original thirteen States (United States v. State of California, supra, 332 U.S. pages 31 32, 67 S.Ct. pages 1664-1665, 91 L.Ed. 1889) nor California nor Louisiana enjoys such an advantage. The 'equal footing' clause prevents extension of the sovereignty of a State into a domain of political and sovereign power of the United States from which the other States have been excluded, just as it prevents a contraction of sovereignty (Pollard's Lessee v. Hagan, supra) which would produce inequality among the States. For equality of States means that they are not 'less or greater, or different in dignity or power.' See Coyle v. Smith, 221 U.S. 559, 566, 31 S.Ct. 688, 690, 55 L.Ed. 853. There is no need to take evidence to establish that meaning of 'equal footing.' 27 Texas in 1941 sought to extend its boundary to a line in the Gulf of Mexico twenty-four marine miles beyond the three-mile limit and asserted ownership of the bed within that area.10 And in 1947 she put the extended boundary to the outer edge of the continental shelf.11 The irrelevancy of these acts to the issue before us has been adequately demonstrated in United States v. State of Louisiana. The other contentions of Texas need not be detailed. They have been foreclosed by United States v. State of California and United States v. State of Louisiana. 28 The motions of Texas for an order to take depositions and for the appointment of a Special Master are denied. The motion of the United States for judgment is granted. The parties, or either of them, may before September 15, 1950, submit the form of decree to carry this opinion into effect. So ordered. 29 Judgment for plaintiff. 30 Mr. Justice JACKSON and Mr. Justice CLARK took no part in the consideration or decision of this case. 31 Mr. Justice REED, with whom Mr. Justice MINTON joins, dissenting. 32 This case brings before us the application of United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889, to Texas. Insofar as Louisiana is concerned, I see no difference between its situation and that passed upon in the California case. Texas, however, presents a variation which requires a different result. 33 The California case determines, 332 U.S. page 36, 67 S.Ct. page 1667, that since 'paramount rights run to the states in inland waters to the shoreward of the low water mark, the same rationale leads to the conclusion that national interests responsibilities, and therefore national rights are paramount in waters lying to the seaward in the three-mile belt.' Thus the Court held, 332 U.S. page 39, 67 S.Ct. page 1668, that the Federal Government has power over that belt, an incident of which is 'full dominion over the resources of the soil under that water area, including oil.' But that decision was based on the premise, 332 U.S. pages 32—34, 67 S.Ct. pages 1665—1666, that the three-mile belt had never belonged to California. The California case points out that it was the United States which had acquired this seacoast area for the Nation. Sovereignty over that area passed from Mexico to this country. The Court commented that similar belts along their shores were not owned by the original seacoast states. Since something akin to ownership of the similar area along the coasts of the original states was thought by the Court to have been obtained through an assertion of full dominion by the United States to this hitherto unclaimed portion of the earth's surface, it was decided that a similar right in the California are was obtained by the United States. The contrary is true in the case of Texas. The Court concedes that prior to the Resolution of Annexation, the United States recognized Texas ownership of the three-league area claimed by Texas.1 34 The Court holds immaterial the fact of Texas' original ownership of this marginal sea area, because Texas was admitted on an 'equal footing' with the other states by the Resolution of Annexation. 5 Stat. 797. The scope of the 'equal footing' doctrine, however, has been thought to embrace only political rights or those rights considered necessary attributes of state sovereignty. Thus this Court has held in a consistent line of decisions that since the original states, as an incident of sovereignty, had ownership and dominion over lands under navigable waters within their jurisdiction, states subsequently admitted must be accorded equivalent ownership. E.g., Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565; Martin v. Waddell's Lessee, 16 Pet. 367, 10 L.Ed. 997. But it was an articulated premise of the California decision that the thirteen original states neither had asserted ownership nor had held dominion over the three-mile zone as an incident of sovereignty. 35 'Equal footing' has heretofore brought to a state the ownership of river beds, but never before has that phrase been interpreted to take away from a newly admitted state property that it had theretofore owned. I see no constitutional requirement that this should be done and I think the Resolution of Annexation left the marginal sea area in Texas. The Resolution expressly consented that Texas should retain all 'the vacant and unappropriated lands lying within its limits.' An agreement of this kind is in accord with the holding of this Court that ordinarily lands may be the subject of compact between a state and the Nation. Stearns v. State of Minnesota, 179 U.S. 223, 245, 21 S.Ct. 73, 81, 45 L.Ed. 162. The Court, however, does not decide whether or not 'the vacant and unappropriated lands lying within its limits' (at the time of annexation) includes the land under the marginal sea. I think that it does include those lands. Cf. Hynes v. Grimes Packing Co., 337 U.S. 86, 110, 69 S.Ct. 968, 982, 93 L.Ed. 1231. At least we should permit evidence of its meaning. 36 Instead of deciding this question of cession, the Court relies upon the need for the United States to control the area seaward of low water because of its international responsibilities. It reasons that full dominion over the resources follows this paramount responsibility, and it refers to the California discussion of the point. 332 U.S. at page 35, 67 S.Ct. at page 1666, 91 L.Ed. 1889. But the argument based on international responsibilities prevailed in the California case because the marginal sea area was staked out by the United States. The argument cannot reasonably be extended to Texas without a holding that Texas ceded that area to the United States. 37 The necessity for the United States to defend the land and to handle international affairs is not enough to transfer property rights in the marginal sea from Texas to the United States. Federal sovereignty is paramount within national boundaries, but federal ownership depends on taking possession, as the California case holds; on consent, as in the case of places for federal use; or on purchase, as in the case of Alaska or the Territory of Louisiana. The needs of defense and foreign affairs alone cannot transfer ownership of an ocean bed from a state to the Federal Government any more than they could transfer iron ore under uplands from state to federal ownership. National responsibility is no greater in respect to the marginal sea than it is toward every other particle of American territory. In my view, Texas owned the marginal area by virtue of its original proprietorship; it has not been shown to my satisfaction that it lost it by the terms of the Resolution of Annexation. 38 I would deny the United States motion for judgment. 39 Mr. Justice FRANKFURTER. 40 Time has not made the reasoning of United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889, more persuasive but the issue there decided is no longer open for me. It is relevant, however, to note that in rejecting California's claim of ownership in the off-shore oil the Court carefully abstained from recognizing such claim of ownership by the United States. This was emphasized when the Court struck out the proprietary claim of the United States from the terms of the decree proposed by the United States in the California case.* 41 I must leave it to those who deem the reasoning of that decision right to define its scope and apply it, particularly to the historically very different situation of Texas. As is made clear in the opinion of Mr. Justice REED, the submerged lands now in controversy were part of the domain of Texas when she was on her own. The Court now decides that when Texas entered the Union she lost what she had and the United States acquired it. How that shift came to pass remains for me a puzzle. On Rehearing 42 Oct. 16, 1950. The petition for rehearing is denied. Mr. Justice JACKSON and Mr. Justice CLARK took no part in the consideration or decision of this application. 1 1 Laws, Rep. of Texas, p. 6. 2 See the Resolution passed by the Senate March 1, 1837 (Cong.Globe, 24th Cong., 2d Sess., p. 270), the appropriation of a salary for a diplomatic agent to Texas (5 Stat. 170), and the confirmation of a charge d'affaires to the Republic in 1837. 5 Exec. Journ. 17. 3 See 2 Gammel's Laws of Texas 655, 880, 886, 889, 905 for recognition by France, Great Britain, and The Netherlands. 4 1 Laws, Rep. of Texas, p. 133. 5 The traditional three-mile maritime belt is one marine league or three marine miles in width. One marine league is 3.45 English statute miles. 6 See Joint Resolution approved December 29, 1845, 9 Stat. 108. 7 Joint Resolution approved March 1, 1845, 5 Stat. 797. 8 The same idea was expressed somewhat differently by Mr. Justice Field in Weber v. Board of Harbor Com'rs, supra, 18 Wall. pages 65—66, 21 L.Ed. 798 as follows: 'Although the title to the soil under the tidewaters of the bay was acquired by the United States by cession from Mexico, equally with the title to the upland, they held it only in trust for the future State. Upon the admission of California into the Union upon equal footing with the original States, absolute property in, and dominion and sovereignty over, all soils under the tidewaters within her limits passed to the State, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations or among the several States, the regulation of which was vested in the General government.' 9 See the statement of Mr. Justice Field (then Chief Justice of the Supreme Court of California) in Moore v. Smaw, 17 Cal. 199, 218—219, 79 Am.Dec. 123. 10 Act of May 16, 1941, L. Texas, 47th Leg., p. 454, Vernon's Ann.Civ.St. art. 5415a. 11 Act of May 23, 1947, L. Texas, 50th Leg., p. 451, Vernon's Ann.Civ.St. art. 5415a. 1 See the statement in the Court's opinion as to the chapters of Texas history. * The decree proposed by the United States read in part: '1. The United States of America is now, and has been at all times pertinent hereto, possessed of paramount rights of proprietorship in, and full dominion and power over, the lands, minerals and other things underlying the Pacific Ocean * * *.' The italicized words were omitted in the Court's decree. 332 U.S. 804, 805, 68 S.Ct. 20, 21, 92 L.Ed. 382.

910

339 U.S. 725 70 S.Ct. 955 94 L.Ed. 1231 UNITED STATESv.GERLACH LIVE STOCK CO. UNITED STATES v. POTTER. UNITED STATES v. ERRECA. UNITED STATES v. JAMES J. STEVINSON. UNITED STATES v. STEVINSON. UNITED STATES v. 3—H SECURITIES CO. Nos. 4 to 9. Reargued March 29, 30, 1950 Decided June 5, 1950. Mr. Ralph S. Boyd, Washington, D.C., for petitioner. [Argument of Counsel from page 726 intentionally omitted] Mr. Edward F. Treadwell, San Francisco, Cal., for respondents. Mr. Warner W. Cardner, Washington, D.C., for Gill and others as amici curiae, by special leave of Court. Mr. Justice JACKSON delivered the opinion of the Court. 1 We are asked to relieve the United States from six awards by the Court of Claims as just compensation for deprivation of riparian rights along the San Joaquin River in California caused by construction of Friant Dam, and its dependent irrigation system, as part of the Central Valley Project. 2 This is a gigantic undertaking to redistribute principal fresh-water resources of California. Central Valley is a vast basin, stretching over 400 miles on its polar axis and a hundred in width, in the heart of California. Bounded by the Sierra Nevada on the east and by coastal ranges on the west, it consists actually of two separate river valleys which merge in a single pass to the sea at the Golden Gate. Its rich acres, counted in the millions, are deficient in rainfall and must remain generally arid and unfruitful unless artificially watered. 3 Water resources there are, if they can be captured and distributed over the land. From the highland barricade at the north the Sacramento River flows southerly, while from the Yosemite region at the southeast the San Joaquin River winds northeasterly until the two meet and consort in outlet to the sea through estuaries that connect with San Francisco Bay. These dominating rivers collect tribute from many mountain currents, carry their hoardings past parched plains and thriftlessly dissipate them in the Pacific tides. When it is sought to make these streams yield their wasting treasures to the lands they traverse, men are confronted with a paradox of nature; for the Sacramento, with almost twice the water, is accessible to the least land, whereas about three-fifths of the valley lies in the domain of the less affluent San Joaquin. 4 To harness these wasting waters, overcome this perversity of nature and make water available where it would be of greatest service, the State of California proposed to re-engineer its natural water distribution. This project was taken over by the United States in 1935 and has since been a federal enterprise. The plan, in broad outline, is to capture and store waters of both rivers and many of their tributaries in their highland basins, in some cases taking advantage of the resulting head for generation of electric energy. Shasta Dam in the north will produce power for use throughout much of the State and will provide a great reservoir to equalize seasonal flows of the Sacramento. A more dramatic feature of the plan is the water storage and irrigation system at the other end of the valley. There the waters of the San Joaquin will be arrested at Friant, where they would take leave of the mountains, and will be diverted north and south through a system of canals and sold to irrigate more than a million acres of land, some as far as 160 miles away. A cost of refreshing this great expanse of semiarid land is that, except for occasional spills, only a dry river bed will cross the plain below the dam. Here, however, surplus waters from the north are utilized, for through a 150-mile canal Sacramento water is to be pumped to the cultivated lands formerly dependent on the San Joaquin. 5 Both rivers afford navigation—the Sacramento for a considerable distance inland, the San Joaquin practically only at tidewater levels. The plan will have navigation consequences, principally on the Sacramento; but the effects on navigation are economically insignificant as compared with the values realized from redistribution of water benefits. 6 Such a project inevitably unsettles many advantages long enjoyed in reliance upon the natural order, and it is with deprivation of such benefits that we are here concerned. 7 Claimants own land parcels riparian to the San Joaquin.1 These are called 'uncontrolled grass lands,' to distinguish them from either crop lands or 'controlled grass lands,' both of which have long been irrigated through controlled systems supplied from the stream. Neither of these latter will be injured by the diversion, for they are to be provided with the replacement water from the Sacramento. 8 Uncontrolled grass lands involved in the claims are parts of a large riparian area which benefits from the natural seasonal overflow of the stream. Each year, with predictable regularity, the stream swells and submerges and saturates these lowlying lands. They are moistened and enriched by these inundations so that forage and pasturage thrive, as otherwise they cannot. The high stage of the river, while fluctuating in height and variable in arrival, is not a flood in the sense of an abnormal and sudden deluge. The river rises and falls in rhythm with the cycle of seasons, expansion being normal for its time as curtailment is for others, and both are repeated with considerable constancy over the years. It should be noted, however, that claimants' benefit comes only from the very crest of this seasonal stage, which crest must be elevated and borne to their lands on the base of a full river, none of which can be utilized for irrigation above and little of it below them. Their claim of right is, in other words, to enjoy natural, seasonal fluctuation unhindered, which presupposes a peak flow largely unutilized. 9 The project puts an end to all this. Except at rare intervals, there will be no spill over Friant Dam, the bed of the San Joaquin along claimants' lands will be parched, and their grass lands will be barren. Unlike the supply utilized for nearby crop and 'controlled' lands, the vanishing San Joaquin inundation cannot be replaced with Sacramento water. Claimants have been severally awarded compensation for this taking of their annual inundations, on the theory that, as part of the natural flow, its continuance is a right annexed to their riparian property. 76 F.Supp. 87, 99, 111 Ct.Cl. 1, 89. The principal issues are common to the six cases in which we granted certiorari. 335 U.S. 883, 69 S.Ct. 234, 93 L.Ed. 422. I Navigation or Reclamation Project? 10 The Solicitor General contends that this overall project, and each part of it, has been authorized by Congress, under the commerce power, as a measure for control of navigation. Claimants on the other hand urge that although improvement of navigation was one objective of the Central Valley undertaking as a whole, nevertheless construction of the Friant Dam and the consequent taking of San Joaquin water rights had no purpose or effect except for irrigation and reclamation. This, it is claimed, was not only the actual, but the avowed purpose of Congress. On these conflicting assumptions the parties predicate contrary conclusions as to the right to compensation. 11 In the Rivers and Harbors Act of August 26, 1937, § 2, 50 Stat. 844, 850, and again in the Rivers and Harbors Act of October 17, 1940, 54 Stat. 1198, 1199—1200, Congress said that 'The entire Central Valley project * * * is * * * declared to be for the purposes of improving navigation, regulating the flow of the San Joaquin River and the Sacramento River, controlling floods, providing for storage and for the delivery of the stored waters thereof * * *.' The 1937 Act also provided that 'the said dam and reservoirs shall be used, first, for river regulation, improvement of navigation, and flood control * * *.' 12 But it also is true, as pointed out by claimants, that in these Acts Congress expressly 'reauthorized'2 a project already initiated by President Roosevelt who, on September 10, 1935, made allotment of funds for construction of Friant Dam and canals under the Federal Emergency Relief Appropriation Act, 49 Stat. 115, 118, § 4, and provided that they 'shall be reimbursable in accordance with the reclamation laws.'3 A finding of feasibility, as required by law,4 was made by the Secretary of the Interior on November 26, 1935, making no reference to navigation, and his recommendation of 'the Central Valley development as a Federal reclamation project' was approved by the President on December 2, 1935. 13 When it 'reauthorized' the Central Valley undertaking, Congress in the same Act provided that 'the provisions of the reclamation law,5 as amended, shall govern the repayment of expenditures and the construction, operation, and maintenance of the dams, canals, power plants, pumping plants, transmission lines, and incidental works deemed necessary to said entire project, and the Secretary of the Interior may enter into repayment contracts, and other necessary contracts, with State agencies, authorities, associations, persons, and corporations, either public or private, including all agencies with which contracts are authorized under the reclamation law, and may acquire by proceedings in eminent domain, or otherwise, all lands, rights-of-ways, water rights, and other property necessary for said purposes: * * *.' 14 The Central Valley basin development envisions, in one sense, an integrated undertaking, but also an aggregate of many subsidiary projects, each of which is of first magnitude. It consists of thirty-eight major dams and reservoirs bordering the valley floor and scores of smaller ones in head waters. It contemplates twenty-eight hydropower generating stations. It includes hundreds of miles of main canals, thousands of miles of laterals and drains, electric transmission and feeder lines and substations, and a vast network of structures for the control and use of water on two million acres of land already irrigated, three million acres of land to be newly irrigated, 360,000 acres in the delta needing protection from intrusions of salt water, and for municipal and miscellaneous purposes including cities, towns, duck clubs and game refuges. These projects are not only widely separated geographically, many of them physically independent in operation, but they are authorized in separate acts from year to year and are to be constructed at different times over a considerable span of years. A formula has been approved by the President by which multiple purpose dams are the responsibility of the Bureau of Reclamation, and dams and other works only for flood control are exclusively the responsibility of the Army Engineers.6 The entire Friant and San Joaquin projects at all times have been administered by the Bureau of Reclamation. 15 We cannot disagree with claimants' contention that in undertaking these Friant projects and implementing the work as carried forward by the Reclamation Bureau, Congress proceeded on the basis of full recognition of water rights having valid existence under state law. By its command that the provisions of the reclamation law should govern the construction, operation, and maintenance of the several construction projects, Congress directed the Secretary of the Interior to proceed in conformity with state laws, giving full recognition to every right vested under those laws.7 Cf. State of Nebraska v. State of Wyoming, 295 U.S. 40, 43, 55 S.Ct. 568, 569, 79 L.Ed. 1289; California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 164, 55 S.Ct. 725, 731, 79 L.Ed. 1356; State of Nebraska v. State of Wyoming, 325 U.S. 589, 614, 65 S.Ct. 1332, 1348, 89 L.Ed. 1815; Mason Co. v. Tax Comm'n of State of Washington, 302 U.S. 186, 58 S.Ct. 233, 82 L.Ed. 187. In this respect, Congress' action parallels that in Ford & Son v. Little Falls Fibre Co., 280 U.S. 369, 50 S.Ct. 140, 74 L.Ed. 483. The original plan called for purchase of water rights and included an estimate of their cost.8 We are advised by the Government that at least throughout administration of California reclamation projects it has been the consistent practice of the Bureau of Reclamation to respect such property rights. Such has specifically been the Bureau's practice in connection with the Friant project, and this has been reported to Congress,9 which has responded some nine times in the past twelve years to requests for appropriations to meet such expenses. We think this amounts, not to authorizations and declarations creating causes of action against the United States, but to awareness and approval of administrative construction. We think it clear that throughout the conception, enactment and subsequent administration of the plan Congress has recognized the property status of water rights vested under California law. 16 It is not to be doubted that the totality of a plan so comprehensive has some legitimate relation to control of inland navigation or that particular components may be described without pretense as navigation and flood control projects. This made it appropriate that Congress should justify making this undertaking a national burden by general reference to its power over commerce and navigation. 17 The Government contends that the overall declaration of purpose is applicable to Friant Dam and related irrigation facilities as an integral part of 'what Congress quite properly treated as a unit.' Adverting to United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101; United States v. Commodore Park, Inc., 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017; United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243; United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063, the Government relies on the rule that it does not have to compensate for destruction of riparian interests over which at the point of conflict it has a superior navigation easement the exercise of which occasions the damage. And irrespective of divisibility of the entire Central Valley undertaking, the Government contends that Friant Dam involves a measure of flood control, an end which is sensibly related to control of navigation. Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487. 18 Claimants, on the other hand, urge that at least the Friant Dam project was wholly unrelated to navigation ends and could not be controlled by the general Congressional declaration of purpose. They point out that, although definitions of navigation have been expanded, United States v. Appalachian Power Co., supra, in every instance in which this Court has denied compensation for deprivation of riparian rights it has specifically noted that the federal undertaking bore some positive relation to control of navigation. United States v. Willow River Power Co., supra, 324 U.S. at page 510, 65 S.Ct. at page 767, 89 L.Ed. 1101; United States v. Commodore Park, Inc., supra, 324 U.S. at page 391, 65 S.Ct. at page 805, 89 L.Ed. 1017; United States v. Appalachian Electric Power Co., supra, 311 U.S. at page 423, 61 S.Ct. at page 306, 85 L.Ed. 243; United States v. Chandler-Dunbar Water Power Co., supra, 229 U.S. at page 62, 33 S.Ct. at page 671, 57 L.Ed. 1063; and cases cited. And, referring to International Paper Co. v. United States, 282 U.S. 399, 51 S.Ct. 176, 75 L.Ed. 410; United States v. River Rouge Imp. Co., 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339, and cases cited, they observe that this Court has never permitted the Government to pervert its navigation servitude into a right to destroy riparian interests without reimbursement where no navigation purpose existed. 19 Since we do not agree that Congress intended to invoke its navigation servitude as to each and every one of this group of coordinated projects, we do not reach the constitutional or other issues thus posed. Accordingly, we need not decide whether a general declaration of purpose is controlling where interference with navigation is neither the means, State of South Carolina v. State of Georgia, 93 U.S. 4, 23 L.Ed. 782, nor the consequence, United States v. Commodore Park, supra, of its advancement elsewhere. Similarly, we need not ponder whether, by virtue of a highly fictional navigation purpose, the Government could destroy the flow of a navigable stream and carry away its waters for sale to private interests without compensation to those deprived of them. We have never held that or anything like it, and and we need not here pass on any question of constitutional power; for we do not find that Congress has attempted to take or authorized the taking, without compensation, of any rights valid under state law. 20 On the contrary, Congress' general direction of purpose we think was intended to help meet any objection to its constitutional power to undertake this big bundle of big projects. The custom of invoking the navigation power in authorizing improvements appears to have had its origin when the power of the Central Government to make internal improvements was contested and in doubt. It was not until 1936 that this Court in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 318, 80 L.Ed. 477, 102 A.L.R. 914, declared for the first time, and without dissent on this point, that, in conferring power upon Congress to tax 'to pay the Debts and provide for the common Defense and general Welfare of the United States,' the Constitution, art. 1, § 8, cl. 1, delegates a power separate and distinct from those later enumerated, and one not restricted by them, and that Congress has a substantive power to tax and appropriate for the general welfare, limited only by the requirement that it shall be exercised for the common benefit as distinguished from some mere local purpose. If any doubt of this power remained, it was laid to rest the following year in Helvering v. Davis, 301 U.S. 619, 640, 57 S.Ct. 904, 908, 81 L.Ed. 1307, 109 A.L.R. 1319. Thus the power of Congress to promote the general welfare through large-scale projects for reclamation, irrigation, or other internal improvement, is now as clear and ample as its power to accomplish the same results indirectly through resort to strained interpretation of the power over navigation.10 But in view of this background we think that reference to the navigation power was in justification of federal action on the whole, not for effect on private rights at every location along each component project. 21 Even if we assume, with the Government, that Friant Dam in fact bears some relation to control of navigation, we think nevertheless that Congress realistically elected to treat it as a reclamation project. It was so conceived and authorized by the President and it was so represented to Congress. Whether Congress could have chosen to take claimants' rights by the exercise of its dominant navigation servitude is immaterial. By directing the Secretary to proceed under the Reclamation Act of 1902, Congress elected not 'to in any way interfere with the laws of any State * * * relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder.' 32 Stat. 388, 390. 22 We cannot twist these words into an election on the part of Congress under its navigation power to take such water rights without compensation. In the language of Mr. Justice Holmes, writing for the Court in International Paper Co. v. United States, 282 U.S. 399, 407, 51 S.Ct. 176, 177, 75 L.Ed. 410, Congress 'proceeded on the footing of a full recognition of (riparians') rights and of the Government's duty to pay for the taking that (it) purported to accomplish.' We conclude that, whether required to do so or not, Congress elected to recognize any state-created rights and to take them under its power of eminent domain.11 23 We are guided to this conclusion by the interpretation placed on Congress' Acts by the Reclamation Bureau, which, in administering the project, has at all times pursued a course impossible to reconcile with present contentions of the Government. From the beginning, it has acted on the assumption that its Friant undertaking was a reclamation project. Even a casual inspection of its committee hearings and reports leaves no doubt that Congress was familiar with and approved this interpretation. Although the Solicitor General contends that, because of the navigation purpose remotely involved deprivation of water rights along the San Joaquin is not compensable, we have observed that the plan as originally adopted and as carried out by the Bureau included replacement at great expense of all water formerly used for crops and 'controlled grass lands' and purchase of that used on marginal pasture lands.12 It has consistently advised the Congress that it was purchasing San Joaquin water rights and appropriations have been made accordingly.13 Moreover, Congress14 and the water users15 have been advised that, in prosecution of the work, existing water rights would be respected. 24 This administrative practice has been extended even to the lands in question. Pursuant to its plan, the Bureau offered to purchase the rights of claimants in Nos. 7, 8 and 9, but the parties could not agree on the price. In addition, it entered into a written contract with Miller & Lux, Inc., purchasing for $2,450,000 riparian rights which included some identical with those the Government now denies to exist. In fact it includes the very rights now asserted by claimants Gerlach, Erreca and Potter, who obtained title to their riparian properties from Miller & Lux. Because of certain reservations in their grants, it was possible that Miller & Lux retained the rights riparian to these properties. The Government therefore agreed with Miller & Lux that the sum of $511,350 should be deposited with an escrow agent. If final judgments obligate the United States to make compensation to Miller & Lux, grantees for such riparian grass lands, the United States shall be reimbursed from the escrow fund in an amount not exceeding $9 per acre. However, if final judgments dismiss the claims, the escrowed funds go to Miller & Lux. The substance of this strange transaction is that the Government, which now asks us to hold that there are no such riparian rights, has already bought and paid for them at the price which the Court of Claims has allowed. The results of the Government's bargain are that, if we hold there are no rights, Miller & Lux will be paid for them and, if we hold there are such rights, they will be paid from what otherwise goes to Miller & Lux. As to these three cases, the Government is defending against the claims, not as the real party in interest, but because it undertook to do so on behalf of Miller & Lux. 25 Of course, this Court is not bound by administrative mistakes. If the Government had contracted to pay for rights which are nonexistent, it would not preclude us from upholding later and better advised contentions. But when a project has been regarded by the highest Executive authorities as a reclamation project, and has been carried as such from its initiation to final payment for these rights, and Congress, knowing its history, has given the approvals that it has, we think there is no ground for asking us to hold that the provisions of the Reclamation Act do not apply. We hold that they do apply and therefore turn, as that Act bids us, to the laws of the State to determine the rights and liabilities of landowner and appropriator. 26 II. Claimants' Riparian Rights Under California Law. 27 The adversaries in this case invoke rival doctrines of water law which have been in competition throughout California legal history. The claims are expressly based on common-law riparian-rights doctrines as declared by California courts. The United States on the other hand, by virtue of the Reclamation Act, stands in the position of an upstream appropriator for a beneficial use. 28 The governing water law of California must now be derived from a 1928 Amendment to its Constitution16 which compresses into a single paragraph a reconciliation and modification of doctrines evolved in litigations that have vexed its judiciary for a century. Its text leaves many questions to be answered, and neither it nor any legislation or judicial decision provides a direct and explicit determination of the present state law on issues before us. But since the federal law adopts that of the State as the test of federal liability, we must venture a conclusion as to peculiarly local law. We can do so only in the light of a long history of strife and doctrinal conflict, which California says must be known by every judge of these matters, Conger v. Weaver, 6 Cal. 548, 65 Am.Dec. 528, and in continuity with which both the cryptic text of the Amendment and the policy of federal statutes become more intelligible.17 29 Upon acquiring statehood in 1850, California adopted the common law of England as the rule of decision in its courts when not inconsistent with the Federal or State Constitutions or State legislation. In the middle of the Eighteenth Century, English common law included a body of water doctrine known as riparian rights. That also was the general Mexican law, if it had any lingering authority there, but see Boquillas Cattle Co. v. Curtis, 213 U.S. 339, 343, 29 S.Ct. 493, 53 L.Ed. 822; Gutierres v. Albuquerque Land Co., 188 U.S. 545, 556, 23 S.Ct. 338, 342, 47 L.Ed. 588, except for a peculiar concession to 'pueblos.' Indeed, riparian-rights doctrines prevailed throughout Western civilization. 30 As long ago as the Institutes of Justinian, running waters, like the air and the sea, were res communes—things common to all and property of none. Such was the doctrine spread by civil-law commentators and embodied in the Napoleonic Code and in Spanish law. This conception passed into the common law. From these sources, but largely from civil-law sources, the inquisitive and powerful minds of Chancellor Kent and Mr. Justice Story drew in generating the basic doctrines of American water law. 31 Riparian rights developed where lands were amply watered by rainfall. The primary natural asset was land, and the run-off in streams or rivers was incidental. Since access to flowing waters was possible only over private lands, access became a right annexed to the shore. The law followed the principle of equality which requires that the corpus of flowing water become no one's property and that, aside from rather limited use for domestic and agricultural purposes by those above, each riparian owner has the right to have the water flow down to him in its natural volume and channels unimpaired in quality. The riparian system does not permit water to be reduced to possession so as to become property which may be carried away from the stream for commercial or nonriparian purposes. In working out details of this egalitarian concept, the several states made many variations, each seeking to provide incentives for development of its natural advantages. These are set forth in Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331. But it may be said that when California adopted it the general philosophy of the riparian-rights system had become common law throughout what was then the United States. 32 Then in the mountains of California there developed a combination of circumstances unprecedented in the long and litigious history of running water. Its effects on water laws were also unprecedented. Almost at the time when Mexico ceded California, with other territories, to the United States, gold was discovered there and a rush of hardy, aggressive and venturesome pioneers began. If the high lands were to yield their treasure to prospectors, water was essential to separate the precious from the dross. The miner's need was more than a convenience—it was a necessity; and necessity knows no law. But conditions were favorable for necessity to make law, and it did—law unlike any that had been known in any part of the Western world. 33 The adventurers were in a little-inhabited, unsurveyed, unowned and almost ungoverned country, theretofore thought to have little value. It had become public domain of the United States and miners regarded waters as well as lands subject to preemption. To be first in possession was to be best in title. Priority—of discovery, location and appropriation—was the primary source of rights. Fortuitously, along lower reaches of the streams there were no riparian owners to be injured and none to challenge customs of the miners. 34 In September, 1850, California was admitted to the Union as a State. In 1851, its first Legislature enacted a Civil Practice Act which contained a provision that 'in actions respecting Mining Claims, * * * customs, usages, or regulations, when not in conflict with the Constitution and Laws of this State, shall govern the decision of the action.'18 The custom of appropriating water thus acquired some authority, notwithstanding its contradiction of the common law. A practice that was law in the mountains was contrary to the law on the books. Here were provocations to controversy that soon came to the newly established state courts. 35 In California, as everywhere, the law of flowing streams has been the product of contentions between upper and lower levels. Thus when Matthew Irwin built a dam and canal on the upper San Joaquin for appropriating water to supply miners, downstream settler Robert Phillips tore it down and asserted his own riparian right to have the water descend to him in its natural volume. Faced with this issue between custom and doctrine, the California Supreme Court escaped by observing that both claims were located on public domain, and that neither party could show proprietorship. Accordingly, as between two mere squatters, priority of appropriation established the better right. But the court gave warning that this appropriative right might not prevail against a downstream riparian who claimed by virtue of proprietorship. Irwin v. Phillips, 1855, 5 Cal. 140, 63 Am.Dec. 113. 36 The United States, as owner of the whole public domain, was such a proprietor, and the decision made appropriations vulnerable to its challenge. It also left the pioneers in position of trespassers. They were taught that the tenure of their preemptions and appropriations was precarious when, in 1858, the Attorney General of the United States intervened in private litigation to contend in federal court that the land in dispute was public, and asserted generally a right to restrain all mining operations upon public land. His intervention was successful, an injunction forbade working the mine in question, and a writ issued under the hand of President Lincoln directing military authorities to remove the miners. United States v. Parrott, C.C., Fed.Cas.No.15,998, 1 McAll. 271. 37 Demands of mining and water interests that the Federal Government relieve their uncertain status were loud, but went unheeded amidst the problems that came with civil war. But after the war closed, the issue was again precipitated by a bill introduced at the request of the Secretary of the Treasury to have the United States withdraw all mines from the miners, appraise and sell them, reserving a royalty after sale. This the Secretary believed would yield a large revenue and the public lands would help pay the public war debt. However, the private interests prevailed. The Act of July 26, 1866, 14 Stat. 251, R.S. § 2339, declared the mining lands free and open to preemption and included the following: 'That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, That whenever, after the passage of this act, any person, or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.' 14 Stat. 251, 253, 43 U.S.C. § 661, 43 U.S.C.A. § 661. 38 This section was expounded by Mr. Justice Field in Jennison v. Kirk, 98 U.S. 453, 25 L.Ed. 240, as foreclosing further proprietary objection by the United States to appropriations which rested upon local custom. This Court regarded the Act as 'an unequivocal grant' for existing diversions of water on the public lands. Broder v. Natoma Water Co., 101 U.S. 274, 25 L.Ed. 790. Thus Congress made good appropriations in being as against a later patent to riparian parcels of the public domain, and removed the cloud cast by adverse federal claims. 39 While this was being accomplished, changed conditions brought new adversaries to contend against the appropriators. The Homestead Act of 1862 had opened agricultural lands to preemption and set up a method of acquiring formal title. 12 Stat. 392. Farms and ranches appeared along the streams and wanted the protection that the common law would give to their natural flow. The Act of 1866, as we have noted, made appropriators liable for damage to settlers with whose possession they interfered. The Supreme Court of California decided that 'a riparian owner came into certain rights which he could assert against a subsequent appropriator of the waters of the stream, even though he could not as against a prior appropriation.' Crandall v. Woods, 8 Cal. 136. 40 In 1886 came the decisive battle of Lux v. Haggin, 69 Cal. 255, 4 P. 919, 10 P. 674. Haggin organized an irrigation company and claimed the right to appropriate the entire flow of the Kern River for irrigation and to destroy any benefits for riparian owners downstream. The court held that the doctrine of riparian rights still prevailed in California, that such right attached to riparian land as soon as it became private property and, while subject to appropriations made prior to that time, it is free from all hostile appropriations thereafter. Thus California set itself apart by its effort to reconcile the system of riparian rights with the system of appropriation, whereas other arid states rejected the doctrine of riparian rights forthrightly and completely. 41 The Twentieth Century inducted new parties into the old struggle. Gigantic electric power and irrigation projects succeeded smaller operations, and municipalities sought to by-pass intervening agricultural lands and go into the mountains to appropriate the streams for city supply. Increasing dependence of all branches of the State's economy, both rural and urban, upon water centered attention upon its conservation and maximum utilization. 42 This objective seemed frustrated by the riparian-rights doctrine, when, in 1926, the Supreme Court decided Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607, and this Court, after argument, dismissed certiorari for want of a federal question. 1927, 275 U.S. 486, 48 S.Ct. 27, 72 L.Ed. 387. That case involved just such questions as we have here. Southern California Edison projected a large storage of San Joaquin waters in the mountains primarily for power generation. Plaintiffs' ranch, like lands of claimants, had always been naturally irrigated by overflow and thus naturally was productive property. Appropriation by the power company threatened to impair this overflow and destroy the value of the ranch. The company was unwilling to compensate the damage. The court held that common law of riparian rights must prevail against the proposed utilization and, notwithstanding the economic waste involved in plaintiffs' benefit, enjoined the power project. 43 This ruling precipitated a movement for amendment of the State Constitution and thus brought to a focus a contest that had grown in bitterness and intensity throughout the arid regions as both populations and property values mounted. The doctrine of riparian rights was characterized as socialistic. Weil, Theories of Water Law, 27 Harv.L.Rev. 530 (1914). The Supreme Court said the law of appropriation would result in monopoly. Lux v. Haggin, supra, 69 Cal. at page 309, 4 P. 919, 10 P. 674, at page 703. If the uneconomic consequences of unlimited riparianism were revealed by court decisions, so the effects of unrestrained appropriation became apparent where the flow of rivers became completely appropriated, leaving no water for newcomers or new industry.19 44 A Joint Committee of the California Legislature gave extended study to the water problems of that State and careful consideration of many remedies. Among other proposals, one relevant to our question was to revoke or nullify all common-law protection to riparian rights and do it retroactively as of the year 1850.20 The Committee rejected all dispossession proposals as confiscatory. It reported an amendment to the Constitution which attempted to serve the general welfare of the State by preserving and limiting both riparian and appropriative rights while curbing either from being exercised unreasonably or wastefully. The Amendment was submitted to and adopted by the electors in November 1928 and now constitutes California's basic water law, to which the Federal Reclamation Act defers. 45 We cannot assume that this Amendment was without impact upon claims to water rights such as we have here, for, as we have seen, it was provoked by their assertion. Neither can we assume that its effect is to deprive riparian owners of benefits it declares to continue or unintentionally to strike down values there was a studied purpose to preserve. We are only concerned with whether it continued in claimants such a right as to be compensable if taken. But what it took away is some measure of what it left. 46 Riparianism, pressed to the limits of its logic, enabled one to play dog-in-the-manger. The shore proprietor could enforce by injunction his bare technical right to have the natural flow of the stream, even if he was getting no substantial benefit from it. This canine element in the doctrine is abolished. 'The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, * * *.' This limitation is not transgressed by the awards in question which only compensate for the loss of actual beneficial use. Any hazard to claimants' rights lurks in the following clause: 'and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water.' Since riparian rights attach to, and only to, so much of the flow of the San Joaquin as may be put to beneficial use consistently with this clause, claimants can enforce no use of wasteful or unreasonable character. 47 We assume for purposes of this decision that the prodigal use, inseparable from claimants' benefits, is such that the rights here asserted might not be enforced by injunction. But withholding equitable remedies, such as specific performance, mandatory orders or injunctions, does not mean that no right exists. There may still be a right invasion of which would call for indemnification. In fact, adequacy of the latter remedy is usually grounds for denial of the former. 48 But the public welfare, which requires claimants to sacrifice their benefits to broader ones from a higher utilization, does not necessarily require that their loss be uncompensated any more than in other takings where private rights are surrendered in the public interest. The waters of which claimants are deprived are taken for resale largely to other private land owners not riparian to the river and to some located in a different water shed. Thereby private lands will be made more fruitful, more valuable, and their operation more profitable. The reclamation laws contemplate that those who share these advantages shall, through water charges, reimburse the Government for its outlay. This project anticipates recoupment of its cost over a forty-year period.21 No reason appears why those who get the waters should be spared from making whole those from whom they are taken. Public interest requires appropriation; it does not require expropriation. We must conclude that by the Amendment California unintentionally destroyed and confiscated a recognized and adjudicated private property right, or that it remains compensable although no longer enforcible by injunction. The right of claimants at least to compensation prior to the Amendment was entirely clear. Insofar as any California court has passed on the exact question, the right appears to survive.22 Five years after the Amendment, the Superior Court of California23 specifically sustained identical rights. The Madera Irrigation District had been organized to build a dam at the Friant site and to divert San Joaquin waters to irrigate about 170,000 acres. It was sued by Miller & Lux, Inc., and two of its subsidiaries, and decrees in their favor were entered in 1933. In general, the court sustained the Miller & Lux riparian rights to the annual overflow of uncontrolled grass lands, some of which now belong to claimants. It adjudged the proposed appropriation invalid and ineffective as against those rights. In July of 1940 the United States acquired all of Madera's rights, including pending applications to appropriate San Joaquin water under state law. These judgments had become final and were outstanding adjudications of the issues here involved against a grantor of the United States. Without considering the claim that the 1933 judgments may be res judicata, they are at least persuasive that claimants' rights to the benefit had, in the opinion of California courts, survived the Amendment and must be retired by condemnation or acquisition before the Friant diversion could be valid. 49 The Supreme Court of California has given no answer to this specific problem. But in the light of its precedents and its conclusions and discussions of collateral issues, especially in Peabody v. City of Vallejo, 2 Cal.2d 351, 40 P.2d 486; City of Lodi v. East Bay Municipal Utility District, 7 Cal.2d 316, 60 P.2d 439; Hillside Water Co. v. City of Los Angeles, 10 Cal.2d 677, 76 P.2d 681; Gin S. Chow v. City of Santa Barbara, 217 Cal. 673, 22 P.2d 5; Meridian, Ltd. v. City and County of San Francisco, 13 Cal.2d 424, 90 P.2d 537, 91 P.2d 105; City of Los Angeles v. City of Glendale, 23 Cal.2d 68, 142 P.2d 289, we conclude that claimants' right to compensation has a sound basis in California law. The reclamation authorities were apparently of that view as the Miller & Lux contract would indicate. 50 We recognize that the right to inundation asserted here is unique in the history of riparian claims. Where the thirst of the land is supplied by rainfall, floods are detriments if not disasters, and to abate overflows could rarely if ever cause damage. But, as we have pointed out, uncommon local conditions have given rise to the singular rule of California. The same scarcity which makes it advantageous to take these waters gives them value in the extraordinary circumstances in which the California courts have recognized a private right to have no interception of their flow except upon compensation. 51 We think the awards of the Court of Claims correctly applied the law of California as made applicable to these claims by Congress. 52 III. Other Issues. 53 The Government also assigns as error determination of the date from which interest is to be allowed. The Court of Claims adopted as the date of taking the first substantial impoundment of water which occurred on October 20, 1941, even though it had not then prevented benefits from reaching the property. The contract between the Government and Miller & Lux contemplated this as the date of taking, for it puts the $511,350 in escrow to protect the Government against suits 'initiated prior to the sixth anniversary after the initial storage or diversion.' Since the Government itself has adopted this date for the expiration of its protection by contract, we see no reason why it should challenge the Court of Claims for use of the same date for accrual of the claims. Regardless of how this might have been fixed in the absence of such an administrative determination, we decline to set aside the finding on this subject. 54 Second, the Government claims that the court below misconstrued reservations in the deeds between the three claimants and Miller & Lux. It is not apparent from the facts we have recited that the Government is the real party in interest as to this question, which seems to be in the nature of a private controversy between claimants and Miller & Lux. In any event, it presents a question of conveyancing and real property law peculiar to this one case, and depending on local law. It is not a question of general interest, nor is there any manifest error, and we accept, without review, the finding of the Court of Claims thereon. 55 Finally, the Government protests that the court below failed adequately to describe the rights taken for which it has made an award. We think in view of the simple nature of the claims, the exhaustive character of the findings and the understanding the Government must have acquired in seven years of the litigations, there is little prospect that it will be grievously misled by deficiencies, if any, that may exist in the description. 56 The judgments are affirmed. 57 Affirmed. 58 Mr. Justice BLACK concurs in the judgment and opinion except that he agrees with Mr. Justice DOUGLAS that interest should not be allowed. 59 Mr. Justice DOUGLAS, concurring in part and dissenting in part. 60 I think it is clear under our decisions that respondents are not entitled to compensation as a matter of constitutional right. For we have repeatedly held that there are no private property rights in the waters of a navigable river. See United States v. Appalachian Electric Power Co., 311 U.S. 377, 424, 61 S.Ct. 291, 307, 85 L.Ed. 243; United States v. Commodore Park, Inc., 324 U.S. 386, 390—391, 65 S.Ct. 803, 805, 89 L.Ed. 1017; United States v. Willow River Power Co., 324 U.S. 499, 510, 65 S.Ct. 761, 767, 89 L.Ed. 1101. That is true whether the rights of riparian owners or the rights of appropriators are involved. See Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996; United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136. As the Appalachian Power case makes plain, 311 U.S. 424, 427, 61 S.Ct. 307, 308, 85 L.Ed. 243; the existence of property rights in the waters of a navigable stream are not dependent upon whether the United States is changing the flow of the river in aid of navigation or for some other purpose. 61 Nor can respondents' rights to recover be founded on the Acts which appropriated money for the Central Valley project. They created no independent right in any claimant against the United States. That is the teaching of Justice Brandeis' opinion for the Court in Mitchell v. United States, 267 U.S. 341, 345—346, 45 S.Ct. 293, 294, 69 L.Ed. 644. The appropriation in that case was for, inter alia, 'losses to persons, firms and corporations, resulting from the procurement of land.' In denying a claim for the loss of a business resulting from a taking of land, the Court said: 'By including in the appropriation clause the words 'losses to persons, firms, and corporations, resulting from the procurement of the land for this purpose,' Congress doubtless authorized the Secretary of War to take into consideration losses due to the destruction of the business, where he purchased land upon agreement with the owners. But it does not follow that, in the absence of an agreement, the plaintiffs can compel payment for such losses. To recover, they must show some statutory right conferred.' 62 The same is true in this case. For example, § 2 of the Rivers and Harbors Act of August 26, 1937, 50 Stat. 844, 850, provided that the Secretary of Interior 'may acquire by proceedings in eminent domain, or otherwise, all lands, rights-of-way, water rights, and other property necessary for said purposes.' Authority to pay for water rights is, of course, not to be construed to mean an assumption of liability to pay. 63 Congress, to be sure, has full power to relinquish its immunity from suit for the taking. See Ford & Son v. Little Falls Fibre Co., 280 U.S. 369, 377, 50 S.Ct. 140, 141, 74 L.Ed. 483; United States v. Realty Co., 163 U.S. 427, 440, 16 S.Ct. 1120, 1125, 41 L.Ed. 215. And I think it has done so—not by the Acts appropriating funds for the project but by the Reclamation Act of 1902. 32 Stat. 388, 43 U.S.C. § 371 et seq., 43 U.S.C.A. § 371 et seq. 64 The Act applies solely to the 17 western States. It deals with reclamation projects as its title indicates. The Central Valley project is such a project. 65 Section 7 of the Act authorizes the Secretary of the Interior to purchase any rights necessary to the carrying out of the Act.1 Section 8 provides: 'That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.' 43 U.S.C.A. § 383. 66 Section 8 thus respects 'any vested right' acquired under state water laws relating to irrigation, in 'any interstate stream or the waters thereof.' When such rights will be destroyed or interfered with by a proposed reclamation project, authority is found to acquire them under § 7. The customary method of acquiring the water rights is to file a notice of appropriation pursuant to state law. 67 Petitioner seeks to avoid the force of these Sections by asserting that they are not applicable to lands riparian to navigable streams. 68 The legislative history of the Act is not particularly instructive. The House Committee reporting the bill said that 'Section 8 recognizes State control over waters of non-navigable streams such as are used in irrigation.' H.R.Rep.No.1468, 57th Cong.1st Sess., p. 6. There is no other evidence, however, that the framers thought the scope of the bill so narrow. When the Act was recommended in 1901, President Theodore Roosevelt was careful to suggest that there should be protection for 'vested rights' and respect for state laws. 35 Cong.Rec. 6677, 6775—6776. There are statements to the same effect by Representative Mondell, who was in charge of the Bill in the House (35 Cong.Rec. 6678—6679) and by Senator Clark of Wyoming (35 Cong.Rec. 2222). The clause in § 8 according protection to 'any vested right acquired' under state laws was added to the Bill by Committee amendment on the floor of the House. 35 Cong.Rec. 6762. 69 Whether § 8 authorizes payment for water rights riparian to navigable waters has not been authoritatively determined by the courts.2 This Court has recognized, however, that administration of the Act is to be in conformity to state laws. See California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 164, 55 S.Ct. 725, 731, 79 L.Ed. 1356; State of Nebraska v. State of Wyoming, 325 U.S. 589, 614, 65 S.Ct. 1332, 1348, 89 L.Ed. 1815. That was the assumption in Mason Co. v. Tax Commission of State of Washington, 302 U.S. 186, 58 S.Ct. 223, 82 L.Ed. 187, a case involving the navigable waters of the Columbia River. 70 Whatever doubts there may be are for me dispelled by the administrative practice under the Act, as summarized by the Commissioner of Reclamation in a memorandum dated April 19, 1950. Reports from the seven regional counsel and a review of the files in the Bureau of Reclamation formed the basis for the memorandum. 71 The Commissioner concluded that it has been the almost invariable practice of the Bureau to file notices of appropriations under state law without regard to whether the stream involved was navigable or nonnavigable.3 Such filings were made pursuant to state law on water rights riparian to at least 13 navigable or probably navigable rivers. This administrative practice is too clear to be contradicted by the Bureau of Reclamation documents cited by petitioner.4 Moreover, the Commissioner of Reclamation has drawn our attention to recent public statements by Department of Interior officers confirming this practice. 72 This Court has often emphasized that weight is to be given to the interpretation of a statute made by the administering agency. See United States v. American Trucking Ass'ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 1067, 84 L.Ed. 1345; National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 130, 64 S.Ct. 851, 860, 88 L.Ed. 1170. This long course of practice by the Bureau of Reclamation resolves any doubts and ambiguities that arise from the history and wording of the statute. 73 I conclude that Congress by § 8 of the Reclamation Act agreed to pay (though not required to do so by the Constitution) for water rights acquired under state law in navigable as well as nonnavigable streams. As the Court holds, respondents under California law have a water right. Section 8 therefore recognizes it as the basis for payment in connection with this federal project. 74 I do not think the claimants are entitled to interest. When the Government assumes a liability by statute, interest is not allowable unless specific provision is made for it. United States v. Goltra, 312 U.S. 203, 207, 61 S.Ct. 487, 490, 85 L.Ed. 776; United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 588, 67 S.Ct. 398, 399, 91 L.Ed. 521. A different rule obtains when the United States takes property protected by the Fifth Amendment. Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 306, 43 S.Ct. 354, 356, 67 L.Ed. 664. The present water rights, though not protected by the Fifth Amendment, are ones which the United States has agreed to pay for under §§ 7 and 8 of the Reclamation Act. Sections 7 and 8 contain no provision for the payment of interest. The Act refers to state law to determine whether a water right exists not to ascertain the measure of damages for the taking. 1 Claimants' rights are subject to certain prior appropriative and other rights which do not affect the issues before us. 2 '(T)he entire Central Valley Project, California, heretofore authorized and established under the provisions of the Emergency Relief Appropriation Act of 1935 (49 Stat. 115) and the First Deficiency Appropriation Act, fiscal year 1936 (49 Stat. 1622) is hereby reauthorized * * *.' The latter reference is to a $6,900,000 appropriation primarily for 'Friant Reservoir and irrigation facilities therefrom', as a reclamation project 'reimbursable under the Reclamation Law.' 49 Stat. 1597, 1622. Development of the water resources of Central Valley was initiated by the State of California. Cal.Stat.1933, p. 2643. Studies were made of the feasibility of federal participation, and although there was no accompanying appropriation, the first congressional authorization in connection with the project was contained in the Act of Aug. 30, 1935, 49 Stat. 1028, 1038. In this Act, on the representation of the Chief of Engineers that, as to the Friant Dam phase, 'No benefits would accrue to navigation from this development,' (House Doc. No. 191, 73d Cong., 2d Sess. 3; and see Comm. on Rivers and Harbors, H.R., Doc. No. 35) Congress limited its approval of federal participation to purely navigation works in the northern part of the valley, and authorized a federal expenditure of $12,000,000 in the construction of Kennett Dam on the Sacramento. When it 'reauthorized' the entire project Congress provided that, when appropriated, this $12,000,000 should be exempt from the reimbursement requirements of the reclamation law. Act of Aug. 26, 1937, § 2, 50 Stat. 844, 850. 3 The reference is to the Reclamation Act of 1902, 32 Stat. 388, as amended, 43 U.S.C. § 371 et seq., 43 U.S.C.A. § 371 et seq. 4 Act of June 25, 1910, § 4, 36 Stat. 835, 836, 43 U.S.C.A. § 413, provides that no irrigation project contemplated under the Reclamation Act 'shall be begun unless and until the same shall have beenrecommended by the Secretary of the Interior and approved by the direct order of the President of the United States.' To this was added the requirement that the Secretary 'shall have made a finding in writing that it is feasible, that it is adaptable for actual settlement and farm homes, and that it will probably return the cost thereof to the United States.' Act of Dec. 5, 1924, § 4(B), 43 Stat. 672, 702, 43 U.S.C.A. § 412. 5 See n. 3, supra. 6 Letter of President Truman to Secretary of the Interior, dated August 15, 1949, S.Doc.No.113, 81st Cong., 1st Sess. 7 The Reclamation Act of 1902, 32 Stat. 388, as amended, 43 U.S.C. § 371 et seq., 43 U.S.C.A. § 371 et seq., to which Congress adverted, applies only to the seventeen Western States. Section 8 provides: 'That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: * * *.' 43 U.S.C.A. § 383. To the extent that it is applicable this clearly leaves it to the State to say what rights of an appropriator or riparian owner may subsist along with any federal right. 8 'Part of the water supply is to be obtained by the purchase of water now used for the irrigation of pasture lands and this will result in the retirement from use of 250,000 acres of submarginal land. * * *' Feasibility Report, Secretary of the Interior Ickes to President Roosevelt, Nov. 26, 1935. Included in the Secretary's estimated costs of the project was an item of $8,000,000 for 'rights of way, water rights and general expenses.' Ibid. In the Act of Aug. 26, 1937, the Secretary was authorized to acquire 'by roceedings in eminent domain, or otherwise, all lands, rights-of-ways, water rights, and other property necessary for said purposes: * * *.' 50 Stat. 844, 850. 9 In administering the Central Valley Project, the Bureau of Reclamation submitted appropriation requests regularly from 1938 through 1949. On each occasion, excepting fiscal year 1945, Congress was advised that San Joaquin water rights were being purchased, and every appropriation request but three (fiscal years 1941, 1945, and 1946) included an item for such water rights. Hearings, Subcomm. of the House Comm. on Appropriations, Interior Dept., 75th Cong., 1st Sess. 281, 282 (except as noted, all following references are to hearings before this subcommittee), and see H.R. Rep. No. 786, 75th Cong., 1st Sess. 14; Hearings, 75th Cong., 3d Sess. 349, and see H.R. Rep. No. 1855, 75th Cong., 3d Sess. 14; Hearings, 76th Cong., 1st Sess. 421, 422, and see H.R. Rep. No. 161, 76th Cong., 1st Sess. 16; Hearings, 76th Cong., 3d Sess. 495, and see H.R. Rep. No. 1709, 76th Cong., 3d Sess. 14; Hearings, 77th Cong., 1st Sess. 741; Hearings, 77th Cong., 2d Sess. 434—439; Hearings, Pt. 1, 78th Cong., 1st Sess. 1174; Hearings, Pt. 1, 79th Cong., 1st Sess. 1200; Hearings, Pt. 2, 79th Cong., 2d Sess. 315—317; Hearings, Pt. 3, 80th Cong., 1st Sess. 749—752; Hearings, Pt. 3, 80th Cong., 2d Sess. 1214, 1279—1280, and see Hearings, Subcomm. of the Senate Comm. on Appropriations, Interior Dept., 80th Cong., 2d Sess. 921—924; 50 Stat. 564, 597; 52 Stat. 291, 324; 53 Stat. 685, 719; 55 Stat. 303, 336; 56 Stat. 506, 536; 57 Stat. 451, 476; 60 Stat. 348, 367; 61 Stat. 460, 475; 62 Stat. 1112, 1129. 10 See Feasibility Report, Secretary of the Interior Ickes to President Roosevelt, Nov. 26, 1935, recommending 'the approval of the Central Valley development as a Federal reclamation project,' and pointing out that the area is served by excellent transportation facilities, that much of its produce is shipped to eastern markets, and that if decreasing productivity as a result of acute shortage of water for irrigation needs were to continue, 'a share of the loss will be suffered by persons not residing in the areas directly affected.' 11 This approach makes it unnecessary to consider the relevancy of United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 67 S.Ct. 398, 91 L.Ed. 521; United States v. Goltra, 312 U.S. 203, 61 S.Ct. 487, 85 L.Ed. 776; Tillson v. United States, 100 U.S. 43, 25 L.Ed. 543, on the question of claimants' right to interest. Unless we choose to disturb these cases we could not limit ourselves to saying that by invocation of the Reclamation Act of 1902 Congress simply assumed liability for claimants' water rights. 12 See n. 8, supra. 13 See n. 9, supra. 14 'In conducting irrigation investigations and constructing and operating projects throughout the West, the Bureau of Reclamation fully recognizes and respects existing water rights established under State law. Not only is this a specific requirement of the Reclamation Act under which the Bureau operates, but such a course is the only fair and just method of procedure. This basin report on the Central Valley is predicated on such a policy.' Report of Regional Director, Region II, Bureau of Reclamation, Dec. 1, 1947, approved by the Secretary of the Interior, July 29, 1948. S.Doc.No.113, 81st Cong., 1st Sess. 39. 15 After consultation with the Commissioner of Reclamation and the Secretary of the Interior, the Regional Director, Region II, Bureau of Reclamation, replied to questions concerning the Central Valley Project submitted by the Irrigation Districts Association of California: 'The Bureau of Reclamation does recognize and respect existing water rights which have been initiated and perfected or which are in the state of being perfected under State laws. The Bureau of Reclamation has been required to do so by Section 8 of the Reclamation Act of 1902 ever since the inception of the reclamation program administered by the Bureau of Reclamation. The Bureau of Reclamation has never proposed modification of that requirement of Federal law; and on the contrary, the Bureau of Reclamation and the Secretary of the Interior have consistently, through the 42 years since the 1902 act, been zealous in maintaining compliance with Section 8 of the 1902 act. They are proud of the historic fact that the reclamation program includes as one of its basic tenets that the irrigation development in the West by the Federal Government under the Federal Reclamation Laws is carried forward in conformity with State water laws. Ample demonstration of the effect of this law and policy of administration, in action, has been given in connection with the Central Valley Project. Water filings made by the State have been obtained by the Bureau of Reclamation by assignment, and vested water rights have been acquired by the United States by purchase, the considerations amounting to millions of dollars and being agreeable to the vendors—all in conformity with State laws. Further, other water rights of landowners which will or may be affected by the operations of the project are being analyzed and appropriate adjustments, giving full recognition of the rights of the landowners, are in the process of being worked out.' 16 That amendment added art. XIV, § 3 of the State Constitution, which provides: 'It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which he is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.' 17 The historical background of both riparian and appropriative rights, the relevant local history and the legislative history of the Act of 1866 are comprehensibly set forth in 1 Wiel, Water Rights in the Western States, §§ 66 to 264 (3d Ed., 1911), and in the following articles by the same author: Public Policy in Water Decisions, 1 Cal.L.Rev. 11; Comparative Water Law, 6 Cal.L.Rev. 245, 342; Political Water Rights, 10 Cal.L.Rev. 111; Theories of Water Law, 27 Harv.L.Rev. 530. See also Pomeroy on Water Rights, cc. 2, 3 (1893); 3 Farnham, Waters and Water Rights, c. 22; Toelle, Prospective Effect on Western Water Law of Proposed Federal Missouri Valley and Columbia Valley Authorities, 20 Temple L.Q. 425; Walton, Origin and Growth of Western Irrigation Law, 21 Ill.L.Rev. 126; Bannister, Federal Disposition of Waters in the Priority States, 28 Harv.L.Rev. 270; Lasky, From Prior Appropriation to Economic Distribution of Water by the State—Via Irrigation Administration, 1 Rocky Mt.L.Rev. 161. 18 Civil Practice Act of April 29, 1851, § 621. In substance now § 748, Code Civil Procedure. 19 Court opinions indicate that all the waters of the South Platte River have been appropriated and the entire normal flow of the river is inadequate to supply the priorities for irrigation purposes already decreed from it. Comstock v. Ramsay, 55 Colo. 244, 133 P. 1107. The entire Boise River in Idaho has been appropriated. United States v. Burley, C.C., 172 F. 615. Many Colorado streams are already overappropriated. Humphreys Tunnel & Mining Co. v. Frank, 46 Colo. 524, 105 P. 1093. See Wiel, Theories of Water Law, 27 Harv.L.Rev. 530. 20 The legislative history of the Amendment is set forth in Wiel, The Pending Water Amendment, 16 Cal.L.Rev. 169 and 257, and see Wiel, Europeanizing the State Constitution—The Water and Power Amendment, 12 Cal.L.Rev. 454; Note, I Stanford L.Rev. 172. 21 The Feasibility Report of Secretary Ickes, supra, n. 8, referring to Friant Dam, Friant-Kern Canal and Madera Canal, among others included, says, 'The next declaration required is that the cost of construction will probably be returned to the Federal Government. This is interpreted to mean that it will be returned within forty years from the time the Secretary issues public notice that water is available from the project works. The estimated cost of construction is $170,000,000 and the annual cost, including repayment of all other charges is $7,500,000. It is estimated that annual revenues from the sale of water and of electric power will be sufficient to cover these charges. The favorable conditions heretofore recited justify the belief that the project will return its cost.' 22 United States District Court, Southern District of California rendered a decision on April 12, 1950, in Rank v. Krug, 90 F.Supp. 773, consistent with the views we take of the issues here involved. 23 Sacramento & San Joaquin Drainage District Co. v. Superior Court in and for Colusa County, 196 Cal. 414, 432, 238 P. 687, 694. This is not a local court but a part of a system of state courts. It seems to fall within the rule of Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109, as a court whose decrees are regarded as determination of state law rather than within the rule of King v. Order of United Commercial Travelers of America, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608. 1 Section 7 provides: 'That where in carrying out the provisions of this Act it becomes necessary to acquire any rights or property, the Secretary of the Interior is hereby authorized to acquire the same for the United States by purchase or by condemnation under judicial process, and to pay from the reclamation fund the sums which may be needed for that purpose, and it shall be the duty of the Attorney-General of the United States upon every application of the Secretary of the Interior, under this Act, to cause proceedings to be commenced for condemnation within thirty days from the receipt of the application at the Department of Justice.' 43 U.S.C.A. § 421. 2 A United States District Court for the Southern District of California has recently held, however, that § 8 of the Act provides for the purchase of water rights taken in connection with the Central Valley Project. Rank et al. v. Krug, 90 F.Supp. 773. 3 The memorandum records the following data: Region 1 (Washington, Idaho, northern Oregon, western Montana) reported the filing of appropriations under state law in 12 projects involving navigable rivers. In Region 2 (northern California, Oregon), § 8 has been construed to include rights in navigable as well as nonnavigable waters, although the exact number of filings was not revealed. Although some filings for appropriation under state law have been made in Region 3 (southern California, Arizona, southern Nevada), the lower Colorado River projects are the single exception to the otherwise consistent administrative practice. In Region 4 (northern Nevada, Utah, western Wyoming, western Colorado), water rights on at least two navigable rivers have been acquired pursuant to state law. No occasion has yet arisen in Region 5 (Texas, New Mexico, Oklahoma, southern Colorado) making necessary the acquisition of water rights on navigable streams. In the only instance in Region 6 (eastern Montana, northern Wyoming, North and South Dakota) where a federal project interfered with private water rights on a navigable river, the rights were paid for by the United States. Water rights on three apparently navigable rivers in Region 7 (eastern Colorado, southern Wyoming, Nebraska, Kansas) were acquired by the United States in accordance with state laws. The Commissioner notes that there are special circumstances concerning the lower Colorado River projects which explain the single exception. The Act authorizing Hoover Dam required that it be used first for 'river regulation, improvement of navigation, and flood control,' and only thereafter for irrigation. 45 Stat. 1061, 43 U.S.C.A. § 617e. Moreover, the Colorado River Compact assures an adequate supply of water for the project. The Commissioner points out that while no rights have been acquired on the lower Colorado under § 7, 'a search of Bureau records fails to disclose any instance on that River in which the Bureau in connection with any of its projects failed or refused to recognize or make compensation for water rights validly established under state law.' Another possible exception is the decision of the Department of Interior not to purchase a power right on the Spokane River on the ground among others, that the right affected navigable waters. Yet in the past, the Bureau instituted appropriations on that river also. 4 The unpublished Manual of the Bureau of Reclamation, printed for the guidance of its employees, supports petitioner's position in its 1913, 1917, and 1927 editions, and to a lesser extent in its 1938 edition. A new manual is now in preparation. These statements may have been based on an early decision of the Secretary of the Interior (California Development Co. 33 L.D. 391), which also provides some support for the petitioner's position. The Commissioner of Reclamation, however, has explained that 'despite the statement in earlier manuals based upon the California Land Development opinion * * *,' the Bureau's practice has been to make no distinction between navigable and nonnavigable waters.

34

339 U.S. 629 70 S.Ct. 848 94 L.Ed. 1114 SWEATTv.PAINTER et al. No. 44. Argued April 4, 1950. Decided June 5, 1950. Rehearing Denied Oct. 9, 1950. See 71 S.Ct. 13. Messrs. W. J. Durham, Dallas, Tex., Thurgood Marshall, New York City, for petitioner. Messrs. Price Daniel, Liberty, Tex., Joe R. Greenhill, Houston, Tex., for respondents. [Argument of Counsel from page 630 intentionally omitted] Mr. Chief Justice VINSON delivered the opinion of the Court. 1 This case and McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, present different aspects of this general question: To what extent does the Equal Protection Clause of the Fourteenth Amendment limit the power of a state to distinguish between students of different races in professional and graduate education in a state university? Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court. We have frequently reiterated that this Court will decide constitutional questions only when necessary to the disposition of the case at hand, and that such decisions will be drawn as narrowly as possible. Rescue Army v. Municipal Court, 1947, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666, and cases cited therein. Because of this traditional reluctance to extend constitutional interpretations to situations or facts which are not before the Court, much of the excellent research and detailed argument presented in these cases is unnecessary to their disposition. 2 In the instant case, petitioner filed an application for admission to the University of Texas Law School for the February, 1946 term. His application was rejected solely because he is a Negro.1 Petitioner thereupon brought this suit for mandamus against the appropriate school officials, respondents here, to compel his admission. At that time, there was no law school in Texas which admitted Negroes. 3 The State trial court recognized that the action of the State in denying petitioner the opportunity to gain a legal education while granting it to others deprived him of the equal protection of the laws guaranteed by the Fourteenth Amendment. The court did not grant the relief requested, however, but continued the case for six months to allow the State to supply substantially equal facilities. At the expiration of the six months, in December, 1946, the court denied the writ on the showing that the authorized university officials had adopted an order calling for the opening of a law school for Negroes the following February. While petitioner's appeal was pending, such a school was made available, but petitioner refused to register therein. The Texas Court of Civil Appeals set aside the trial court's judgment and ordered the cause 'remanded generally to the trial court for further proceedings without prejudice to the rights of any party to this suit.' 4 On remand, a hearing was held on the issue of the equality of the educational facilities at the newly established school as compared with the University of Texas Law School. Finding that the new school offered petitioner 'privileges, advantages, and opportunities for the study of law substantially equivalent to those offered by the State to white students at the University of Texas,' the trial court denied mandamus. The Court of Civil Appeals affirmed. 1948, 210 S.W.2d 442. Petitioner's application for a writ of error was denied by the Texas Supreme Court. We granted certiorari, 1949, 338 U.S. 865, 70 S.Ct. 139, because of the manifest importance of the constitutional issues involved. 5 The University of Texas Law School, from which petitioner was excluded, was staffed by a faculty of sixteen full-time and three part-time professors, some of whom are nationally recognized authorities in their field. Its student body numbered 850. The library contained over 65,000 volumes. Among the other facilities available to the students were a law review, moot court facilities, scholarship funds, and Order of the Coif affiliation. The school's alumni occupy the most distinguished positions in the private practice of the law and in the public life of the State. It may properly be considered one of the nation's ranking law schools. 6 The law school for Negroes which was to have opened in February, 1947, would have had no independent faculty or library. The teaching was to be carried on by four members of the University of Texas Law School faculty, who were to maintain their offices at the University of Texas while teaching at both institutions. Few of the 10,000 volumes ordered for the library had arrived;2 nor was there any full-time librarian. The school lacked accreditation. 7 Since the trial of this case, respondents report the opening of a law school at the Texas State University for Negroes. It is apparently on the road to full accreditation. It has a faculty of five full-time professors; a student body of 23; a library of some 16,500 volumes serviced by a full-time staff; a practice court and legal aid association; and one alumnus who has become a member of the Texas Bar. 8 Whether the University of Texas Law School is compared with the original or the new law school for Negroes, we cannot find substantial equality in the educational opportunities offered white and Negro law students by the State. In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the University of Texas Law School is superior. What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the communicty, traditions and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close. 9 Moreover, although the law is a highly learned profession, we are well aware that it is an intensely practical one. The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned. The law school to which Texas is willing to admit petitioner excludes from its student body members of the racial groups which number 85% of the population of the State and include most of the lawyers, witnesses, jurors, judges and other officials with whom petitioner will inevitably be dealing when he becomes a member of the Texas Bar. With such a substantial and significant segment of society excluded, we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School. 10 It may be argued that excluding petitioner from that school is no different from excluding white students from the new law school. This contention overlooks realities. It is unlikely that a member of a group so decisively in the majority, attending a school with rich traditions and prestige which only a history of consistently maintained excellence could command, would claim that the opportunities afforded him for legal education were unequal to those held open to petitioner. That such a claim, if made, would be dishonored by the State, is no answer. 'Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.' Shelley v. Kraemer, 1948, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161, 3 A.L.R.2d 441. 11 It is fundamental that these cases concern rights which are personal and present. This Court has stated unanimously that 'The State must provide (legal education) for (petitioner) in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group.' Sipuel v. Board of Regents, 1948, 332 U.S. 631, 633, 68 S.Ct. 299, 92 L.Ed. 247. That case 'did not present the issue whether a state might not satisfy the equal protection clause of the Fourteenth Amendment by establishing a separate law school for Negroes.' Fisher v. Hurst, 1948, 333 U.S. 147, 150, 68 S.Ct. 389, 390, 92 L.Ed. 604. In State of Missouri ex rel. Gaines v. Canada, 1938, 305 U.S. 337, 351, 59 S.Ct. 232, 237, 83 L.Ed. 208, the Court, speaking through Chief Justice Hughes, declared that 'petitioner's right was a personal one. It was as an individual that he was entitled to the equal protection of the laws, and the State was bound to furnish him within its borders facilities for legal education substantially equal to those which the State there afforded for persons of the white race, whether or not other Negroes sought the same opportunity.' These are the only cases in this Court which present the issue of the constitutional validity of race distinctions in state-supported graduate and professional education. 12 In accordance with these cases, petitioner may claim his full constitutional right: legal education equivalent to that offered by the State to students of other races. Such education is not available to him in a separate law school as offered by the State. We cannot, therefore, agree with respondents that the doctrine of Plessy v. Ferguson, 1896, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, requires affirmance of the judgment below. Nor need we reach petitioner's contention that Plessy v. Ferguson should be reexamined in the light of contemporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial segregation. See supra, 339 U.S. 631, 70 S.Ct. 849. 13 We hold that the Equal Protection Clause of the Fourteenth Amendment requires that petitioner be admitted to the University of Texas Law School. The judgment is reversed and the cause is remanded for proceedings not inconsistent with this opinion. 14 Reversed. 1 It appears that the University has been restricted to white students, in accordance with the State law. See Tex.Const. Art. VII, §§ 7, 14; Tex.Rev.Civ.Stat. Arts. 2643b, 2719, 2900 (Vernon, 1925 and Supp.) 2 'Students of the interim School of Law of the Texas State University for Negroes (located in Austin, whereas the permanent School was to be located at Houston) shall have use of the State Law Library in the Capitol Building * * *.' Tex.Laws 1947, c. 29, § 11, Tex.Rev.Civ.Stat. (Vernon, Supp.), note to Art. 2643b. It is not clear that this privilege was anything more than was extended to all citizens of the State.

12

339 U.S. 816 70 S.Ct. 843 94 L.Ed. 1302 HENDERSONv.UNITED STATES et al. No. 25. Argued April 3, 1950. Decided June 5, 1950. Messrs. J. Howard McGrath, Attorney General, Philip B. Perlman, Sol. Gen., Washington, D.C., for appellee The United States. Messrs. Belford V. Lawson, Jr., Washington, D.C., Jawn Sandifer, New York City, for appellant. Mr. Allen Crenshaw, Washington, D.C., for appellee Interstate Commerce Commission. Mr. Charles Clark, Washington, D.C., for appellee, Southern Ry. Co. Mr. Sam Hobbs, by special leave of court, a member of the Committee on the Judiciary of the House of Representatives, argued the cause and filed a brief, as amicus curiae, urging affirmance. [Argument of Counsel from page 817 intentionally omitted] Mr. Justice BURTON delivered the opinion of the Court. 1 The question here is whether the rules and practices of the Southern Railway Company, which divide each dining car so as to allot ten tables exclusively to white passengers and one table exclusively to Negro passengers, and which call for a curtain or partition between that table and the others, violate § 3(1) of the Interstate Commerce Act. That section makes it unlawful for a railroad in interstate commerce 'to subject any particular person, * * * to any undue or unreasonable prejudice or disadvantage in any respect whatsoever: * * *.' 54 Stat. 902, 49 U.S.C. § 3(1), 49 U.S.C.A. § 3(1). We hold that those rules and practices do violate the Act. 2 This issue grows out of an incident which occurred May 17, 1942. On that date the appellant, Elmer W. Henderson, a Negro passenger, was traveling on a first-class ticket on the Sourthern Railway from Washington, D.C., to Atlanta, Georgia, en route to Birmingham, Alabama, in the course of his duties as an employee of the United States. The train left Washington at 2 p.m. At about 5:30 p.m., while the train was in Virginia,1 the first call to dinner was announced and he went promptly to the dining car. In accordance with the practice then in effect, the two end tables nearest the kitchen were conditionally reserved for Negroes. At each meal those tables were to be reserved initially for Negroes and, when occupied by Negroes, curtains were to be drawn between them and the rest of the car. If the other tables were occupied before any Negro passengers presented themselves at the diner then those two tables also were to be available for white passengers, and Negroes were not to be seated at them while in use by white passengers.2 When the appellant reached the diner, the end tables in question were partly occupied by white passengers but at least one seat at them was unoccupied. The dining-car steward declined to seat the appellant in the dining car but offered to serve him, without additional charge, at his Pullman seat. The appellant declined that offer and the steward agreed to send him word when space was available. No word was sent and the appellant was not served although he twice returned to the diner before it was detached at 9 p.m. 3 In October, 1942, the appellant filed a complaint with the Interstate Commerce Commission alleging especially that the foregoing conduct violated § 3(1) of the Interstate Commerce Act.3 Division 2 of the Commission found that he had been subjected to undue and unreasonable prejudice and disadvantage, but that the occurrence was a casual incident brought about by the bad judgment of an employee. The Commission declined to enter an order as to future practices. 258 I.C.C. 413. A three-judge United States District Court for the District of Maryland, however, held that the railroad's general practice, as evidenced by its instructions of August 6, 1942, was in violation of § 3(1). Accordingly, on February 18, 1946, it remanded the case for further proceedings. 63 F.Supp. 906. Effective March 1, 1946, the company announced its modified rules which are now in effect. They provide for the reservation of ten tables, of four seats each, exclusively and unconditionally for white passengers and one table, of four seats, exclusively and unconditionally the Negro passengers. Between this table and the others a curtain is drawn during each meal.4 4 On remand, the full Commission, with two members dissenting and one not participating, found that the modified rules do not violate the Interstate Commerce Act and that no order for the future is necessary.5 269 I.C.C. 73. The appellant promptly instituted the present proceeding before the District Court, constituted of the same three members as before, seeking to have the Commission's order set aside and a cease and desist order issued. 28 U.S.C. §§ 41(28), 43—48; 49 U.S.C. § 17(9), 49 U.S.C.A. § 17(9); see also, 28 U.S.C. (Supp. III) §§ 1336, 1398, 2284, 2321, 2325, 28 U.S.C.A. §§ 1336, 1398, 2284, 2321, 2325. With one member dissenting, the court sustained the modified rules on the ground that the accommodations are adequate to serve the average number of Negro passengers and are 'proportionately fair.' 80 F.Supp. 32, 39. The case is here on direct appeal. 28 U.S.C. (Supp. III) §§ 1253, 2101(b), 28 U.S.C.A. §§ 1253, 2101(b). In this Court, the United States filed a brief and argued orally in support of the appellant. 5 It is clear that appellant has standing to bring these proceedings. He is an aggrieved party, free to travel again on the Southern Railway. Having been subjected to practices of the railroad which the Commission and the court below found to violate the Interstate Commerce Act, he may challenge the railroad's current regulations on the ground that they permit the recurrence of comparable violations. Mitchell v. United States, 313 U.S. 80, 92—93, 61 S.Ct. 873, 875—876, 85 L.Ed. 1201. 6 The material language in § 3(1) of the Interstate Commerce Act has been in that statute since its adoption in 1887. 24 Stat. 380. From the beginning, the Interstate Commerce Commission has recognized the application of that language to discriminations between white and Negro passengers. Councill v. Western & Atlantic R. Co., 1 I.C.C. 339;6 Heard v. Georgia R. Co., 1 I.C.C. 428; Heard v. Georgia R. Co., 3 I.C.C. 111; Edwards v. Nashville, C. & St. L.R. Co., 12 I.C.C. 247; Cozart v. Southern R. Co., 16 I.C.C. 226; Gaines v. Seaboard Air Line R. Co., 16 I.C.C. 471; Crosby v. St. Louis-San Francisco R. Co., 112 I.C.C. 239. That section recently was so applied in Mitchell v. United States, supra. 7 The decision of this case is largely controlled by that in the Mitchell case. There a Negro passenger holding a first-class ticket was denied a Pullman seat, although such a seat was unoccupied and would have been available to him if he had been white. The railroad rules had allotted a limited amount of Pullman space, consisting of compartments and drawing rooms, to Negro passengers and, because that space was occupied, the complainant was excluded from the Pullman car and required to ride in a second-class coach. This Court held that the passenger thereby had been subjected to an unreasonable disadvantage in violation of § 3(1).7 8 The similarity between that case and this is inescapable. The appellant here was denied a seat in the dining car although at least one seat was vacant and would have been available to him, under the existing rules, if he had been white.8 The issue before us, as in the Mitchell case, is whether the railroad's current rules and practices cause passengers to be subjected to undue or unreasonable prejudice or disadvantage in violation of § 3(1). We find that they do. 9 The right to be free from unreasonable discriminations belongs, under § 3(1), to each particular person. Where a dining car is available to passengers holding tickets entitling them to use it, each such passenger is equally entitled to its facilities in accordance with reasonable regulations. The denial of dining service to any such passenger by the rules before us subjects him to a prohibited disadvantage. Under the rules, only four Negro passengers may be served at one time and then only at the table reserved for Negroes. Other Negroes who present themselves are compelled to await a vacancy at that table, although there may be many vacancies elsewhere in the diner. The railroad thus refuses to extent to those passengers the use of its existing and unoccupied facilities. The rules impose a like deprivation upon white passengers whenever more than 40 of them seek to be served at the same time and the table reserved for Negroes is vacant. 10 We need not multiply instances in which these rules sanction unreasonable discriminations. The curtains, partitions and signs emphasize the artificiality of a difference in treatment which serves only to call attention to a racial classification of passengers holding identical tickets and using the same public dining facility. Cf. McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851. They violate § 3(1). 11 Our attention has been directed to nothing which removes these racial allocations from the statutory condemnation of 'undue or unreasonable prejudice or disadvantage * * *.' It is argued that the limited demand for dining-car facilities by Negro passengers justifies the regulations. But it is no answer to the particular passenger who is denied service at an unoccupied place in the dining car that, on the average, persons like him are served. As was pointed out in Mitchell v. United States, 313 U.S. 80, 97, 61 S.Ct. 873, 878, 85 L.Ed. 1201, 'the comparative volume of traffic cannot justify the denial of a fundamental right of equality of treatment, a right specifically safeguarded by the provisions of the Interstate Commerce Act.' Cf. McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169; State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208. 12 That the regulations may impose on white passengers, in proportion to their numbers, disadvantages similar to those imposed on Negro passengers is not an answer to the requirements of § 3(1). Discriminations that operate to the disadvantage of two groups are not the less to be condemned because their impact is broader than if only one were affected. Cf. Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161, 3 A.L.R.2d 441. 13 Since § 3(1) of the Interstate Commerce Act invalidates the rules and practices before us, we do not reach the constitutional or other issues suggested. 14 The judgment of the District Court is reversed and the cause is remanded to that court with directions to set aside the order of the Interstate Commerce Commission which dismissed the original complaint and to remand the case to that Commission for further proceedings in conformity with this opinion. It is so ordered. Reversed and remanded with directions. 15 Mr. Justice DOUGLAS concurs in the result. 16 Mr. Justice CLARK took no part in the consideration or decision of this case. 1 No reliance is placed in this case upon any action by any state. 2 Rule of the Southern Railway Company issued July 3, 1941, and in effect May 17, 1942: 'Dining Car Regulations 'Meals should be served to passengers of different races at separate times. If passengers of one race desire meals while passengers of a different race are being served in the dining car, such meals will be served in the room or seat occupied by the passenger without extra charge. If the dining car is equipped with curtains so that it can be divided into separate compartments, meals may be served to passengers of different races at the same time in the compartments set aside for them.' 258 I.C.C. 413, 415, D.C., 63 F.Supp. 906, 910. Joint Circular of the Southern Railway System issued August 6, 1942. 'Effective at once please be governed by the following with respect to the race separation curtains in dining cars: 'Before starting each meal pull the curtains to service position and place a 'Reserved' card on each of the two tables behind the curtains. 'These tables are not to be used by white passengers until all other seats in the car have been taken. Then if no colored passengers present themselves for meals, the curtain should be pushed back, cards removed and white passengers served at those tables. 'After the tables are occupied by white passengers, then should colored passengers present themselves they should be advised that they will be served just as soon as those compartments are vacated. "Reserved' cards are being supplied you.' 258 I.C.C. at page 415, 63 F.Supp. at page 910. 3 '(1) It shall be unlawful for any common carrier subject to the provisions of this part to make, give, or cause any undue or unreasonable preference or advantage to any paticular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic, in any respect whatsoever; or to subject any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever: * * *.' (Emphasis supplied.) 54 Stat. 902, 49 U.S.C. § 3(1), 49 U.S.C.A. § 3(1). The appellant sought an order directing the railroad not only to cease and desist from the specific violations alleged but also to establish in the future, for the complainant and other Negro interstate passengers, equal and just dining-car facilities and such other service and facilities as the Commission might consider reasonable and just, and requiring the railroad to discontinue using curtains around tables reserved for Negroes. The appellant sought damages, but the Commission found no pecuniary damages and that issue has not been pressed further. 4 'Transportation Department Circular No. 142. Cancelling Instructions on this Subject Dated July 3, 1941, and August 6, 1942. 'Subject: Segregation of White and Colored Passengers in Dining Cars. 'To: Passenger Conductors and Dining Car Stewards. 'Consistent with experience in respect to the ratio between the number of white and colored passengers who ordinarily apply for service in available diner space, equal but separate accommodations shall be provided for white and colored passengers by partitioning diners and the allotment of space, in accordance with the rules, as follows: '(1) That one of the two tables at Station No. 1 located to the left side of the aisle facing the buffet, seating four persons, shall be reserved exclusively for colored passengers, and the other tables in the diner shall be reserved exclusively for white passengers. '(2) Before starting each meal, draw the partition curtain separating the table in Station No. 1, described above, from the table on that side of the aisle in Station No. 2, the curtain to remain so drawn for the duration of the meal. '(3) A 'Reserved' card shall be kept in place on the left-hand table in Station No. 1, described above, at all times during the meal except when such table is occupied as provided in these rules. '(4) These rules become effective March 1, 1946. 'R. K. McClain, 'Assistant Vice-President.' 269 I.C.C. 73, 75; 80 F.Supp. 32, 35. Counsel for the railway company, at a subsequent hearing, corrected the above rules 'to the extent of using the word 'negroes' in place of 'colored persons." Also, the evidence shows, and the Commission has stated, that 'White and Negro soldiers are served together, without distinction.' 258 I.C.C. 413, 415; 63 F.Supp. 906, 910. The rules, accordingly, are treated as applicable only to civilian passengers. The company further showed that it is now substituting a five-foot high wooden partition in place of the curtain. The steward's office is being placed in the table space opposite that reserved for Negro passengers and a similar wooden partition is being erected between that office and the rest of the car. 5 The company was permitted to introduce two tabulations, covering about ten days each, showing the comparative numbers of meals served to white and Negro passengers on trips comparable to the one which the appellant had taken. These show that only about 4% of the total meals served were served to Negro passengers whereas four reserved seats exceed 9% of a total seating capacity of 44. On the other hand, the tabulations also show tht at one meal 17 Negro passengers, and at each of 20 meals more than eight Negro passengers, were served. Similarly, the brief filed by the Commission states that, out of the 639 serving periods reported, on 15 occasions more than four times as many white passengers were served as there were seats reserved for them, and, on 541 occasions, there were two or more rounds of servings. 6 'The Western and Atlantic Railroad Company will be notified to cease and desist from subjecting colored persons to undue and unreasonable prejudice and disadvantage in violation of section 3 of the Act to regulate commerce, and from furnishing to colored persons purchasing first-class tickets on its road accommodations which are not equally safe and comfortable with those furnished other first-class passengers.' 1 I.C.C. at page 347. 7 The rules also denied access by Negroes to the dining car and observation car. The principles there announced applied equally to those facilities. 8 That specific denial of service was condemned by the Commission and the District Court as a violation of § 3(1). Review of that condemnation is not sought here.

