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340 U.S. 336 71 S.Ct. 341 95 L.Ed. 319 NIAGARA HUDSON POWER CORP.v.LEVENTRITT. SECURITES & EXCHANGE COMMISSION v. LEVENTRITT. Nos. 211, 212. Argued Dec. 5, 1950. Decided Jan. 15, 1951. [Syllabus from pages 336-337 intentionally omitted] Mr. Randall J. LeBoeuf, Jr., New York City, for Niagara Hudson Power corp. Mr. Roger S. Foster, Washington, D.C., for Securities and Exchange Commission. Messrs. M. Victor Leventritt and T. Roland Berner, New York City, for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 These cases test the validity of the Securities and Exchange Commission's finding that a plan of reorganization is 'fair and equitable' within the meaning of § 11 of the Public Utility Holding Company Act of 1935,1 although the plan makes no provision for the participaton of outstanding stock option warrants relating to the common stock of the company to be reorganized. The basis for the Commission's conclusion is that it cannot find that there is a reasonable expectation, within the foreseeable future, that the market price of the common stock will exceed the exercise price of the warrants and that, upon consideration of all the circumstances, including the market for the warrants, the Commission cannot find justification for recognizing any present value in the warrants at the expense of the common stock. For the reasons hereinafter stated, we sustain the Commission. 2 The Niagara Hudson Power Corporation, petitioner in No. 211, is a registered public utility holding company, incorporated under the laws of New York, whose dissolution is contemplated under the reorganization.2 It has outstanding notes in the amount of $20,000,000; 378,875 shares of firstpreferred stock, of $100 par value; 105,930 shares of second preferred stock, of $100 par value; 9,580,988 1/2 shares of common stock, of $1 par value; and Class B stock option warrants. The warrants represent options to purchase, at any time, up to 497,191 3/6 shares of common stock, each warrant entitling the holder to subscribe to 1 1/6 shares of common stock upon payment of $50, which is at the rate of approximately $42.86 per share.3 3 The proposed reorganization includes a dissolution plan which is conditioned upon the consummation of a consolidation plan, now consummated. The Commission found both plans to be 'necessary to effectuate the provisions of Section 11(b) (2) of the Act (§ 15 U.S.C. § 79k(b)(2), 15 U.S.C.A. § 79k(b)(2)) and fair and equitable to the persons affected thereby * * *.' Holding Company Act Releases No. 9270, pp. 1, 57; No. 9295, p. 2. Over an objection made by the respondent, M. Victor Leventritt, as a warrant holder, the United States District Court for the Northern District of New York approved the plans and ordered them enforced. 86 F.Supp. 697. On appeal by the respondent, the Court of Appeals for the Second Circuit reversed that part of the order which relates t the warrants, and remanded the cause to the District Court for further proceedings. 179 F.2d 615. A rehearing was denied, one judge dissenting. The Court of Appeals for the Third Circuit thereafter reached a substantially contrary result in In re Commonwealth & Southern Corp., 3 Cir., 184 F.2d 81. Because of the conflicting nature of the decisions in the Courts of Appeals and the importance of the issue in the application of the Public Utility Holding Company Act, 15 U.S.C.A. § 79 et seq., we granted the petitions for certiorari filed separately by the company in No. 211 and the Commission in No. 212. 340 U.S. 809, 71 S.Ct. 62. 4 At every stage of this proceeding opportunity has been afforded the holders of the warrants to present their claims and they have been fully presented. Respondent has not, however, brought up the record which was made before the Commission and cannot question the sufficiency of the evidence in support of the Commission's findings as to the intrinsic or investment value of the common stock or as to that of the warrants based on the likelihood of their exercise within the foreseeable future.4 The appeal attacks the authority of the Commission, as a matter of law, to conclude that, under the circumstances found by it, the dissolution plan is 'fair and equitable' within the meaning of § 11(e) of the Act, where the plan provides for no participation by the outstanding warrants despite their conceded, but low, market value. The Court of Appeals sustained that attack and said: 'we cannot agree that there was any evidence 'substantial' or insubstantial to support the finding that these 'warrants' were wholly worthless.' 179 F.2d at 618. 5 The Commission's answer to the attack is that, within the meaning of § 11(e) of this Act, it has discretion to approve a plan as 'fair and equitable to the persons afferted by such plan,' without providing for the participation of the holders of any security that has no recognizable intrinsic or investment value, although it may have a market value which the Commission considers too small 'as a practical matter' to be recognized. The Commission stated its conclusions in its original order as follows: 6 '5. Fairness to the Holders of the Class B Stock Option Warrants of Niagara Hudson 7 'Under the plans, no provision is made for participation of the Class B stock option warrants of Niagara Hudson and all rights represented by such warrants will terminate upon the dissolution of that company. 8 'The option warrants entitled their holders to purchase at any time 497,191 3/6 shares of Niagara Hudson common stock, each warrant entitling the holder to 1 1/6 shares upon payment of $50. This is equivalent to an exercise price of $42.86 for one share. Since 1932, the Niagara Hudson or predecessor company common stock has never sold at a price higher than 18 1/4 and has sold as low as 7/8. During the same period, the option warrants have never sold higher than 5 and have been as low as 1/8. (Appendix F attached to the Commission's opinion shows that in 1943 they dropped further to 1/16, and in 1941 and 1942 to 1/32.) In 1948, the prices for the option warrants ranged from a high of 1 to a low of 1/8, and in 1949, from a high of 1/4 to a low of 1/8. 9 'In considering the participation to which option warrant holders may be entitled, the test is basically the same as that applied with respect to the other types of securities, that is, that value, if any, is being given up by the surrender of the rights attaching to that security. The price of $42.86, which a holder of an option warrant would have to pay for one share of Niagara Hudson common stock, is more than 30 times the estimate we have used of $1.39 as foreseeable earnings which would be applicable to that stock on the basis of present investment if Niagara Hudson were to continue. That price is about 3.5 times the recent high market prices for the Niagara Hudson common stock of around 12 per share. 