12

339 U.S. 827 70 S.Ct. 894 94 L.Ed. 1312 AUTOMATIC RADIO MFG. CO., Inc.,v.HAZELTINE RESEARCH, Inc. No. 455. Argued April 5, 1950. Decided June 5, 1950. Rehearing Denied Oct. 9, 1950. See 71 S.Ct. 13. Mr. Floyd H. Crews, New York City, for petitioner. Messrs. Laurence B. Dodds, New York City, Philip F. LaFollette, Madison, Wis., for respondent. [Argument of Counsel from page 828 intentionally omitted] Mr. Justice MINTON delivered the opinion of the Court. 1 This is a suit by respondent Hazeltine Research, Inc., as assignee of the licensor's interest in a nonexclusive patent license agreement covering a group of 570 patents and 200 applications, against petitioner Automatic Radio Manufacturing Company, Inc., the licensee, to recover royalties. The patents and applications are related to the manufacture of radio broadcasting apparatus. Respondent and its corporate affiliate and predecessor have for some twenty years been engaged in research, development, engineering design and testing and consulting services in the radio field. Respondent derives income from the licensing of its patents, its policy being to license any and all responsible manufacturers of radio apparatus at a royalty rate which for many years has been approximately one percent. Petitioner manufactures radio apparatus, particularly radio broadcasting receivers. 2 The license agreement in issue, which appears to be a standard Hazeltine license, was entered into by the parties in September 1942, for a term of ten years. By its terms petitioner acquired permission to use, in the manufacture of its 'home' products, any or all of the patents which respondent held or to which it might acquire rights. Petitioner was not, however, obligated to use respondent's patents in the manufacture of its products. For this license, petitioner agreed to pay respondent's assignor royalties based upon a small percentage of petitioner's selling price of complete radio broadcasting receivers, and in any event a minimum of $10,000 per year. It further agreed to keep a record of its sales and to make monthly reports thereof. 3 This suit was brought to recover the minimum royalty due for the year ending August 31, 1946, for an accounting of other sums due, and for other relief. Petitioner answered and both parties filed motions for summary judgment and affidavits in support of the motions. The District Court found the case to be one appropriate for summary procedure under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., and sustained the motion of respondent for judgment. The validity of the license agreement was upheld against various charges of misuse of the patents, and judgment was entered for the recovery of royalties and an accounting, and for a permanent injunction restraining petitioner from failing to pay royalties, to keep records, and to render reports during the life of the agreement. D.C., 77 F.Supp. 493. The Court of Appeals affirmed, one judge dissenting, 1 Cir., 176 F.2d 799 (and we granted certiorari, 338 U.S. 942, 70 S.Ct. 428, in order to consider important questions concerning patent misuse and estoppel to challenge the validity of licensed patents. 4 The questions for determination are whether an misuse of patents has been shown, and whether petitioner may contest the validity of the licensed patents, in order to avoid its obligation to pay royalties under the agreement. 5 First. It is insisted that the license agreement cannot be enforced because it is a misuse of patents to require the licensee to pay royalties based on its sales, even though none of the patents are used. Petitioner directs our attention to the 'Tie-in' cases. These cases have condemned schemes requiring the purchase of unpatented goods for use with patented apparatus or processes,1 prohibiting production or sale of competing goods,2 and conditioning the granting of a license under one patent upon the acceptance of another and different license.3 Petitioner apparently concedes that these cases do not, on their facts, control the instant situation. It is obvious that they do not. There is present here no requirement for the purchase of any goods. Hazeltine does not even manufacture or sell goods; it is engaged solely in research activities. Nor is there any prohibition as to the licensee's manufacture or sale of any type of apparatus. The fact that the license agreement covers only 'home' apparatus does not mean that the licensee is prohibited from manufacturing or selling other apparatus. And finally, there is no conditioning of the license grant upon the acceptance of another and different license. We are aware that petitioner asserted in its countermotion for summary judgment in the District Court that Hazeltine refused to grant a license under any one or more of its patents to anyone who refused to take a license under all. This averment was elaborated in the affidavit of petitioner's attorney in support of the motion. The point was not pressed in the Court of Appeals or here. In any event there is nothing available in the record to support the averment, since the affidavit in support thereof was made upon information and belief and the relevant portion, at least, does not comply with Rule 56(e) of the Federal Rules of Civil Procedure.4 6 But petitioner urges that this case 'is identical in principle' with the 'Tie-in' cases. It is contended that the licensing provision requiring royalty payments of a percentage of the sales of the licensee's products constitutes a misuse of patents because it ties in a payment on unpatented goods. Particular reliance is placed on language from United States v. U.S. Gypsum, 333 U.S. 364, 389, 400, 68 S.Ct. 525, 539, 544, 92 L.Ed. 746.5 That case was a prosecution under the Sherman Act, 15 U.S.C.A. § 1 et seq., for an alleged conspiracy of Gypsum and its licensees to extend the monopoly of certain patents and to eliminate competition by fixing prices on patented and unpatented gypsum board. The license provisions based royalties on all sales of gypsum board, both patented and unpatented. It was held that the license provisions, together with evidence of an understanding that only patented board would be sold, showed a conspiracy to restrict the production of unpatented products which was an invalid extension of the area of the patent monopoly. 333 U.S. at page 397, 68 S.Ct. at page 543. There is no indication here of conspiracy to restrict production of unpatented or any goods to effectuate a monopoly, and thus the Gypsum case does not aid petitioner. That which is condemned as against public policy by the 'Tie-in' cases is the extension of the monopoly of the patent to create another monopoly or restraint of competition—a restraint not countenanced by the patent grant. See, e.g., Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 665—666, 64 S.Ct. 268, 271, 88 L.Ed. 376; Morton Salt Co. v. Suppiger Co., 314 U.S. 488, 778, 62 S.Ct. 402, 86 L.Ed. 363; Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 456, 60 S.Ct. 618, 625, 84 L.Ed. 852. The principle of those cases cannot be contorted to circumscribe the instant situation. This royalty provision does not create another monopoly; it creates no restraint of competition beyond the legitimate grant of the patent. The right to a patent includes the right to market the use of the patent at a reasonable return. See 46 Stat. 376, 35 U.S.C. § 40, 35 U.S.C.A. § 40; Hartford-Empire Co. v. United States, 323 U.S. 386, 417, 65 S.Ct. 373, 388, 89 L.Ed. 322; Id., 324 U.S. 570, 574, 65 S.Ct. 815, 818, 89 L.Ed. 1198. 7 The licensing agreement in issue was characterized by the District Court as essentially a grant by Hazeltine to petitioner of a privilege to use any patent or future development of Hazeltine in consideration of the payment of royalties. Payment for the privilege is required regardless of use of the patents.6 The royalty provision of the licensing agreement was sustained by the District Court and the Court of Appeals on the theory that it was a convenient mode of operation designed by the parties to avoid the necessity of determining whether each type of petitioner's product embodies any of the numerous Hazeltine patents. D.C., 77 F.Supp. at 496. The Court of Appeals reasoned that since it would not be unlawful to agree to pay a fixed sum for the privilege to use patents, it was not unlawful to provide a variable consideration measured by a percentage of the licensee's sales for the same privilege. 1 Cir., 176 F.2d at page 804. Numerous District Courts which have had occasion to pass on the question have reached the same result on similar grounds,7 and we are of like opinion. 8 The mere accumulation of patents, no matter how many, is not in and of itself illegal. See Transparent-Wrap Machine Corp. v. Stokes & Smith Co., 329 U.S. 637, 67 S.Ct. 610, 91 L.Ed. 563. And this record simply does not support incendiary, yet vague, charges that respondent uses its accumulation of patents 'for the exaction of tribute' and collects royalties 'by means of the overpowering threat of disastrous litigation.' We cannot say that payment of royalties according to an agreed percentage of the licensee's sales is unreasonable. Sound business judgment could indicate that such payment represents the most convenient method of fixing the business value of the privileges granted by the licensing agreement. We are not unmindful that convenience cannot justify an extension of the monopoly of the patent. See, e.g., Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 666, 64 S.Ct. 268, 271, 88 L.Ed. 376; B.B. Chemical Co. v. Ellis, 314 U.S. 495, 498, 62 S.Ct. 406, 408, 86 L.Ed. 367. But as we have already indicated, there is in this royalty provision no inherent extension of the monopoly of the patent. Petitioner cannot complain because it must pay royalties whether it uses Hazeltine patents or not. What it acquired by the agreement into which it entered was the privilege to use any or all of the patents and developments as it desired to use them. If it chooses to use none of them, it has nevertheless contracted to pay for the privilege of using existing patents plus any developments resulting from respondent's continuous research. We hold that in licensing the use of patents to one engaged in a related enterprise, it is not per se a misuse of patents to measure the consideration by a percentage of the licensee's sales. 9 Second. It is next contended by petitioner that the license agreement is unenforceable because it contained a provision requiring the following restrictive notice to be attached to apparatus manufactured by petitioner under the agreement: "Licensed by Hazeltine Corporation only for use in homes, for educational purposes, and for private, non-commercial use, under one or more of the following patents and under pending applications:' followed by the word 'Patent' and the numbers of the patents which are, in the opinion of Licensor, involved in apparatus of the types licensed hereunder manufactured by one or more licensees of Licensor.' 10 Respondent did not seek to have this provision of the agreement enforced, and the decree of the District Court does not enforce it. It may well have been a dead letter from the beginning, as indicated by the fact that, as petitioner averred in its answer, it has never observed this provision of the agreement. Thus it is doubtful that the legality of this provision could be contested, even assuming that the issue was properly raised, which respondent disputes. In any event, it is clear that any issue with respect to this provision of the agreement is moot. An affidavit of the president of respondent corporation advises us of certain letters which were sent by respondent in September 1945, to each of its licensees, including petitioner. These letters authorized the discontinuance of the restrictive notice provision and the substitution of the marking 'This apparatus is licensed under the United States patent rights of Hazeltine Corporation.' It is further averred that this form of notice is all that respondent has required of its licensees since September 1945. Since this provision of the agreement was made for the benefit of respondent, it could voluntarily waive the provision. Westinghouse Electric Corp. v. Bulldog Electric Products Co., 4 Cir., 179 F.2d 139, 145, 146. Thus the question of the legality of the original restrictive notice provision is not before us. Cf. Standard Oil Co. (Indiana) v. United States, 283 U.S. 163, 181—182, 51 S.Ct. 421, 427, 428, 75 L.Ed. 926. 11 Third. Finally, it is contended that notwithstanding the licensing agreement, petitioner-licensee may contest the validity of the patents it is charged with using. The general rule is that the licensee under a patent license agreement may not challenge the validity of the licensed patent in a suit for royalties due under the contract. United States v. Harvey Steel Co., 196 U.S. 310, 25 S.Ct. 240, 49 L.Ed. 492. The general principle of the invalidity of price-fixing agreements may be invoked by the licensee of what purport to be valid patents to show in a suit for royalties that the patents are invalid. Katzinger Co. v. Chicago Metallic Mfg. Co., 329 U.S. 394, 67 S.Ct. 416, 91 L.Ed. 374; MacGregor v. Westinghouse Elec. & Mfg. Co., 329 U.S. 402, 67 S.Ct. 421, 424, 91 L.Ed. 380. There is no showing that the licensing agreement here or the practices under it were a misuse of patents or contrary to public policy. This limited license for 'home' use production contains neither an express nor implied agreement to refrain from production for 'commercial' or any other use as part consideration for the license grant. The Katzinger and MacGregor cases are inapplicable. The general rule applies, and petitioner may not, in this suit, challenge the validity of the licensed patents. 12 The judgment of the Court of Appeals is affirmed. 13 Affirmed. 14 Mr. Justice JACKSON took no part in the consideration or decision of this case. 15 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 16 We are, I think, inclined to forget that the power of Congress to grant patents is circumscribed by the Constitution. The patent power, of all legislative powers, is indeed the only one whose purpose is defind. Article I, § 8 describes the power as one 'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' This statement of policy limits the power itself. 17 The Court in its long history has at times been more alive to that policy than at other times. During the last three decades it has been as devoted to it (if not more so) than at any time in its history. I think that was due in large measure to the influence of Mr. Justice Brandeis and Chief Justice Stone. They were alert to the danger that business—growing bigger and bigger each decade would fasten its hold more tightly on the economy through the cheap spawning of patents and would use one monopoly to beget another through the leverage of key patents. They followed in the early tradition of those who read the Constitution to mean that the public interest in patents comes first, reward to the inventor second.1 18 First. Mr. Justice Brandeis and Chief Justice Stone did not fashion but they made more secure one important rule designed to curb the use of patents. It is as follows: One who holds a patent on article A may not license the use of the patent on condition that B, an unpatented article, be bought.2 Such a contract or agreement would be an extension of the grant of the patent contrary to a long line of decisions. See Motion Picture Patents Co. v. Universal Film Co., 243 U.S. 502, 37 S.Ct. 416, 61 L.Ed. 871, L.R.A. 1917E, 1187, Ann.Cas.1918A, 959; Carbice Corp. of America v. American Patents Corp., 283 U.S. 27, 51 S.Ct. 334, 75 L.Ed. 819; Morton Salt v. G.S. Suppiger, 314 U.S. 488, 491—492, 778, 62 S.Ct. 402, 404, 405, 86 L.Ed. 363; United States v. Masonite Corp., 316 U.S. 265, 277, 278, 62 S.Ct. 1070, 1077, 86 L.Ed. 1461; Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 666, 64 S.Ct. 268, 271, 88 L.Ed. 376; United States v. United States Gypsum Co., 333 U.S. 364, 389, 68 S.Ct. 525, 539, 92 L.Ed. 746. For it would sweep under the patent an article that is unpatented or unpatentable. Each patent owner would become his own patent office and, by reason of the leverage of the patent, obtain a larger monopoly of the market than the Constitution or statutes permit.3 19 That is what is done here. Hazeltine licensed Automatic Radio to use 570 patents and 200 patent applications. Of these Automatic used at most 10. Automatic Radio was obligated, however, to pay as royalty a percentage of its total sales in certain lines without regard to whether or not the products sold were patented or unpatented. The inevitable result is that the patentee received royalties on unpatented products as part of the price for the use of the patents. 20 The patent owner has therefore used the patents to bludgeon his way into a partnership with this licensee, collecting royalties on unpatented as well as patented articles. 21 A plainer extension of a patent by unlawful means would be hard to imagine. 22 Second. Chief Justice Stone wrote for the Court in Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. 165, holding that a licensee is not estopped to challenge a price-fixing clause by showing the patent is invalid. And see Katzinger Co. v. Chicago Metallic Mfg Co., 329 U.S. 394, 67 S.Ct. 416, 91 L.Ed. 374; MacGregor v. Westinghouse Co., 329 U.S. 402, 67 S.Ct. 421, 91 L.Ed. 380. He also wrote for the Court in Scott Paper Co. v. Marcalus Mfg. Co., 326 U.S. 249, 66 S.Ct. 101, 90 L.Ed. 47, holding the estoppel did not bar the assignor of a patent from defending a suit for infringement of the assigned patent on the ground that the alleged infringing device was that of a prior-art expired patent.4 23 These decisions put the protection of the public interest in free enterprise above reward to the patentee. The limitations which they made on the estoppel doctrine represented an almost complete cycle back to the salutary teaching of Pope Mfg. Co. v. Gormully, 144 U.S. 224, 234, 12 S.Ct. 632, 636, 36 L.Ed. 414, that, 'It is as important to the public that competition should not be repressed by worthless patents, as that the patentee of a really valuable invention should be protected in his monopoly.' To estop the licensee from attacking the validity of patents is to forget that 'It is the public interest which is dominant in the patent system. Mercoid Corp. v. Mid-Continent Investment Co., supra, 320 U.S. at page 665, 64 S.Ct. at page 271. 24 It is said that if the purpose was to enlarge the monopoly of the patent—for example, through price fixing—then estoppel would not bar the licensee from challenging the validity of the patents. But what worse enlargement of monopoly is there than the attachment of a patent to an unpatentable article? When we consider the constitutional standard, what greater public harm than that is there in the patent system? It is only right and just that the licensee be allowed to challenge the validity of the patents. A great pooling of patents is made; and whole industries are knit together in the fashion of the unholy alliances revealed in United States v. Line Material Co., 333 U.S. 287, 68 S.Ct. 550, 92 L.Ed. 701, and United States v. Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. One who wants the use of one patent may have to take hundreds. The whole package may contain many patents that have been foisted on the public. No other person than the licensee will be interested enough to challenge them. He alone will be apt to see and understand the basis of their illegality. 25 The licensee protects the public interest in exposing invalid or expired patents and freeing the public of their toll. He should be allowed that privilege. He would beallowed it were the public interest considered the dominant one. Ridding the public of stale or specious patents is one way of serving the end of the progress of science. 26 We depart from a great tradition in this field (and see Graver Tank & Mfg. Co. v. Linde Air Products, 339 U.S. 605, 70 S.Ct. 854), when we affirm this judgment. 1 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; Mercoid v. Mid-Continent Investment Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376; B.B. Chemical Co. v. Ellis, 314 U.S. 495, 62 S.Ct. 406, 86 L.Ed. 367; Morton Salt Co. v. G.S. Suppiger Co., 314 U.S. 488, 778, 62 S.Ct. 402, 86 L.Ed. 363; Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 60 S.Ct. 618, 84 L.Ed. 852; Leitch Manufacturing Co. v. Barber Co., 302 U.S. 458, 58 S.Ct. 288, 82 L.Ed. 371; International Business Machines Corp. v. United States, 298 U.S. 131, 56 S.Ct. 701, 80 L.Ed. 1085; Carbice Corp. v. American Patents Development Corp., 283 U.S. 27, 51 S.Ct. 334, 75 L.Ed. 819; United Shoe Machinery Corp. v. United States, 258 U.S. 451, 42 S.Ct. 363, 66 L.Ed. 708; Motion Picture Patents Co. v. Universal Film Manufacturing Co., 243 U.S. 502, 37 S.Ct. 416, 61 L.Ed. 871, L.R.A.1917E, 1187, Ann.Cas.1918A, 959. 2 United Shoe Machinery Corp. v. United States, 258 U.S. 451, 42 S.Ct. 363, 66 L.Ed. 708; National Lockwasher Co. v. Garrett Co., 3 Cir., 137 F.2d 255; Radio Corp. of Amer. v. Lord, 3 Cir., 28 F.2d 257. 3 United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260. (Copyright 'Block-booking.') 4 'Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. * * *' Fed.Rules Civ.Proc. 56(e). 5 '* * * the royalty was to be measured by a percentage of the value of all gypsum products, patented or unpatented * * *.' 333 U.S. at page 389, 68 S.Ct. at page 539. 'Patents grant no privilege to their owners of organizing the use of those patents to monopolize an industry through price control, through royalties for the patents drawn from patent-free industry products and through regulation of distribution.' 333 U.S. at page 400, 68 S.Ct. at page 544. 6 In this view of the contract we need not concern ourselves with the controversy between counsel as to whether the transcript shows a factual dispute over the use of non-use of Hazeltine patents by petitioner in its products. 7 Hazeltine Research v. Admiral Corp., D.C., 87 F.Supp. 72, 79; H-P-M Development Corp. v. Watson-Stillman Co., D.C., 71 F.Supp. 906, 912; American Optical Co. v. New Jersey Optical Co., D.C., 58 F.Supp. 601, 606; Ohio Citizens Trust Co. v. Air-Way Electric Appliance Corp., D.C., 56 F.Supp. 1010, 1012; Cf. Pyrene Mfg. Co. v. Urquhart, D.C., 69 F.Supp. 555, 560; International Carbonic Engineering Co. v. Natural Carbonic Products, D.C., 57 F.Supp. 248, 251—253, affirmed, 9 Cir., 158 F.2d 285. At least one state court has reached this result. Hazeltine Research v. DeWald Radio Corp., 194 Misc. 81, 84 N.Y.S.2d 597, 603. 1 See Mr. Justice Story in Pennock v. Dialogue, 2 Pet. 1, 7 L.Ed. 327; Mr. Justice Daniel in Kendall v. Winsor, 21 How. 322, 16 L.Ed. 165; Mr. Justice Campbell in Winans v. Denmead, 15 How. 330, 344, 14 L.Ed. 717 (dissenting opinion). 2 See Hamilton, Patents and Free Enterprice, T.N.E.C. Monograph No. 31, 76th Cong., 3d Sess., pp. 62—70. 3 Mr. Justice Brandeis speaking for the Court in Carbice Corp. of America v. American Patents Corp., supra, 283 U.S. at page 32, 51 S.Ct. at page 335, said, 'If a monopoly could be so expanded, the owner of a patent for a product might conceivably monopolize the commerce in a large part of unpatented materials used in its manufacture. The owner of a patent for a machine might thereby secure a partial monopoly on the unpatented supplies consumed in its operation. The owner of a patent for a process might secure a partial monopoly on the unpatented material employed in it. The owner of the patent in suit might conceivably secure a limited monopoly for the supplying not only of solid carbon diozide, but also of the ice cream and other foods, as well as the cartons in which they are shipped. The attempt to limit the licensee to the use of unpatented materials purchased from the licensor is comparable to the attempt of a patentee to fix the price at which the patented article may be resold.' 4 In this case Chief Justice Stone emphasized the public interest at stake in allowing the challenge to the patent, 326 U.S. at page 256, 66 S.Ct. at page 104: 'By the force of the patent laws not only is the invention of a patent dedicated to the public upon its expiration, but the public thereby becomes entitled to share in the good will which the patentee has built up in the patented article or product through the enjoyment of his patent monopoly.'

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339 U.S. 841 70 S.Ct. 903 94 L.Ed. 1323 LYON, Superintendent of Banks of New Yorkv.SINGER. SINGER v. YOKOHAMA SPECIE BANK, LIMITED, et al. LYON, Superintendent of Banks of New York, v. BANQUE MELLIE IRAN. BANQUE MELLIE IRAN v. LYON, Superintendent of Banks of New York. Nos. 512, 527, 513, 528. Argued April 18—19, 1950. Decided June 5, 1950. Mr. Albert R. Connelly, New York City, for Singer. Mr. Edward Feldman, New York City, for Lyon, Superintendent of Banks, etc., et al. Mr. Allen T. Klots, New York City, for Banque Mellie Iran. Mr. James L. Morrisson, Washington D.C., for the United States, as amicus curiae by Special leave of Court. PER CURIAM. 1 Certiorari was granted in these cases to review federal issues respecting the administration of frozen alien property. 339 U.S. 902, 909, 70 S.Ct. 517, 518, 567, 569. 2 The cases arose from suits brought by claimants Singer and Mellie Iran to collect from a statutory bank liquidator claims allegedly entitled to a preference under New York Banking Law, McK.Consol. Laws, c. 2, § 606, arising from transactions with a Japanese corporation, blocked under Executive Orders Nos. 8389, 5 Fed.Reg. 1400; 8832, 6 Fed.Reg. 3715, 12 U.S.C.A. § 95a note. The New York Court of Appeals held that the transactions gave rise to a preferred claim in the liquidation but that payment by the liquidator must await specific licensing by the Alien Property Custodian of the transactions underlying the claims. Singer v. Yokohama Specie Bank, Ltd., 293 N.Y. 542, 58 N.E.2d 726; Id., 299 N.Y. 113, 85 N.E.2d 894; Banque Mellie Iran v. Yokohama Specie Bank, Ltd., 299 N.Y. 139, 85 N.E.2d 906. 3 Those opposed to the judgments urge that, as a matter of federal law, the freezing order prevented the creation of any claim recognizable under § 606 of the New York Banking Law. 4 Oral argument and study of the record have convinced us that the judgments of the New York Court of Appeals are not inconsistent with the First War Powers Act of 1941, § 301, 55 Stat. 839, 50 U.S.C.A.Appendix, § 616, or the above Executive Orders. We accept the New York court's determination that under New York law these claims arose from transactions in New York and were entitled to a preference. Since the New York court conditioned enforcement of the claims upon licensing by the Alien Property Custodian, federal control over alien property remains undiminished. Our decision in Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480, does not require a contrary conclusion. There the liquidator claimed title to frozen assets adversely to the Custodian, and sought to deny the Custodian's paramount power to vest the alien property in the United States. No such result follows from the New York court's judgments in the present cases. 5 Since we further agree that, at the time the New York judgments were entered, no licenses had been issued to these claimants, we affirm the judgments below. 6 Affirmed. 7 Mr. Justice FRANKFURTER is of the opinion that since the federal question in Nos. 513 and 528 has been eliminated by the license granted by the Director, Office of Alien Property, no jurisdiction to review remains in this Court. Therefore, the writs of certiorari in these two cases should be dismissed.

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339 U.S. 637 70 S.Ct. 851 94 L.Ed. 1149 McLAURINv.OKLAHOMA STATE REGENTS FOR HIGHER EDUCATION et al. No. 34. Argued April 3, 4, 1950. Decided June 5, 1950. Messrs. Amos T. Hall, Tulsa, Okl., Robert L. Carter, Washington, D.C., for appellant. Mr. Fred Hansen, Oklahoma City, Okl., for appellees. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 In this case, we are faced with the question whether a state may, after admitting a student to graduate instruction in its state university, afford him different treatment from other students solely because of his race. We decide only this issue; see Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848. 2 Appellant is a Negro citizen of Oklahoma. Possessing a Master's degree, he applied for admission to the University of Oklahoma in order to pursue studies and courses leading to a Doctorate in Education. At that time, his application was denied, solely because of his race. The school authorities were required to exclude him by the Oklahoma statutes, 70 Okl.Stat. (1941) §§ 455, 456, 457, which made it a misdemeanor to maintain or operate, teach or attend a school at which both whites and Negroes are enrolled or taught. Appellant filed a complaint requesting injunctive relief, alleging that the action of the school authorities and the statutes upon which their action was based were unconstitutional and deprived him of the equal protection of the laws. Citing our decisions in State of Missouri ex rel. Gaines v. Canada, 1938, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208, and Sipuel v. Board of Regents, 1948, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247, a statutory three-judge District Court held, 87 F.Supp. 526, that the State had a constitutional duty to provide him with the education he sought as soon as it provided that education for applicants of any other group. It further held that to the extent the Oklahoma statutes denied him admission they were unconstitutional and void. On the assumption, however, that the State would follow the constitutional mandate, the court refused to grant the injunction, retaining jurisdiction of the cause with full power to issue any necessary and proper orders to secure McLaurin the equal protection of the laws. 3 Following this decision, the Oklahoma legislature amended these statutes to permit the admission of Negroes to institutions of higher learning attended by white students, in cases where such institutions offered courses not available in the Negro schools. The amendment provided, however, that in such cases the program of instruction 'shall be given at such colleges or institutions of higher education upon a segregated basis.'1 Appellant was thereupon admitted to the University of Oklahoma Graduate School. In apparent conformity with the amendment, his admission was made subject to 'such rules and regulations as to segregation as the President of the University shall consider to afford Mr. G. W. McLaurin substantially equal educational opportunities as are afforded to other persons seeking the same education in the Graduate College,' a condition which does not appear to have been withdrawn. Thus he was required to sit apart at a designated desk in an anteroom adjoining the classroom; to sit at a designated desk on the mezzanine floor of the library, but not to use the desks in the regular reading room; and to sit at a designated table and to eat at a different time from the other students in the school cafeteria. 4 To remove these conditions, appellant filed a motion to modify the order and judgment of the District Court. That court held that such treatment did not violate the provisions of the Fourteenth Amendment and denied the motion. 87 F.Supp. 528. This appeal followed. 5 In the interval between the decision of the court below and the hearing in this Court, the treatment afforded appellant was altered. For some time, the section of the classroom in which appellant sat was surrounded by a rail on which there was a sign stating, 'Reserved For Colored,' but these have been removed. He is now assigned to a seat in the classroom in a row specified for colored students; he is assigned to a table in the library on the main floor; and he is permitted to eat at the same time in the cafeteria as other students, although here again he is assigned to a special table. 6 It is said that the separations imposed by the State in this case are in form merely nominal. McLaurin uses the same classroom, library and cafeteria as students of other races; there is no indication that the seats to which he is assigned in these rooms have any disadvantage of location. He may wait in line in the cafeteria and there stand and talk with his fellow students, but while he eats he must remain apart. 7 These restrictions were obviously imposed in order to comply, as nearly as could be, with the statutory requirements of Oklahoma. But they signify that the State, in administering the facilities it affords for professional and graduate study, sets McLaurin apart from the other students. The result is that appellant is handicapped in his pursuit of effective graduate instruction. Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession. 8 Our society grows increasingly complex, and our need for trained leaders increases correspondingly. Appellant's case represents, perhaps, the epitome of that need, for he is attempting to obtain an advanced degree in education, to become, by definition, a leader and trainer of others. Those who will come under his guidance and influence must be directly affected by the education he receives. Their own education and development will necessarily suffer to the extent that his training is unequal to that of his classmates. Stateimposed restrictions which produce such inequalities cannot be sustained. 9 It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar. Shelley v. Kraemer, 1948, 334 U.S. 1, 13-14, 68 S.Ct. 836, 842, 92 L.Ed. 1161, 3 A.L.R.2d 441. The removal of the state restrictions will not necessarily abate individual and group predilections, prejudices and choices. But at the very least, the state will not be depriving appellant of the opportunity to secure acceptance by his fellow students on his own merits. 10 We conclude that the conditions under which this appellant is required to receive his education deprive him of his personal and present right to the equal protection of the laws. See Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848. We hold that under these circumstances the Fourteenth Amendment precludes differences in treatment by the state based upon race. Appellant, having been admitted to a state-supported graduate school, must receive the same treatment at the hands of the state as students of other races. The judgment is reversed. 11 Reversed. 1 The amendment adds the following proviso to each of the sections relating to mixed schools: 'Provided, that the provisions of this Section shall not apply to programs of instruction leading to a particular degree given at State owned or operated colleges or institutions of higher education of this State established for and/or used by the white race, where such programs of instruction leading to a particular degree are not given at colleges or institutions of higher education of this State established for and/or used by the colored race; provided further, that said programs of instruction leading to a particular degree shall be given at such colleges or institutions of higher education upon a segregated basis.' 70 Okla.Stat.Ann. (1950) §§ 455, 456, 457. Segregated basis is defined as 'classroom instruction given in separate classrooms, or at separate times.' Id. § 455.

12

339 U.S. 799 70 S.Ct. 885 94 L.Ed. 1277 UNITED STATESv.KANSAS CITY LIFE INS. CO. No. 1. Reargued March 29, 1950. Decided June 5, 1950. Mr. Marvin J. Sonosky, Washington, D.C., for petitioner. Mr. Stanley Bassett, Kansas City, Mo., for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 The respondent, Kansas City Life Insurance Company, obtained judgment in the Court of Claims against the United States for $22,519.60, with interest from August 8, 1938. 109 Ct.Cl. 555, 74 F.Supp. 653. This sum was awarded as just compensation for the destruction of the agricultural value of respondent's farm land by the United States in artificially maintaining the Mississippi River in that vicinity continuously at ordinary high-water level. The land was not in any sense within the bed of the river. It was one and one-half miles from the river on a nonnavigable tributary creek. Its surface was a few feet above the ordinary high-water level of both the river and the creek. The United States, however, contended that because it maintained the river at this level in the interest of navigation it need not pay for the resulting destruction of the value of the respondent's land. We granted certiorari because of the importance of the constitutional questions raised. 334 U.S. 810, 68 S.Ct. 1016, 92 L.Ed. 1742. The case was argued at the 1948 Term and reargued at this Term. 2 Two principal issues are presented. The first is whether the United States, in the exercise of its power to regulate commerce, may raise a navigable stream to its ordinary high-water mark and maintain it continuously at that level in the interest of navigation, without liability for the effects of that change upon private property beyond the bed of the stream. If the United States may not do so, without such liability, we reach the other issue: Whether the resulting destruction of the agricultural value of the land affected, without actually overflowing it, is a taking of private property within the meaning of the Fifth Amendment to the Constitution of the United States. We decide both issues in favor of the respondent, the first in the negative, the second in the affirmative. 3 The material facts found by the court below include the following: 4 Respondent is the owner of 1,710 acres of farm land in Missouri, having an elevation of 422.7 to 428 feet above sea level. The land borders on Dardenne Creek, a nonnavigable tributary entering the navigable Mississippi River one and one-half miles below the farm. The agricultural value of the land has been largely destroyed by the construction and operation by the United States of Lock and Dam No. 26 on the Mississippi at Alton, Illinois, 25 Miles below Dardenne Creek. The United States has operated this dam since August 8, 1938, as part of a system of river improvements to provide a navigable channel in the Mississippi between Minneapolis and the mouth of the Missouri.1 The effect of the dam has been to raise the level of the Mississippi at the mouth of Dardenne Creek to a permanent stage of 420.4 feet above sea level. This was its previously ascertained ordinary high-water mark. 5 Before the effect of the dam was felt, the respondent's land drained adequately through its subsoil and a simple system of ditches and pipes emptying into the creek.2 It was highly productive. When, however, the dam raised the river and the creek to 420.4 feet and maintained the water continuously at that level, this destroyed the agricultural value of the respondent's land at surface elevations between 423.5 and 425 feet.3 The damage was caused by the underflowing of the land.4 This undersurface invasion was substantially as destructive as if the land had been submerged. The water table was raised both by the percolation of the water which rose and fell with the river and by the resulting blockade of the drainage of the land's surface and subsurface water.5 The reduction of $22,519.60 in the market value of the land is not disputed. 6 It is well settled that, under the Commerce Clause, U.S.Const. Art. I, § 8, Cl. 3, the United States has the power to improve its navigable waters in the interest of navigation without liability for damages resulting to private property within the bed of the navigable stream. 7 'The dominant power of the federal Government, as has been repeatedly held, extends to the entire bed of a stream, which includes the lands below ordinary high water mark. The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. (Citing cases.) The damage sustained results not from a taking of the riparian owner's property in the stream bed, but from the lawful exercise of a power to which that property has always been subject.' United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 596—597, 61 S.Ct. 772, 775, 85 L.Ed. 1064.6 8 The ordinary high-water mark has been accepted as the limit of the bed of the stream. In United States v. Willow River Power Co., 324 U.S. 499, 509, 65 S.Ct. 761, 767, 89 L.Ed. 1101, where compensation was denied, this Court said: 'High-water mark bounds the bed of the river. Lands above it are fast lands and to flood them is a taking for which compensation must be paid. But the award here does not purport to compensate a flooding of fast lands or impairment of their value. Lands below that level are subject always to a dominant servitude in the interests of navigation and its exercise calls for no compensation.' 9 These cases point the way to our decision in the instant case. In the Chicago case, supra, the United States instituted condemnation proceedings to acquire the right to back the waters of the Mississippi over a right of way and against an embankment owned by the respondent railroad and telegraph companies. The precise issue was the Government's liability for damage done to that embankment by raising the waters of the river to and above their ordinary high-water mark. The respondents contended that the damage even to that part of the embankment which stood on land within the bed of the river was compensable and the Court of Appeals so held. 8 Cir., 113 F.2d 919. This Court reversed that judgment for the reason that all land within the bed of a navigable stream is subject to a servitude in favor of the United States, relieving it from liability for damages to such land resulting from governmental action in the interest of navigation. In addition, this Court remanded the case for determination of the disputed claim of the respondents that three other segments of their embankment were on land which was above the ordinary high-water mark of the river and that two of those segments abutted not on the Mississippi River but on a nonnavigable tributary. 312 U.S. at page 599, 61 S.Ct. at page 776, 85 L.Ed. 1064. The order to determine that question indicates that the basis of the decision was that the navigation servitude does not extend to land beyond the bed of the navigable river. 10 The opinion in the Chicago case also sheds light upon the earlier cases. It limits the decisions in United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539, and United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746, so that they do not conflict with the Government's dominant servitude when it is applied to the bed of a navigable stream. In the Kelly case, which is reported with the Cress case, the land in question was on a nonnavigable tributary of the navigable Kentucky River. The Government's dam raised the waters of the river which, in turn, raised those of the tributary across which Kelly had built a mill dam. This Court upheld the judgment requiring the United States to pay Kelly for the loss of his power head at his mill which resulted from this change in the level of the tributary. Similarly, in the Cress case itself, this Court assumed that a tributary of the Cumberland River was not navigable. It then allowed recovery for the destruction of the value of the land and of a ford across the tributary. All of this destruction was caused by the Government's dam on the river but was done at points beyond the bed of that river. In the Chicago case, this Court's view of the Cress decision was expressed as follows: 11 'What was said in the Cress case must be confined to the facts there disclosed. In that case, the Government's improvement in a navigable stream resulted in the flooding of the plaintiffs' land in and adjacent to a non-navigable stream. The owners of the land along and under the bed of the (non-navigable) stream were held entitled to compensation for the damage to their lands. The question here presented was not discussed in the opinion.' 312 U.S. at page 597, 61 S.Ct. at page 775, 85 L.Ed. 1064. 12 The extent of the Government's paramount power over the bed of navigable streams was further clarified in United States v. Willow River Power Co., supra. The respondent there claimed compensation for the reduction of a power head which reduction was caused by a Government dam which raised the level of the navigable river into which the respondent dropped the water from its dam built on a nonnavigable tributary. Compensation was denied on the ground that because the loss of power of the respondent occurred within the bed of the navigable river, such loss was covered by the Government's dominant power to change the river's level in the interest of navigation. This Court said: 13 'We are of opinion that the Cress case does not govern this one and that there is no warrant for applying it, as the claimant asks, or for overruling it, as the Government intimates would be desirable. * * * In the former case the navigation interest was held not to be a dominant one at the property damaged; here dominance of the navigation interest at the St. Croix (the navigable river) is clear.' 324 U.S. at page 506, 65 S.Ct. at page 766, 89 L.Ed. 1101. 14 It is not the broad constitutional power to regulate commerce, but rather the servitude derived from that power and narrower in scope, that frees the Government from liability in these cases. When the Government exercises this servitude, it is exercising its paramount power in the interest of navigation, rather than taking the private property of anyone. The owner's use of property riparian to a navigable stream long has been limited by the right of the public to use the stream in the interest of navigation. See Gould on Waters, c. IV, §§ 86—90 (1883); I Farnham, Waters and Water Rights, c. III, § 29 (1904). This has applied to the stream and to the land submerged by the stream. There thus has been ample notice over the years that such property is subject to a dominant public interest. This right of the public has crystallized in terms of a servitude over the bed of the stream. The relevance of the high-water level of the navigable stream is that it marks its bed. Accordingly, it is consistent with the history and reason of the rule to deny compensation where the claimant's private title is burdened with this servitude but to award compensation where his title is not so burdened.7 15 The next question is whether or not the Government's destruction of the agricultural value of the respondent's land in this case amounted to a taking of private property for public use within the meaning of the Fifth Amendment. 16 This case comes within the principle that the destruction of privately owned land by flooding is 'a taking' to the extent of the destruction caused. The decisions in Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557; United States v. Lynah, supra; United States v. Williams, 188 U.S. 485, 23 S.Ct. 363, 47 L.Ed. 554, and same case, C.C., 104 F. 50, 53; United States v. Welch, 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787, 28 L.R.A.,N.S., 385, 19 Ann.Cas. 680; and United States v. Cress, supra, illustrate the development of that principle.8 Although they have been limited by later decisions in some respects, the above cases have been accepted and followed in this respect. United States v. Chicago, M., St. P. & P.R. Co., supra, 312 U.S. at pages 597—598, 61 S.Ct. at pages 775, 776;9 United States v. Commodore Park, Inc., 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017; United States v. Willow River Power Co., supra; and see United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206. 17 The findings in the instant case show that the land was permanently invaded by the percolation of the waters from both the river and its tributary. The percolation raised the water table and soaked the land sufficiently to destroy its agricultural value. The continuous presence of this raised water table also blocked the drainage of the surface and subsurface water in a manner which helped to destroy the productivity of the land.10 Whether the prevention of the use of the land for agricultural purposes was due to its invasion by water from above or from below, it was equally effective. The destruction of land value, without some actual invasion of the land and solely by preventing the escape of its own surface water, is not before us. Even such a situation would come within the Cress case if it were established under Missouri law that the owner of land on a nonnavigable stream has a right to the unobstructed drainage of that land.11 18 One point remains. The Government contends that the findings of the court below do not properly describe the interest taken. That court found: 19 '29. The privilege exercised by the Government, for which the plaintiff is given compensation in this suit, is the privilege of permanently maintaining Lock and Dam No. 26 at their present height, and operating them in such a manner as to fulfill the purposes of their construction and other purposes which may develop in the future and do not greatly vary from present purposes.' 109 Ct.Cl. at page 572. 20 The above statement, read in its context, permits the United States to maintain the level of the river and its tributary at 420.4 feet above sea level with the effect on the respondent's land that has been described. This meets the requirements for a valid description of the interest taken as indicated in United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206. 21 The judgment of the Court of Claims accordingly is affirmed. 22 Affirmed. 23 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK, Mr. Justice REED, and Mr. Justice MINTON, concur, dissenting. 24 What respondent here purports to claim is a property right in the unfettered flow of Dardenne Creek in its natural state. But what respondent in substance claims is a property right in the unfettered flow of the Mississippi in its natural state. The two are necessarily the same, for water seeks its own level. No such right accrues to one who owns the shore and bed of the great river, until that river is raised above high-water mark. And we think that one who is riparian to a tributary has no greater claim upon the flow of the Mississippi. For this Court has held it to be 'inconceivable' that 'the running water in a great navigable stream is capable of private ownership.' United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 69, 33 S.Ct. 667, 674, 57 L.Ed. 1063. It would be incongruous to deny compensation to owners adjacent to navigable rivers and require it for others bordering their tributaries for like injuries caused by the single act of lifting the river's mean level to the high-water mark. Because water seeks its own level, raising the level of the river necessarily raises that of the tributary at their conjunction and as far upstream on each as the effects of the lifting may go. These facts are equally apparent to both types of owners. We think they should be anticipated by both, and that the one has no more power to obstruct or burden the power of Congress in its control of the river's bed in the interest of navigation than the other. Neither has any greater right to have the river flow in its natural state than the other. 25 Basically the problem in this case is to locate a workable and reasonable boundary between Congress' power to control navigation in the public interest and the rights of landowners adjacent to navigable streams and their tributaries to compensation for injuries flowing from the exercise of that power. The Constitution does not require compensation for all injuries inflicted by the exercise of Congress' power. Neither is the power unlimited. The line therefore must be drawn in accommodation of the two interests. This could be done, as it was in United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746, by allowing compensation for all injuries inflicted by any change in the natural level and flow of the stream; it can be done, as in United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 61 S.Ct. 772, 85 L.Ed. 1064 and United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101, by allowing change in the natural flow to the extent of lifting the mean level to high-water mark without liability for constitutional compensation; it could be done by applying the latter rule to owners riparian to the navigable stream, the former to those riparian to nonnavigable tributaries. 26 There is no sound reason for treating the two types of owners differently. Congress has power to regulate commerce by raising the level of a navigable stream to high-water mark without liability for compensation to any riparian owner. The effect upon the riparian owner of the river's tributaries, whether navigable or nonnavigable, is the same as that upon the owner riparian to the river itself. So is the congressional power and the dominant servitude. In this view no vested private right is given to anyone, as against the public Mr. Justice MINTON, dissenting. 27 I agree with all that Mr. Justice DOUGLAS says in his dissent, but I would for an additional reason reverse this case. The waters interfered with here were surface and percolating or subsurface waters. Respondent had always enjoyed the economic advantage of having its surface and subsurface water drain into Dardenne Creek. The raising of the water level in the Mississippi has interfered with this advantage. But surface and subsurface waters are outlaws in Missouri, as at common law, and anyone may defend against them and interfere with their natural drainage.1 No right exists under Missouri law to have surface or subsurface water flow naturally onto adjoining land. Landowners may build embankments, dykes, or other obstructions to stop the flow of surface water upon their land. Although it appears that under Missouri law a riparian owner may not dam a watercourse so that it is obstructed or the lands of another are flooded,2 no authority has been brought to my attention which would indicate that the obstruction of drainage by raising the water level of a stream confers a cause of action. I had not supposed that just compensation requires the Government to pay for that which a riparian owner may freely do under state law. The Government, by interfering with the drainage into Dardenne Creek, is not 'taking' any 'right' of respondent. 28 '* * * not all economic interests are 'property rights'; only those economic advantages are 'rights' which have the law back of them, and only when they are so recognized may courts compel others to forbear from interfering with them or to compensate for their invasion.' United States v. Willow River Power Co., 324 U.S. 499, 502, 65 S.Ct. 761, 764, 89 L.Ed. 1101. 29 Since the United States may with impunity cause land lying within the bed of the stream to be overflowed as a superior right to control navigation, and since respondent has no right to the unhampered drainage of surface and subsurface water, it follows that the Government has taken no right of respondent. Therefore it is not bound to pay compensation. It would be anomalous indeed that while the Government may flood lands lying between highand low-water marks without paying compensation, it is liable for an interference with drainage of surface water by raising the water level to high-water mark. I would reverse the judgment. 1 46 Stat. 918, 927; 49 Stat. 1028, 1034. As to the same system of improvement, see United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064. 2 Before August 8, 1938, during about 75% of each year, the river did not exceed a stage of 419.6 feet at Dardenne Creek. From 1930 to 1937, between June 21 and September 21, it averaged 413.9 feet. For several months at the beginning and end of a year, its stage was 410 feet or less. The bed of the creek at respondent's farm was 410 to 413 feet above sea level. The water in the creek created a stage of 412 to 416 feet. 3 Although, as stated in the text, the Mississippi River, at 420.4 feet, destroyed the agricultural value of certain parts of the respondent's land, it did not perceptibly change the value of the respondent's wet land below 423.5 feet or of its dry land above 425 feet. No compensation was allowed for the 602.04 acres so located. 4 The court below made extended findings as to the expectation of the Army Engineers that damages, comparable to those which did occur, would result to respondent's land. The Engineers recommended that the United States purchase the land. House Committee on Rivers and Harbors, Doc. No. 34, 73d Cong., 2d Sess. (1934), and House Committee on Rivers and Harbors, Doc. No. 34, 75th Cong., 1st Sess. 14, 55—56 (1937). The project was authorized by Congress and power to condemn the land was given to the Secretary of War August 26, 1937, 50 Stat. 844, 848. However, the court below concluded correctly that— 'The Government did not, in fact, purchase or acquire by eminent domain a portion of the plaintiff's land, as the Army Engineers had recommended, or ditch and tile another portion, as they had recommended. It just went ahead and built its lock and dam. The plaintiff still owns its land. We think that the legislation quoted above, while it might have constituted an authorization to acquire some of the plaintiff's land by eminent domain, and to spend money in tiling and ditching another part of it, does not constitute a Congressional waiver of immunity from suit or confession of liability for the consequences of building the dam.' 109 Ct.Cl. at page 574, 74 F.Supp. at page 654. 'See Mitchell v. United States, 267 U.S. 341, 345, 45 S.Ct. 293, 294, 69 L.Ed. 644; United States v. Alexander, 148 U.S. 186, 188—190, 13 S.Ct. 529, 530, 37 L.Ed. 415. 5 The Court of Claims found that— '16. Underneath the clay soil on plaintiff's land, there is a stratum of waterbearing sand, the top elevation of which varies from 412 to 414 feet above mean sea level. The water in the sand is affected by the rise and fall of the Mississippi River and the water table under the land rises and falls in response to high or low water conditions in the river. The water level in the underground strata is also affected by rainfall on the land, because the sand stratum acts as a reservoir for water which drains vertically from the surface of the ground. '18. The average pool elevation which has been maintained at the mouth of Dardenne Creek by operation of Dam 26 is 420.4 feet, and the elevation of the water in Dardenne Creek adjacent to plaintiff's farm has been raised from six to seven feet above the previous normal level. As a result of the operation of the dam, the surface of the water in the creek has been raised so that the creek water now backs into some of the outlet pipes in the plaintiff's levee, thereby obstructing and delaying the drainage of surface water from plaintiff's land. In addition, by maintaining the surface of the water in the creek to an elevation of 420 feet or more above sea level, the drainage of the underground water from a large portion of the plaintiff's farm has been almost entirely shut off. Prior to the construction of the dam this underground water drained through the sand strata under the land into the creek, which was normally only 2 or 3 feet deep at that time. '19. * * * Since the dam has been in operation, the conditions and the period of time, formerly available for draining the land and drying the soil, no longer exist. '20. As a result of the river stage being controlled by the operation of the dam, the water table under plaintiff's land is from four to five feet higher than it was during the low stages of the Mississippi prior to the erection of the dam. Under controlled river conditions the water table beneath plaintiff's land has been raised to an elevation varying from 420.5 feet to 422 feet, or an average of from one to two feet higher than the controlled river stage at Dixon's Landing. (The elevation of the river at Dixon's Landing was about the same as at the mouth of Dardenne Creek.) The drainage of the underground water from beneath a large area of plaintiff's land has almost ceased. On some portions of the land, vertical drainage from the surface to the underlying sand stratum has been cut off and on other portions it has been greatly retarded as a result of the increased height of the water table. '21. The effects of the operation of the dam became apparent within a short time after the full pool stage was obtained on August 8, 1938. After a rain, the surface of the soil dried out much more slowly than before and the drainage ditches did not carry off the water as readily. Excessive moisture was retained in the soil and the planting of crops was delayed. Even when the surface appeared to be dry, the ground underneath was wet and would not support tractors and other farm machinery, which became mired down and had to cease operations. Seed planted on some portions of the land failed to germinate and would rot. It was not possible to follow a proper crop rotation program. Because the soil was often too wet for planting some crops, it was necessary to substitute other crops which mature in a shorter time.' 109 Ct.Cl. at pages 565—569. In its opinion, the Court of Claims concluded that— 'The construction of Lock and Dam No. 26 raised the level of the water in the river and the creek, when the pool behind the dam was filled in 1938, to 420.4 feet above mean sea level, which was approximately the altitude of ordinary high water level before the construction of the lock and dam. We have found that the consequence of this raising of the water level in the creek has been to shut off the flow of some of the tubes leading through the levee and thereby prevent the surface water from draining off some of the land. A more serious consequence, however, has been that it has prevented water in the strata underneath the plaintiff's land from draining away, thus keeping the underground water within one, two, or three feet from the surface of different portions of the plaintiff's land, thereby impairing its value for farming.' Id. 109 Ct.Cl. at page 573, 74 F.Supp. at page 653. 6 Willink v. United States, 240 U.S. 572, 36 S.Ct. 422, 60 L.Ed. 808; Greenleaf Johnson Lumber Co. v. Garrison, 237 U.S. 251, 35 S.Ct. 551, 59 L.Ed. 939; Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U.S. 82, 33 S.Ct. 679, 57 L.Ed. 1083. Loss of access to a navigable stream is not compensable. Scranton v. Wheeler, 179 U.S. 141, 21 S.Ct. 48, 45 L.Ed. 126; Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996. See, also, United States v. Commodore Park, Inc., 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017. A change in the flow of a navigable stream does not deprive the private user of that stream, for power purposes, of a compensable right. United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101; United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063. 7 This is clearly illustrated in United States v. Chicago, M., st. P. & P.R. Co., supra. The United States raised the level of the navigable river above its ordinary high-water mark. This Court then declined to allow compensation for the damage caused to the segment of the respondent's embankment which concededly was located on land within the bed of the river. On the other hand, the lower court awarded compensation for the damage done to such segments of the embankment as concededly were on land above the bed of the river. No appeal was taken from that award. Finally, as to three other segments with regard to which there was a disagreement as to whether or not they were on land within the bed of the river, this Court remanded the case to the District Court to resolve that factual issue. 8 In interpreting a like provision in the Constitution of Wisconsin, this Court held that continuous flooding amounted to a taking of the land flooded. It said: '* * * it remains true that where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound principle.' Pumpelly v. Green Bay Co., supra, 13 Wall. at page 181, 20 L.Ed. 557. The above case was quoted with approval in Scranton v. Wheeler, 179 U.S. 141, 154, 21 S.Ct. 48, 53, 45 L.Ed. 126, and in United States v. Lynah, supra, 188 U.S. at page 469, 23 S.Ct. at page 356, 47 L.Ed. 539. The last named case involved seepage, percolation and some flooding which turned the land into a bog. In the Cress case, after discussing and approving the reasoning in the Green Bay and Lynah cases, the Court said: 'There is no difference of kind, but only of degree, between a permanent condition of continual overflow by back-water and a permanent liability to intermittent but inevitably recurring overflows; and, on principle, the right to compensation must arise in the one case as in the other. If any substantial enjoyment of the land still remains to the owner, it may be treated as a partial instead of a total divesting of his property in the land. The taking by condemnation of an interest less than the fee is familiar in the law of eminent domain.' 243 U.S. at pages 328—329, 37 S.Ct. at page 385, 61 L.Ed. 746. 9 In the Chicago case this Court overruled the Lynah case, supra, insofar as it upheld compensation 'for injury or destruction of a riparian owner's property located in the bed of a navigable stream.' 312 U.S. at page 598, 61 S.Ct. at page 776, 85 L.Ed. 1064. The Court, however, expressly mentioned that case as an authority on the point that the flooding of land, as there done, amounted to a compensable taking of it. 10 See note 5, supra. 11 Based upon the law of Kentucky, upholding the right of a landowner on a nonnavigable creek to have the benefit of the unobstructed flow of that creek, this Court allowed the landowner compensation in the Kelly case, which is reported with the Cress case. The Court there said: 'The right to have the water flow away from the mill-dam unobstructed, except as in the course of nature, is not a mere easement or appurtenance, but exists by the law of nature as an inseparable part of the land.' 243 U.S. at page 330, 37 S.Ct. at page 386, 61 L.Ed. 746. Although the court below reached no express conclusion on the right of respondent to drain its land into Dardenne Creek, there is no indication that such drainage was not a lawful incident of the property ownership. Under Missouri law, the owner of land bordering on a nonnavigable stream has title to the bed of the stream to its center, unless the instruments of title show a contrary intent. Brown v. Wilson, 348 Mo. 658, 665, 155 S.W.2d 176, 179. Also, a downstream riparian owner has no right to dam the stream so as to cause it to accumulate water and flow it back on the land of upstream riparian owners. Keener v. Sharp, 341 Mo. 1192, 111 S.W.2d 118, and see Greisinger v. Klinhardt, 321 Mo. 186, 193, 9 S.W.2d 978, 980—981. 1 See, e.g., Goll v. Chicago & A.R. Co., 271 Mo. 655, 197 S.W. 244; Johnson v. Leazenby, 202 Mo.App. 232, 216 S.W. 49; Mehonray v. Foster, 132 Mo.App. 229, 111 S.W. 882; Applegate v. Franklin, 109 Mo.App. 293, 84 S.W. 347; Gottenetroeter v. Kapplemann, 83 Mo.App. 290; Collier v. Chicago & A.R. Co., 48 Mo.App. 398. 2 See Keener v. Sharp, 341 Mo. 1192, 111 S.W.2d 118; Greisinger v. Klinhardt, 321 Mo. 186, 9 S.W.2d 978; Springfield Waterworks Co. v. Jenkins, 62 Mo.App. 74.

34

339 U.S. 844 70 S.Ct. 954 94 L.Ed. 1326 ROBERTSv.UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA et al. No. 2, Misc. Argued March 31, 1950. Decided June 5, 1950. Mr. Max Radin, for petitioner. No appearance for respondent. PER CURIAM. 1 Petitioner, who is confined in a California state prison, sought to file a petition in forma pauperis for a writ of injunction in the District Court below. That court denied leave to proceed in forma pauperis, holding that petitioner was not entitled to the benefits of 28 U.S.C. § 1915, 28 U.S.C.A. § 1915, because he was no longer a 'citizen' as required by that section. The District Court reached that decision in reliance on California Penal Code, § 2600, which provides that one sentenced to imprisonment for a term of years is deprived of his civil rights for the period of imprisonment. The decision of the District Court is in error. Citizenship for the purpose of in forma pauperis proceedings in the federal courts is solely a matter of federal law. Congress has not specified criminal convictions, except for desertion and treason, as grounds for loss of citizenship. 8 U.S.C. § 801, 8 U.S.C.A. § 801. 2 Petitioner thereafter filed a motion in the Court of Appeals for the Ninth Circuit for allowance of an appeal from the order of the District Court. The denial by a District Judge of a motion to proceed in forma pauperis is an appealable order. 28 U.S.C. § 1291, 28 U.S.C.A. § 1291; see Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528. The Court of Appeals, however, held that it had 'no power to grant an application for allowance of an appeal,' and dismissed the petition. 3 Finally, petitioner filed in this Court a motion for leave to file a petition for a writ of mandamus to the District Court. Mandamus is an extraordinary remedy, available only in rare cases. Ex parte Collett, 1949, 337 U.S. 55, 72, 69 S.Ct. 944, 953, 93 L.Ed. 1207, 10 A.L.R.2d 921, and cases there cited. Because of the ambiguous state of this record, and the fact that a denial of this motion will not prejudice petitioner in further attempts to proceed in forma pauperis, the motion must be denied. It is so ordered. 4 Motion denied. 5 Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.

12

339 U.S. 619 70 S.Ct. 905 94 L.Ed. 1108 COMMISSIONER OF INTERNAL REVENUEv.KORELL. No. 384. Argued Feb. 7, 1950. Decided June 5, 1950. Mr. Arnold Raum, Washington D.C., for petitioner. Mr. Paul L. Peyton, New York City, for respondent. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 The tax consequences of a purchase of convertible bonds are in issue here. In August, 1944, respondent, an individual taxpayer, purchased certain American Telephone and Telegraph Company bonds, each having a face value of $100, at a premium price averaging slightly in excess of $121. Each bond was convertible into a share of common stock, at the option of the bondholder, upon the payment of $40. The market price of the stock was over $163 when respondent made his bond purchases. The bonds were callable prior to maturity date according to a schedule appearing in the indenture; had the corporation given appropriate notice at the dates of respondent's purchase, the bonds would have been redeemed at $104. 2 In his 1944 income tax return, respondent claimed a deduction in excess of $8,600 for amortizable bond premium. He computed his deduction on each bond as the difference between his purchase price, $121, and the call price, $104. This computation is concededly correct if the deduction is allowable. The Commissioner of Internal Revenue, petitioner here, refused to allow any such deduction. His theory was that § 125 of the Internal Revenue Code, 26 U.S.C.A. § 125, establishing the deduction for 'amortizable bond premium' did not include premium paid for the conversion privilege. A contrary view of the statute was adopted by the Tax Court. 1948, 10 T.C. 1001. The court below affirmed, holding that respondent was entitled to the amortization deduction. 1949, 176 F.2d 152. We granted certiorari, 1949, 338 U.S. 890, 70 S.Ct. 241, to resolve the conflict between the decision below and that of the Court of Appeals for the Ninth Circuit in Commissioner of Internal Revenue v. Shoong, 1949, 177 F.2d 131. 3 Prior to 1942, bond premium was irrelevant for tax purposes. Whether or not the purchase price exceeded the face value of the bond, the holder considered the full price as the basis for capital gain or loss, and reported all taxable interest received as income.1 In presenting its 1942 tax proposals, however, the Treasury adopted the view that each receipt of interest is not entirely income but is partially a restoration of capital. Its spokesman pointed to the consequent discrimination against holders of taxable bonds: they were being taxed on a return of capital, while holders of tax-exempt bonds were not.2 To remedy this inequity, the Treasury recommendd that amortization of premium be permitted in the case of taxable bonds, and that the basis for capital gain or loss for all bonds be adjusted by the amount of deduction allowable for taxables and disallowable for tax-exempts. These recommendations were ultimately included in the Revenue Act of 1942, 56 Stat. 798, 822, as §§ 113 and 125 of the Internal Revenue Code, 26 U.S.C.A. §§ 113, 125. 4 Section 125 contains four subsections.3 In (a), the general rule is established, applicable 'In the case of any bond * * *,' that the deduction for amortizable bond premium may not be taken if the interest is tax-exempt, but may be if the bond interest is taxable. Taxpayers holding bonds in the latter category may elect whether or not to amortize in accordance with rules laid down in subsection (c). Subsection (b) defines the method of computing 'the amount of bond premium, in the case of the holder of any bond * * *.' Petitioner urges that this does not define the kind of bond premium which is amortizable; respondent contends that this provision establishes a mandatory computation applicable to any bond premium. Subsection (d) consists of a general definition of 'bond' and certain exceptions thereto, chiefly bonds held for sale or as stock in trade. That the securities purchased by respondent fall within the general definition and without the exceptions is undisputed. 5 There can be no doubt that the callability and convertibility of these bonds do not remove them from the reach of § 125. The role of such bonds was specifically brought into the congressional discussion by at least one witness at the hearings.4 And the Congress rendered unmistakably clear answers in the language of the Act, e.g., by express reference to 'earlier call date,' § 125(b)(1), and in both Committee Reports. 'The fact that a bond is callable or convertible into stock does not of itself prevent the application of this section. In the case of a callable bond, the earliest call date will, for the purposes of this section, be considered as the maturity date. Hence, the total premium is required to be spread over the period from the date as of which the basis of the bond is established down to the earliest call date, rather than down to the maturity date. In the case of a convertible bond, if the option to convert the bond into stock rests with the owner of the bond (as it did in this case), the bond is within the purview of this section.'5 The express decision of Congress to include the type of bonds purchased by respondent is of course binding on the courts. 6 Petitioner concedes that the bonds purchased by respondent are within the reach of § 125, but he urges that this case does not involve the kind of premium which Congress had in mind. The argument is that this premium was paid for the conversion privilege, whereas Congress intended to include only that premium (entitled 'true' premium by petitioner) which is paid for securing a higher rate of interest than the market average and for nothing else. We reject this argument as inapposite to the structure of the statute, unsupported by the legislative history and inconsistent with the normal use of the term 'bond premium.' 7 As Congress wrote the statute, the scope of 'bond premium' is adequately denoted by defining 'bond.' There was no need for Congress to qualify both words in order to make its meaning clear; 'premium' as an isolated term may not be defined in the statute nor explained in the legislative history, but 'premium' is never used in the statute apart from its mate 'bond.' No attempt to define and distinguish the reasons for paying premium mark the pertinent Treasury Regulations, 111, § 29.125. They mirror the structure of the statute and are constructed in terms of 'bonds.' Again, we note that the bonds here involved are without question embraced by the statute. 8 To be sure, Congress might have proceeded by defining 'premium' (and 'true' premium) rather than, or as well as 'bond.' But we cannot reject the clear and precise avenue of expression actually adopted by the Congress because in a particular case we may know, if the bonds are disposed of prior to our decision, that the public revenues would be maximized by adopting another statutory path. Congress was legislating for the generality of cases. It not only created a new deduction but also required that the basis be adjusted to the extent of the deduction allowable for taxables and disallowable for tax-exempts.6 The adjustment increased the revenue potential, for the lower basis obviously raised possible capital gain and lowered allowable capital loss. In the case of tax-exempt bonds, which had a total par value in 1942 of over 58.5 billion dollars,7 there was no allowable deduction to be set off against this new revenue potential. In the case of taxable bonds, whether the tax paid on capital gains will exceed the tax avoided by the deduction depends in each particular instance upon the uncertainties of market fluctuations and tax rates and the cluster of other factors which induces a bondholder to act and determines his tax in given years.8 These factors may combine in a specific case to produce an effect upon revenue which to some may appear too drastic for Congress to have intended. But there is nothing in this record to indicate that Congress or the Treasury anticipated that the total long-run effect of §§ 113 and 125 on the yield from both taxables and tax-exempts would be to decrease federal revenue. And even if Congress had expected that some loss of revenue would be entailed, it might have decided that more equal treatment of taxpayers was more important than possible revenue loss; it cannot be argued that Congress lacked the legislative discretion to have reached such a conclusion. If in practice these sections are causing such loss of revenue as to indicate that Congress may have erred in its balancing of the competing considerations involved, the amendment must obviously be enacted by the Congress and not the Commissioner of Internal Revenue or this Court. 9 The legislative history fails to intimate that Congress intended to confine the deduction to bonds the premium on which was paid for a higher-than-market interest rate. At most, petitioner's presentation of the legislative materials suggests that Congress may have had the bondholder who was seeking a higher interest rate primarily in mind; but it does not establish that Congress in fact legislated with reference to him exclusively.9 Congress, and the Treasury in advising Congress, may well have concluded that the best manner of affording him relief and correcting the inequitable treatment of bondholders whose interest receipts were taxable, was to define the scope of the amendment by reference to types of bonds rather than causes of premium payment. 10 As 'bond premium' is used by accountants and other writers in the securities field, it is any payment in addition to face value.10 There is no suggestion that the words have only a limited significance, echoing petitioner's 'true' premium, applicable solely to that extra price caused by the desire to obtain a higher than average interest yield. On the contrary, some authors have noted the variety of causes which induce the payment of bond premium, and the practical impossibility of disentangling and isolating them for the purpose of relative evaluation, as would be required if petitioner's reading of the statute were upheld.11 We adopt the view that 'bond premium' in § 125 means any extra payment, regardless of the reason therefor, in accordance with the firmly established principle of tax law that the ordinary meaning of terms is persuasive of their statutory meaning.12 11 We conclude that Congress made no distinctions based upon the inducements for paying the premium. Congress delimited the bond premium it wished to make amortizable in terms of categories of bonds, and there is no doubt that respondent purchased bonds which are included within the purview of § 125. Respondent is therefore entitled to this deduction and the judgment below is affirmed. 12 Affirmed. 13 Mr. Justice BLACK dissents. He believes that this case should be decided in accordance with, and for the reasons given by, the opinion of the Court of Appeals for the Ninth Circuit in Commissioner of Internal Revenue v. Shoong, 1949, 177 F.2d 131. 14 Mr. Justice DOUGLAS and Mr. Justice JACKSON took no part in the consideration or decision of this case. 1 New York Life Ins. Co. v. Edwards, 1926, 271 U.S. 109, 116, 46 S.Ct. 436, 437, 70 L.Ed. 859; cf. Old Colony R. Co. v. Commissioner of Internal Revenue, 1932, 284 U.S. 552, 561, 52 S.Ct. 211, 214, 76 L.Ed. 484. 2 Statement of Randolph Paul, then Tax Adviser to the Secretary of the Treasury and subsequently General Counsel of the Department, 1 Hearings before House Committee on Ways and Means on Revenue Revisions of 1942, 77th Cong., 2d Sess. 90 (1942). 3 Int.Rev.Code § 125, titled 'Amortizable bond premium,' reads as follows: '(a) General rule. In the case of any bond, as defined in subsection (d), the following rules shall apply to the amortizable bond premium (determined under subsection (b)) on the bond for any taxable year beginning after December 31, 1941: '(1) Interest wholly or partially taxable. In the case of a bond (other than a bond the interest on which is excludable from gross income), the amount of the amortizable bond premium for the taxable year shall be allowed as a deduction. '(2) Interest wholly tax-exempt. In the case of any bond the interest on which is excludable from gross income, no deduction shall be allowed for the amortizable bond premium for the taxable year. '(3) Adjustment of credit in case of interest partially tax-exempt. In the case of any bond the interest on which is allowable as a credit against net income, the credit provided in section 25(a)(1) or (2), or section 26(a), as the case may be, shall be reduced by the amount of the amortizable bond premium for the taxable year. '(For adjustment to basis on account of amortizable bond premium, see section 113(b)(1)(H).) (See note 6, post, 339 U.S. 625, 70 S.Ct. 908.) '(b) Amortizable bond premium. '(1) Amount of bond premium. For the purposes of paragraph (2), the amount of bond premium, in the case of the holder of any bond, shall be determined with reference to the amount of the basis (for determining loss on sale or exchange) of such bond, and with reference to the amount payable on maturity or on earlier call date, with adjustments proper to reflect unamortized bond premium with respect to the bond, for the period prior to the date as of which subsection (a) becomes applicable with respect to the taxpayer with respect to such bond. '(2) Amount amortizable. The amortizable bond premium of the taxable year shall be the amount of the bond premium attributable to such year. '(3) Method of determination. The determinations required under paragraphs (1) and (2) shall be made— '(A) in accordance with the method of amortizing bond premium regularly employed by the holder of the bond, if such method is reasonable; '(B) in all other cases, in accordance with regulations prescribing reasonable methods of amortizing bond premium, prescribed by the Commissioner with the approval of the Secretary. '(c) Election on taxable and partially taxable bonds. '(1) Eligibility to elect and bonds with respect to which election permitted. This section shall apply with respect to the following classes of taxpayers with respect to the following classes of bonds only if the taxpayer has elected to have this section apply. * * * '(d) Definition of bond. As used in this section, the term 'bond' means any bond, debenture, note, or certificate or other evidence of indebtedness, issued by any corporation and bearing interest (including any like obligation issued by a government or political subdivision thereof), with interest coupons or in registered form, but does not include any such obligation which constitutes stock in trade of the taxpayer or any such obligation of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or any such obligation held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business.' 4 See statement of Roy C. Osgood, 2 Hearings before Senate Committee on Finance on H.R. 7378, 77th Cong., 2d Sess. 1728—29 (1942). 5 H.R.Rep.No.2333, 77th Cong., 2d Sess. 80 (1942). Precisely the same language appears in S.Rep.No.1631, 77th Cong., 2d Sess. 94 (1942). U.S. Treas. Reg. 111, § 29.125—5, is of identical tenor. 6 Int.Rev.Code § 113(b)(1) provides that 'Proper adjustment in respect of the property shall in all cases be made * * * (H) in the case of any bond (as defined in section 125) the interest on which is wholly exempt from the tax imposed by this chapter, to the extent of the amortizable bond premium disallowable as a deduction pursuant to section 125(a)(2), and in the case of any other bond (as defined in such section) to the extent of the deductions allowable pursuant to section 125(a)(1) with respect thereto.' See note 3, ante, 339 U.S. 621, 70 S.Ct. 906, for the text of § 125. 7 Of this amount, 25.5 billion was wholly, and 33.0 billion partially tax-exempt. Statistical Abstract of the United States 372 (1948). 8 In this case, the record does not disclose how petitioner disposed of the bonds. If for some reason he had sold them after six months at a price above 138, his capital gain would have exceeded the deduction he took on the bond premium. This possibility is not merely theoretical, for the bonds in fact stood above 138 for over a year, starting in August, 1945. 9 Petitioner cites H.R.Rep.No.2333, 77th Cong., 2d Sess. 47 (1942), and the statements of John O'Brien, 1 Hearings before Senate Committee on Finance on H.R. 7378, 77th Cong., 2d Sess. 52 (1942), and Randolph Paul, 1 Hearings before House Committee on Ways and Means on Revenue Revision of 1942, 77th Cong., 2d Sess., 90 (1942). None of these can be taken as a clear statement excluding premium reflecting financial inducements other than the interest rate. 10 E.g., 'When bonds sell at a price greater than par, they are said to sell at a premium * * *.' Financial Handbook 1210 (3d ed. 1948); '* * * bond premium—the amount by which issue price, or cost at later date, exceeds maturity value * * *.' Paton, Advanced Accounting 197 (1941); Grossman, Investment Principles and Practice 14 (1939); Noble, Accounting Principles 447 (4th ed. 1945). And see Old Colony R. Co. v. Commissioner of Internal Revenue, 1932, 284 U.S. 552, 555, 52 S.Ct. 211, 212, 76 L.Ed. 484; New York Life Ins. Co. v. Edwards, 1926, 271 U.S. 109, 116, 46 S.Ct. 436, 437, 70 L.Ed. 859; 4 Bogert, Trusts and Trustees, Part 1, 1935, § 831; 2 Scott on Trusts, § 239.2 (1939). 11 See, e.g., 1 Dewing, Financial Policy of Corporations 662 (4th ed. 1941); Saliers and Holmes, Basic Accounting Principles 509 (1937); 4 Bogert, Trusts and Trustees, Part 1, 1935, § 831, page 319; 2 Scott on Trusts 1337 (1939); Williams, Are Convertibles Now Attractive? 83 Mag. of Wall St. 134 (1948). 12 Crane v. Commissioner of Internal Revenue, 1947, 331 U.S. 1, 6—7, 67 S.Ct. 1947, 1050, 1051, 91 L.Ed. 1301; Helvering v. William Flaccus Oak Leather Co., 1941, 313 U.S. 247, 249, 61 S.Ct. 878, 879, 85 L.Ed. 1310; Helvering v. San Joaquin Fruit & Investment Co., 1936, 297 U.S. 496, 499, 56 S.Ct. 569, 570, 80 L.Ed. 824; Lang v. Commissioner of Internal Revenue, 1933, 289 U.S. 109, 111, 53 S.Ct. 534, 535, 77 L.Ed. 1066; cf. Atlantic Coast Line R. Co. v. Phillips, 1947, 332 U.S. 168, 171, 67 S.Ct. 1584, 1586, 91 L.Ed. 1977.

1112

339 U.S. 684 70 S.Ct. 861 94 L.Ed. 1206 SWIFT & CO. PACKERS et al.v.COMPANIA COLOMBIANA DEL CARIBE, S.A. No. 230. Argued Dec. 14—15, 1949. Decided June 5, 1950. Mr. Eberhard P. Deutsch, New Orleans, La., for petitioners. Mr. Nicholas J. Healy, 3d, New York City, for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 The question before us is the propriety of an order of the District Court for the Canal Zone vacating a foreign attachment of a vessel made in a libel in personam. We granted certiorari because important questions relating to the scope of admiralty jurisdiction and its exercise are in issue. 338 U.S. 813, 70 S.Ct. 76. 2 On March 7, 1948, the libel was filed against Compania Transmaritima Colombiana, S.A., a Colombian corporation, by Swift & Company Packers, a Nevada corporation, certain Cuban corporations and individuals, and a Colombian citizen. They brought the libel as owners of rice shipped from Ecuador to Cuba. It was alleged that the cargo had been delivered in good order to the M/V Cali, owned and operated by Transmaritima, and that the vessel had sunk, or partially sunk, off the island of Grand Cayman with resulting nondelivery of the cargo. This was supplemented by allegations of negligence. Process was prayed with the further request that if the respondent could not be found its goods and chattels be attached, particularly a vessel known as the Alacran, or Caribe. This vessel was thereupon attached by the marshal. 3 On March 8, libellants filed a supplemental and amended libel, and on the basis of the following allegations joined the Compania Colombiana Del Caribe, S.A., as respondent. On or shortly prior to March 4, the Compania Del Caribe had been organized under the laws of Colombia and the Alacran had been transferred by Transmaritima to Del Caribe in fraud of the rights of libellants. The latter company had been organized by directors, officers and stockholders of Transmaritima, but no funds had been paid into its treasury for the issue of its stock, and the transfer of the Alacran was without real consideration. Del Caribe was 'merely the creature or alter ego' of Transmaritima and 'they should be held to be, as they are, one and the same.' Del Caribe, on or about March 4, had had the Vessel's name changed from Alacran to Caribe, and a new register had been issued accordingly. In the alternative, the claim was that Del Caribe was indebted to Transmaritima for at least a substantial part if not all of the purchase price of the Caribe. 4 Attachment of the vessel was again prayed on what appears to have been either of two grounds: since Transmaritima and Del Caribe were really one and the same, it mattered not which was deemed to be the owner of the Caribe; since the transfer of the Caribe to Del Caribe was a fraudulent transfer to be set aside, the vessel was in reality Transmaritima's property and Del Caribe should be garnished. On the basis of the amended libel another attachment of the Caribe was made.1 5 With the supplemental libel, libellants submitted a list of interrogatories to be propounded to Del Caribe, calculated to disclose the true status of that company and of the transfer to it of the Caribe. On March 15, respondents gave notice that they would move for an order dismissing the libel and vacating the attachment. An accompanying affidavit relied primarily on the doctrine of forum non conveniens. The District Court overruled this motion on March 31. The parties then entered into stipulations whereby the respondents' time to answer the libel and interrogatories was extended to June 17. On June 11, they answered, putting in issue various questions relating to the liability arising out of the sinking of the Cali and to the transfer of the Caribe. At the same time Del Caribe objected to the nterrogatories on various grounds. No disposition of these objections appears from the record. 6 On August 16, Del Caribe gave notice of a motion to dismiss the libel as to it and vacate the attachment. Various grounds were urged calling into question the jurisdiction of the court, the propriety of its exercise, and the adequacy of the allegations to state a claim in the libel. An accompanying affidavit set forth matters relating to the transfer. 7 On September 20, the District Court found that the nondelivery of the cargo was due to the beaching of the Cali in January, 1948; that Del Caribe had been organized in the latter part of February, 1948; and that Transmaritima had sold and transferred the Caribe to Del Caribe on February 25.2 From these facts the district judge concluded that there was no jurisdiction in admiralty to inquire into the relations between the two respondent companies or the sale of the Caribe. In any event, the court declined to exercise jurisdiction to look into the transfer since it had taken place between two foreign corporations and in a foreign country. Accordingly, the attachment was ordered to be vacated. While libellants submitted additional evidence upon a rehearing, the court adhered to its original views. 83 F.Supp. 273. 8 The Court of Appeals affirmed. It held that jurisdiction to set aside a fraudulent transfer before judgment on the main claim was at best 'doubtful,' that there was discretion to decline jurisdiction on principles of forum non conveniens, and that, in any event, libellants had not sustained their burden of producing proof that the transfer was fraudulent.3 175 F.2d 513. 9 This we believe to be a fair re sume of an uncommonly confused and opaque record. It is especially hampering that the record is not clearer than it is when legal issues of real complexity are in controversy. 10 I. There is a threshold question as to the jurisdiction of the court below to entertain the appeal. It is claimed that the order vacating the attachment was not a final order and therefore not reviewable. 11 We believe that the order comes squarely within the considerations of our recent decision in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528. The litigation arising out of the claim of the libellants has not run its entire course, but the order now here, like that in the Cohen case, 'appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.' 337 U.S. at page 546, 69 S.Ct. at page 1225, 93 L.Ed. 1528. Appellate review of the order dissolving the attachment at a later date would be an empty rite after the vessel had been released and the restoration of the attachment only theoretically possible. Cf. The Panaghia Kathariotisa, 3 Cir., 165 F.2d 430. Under these circumstances the provision for appeals only from final decisions in 28 U.S.C. § 1291, 28 U.S.C.A. § 1291, should not be construed so as to deny effective review of a claim fairly severable from the context of a larger litigious process. See Cobbledick v. United States, 309 U.S. 323, 328-329, 60 S.Ct. 540, 542, 543, 84 L.Ed. 783. The situation is quite different where an attachment is upheld pending determination of the principal claim. Such was Cushing v. Laird, 107 U.S. 69, 2 S.Ct. 196, 27 L.Ed. 391, which is urged on us. In such a situation the rights of all the parties can be adequately protected while the litigation on the main claim proceeds. 12 II. On finding that the Caribe had been sold by Transmaritima to Del Caribe prior to the filing of the libel the District Court deemed itself without jurisdiction to determine whether the transfer was fraudulent. In consequence it felt compelled to treat Del Caribe as the owner of the vessel, and since only the property of Transmaritima could be validly attached the attachment had to be vacated.4 13 The reasoning of the District Court was based on the view that a claim of fraud in the transfer of a vessel was a matter for determination by a court of equity and therefore outside the bounds of admiralty jurisdiction. There is a good deal of loose talk to this effect in the reports, concurrent with talk that courts of admiralty exercise their jurisdiction upon equitable principles. Even as to admiralty jurisdiction we must be wary of verbal generalizations unrelated to their applications. Not the least creative achievement of judicial law-making is the body of doctrines that has been derived from the brief words of the Constitution extending the judicial power 'to all Cases of admiralty and maritime Jurisdiction.' U.S.Const. Art. III, § 2. But it would be beyond human achievement even of a long line of judges especially equipped for dealing with admiralty matters to have produced a wholly harmonious body of admiralty law, or to have written opinions that should not have lent themselves through largeness or looseness of statement beyond the scope of their adjudications. 14 Unquestionably a court of admiralty will not enforce an independent equitable claim merely because it pertains to maritime property. E.g., The Eclipse, 135 U.S. 599, 608, 10 S.Ct. 873, 875, 34 L.Ed. 269 and cases cited. The reasoning of the District Court would be pertinent if the libellants, as creditors of Transmaritima, had gone into admiralty by way of a creditor's bill to set aside a pretended sale of the Caribe as a fraudulent transfer. But that is not the case before us. Libellants went into admiralty on a claim arising upon a contract of affreightment supplemented by charges of negligence in the nondelivery of a sea cargo—matters obviously within admiralty jurisdiction. As an incident to that claim, in order to secure respondents' appearance and to insure the fruits of a decree in libellants' favor, they made an attachment under General Admiralty Rule 2, 28 U.S.C.A.5 The issue of fraud arises in connection with the attachment as a means of effectuating a claim incontestably in admiralty. To deny an admiralty court jurisdiction over this subsidiary or derivative issue in a litigation clearly maritime would require an absolute rule that admiralty is rigorously excluded from all contact with nonmaritime transactions and from all equitable relief, even though such nonmaritime transactions come into play, and such equitable relief is sought, in the course of admiralty's exercise of its jurisdiction over a matter exclusively maritime. It would be strange indeed thus to hobble a legal system that has been so responsive to the practicalities of maritime commerce and so inventive in adapting its jurisdiction to the needs of that commerce. Controversies between admiralty and common law are familiar legal history. See Mr. Justice Story's classic opinion in De Lovio v. Boit, 7 Fed.Cas. page 418, No. 3,776, 2 Gall. 398; 4 Benedict on Admiralty cc. 61-63 (Knauth ed. 1940.) We find no restriction upon admiralty by chancery so unrelenting as to bar the grant of any equitable relief even when that relief is subsidiary to issues wholly within admiralty jurisdiction. Certainly there is no ground for believing that this restriction was accepted as a matter of course by the framers of the Constitution so that such sterilization of admiralty jurisdiction can be said to have been presupposed by Article III of the Constitution. 15 A few illustrative cases will take us out of the fog of generalities, for the decisions dealing with concrete situations afford a working approach even if not a rigid rule. 16 Nonmaritime contracts may be examined to determine whether they constitute a valid defense, although the same contracts will not support a libel or cross-libel for affirmative relief. Armour & Co. v. Fort Morgan S.S. Co., 270 U.S. 253, 258—260, 46 S.Ct. 212, 213, 214, 70 L.Ed. 571. An equitable claim which does not support a possessory suit may be availed of as a valid defense against a similar suit by the holder of legal title. Chirurg v. Knickerbocker Steam Towage Co., D.C., 174 F. 188; cf. The Daisy, D.C., 29 F. 300; see Morrison, Remedial Powers of the Admiralty, 43 Yale L.J. 1, 21 (1933). Admiralty cannot entertain a suit to reform a release from liability executed under a mutual mistake merely because it pertains to a maritime claim; but when such a release is pleaded in defense against assertion of that claim, admiralty is not barred from determining whether it was executed by the parties under mutual mistake. Rice v. Charles Dreifus Co., 2 Cir., 96 F.2d 80. And so as to accounting, 'It is true that a court of admiralty will not entertain a suit for an accounting as such: as, for example, an accounting between co-owners of a vessel, or between maritime adventurers, or between principal and agent * * * (citing cases). Nevertheless, it has never been true, when an accounting is necessary to the complete adjustment of rights over which admiralty has independent jurisdiction, that it will suspend its remedies midway and require the parties to resort to another court.' W. E. Hedger Transp. Corp. v. Ira S. Bushey & Sons, Inc., 2 Cir., 155 F.2d 321, 323, per Learned Hand, J. 17 In each of these cases a holding that admiralty must stay its hands as to a matter intrinsically nonmaritime but 'necessary to the complete adjustment of rights over which admiralty has independent jurisdiction' would have seriously impaired the discharge by admiralty of the task which belongs to it. To recognize these subsidiary powers of admiralty to deal justly with the claims that are within its jurisdiction is not to enlarge the admiralty jurisdiction but to avoid its mutilating restriction. To generalize beyond this is to invite misleading or empty abstractions. 18 We can now see the immediate problem in its proper perspective. The process of foreign attachment is known of old in admiralty. It has two purposes: to secure a respondent's appearance and to assure satisfaction in case the suit is successful. Manro v. Almeida, 10 Wheat. 473, 489, 6 L.Ed. 369. While the process may be utilized only when a respondent is not found within the jurisdiction, an attachment is not dissolved by the subsequent appearance of respondent. See Birdsall v. Germain Co., D.C., 227 F. 953, 955; 2 Benedict on Admiralty § 290 (Knauth ed. 1940). Disputes over ownership of attached vessels are of course inevitable since only the respondent's property may be attached. E.g., Cushing v. Laird, 107 U.S. 69, 2 S.Ct. 196, 27 L.Ed. 391; cf. McGahern V. Koppers Coal Co., 3 Cir., 108 F.2d 652; Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 2 Cir., 31 F.2d 265. Inevitably such disputes may involve transactions not themselves the subject matter of an independent libel. If jurisdiction be wanting in a court of admiralty when such a controversy arises in the context of an attachment made in a libel over which the court indubitably has jurisdiction, a congenital defect would have to be attributed to the ancient process of foreign attachment. If colorable transfers of property were immune to challenge in a court of admiralty when a libel in personam has been brought in a District where the respondent cannot be personally served, admiralty jurisdiction would be sacrificed to a sterile theory of judicial separatism. No support for such a conclusion is to be found in any decision of this Court or in those of the lower courts which have had so large a share in the development of admiralty law. The relevant rulings look the other way. 19 In Lee v. Thompson, 15 Fed.Cas. page 233, No. 8,202, 3 Woods 167, Mr. Justice Bradley held that an admiralty court had power to look into an allegedly fraudulent transfer where the question was relevant to execution upon a decree in admiralty. He fully recognized that a libel based solely on the transfer could not be maintained, but where that issue was 'incidental to its general jurisdiction, and for maintaining the same, it (the admiralty court) has plenary power to decide, and frequently does decide, conflicting claims to property. Without such power its jurisdiction would often be defeated.' 15 Fed.Cas. at page 235, No. 8,202, 3 Woods at page 173. The force of Mr. Justice Bradley's decision is sought to be cut down in that it dealt with execution on a judgment and not with an attachment.6 The fact is, however, that Mr. Justice Bradley relied in his reasoning on the process of foreign attachment, and reason rejects any significant distinction between the jurisdiction of admiralty to inquire into a fraudulent transfer in the two situations. In both admiralty is not seized of jurisdiction to correct a fraud simply because it is a fraud; that's the business of equity. The basis of admiralty's power is to protect its jurisdiction from being thwarted by a fraudulent transfer, and that applies equally whether it is concerned with executing its judgment or authorizing an attachment to secure an independent maritime claim. Cf. The New York, 2 Cir., 113 F. 810; The Columbia, D.C., 100 F. 890 (judgment in admiralty vacated because obtained by fraud). 20 We must conclude that the District Court was not without power to look into the transfer of the Caribe under the circumstances of this suit. But because power exists, its use is not inexorable. Cf. Com. of Massachusetts v. State of Missouri, 308 U.S. 1, 19, 60 S.Ct. 39, 43, 84 L.Ed. 3. We would be passing on situations not before us were we to attempt now to define when power which we recognize should be withheld. In the circumstances of this case the power should be exercised, for there are good reasons for the attachment. If the libellants are ultimately successful, judgment may well avail them nothing unless duly secured. Cf. Asiatic Petroleum Corp. v. Italia Societa Anonima Di Navigazione, 3 Cir., 119 F.2d 610. The issues of fact on which libellants' claim of fraud turn do not appear to be complicated and they may be speedily adjudicated by the District Court prior to a hearing on the affreightment contract. 21 III. It is urged that, even if there existed power to ascertain whether the transfer was fraudulent, vacation of the attachment was justified by libellants' failure to establish a prima facie case of fraud. No doubt, the ultimate burden of establishing a fraudulent transfer was upon libellants. See Cushing v. Laird, 107 U.S. 69, 83-84, 2 S.Ct. 196, 207, 27 L.Ed. 391. Under Admiralty Rule 23 of the District Court for the Canal Zone,7 the district judge might have required lebellants to present their proof in order to determine whether substantial questions of fact were raised respecting the fraudulence of the transfer. Had libellants then failed to respond without adequate reason, the attachment would properly have been vacated. 22 Rule 23 was in substance invoked by respondents, as the Court of Appeals held, but the record does not support the view that its invocation put libellants to their proof that the transfer was fraudulent. They had no reason to believe that such proof was needed before trial. Neither of the two motions of respondents to vacate the attachment rested on an absence of fraud as a matter of fact. Respondents presented evidence through affidavits that a new corporation had been formed and a transfer of title to the vessel effected, but this was only to support their charges that the court lacked jurisdiction, that in any event it should decline jurisdiction under principles of forum non conveniens, and that the allegations in the libel did not state a cause of action. Nor were libellants put on notice by the District Court's first opinion to put in proof on rehearing. Its holding was based on lack of jurisdiction to inquire into the transfer or, alternatively, on discretion to decline its exercise. Quite clearly it did not determine the issue of fraud in the transfer. The opinion denying rehearing did not break new ground. On these facts, the attachment could not be vacated for a failure of libellants to support their charge of a fraudulent transfer.8 23 IV. There remains the question whether the District Court's order may be justified as an exercise of discretion to decline jurisdiction under the doctrine of forum non conveniens. The doctrine is of long standing in admiralty, but this Court has not previously had to apply it to a suit brought by a United States citizen. Such application has been rare even in the lower federal courts. Cf. Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S. 413, 52 S.Ct. 413, 76 L.Ed. 837; United States Merchants' & Shippers' Ins. Co. v. A/S Den Norske Afrika OG Australie Line, 2 Cir., 65 F.2d 392; see Braucher, The Inconvenient Federal Forum, 60 Harv.L.Rev. 908, 920-921 (1947); Bickel, Forum Non Conveniens in Admiralty, 35 Cornell L.Q. 12, 41-47 (1949). We need not now decide the abstract question whether United States admiralty courts may decline jurisdiction over libels brought by United States citizens. Discretion could not sustain declination in this case. Application of forum non conveniens principles to a suit by a United States citizen against a foreign respondent brings into force considerations very different from those in suits between foreigners.9 The District Court gave no indication that it recognized such considerations. Its opinion indicates that in so far as it may have exercised discretion to decline jurisdiction it was moved to do so by its view that such jurisdiction does not exist. But, in any event, it was improper under the circumstances here shown to remit a United States citizen to the courts of a foreign country without assuring the citizen that respondents would appear in those courts and that security would be given equal to what had been obtained by attachment in the District Court. The power of the District Court to give a libellant such assurance is shown by Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S. 413, 424, 52 S.Ct. 413, 416, 76 L.Ed. 837. See also City of Agra, D.C., 35 F.Supp. 351. While the District Court exercised discretion to vacate only the attachment and not to dismiss the entire libel, libellants' rights were seriously impaired by their loss of security. The importance of the right to proceed by attachment to afford security has been emphasized. E.g., In re Louisville Underwriters, 134 U.S. 488, 10 S.Ct. 587, 33 L.Ed. 991; Asiatic Petroleum Corp. v. Italia Societa Anonima Di Navigazione, 3 Cir., 119 F.2d 610. Libellants' right to maintain the attachment will depend on their ability to prove fraud in the transfer of the Caribe upon a hearing. They are entitled to have that hearing. 24 The case must be reversed and remanded for proceedings not inconsistent with this opinion. 25 Reversed and remanded. 26 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. 1 The Marshal's return failed to state that respondents could not be found within the jurisdiction. Cf. International Grain Ceiling Co. v. Dill, 13 Fed.Cas. page 70, No. 7,053, 10 Ben. 92. The Court of Appeals properly held this to be a formal defect, easily correctible on remand. 2 The district judge also found that the stockholders and managing officers of the two respondents were not identical, but these facts were irrelevant to his disposition of the case and are to the disposition made here. 3 The District Court did not dismiss the garnishment proceeding against Del Caribe, since that company was allegedly indebted to Transmaritima and some of the property of the Cali had been attached aboard the Caribe. The Court of Appeals suggested that the issue of fraud in the transfer of the Caribe could be adjudicated as part of the garnishment proceeding. 4 Libellants also sought to hold Del Caribe personally liable for the destruction of the Cali's cargo of rice on the ground that it was merely the alter ego of Transmaritima. Success on this theory would render the issue of fraudulent transfer irrelevant, for then the assets of either company could be attached. The jurisdiction of a court of admiralty to determine the question of alter ego is undoubted. The Willem Van Driel, Sr., 4 Cir., 252 F. 35; Luckenbach S.S. Co. v. W. R. Grace & Co., 4 Cir., 267 F. 676; Yone Suzuki v. Central Argentine R. Co., 2 Cir., 27 F.2d 795, 806; Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 2 Cir., 31 F.2d 265; Gardner v. Dantzler Lumber & Export Co., 5 Cir., 98 F.2d 478. But it is settled doctrine that, apart from any transfer of assets by Transmaritima to Del Caribe, the latter company could not be held personally liable on an alter ego theory, since it came into existence after the Cali sank. Yone Suzuki v. Central Argentine R. Co., supra; Kingston Dry Dock Co. v. Lake Champlain Transp. Co., supra. It is important to note, however, that the relationship between the two respondent companies has an obvious relevance to the issue of fraudulent transfer. 5 The relevant portion of General Admiralty Rule 2 is as follows: 'In suits in personam the mesne process shall be by a simple monition in the nature of a summons to appear and answer to the suit, or by a simple warrant of arrest of the person of the respondent in the nature of a capias, as the libellant may, in his libel or information pray for or elect; in either case with a clause therein to attach his goods and chattels, or credits and effects in the hands of the garnishees named in the libel to the amount sued for, if said respondent shall not be found within the district.' 6 The Court of Appeals apparently regarded this distinction as important, for it held that the issues relating to the vessel Caribe might be adjudicated in the garnishment proceeding but not in connection with the attachment. 7 The relevant portion of Rule 23 is as follows: 'In case of the attachment of property * * * the party arrested or any person having a right to intervene in respect of the thing attached, may, upon evidence showing any improper practice or a manifest want of equity on the part of the libellant, have an order from the judge requiring the libellant to show cause instanter why the arrest or attachment should not be vacated.' See 5 Benedict on Admiralty (Whitman ed. 1949) 234. 8 The eight months intervening between the filing of the libel and the opinion on rehearing were spent largely on respondents' motions and to afford respondents opportunity to file answers. It is also pertinent that libellants' interrogatories to Del Caribe were never answered and the exceptions taken to them never passed on by the District Court. The evidence contained in respondents' affidavits was inadequate to support any determination of the fraud issue. Of course, if the court had required libellants to present such proof as they had, it would have been for them to move that the exceptions to the interrogatories be overruled. But, as indicated, the importance of such a move was never made clear. 9 Compare Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 832, 91 L.Ed. 1067: 'In any balancing of conveniences, a real showing of convenience by a plaintiff who has sued in his home forum will normally outweigh the inconvenience the defendant may have shown.' See also O'Neill v. Cunard White Star, Ltd., 2 Cir., 160 F.2d 446.

89

339 U.S. 699 70 S.Ct. 914 94 L.Ed. 1216 UNITED STATESv.STATE OF LOUISIANA. No. 12, Original. Argued on Motion for Judgment March 27, 1950. Decided June 5, 1950. Rehearing Denied Oct. 16, 1950. See 71 S.Ct. 75. Sol. Gen. Philip B. Perlman, Washington, D.C., for plaintiff. Mr. Cullen R. Liskow, Lake Charles, La., L. H. Perez, New Orleans, La., for defendant. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 The United States by its Attorney General and its Solicitor General brought this suit against the State of Louisiana, invoking our jurisdiction under Art. III, § 2, Cl. 2 of the Constitution which provides 'In all Cases * * * in which a State shall be Party, the supreme Court shall have original Jurisdiction.' The complaint alleges that the United States was and is 'the owner in fee simple of, or possessed of paramount rights in, and full dominion and power over, the lands, minerals, and other things underlying the Gulf of Mexico, lying seaward of the ordinary low-water mark on the coast of Louisiana and outside of the inland waters, extending seaward twenty-seven marine miles and bounded on the east and west, respectively, by the eastern and western boundaries of the State of Louisiana.' 2 The complaint further alleges that Louisiana, claiming rights in that property adverse to the United States, has made leases under her statutes to various persons and corporations which have entered upon said lands, drilled wells for the recovery of petroleum, gas and other hydrocarbon substances, and paid Louisiana substantial sums of money in bonuses, rent, and royalties, but that neither Louisiana nor its lessees have recognized the rights of the United States in said property. 3 The prayer of the complaint is for a decree adjudging and declaring the right of the United States as against Louisiana in this property, enjoining Louisiana and all persons claiming under it from continuing to trespass upon the area in violation of the right of the United States, and requiring Louisiana to account for the money derived by it from the area subsequent to June 23, 1947. 4 Louisiana opposed the motion for leave to file the complaint, contending that the States have not consented to be sued by the Federal Government and that United States v. State of Texas, 143 U.S. 621, 12 S.Ct. 488, 36 L.Ed. 285, which held that Art. III, § 2, Cl. 2 of the Constitution, granting this Court original jurisdiction in cases 'in which a State shall be Party,' includes cases brought by the United States against a State should be overruled. We heard argument on the motion for leave to file and thereafter granted it. 337 U.S. 902, 69 S.Ct. 1040, 93 L.Ed. 1716, rehearing denied 337 U.S. 928, 69 S.Ct. 1490, 93 L.Ed. 1736. 5 Louisiana then filed a demurrer asserting that the Court has no original jurisdiction of the parties or of the subject matter. She moved to dismiss on the ground that the lessees are indispensable parties to the case; and she also moved for a more definite statement of the claim of the United States and for a bill of particulars. The United States moved for judgment. The demurrer was overruled, Louisiana's motions denied, and the motion of the United States for judgment was denied, Louisiana being given 30 days in which to file an answer. 338 U.S. 806, 70 S.Ct. 36. 6 In her answer Louisiana admits that 'the United States has paramount rights in, and full dominion and power over, the lands, minerals and other things underlying the Gulf of Mexico adjacent to the coast of Louisiana, to the extent of all governmental powers existing under the Constitution, laws and treaties of the United States,' but asserts that there are no conflicting claims of governmental powers to authorize the use of the bed of the Gulf of Mexico for the purpose of searching for and producing oil and other natural resources, on which the relief sought by the United States depends, since the Congress has not adopted any law which asserts such federal authority over the bed of the Gulf of Mexico. Louisiana therefore contends that there is no actual justiciable controversy between the parties. Louisiana in her answer denies that the United States has a fee simple title to the lands, minerals, and other things underlying the Gulf of Mexico. As affirmative defenses Louisiana asserts that she is the holder of fee simple title to all the lands, minerals, and other things in controversy; and that since she was admitted into the Union in 1812, she has exercised continuous, undisturbed and unchallenged sovereignty and possession over the property in question. 7 Louisiana also moved for trial by jury. She asserts that this suit, involving title to the beds of tide waters, is essentially an action at law and that the Seventh Amendment and 62 Stat. 953, 28 U.S.C. § 1872, 28 U.S.C.A. § 1872, require a jury.1 8 The United States then moved for judgment on the ground that Louisiana's asserted defenses were insufficient in law. We set the case down for argument on that motion. 9 The territory out of which Louisiana was created was purchased by the United States from France for $15,000,000 under the Treaty of April 30, 1803, 8 Stat. 200. In 1804 the area thus acquired was divided into two territories, one being designated as the Territory of Orleans, 2 Stat. 283. By the Enabling Act of February 20, 1811, 2 Stat. 641, the inhabitants of the Territory of Orleans were authorized to form a constitution and a state government. By the Act of April 8, 1812, 2 Stat. 701, 703, Louisiana was admitted to the Union 'on an equal footing with the original states, in all respects whatever.' And as respects the southern boundary, that Act recited that Louisiana was 'bounded by the said gulf (of Mexico) * * * including all islands within three leagues of the coast.'2 In 1938 Louisiana by statute declared its southern boundary to be twenty-seven marine miles from the shore line.3 10 We think United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889, controls this case and that there must be a decree for the complainant. 11 We lay aside such cases as Toomer v. Witsell, 334 U.S. 385, 393, 68 S.Ct. 1156, 1160, 92 L.Ed. 1460, where a State's regulation of coastal waters below the low-water mark collides with the interests of a person not acting on behalf of or under the authority of the United States. The question here is not the power of a State to use the marginal sea or to regulate its use in absence of a conflicting federal policy; it is the power of a State to deny the paramount authority which the United States seeks to assert over the area in question. We also put to one side, Mayor, Aldermen and Inhabitants of New Orleans v. United States, 10 Pet. 662, 9 L.Ed. 573, holding that title to or dominion over certain lots and vacant land along the river in the city of New Orleans did not pass to the United States under the treaty of cession but remained in the city. Such cases, like those involving ownership of the land under the inland waters (see, for example, Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565), are irrelevant here. As we pointed out in United States v. State of California, the issue in this class of litigation does not turn on title or ownership in the conventional sense. California, like the thirteen original colonies, never acquired ownership in the marginal sea. The claim to our three-mile belt was first asserted by the national government. Protection and control of the area are indeed functions of national external sovereignty. 332 U.S. pages 31—34, 67 S.Ct. pages 1664—1666, 91 L.Ed. 1889. The marginal sea is a national, not a state concern. National interests, national responsibilities, national concerns are involved. The problems of commerce, national defense, relations with other powers, war and peace focus there. National rights must therefore be paramount in that area. 12 That is the rationale of United States v. State of California. It is fully elaborated in the opinion of the Court in that case and does not need repetition. 13 We have carefully considered the extended and able argument of Louisiana in all its aspects and have found no reason why Louisiana stands on a better footing than California so far as the three-mile belt is concerned. The national interest in that belt is as great off the shore line of Louisiana as it is off the shore line of California. And there are no material differences in the preadmission or post-admission history of Louisiana that make her case stronger than California's. Louisiana prior to admission had no stronger claim to ownership of the marginal sea than the original thirteen colonies or California had. Moreover, the national dominion in the three-mile belt has not been sacrificed or ceded away in either case. The United States, acting through its Attorney General who has authority to assert claims of this character and to invoke our jurisdiction in a federal-state controversy (United States v. State of California, 332 U.S. pages 26—29, 67 S.Ct. pages 1662—1663, 91 L.Ed. 1889) now claims its paramount rights in this domain. 14 There is one difference, however, between Louisiana's claim and California's. The latter claimed rights in the three-mile belt. Louisiana claims rights twenty-four miles seaward of the three-mile belt. We need note only briefly this difference. We intimate no opinion on the power of a State to extend, define, or establish its external territorial limits or on the consequences of any such extension vis a vis persons other than the United States or those acting on behalf of or pursuant to its authority. The matter of state boundaries has no bearing on the present problem. If, as we held in California's case, the three-mile belt is in the domain of the nation rather than that of the separate States, it follows a fortiori that the ocean beyond that limit also is. The ocean seaward of the marginal belt is perhaps even more directly related to the national defense, the conduct of foreign affairs, and world commerce than is the marginal sea. Certainly it is not less so. So far as the issues presented here are concerned, Louisiana's enlargement of her boundary emphasizes the strength of the claim of the United States to this part of the ocean and the resources of the soil under that area, including oil. 15 Louisiana's motion for a jury trial is denied. We need not examine it beyond noting that this is an equity action for an injunction and accounting. The Seventh Amendment and the statute,4 assuming they extend to cases under our original jurisdiction, are applicable only to actions at law. See Shields v. Thomas, 18 How. 253, 262, 15 L.Ed. 368; Barton v. Barbour, 104 U.S. 126, 133—134, 26 L.Ed. 672. 16 We hold that the United States is entitled to the relief prayed for. The parties, or either of them, may before September 15, 1950, submit the form of decree to carry this opinion into effect. So ordered. 17 Judgment for plaintiff. 18 Mr. Justice JACKSON and Mr. Justice CLARK took no part in the consideration or decision of this case. 19 Mr. Justice FRANKFURTER. 20 Time has not made the reasoning of United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889, more persuasive but the issue there decided is no longer open for me. It is relevant, however, to note that in rejecting California's claim of ownership in the off-shore oil the Court carefully abstained from recognizing such claim of ownership by the United States. This was emphasized when the Court struck out the proprietary claim of the United States from the terms of the decree proposed by the United States in the California case.* 21 I must leave it to those who deem the reasoning of that decision right to define its scope and apply it, particularly to the historically very different situation of Texas. As is made clear in the opinion of Mr. Justice REED, the submerged lands now in controversy were part of the domain of Texas when she was on her own. The Court now decides that when Texas entered the Union she lost what she had and the United States acquired it. How that shift came to pass remains for me a puzzle. 1 The Seventh Amendment provides: 'In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.' 28 U.S.C. § 1872, 28 U.S.C.A. § 1872, provides: 'In all original actions at law in the Supreme Court against citizens of the United States, issues of fact shall be tried by a jury.' 2 And see Dart, Louisiana Constitutions (1932) p. 499. 3 6 Dart, La.Gen.Stats. (1939) §§ 9311.1—9311.4, Act No. 55 of 1938, §§ 1—4. * The decree proposed by the United States read in part: '1. The United States of America is now, and has been at all times pertinent hereto, possessed of paramount rights of proprietorship in, and full dominion and power over, the lands, minerals and other things underlying the Pacific Ocean * * *.' The italicized words were omitted in the Court's decree. 332 U.S. 804, 805, 68 S.Ct. 20, 21, 92 L.Ed. 382. 4 See note 1, supra.

910

339 U.S. 643 70 S.Ct. 927 94 L.Ed. 1154 TRAVELERS HEALTH ASS'N et al.v.COMMONWEALTH OF VIRGINIA ex rel. STATE CORPORATION COMMISSION. No. 76. Reargued April 17, 1950. Decided June 5, 1950. Mr. Moses G. Hubbard, Jr., Utica, N.Y., for appellants. Mr. Walter E. Rogers, Richmond, Va., for appellee. Mr. Justice BLACK delivered the opinion of the Court. 1 In an effort to protect its citizens from 'unfairness, imposition and fraud' in sales of certificates of insurance and other forms of securities, the Virginia 'Blue Sky Law' requires those selling or offering such securities to obtain a permit from the State Corporation Commission.1 Applicants for permits must meet comprehensive conditions: they must, for example, provide detailed information concerning their solvency, and must agree that suits can be filed against them in Virginia by service of process on the Secretary of the Commonweath.2 2 While violation of the Act is a misdemeanor punishable by criminal sanctions, § 6 provides another method for enforcement. After notice and a hearing 'on the merits', the State Corporation Commission is authorized to issue a cease and desist order restraining violations of the Act. The section also provides for service by registered mail where other types of service are unavailable 'because the offering is by advertisement and/or solicitation through periodicals, mail, telephone, telegraph, radio, or other means of communication from beyond the limits of the State * * *.' The highest court of Virginia rejected contentions that this section violates constitutional requirements of due process, and the case is properly here on appeal under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). 3 In this case cease and desist proceedings under § 6 were instituted by the State Corporation Commission against Travelers Health Association and against R. E. Pratt, as treasurer of the Association and in his personal capacity. Having received notice by registered mail only, they appeared 'specially' for 'the sole purpose of objecting to the alleged jurisdiction of the Commonwealth of Virginia and of its State Corporation Commission, and of moving to set aside and quash service of summons. * * *' The agreed stipulation of facts and certain exhibits offered by the state can be summarized as follows: 4 The appellant Travelers Health Association was incorporated in Nebraska as a nonprofit membership association in 1904. Since that time its only office has been located in Omaha, from which it has conducted a mail-order health insurance business. New members pay an initiation fee and obligate themselves to pay periodic assessments at the Omaha office. The funds so collected are used for operating expenses and sick benefits to members. The Association has no paid agents; its new members are usually obtained through the unpaid activities of those already members, who are encouraged to recommend the Association to friends and submit their names to the home office. The appellant Pratt in Omaha mails solicitations to these prospects. He encloses blank applications which, if signed and returned to the home office with the required fee, usually result in election of applicants as members. Certificates are then mailed, subject to return within 10 days 'if not satisfactory.' Travelers has solicited Virginia members in this manner since 1904, and has caused many sick benefit claims to be investigated. When these proceedings were instituted, it had approximately 800 Virginia members. 5 The Commission, holding that the foregoing facts supported the state's power to act in § 6 proceedings, overruled appellants' objection to jurisdiction and their motion to quash service. The Association and its treasurer were ordered to cease and desist from further solicitations or sales of certificates to Virginia residents 'through medium of any advertisement from within or from without the state, and/or through the mails or otherwise, by intra- or inter-state communication, * * * unless and until' it obtained authority in accordance with the 'Blue Sky Law.' This order was affirmed by the Virginia Court of Appeals. 188 Va. 877, 882, 51 S.E.2d 263, 271. 6 Appellants do not question the validity of the Virginia law 'to the extent that it provides that individual and corporate residents of other states shall not come into the State for the purpose of doing business there without first submitting to the regulatory authority of the State.' As to such state power see, e.g., Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S.Ct. 217, 61 L.Ed. 480, L.R.A.1917F, 514, Ann.Cas.1917C, 643. Their basic contention is that all their activities take place in Nebraska, and that consequently Virginia has no power to reach them in cease and desist proceedings to enforce any part of its regulatory law. We cannot agree with this general due process objection, for we think the state has power to issue a 'cease and desist order' enforcing at least that regulatory provision requiring the Association to accept service of process by Virginia claimants on the Secretary of the Commonwealth. 7 Appellants' chief reliance for the due process contention is on Minnesota Commercial Men's Ass'n v. Benn, 261 U.S. 140, 43 S.Ct. 293, 294, 67 L.Ed. 573. There a Minnesota association obtained members in Montana by the same mail solicitation process used by Travelers to get Virginia members. The certificates issued to Montana members also reserved the right to investigate claims, although the Court pointed out that Benn's claim had not been investigated. This Court held that since the contracts were 'executed and to be performed' in Minnesota, the Association was not 'doing business' in Montana and therefore could not be sued in Montana courts unless 'consent' to Montana suits could be implied. The Court found the circumstances under which the insurance transactions took place insufficient to support such an implication. 8 But where business activities reach out beyond one state and create continuing relationships and obligations with citizens of another state, courts need not resort to a fictional 'consent' in order to sustain the jurisdiction of regulatory agencies in the latter state. And in considering what constitutes 'doing business' sufficiently to justify regulation in the state where the effects of the 'business' are felt, the narrow grounds relied on by the Court in the Benn case cannot be deemed controlling. 9 In Osborn v. Ozlin, 310 U.S. 53, 62, 60 S.Ct. 758, 761, 84 L.Ed. 1074, we recognized that a state has a legitimate interest in all insurance policies protecting its residents against risks, an interest which the state can protect even though the 'state action may have repercussions beyond state lines * * *.' And in Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316, 63 S.Ct. 602, 604, 605, 87 L.Ed. 777, 145 A.L.R. 1113, we rejected the contention, based on the Benn case among others, that a state's power to regulate must be determined by a 'conceptualistic discussion of theories of the place of contracting or of performance.' Instead we accorded 'great weight' to the 'consequences' of the contractual obligations in the state where the insured resided and the 'degree of interest' that state had in seeing that those obligations were faithfully carried out. And in International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 161 A.L.R. 1057, this Court, after reviewing past cases, concluded: '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." 10 Measured by the principles of the Osborn, Hoopeston and International Shoe cases, the contacts and ties of appellants with Virginia residents, together with that state's interest in faithful observance of the certificate obligations, justify subjecting appellants to cease and desist proceedings under § 6. The Association did not engage in mere isolated or short-lived transactions. Its insurance certificates, systematically and widely delivered in Virginia following solicitation based on recommendations of Virginians, create continuing obligations between the Association and each of the many certificate holders in the state. Appellants have caused claims for losses to be investigated and the Virginia courts were available to them in seeking to enforce obligations created by the group of certificates. See International Shoe Co. v. Washington, supra, 326 U.S. at page 320, 66 S.Ct. at page 160, 90 L.Ed. 95, 161 A.L.R. 1057. 11 Moreover, if Virginia is without power to require this Association to accept service of process on the Secretary of the Commonwealth, the only forum for injured certificate holders might be Nebraska. Health benefit claims are seldom so large that Virginia policy holders could afford the expense and trouble of a Nebraska law suit. In addition, suits on alleged losses can be more conveniently tried in Virginia where witnesses would most likely live and where claims for losses would presumably be investigated. Such factors have been given great weight in applying the doctrine of forum non conveniens. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055. And prior decisions of this Court have referred to the unwisdom, unfairness and injustice of permitting policy holders to seek redress only in some distant state where the insurer is incorporated.3 The Due Process Clause does not forbid a state to protect its citizens from such injustice. 12 There is, of course, one method by which claimants could recover from appellants in Virginia courts without the aid of substituted service of process: certificate holders in Virginia could all be garnished to the extent of their obligations to the Association. See Huron Holding Corporation v. Lincoln Mine Operating Co., 312 U.S. 183, 193, 61 S.Ct. 513, 517, 85 L.Ed. 725. While such an indirect procedure would undeniably be more troublesome to claimants than the plan adopted by the state in its 'Blue Sky Law,' it would clearly be even more harassing to the Association and its Virginia members. Metaphysical concepts of 'implied consent' and 'presence' in a state should not be solidified into a constitutional barrier against Virginia's simple, direct and fair plan for service of process on the Secretary of the Commonwealth. 13 We hold that Virginia's subjection of this Association to the jurisdiction of that state's Corporation Commission in a § 6 proceeding is consistent with 'fair play and substantial justice,' and is not offensive to the Due Process Clause. 14 Appellants also contend that § 6 as here applied violates due process because the Commission order attempts to 'destroy or impair' their right to make contracts in Nebraska with Virginia residents. Insofar as this contention can be raised in a special appearance merely to contest jurisdiction, it is essentially the same as the due process issue discussed above. For reasons just given, Virginia has power to subject Travelers to the jurisdiction of its Corporation Commission, and its cease and desist provisions designed to accomplish this purpose 'can not be attacked merely because they affect business activities which are carried on outside the state.' Hoopeston Canning Co. v. Cullen, supra, 318 U.S. at pages 320—321, 63 S.Ct. at page 606, 607, 87 L.Ed. 777, 145 A.L.R. 1113. See also Osborn v. Ozlin, 310 U.S. 53, 62, 60 S.Ct. 758, 761, 84 L.Ed. 1074. These two opinions make clear that Allgeyer v. State of Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832, requires no different result. 15 Appellants concede that in the Osborn and Hoopeston cases we sustained state laws providing protective standards for policy holders in those states, even though compliance with those standards by the insurance companies could have repercussions on similar out-of-state contracts. It is argued, however, that those cases are distinguishable because they both involved companies which were 'licensed to do business in the state of the forum and were actually doing business within the state. * * *' But while Hoopeston Canning Co. had done business in New York under an old law, it brought the case here to challenge certain provisions of a new licensing law with which it had to comply if it was to do business there in the future. Thus it was seeking the same kind of relief that appellants seek here, and for the same general purpose. What we there said as to New York's power is equally applicable to Virginia's power here. 16 It is also suggested that service of process on appellants by registered mail does not meet due process requirements. What we have said answers this contention insofar as it alleges a lack of state jurisdiction because appellants were served outside Virginia. If service by mail is challenged as not providing adequate and reasonable notice, the contention has been answered by International Shoe Co. v. State of Washington, supra, 326 U.S. at pages 320—321, 66 S.Ct. at page 160, 90 L.Ed. 95, 161 A.L.R. 1057. See also Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652. 17 The due process questions we have already discussed are the only alleged errors relied on in appellants' brief,4 and appellants' special appearance only challenged state jurisdiction and the service of process. We therefore have no occasion to discuss the scope of the Commission's order, or the methods by which the state might attempt to enforce it.5 Affirmed. 18 Affirmed. 19 Mr. Justice DOUGLAS, concurring. 20 Since the formula adopted by the Court is adequate to dispose of this case, I have joined in the opinion. But I feel that the type of problem presented requires a more selective treatment. Hence my separate opinion. 21 Virginia's Blue Sky Law1 is a comprehensive scheme for the protection of the state's investors. Securities can be offered for sale in the state only after the issuer obtains a permit.2 To get it, the applicant must supply detailed information about its solvency, its earning record, and the nature of the securities.3 Promoters may be required to supply a bond.4 Applicants must appoint an agent, the Secretary of the Commonwealth, to receive service of process.5 Only after proof of their good character and financial responsibility are security salesmen licensed.6 After issuance, the state Corporation Commission is authorized again to investigate the issuer with an eye to possible revocation of its permit.7 These are the high points of the comprehensive regulation which Virginia seeks to apply to appellants. 22 That the business of insurance is interstate commerce is established by United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440. Any doubts about the power of a state to exclude an interstate insurance company which refuses to comply with its regulatory laws were dispelled by the passage of the McCarran Act. 59 Stat. 33, 15 U.S.C. §§ 1011—1015, 15 U.S.C.A. §§ 1011—1015. See Robertson v. People of State of California, 328 U.S. 440, 461, 462, 66 S.Ct. 1160, 1171, 1172, 90 L.Ed. 1366. 23 The requirements of due process do not, in my opinion, preclude the extension of Virginia's regulatory scheme to appellant. I put to one side the case where a policyholder seeks to sue the out-of-state company in Virginia. His ability to sue is not necessarily the measure of Virginia's power to regulate, as the Court said in Old Wayne Mut. Life Ass'n of Indianapolis, Indiana v. McDonough, 204 U.S. 8, 21, 27 S.Ct. 236, 240, 51 L.Ed. 345. It is the nature of the state's action that determines the kind or degree of activity in the state necessary for satisfying the requirements of due process. What is necessary to sustain a tax or to maintain a suit by a creditor, see Old Wayne Life Ass'n v. McDonough, surpa; Provident Savings Life Ass'n Society v. Commonwealth of Kentucky, 239 U.S. 103, 114 116, 36 S.Ct. at 34, 37, 38, 60 L.Ed. 167; Issacs, An Analysis of Doing Business, 25 Col.L.Rev. 1018, 1024, is not in my view determinative when the state seeks to regulate solicitation within its borders. 24 Blue Sky Laws are a well-recognized exercise of the police power of the states. See Hall v. Geiger-Jones Co., 242 U.S. 539, 552, 37 S.Ct. 217, 221, 61 L.Ed. 480, L.R.A.1917F, 514, Ann.Cas.1917C, 643. The wiles of the salesman have been many; the devices to avoid state regulation have been clever and calculated. One of those who contested the constitutionality of the Michigan Blue Sky Law in Merrick v. N. W. Halsey & Co., 242 U.S. 568, 573, 37 S.Ct. 227, 229, 61 L.Ed. 498, had no place of business in the state and was not sending agents into it. The history of the various methods used to evade state regulation is too recent to require extended comment. Instrumentalities of interstate and foreign commerce were extensively employed by those beyond the reach of a state to sell securities to its citizens. See H.R.Rep.No.85, 73d Cong., 1st Sess. 10. The Securities Act of 1933, 48 Stat. 74, 15 U.S.C. § 77a et seq., 15 U.S.C.A. § 77a et seq., was passed to fill the gap.8 25 A state is helpless when the out-of-state company operates beyond the borders, establishes no office in the state, and has no agents, salesmen, or solicitors to obtain business for it within the state. Then it is beyond the reach of process. In the present case, however, that is only the formal arrangement. The actual arrangement shows a method of soliciting business within Virginia as active, continuous, and methodical as it would be if regular agents or solicitors were employed. Cf. Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 63 S.Ct. 602, 87 L.Ed. 777, 145 A.L.R. 1113. 26 Practically all of appellants' business in Virginia originates with and is the result of the activities of its Virginia members. The recommendation of a member relieves an applicant of the duty of furnishing any reference. Though the old members are not designated as 'agents,' it 'clearly appears,' as stated by the Supreme Court of Appeals, 'that the association relies almost excusively on these activities of its Virginia members to bring about an expansion of its Virginia business.' Travelers Health Ass'n v. Commonwealth of Virginia, 188 Va. 877, 887, 51 S.E.2d 263, 267. This device for soliciting business in Virginia may be unconventional and unorthodox; but it operates functionally precisely as though appellants had formally designated the Virginia members as their agents. Through these people appellants have realistically entered the state, looking for and obtaining business. Whether such solicitation is isolated or continuous, it is activity which Virginia can regulate. See Hooper v. People of State of California, 155 U.S. 648, 658, 15 S.Ct. 207, 211, 39 L.Ed. 297. The requirements of due process may demand more or less9 minimal contacts than are present here, depending on what the pinch of the decision is or what it requires of the foreign corporation. See International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 U.S. 310, 316—319, 66 S.Ct. 154, 158, 159, 90 L.Ed. 95, 161 A.L.R. 1057. Where the corporate project entails the use of one or more people in the state for the solicitation of business, in my view it does no violence to the traditional concept of due process to allow the state to provide protective measures governing that solicitation. That is all that is done here. 27 I cannot agree that this appeal is premature. Virginia has placed an injunction on appellants, an injunction which may have numerous consequences, e.g., contempt proceedings. There is an existing controversy—real and vital to appellants. 28 Mr. Justice MINTON, with whom Mr. Justice JACKSON joins, dissenting. 29 The State Corporation Commission of Virginia instituted the proceedings leading to the cease and desist order entered in the instant case under § 6 of the Virginia Securities Law. Michie's Va.Code 1942, § 3848(52). That section provides for service by registered mail upon persons or corporations offering securities through the mails or by other means of communication. After hearing, the Commission is authorized to issue the order and to give it such publicity as the Commission considers desirable. 30 In this case no action has been taken under § 15 of the Law which provides that violation of the statute is a misdemeanor and punishable by fine, or under § 17 which provides for the imposition of a fine upon failure to comply with a lawful order of the Commission. Michie's Va.Code, 1942, § 3848(61)(63). The Commission has in no way attempted to enforce the order issued by the Commission against appellants. Therefore appellants have not been hurt, and the question of due process is not reached. In the scheme of the statute, publicity appears to be the sole sanction of § 6. I know of no reason why Virginia may not go through this shadow-boxing performance in order to publicize the activities of appellants in Virginia and notify its citizens that appellants have not qualified under the Securities Law. That is all the Commission says that it is doing or has the power to do under § 6. The Commission's view of the nature of this proceeding—a view reiterated by Virginia in its brief on the appeal to this Court was stated in its opinion: 31 'Respondents rely on the fact that their contacts with citizens of Virginia are by mail, that they are not doinb business in Virginia and that they do not enter Virginia either personally or by agents. In setting up this defense they lose sight of the nature of this action. They are not charged with doing business in Virginia but with offering and advertising for sale and promoting the sale of insurance contracts in Virginia by mail and the action is to foreclose them from these activities. Whether the action will suffice to actually stop them is beside the point. It will suffice to put them on notice of pertinent laws of Virginia, to give them an opportunity to be heard and the state an opportunity to determine the facts, and, if, after hearing, a cease and desist order is issued, the Commission will then be authorized to give such publicity to the order as it sees fit for the 'information and protection of the public." 32 'No word found in or inference derived from Section 6, aforesaid, may properly, in our judgment, be said to impose penalties upon the respondents. * * *' 33 'There is no element of compulsion except such as may flow from a dread of the publicity attending such an order. In such cases, the only weapon available to the Commonwealth is to publicly advise that the securities of the respondent do not bear the stamp of the state's approval and are being presented to the public without regard to the regulatory laws enacted to protect them. Section 6, supra, imposes no penalties, exacts no direct toll from those against whom its orders proceed. * * *' 34 The question of substituted service on the Secretary of the Commonwealth is not here in any aspect. As far as appears, service in this manner is not authorized by the Virginia statutes except where the nonresident has opened and is conducting a place of business within the State. Michie's Va.Code, 1942, § 3848(55)a. Up to this date Virginia has not claimed the power to require appellants, who do business in Virginia only by mail, to appoint the Secretary of the Commonwealth as their agent for service of process, nor have the courts of Virginia rendered judgment in a suit where service was made in that manner. I do not understand, therefore, what possible application the Court's reference to substituted service on the Secretary of the Commonwealth could have in this case. I would answer the question of due process when Virginia has attempted to apply its process to appellants in a proceeding that has consequences of a nature which entitle a person to the protection of the Due Process Clause. See Parker v. Los Angeles County, 338 U.S. 327, 70 S.Ct. 161. I would, therefore, dismiss the appeal. 35 As stated, it seems to me that the majority opinion is saying that Virginia has more power than it claims in the instant proceeding. While Virginia has not attempted to do more than publicize the activities of appellants in the State, I read the majority opinion to intimate that under the service by registered letter Virginia might go further. The cease and desist order issued cannot validly compel appellants to designate the Secretary of the Commonwealth as their agent for service of process, any more than it can constitutionally be considered as automatically accomplishing that result. An in personam judgment cannot be based upon service by registered letter on a nonresident corporation or a natural person, neither of whom has ever been within the State of Virginia. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Old Wayne Mutual Life Ass'n of Indianapolis, Ind. v. McDonough, 204 U.S. 8, 22—23, 27 S.Ct. 236, 240, 241, 51 L.Ed. 345. If that may not be done directly, it may not be done indirectly. Certainly such service cannot be justified where its purpose is to make substituted service legal in the future. These non-residents cannot be brought in through service by registered mail and compelled to designate the Secretary of the Commonwealth as their agent for service of process so that thereafter service may be effected upon such non-residents by serving the Secretary. So to hold would allow the State to pull itself up by its own bootstraps. 36 Service by registered mail is said by the majority to be sufficient where the corporation has 'minimum contacts' with the state of the forum. How many 'contacts' a corporation or person must have before being subjected to suit we are not informed. Here all of appellants' contacts with the residents of Virginia were by mail. No agent of appellant corporation has entered the State, nor has the individual appellant. The contracts were made wholly in Nebraska. Under these circumstances, I would hold that appellants were never 'present' in Virginia. 37 'For the terms 'present' or 'presence' are used merely to symbolize those activities of the corporation's agent within the state which courts will deem to be sufficient to satisfy the demands of due process.' International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 U.S. 310, 316—317, 66 S.Ct. 154, 158, 90 L.Ed. 95, 161 A.L.R. 1057. 38 As I understand the International Shoe Co. case, the minimum contacts which a corporation has in the State must be 'activities of the corporation's agent within the state.' There were such contacts by agents within the State in that case. Service was made, in addition to notice by registered letter, by personal service within the State upon one of those agents. Service on an agent within the jurisdiction would seem to me indispensable to a judgment against a corporation. It would seem to be an a fortiori proposition that judgment could not be obtained against a natural person who was not available for personal service. 39 We are not dealing here with the power of Virginia to regulate the transaction of insurance business with its citizens, as was the case in Osborn v. Ozlin, 310 U.S. 53, 60 S.Ct. 758, 84 L.Ed. 1074, and Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 63 S.Ct. 602, 87 L.Ed. 777, 145 A.L.R. 1113. In the case at bar we are concerned only with how Virginia may enforce such power as it has. No question of the sufficiency of service was involved in either the Osborn or the Hoopeston cases, both of which were brought against some officer of a state. The question in those cases was whether the State had power, and not whether, having the power, it had also acquired jurisdiction of a defendant against whom a judgment could be rendered enforcing that power. 40 I would not attempt to instruct Virginia as to how to protect its citizens from these intruders from Nebraska. But I do not believe we should even intimate that judgments in personam may be obtained, by the simple process of sending a registered letter, against a corporation whose agents have never been in the forum where suit is brought, or against a natural person who is not personally served within the State. 41 Mr. Justice REED and Mr. Justice FRANKFURTER, agreeing with the Court in reaching the merits, on the merits join this dissent. 1 Acts of the General Assembly of Virginia, 1928, c. 529, p. 1373, as amended, Acts of 1932, c. 236, p. 434, Michie's 1942 Code of Virginia, § 3848(47) et seq. 2 Michie § 3848(51), (55). 3 Pennsylvania Lumbermen's Mutual Fire Ins. Co. v. Meyer, 197 U.S. 407, 418, 419, 25 S.Ct. 483, 486, 497, 49 L.Ed. 810; Connecticut Mutual Life Ins. Co. v. Spratley, 172 U.S. 602, 619, 19 S.Ct. 308, 314, 43 L.Ed. 569; cf. International Shoe Co. v. State of Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95, 161 A.L.R. 1057. 4 One federal question suggested in the appellants' statement of jurisdiction was that § 6 as interpreted by the state court infringed federal control of the mails delegated to Congress by Art. I, § 8(7) of the United States Constitution. But appellants' brief on submission of the case does not include this question in the 'specifications of errors relied upon' and does not even mention that constitutional clause. 5 For examples of problems which might be raised by attempts to impose punishment for violation of the order, see Strassheim v. Daily, 221 U.S. 280, 284—285, 31 S.Ct. 558, 560, 55 L.Ed. 735; cf. Hyatt v. People of State of New York ex rel. Corkran, 188 U.S. 691, 712, 719, 23 S.Ct. 456, 459, 462, 47 L.Ed. 657. Section 6 itself provides no method for enforcement, except insofar as such stature might be attributed to its provision for giving a cease and desist order 'publicity * * * to the public through the press or otherwise as the commission may, in its discretion, determine to be advisable for the reasonable information and protection of the public.' 1 Acts of the General Assembly of Virginia, 1928, c. 529, p. 1373, as amended, Acts of 1932, c. 236, p. 434, Michie's Code of Virginia, § 3848(47) et seq. 2 Michie § 3848(47). 3 Michie § 3848(51). 4 Michie § 3848(51)(r). 5 Michie § 3848(55). 6 Michie § 3848(50)(m). 7 Michie § 3848(53). 8 By § 3(a)(8) insurance policies issued by a corporation subject to the supervision of specified state agencies are exempt from this federal regulation. Section 18 provides that the Act does not affect the jurisdiction of any state agency over a security or a person. 9 As Mr. Justice Rutledge said in Frene v. Louisville Cement Co., 77 U.S.App.D.C. 129, 134 F.2d 511, 516, 146 A.L.R. 926, '* * * some casual or even single acts done within the borders of the sovereignty may confer power to acquire jurisdiction of the person, provided there is also reasonable provision for giving notice of the suit in accordance with minimal due process requirements.'

34

339 U.S. 667 70 S.Ct. 876 94 L.Ed. 1194 SKELLY OIL CO. et al.v.PHILLIPS PETROLEUM CO. No. 221. Argued Dec. 9, 1949. Decided June 5, 1950. Mr. Charles L. Black, Austin, Tex., for petitioners. Mr. Harry D. Turner, Oklahoma City, Okl., for respondent. [Argument of Counsel from page 668 intentionally omitted] Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 In 1945, Michigan-Wisconsin Pipe Line Company sought from the Federal Power Commission a certificate of public convenience and necessity, required by § 7(c) of the Natural Gas Act, 52 Stat. 825, as amended, 15 U.S.C. § 717f(c), 15 U.S.C.A. § 717f(c), for the construction and operation of a pipe line to carry natural gas from Texas to Michigan and Wisconsin. A prerequisite for such a certificate is adequate reserves of gas. To obtain these reserves Michigan-Wisconsin entered into an agreement with Phillips Petroleum Company on December 11, 1945, whereby the latter undertook to make available gas from the Hugoton Gas Field, sprawling over Kansas, Oklahoma and Texas, which it produced or purchased from others. Phillips had contracted with petitioners, Skelly Oil Company, Stanolind Oil and Gas Company, and Magnolia Petroleum Company, to purchase gas produced by them in the Hugoton Field for resale to Michigan-Wisconsin. Each contract provided that 'in the event Michigan-Wisconsin Pipe Line Company shall fail to secure from the Federal Power Commission on or before (October 1, 1946) a certificate of public convenience and necessity for the construction and operation of its pipe line, Seller (a petitioner) shall have the right to terminate this contract by written notice to Buyer (Phillips) delivered to Buyer at any time after December 1, 1946, but before the issuance of such certificate.' The legal significance of this provision is at the core of this litigation. 2 The Federal Power Commission, in response to the application of Michigan-Wisconsin, on November 30, 1946, ordered that 'A certificate of public convenience and necessity be and it is hereby issued to applicant (Michigan-Wisconsin), upon the terms and conditions of this order,' listing among the conditions that there be no transportation or sale of natural gas by means of the sanctioned facilities until all necessary authorizations were obtained from the State of Wisconsin and the communities proposed to be served, that Michigan-Wisconsin should have the approval of the Securities and Exchange Commission for its plan of financing, that the applicant should file for the approval of the Commission a schedule of reasonable rates, and that the sanctioned facilities should not be used for the transportation of gas to Detroit and Ann Arbor except with due regard for the rights and duties of Panhandle Eastern Pipe Line Company, which had intervened before the Federal Power Commission, in its established service for resale in these areas, such rights and duties to be set forth in a supplemental order. It was also provided that Michigan-Wisconsin should have fifteen days from the issue of the supplemental order to notify the Commission whether the certificate 'as herein issued is acceptable to it.' Finally, the Commission's order provided that for purposes of computing the time within which applications for rehearing could be filed, 'the date of issuance of this order shall be deemed to be the date of issuance of the opinions, or of the supplemental order referred to herein, whichever may be later.' 5 F.P.C. 953, 954, 956. 3 News of the Commission's action was released on November 30, 1946, but the actual content of the order was not made public until December 2, 1946. Petitioners severally, on December 2, 1946, gave notice to Phillips of termination of their contracts on the ground that Michigan-Wisconsin had not received a certificate of public convenience and necessity. Thereupon Michigan-Wisconsin and Phillips brought suit against petitioners in the District Court for the Northern District of Oklahoma. Alleging that a certificate of public convenience and necessity, 'within the meaning of said Natural Gas Act and said contracts' had been issued prior to petitioners' attempt at termination of the contracts, they invoked the Federal Declaratory Judgment Act for a declaration that the contracts were still 'in effect and binding upon the parties thereto.' Motions by petitioners to have Michigan-Wisconsin dropped as a party plaintiff were sustained, but motions to dismiss the complaint for want of jurisdiction were denied. The case then went to the merits, and the District Court decreed that the contracts between Phillips and petitioners have not been 'effectively terminated and that each of such contracts remain (sic) in full force and effect.' The Court of Appeals for the Tenth Circuit affirmed, 174 F.2d 89, and we brought the case here, 338 U.S. 846, 70 S.Ct. 88, because it raises in sharp form the question whether a suit like this 'arises under the Constitution, laws or treaties of the United States,' 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, so as to enable District Courts to give declaratory relief under the Declaratory Judgment Act. 48 Stat. 955, as amended, now 28 U.S.C. § 2201, 28 U.S.C.A. § 2201. 4 '(T)he operation of the Declaratory Judgment Act is procedural only.' Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 463, 81 L.Ed. 617, 108 A.L.R. 1000. Congress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction. When concerned as we are with the power of the inferior federal courts to entertain litigation within the restricted area to which the Constitution and Acts of Congress confine them, 'jurisdiction' means the kinds of issues which give right of entrance to federal courts. Jurisdiction in this sense was not altered by the Declaratory Judgment Act. Prior to that Act, a federal court would entertain a suit on a contract only if the plaintiff asked for an immediately enforceable remedy like money damages or an injunction, but such relief could only be given if the requisites of jurisdiction, in the sense of a federal right or diversity, provided foundation for resort to the federal courts. The Declaratory Judgment Act allowed relief to be given by way of recognizing the plaintiff's right even though no immediate enforcement of it was asked. But the requirements of jurisdiction—the limited subject matters which alone Congress had authorized the District Courts to adjudicate—were not impliedly repealed or modified. See Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300, 63 S.Ct. 1070, 1074, 87 L.Ed. 1407; Colegrove v. Green, 328 U.S. 549, 551 552, 66 S.Ct. 1198, 1199, 90 L.Ed. 1432. 5 If Phillips sought damages from petitioners or specific performance of their contracts, it could not bring suit in a United States District Court on the theory that it was asserting a federal right. And for the simple reason that such a suit would 'arise' under the State law governing the contracts. Whatever federal claim Phillips may be able to urge would in any event be injected into the case only in anticipation of a defense to be asserted by petitioners. 'Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit.' Gully v. First National Bank in Meridian, 299 U.S. 109, 115, 57 S.Ct. 96, 99, 81 L.Ed. 70; compare 28 U.S.C. § 1257, 28 U.S.C.A. § 1257, with 28 U.S.C. § 1331, 28 U.S.C.A. § 1331. Ever since Metcalf v. City of Watertown, 128 U.S. 586, 589, 9 S.Ct. 173, 174, 32 L.Ed. 543, it has been settled doctrine that where a suit is brought in the federal courts 'upon the sole ground that the determination of the suit depends upon some question of a federal nature, it must appear, at the outset, from the declaration or the bill of the party suing, that the suit is of that character.' But 'a suggestion of one party that the other will or may set up a claim under the Constitution or laws of the United States does not make the suit one arising under that Constitution or those laws.' State of Tennessee v. Union & Planters' Bank, 152 U.S. 454, 464, 14 S.Ct. 654, 657, 38 L.Ed. 511. The plaintiff's claim itself must present a federal question 'unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.' Taylor v. Anderson, 234 U.S. 74, 75—76, 34 S.Ct. 724, 58 L.Ed. 1218; Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126. 6 These decisions reflect the current of jurisdictional legislation since the Act of March 3, 1875, 18 Stat. 470, first entrusted to the lower federal courts wide jurisdiction in cases 'arising under this Constitution, the Laws of the United States, and Treaties.' U.S.Const. Art. III, § 2. 'The change is in accordance with the general policy of these acts, manifest upon their face, and often recognized by this court, to contract the jurisdiction of the circuit courts (which became the District Courts) of the United States.' State of Tennessee v. Union & Planters' Bank, supra, 152 U.S. at page 462, 14 S.Ct. at page 657. See also State of Arkansas v. Kansas & Texas Coal Co., 183 U.S. 185, 188, 22 S.Ct. 47, 48, 46 L.Ed. 144, and Gully v. First National Bank in Meridian, supra, 299 U.S. at pages 112—114, 57 S.Ct. at pages 97, 98. With exceptions not now relevant, Congress has narrowed the opportunities for entrance into the federal courts, and this Court has been more careful than in earlier days in enforcing these jurisdictional limitations. See Gully v. First National Bank in Meridian, supra, 299 U.S. at page 113, 57 S.Ct. at pages 97, 98. 7 To be observant of these restrictions is not to indulge in formalism or sterile technicality. It would turn into the federal courts a vast current of litigation indubitably arising under State law, in the sense that the right to be vindicated was State-created, if a suit for a declaration of rights could be brought into the federal courts merely because an anticipated defense derived from federal law. Not only would this unduly swell the volume of litigation in the District Courts but it would also embarrass those courts—and this Court on potential review—in that matters of local law may often be involved, and the District Courts may either have to decide doubtful questions of State law or hold cases pending disposition of such State issues by State courts. To sanction suits for declaratory relief as within the jurisdiction of the District Courts merely because, as in this case, artful pleading anticipates a defense based on federal law would contravene the whole trend of jurisdictional legislation by Congress, disregard the effective functioning of the federal judicial system and distort the limited procedural purpose of the Declaratory Judgment Act. See Developments in the Law—Declaratory Judgments—1941—1949, 62 Harv.L.Rev. 787, 802—803 (1949). Since the matter in controversy as to which Phillips asked for a declaratory judgment is not one that 'arises under the * * * laws * * * of the United States' and since as to Skelly and Stanolind jurisdiction cannot be sustained on the score of diversity of citizenship, the proceedings against them should have been dismissed. 8 As to Magnolia, a Texas corporation, a different situation is presented. Since Phillips was a Delaware corporation, there is diversity of citizenship. Magnolia had qualified to do business in Oklahoma and appointed an agent for service of process in accordance with the prevailing Oklahoma statute. Okla.Stat.Ann. tit. 18, § 452. Magnolia claimed that the subject matter of this proceeding did not arise in Oklahoma within the meaning of its consent to be sued. This contention was rejected below, and we do not reexamine the local law as applied by the lower courts. Under the doctrine of Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437, venue was properly laid in Oklahoma; that the declaratory remedy which may be given by the federal courts may not be available in the State courts is immaterial. 9 Therefore, in the case of Magnolia we must reach the merits. They relate to two matters: (1) the clause in the contract with Phillips permitting its termination at any time after December 1, 1946, but before the 'issuance' of 'a certificate of public convenience and necessity' by the Federal Power Commission; and (2) whether this provision was satisfied by Magnolia's notice of termination of December 2, 1946, despite the Commission's order of November 30, 1946. The phraseology 'certificate of public convenience and necessity' in the contract is identic with the phrase in § 7(c) of the Natural Gas Act. The Court of Appeals equated the term of the contract with that in the statute and in effect deemed its problem to be the proper construction of what constitutes the 'issuance' of a 'certificate of public convenience and necessity' within the meaning of § 7(c). So viewing the matter, the court held that the order of November 30, 1946, satisfied the requirement of the contract, and that therefore a certificate of public convenience and necessity had been issued within the terminal period of the contract, and that its termination was not timely. 10 It will be recalled that the order of November 30, 1946, had three parts: (A) it stated that 'A certificate of public convenience and necessity be and it is hereby issued to applicant Michigan-Wisconsin"; (B) it imposed (B) it imposed certain conditions upon the grant, some of which were to be set forth in a supplemental order; and (C) it said that 'For the purpose of computing the time within which applications for rehearing may be filed, the date of issuance of this order shall be deemed to be the date of the issuance of the opinions, or of the supplemental order referred to herein, whichever may be the later.' 5 F.P.C. at 954, 956. The course of reasoning by which the Court of Appeals concluded that the order of November 30, 1946, satisfied the statutory requirement for a certificate of public convenience and necessity can be briefly summarized. It relied on the grammatical argument that the Commission used the present tense in its order and subsequently referred to it as an order 'issuing a certificate of public convenience and necessity,' e.g., 6 F.P.C. 1, 37; the conditional nature of the order was not deemed to impair its efficacy since § 7(e) of the Natural Gas Act authorized the Commission 'to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require'; and the provision of the order connecting the date of the order's issuance with the time defined for securing a rehearing was thought relevant only to the supplemental order. 11 We are not persuaded now to rest decision on the analysis of the Court of Appeals which led to its conclusion. We need not linger long on the merely grammatical argument of that court; it is given more weight than it can bear. Of course, the Commission has considerable administrative discretion to decide when an order may fairly be deemed to have been 'issued.' Section 16 of the Act, 15 U.S.C.A. § 717o, provides that 'Orders of the Commission shall be effective on the date and in the manner which the Commission shall prescribe.' But surely a certificate cannot be said to have been issued for purposes of defining rights and the seeking of reconsideration by an aggrieved person if its substance is merely in the bosom of the Commission. Knowledge of the substance must to some extent be made manifest. Here the content of the order of November 30, 1946, was not made public until December 2, 1946, the date of the termination notice. 12 The Commission itself in its rule for computing rehearing time distinguishes between 'adoption' of an order and its 'issuance.'1 However, as a matter of usage, the Commission has referred to an order as having 'issued' a certificate on a particular date when in fact the date was that of 'adoption.' See, e.g., Arkansas Louisiana Gas Co., 5 F.P.C. 813, 897; cf. Pacific Gas & Elec. Co., 5 F.P.C. 824, 901. Finally, the restriction of the Court of Appeals of the rehearing provision of Part C to the supplemental order finds no support on the face of the order of November 30, 1946. There is nothing to indicate that Part C was not to apply to the entire order for purposes of § 19 of the Act, 15 U.S.C.A. § 717r, which allows a rehearing by a party aggrieved 'within thirty days after the issuance of such order' and makes such rehearing a prerequisite to judicial review. See 6 F.P.C. 323. 13 Since the requirements of the Natural Gas Act for the issuance of 'a certificate of public convenience and necessity' may be distributive in scope, varying with the different contexts in which the question must be examined, this is not the occasion to decide that these requirements have a single uniform content. Whether the statutory requirement here was satisfied is not a question of fact, the finding of which by the District Court is to be respected unless clearly erroneous. The District Court merely found that the content of the piece of paper dated November 30, 1946, was that day agreed upon in executive session of the Commission and that that fact was made known. But this leaves untouched the legal significance of this action of the Commission, and the Court ought not now in darkness to pronounce on this question. 14 We are not restricted to disposition of the controversy on so truncated a treatment of the issues that underlie the record. Considering the fact that so to dispose of the case would involve determination of an important problem concerning a regulatory statute with implications of public importance that private litigants naturally enough do not wholly represent and that on these matters neither the courts below nor this Court had the benefit of the experience and illumination of the agency entrusted with the enforcement of the Act,2 the due administration of justice requires that we should exercise our discretionary power in reviewing cases to 'require such further proceedings to be had as may be just under the circumstances.' 28 U.S.C. § 2106; Honeyman v. Hanan, 300 U.S. 14, 25, 57 S.Ct. 350, 355, 81 L.Ed. 476. Accordingly, we think that the proper disposition requires that we vacate the judgment as to Magnolia and remand the case in order that the Court of Appeals either itself or by sending the case back to the District Court can further explore, through ways that may be appropriate, the issues which have been laid bare. See Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct. 1031, 92 L.Ed. 1347. 15 The impact of the litigation both here and below was on the proper construction of § 7(c). Even though the language of the contract may be identic with that of § 7(c), this language in the contract may have a scope independent of the proper construction of § 7(c). The same words, in different settings, may not mean the same thing. Compare opinion of Mr. Justice Holmes in Towne v. Eisner, 245 U.S. 418, 38 S.Ct. 158, 62 L.Ed. 372, L.R.A.1918D, 254, with his dissent in Eisner v. Macomber, 252 U.S. 189, 219, 40 S.Ct. 189, 197, 64 L.Ed. 521, 9 A.L.R. 1570. Parties do not necessarily endow statutory language in a contract with the scope of the statute, particularly when the same term may have variant meanings for different applications of the statute. See Standard Oil Co. of California v. Johnson, 316 U.S. 481, 483, 62 S.Ct. 1168, 1169, 86 L.Ed. 1611. Of course the statutory meaning in the context of the entire Natural Gas Act, 15 U.S.C.A. § 717 et seq., may not be irrelevant. In remanding the case we do not mean to foreclose this line of inquiry.3 16 In respect to Magnolia, the judgment of the Court of Appeals is vacated and the cause remanded for further proceedings not inconsistent with this opinion. As to Skelly and Stanolind, we reverse the judgment with directions that the cause be dismissed. 17 It is so ordered. 18 Judgment of Court of Appeals vacated in respect to Magnolia and cause remanded with directions; judgment as to Skelly and Stanolind reversed with directions. 19 Mr. Justice BLACK agrees with the Court of Appeals and would affirm its judgment. 20 Mr. Justice DOUGLAS took no part in the consideration or disposition of this case. 21 Mr. Chief Justice VINSON, with whom Mr. Justice BURTON joins, dissenting in part. 22 I concur in that part of the Court's judgment that directs dismissal of the cause as to Skelly and Stanolind. I have real doubts as to whether there is a federal question here at all, even though interpretation of the contract between private parties requires an interpretation of a federal statute and the action of a federal regulatory body. But the Court finds it unnecessary to reach that question because it holds that the federal question, if any, is not a part of the plaintiff's claim and that jurisdiction does not, therefore, attach. While this result is not a necessary one, I am not prepared to dissent from it at this time. 23 But I am forced to dissent from the vacation and remand of the cause in respect to Magnolia. I think that, as to this petitioner, the judgment of the Court of Appeals should be affirmed. The Court decides that the Court of Appeals erred in holding that the Federal Power Commission had issued a certificate of public convenience and necessity to Michigan-Wisconsin Pipe Line Company on November 30, 1946, despite the fact that on that date the Commission adopted an order stating that 'A certificate of public convenience and necessity should be and it is hereby issued to Applicant, upon the terms and conditions of this order, * * *.' This disregard for what the District Court found to be the Commission's express intention is based upon two alternative grounds. First, it is suggested that while the order issuing the certificate was 'adopted' on November 30, it was not 'issued' until December 2. Second, it is said that Part C of the November 30 order, which concerned the date of issuance of the order for purposes of applications for rehearing, precludes a finding that a certificate was issued on November 30. Neither of these grounds, in my judgment, supports the Court's conclusion. 24 As to the first, which was not argued here nor in the Court of Appeals, it is true that the Commission's rules provide that an order is not to be deemed 'issued' until the full text is mimeographed and mailed to the parties to the proceeding. This usually follows within two or three days after the order is 'adopted.' The only purpose of the postponement of the date of issuance of the order, so far as we are informed, is to postpone the running of the 30-day period for applications for rehearing until the full text is available to the parties who have standing to ask for rehearing. 25 But the Commission uniformly refers to the date of adoption of the order as the date upon which the certificate of public convenience and necessity was 'issued.'1 It did so in this case, when, on March 12, 1947, it issued a supplemental order referring to its 'order of November 30, 1946, issuing a certificate of public convenience and necessity.' Furthermore, the District Court found as a fact that 26 'On November 30, a Saturday, the Commission in executive session made an order granting, with conditions, a certificate of public covenience and necessity to the Michigan-Wisconsin Pipe Line Company. During this session as the members of the Commission came to agreement as to the wording of the order, Mr. Fuquay, the secretary of the Commission, prepared the order in full and exact text. The secretary was directed by the Commission to release the order immediately.' 27 Following adjournment on that day, the secretary sent a telegram to the parties to the proceeding, informing them that the 'Commission today * * * adopted Opinion and Order, in Docket No. G.—669, issuing certificate, with conditions, to Michigan-Wisconsin Pipe Line Company.' On the same day, releases to the press were made announcing the action taken by the Commission. 28 Skelly, Stanolind and Magnolia were not parties to this proceeding. It may very well be that the date of issuance of the order granting the certificate is December 2 or some later date—for purposes of rehearing upon application of the parties. But I think there is no question that the certificate, as distinguished from the order, was issued on November 30. That is the Commission's view, as indicated by its supplemental order. The fact that it takes a few days to get its orders mimeographed and the Commission has adopted a rule that, in fairness to the parties, the time for rehearing shall not begin to run until such orders, in full text, are available, does not mean that the issuance of the certificate is also held in abeyance until that time. 29 The second argument requires but short answer. Part C provides that 30 'For the purposes of computing time within which applications for rehearing may be filed, the date of issuance of this order shall be deemed to be the date of issuance of the opinions, or of the supplemental order referred to herein, whichever may be later.' 31 The paragraph means just what it says. I do not understand the Court to hold that the Commission cannot thus postpone the running of the time for rehearing. Computation of that time, as I have indicated, has no necessary relation to the date of issuance of the certificate. 32 I think that the Commission intended to and did issue a certificate of public convenience and necessity to Michigan-Wisconsin Pipe Line Company on November 30, 1946, whatever the date of its order, for purposes of computation of time for rehearing. The crucial clause of the contract refers to 'the issuance of such certificate (of public convenience and necessity).' By their inclusion of a provision dependent upon the action of a federal agency, it is obvious that the parties intended that the contract should be construed with reference to the effective date of agency action under the statutes and the practices of the Commission. The District Court so concluded.2 I can see no reason, therefore, to remand the cause for further proceedings. In my view, effective agency action was taken on November 30, 1946. As to Magnolia, I would affirm the judgment of the Court of Appeals. 1 Rule 13(b) of the Commission's Rules of Practice and Procedure provides: 'In computing any period of time involving the date of the issuance of an order by the Commission, the day of issuance of an order shall be the day the Office of the Secretary mails or delivers copies of the order (full text) to the parties or their attorneys of record, or makes such copies public, whichever be the earlier. * * * The day of issuance of an order may or may not be the day of its adoption by the Commission.' 18 C.F.R. § 1.13(b). A deposition taken of the Secretary of the Commission gave light on this point. The Commission's previous rule on rehearing time is in 18 C.F.R. Cum.Supp. § 50.75. Rule 13(c) provides: 'Orders of the Commission shall be effective as of the dates of issuance unless otherwise specifically provided in the orders.' 18 C.F.R. § 1.13(c). This provision may be of significance if the effectiveness of a certificate is an issue in proceedings under §§ 20 or 21 of the Act, 15 U.S.C.A. §§ 717s, 717t. The Court of Appeals did not discuss the bearing of these rules upon this case. 2 The significance of the conditions in qualifying what is formally called a 'certificate' in the order of November 30, 1946, is precisely one of those matters upon which Commission practice and experience may shed helpful light. 3 In its conclusions of law, the District Court stated: 'The certificate issued by the Commission to Michigan-Wisconsin on November 30, 1946, although containing terms and conditions, was and is a certificate issued under the requirements of the Natural Gas Act and one that is provided for by that act. A consideration of the contracts between plaintiff and defendants, together with the contract between plaintiff and Michigan-Wisconsin, compels a conclusion that such certificate was one within the contemplation of the parties and satisfied the terms of the contracts.' The context suggests that in the second sentence the District Court may still have been focusing upon statutory meaning. 1 See, e.g., Arkansas Louisiana Gas Co., 5 F.P.C. 813, 897; Pacific Gas and Elec. Co., 5 F.P.C. 824, 901. 2 The District Court stated as one of its conclusions of law: 'The certificate issued by the Commission to Michigan-Wisconsin on November 30, 1946, although containing terms and conditions, was and is a certificate issued under the requirements of the Natural Gas Act and one that is provided for by that act. A consideration of the contracts between plaintiff and defendants, together with the contract between plaintiff and Michigan-Wisconsin, compels a conclusion that such certificate was one within the contemplation of the parties and satisfied the terms of the contracts.'