10 'If we were to assume that Niagara Hudson were to continue and its common stock were to sell in the future at a ratio of 15 times consolidated earnings, which would appear to be a very liberal assumption, it would require per share earnings of $2.86 to result in a price of $42.86 per share. Such earnings would represent an increase of 106% over the approximately $1.39 of earnings which we have found attributable to the present investment. On the basis of the more likely assumption that the price-earnings ratio at which the Niagara Hudson common stock would sell would be something less than 15 times, an even greater increase in earnings would be required to attain a per share price of $42.86. 11 'Under all the circumstances, we cannot find that there is a reasonable expectation that the market price of Niagara Hudson's common stock would exceed the exercise price of the option warrants within the foreseeable future. Accordingly, we find that such option warrants have no recognizable value59 and that the plans satisfy the standard of fairness and equity with respect to such option warrants in excluding them from any participation in the reorganization of Niagara Hudson.' Holding Company Act Release No. 9270, pp. 46—47. 12 In its foregoing statement the Commission is consistent with the position it has taken as to the preferred and common stock. In accordance with the principles established in Securities & Exchange Comm. v. Central Illinois Corp., 338 U.S. 96, 69 S.Ct. 1377, 93 L.Ed. 1836, and in Otis & Co. v. Securities & Exchange Comm., 323 U.S. 624, 65 S.Ct. 483, 89 L.Ed. 511, it has estimated future earnings as a guide for its determination of the intrinsic and investment value of those stocks. It has satisfied itself that the holders of them will receive, in cash or securities, an equitable equivalent of that value. The Commission's comparable duty in relation to the warrants is first to determine the extent to which they reflect the value of the common stock upon which they have an option. If, for example, the market value of the common stock closely approaches the exercise price stated in the warrants, or if there is ground for a reasonable expectation that the two may coincide within the foreseeable future, then the warrants would have an intrinsic and investment value directly related to the common stock. Under those circumstances, we assume no plan of reorganization would be fair or equitable within the meaning of § 11(e) of the Act that did not recognize that value and provide an equitable equivalent for it.5 13 On the other hand, if the market value of the common stock is less than $15 per share and there is no ground for a reasonable expection that, within the foreseeable future, the value will exceed $15 per share, then an option to buy it at, for example, $1,000 per share obviously would be worthless if the measure of its value depends only upon its convertibility into common stock. With such facts, it is difficult to see how the Commission could justify either the continuance of the warrants or any compensation for them at the expense of the existing common stock. The difference between the example last given and the facts of this case is merely one of degree. Where the line is to be drawn is a matter for the expert judgment of the Commission. The limits of its discretion are also narrowed here by the fact that the future earnings of a public utility company are limited by law to a conservative rate of return upon a governmentally ascertained rate base. 14 Respondent's objection in this case is not primarily to the Commission's computation of the investment value of the warrants insofar as that value is based upon the relationship between their exercise price and the value of the common stock. His claim is rather that the Commission must, as a matter of law, give greater recognition than it has to the market value of the warrants themselves. He contends that the warrants have a valuable 'perpetual feature' because the options in the warrants may be exercised 'at any time (without limit).' From this premise he reasons that the Commission, as a matter of law, must recognize some present value in the warrants because of the infinite possibilities which inhere in any option that reaches into the infinite future. His premise is partially false because the option in the warrants does not extend beyond the life of the common stock and there is no guaranty of the length of that life. On the other hand, the 'perpetual feature' of the option does afford ground for anticipating its survival beyond the short period which limits ordinary estimates of investment values. It reaches beyond the foreseeable into the unexpected and the unpredictable. 15 The value of this 'perpetual feature' may be called the premium value of the warrants as distinguished from their investment value. It takes into account such possibilities as that of a runaway inflation, an unprecedented accumulation of undistributed surplus earnings, an unlikely liberalization of standards of public utility regulation, a surprise discovery of oil on company property etc. These are considerations which a buyer of 'perpetual' warrants on the open market might consider as a basis for speculation in them. Furthermore, because warrants are among the lowest priced of all securities and because their market price tends to fluctuate with the market price of the stock to which they are related, they permit speculation on market trends with a minimum investment.6 A purchaser thus may be willing to pay a nominal price for a warrant which has no investment value, on the mere chance that it may be saleable in a rising market.7 This, however, does not provide an adequate reason for allowing a value to the warrants, at the expense of the common stock, in a reorganization under this Act. 16 This reorganization of a registered public utility holding company is one brought about in the interest of the public. The company is subjected to it by its status as a public utility and by its registration as a holding company under the Act. In determining the fairness and equity of compensation to be allowed holders of warrants, the Commission is not bound as a matter of law, any more than in the case of other securities, to limit itself precisely to the values which the market recognizes. The informed judgment of the Commission, rather than that of the market, has been designated by the Act as the appropriate guide to fairness and equity within the meaning of the Act. Under the standards approved by this Court, that informed judgment looks for investment values on a going-concern basis measured primarily by the Commission's estimates of earnings within the foreseeable future. In the Otis case, supra, this Court accepted the Commission's approval of participation by common stock in a reorganization under the Act, even though the assets of the company to be reorganized were insufficient to satisfy the charter liquidation preference of the preferred stock. This Court there accepted the Commission's estimate that in approximately 15 years the corporation's earnings would be sufficient to pay dividends on the common stock. On the other hand, in the Central-Illinois case, supra, we expressly rejected the 'colloquial equity' approach of the District Court, which placed special emphasis upon market history. 17 In the absence of abuse of its discretion, the Commission's approval of a plan is as lawful and binding when it recognizes a value of zero for a security as when it selects any other figure. The cash allowance it gives to one security it must take from another. In each case, it must determine the fairness and equity of the plan to all who are affected. We conclude, therefore, that in the present instance the Act does not require proof that the warrants are wholly worthless and without all market value in order to sustain the Commission's judgment that the plan is fair and equitable when it denies participation to them. It is enough that the Commission, within its discretion, has given the warrants careful consideration and that under all the circumstances, including their market value, has found the plan to be fair and equitable within the meaning of § 11 of the Act. Moreover, we find no lack of authority in analogous fields of reorganization for sustaining the general principle that a class of securities may go unrecognized in a reorganization when informed estimates of future earnings indicate that they have no investment value.8 18 The judgment of the Court of Appeals, accordingly, is reversed and that of the District Court is affimed. 19 Judgment of Court of Appeals reversed and judgment of District Court affirmed. 20 Mr. Justice FRANKFURTER, whom Mr. Justice BLACK joins, dissenting. 21 I would have the Securities and Exchange Commission take another look, for the reasons indicated in Judge Learned Hand's opinion below, 179 F.2d 615. 22 Mr. Justice JACKSON took no part in the consideration or decision of these cases. 1 'Sec. 11. (a) * * *. '(b) It shall be the duty of the Commission * * * '(2) To require by order, after notice and opportunity for hearing, that each registered holding company, and each subsidiary company thereof, shall take such steps as the Commission shall find necessary to ensure that the corporate structure or continued existence of any company in the holding-company system does not unduly or unnecessarily complicate the structure, or unfairly or inequitably distribute voting power among security holders, of such holding-company system. * * * '(e) In accordance with such rules and regulations or order as the Commission may deem necessary or appropriate in the public interest or for the protection of investors or consumers, any registered holding company or any subsidiary company of a registered holding company may, at any time after January 1, 1936, submit a plan to the Commission for the divestment of control, securities, or other assets, or for other action by such company or any subsidiary company thereof for the purpose of enabling such company or any subsidiary company thereof to comply with the provisions of subsection (b). If, after notice and opportunity for hearing, the Commission shall find such plan, as submitted or as modified, necessary to effectuate the provisions of subsection (b) and fair and equitable to the persons affected by such plan, the Commission shall make an order approving such plan; and the Commission, at the request of the company, may apply to a court, in accordance with the provisions of subsection (f) of section 18, to enforce and carry out the terms and provisions of such plan. * * *' (Emphasis added.) 49 Stat. 820, 821, 822, 15 U.S.C. § 79k(b) and (e), 15 U.S.C.A. § 79k(b, e). 2 For a summary of the proceedings since 1942 under § 11(b)(2) of the Act, relating to the Niagara Hudson system, and at first relating to 26 corporate entities, see Niagara Hudson Power Corp., Holding Company Act Release No. 9270, pp. 7—8. 3 It appears from the warrant certificates that the holder of each 'is entitled to purchase at any time (without limit)' shares of common stock at the price stated. It also appears from the certificates that the warrants are a second generation of warrants, having been issued in exchange for warrants of two predecessor corporations 'for the purpose of preserving and continuing, as nearly as may be, the rights of the holders of said option warrants, existing at the date of consolidation, according to their respective terms.' 4 Such findings 'are not subject to reexamination by the court unless they are not supported by substantial evidence or were not arrived at 'in accordance with legal standards." Securities & Exchange Comm. v. Central-Illinois Corp., 338 U.S. 96, 126, 69 S.Ct. 1377, 1393, 93 L.Ed. 1836. 59 We recognize that the holders of the option warrants have a right to purchase common stock at any time, and that this perpetual feature has some present value no matter how remote or speculative the exercise of the right might be. The value to be accorded that right, however, in this case, is so small that as a practical matter we would not be justified in recognizing it for the purposes of a Section 11 reorganization. Cf. Electric Power & Light Corporation, —- S.E.C. —- (1949), Holding Company Act Release No. 8889.' 5 In Re Electric Power & Light Corp., Holding Company Act, Release No. 8889, affirmed, 2 Cir., 176 F.2d 687, the Commission approved a plan allocating shares of common stock to the warrant holders at a ratio of one share of stock for three warrants, in recognition of estimated earnings which indicated the value of the stock in the foreseeable future as between $25 and $30 per share, whereas the exercise price for it stated in the warrants was $25 per share. 6 See 1 Dewing, The Financial Policy of Corporations (4th ed. 1941), 254; Graham & Dodd, Security Analysis (1934), 258—259, 548—550; Hoagland, Corporation Finance (2d ed. 1938), 177. 7 What a trader is willing to pay for a warrant is determined by his own estimate of the 'prospects of change.' Graham & Dodd, Security Analysis (1934), 547. 'The privilege (conferred by a warrant upon its holder) constitutes a call upon the future prosperity of the company, and its value will depend upon the hope that the market price of the stock will rise above the stipulated subscription price before the right expires.' Guthman & Dougall, Corporate Financial Policy (2d ed. 1948), 145. Berle & Means, in The Modern Corporation and Private Property (1932), stress the difficulty of fixing a value for warrants. '(T)hey maintain market valuse, which to the uninitiated seem inexplicable.' P. 183. Market quotations for warrants have led 'certain observers in the New York market to suggest that the real result of an option warrant is to create a pure gambling counter * * *.' P. 184. '(A)t the time when the stock purchase warrants are issued, particularly if they are perpetual, it is almost beyond human wisdom to set any fair price on such options.' Ibid. To the same effect, see Graham & Dodd, pp. 568—570. 8 In Group of Institutional Investors v. Chicago, M., St. P. & P.R. Co., 318 U.S. 523, 63 S.Ct. 727, 87 L.Ed. 959, the Court approved a railroad reorganization under § 77 of the Bankruptcy Act, 49 Stat. 911, 11 U.S.C. § 205, 11 U.S.C.A. § 205, in which preferred and common shareholders were wiped out because their equity was not justified by earnings prospects. And in reorganizations under former § 77B of the Bankruptcy Act, 48 Stat. 912, 11 U.S.C.A. § 207. 'The criterion of earning capacity is the essential one * * *.' Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 526, 61 S.Ct. 675, 685, 85 L.Ed. 982. See 6 Collier on Bankruptcy (14th ed. 1947), 3849—3859.