89

339 U.S. 846 70 S.Ct. 901 94 L.Ed. 1328 OSMANv.DOUDS, Individually and as Regional Director of the National Labor RelationsBoard. No. 12. On Jurisdictional Statement Distributed Nov. 26, 1948. Decided June 5, 1950. Rehearing Denied Oct. 9, 1950. See 71 S.Ct. 12. Samuel A. Newberger, New York City, for appellants. No appearance for appellee. PER CURIAM. 1 This case was heretofore held for, and presents the same issues involved in, American Communications Association, C.I.O., et al. v. Douds, and United Steel-workers of America, et al. v. National Labor Relations Board, 1950, 339 U.S. 382, 70 S.Ct. 674. In these cases the Court upheld the constitutionality of § 9(h) of the National Labor Relations Act, as amended by the Labor Management Relations Act of 1947, 61 Stat. 136, 146, 29 U.S.C.Supp. III, §§ 141, 159(h), 29 U.S.C.A. §§ 141, 159(h), which provides: 2 'No investigation shall be made by the (National Labor Relations) Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, no petition under subsection (e)(1) of this section shall be entertained, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 160 of this title, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelve-month period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit 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.' 3 With regard to that part of the section which is concerned with membership in, or affiliation with, the Communist Party, the Court holds the requirement to be constitutional. Mr. Justice BLACK dissents for reasons stated in his dissent in American Communications Association C.I.O. v. Douds, supra. 4 With regard to the constitutionality of other relevant parts of the section, the Court is equally divided. Mr. Justice MINTON joins in the views expressed by the CHIEF JUSTICE, who was joined by Mr. Justice REED and Mr. Justice BURTON in the cases above cited. Mr. Justice BLACK, Mr. Justice FRANKFURTER and Mr. Justice JACKSON adhere to their opinions in those cases. Mr. Justice DOUGLAS joins the dissenting opinions of Mr. Justice BLACK, Mr. Justice FRANKFURTER and Mr. Justice JACKSON insofar as they hold unconstitutional the portion of the oath dealing with beliefs, and being of the view that provisions of the oath are not separable votes to reverse. He therefore does not find it necessary to reach the question of the constitutionality of the other part of the oath. The judgment of the District Court is therefore affirmed. 5 Affirmed. 6 Mr. Justice CLARK took no part in the consideration or decision of this case.

23

339 U.S. 763 70 S.Ct. 936 94 L.Ed. 1255 JOHNSON, Secretary of Defense, et al.,v.EISENTRAGER et al. No. 306. Argued April 17, 1950. Decided June 5, 1950. [Syllabus from pages 763-765 intentionally omitted] Mr. Solicitor General Philip B. Perlman, Washington, D.C., for petitioners. Messrs. A. Frank Reel, Boston, Mass., Milton Sandberg, New York City, for respondents. Mr. Justice JACKSON delivered the opinion of the Court. 1 The ultimate question in this case is one of jurisdiction of civil courts of the United States vis-a -vis military authorities in dealing with enemy aliens overseas. The issues come here in this way: 2 Twenty-one German nationals petitioned the District Court of the District of Columbia for writs of habeas corpus. They alleged that, prior to May 8, 1945, they were in service of German armed forces in China. They amended to allege that their employment there was by civilian agencies of the German Government. Their exact affiliation is disputed, and, for our purposes, immaterial. On May 8, 1945, the German High Command executed an act of unconditional surrender, expressly obligating all forces under German control at once to cease active hostilities. These prisoners have been convicted of violating laws of war, by engaging in, permitting or ordering continued military activity against the United States after surrender of Germany and before surrender of Japan. Their hostile operations consisted principally of collecting and furnishing intelligence concerning American forces and their movements to the Japanese armed forces. They, with six others who were acquitted, were taken into custody by the United States Army after the Japanese surrender and were tried and convicted by a Military Commission constituted by our Commanding General at Nanking by delegation from the Commanding General, United States Forces, China Theatre, pursuant to authority specifically granted by the Joint Chiefs of Staff of the United States. The Commission sat in China, with express consent of the Chinese Government. The proceeding was conducted wholly under American auspices and involved no international participation. After conviction, the sentences were duly reviewed and, with immaterial modification, approved by military reviewing authority. 3 The prisoners were repatriated to Germany to serve their sentences. Their immediate custodian is Commandant of Landsberg Prison, an American Army officer under the Commending General, Third United States Army and the Commanding General, European Command. He could not be reached by process from the District Court. Respondents named in the petition are Secretary of Defense, Secretary of the Army, Chief of Staff of the Army, and the Joint Chiefs of Staff of the United States. 4 The petition alleges, and respondents denied, that the jailer is subject to their direction. The Court of Appeals assumed, and we do likewise, that, while prisoners are in immediate physical custody of an officer or officers not parties to the proceeding, respondents named in the petition have lawful authority to effect that release. 5 The petition prays an order that the prisoners be produced before the District Court, that it may inquire into their confinement and order them discharged from such offenses and confinement. It is claimed that their trial, conviction and imprisonment violate Articles I and III of the Constitution, and the Fifth Amendment thereto, and other provisions of the Constitution and laws of the United States and provisions of the Geneva Convention governing treatment of prisoners of war. 6 A rule to show cause issued, to which the United States made return. Thereupon the petition was dismissed on authority of Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898. 7 The Court of Appeals reversed and, reinstating the petition, remanded for further proceedings. 84 U.S.App.D.C. 396, 174 F.2d 961. It concluded that any person, including an enemy alien, deprived of his liberty anywhere under any purported authority of the United States is entitled to the writ if he can show that extension to his cases of any constitutional rights or limitations would show his imprisonment illegal; that, although no statutory jurisdiction of such cases is given, courts must be held to possess it as part of the judicial power of the United States; that where deprivation of liberty by an official act occurs outside the territorial jurisdiction of any District Court, the petition will lie in the District Court which has territorial jurisdiction over officials who have directive power over the immediate jailer. 8 The obvious importance of these holdings to both judicial administration and military operations impelled us to grant certiorari. 338 U.S. 877, 70 S.Ct. 158. The case is before us only on issues of law. The writ of habeas corpus must be granted 'unless it appears from the application' that the applicants are not entitled to it. 28 U.S.C. § 2243, 28 U.S.C.A. § 2243. 9 We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes. Absence of support from legislative or juridical sources is implicit in the statement of the court below that 'The answers stem directly from fundamentals. They cannot be found by casual reference to statutes or cases.' The breadth of the court's premises and solution requires us to consider questions basic to alien enemy and kindred litigation which for some years have been beating upon our doors.1 I. 10 Modern American law has come a long way since the time when outbreak of war made every enemy national an outlaw, subject to both public and private slaughter, cruelty and plunder. But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance,2 nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments. 11 With the citizen we are now little concerned, except to set his case apart as untouched by this decision and to take measure of the difference between his status and that of all categories of aliens. Citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar. The years have not destroyed nor diminished the importance of citizenship nor have they sapped the vitality of a citizen's claims upon his government for protection. If a person's claim to United States citizenship is denied by any official, Congress has directed our courts to entertain his action to declare him to be a citizen 'regardless of whether he is within the United States or abroad.' 54 Stat. 1171, 8 U.S.C. § 903, 8 U.S.C.A. § 903. This Court long ago extended habeas corpus to one seeking admission to the country to assure fair hearing of his claims to citizenship, Chin Yow v. United States, 208 U.S. 8, 28 S.Ct. 201, 52 L.Ed. 369, and has secured citizenship against forfeiture by involuntary formal acts, Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320.3 Because the Government's obligation of protection is correlative with the duty of loyal support inherent in the citizen's allegiance, Congress has directed the President to exert the full diplomatic and political power of the United States on behalf of any citizen, but of no other, in jeopardy abroad. When any citizen is deprived of his liberty by any foreign government, it is made the duty of the President to demand the reasons and, if the detention appears wrongful, to use means not amounting to acts of war to effectuate his release.4 It is neither sentimentality nor chauvinism to repeat that 'Citizenship is a high privilege.' United States v. Manzi, 276 U.S. 463, 467, 48 S.Ct. 328, 329, 72 L.Ed. 654. 12 The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization. During his probationary residence, this Court has steadily enlarged his right against Executive deportation except upon full and fair hearing. The Japanese Immigrant Case (Yamatayo v. Fisher), 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721; Low Wah Suey v. Backus, 225 U.S. 460, 32 S.Ct. 734, 56 L.Ed. 1165; Tisi v. Tod, 264 U.S. 131, 44 S.Ct. 260, 68 L.Ed. 590; United States ex rel. Vajtauer v. Com'r, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560; Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103; Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445. And, at least since 1886, we have extended to the person and property of resident aliens important constitutional guaranties such as the due process of law of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. 13 But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act. In the pioneer case of Yick Wo v. Hopkins, the Court said of the Fourteenth Amendment, 'These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; * * *.' (Italics supplied.) 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220. And in The Japanese Immigrant Case, the Court held its processes available to 'an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here.' 189 U.S. 86, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721. 14 Since most cases involving aliens afford this ground of jurisdiction, and the civil and property rights of immigrants or transients of foreign nationality so nearly approach equivalence to those of citizens, courts in peace time have little occasion to inquire whether litigants before them are alien or citizen. 15 It is war that exposes the relative vulnerability of the alien's status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us. While his lot is far more humane and endurable than the experience of our citizens in some enemy lands, it is still not a happy one. But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war and not as an incident of alienage. Judge Cardozo commented concerning this distinction: 'Much of the obscurity which surrounds the rights of aliens has its origin in this confusion of diverse subjects.' Techt v. Hughes, 229 N.Y. 222, 237, 128 N.E. 185, 189, 11 A.L.R. 166. 16 American doctrine as to effect of war upon the status of nationals of belligerents took permanent shape following our first foreign war. Chancellor Kent, after considering the leading authorities of his time, declared the law to be that '* * * in war, the subjects of each country were enemies to each other, and bound to regard and treat each other as such.' Griswold v. Waddington, 16 Johns., N.Y., 438, 480. If this was ever something of a fiction, it is one validated by the actualities of modern total warfare. Conscription, compulsory service and measures to mobilize every human and material resource and to utilize nationals—wherever they may be—in arms, intrigue and sabotage, attest the prophetic realism of what once may have seemed a doctrinaire and artificial principle. With confirmation of recent history, we may reiterate this Court's earlier teaching that in war 'every individual of the one nation must acknowledge every individual of the other nation as his own enemy—because the enemy of his country.' The Rapid, 8 Cranch 155, 161, 3 L.Ed. 520. See also White v. Burnley, 20 How. 235, 249, 15 L.Ed. 886. Lamar v. Browne, 92 U.S. 187, 194, 23 L.Ed. 650. And this without regard to his individual sentiments or disposition. The Benito Estenger, 176 U.S. 568, 571, 20 S.Ct. 489, 490, 44 L.Ed. 592. The alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign. 17 The United States does not invoke this enemy allegiance only for its own interest, but respects it also when to the enemy's advantage. In World War I our conscription act did not subject the alien enemy to compulsory military service. 40 Stat. 885, c. XII, § 4. The Selective Service Act of 1948, 62 Stat. 604, 50 U.S.C.Appendix, § 454(a), 50 U.S.C.A.Appendix, § 454(a), exempts aliens who have not formally declared their intention to become citizens from military training, service and registration, if they make application, but if so relieved, they are barred from becoming citizens. Thus the alien enemy status carries important immunities as well as disadvantages. The United States does not ask him to violate his allegiance or to commit treason toward his own country for the sake of ours. This also is the doctrine and the practice of other states comprising our Western Civilization.5 18 The essential pattern for seasonable Executive constraint of enemy aliens, not on the basis of individual prepossessions for their native land but on the basis of political and legal relations to the enemy government, was laid down in the very earliest days of the Republic and has endured to this day. It was established by the Alien Enemy Act of 1798. 1 Stat. 577, as amended, 50 U.S.C. § 21, 50 U.S.C.A. § 21. And it is to be noted that, while the Alien and Sedition Acts of that year provoked a reaction which helped sweep the party of Mr. Jefferson into power in 1800, and though his party proceeded to undo what was regarded as the mischievous legislation of the Federalists, this enactment was never repealed.6 Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security. This is in keeping with the practices of the most enlightened of nations and has resulted in treatment of alien enemies more considerate than that which has prevailed among any of our enemies and some of our allies. This statute was enacted or suffered to continue by men who helped found the Republic and formulate the Bill of Rights, and although it obviously denies enemy aliens the constitutional immunities of citizens, it seems not then to have been supposed that a nation's obligations to its foes could ever be put on a parity with those to its defenders. 19 The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a 'declared war' exists. Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the Alien Enemy Act. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment. Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881.7 20 The standing of the enemy alien to maintain any action in the courts of the United States has been often challenged and sometimes denied. The general statement was early made on combined authority of Kent and Story 'That they have no power to sue in the public courts of the enemy nation.' Griswold v. Waddington, 16 Johns., N.Y., 438, 477. Our rule of generous access to the resident enemy alien was first laid down by Chancellor Kent in 1813, when, squarely faced with the plea that an alien enemy could not sue upon a debt contracted before the War of 1812, he reviewed the authorities to that time and broadly declared that 'A lawful residence implies protection, and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than to justice and humanity.' Clarke v. Morey, 10 Johns., N.Y., 70, 72. A unanimous Court recently clarified both the privilege of access to our courts and the limitations upon it. We said: 'The ancient rule against suits by resident alien enemies has survived only so far as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy. This may be taken as the sound principle of the common law today.' Ex parte Kawato, 317 U.S. 69, 75, 63 S.Ct. 115, 118, 87 L.Ed. 58. 21 But the nonresident enemy alien, especially one who has remained in the service of the enemy, does not have been this qualified access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy. Our law on this subject first emerged about 1813 when the Supreme Court of the State of New York had occassion, in a series of cases, to examine the foremost authorities of the Continent and of England. It concluded the rule of the common law and the law of nations to be that alien enemies resident in the country of the enemy could not maintain an action in its courts during the period of hostilities. Bell v. Chapman, 10 Johns., N.Y., 183; Jackson ex dem. Johnston v. Decker, 11 Johns., N.Y., 418; Clarke v. Morey, 10 Johns., N.Y., 69, 70, 74 75. This Court has recognized that rule, Caperton v. Bowyer, 14 Wall. 216, 236, 20 L.Ed. 882; Masterson v. Howard, 18 Wall. 99, 105, 21 L.Ed. 764, and followed it, Ex parte Colonna, 314 U.S. 510, 62 S.Ct. 373, 86 L.Ed. 379, and it continues to be the law throughout this country and in England.8 II. 22 The foregoing demonstrates how much further we must go if we are to invest these enemy aliens, resident, captured and imprisoned abroad, with standing to demand access to our courts. 23 We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States. 24 We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the sences of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States. 25 Another reason for a limited opening of our courts to resident aliens is that among them are many of friendly personal disposition to whom the status of enemy is only one imputed by law. But these prisoners were actual enemies, active in the hostile service of an enemy power There is no fiction about their enmity. Yet the decision below confers upon them a right to use our courts, free even of the limitation we have imposed upon resident alien enemies, to whom we deny any use of our courts that would hamper our war effort or aid the enemy. 26 A basic consideration in habeas corpus practice is that the prisoner will be produced before the court. This is the crux of the statutory scheme established by the Congress;9 indeed, it is inherent in the very term 'habeas corpus.'10 And though production of the prisoner may be dispensed with where it appears on the face of the application that no cause for granting the writ exists, Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 578, 85 L.Ed. 830, we have consistently adhered to and recognized the general rule. Ahrens v. Clark, 335 U.S. 188, 190—191, 68 S.Ct. 1443, 1441, 92 L.Ed. 1898. To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States. 27 Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers. Except England, whose law appears to be in harmony with the views we have expressed, and other English-speaking peoples in whose practice nothing has been cited to the contrary, the writ of habeas corpus is generally unknown. 28 The prisoners rely, however, upon two decisions of this Court to get them over the threshold—Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3, and In re Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499. Reliance on the Quirin case is clearly mistaken. Those prisoners were in custody in the District of Columbia. One was, or claimed to be, a citizen. They were tried by a Military Commission sitting in the District of Columbia at a time when civil courts were open and functioning normally. They were arrested by civil authorities and the prosecution was personally directed by the Attorney General, a civilian prosecutor, for acts committed in the United States. They waived arraignment before a civil court and it was contended that the civil courts thereby acquired jurisdiction and could not be ousted by the Military. None of the places where they were acting, arrested, tried or imprisoned were, it was contended, in a zone of active military operations, were not under martial law or any other military control, and no circumstances justified transferring them from civil to military jurisdiction. None of these grave grounds for challenging military jurisdiction can be urged in the case now before us. 29 Nor can the Court's decision in the Yamashita case aid the prisoners. This Court refused to receive Yamashita's petition for a writ of habeas corpus. For hearing and opinion, it was consolidated with another application for a writ of certiorari to review the refusal of habeas corpus by the Supreme Court of the Philippines over whose decisions the statute then gave this Court a right of review. 28 U.S.C. § 349 (1940), repealed by Act of June 25, 1948, c. 646, § 39, 62 Stat. 992, 1000. By reason of our sovereignty at that time over these insular possessions, Yamashita stood much as did Quirin before American courts. Yamashita's offenses were committed on our territory, he was tried within the jurisdiction of our insular courts and he was imprisoned within territory of the United States. None of these heads of jurisdiction can be invoked by these prisoners. 30 Despite this, the doors of our courts have not been summarily closed upon these prisoners. Three courts have considered their application and have provided their counsel opportunity to advance every argument in their support and to show some reason in the petition why they should not be subject to the usual disabilities of non-resident enemy aliens. This is the same preliminary hearing as to sufficiency of application that was extended in Quirin, supra, Yamashita, supra, and Hirota v. MacArthur, 338 U.S. 197, 69 S.Ct. 197, 1238, 93 L.Ed. 1902. After hearing all contentions they have seen fit to advance and considering every contention we can base on their application and the holdings below, we arrive at the same conclusion the Court reached in each of those cases, viz.: that no right to the writ of habeas corpus appears. III. 31 The Court of Appeals dispensed with all requirement of territorial jurisdiction based on place of residence, captivity, trial, offense, or confinement. It could not predicate relief upon any intraterritorial contact of these prisoners with our laws or institutions. Instead, it gave our Constitution an extraterritorial application to embrace our enemies in arms. Right to the writ, it reasoned, is a subsidiary procedural right that follows from possession of substantive constitutional rights. These prisoners, it considered, are invested with a right of personal liberty by our Constitution and therefore must have the right to the remedial writ. The court stated the steps in its own reasoning as follows: 'First. The Fifth Amendment, by its terms, applies to 'any person'. Second. Action of Government officials in violation of the Constitution is void. This is the ultimate essence of the present controversy. Third. A basic and inherent function of the judicial branch of a government built upon a constitution is to set aside void action by government officials, and so to restrict executive action to the confines of the constitution. In our jurisprudence, no Government action which is void under the Constitution is exempt from judicial power. Fourth. The writ of habeas corpus is the established, time-honored process in our law for testing the authority of one who deprives another of his liberty,—'the best and only sufficient defense of personal freedom.' * * *' 84 U.S.App.D.C. 396, 398—399, 174 F.2d 961, 963 964. 32 The doctrine that the term 'any person' in the Fifth Amendment spreads its protection over alien enemies anywhere in the world engaged in hostilities against us, should be weighed in light of the full text of that Amendment: '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; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.' 33 When we analyze the claim prisoners are asserting and the court below sustained, it amounts to a right not to be tried at all for an offense against our armed forces. If the Fifth Amendment protects them from military trial, the Sixth Amendment as clearly prohibits their trial by civil courts. The latter requires in all criminal prosecutions that 'the accused' be tried 'by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.' And if the Fifth be held to embrace these prisoners because it uses the inclusive term 'no person,' the Sixth must, for it applies to all 'accused.' No suggestion is advanced by the court below or by prisoners of any constitutional method by which any violations of the laws of war endangering the United States forces could be reached or punished, if it were not by a Military Commission in the theatre where the offense was committed. 34 The Court of Appeals has cited no authority whatever for holding that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses, except to quote extensively from a dissenting opinion in In re Yamashita, 327 U.S. 1, 26, 66 S.Ct. 340, 353, 90 L.Ed. 499. The holding of the Court in that case is, of course, to the contrary. 35 If this Amendment invests enemy aliens in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers. American citizens conscripted into the military service are thereby stripped of their Fifth Amendment rights and as members of the military establishment are subject to its discipline, including military trials for offenses against aliens or Americans. Cf. Humphrey v. Smith, 336 U.S. 695, 69 S.Ct. 830, 93 L.Ed. 986; Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974. Can there be any doubt that our foes would also have been excepted, but for the assumption 'any person' would never be read to include those in arms against us? It would be a paradox indeed if what the Amendment denied to Americans it guaranteed to enemies. And, of course, it cannot be claimed that such shelter is due them as a matter of comity for any reciprocal rights conferred by enemy governments on American soldiers.11 36 The decision below would extend coverage of our Constitution to nonresident alien enemies denied to resident alien enemies. The latter are entitled only to judicial hearing to determine what the petition of these prisoners admits: that they are really alien enemies. When that appears, those resident here may be deprived of liberty by Executive action without hearing. Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881. While this is preventive rather than punitive detention, no reason is apparent why an alien enemy charged with having committed a crime should have greater immunities from Executive action than one who it is only feared might at some future time commit a hostile act. 37 If the Fifth Amendment confers it rights on all the world except Americans engaged in defending it, the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and 'were-wolves' could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against 'unreasonable' searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments. 38 Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088. None of the learned commentators on our Constitution has ever hinted at it. The practice of every modern government is opposed to it. 39 We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States. IV. 40 The Court of Appeals appears to have been of opinion that the petition shows some action by some official of the United States in excess of his authority which confers a private right to have it judicially voided. Its Second and Third propositions were that 'action of government officials in violation of the Constitution is void' and 'a basic and inherent function of the judicial branch * * * is to set aside void action by government officials * * *.' For this reason it thought the writ could be granted. 41 The petition specifies four reasons why conviction of the Military Commission was in excess of its jurisdiction: two based on the Geneva Convention on July 27, 1929, 47 Stat. 2021, with which we deal later; and two apparently designed to raise constitutional questions. The constitutional contentions are that 'the detention of the prisoners as convicted war criminals is illegal and in violation of Articles I and III of the Constitution of the United States and of the Fifth Amendment thereto, and of other provisions of said Constitution and laws of the United States * * *, in that: 42 '(a) There being no charge of an offense against the laws of war by the prisoners, the Military Commission was without jurisdiction. 43 '(b) In the absence of hostilities, martial law, or American military occupation of China, and in view of treaties between the United States and China dated February 4, 1943, and May 4, 1943, and between Germany and China, dated May 18, 1921, the Military Commission was without jurisdiction.' 44 The petition does not particularize and neither does the court below the specific respects in which it is claimed acts of the Military were ultra vires. 45 The jurisdiction of military authorities, during or following hostilities, to punish those guilty of offenses against the laws of war is long-established. By the Treaty of Versailles, 'The German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war.' Article 228. This Court has characterized as 'well-established' the 'power of the military to exercise jurisdiction over members of the armed forces, those directly connected with such forces, or enemy belligerents, prisoners of war, or others charged with violating the laws of war.' Duncan v. Kahanamoku, 327 U.S. 304, 312, 313-314, 66 S.Ct. 606, 610, 90 L.Ed. 688. And we have held in the Quirin and Yamashita cases, supra, that the Military Commission is a lawful tribunal to adjudge enemy offenses against the laws of war.12 46 It is not for us to say whether these prisoners were or were not guilty of a war crime, or whether if we were to retry the case we would agree to the findings of fact or the application of the laws of war made by the Military Commission. The petition shows that these prisoners were formally accused of violating the laws of war and fully informed of particulars of these charges. As we observed in the Yamashita case, 'If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review merely because they have made a wrong decision on disputed facts. Correction of their errors of decision is not for the courts but for the military authorities which are alone authorized to review their decisions.' 327 U.S. 1, 8, 66 S.Ct. 340, 344, 90 L.Ed. 499. 'We consider here only the lawful power of the commission to try the petitioner for the offense charged.' Ibid. 47 That there is a basis in conventional and long-established law by which conduct ascribed to them might amount to a violation seems beyond question. Breach of the terms of an act of surrender is no novelty among war crimes. 'That capitulations must be scrupulously adhered to is an old customary rule, since enacted by Article 35 of the Hague Regulations.13 Any act contrary to a capitulation would constitute an international delinquency if ordered by a belligerent Government, and a war crime if committed without such order. Such violation may be met by reprisals or punishment of the offenders as war criminals.' II Oppenheim, International Law 433 (6th ed. rev., Lauterpacht, 1944). Vattel tells us: 'If any of the subjects, whether military men or private citizens offend against the truce * * * the delinquents should be compelled to make ample compensation for the damage, and severely punished. * * *' Law of Nations, Book III, c. XVI, § 241. And so too, Lawrence, who says, 'If * * * the breach of the conditions agreed upon is the act of unauthorized individuals, the side that suffers * * * may demand the punishment of the guilty parties and an indemnity for any losses it has sustained.' Principles of International Law (5th ed.) p. 566. It being within the jurisdiction of a Military Commission to try the prisoners, it was for it to determine whether the laws of war applied and whether an offense against them had been committed. 48 We can only read '(b)' to mean either that the presence of the military forces of the United States in China at the times in question was unconstitutional or if lawfully there, that they had no right under the Constitution to set up a Military Commission on Chinese territory. But it can hardly be meant that it was unconstitutional for the Government of the United States to wage a war in foreign parts. Among powers granted to Congress by the Constitution is power to provide for the common defense, to declare war, to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces, Art. I, § 8, Const. It also gives power to make rules concerning captures on land and water, ibid., which this Court has construed as an independent substantive power. Brown v. United States, 8 Cranch 110, 126, 3 L.Ed. 504. Indeed, out of seventeen specific paragraphs of congressional power, eight of them are devoted in whole or in part to specification of powers connected with warfare. The first of the enumerated powers of the President is that he shall be Commander-in-Chief of the Army and Navy of the United States. Art. II, § 2, Const. And, of course, grant of war power includes all that is necessary and proper for carrying these powers into execution. 49 Certainly it is not the function of the Judiciary to entertain private litigation—even by a citizen—which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region. China appears to have fully consented to the trial within her territories and, if China had complaint at the presence of American forces there, China's grievance does not become these prisoners' right. The issue tendered by '(b)' involves a challenge to conduct of diplomatic and foreign affairs, for which the President is exclusively responsible. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255; Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568. 50 These prisoners do not assert, and could not, that anything in the Geneva Convention makes them immune from prosecution or punishment for war crimes.14 Article 75 thereof expressly provides that a prisoner of war may be detained until the end of such proceedings and, if necessary, until the expiration of the punishment. 47 Stat. 2021, 2055. 51 The petition, however, makes two claims in the nature of procedural irregularities said to deprive the Military Commission of jurisdiction. One is that the United States was obliged to give the protecting power of Germany notice of the trial as specified in Article 60 of the Convention. This claim the Court has twice considered and twice rejected, holding that such notice is required only of proceedings for disciplinary offenses committed during captivity and not in case of war crimes committed before capture. Ex parte Quirin, supra; Ex parte Yamashita, supra. 52 The other claim is that they were denied trial 'by the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining power,' required by Article 63 of the Convention. It may be noted that no prejudicial disparity is pointed out as between the Commission that tried prisoners and those that would try an offending soldier of the American forces of like rank. By a parity of reasoning with that in the foregoing decisions, this Article also refers to those, and only to those, proceedings for disciplinary offenses during captivity. Neither applies to a trial for war crimes. 53 We are unable to find that the petition alleges any fact showing lack of jurisdiction in the military authorities to accuse, try and condemn these prisoners or that they acted in excess of their lawful powers. V. 54 The District Court dismissed this petition on authority of Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898. The Court of Appeals considered only questions which it regarded as reserved in that decision and in Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243. Those cases dealt with persons both residing and detained within the United States and whose capacity and standing to invoke the process of federal courts somewhere was unquestioned. The issue was where. 55 Since in the present application we find no basis for invoking federal judicial power in any district, we need not debate as to where, if the case were otherwise, the petition should be filed. 56 For reasons stated, the judgment of the Court of Appeals is reversed and the judgment of the District Court dismissing the petition is affirmed. 57 Reversed. 58 Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice BURTON concur, dissenting. 59 Not only is United States citizenship a 'high privilege,' it is a priceless treasure. For that citizenship is enriched beyond price by our goal of equal justice under law—equal justice not for citizens alone, but for all persons coming within the ambit of our power. This ideal gave birth to the constitutional provision for an independent judiciary with authority to check abuses of executive power and to issue writs of habeas corpus liberating persons illegally imprisoned.1 60 This case tests the power of courts to exercise habeas corpus jurisdiction on behalf of aliens, imprisoned in Germany, under sentences imposed by the executive through military tribunals. The trial court held that, because the persons involved are imprisoned overseas, it had no territorial jurisdiction even to consider their petitions. The Court of Appeals reversed the District Court's dismissal on the ground that the judicial rather than the executive branch of government is vested with final authority to determine the legality of imprisonment for crime. 84 U.S.App.D.C. 396, 174 F.2d 961. This Court now affirms the District Court's dismissal. I agree with the Court of Appeals and need add little to the cogent reasons given for its decision. The board reach of today's opinion, however, requires discussion. 61 First. In Part IV of its opinion the Court apparently bases its holding that the District Court was without jurisdiction on its own conclusion that the petition for habeas corpus failed to show facts authorizing the relief prayed for. But jurisdiction of a federal district court does not depend on whether the initial pleading sufficiently states a cause of action; if a court has jurisdiction of subject matter and parties, it should proceed to try the case, beginning with consideration of the pleadings. Bell v. Hood, 327 U.S. 678, 682—683, 66 S.Ct. 773, 776, 90 L.Ed. 939; Ex parte Kawato, 317 U.S. 69, 71, 63 S.Ct. 115, 116, 87 L.Ed. 58.2 Therefore Part IV of the opinion is wholly irrelevant and lends no support whatever to the Court's holding that the District Court was without jurisdiction. 62 Moreover, the question of whether the petition showed on its face that these prisoners had violated the laws of war, even if it were relevant, is not properly before this Court. The trial court did not reach that question because it concluded that their imprisonment outside its district barred it even from considering the petition; its doors were 'summarily closed.' And in reversing, the Court of Appeals specifically rejected requests that it consider the sufficiency of the petition, properly remanding the cause to the District Court for that determination—just as this Court did in the Hood and Kawato cases, supra. The Government's petition for certiorari here presented no question except that of jurisdiction; and neither party has argued, orally or in briefs, that this Court should pass on the sufficiency of the petition. To decide this unargued question under these circumstances seems an unwarranted and highly improper deviation from ordinary judicial procedure. At the very least, fairness requires that the Court hear argument on this point. 63 Despite these objections, the Court now proceeds to find a 'war crime' in the fact that after Germany had surrendered these prisoners gave certain information to Japanese military forces. I am not convinced that this unargued question is correctly decided. The petition alleges that when the information was given, the accused were 'under the control of the armed forces of the Japanese Empire,' in Japanese-occupied territory. Whether obedience to commands of their Japanese superiors would in itself constitute 'unlawful' belligerency in violation of the laws of war is not so simple a question as the Court assumes. The alleged circumstances, if proven, would place these Germans in much the same position as patriotic French, Dutch, or Norwegian soldiers who fought on with the British after their homelands officially surrendered to Nazi Germany. There is not the slightest intimation that the accused were spies, or engaged in cruelty, torture, or any conduct other than that which soldiers or civilians might properly perform when entangled in their country's war. It must be remembered that legitimate 'acts of warfare,' however murderous, do not justify criminal conviction. In Ex parte Quirin, 317 U.S. 1, 30—31, 63 S.Ct. 2, 11—12, 87 L.Ed. 3, we cautioned that military tribunals can punish only 'unlawful' combatants; it is no 'crime' to be a soldier. See also Dow v. Johnson, 100 U.S. 158, 169, 25 L.Ed. 632; Ford v. Surget, 97 U.S. 594, 605—606, 24 L.Ed. 1018. Certainly decisions by the trial court and the Court of Appeals concerning applicability of that principle to these facts would be helpful, as would briefs and arguments by the adversary parties. It should not be decided by this Court now without that assistance, particularly since failure to remand deprives these petitioners of any right to meet alleged deficiencies by amending their petitions. 64 Second. In Parts I, II, and III of its opinion, the Court apparently holds that no American court can even consider the jurisdiction of the military tribunal to convict and sentence these prisoners for the alleged crime. Except insofar as this holding depends on the gratuitous conclusions in Part IV (and I cannot tell how far it does), it is based on the facts that (1) they were enemy aliens who were belligerents when captured, and (2) they were captured, tried, and imprisoned outside our realm, never having been in the United States. 65 The contention that enemy alien belligerents have no standing whatever to contest conviction for war crimes by habeas corpus proceedings has twice been emphatically rejected by a unanimous Court. In Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3, we held that status as an enemy alien did not foreclose 'consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission.' Id., 317 U.S. at 25, 63 S.Ct. at 9, 87 L.Ed. 3. This we did in the face of a presidential proclamation denying such prisoners access to our courts. Only after thus upholding jurisdiction of the courts to consider such habeas corpus petitions did we go on to deny those particular petitions upon a finding that the prisoners had been convicted by a military tribunal of competent jurisdiction for conduct that we found constituted an actual violation of the law of war. Similarly, in Re Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499, we held that courts could inquire whether a military commission, promptly after hostilities had ceased, had lawful authority to try and condemn a Japanese general charged with violating the law of war before hostilities had ceased. There we stated: '(T)he Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.' Id., 327 U.S. at 9, 66 S.Ct. at 345, 90 L.Ed. 499. That we went on to deny the requested writ, as in the Quirin case, in no way detracts from the clear holding that habeas corpus jurisdiction is available even to belligerent aliens convicted by a military tribunal for an offense committed in actual acts of warfare. 66 Since the Court expressly disavows conflict with the Quirin or Yamashita decisions, it must be relying not on the status of these petitioners as alien enemy belligerents but rather on the fact that they were captured, tried and imprisoned outside our territory. The Court cannot, and despite its rhetoric on the point does not, deny that if they were imprisoned in the United States our courts would clearly have jurisdiction to hear their habeas corpus complaints. Does a prisoner's right to test legality of a sentence then depend on where the Government chooses to imprison him? Certainly the Quirin and Yamashita opinions lend no support to that conclusion, for in upholding jurisdiction they place no reliance whatever on territorial location. The Court is fashioning wholly indefensible doctrine if it permits the executive branch, by deciding where its prisoners will be tried and imprisoned, to deprive all federal courts of their power to protect against a federal executive's illegal incarcerations. 67 If the opinion thus means, and it apparently does, that these petitioners are deprived of the privilege of habeas corpus solely because they were convicted and imprisoned overseas, the Court is adopting a broad and dangerous principle. The range of that principle is underlined by the argument of the Government brief that habeas corpus is not even available for American citizens convicted and imprisoned in Germany by American military tribunals. While the Court wisely disclaims any such necessary effect for its holding, rejection of the Government's argument is certainly made difficult by the logic of today's opinion. Conceivably a majority may hereafter find citizenship a sufficient substitute for territorial jurisdiction and thus permit courts to protect Americans from illegal sentences. But the Court's opinion inescapably denies courts power to afford the least bit of protection for any alien who is subject to our occupation government abroad, even if he is neither enemy nor belligerent and even after peace is officially declared.3 68 Third. It has always been recognized that actual warfare can be conducted successfully only if those in command are left the most ample independence in the theatre of operations. Our Constitution is not so impractical or inflexible that it unduly restricts such necessary independence. It would be fantastic to suggest that alien enemies could hail our military leaders into judicial tribunals to account for their day to day activities on the battlefront. Active fighting forces must be free to fight while hostilities are in progress. But that undisputable axiom has no bearing on this case or the general problem from which it arises. 69 When a foreign enemy surrenders, the situation changes markedly. If our country decides to occupy conquered territory either temporarily or permanently, it assumes the problem of deciding how the subjugated people will be ruled, what laws will govern, who will promulgate them, and what governmental agency of ours will see that they are properly administered. This responsibility immediately raises questions concerning the extent to which our domestic laws, constitutional and statutory, are transplanted abroad. Probably no one would suggest, and certainly I would not, that this nation either must or should attempt to apply every constitutional provision of the Bill of Rights in controlling temporarily occupied countries. But that does not mean that the Constitution is wholly inapplicable in foreign territories that we occupy and govern. See Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088. 70 The question here involves a far narrower issue. Springing from recognition that our government is composed of three separate and independent branches, it is whether the judiciary has power in habeas corpus proceedings to test the legality of criminal sentences imposed by the executive through military tribunals in a country which we have occupied for years. The extent of such a judicial test of legality under charges like these, as we have already held in the Yamashita case, is of most limited scope. We ask only whether the military tribunal was legally constituted and whether it had jurisdiction to impose punishment for the conduct charged. Such a limited habeas corpus review is the right of every citizen of the United States, civilian or soldier (unless the Court adopts the Government's argument that Americans imprisoned abroad have lost their right to habeas corpus). Any contention that a similarly limited use of habeas corpus for these prisoners would somehow give them a preferred position in the law cannot be taken seriously. 71 Though the scope of habeas corpus review of military tribunal sentences is narrow, I think it should not be denied to these petitioners and others like them. We control that part of Germany we occupy. These prisoners were convicted by our own military tribunals under our own Articles of War, years after hostilities had ceased. However illegal their sentences might be, they can expect no relief from German courts or any other branch of the German Government we permit to function. Only our own courts can inquire into the legality of their imprisonment. Perhaps, as some nations believe, there is merit in leaving the administration of criminal laws to executive and military agencies completely free from judicial scrutiny. Our Constitution has emphatically expressed a contrary policy. 72 As the Court points out, Paul was fortunate enough to be a Roman citizen when he was made the victim of prejudicial charges; that privileged status afforded him an appeal to Rome, with a right to meet his 'accusers face to face.' Acts 25:16. But other martyrized disciples were not so fortunate. Our Constitution has led people everywhere to hope and believe that wherever our laws control, all people, whether our citizens or not, would have an equal chance before the bar of criminal justice. 73 Conquest by the United States, unlike conquest by many other nations, does not mean tyranny. For our people 'choose to maintain their greatness by justice rather than violence.'4 Our constitutional principles are such that their mandate of equal justice under law should be applied as well when we occupy lands across the sea as when our flag flew only over thirteen colonies. Our nation proclaims a belief in the dignity of human beings as such, no matter what their nationality or where they happen to live. Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts cannot in my judgment be constitutionally abridged by Executive or by Congress. I would hold that our courts can exercise it whenever any United States official illegally imprisons any person in any land we govern.5 Courts should not for any reason abdicate this, the loftiest power with which the Constitution has endowed them. 1 From January 1948 to today, motions for leave to file petitions for habeas corpus in this Court, and applications treated by the Court as such, on behalf of over 200 German enemy aliens confined by American military authorities abroad were filed and denied. Brandt v. United States, and 13 companion cases, 333 U.S. 836, 68 S.Ct. 603, 92 L.Ed. 1119; In re Eichel (one petition on behalf of three persons), 333 U.S. 865, 68 S.Ct. 787, 92 L.Ed. 1144; Everett v. Truman (one petition on behalf of 74 persons), 334 U.S. 824, 68 S.Ct. 1081, 92 L.Ed. 1753; In re Krautwurst, and 11 companion cases, 334 U.S. 826, 68 S.Ct. 1328, 92 L.Ed. 1754; In re Ehlen 'et al.,' and In re Girke 'et al.,' 334 U.S. 836, 68 S.Ct. 1491, 92 L.Ed. 1762; In re Gronwald 'et al.,' 334 U.S. 857, 68 S.Ct. 1522, 92 L.Ed. 1777; In re Stattmann, and 3 companion cases, 335 U.S. 805, 69 S.Ct. 18, 93 L.Ed. 362; In re Vetter, and 6 companion cases, 335 U.S. 841, 69 S.Ct. 59, 93 L.Ed. 392; In re Eckstein, 335 U.S. 851, 69 S.Ct. 79, 93 L.Ed. 399; In re Heim, 335 U.S. 856, 69 S.Ct. 126, 93 L.Ed. 404; In re Dammann, and 4 companion cases, 336 U.S. 922—923, 69 S.Ct. 644, 93 L.Ed. 1084; In re Muhlbauer, and 57 companion cases, covering at least 80 persons, 336 U.S. 964, 69 S.Ct. 930, 93 L.Ed. 1115; In re Felsch, 337 U.S. 953, 69 S.Ct. 1523, 93 L.Ed. 1754; In re Buerger, 338 U.S. 884, 70 S.Ct. 183; In re Hans, 339 U.S. 976, 70 S.Ct. 1007; In re Schmidt, 339 U.S. 976, 70 S.Ct. 1007; Lammers v. U.S., 339 U.S. 976, 70 S.Ct. 1008. And see also Milch v. United States, 332 U.S. 789, 68 S.Ct. 92, 92 L.Ed. 371. These cases and the variety of questions they raised are analyzed and discussed by Fairman, Some New Problems of the Constitution Following the Flag, 1 Standard L.Rev. 587. 2 '* * * In the primary meaning of the words, an alien friend is the subject of a foreign state at peace with the United States; an alien enemy is the subject of a foreign state at war with the United States. 1 Kent, Comm. p. 55; 2 Halleck, Int.L. (Rev.1908) p. 1; Hall, Int.Law (7th Ed.) p. 403, § 126; Baty & Morgan, 'War: Its Conduct and Legal Results,' p. 247; 1 Halsbury, Laws of England, p. 310; Sylvester's Case, 7 Mod. 150; The Roumanian, 1915, Prob.Div. 26; affd., 1916, 1 A.C. 124; Griswold v. Waddington, 16 Johns., N.Y., 438, 448; White v. Burnley, 20 How. 235, 249 (61 U.S. 235), 15 L.Ed. 886; The Benito Estenger, 176 U.S. 568, 571, 20 S.Ct. 489, 44 L.Ed. 592; Kershaw v. Kelsey, 100 Mass. 561, 97 Am.Dec. 124, 1 Am.Rep. 142; so all the lexicographers, as, e.g., Webster, Murray, Abbott, Black, Bouvier. * * *' Cardozo, J., in Techt v. Hughes, 229 N.Y. 222, 229, 128 N.E. 185, 186, 11 A.L.R. 166. 3 For cases in lower courts, see Note, 18 Geo.Wash.L.Rev. 410. 4 'Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress.' 15 Stat. 224, 8 U.S.C. § 903b, 8 U.S.C.A. § 903b. 5 See Delaney, The Alien Enemy and the Draft, 12 Brooklyn L.Rev. 91. 6 '* * * In 1798, the 5th Congress passed three acts in rapid succession, 'An Act concerning Aliens', approved June 25, 1798 (1 Stat. 570), 'An Act respecting Alien Enemies', approved July 6, 1798 (1 Stat. 577, 50 U.S.C.A. § 21 et seq.), and 'An Act in addition to the act, entitled 'An act for the punishment of certain crimes against the United States", approved July 14, 1798. (1 Stat. 596.) The first and last were the Alien and Sedition Acts, vigorously attacked in Congress and by the Virginia and Kentucky Resolutions as unconstitutional. But the members of Congress who vigorously fought the Alien Act saw no objection to the Alien Enemy Act. (8 Annals of Cong. 2035 (5th Cong., 1798).) In fact, Albert Gallatin, who led that opposition, was emphatic in distinguishing between the two bills and in affirming the constitutional power of Congress over alien enemies as part of the power to declare war. (Id. at 1980.) James Madison was the author of the Virginia Resolutions, and in his report to the Virginia House of Delegates the ensuing year after the deluge of controversy, he carefully and with some tartness asserted a distinction between alien members of a hostile nation and alien members of a friendly nation, disavowed any relation of the Resolutions to alien enemies, and declared, 'With respect to alien enemies, no doubt has been intimated as to the federal authority over them; the Constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies.' (Madison's Report, 4 Elliot's Deb. 546, 554 (1800).) Thomas Jefferson wrote the Kentucky Resolutions, and he was meticulous in identifying the Act under attack as the Alien Act 'which assumes power over alien friends'. (Kentucky Resolutions of 1798 and 1799, 4 Elliot's Deb. 540, 541.) It is certain that in the white light which beat about the subject in 1798, if there had been the slightest question in the minds of the authors of the Constitution or their contemporaries concerning the constitutionality of the Alien Enemy Act, it would have appeared. None did. 'The courts, in an unbroken line of cases from Fries' case (Case of Fries, C.C.D.Pa.1799, 9 Fed.Cas. at pages 826, 830 et seq., No. 5,126), in 1799 to Schwarzkopf's case (United States ex rel. Schwarzkopf v. Uhl, 2 Cir., 1943, 137 F.2d 898) in 1943, have asserted or assumed the validity of the Act and based numerous decicions upon the assumption. (Brown v. United States, 1814, 8 Cranch 110, 3 L.Ed. 504; De Lacey v. United States, 9 Cir., 1918, 249 F. 625, L.R.A.1918E, 1011; Grahl v. United States, 7 Cir., 1919, 261 F. 487; Lockington's Case, 1813, Brightly, N.P., Pa., 269, 283; Lockington v. Smith, C.C.D.Pa., 1817, 15 Fed.Cas. page 758, No. 8,448; Ex parte Graber, D.C.N.D.Ala.1918, 247 F. 882; Minotto v. Bradley, D.C.N.D.Ill.1918, 252 F. 600; Ex parte Fronklin, D.C.Miss.1918, 253 F. 984; Ex parte Risse, D.C.S.D.N.Y.1919, 257 F. 102; Ex parte Gilroy, D.C.S.D.N.Y.1919, 257 F. 110.) The judicial view has been without dissent. 'At common law 'alien enemies have no rights, no privileges, unless by the king's special favour, during the time of war.' (1 Blackstone * 372, 373.)' Prettyman, J. in Citizens Protective League v. Clark, 81 U.S.App.D.C. 116, 119, 155 F.2d 290, 293. 7 See also Notes, 22 So.Cal.L.Rev. 307; 60 Harv.L.Rev. 456; 47 Mich.L.Rev. 404; 17 Geo.Wash.L.Rev. 578; 27 N.C.L.Rev. 238; 34 Corn.L.Q. 425. In this respect our courts follow the practice of the English courts. 44 Am.J.Int.L. 382. 8 See cases collected in Annotations, 137 A.L.R. 1335, 1355; 1918B L.R.A. 189, 191. See also Borchard, The Right of Alien Enemies to Sue in Our Courts, 27 Yale L.J. 104; Gordon, The Right of Alien Enemies to Sue in American Courts, 36 Ill.L.Rev. 809, 810; Battle, Enemy Litigants in Our Courts, 28 Va.L.Rev. 429; Rylee, Enemy Aliens as Litigants, 12 Geo.Wash.L.Rev. 55, 65; notes, 5 U. of Detroit L.J., 106, 22 Neb.L.Rev. 36, 30 Cal.L.Rev. 358, 54 Harv.L.Rev. 350. 9 28 U.S.C. § 2243, 28 U.S.C.A. § 2243, provides in part: 'Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.' 10 'Habeas Corpus * * * thou (shalt) have the body (sc. in court). 'A writ issuing out of a court of justice * * * requiring the body of a person to be brought before the judge or into the court for the purpose specified in the writ; * * * requiring the body of a person restrained of liberty to be brought before the judge or into court, that the lawfulness of the restraint may be investigated and determined.' The Oxford English Dictionary (1933), Vol. V, p. 2. 11 'All merchants, if they were not openly prohibited before, shall have their safe and sure conduct to depart out of England, to come into England, to tarry in, and go through England, as well by land as by water, to buy and sell without any manner of evil tolles by the old and rightful customs, except in time of war; and if they be of a land making war against us, and be found in our realm at the beginning of the wars, they shall be attached without harm of body or goods, until it be known unto us, or our chief justice, how our merchants be entreated who are then found in the land making war against us; and if our merchants be well intreated there, theirs shall be likewise with us.' (Emphasis added.) C. 30 of the Magna Carta, in 3 The Complete Statutes of England (Halsbury's Laws of England 1929) at p. 27. 12 See Green, The Military Commission, 42 Am.J.Int.L. 832. 13 Article XXXV of Convention IV signed at The Hague, October 18, 1907, 36 Stat. 2277, 2305, provides: 'Capitulations agreed upon between contracting parties must take into account the rules of military honour. 'Once settled, they must be scrupulously observed by both parties.' And see VII Moore, International Law Digest (1906) 330: 'If there is one rule of the law of war more clear and peremptory than another, it is that compacts between enemies, such as truces and capitulations, shall be faithfully adhered to; and their non-observance is denounced as being manifestly at variance with the true interest any duty, not only of the immediate parties, but of all mankind. Mr. Webster, Sec. of State, to Mr. Thompson, Apr. 5, 1842, 6 Webster's Works, 438.' 14 We are not holding that these prisoners have no right which the military authorities are bound to respect. The United States, by the Geneva Convention of July 27, 1929. 47 Stat. 2021, concluded with forty-six other countries, including the German Reich, an agreement upon the treatment to be accorded captives. These prisoners claim to be and are entitled to its protection. It is, however, the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights is upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention. 1 Article I, § 9, cl. 2 of the Constitution provides: 'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.' 2 Cases are occasionally dismissed where the claims are 'wholly insubstantial and frivolous', Bell v. Hood, supra, but the very complexity of this Court's opinion belies any such classification of this petition. 3 The Court indicates that not even today can a nonresident German or Japanese bring even a civil suit in American courts. With this restrictive philosophy compare Ex parte Kawato, 317 U.S. 69, 63 S.Ct. 115, 87 L.Ed. 58; see also McKenna v. Fisk, 1 How. 241, 249, 11 L.Ed. 117. 4 This goal for government is not new. According to Tacitus, it was achieved by another people almost 2,000 years ago. See 2 Works of Tacitus 326 (Oxford trans., New York, 1869). 5 See the concurring opinion of Mr. Justice Douglas in Koki Hirota v. MacArthur, 338 U.S. 197, 199, 69 S.Ct. 197, 1238, 93 L.Ed. 1902.

01

340 U.S. 8 71 S.Ct. 5 95 L.Ed. 10 FOGARTYv.UNITED STATES. No. 6. Argued Oct. 10, 1950. Decided Nov. 6, 1950. Mr. George M. Shkoler, Chicago, Ill., for petitioner. Mr. Oscar H. Davis, Washington, D.C., for respondents. Mr. Justice MINTON delivered the opinion of the Court. 1 Petitioner, as trustee in bankruptcy of Inland Waterways, Inc., brought suit against the United States in the District Court of Minnesota, Fifth Division, under the War Contract Hardship Claims Act, popularly known as the Lucas Act, adopted August 7, 1946, 60 Stat. 902, 41 U.S.C. § 106 note, 41 U.S.C.A. § 106 note, to recover $328,804.42 as losses alleged to have been sustained under certain contracts with the Navy Department for the production of war supplies and materials. On motion, summary judgment was entered for the United States. 80 F.Supp. 90. The Court of Appeals for the Eighth Circuit affirmed. 176 F.2d 599. The suit turns on the interpretation and meaning to be ascribed to parts of the federal statute. Because we deemed resolution of the issues important, especially in view of asserted conflicts of decision in the interpretation of the statute among other federal courts, certiorari was granted. 339 U.S. 909, 70 S.Ct. 572. 2 The facts are not in dispute. Inland Waterways, financed by a Government guaranteed loan and advances under the contracts, entered into several contracts and supplemental agreements with the Navy Department, dated from September 18, 1941, to October 30, 1942, for the production of submarine chasers and plane rearming boats. Little progress had been made under the contracts when, on December 18, 1942, Inland Waterways filed a petition for reorganization in bankruptcy. Petitioner was appointed trustee in bankruptcy. The United States filed claims in these proceedings based primarily on the unpaid balance of the loan plus interest, the cost of completing incomplete and defective work on ships delivered under the contracts, and decreased costs resulting from certain changes in the plans and specifications. Petitioner filed a counterclaim based primarily on payments due for progress in construction, overtime work, changes in plans and specifications and in wage rates involving increased cost to Inland Waterways, and the value of partially completed work requisitioned by the Government and the cost of its preservation. In support of his counterclaim, petitioner submitted to the bankruptcy court a petition for compensation for requisitioned property and a number of invoices purporting to bill the Navy Department for goods and services, all of which had previously been submitted to agencies of the Navy Department. On February 20, 1945, the Government and petitioner executed an agreement compromising these claims upon payment of some $16,000 by the United States to petitioner. The settlement agreement embodied a mutual general release in the broadest of terms and was approved by the bankruptcy court. 3 Petitioner initiated his efforts to secure relief under the Lucas Act on February 1, 1947, by filing a claim with the War Contracts Relief Board of the Navy Department based on the same matters which had been the subject of the compromise agreement effected some two years before in the bankruptcy proceedings. The same documents submitted in support of the counterclaim in the bankruptcy court, plus the counterclaim itself, were relied on by petitioner as showing a timely request for relief under the Lucas Act. The Board denied the claim. This suit followed under § 6 of the Lucas Act. 4 The only question decided by the Court of Appeals was that petitioner did not file with the Navy Department on or before August 14, 1945, a 'written request for relief' within the meaning of § 3 of the Lucas Act. We direct our attention to the correctness of that holding. Neither the Act nor the regulations of the President thereunder define the term. Pertinent parts of the Act are set forth in the margin.1 5 Shortly after Pearl Harbor, Congress granted to the President under § 201 of the First War Powers Act, 55 Stat. 838, 839, 50 U.S.C.App. § 611, 50 U.S.C.A.Appendix, § 611, the power to authorize Government agencies to make amendments and modifications of contracts for war supplies without regard to consideration if 'such action would facilitate the prosecution of the war'. Throughout the war, departments and agencies of the Government utilized the provisions of the Act and regulations thereunder to alleviate hardships encountered by war contractors in an economy geared to all-out war. After the termination of hostilities August 14, 1945, however, departments of the Government took different views of their powers under the Act and regulations. Some continued to exercise those powers, while others took the position that they were no longer applicable, since the war was over and contract modifications could not 'facilitate the prosecution of the war'. This resulted in a disparity of treatment of claimants for the relief of the Act whose claims had been filed but not acted upon before August 14, 1945. Whether such a contractor was to be accorded relief under the Act depended on the view the department with which he had contracted took of the Act. This situation motivated congressional action. See S. Rep. No. 1669, 79th Cong., 2d Sess.,2 accompanying S. 1477, which became the Lucas Act. 6 This legislative history illuminates, for purposes of the question at hand, the relation of the First War Powers and the Lucas Acts. The words of the Lucas Act itself shed further light on that subject. Like § 201 of the First War Powers Act, the Lucas Act contemplates relief by grace and not in recognition of legal rights. It speaks in § 1 of 'equitable claims * * * for losses * * * in the performance of such contracts or subcontracts', and in § 2, of 'fair and equitable settlement of claims'. Further, the Act limits the departments and agencies which may grant relief to those which were authorized to grant relief under the First War Powers Act. Finally, it limits claims upon which relief may be granted to those which had been presented 'on or before August 14, 1945'. As we have seen, that date was the one around which departments and agencies adopted the differing views of the First War Powers Act which necessitated congressional action. 7 In the light of the foregoing considerations and the relation of the Lucas Act to the First War Powers Act, we think Congress intended the term 'written request for relief' to mean written notice presented prior to August 14, 1945, to an agency which was authorized to grant relief under § 201 of the First War Powers Act. Since there is no definition of the term in the Act or regulations, and since the legislative history of the Act does not show that any settled usage of the term was brought to the attention of Congress, no particular form of notice is required. But whatever the form of notice, it must be sufficient to apprise the agency that it was being asked to grant extra-legal relief under the First War Powers Act for losses sustained in the performance of war contracts. 8 Petitioner, in attempting to establish an interpretation of the Lucas Act which would allow him to maintain this suit, has placed much reliance on events which occurred in Congress subsequent to its enactment. The second session of the Eighty-first Congress passed H.R. 3436, which was vetoed by the President. 96 Cong.Rec. 8291, 8658, 9602. Thereafter, Congress passed S. 3906, which failed of enactment over another veto of the President. 96 Cong.Rec. 12911, 14652. Petitioner's argument is that these bills and their legislative history show that Congress had a different intent in passing the Lucas Act than that attributed to it by its administrators and some of the courts. If there is anything in these subsequent events at odds with our finding of the meaning of § 3, it would not supplant the contemporaneous intent of the Congress which enacted the Lucas Act. Cf. United States v. Mine Workers, 330 U.S. 258, 281—282, 67 S.Ct. 677, 690, 91 L.Ed. 884. 9 We do not think that the documents relied on by petitioner come within the meaning of the term 'written request for relief'. Neither the counterclaim in the bankruptcy court, nor the petition for compensation for requisitioned property, nor the invoices for extras, sought relief as a matter of grace. They sought payment as a matter of right. The counterclaim demanded judgment of the bankruptcy court. The petition for requisitioned property and the invoices were legal claims for compensation under contract. As such, they constituted a basis for suit in court. See, e.g., 28 U.S.C. § 1346, 28 U.S.C.A. § 1346. That petitioner himself thought of them as judicially cognizable claims is evidenced by the fact that he included them in the counterclaim filed with the bankruptcy court, which obviously had no jurisdiction to award any extra-legal relief under the First War Powers Act. 10 None of the documents relied on by petitioner was sufficient to apprise the Navy Department that it was being asked to accord relief under the First War Powers Act. We must therefore agree with the Court of Appeals that no 'written request for relief' was filed, and, therefore, that recovery was not available to petitioner under the Lucas Act. We do not reach alternative questions. The judgment is affirmed. 11 Affirmed. 12 Mr. Justice BLACK concurs in the result. 1 Sec. 1. '* * * Where work, supplies, or services have been furnished between September 16, 1940, and August 14, 1945, under a contract or subcontract, for any department or agency of the Government which prior to the latter date was authorized to enter into contracts and amendment or modifications of contracts under section 201 of the First War Powers Act, 1941 * * * such departments and agencies are hereby authorized, in accordance with regulations to be prescribed by the President * * * to consider, adjust, and settle equitable claims * * * for losses (not including diminution of anticipated profits) incurred between September 16, 1940, and August 14, 1945, without fault or negligence on their part in the performance of such contracts or subcontracts. * * * 'Sec. 2. (a) In arriving at a fair and equitable settlement of claims under this Act * * *. 'Sec. 3. Claims for losses shall not be considered unless filed with the department or agency concerned within six months after the date of approval of this Act, and shall be limited to losses with respect to which a written request for relief was filed with such department or agency on or before August 14, 1945 * * *.' 2 'This bill, as amended, would afford financial relief to those contractors who suffered losses in the performance of war contracts in those cases where the claim would have received favorable consideration under the First War Powers Act and Executive Order No. 9001 if action had been taken by the Government prior to the capitulation of the Japanese Government. However, upon the capitulation, the position was taken by certain departments and agencies of the Government involved, that no relief should be granted under the authority which then existed, unless the action was required in order to insure continued production necessary to meet post VJ-day requirements. This was on the basis that the First War Powers Act was enacted to aid in the successful prosecution of the war and not as an aid to the contractors. As a result, a number of claims which were in process at the time of the surrender of the Japanese Government, or which had not been presented prior to such time, were denied even though the facts in a particular case would have justified favorable action if such action had been taken prior to surrender.'

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340 U.S. 36 71 S.Ct. 104 95 L.Ed. 36 UNITED STATESv.MUNSINGWEAR, Inc. Nos. 23, 24. Argued Oct. 18, 1950. Decided Nov. 13, 1950. Mr. Melvin Richter, Washington, D.C., for the United States. Mr. John M. Palmer, Minneapolis, Minn., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 The United States filed a complaint on two counts against the respondent, alleging violations of a regulation fixing the maximum price of commodities which respondent sold. The first count prayed for an injunction, the second sought treble damages. By agreement and a pre-trial order the second count was held in abeyance pending trial and final determination of the suit for an injunction. The same procedure was followed as respects another suit for treble damages raising the same issues and covering a later period. The District Court held that respondent's prices complied with the regulation. Accordingly it dismissed the complaint. 63 F.Supp. 933. The United States appealed from that judgment to the Court of Appeals. While the appeal was pending the commodity involved was decontrolled. Respondent then moved to dismiss the appeal on the ground that the case had become moot. The Court of Appeals granted the motion and dismissed the appeal for mootness. Fleming v. Munsingwear, Inc., 8 Cir., 162 F.2d 125. 2 Respondent then moved in the District Court to dismiss the treble damage actions on the ground that the unreversed judgment of the District Court in the injunction suit was res judicata of those other actions. This motion was granted, the District Court directing the treble damage actions to be dismissed. On appeal the Court of Appeals, by a divided vote, affirmed. 178 F.2d 204. 3 The controversy in each of the suits concerned the proper pricing formula applicable to respondent's commodities under the maximum price regulation. That question was in issue and determined in the injunction suit. The parties were the same both in that suit and in the suits for treble damages. There is no question but that the District Court in the injunction suit had jurisdiction both over the parties and the subject matter. And its judgment remains unmodified. We start then with a case which falls squarely within the classic statement of the rule of res judicata in Southern Pacific R. Co. v. United States, 168 U.S. 1, 48—49, 18 S.Ct. 18, 27, 42 L.Ed. 355: 4 'The general principle announced in numerous cases is that a right, question, or fact distinctly put in issue, and directly determined by a court of competent jurisdiction, as a gound of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.' 5 And see Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195; Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597 598, 68 S.Ct. 715, 719, 92 L.Ed. 898. The question whether the respondent had sold the commodities in violation of the federal regulation, having been determined in the first suit, is therefore laid at rest by a principle which seeks to bring litigation to an end and promote certainty in legal relations. 6 That is the result unless the dismissal of the appeal on the ground of mootness and the deprivation of the United States of any review of the case in the Court of Appeals warrant an exception to the established rule. 7 The absence of a right to appeal was held in Johnson Co. v. Wharton, 152 U.S. 252, 14 S.Ct. 608, 38 L.Ed. 429, to make no difference, the determination in the first suit being binding in a second suit on a different claim. Petitioner argues that that case is distinguishable because here Congress provided an appeal. It contends that if the right to appeal is to be protected, the rigors of res judicata must be alleviated. Concededly the judgment in the first suit would be binding in the subsequent ones if an appeal, though available, had not been taken or perfected. Wilson v. Deen, 121 U.S. 525, 7 S.Ct. 1004, 30 L.Ed. 980; Hubbell v. United States, 171 U.S. 203, 18 S.Ct. 828, 43 L.Ed. 136. But it is said that those who have been prevented from obtaining the review to which they are entitled should not be treated as if there had been a review. That is the argument. The hardship of a contrary rule is presented. Estoppel is urged. And authorities are advanced to support the view that res judicata should not apply in this situation.1 8 But we see no reason for creating the exception. If there is hardship in this case, it was preventable. The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.2 That was said in Duke Power Co. v. Greenwood County, 299 U.S. 259, 267, 57 S.Ct. 202, 205, 81 L.Ed. 178, to be 'the duty of the appellate court'. That procedure clears the path for future relitigation of the issues between the parties and elminates a judgment, review of which was prevented through happenstance. When that procedure is followed, the rights of all parties are preserved; none is prejudiced by a decision which in the statutory scheme was only preliminary. 9 In this case the United States made no motion to vacate the judgment. It acquiesced in the dismissal. It did not avail itself of the remedy it had to preserve its rights. Denial of a motion to vacate could bring the case here. Our supervisory power over the judgments of the lower federal courts is a broad one. See 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, 62 Stat. 963; United States v. Hamburg-Amerikanische Packet-Fahrt-Actien Gesellschaft, 239 U.S. 466, 478, 36 S.Ct. 212, 217, 60 L.Ed. 387; Walling v. James V. Reuter, Inc., 321 U.S. 671, 676—677, 64 S.Ct. 826, 828, 829, 88 L.Ed. 1001. As already indicated, it is commonly utilized in precisely this situation to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences. 10 The case is therefore one where the United States, having slept on its rights, now asks us to do what by orderly procedure it could have done for itself. The case illustrates not the hardship of res judicata but the need for it in providing terminal points for litigation. 11 Affirmed. 12 Mr. Justice BLACK is of the opinion that res judicata should not be applied under the circumstnaces here shown. 1 See Gelpi v. Tugwell, 1 Cir., 123 F.2d 377; Allegheny County v. Maryland Casualty Co., 3 Cir., 146 F.2d 633; Scott, Collateral Estoppel by Judgment, 56 Harv.L.Rev. 1. Restatement, Judgments, § 69(2) reads as follows: 'Where a party to a judgment cannot obtain in decision of an appellate court because the matter determined against him is immaterial or moot, the judgment is not conclusive against him in a subsequent action on a different cause of action.' 2 This has become the standard disposition in federal civil cases: Board of Flour Inspectors for Port of New Orleans v. Glover, 161 U.S. 101, 103, 16 S.Ct. 492, 40 L.Ed. 632, modifying 160 U.S. 170, 16 S.Ct. 321, 40 L.Ed. 382; United States v. Hamburg-Amerikanische Packet-Fahrt-Actien Gesellschaft, 239 U.S. 466, 36 S.Ct. 212, 60 L.Ed. 387; Berry v. Davis, 242 U.S. 468, 37 S.Ct. 208, 61 L.Ed. 441; United States v. American-Asiatic Steamship Co., 242 U.S. 537, 37 S.Ct. 233, 61 L.Ed. 479; Board of Public Utility Commissioners v. Compania General de Tabacos de Filipinas, 249 U.S. 425, 39 S.Ct. 332, 63 L.Ed. 687; Commercial Cable Co. v. Burleson, 250 U.S. 360, 39 S.Ct. 512, 63 L.Ed. 1030; United States v. Alaska Steamship Co., 253 U.S. 113, 40 S.Ct. 448, 64 L.Ed. 808; Heitmuller v. Stokes, 256 U.S. 359, 41 S.Ct. 522, 65 L.Ed. 990; Atherton Mills v. Johnston, 259 U.S. 13, 42 S.Ct. 422, 66 L.Ed. 814; Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620; Alejandrino v. Quezon, 271 U.S. 528, 46 S.Ct. 600, 70 L.Ed. 1071; United States ex rel. Norwegian Nitrogen Products Co. v. United States Tariff Commission, 274 U.S. 106, 47 S.Ct. 499, 71 L.Ed. 949; United States v. Anchor Coal Co., 279 U.S. 812, 49 S.Ct. 262, 73 L.Ed. 971; Alexander Sprunt & Son v. United States, 281 U.S. 249, 50 S.Ct. 315, 74 L.Ed. 832; Hargis v. Bradford, 283 U.S. 781, 51 S.Ct. 342, 75 L.Ed. 1411; Mahan v. Hume, 287 U.S. 575, 53 S.Ct. 223, 77 L.Ed. 505; Railroad Commission of Texas v. MacMillan, 287 U.S. 576, 53 S.Ct. 223, 77 L.Ed. 505; Coyne v. Prouty, 289 U.S. 704, 53 S.Ct. 658, 77 L.Ed. 1461; First Union Trust & Savings Bank v. Consumers' Co., 290 U.S. 585, 54 S.Ct. 61, 78 L.Ed. 517; Danciger Oil & Refining Co. of Texas v. Smith, 290 U.S. 599, 54 S.Ct. 209, 78 L.Ed. 526; O'Ryan v. Mills Novelty Co., 292 U.S. 609, 54 S.Ct. 779, 78 L.Ed. 1469; Hammond Clock Co. v. Schiff, 293 U.S. 529, 55 S.Ct. 146, 79 L.Ed. 639; Bracken v. S.E.C., 299 U.S. 504, 57 S.Ct. 18, 81 L.Ed. 374; Leader v. Apex Hosiery Co., 302 U.S. 656, 58 S.Ct. 362, 82 L.Ed. 508; Woodring v. Clarksburg-Columbus Short Route Bridge Co., 302 U.S. 658, 58 S.Ct. 365, 82 L.Ed. 509; Retail Food Clerks and Managers Union Local No. 1357 v. Union Premier Food Stores, 308 U.S. 526, 60 S.Ct. 376, 84 L.Ed. 445; S.E.C. v. Long Island Lighting Co., 325 U.S. 833, 65 S.Ct. 1085, 89 L.Ed. 1961; Montgomery Ward & Co. v. United States, 326 U.S. 690, 66 S.Ct. 140, 90 L.Ed. 406; Brotherhood of Locomotive Firemen & Enginemen Local Lodge No. 926 v. Toledo, Peoria & Western R. Co., 332 U.S. 748, 68 S.Ct. 53, 92 L.Ed. 335; S.E.C. v. Engineers Public Service Co., 332 U.S. 788, 68 S.Ct. 96, 92 L.Ed. 370; Hodge v. Tulsa County Election Board, 335 U.S. 889, 69 S.Ct. 250, 93 L.Ed. 427; S.E.C. v. Philadelphia Co., 337 U.S. 901, 69 S.Ct. 1047, 93 L.Ed. 1715. So far as federal civil cases are concerned, there are but few exceptions to this practice in recent years. See Cantos v. Styer, 329 U.S. 686, 67 S.Ct. 364, 91 L.Ed. 602; Uyeki v. Styer, 329 U.S. 689, 67 S.Ct. 486, 91 L.Ed. 604; Pan American Airways Corp. v. W. R. Grace & Co., 332 U.S. 827, 68 S.Ct. 203, 92 L.Ed. 401; Schenley Distilling Corp. v. Anderson, 333 U.S. 878, 68 S.Ct. 914, 92 L.Ed. 1154.