78

340 U.S. 268 71 S.Ct. 325 95 L.Ed. 267 NIEMOTKOv.STATE OF MARYLAND. KELLEY v. STATE OF MARYLAND. Nos. 17, 18. Argued Oct. 17, 1950. Decided Jan. 15, 1951. Mr. Hayden C. Covington, Brooklyn, N.Y., for appellants. Mr. Kenneth C. Proctor, Baltimore, Md., for appellee. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 Appellants are two members of the religious group known as Jehovah's Vitnesses. At the invitation of local coreligionists, they scheduled Bible talks in the public park of the city of Havre de Grace, Maryland. Although there is no ordinance prohibiting or regulating the use of this park, it has been the custom for organizations and individuals desiring to use it for meetings and celebrations of various kinds to obtain permits from the Park Commissioner. In conformity with this practice, the group requested permission of the Park Commissioner for use of the park on four consecutive sundays in June and July, 1949. This permission was refused. 2 Having been informed that an Elks' Flag Day ceremony was scheduled for the first Sunday, the applicants did not pursue their request for the use of the park for that particular day, but, instead, filed a written request with the City Council for the following three Sundays. This request was filed at the suggestion of the Mayor, appearing that under the custom of the municipality there is a right of appeal to the City Council from the action of the Park Commissioner. The Council held a hearing at which the request was considered. At this hearing the applicants and their attorney appeared. The request was denied. 3 Because they were awaiting the decision of the Council on their application, the applicants took no further steps on the second Sunday, but, after the denial of the request, they proceeded to hold their meeting on the third Sunday. No sooner had appellant Niemotko opened the meeting and commenced delivering his discourse, than the police, who had been ordered to the park by the Mayor, arrested him. At the meeting held in the park on the fourth and following Sunday, appellant Kelley was arrested before he began his lecture. 4 Appellants were subsequently brought to trial before a jury on a charge of disorderly conduct under the Maryland disorderly conduct statute. Flack's Md.Ann. Code, 1939 (1947 Cum.Supp.), art. 27, § 131. They were convicted and each fined $25 and costs. Under the rather unique Maryland procedure, the jury is the judge of the law as well as the facts. Md.Const., art. XV, § 5; see opinion below, Md., 71 A.2d 9, 11. This means that there is normally no appellate review of any question dependent on the sufficiency of the evidence. Relying on this Maryland rule, the Court of Appeals declined to review the case under its normal appellate power, and further declined to take the case on certiorari, stating that the issues were not 'matters of public interest' which made it desirable to review. Being of opinion that the case presented substantial constitutional issues, we noted probable jurisdiction, the appeal being properly here under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). 5 In cases in whih there is a claim of denial of rights under the Federal Constitution, this Court is not bound by the conclusions of lower courts, but will re-examine the evidentiary basis on which those conclusions are founded. See Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303. A brief recital of the facts as they were adduced at this trial will suffice to show why these convictions cannot stand. At the time of the arrest of each of these appellants, there was no evidence of disorder, threats of violence or riot. There was no indication that the appellants conducted themselves in a manner which could be considered as detrimental to the public peace or order. On the contrary, there was positive testimony by the police that each of the appellants had conducted himself in a manner beyond reproach. It is quite apparent that any disorderly conduct which the jury found must have been based on the fact that appellants were using the park without a permit, although, as we have indicated above, there is no statute or ordinance prohibiting or regulating the use of the park without a permit. 6 This Court has many times examined the licensing systems by which local bodies regulate the use of their parks and public places. See Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312. See also Saia v. People of State of New York, 1948, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Hague v. C.I.O., 1939, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Lovell v. City of Griffin, 1938, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949. In those cases this Court condemned statutes and ordinances which required that permits be obtained from local officials as a prerequisite to the use of public places, on the grounds that a license requirement constituted a prior restraint on freedom of speech, press and religion, and, in the absence of narrowly drawn, reasonable and definite standards for the officials to follow, must be invalid. See Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312. In the instant case we are met with no ordinance or statute regulating or prohibiting the use of the park; all that is here is an amorphous 'practice,' whereby all authority to grant permits for the use of the park is in the Park Commissioner and the City Council. No standards appear anywhere; no narrowly drawn limitations; no circumscribing of this absolute power; no substantial interest of the community to be served. It is clear that all that has been said about the invalidity of such limitless discretion must be equally applicable here. 7 This case points up with utmost clarity the wisdom of this doctrine. For the very possibility of abuse, which those earlier decisions feared, has occurred here. Indeed, rarely has any case been before this Court which shows so clearly an unwarranted discrimination in a refusal to issue such a license. It is true that the City Council held a hearing at which it considered the application. But we have searched the record in vain to discover any valid basis for the refusal. In fact, the Mayor testified that the permit would probably have been granted if, at the hearing, the applicants had not started to 'berate' the Park Commissioner for his refusal to issue the permit. The only questions asked of the Witnesses at the hearing pertained to their alleged refusal to salute the flag, their views on the Bible, and other issues irrelevant to unemcumbered use of the public parks. The conclusion is inescapable that the use of the park was denied because of the City Council's dislike for or disagreement with the Witnesses or their views. The right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims or personal opinions of a local governing body. 8 In this Court, it is argued that state and city officials should have the power to exclude religious groups, as such, from the use of the public parks. But that is not this case. For whatever force this contention could possibly have is lost in the light of the testimony of the Mayor at the trial that within his memory permits had always been issued for religious organizations and Sunday-school picnics. We might also point out that the attempt to designate the park as a sanctuary for peace and quiet not only does not defeat these appellants, whose own conduct created no disturbance, but this position is also more than slightly inconsistent, since, on the first Sunday here involved, the park was the suits for the Flag Day ceremony of the Order of Elks. Elks. 9 It thus becomes apparent that the lack of standards in the license-issuing 'practice' renders that 'practice' a prior restraint in contravention of the Fourteenth Amendment, and that the completely arbitrary and discriminatory refusal to grant the permits was a denial of equal protection. Inasmuch as the basis of the convictions was the lack of the permits, and that lack was, in turn, due to the unconstitutional defects discussed, the convictions must fall. 10 Reversed. 11 Mr. Justice BLACK concurs in the result. 12 Mr. Justice FRANKFURTER, concurring in the result. 13 The issues in these cases concern living law in some of its most delicate aspects. To smother differences of emphasis and nuance will not help its wise development. When the way a result is reached may be important to results hereafter to be reached, law is best respected by individual expression of opinion. 14 These cases present three variations upon a theme of great importance. Legislatures, local authorities, and the courts have for years grappled with claims of the right to disseminate ideas in public places as against claims of an effective power in government to keep the peace and to protect other interests of a civilized community. These cases are of special interest because they show the attempts of three communities to meet the problem in three different ways. It will, I believe, further analysis to use the three situations as cross-lights on one another. I. 15 1. Nos. 17 and 18.—Havre de Grace, Maryland, sought to solve this tangled problem by permitting its park commissioner and city council to act as censors. The city allowed use of its park for public meetings, including those of religious groups, but by custom a permit was required, In this case, the city council questioned the representatives of Jehovah's Witnesses, who had requested a license, about their views on saluting the flag, the Catholic Church, service in the armed forces, and other matters in no way related to public order or public convenience in use of the park. The Mayor testified that he supposed the permit was denied 'because of matters that were brought out at (the) meeting.' When Niemotko and Kelley, Jehovah's Witnesses, attempted to speak, they were arrested for disturbing the peace. There was no disturbance of the peace and it is clear that they were arrested only for want of a permit. 16 2. No. 50.—New York City set up a licensing system to control the use of its streets and parks for public religious services. The New York Court of Appeals construed the city's ordinance so as to sanction the right of the Police Commissioner to revoke or refuse a license for street-preaching if he found the person was likely to 'ridicule' or 'denounce' religion. In 1946, after hearings before a Fourtn Deputy Police Commissioner, Kunz's license was revoked because he had 'ridiculed' and 'denounced' religion while speaking in one of New York's crowed centers, and it was thought likely that he would continue to do so. In 1947 and 1948 he was refused a license on the sole ground of the determination made in 1946. In September of 1948 he was arrested for speaking at Columbus Circle without a license. 17 3. No. 93.—Syracuse, New York, did not set up a licensing system but relied on a statute which is in substance an enactment of the common-law offense of breach of the peace. Feiner, the defendant, made a speech near the intersection of South McBride and Harrison Streets in Syracuse. He spoke from a box located on the parking between the sidewalk and the street, and made use of sound amplifiers attached to an automobile. A crowd of 75 to 80 persons gathered around him, and several pedestrians had to go into the highway in order to pass by. Two policemen observed the meeting. In the course of his speech, Feiner referred to the Mayor of Syracuse as a 'champagnesipping bum,' to the President as a 'bum,' and to the American Legion as 'Nazi Gestapo agents.' Feiner also indicated in an excited manner that Negroes did not have equal rights and should rise up in arms. His audience included a number of Negroes. 18 One man indicated that if the police did not get the speaker off the stand, he would do it himself. The crowd, which consisted of both those who opposed and those who supported the speaker, was restless. There was not yet a disturbance but, in the words of the arresting officer whose story was accepted by the trial judge, he 'stepped in to prevent it from resulting in a fight. After all there was angry muttering and pushing.' Having ignored two requests to stop speaking, Feiner was arrested. II. 19 Adjustment of the inevitable conflict between free speech and other interests is a problem as persistent as it is perplexing. It is important to bear in mind that this Court can only hope to set limits and point the way. It falls to the lot of legislative bodies and administrative officials to find practical solutions within the frame of our decisions. There are now so many of these decisions, arrived at by the ad hoc process of adjudication, that it is desirable to make a cruise of the timber. 20 In treating the precise problem presented by the three situations before us—how to reconcile the interest in allowing free expression of ideas in public places with the protection of the public peace and of the primary uses of streets and parks—we should first set to one side decisions which are apt to mislead rather than assist. Contempt cases and convictions under State and Federal statutes aimed at placing a general limitation upon what may be said or written, bring additional factors into the equation. Cases like Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; and Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660, are rooted in historic experience regarding prior restraints on publication. They give recognition to the role of the press in a democracy, a consideration not immediately pertinent. The picketing cases are logically relevant since they usually involve, in part, dissemination of information in public places. But here also enter economic and social interests outside the situations before us. See Hughes v. Superior Court of California in and for Contra Costa County, 339 U.S. 460, 464—465, 70 S.Ct. 718, 720, 721. 21 The cases more exclusively concerned with restrictions upon expression in its divers forms in public places have answered problems varying greatly in content and difficulty. 22 1. The easiest cases have been those in which the only interest opposing free communication was that of keeping the streets of the community clean. This could scarcely justify prohibiting the dissemination of information by handbills or censoring their contents. In Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, an ordinance requiring a permit to distribute pamphlets was held invalid where the licensing standard was 'not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets.' 303 U.S. at page 451, 58 S.Ct. at page 669, 82 L.Ed. 949. In Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, a portion of the ordinance declared invalid prohibited the distribution of pamphlets. In Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155, three of the four ordinances declared invalid by the Court prohibited the distribution of pamphlets. In Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869, the Court again declared invalid a municipal ordinance prohibiting the distribution of all handbills. 23 2. In a group of related cases, regulation of solicitation has been the issue. Here the opposing interest is more substantial protection of the public from fraud and from criminals who use solicitation as a device to enter homes. The fourth ordinance considered in Schneider v. State, supra, allowed the chief of police to refuse a permit if he found, in his discretion, that the canvasser was not of good character or was canvassing for a project not free from fraud. The ordinance was found invalid because the officer who could, in his discretion, make the determinations concerning 'good character' and 'project not free from fraud' in effect held the power of censorship. In Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, conviction was, in part, under a State statute requiring a permit for religious solicitation. The statute was declared invalid because the licensing official could determine what causes were religious, allowing a 'censorship of religion'. 310 U.S. at page 305, 60 S.Ct. at page 904, 84 L.Ed. 1213. Again, in Largent v. State of Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873, an ordinance requiring a permit from the mayor, who was to issue the permit only if he deemed it 'proper or advisable', was declared invalid as creating an administrative censorship. The Court has also denied the right of those in control of a company town or Government housing project to prohibit solicitation by Jehovah's Witnesses. Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Tucker v. State of Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274. In Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, the solicitation was in the interest of labor rather than religion. There a State statute requiring registration of labor organizers was found unconstitutional when invoked to enjoin a speech in a public hall. The interest of the State in protecting its citizens through the regulation of vocations was deemed insufficient to support the statute. 24 3. Whether the sale of religious literature by Jehovah's Witnesses can be subjected to nondiscriminatory taxes on solicitation has introduced another opposing interest—the right of the community to raise funds for the support of the government. In Jones v. City of Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290, vacating 316 U.S. 584, 62 S.Ct. 1231, 86 L.Ed. 1691, and in Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 891, 87 L.Ed. 1292, the Court held that imposition of the tax upon itinerants was improper. In Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938, the Court went further to hold unconstitutional the imposition of a flat tax on book agents upon a resident who made his living selling religious books. 