89

340 U.S. 15 71 S.Ct. 93 95 L.Ed. 15 SNYDERv.BUCK, Rear Admiral, Paymaster General of the Navy. No. 64. Argued Oct. 18, 1950. Decided Nov. 13, 1950. Mr. John Geyer Tausig, Washington, D.C., for petitioner. Mr. John R. Benney, Washington, D.C., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Petitioner sued in the District Court for a death gratuity under the Act of June 4, 1920, 41 Stat. 824, as amended, 34 U.S.C. § 943, 34 U.S.C.A. § 943, claiming as the widow of a member of the naval service. Respondent, the defendant in the suit, was Paymaster General of the Navy. The relief asked was mandamus to compel him to pay the widow's allowance. The District Court held for petitioner, ordering respondent to pay her the amount of the allowance. That judgment was entered January 30, 1948. 75 F.Supp. 902. On March 18, 1948, notice of appeal was filed in the name of Rear Admiral W. A. Buck, Paymaster General of the Navy. On March 1, 1948, however, Buck had been retired and Rear Admiral Edwin D. Foster had succeeded him in the office. 2 Section 11(a) of the Judiciary Act of 1925, 43 Stat. 936, 941, provided that '* * * where, during the pendency of an action * * * brought by or against an officer of the United States * * * and relating to the present or future discharge of his official duties, such officer dies, resigns, or otherwise ceases to hold such office, it shall be competent for the court wherein the action, suit, or proceeding is pending, whether the court be one of first instance or an appellate tribunal, to permit the cause to be continued and maintained by or against the successor in office of such officer, if within six months after his death or separation from the office it be satisfactorily shown to the court that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved.'1 3 Neither party made any effort within the six months period2 to have Buck's successor in office substituted for him. The Court of Appeals therefore ruled that the action had abated; it then vacated the judgment and remanded the cause to the District Court with directions to dismiss the complaint. 85 U.S.App.D.C. 428, 179 F.2d 466. 4 The complaint in this case makes no claim against Buck personally. Therefore we put to one side cases such as Patton v. Brady, 184 U.S. 608, 22 S.Ct. 493, 46 L.Ed. 713, dealing with actions in assumpsit against collectors for taxes erroneously collected. The writ that issued against Buck related to a duty attaching to the office. The duty existed so long and only so long as the office was held. When Buck retired from office, his power to perform ceased. He no longer had any authority over death gratuity allowances. Moreover, his successor might on demand recognize the claim asserted and discharge his duty. For these reasons it was held that in absence of a statute an action aimed at compelling an official to discharge his official duties abated where the official died or retired from the office.3 See Secretary of Interior v. McGarrahan, 9 Wall. 298, 313, 19 L.Ed. 579; United States v. Boutwell, 17 Wall. 604, 607—608, 21 L.Ed. 721; Warner Valley Stock Co. v. Smith, 165 U.S. 28, 31, 17 S.Ct. 225, 226, 41 L.Ed. 621; United States ex rel. Bernardin v. Butterworth, 169 U.S. 600, 18 S.Ct. 441, 42 L.Ed. 873. 5 Congress changed the rule. It provided by the Act of February 8, 1899, 30 Stat. 822, that no action by or against a federal officer in his official capacity or in relation to the discharge of his official duties should abate because of his death or resignation; and it provided a period in which substitution could be made.4 See LeCrone v. McAdoo, 253 U.S. 217, 40 S.Ct. 510, 64 L.Ed. 869; H.R.Rep.No.960, 55th Cong., 2d Sess. 6 The rule was again changed by § 11 of the Judiciary Act of 1925. The provision that no action should abate was eliminated. It was provided that the action might be continued against the successor on the requisite showing within the stated period. The revision effected a substantial change. The 1925 Act made survival of the action dependent on a timely substitution. Defense Supplies Corp. v. Lawrence Co., 336 U.S. 631, 637—638, 69 S.Ct. 762, 764 765, 93 L.Ed. 931. And see Ex parte La Prade, 289 U.S. 444, 456, 53 S.Ct. 682, 685, 77 L.Ed. 1311. Thus, where there was a failure to move for substitution within the statutory period, the judgment below was vacated and the cause was remanded with directions 'to dismiss the cause as abated.'5 United States ex rel. Claussen v. Curran, 276 U.S. 590, 591, 48 S.Ct. 206, 72 L.Ed. 720; Mathues v. United States ex rel. Cunningham, 282 U.S. 802, 51 S.Ct. 84, 75 L.Ed. 721. This was a declared policy of Congress not to be altered by an agreement of the parties6 or by some theory of estoppel. Nor did the application of § 11 turn on whether the judgment rendered prior to the death or resignation of the official was for or against the plaintiff. The inability of one who no longer holds the office to perform any of the official duties would indeed only be emphasized by the rendition of the coercive judgment. 7 It is argued that § 11 should be read as covering only those 'actions brought against officials for remedies which could not be got in a direct suit against the United States.' Such a reading requires more than a tailoring of the Act; it requires a full alteration. Section 11 applies to 'an action * * * brought by or against an officer of the United States * * * and relating to the present or future discharge of his official duties'. Many actions against an official relating to the 'discharge of his official duties' would in substance be suits against the United States. If the rule of abatement and substitution is to be altered in the manner suggested, the amending process is available for that purpose. 8 Section 11 by its terms applies only during the pendency of an action. But an action is nonetheless pending within the meaning of the section though an appeal is being sought, see Becker Steel Co. v. Hicks, 2 Cir., 66 F.2d 497, 499; United States ex rel. Trinler v. Carusi, 3 Cir., 168 F.2d 1014, as was implicit in Mathues v. United States ex rel. Cunningham, supra. For in that case a writ of habeas corpus, denied by the District Court, had been granted by the Circuit Court of Appeals. While the case was in the Circuit Court of Appeals the time expired for substituting the successor of the custodian against whom the prisoner had brought the action. Yet, as noted above, the Court applied § 11, vacated the judgments, and ordered the proceeding dismissed as abated. 9 There is a difference in the present case by reason of the fact that the appeal was taken by Buck after his retirement and therefore without authority. The judgment concerned the performance of official duties for which Buck was no longer responsible. Hence he was not in position to obtain a review of it. See Davis v. Preston, 280 U.S. 406, 50 S.Ct. 171, 74 L.Ed. 514. In the Davis case this Court dismissed a writ of certiorari granted under such circumstances. The argument is that the Court of Appeals should have done no more in the present case. The difference is that the Davis case was a suit against the Federal Agent under the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C.A. § 51 et seq., in which a judgment was rendered against him. An Act of Congress made special provision for substitution in those cases.7 The Court, however, held that this statute did not affect in any manner the appellate jurisdiction of this Court. But that Act preserved those judgments against abatement by reason of the death or retirement of the Federal Agent and allowed substitution at any time before satisfaction of the judgment. Therefore, on remand of the cause in the Davis case the successor Federal Agent could be substituted and the judgment enforced against him. On remand of the present cause there would be no way of substituting the successor, as the suit had abated in the District Court. Vacating the judgment of the District Court was therefore the proper procedure. 10 Nor is there any barrier to our review of this ruling on abatement by 28 U.S.C. § 2105, 28 U.S.C.A. § 2105, which prohibits a reversal by the Court of Appeals or this Court for error in ruling upon matters in abatement 'which do not involve jurisdiction.' The absence of a necessary party and the statutory barrier to substitution go to jurisdiction. 11 Petitioner loses her judgment and must start over. 12 Affirmed. 13 Mr. Justice FRANKFURTER, with whom Mr. Justice JACKSON joins, dissenting. 14 Natural professional interest in trying to disentangle the legal snarl presented by this case would not justify me in enlarging my dissent from the Court's views. But the state of the law regarding litigation brought formally against an official but intrinsically against the Government is so compounded of confusion and artificialities that an analysis differing from the Court's may not be futile. 15 At the outset it is desirable to dispel a misconception regarding the legislation on abatement of suits in the federal courts. In 1899, Cingress for the first time made provision for the continuance of a suit involving official conduct which abated by a succession in office during pendency of the suit. 30 Stat. 822. By § 11 of the Judiciary Act of 1925, Congress again dealt with this problem. 43 Stat. 936, 941. The Court finds that the provision of the 1925 Act 'effected a substantial change.' It does this on the basis of the analysis of the first enactment made in Defense Supplies Corp. v. Lawrence Warehouse Co., 336 U.S. 631, 637—638, 69 S.Ct. 762, 764, 765, 93 L.Ed. 931. According to what was there said, the Act of 1899 had a categorical command that 'no action shall abate,' which was eliminated in 1925. So to interpret the relation between the 1899 and the 1925 provisions is to misread legislation by quoting out of context and disregarding authoritative legislative history. 16 So far as concerns the legal effect upon the pendency of an action due to change in the occupancy of an office, a reading of the provisions of the 1899 and 1925 Acts can leave not a shadow of doubt as to their identity of purpose and procedure for its accomplishment. The difference between the two acts is a matter of English and not of law. In both, Congress assumed that a proceeding by or against an officer of the United States in relation to his official conduct would abate unless within a time certain the court authorized continuance of the proceeding by or against the successor in office. Only the phrasing of this rule differs. In the 1899 Act, Congress said that such an action shall abate unless leave is given for its continuance; in the 1925 Act, Congress said that unless leave is given for the continuance of such a suit it is at an end. To say, as we said in Defense Supplies Corp. v. Lawrence Warehouse Co., that the 1899 Act 'categorically' provided that 'no action shall abate' is a mutilating reading. The dominant thought of an enactment controls the primary import of isolated words. To find that the 1925 Act 'eliminated' this provision has significance only if what is meant is that certain words of the 1899 Act were 'eliminated' while the thought was retained. The full texts of the two provisions, set forth in the margin, speak for themselves.1 What emerges is that the two enactments have essentially the same function regarding the abatement and mechanism for securing survival of an action by or against an officer of the United States. The only difference is that the thought is expressed more felicitously in the later enactment, as would be expected from Mr. Justice Van Devanter, who, as is well known, was the chief draftsman of the Judiciary Act of 1925. 17 The range of the 1899 Act was changed in 1925, which may have stimulated its redrafting. The change concerned not in the slightest the legal consequences to pending suits where the occupancy of an office of the United States was involved. The only modification made by the 1925 Act, apart from cutting down the time for substitution to six months from twelve, was to extend the Act of 1899 so as to permit the substitution of successors of state and local officers as well as those of federal officials. The legislative histories of the 1899 and 1925 enactments, confirming the face of the legislation, demonstrate that the two enactments were conceived for the same purpose, were intended to have the same consequences, and are to be given the same significance, excepting only that the 1925 Act extended the range of applicability. 18 The Act of 1899 was a response to this Court's suggestion. See United States ex rel. Bernardin v. Butterworth, 169 U.S. 600, 605, 18 S.Ct. 441, 442, 42 L.Ed. 873.2 This was likewise true of the Act of 1925. See Irwin v. Wright, 258 U.S. 219, 223—224, 42 S.Ct. 293, 295, 66 L.Ed. 753.3 The opinion in that case was rendered on March 20, 1922, but while it was in the bosom of the Court, having been submitted on January 24, Chief Justice Taft sent to Senator Cummins a re sume of what was known as the 'Judges' Bill,' which became the Act of 1925. As to the matter here under discussion, the Chief Justice said that the proposed bill 'extends the right now given by statute, to substitute the successors of certain officers of the United States where the latter have died, resigned, or otherwise vacated their offices pending suit, so as to embrace the successors of officers of the District of Columbia, the Canal Zone, and the Territories and insular possessions of the United States, as well as of a State or political subdivision or agency thereof.' Confidential Committee Print entitled 'Jurisdiction of Circuit Courts of Appeals and of the Supreme Court,' Senate Committee on the Judiciary, 67th Cong., 2d Sess. 4. The formulation of what was thus summarized by Chief Justice Taft is the present § 11, and that formulation was in the Judges' Bill from the time it was introduced in the two Houses by Senator Cummins and Congressman Walsh, respectively, on February 17, 1922.4 19 The correctness of the result in Defense Supplies Corp. v. Lawrence Warehouse Co., supra, does not depend on the misconceived relation indicated in its opinion. But it ought not to form a part of the chain of reasoning in disposing of this case. Therefore, insofar as § 11 of the Act of 19255 is relevant to our present problem, we must reject the notion that, while under the 1899 Act such an action as this, brought against Paymaster General Buck, 'did not abate,' the 1925 Act eliminated this 'command.' 20 This brings us to the circumstances of the case. The petitioner claims to be the lawful widow of a naval officer. She brought this action to recover a death gratuity allowance, amounting to $1,365, payable under the Act of June 4, 1920, 41 Stat. 824, as amended, 34 U.S.C. § 943, 34 U.S.C.A. § 943. Jurisdiction was alleged under the Tucker Act, 24 Stat. 505, as amended, and other statutes. Nominally, the action was for mandamus to compel Buck, the Paymaster General of the Navy, to make payment. The District Court refused to grant relief by mandamus, but, in accordance with modern practice, granted what it thought to be the proper remedy. The judgment, after enjoining Buck from persisting in his refusal to make payment, concluded: '* * * and the defendant is directed to pay the plaintiff Thirteen Hundred and Sixty-five Dollars ($1,365.00) which is the amount equal to six months' pay at the rate received by the deceased at the time of his death.' The District Court judgment was entered on January 30, 1948. Admiral Buck was retired as Paymaster General on March 1. Notice of appeal was, nevertheless, filed in his name by Government attorneys on March 18. The issue of abatement was not raised until the Government attorney called the fact of Buck's retirement to the attention of the Court of Appeals upon oral argument, which occurred after the six-month period for substitution had passed. The Court of Appeals vacated the judgment of the District Court and remanded with directions to dismiss the complaint as abated. 21 1. I agree with the Court that this was not a personal action against Admiral Buck, and that the judgment was not against him as an individual. That suits against a collector of revenue for illegal exactions under the Revenue Acts are deemed personal actions enforceable as such against the collector is an anomalous situation in our law which calls for abrogation instead of extension. For the history of these actions, see Cary v. Curtis, 3 How. 236, 11 L.Ed. 576, and United States v. Nunnally Investment Co., 316 U.S. 258, 62 S.Ct. 1064, 86 L.Ed. 1455.6 22 2. The starting point, then, is recognition of the fact that this was a suit to secure a money claim due from the United States, enforced against the officer who was the effective conduit for its payment. In short, this was a representative suit, and the crucial question, I submit, is the reach of the representative character of the suit. 23 The intrinsic and not merely formalistic answer to this question is of course entangled with the doctrine of sovereign immunity from suits. In scores of cases this Court has had to consider when a suit, though nominally against one holding public office, is in fact a suit against the Government and as such barred by want of the sovereign's consent to be sued. See Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, App. 729, 69 S.Ct. 1457, 1481, 93 L.Ed. 1628. The subject, it has been recognized, is not free from casuistry because of the natural, even if unconscious, pressure to escape from the doctrine of sovereign immunity which—whatever its historic basis—is hardly a doctrine based upon moral considerations. The trend of deep sentiment, reflected by legislation and adjudication, has looked askance at the doctrine. See Keifer & Keifer v. R.F.C., 306 U.S. 381, 390—392, 59 S.Ct. 516, 83 L.Ed. 784. If astuteness has been exercised to deny the representative character of an official in order to avoid his identification as the sovereign ad hoc, it runs counter to the rational administration of justice not to find an official the sovereign ad hoc and the suit against him, in effect, a suit against the sovereign when sovereign immunity is not circumscribed thereby. 24 Under the Court of Claims Act, 12 Stat. 765, as amended, the plaintiff here could have gone to the Court of Claims.7 By the Act of march 3, 1887, 24 Stat. 505, as amended, she could have brought suit in the District Court. When the sovereign has in fact given consent formally to be sued as such on the very claim and to allow, in the same court and by the same procedure (trial without a jury), precisely the same relief as was sought and obtained against the official in his representative capacity, it would needlessly enthrone formality to deny the intrinsic nature of the suit to be a suit against the sovereign. And that is this situation. Certainly those charged with the duty of defending the interests of the United States so conceived it. By denominating Admiral Buck as 'Paymaster General of the Navy' in his notice of appeal, the United States Attorney recognized that Paymaster General Buck was, as it were, merely an alias for the United States, the real client of the United States Attorney. The Government, indeed, has consistently recognized that justice does not call for abatement of the suit. Both here and below it has disavowed a disire for abatement. Of course, if it were a fixed rule of law that a suit such as this should die when the nominal defendant dies, the Court would have to bow to it, however harsh and futile the rule. It required legislation represented by Lord Campbell's Act to make tort liability survive the death of the victim. But it is not the controlling policy of the law that such actions die upon change of office-holders. The policy of the law is to the contrary, even as to suits which could not be brought against the Government directly. So also, it has long been the policy of our law to look behind an office-holder nominally a party litigant in order to find that, for all practical purposes, it is a suit against the Government and therefore not maintainable. Justice should be equally open-eyed in order to find behind the nominal official defendant the United States as the real defendant. 25 This seems to me to be the spirit of the decision in Thompson v. United States, 103 U.S. 480, 26 L.Ed. 521. To be sure, Mr. Justice Bradley there differentiated his identification of an officer of a municipality with the municipality from the situation of an officer of the United States because normally the Government could not be sued. But when the Government does allow itself to be sued for the same cause of action for which suit was brought against him who for the purposes of the litigation is the United States, the reason for the differentiation disappears. 26 The differentiation remains in actions brought against officials for remedies which could not be got in a direct suit against the United States. These are the situations in which substitution cannot come into play automatically and involve recourse to the remedial legislation of 1899 and 1925 in their present form. This gives ample scope to the legislation and at the same time avoids treating procedural requirements as tyrannical commands satisfying no other end except sterile formality. 27 Accordingly, I would recognize that the judgment of the District Court is in effect a money judgment against the United States and would allow the Government's notice of appeal the force it was intended to have as an effective instrument whereby the United States might obtain a review of that judgment. It would be nothing novel in the observance of decorous form by courts to note as a matter of record that the name of the Paymaster General of the Navy is now Fox and to proceed with the appeal on that basis.8 28 A final question has to be faced—a question which should, in logic, have been treated first, for it concerns the power of this Court to decide the case. Section 2105 of 28 U.S.C., 28 U.S.C.A. § 2105, provides: 'There shall be no reversal in the Supreme Court or a court of appeals for error in ruling upon matters in abatement which do not involve jurisdiction.' I agree with the Court that this statute is not applicable, but not on the ground that lack of substitution is a question of 'jurisdiction.' Section 2105 relates only to the modern equivalent of a common law plea in abatement, which was made in the trial court before issue was joined on the merits of the case.9 It can have no effect upon a decision by an appellate court that a suit has abated. 29 Mr. Justice CLARK, with whom Mr. Justice BLACK concurs, dissenting. 30 Since the duty sought to be enforced in this action attached to the office of Paymaster General and rested upon Admiral Buck only so long as he held the office, it is clear that petitioner's claim is against Buck in his representative capacity, not personally. After his retirement it was not within his power to comply with the District Court's injunction, and the judgment ceased to be enforceable against him.1 Consequently Buck lacked standing to obtain review of the judgment on appeal.2 Thus far I agree with the conclusions of the Court. 31 But I think that when the attorney for the Government called to the Court of Appeals' attention—after this suit had been pending there for more than a year—that the appeal had been taken by buck after his retirement and that no appeal had been perfected by or on behalf of his successor, the court should have dismissed the appeal on its own motion.3 That is the action which this Court took in Davis v. Preston, 1930, 280 U.S. 406, 50 S.Ct. 171, 74 L.Ed. 514, when review had been allowed at the instance of a federal officer who, it later appeared, because of separation from office had not had standing to petition for certiorari. A unanimous court dismissed the writ as improvidently granted, stating: 32 'A motion is now made by Andrew W. Mellon, as Federal Agent, for his substitution in the present proceeding in the place of Davis. But the motion must be denied. The succession in office, as now appears, occurred before there was any effort to obtain a review in this Court. After the succession Davis was completely separated from the office and without right to invoke such a review * * *. Therefore his petition must be disregarded. The time within which such a review may be invoked is limited by statute and that time has long since expired. To grant the motion in these circumstances would be to put aside the statutory limitation and to subject the party prevailing in the (court below) to uncertainty and vexation which the limitation is intended to prevent.' Id., 280 U.S. at page 408, 50 S.Ct. at page 172, 74 L.Ed. 514.4 33 This Court now concludes that Davis v. Preston is inapposite because in that case, unlike the situation before us, applicable legislation prevented abatement of the suit against Davis following his separation from office. But the point made in the Davis case was simply that the succession in office had preceded Davis' effort to obtain review by this Court and pertinent statutes did not enable the former federal officer to invoke review of a judgment which was of no legal concern to him. And in this case since an appeal was not properly taken within the time allowed, it does not matter at this time whether the District Court judgment could be enforced by plaintiff against Buck's successor, by substitution of the latter as defendant or by other action.5 34 It is the decision of this Court that the failure of the appellee to substitute the judgment defendant's successor under § 11 of the Judiciary Act of 1925 excuses the Government's prior failure to perfect a valid appeal from a final judgment against one of its officers. In short, the Court places on an appellee the burden of correcting his adversary's error. From this result I dissent. 1 Rule 19(4) of the Rules of this Court, 28 U.S.C.A., provides that in such cases 'the matter of abatement and substitution is covered by section 11 of the Act of February 13, 1925. Under that section a substitution of the successor in office may be effected only where a satisfactory showing is made within six months after the death or separation from office.' 2 This section was repealed as of September 1, 1948, 62 Stat. 992, 1000. It is argued that, since that date was the date on which the 6 months statutory period for substitution in this case expired and since the repealing Act preserved any rights or liabilities existing under any of the repealed laws (id., 992 § 39, 28 U.S.C.A. note preceding section 1), § 11 governs this case. We need not reach the effect of the repealing Act. For the Court of Appeals during the period material to our problem had in force its Rule 28(b) which provided that abatement and substitution were governed by § 11 of the 1925 Act. Rule 25(d), Rules of Civil Procedure, 28 U.S.C.A. now provides: 'When an officer of the United States, or of the District of Columbia, the Canal Zone, a territory, an insular possession, a state, county, city, or other governmental agency, is a party to an action and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor, if within 6 months after the successor takes office it is satisfactorily shown to the court that there is a substantial need for so continuing and maintaining it. Substitution pursuant to this rule may be made when it is shown by supplemental pleading that the successor of an officer adopts or continues or threatens to adopt or continue the action of his predecessor in enforcing a law averred to be in violation of the Constitution of the United States. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to object.' 3 An exception was a suit to enforce an obligation of the corporation or municipality to which the office was attached. See Thompson v. United States, 103 U.S. 480, 483, 26 L.Ed. 521, as explained in United States ex rel. Bernardin v. Butterworth, supra, 169 U.S. at page 603, 18 S.Ct. at page 442, 42 L.Ed. 873, and in Murphy v. Utter, 186 U.S. 95, 101—102, 22 S.Ct. 776, 778 779, 46 L.Ed. 1070. 4 See note 5, infra. 5 Under the earlier Act the passage of the period within which substitution could be made resulted in the proceeding being 'at an end.' LeCrone v. McAdoo, supra, 253 U.S. at p. 219, 40 S.Ct. at page 511, 64 L.Ed. 869. The practice of this Court was therefore to dismiss the writ, leaving undisturbed the judgments below. LeCrone v. McAdoo, supra; United States ex rel. Wattis v. Lane, 255 U.S. 566, 41 S.Ct. 447, 65 L.Ed. 789; Payne v. Industrial Board, 258 U.S. 613, 42 S.Ct. 462, 66 L.Ed. 790; Payne v. Stevens, 260 U.S. 705, 43 S.Ct. 165, 67 L.Ed. 473. 6 In United States ex rel. Claussen v. Curran, supra, and Mathues v. United States ex rel. Cunningham, supra, the Solicitor General had expressed willingness for the successor to be substituted though the statutory period had expired. 7 The Act of March 3, 1923, 42 Stat. 1443, 49 U.S.C.A. § 74(h), provided in part: 'That section 206 of the Transportation Act, 1920, is amended by adding at the end thereof two new subdivisions to read as follows: '(h) Actions, suits, proceedings, and reparation claims, of the character described in subdivision (a), (c), or (d), properly commenced within the period of limitation prescribed, and pending at the time this subdivision takes effect, shall not abate by reason of the death, expiration of term of office, retirement, resignation, or removal from office of the Director General of Railroads or the agent designated under subdivision (a), but may (despite the provisions of the Act entitled 'An Act to prevent the abatement of certain actions,' approved February 8, 1899), be prosecuted to final judgment, decree, or award, substituting at any time before satisfaction of such final judgment, decree, or award the agent designated by the President then in office." 1 Chapter 121 of the Laws of 1899, 30 Stat. 822, provided: '* * * That no suit, action, or other proceeding lawfully commenced by or against the head of any Department or Bureau or other officer of the United States in his official capacity, or in relation to the discharge of his official duties, shall abate by reason of his death, or the expiration of his term of office, or his retirement, or resignation, or removal from office, but, in such event, the Court, on motion or supplemental petition filed, at any time within twelve months thereafter, showing a necessity for the survival thereof to obtain a settlement of the questions involved, may allow the same to be maintained by or against his successor in office, and the Court may make such order as shall be equitable for the payment of costs.' Section 11 of the Judiciary Act of 1925, 43 Stat. 936, 941, provided: '(a) That where, during the pendency of an action, suit, or other proceeding brought by or against an officer of the United States, or of the District of Columbia, or the Canal Zone, or of a Territory or an insural possession of the United States, or of a county, city, or other governmental agency of such Territory or insular possession, and relating to the present or future discharge of his official duties, such officer dies, resigns, or otherwise ceases to hold such office, it shall be competent for the court wherein the action, suit, or proceeding is pending, whether the court be one of first instance or an appellate tribunal, to permit the cause to be continued and maintained by or against the successor in office of such officer, if within six months after his death or separation from the office it be satisfactorily shown to the court that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved. '(b) Similar proceedings may be had and taken where an action, suit, or proceeding brought by or against an officer of a State, or of a county, city, or other governmental agency of a State, is pending in a court of the United States at the time of the officer's death or separation from the office. '(c) Before a substitution under this section is made, the party or officer to be affected, unless expressly consenting thereto, must be given reasonable notice of the application therefor and accorded an opportunity to present any objection which he may have.' 2 'In view of the inconvenience, of which the present case is a striking instance, occasioned by this state of the law, it would seem desirable that congress should provide for the difficulty by enacting that, in the case of suits against the heads of departments abating by death or resignation, it should be lawful for the successor in office to be brought into the case by petition, or some other appropriate method.' 3 'It may not be improper to say that it would promote justice if Congress were to enlarge the scope of the Act of February 8, 1899, so as to permit the substitution of successors for state officers suing or sued in the federal courts, who cease to be officers by retirement or death, upon a sufficient showing in proper cases. Under the present state of the law, an important litigation may be begun and carried through to this court after much effort and expense, only to end in dismissal because, in the necessary time consumed in reaching here, state officials, parties to the action, have retired from office. It is a defect which only legislation can cure.' Chief Justice Taft used Irwin v. Wright as an illustration in his testimony before the House Judiciary Committee on March 30, 1922. Hearings before House Committee on the Judiciary on H.R. 10479, 67th Cong., 2d Sess. 7. 4 See 62 Cong.Rec. 2686, 2737. The language concerning abatement was the same in the bills introduced in 1922 (S. 3164 and H.R. 10479, 67th Cong., 1st Sess.), in the bills introduced by Senator Cummins and Congressman Graham, respectively, in 1924 (S. 2060 and H.R. 8206, 68th Cong., 1st Sess.) and in the statute as enacted, 43 Stat. 936, 941. I am partly responsible for the misconception of finding a substantive change between the significance of the 1899 Act and the 1925 Act because I joined in Defense Supplies Corp. v. Lawrence Warehouse Co., 336 U.S. 631, 69 S.Ct. 762, 93 L.Ed. 931. It is not by way of extenuating my responsibility that I deem it pertinent to suggest that the nature and volume of the Court's business proclude examination of all the judicial and legislative materials of all opinions in which one concurs. In order that the energies of the Court may be concentrated on those cases for which adjudication by this Court is indispensable, I have been insistent in my view that the Court should be rigorous in limiting the cases which it will allow to come here. That it may so control its business, the Congress, by the Act of 1925, gave the Court—for all practical purposes—a free hand. See Ex parte Republic of Peru, 318 U.S. 578, 602—604, 63 S.Ct. 793, 806, 807, 87 L.Ed. 1014. 5 Section 11 of the 1925 Judiciary Act, 43 Stat. 936, 941 was repealed as of September 1, 1948, 62 Stat. 992, 1000. The repealing Act, however, preserved any rights or liabilities existing under the laws repealed. 62 Stat. 869, 992, § 39, 28 U.S.C.A., preceding section 1. Since the six-month statutory period within which substitution can be made expired on September 1, 1948, the repeal of § 11 does not affect the case at bar. Abatement of actions brought against officials is now governed, in the District Courts, by Rule 25(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which also provides a six-month period for substitution. 6 The problems raised by the personal liability of collectors have necessitated special legislation. See I.R.C. § 3770(b), 26 U.S.C. § 3770(b), 26 U.S.C.A. § 3770(b), R.S. § 3220, as amended (authority to reimburse collectors), and I.R.C. § 3772(d), 26 U.S.C. § 3772(d), 26 U.S.C.A. § 3772(d), 56 Stat. 956. (Suits against collectors are treated as suits against the United States for purposes of res judicata.) 7 Campbell v. United States, 80 Ct.Cl. 836; Hill v. United States, 68 St.Cl. 740; Maxwell v. United States, 68 Ct.Cl. 727; Thomson v. United States, 58 Ct.Cl. 207; Phillips v. United States, 49 Ct.Cl. 703. 8 Davis v. Preston, 280 U.S. 406, 50 S.Ct. 171, 74 L.Ed. 514, was a suit under the Federal Employers' Liability Act of 1908, 35 Stat. 65, 45 U.S.C.A. § 51 et seq., brought to recover for the death of a railroad employee occurring while the railroad was being operated by the Director General. The Court held a petition for certiorari ineffective when taken in the name of an agent of the Government who had retired from office. A statute there applicable, however, required that the United States conduct the litigation in the name of a special agent. 41 Stat. 461. There is no such requirement in the case at bar, for suit could have been brought against the United States itself. Since this is true, the Court can scarcely refuse to give effect to the notice of appeal filed by the Government attorneys in the name of Buck as Paymaster General. Mr. Justice Van Devanter discussed only the effectiveness of the appeal, for the Court was faced with no problem of abatement. Congress had made clear its policy of protecting suitors against the pitfalls of abatement by passing the Winslow Act, 42 Stat. 1443, 49 U.S.C.A. § 74(h), to make certain that the 1899 statute would not prevent recovery for persons injured or killed during the Government operation of the railroads. This statute allowed substitution of a successor agent at 'any time before satisfaction of such final judgment, decree, or award'. The broad legislative policy reflected in the Winslow Act points to a reliance upon substance, rather than form, in the present case. 9 The predecessor section, 28 U.S.C. (1946 ed.), § 879, R.S. § 1011, as amended, provided: 'There shall be no reversal in the Supreme Court or in a circuit court of appeals upon a writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or for any error in fact.' Section 22 of the Judiciary Act of 1789, 1 Stat. 84, provided: '* * * But there shall be no reversal in either court (i.e., the Circuit Court or Supreme Court) on such writ of error for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or such plea to a petition or bill in equity, as is in the nature of a demurrer, or for any error in fact. * * *' The Reviser's Note to § 2105 indicates that 'matters in abatement' was substituted for 'plea in abatement' because of the change in terminology under the Federal Rules. 1 Cf. Board of Commissioner v. Sellew, 1879, 99 U.S. 624, 627, 25 L.Ed. 333; United States ex rel. Emanuel v. Jaeger, 2 Cir., 1941, 117 F.2d 483, 488. 2 Davis v. Preston, 1930, 280 U.S. 406, 50 S.Ct. 171, 74 L.Ed. 514. 3 In re Michigan-Ohio Bldg. Corp., 7 Cir., 1941, 117 F.2d 191; United Porto Rican Sugar Co. v. Saldana, 1 Cir., 1935, 80 F.2d 13. Appeal from the District Court in the instant case was governed by Federal Rule 73, 28 U.S.C.A., which provided at all relevant times as follows: '(a) * * * When an appeal is permitted by law from a district court to a (circuit) court of appeals the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from unless a shorter time is provided by law, except that in any action in which the United States or an officer or agency thereof is a party the time as to all parties shall be 60 days from such entry, and except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extent the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed. * * * 'A party may appeal from a judgment by filing with the district court a notice of appeal. Failure of the Appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal * * *. '(b) * * * The notice of appeal shall specify the parties taking the appeal * * *.' It has been held that under Federal Rule 73 timely and proper notice of appeal goes to the jurisdiction of the Court of Appeals, United Drug Co. v. Helvering, 2 Cir., 1940, 108 F.2d 637; Lamb v. Shasta Oil Co., 5 Cir., 1945, 149 F.2d 729; Marten v. Hess, 6 Cir., 1949, 176 F.2d 834; Tinkoff v. West Pub. Co., 7 Cir., 1943, 138 F.2d 607; St. Luke's Hospital v. Melin, 8 Cir., 1949, 172 F.2d 532; Spengler v. Hughes Tool Co., 10 Cir., 1948, 169 F.2d 166; Walleck v. Hudspeth, 10 Cir., 1942, 128 F.2d 343; see Maloney v. Spencer, 9 Cir., 1948, 170 F.2d 231, 233; and that this requirement cannot be dispensed with by waiver or consent of the parties. See Lamb v. Shasta Oil Co., supra, 149 F.2d at page 730; Marten v. Hess, supra, 176 F.2d at page 835; St. Luke's Hospital v. Melin, supra, 172 F.2d at page 533. Compare Crump v. Hill, 5 Cir., 1939, 104 F.2d 36, with Piascik v. Trader Navigation Co., 2 Cir., 1949, 178 F.2d 886. 4 Accord, Nudelman v. Globe Varnish Co., 1941, 312 U.S. 690, 61 S.Ct. 621, 85 L.Ed. 1126. 5 It seems that plaintiff would not be without a remedy which would give life to her judgment obtained in a court of competent jurisdiction against a federal officer who at the time of judgment had full authority in the premises. In Sunshine Anthracite Coal Co. v. Adkins, 1940, 310 U.S. 381, 402—403, 60 S.Ct. 907, 917, 84 L.Ed. 1263, the Court said: 'There is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the government. See Tait v. Western Maryland R. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405. The crucial point in whether or not in the earlier litigation the representative of the United States had authority to represent its interests in a final adjudication of the issue in controversy.'

89

340 U.S. 42 71 S.Ct. 108 95 L.Ed. 47 UNITED STATESv.SANCHEZ et al. No. 81. Argued Oct. 20, 1950. Decided Nov. 13, 1950. Mr. Philip Elman, Washington, D.C., for appellant. No appearance for appellees. Mr. Justice CLARK delivered the opinion of the Court. 1 This is a direct appeal, 28 U.S.C. § 1252, 28 U.S.C.A. § 1252, from dismissal by the District Court of a suit for recovery of $8,701.65 in taxes and interest alleged to be due under § 7(a)(2) of the Marihuana Tax, Act, 50 Stat. 551, now § 2590(a)(2) of the Internal Revenue Code. 26 U.S.C. § 2590(a)(2), 26 U.S.C.A. § 2590(a)(2). In their motion to dismiss, which was granted without opinion, defendants attacked the constitutionality of this subsection on the ground that it levied a penalty, not a tax. The validity of this levy is the issue here. 2 In enacting the Marihuana Tax Act, the Congress had two objectives: 'First, the development of a plan of taxation which will raise revenue and at the same time render extremely difficult the acquisition of marihauna by persons who desire it for illicit uses and, second, the development of an adequate means of publicizing dealings in marihuana in order to tax and control the traffic effectively.' S. Rep. No. 900, 75th Cong., 1st Sess., p. 3. To the same effect, see H.R. Rep. No. 792, 75th Cong., 1st Sess., p. 2. 3 Pursuant to these objective, § 3230 of the Code imposes a special tax ranging from $1 to $24 on 'every person who imports, manufactures, produces, compounds, sells, deals in, depenses, prescribes, administers, or gives away marihuana'. For purposes of administration, § 3231 requires such persons to register at the time of the payment of the tax with the Collector of the District in which their businesses are located. The Code then makes it unlawful—with certain exceptions not pertinent here—for any person to transfer marihuana except in pursuance of a written order of the transferee on a blank form issued by the Secretary of the Treasury. § 2591. Section 2590 requiries the transferee at the time he applies for the order form to pay a tax on such transfer of $1 per ounce or fraction thereof if he has paid the special tax and registered, § 2590(a)(1), or $100 per ounce or fraction thereof if he has not paid the special tax and registered. § 2590(a)(2). The transferor is also made liable for the tax so imposed, in the event the transfer is made without an order form and without the payment of the tax by the transferee. § 2590(b). Defendants in this case are transferors. 4 It is obvious that § 2590, by imposing a severe burden on transfers to unregistered persons, implements the congressional purpose of restricting traffic in marihuana to accepted industrial and medicinal channels. Hence the attack here rests on the regulatory character and prohibitive burden of the section as well as the penal nature of the imposition. But despite the regulatory effect and the close resemblance to a penalty, it does not follow that the levy is invalid. 5 First. It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. Sonzinsky v. United States, 1937, 300 U.S. 506, 513—514, 57 S.Ct. 554, 555—556, 81 L.Ed. 772. The principle applies even though the revenue obtained is obviously negligible, Sonzinsky v. United States, supra, or the revenue purpose of the tax may be secondary, Hampton & Co. v. United States, 1928, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624. Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate. As was pointed out in Magnano Co. v. Hamilton, 1934, 292 U.S. 40, 47, 54 S.Ct. 599, 603, 78 L.Ed. 1109: 'From the beginning of our government, the courts have sustained taxes although imposed with the collateral intent of effecting ulterior ends which, considered apart, were beyond the constitutional power of the lawmakers to realize by legislation directly addressed to their accomplishment.' 6 These principles are controlling here. The tax in question is a legitimate exercise of the taxing power despite its collateral regulatory purpose and effect. 7 Second. The tax levied by § 2590(a)(2) is not conditioned upon the commission of a crime. The tax is on the transfer of marihuana to a person who has not paid the special tax and registered. Such a transfer is not made an unlawful act under the statute. Liability for the payment of the tax rests primarily with the transferee; but if the fails to pay, then the transferor, as here, becomes liable. It is thus the failure of the transferee to pay the tax that gives rise to the liability of the transferor. Since his tax liability does not in effect rest on criminal conduct, the tax can be properly called a civil rather than a criminal sanction. The fact Congress provided civil procedure for collection indicates its intention that the tax be treated as such. Helvering v. Mitchell, 1938, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917. Moreover, the Government is seeking to cllect the levy by a judicial proceeding with its attendant safeguards. Compare Lipke v. Lederer, 1922, 259 U.S. 557, 42 S.Ct. 549, 66 L.Ed. 1061; Tovar v. Jarecki, 7 Cir., 1949, 173 F.2d 449. 8 Nor is the civil character of the tax imposed by § 2590(a)(2) altered by its severity in relation to that assessed by § 2590(a)(1). The different has a rational foundation. Unregistered persons are not likely to procure the required order form prior to transfer or pay the required tax. Free of sanctions, dealers would be prone to accommodate such persons in their unlawful activity. The imposition of equally severe tax burdens on such transferors is reasonably adapted to secure payment of the tax by transferees or stop transfers to unregistered persons, as well as to provide an additional source from which the expense of unearthing clandestine transfers can be recovered. Cf. Helvering v. Mitchell, supra. 9 The judgment below must be reversed and the cause remanded for further proceedings in conformity with this opinion. 10 Reversed.

01

340 U.S. 47 71 S.Ct. 111 95 L.Ed. 53 UNITED STATESv.SECURITY TRUST & SAVINGS BANK OF SAN DIEGO et al. Nos. 10, 11, 12 and 13. Argued and Submitted Oct. 16, 1950. Decided Nov. 13, 1950. Helen Goodner, Washington, D.C., for the United States. Submitted on the record by respondents. Mr. Justice MINTON delivered the opinion of the Court. 1 The question presented here is whether a tax lien of the United States is prior in right to an attachment lien where the federal tax lien was recorded subsequent to the date of the attachment lien but prior to the date the attaching creditor obtained judgment. 2 On October 17, 1946, Wilton M. Morrison sued George and Genell Styliano on an unsecured note. Pursuant to § 537 and 542 of the California Code of Civil Procedure,1 Morrison procured the attachment of four parcels of real estate owned by the Stylianos in San Diego County. On April 24, 1947, Morrison obtained judgment and it was recorded in the office of the Recorder of San Diego County on May 2, 1947. Meanwhile, on December 3, 5, and 10, 1946, the United States had filed notices of federal tax liens in the same office.2 3 Subsequently, four suits were brought in the Superior Court of San Diego County involving the four parcels of land upon which Morrison had procured the attachment. Morrison and the United States were made parties defendant in each of these suits. The first suit was brought to quiet title to one of the parcels of real estate. The Stylianos had sold this parcel to the plaintiffs of the suit, who paid the balance of the purchase price into court. The other three suits were to foreclose separate mortgages on the other three parcels. The Superior Court ordered the balance of the purchase price and any surplus remaining from the foreclosure sales after the mortgagees received payment in full to be applied first in payment of Morrison's judgment lien, and secondly in payment of any federal tax liens.3 4 The District Court of Appeal for the Fourth Appellate District affirmed. Winther v. Morrison, 93 Cal.App.2d 608, 209 P.2d 657. The Supreme Court of California declined to hear the case, and we granted certiorari. 339 U.S. 947, 70 S.Ct. 801.4 The four cases were consolidated below for purposes of appeal, and Morrison's claims of priority were treated as a single issue. They are treated here in the same manner. 5 Section 537 of the California Code of Civil Procedure provides that a plaintiff may have the property of the defendant attached at any time 'as security for the satisfaction of any judgment that may be recovered'. Section 542a provides: 'The lien of the attachment on real property attaches and becomes effective upon the recording of a copy of the writ, together with a description of the property attached, and a notice that it is attached with the county recorder of the county wherein said real property is situated * * *. The attachment whether heretofore levied or hereafter to be levied shall be a lien upon all real property attached for a period of three years after the date of levy unless sooner released or discharged either as provided in this chapter, or by dismissal of the action, or by the recording with the recorder of an abstract of the judgment in the action.' 6 The effect of a lien in relation to a provision of federal law for the collection of debts owing the United States is always a federal question. Hence, although a state court's classification of a lien as specific and perfected is entitled to weight, it is subject to reexamination by this Court. On the other hand, if the state court itself describes the lien as inchoate, this classification is 'practically conclusive.' People of the State of Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 371, 67 S.Ct. 340, 345, 91 L.Ed. 348. The Supreme Court of California has so described its attachment lien in the case of Puissegur v. Yarbrough, 29 Cal.2d 409, 412, 175 P.2d 830, 831, by stating that, 'The attaching creditor obtains only a potential right or a contingent lien * * *.' Examination of the California statute shows that the above is an apt description. The attachment lien gives the attachment creditor no right to proceed against the property unless he gests judgment within three years or within such extension as the statute provides. Numerous contingencies might arise the would prevent the attachment lien from ever becoming perfected by a judgment awarded and recorded. Thus the attachment lien is contingent or inchoate—merely a lis pendens notice that a right to perfect a lien exists. 7 Nor can the doctrine of relation back—which by process of judicial reasoning merges the attachment lien in the judgment and relates the judgment lien back to the date of attachment—operate to destroy the realities of the situation. When the tax liens of the United States were recorded, Morrison did not have a judgment lien. He had a mere 'caveat of a more perfect lien to come.' People of State of New York v. Maclay, 288 U.S. 290, 294, 53 S.Ct. 323, 324, 77 L.Ed. 754. 8 The liens asserted by the United States stem from 53 Stat. 448, 449, 26 U.S.C. §§ 3670, 3671, 3672, 26 U.S.C.A. §§ 3670, 3671, 3672. Section 3670 provides: 'If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, penalty, additional amount, or addition to such tax, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.' Section 3671 provides that the lien arises when the assessment lists are received by the Collector unless some other date is specified by law. Section 3672 provides that the lien shall not be valid against mortgagees, pledgees, purchasers or judgment creditors, until notice thereof has been filed in the office provided by the law of the state for such filing—in this case, the office of the Recorder of San Diego County. 9 In cases involving a kindred matter, i.e., the federal priority under Rev.Stat. § 3466,5 it has never been held sufficient to defeat the federal priority merely to show a lien effective to protect the lienor against others than the Government, but contingent upon taking subsequent steps for enforcing it. People of State of Illinois ex rel. Gordon v. Campbell, supra, 329 U.S. 374, 67 S.Ct. 347. If the purpose of the federal tax lien statute to insure prompt and certain collection of taxes due the United States from tax delinquents is to be fulfilled, a similar rule must prevail here. Accordingly, we hold that the tax liens of the United States are superior to the inchoate attachment lien of Morrison, and the judgment of the District Court of Appeal for the Fourth Appellate District is reversed. 10 Reversed. 11 Mr. Justice JACKSON, concurring. 12 I am persuaded that we are required to hold the tax lien of the Government superior to the California attachment. While we should accept the law of California as its court has declared it, the federal question remains whether it is in conflict with 26 U.S.C. §§ 3670—3672, 26 U.S.C.A. §§ 3670 3672, 53 Stat. 448 as amended, 53 Stat. 882. The history of this tax lien statute indicates that only a judgment creditor in the conventional sense is protected. 13 United States v. Snyder, 1892, 149 U.S. 210, 13 S.Ct. 846, 37 L.Ed. 705, was decided at a time when the forerunner of the present statute, § 3186 of the Revised Statutes as amended by § 3 of the Act of March 1, 1879, 20 Stat. 331, provided: 'If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount shall be a lien in favor of the United States from the time when the assessment-list was received by the collector, except when otherwise provided, until paid, with the interest, penalties, and costs that may accrue in addition thereto, upon all property and rights to property belonging to such person'. 14 The Snyder case held, in interpreting the above statute along with Art. I, § 8 of the Constitution, that the lien created by that statute was a valid binding lien even against a bona fide purchaswer for value without knowledge or notice of the existence of such a lien. 15 Thereafter the statute was amended and a proviso added which said: '* * * That such lien shall not be valid as against any mortgagee, purchaser, or judgment creditor until notice of such lien shall be filed by the collector * * *' in the appropriate place for filing. 37 Stat. 1016. The House Report accompanyng the proposed amendment, H.R.Rep.No. 1018, 62d Cong., 2d Sess. 2, 1912, said in part, after citing the above case: '* * * the lien is so comprehensive that it covers all the property and rights to property of the delinquent situated anywhere in the United States, and any person taking title to real estate is subjected to the impossible task of ascertaining whether any person, who has at any time owned the read estate in question, has been delinquent in the payment of the taxes referred to while the owner of the real estate in question. The business carried on under the internal-revenue law may be at a great distance from the property affected by this secret lien, but this will not relieve the property from the lien.' 16 In 1938, United States v. Rosenfield, D.C.E.D. Mich., S.D., 26 F.Supp. 433, held that a bona fide purchaser for value of shares of stock from a seller against whom notice of lien for federal income taxes had been duly filed prior to the sale, took subject to the lien even though the purchaser did not have notice or knowledge of such lien. As a direct result of this decision, the statute was again amended, this time to include pledgees and the exception in case of securities as now found in 26 U.S.C. § 3672(b)(1), 26 U.S.C.A. § 3672(b)(1). The for this amendment is disclosed in the Committee Report accompanying the Revenue Bill of 1939. H.R.Rep.No.855, 76th Cong., 1st Sess. 26, 1939. This report says, in part: '* * * While it is true that the filing of the notice of the tax lien may constitute notice in the case of real property, it is inequitable for the statute to provide that it constitutes notice as regards securities. * * * An attempt to enforce such liens on recorded notice would in many cases impair the negotiability of securities and seriously interfere with business transactions. * * *' 17 My conclusion from this history is that the statute excludes from the provisions of this secret lien those types of interests which it specifically included in the statute and no others. 1 Deering's Calif.Code Civ.Proc.Ann.1941, §§ 537 and 542. 2 Notice of a further lien in the sum of $412.18 was filed on January 22, 1948, but as to this the Government does not claim priority. 3 The Government also disclaims any priority over the mortgages foreclosed in these proceedings. 4 Morrison died while the case was pending on appeal to the District Court of Appeal, and the Security District Court of Appeal, as executor of his last will and testament was substituted. 5 Rev.Stat. § 3466, 31 U.S.C.A. § 191. 'Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority hereby established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.'

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340 U.S. 106 71 S.Ct. 181 95 L.Ed. 111 HARRISv.COMMISSIONER OF INTERNAL REVENUE. No. 14. Argued Oct. 16, 1950. Decided Nov. 27, 1950. Mr. Irwin N. Wilpon, Brooklyn, N.Y., for petitioner. Mr. Lee A. Jackson, Washington, D.C., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 The federal estate tax and the federal gift tax, as held in a line of cases ending with Commissioner v. Wemyss, 324 U.S. 303, 65 S.Ct. 652, 89 L.Ed. 958, and Merrill v. Fahs, 324 U.S. 308, 65 S.Ct. 655, 89 L.Ed. 963, are construed in pari materia, since the purpose of the gift tax is to complement the estate tax by preventing tax-free depletion of the transferor's estate during his lifetime. Both the gift tax1 and the estate tax2 exclude transfers made for 'an adequate and full consideration in money or money's worth'. In the estate tax this requirement is limited to deductions for claims based upon 'a promise or agreement';3 but the consideration for the 'promise or agreement' may not be the release of marital rights in the decedent's property.4 In the Wemyss and Merrill cases the question was whether the gift tax was applicable to premarital property settlements. If the standards of the estate tax were to be applied ex proprio vigore in gift tax cases, those transfers would be taxable because there was a 'promise or agreement' touching marital rights in property. We sustained the tax, thus giving 'adequate and full consideration in money or money's worth' the same meaning under both statutes insofar as premarital property settlements or agreements are concerned. 2 The present case raises the question whether Wemyss and Merrill require the imposition of the gift tax in the type of post-nuptial settlement of property rights involved here. 3 Petitioner divorced her husband, Reginald Wright, in Nevada in 1943. Both she and her husband had substantial property interests. They reached an understanding as respects the unscrambling of those interests, the settlement of all litigated claims to the separate properties, the assumption of obligations, and the transfer of properties. 4 Wright received from petitioner the creation of a trust for his lifetime of the income from her remainder interest in a then-existing trust; as assumption by her of an indebtedness of his of $47,650; and her promise to pay him $416.66 a month for ten years. 5 Petitioner received from Wright 21/90 of certain real property in controversy; a discontinuance of a partition suit then pending; an indemnification from and assumption by him of all liability on a bond and mortgage on certain real property in London, England; and an indemnification against liability in connection with certain real property in the agreement. It was found that the value of the property transferred to Wright exceeded that received by petitioner by $107,150. The Commissioner assessed a gift tax on the theory that any rights which Wright might have given up by entering into the agreement could not be adequate and full consideration. 6 If the parties had without more gone ahead and voluntarily unravelled their business interests on the basis of this compromise, there would be no question that the gift tax would be payable. For there would have been a 'promise or agreement' that effected a relinquishment of marital rights in property. It therefore would fall under the ban of the provision of the estate tax5 which by judicial construction has been incorporated into the gift tax statute. 7 But the parties did not simply undertake a voluntary contractual division of their property interests. They were faced with the fact that Nevada law not only authorized but instructed the divorce court to decree a just and equitable disposition of both the community and the separate property of the parties.6 The agreement recited that it was executed in order to effect a settlement of the respective property rights of the parties 'in the event a divorce should be decreed;' and it provided that the agreement should be submitted to the divorce court 'for its approval.' It went on to say, 'It is of the essence of this agreement that the settlement herein provided for shall not become operative in any manner nor shall any of the Recitals or covenants herein become binding upon either party unless a decree of absolute divorce between the parties shall be entered in the pending Nevada action.' 8 If the agreement had stopped there and were in fact submitted to the court, it is clear that the gift tax would not be applicable. That arrangement would not be a 'promise or agreement' in the statutory sense. It would be wholly conditional upon the entry of the decree; the divorce court might or might not accept the provisions of the arrangement as the measure of the respective obligations; it might indeed add to or subtract from them. The decree, not the arrangement submitted to the court, would fix the rights and obligations of the parties. That was the theory of Commissioner Internal Revenue v. Maresi, 2 Cir., 156 F.2d 929, and we think it sound. 9 Even the Commissioner concedes that that result would be correct in case the property settlement was litigated in the divorce action. That was what happened in Commissioner Internal Revenue v. Converse, 2 Cir., 163 F.2d 131, where the divorce court decreed a lump-sum award in lieu of monthly payments provided by the separation agreement. Yet without the decree there would be no enforceable, existing agreement whether the settlement was litigated or unlitigated. Both require the approval of the court before an obligation arises. The happenstance that the divorce court might approve the entire settlement, or modify it in unsubstantial details, or work out material changes seems to us unimportant. In each case it is the decree that creates the rights and the duties; and a decree is not a 'promise or agreement' in any sense—popular or statutory. 10 But the present case is distinguished by reason of a further provision in the undertaking and in the decree. The former provided that 'the covenants in this agreement shall survive and decree of divorce which may be entered.' And the decree stated 'It is ordered that said agreement and said trust agreements forming a part thereof shall survive this decree.' The Court of Appeals turned the case on those provisions. It concluded that since there were two sanctions for the payments and transfers—contempt under the divorce decree and execution under the contract—they were founded not only on the decree but upon both the decree and a 'promise or agreement'. It therefore held the excess of the value of the property which petitioner gave her husband over what he gave her to be taxable as a gift. 178 F.2d 861. 11 We, however, think that the gift tax statute is concerned with the source of rights, not with the manner in which rights at some distant time may be enforced. Remedies for enforcement will vary from state to state. It is 'the transfer' of the property with which the gift tax statute is concerned,7 not the sanctions which the law supplies to enforce transfers. If 'the transfer' of marital rights in property is effected by the parties, it is pursuant to a 'promise or agreement' in the meaning of the statute. If 'the transfer' is effected by court decree, no 'promise or agreement' of the parties is the operative fact. In no realistic sense is a court decree a 'promise or agreement' between the parties to a litigation. if finer, more legalistic lines are to be drawn, Congress must do it. 12 If, as we hold, the case is free from any 'promise or agreement' concerning marital rights in property, it presents no remaining problems of difficulty. The Treasury Regulations8 recognize as tax free 'a sale, exchange, or other transfer of property made in the ordinary course of business (a transaction which is bona fide, at arm's length, and free from any donative intent).' This transaction is not 'in the ordinary course of business' in any conventional sense. Few transactions between husband and wife ever would be; and those under the aegis of a divorce court are not. But if two partners on dissolution of the firm entered into a transaction of this character or if chancery did it for them, there would seem to be no doubt that the unscrambling of the business interests would satisfy the spirit of the Regulations. No reason is apparent why husband and wife should be under a heavier handicap absent a statute which brings all marital property settlements under the gift tax. 13 We are now advised that since submission of the case on October 16, 1950, petitioner has died, and that it will take some weeks before an administrator of her estate can be appointed. Accordingly we enter our judgment as of October 16, 1950, in pursuance of the practice obtaining in those circumstances. See Mitchell v. Overman, 103 U.S. 62, 64—65, 26 L.Ed. 369; McDonald v. Maxwell, 274 U.S. 91, 99, 47 S.Ct. 497, 499, 71 L.Ed. 942. 14 Reversed. 15 Mr. Justice FRANKFURTER, joined by Mr. Justice BLACK, Mr. Justice BURTON and Mr. Justice MINTON, dissenting. 16 Section 503 of the Revenue Act of 1932 imposes a gift tax on property 'transferred for less than an adequate and full consideration in money or money's worth'. 47 Stat. 247, now. I.R.C. § 1002, 26 U.S.C. § 1002, 26 U.S.C.A. § 1002. In Merrill v. Fahs, 324 U.S. 308, 65 S.Ct. 655, 89 L.Ed. 963, the Court held that an antenuptial settlement is subject to this tax.1 Believing as I do that the disposition of the case before us largely depends on the weight given to the considerations which there prevailed, recapitulation of them is appropriate. The Court there based its result on the conclusion that a transfer of property pursuant to an antenuptial settlement was not made in exchange for 'an adequate and full consideration in money or money's worth'. This conclusion was reinforced by reading into the gift tax provision the gloss of the interrelated estate tax of the same year that the relinquishment of 'marital rights * * * shall not be considered to any extent a consideration 'in money or money's worth." Revenue Act of 1932, § 804, 47 Stat. 280, now I.R.C. § 812(b), 26 U.S.C. § 812(b), 26 U.S.C.A. § 812(b). 17 The case before us concerns not an antenuptial agreement, but what the Tax Court called a 'property settlement agreement', contracted in anticipation of divorce. Each spouse transferred property of substantial value to the other and each agreed 'to release completely the property of the other from all claims arising out of their marriage.' 10 T.C. 741, 743. 18 Unless we are now to say that a settlement of property in winding up, as it were, a marriage, smacks more of a business arrangement than an antenuptial agreement and therefore satisfies the requirement of 'an adequate and full consideration in money or money's worth' which we found wanting in Merrill v. Fahs, and unless we are further to overrule Merrill v. Fahs insofar as it joined the gift tax and the estate tax of the Revenue Act of 1932, so as to infuse into the gift tax the explicitness of the estate tax in precluding the surrender of marital rights from being deemed to any extent a consideration 'in money or money's worth', we must hold that a settlement of property surrendering marital rights in anticipation of divorce is not made for 'an adequate and full consideration in money or money's worth'. 19 The same year that it enacted the gift tax Congress amended the estate tax by adding to the provision that 'adequate and full consideration' was prerequisite to deduction of 'claims against the estate' the phrase, 'when founded upon a promise or agreement'. Revenue Act of 1932, § 805, 47 Stat. 280, now I.R.C. § 812(b), 26 U.S.C. § 812(b), 26 U.S.C.A. § 812(b). Legislative history demonstrates that this amendment was intended not to change the law but to make clear that the requirement of consideration did not prevent 'deduction of liabilities imposed by law or arising out of torts.' H.R.Rep. No. 708, 72d Cong., 1st Sess. 48; S. Rep. No. 665, 72d Cong., 1st Sess. 51. A similar principle is implicit in the gift tax. By its statutory language and authoritative commentaries thereon Congress did not leave the incidence of the gift tax at large by entrusting its application to the play of subtleties necessary to finding a 'donative intent.' Commissioner v. Wemyss, 324 U.S. 303, 306, 65 S.Ct. 652, 654, 89 L.Ed. 958. But while by the gift tax Congress meant 'to hit all the protean arrangements which the wit of man can devise that are not business transactions' to the common understanding, Commissioner v. Wemyss, ibid., a gift tax is an exaction which does presuppose the voluntary transfer of property and not a transfer in obedience to law. In Merrill v. Fahs, supra, 324 U.S. at page 313, 65 S.Ct. at page 657, we stated that 'to interpret the same phrases in the two taxes concerning the same subject matter in different ways where obvious reasons do not compel divergent treatment is to introduce another and needless complexity into this already irksome situation.' Application of that principle would require the Court to hold that § 503 of the Revenue Act of 1932, I.R.C. § 1002, imposes a tax on 'the amount by which the value of the property (transferred exceeds) the value of the consideration' received only when the transfer is 'founded upon a promise or agreement.' The taxpayer does not contest applicability of the principle; and in the view we take of the case it may be assumed.2 Taxpayer contends (1) that the transfers in the situation now before us were or must be deemed to have been for an 'adequate and full consideration in money or money's worth', and (2) that the Commissioner imposed a liability which was not 'founded upon a promise or agreement'. Her position was sustained by the Tax Court, 10 T.C. 741, but rejected by the Court of Appeals for the Second Circuit. 178 F.2d 861. 20 1. I would adhere to the views we expressed in the Wemyss and Merrill decisions as to the meaning to be given to the requirement of 'adequate and full consideration' in the enforcement of the gift tax 'in order to narrow the scope of tax exemptions.' 324 U.S. at page 312, 65 S.Ct. at page 657. Nor would I depart from the conclusion there reached that the relinquishment of marital rights is not to be deemed 'money or money's worth' because that definition in the estate tax of 1932 is by implication to be read into the gift tax passed in the same year. 21 2. But was the transfer of the property here in controversy 'founded upon a promise or agreement'? The answer requires recital of the governing facts of the case. 22 Taxpayer separated from her husband in August, 1942, and shortly thereafter brought suit in Nevada for divorce. One week prior to entry of the divorce decree, she and her husband entered into an agreement 'for the purpose of settling the respective property rights of the parties hereto and of removing the subject matter thereof from the field of litigation.' After providing for the transfers of property and the release of claims, the agreement recited, 'This agreement shall be submitted to the court for its approval, but nevertheless the covenants in this agreement shall survive any decree of divorce which may be entered. It is of the essence of this agreement that the settlement herein provided for shall not become operative in any manner nor shall any of the Recitals or covenants herein become binding upon either party unless a decree of absolute divorce between the parties shall be entered in the pending Nevada action. The settlement herein provided shall become immediately effective and operative in the event of and upon the entry of a decree of divorce between said parties in said pending Nevada action. The parties hereto, however, shall proceed as expeditiously as possible to carry into effect the covenants herein, which it is provided are to be performed by either of the parties prior to the entry of the decree as aforesaid.' 23 After a hearing at which both parties were represented, the court granted the divorce. It found that certain transfers from the wife to the husband were 'in discharge of a legal obligation which, because of the marital relationship has been imposed' on her; and concluded that 'the agreement and trust agreements forming a part thereof, made and entered into between plaintiff and defendant under date of February 27th, 1943 is entitled to be approved.' The divorce decree 'approved' the agreement, directed performance of two of its paragraphs, and declared, 24 'Notwithstanding the approval of said agreement and the trust agreements forming a part thereof by the Court herein, It is ordered that said agreement and said trust agreements forming a part thereof shall survive this decree. 25 'It is further ordered, adjudged, and decreed that the decree herein entered is absolute and final in all respects and the Court herein divests itself of all power to amend or modify the same in the future without the consent of both of the parties hereto.' 26 The parties executed the provisions of the decree and the agreement, and the Commissioner assessed the tax in question on the amount by which the value of the property transferred by the wife to her husband exceeded the value of the property transferred by him to her. 27 3. Such being the facts of the case, was the transfer by Cornelia Harris 'founded upon a promise or agreement'? The statute does not say founded 'solely upon a promise or agreement.' The statute does not say that the tax should not fall on 'property transferred under the terms of a judgment or decree of the court.' Nor is the phrase 'founded upon agreement' a technical term having a well-known meaning either in law or in literature. The question is whether the transfer made by the taxpayer to her husband was, within the fair meaning of the language, 'founded' upon her agreement with her husband. Did the Nevada judge in decreeing the divorce describe what actually took place here when he said that on the 'date of February 27, 1943, the plaintiff and defendant entered into an agreement and trust agreements forming a part thereof, under the terms of which the parties settled all obligations arising out of their marriage?' 28 The fact that the undertakings defined by this agreement would come into force only on the occurrence of a condition, to wit, the entering of a decree of divorce, is apparently regarded as decisive of taxability. But does this make any real difference? The terms of that decree might be different from the terms of the agreement; but 'nevertheless the covenants in this agreement shall survive any decree of divorce which may be entered.' If the divorce court had disapproved the agreement and had not decreed the transfer of any property of the wife to her husband, it is difficult to see how transfers which she made, solely because of the compulsion of the agreement, would be effected by court decree and for that reason not subject to tax. The condition on which an agreement comes into force does not supplant the agreement any more than a deed in escrow cases to be a deed when it comes out of escrow. In the Wemyss and Merrill cases would the gifts have been any the less founded upon an agreement if, as a condition to the antenuptial arrangements in those cases, the consent of the parents of the fiancee had been made a condition of the marriage? Nor can excluding the transfers here involved from the gift tax be made tenable by resting decision on the narrower ground that to the extent the divorce decree 'approved' the agreement or embodied its provisions so as to make them enforceable by contempt the transfers were not 'founded upon' the agreement within the meaning of the statute.3 If the taxpayer had been sued by her husband for the sums she was obligated to transfer to him could he not have brought the suit on the contract?4 Even though a promise for which inadequate consideration was given has been reduced to a judgment, a claim based upon it has been held not deductible from the gross estate and thus must have been deemed to be 'founded upon a promise'. Markwell's Estate v. Commissioner of Internal Revenue, 7 Cir., 112 F.2d 253. If a transfer does not cease to be 'founded upon a promise' when the promise is merged into a judgment, is not a transfer pursuant to an agreement which survives a ratifying decree a fortiori 'founded upon' that agreement? 29 Judge Learned Hand's treatment of this matter is so hard-headed and convincing that it would be idle to paraphrase his views. 'In some jurisdictions contracts, made in anticipation of a divorce, are held to persist ex proprio vigore after the divorce decree has incorporated their terms, and has added its sanctions to those available in contract. That, for example, is the law of New York, where the contract remains obligatory even after the court has modified the allowances which it originally adopted; and where the promises will be thereafter enforced by execution and the like. Perhaps, that is also the law of Nevada, which the parties provided should govern 'all matters affecting the interpretation of this agreement or the rights of the parties.' Be that as it may, in the case at bar, the Nevada decree having declared that the agreement was 'entitled to be approved,' that included the provision that its 'covenants' should 'survive' as well as any of its other stipulations. Thus the payments made under it were 'founded' as much upon the 'promise or agreement' as upon the decree; indeed, they were 'founded' upon both; the parties chose to submit themselves to two sanctions—contempt under the divorce court and execution under the contract. The payments were therefore subject to the gift tax.' 178 F.2d 861, 865. 30 I would affirm the judgment. 1 Section 1002 of 26 U.S.C. (1946 ed.), 26 U.S.C.A. § 1002, provides: 'Where property is transferred for less than an adequate and full consideration in money or money's worth, then the amount by which the value of the property exceeded the value of the consideration shall, for the purpose of the tax imposed by this chapter, be deemed a gift, and shall be included in computing the amount of gifts made during the calendar year.' (Italics added.) 2 Section 812 of 26 U.S.C. (1946 ed.), 26 U.S.C.A. § 812, provides: 'For the purpose of the tax the value of the net estate shall be determined, in the case of a citizen or resident of the United States by deducting from the value of the gross estate—* * * (b) Expenses, losses, indebtedness, and taxes—Such amounts—* * * (3) for claims against the estate, (4) for unpaid mortgages upon, or any indebtedness in respect to, property where the value of decedent's interest therein, undiminished by such mortgage or indebtedness, is included in the value of the gross estate, * * * as are allowed by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered, but not including any income taxes upon income received after the death of the decedent, or property taxes not accrued before his death, or any estate, succession, legacy, or inheritance taxes. The deduction herein allowed in the case of claims against the estate, unpaid mortgages, or any indebtedness shall, when founded upon a promise or agreement, be limited to the extent that they were contracted bona fide and for an adequate and full consideration in money or money's worth * * *. For the purposes of this subchapter, a relinquishment or promised relinquishment of dower, curtesy, or of a statutory estate created in lieu of dower or curtesy, or of other marital rights in the decedent's property or estate, shall not be considered to any extent a consideration 'in money or money's worth." (Italics added.) 3 See § 812(b) supra, note 2. 4 Id. 5 Id. 6 At the time of the divorce Nevada Compiled Laws (Supp.1931 1941), § 9463 provided: 'In granting a divorce, the court may award such alimony to the wife and shall make such disposition of the community and separate property of the parties as shall appear just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens, if any, imposed upon it for the benefit of the children. * * * 7 Section 1000 of 26 U.S.C. (1946 ed.), 26 U.S.C.A. § 1000, provides: '(a) For the calendar year 1940 and each calendar year thereafter a tax, computed as provided in section 1001, shall be imposed upon the transfer during such calendar year by any individual, resident or nonresident, of property by gift. * * * (b) The tax shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible; but, in the case of a nonresident not a citizen of the United States, shall apply to a transfer only if the property is situated within the United States.' (Italics added.) 8 Section 86.8 of Treas.Reg. 108 provides: 'Transfers reached by the statute are not confined to those only which, being without a valuable consideration, accord with the common law concept of gifts, but embrace as well sales, exchanges, and other dispositions of property for a consideration in money or money's worth to the extent that the value of the property transferred by the donor exceeds the value of the consideration given therefor. However, a sale, exchange, or other transfer of property made in the ordinary course of business (a transaction which is bona fide, at arm's length, and free from any donative intent), will be considered as made for an adequate and full consideration in money or money's worth. A consideration not reducible to a money value, as love and affection, promises of marriage, etc., is to be wholly disregarded, and the entire value of the property transferred constitutes the amount of the gift.' 1 The Merrill settlement did not involve release of support rights. Nor are they involved in the case before us, for the transfer here sought to be taxed passed to the husband from the wife, who was under no obligation to support him. We are, therefore, not concerned here with the Commissioner's view that 'to the extent that the transfers are made in satisfaction of support rights the transfers are held to be for an adequate and full consideration.' E.T. 19, 1946—2 Cum.Bull. 166. See 2 Paul, Federal Estate and Gift Taxation § 16.15. But cf. Meyer's Estate v. Commissioner of Internal Revenue, 2 Cir., 110 F.2d 367; Helvering v. United States Trust Co., 2 Cir., 111 F.2d 576. 2 We therefore need not pass on the suggestion of the Government that the estate and gift tax provisions should not in this instance be read in pari materiae because the interpretation of a phrase common to the two statutes is not involved. Nor do we pass on the contention that under both gift and estate taxes liability is imposed on transfers and claims resulting from loss of marital rights even when no promise or agreement is involved. 3 The ground adopted for reversal of the court below is important to the disposition of the case. On the broader ground apparently employed, no gift tax is due. But if the narrower basis be used, it is probable that some liability should be imposed. One of the transfers required by the agreement—the wife's assumption of a $47,650 indebtedness of her husband—was not incorporated into the divorce decree and therefore is presumably enforceable only under the contract. If enforceability under the decree is the criterion, a gift tax is due to the extent this indebtedness is reflected in the amount determined by the Commissioner to represent the value attributable to release of marital rights. 4 In none of the twelve jurisdictions in which decisions in point have been found has it been held that a suit could not be brought on the contract in a situation like that before us. In four States actions may apparently be brought subsequent to divorce on prior separation agreements which are construed to contemplate survival even though the divorce decree directs different payments than the agreement. See Seuss v. Schukat, 358 Ill. 27, 36, 192 N.E. 668, 672; Freeman v. Sieve, 323 Mass. 652, 84 N.E.2d 16; Goldman v. Goldman, 282 N.Y. 296, 301, 26 N.E.2d 265, 267; Holahan v. Holahan, Sup., 77 N.Y.S.2d 339; Mobley v. Mobley, Tex.Civ.App., 221 S.W.2d 565. In three States such suits may be brought at least where the decree is not inconsistent with the agreement and does not indicate an intention to terminate it. See Heinsohn v. Chandler, 23 Del.Ch. 114, 2 A.2d 120; Coe v. Coe, Me., 71 A.2d 514; Allen v. Allen, 196 Okl. 36, 162 P.2d 193. In five others it appears that actions on the contract will lie except when the agreement is recited in the decree so as to be enforceable by contempt; but in none of the cases refusing to permit a suit on the contract did the decree or the agreement direct survival. See Hough v. Hough, 26 Cal.2d 605, 160 P.2d 15; McWilliams v. McWilliams, 110 Colo. 173, 132 P.2d 966; Hertz v. Hertz, 136 Minn. 188, 161 N.W. 402; Corbin v. Mathews, 129 N.J.Eq. 549, 19 A.2d 633; Mendelson v. Mendelson, 123 Ohio.St. 11, 173 N.E. 615. See Lindey, Separation Agreements and Ante-Nuptial Contracts, 389—395; Note, Control of Post-Divorce Level of Support by Prior Agreement, 63 Harv.L.Rev. 337. Schacht v. Schacht, 295 N.Y. 439, 68 N.E.2d 433, relied on by petitioner, held only that a determination by the divorce court of the fairness of a separation agreement was res judicata in a subsequent suit to set the agreement aside for fraud. The issue does not appear to have been determined in Nevada, where the agreement here involved was made and the divorce entered.

1112

340 U.S. 76 71 S.Ct. 160 95 L.Ed. 89 UNITED STATESv.UNITED STATES GYPSUM CO. et al. No. 30. Argued and Submitted Oct. 19, 1950. Decided Nov. 27, 1950. Motion to Amend Denied Jan. 2, 1951. See 340 U.S. 909, 71 S.Ct. 289. Where summary decree was an adjudication of violation of the Sherman Anti-Trust Act by concerted action of defendants through fixed-price patent licenses, accepting as true the underlying facts in defendants' proof by proffer, the government was entitled only to relief based on that finding and the proffered facts. Sherman Anti-Trust Act, §§ 1—4, 15 U.S.C.A. §§ 1—4; Fed.Rules Civ.Proc. rule 56, 28 U.S.C.A. [Syllabus from Pages 77-79 intentionally omitted] Mr. Charles H. Weston, Washington, D.C., for appellant. Mr. Bruce Bromley, New York City, for appellees United States Gypsum Co. et al. Mr. Norman A. Miller, Chicago, Ill., for appellee Certain-Teed Products Corp. Messrs. Andrew J. Dallstream, Chicago, Ill., Walter G. Moyle, Ralph P. Wanlass, Washington, D.C., Albert E. Hallett, Chicago, Ill., for appellee Celotex Corp. Elmer E. Finck, Buffalo, N.Y., Joseph S. Rippey, Rochester, N.Y., David I. Johnston, Oklahoma City, Okl., for appellees National Gypsum Co. et al. Mr. Justice REED delivered the opinion of the Court. 1 This proceeding was filed in 1940 in the District Court of the United States for the District of Columbia by the United States under the authority of the Attorney General. 15 U.S.C. § 4, 15 U.S.C.A. § 4. The complaint charged, 44, a long-continued conspiracy by defendants in restraint of trade in gypsum products among the several states and in the District of Columbia, and a similar monopoly, all in violation of §§ 1, 2 and 3 of the Sherman Anti-Trust Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2, 3, 15 U.S.C.A. §§ 1—3. The defendants, appellees here, were United States Gypsum Co., patentee, and various other gypsum board manufacturers, its licensees, and certain of their officers. It was alleged that the combination carried out its unlawful purposes as indicated in the excerpt from the complaint quoted below.1 Civil relief, through prohibitory and mandatory orders, was prayed in various appropriate forms. After the United States concluded its evidence in chief at the trial, a three-judge District Court, 15 U.S.C. § 28, 15 U.S.C.A. § 28, granted appellees' motion to dismiss under Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground that no right to relief had been shown. 67 F.Supp. 397. On direct appeal, 15 U.S.C. § 29, 15 U.S.C.A. § 29, we reversed the judgment of dismissal March 8, 1948, United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746, and remanded the case to the District Court for further proceedings in conformity with our opinion. 2 On remand a conference took place at the Government's suggestion. The Court acted under procedure similar to pretrial, Rule 16, and its inherent power to direct a case so as to aid in its disposition. As a result of that conference, without objection from any party, the Government filed a motion for a summary judgment under Rule 56 on the ground that there was no genuine issue as to any material fact, and the appellees filed an offer of proof, directed at matters as to which appellees were of the opinion a genuine issue existed. A summary judgment, without other findings than those contained in the decree, was entered November 7, 1949, on appellant's motion.2 Both plaintiff and defendants took direct appeals from the decree to this Court. 15 U.S.C. § 29, 15 U.S.C.A. § 29. Defendants' appeal objected to summary judgment on the ground of their right to introduce material evidence. That appeal was dismissed by this Court. 339 U.S. 959, 70 S.Ct. 995. The reasons for our action lay in the fact that our holding in our first opinion, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746, justified a summary judgment for plaintiff on the issue of the violation of the Sherman Act when the record was considered in the light of our opinion and defendants' offer of proof on the remand. This point is discussed later in this opinion under subdivision I. 3 Probable jurisdiction was noted on the appeal of the United States. This is the case we are now discussing. For the same reasons that we dismissed defendants' appeal, this Court affirmed Article III of the District Court decree. Our order also carried the sanction of an injunction against violation of the decree, 'pending further order of this Court.' 339 U.S. 960, 70 S.Ct. 996. 4 The issues left for determination in this appeal are those raised by the United States in its effort to have the provisions of the District Court decree enlarged. It seeks to extend the injunctions against violations of the Sherman Act to cover gypsum products instead of being limited to gypsum board as defined in the decree; and to include clude interstate commerce generally instead of limiting the territorial scope of the decree to the eastern portion of the United States. It also seeks changes that forbid specific practices, in addition to price fixing, such as standardizing products, classifying customers, or adopting delivered price systems, all pursuant to the principal conspiracy. It seeks to compel licensing of all patents by United States Gypsum; to empower the Department of Justice to inspect certain records; to extend the decree's terms to cover individual defendants; and to require the defendants to pay all costs. I. 5 Procedure on remand.—In determining the present issues, it is necessary to consider the trial court's solution of the procedural problems presented by our remand. Our decree was a reversal of the trial court's dismissal of the complaint on the merits at the completion of plaintiff's, the United States', presentation of its evidence. In our opinion, 333 U.S. 364, 389, 68 S.Ct. 525, 539, 92 L.Ed. 746, we said that 'the industry-wide license agreements, entered into with knowledge on the part of licensor and licensees of the adherence of others, with the control over prices and methods of distribution through the agreements and the bulletins, were sufficient to establish a prima facie case of conspiracy.' 6 We said that the intention of United States Gypsum and its licensees to act in concert to attain the purpose of the conspiracy, restraint of trade and monopoly, was apparent from the face of the license agreements. 333 U.S. at pages 389, 400, 68 S.Ct. at pages 539, 544, 92 L.Ed. 746, 'The licensor was to fix minimum prices binding both on itself and its licensees; the royalty was to be measured by a percentage of the value of all gypsum products, patented or unpatented; the license could not be transferred without the licensor's consent; the licensee opened its books of accounts to the licensor; the licensee was protected against competition with more favorable licenses and there was a cancellation clause for failure to live up to the arrangements.' 7 We stressed the acting in concert as differentiating the case from United States v. General Electric Co., 272 U.S. 476, 47 S.Ct. 192, 71 L.Ed. 362, discussed on pages 400 and 401 of 333 U.S., pages 544 and 545 of 68 S.Ct., 92 L.Ed. 746, the concert of action being established by the favored licensee clause of the standard license agreement. 333 U.S. at 410, 68 S.Ct. 548, 92 L.Ed. 746.3 In United States v. Line Material Co., 333 U.S. 287, 68 S.Ct. 550, 92 L.Ed. 701, decided the same day as the Gypsum case, the opinion of the Court discussed the then standing of the General Eelctric rule as follows: 'We are thus called upon to make an adjustment between the lawful restraint on trade of the patent monopoly and the illegal restraint prohibited broadly by the Sherman Act. That adjustment has already reached the point, as the precedents now stand, that a patentee may validly license a competitor to make and vend with a price limitation under the General Electric case and that the grant of patent rights is the limit of freedom from competition * * *.' 333 U.S. at page 310, 68 S.Ct. at page 562, 92 L.Ed. 701. 8 We added, 333 U.S. at pages 311 and 312, 68 S.Ct. at pages 562 and 563, 92 L.Ed. 746, that while the General Electric rule permitted a patentee to fix the price the licensee of patents may charge for the device, separate patent owners could not combine the patents and thus reach an agreement to fix the price for themselves and their licensees. There was no holding in our first opinion in Gypsum that mere multiple licensing violated the Sherman Act.4 The facts and the language placed our judgment squarely on the basis that 'it would be sufficient to show that the defendants, constituting all former competitors in an entire industry, had acted in concert to restrain commerce in an entire industry under patent licenses in order to organize the industry and stabilize prices.' 333 U.S. at page 401, 68 S.Ct. at page 545, 92 L.Ed. 746.5 9 As appears from the preliminary statement of its decree, the trial court acted on that understanding of our holding. See Appendix, 340 U.S. 96, 71 S.Ct. 173. It was not necessary to reach the issue as to whether a mere plurality of licenses, each containing a price-fixing provision, violates the Sherman Act. It is not necessary now. 10 The reference, 333 U.S. at page 389, 68 S.Ct. at page 539, 92 L.Ed. 746, to the establishment of a prima facie case of conspiracy by conscious industry concert in price fixing was directed at the basis for the admission of the separate declarations of alleged conspirators. 333 U.S. Section V, at pages 399—402, 68 S.Ct. at pages 543—545, 92 L.Ed. 746, of the opinion, however, contains our determination that an industry's concerted price fixing by license violates the Sherman Act per se. United States v. Paramount Pictures, 334 U.S. 131, 143, 68 S.Ct. 915, 922, 92 L.Ed. 1260. 11 Of course, when we remanded the case of the District Court the defendants had the right to introduce any evidence that they might have as to why all or any one of them should be found not to have violated the Sherman Act. Our reference at 333 U.S. 402, footnote 20, 68 S.Ct. 545, 92 L.Ed. 746, to Gulbenkian v. Gulbenkian, 2 Cir., 147 F.2d 173, shows that. See Federal Deposit Ins. Corp. v. Mason, 3 Cir., 115 F.2d 548, 552; Bowles v. Biberman Bros., 3 Cir., 152 F.2d 700, 705. Furthermore, even though defendants had no substantial evidence to overcome the prima facie conclusion of Sherman Act violation, they had the right to lay facts before the court that were pertinent to the court's decision on the terms of the decree; for example, the purpose of the concerted action, or the reason for making new patents available to the licensees, or willingness to license all applicants for the patent privilege. Such rights, however, did not require the trial court to admit evidence that would not affect the outcome of the proceedings. They did not affect the power of the trial court to direct the progress of the case in such a way as to avoid a waste of time. 12 A summary judgment, under Rule 56, was a permissible on remand. It was allowed, as the last paragraph of the preliminary statement of the decree shows, on the court's understanding that our opinion 'held that the defendants acted in concert to restrain trade and commerce in the gypsum board industry and monopolized said trade and commerce among the several states in that section hereinafter referred to as the eastern territory of the United States * * *.' As heretofore explained, that conclusion followed from our decision, if no evidence that controverted our ruling was offered. It is therefore necessary to examine briefly the offer of evidence. 13 The offer contained sixty-two paragraphs of proposed evidence. A full exposition is impracticable. Stress was laid on the available evidence to rebut our finding of an industry plan to stabilize prices.6 Evidence was offered to show the licenses were for settlement of alleged infringements, and individual in character and were not used as a subterfuge to gain price control. Such evidence would not affect our determination, set out above, that price-fixing licenses made in knowing concert by standardized price requirements violated the Sherman Act by their very existence. 14 Defendants offered to prove that royalties based on unpatented gypsum board were compensation for patent licenses and installment payment for prior infringement damages. Such proof would not affect the fact that such a royalty added to the cost of producing unpatented board. 15 Proof was offered that covenants against transfer of licenses, for price maintenance and for equality of license terms, and bulletin orders against rebates by selling other products at a cheaper price when patented articles were sold, were to protect the licensor's monopoly under its letters patent. It was offered to prove that the activities of the Board Survey Company, considered in our former opinion, 333 U.S. 364, 400, 68 S.Ct. 525, 544, 92 L.Ed. 746, were to secure compliance with the licenses; that there was no agreement to eliminate jobbers but only a purpose to maintain patent prices by discontinuing the jobber's discount. Such proof, in view of our holding as to the Sherman Act, would not make legal concerted action under patents to stabilize prices. We pass over other offers of proof as clearly immaterial on the issue of liability for Sherman Act violation. Good intentions, proceeding under plans designed solely for the purpose of exploiting patents, are no defense against a charge of violation by admitted concerted action to fix prices for a producer's products, whether or not those products are validly patented devices. We do not think that, accepting the offers of fact as true, there is enough in the proffered evidence to change the actions of the defendants from the illegal to the permissible. A finding that the manufacturers did not violate the Sherman Act under the evidence introduced by the Government and that proffered by the defendants below would be clearly erroneous in view of the concert of action to fix industry prices by the terms of the licenses.7 16 We agree with a statement made by counsel for the Government in argument below that as a 'matter of formulating the decree' many facts offered to be proven would have effect upon the conclusion of a court as to the decree's terms. However, we read the preliminary statement of the District Court to the decree and the summary decree itself as an adjudication of violation of the Sherman Act by the action in concert of the defendants through the fixed-price licenses, accepting as true the underlying facts in defendants' proof by proffer. The trial judges understood the summary judgment to be, as Judge Stephens said, 'limited to that one undisputed question.' Judge Garrett and Judge Jackson agreed.8 That conclusion entitled the Government only to relief based on that finding and the proffered facts. On that basis we dismissed United States Gypsum's appeal from the decree, and on that basis we examine the Government's objection to the decree. II. 17 The Government's proposed amendments to the decree.—A trial court upon a finding of a conspiracy in restraint of trade and a monopoly has the duty to compel action by the conspirators that will, so far as practicable, cure the ill effects of the illegal conduct, and assure the public freedom from its continuance. Such action is not limited to prohibition of the proven means by which the evil was accomplished, but may range broadly through practices connected with acts actually found to be illegal.9 Acts entirely proper when viewed alone may be prohibited.10 The conspirators should, so far as practicable, be denied future benefits from their forbidden conduct. 18 The determination of the scope of the decree to accomplish its purpose is peculiarly the responsibility of the trial court. Its opportunity to know the record and to appraise the need for prohibitions or affirmative actions normally exceeds that of any reviewing court. This has been repeatedly recognized by us.11 Notwithstanding our adherence to trial court responsibility in the molding of a decree as the wisest practice and the most productive of good results, we have never treated that power as one of dsicretion, subject only to reversal for gross abuse. Rather we have felt an obligation to intervene in this most significant phase of the case when we concluded there were inappropriate provisions in the decree.12 In resolving doubts as to the desirability of including provisions designed to restore future freedom of trade, courts should give weight to the fact of conviction as well as the circumstances under which the illegal acts occur.13 Acts in disregard of law call for repression by sterner measures than where the steps could reasonably have been thought permissible. We turn then to the Government's proposals for modification of the decree on the assumption that only a violation through concerted industry license agreements has been proven, but recognizing, as is conceded by defendants, that relief, to be effective, must go beyond the narrow limits of the proven violation. 19 (a) There is one change acceptable to the Government and United States Gypsum and which we think desirable. Article II, § 3, of the decree defines gypsum board as 'made from gypsum and embodying any of the inventions or improvements set forth and claimed in any of the Patents.' This is too restrictive, and the words 'and embodying any of the inventions or improvements set forth and claimed in any of the Patents' should be stricken, if the definition is used. 20 (b) The Government accepts the finding of Article III of the decree but objects to Article V (2) and (3) because, read together, they allow agreements through price fixing by license between United States Gypsum and Pacific Coast licensees. The complaint of Sherman Act violation was restricted to the eastern territory of the United States. The evidence applied only to that area. However, the close similarity between interstate commerce violations of the Sherman Act in eastern territory and western territory seems sufficient to justify the enlargement of the geographical scope of the decree to include all interstate commerce. Article V of the Government's proposed decree indicates one way in which this extension could be accomplished. 21 (c) The Government asks an extension of the decree to include all gypsum products instead of patented gypsum board alone. Compare Appendix, Art. V. The license agreements, as indicated above, required royalties on unpatented open edge gypsum board. Board Survey, the organization created to enforce the license agreements, found possibilities of price evasion to exist by a licensee's cutting prevailing prices on other commodities, sold in conjunction with patented gypsum board. Bulletins, issued to standarize sale practices, criticized rebates as violative of the license agreements. 333 U.S. 364, 386, 68 S.Ct. 525, 537, 92 L.Ed. 746. Defendants' offer of proof did not deny such effort to systematize sales. Their explanation was that the efforts were to enforce legitimate license agreements and were not calculated steps in conspiracy or monopoly. We think the Government's request that the decree's injunctions reach gypsum products, as defined in its proposed decree, is reasonable and should be allowed. See U.S. proposed decree, Article II, § 4, and Article V. 22 (d) The Government asks that the decree forbid standardization of trade practices through concerted agreement. Our former Gypsum opinion, 333 U.S. at pages 382—383, 68 S.Ct. at pages 535, 536, 92 L.Ed. 746, gives a summary of the methods adopted. Another method of regulating sales was by special provision for certain classes of customers, jobbers and manufacturing distributors. See 333 U.S. at pages 397 and 399, n. 18, 68 S.Ct. at pages 543 and 544, 92 L.Ed. 746. We think this would justify the Government's requests. Article V, §§ 3, 4 and 6. 23 (e) The Government asks the insertion of Article V, § 5, directed at an agreement for concerted action in selling or quoting products at prices calculated according to a delivered price system. It points out that such a system was said by this Court, 333 U.S. at page 382, 68 S.Ct. at page 535, 92 L.Ed. 746, to have been employed, and no proffer of contrary proof has been made. 24 Defendants argue as follows: 'The price for the patented product was 'the lowest combination of mill price and rail freight from mill to destination.' Defendants urge that 'The only witness at the trial who was interrogated about it said that the pricing system in the gypsum board industry was the very opposite of the basing point system; that the mill base prices were extended to all mills; and that it was really only a freight equalization method of pricing which resulted in the customer always getting the lowest possible price no matter from whom he bought.' 25 And they say 'It was not established by the license bulletins, but licensor, in stating the minimum price, merely used the method of pricing as it then existed.' 26 Further, defendants point out 'If appellee companies are to be questioned as to their method of pricing, they should be afforded a full hearing for the presentation of all pertinent matters bearing upon their pricing practices and should not be called upon to defend themselves in a summary hearing for an alleged contempt of court.' 27 We think the defendants are unduly apprehensive. The Government's proposed prohibition of delivered price arrangements is directed at concerted action, by agreement or understanding among the manufacturers, not at any system of pricing the individual manufacturer may adopt or any price that he may make.14 Since the conspiracy for restraint of trade was furthered by this arrangement, use of such a method should be banned for the future. To avoid any possibility that an individual's meeting of competitors' prices would be construed as a contempt of the decree, we think proposed Article V, § 5 should read as follows: '5. Agreeing upon any plan of selling or quoting gypsum products at prices calculated or determined pursuant to a delivered price plan which results in identical prices or price quotations at given points of sales or quotation by defendants using such plan;' (f) The Government objects to Article VI of the decree which provides, § 1, for compulsory licensing for 90 days to any applicant of all then-owned patents relating to gypsum board at not to exceed the standardized royalties as theretofore charged to defendant licensees. The objection is that the limited time makes the requirement futile except for present licensees. There is a corollary objection to Article VIII because of provisions in the approved license agreements. Particular reference is made by the Government to an approved provision requiring the licensee to report its monthly sales and price with right to Gypsum to have an inspection by a certified public accountant approved by the parties. The Government fears the competitive advantage to Gypsum of knowing its competitors' sales and prices, and the depressive effect of such information on a strenuous sales program by the licensee. 28 The Government suggests expanding the requirement of licensing to include all United States Gypsum patents, old and new, with a provision by which new patents may be excluded after five years. See proposed decree, Art. VI, § 6. Other proposed changes require all licensees to receive equal treatment as to royalties, put the burden of establishing royalty values on United States Gypsum and allow a licensee to attack the validity of patents. 29 In United States v. National Lead Co., 332 U.S. 319, 335—351, 67 S.Ct. 1634, 1641—1649, 91 L.Ed. 2077, we recently dealt with problems of licenses and royalties after a finding of Sherman Act violation. The arrangements on account of which the companies manufacturing titanium pigments in that combination were adjudged violators were as offensive to the prohibitions of the Sherman Act as those proven in the present case. Depending largely upon the discretion of the trial court, we refused to modify the decree. It ordered the accused patent owners to license all patents controlled by them concerning titanium and titanium manufactures during the succeeding five years at a reasonable royalty to be fixed by the Court. Paragraphs 4 and 7 of that decree, 332 U.S. at 335—337, 67 S.Ct. 1641—1642, 91 L.Ed. 2077. 30 The terms of the National Lead decree are somewhat like those the Government asks here. In the present case there should be no requirement of reciprocal grants. 332 U.S. 336, 67 S.Ct. 1642, 91 L.Ed. 2077. 31 We think that the United States Gypsum Company should be required to license all its patents in the gypsum products field to all applicants on equal terms. Whether the term for compulsory licensing of new patents is to be five years, or for a longer period with the privilege to the appellees to move for a limitation for such new patents, as provided in the suggested decree, Art. VI, § 6, we leave to the District Court. That court should provide for its determination of a reasonable royalty either in each instance of failure to agree or by an approved form or by any other plan in its discretion. 32 We disapprove the Government's suggestion that the burden of establishing the reasonableness of the requested royalty should be placed upon Gypsum by the decree. We do not decide where the burden of proof of value lies or who has the duty to go forward with the evidence in any particular instance. 33 We disapprove the Government's suggestion, contained in Article VI, § 5, that the decree shall not be taken as preventing an 'applicant' (we construe this as meaning licensee) attacking the patent or as importing value to it. We see no occasion for this unusual provision and think it should be entirely omitted.15 34 We direct that Article VI of the decree be so modified as generally to conform to the above suggestions. 35 We approve the Government's suggested provisions for inspection of licensees' books and reports to licensor, substantially as set out in proposed Article VI, § 2(c). 36 (g) The Government seeks access to the records and personnel of the defendants for the purpose of advising itself as to the defendants' compliance with the judgment. See proposed Article VIII. Construing the article as we did in United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 725, n. 6, 64 S.Ct. 805, 814, 88 L.Ed. 1024, we think the request reasonable. This article, or one of similar import, should be included in the decree. 37 (h) We have noted in Government's contentions in regard to the individual defendants, Avery, Knode, Baker, Ebsary and Tomkins, and its suggestion that Article III be modified so as to read 'defendants' in the first line, instead of 'defendant companies.' It is true that these individuals signed the questioned agreements, but they were acting as officials and we think the provisions of Article V bar them from engaging in similar conspiracies. 38 (i) The Government asks that all costs be taxed against the defendant companies. Article IX, proposed decree; Article X, decree entered. We see no reason to interfere with the discretion of the trial court in this matter. 39 'With these general suggestions, the details and form of the injunction can be more satisfactorily determined by the District Court.'16 Its procedure for the settlement of a decree is more flexible than ours. The decree is reversed and the cause remanded to the District Court for further proceedings in conformity with this opinion. 40 Reversed. 41 Mr. Justice BLACK believes that all the amendments proposed by the Government to Article VI of the decree are necessary to protect the public from a continuation of monopolistic practices by United States Gypsum. 42 Mr. Justice JACKSON and Mr. Justice CLARK took no part in the consideration or decision of this case. 43 APPENDIX. 44 District Court Decree of November 7, 1949. 45 Preliminary Statement. 46 This cause came on for trial before this Court on November 15, 1943. At the conclusion of plaintiff's presentation of the case, defendants moved, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for judgment dismissing the complaint on its merits. The motion of defendants was granted August 6, 1946. The judgment so rendered by this Court was reversed by the Supreme Court of the United States, and the case was remanded to this Court for further proceedings in conformity with the opinion of the Supreme Court, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. 47 Following the remand, the plaintiff, pursuant to Rule 56 of the Federal Rules of Civil Procedure, moved for summary judgment in its favor upon the pleadings and all of the proceedings which theretofore had been had in the case, or, in the alternative, for such further proceedings as this Court might direct, and defendants, by direction of the Court, filed proffers of proof. 48 Argument by counsel for the respective parties upon the motion of plaintiff was heard by the Court, and after due consideration of such argument and of defendants' proffers of proof, Garrett, J. and Jackson, J., constituting a majority of the Court, announced a ruling to the effect that plaintiff's motion for summary judgment would be granted, and Stephens, J., who presided during the trial, announced his dissent from such ruling. 49 Thereafter counsel for plaintiff and counsel for certain of the defendants submitted forms of final decrees for the consideration of the Court and also suggested findings of fact, the latter to be considered in the event the Court should deem it necessary to make any findings of fact additional to those originally found by it and to those stated in the opinion of the Supreme Court. 50 In due course, the Court heard arguments respecting the proposed decrees and the suggested findings of fact, and full consideration has been given thereto and to all prior proceedings all being considered in the light of the decision of the Supreme Court which, as understood by the majority of this Court, held that the defendants acted in concert to restrain trade and commerce in the gypsum board industry and monopolized said trade and commerce among the several states in that section hereinafter referred to as the eastern territory of the United States, which section embraces all the states of the United States westward from the eastern coast thereof to the Rocky Mountains and including New Mexico, Colorado, Wyoming, and the eastern half of Montana. 1 '45. Said combination has been formed, has been carried out, and is being carried out by each of the defendant companies (acting, in part, through those of their officers and directors made defendants herein) and by other companies hereinafter referred to engaged in the manufacture of said gypsum products. Said companies have entered into, have carried out, and are carrying out said combination for the purpose, and with the effect, of restraining, dominating, and controlling the manufacture and distribution of said gypsum products in the Eastern area by: '(a) Concertedly raising and fixing at arbitrary and noncompetitive levels the prices of gypsum board manufactured and sold by said companies in the Eastern area; '(b) concertedly standardizing gypsum board and its method of production by limiting the manufacture of board to uniform methods, and by producing only uniform kinds of board, for the purpose, and with the effect, of eliminating competition arising from variations in methods of production and in kinds of board manufactured and distributed in the Eastern area; '(c) concertedly raising, maintaining, and stabilizing the general level of prices for plaster and miscellaneous gypsum products manufactured and sold by said companies in the Eastern area; '(d) concertedly refraining from distributing gypsum board, plaster, and miscellaneous gypsum products manufactured by said companies through jobbers in the Eastern area, and concertedly refusing to sell said products to jobbers at prices below said companies' prices to dealers, for the purpose, and with the effect, of eliminating substantially all jobbers from the distribution of said gypsum products in the Eastern area; '(e) concertedly inducing and coercing manufacturing distributors to resell, at the prices raised and fixed by said companies as aforesaid, gypsum board purchased from said companies.' 2 The pertinent portions of the decree as entered below are set out in an appendix to this opinion, 340 U.S. 96, 71 S.Ct. 173, in parallel columns with portions of the decree proposed by the Government in its brief here. This proposal is more limited than the Government's proposed decree offered in the District Court. 3 Exhibit A and paragraph 4 referred to on 333 U.S. at page 410, 68 S.Ct. at page 548, 92 L.Ed. 746, contain the licenses involved in this litigation. 4 The dissenters in Line (333 U.S. 287, 68 S.Ct. 583) joined in the United States Gypsum opinion, since the concerted action in the United States Gypsum case was thought to violate the Sherman Act, despite their view that the mere multiplication of licenses, as in Line, 'produces a repetition of the same issue (as in General Electric) rather than a different issue.' 333 U.S. 354, 68 S.Ct. 583. 5 Gypsum's petition for rehearing sought a modification of this position. It argued that 'separate but similar lawful agreements must still be lawful if the result is lawful and no preliminary agreements or understanding to make them could be unlawful.' We denied rehearing. 333 U.S. 869, 68 S.Ct. 788, 92 L.Ed. 1147. 6 E.g., '1. There was no agreement or understanding between the United States Gypsum Company (USG), patentee, and the other defendants or any of them that they would associate themselves in a plan to blanket the industry under patent licenses and stabilize prices or issue or cause to be issued substantially identical licenses to all of the defendants or any number of them.' 7 One of the defendants, Celotex Corporation, made a separate proffer of proof, indicating that it was the purchaser of a license from a licensee, American Gypsum Company. In the transfer, Celotex assumed the licensee's obligations to maintain the licensor's price. As Celotex took no other part in the conspiracy, it contends that the decree should not impose upon it any further restriction than a prohibition against price maintenance. Since Celotex entered into the conspiracy by its purchase of the license with an agreement to operate in accordance with its terms, we think it should be treated in the decree like the other licensees. 8 At the hearing on proper terms for the decree Judge Garrett said, 'Judge Jackson and I thought that, within the limits of the decision of the Supreme Court, that decree should of course be granted and that nothing that was given us in the proffer of proof would change the attitude of the Supreme Court within the scope of those matters upon which it had specifically passed. 'Now, that was the summary judgment.' 9 Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 461, 60 S.Ct. 618, 627, 84 L.Ed. 852; Hartford-Empire Co. v. United States, 323 U.S. 386, 409, 65 S.Ct. 373, 385, 89 L.Ed. 322; International Salt Co. v. United States, 332 U.S. 392, 401, 68 S.Ct. 12, 17, 92 L.Ed. 20. 10 United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 724, 64 S.Ct. 805, 814, 88 L.Ed. 1024. 11 Associated Press v. United States, 326 U.S. 1, 22, 65 S.Ct. 1416, 1425, 89 L.Ed. 2013; cf. International Salt Co. v. United States, 332 U.S. 392, 399—401, 68 S.Ct. Ct. 12, 16—17, 92 L.Ed. 20. And see United States v. Crescent Amusement Co., 323 U.S. 173, 185, 65 S.Ct. 254, 260, 89 L.Ed. 160. 12 Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 78—82, 31 S.Ct. 502, 523—524, 55 L.Ed. 619; United States v. American Tobacco Co., 221 U.S. 106, 184—188, 31 S.Ct. 632, 650 651, 55 L.Ed. 663; United States v. Crescent Amusement Co., 323 U.S. 173, 185—187, 65 S.Ct. 254, 260, 261, 89 L.Ed. 160; note especially Hartford-Empire Co. v. United States, 323 U.S. 386, 409 435, 65 S.Ct. 373, 385—389, 89 L.Ed. 322. 13 Local 167, I.B.T. v. United States, 291 U.S. 293, 299, 54 S.Ct. 396, 399, 78 L.Ed. 804; Hartford-Empire Co. v. United States, 323 U.S. 386, 409, 65 S.Ct. 373, 385, 89 L.Ed. 322. 14 See our discussion in Federal Trade Comm'n v. Cement Institute, 333 U.S. 683, 727—728, 68 S.Ct. 793, 816, 92 L.Ed. 1009. 15 Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. 165; Edward Katzinger Co. v. Chicago Metallic Mfg. Co., 329 U.S. 394, 67 S.Ct. 416, 91 L.Ed. 374; MacGregor v. Westinghouse Electric & Mfg. Co., 329 U.S. 402, 67 S.Ct. 421, 424, 91 L.Ed. 380; and cf. Scott Paper Co. v. Marcalus Mfg. Co., 326 U.S. 249, 66 S.Ct. 101, 90 L.Ed. 47. 16 Warner & Co. v. Eli Lilly & Co., 265 U.S. 526, 533, 44 S.Ct. 615, 618, 68 L.Ed. 1161.

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340 U.S. 54 71 S.Ct. 135 95 L.Ed. 68 STANDARD OIL CO. OF NEW JERSEYv.UNITED STATES (two cases). THE YMS—12. THE JOHN WORTHINGTON. Nos. 27, 28. Argued Oct. 13, 1950. Decided Nov. 27, 1950. Mr. Edwin S. Murphy, New York City, for petitioner. Mr. Samuel D. Slade, Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 These are admiralty proceedings involving the Government's liability on a policy of war risk insurance by which it insured petitioner's steam tanker John Worthington against 'all consequences of hostilities or warlike operations.'1 Stipulated facts show that on December 16, 1942, there was a collision between the Worthington and the YMS—12, one of three United States Navy minesweepers clearing the channel approaches to New York harbor.2 Both vessels were at fault in failing 'to comply with the applicable rules' of good seamanship 'under the circumstances.' 2 In the District Court the United States conceded that minesweeping is a 'warlike operation' but urged that the evidence failed to show that the collision was a 'consequence' of the minesweeping within the meaning of the insurance contract. Petitioner contended that the mere showing of loss from collision with the moving warship established liability under the policy as a matter of law. It argued that this was the English rule which should be followed by American courts. The District Court did not accept petitioner's view of the English rule. It read both the American and English authorities as conditioning the underwriter's liability on proof of facts showing that the 'warlike operation' was the 'proximate,' 'predominate and determining' cause of the loss. The court held for petitioner, finding as a fact that this burden of proof had been met. 81 F.Supp. 183. The Court of Appeals reversed. 2 Cir., 178 F.2d 488. It recognized that some language in certain English opinions possibly indicated that the facts relied on would make the war underwriter liable as a matter of law. Nevertheless, it refused to go that far and, contrary to the District Court, found as a fact that petitioner's evidence failed to show that the warlike phase of the minesweeper's operation had caused the collision.3 Petitioner sought certiorari here without relying on the divergence below in the findings of fact on the question of causation. Its ground was that the Court of Appeals had failed to hold for petitioner as a matter of law as the English cases allegedly required. We granted the writ, 339 U.S. 977, 70 S.Ct. 1021, because of asserted conflict on this one point with General Ins. Co. v. Link, 9 Cir., 173 F.2d 955. 3 We are asked only to determine whether as a matter of law the provision insuring against 'all consequences of * * * warlike operations' covered the loss resulting from collision between the Worthington and the minesweeper. Of course, the intention of the contracting parties would control this decision, but as is so often the case, that intention is not readily ascertainable. Losses from collisions are prima facie perils of the sea covered by standard marine risk policies.4 To take such a loss out of the marine policy and to bring it within the coverage of the provision insuring against 'all consequences of' warlike operations, common sense dictates that there must be some causal relationship between the warlike operation and the collision. Courts have long so held in interpreting what was meant by use of the phrase 'all consequences' in war risk policies.5 In turn, the existence or non-existence of causal connection between the peril insured against and the loss has been determined by looking to the factual situation in each case and applying the concept of 'proximate cause.'6 Proximate cause in the insurance field has been variously defined. It has been said that proximate cause referred to the 'cause nearest to the loss.'7 Again, courts have properly stated that proximate cause 'does not necessarily refer to the cause nearest in point of time to the loss. But the true meaning of that maxim is, that it refers to that cause which is most nearly and essentially connected with the loss as its efficient cause.'8 4 In view of the foregoing, can it be said that the Court of Appeals erred in failing to hold as a matter of law that the mine-sweeping, a warlike operation, was the 'predominate and determining' cause of the collision? As we read the record, the facts are susceptible both of the inference that the mine-sweeping activity of the YMS—12 had some relation to the collision and that it did not. That is to say, reasonable triers of fact considering all of the circumstances of this collision might differ as to whether the loss was predominately or proximately caused by usual navigational hazards (and therefore an ordinary marine insurance risk) or whether it was caused by extraordinary perils stemming from the minesweeping (and therefore a war insurance risk).9 Indeed, the District Court and the Court of Appeals did differ on this factual determination. Since certiorari was not granted to consider that divergence in the findings of fact, we need go no further than to hold that the courts below properly considered the case as depending on the resolution of factual questions. 5 Petitioner nevertheless contends that (1) we are bound by certain decisions in the House of Lords and (2) these opinions have announced a rule-of-thumb construction of the phrase 'all consequences of * * * warlike operations' under which the facts in this case result in war risk liability as a matter of law. We cannot accept these arguments. It is true that we and other American courts have emphasized the desirability of uniformity in decisions here and in England in interpretation and enforcement of marine insurance contracts.10 Especially is uniformity desirable where, as here, the particular form of words employed originated in England. But this does not mean that American courts must follow House of Lords' decisions automatically. Actually our practice is no more than to accord respect to established doctrines of English maritime law.11 6 The difficulties inherent in the rigid conformity rule urged by petitioner are obvious to those familiar with the search for state decisional law under the Erie-Tompkins doctrine. In this very case, we, like the Court of Appeals, cannot be sure what conclusion the House of Lords would reach were this case presented to it. Some of their decisions indicate that they would have held as a matter of law that the collision was the 'consequence' of the warlike operation;12 other cases cannot easily be reconciled with such a result.13 Indeed, in one decision, Lord Wright declared that 'In many cases reconciliation is impossible. What matters is the decision.'14 And even in those decisions implying that proof of certain facts results in liability as a matter of law, the House of Lords has spoken in terms of factual proximate cause.15 Their most recent decision construing the words before us states that cases applying the 'question of law' technique should be carefully restricted to their holdings; and Lord Norman warned, 'The numerous authorities cited can therefore have only a limited bearing on the present issue. * * * (T) hey will easily lead to error if it is attempted to extract from them a principle of law to solve what is a question of fact.'16 7 This Court, moreover, has long emphasized that in interpreting insurance contracts reference should be made to considerations of business and insurance practices.17 The particular English cases relied on by petitioner produced such an unfavorable reaction among that country's underwriters that they revised the clause here involved to avoid the injurious effects of those decisions.18 The terms of American war risk policies have also been altered.19 8 The proximate cause method of determining on the facts of each case whether a loss was the 'consequence' of warlike operations may fall short of achieving perfect results. For those insured and those insuring cannot predict with certainty what a trier of fact might decide is the predominant cause of loss. But neither could they predict with certainty what particular state of facts might cause a court to discover liability 'as a matter of law.' Long experience with the proximate cause method in American and English courts has at least proven it adaptable and useful in marine and other insurance cases. There is no reason to believe that its application in this case will disappoint the just expectations of insurer or insured. 9 The judgment of the Court of Appeals is affirmed. 10 Affirmed. 11 Mr. Justice FRANKFURTER, joined by Mr. Justice JACKSON, dissenting. 12 Although the parties are the United States and the Standard Oil Company of New Jersey, this is nothing more than an ordinary insurance case. It is before us because of a conflict with the views of the Court of Appeals for the Ninth Circuit in General Insurance Co. of America v. Link, 173 F.2d 955. On December 16, 1942, the Standard tanker Worthington collided with a United States Navy mine sweeper, the YMS—12, engaged in sweeping mines in the channel outside New York harbor. It has been stipulated that the collision 'was contributed to both by fault in the navigation of SS. John Worthington and fault in the navigation of the United States Ship YMS—12, consisting of failures on the part of both vessels to comply with applicable rules for the prevention of collisions and the requirements of good seamanship under the circumstances.' The Worthington was undamaged, but under admiralty law Standard was liable for half the damage sustained by the mine sweeper since both ships were at fault. Standard, as a self-insurer of its tanker Worthington, had assumed all marine risks except those undertaken by the United States, the charterer of the vessel. The Government's undertaking was to insure against 'all consequences of hostilities or warlike operations.'1 13 The United States filed a libel against Standard to recover for one-half the damage to the Navy mine sweeper. Standard answered that the United States, as insurer of the tanker, would, in view of the nature of the collision, have to reimburse Standard for any loss it sustained in the suit.2 The District Court dismissed the libel upon this theory. 81 F.Supp. 183. The Court of Appeals for the Second Circuit reversed, 178 F.2d 488, and this Court granted certiorari, 339 U.S. 977, 70 S.Ct. 1021, because, as already noted, there was a conflict between the Second and Ninth Circuits. 14 In granting without limitation the petition for certiorari, we brought here all that by fair implication is contained in the following question: 'Is a collision between a war vessel engaged on a warlike operation and a merchant vessel, with fault on the part of both vessels, a consequence of the warlike operation of the war vessel?' I do not think it is permissible to limit the question that was brought here by an assumption that there was no proof of relation between the peculiar risks due to the warlike operation and the loss. The District Court found a connection between the loss and the risks incident to the warlike operation. The Court of Appeals opinion discussed at length the standard upon which such a finding is based. The petitioner's submission here seems clearly to adhere to the ground on which he prevailed in the District Court. It is true that where the standard to be applied to the facts is clear, we ought not to be concerned over a difference of view regarding the facts between the District Court and Court of Appeals. But where the clash of views may involve the meaning of the standard to be applied to the facts, it makes for uncertainty if this Court fails to consider the problem fully. The 'proximate cause' standard of insurance liability is, at best, an elusive concept. It acquires more vivid meaning when abstract discussion leads to an application of the principle. 15 Since the issue is the scope to be given the words 'all consequences of hostilities or warlike operations,' it is important to place the phrase in its historic setting. Phrases like other organisms must be related to their environment. It furthers clarity explicitly to set to one side a group of cases construing an earlier phrase which arose in a different setting. In several cases the Court of Claims and this Court had occasion to consider a provision in Civil War charters and later Government charters whereby the Government assumed the 'war risk' for the vessels. When first called upon to construe the charter provision 'war risk,' the Court of Claims specifically noted that it was not dealing with a standard marine insurance clause and construed the words to mean 'acts of the public enemy' or 'casualties of war.' Bogert v. United States, 2 Ct.Cl. 159, 163. This restrictive definition was reiterated in Morgan v. United States, 5 Ct.Cl. 182, 189—190, which was affirmed in 14 Wall. 531, 20 L.Ed. 738, and became settled doctrine in the subsequent cases involving the 'war risk' charter term. 16 The clause that is our concern, 'all consequences of hostilities or warlike operations,' was not derived from the American 'war risk' charter term and therefore is not to draw its meaning from the cases construing that term. It is a clause evolved by English maritime insurers. See the opinion of Lord Justice Atkin in Britain S.S. Co. v. The King, (1919) 2 K.B. 670, 692—693. And the language has often been construed in English courts. See Yorkshire Dale S.S. Co. v. Minister of War Transport, (1942) A.C. 691, 703, 714, for a discussion of the cases by Lord Wright and Lord Porter. It is only natural that American courts have looked to the English cases for illumination just as courts look to the decisions of another State for aid in determining the meaning of a statute adopted from that State. Provisions in a standard contract from become words of art, and their content is most dependably arrived at by considering the origin of the words and the meaning they have in practice acquired. These are considerations making for appropriate construction and do not imply subservience to English decisions. 17 Two problems arise in construing the clause: (1) What constitutes 'hostilities or warlike operations?' (2) What is the sweep of the words 'all consequences?' The First question, which has presented great difficulties in cases involving convoys and blacked-out vessels, has been removed from the case by a stipulation that the mine sweeper was engaged in sweeping mines—beyond dispute a warlike operation. A warlike operation does not lose its warlike character because it is carried out negligently. 18 The only question before the Court is whether the collision was a 'consequence' of the warlike operation, or, in the jargon of insurance cases, whether the warlike operation was the 'proximate cause' of the collision. 'Proximate cause,' as a requirement of liability under an insurance policy, is not a technical legal conception but a convenient tag for the law's response to good sense. It is shorthand for saying that there must be such a nexus between the policy term under which insurance money is claimed and the events giving rise to the loss that it can be fairly declared that the loss was within the risk assumed. The case is one of 'common-sense accommodation of judgment to kaleidoscopic situations'. Gully v. First National Bank, 299 U.S. 109, 117, 57 S.Ct. 96, 100, 81 L.Ed. 70. 19 Unlike obligations flowing from duties imposed upon people willy-nilly, an insurance policy is a voluntary undertaking by which obligations are voluntarily assumed. Therefore the subtleties and sophistries of tort liability for negligence are not to be applied in construing the covenants of a policy. It is one thing for the law to impose liability by its own notions of responsibility, and quite another to construe the scope of engagements brought and paid for. The law of marine insurance is concerned with and reflects the practicalities of commercial dealings. The law does not play an unreal metaphysical game of trying to find a single isolatable factor as the sole responsibility to which is to be attributed a loss against which insurance has been bought. As a matter of experience and reason such losses are invariably the resultant of a combination of factors. The scope of the undertaking to cover for such losses is partly the law's confirmation of the settled understanding of those whose business is shipping—their understanding of what contingencies the undertaking covered. It is partly the law's endeavor, in view of the inevitable treacheries of language, to shield the insurer from liability for a loss on the basis of a factor too remote, and therefore too tenuous, in the combination of elements that converged toward the loss. 20 Looking to the facts of this case and the terms of the contract, does the failure of both vessels 'to comply with applicable rules for the prevention of collisions and the requirements of good seamanship under the circumstances' relieve of responsibility the insurer against all consequences of hostilities and warlike operations? In other words, does contributory negligence in relation to a warlike operation displace the warlike operation as an effective force in bringing about a loss? 21 The collision occurred between 5 and 6 a.m. on December 16, 1942, in the swept channel in the approaches to New York harbor. The YMS—12 was proceeding seaward with her mine-sweeping gear steamed. She was the starboard vessel in a formation of three mine sweepers engaged in sweeping the buoyed channel. In the words of the District Judge, who questioned counsel closely on the way in which mine sweeping was carried on: 22 'Here, concededly, negligence in navigation existed on the part of both masters, but that negligence did not break the chain of causation so as to prevent the loss from being attributable to the warlike operation. The YMS—12 and the two accompanying vessels, in mine sweeping formation, proceeding with mine sweeping gear streamed and trailing paravanes, presented an unusual and unexpected obstacle to navigation. YMS—105 was the guide ship of the formation, the YMS—12 was stationed several hundred yards on the starboard beam of the YMS—105 and the third vessel in the formation, the AMC—95, was echelon to the right of the guide ship, in a position approximately a half mile astern and midway between the YMS—105 and the YMS—12. From the time of the encounter until actual collision the vessels continued in their mine sweeping operations with their paravanes trailing; in all her manoeuvres and in her navigation the YMS—12 was necessarily restricted and impeded. This unusual formation, of which the YMS—12 was a part, closed to the S. S. John Worthington lanes of navigation affording possible escape which would ordinarily have been open to her. 23 'The negligence found to exist was negligence 'under the circumstances' of the special and extraordinary conditions existing—conditions created by the warlike operation of mine sweeping.' 81 F.Supp. 183, 191. 24 Whether the Court of Appeals reached its decision by application of an erroneous rule of law, by the erroneous application of the proper rule of law, or by an erroneous construction of the stipulation of fact made by the parties is not clear. In any case, it should be reversed. If the matter is viewed simply—according to the fair judgment of men of commerce and clear of beclouding abstractions—one can hardly escape the conclusion of the District Court. The fact that the English courts have reached the same conclusion in similar cases does not weaken its force. See Board of Trade v. Hain S.S. Co., (1929) A.C. 534; Attorney-General v. Adelaide S.S. Co., (1923) A.C. 292. 25 The Government makes a second contention; that its war-risk undertaking did not extend to collision liability. Since the only loss to Standard was a liability for damage to the other ship, this argument would relieve the Government of its liability as insurer. The contention finds support in Adelaide S.S. Co. v. Attorney-General (The Second Warilda), (1926) A.C. 172. But subsequent changes in the wording of the policy make it perfectly plain that the United States insured against collision liability.3 26 Mr. Justice DOUGLAS, dissenting. 27 We have here a question not of tort liability but of the determination of insurance coverage. The accidents which had been held to be covered by this insurance clause prior to 1942, when this contract was made, would therefore seem to be the reliable standards for interpretation. Board of Trade v. Hain S.S. Co., (1929) A.C. 534, and Attorney General v. Adelaide S.S. Co., (1923) A.C. 292, dealt with this precise situation and held that where a ship engaged in a warlike operation collided with another vessel partly or wholly due to faulty navigation on its part the war insurer was liable. Adherence to British precedents in this field was early admonished. Queen Ins. Co. v. Globe Ins. Co., 263 U.S. 487, 493, 44 S.Ct. 175, 176, 68 L.Ed. 402. The rule of the foregoing English cases is for me the most authentic standard for interpreting the present contract. See General Ins. Co. v. Link, 9 Cir., 173 F.2d 955. And none of the cases cited as casting doubt on their holdings presents a contrary result on a similar set of facts. 1 The quoted language comes from the 'F.C. & S. Clause' ('Free from Capture and Seizure') and is incorporated by reference in the war risk policy. War risk insurance is written in the following manner: the marine policy, which covers common perils of the sea, generally contains an 'F.C. & S. Clause' eliminating from coverage certain named war risks, one of which is 'all consequences of hostilities or warlike operations.' The excepted risks are insured against either by adding a rider to the original marine policy, or by buying coverage from another underwriter—here the Government—who insures the perils excluded by 'F.C. & S. Clause.' The opinions below set out more fully the documents on which the present insurance obligation rested. For a history of the development of the 'F.C. & S. Clause' which originated in England, see 18 Halsbury's Laws of England § 439 (2d ed., 1935); Ionides v. Universal Marine Ins. Co., 1863, 14 C.B.,N.S., 259, 273. 2 Counsel described the operation this way: 'A mine sweeping operation * * * is a formation of vessels, each of which streams out behind it a device on a long cable which, towed along a certain distance under the water, is designed to cut the cable of any mine and bring it to the surface, where it can be destroyed by gunfire and the like.' 3 We do not read the Court of Appeals decision as meaning that when negligence is present, the resulting loss can never be a war risk. The District Court held (and the Court of Appeals approved) that '"Proximate' here means, not latest in time, but predominate in efficiency * * *.' (T)here is necessarily involved a process of selection from among the co-operating causes to find what is the proximate cause in the particular case.' It is true that the causes of an event are all the preceding circumstances which brought the event to pass—and they are myriad.' 81 F.Supp. 190. If the 'warlike operation' was the 'proximate cause' of the collision, then the fact that the 'warlike operation' was negligently conducted does not relieve the war risk underwriter of liability. Cf. General Mut. Ins. Co. v. Sherwood, 14 How. 351, 14 L.Ed. 452; 1 Phillips on Insurance (5th ed. 1867) par. 1049. 4 Cases collected, 1912 D Ann.Cases 1038, 1040; 2 Arnould, Marine Insurance and Average § 827a (13th ed., Lord Chorley, 1950). 5 Ionides v. Universal Marine Ins. Co., 1863, 14 C.B.,N.S., 259; see Queen Ins. Co. v. Globe & Rutgers Fire Ins. Co., 263 U.S. 487, 491, 44 S.Ct. 175, 176, 68 L.Ed. 402; 2 Arnould, Marine Insurance and Average § 790 (13th ed., Lord Chorley, 1950). 6 Aetna Ins. Co. v. Boon, 95 U.S. 117, 24 L.Ed. 395; 3 Kent's Commentaries 302 (14th ed., Gould, 1896); cases are collected in 6 Couch, Cyclopedia of Insurance Law § 1463. 7 Queen Ins. Co. v. Globe & Rutgers Fire Ins. Co., 263 U.S. 487, 492, 44 S.Ct. 175, 176, 68 L.Ed. 402. Cf. Howard Fire Ins. Co. v. Norwich & N.Y. Transportation Co., 12 Wall. 194, 197—199, 20 L.Ed. 378. 8 Dole v. New England Mut. Ins. Co., C.C.Mass.1864, 7 Fed.Cas. pages 837, 853, No.3,966 (C.C.Mass.1864) decided by Mr. Justice Clifford on circuit. Accord: Aetna Ins. Co. v. Boon, 95 U.S. 117, 24 L.Ed. 395; Lanasa Fruit S.S. & Importing Co. v. Universal Ins. Co., 302 U.S. 556, 561—565, 58 S.Ct. 371, 373—375, 82 L.Ed. 442; 3 Kent's Commentaries 302, n. 1 (14th ed., Gould, 1896); 1 Phillips on Insurance (5th ed. 1867) par. 1132. 9 Ordinary marine insurance covers losses due to fortuitous perils of the sea. War risk insurance covers losses due to perils superimposed on usual marine perils by war. As Lord Wrenbury put it, 'The question is whether the loss was occasioned by a new risk arising by reason of warlike operations.' Attorney-General v. Ard Coasters (1921) 2 A.C. 141, 154. 10 Queen Ins. Co. v. Globe & Rutgers Fire Ins. Co., 263 U.S. 487, 493, 44 S.Ct. 175, 176, 68 L.Ed. 402. See New York & Oriental S.S. Co. v. Automobile Ins. Co., 2 Cir., 37 F.2d 461, 463. The desire for uniformity in interpretation of the war risk clause may now be more academic than real. Since 1942, policies issued in England and in the United States have not contained similar provisions in this regard so that uniformity is no longer possible. Compare 1945 A.M.C. 1035 with 1945 A.M.C. 1036. 11 Aetna Ins. Co. v. United Fruit Co., 304 U.S. 430, 438, 58 S.Ct. 959, 82 L.Ed. 1443. 12 E.g., Attorney-General v. Adelaide S.S. Co. (1923) A.C. 292; Board of Trade v. Hain S.S. Co. (1929) A.C. 534; cf. Yorkshire Dale S.S. Co. v. Minister of War Transport (1942) A.C. 691. 13 E.g., Clan Line Steamers v. Board of Trade (1929) A.C. 514; Liverpool & London War Risks Ass'n v. Ocean S.S. Co. (1948) A.C. 243. 14 Yorkshire Dale S.S. Co. v. Minister of War Transport (1942) A.C. 691, 708. 15 See cases cited in note 12, supra. England has enacted the proximate cause test into its statutory law. Marine Insurance Act of 1906, 6 Edw. VII, c. 41, § 55(2). 16 Liverpool & London War Risks Assn. v. Ocean S.S. Co. (1948) A.C. 243, 270. 17 General Mut. Ins. Co. v. Sherwood, 14 How. 351, 362, 14 L.Ed. 452. 18 2 Arnould Marine Insurance and Average § 905h (13th ed., Lord Chorley, 1950). 19 See note 10, supra. 1 The Worthington was under requisition time charter to the United States at the time of collision. Clause 20 of Part II of the charter provided: 'Unless otherwise mutually arranged, at all times during the currency of this Charter the Charterer shall provide and pay for or assume: (i) insurance on the Vessel, under the terms and conditions of the full form of standard hull war risk policy of the War Shipping Administration, * * *.' The clause further provided that Standard should assume or insure against all risks '(e)xcept as to risks or liabilities assumed, insured or indemnified against by the Charterer (i.e., the United States) * * *.' The Government provided insurance against risks arising from hostilities or warlike operations by an involute and somewhat engimatic set of forms. A binder of insurance issued to Standard by the United States provided: '3. This binder shall be subject to all the rules, regulations, conditions and policy forms as prescribed by the War Shipping Administration. * * *' Endorsement No. 1 to the binder also provided: '2. This insurance shall be subject to all the rules, regulations, conditions and policy forms as prescribed by the War Shipping Administration in force at the time of issuance of the binder and shall be subject to the terms of the requisition charter party relative to this vessel accepted by the assured and any modifications or amendments thereto.' The standard War Shipping Administration policy form referred to in the charter and binder included the following clauses: 'F.C. & S. Clause. Notwithstanding anything to the contrary contained in the Policy, this insurance is warranted free from any claim for loss, damage, or expense caused by or resulting from capture, seizure, arrest, restraint, or detainment, or the consequences thereof or of any attempt thereat, or any taking of the Vessel, by requisition or otherwise, whether in time of peace of war and whether lawful or otherwise; also from all consequences of hostilities or warlike operations (whether there be a declaration of war or not), piracy, civil war, revolution, rebellion, or insurrection, or civil strife arising therefrom. 'If war risks are hereafter insured by endorsement on the Policy, such endorsement shall supersede the above warranty only to the extent that their terms are inconsistent and only while such war risk endorsement remains in force.' An endorsement to the policy form further provided: 'It is agreed that this insurance covers only those risks which would be covered by the attached policy (including the Collision Clause) in the absence of the F.C. & S. warranty contained therein but which are excluded by that warranty.' 2 In a letter to Standard counsel dated December 14, 1945, the Acting Chief Adjuster, Division of Maritime Insurance, stated that 'any claim or suit by the United States of America, as Owners of the ship Y.M.S.—12, in which we might prove to be concerned, would be waived.' See Interdepartmental Waiver promulgated by War Shipping Administration in Legal Bulletin W.S.A. No. 23, Part II, dated January 14, 1943: 'II. Inter-Departmental Claims 'Generally stated, it can be said that all types of maritime claims in favor of or against a Government department or agency, such as War Shipping Administration, Army, Navy, Lend-Lease Administration, etc., which claims are in turn for or against another United States Government department or agency, are to be waived and will not be asserted or pressed to final conclusion. * * *' 3 The corresponding insurance provisions in the Second Warilda and the present case are set forth below:

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340 U.S. 71 71 S.Ct. 144 95 L.Ed. 86 LIBBY, McNEILL & LIBBYv.UNITED STATES. No. 37. Argued Oct. 13, 1950. Decided Nov. 27, 1950. As Amended on Denial of Rehearing Jan. 8, 1951. Mr. Stanley B. Long, Seattle, Wash., for petitioner. Mr. Samuel D. Slade, Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 This is a companion case to Standard Oil Company of New Jersey v. United States, 340 U.S. 54, 71 S.Ct. 135, decided this day. Here, as there, the Government insured petitioner's ship against war risks including 'all consequences of hostilities or warlike operations.' The ordinary marine risks were covered by a Lloyd's policy. The vessel, United States Army Transport David W. Branch, stranded on January 13, 1942, when an inexperienced helmsman made a mistake in steering. The Government admits that the Branch was engaged in the warlike operation of transporting military supplies and personnel between war bases, but denies that the warlike phases of the operation caused the stranding. The Court of Claims found as a fact that there was no causal connection between the 'warlike operation' and the stranding, and accordingly gave judgment for the United States. 87 F.Supp. 866, 115 Ct.Cl. 290. Petitioner's contentions for reversal here are substantially the same as those advanced in Standard Oil Company of New Jersey v. United States, supra. The reasons given for our holding there require affirmance in this case. 2 Affirmed. 3 Mr. Justice DOUGLAS dissents for the reasons set forth in his dissent in Standard Oil Company of New Jersey v. United States, 340 U.S. 54, 70, 71 S.Ct. 135, 143, decided this day. 4 Mr. Justice FRANKFURTER, joined by Mr. Justice JACKSON, dissenting. 5 This is another marine insurance case raising the same legal issue as Standard Oil Co. v. United States, 340 U.S. 54, 71 S.Ct. 135, and is to be decided in light of it. The facts of the case must be considered, for the question whether the loss was a 'consequence' of hostilities and warlike activities cannot be answered in the abstract. 6 The Branch, a combination passenger and cargo vessel having a gross tonnage of 5,544 tons, was chartered to the United States by her owners on September 15, 1941. The owners insured against marine risks, and the Government insured against 'all consequences of hostilities or warlike operations.' On January 11, 1942, the Branch departed from Seattle for certain Alaskan ports. She was operated by the Army and was loaded with materials and personnel destined for war bases in Alaska. The sailing orders issued by the Army Transport Service directed the Branch to follow the inside passage to Alaska because there was danger of submarine attack if the outside route across open seas were followed. On the night of January 13, the Branch, running on a course 350 yards off Hammer Island, diverged from the course and headed toward the island. The helmsman, who was found to be incompetent, turned in an opposite direction from that ordered by the pilot when the divergence was noticed, and the vessel ran aground on a partially submerged reef. 7 Here, as in the Standard Oil case, it is clear that the vessel was engaged in a warlike operation, and the Court of Claims so concluded. The only question is whether in the circumstances the running aground is fairly to be considered a 'consequence' of the warlike activity. The court below concluded that it could not look beyond the fault of the helmsman although it found specially a number of facts indicating that the collision grew out of the warlike activity of the vessel. 8 (1) The court found that the 'deperming process to which the vessel was subjected created an unstable and variable magnetic condition in the vessel which in turn created an unstable, variable, and unreliable condition of her magnetic compasses when reinstalled. * * * In normal circumstances a vessel such as the Branch would not put to sea with the compasses in that condition. * * * (B)ut because of the urgent military necessity for the transportation of the personnel and materials on board the vessel to the war bases in Alaska, the voyage was undertaken notwithstanding the known unreliable condition of the compasses.' 87 F.Supp. 866, 871, 115 Ct.Cl. 290, 301. The court further found that the helmsman was steering 'by the compass under directions from the pilot' prior to the stranding, and that the 'instability of the steering compass as a result of the deperming operation may have been a contributing factor to the ship's deviation from her course.' 87 F.Supp. at 873, 874, 115 Ct.Cl. 290, 304, 305. 9 (2) The court found that the master 'received instructions from the office of the Navy Routing Officer to proceed at her maximum full ahead speed, which was in excess of her normal and usual peacetime speed, and was so operating at the time of her stranding.' 87 F.Supp. at 872, 115 Ct.Cl. 290, 303. 10 (3) The court found that the inside passage through which the Branch was ordered to proceed in order to avoid submarines, 'is narrow and tortuous, contains submerged rocks, reefs, and shoals, and swift, strong, and unpredictable currents.' 87 F.Supp. at 868, 115 Ct.Cl. 290, 295. It found that the inside passage 'is navigationally dangerous, particularly in the wintertime when weather conditions interfere with the observation of landmarks, lights, and other visual aids, and it has been the scene of numerous vessel strandings and marine casualties.' Id. 11 (4) The court found: 'Because of manpower shortage due to the war it was difficult to procure experienced and competent helmsmen, and for that reason the helmsmen on board were incompetent and inexperienced and there was a standing order for the mate on watch to stand alongside the helmsman to watch his steering.' 87 F.Supp. at 873, 115 Ct.Cl. 290, 305. 12 In its opinion the court below concluded that the speed of the ship had nothing to do with the stranding. It also considered that sailing the inside passage, the incompetent helmsman, and the wandering compass were consequences of war, rather than the warlike operation of the ship, since civilian vessels would have been subject to the same conditions. But this misses the point, for the court itself found that the vessel put to sea with unreliable compasses only 'because of the urgent military necessity for the transportation of the personnel and materials on board the vessel to the war bases in Alaska'. 87 F.Supp. 871, 115 Ct.Cl. 301. There is nothing to suggest that any civilian vessel would voluntarily embark on such a voyage through a tortuous passage, at high speed, with unreliable compasses and incompetent personnel. Where the contributing forces of an occurrence are in such large part patently referable to the warlike operation of the vessel, the insurer against all consequences of hostilities and warlike operations should not be relieved of liability because, under such circumstances, the helmsman was incompetent and failed to follow the orders of the pilot.

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340 U.S. 135 71 S.Ct. 153 95 L.Ed. 152 FERESv.UNITED STATES. JEFFERSON v. UNITED STATES. UNITED STATES v. GRIGGS. Nos. 9, 29, 31. Argued Oct. 12, 13, 1950. Decided Dec. 4, 1950. Mr. David H. Moses, Suffern, N.Y., for petitioner Feres. Mr. Morris Rosenberg, Baltimore, Md., for petitioner Jefferson. Mr. Newell A. Clapp, Washington, D.C., for the United States. Mr. Frederick P. Cranston, Denver, Colo., for respondent Griggs. Mr. Justice JACKSON, delivered the opinion of the Court. 1 A common issue arising under the Tort Claims Act, as to which Courts of Appeals are in conflict, makes it appropriate to consider three cases in one opinion. 2 The Feres case: The District Court dismissed an action by the executrix of Feres against the United States to recover for death caused by negligence. Decedent perished by fire in the barracks at Pine Camp, New York, while on active duty in service of the United States. Negligence was alleged in quartering him in barracks known or which should have been known to be unsafe because of a defective heating plant, and in failing to maintain an adequate fire watch. The Court of Appeals, Second Circuit, affirmed.1 3 The Jefferson case: Plaintiff, while in the Army, was required to undergo an abdominal operation. About eight months later, in the course of another operation after plaintiff was discharged, a towel 30 inches long by 18 inches wide, marked 'Medical Department U.S. Army,' was discovered and removed from his stomach. The complaint alleged that it was negligently left there by the army surgeon. The District Court, being doubtful of the law, refused without prejudice the Government's pretrial motion to dismiss the complaint.2 After trial, finding negligence as a fact, Judge Chesnut carefully reexamined the issue of law and concluded that the Act does not charge the United States with liability in this type of case.3 The Court of Appeals, Fourth Circuit, affirmed.4 4 The Griggs case: The District Court dismissed the complaint of Griggs' executrix, which alleged that while on active duty he met death because of negligent and unskillful medical treatment by army surgeons. The Court of Appeals, Tenth Circuit, reversed and, one judge dissenting, held that the complaint stated a cause of action under the Act.5 5 The common fact underlying the three cases is that each claimant, while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces. The only issue of law raised is whether the Tort Claims Act extends its remedy to one sustaining 'incident to the service' what under other circumstances would be an actionable wrong. This is the 'wholly different case' reserved from our decision in Brooks v. United States, 337 U.S. 49, 52, 69 S.Ct. 918, 920, 93 L.Ed. 1200. 6 There are few guiding materials for our task of statutory construction. No committee reports or floor debates disclose what effect the statute was designed to have on the problem before us, or that it even was in mind. Under these circumstances, no conclusion can be above challenge, but if we misinterpret the Act, at least Congress possesses a ready remedy. 7 We do not overlook considerations persuasive of liability in these cases. The Act does confer district court jurisdiction generally over claims for money damages against the United States founded on negligence. 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b). It does contemplate that the Government will sometimes respond for negligence of military personnel, for it defines 'employee of the Government' to include 'members of the military or naval forces of the United States,' and provides that "acting within the scope of his office or employment' in the case of a member of the military or naval forces of the United States, means acting in line of duty.' 28 U.S.C. § 2671, 28 U.S.C.A. § 2671. Its exceptions might also imply inclusion of claims such as we have here. 28 U.S.C. § 2680(j), 28 U.S.C.A. § 2680(j) excepts 'any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war' (emphasis supplied), from which it is said we should infer allowance of claims arising from non-combat activities in peace. Section 2680(k) excludes 'any claim arising in a foreign country.' Significance also has been attributed in these cases, as in the Brooks case, supra, 337 U.S. at page 51, 69 S.Ct. 919, to the fact that eighteen tort claims bills were introduced in Congress between 1925 and 1935 and all but two expressly denied recovery to members of the armed forces; but the bill enacted as the present Tort Claims Act from its introduction made no exception. We also are reminded that the Brooks case, in spite of its reservation of service-connected injuries, interprets the Act to cover claims not incidental to service, and it is argued that much of its reasoning is as apt to impose liability in favor of a man on duty as in favor of one on leave. These considerations, it is said, should persuade us to cast upon Congress, as author of the confusion, the task of qualifying and clarifying its language if the liability here asserted should prove so depleting of the public treasury as the Government fears. 8 This Act, however, should be construed to fit, so far as will comport with its words, into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole. The Tort Claims Act was not an isolated and spontaneous flash of congressional generosity. It marks the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit. While the political theory that the King could do so wrong was repudiated in America, a legal doctrine derived from it that the Crown is immune from any suit to which it has not consented6 was invoked on behalf of the Republic and applied by our courts as vigorously as it had been on behalf of the Crown.7 As the Federal Government expanded its activities, its agents caused a multiplying number of remediless wrongs—wrongs which would have been actionable if inflicted by an individual or a corporation but remediless solely because their perpetrator was an officer or employee of the Government. Relief was often sought and sometimes granted through private bills in Congress, the number of which steadily increased as Government activity increased. The volume of these private bills, the inadequacy of congressional machinery for determination of facts, the importunities to which claimants subjected members of Congress, and the capricious results, led to a strong demand that claims for tort wrongs be submitted to adjudication. Congress already had waived immunity and made the Government answerable for breaches of its contracts and certain other types of claims.8 At last, in connection with the Reorganization Act, it waived immunity and transferred the burden of examining tort claims to the courts. The primary purpose of the Act was to extend a remedy to those who had been without; if it incidentally benefited those already well provided for, it appears to have been unintentional. Congress was suffering from no plague of private bills on the behalf of military and naval personnel, because a comprehensive system of relief had been authorized for them and their dependents by statute. 9 Looking to the detail of the Act, it is true that it provides, broadly, that the District Court 'shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * *.'9 This confers jurisdiction to render judgment upon all such claims. But it does not say that all claims must be allowed. Jurisdiction is necessary to deny a claim on its merits as matter of law as much as to adjudge that liability exists. We interpret this language to mean all it says, but no more. Jurisdiction of the defendant now exists where the defendant was immune from suit before; it remains for courts, in exercise of their jurisdiction, to determine whether any claim is recognizable in law. 10 For this purpose, the Act goes on to prescribe the test of allowable claims, which is, 'The United States shall be liable * * * in the same manner and to the same extent as a private individual under like circumstances * * *,' with certain exceptions not material here. 28 U.S.C. § 2674, 28 U.S.C.A. § 2674. It will be seen that this is not the creation of new causes of action but acceptance of liability under circumstances that would bring private liability into existence. This, we think, embodies the same idea that its English equivalent enacted in 1947 (Crown Proceedings Act 1947; 10 and 11 Geo. VI, c. 44, p. 863) expressed, 'Where any person has a claim against the Crown after the commencement of this Act, and, if this Act had not been passed, the claim might have been enforced, subject to the grant * * *' of consent to be sued, the claim may now be enforced without specific consent. One obvious shortcoming in these claims is that plaintiffs can point to no liability of a 'private individual' even remotely analogous to that which they are asserting against the United States. We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving.10 Nor is there any liability 'under like circumstances,' for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command. The nearest parallel, even if we were to treat 'private individual' as including a state, would be the relationship between the states and their militia. But if we indulge plaintiffs the benefit of this comparison, claimants cite us no state, and we know of none, which has permitted members of its militia to maintain tort actions for injuries suffered in the service, and in at least one state the contrary has been held to be the case.11 It is true that if we consider relevant only a part of the circumstances and ignore the status of both the wronged and the wrongdoer in these cases we find analogous private liability. In the usual civilian doctor and patient relationship, there is of course a liability for malpractice. And a landlord would undoubtedly be held liable if an injury occurred to a tenant as the result of a negligently maintained heating plant. But the liability assumed by the Government here is that created by 'all the circumstances,' not that which a few of the circumstances might create. We find no parallel liability before, and we think no new one has been created by, this Act. Its effect is to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities. 11 It is not without significance as to whether the Act should be construed to apply to service-connected injuries that it makes '* * * the law of the place where the act or omission occurred' govern any consequent liability. 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b). This provision recognizes and assimilates into federal law the rules of substantive law of the several states, among which divergencies are notorious. This perhaps is fair enough when the claimant is not on duty or is free to choose his own habitat and thereby limit the jurisdiction in which it will be possible for federal activities to cause him injury. That his tort claims should be governed by the law of the location where he has elected to be is just as fair when the defendant is the Government as when the defendant is a private individual. But a soldier on active duty has no such choice and must serve any place or, under modern conditions, any number of places in quick succession in the forty-eight states, the Canal Zone, or Alaska, or Hawaii, or any other territory of the United States. That the geography of an injury should select the law to be applied to his tort claims makes no sense. We cannot ignore the fact that most states have abolished the common-law action for damages between employer and employee and superseded it with workman's compensation statutes which provide, in most instances, the sole basis of liability. Absent this, or where such statutes are inapplicable, states have differing provisions as to limitations of liability and different doctrines as to assumption of risk, fellowservant rules and contributory or comparative negligence. It would hardly be a rational plan of providing for those disabled in service by others in service to leave them dependent upon geographic considerations over which they have no control and to laws which fluctuate in existence and value. 12 The relationship between the Government and members of its armed forces is 'distinctively federal in character', as this Court recognized in United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067, wherein the Government unsuccessfully sought to recover for losses incurred by virtue of injuries to a soldier. The considerations which lead to that decision apply with even greater force to this case: '* * * To whatever extent state law may apply to govern the relations between soldiers or others in the armed forces and persons outside them or nonfederal governmental agencies, the scope, nature, legal incidents and consequence of the relation between persons in service and the Government are fundamentally derived from federal sources and governed by federal authority. See Tarble's Case, 13 Wall. 397, 20 L.Ed. 597; Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 148, 29 L.Ed. 458. * * *' 332 U.S. at pages 305 306, 67 S.Ct. at page 1607. 13 No federal law recognizes a recovery such as claimants seek. The Military Personnel Claims Act, 31 U.S.C. § 223b, now superseded by 28 U.S.C. § 2672, 28 U.S.C.A. § 2672, permitted recovery in some circumstances, but it specifically excluded claims of military personnel 'incident to their service.' 14 This Court, in deciding claims for wrongs incident to service under the Tort Claims Act, cannot escape attributing some bearing upon it to enactments by Congress which provide systems of simple, certain, and uniform compensation for injuries or death of those in armed services.12 We might say that the claimant may (a) enjoy both types of recovery, or (b) elect which to pursue, thereby waiving the other, or (c) pursue both, crediting the larger liability with the proceeds of the smaller, or (d) that the compensation and pension remedy excludes the tort remedy. There is as much statutory authority for one af for another of these conclusions. If Congress had contemplated that this Tort Act would be held to apply in cases of this kind, it is difficult to see why it should have omitted any provision to adjust these two types of remedy to each other. The absence of any such adjustment is persuasive that there was no awareness that the Act might be interpreted to permit recovery for injuries incident to military service. 15 A soldier is at peculiar disadvantage in litigation.13 Lack of time and money, the difficulty if not impossibility of procuring witnesses, are only a few of the factors working to his disadvantage. And the few cases charging superior officers or the Government with neglect or misconduct which have been brought since the Tort Claims Act, of which the present are typical, have either been suits by widows or surviving dependents, or have been brought after the individual was discharged.14 The compensation system, which normally requires no litigation, is not negligible or niggardly, as these cases demonstrate. The recoveries compare extremely favorably with those provided by most workman's compensation statutes. In the Jefferson case, the District Court considered actual and prospective payments by the Veterans' Administration as diminution of the verdict. Plaintiff received $3,645.50 to the date of the court's computation and on estimated life expectancy under existing legislation would prospectively receive $31,947 in addition. In the Griggs case, the widow, in the two-year period after her husband's death, received payments in excess of $2,100. In addition, she received $2,695, representing the six months' death gratuity under the Act of December 17, 1919, as amended, 41 Stat. 367, 57 Stat. 599, 10 U.S.C. § 903, 10 U.S.C.A. § 903. It is estimated that her total future pension payments will aggregate $18,000. Thus the widow will receive an amount in excess of $22,000 from Government gratuities, whereas she sought and could seek under state law only $15,000, the maximum permitted by Illinois for death. 16 It is contended that all these considerations were before the Court in the Brooks case and that allowance of recovery to Brooks requires a similar holding of liability here. The actual holding in the Brooks case can support liability here only by ignoring the vital distinction there stated. The injury to Brooks did not arise out of or in the course of military duty. Brooks was on furlough, driving along the highway, under compulsion of no orders or duty and on no military mission. A Government owned and operated vehicle collided with him. Brooks' father, riding in the same car, recovered for his injuries and the Government did not further contest the judgment but contended that there could be no liability to the sons, solely because they were in the Army. This Court rejected the contention, primarily because Brooks' relationship while on leave was not analogous to that of a soldier injured while performing duties under orders. 17 We conclude that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. Without exception, the relationship of military personnel to the Government has been governed exclusively by federal law. We do not think that Congress, in drafting this Act, created a new cause of action dependent on local law for service-connected injuries or death due to negligence. We cannot impute to Congress such a radical departure from established law in the absence of express congressional command. Accordingly, the judgments in the Feres and Jefferson cases are affirmed and that in the Griggs case is reversed. 18 Judgments in Feres and Jefferson cases affirmed; judgment in Griggs case reversed. 19 Mr. Justice DOUGLAS concurs in the result. 1 177 F.2d 535. 2 74 F.Supp. 209. 3 D.C., 77 F.Supp. 706. 4 178 F.2d 518. 5 178 F.2d 1. 6 The Crown has recently submitted itself to suit, see 340 U.S. 141, 71 S.Ct. 157. 7 United States v. McLemore, 4 How. 286, 11 L.Ed. 977; Reeside v. Walker, 11 How. 272, 290, 13 L.Ed. 693; Ickes v. Fox, 300 U.S. 82, 96, 57 S.Ct. 412, 417, 81 L.Ed. 525. 8 28 U.S.C. § 1491, 28 U.S.C.A. § 1491. 9 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b). The provisions of the Tort Claims Act are now found in Title 28, §§ 1291, 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671—2680. In recodifying Title 28 of the United States Code, changes in language were made. The Tort Claims Act, as originally enacted, 60 Stat. 843, provided in § 410 that the District Court 'shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only * * *.' (Emphasis supplied.) We attribute to this change of language no substantive change of law. 10 Cf. Dinsman v. Wilkes, 12 How. 390, 13 L.Ed. 1036 and Weaver v. Ward, Hobart 135 (1616), 80 Eng.Rep. 284 as to intentional torts. 11 Goldstein v. State, 281 N.Y. 396, 24 N.E.2d 97, 129 A.L.R. 905. 12 48 Stat. 8 (1933), as amended, 38 U.S.C. § 701 (1946), 38 U.S.C.A. § 701; 48 Stat. 11 (1933), as amended, 38 U.S.C. § 718 (1946), 38 U.S.C.A. § 718; 55 Stat. 608 (1941), 38 U.S.C. § 725 (1946), 38 U.S.C.A. § 725; 57 Stat. 558 (1943), as amended, 38 U.S.C. § 731 (1946), 38 U.S.C.A. § 731; 62 Stat. 1219, 1220 (1948), 38 U.S.C. (Supp. III) §§ 740, 741 (1950), 38 U.S.C.A. §§ 740, 741. 13 Relief was provided in the Soldiers' and Sailors' Civil Relief Act of 1940, 54 Stat. 1178, 50 U.S.C.App. § 501 et seq., 50 U.S.C.A.Appendix, § 501 et seq. 14 Brooks v. United States, supra (discharged at time of suit); Santana v. United States, 1 Cir., 175 F.2d 320, 321 (suit by sole heirs); Ostrander v. United States, 2 Cir., 178 F.2d 923 (suit by widow); Samson v. United States, D.C.S.D.N.Y., 79 F.Supp. 406 (suit by administrator); Alansky v. Northwest Airlines, D.C.D.Mont., 77 F.Supp. 556 (suit by widow and son).

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340 U.S. 122 71 S.Ct. 146 95 L.Ed. 141 WHELCHELv.McDONALD. No. 109. Argued Nov. 10, 1950. Decided Dec. 4, 1950. Rehearing Denied Jan. 15, 1951. See 340 U.S. 923, 71 S.Ct. 356. Mr. Hugh Carney, Atlanta, Tex., for petitioner. Mr. John F. Davis, Washington, D.C., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Petitioner, while on active duty with the Army in Germany, was convicted by a general court-martial of rape on a German girl. The sentence of death, originally imposed, was reduced to a term of years. This case arises on a petition for a writ of habeas corpus filed in the District Court, challenging the legality of petitioner's detention under that sentence. That court denied the petition and the Court of Appeals affirmed. 176 F.2d 260; 178 F.2d 760. The main point presented by the petition for certiorari is whether the military tribunal that tried petitioner was deprived of Jurisdiction by reason of the treatment of the insanity issue tendered by petitioner. We hold that it was not. 2 The charges against petitioner were referred to an investigating officer in accordance with Article 70 of the Articles of War, 10 U.S.C. (1946 ed.) § 1542, 10 U.S.C.A. § 1542. The investigating officer reported that he had no reasonable ground for believing petitioner was deranged. A neuropsychiatrist attached to petitioner's division reported, after examining petitioner, that he was legally sane. The Division Staff Judge Advocate recommended a general court-martial trial, stating there was no reason to believe petitioner to be temporarily or permanently deranged. The defense of insanity was not raised, however, either at the pretrial investigation or the trial itself. After the trial petitioner's trial counsel wrote the Division Commanding General requesting that the case be reopened and petitioner be given a neuropsychiatric examination on the ground that counsel had received information that petitioner might have been in an epileptic fit at the time of the offense. This request received the concurrence of five of the six members of the court-martial and was accompanied by similar letters from two officers and a sergeant of petitioner's division. The record was in this condition when it was reviewed by General Eisenhower of the European Theatre of Operations, by the Board of Review of that Theatre, and by the Assistant Judge Advocate General. 3 There was evidence in the hearing before the District Court that petitioner may have been either insane or drunk at the time of the crime. 4 We put to one side the due process issue which respondent presses, for we think it plain from the law governing court-martial procedure that there must be afforded a defendant at some point of time an opportunity to tender the issue of insanity. It is only a denial of that opportunity which goes to the question of jurisdiction. That opportunity was afforded here. Any error that may be committed in evaluating the evidence tendered is beyond the reach of review by the civil courts. 5 The Manual prescribes the ordinary test of criminal responsibility, viz., whether the accused was able to tell right from wrong.1 Insanity is a defense.2 The pretrial procedure prescribed in Article 70 offers the accused an opportunity to present the defense of insanity. Petitioner had that opportunity. The Manual provides that the reviewing authority (here the Commanding General of the Division) 'will take appropriate action where it appears from the record or otherwise that the accused may have been insane' at the time of the crime, whether or not such question was raised at the trial.3 That is also a provision which is applicable to the confirming authority4 (here the General in charge of the European Theatre of Operations). The confirming authority had before it the request of the defense counsel and the other letters and recommendations submitted to it. The Manual does not require either the reviewing authority or the confirming authority to halt the proceedings, make a further investigation, or start over again. It entrusts the matter to the discretion of those authorities. 6 Petitioner had a further consideration by the military authorities of the insanity is sue which he tenders. By Article 53 of the revised Articles of War, Act of June 24, 1948, 62 Stat. 639, 642, 10 U.S.C. § 1525, 10 U.S.C.A. § 1525, which was effective February 1, 1949, the Judge Advocate General is authorized 'upon application of an accused person, and upon good cause shown, in his discretion to grant a new trial' in any court-martial case on application within the prescribed time limits. That Article became effective after the petition for habeas corpus was filed. But while the case was pending on appeal the Court of Appeals delayed final action while petitioner made application under Article 53. The Judge Advocate General reviewed all the evidence on the insanity issue which petitioner had tendered both to the military authorities and to the District Court in the habeas corpus proceeding and concluded 'I entertain no doubt that Whelchel was so far free from mental defect, disease, and derangement as to be able concerning the particular acts charged both to distinguish right from wrong and to adhere to the right. * * *' 7 Any error by the military in evaluating the evidence on the question of insanity would not go to jurisdiction, the only issue before the court in habeas corpus proceedings. 8 The law member of the court-martial was not named from the Judge Advocate General's Department. But since no showing was made of the availability of such a member, a case of gross abuse of discretion has not been established. See Hiatt v. Brown, 339 U.S. 103, 109—110, 70 S.Ct. 495, 498. 9 Under Article 4 of the revised Articles of War an accused may now request that enlisted men be included on the court-martial that tries him.5 There was no such provision of the law when petitioner was tried.6 But the fact that he was tried by a court-martial composed wholly of officers does not raise a question which goes to jurisdiction. Petitioner can gain no support from the analogy of trial by jury in the civil courts. The right to trial by jury guaranteed by the Sixth Amendment is not applicable to trials by courts-martial or military commissions. See Kahn v. Anderson, 255 U.S. 1, 8, 41 S.Ct. 224, 225, 65 L.Ed. 469; Ex parte Quirin, 317 U.S. 1, 40—41, 63 S.Ct. 1, 16—17, 87 L.Ed. 3. Courts-martial have been composed of officers both before and after the adoption of the Constitution.7 The constitution of courts-martial, like other matters relating to their organization and administration, see Kahn v. Anderson, supra, 255 U.S. at pages 6—7, 41 S.Ct. 225, 65 L.Ed. 469; Swaim v. United States, 165 U.S. 553, 556—559, 17 S.Ct. 448, 449—450, 41 L.Ed. 823; Mullan v. United States, 140 U.S. 240, 244—245, 11 S.Ct. 788, 789—790, 35 L.Ed. 489; Martin v. Mott, 12 Wheat. 19, 34—35, 6 L.Ed. 537, is a matter appropriate for congressional action. 10 Affirmed. 1 Paragraph 78a Manual for Courts-Martial (1928 ed.) provides: 'A person is not mentally responsible for an offense unless he was at the time so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged both to distinguish right from wrong and to adhere to the right.' 2 Paragraph 63 of the Manual provides: 'The court will inquire into the existing mental condition of the accused whenever at any time while the case is before the court it appears to the court for any reason that such inquiry ought to be made in the interest of justice. Reasons for such action may include anything that would cause a reasonable man to question the accused's mental capacity either to understand the nature of the proceedings or intelligently to conduct or to cooperate in his defense.' Paragraph 75a provides: 'If the court determines that the accused was not mentally responsible, it will forthwith enter a finding of not guilty as to the proper specification.' Paragraph 78a provides: 'Where a reasonable doubt exists as to the mental responsibility of an accused for an offense charged, the accused can not legally be convicted of that offense.' 3 Id., paragraph 87. 4 Id., paragraph 88. 5 10 U.S.C.Supp. III, § 1475, 10 U.S.C.A. § 1475. 6 At the time of petitioner's trial Article 4, 10 U.S.C. (1946 ed.) § 1475, 10 U.S.C.A. § 1475, provided in pertinent part as follows: 'All officers in the military service of the United States, and officers of the Marine Corps when detached for service with the Army by order of the President, shall be competent to serve on courts-martial for the trial of any persons who may lawfully be brought before such courts for trial.' 7 See collection of precedents in Winthrop's Military Law and Precedents, 2d ed., Reprint 1920: British Articles of War of 1765, p. 942; American Articles of War of 1776, p. 967; American Articles of War of 1806, pp. 981—982.

34

340 U.S. 147 71 S.Ct. 127 95 L.Ed. 162 GREAT ATLANTIC & PACIFIC TEA CO.v.SUPERMARKET EQUIPMENT CORP. et al. No. 32. Argued Oct. 18, 19, 1950. Decided Dec. 4, 1950. Rehearing Denied Jan. 8, 1951. See 340 U.S. 918, 71 S.Ct. 349. Mr. John H. Glaccum, New York City, for petitioner. Mr. Townsend F. Beaman, Washington, D.C., for respondents. Mr. Justice JACKSON delivered the opinion of the Court. 1 Two courts below have concurred in holding three patent claims to be valid,1 and it is stipulated that, if valid, they have been infringed. The issue, for the resolution of which we granted certiorari,2 is whether they applied correct criteria of invention. We hold that they have not, and that by standards appropriate for a combination patent these claims are invalid. 2 Stated without artifice, the claims assert invention of a cashier's counter equipped with a three-sided frame, or rack, with no top or bottom, which, which pushed or pulled, will move groceries deposited within it by a customer to the checking clerk and leave them there when it is pushed back to repeat the operation. It is kept on the counter by guides. That the resultant device words as claimed, speeds the customer on his way, reduces checking costs for the merchant, has been widely adopted and successfully used, appear beyond dispute. 3 The District Court explicitly found that each element in this device was known to prior art. 'However,' it found, 'the conception of a counter with an extension to receive a bottomless self-unloading tray with which to push the contents of the tray in front of the cashier was a decidedly novel feature and constitutes a new and useful combination.'3 4 The Court of Appeals regarded this finding of invention as one of fact, sustained by substantial evidence, and affirmed it as not clearly erroneous. It identified no other new or different element to constitute invention and overcame its doubts by consideration of the need for some such device and evidence of commercial success of this one. 5 Since the courts below perceived invention only in an extension of the counter, we must first determine whether they were right in so doing. We think not. In the first place, the extension is not mentioned in the claims, except, perhaps, by a construction too strained to be consistent with the clarity required by claims which define the boundaries of a patent monopoly. 38 Stat. 958, 35 U.S.C. § 33, 35 U.S.C.A. § 33; United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 63 S.Ct. 165, 87 L.Ed. 232; General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402. In the second place, were we to treat the extension as adequately disclosed, it would not amount to an invention. We need not go so far as to say that invention never can reside in mere change of dimensions of an old device, but certainly it cannot be found in mere elongation of a merchant's counter—a contrivance which, time out of mind, has been of whatever length suited the merchant's needs. In the third place, if the extension itself were conceded to be a patentable improvement of the counter, and the claims were construed to include it, the patent would nevertheless be invalid for overclaiming the invention by including old elements, unless, together with its other old elements, the extension made up a new combination patentable as such. Bassick Mfg. Co. v. R. M. Hollingshead Co., 298 U.S. 415, 425, 56 S.Ct. 787, 791, 80 L.Ed. 1251; Carbice Corp. of America v. American Patents Development Corp., 283 U.S. 27, 51 S.Ct. 334, 75 L.Ed. 819. Thus, disallowing the only thing designated by the two courts as an invention, the question is whether the combination can survive on any other basis. What indicia of invention should the courts seek in a case where nothing tangible is new, and invention, if it exists at all, is only in bringing old elements together? 6 While this Court has sustained combination patents,4 it never has ventured to give a precise and comprehensive definition of the test to be applied in such cases. The voluminous literature which the subject has excited discloses no such test.5 It is agreed that the key to patentability of a mechanical device that brings old factors into cooperation is presence or lack of invention. In course of time the profession came to employ the term 'combination' to imply its presence and the term 'aggregation' to signify its absence, thus making antonyms in legal art of words which in ordinary speech are more nearly synonyms. However useful as words of art to denote in short form that an assembly of units has failed or has met the examination for invention, their employment as tests to determine invention results in nothing but confusion. The concept of invention is inherently elusive when applied to combination of old elements. This, together with the imprecision of our language, have counselled courts and text writers to be cautious in affirmative definitions or rules on the subject.6 7 The negative rule accrued from many litigations was condensed about as precisely as the subject permits in Lincoln Engineering Co. of Illinois v. Stewart-Warner Corp., 303 U.S. 545, 549, 549, 58 S.Ct. 662, 664, 82 L.Ed. 1008: 'The mere aggregation of a number of old parts or elements which, in the aggregation, perform or produce no new or different function or operation than that theretofore performed or produced by them, is not patentable invention.' To the same end is Toledo Pressed Steel Co. v. Standard Parts, Inc., 307 U.S. 350, 59 S.Ct. 897, 83 L.Ed. 1334, and Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58. The conjunction or concert of known elements must contribute something; only when the whole in some way exceeds the sum of its parts is the accumulation of old devices patentable. Elements may, of course, especially in chemistry or electronics, take on some new quality or function from being brought into concert, but this is not a usual result of uniting elements old in mechanics. This case is wanting in any unusual or surprising consequences from the unification of the elements here concerned, and there is nothing to indicate that the lower courts scrutinized the claims in the light of this rather severe test. 8 Neither court below has made any finding that old elements which made up this device perform any additional or different function in the combination than they perform out of it. This counter does what a store counter always has done—it supports merchandise at a convenient height while the customer makes his purchases and the merchant his sales. The three-sided rack will draw or push goods put within it from one place to another—just what any such a rack would do on any smooth surface—and the guide rails keep it from falling or sliding off from the counter, as guide rails have ever done. Two and two have been added together, and still they make only four. 9 Courts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements. The function of a patent is to add to the sum of useful knowledge. Patents cannot be sustained when, on the contrary, their effect is to subtract from former resources freely available to skilled artisans. A patent for a combination which only unites old elements with no change in their respective functions, such as is presented here, obviously withdraws what already is known into the field of its monopoly and diminishes the resources available to skillful men. This patentee has added nothing to the total stock of knowledge, but has merely brought together segments of prior art and claims them in congregation as a monopoly. 10 The Court of Appeals and the respondent both lean heavily on evidence that this device filled a long-felt want and has enjoyed commercial success. But commercial success without invention will not make patentability. Toledo Pressed Steel Co. v. Standard Parts, Inc., supra. The courts below concurred in finding that every element here claimed (except extension of the counter) was known to prior art. When, for the first time, those elements were put to work for the supermarket type of stores, although each performed the same mechanical function for them that it had been known to perform, they produced results more striking, perhaps, than in any previous utilization. To bring these devices together and apply them to save the time of customer and checker was a good idea, but scores of progressive ideas in business are not patentable, and we conclude on the findings below that this one was not. 11 It is urged, however, that concurrence of two courts below, in holding the patent claims valid, concludes this Court. A recent restatement of the 'two-court rule' reads, 'A court of law, such as this Court is, rather than a court for correction of errors in fact finding, cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error.' Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 538, 93 L.Ed. 672. The questions of general importance considered here are not contingent upon resolving conflicting testimony, for the facts are little in dispute. We set aside no finding of fact as to invention, for none has been made except as to the extension of the counter, which cannot stand as a matter of law. The defect that we find in this judgment is that a standard of invention appears to have been used that is less exacting than that required where a combination is made up entirely of old components. It is on this ground that the judgment below is reversed. 12 Reversed. 13 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK agrees, concurring. 14 It is worth emphasis that every patent case involving validity presents a question which requires reference to a standard written into the Constitution. Article I, § 8, contains a grant to the Congress of the power to permit patents to be issued. But unlike most of the specific powers which Congress is given, that grant is qualified. The Congress does not have free reign, for example, to decide that patents should be easily or freely given. The Congress acts under the restraint imposed by the statement of purpose in Art. I, § 8. The purpose is 'To promote the Progress of Science and useful Arts'. The means for achievement of that end is the grant for a limited time to inventors of the exclusive right to their inventions. 15 Every patent is the grant of a privilege of exacting tolls from the public. The Framers plainly did not want those monopolies freely granted. The invention, to justify a patent, had to serve the ends of science—to push back the frontiers of chemistry, physics, and the like; to make a distinctive contribution to scientific knowledge. That is why through the years the opinions of the Court commonly have taken 'inventive genius' as the test.1 It is not enough that an article is new and useful. The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end—the advancement of science. An invention need not be as startling as an atomic bomb to be patentable. But is has to be of such quality and distinction that masters of the scientific field in which it falls will recognize it as an advance. Mr. Justice Bradley stated in Atlantic Works v. Brady, 107 U.S. 192, 200, 2 S.Ct. 225, 231, 27 L.Ed. 438, the consequences of a looser standard: 'It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith.' 16 The standard of patentability is a constitutional standard; and the question of validity of a patent is a question of law. Mahn v. Harwood, 112 U.S. 354, 358, 5 S.Ct. 174, 176, 6 S.Ct. 451, 28 L.Ed. 665. The Court fashioned in Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 537, 93 L.Ed. 672, a rule for patent cases to the effect that this Court will not disturb a finding of invention made by two lower courts, in absence of a very obvious and exceptional showing of error. That rule, imported from other fields, never had a place in patent law. Having served its purpose in Graver Tank & Mfg. Co. v. Linde Air Products Co., it is now in substance rejected. The Court now recognizes what has long been apparent in our cases: that it is the 'standard of invention' that controls. That is present in every case where the validity of a patent is in issue. It is that question which the Court must decide. No 'finding of fact' can be a substitute for it in any case. The question of invention goes back to the constitutional standard in every case. We speak with final authority on that constitutional issue as we do on many others. 17 The attempts through the years to get a broader, looser conception of patents than the Constitution contemplates have been persistent. The Patent Office, like most administrative agencies, has looked with favor on the opportunity which the exercise of discretion affords to expand its own jurisdiction. And so it has placed a host of gadgets under the armour of patents—gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge. A few that have reached this Court show the pressure to extend monopoly to the simplest of devices: 18 Hotchkiss' Ex'x v. Greenwood, 11 How. 248, 13 L.Ed. 683: Doorknob made of clay rather than metal or wood, where different shaped door knobs had previously been made of clay. 19 Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498, 22 L.Ed. 410: Rubber caps put on wood pencils to serve as erasers. 20 Union Paper Collar Co. v. Van Dusen, 23 Wall. 530, 23 L.Ed. 128: Making collars of parchment paper where linen paper and linen had previously been used.DP Brown v. Piper, 91 U.S. 37, 23 L.Ed. 200: A method for preserving fish by freezing them in a container operating in the same manner as an ice cream freezer. 21 Reckendorfer v. Faber, 92 U.S. 347, 23 L.Ed. 719: Inserting a piece of rubber in a slot in the end of a wood pencil to serve as an eraser. 22 Dalton v. Jennings, 93 U.S. 271, 23 L.Ed. 925: Fine thread placed across open squares in a regular hairnet to keep hair in place more effectively. 23 Double-Pointed Tack Co. v. Two Rivers Mfg. Co., 109 U.S. 117, 3 S.Ct. 105, 27 L.Ed. 877: Putting a metal washer on a wire staple. 24 Miller v. Foree, 116 U.S. 22, 6 S.Ct. 204, 29 L.Ed. 552: A stamp for impressing initials in the side of a plug of tobacco. 25 Preston v. Manard, 116 U.S. 661, 6 S.Ct. 695, 29 L.Ed. 763: A hose reel of large diameter so that water may flow through hose while it is wound on the reel. 26 Hendy v. Golden State & Miners' Iron Works, 127 U.S. 370, 8 S.Ct. 1275, 32 L.Ed. 207: Putting rollers on a machine to make it moveable. 27 St. Germain v. Brunswick, 135 U.S. 227, 10 S.Ct. 822, 34 L.Ed. 122: Revolving cue rack. 28 Shenfield v. Nashawannuck Mfg. Co., 137 U.S. 56, 11 S.Ct. 5, 34 L.Ed. 573: Using flat cord instead of round cord for the loop at the end of suspenders. 29 Florsheim v. Schilling, 137 U.S. 64, 11 S.Ct. 20, 34 L.Ed. 574: Putting elastic gussets in corsets. 30 Cluett v. Claflin, 140 U.S. 180, 11 S.Ct. 725, 35 L.Ed. 385: A shirt bosom or dickie sewn onto the front of a shirt. 31 Adams v. Bellaire Stamping Co., 141 U.S. 539, 12 S.Ct. 66, 35 L.Ed. 849: A lantern lid fastened to the lantern by a hinge on one side and a catch on the other. 32 Patent Clothing Co. v. Glover, 141 U.S. 560, 12 S.Ct. 79, 35 L.Ed. 858: Bridging a strip of cloth across the fly of pantaloons to reinforce them against tearing. 33 Pope Mfg. Co. v. Gormully & Jeffery Mfg. Co., 144 U.S. 238, 12 S.Ct. 637, 36 L.Ed. 419: Placing rubber hand grips on bicycle handlebars. 34 Knapp v. Morss, 150 U.S. 221, 14 S.Ct. 81, 37 L.Ed. 1059: Applying the principle of the umbrella to a skirt form. 35 Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U.S. 425, 14 S.Ct. 627, 38 L.Ed. 500: An oval rather than cylindrical toilet paper roll, to facilitate tearing off strips. 36 Dunham v. Dennison Mfg. Co., 154 U.S. 103, 14 S.Ct. 986, 38 L.Ed. 924: An envelope flap which could be fastened to the envelope in such a fashion that the envelope could be opened without tearing. 37 The patent involved in the present case belongs to this list of incredible patents which the Patent Office has spawned. The fact that a patent as flimsy and as spurious as this one has to be brought all the way to this Court to be declared invalid dramatically illustrates how far our patent system frequently departs from the constitutional standards which are supposed to govern. 1 Claims 4, 5, and 6 of the Turnham patent No. 2,242,408, which are involved in the controversy, read as follows: '4. A checker's stand including a counter of the character described, an open bottom pusher frame thereon, means to guide said frame in sliding movement so that goods placed on the end of said counter within said frame may be pushed along the counter in a group to a position adjacent the checker by movement of said frame. '5. A cashier's counter for cash and carry type of grocery comprising a protion spaced from the cashier's stand and upon which the merchandise may be deposited and arranged, a bottomless three sided frame on said portion and within which the merchandise is deposited and arranged, means whereby said frame is movable on said counter from said portion to a position adjacent the cashier's stand so that the merchandise may thus be moved as a group to a point where it may be conveniently observed, counted and registered by the cashier. '6. A cashier's counter for cash and carry type of grocery comprising a portion spaced from the cashier's stand and upon which the merchandise may be deposited and arranged, a bottomless frame on said portion and within which the merchandise is deposited and arranged, means whereby said frame is movable on said counter from said portion to a position adjacent the cashier's stand so that the merchandise may thus be moved as a group to a point where it may be conveniently observed, counted and registered by the cashier, said frame being open at the end adjacent the cashier's stand and readily movable to be returned over said portion so as to receive the merchandise of another customer while the cashier is occupied with the previous group.' 2 339 U.S. 947, 70 S.Ct. 803. 3 Finding of Fact No. 15 of District Judge Picard, whose opinion appears at 78 F.Supp. 388. 4 E.g., Keystone Mfg. Co. v. Adams, 151 U.S. 139, 14 S.Ct. 295, 38 L.Ed. 103; Diamond Rubber Co. of New York v. Consolidated Rubber Tire Co., 220 U.S. 428, 31 S.Ct. 444, 55 L.Ed. 527. 5 The Index to Legal Periodicals reveals no less than sixty-four articles relating to combination patents and the theory and philosophy underlying the patent laws. Among the many texts are 1 Walker on Patents (Deller's ed. 1937); Stedman, Patents; Toulmin, Handbook of Patents; Merwin, Patentability of Inventions; Amdur, Patent Law and Practice; and 1 Roberts, Patentability and Patent Interpretation. 6 With respect to the word 'invention,' Mr. Justice Brown said: 'The truth is the word cannot be defined in such manner as to afford any substantial aid in determining whether a particular device involves an exercise of the inventive faculty or not. In a given case we may be able to say that there is present invention of a very high order. In another we can see that there is lacking that impalpable something which distinguishes invention from simple mechanical skill. Courts, adopting fixed principles as a guide, have by a process of exclusion determined that certain variations in old devices do or do not involve invention; but whether the variation relied upon in a particular case is anything more than ordinary mechanical skill is a question which cannot be answered by applying the test of any general definition.' McClain v. Ortmayer, 141 U.S. 419, 427, 12 S.Ct. 76, 78, 35 L.Ed. 800. 1 'Inventive genius'—Mr. Justice Hunt in Reckendorfer v. Faber, 92 U.S. 347, 357, 23 L.Ed. 719; 'Genius or invention'—Mr. Chief Justice Fuller in Smith v. Whitman Saddle Co., 148 U.S. 674, 681, 13 S.Ct. 768, 771, 37 L.Ed. 606; 'Intuitive genius'—Mr. Justice Brown in Potts v. Creager, 155 U.S. 597, 607, 15 S.Ct. 194, 198, 39 L.Ed. 275; 'Inventive genius'—Mr. Justice Stone in Concrete Appliances Co. v. Gomery, 269 U.S. 177, 185, 46 S.Ct. 42, 45, 70 L.Ed. 222; 'Inventive genius'—Mr. Justice Roberts in Mantle Lamp Co. of America v. Aluminum Products Co., 301 U.S. 544, 546, 57 S.Ct. 837, 81 L.Ed. 1277; Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 91, 62 S.Ct. 37, 41, 86 L.Ed. 58, 'the flash of creative genius, not merely the skill of the calling.'