25 4. Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313, represents another situation. An ordinance of the City of Struthers, Ohio, forbade knocking on the door or ringing the doorbell of a residence in order to deliver a handbill. Prevention of crime and assuring privacy in an industrial community where many worked on night shifts, and had to obtain their sleep during the day, were held insufficient to justify the ordinance in the case of handbills distributed on behalf of Jehovah's Witnesses. 26 5. In contrast to these decisions, the Court held in Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, that the application to Jehovah's Witnesses of a State statute providing that no boy under 12 or girl under 18 should sell periodicals on the street was constitutional. Claims of immunity from regulation of religious activities were subordinated to the interest of the State in protecting its children. 27 6. Control of speeches made in streets and parks draws on still different considerations—protection of the public peace and of the primary uses of travel and recreation for which streets and parks exist. 28 (a) The pioneer case concerning speaking in parks and streets is Davis v. Commonwealth of Massachusetts, 167 U.S. 43, 17 S.Ct. 731, 42 L.Ed. 71, in which this Court adopted the reasoning of the opinion below written by Mr. Justice Holmes, while on the Massachusetts Supreme Judicial Court. Commonwealth v. Davis, 162 Mass. 510, 39 N.E. 113, 26 L.R.A. 712. The Boston ordinance which was upheld required a permit from the mayor for any person to 'make any public address, discharge any cannon or firearm, expose for sale any goods, * * *' on public grounds. This Court respected the finding that the ordinance was not directed against free speech but was intended as 'a proper regulation of the use of public grounds.' 162 Mass. at page 512, 39 N.E. at page 113. 29 An attempt to derive from dicta in the Davis case the right of a city to exercise any power over its parks, however, arbitrary or discriminatory, was rejected in Hague v. C.I.O., supra. The ordinance presented in the Hague case required a permit for meetings on public ground, the permit to be refused by the licensing official only 'for the purpose of preventing riots, disturbances or disorderly assemblage.' 307 U.S. 302, 59 S.Ct. 958 note 1. The facts of the case, however, left no doubt that the licensing power had been made an 'instrument of arbitrary suppression of free expression of views on national affairs'. 307 U.S. at page 516, 59 S.Ct. at page 964, 83 L.Ed. 1423. And the construction given the ordinance in the State courts gave the licensing officials wide discretion. See Thomas v. Casey, 121 N.J.L. 185, 1 A.2d 866. The holding of the Hague case was not that a city could not subject the use of its streets and parks to reasonable regulation. The holding was that the licensing officials could not be given power arbitrarily to suppress free expression, no matter under what cover of law they purported to act. 30 Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, made it clear that the United States Constitution does not deny localities the power to devise a licensing system if the exercise of discretion by the licensing officials is appropriately confined. A statute requiring a permit and license fee for parades had been narrowly construed by the State courts. The license could be refused only for 'considerations of time, place and manner so as to conserve the public convenience', and the license fee was 'to meet the expense incident to the administration of the act and to the maintenance of public order in the matter licensed'. 312 U.S. at pages 575—576, 577, 61 S.Ct. at pages 765, 766, 85 L.Ed. 1049. The licensing system was sustained even though the tax, ranging from a nominal amount to $300, was determined by the licensing officials on the facts of each case. 31 (b) Two cases have involved the additional considerations incident to the use of sound trucks. In Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574, the ordinance required a license from the chief of police for use of sound amplification devices in public places. The ordinance was construed not to prescribe standards to be applied in passing upon a license application. In the particular case, a license to use a sound truck in a small city park had been denied because of complaints about the noise which resulted whom sound amplifiers had previously been used in the park. There was no indication that the license had been refused because of the content of the speeches. Nevertheless, the Court held the ordinance unconstitutional. In Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 449, 93 L.Ed. 513, part of the Court construed the ordinance as allowing conviction for operation of any sound truck emitting 'loud and raucous' noises, and part construed the ordinance to ban all sound trucks. The limits of the decision of the Court upholding the ordinance are therefore not clear, but the result in any event does not leave the Saia decision intact. 32 (c) On a few occasions the Court has had to pass on a limitation upon speech by a sanction imposed after the event rather than by a licensing statute. In Cantwell v. State of Connecticut, supra, one of the convictions was for common-law breach of the peace. The problem was resolved in favor of the defendant by reference to Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, in view of the inquiry whether, on the facts of the case, there was 'such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question.' 310 U.S. at page 311, 60 S.Ct. at page 906, 84 L.Ed. 1213. 33 In Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 768, 86 L.Ed. 1031, a State statute had enacted the common-law doctrine of 'fighting words': 'No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name * * *.' The State courts had previously held the statute applicable only to the use in a public place of words directly tending to cause a breach of the peace by the persons to whom the remark was addressed. The conviction of a street speaker who called a policeman a 'damned racketeer' and 'damned Fascist' was upheld. 34 7. One other case should be noted, although it involved a conviction for breach of peace in a private building rather than in a public place. In Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 895, 93 L.Ed. 1131, the holding of the Court was on an abstract proposition of law, unrelated to the facts in the case. A conviction was overturned because the judge had instructed the jury that 'breach of the peace' included speech which 'stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance. * * *' The holding apparently was that breach of the peace may not be defined in such broad terms, certainly as to speech in a private hall. 35 The results in these multifarious cases have been expressed in language looking in two directions. While the Court has emphasized the importance of 'free speech,' it has recognized that 'free speech' is not in itself a touchstone. The Constitution is not unmindful of other important interests, such as public order, if interference with free expression of ideas is not found to be the overbalancing consideration. More important than the phrasing of the opinions are the questions on which the decisions appear to have turned. 36 (1) What is the interest deemed to require the regulation of speech? The State cannot of course forbid public proselyting or religious argument merely because public officials disapprove the speaker's views. It must act in patent good faith to maintain the public peace, to assure the availability of the streets for their primary purposes of passenger and vehicular traffic, or for equally indispensable ends of modern community life. 37 (2) What is the method used to achieve such ends as a consequence of which public speech is constrained or barred? A licensing standard which gives an official authority to censor the content of a speech differs toto coelo from one limited by its terms, or by nondiscriminatory practice, to considerations of public safety and the like. Again, a sanction applied after the event assures consideration of the particular circumstances of a situation. The net of control must not be cast too broadly. 38 (3) What mode of speech is regulated? A sound truck may be found to affect the public peace as normal speech does not. A man who is calling names or using the kind of language which would reasonably stir another to violence does not have the same claim to protection as one whose speech is an appeal to reason. 