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340 U.S. 128 71 S.Ct. 149 95 L.Ed. 146 GUSIKv.SCHILDER. No. 110. Argued Nov. 10, 1950. Decided Dec. 4, 1950. Mr. Morris Morgenstern, Cleveland, Ohio, for petitioner. Mr. John F. Davis, Washington, D.C., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This is a petition for a writ of habeas corpus filed in the District Court on behalf of petitioner challenging the legality of his detention by respondent. Respondent holds Gusik pursuant to a court-martial judgment convicting him of murder while he was stationed in Italy as a member of the United States Army. After conviction by the court-martial petitioner exhausted all his remedies for reversal or modification of the judgment of conviction which then existed under the Articles of War, 10 U.S.C.A. § 1471 et seq. When he secured no relief from the military authorities he filed this petition in which he challenges the jurisdiction of the court-martial both under the Articles of War and the Constitution. The District Court, after a hearing, sustained the writ and released Gusik on bond. It found that the court-martial did not have jurisdiction, because no thorough and impartial pretrial investigation was conducted in compliance with Article 70 of the Articles of War, 10 U.S.C.A. § 1542, because the Trial Judge Advocate failed to call material witnesses, and because Gusik was denied the effective assistance of counsel. The Court of Appeals reversed, 180 F.2d 662. It did not reach the merits of the case; it held that there was an administrative remedy which petitioner had not exhausted and that the petition must be dismissed without prejudice to the filing of a new petition after resort to the additional administrative remedy had been made. 2 The new remedy is Article 53 of the Articles of War, 62 Stat. 639, 10 U.S.C. (Supp. III) § 1525, 10 U.S.C.A. § 1525.1 It gives the Judge Advocate General discretion, inter alia, to grant a new trial in any court-martial case. Time limitations are specified; and 'with regard to cases involving offenses committed during World War II, the application for a new trial may be made within one year after termination of the war, or after its final disposition upon initial appellate review as herein provided, whichever is the later'. Petitioner argues that Article 53 is not applicable to World War II court-martial cases in which appellate review was completed prior to the effective date of the Article or in which habeas corpus proceedings had been instituted prior to that date. That construction of the Act would require extensive tailoring of the language of Article 53, since the new Article explicitly applies to 'cases involving offenses committed during World War II' without reference to the stage in which the cases may be on the effective date of the Article. Our conclusion is in harmony with the construction which the President, who is authorized to provide the regulations under Article 53, gave to the statutory language in Executive Order 10020 which promulgated the Manual for Courts-martial.2 That Order states that the new Manual shall be in force and effect on and after February 1, 1949 'with respect to all court-martial processes taken on or after February 1, 1949.' A petition for a new trial under Article 53 is such a process. 3 If Article 53 had been in force when the habeas corpus proceedings were instituted, the District Court would not have been justified in entertaining the petition unless the remedy afforded by the Article had first been exhausted. An analogy is a petition for habeas corpus in the federal court challenging the jurisdiction of a state court. If the state procedure provides a remedy, which though available has not been exhausted, the federal courts will not interfere. That is not only the holding of the Court in a long line of cases, see Mooney v. Holohan, 294 U.S. 103, 115, 55 S.Ct. 340, 343, 79 L.Ed. 791; Ex parte Hawk, 321 U.S. 114, 116, 64 S.Ct. 448, 449, 88 L.Ed. 572; it is the rule which Congress recently wrote into the Judicial Code. 28 U.S.C. § 2254, 28 U.S.C.A. § 2254. The policy underlying that rule is as pertinent to the collateral attack of military judgments as it is to collateral attack of judgments rendered in state courts. If an available procedure has not been employed to rectify the alleged error which the federal court is asked to correct, any interference by the federal court may be wholly needless. The procedure established to police the errors of the tribunal whose judgment is challenged may be adequate for the occasion. If it is, any friction between the federal court and the military or state tribunal is saved. That policy is as well served whether the remedy which is available was existent at the time resort was had to the federal courts or was subsequently created, as indeed is implicit in cases from a state court whose review we denied pending exhaustion of a newly created state remedy. See Walker v. Ragen, 338 U.S. 833, 70 S.Ct. 37; Marks v. Ragen, 339 U.S. 926, 70 S.Ct. 613. Such a principle of judicial administration is is no sense a suspension of the writ of habeas corpus. It is merely a deferment of resort to the writ until other corrective procedures are shown to be futile. 4 An argument is woven around the finality clause of Article 53 as a foundation to a claim of unconstitutionality. The provision is that all action by the Judge Advocate General under Article 53 shall be 'final and conclusive' and shall be 'binding upon all departments, courts, agencies, and officers of the United States.' It is argued that this clause deprives the courts of jurisdiction to review these military judgments and therefore amounts to a suspension of the writ. We do not so read Article 53. Congress was legislating as respects tribunals over which the civil courts have traditionally exercised no power of supervision or review. See In re Grimley, 137 U.S. 147, 150, 11 S.Ct. 54, 34 L.Ed. 636. These tribunals have operated in a self-sufficient system, save only as habeas corpus was available to test their jurisdiction in specific cases. We read the finality clause of Article 53 as doing no more than describing the terminal point for proceedings within the court-martial system. If Congress had intended to deprive the civil courts of their habeas corpus jurisdiction, which has been exercised from the beginning,3 the break with history would have been so marked that we believe the purpose would have been made plain and unmistakable. The finality language so adequately serves the more restricted purpose that we would have to give a strained construction in order to stir the constitutional issue that is tendered. 5 Petitioner says that resort to Article 53 will be futile. If it proves to be, no rights have been sacrificed. Habeas corpus will then be available to test any questions of jurisdiction which petitioner may offer. 6 Trial of the case in the District Court had ended before the effective date of Article 53 and the question of the exhaustion of the new remedy which the Article affords was not raised until the case was in the Court of Appeals.4 We conclude that in the interests of justice the Court of Appeals, instead of reversing the District Court and ordering the petition to be dismissed, should have done what the Court of Appeals in Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, did under like circumstances and held the case pending resort to the new remedy under Article 53. If relief is obtained from the Judge Advocate General, the case will then be remanded for dismissal. If the relief is not obtained under Article 53, petitioner will not be put to the time and expense of trying anew the case which he tried when he had no relief other than habeas corpus. 7 We agree with the Court of Appeals on the main issue tendered under Article 53. But since we think a different disposition of the case should be made pending resort to the new remedy which Article 53 affords, we reverse the judgment below and remand the cause to the Court of Appeals for further proceedings in conformity with this opinion. So ordered. 8 Reversed and remanded with directions. 1 Article 53 reads as follows: 'Under such regulations as the President may prescribe, the Judge Advocate General is authorized, upon application of an accused person, and upon good cause shown, in his discretion to grant a new trial, or to vacate a sentence, restore rights, privileges, and property affected by such sentence, and substitute for a dismissal, dishonorable discharge, or bad conduct discharge previously executed a form of discharge authorized for administrative issuance, in any court-martial case in which application is made within one year after final disposition of the case upon initial appellate review: Provided, That with regard to cases involving offenses committed during World War II, the application for a new trial may be made within one year after termination of the war, or after its final disposition upon initial appellate review as herein provided, whichever is the later: Provided, That only one such application for a new trial may be entertained with regard to any one case: And provided further, That all action by the Judge Advocate General pursuant to this article, and all proceedings, findings, and sentences on new trials under this article, as approved, reviewed, or confirmed under articles 47, 48, 49, and 50, and all dismissals and discharges carried into execution pursuant to sentences adjudged on new trials and approved, reviewed, or confirmed, shall be final and conclusive and orders publishing the action of the Judge Advocate General or the proceedings on new trial and all action taken pursuant to such proceedings, shall be binding upon all departments, courts, agencies, and officers of the United States.' 2 13 Fed.Reg. 7519. And see ch. 22 Manual for Courts-Martial, id. at 7550. 3 Collateral attack of a judgment of a court-martial was early entertained. Wise v. Withers, 3 Cranch 331, 2 L.Ed. 457 was an action in trespass against one who justified the taking as collector of a fine imposed by a court- martial. The Court, speaking through Marshall, C.J., held that since the court-martial acted without its jurisdiction the court and the officers were trespassers. And see Houston v. Moore, 5 Wheat. 1, 5 L.Ed. 19 (trespass); Martin v. Mott, 12 Wheat. 19, 6 L.Ed. 537 (replevin); Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838 (assault, battery, and false imprisonment). Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538, allowed habeas corpus to test the jurisdiction of a court-martial. 4 The petition for habeas corpus was filed April 27, 1948; the return was filed June 17, 1948; the parties finished introducing evidence on January 7, 1949; Article 53 became effective February 1, 1949; the District Court filed its opinion on March 31, 1949; notice of appeal was filed May 17, 1949; the case was argued in the Court of Appeals on January 31, 1950.

01

340 U.S. 190 71 S.Ct. 221 95 L.Ed. 204 PHILLIPS PETROLEUM CO.v.STATE OF OKLAHOMA et al. No. 73. Argued Nov. 9—10, 1950. Decided Dec. 11, 1950. Mr. R. M. Williams, Oklahoma City, Okl., Mr. Don Emery, Bartlesville, Okl., for appellant. Mr. T. Murray Robinson, Oklahoma City, for appellee State of Oklahoma. Mr. Floyd Green, Oklahoma City, for appellee Corporation Commission of State of Oklahoma. Mr. Justice CLARK delivered the opinion of the Court. 1 This is a companion case to Cities Service Gas Co. v. Peerless Oil & Gas Co. 340 U.S. 179, 71 S.Ct. 215. Appellant a producer in the Guymon-Hugoton Field, owning leases on approximately 183,000 acres, but unlike Cities Service it does not purchase from other producers in this field. It has its own gathering system through which gas is transported to a central point in Hansford County, Texas. There the gas is processed for the extraction of gasoline and other liquid hydrocarbons. These by-products are either utilized or sold, and the residue of natural gas is sold to pipe-line companies. Appellant's first appearance before the Oklahoma Corporation Commission in connection with the Peerless proceedings was on January 17, 1947, after the entry of the order setting a minimum price on all natural gas taken from the Guymon-Hugoton Field. Phillips moved that the Commission either vacate the order insofar as applicable to it, or clarify the application of the order to gas not actually sold at the wellhead. On February 4, 1947, the Commission issued Order No. 19702, refusing to vacate or further clarify its general minimum price order. The Commission concluded that Phillips had no standing to complain of the general order since the company was currently complying with it by realizing on the average, from sale and utilization of by-products and sale of gas, the minimum price set. 2 On appeal, the Oklahoma Supreme Court consolidated the two cases and with respect to Phillips stated: 'Our discussion of the Cities Service appeal is here applicable. We find no basis in the due process and equal protection clauses of the Federal and State Constitutions for condemning the orders appealed from in their application to Phillips.' 1950, 203 Okl. 35, 48, 220 P.2d 279, 292. It is apparent from this opinion that the court below took jurisdiction and passed upon the constitutional issues raised. We assumed therefore that the court, noting the evidence of injury contained in the record, found no technical defects in the pleadings before the Commission which would deprive Phillips of standing to appeal. We noted probable jurisdiction of the appeal to this Court in order to secure a complete picture of the issues at stake. 3 Appellant does not argue that the orders violate the Commerce Clause, art. 1, § 8, cl. 3. In other respects, the appeal presents only minor variations of the issues raised by Cities Service. Phillips argues that it is not a purchaser but merely a producer; that unlike the situation in Cities Service, the order as applied to it lacks any connection with correlative rights, the interest of the public, monopolistic practices or discrimination. The distinction is without a difference: the connection between realized price and conservation applies to all production in the field, whether owners purchase from others or not, and whether they own pipe lines or not. In a field which constitutes a common reservoir of gas, the Commission must be able to regulate the operations of all producers or there is little point in regulating any. 4 Phillips also relies heavily on the contention that the orders are unreasonably vague. In substance, this argument is nothing more than that the determination by an integrated company of proceeds realized from gas at the wellhead involves complicated problems in cost accounting. These problems are common to a host of valid regulations. There is nothing to indicate that Phillips will be penalized for reasonable and good faith efforts to solve them. 5 Affirmed. 6 Mr. Justice BLACK is of the opinion that the alleged federal constitutional questions are frivolous and that the appeal therefore should be dismissed.

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340 U.S. 162 71 S.Ct. 224 95 L.Ed. 173 McGRATH, Attorney General, et al.v.KRISTENSEN. No. 34. Argued Oct. 19, 20, 1950. Decided Dec. 11, 1950. Mr. Robert W. Ginnane, Washington, D.C., for petitioners. Mr. David W. Louisell, Washington, D.C., for respondent. Mr. Justice REED delivered the opinion of the Court. 1 Review was granted by this Court to determine whether the Attorney General was justified in refusing to suspend deportation of an alien under § 19(c), as amended, 62 Stat. 1206, of the Immigration Act of 1917,1 39 Stat. 874, 889, 8 U.S.C. §§ 101, 155(c), 8 U.S.C.A. §§ 101, 155(c) on the sole ground that the alien was ineligible for naturalization. The alien's eligibility for naturalization, the substantive question in this case, depends upon whether the alien was 'residing' in the United States and therefore liable for military service under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., when he made application to be relieved from the liability. Section 3(a) of that Act as amended, the applicable section, provides that 'any person who makes such application shall thereafter be debarred from becoming a citizen of the United States'.2 2 The grant of certiorari also covered a procedural question: whether the Attorney General's refusal on the ground stated to grant suspension of deportation was subject to judicial review otherwise than by habeas corpus. 3 The allegations of the alien's complaint have not been controverted. Kristensen, a Danish citizen, entered the United States on August 17, 1939, as a temporary visitor for sixty days, to attend the New York World's Fair and visit relatives. The outbreak of World War II prevented his return to Denmark. Successive extensions of stay were applied for and granted, but eventually economic necessity compelled Kristensen to become employed and thereby violate his visitor's status. The process of deportation on the ground of violation of his visitor's status was begun in May 1940, stayed for the duration of World War II, and reopened in 1946. A warrant of deportation was issued in 1941 but was withdrawn on June 10, 1946, to permit the alien to submit an application for suspension of deportation under § 19(c) of the Immigration Act, supra, which allows such suspension when deportation would result in serious economic detriment to the United States citizen wife of an alien. This relief was refused on the sole ground of Kristensen's asserted ineligibility for citizenship resulting from his having filed with his Selective Service Board on March 30, 1942, after registration, an application for relief from service under § 3(a) of the Selective Training and Service Act, supra. Eligibility is a statutory prerequisite to the Attorney General's exercise of his discretion to suspend deportation in this case.3 4 Respondent, not then nor thereafter in custody, sought a declaratory judgment that the Attorney General and other immigration and naturalization officials must, in passing upon his application for suspension of deportation, decide on the basis that he is eligible for naturalization in the United States.4 He also sought to enjoin the Attorney General and other officials from exercising their authority under § 19(c) of the Immigration Act on the assumption of respondent's ineligibility. 5 The District Court dismissed the complaint without opinion, apparently for failure to state a ground for relief. The United States Court of Appeals for the District of Columbia reversed on the ground that, under the facts alleged, Kristensen could not have been subject to the Selective Training and Service Act of 1940 at the time he made his claim for exemption, and therefore the claim was without effect and did not render him ineligible for naturalization. 86 U.S.App.D.C. 48, 179 F.2d 796. The Court of Appeals ruled that the Selective Training and Service Act of 1940, as amended, applied only to aliens 'residing in the United States' and 'absent any showing of acts of declarations indicating an intention to remain at the time the form was filed, the immigration authorities erroneously construed 'residing in the United States' when they held it applicable to an alien in this country under a temporary visitor's visa whose deportation had been ordered and then stayed because of war.'5 6 We granted certiorari because of the importance of the question in the administration of the immigration and naturalization laws. The principle of the decision below is in conflict with that applied in Benzian v. Godwin, 2 Cir., 168 F.2d 952. An important procedural question also exists in view of the Government's insistence that habeas corpus is the only available judicial remedy for aliens in deportation proceedings. Before we consider these questions, however, we turn to a jurisdiction problem. 7 Federal Jurisdiction.—The Government properly presents for our consideration an issue of federal jurisdiction not heretofore raised. The quaere is whether this proceeding involves a justiciable question under Article III of the Constitution.6 It is said the Attorney General's suspension of deportation is merely a recommendation to Congress, and that federal courts cannot intervene because at this point a court order does not finally control the deportation of the alien.7 This argument is founded on § 19(c) of the Immigration Act which provides that, if deportation is suspended longer than six months, a detailed report must be made to Congress, and, if Congress fails to approve the suspension before the termination of the session next following the session in which the case is reported, the Attorney General must thereupon proceed with the deportation.8 8 While such a jurisdictional point may be raised at any time,9 we do not think there is basis for the objection here. The statute gives the Attorney General the power to suspend deportation for a minimum of six months and until Congress acts or the time for action elapses. The Attorney General's power is final for such deferment of deportation. That other forces may come into play later with authority to take other steps does not detract from that finality. The United States relies particularly on Chicago & Southern Air Lines v. Waterman, S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568. The congressional power here is quite distinct from the Presidential power concerning overseas licensing in the Chicago & Southern case. The license in question there was ineffective until the President acted. The delay here is effective despite subsequent congressional action. This litigation, whatever its ultimate effect, is aimed only at the delay. The judgment sought in this proceeding would be binding and conclusive on the parties if entered and the question is justiciable. 9 Declaratory Judgment.—The United States does not challenge finality for purpose of review.10 However, the Government does contend that the Immigration Act provision, § 19(a), making the Attorney General's decision on deportation 'final' precludes judicial review except by habeas corpus of his refusal to grant suspension of deportation. The procedural question as thus narrowed is whether an administrative decision against a requested suspension of deportation under § 19(c) of the Immigration Act can be challenged by an alien free from custody through a declaratory judgment or whether, to secure redress, he must await the traditional remedy of habeas corpus after his arrest for deportation. 10 The Immigration Act of 1917, 39 Stat. 889, as amended, 8 U.S.C. § 155(a), 8 U.S.C.A. § 155(a), authorized the deportation of any alien found in the United States in violation of the immigration laws, and always provided that administrative decision as to deportation 'shall be final.' The end of that administrative proceeding creates a situation which is subject to test on constitutional grounds through habeas corpus by one in custody.11 We do not find it necessary to consider the applicability of § 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C.A. § 1009, to this proceeding. Where an official's authority to act depends upon the status of the person affected, in this case eligibility for citizenship, that status, when in dispute, may be determined by a declaratory judgment proceeding after the exhaustion of administrative remedies. Under § 19(c) of the Immigration Act the exercise of the Attorney General's appropriate discretion in suspending deportation is prohibited in the case of aliens ineligible for citizenship. The alien is determined to have a proscribed status by this administrative ruling of ineligibility. Since the administrative determination is final, the alien can remove the bar to consideration of suspension only by a judicial determination of his eligibility for citizenship. This is an actual controversy between the alien and immigration officials over the legal right of the alien to be considered for suspension. As such a controversy over federal laws, it is within the jurisdiction of federal courts, 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, and the terms of the Declaratory Judgment Act, 28 U.S.C. § 2201, 28 U.S.C.A. § 2201. 11 It was so held in Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320, where a declaratory judgment action was brought against the Secretary of Labor, then the executive official in charge of deportation of aliens, the Secretary of State, and the Commissioner of Immigration, to settle citizenship status. The Department of Labor had notified Miss Elg, who was not in custody, that she was not a citizen and was illegally remaining in the United States, and the Department of State had refused her a passport 'solely on the ground that she had lost her native born American citizenship.' The District Court sustained a motion to dismiss the proceeding against the Secretary of State because his function as to passports was discretionary, but declared against the contention of the Secretary of Labor and held that Miss Elg had not lost her American citizenship. On appeal, the Court of Appeals for the District of Columbia affirmed both the dismissal of the Secretary of State from the proceeding and the holding that Miss Elg was a citizen, and also determined that the case was properly brought within the Declaratory Judgment Act. Perkins v. Elg, 69 App.D.C. 175, 99 F.2d 408. The United States raised no question on its petition for certiorari as to the propriety of the declaratory judgment action. Miss Elg, however, obtained certiorari the dismissal of the proceeding against the Secretary of State, and the United States defended the judgment of dismissal on the ground that the Declaratory Judgment Act did not add to federal court jurisdiction but merely gave an additional remedy.12 In the Government's brief it was said judicial jurisdiction would be expanded without warrant 'by permitting the court to substitute its discretion for that of the executive departments in a matter belonging to the proper jurisdiction of the latter.' We rejected that contention and reversed the Court of Appeals on this point, saying, 'The court below, properly recognizing the existence of an actual controversy with the defendants (Aetna Life Ins. Co. of Hartford v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617), declared Miss Elg 'to be a natural born citizen of the United States,' and we think that the decree should include the Secretary of State as well as the other defendants. The decree in that sense would in no way interfere with the exercise of the Secretary's discretion with respect to the issue of a passport but would simply preclude the denial of a passport on the sole ground that Miss Elg had lost her American citizenship.' 307 U.S. 349—350, 59 S.Ct. 884, 896, 83 L.Ed. 1320.13 12 So here a determination that Kristensen is not barred from citizenship by § 3(a) of the Selective Training and Service Act of 1940 only declares that he has such status as entitles him to consideration under § 19(c) of the Immigration Act. We think that the present proceeding is proper.14 13 Eligibility for Naturalization—Under § 3(a) of the Selective Training and Service Act of 1940, Kristensen was liable for service if 'residing' in the United States within the meaning of the Act. Section 3(a) also provided that if he applied 'to be relieved from such liability' as a subject of a neutral country he could be excused from service but would thereafter be debarred from our citizenship.15 14 If Kristensen was not 'residing' at the time of his application for relief, he could not then have had 'such liability' for service. If there was no 'liability' for service, the disqualification for citizenship under the penalty clause could not arise because the applicant had not made the 'application' referred to in the statute as 'such application.' 'Such application' refers to an application to be relieved from 'such liability.' As there was no 'liability' for service, his act in applying for relief from a nonexistent duty could not create the bar against naturalization. By the terms of the statute, that bar only comes into existence when an alien resident liable for service asks to be relieved. 15 The question, then, is whether Kristensen was 'residing,' within the meaning of the Selective Training and Service Act of 1940 and regulations issued thereunder, at the time of his application, March 30, 1942. As we conclude that he was not a resident under the Act at the time of his application for relief from military service, we do not decide whether Denmark was a neutral country. Nor need we determine whether the bar against citizenship has been removed by the termination of the Selective Training and Service Act of 1940.16 16 The phrase of § 3(a), 'every other male person residing in the United States,' when used as it is, in juxtaposition with 'every male citizen',17 falls short of saying that every person in the United States is subject to military service. But the Act did not define who was a 'male person residing in the United States,' liable for training and service after December 20, 1941. 55 Stat. 845.18 Such precisiveness was left for administrative regulation. Section 10(a) and (b), 54 Stat. 893, 894 authorized the President to prescribe rules and regulations for the Act with power of delegation. The President prescribed the first regulations on September 23, 1940, and authorized the Director to prescribe amendments. Exec. Order 8545, 3 C.F.R., 1943 Cum.Supp., 719, 722. Amendments promulgating the regulations here applicable were issued, effective February 7, 1942, 7 Fed.Reg. 855. They are set out below.19 Under these regulations it would seem that Kristensen, who never declared an intention to become a citizen of the United States and who entered the United States in August 1939, was not classified as a resident neutral alien until May 16, 1942. Otherwise, there would have been no occasion for § 611.13(b), which declares the male alien who remains in the United States after May 16, 1942, to be a resident. Until that date he was in the same category as the newly arrived nondeclarant alien who, under the regulations and the Act, did not become a resident for three months. The application for relief from service was made on March 30, 1942. 17 The regulations, quoted above, either made an alien in Kristensen's situation a nonresident of the United States for the purpose of the Selective Training and Service Act, between February 7 and May 17, 1942, or they were nondeterminative of status in that period.20 In the absence of a determinative regulation, the meaning of the word 'residing' in § 3(a) requires examination. The meaning of that word, of course, depends upon the meaning of 'residence.' 'Residence' sometimes equals domicile, as in voting. Again, as in taxation, one who is not a mere transient or sojourner is a 'resident.' § 29.211—2, Income Tax Regulations. The definition varies with the statute. Restatement, Conflict of Laws (1934), § 9, comment e. See Carroll v. United States, 2 Cir., 133 F.2d 690, 693. In a naturalization case where eligibility depended upon the required residence in the United States, it was held that an enforced service in the German army 1914—1918 and subsequent foreign residence until 1921 on account of lack of means and inability to obtain a passport did not break the continuity of American residence. The court there said, 'We shall not try to define what is the necessary attitude of mind to create or retain a residence under this statute, and how it differs from the choice of a 'home,' which is the test of domicile. Frankly it is doubtful whether courts have as yet come to any agreement on the question. But there is substantial unanimity that, however construed in a statute, residence involves some choice, again like domicile, and that presence elsewhere through constraint has no effect upon it.'21 18 When we consider that § 3(a) was obviously intended to require military service from all who sought the advantages of our life and the protection of our flag, we cannot conclude, without regulations so defining residence, that a sojourn within our borders made necessary by the conditions of the times was residence within the meaning of the statute. 19 The judgment of the Court of Appeals is affirmed. 20 Affirmed. 21 Mr. Justice BLACK concurs in the judgment of the Court. 22 Mr. Justice DOUGLAS dissents from the holding of the Court that respondent was not 'residing' in the United States within the meaning of § 3(a) of the Act. See the opinion of Judge Frank in Benzian v. Godwin, 2 Cir., 168 F.2d 952. 23 Mr. Justice CLARK took no part in the consideration or decision of this case. Mr. Justice JACKSON, concurring 24 I concur in the judgment and opinion of the Court. But since it is contrary to an opinion which, as Attorney General, I rendered in 1940, I owe some word of explanation. 39 Op.Atty.Gen. 504. I am entitled to say of that opinion what any discriminating reader must think of it—that it was as foggy as the statute the Attorney General was asked to interpret. It left the difficult borderline questions posed by the Secretary of War unanswered, covering its lack of precision with generalities which, however, gave off overtones of assurance that the Act applied to nearly every alien from a neutral country caught in the United States under almost any circumstances which required him to stay overnight. 25 The opinion did not at all consider aspects of our diplomatic history, which I now think, and should think I would then have thought, ought to be considered in applying any conscription Act to aliens. 26 In times gone by, many United States citizens by naturalization have returned to visit their native lands. There they frequently were held for military duty by governments which refused to recognize a general right of expatriation. The United States consistently has asserted the right of its citizens to be free from seizure for military duty by reason of temporary and lawful presence in foreign lands. Immunities we have asserted for our own citizens we should not deny to those of other friendly nations. Nor should we construe our legislation to penalize or prejudice such aliens for asserting a right we have consistently asserted as a matter of national policy in dealing with other nations. Of course, if an alien is not a mere sojourner but acquires residence here in any permanent sense, he submits himself to our law and assumes the obligations of a resident toward this country. 27 The language of the Selective Service Act can be interpreted consistently with this history of our international contentions. I think the decision of the Court today does so. Failure of the Attorney General's opinion to consider the matter in this light is difficult to explain in view of the fact that he personally had urged this history upon this Court in arguing Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. Its details may be found in the briefs and their cited sources. It would be charitable to assume that neither the nominal addressee or the nominal author of the opinion read it. That I do not doubt, that explains Mr. Stimson's acceptance of an answer so inadequate to his questions. But no such confession and avoidance can excuse the then Attorney General. 28 Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, 12 L.Ed. 256, recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. State of Maryland, 12 Wheat. 419, 6 L.Ed. 678. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' Andrew v. Styrap, 26 L.T.R.(N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: 'My own error, however, can furnish no ground for its being adopted by this Court * * *.' United States v. Gooding, 12 Wheat. 460, 478, 6 L.Ed. 693. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary—' Ignorance, sir, ignorance.' But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.' If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all. 1 '(c) In the case of any alien * * * 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 * * * (2) 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; * * *. If the deportation of any alien is suspended under the provisions of this subsection for more than six months, a complete and detailed statement of the facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such suspension. These reports shall be submitted on the 1st and 15th day of each calendar month in which Congress is in session. If during the session of the Congress at which a case is reported, or prior to the close of the session of the Congress next following the session at which a case is reported, the Congress passes a concurrent resolution stating in substance that it favors the suspension of such deportation, the Attorney General shall cancel deportation proceedings. If prior to the close of the session of the Congress next following the session at which a case is reported, the Congress does not pass such a concurrent resolution, the Attorney General shall thereupon deport such alien in the manner provided by law.' 2 Section 3(a) of the Selective Training and Service Act of 1940, 54 Stat. 885, as amended, 55 Stat. 845, provides in part: 'Except as otherwise provided in this Act, every male citizen of the United States, and every other male person residing in the United States * * * shall be liable for training and service in the land or naval forces of the United States: Provided, That any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States * * *.' 3 See note 1. 4 While respondent alleged that his application for deferment was filed because of erroneous advice received from a member of the local selective service Board, it sufficiently, though inartistically, appears from the complaint that its true gravamen is the ineffectiveness of the application for relief from service to bar the alien's naturalization because he was not 'residing' in the United States within the meaning of the Selective Training and Service Act at the time the application was filed. The construction was put upon the complaint by the Court of Appeals and has been adopted by the United States in its presentation here. 5 86 U.S.App.D.C. 48, 56, 179 F.2d 796, 804. 6 Federal constitutional courts act only on cases and controversies and do not give advisory opinions. Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436; Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246; Chigago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113—114, 68 S.Ct. 431, 437, 92 L.Ed. 568. 7 Cf. Gordon v. United States, 117 U.S. 697, 702; United States v. Jefferson Electric Co., 291 U.S. 386, 400—401, 54 S.Ct. 443, 448, 78 L.Ed. 859; Chicago & Southern Air Lines v. Waterman S.S. Corp., supra. 8 See note 1. 9 King Iron Bridge & Mfg. Co. v. County of Otoe, 120 U.S. 225, 226, 7 S.Ct. 552, 30 L.Ed. 623; United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 831, 80 L.Ed. 1263. 10 We think the Attorney General's refusal to suspend deportation for the reason of ineligibility for citizenship has administrative finality. Administrative remedies are exhausted. Compare Levers v. Anderson, 326 U.S. 219, 66 S.Ct. 72, 90 L.Ed. 26. 11 Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938; Mahler v. Ehy, 264 U.S. 32, 43, 44 S.Ct. 283, 287, 68 L.Ed. 549; Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445. Cf. Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 152; Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 427, 90 L.Ed. 567. 12 Aetna Life Ins. Co. of Hartford v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 463, 81 L.Ed. 617; United States v. West Virginia, 295 U.S. 463, 475, 55 S.Ct. 789, 793, 79 L.Ed. 1546; Aetna Casualty & Surety Co. v. Quarles, 4 Cir., 92 F.2d 321, 324, were cited. 13 8 U.S.C. § 903, 8 U.S.C.A. § 903, has since been enacted, providing in part: 'If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States.' 14 Cf. Benzian v. Godwin, 2 Cir., 168 F.2d 952. 15 See note 2. 16 See § 16(b), 54 Stat. 897, as amended, 59 Stat. 166, 60 Stat. 181, 342; Benzian v. Godwin, 2 Cir., 168 F.2d 952, 956. 17 See note 2. 18 The original version of the Act required every male alien residing in the United States to register, but subjected only aliens who had declared their intention to become citizens to liability for service. 54 Stat. 885. The Attorney General construed the words 'male alien residing in the United States,' the earlier phrase defining those subject to registration, to include 'every alien * * * who lives or has a place of residence or abode in the United States, temporary or otherwise, or for whatever purpose taken or established, * * *.' 39 Op.Atty.Gen. 504, 505. 19 '§ 611.12. When a nondeclarant alien is residing in the United States. Every male alien who is now in or hereafter enters the United States who has not declared his intention to become a citizen of the United States, unless he is in one of the categories specifically excepted by the provisions of § 611.13, is 'a male person residing in the United States' within the meaning of section 2 and section 3 of the Selective Training and Service Act of 1940, as amended. '§ 611.13. When a nondeclarant alien is not residing in the United States. (a) A male alien who is now in or hereafter enters the United States who has not declared his intention to become a citizen of the United States is not 'a male person residing in the United States' within the meaning of section 2 or section 3 of the Selective Training and Service Act of 1940, as amended: '(6) If he has entered or hereafter enters the United States in a manner prescribed by its laws and does not remain in the United States after May 16, 1942, or for more than 3 months following the date of his entry, whichever is the later. '(b) When a male alien who has not declared his intention to become a citizen of the United States has entered or hereafter enters the United States in a manner prescribed by its laws and remains in the United States after May 16, 1942, or for more than 3 months following the date of his entry, whichever is the later, he is 'a male person residing in the United States' within the meaning of section 2 and section 3 of the Selective Training and Service Act of 1940, as amended, unless he has filed an Alien's Application for Determination of Residence (Form 302) in the manner provided in § 611.21 and such application is either (1) pending or (2) has resulted in a determination that he is not 'a male person residing in the United States' within the meaning of section 2 or section 3 of the Selective Training and Service Act of 1940, as amended, in either of which events he shall not be considered as 'a male person residing in the United States' within the meaning of section 2 or section 3 of the Selective Training and Service Act of 1940, as amended, during the period when such application is pending or during the period covered by the Alien's Certificate of Nonresidence (Form 303) issued to him as a result of the determination that he is not 'a male person residing in the United States' within the meaning of section 2 or section 3 of the Selective Training and Service Act of 1940, as amended. (54 Stat. 885; 50 U.S.C., Sup. 301—318, inclusive (50 U.S.C.A.Appendix, §§ 301—318); E.O. No. 8545, 5 F.R. 3779)' 20 Apparently the regulations intended to give aliens time to enable them to file the Alien's Application for Determination of Residence, see 7 Fed.Reg. 2084, § 611.21(b)(1), or to leave the country before their status as 'residents,' resulting in liability for military service, was fixed. 21 Neuberger v. United States, 2 Cir., 13 F.2d 541, 542. Cf. Stadtmuller v. Miller, 2 Cir., 11 F.2d 732, 738, 45 A.L.R. 895.

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340 U.S. 159 71 S.Ct. 223 95 L.Ed. 170 BLAUv.UNITED STATES. No. 22. Argued Nov. 7, 1950. Decided Dec. 11, 1950. Mr. Samuel D. Menin, Denver, Colo., for petitioner. Mr. Philip B. Perlman, Solicitor Gen., Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 In response to a subpoena, petitioner appeared as a witness before the United States District Court Grand Jury at Denver, Colorado. There she was asked several questions concerning the Communist Party of Colorado and her employment by it.1 Petitioner refused to answer these questions on the ground that the answers might tend to incriminate her. She was then taken before the district judge where the questions were again propounded and where she again claimed her constitutional privilege against self-incrimination and refused to testify. The district judge found petitioner guilty of contempt of court and sentenced her to imprisonment for one year. The Court of Appeals for the Tenth Circuit affirmed. 180 F.2d 103. We granted certiorari because the decision appeared to deny rights guaranteed by the Fifth Amendment.2 The holding below also was in conflict with recent decisions of the Fifth and Ninth Circuits. Estes v. Potter, 183 F.2d 865; Alexander v. United States, 181 F.2d 480. 2 At the time petitioner was called before the grand jury, the Smith Act was on the statute books making it a crime among other things to advocate knowingly the desirability of overthrow of the Government by force or violence; to organize or help to organize any society to group which teaches, advocates or encourages such overthrow of the Government; to be or become a member of such a group with knowledge of its purposes.3 These provisions made future prosecution of petitioner far more than 'a mere imaginary possibility * * *.' Mason v. United States, 244 U.S. 362, 366, 37 S.Ct. 621, 622, 61 L.Ed. 1198; she reasonably could fear that criminal charges might be brought against her if she admitted employment by the Communist Party or intimate knowledge of its workings. Whether such admissions by themselves would support a conviction under a criminal statute is immaterial. Answers to the questions asked by the grand jury would have furnished a link in the chain of evidence needed in a prosecution of petitioner for violation of (or conspiracy to violate) the Smith Act. Prior decisions of this Court have clearly established that under such circumstances, the Constitution gives a witness the privilege of remaining silent. The attempt by the courts below to compel petitioner to testify runs counter to the Fifth Amendment as it has been interpreted from the beginning. Burr's Trial, (U.S. v. Burr) 25 Fed.Cas., p. 38, No. 14,692e, decided by Chief Justice Marshall in the Circuit Court of the United States for the District of Virginia; Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Ballmann v. Fagin, 200 U.S. 186, 26 S.Ct. 212, 50 L.Ed. 433; Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; cf. United States v. White, 322 U.S. 694, 698, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542. 3 Reversed. 4 Mr. Justice CLARK took no part in the consideration or decision of this case. 1 The grand jury's questions which petitioner refused to answer were as follows: 'Mrs. Blau, do you know the names of the State officers of the Communist Party of Colorado?' Do you know what the organization of the Communist Party of Colorado is, the table of organization of the Communist Party of Colorado?' 'Were you ever employed by the Communist Party of Colorado? 'Mrs. Blau, did you ever have in your possession or custody any of the books and records of the Communist Party of Colorado?' 'Did you turn the books and records of the Communist Party of Colorado over to any particular person?' 'Do you know the names of any persons who might now have the books and records of the Communist Party of Colorado?' 'Could you describe to the grand jury any books and records of the Communist Party of Colorado?' 2 The Fifth Amendment provides: 'No person * * * shall be compelled in any criminal case to be a witness against himself * * *.' U.S.Const., Amend V. 3 62 Stat. 808, 18 U.S.C. § 2385, 18 U.S.C.A. § 2385.

01

340 U.S. 193 71 S.Ct. 209 95 L.Ed. 207 ACKERMANNv.UNITED STATES (two cases). Nos. 35, 36. Argued Oct. 19, 1950. Decided Dec. 11, 1950. Mr. E. M. Grimes, Taylor, Tex., for petitioners. Mr. James L. Morrisson, Washington, D.C., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 Petitioner Hans Ackermann filed a motion in the District Court for the Western District of Texas to set aside a judgment entered December 7, 1943, in that court cancelling his certificate of naturalization. The motion was filed March 25, 1948, pursuant to amended Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which became effective March 19, 1948.1 The United States filed a motion to dismiss petitioner's motion. The District Court denied petitioner's motion and the Court of Appeals affirmed. 178 F.2d 983. We granted certiorari. 339 U.S. 962, 70 S.Ct. 997. 2 The question is whether the District Court erred in denying the motion for relief under Rule 60(b). 3 Petitioner and his wife Frieda were natives of Germany. They were naturalized in 1938. They resided, as now, at Taylor, Texas, where petitioner and Max Keilbar owned and operated a German language newspaper. Frieda Ackermann wrote for the paper. She was a sister of Keilbar, who was also a native of Germany and who had been naturalized in 1933. 4 In 1942 complaints were filed against all three to cancel their naturalization on grounds of fraud. Petitioner and Keilbar were represented by counsel and answered the complaints. After an order of consolidation, trial of the three cases began November 1, 1943, and separate judgments were entered December 7, 1943, cancelling and setting aside the orders admitting them to citizenship. Keilbar appealed to the Court of Appeals, and by stipulation with the United States Attorney his case in that court was reversed, and the complaint against him was ordered dismissed. The Ackermanns did not appeal. 5 Petitioner in his motion here under consideration alleges that his 'failure to appeal from said judgment is excusable' for the reason that he had no money or property other than his home in Taylor, Texas, owned by him and his wife and worth $2,500, 'and the costs of transcribing the evidence and printing the record and brief on appeal were estimated at not less than $5,000.00.' On December 11, 1943, petitioner was detained in an Alien Detention Station at Seagoville, Texas. Before time for appeal had expired, petitioner was advised by his attorney that he had his wife could not appeal on affidavits of inability to pay costs until they had 'appropriated said home to the payment of such costs to the full extent of the proceeds of a sale thereof'; that this information distressed them, and they sought advice from W. F. Kelley, 'Assistant Commissioner for Alien Control, Immigration and Naturalization Department,' in whose custody petitioner and his wife were being held, 'and he being a person in whom they had great confidence'; that Kelley on being informed of their financial condition and the advice of their attorney that it would be necessary for them to dispose of their home in order to appeal, advised them in substance to 'hang on to their home,' and told them further that they had lost their American citizenship and were stateless, and that they would be released at the end of the war; that relying upon Kelley's advice, they refrained from appealing from said judgments; that on April 29, 1944, after time for appeal had expired, they were interned, and on January 25, 1946, the Attorney General ordered them to depart within thirty days or be deported. They did not depart, and they have not been deported, although the orders of deportation are still outstanding. Petitioner further alleged that he would show that the judgment of December 7, 1943, was unlawful and erroneous by producing the record in the Keilbar case (Keilbar v. United States, 5 Cir., 144 F.2d 866). 6 The District Court on September 28, 1948, denied petitioner's motion to vacate the judgment of denaturalization, the court stating in the order that 'there is no merit to said motion.' It will be noted that petitioner alleged in his motion that his failure to appeal was excusable. A motion for relief because of excusable neglect as provided in Rule 60(b)(1) must, by the rule's terms, be made not more than one year after the judgment was entered. The judgment here sought to be relieved from was more than four years old. It is immediately apparent that no relief on account of 'excusable neglect' was available to this petitioner on the motion under consideration. 7 But petitioner seeks to bring himself within Rule 60(b)(6), which applies if 'any other reason justifying relief' is present, as construed and applied in Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 389, 93 L.Ed. 266. The circumstances alleged in the motion which petitioner asserts bring him within Rule 60(b)(6) are that the denaturalization judgment was erroneous; that he did not appeal and raise that question because his attorney advised him he would have to sell his home to pay costs, while Kelley, the Alien Control officer, in whom he alleges he had confidence and upon whose advice he relied, told him 'to hang on to their home' and that he would be released at the end of the war; and that these circumstances justify failure to appeal the denaturalization judgment. 8 We cannot agree that petitioner has alleged circumstances showing that his failure to appeal was justifiable. It is not enough for petitioner to allege that he had confidence in Kelley. On the allegations of the motion before us, Kelley was a stranger to petitioner. In that state of the pleadings there are two reasons why petitioner cannot be heard to say his neglect to appeal brings him within the rule. First, anything said by Kelley could not be used to relieve petitioner of his duty to take legal steps to protect his interest in litigation in which the United States was a party adverse to him. Munro v. United States, 303 U.S. 36, 58 S.Ct. 421, 82 L.Ed. 633; Burnham Chemical Co. v. Krug, D.C., 81 F.Supp. 911, 913, affirmed per curiam sub nom. Burnham Chemical Co. v. Chapman, 86 U.S.App.D.C. 412, 181 F.2d 288. Secondly, petitioner had no right to repose confidence in Kelley, a stranger. There is no allegation of any fact or circumstance which shows that Kelley had any undue influence over petitioner or practiced any fraud, deceit, misrepresentation, or duress upon him. There are no allegations of privity or any fiduciary relations existing between them. Indeed, the allegations of the motion all show the contrary. However, petitioner had a confidential adviser in his own counsel. Instead of relying upon that confidential adviser, he freely accepted the advice of a stranger, a source upon which he had no right to rely. Petitioner made a considered choice not to appeal, apparently because he did not feel that an appeal would prove to be worth what he thought was a required sacrifice of his home. His choice was a risk, but calculated and deliberate and such as follows a free choice. Petitioner cannot be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong, considering the outcome of the Keilbar case. There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from. 9 As further evidence of the inadequacy of petitioner's motion to bring himself within any division of Rule 60(b) which would excuse him from not having taken an appeal, we call attention to the fact that Keilbar got the record before the Court of Appeals, and it contained all the evidence that was introduced as to petitioner and his wife, who were tried together with Keilbar. The Ackermanns and Keilbar were related, yet no effort was made to get into the Court of Appeals and use the same record as to the evidence that Keilbar used. It certainly would not have taken five thousand dollars or one-tenth thereof for petitioner and his wife to have supplemented the Keilbar record with that pertaining to themselves and to prepare a brief, even if all of it were printed. We are further aware of the practice of the Courts of Appeals permitting litigants who are poor but not paupers to file typewritten records and briefs at a very small cost to them. With the same counsel representing petitioner as represented his kinsman Keilbar, and with Frieda Ackermann having funds sufficient to employ separate counsel, failure to appeal because of the fear of losing his home in defraying the expenses of the brief and record, makes it further evidence that Rule 60(b) has no application to petitioner in this setting. 10 The Klapprott case was a case of extraordinary circumstances. Mr. Justice Black stated in the following words why the allegations in the Klapprott case, there taken as true, brought it within Rule 60(b)(6): 'But petitioner's allegations set up an extraordinary situation which cannot fairly or logically be classified as mere 'neglect' on his part. The undenied facts set out in the petition reveal far more than a failure to defend the denaturalization charges due to inadvertence, indifference, or careless disregard of consequences. For before, at the time, and after the default judgment was entered, petitioner was held in jail in New York, Michigan, and the District of Columbia by the United States, his adversary in the denaturalization proceedings. Without funds to hire a lawyer, petitioner was defended by appointed counsel in the criminal cases. Thus petitioner's prayer to set aside the default judgment did not rest on mere allegations of 'excusable neglect.' The foregoing allegations and others in the petition tend to support petitioner's argument that he was deprived of any reasonable opportunity to make a defense to the criminal charges instigated by officers of the very United States agency which supplied the secondhand information upon which his citizenship was taken away from him in his absence. The basis of his petition was not that he had neglected to act in his own defense, but that in jail as he was, weakened from illness, without a lawyer in the denaturalization proceedings or funds to hire one, disturbed and fully occupied in efforts to protect himself against the gravest criminal charges, he was no more able to defend himself in the New Jersey court than he would have been had he never received notice of the charges.' Klapprott v. United States, 335 U.S. 601, 613 614, 69 S.Ct. 384, 389, 93 L.Ed. 266. 11 By no stretch of imagination can the voluntary, deliberate, free, untrammeled choice of petitioner not to appeal compare with the Klapprott situation. Mr. Justice Black set forth in order the extraordinary circumstances alleged by Klapprott. We paraphrase them and give the comparable situation of Ackermann. 12 In the spring of 1942 Klapprott was ill, and the illness left him financially poor and unable to work. On May 12, 1942, proceedings were commenced in a New Jersey District Court to cancel his citizenship. As for Ackermann, when he was sued he was well, and had a home worth $2,500, one-half interest in a newspaper, and the means to employ counsel. 13 When complaint was served upon Klapprott, he had no money to hire a lawyer, and he wrote an answer to the complaint filed against him and a letter to the American Civil Liberties Union asking it to represent him without fee. Ackermann had the means to hire and did hire able counsel of his own choice who prepared and filed an answer for him. 14 In less than two months after the complaint was served on the penniless, ill Klapprott, he was arrested for conspiracy to violate the Selective Service Act, 50 U.S.C.A.Appendix § 301 et seq., and taken to New York and jailed in default of bond. His letter to the American Civil Liberties Union was taken by the Federal Bureau of Investigation before time for him to answer had expired, and was not mailed by that Bureau. Ackermann was never indicted or in jail from the time complaint was filed against him until after judgment, during all of which time he had the benefit of counsel and freedom of movement and action. 15 Within ten days after his arrest, Klapprott was defaulted in the citizenship proceedings in New Jersey. He was still in jail in New York. No evidence was offered to prove the complaint in the denaturalization proceedings, which complaint was verified on information and belief only. In Ackermann's case, no default was entered. He appeared in person and by counsel and had a trial in open court with able counsel to defend him. Much evidence was introduced and a record was made of it. 16 Klapprott was convicted in New York and sent to a penitentiary in Michigan. He was later transferred to the District of Columbia, where he was lodged in jail and tried on another charge, later dismissed. The New York conviction was reversed, but he had been in jail for about two years. He was then lodged at Ellis Island for deportation because his citizenship had been cancelled in the New Jersey proceedings where he had been defaulted. While at Ellis Island, the motion to relieve from the default judgment cancelling his citizenship was prepared and filed, denied by the District Court and the Court of Appeals and finally sustained by this Court. Ackermann was never under criminal charges or detained while the suit for cancellation of his citizenship was pending. During all of that time he was free, well, and able to defend himself, and in that regard had able counsel representing him in a trial in open court. Even after the judgment cancelling his citizenship, he had counsel and free access to him, although detained by the United States Government. 17 From a comparison of the situations shown by the allegations of Klapprott and Ackermann, it is readily apparent that the situations of the parties bore only the slightest resemblance to each other. The comparison strikingly points up the difference between no choice and choice; imprisonment and freedom of action; no trial and trial; no counsel and counsel; no chance for negligence and inexcusable negligence. Subsection 6 of Rule 60(b) has no application to the situation of petitioner. Neither the circumstances of petitioner nor his excuse for not appealing is so extraordinary as to bring him within Klapprott or Rule 60(b)(6). 18 The motion for relief was properly denied, and the judgment is affirmed. 19 Affirmed. 20 No. 36, Frieda Ackermann v. United States, is a companion case to No. 35, and it was stipulated that the decision in No. 36 should be the same as in No. 35. The judgment in No. 36 therefore is also affirmed. 21 Affirmed. 22 Mr. Justice CLARK took no part in the consideration or decision of this case. 23 Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS concur, dissenting. 24 The Court's interpretation of amended Rule 60(b) of the Federal Rules of Civil Procedure neutralizes the humane spirit of the Rule and thereby frustrates its purpose. The Rule empowers courts to set aside judgments under five traditional, specified types of circumstances in which it would be inequitable to permit a judgment to stand. But the draftsmen of the Rule did not intend that these specified grounds should prevent the granting of similar relief in other situations where fairness might require it. Accordingly, there was added a broad sixth ground: 'any other reason justifying relief from the operation of the judgment.' The Court nevertheless holds that the allegations of the present motions were not sufficient to justify the District Court in hearing evidence to determine whether justice would best be served by granting relief from the judgments against petitioners.1 Because I disagree with this interpretation of Rule 60(b), it becomes necessary to summarize the allegations of the motions. 25 Petitioners, a husband and wife whose native country was Germany, became naturalized citizens of the United States in 1938. After the declaration of war against Germany, the Government commenced proceedings which resulted in the denaturalization of petitioners and also of their relative, Keilbar. United States v. Ackermann, D.C., 53 F.Supp. 611. Petitioners did not appeal from these judgments but on March 25, 1948, filed duly verified motions for relief from the judgments. The uncontradicted allegations of the motions show: When the judgments were entered, neither of the petitioners had any money or property except a home at Taylor, Texas, worth not in excess of $2,500. They were told by their counsel that the cost of an appeal would be $5,000; that to prosecute an appeal they would have to sell their home, contribute that $2,500 and then hope to have the appeal tried out on an affidavit of insolvency. Being distressed by reason of having to choose between selling their home or foregoing an appeal, the petitioners sought advice from the United States official who then held them in custody, one W. F. Kelley, assistant commissioner for alien control, Immigration and Naturalization Service of the United States. Petitioners had great confidence in this officer. Kelley advised them to 'hang on to their home' and also that they 'would be released at the end of the war.' Because of their reliance on this advice, petitioners 'refrained from appealing * * * said judgments.' Thereafter their relative Keilbar did appeal and the judgment of denaturalization against him was reversed on the Government's admission that the evidence was insufficient to support it. Keilbar v. United States, 5 Cir., 144 F.2d 866. Petitioners insisted both in their motions to set the judgments aside and in argument that the evidence against them and Keilbar was substantially the same. 26 In holding that the allegations of these motions are not even sufficient to justify the District Court in hearing evidence, the Court relies heavily on its assertion that petitioners 'had no right to repose confidence in Kelley' because Kelley was a 'stranger' to them. In the first place, Rule 60(b)'s broad grant of power to the District Court should not be constricted by the importation of the concept of legal 'rights.' Moreover, far from being a stranger, Kelley was the United States official who held petitioners in custody. Any person held by the United States should be able to repose confidence in the Government official entrusted with his custody. There are obvious reasons why this should be true in the case of the foreign born, less familiar with our customs than are our native citizens. 27 The Court also relies on the fact that the motions to set aside the judgments contain 'no allegations of privity or any fiduciary relations existing' between petitioners and Kelley. Surely the liberalizing provisions of 60(b) should not be emasculated by common-law ideas of 'privity' or 'fiduciary relations.' If relevant, however, I should think that the phrase 'fiduciary relations' given its best meaning encompasses the relationship between petitioners and the official who held them in custody. 28 Finally, since the Court holds that the allegations of petitioners' motions were insufficient to justify the hearing of evidence by the District Court, I think it inappropriate for the Court to consider what purports to be its judicial knowledge of the cost of transcripts and the ability of litigants to file typewritten records and briefs. The motions refute any such knowledge on the part of these petitioners and I am satisfied that no such knowledge would be established if the District Court were permitted to try these cases. 29 The result of the Court's illiberal construction of 60(b) is that these foreign-born people, dependent on our laws for their safety and protection, are denied the right to appeal to the very court that held (on the Government's admission) that the judgment against their co-defendant was unsupported by adequate evidence. It does no good to have liberalizing rules like 60(b) if, after they are written, their arteries are hardened by this Court's resort to ancient common-law concepts. I would reverse. 1 'Relief From Judgment or Order. '(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Section 57 of the Judicial Code, U.S.C., Title 28, § 118, Title 28, U.S.C.A. § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.' Fed.Rules Civ.Proc., 60(b). 1 Petitioners' motions to be relieved from the judgments of denaturalization invoked the jurisdiction of the District Court under Rule 60(b). Contending that these motions did 'not state grounds sufficient to invoke the authority of the Court * * *,' the Government moved to dismiss them. These pleadings therefore posed only the question of the trial court's jurisdiction. Without further pleadings or the taking of evidence, the court entered an order which stated that 'there is no merit to said (petitioners') motion(s) and * * * the same should be denied.' But since we cannot assume that an issue not framed by the pleadings was decided, it necessarily follows that the District Court held it was without jurisdiction to grant relief under Rule 60(b). But cf. Bell v. Hood, 327 U.S. 678, 682—683, 66 S.Ct. 773, 776, 90 L.Ed. 939; Brown v. Western R. Co., 338 U.S. 294, 70 S.Ct. 105.

12

340 U.S. 179 71 S.Ct. 215 95 L.Ed. 190 CITIES SERVICE GAS CO.v.PEERLESS OIL & GAS CO. et al. No. 153. Argued Nov. 9—10, 1950. Decided Dec. 11, 1950. Mr. Glenn W. Clark, Oklahoma City, Okl., for appellant. Mr. D. A. Richardson, Oklahoma City, for appellee Peerless Oil & Gas Co. Mr. Floyd Green, Oklahoma City, Okl., for appellee Corporation Commission of State of Oklahoma. Mr. Justice CLARK delivered the opinion of the Court. 1 The issue in this case is the power of a state to fix prices at the wellhead on natural gas produced within its borders and sold interstate. It originates from proceedings before the Oklahoma Corporation Commission which terminated with the promulgation of two orders. The first order set a minimum wellhead price on all gas taken from the Guymon-Hugoton Field, located in Texas County, Oklahoma. The second directed Cities Service, a producer in this field and operator of an interstate gas pipe-line system, to take gas ratably from Peerless, another producer in the same field, at the price incorporated in the first order. The Supreme Court of Oklahoma upheld both orders against contentions that they contravened the constitution and statutes of Oklahoma and the Fourteenth Amendment and Commerce Clause, art. 1, § 8, cl. 3, of the Constitution of the United States. 1950, 203 Okl. 35, 220 P.2d 279. From this judgment Cities Service appealed to this Court. A substantial federal claim having been duly raised and necessarily denied by the highest state court, we noted probable jurisdiction. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). I. 2 The case may be summarized as follows. The Hugoton Gas Field, 120 miles long and 40 miles wide, lies in the States of Texas, Oklahoma and Kansas. The Oklahoma portion, known as the Guymon-Hugoton Field, has approximately 1,062,000 proven acres with some 300 wells, of which 240 are producing. About 90 percent of Guymon-Hugoton's production is ultimately consumed outside the State. Cities Service, operator of a pipe line connected with the field, owns about 300,000 acres and 123 wells. In addition, it has 94 wells dedicated to it by lease for the life of the field and some 19 wells under term lease, giving it control over 236 of the 300 wells. Aside from the holdings of a few small tract owners and the acreages held in trust by the Oklahoma Land Office—some 49,600 acres—the only services in the field not owned by or affiliated with a pipe line are those of Harrington-Marsh with some 75,000 acres and Peerless with about 100,000 acres. Under prevailing market conditions, wellhead prices range from 3.6 to 5 cents per thousand cubic feet, varying prices being paid to different producers at the same time. In contrast, there is evidence that the 'commercial heat value' of natural gas, in terms of competitive fuel equivalents, is in excess of 10 cents per thousand cubic feet at the wellhead. 3 While the Guymon-Hugoton Field has three principal production horizons, they are so interconnected as to make in effect one large reservoir of gas. Cities' wells are located in an area in which the gas pressure is considerably lower than that found beneath the wells of Peerless. As a result, production from Cities' wells was causing drainage from the Peerless section of the field, and Peerless was losing gas even though its wells were not producing. 4 Having no pipe-line outlet of its own, Peerless offered to sell the potential output of its wells to Cities Service. Cities refused except on the condition that Peerless dedicate all gas from its acreage, at a price of 4 cents per thousand cubic feet, for the life of the leases. Dissatisfied with the price and the other terms, Peerless requested the Oklahoma Corporation Commission (a) to order Cities to make a connection with a Peerless well and purchase the output of that well ratably at a price fixed by the Commission, and (b) to fix the price to be paid by all purchasers of natural gas in the Guymon-Hugoton Field. Shortly thereafter, the Oklahoma Land Office intervened as owner in trust of large acreages in the field. The Land Office alleged that no fair, adequate price for natural gas existed in the field; that existing prices were discriminatory, unjust and arbitrary and if continued would deplete, destroy and exhaust the field within a few years. It joined Peerless' prayer for relief. The Commission thereupon, by written notice, invited all producers and purchasers of gas in the field to appear and participate in the proceedings. 5 The Commission heard testimony to the effect that the field price of gas has a direct bearing on conservation. Witnesses testified that low prices make enforcement of conservation more difficult, retard exploration and development, and result in abandonment of wells long before all recoverable gas has been extracted. They also testified that low prices contribute to an uneconomic rate of depletion and economic waste of gas by promoting 'inferior' uses. 6 At the end of the hearings, the Commission concluded that there was no competitive market for gas in the Guymon-Hugoton Field, that the integrated well and pipe-line owners were able to dictate the prices paid to producers without pipe-line outlets, and that as a result gas was being taken from the field at a price below its economic value. It further concluded that the taking of gas at the prevailing prices resulted in both economic and physical waste of gas, loss to producer and royalty owners, loss to the State in gross production taxes, inequitable taking of gas from the common source of supply, and discrimination against various producers in the field. On the basis of these findings, the Commission issued the two orders challenged here. The first provided 'that no natural gas shall be taken out of the producing structures or formations in the Guymon-Hugoton Field * * * at a price, at the wellhead, of less than 7¢ per thousand cubic feet of natural gas measured at a pressure of 14.65 pounds absolute pressure per square inch.' The second directed Cities Service 'to take natural gas ratably from * * * (Peerless') well * * * in accordance with the formula for ratable taking prescribed in Order No. 17867 of this Commission' (a provision not under attack here), and at the same price and pressure terms indicated in the general field-price order. 7 On appeal to the Oklahoma Supreme Court, Cities Service attacked the orders on the following grounds: (1) that the Commission acted beyond its authority in that Oklahoma statutes did not permit general price-fixing or specific price-fixing at a figure in excess of the prevailing market price, and in that the statutes did not contemplate the prevention of economic, as distinct from physical, waste; (2) that if construed to permit such price-fixing, the statutes and orders thereunder violated the state constitution; (3) that if so construed, the statutes and orders violated the Due Process and Equal Protection clauses of the Fourteenth Amendment, in that (a) there was no evidence of physical waste in the Guymon-Hugoton Field and the price order cannot be reasonably related to the prevention of waste, (b) the statutes contain no adequate standards governing the Commission's price-fixing powers, (c) the orders are too vague, (d) the proceedings lacked procedural due process, and (e) the specific order discriminates against Cities Service, and the general order, applying only to the Guymon-Hugoton Field, discriminates against those producing or purchasing in that field; (4) that the orders violate the Commerce Clause, Art. I, § 8, in that they cast an undue burden on, and discriminate against, interstate commerce. 8 The Supreme Court of Oklahoma rejected these claims. It found that the Oklahoma statutes fully empowered the Commission to take the action which it took. The Oklahoma legislature, as early as 1913, declared that gas underlying land is the property of the land owner or his lessee; that gas may be taken from a common source of supply proportionately to the natural flow of the well and that the drilling of a well by an owner or lessee shall be regarded as reducing to possession his share of the gas; that any person taking gas from the field, except in cases not here pertinent, shall take ratably from each owner in proportion to his interest and upon such terms as may be agreed upon; that if no agreement can be reached then the price and terms shall be such as may be fixed by the Corporation Commission after notice and hearing. 52 Okla.Stats. §§ 23—25, 231—233 (1941). These sections explicitly authorize the order requiring Cities to take gas ratably from Peerless and at a specific price. In 1915, Oklahoma strengthened its gas conservation laws by authorizing regulation of production of gas from a common source when production is in excess of market demand. 5i Okla.Stats. §§ 239—240 (1941). The Commission was authorized to limit the gas taken by any producer to 'such proportion of the natural gas that may be marketed without waste' as the natural flow of gas at the wells of such producer bears to the total natural flow of the common source. In authorizing such regulation, the legislature declared that it acted 'so as to prevent waste, protect the interest of the public, and of all those having a right to produce therefrom, and to prevent unreasonable discrimination in favor of any one such common source of supply as against another.' The Oklahoma Supreme Court construed the 1915 Act to permit the general order setting a minimum price in the field. It further ruled that economic waste was within the contemplation of the statute. Finally, with regard to state questions, it held that the orders did not violate the Oklahoma Constitution. 9 The Oklahoma court also concluded that the statutes so construed and the orders made thereunder do not violate the Federal Constitution on the grounds relied on by Cities Service. We agree. II. 10 The Due Process and Equal Protection issues raised by appellant are virtually without substance. It is now undeniable that a state may adopt reasonable regulations to prevent economic and physical waste of natural gas. This Court has upheld numerous kinds of state legislation designed to curb waste of natural resources and to protect the correlative rights of owners through ratable taking, Champlin Refining Co. v. Corporation Commission, 1932, 286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062, or to protect the economy of the state. Railroad Commission of Texas v. Rowan & Nichols Oil Co., 1940, 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368. These ends have been held to justify control over production even though the uses to which property may profitably be put are restricted. Walls v. Midland Carbon Co., 1920, 254 U.S. 300, 41 S.Ct. 118, 65 L.Ed. 276. 11 Like any other regulation, a price-fixing order is lawful if substantially related to a legitimate end sought to be attained. Nebbia v. People of State of New York, 1934, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 and cases therein cited. In the proceedings before the Commission in this case, there was ample evidence to sustain its finding that existing low field prices were resulting in economic waste and conducive to physical waste. That is a sufficient basis for the orders issued. It is no concern of ours that other regulatory devices might be more appropriate, or that less extensive measures might suffice. Such matters are the province of the legislature and the Commission. 12 We have considered the other arguments raised by appellant concerning Due Process and Equal Protection and find them similarly lacking in merit. III. 13 The Commerce Clause gives to the Congress a power over interstate commerce which is both paramount and broad in scope. But due regard for state legislative functions has long required that this power be treated as not exclusive. Cooley v. Board of Wardens of Port of Philadelphia, 1851, 12 How. 299, 13 L.Ed. 996. It is now well settled that a state may regulate matters of local concern over which federal authority has not been exercised, even though the regulation has some impact on interstate commerce. Parker v. Brown, 1943, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315; Milk Control Board of Pennsylvania v. Eisenberg Farm Products, 1939, 306 U.S. 346, 59 S.Ct. 528, 83 L.Ed. 752; South Carolina State Highway Dept. v. Barnwell Bros., 1938, 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734. The only requirements consistently recognized have been that the regulation not discriminate against or place an embargo on interstate commerce, that it safeguard an obvious state interest, and that the local interest at stake outweigh whatever national interest there might be in the prevention of state restrictions. Nor should we lightly translate the quiescence of federal power into an affirmation that the national interest lies in complete freedom from regulation. South Carolina State Highway Dept. v. Barnwell Bros., supra. Compare Leisy v. Hardin, 1890, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128, decided prior to the Wilson Act, 26 Stat. 313, 27 U.S.C.A. § 121, with In re Rahrer, 1891, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572, decided thereafter. 14 That a legitimate local interest is at stake in this case is clear. A state is justifiably concerned with preventing rapid and uneconomic dissipation of one of its chief natural resources. The contention urged by appellant that a group of private producers and royalty owners derive substantial gain from the regulations does not contradict the established connection between the orders and a state-wide interest in conservation. Cf. Thompson v. Consolidated Gas Utilities Corp., 1937, 300 U.S. 55, 57 S.Ct. 364, 81 L.Ed. 510. 15 We recognize that there is also a strong national interest in natural gas problems. But it is far from clear that on balance such interest is harmed by the state regulations under attack here. Presumably all consumers, domestic and industrial alike, want to obtain natural gas as cheaply as possible. On the other hand, groups connected with the production and transportation of competing fuels complain of the competition of cheap gas. Moreover, the wellhead price of gas is but a fraction of the price paid by domestic consumers at the burner-tip, so that the field price as herein set may have little or no effect on the domestic delivered price. Some industrial consumers, who get bargain rates on gas for 'inferior' uses, may suffer. But strong arguments have been made that the national interest lies in preserving this limited resource for domestic and industrial uses for which natural gas has no completely satisfactory substitute. See generally, F.P.C., Natural Gas Investigation (1948); F.P.C. v. Hope Natural Gas Co., 1944, 320 U.S. 591, 657—660, 64 S.Ct. 281, 313, 315, 88 L.Ed. 333 (dissenting opinion). Insofar as conservation is concerned, the national interest and the interest of producing states may well tend to coincide. In any event, in a field of this complexity with such diverse interests involved, we cannot say that there is a clear national interest so harmed that the state price-fixing orders here employed fall within the ban of the Commerce Clause. Parker v. Brown, supra; Milk Control Board of Pennsylvania v. Eisenberg Farm Products, supra. Nor is it for us to consider whether Oklahoma's unilateral efforts to conserve gas will be fully effective. See South Carolina State Highway Dept. v. Barnwell Bros., supra, 303 U.S. at pages 190—191, 58 S.Ct. at pages 516, 517, 82 L.Ed. 734. 16 H. P. Hood & Sons v. Du Mond, 1949, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865, is not inconsistent with this result. The Hood case specifically excepted from consideration the question here raised, whether price-fixing was forbidden as an undue burden on interstate commerce. Moreover, the Court carefully distinguished Eisenberg, which approved price regulations even though applied to a producer whose entire purchases of milk were directly, without processing, into interstate commerce. The vice in the regulation invalidated by Hood was solely that it denied facilities to a company in interstate commerce on the articulated ground that such facilities would divert milk supplies needed by local consumers; in other words, the regulation discriminated against interstate commerce. There is no such problem here. The price regulation applies to all gas taken from the field, whether destined for interstate or intrastate consumers. 17 Appellant does not contend that the orders conflict with the federal authority asserted by the Natural Gas Act, 52 Stat. 821 (1938), 15 U.S.C. §§ 717 et seq. (1948), 15 U.S.C.A. § 717 et seq. The Federal Power Commission has not participated in these proceedings. Whether the Gas Act authorizes the Power Commission to set field prices on sales by independent producers, or leaves that function to the states, is not before this Court. 18 We hold that on this record the Oklahoma Corporation Commission issued valid orders, and that the decision of the court below should be affirmed. 19 Affirmed. 20 Mr. Justice BLACK is of the opinion that the alleged federal constitutional questions are frivolous and that the appeal therefore should be dismissed.

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340 U.S. 206 71 S.Ct. 262 95 L.Ed. 215 DOWDv.UNITED STATES ex rel. COOK. No. 66. Argued Nov. 28, 1950. Decided Jan. 2, 1951. Mr. Charles F. O'Connor, Indianapolis, Ind., for petitioner. Mr. William S. Isham, Fowler, Ind., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 Respondent, Lawrence E. Cook, brought this habeas corpus proceeding in the United States District Court in 1948. After hearing evidence, the District Court found as follows: In 1931 respondent was convicted of murder in an Indiana court, sentenced to life imprisonment, and immediately confined in the state penitentiary. Within the six-month period allowed for appeal as of right by Indiana law, respondent prepared proper appeal papers. His efforts to file the documents in the state supreme court, however, were frustrated by the warden acting pursuant to prison rules. Subsequently, but after the six-month period had expired, the ban on sending papers from the prison was lifted and respondent unsuccessfully sought to have the state courts review his conviction by coram nobis in 19371 and by habeas corpus in 1945.2 In 1946 his petition to the Supreme Court of Indiana for a delayed appeal was denied.3 On these findings, the District Court held that there had been a denial of equal protection of the law for which the State provided no remedy, and ordered respondent's discharge. The Court of Appeals for the Seventh Circuit affirmed. 180 F.2d 212. 2 In this Court the State admits, as it must, that a discriminatory denial of the statutory right of appeal is a violation of the Equal Protection Clause of the Fourteenth Amendment. Cochran v. State of Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453. It contends, however, that the 1946 litigation in the Supreme Court of Indiana established that the prison authorities had not prevented a timely appeal by respondent, and that the principle of res judicata precluded a contrary determination of this fact by the District Court. Even if the rule of res judicata were applicable in habeas corpus proceedings, but cf. Waley v. Johnston, 316 U.S. 101, 105, 62 S.Ct. 964, 966, 86 L.Ed. 1302, it would have no bearing in the present case. The Indiana court made only one finding, and that pertained to a matter not now in dispute.4 Moreover, so far as the suppression of respondent's original appeal papers is concerned, the record before us strongly indicates that the finding ascribed to the state supreme court could not have been made. 3 The State also contends that despite the denial of equal protection, respondent is no longer entitled to relief because he 'waived' his right of appeal. The argument is that the ban on sending papers from the prison suspended the statutory limitation on the time for review so that respondent could have appealed within six months from the date the restraint was removed in 1933. We cannot accept this view. In 1931 Indiana appellate jurisdiction apparently was conditioned on a timely filing of the proper papers.5 More recently, the rigid rule may have been relaxed so as to provide discretionary delayed appeals for convicted defendants.6 But we find no indication either that there is any time limitation on the taking of delayed appeals or that such appeals will ever be heard as of right. The record shows that respondent's delayed appeal was denied in 1946, apparently as a matter within the state court's discretion.7 Consequently, respondent has never had the same review of the judgment against him as he would have had as of right in 1931 but for the suppression of his papers. We therefore agree with the Court of Appeals that, while the State's 'waiver' theory is ingenious, it is without merit. Under the peculiar circumstances of this case, nothing short of an actual appellate determination of the merits of the conviction—according to the procedure prevailing in ordinary cases—would cure the original denial of equal protection of the law. 4 There remains the question of the disposition to be made of this case. Fortunately, we are not confronted with the dilemma envisaged by the State of having to choose between ordering an absolute discharge of the prisoner and denying him all relief. The District Court has power in a habeas corpus proceeding to 'dispose of the matter as law and justice require.' 28 U.S.C. § 2243, 28 U.S.C.A. § 2243. The Fourteenth Amendment precludes Indiana from keeping respondent imprisoned if it persists in depriving him of the type of appeal generally afforded those convicted of crime. On the other hand, justice does not require Indiana to discharge respondent if such an appeal is granted and reveals a trial record free from error. Now that this Court has determined the federal constitutional question, Indiana may find it possible to provide the appellate review to which respondent is entitled. The judgments of the Court of Appeals and the District Court are vacated and the case remanded. On remand, the District Court should enter such orders as are appropriate to allow the State a reasonable time in which to afford respondent the full appellate review he would have received but for the suppression of his papers, failing which he shall be discharged. See Mahler v. Eby, 264 U.S. 32, 46, 44 S.Ct. 283, 288, 68 L.Ed. 549. It is so ordered. 5 Judgments vacated and case remanded. 1 See Cook v. State, 219 Ind. 234, 37 N.E.2d 63; State ex rel. Cook v. Wickens, 222 Ind. 383, 53 N.E.2d 630. 2 State ex rel. Cook v. Howard, 223 Ind. 694, 64 N.E.2d 25, certiorari denied 327 U.S. 808, 66 S.Ct. 960, 90 L.Ed. 1032. 3 This order is unreported. Certiorari to review the denial of the petition for delayed appeal was sought here and denied. Cook v. State of Indiana, 330 U.S. 841, 67 S.Ct. 981, 91 L.Ed. 1287. 4 The finding was that 'the basic allegation of said petition to-wit: that (Cook's) counsel refused, without pay, to take an appeal is not true * * *.' 5 Dudley v. State, 200 Ind. 398, 161 N.E. 1; Farlow v. State, 196 Ind. 295, 142 N.E. 849; Farrell v. State, 85 Ind. 221; Winsett v. State, 54 Ind. 437; Lichtenfels v. State, 53 Ind. 161. 6 The Supreme Court of Indiana suggested in 1945 that this respondent might be able to take a delayed appeal. State ex rel. Cook v. Howard, 223 Ind. 694, 64 N.E.2d 25. Cf. also Warren v. Indiana Telephone Co., 217 Ind. 93, 26 N.E.2d 399; State ex rel. White v. Hilgemann, 218 Ind. 572, 34 N.E.2d 129; but cf. Johns v. State, 227 Ind. 737, 89 N.E.2d 281. In 1947 Indiana enacted the more liberal rule into its statutory law. Burns' Ind.Ann.Stat., 1942 Replacement Vol., (Cum.Supp.1949) § 9-3305. 7 See note 3, supra; cf. Sweet v. State, 226 Ind. 566, 81 N.E.2d 679.