39 (4) Where does the speaking which is regulated take place? Not only the general classifications—streets, parks, private buildings—are relevant. The location and size of a park; its customary use for the recreational, esthetic and contemplative needs of a community; the facilities, other than a park or street corner, readily available in a community for airing views, are all pertinent considerations in assessing the limitations the Fourteenth Amendment puts on State power in a particular situation.1 III. 40 Due regard for the interests that were adjusted in the decisions just canvassed affords guidance for deciding that cases before us. 41 1. In the Niemotko case, neither danger to the public peace, nor consideration of time and convenience to the public, appears to have entered into denial of the permit. Rumors that there would be violence by those opposed to the meeting appeared only after the Council made its decision, and in fact never materialized. The city allowed other religious groups to use the park. To allow expression of religious views by some and deny the same privilege to others merely because they or their views are unpopular, even deeply so, is a denial of equal protection of the law forbidden by the Fourteenth Amendment. 42 2. The Kunz case presents a very different situation. We must be mindful of the enormous difficulties confronting those charged with the task of enabling the polyglot millions in the City of New York to live in peace and tolerance. Street-preaching in Columbus Circle is done in a milieu quite different from preaching on a New England village green. Again, religious polemic does not touch the merely ratiocinative nature of man, and the ugly facts disclosed by the record of this case show that Kunz was not reluctant to offend the deepest religious feelings of frequenters of Columbus Circle. Especially in such situations, this Court should not substitute its abstract views for the informed judgment of local authorities confirmed by local courts. 43 I cannot make too explicit my conviction that the City of New York is not restrained by anything in the Constitution of the United States from protecting completely the community's interests in relation to its streets. But if a municipality conditions holding street meetings on the granting of a permit by the police, the basis which guides licensing officials in granting or denying a permit must not give them a free hand, or a hand effectively free when the actualities of police administration are taken into account. It is not for this Court to formulate with particularity the terms of a permit system which would satisfy the Fourteenth Amendment. No doubt, finding a want of such standards presupposes some conception of what is necessary to meet the constitutional requirement we draw from the Fourteenth Amendment. But many a decision of this Court rests on some inarticulate major premise and is none the worse for it. A standard may be found inadequate without the necessity of explicit delineation of the standards that would be adequate, just as doggerel may be felt not to be poetry without the need of writing an essay on what poetry is. 44 Administrative control over the right to speak must be based on appropriate standards, whether the speaking be done indoors or out-of-doors. The vice to be guarded against is arbitrary action by officials. The fact that in a particular instance an action appears not arbitrary does not save the validity of the authority under which the action was taken. 45 In the present case, Kunz was not arrested for what he said on the night of arrest, nor because at that time he was disturbing the peace or interfering with traffic. He was arrested because he spoke without a license, and the license was refused because the police commissioner thought it likely on the basis of past performance that Kunz would outrage the religious sensibilities of others. If such had been the supportable finding on the basis of fair standards in safeguarding peace in one of the most populous centers of New York City, this Court would not be justified in upsetting it. It would not be censorship in advance. But here the standards are defined neither by language nor by settled construction to preclude descriminatory or arbitrary action by officials. The ordinance, as judicially construed, provides that anyone who, in the judgment of the licensing officials, would 'ridicule' or 'denounce' religion creates such a danger of public disturbance that he cannot speak in any park or street in the City of New York. Such a standard, considering the informal procedure under which it is applied, too readily permits censorship of religion by the licensing authorities. Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. The situation here disclosed is not, to reiterate, beyond control on the basis of regulation appropriately directed to the evil.2 46 3. Feiner was convicted under New York Penal Law, § 722, which provides: 47 'Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: 48 '2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; * * *.' 49 A State court cannot of course preclude review of due process questions merely by phrasing its opinion in terms of an ultimate standard which in itself satisfies due process. Watts v. State of Indiana, 338 U.S. 49, 50, 69 S.Ct. 1347, 1348, 1357, 93 L.Ed. 1801; Baumgartner v. United States, 322 U.S. 665, 670—671, 64 S.Ct. 1240, 1243, 88 L.Ed. 1525; Norris v. State of Alabama, 294 U.S. 587, 589—590, 55 S.Ct. 579, 580, 79 L.Ed. 1074; Compare Appleby v. City of New York, 271 U.S. 364, 379—380, 46 S.Ct. 569, 573, 70 L.Ed. 992. But this Court should not re-examine determinations of the State courts on 'those matters which are usually termed issues of fact'. Watts v. State of Indiana, supra, 338 U.S. at page 50, 69 S.Ct. at page 1348, 93 L.Ed. 1801. And it should not overturn a fair appraisal of facts made by State courts in the light of their knowledge of local conditions. 50 Here, Feiner forced pedestrians to walk in the street by collecting a crowd on the public sidewalk, he attracted additional attention by using sound amplifiers, he indulged in name-calling, he told part of his audience that it should rise up in arms. In the crowd of 75 to 80 persons, there was angry muttering and pushing. Under these circumstances, and in order to prevent a disturbance of the peace, an officer asked Feiner to stop speaking. When he had twice ignored the request, Feiner was arrested. The trial judge concluded that 'the officers were fully justified in feeling that a situation was developing which could very, very easily result in a serious disorder.' His view was sustained by an intermediate appellate court and by a unanimous decision of the New York Court of Appeals. 300 N.Y. 391, 91 N.E.2d 316. The estimate of a particular local situation thus comes here with the momentum of the weightiest judicial authority of New York. 51 This Court has often emphasized that in the exercise of our authority over state court decisions the Due Process clause must not be construed in an abstract and doctrinaire way by disregarding local conditions. In considering the degree of respect to be given findings by the highest court of a State in cases involving the Due Process Clause, the course of decisions by that court should be taken into account. Particularly within the area of due process colloquially called 'civil liberties,' it is important whether such a course of decisions reflects a cavalier attitude toward civil liberties or real regard for them. Only unfamiliarity with its decisions and the outlook of its judges could generate a notion that the Court of Appeals of New York is inhospitable to claims of civil liberties or is wanting in respect for this Court's decisions in support of them. It is pertinent, therefore, to note that all members of the New York Court accepted the finding that Feiner was stopped not because the listeners or police officers disagreed with his views but because these officers were honestly concerned with preventing a breach of the peace. This unanimity is all the more persuasive since three members of the Court had dissented, only three months earlier, in favor of Kunz, a man whose vituperative utterances must have been highly offensive to them. 52 As was said in Hague v. C.I.O., supra, uncontrolled official suppression of the speaker 'cannot be made a substitute for the duty to maintain order'. 307 U.S. at page 516, 59 S.Ct. at page 964, 83 L.Ed. 1423. Where conduct is within the allowable limits of free speech, the police are peace officers for the speaker as well as for his hearers. But the power effectively to preserve order cannot be displaced by giving a speaker complete immunity. Here, there were two police officers present for 20 minutes. They interfered only when they apprehended imminence of violence. It is not a constitutional principle that, in acting to preserve order, the police must proceed against the crowd, whatever its size and temper, and not against the speaker. 