01

340 U.S. 211 71 S.Ct. 259 95 L.Ed. 219 KIEFER-STEWART CO.v.JOSEPH E. SEAGRAM & SONS, Inc., et al. No. 297. Argued Dec. 8, 1950. Decided Jan. 2, 1951. Rehearing Denied Feb. 26, 1951. See 340 U.S. 939, 71 S.Ct. 487. Mr. Paul A. Porter, Washington, D.C., Mr. Joseph J. Daniels, Indianapolis, Ind., for petitioner. Mr. Paul Y. Davis, Indianapolis, Ind., for respondents. Mr. Justice BLACK delivered the opinion of the Court. 1 The petitioner, Kiefer-Stewart Company, is an Indiana drug concern which does a wholesale liquor business. Respondents, Seagram and Calvert corporations, are affiliated companies that sell liquor in interstate commerce to Indiana wholesalers. Petitioner brought this action in a federal district court for treble damages under the Sherman Act. 15 U.S.C. §§ 1, 15, 15 U.S.C.A. §§ 1, 15. The complaint charged that respondents had agreed or conspired to sell liquor only to those Indiana wholesalers who would resell at prices fixed by Seagram and Calvert, and that this agreement deprived petitioner of a continuing supply of liquor to its great damage.1 On the trial, evidence was introduced tending to show that respondents had fixed maximum prices above which the wholesalers could not resell. The jury returned a verdict for petitioner and damages were awarded. The Court of Appeals for the Seventh Circuit reversed. 182 F.2d 228. It held that an agreement among respondents to fix maximum resale prices did not violate the Sherman Act because such prices promoted rather than restrained competition. It also held the evidence insufficient to show that respondents had acted in concert. Doubt as to the correctness of the decision on questions important in antitrust litigation prompted us to grant certiorari. 340 U.S. 863, 71 S.Ct. 89. 2 The Court of Appeals erred in holding that an agreement among competitors to fix maximum resale prices of their products does not violate the Sherman Act. For such agreements, no less than those to fix minimum prices, cripple the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment. We reaffirm what we said in United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 844, 84 L.Ed. 1129: 'Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se.' 3 The Court of Appeals also erred in holding the evidence insufficient to support a finding by the jury that respondents had conspired to fix maximum resale prices. The jury was authorized by the evidence to accept the following as facts: Seagram refused to sell to petitioner and others unless the purchasers agreed to the maximum resale price fixed by Seagram. Calvert was at first willing to sell without this restrictive condition and arrangements were made for petitioner to buy large quantities of Calvert liquor. Petitioner subsequently was informed by Calvert, however, that the arrangements would not be carried out because Calvert had 'to go along with Seagram.' Moreover, about this time conferences were held by officials of the respondents concerning sales of liquor to petitioner. Thereafter, on identical terms as to the fixing of retail prices, both Seagram and Calvert resumed sales to other Indiana wholesalers who agreed to abide by such conditions, but no shipments have been made to petitioner. 4 The foregoing is sufficient to justify the challenged jury finding that respondents had a unity of purpose or a common design and understanding when they forbade their purchasers to exceed the fixed ceilings. Thus, there is support for the conclusion that a conspiracy existed, American Tobacco Co. v. United States, 328 U.S. 781, 809—810, 66 S.Ct. 1125, 1138, 90 L.Ed. 1575, even though, as respondents point out, there is other testimony in the record indicating that the price policies of Seagram and Calvert were arrived at independently. 5 Respondents also seek to support the judgment of reversal on other grounds not passed on by the Court of Appeals but which have been argued here both orally and in the briefs. These grounds raise only issues of law not calling for examination or appraisal of evidence and we will consider them. Respondents introduced evidence in the District Court designed to show that petitioner had agreed with other Indiana wholesalers to set minimum prices for the sale of liquor in violation of the antitrust laws. It is now contended that the trial court erred in charging the jury that petitioner's part in such a conspiracy, even if proved, was no defense to the present cause of action. We hold that the instruction was correct. Seagram and Calvert acting individually perhapse might have refused to deal with petitioner or with any or all of the Indiana wholesalers. But the Sherman Act makes it an offense for respondents to agree among themselves to stop selling to particular customers. If petitioner and others were guilty of infractions of the antitrust laws, they could be held responsible in appropriate proceedings brought against them by the Government or by injured private persons. The alleged illegal conduct of petitioner, however, could not legalize the unlawful combination by respondents nor immunize them against liability to those they injured. Cf. Fashion Originators' Guild v. Federal Trade Comm., 312 U.S. 457, 668, 61 S.Ct. 703, 85 L.Ed. 949; Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 242—243, 68 S.Ct. 996, 1009, 92 L.Ed. 1328. 6 Respondents next suggest that their status as 'mere instrumentalities of a single manufacturing-merchandising unit' makes it impossible for them to have conspired in a manner forbidden by the Sherman Act. But this suggestion runs counter to our past decisions that common ownership and control does not liberate corporations from the impact of the antitrust laws. E.g. United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010. The rule is especially applicable where, as here, respondents hold themselves out as competitors. 7 It is also claimed that the District Court improperly refused to withdraw from the jury an issue as to respondents' violation of the Clayton Act which had been charged in the complaint but which was not proved. A fair reading of the instructions to the jury, however, reveals that the trial court submitted to them only the cause of action under the Sherman Act. We are convinced from this record that a more formal withdrawal of the Clayton Act issue would have served solely to confuse. 8 Other contentions of error in the admission of evidence and in the charge to the jury are so devoid of merit that it is unnecessary to discuss them. 9 The judgment of the Court of Appeals is reversed and that of the District Court is affirmed. It is so ordered. 10 Judgment of Court of Appeals reversed. 1 Petitioner also charged a violation of the Clayton Act, 15 U.S.C. § 18, 15 U.S.C.A. § 18, but this theory has been abandoned and is not important here. See 340 U.S. 215, 71 S.Ct. 261, infra.

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340 U.S. 216 71 S.Ct. 264 95 L.Ed. 225 ALABAMA GREAT SOUTHERN R. CO. et al.v.UNITED STATES et al. GALVESTON CHAMBER OF COMMERCE et al. v. UNITED STATES et al. RAILROAD COMMISSION OF TEXAS v. UNITED STATES et al. SAVANNAH SUGAR REFINING CORP. v. UNITED STATES et al. Nos. 45 to 48. Argued Nov. 8, 9, 1950. Decided Jan. 2, 1951. As Amended on Denial of Rehearing Feb. 26, 1951. [Syllabus from pages 216-217 intentionally omitted] Mr. Harold E. Spencer, Chicago, Ill., for Alabama Great So. R. co. Mr. William A. Disque, Washington, D.C., for Galveston Chamber of Commerce. Mr. Price Daniel, Liberty, Tex., Mr. Charles E. Crenshaw, Houston, Tex., for Railroad Commission of Texas. Mr. S. R. Hillyer, Chicago, Ill., for Savannah Sugar Refining Corp. Mr. Philip Elman, Washington, D.C., for appellees U.S. Interstate Commerce Commission. Mr. Nuel D. Belnap, Chicago, Ill., for appellees, American Barge Line Co. and others. Mr. Justice MINTON delivered the opinion of the Court. 1 In No. 45 appellant common carriers by railroad brought this suit against the United States in the District Court for the Northern District of Illinois to enjoin an order of the Interstate Commerce Commission issued June 13, 1949, in a proceeding instituted by the Commission entitled Rail and Barge Joint Rates, No. 26712 on the Commission's docket. Appellee Interstate Commerce Commission intervened as a party defendant before the District Court, as did appellee common carriers by water, American Barge Line Company (American), Inland Waterways Corporation, doing business as Federal Barge Lines (Federal), and Mississippi Valley Barge Line Company (Valley). A statutory three-judge court heard the case and, upon findings of fact made and conclusions of law stated, denied the injunction and dismissed the complaint. 88 F.Supp. 982. This direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253 followed. 2 The Rail and Barge Joint Rates proceeding before the Commission was instituted in 1934 as an investigation ancillary to certain formal complaints before the Commission under § 3(e) of the Inland Waterways Corporation Act as amended by the Denison Act, 45 Stat. 980,1 and ancillary to other proceedings involving the same subject matter as the complaints. The investigation instituted concerned the reasonableness and lawfulness of existing through routes and joint rates, rules, regulations and practices for application by common carriers by railroad and common carriers by water operating upon the Mississippi and Warrior Rivers and their tributaries; the reasonableness of existing minimum differentials between all-rail rates and corresponding rail-barge, barge-rail and rail-barge-rail rates; the necessity, if any, for the establishment by the railroad and water carriers of additional through routes and joint rates, rules, regulations and practices; and the necessity, if any, for fixing reasonable differentials between corresponding all-rail rates and joint rail and barge rates. Consolidated for disposition with the general investigation were the complaints and other proceedings involving the same general questions. 3 Hearings held pursuant to this investigation over a period of eight years resulted in a record of some 16,000 pages and 1,500 exhibits. An examiner submitted a report, to which exceptions and replies were filed. After argument before the full Commission, it rendered its written report and findings dated July 7, 1948, 270 I.C.C. 591, supplemented by report dated June 13, 1949, 274 I.C.C. 229, and promulgated the order under attack. The order, made pursuant to § 307(d) of the Transportation Act of 1940,2 required the common carriers by railroad. and water to establish the joint through routes for the transportation of property prescribed in the reports, and to establish and thereafter to maintain and apply over the through routes the joint rates prescribed based upon certain differentials found in the reports to be justified. 4 Appellant common carriers by railroad represent the railroads required by the order to enter into differential joint rail-barge rates, while appellee common carriers by water are the principal barge lines affected by the order. Appellee Federal is a corporation created by act of Congress, and is supervised by the Department of Commerce. It operates between St. Paul, Chicago, Omaha, St. Louis, New Orleans, Port Birmingham, Alabama, and intermediate ports via waterways connecting the ports. Valley operates between Pittsburgh, points on the Monongahela River, Cincinnati, St. Louis and New Orleans. American operates principally between Pittsburgh and New Orleans. Valley and American are privately owned and their operations have been financially profitable, while Federal has incurred an average net deficit from water-line operations of over $240,000 per year during the period from 1925 to 1947 inclusive. 5 Much evidence was introduced early in the investigation by both the railroads and the barge lines as to their costs of transportation. The cost section of the Commission made a study of relative costs for the period 1933-38 and concluded that rail-barge operating costs were greater than all-rail operating costs, due largely to the costs of added terminal handling operations. In its report the Commission stated that no useful purpose would be served by making a finding as to relative all-rail and rail-barge costs in the period covered by the study, because since that period there had been radical changes in the conditions affecting cost of transportation service by barge as well as by rail. And after reviewing other factors bearing on costs of operation, the Commission concluded: 6 'In the face of these facts we cannot find that at the present time there are demonstratable economies in barge-rail transportation on the Mississippi River and its tributaries, including the Warrior, which from the standpoint of cost of service would justify differentials.' 270 I.C.C. at 606. 7 Appellants' primary contention is that the Commission could not prescribe reasonable differentials between all-rail rates and joint rates in connection with the water carriers without proof of lower cost of the rail-barge service. Since the Commission had no valid proof as to the relative costs of the services, appellants insist that the Commission's order is arbitrary and capricious and its conclusions that the differentials are 'justified as reasonable' and 'necessary and desirable in the public interest' are not supported by substantial evidence and essential findings. This, it is contended by appellants, is apparent on the face of the Commission's report, so that it is not necessary for us to examine the evidence before the Commission. 8 The case will perhaps be better under stood by an illustration of how the order operates. Assume 9 Illinois Central local rate New Orleans to Cairo, Ill.. $1.00 10 Big Four local rate, Cairo to Cleveland, Ohio. 1.00 11 Illinois Central-Big Four joint all-rail rate, New Orleans 12 to Cleveland....................... 1.60 13 The joint all-rail rate of $1.60 is divided as follows: 14 Illinois-Central, New Orleans to Cairo. .80 Big Four, Cairo to Cleveland.......... .80 15 Assume a prescribed differential of..... .20 16 Deduct the differential of $.20 from the $1.60 joint all-rail 17 rate and the joint barge-rail rate is. 1.40 18 The $1.40 barge-rail rate is divided between the rail and barge 19 carriers as follows: Big Four, Cairo to Cleveland........ .80 20 Barge, Cairo to New Orleans......... .60 The local situation, New Orleans to Cairo, then, is: On Illinois Central: Local all-rail rate................ 1.00 Division of $1.60 joint all-rail rate. .80 On the barge line: Local port-to-port rate............. .80 Division of $1.40 barge-rail rate... .60 21 All-rail rates are not disturbed and no question of their being compensatory is raised. The differentials fixed by the Commission are applied to the presently-existing all-rail rates to compute the prescribed joint rail-barge rate. If an all-rail rate should be modified, the differential would not automatically attach to the new all-rail rate; the joint rail-barge rate would remain as now prescribed (subject to independent modification, of course).3 It is apparent that the barge line absorbs all the differential. A railroad carrier allways gets the same amount for its leg, e.g., Big Four, Cairo to Cleveland (see illustration, above), of a joint movement, whether the joint movement is all-rail or rail-barge. The railroad connecting with the barge carrier in a joint rail-barge movement is, as appellants admit, never hurt. 'It is not the rail lines with which the barge lines connect which object to these unjustified differentials. It is the rail lines with which the barge lines compete,' say appellants. In short, the railroads complain of competition. 22 First. Appellants' attack upon the ground that the order gives a competitive advantage, not justified because not supported by a finding of lesser cost of barge service, is not persuasive. Admittedly, barge service is worth less than rail service. It is slower, requires more handling and entails more risk. A shipper will pay only what the service is worth to him. The shippers' evidence, the Commission found, indicated a fairly unanimous view that the principal worth to them of shipping by barge was the saving in transportation expense which it offered. The Commission is not bound to require a rate as high for the inferior as for the superior service. To do so would certainly destroy the principal worth of the inferior service and send all freight to the railroads; practically, there would be no competition between the different modes of transportation. 23 Neither the Commission nor this Court has held that lesser cost of service is a finding without which the Commission may not fix a charge, division of rate, or differential.4 On the other hand, the considerations just discussed were rightly taken into account by the Commission. We must not lose sight of the fact that the Commission has the interests of shippers and consumers to safeguard as well as those of the carriers. Ayrshire Corp. v. United States, 335 U.S. 573, 592, 69 S.Ct. 278, 288, 93 L.Ed. 243. The accommodation of the factors entering into rate structures, including competition, is a task peculiarly for the Commission. Id., 335 U.S. at 593, 69 S.Ct. at 289, United States v. Pierce Auto Lines, 327 U.S. 515, 535—536, 66 S.Ct. 687, 697—698, 90 L.Ed. 821. 24 A carrier may, if it deems it advantageous, voluntarily accept a rate yielding a low return. Baltimore & O.R. Co. v. United States, 298 U.S. 349, 379, 56 S.Ct. 797, 812, 85 L.Ed. 1209. The Commission may permit it to do so if satisfied that the rate is compensatory, fair and reasonable, and in the public interest. Id., 327 U.S. at 358, 56 S.Ct. at 802. Appellants intimate that the rates fixed are not compensatory with respect to the barge lines, and that the Commission knew they were not compensatory. We disagree. The barge lines in the instant proceedings represented to the Commission that the differentials which they had proposed, and which were thoroughly examined and considered by the Commission in the light of the railroads' criticisms, were compensatory. From the Commission's report it appears that it substantially adopted the proposals of the barge lines. In any event, if is not apparent from the report that the Commission substantially exceeded these recommended differentials or was not warranted in adopting them. We conclude that the differentials fixed were considered by the Commission to be compensatory. 270 I.C.C. at 612, 613—617. If the rates obtained by the barge lines after applying the differentials are deemed to be less than relevant costs, a rate hearing is the proper proceeding to rectify prejudice flowing therefrom. 25 Here then, the barge lines, in order to protect the sole advantage of their service to the public, are willing to accept less for their inferior service than rail carriers receive for superior service. Competition was adjudged by the Commission to be worth preserving. That judgment was legitimately rested on relevant factors other than lesser cost of service. There is no provision in the statute making relative costs of rail and water carriers the sole and controlling consideration in establishing joint rates. Indeed, the statute makes no mention of such costs at all. We do not say that relative costs when properly supported by evidence are not a matter to be considered, but we cannot say that the absence of that factor is fatal. 26 With respect to appellants' argument that the inferior barge service cannot be given at a lower rate than the superior without a finding that the inferior costs less than the superior, we note further that even if rail costs were no more than barge costs it would not follow that barge rates must be as great or greater than the rail rates. The rail rates may be too high. From their arguments, it appears to be the purpose of the railroads to eliminate the differentials, and thus, competition, not by reducing the all-rail rates but by increasing the rail-barge rates. The observation of Judge Lindley for the District Court is pertinent: 'Of course, if the railroads were petitioning the Commission for a reduction in all-rail rates, proof of lower operating costs might well warrant such a reduction, but it is difficult to see how the lower costs of the railroads, if satisfactorily proven, would warrant an increase in the rates of a competitor.' 88 F.Supp. 982, at 987. 27 Second. It has been contended by appellants that without a finding or any evidence to support a finding that barge costs are lower than rail costs, there is no basis for the Commission's order other than the Commission's determination that its order is in accordance with general expressions of congressional policy. It is apparent from the Commission's report that it gave careful consideration to numerous expressions of congressional policy. See particularly, 270 I.C.C. at 609—613. This it was in duty bound to do. But it is also apparent, as we have already indicated, that the Commission gave careful consideration to other factors—factors such as the tremendous loss of traffic to the barge lines due to a loss of interchange traffic; the inferiority of the barge service; the shippers' testimony to the effect that they would not use barge service unless it were cheaper to do so; the compensatory character of the differentials adopted; the willingness of the barge lines to accept rates yielding low returns; as well as the fact that elimination of the differentials would curtail competition, and that this would negate support, financial and otherwise, which Congress had given Federal while it pioneered in the field of barge transportation. 28 Third. Appellants also contend that the prescription of differentials in this proceeding deprives them of their inherent advantages contrary to the National Transportation Policy.5 They point to I.C.C. v. Mechling, 330 U.S. 567, 67 S.Ct. 894, 91 L.Ed. 1102, as having established the principle that the lower costs of the barge carrier there involved was an inherent advantage, and that the Commission had no discretion to approve a rate structure which would reduce such advantage. They argue that the 'fair and impartial regulation' called for by the National Transportation Policy demands that the rule of the Mechling case be applied impartially to protect the 'inherent advantage' of the rail carriers here. 29 In the Mechling case, the Commission had fixed a rate for transportation of wheat east by rail from Chicago at a rate higher if it arrived in Chicago by barge than if by rail or lake. This was a plain case of discrimination. There were different rates provided for equal service without any showing that any additional service was rendered for the additional charge. Here the question is whether the barge lines may charge less than the railroads for the different service they render. There is no unlawful discrimination here as there was in the Mechling case. The differentials providing a lower rate for barge service do not constitute an 'unjust discrimination' by express proviso of § 305(c) of the Act. 54 Stat. 935, 49 U.S.C. § 905(c), 49 U.S.C.A. § 905(c). 30 The joint rail-barge rates prescribed neither ignore nor destroy the inherent advantage of rail traffic. The 'inherent advantage' of rail carriers shown here is superiority of service. The joint rail-barge rates do not fail to reflect this 'inherent advantage' for the same reason that a man who wishes to ride quickly and comfortably buys a Pullman ticket on a fast train instead of a coach seat on a 'milk run' train. No one would contend that fixing a lower price on the 'milk run' train seat fails to preserve the superior accommodations offered by a Pullman space. Each mode of transportation satisfies the needs and wants of some customers. It is for the customer to decide which mode satisfies his circumstances. 31 Fourth. As to the contention of appellants that the Commission's order is not supported by essential findings of fact, § 14(1) of the Interstate Commerce Act, 49 U.S.C. § 14(1), 49 U.S.C.A. § 14(1), does not require the Commission to make detailed findings of fact except in a case where damages are awarded. Manufacturers R. Co. v. United States, 246 U.S. 457, 487, 489—490, 38 S.Ct. 383, 391, 392, 62 L.Ed. 831. The statute requires the Commission only to file a written report, stating its conclusions, together with its decision and order. This the Commission did, and the essential basis of its judgment is sufficiently disclosed in its report. Of course § 14(1) does not relieve the Commission of the duty to make the 'basic' or 'quasijurisdictional' findings essential to the statutory validity of an order. State of Florida v. United States, 282 U.S. 194, 215, 51 S.Ct. 119, 125, 75 L.Ed. 291; United States v. Baltimore & O.R. Co., 293 U.S. 454, 464—465, 55 S.Ct. 268, 272 273, 79 L.Ed. 587. And the basic findings essential to the validity of a given order will vary with the statutory authority invoked and the context of the situation presented. E.g., United States v. Pierce Auto Lines, 327 U.S. 515, 66 S.Ct. 687, 90 L.Ed. 821; State of North Carolina v. United States, 325 U.S. 507, 65 S.Ct. 1260, 89 L.Ed. 1760; City of Yonkers v. United States, 320 U.S. 685, 64 S.Ct. 327, 88 L.Ed. 400; United States v. Carolina Carriers Corp., 315 U.S. 475, 62 S.Ct. 722, 86 L.Ed. 971. Here the Commission found, in conformity to the statute invoked, supra note 2, that the differentials prescribed are 'justified as reasonable' and 'necessary and desirable in the public interest.' And 'the report, read as a whole, sufficiently expresses the conclusion of the Commission, based upon supporting data * * *.' United States v. Louisiana, 290 U.S. 70, 80, 54 S.Ct. 28, 33, 78 L.Ed. 181. Enough has been 'put of record to enable us to perform the limited task which is ours.' Eastern-Central Ass'n v. United States, 321 U.S. 194, 212, 64 S.Ct. 499, 508, 88 L.Ed. 668. 32 Appellants in Nos. 46, 47, and 48 were permitted to intervene in the District Court as parties plaintiff. They represent various commercial interests allegedly affected adversely by the order of the Commission. The only points urged by these appellants not answered in No. 45 are that the order gives a preference to the port of New Orleans over certain ports of Georgia and Texas, in violation of the Interstate Commerce Act and of Art. I, § 9, cl. 6 of the Federal Constitution. 33 With respect to the constitutional argument, this Court in Louisiana Public Service Commission v. Texas & N.O.R. Co., 284 U.S. 125, 131, 52 S.Ct. 74, 76, 76 L.Ed. 201, stated: 'The clause of the Constitution invoked is: 'No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: Nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.' The specified limitations on the power of Congress were set to prevent preference as between States in respect of their ports or the entry and clearance of vessels. It does not forbid such discriminations as between ports. Congress, acting under the commerce clause, causes many things to be done that greatly benefit particular ports and which incidently result to the disadvantage of other ports in the same or neighboring States.' 34 And we are clear that whatever preference there is to New Orleans is the result of geography and not of any action of the Commission. 'The law does not attempt to equalize fortune, opportunities or abilities.' I.C.C. v. Diffenbaugh, 222 U.S. 42, 46, 32 S.Ct. 22, 24, 56 L.Ed. 83. 35 Affirmed. 36 Mr. Justice DOUGLAS, dissenting. 37 I agree that the differentials established under § 307(d) of the Act need not be measured by the difference in cost between rail and barge transportation. Barge costs as compared with rail costs are, however, a relevant factor for consideration by the Commission under § 307(f)1 when it determines what differentials are reasonable. When the Commission proceeds to fix differentials without knowing what the relative barge and rail costs are, it is to my mind experimenting as a legislative body might do, not performing the infinitely more exacting task of the rate expert. 38 The Commission practically concedes that in this case it adopts a different standard than the statutory one. It is admitted that on this record there can be no adequate findings on costs. The evidence for an earlier period (1933—1938) shows that the cost for joint rail-barge routing is greater than for direct all-rail-routing. The Commission refused to pursue the cost study into later years. The reason is apparent. One of the appellees is Inland Waterways Corp. which operates Federal Barge Lines. Inland is a federal corporation, 43 Stat. 360, 49 U.S.C. § 151, 49 U.S.C.A. § 151, and it and Federal are subsidized by Congress. It is that program that the Commission is seeking to promote here. That may be important and desirable. But the standards which guide the Commission are still found in § 307(f). Costs have some relevance to the problem of differentials as § 307(f) makes clear. Congress is entitled to disregard costs completely. But I do not think the Commission is. 1 Repealed by Transportation Act of 1940, 54 Stat. 898, 950, 49 U.S.C.A. § 153 note. 2 '(d) The Commission may, and it shall whenever deemed by it to be necessary or desirable in the public interest, after full hearing upon complaint or upon its own initiative without a complaint, establish through routes, joint classifications, and joint rates, fares, or charges, applicable to the transportation of passengers or property by common carriers by water, or by such carriers and carriers by railroad, or the maxima or minima, or maxima and minima, to be charged, and the divisions of such rates, fares, or charges as hereinafter provided, and the terms and conditions under which such through routes shall be operated. In the case of a through route, where one of the carriers is a common carrier by water, the Commission shall prescribe such reasonable differentials as it may find to be justified between all-rail rates and the joint rates in connection with such common carrier by water. * * *' 54 Stat. 898, 937, 49 U.S.C. § 907(d), 49 U.S.C.A. § 907(d). 3 Counsel for the United States and the Commission have so interpreted the order. Finding 1 of the Commission reads: 'We find that the amounts shown in appendix A and appendix B are justified as reasonable differentials to be deducted from the present first-class all-rail rates * * *.' (Emphasis supplied.) 270 I.C.C. at 619. The Commission's order, which incorporates the reports and findings by reference, requires the carriers to establish and thereafter to maintain and apply 'the joint rates prescribed in the said reports based upon the differentials found in the said reports to be justified.' (Emphasis supplied.) This appears to require maintenance of the joint rail-barge rates prescribed, not a fixed difference between all-rail rates, no matter what they may be, and joint rail-barge rates, and we therefore accept the interpretation of counsel for appellees. 4 Both the Commission and this Court have consistently rejected any thought that costs should be the controlling factor in rate making. E.g., State of New York v. United States, 331 U.S. 284, 331, 67 S.Ct. 1207, 1232, 91 L.Ed. 1492; Baltimore & O.R. Co. v. United States, 298 U.S. 349, 359, 56 S.Ct. 797, 803, 80 L.Ed. 1209; Louisiana Public Service Commission v. Texas & N.O.R. Co., 284 U.S. 125, 132, 52 S.Ct. 74, 76, 76 L.Ed. 201; Charges for Protective Service to Perishable Freight, 241 I.C.C. 503, 510—511; Proposed Lake Erie-Ohio River Canal, 235 I.C.C. 753, 761; Lighterage Cases, 203 I.C.C. 481, 510; West Coast Lumbermen's Assn. v. Akron, C. & Y.R. Co., 183 I.C.C. 191, 198—199; Baltimore Chamber of Commerce v. Ann Arbor R. Co., 159 I.C.C. 691, 696—697. 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 of 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. (1946 ed.), p. 5443, 49 U.S.C.A. note preceding section 1. 1 'In the exercise of its power to prescribe just and reasonable rates, fares, and charges of common carriers by water, and classifications, regulations, and practices relating thereto, the Commission shall give due consideration, among other factors, to the effect of rates upon the movement of traffic by the carrier or carriers for which the rates are prescribed; to the need, in the public interest, of adequate and efficient water transportation service at the lowest cost consistent with the furnishing of such service; and to the need of revenues sufficient to enable water carriers, under honest, economical, and efficient management, to provide such service.' 54 Stat. 938, 49 U.S.C.A. § 907(f).

89

340 U.S. 231 71 S.Ct. 240 95 L.Ed. 239 STANDARD OIL CO.v.FEDERAL TRADE COMMISSION. No. 1. Reargued Oct. 9, 1950. Decided Jan. 8, 1951. [Syllabus from pages 231-233 intentionally omitted] Mr. Howard Ellis, Detroit, Mich., for petitioner. Mr. James W. Cassedy, Washington, D.C., for respondent. Mr. Cyrus Austin, New York City, for Retail Gasoline Dealers Association of Michigan, Inc., et al. as amici curiae, by special leave of Court. Mr. William Simon, Chicago, Ill., for Empire State Petroleum Association, Inc., et al. as amici curiae, by special leave of Court. Mr. Justice BURTON delivered the opinion of the Court. 1 In this case the Federal Trade Commission challenged the right of the Standard Oil Company, under the Robinson-Patman Act,1 to sell gasoline to four comparatively large 'jobber' customers in Detroit at a less price per gallon than it sold like gasoline to many comparatively small service station customers in the same area. The company's defenses were that (1) the sales involved were not in interstate commerce and (2) its lower price to the jobbers was justified because made to retain them as customers and in good faith to meet an equally low price of a competitor.2 The Commission, with one member dissenting, ordered the company to cease and desist from making such a price differential. 43 F.T.C. 56. The Court of Appeals slightly modified the order and required its enforcement as modified. 173 F.2d 210. We granted certiorari on petition of the company because the case presents an important issue under the Robinson-Patman Act which has not been settled by this Court. 338 U.S. 865, 70 S.Ct. 140. The case was argued at our October Term, 1949, and reargued at this term. 339 U.S. 975, 70 S.Ct. 1018. 2 For the reasons hereinafter stated, we agree with the court below that the sales were made in interstate commerce but we agree with petitioner that, under the Act, the lower price to the jobbers was justified if it was made to retain each of them as a customer and in good faith to meet an equally low price of a competitor. 3 I. Facts. 4 Reserving for separate consideration the facts determining the issue of interstate commerce, the other material facts are summarized here on the basis of the Commission's findings. The sales described are those of Red Crown gasoline because those sales raise all of the material issues and constitute about 90% Of petitioner's sales in the Detroit area. 5 Since the effective date of the Robinson-Patman Act, June 19, 1936, petitioner has sold its Red Crown gasoline to its 'jobber' customers at its tank-car prices. Those prices have been 1 1/2$ per gallon less than its tank-wagon prices to service station customers for identical gasoline in the same area. In practice, the service stations have resold the gasoline at the prevailing retail service station prices.3 Each of petitioner's so-called 'jobber' customers has been free to resell its gasoline at retail or wholesale. Each, at some time, has resold some of its at retail. One now resells it only at retail. The others now resell it largely at wholesale. As to resale prices, two of the 'jobbers' have resold their gasoline only at the prevailing wholesale or retail rates. The other two, however, have reflected, in varying degrees, petitioner's reductions in the cost of the gasoline to them by reducing their resale prices of that gasoline below the prevailing rates. The effect of these reductions has thus reached competing retail service stations in part through retail stations operated by the 'jobbers' and in part through retail stations which purchased gasoline from the 'jobbers' at less than the prevailing tank-wagon prices. The Commission found that such reduced resale prices 'have resulted in injuring, destroying, and preventing competition between said favored dealers and retail dealers in respondent's (petitioner's) gasoline and other major brands of gasoline * * *.' 41 F.T.C. 263, 283. The distinctive characteristics of these 'jobbers' are that each (1) maintains sufficient bulk storage to take delivery of gasoline in tank-car quantities (of 8,000 to 12,000 gallons) rather than in tank-wagon quantities (of 700 to 800 gallons) as is customary for service stations; (2) owns and operates tank wagons and other facilities for delivery of gasoline to service stations; (3) has an established business sufficient to insure purchases of from one to two million gallons a year; and (4) has adequate credit responsibility.4 While the cost of petitioner's sales and deliveries of gasoline to each of these four 'jobbers' is no doubt less, per gallon, than the cost of its sales and deliveries of like gasoline to its service station customers in the same area, there is no finding that such difference accounts for the entire reduction in price made by petitioner to these 'jobbers,' and we proceed on the assumption that it does not entirely account for that difference. 6 Petitioner placed its reliance upon evidence offered to show that its lower price to each jobber was made in order to retain that jobber as a customer and in good faith to meet an equally low price offered by one or more competitors. The Commission, however, treated such evidence as not relevant. 7 II. The Sales Were Made in Interstate Commerce. 8 In order for the sales here involved to come under the Clayton Act, as amended by the Robinson-Patman Act, they must have been made in interstate commerce.5 The Commission and the court below agree that the sales were so made. 41 F.T.C. 263, 271, 7 Cir., 173 F.2d 210, 213-214. 9 Facts determining this were found by the Commission as follows: Petitioner is an Indiana corporation, whose principal office is in Chicago. Its gasoline is obtained from fields in Kansas, Oklahoma, Texas and Wyoming. Its refining plant is at Whiting, Indiana. It distributes its products in 14 middle western states, including Michigan. The gasoline sold by it in the Detroit, Michigan, area, and involved in this case, is carried for petitioner by tankers on the Great Lakes from Indiana to petitioner's marine terminal at River Rouge, Michigan. Enough gasoline is accumulated there during each navigation season so that a winter's supply is available from the terminal. The gasoline remains for varying periods at the terminal or in nearby bulk storage stations, and while there it is under the ownership of petitioner and en route from petitioner's refinery in Indiana to its market in Michigan. 'Although the gasoline was not brought to River Rouge pursuant to orders already taken, the demands of the Michigan territory were fairly constant, and the petitioner's customers' demands could be accurately estimated, so the flow of the stream of commerce kept surging from Whiting to Detroit.' 173 F.2d at pages 213-214. Gasoline delivered to customers in Detroit, upon individual orders for it, is taken from the gasoline at the terminal in interstate commerce en route for delivery in that area. Such sales are well within the jurisdictional requirements of the Act. Any other conclusion would fall short of the recognized purpose of the Robinson-Patman Act to reach the operations of large interstate businesses in competition with small local concerns. Such temporary storage of the gasoline as occurs within the Detroit area does not deprive the gasoline of its interstate character. Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735. Compare Walling v. Jacksonville Paper Co., 317 U.S. 564, 570, 63 S.Ct. 332, 336, 87 L.Ed. 460, with Atlantic Coast Line R. Co. v. Standard Oil Co., 275 U.S. 257, 268, 48 S.Ct. 107, 110, 72 L.Ed. 270.6 10 III. There Should Be a Finding as to Whether or Not Petitioner's Price Reduction Was Made in Good Faith to Meet a Lawful Equally Low Price of a Competitor. 11 Petitioner presented evidence tending to prove that its tank-car price was made to each 'jobber' in order to retain that 'jobber' as a customer and in good faith to meet a lawful and equally low price of a competitor. Petitioner sought to show that it succeeded in retaining these customers, although the tank-car price which it offered them merely approached or matched, and did not undercut, the lower prices offered them by several competitors of petitioner. The trial examiner made findings on the point7 but the Commission declined to do so, saying: 'Based on the record in this case the Commission concludes as a matter of law that it is not material whether the discriminations in price granted by the respondent to the said four dealers were made to meet equally low prices of competitors. The Commission further concludes as a matter of law that it is unnecessary for the Commission to determine whether the alleged competitive prices were in fact available or involved gasoline of like grade or quality or of equal public acceptance. Accordingly the Commission does not attempt to find the facts regarding those matters because, even though the lower prices in question may have been made by respondent in good faith to meet the lower prices of competitors, this does not constitute a defense in the face of affirmative proof that the effect of the discrimination was to injure, destroy and prevent competition with the retail stations operated by the said named dealers and with stations operated by their retailer-customers.' 41 F.T.C. 263, 281 282. 12 The Court below affirmed the Commission's position.8 13 There is no doubt that under the Clayton Act, before its amendment by the Robinson-Patman Act, this evidence would have been material and, if accepted, would have established a complete defense to the charge of unlawful discrimination. At that time the material provisions of § 2 were as follows: 'Sec. 2. That 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 * * * where the effect of such discrimination may be to substantially lessen competition or tend to create a monopoly in any line of commerce: Provided, That nothing herein contained shall prevent discrimination in price between purchasers of commodities on account of differences in the grade, quality, or quantity of the commodity sold, or that makes only due allowance for difference in the cost of selling or transportation, or discrimination in price in the same or different communities made in good faith to meet competition: And provided further, That nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transportations and not in restraint of trade.' (Emphasis added within the first proviso.) 38 Stat. 730—731, 15 U.S.C. (1934 ed.) § 13, 15 U.S.C.A. § 13. 14 The question before us, therefore, is whether the amendments made by the Robinson-Patman Act deprived those facts of their previously recognized effectiveness as a defense. The material provisions of § 2, as amended, are quoted below, showing in italics those clauses which bear upon the proviso before us. The modified provisions are distributed between the newly created subsections (a) and (b). These must be read together and in relation to the provisions they supersede. The original phrase 'That nothing herein contained shall prevent' is still used to introduce each of the defenses. The defense relating to the meeting of the price of a competitor appears only in subsection (b). There it is applied to discriminations in services or facilities as well as to discriminations in price, which alone are expressly condemned in subsection (a). In its opinion in the instant case, the Commission recognizes that it is an absolute defense to a change of price discrimination for a seller to prove, under § 2(a), that its price differential makes only due allowances for differences in cost or for price changes made in response to changing market conditions. 41 F.T.C. at 283. Each of these three defenses is introduced by the same phrase 'nothing * * * shall prevent', and all are embraced in the same word 'justification' in the first sentence of § 2(b). It is natural, therefore, to conclude that each of these defenses is entitled to the same effect, without regard to whether there also appears an affirmative showing of actual or potential injury to competition at the same or a lower level traceable to the price differential made by the seller. The Commission says, however, that the proviso in § 2(b) as to a seller meeting in good faith a lower competitive price is not an absolute defense if an injury to competition may result from such price reduction. We find no basis for such a distinction between the defenses in § 2(a) and (b). 15 The defense in subsection (b), now before us, is limited to a price reduction made to meet in good faith an equally low price of a competitor. It thus eliminates certain difficulties which arose under the original Clayton Act. For example, it omits reference to discriminations in price 'in the same or different communities * * *' and it thus restricts the proviso to price differentials occurring in actual competition. It also excludes reductions which undercut the 'lower price' of a competitor. None of these changes, however, cut into the actual core of the defense. That still consists of the provision that wherever a lawful lower price of a competitor threatens to deprive a seller of a customer, the seller, to retain that customer, may in good faith meet that lower price. Actual competition, at least in this elemental form, is thus preserved. 16 Subsections 2(a) and (b), as amended, are as follows: 17 'Sec. 2. (a) That 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 or 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: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered: * * * And provided further, That nothing herein contained shall prevent price changes from time to time * * * in response to changing conditions affecting the market for or the marketability of the goods concerned * * *. 18 '(b) Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of 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.' (Emphasis added in part.) 49 Stat. 1526, 15 U.S.C. § 13(a) and (b), 15 U.S.C.A. § 13(a, b). 19 This right of a seller, under § 2(b), to meet in good faith an equally low price of a competitor has been considered here before. Both in Corn Products Refining Co. v. Federal Trade Comm., 324 U.S. 726, 65 S.Ct. 961, 89 L.Ed. 1320, and in Federal Trade Comm. v. A. E. Staley Mfg. Co., 324 U.S. 746, 65 S.Ct. 971, 89 L.Ed. 1338, evidence in support of this defense was reviewed at length. There would have been no occasion thus to review it under the theory now contended for by the Commission. While this Court did not sustain the seller's defense in either case, it did unquestionably recognize the relevance of the evidence in support of that defense. The decision in each case was based upon the insufficiency of the seller's evidence to establish its defense, not upon the inadequacy of its defense as a matter of law.9 20 In the Corn Products case, supra, after recognizing that the seller had allowed differentials in price in favor of certain customers, this Court examined the evidence presented by the seller to show that such differentials were justified because made in good faith to meet equally low prices of a competitor. It then said: 'Examination of the testimony satisfies us, as it did the court below, that it was insufficient to sustain a finding that the lower prices allowed to favored customers were in fact made to meet competition. Hence petitioners failed to sustain the burden of showing that the price discriminations were granted for the purpose of meeting competition.' (Emphasis added.) 324 U.S. at page 741, 65 S.Ct. at page 968.10 21 In the Staley case, supra, most of the Court's opinion is devoted to the consideration of the evidence introduced in support of the seller's defense under § 2(b). The discussion proceeds upon the assumption, applicable here, that if a competitor's 'lower price' is a lawful individual price offered to any of the seller's customers, then the seller is protected, under § 2(b), in making a counteroffer provided the seller proves that its counteroffer is made to meet in good faith its competitor's equally low price. On the record in the Staley case, a majority of the Court of Appeals, in fact, declined to accept the findings of the Commission and decided in favor of the accused seller.11 This Court, on review, reversed that judgment but emphatically recognized the availability of the seller's defense under § 2(b) and the obligation of the Commission to make findings upon issues material to that defense. It said: 22 'Congress has left to the Commission the determination of fact in each case whether the person, charged with making discriminatory prices, acted in good faith to meet a competitor's equally low prices. The determination of this fact from the evidence is for the Commission. See Federal Trade Commission v. Pacific States Paper Trade Ass'n, 273 U.S. 52, 63, 47 S.Ct. 255, 258, 71 L.Ed. 534; Federal Trade Commission v. Algoma Lumber Co., 291 U.S. 67, 73, 54 S.Ct. 315, 318, 78 L.Ed. 655. In the present case, the Commission's finding that respondents' price discriminations were not made to meet a 'lower' price and consequently were not in good faith, is amply supported by the record, and we think the Court of Appeals erred in setting aside this portion of the Commission's order to cease and desist. 23 'In appraising the evidence, the Commission recognized that the statute does not place an impossible burden upon sellers, but it emphasized the good faith requirement of the statute, which places the burden of proving good faith on the seller, who has made the discriminatory prices. * * * 24 '* * * We agree with the Commission that the statute at least requires the seller, who has knowingly discriminated in price, to show the existence of facts which would lead a reasonable and prudent person to believe that the granting of a lower price would in fact meet the equally low price of a competitor. Nor was the Commission wrong in holding that respondents failed to meet this burden.' 324 U.S. at pages 758, 759-760, 65 S.Ct. at page 976. 25 See also, Federal Trade Comm. v. Cement Institute, 333 U.S. 683, 721-726, 68 S.Ct. 793, 813-815, 92 L.Ed. 1009; Federal Trade Comm. v. Morton Salt Co., 334 U.S. 37, 43, 68 S.Ct. 822, 92 L.Ed. 1196; and United States v. United States Gypsum Co., 340 U.S. 76, 92, 71 S.Ct. 160. All that petitioner asks in the instant case is that its evidence be considered and that findings be made by the Commission as to the sufficiency of that evidence to support petitioner's defense under § 2(b). 26 In addition, there has been widespread understanding that, under the Robinson-Patman Act, it is a complete defense to a charge of price discrimination for the seller to show that its price differential has been made in good faith to meet a lawful and equally low price of a competitor. This understanding is reflected in actions and statements of members and counsel of the Federal Trade Commission.12 Representatives of the Department of Justice have testified to the effectiveness and value of the defense under the Robinson-Patman Act.13 We see no reason to depart now from that interpretation.14 27 The heart of our national economic policy long has been faith in the value of competition. In the Sherman and Clayton Acts, as well as in the Robinson-Patman Act, 'Congress was dealing with competition, which it sought to protect, and monopoly, which it sought to prevent.' A. E. Staley Mfg. Co. v. Federal Trade Comm., 7 Cir., 135 F.2d 453, 455. We need not now reconcile, in its entirety, the economic theory which underlies the Robinson-Patman Act with that of the Sherman and Clayton Acts.15 28 It is enough to say that Congress did not seek by the Robinson-Patman Act either to abolish competition or so radically to curtail it that a seller would have no substantial right of self-defense against a price raid by a competitor. For example, if a large customer requests his seller to meet a temptingly lower price offered to him by one of his seller's competitors, the seller may well find it essential, as a matter of business survival, to meet that price rather than to lose the customer. It might be that this customer is the seller's only available market for the major portion of the seller's product, and that the loss of this customer would result in forcing a much higher unit cost and higher sales price upon the seller's other customers. There is nothing to show a congressional purpose, in such a situation, to compel the seller to choose only between ruinously cutting its prices to all its customers to match the price offered to one, or refusing to meet the competition and then ruinously raising its prices to its remaining customers to cover increased unit costs. There is, on the other hand, plain language and established practice which permits a seller, through § 2(b), to retain a customer by realistically meeting in good faith the price offered to that customer, without necessarily changing the seller's price to its other customers. 29 In a case where a seller sustains the burden of proof placed upon it to establish its defense under § 2(b), we find no reason to destroy that defense indirectly, merely because it also appears that the beneficiaries of the seller's price reductions may derive a competitive advantage from them or may, in a natural course of events, reduce their own resale prices to their customers. It must have been obvious to Congress that any price reduction to any dealer may always affect competition at that dealer's level as well as at the dealer's resale level, whether or not the reduction to the dealer is discriminatory. Likewise, it must have been obvious to Congress that any price reductions initiated by a seller's competitor would, if not met by the seller, affect competition at the beneficiary's level or among the beneficiary's customers just as much as if those reductions had been met by the seller. The proviso in § 2(b), as interpreted by the Commission, would not be available when there was or might be an injury to competition at a resale level. So interpreted, the proviso would have such little, if any, applicability as to be practically meaningless. We may, therefore, conclude that 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. 30 In its argument here, the Commission suggests that there may be some situations in which it might recognize the proviso in § 2(b) as a complete defense, even though the seller's differential in price did injure competition. In support of this, the Commission indicates that in each case it must weigh the potentially injurious effect of a seller's price reduction upon competition at all lower levels against its beneficial effect in permitting the seller to meet competition at its own level. In the absence of more explicit requirements and more specific standards of comparison than we have here, it is difficult to see how an injury to competition at a level below that of the seller can thus be balanced fairly against a justification for meeting the competition at the seller's level. We hesitate to accept § 2(b) as establishing such a dubious defense. On the other hand, the proviso is readily understandable as simply continuing in effect a defense which is equally absolute, but more limited in scope than that which existed under § 2 of the original Clayton Act. 31 The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded to that court with instructions to remand it to the Federal Trade Commission to make findings in conformity with this opinion. It is so ordered. 32 Reversed and remanded. 33 Mr. Justice MINTON took no part in the consideration or decision of this case. 34 Mr. Justice REED, dissenting. 35 The Federal Trade Commission investigated practices of the Standard Oil Company of Indiana in selling its gasoline in the Detroit area at different prices to competing local distributors, in alleged violation of the Robinson-Patman (anti-price discrimination) Act. Standard's defense is not a denial of that discriminatory practice but a complete justification, said to be allowed by the Robinson-Patman Act, on the ground of trade necessity in order to meet an equally low price in Detroit of other gasoline refiners. On concluding that the practice violated federal prohibitions against discriminatory sale prices, the Commission entered a cease and desist order against Standard's sale system. The order was enforced by the Court of Appeals after a minor modification. 43 F.T.C. 56; 173 F.2d 210. 36 The need to allow sellers to meet competition in price from other sellers while protecting the competitors of the buyers against the buyers' advantages gained from the price discrimination was a major cause of the enactment of the 1936 Robinson-Patman Act. The Clayton Act of 1914 had failed to solve the problem. The impossibility of drafting fixed words of a statute so as to allow sufficient flexibility to meet the myriad situations of national commerce, we think led Congress in the Robinson-Patman Act to put authority in the Federal Trade Commission to determine when a seller's discriminatory sales price violated the prohibitions of the anti-monopoly statute, § 2(a), 49 Stat. 1526, and when it was justified by a competitor's legal price.1 The disadvantage to business of this choice was that the seller could not be positive before the Commission acted as to precisely how far he might go in price discrimination to meet and beat his competition. The Commission acted on its interpretation of the Act.2 Believing it important to support the purpose of Congress and the Commission's interpretation of the Act, with which we agree, we state our reasons. 37 The Court first condemns the Commission's position that meeting in good faith a competitor's price merely rebuts the prima facie establishment of discrimination based on forbidden differences in sales price, so as to require an affirmative finding by the Commission that nevertheless there may be enjoinable injury under the Robinson-Patman Act to the favored buyer's competitors. The Court then decides that good faith in meeting competition was an absolute defense for price discrimination, saying, 340 U.S. 253, 71 S.Ct. 250: 'On the other hand, the proviso is readily understandable as simply continuing in effect a defense which is equally absolute, but more limited in scope than that which existed under § 2 of the original Clayton Act.' 38 Such a conclusion seems erroneous. What follows in this dissent demonstrates, we think, that Congress intended so to amend the Clayton Act that the avenue of escape given price discriminators by its 'meeting competition' clause should be narrowed. The Court's interpretation leaves what the seller can do almost as wide open as before. See 340 U.S. 263, 71 S.Ct. 256, et seq., infra. It seems clear to us that the interpretation put upon the clause of the Robinson-Patman Act by the Court means that no real change has been brought about by the amendment. 39 The public policy of the United States fosters the free-enterprise system of unfettered competition among producers and distributors of goods as the accepted method to put those goods into the hands of all consumers at the least expense.3 There are, however, statutory exceptions to such unlimited competition.4 Nondiscriminatory pricing tends to weaken competition in that a seller, while otherwise maintaining his prices, cannot meet his antagonist's price to get a single order or customer. But Congress obviously concluded that the greater advantage would accrue by fostering equal access to supplies by competing merchants or other purchasers in the course of business.5 40 The first enactment to put limits on discriminatory selling prices was the Clayton Act in 1914, 38 Stat. 730, § 2. Section 11 enabled the Commission to use its investigatory and regulatory authority to handle price discrimination. Section 2 provided for the maintenance of competition by protecting the ability of business rivals to obtain commodities on equal terms. The Robinson-Patman Act moved further toward this objective. In the margin appear the applicable words of the Clayton Act followed by those of the Robinson-Patman Act. Phrased summarily for this case, it may be said that the italicized words in the Clayton Act were the source of the difficulties in enforcement that Congress undertook to avoid by the italicized words of the Robinson-Patman Act.6 41 It will be noted that unless the effect is given the Robinson-Patman amendment contended for by the Federal Trade Commission, there is little done to overcome the difficulties arising from the 'meeting competition' clause of the Clayton Act. Formerly 'discrimination in price in the same or different communities made in good faith to meet competition' was allowed as a complete defense. Now it is 'made in good faith to meet an equally low price of a competitor'. The Court says, 340 U.S. 241, 71 S.Ct. 245: 'It thus eliminates certain difficulties which arose under the original Clayton Act. For example, it omits reference to discriminations in price 'in the same or different communities * * *' and it thus restricts the proviso to price differentials occurring in actual competition. It also excludes reductions which undercut the 'lower price' of a competitor. None of these changes, however, cut into the actual core of the defense. That still consists of the provision that wherever a lawful lower price of a competitor threatens to deprive a seller of a customer, the seller, to retain that customer, may in good faith meet that lower price.' 42 We see little difference. The seller may still, under the Court's interpretation, discriminate in sales of goods of like quantity and quality between buyers on opposite corners, so long as one gets a lower delivered price offer from another seller, no matter where located. The 'actual core of the defense' remains intact. I. 43 Legislative History. Upon the interpretation of the words and purpose of this last addition by the Robinson-Patman Act to curbs on discrimination in trade, the narrow statutory issues in this case turn. Though narrow, they are important if trade is to have the benefit of careful investigation before regulation, attainable under the Federal Trade Commission Act but so difficult when attempted by prosecutions in courts with the limitations of judicial procedure. As an aid to the interpretation of § 2(b), we set out applicable parts of its legislative history. 44 The Clayton Act created a broad exception from control for prices made in good faith to meet competition. This raised problems of which Congress was aware. In reporting on a redrafted version of S. 3154, the Senate's companion bill to the House bill that became the Robinson-Patman Act, the Senate Committee on the Judiciary, February 3, 1936, pointed out the weakness of § 2 of the Clayton Act in permitting discrimination to meet competition, and suggested a harsh remedy, the elimination of its italicized proviso in note 6 supra, without the mollifying words of § 2(b) of the Robinson-Patman Act.7 In March, the House Committee on the Judiciary made its report on the bill that became the Act. Section 2(b) was then in substantially its present form. The report pointed out the draftsmen's purpose to strengthen the laws against price discrimination, directly or indirectly through brokerage or other allowances, services or absorptions of costs.8 It commented that the subsection that became s 2(b) let a seller 'meet the price actually previously offered by a local competitor.'9 The language used in regard to competition in the bills and in the Act seems to have been based on a recommendation of the Federal Trade Commission.10 The Commission had been unable to restore the desired competition under the Clayton Act, and Congress evidently sought to open the way for effective action.11 45 Events in the course of the proposed legislation in the Senate and House have pertinence. The Senate inserted the original ineffective language of the Clayton Act in its exact form in the Senate bill. In the same draft it adopted an amendment similar to the proviso ultimately enacted. 80 Cong.Rec. 6426, 6435. In the House, Representative Patman explained his view of the dangers in the original proviso.12 It was taken out in Conference.13 The Chairman of the House managers, Mr. Utterback, before the Conference Report was agreed to by the House, received permission to print an explanation of his understanding of the proviso. He explained that the proviso 'does not set up the meeting of competition as an absolute bar to a charge of discrimination under the bill. It merely permits it to be shown in evidence. * * * It leaves it a question of fact to be determined in each case, whether the competition to be met was such as to justify the discrimination given, * * *.' The pertinent parts of the statement appear in the margin.14 II. 46 Statutory Interpretation. This re sume of the origin and purpose of the original § 2 of the Clayton Act and the amendments of the Robinson-Patman Act gives a basis for determining the effect of this section in a hearing before the Commission where the charge, as here, that a seller during the same period of time has sold the same commodities to various purchasers at different prices, is admitted, and the defense, the elements of which are likewise admitted, is that the discrimination was made in good faith to meet an equally low price of a competitor. Does meeting in good faith a competitor's price constitute a complete defense under the proviso to § 2(b)? Or does the fact of good faith reduction in price to a purchaser to meet a competitor's price merely rebut the prima facie establishment of discrimination, arising under the statute from proof of forbidden differences in price,15 so as to require under § 2(a) affirmative finding by the Commission that there may be injury to competition? Petitioner asserts that good faith meeting of a competitor's price is a complete defense. The Commission and the Court of Appeals take the opposite position, with which we concur. 47 This is our reason. The statutory development and the information before Congress concerning the need for strengthening the competitive price provision of the Clayton Act, make clear that the evil dealt with by the proviso of § 2(b) was the easy avoidance of the prohibition against price discrimination. The control of that evil was an important objective of the Robinson-Patman Act. The debates, the Commission's report and recommendation, and statutory changes show this. The Conference Report and the explanation by one of the managers, Mr. Utterback, are quite definitive upon the point. Because of experience under the Clayton Act, Congress refused to continue its competitive price proviso. Yet adoption of petitioner's position would permit a seller of nationally distributed goods to discriminate in favor of large chain retailers, for the seller could give to the large retailer a price lower than that charged to small retailers, and could then completely justify its discrimination by showing that the large retailer had first obtained the same low price from a local low-cost producer of competitive goods. This is the very type of competition that Congress sought to remedy. To permit this would not seem consonant with the other provisions of the Robinson-Patman Act, strengthening regulatory powers of the Commission is 'quantity' sales, special allowances and changing economic conditions. 48 The structure and wording of the Robinson-Patman Amendment to the Clayton Act also conduce to our conclusion. In the original Clayton Act, § 2 was not divided into subsections. In that statute, § 2 stated the body of the substantive offense, and the listed, in a series of provisos, various circumstances under which discriminations in price were permissible. Thus the statute provided that discriminations were not illegal if made on account of differences in the grade of the commodity sold, or differences in selling or transportation costs. Listed among these absolute justifications of the Clayton Act appeared the provision that 'nothing herein contained shall prevent discrimination in price * * * made in good faith to meet competition'. The Robinson-Patman Act, however, made two changes in respect of the 'meeting competition' provision, one as to its location, the other in the phrasing. Unlike the original statute, § 2 of the Robinson-Patman Act is divided into two subsections. The first, § 2(a), retained the statement of substantive offense and the series of provisos treated by the Commission as affording full justifications for price discriminations; § 2(b) was created to deal with procedural problems in Federal Trade Commission proceedings, specifically to treat the question of burden of proof. In the process of this division, the 'meeting competition' provision was separated from the other provisos, set off from the substantive provisions of § 2(a), and relegated to the position of a proviso to the procedural subsection, § 2(b). Unless it is believed that this change of position was fortuitous, it can be inferred that Congress meant to curtail the defense of meeting competition when it banished this proviso from the substantive division to the procedural. In the same way, the language changes made by § 2(b) of the Robinson-Patman Act reflect an intent to diminish the effectiveness of the sweeping defense offered by the Clayton Act's 'meeting of competition' proviso. The original provisos in the Clayton Act, and the provisos now appearing in § 2(a), are worded to make it clear that nothing shall prevent certain price practices, such as price 'differentials (making) * * * due allowance for differences in the cost of manufacture * * *,' or 'price changes * * * in response to changing conditions affecting the market for * * * the goods concerned * * *.' But in contrast to these provisions, the proviso to § 2(b) does not provide that nothing 'shall prevent' a certain price practice; it provides only that 'nothing * * * shall prevent a seller rebutting (a) * * * prima facie case * * * by showing' a certain price practice—meeting a competitive price. The language thus shifts the focus of the proviso from a matter of substantive defense to a matter of proof. Consistent with each other, these modifications made by the Robinson-Patman Act are also consistent with the intent of Congress expressed in the legislative history. 49 The Court suggests that former Federal Trade Commission cases decided here have treated the meeting competition clause of the Robinson-Patman Act as being an absolute defense, not merely a rebuttal of the discrimination charge requiring further finding by the Commission. Reference is made to Corn Products Refining Co. v. Federal Trade Comm., 324 U.S. 726, 65 S.Ct. 961, 89 L.Ed. 1320 and Federal Trade Comm., v. A. E. Staley Mfg. Co., 324 U.S. 746, 65 S.Ct. 971, 89 L.Ed. 1338. In the Corn Products case, dealing with a basing point scheme for delivered prices, this Court merely said, 324 U.S. at page 741, 65 S.Ct. at page 968: 50 'The only evidence said to rebut the prima facie case made by proof of the price discriminations was given by witnesses who had no personal knowledge of the transactions, and was limited to statements of each witness' assumption or conclusion that the price discriminations were justified by competition.' 51 And then went on to use the language quoted, 340 U.S. 244, 71 S.Ct. at page 246 of the Court's opinion. There was no occasion to consider the effect of a successful rebuttal. As authority for its statement, we there cited the Staley case at 324 U.S. 746, 65 S.Ct. 971, 89 L.Ed. 1138. 52 That citation included these words, 324 U.S. at pages 752 753, 65 S.Ct. at page 974: 'Prior to the Robinson-Patman amendments, § 2 of the Clayton Act provided that nothing contained in it 'shall prevent' discriminations in price 'made in good faith to meet competition.' The change in language of this exception was for the purpose of making the defense a matter of evidence in each case, raising a question of fact as to whether the competition justified the discrimination. See the Conference Report, H. Rep. No. 2951, 74th Cong., 2d Sess., pp. 6—7; see also the statement of Representative Utterbach (sic), the Chairman of the House Conference Committee, 80 Cong.Rec. 9418.' 53 After that statement, which it should be noted relies upon Mr. Utterback's interpretation quoted at note 14 of this opinion, the Court in the Staley case goes on to say that there was no evidence to show that Staley adopted a lower price to meet an equally low price of a competitor. Again there was no occasion for this Court to meet the present issue. We think our citation in Staley, quoted above, shows the then position of this Court.16 54 There are arguments available to support the contrary position. No definite statement appears in the committee reports that 'meeting competition' is henceforth to be only a rebuttal of a prima facie case and not a full justification for discrimination in price. The proviso of § 2(b) can be read as having the same substantive effect as the provisos of § 2(a). The earlier provisos are treated by the Commission as complete defenses. Perhaps there is an implication favorable to the petitioner's position in Representative Patman's omission to state the Federal Trade Commission interpretation on the floor. See n. 12, supra. 55 The underlying congressional purpose to curtail methods of avoiding limitations on price discriminations, however, considered with the more specific matters discussed herein, satisfies us that we should adopt the conclusion of the Commission and the Court of Appeals.17 We believe that good faith meeting of a competitor's price only rebuts the prima facie case of violation established by showing the price discrimination. Whether the proven price discrimination is of a character that violates § 2(a) then becomes a matter for the determination of the Commission on a showing that there may be injury to competition. III. 56 Conclusion. In view of the Court's ruling, we will not enlarge this dissent by discussing other problems raised by the case. We have said enough to show that we would affirm the decree below in principle, even though we should conclude some amendment might be required in the wording of the order. 57 The CHIEF JUSTICE and Mr. Justice BLACK join in this dissent. 1 Specifically under § 2 of the Clayton Act, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13, 15 U.S.C.A. § 13. For the material text of § 2(a) and (b) see 340 U.S. 242—243, 71 S.Ct. at page 246, infra. 2 The company contended before the Commission that the price differential allowed by it to the jobbers made only due allowance for differences in the cost of sale and delivery of gasoline to them. It did not, however, pursue this defense in the court below and does not do so here. 3 About 150 of these stations are owned or leased by the customers independently of petitioner. Their operators buy all of their gasoline from petitioner under short-term agreements. The other 208 stations are leased or subleased from petitioner for short terms. 4 Not denying the established industry practice of recognizing such dealers as a distinctive group for operational convenience, the Commission held that petitioner's classification of these four dealers as 'jobbers' was arbitrary because it made 'no requirement that said jobbers should sell only at wholesale.' 41 F.T.C. at 273. We use the term 'jobber' in this opinion merely as one of convenience and identification, because the result here is the same whether these four dealers are wholesalers or retailers. 5 Section 2(a) of the Clayton Act, as amended, relates only to persons 'engaged in commerce, in the course of such commerce * * * where either or any of the purchases involved * * * are in commerce * * *.' 49 Stat. 1526, 15 U.S.C. § 13(a), 15 U.S.C.A. § 13(a). 'Commerce' is defined in § 1 of the Clayton Act as including 'trade or commerce among the several States * * *.' 38 Stat. 730, 15 U.S.C. § 12, 15 U.S.C.A. § 12. 6 The Fair Labor Standards Act cases relied on by petitioner are not inconsistent with this result. They hold that, for the purposes of that statute, interstate commerce ceased on delivery to a local distributor. Higgins v. Carr Bros. Co., 317 U.S. 572, 63 S.Ct. 337, 87 L.Ed. 468; Walling v. Jacksonville Paper Co., supra. The sales involved here, on the other hand, are those of an interstate producer and refiner to a local distributor. 7 The trial examiner concluded: 'The recognition by respondent (petitioner) of Ned's Auto Supply Company as a jobber or wholesaler (which carried with it the tank-car price for gasoline), was a forced recognition given to retain that company's business. Ned's Company at the time of recognition, and ever since, has possessed all qualifications required by respondent (petitioner) for recognition as a jobber and the recognition was given and has ever since been continued in transactions between the parties, believed by them to be bona fide in all respects * * *.' (Conclusion of Fact 2, under § IX, R. 5098 5099.) 'The differentials on its branded gasolines respondent (petitioner) granted Ned's Auto Supply Company, at all times subsequent to March 7, 1938, and Stikeman man Oil Company, Citrin-Kolb Oil Company and the Wayne Company (the four jobbers), at all times subsequent to June 19, 1936, were granted to meet equally low prices offered by competitors on branded gasolines of comparable grade and quality.' (Conclusion of Fact, under § X, R. 5104.) 8 'Now as to the contention that the discriminatory prices here complained of were made in good faith to meet a lower price of a competitor. While the Commission made no finding on this point, it assumed its existence but held, contrary to the petitioner's contention, that this was not a defense. 'We agree with the Commission that the showing of the petitioner that it made the discriminatory price in good faith to meet competition is not controlling in view of the very substantial evidence that its discrimination was used to affect and lessen competition at the retail level.' 173 F.2d at pages 214, 217. 9 In contrast to that factual situation, the trial examiner for the Commission in the instant case has found the necessary facts to sustain the seller's defense (see note 7, supra), and yet the Commission refuses, as a matter of law, to give them consideration. 10 In the Corn Products case, the same point of view was expressed by the Court of Appeals below: 'We think the evidence is insufficient to sustain this affirmative defence.' 7 Cir., 144 F.2d 211, 217. The Court of Appeals also indicated that, to sustain this defense, it must appear not only that the competitor's lower price was met in good faith but that such price was lawful. 11 The Staley case was twice before the Court of Appeals for the Seventh Circuit. In 1943 the case was remanded by that court to the Commission for findings as to wherein the discriminations occurred and how they substantially lessened competition and promoted monopoly and also 'for consideration of the defense (under § 2(b)) urged by the petitioners, and for findings in relation thereto.' 135 F.2d 453, 456. In 1944, a majority of the court decided in favor of the seller. 144 F.2d 221. One judge held that the complaint was insufficient under § 2(a) and that, therefore, he need not reach the seller's defense under § 2(b). He expressly stated, however, that he did not take issue with the basis for the conclusion that the seller's price was made in good faith to meet an equally low price of a competitor. Id., at pages 227—231. His colleague held squarely that the seller's defense of meeting competition in good faith under § 2(b) had been established. Id., at pages 221—225. The third judge found against the seller both under § 2(a) and (b). Id., at pages 225—227. The important point for us is that the Court of Appeals, as well as this Court, unanimously recognized in that case the materiality of the seller's evidence in support of its defense under § 2(b), even though the 'discriminations 'have resulted, and do result, in substantial injury to competition among purchasers * * *." Id., at page 222. 12 In cease and desist orders, issued both before and after the order in the instant case, the Commission has inserted saving clauses which recognize the propriety of a seller making a price reduction in good faith to meet an equally low price of a competitor, even though the seller's discrimination may have the effect of injuring competition at a lower level. See In re Ferro-Enamel Corp., 42 F.T.C. 36; In re Anheuser-Busch, Inc., 31 F.T.C. 986; In re Bausch & Lomb Optical Co., 28 F.T.C. 186. See also, the statement filed by Walter B. Wooden, Assistant Chief Counsel, and by Hugh E. White, Examiner for the Commission, with the Temporary National Economic Committee in 1941: 'The amended Act now safeguards the right of a seller to discriminate in price in good faith to meet an equally low price of a competitor, but he has the burden of proof on that question. This right is guaranteed by statute, and could not be curtailed by any mandate or order of the Commission. * * * The right of self defense against competitive price attacks is as vital in a competitive economy as the right of self defense against personal attack.' The Basing Point Problem 139 (TNEC Monograph 42, 1941). In regard to the Commission's position on § 2(b), urged in the instant case, Allen C. Phelps, Assistant Chief Trial Counsel and Chief of the Export Trade Division of the Commission, testified before the Subcommittee on Trade Policies of the Senate Committee on Interstate and Foreign Commerce in January, 1949, that 'This position, if upheld in the courts, in my judgment will effectively and completely erase section 2(b) from the Robinson-Patman Act.' Hearings before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce on S. 236, 81st Cong., 1st Sess. 66. See also, pp. 274—275. 13 Herbert A. Bergson, then Assistant Attorney General, testifying for the Department, January 25, 1949, said: 'The secton (2(b)) presently permits sellers to justify otherwise forbidden price discriminations on the ground that the lower prices to one set of buyers were made in good faith to meet the equally low prices of a competitor.' Hearings before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce on S. 236, 81st Cong., 1st Sess. 77. See also, report on S. 236 by Peyton Ford, The Assistant to the Attorney General, to the Senate Committee on Interstate and Foreign Commerce. Id., at 320. Mr. Bergson added the following in June, 1949: 'While we recognize the competitive problem which arises when one purchaser obtains advantages denied to other purchasers, we do not believe the solution to this problem lies in denying to sellers the opportunity to make sales in good faith competition with other sellers.' Hearings before Subcommittee No. 1 of the House Committee on the Judiciary on S. 1008, 81st Cong., 1st Sess. 12. 14 Attention has been directed again to the legislative history of the proviso. This was considered in the Corn Products and Staley cases. See especially, 324 U.S. at pages 752—753, 65 S.Ct. at page 974. We find that the legislative history, at best, is inconclusive. It indicates that it was the purpose of Congress to limit, but not to abolish, the essence of the defense recognized as absolute in § 2 of the original Clayton Act, 38 Stat. 730, where a seller's reduction in price had been made 'in good faith to meet competition * * *.' For example, the legislative history recognizes that the Robinson-Patman Act limits that defense to price differentials that do not undercut the competitor's price, and the amendments fail to protect differentials between prices in different communities where those prices are not actually competitive. There is also a suggestion in the debates, as well as in the remarks of this Court in the Staley case, supra, that a competitor's lower price, which may be met by a seller under the protection of § 2(b), must be a lawful price. And see, S.Res. 224, 70th Cong., 1st Sess., directing the Federal Trade Commission to investigate and report to it on chain-store operators and F.T.C. Final Report on the Chain-Store Investigation, S.Doc. No. 4, 74th Cong., 1st Sess. In the report of the Judiciary Committee of the House of Representatives, which drafted the clause which became § 2(b), there appears the following explanation of it: 'This proviso represents a contraction of an exemption now contained in section 2 of the Clayton Act which permits discriminations without limit where made in good faith to meet competition. It should be noted that while the seller is permitted to meet local competition, it does not permit him to cut local prices until his competitor has first offered lower prices, and then he can go no further than to meet those prices. If he goes further, he must do so likewise with all his other customers, or make himself liable to all of the penalties of the act, including treble damages. In other words the proviso permits the seller to meet the price actually previously offered by a local competitor. It permits him to go no further.' H.R.Rep.No.2287, 74th Cong., 2d Sess. 16. See also, 80 Cong.Rec. 6426, 6431—6436, 8229, 8235. Somewhat changing this emphasis, there was a statement made by the managers on the part of the House of Representatives, accompanying the conference report, which said that the new clause was a 'provision relating to the question of meeting competition, intended to operate only as a rule of evidence in a proceeding before the Federal Trade Commission * * *.' H.R.Rep.No.2951, 74th Cong., 2d Sess. 7. The Chairman of the House Conferees also received permission to print in the Record an explanation of the proviso. 80 Cong.Rec. 9418. This explanation emphasizes the same interpretation as that put on the proviso in the Staley case to the effect that the lower price which lawfully may be met by a seller must be a lawful price. That statement, however, neither justifies disregarding the proviso nor failing to make findings of fact where evidence is offered that the prices met by the seller are lawful prices and that the meeting of them is in good faith. 15 It has been suggested that, in theory, the Robinson-Patman Act, 15 U.S.C.A. §§ 13, 13a, 13b, 21a, as a whole is inconsistent with the Sherman and Clayton Acts, 15 U.S.C.A. §§ 1—7, 15 note, 12 et seq. See Adelman, Effective Competition and the Antitrust Laws, 61 Harv.L.Rev. 1289, 1327—1350; Burns, The Anti-Trust Laws and the Regulation of Price Competition, 4 Law & Contemp.Prob. 301; Learned & Isaacs, The Robinson-Patman Law: Some Assumptions and Expectations, 15 Harv.Bus.Rev. 137; McAllister, Price Control by Law in the United States: A Survey, 4 Law & Contemp.Prob. 273. 1 The difficulties of any other approach are illustrated by the attempt of Congress to clarify the Robinson-Patman Act. See President's veto message on S. 1008, 96 Cong.Rec. 8721, and conference reports, H.R.Rep.No.1422, 81st Cong., 1st Sess., October 13, 1949, and 2d Sess., H.R.Rep.No. 1730, March 3, 1950. 2 Hearings before Subcommittee No. 1 of the House Committee on the Judiciary on S. 1008, 81st Cong., 1st Sess., June 8 and 14, 1949, p. 61. 3 Associated Press v. United States, 326 U.S. 1, 13, 65 S.Ct. 1416, 1421, 89 L.Ed. 2013; United States v. Line Material Co., 333 U.S. 287, 309, 68 S.Ct. 550, 561, 92 L.Ed. 701. 4 E.g., Interstate Commerce Act, § 5, 49 U.S.C. § 5, 49 U.S.C.A. § 5; Communications Act of 1934, § 221, 47 U.S.C. § 221, 47 U.S.C.A. § 221; Miller-Tydings Act, 15 U.S.C. § 1, 15 U.S.C.A. § 1. And see Mason, The Current Status of the Monopoly Problem in the United States, 62 Harv.L.Rev. 1265. 5 For a discussion of the merits of the legislation, see Adelman, Effective Competition and the Anti-Trust Laws, 61 Harv.L.Rev. 1289. 6 Clayton Act: 'Sec. 2. That it shall be unlawful for any person engaged in commerce * * * to discriminate in price between different purchasers of commodities, * * * where the effect of such discrimination may be to substantially lessen competition or tend to create a monopoly in any line of commerce: Provided, That nothing herein contained shall prevent * * * discrimination in price in the same or different communities made in good faith to meet competition: * * *.' Robinson-Patman Act: 'Sec. 2. (a) That it shall be unlawful for any person engaged in commerce, * * * to discriminate in price between different purchasers of commodities * * * where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: * * *. '(Sec. 2.) (b) Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of 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.' 7 S.Rep.No.1502, 74th Cong., 2d Sess., p. 4: 'The weakness of present section 2 lies principally in the fact that: (1) It places no limit upon differentials permissible on account of differences in quantity; and (2) it permits discriminations to meet competition, and thus tends to substitute the remedies of retaliation for those of law, with destructive consequences to the central object of the bill. Liberty to meet competition which can be met only by price cuts at the expense of customers elsewhere, is in its unmasked effect the liberty to destroy competition by selling locally below cost, a weapon progressively the more destructive in the hands of the more powerful, and most deadly to the competitor of limited resources, whatever his merit and efficiency. While the bill as now reported closes these dangerous loopholes, it leaves the fields of competition free and open to the most efficient, and thus in fact protects them the more securely against inundations of mere power and size. 'Specific phrases of section 2(a), as now reported, may be noted as follows: 'One: '* * * where either or any of the purchases involved in such discrimination are in commerce * * *.' 'Section 2(a) attaches to competitive relations between a given seller and his several customers, and this clause is designed to extend its scope to discriminations between interstate and intrastate customers, as well as between those purely interstate. Discriminations in excess of sound economic differences involve generally an element of loss, whether only of the necessary minimum of profits or of actual costs, that must be recouped from the business of customers not granted them. When granted by a given seller to his customers in other States, and denied to those within the State, they involve the use of that interstate commerce to the burden and injury of the latter. When granted to those within the State and denied to those beyond, they involve conversely a directly resulting burden upon interstate commerce with the latter. Both are within the proper and well-recognized power of Congress to suppress.' 8 H.R.Rep.No.2287, 74th Cong., 2d Sess., p. 3: 'The purpose of this proposed legislation is to restore, so far as possible. equality of opportunity in business by strengthening anti-trust laws and by protecting trade and commerce against unfair trade practices and unlawful price discrimination, and also against restraint and monopoly for the better protection of consumers, workers, and independent producers, manufacturers, merchants, and other businessmen. 'To accomplish its purpose, the bill amends and strengthens the Clayton Act by prohibiting discriminations in price between purchasers where such discriminations cannot be shown to be justified by differences in the cost of manufacture, sale, or delivery resulting from different methods or quantities in which such commodities are to such purchasers sold and delivered. It also prohibits brokerage allowances except for services actually rendered, and advertising and other service allowances unless such allowances or services are made available to all purchasers on proportionally equal terms. It strikes at the basing-point method of sale, which lessens competition and tends to create a monopoly.' 9 Id., p. 16: 'This proviso represents a contraction of an exemption now contained in section 2 of the Clayton Act which permits discriminations without limit where made in good faith to meet competition. It should be noted that while the seller is permitted to meet local competition, it does not permit him to cut local prices until his competitor has first offered lower prices, and then he can go no further than to meet those prices. If he goes further, he must do so likewise with all his other customers, or make himself liable to all of the penalties of the act, including treble damages. In other words, the proviso permits the seller to meet the price actually previously offered by a local competitor. It permits him to go no further.' 10 Final Report on the Chain-Store Investigation, S.Doc.No.4, 74th Cong., 1st Sess., p. 96: 'A simple solution for the uncertainties and difficulties of enforcement would be to prohibit unfair and unjust discrimination in price and leave it to the enforcement agency, subject to review by the courts, to apply that principle to particular cases and situations. The soundness of and extent to which the present provisos would constitute valid defenses would thus become a judicial and not a legislative matter. 'The Commission therefore recommends that section 2 of the Clayton Act be amended to read as follows: "It shall be unlawful for any person engaged in commerce, in any transaction in or affecting such commerce, either directly or indirectly to discriminate unfairly or unjustly in price between different purchasers of commodities, which commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States." This report was utilized by the House Committee dealing with the proposed Robinson-Patman legislation. H.R.Rep.No.2287, 74th Cong., 2d Sess., pp. 3, 7. 11 Id., p. 64: 'If the discrimination is 'on account of differences in the grade, quality, or quantity of the commodity sold,' or makes 'only due allowance for difference in the cost of selling or transportation,' or is 'made in good faith to meet competition,' it is not unlawful, even though the effect 'may be to substantially lessen competition or tend to create a monopoly in any line of commerce.' Discriminatory price concessions given to prevent the loss of a chain store's business to a competing manufacturer, to prevent it manufacturing its own goods, or to prevent it from discouraging in its stores the sale of a given manufacturer's goods, may be strongly urged by the manufacturer as 'made in good faith to meet competition." See p. 90, id., Attention was called to this need. H.R.Rep.No.2287, 74th Cong., 2d Sess., p. 7: 'Some of the difficulties of enforcement of this section as it stands are pointed out in the (Final Report) of the Federal Trade Commission above referred to, at pages 63 and following.' 12 80 Cong.Rec. 8235: 'Mr. Chairman, I would like to ask a question of the gentleman from Texas (Mr. Patman). A great many of the industries in Ohio were very much in favor of the proviso in the Senate bill, appearing on page 4, and reading as follows: "And provided further, That nothing herein contained shall prevent discrimination in price in the same or different commodities made in good faith to meet competition.' 'I find that on page 9 of the Patman bill, beginning in line 14, there appear these words: "Provided, however, That nothing herein contained shall prevent a seller rebutting the prima facie case thus made by showing that his lower price to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor.' 'Will the gentleman explain the difference between these two proposals? 'Mr. Patman. If the Senate amendment should be adopted it would really destroy the bill. It would permit the corporate chains to go into a local market, cut the price down so low that it would destroy local competitors and make up for their losses in other places where they had already destroyed their competitors. One of the objects of the bill is to get around that phrase and prevent the large corporate chains from selling below cost in certain localities, thus destroying the independent merchants, and making it up at other places where their competitors have already been destroyed. I hope the gentleman will not insist on the Senate amendment, because it would be very destructive of the bill. The phrase 'equally low price' means the corporate chain will have the right to compete with the local merchants. They may meet competition, which is all right, but they cannot cut down the price below cost for the purpose of destroying the local man. 'Mr. Cooper of Ohio. What does the gentleman's proviso mean? 'Mr. Patman. It means they may meet competition, but not cut down the price below cost. It means an equally low price but not below that. It permits competition, but it does not permit them to cut the price below cost in order to destroy their competitors. I hope the gentleman will not insist on the Senate amendment.' But see 340 U.S. pp. 265 and 266, 71 S.Ct. 257, 258, infra. 13 H.R.Rep.No.2951, 74th Cong., 2d Sess., pp. 6—7: 'The Senate bill contained a further proviso— "That nothing herein contained shall prevent discrimination in price in the same or different communities made in good faith to meet competition.' 'This language is found in existing law, and in the opinion of the conferees is one of the obstacles to enforcement of the present Clayton Act. The Senate receded, and the language is stricken. A provision relating to the question of meeting competition, intended to operate only as a rule of evidence in a proceeding before the Federal Trade Commission, is included in subsection (b) in the conference text as follows: "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." 14 80 Cong.Rec. 9418: 'In connection with the above rule as to burden of proof, it is also provided that a seller may show that his lower price was made in good faith to meet an equally low price of a competitor, or that his furnishing of services or facilities was made in good faith to meet those furnished by a competitor. It is to be noted, however, that this does not set up the meeting of competition as an absolute bar to a charge of discrimination under the bill. It merely permits it to be shown in evidence. This provision is entirely procedural. It does not determine substantive rights, liabilities, and duties. They are fixed in the other provisions of the bill. It leaves it a question of fact to be determined in each case, whether the competition to be met was such as to justify the discrimination given, as one lying within the limitations laid down by the bill, and whether the way in which the competition was met lies within the latitude allowed by those limitations. '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. '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 discrimination 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.' 15 See n. 6, supra. 16 The Court's opinion in this case refers, 340 U.S. 244, 71 S.Ct. at page 247, notes 10 and 11, to the opinions of the Court of Appeals for the Seventh Circuit in Staley and Corn Products, 144 F.2d 211 and 221. But that court reversed its position in the opinion below, 173 F.2d 210, 216. It is fair to assume that reversal was because of our opinions in Corn Products and Staley. 17 It is hardly necessary to note that the wisdom of the enactment is not for the Commission nor the courts in enforcing the Act. The Commission recently has advised Congress that while 'on balance it would be preferable to make the good-faith meeting of competition a complete defense,' it 'does not strongly urge either view upon the Congress.' Hearings before Subcommittee No. 1 of the House Committee on the Judiciary on S. 1008, 81st Cong., 1st Sess., June 8 and 14, 1949, p. 61. Compare Standard Oil Co. v. United States, 337 U.S. 293, 311, 69 S.Ct. 1051, 1060, 93 L.Ed. 1371. This statement confirmed the Commission's position taken in this case. There were other officials of the Commission who have taken the view adopted by the Court.

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