53 It is true that breach-of-peace statutes, like most tools of government, may be misused. Enforcement of these statutes calls for public tolerance and intelligent police administration. These, in the long run, must give substance to whatever this Court may say about free speech. But the possibility of misuse is not alone a sufficient reason to deny New York the power here asserted or so limit it by constitutional construction as to deny its practical exercise. 1 In M'Ara v. Magistrates of Edinburgh, 1913 S.C. 1059, a street orator who was arrested for speaking without a license in the streets of Edinburgh, contrary to the Magistrates' proclamation, challenged the arrest. The Court of Session affirmed a holding that Magistrates had no authority to issue the proclamation because the Act of 1606 granting them authority was in desuetude. However, in his judgment, Lord Dunedin, one of the most trenchant minds in modern Anglo-American judicial history, dealt with the argument that there is an absolute right to speak in public places. Although he was applying Scots law, now a written constitution, Lord Dunedin's remarks are apposite here: 'Now the right of free speech undoubtedly exists, and the right of free speech is to promulgate your opinions by speech so long as you do not utter what is treasonable or libellous, or make yourself obnoxious to the statutes that deal with blasphemy and obscenity. But the right of free speech is a perfectly separate thing from the question of the place where that right is to be exercised. You may say whay you like provided it is not obnoxious in the ways I have indicated, but that does not mean that you may say it anywhere. 'I am not going to deal with what may be the case in open spaces or public places. It seems to me that no general pronouncement upon that subject could be made, because, although for convenience sake one often speaks of open spaces or of public places, the truth is that open spaces and public places differ very much in their character, and before you could say whether a certain thing could be done in a certain place you would have to know the history of the particular place. For example, there may be certain places which are dedicated to certain uses, * * * and things that otherwise were lawful might be restrained if they interfered with the purposes of that dedication. Each of those cases must be dealt with when it arises. Here we are dealing with a street proper, because this place at the Mound is just one of the streets of the city. It is a thoroughfare, although, probably, not a very much used thoroughfare at that particular corner. In such a place there is not the slightest right in anyone to hold a meeting as such. * * *' Id. at 1073—1074. 2 This is the second time that the ordinance which gave rise to Junz's conviction has been before the Court. That fact is relevant however only for the purpose of appreciating that the context in which and the circumstances under which the Court considered the ordinance the first time are quite different from the conditions underlying the present appeal. The first time the Court had to consider the ordinance was on an appeal from People v. Smith, 263 N.Y. 255, 188 N.E. 745. In that case the New York Court of Appeals sustained a conviction for expounding atheism in the street without a permit. The appeal to this Court was based solely on the argument that regulation of speakers on religion without regulating other speakers was an unreasonable classification. Responding to this issue, the Court summarily dismissed the appeal, 292 U.S. 606, 54 S.Ct. 775, 78 L.Ed. 1468, citing three cases: Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 144, 34 S.Ct. 281, 282, 58 L.Ed. 539; Silver v. Silver, 280 U.S. 117, 123, 50 S.Ct. 57, 58, 74 L.Ed. 221; and Sproles v. Binford, 286 U.S. 374, 396, 52 S.Ct. 581, 588, 76 L.Ed. 1167. All three concern the problem of reasonable classification and in no wise bear on the issue now before us. The difference in the issues between the Smith case and the Junz case is strikingly manifested by the fact that the conviction of Smith was affirmed by a unanimous Court of Appeals of New York, whereas in the present case the conviction was affirmed by the narrowest division in that court. It must also be borne in mind that the Smith case was disposed of in 1934, before the series of decisions beginning with Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, allowing much less scope to local officials in the control of public utterances than had theretofore been taken for granted. Compare the language of Davis v. Commonwealth of Massachusetts, 167 U.S. 43, 17 S.Ct. 731, 42 L.Ed. 71, as well as the atmosphere which it generated. So far as the special circumstances relating to the City of New York are concerned, it is pertinent to note that all three dissenting judges below are residents of New York City, whereas not one of the four constituting the majority is a denizen of that City. The three New York City dissenting judges are presumably as alive to the need for securing peace among the various racial and religious groups in New York, and to the opportunity of achieving it within the constitutional limits, as one who has only a visitor's acquaintance with the tolerant and genial communal life of New York City.

23

340 U.S. 332 71 S.Ct. 301 95 L.Ed. 306 BLAUv.UNITED STATES. No. 21. Argued Nov. 7, 1950. Decided Jan. 15, 1951. Mr. Samuel D. Menin, Denver, Colo., for petitioner. Mr. Philip B. Perlman, Sol. Gen., Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 Petitioner was summoned to appear before a federal district grand jury in Denver, Colorado. Both before that body and before the district judge where he was later taken, petitioner declined to answer questions concerning the activities and records of the Communist Party of Colorado, claiming his constitutional privilege against self-incrimination. He also refused to reveal the whereabouts of his wife, who was wanted by the grand jury as a witness in connection with the same investigation. As to this refusal to testify, petitioner asserted his privilege against disclosing confidential communications between husband and wife. The district judge overruled both claims of privilege and sentenced petitioner to six months in prison for contempt of court. The Court of Appeals for the Tenth Circuit affirmed. 179 F.2d 559. 2 For the reasons set out in our recent opinion in Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, we hold it was error to fail to sustain the claim of privilege against self-incrimination. 3 This leaves for consideration the validity of the sentence insofar as it rests on the failure of petitioner to disclose the whereabouts of his wife. In Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617, this Court recognized that a confidential communication between husband and wife was privileged. It is not disputed in the present case that petitioner obtained his knowledge as to where his wife was by communication from her. Nevertheless, the Government insists that he should be denied the benefit of the privilege because he failed to prove that the information was privately conveyed. This contention ignores the rule that marital communications are presumptively confidential. Wolfle v. United States, supra, 291 U.S. at page 14, 54 S.Ct. 280; Wigmore, Evidence, § 2336. The Government made no effort to overcome the presumption. In this case, moreover, the communication to petitioner was of the kind likely to be confidential. Petitioner's wife, according to the district judge, knew that she and a number of others were 'wanted' as witnesses by the grand jury but she 'hid out, apparently so that the process * * * could not be served upon her.'1 Several of the witnesses who appeared were put in jail for contempt of court. Under such circumstances, it seems highly probable that Mrs. Blau secretly told her husband where she could be found. Petitioner's refusal to betray his wife's trust therefore was both understandable and lawful. We have no doubt that he was entitled to claim his privilege.2 4 Reversed. 5 Mr. Justice CLARK took no part in the consideration or decision of this case. 6 Mr. Justice MINTON, with whom Mr. Justice JACKSON joins, dissenting. 7 If a communication between husband and wife is made under circumstances obviously not intended to be confidential, it is not privileged. Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 280, 78 L.Ed. 617. 8 Where the privilege suppresses relevant testimony, as it did here, it should 'be allowed only when it is plain that marital confidence can not otherwise reasonably be preserved.' 291 U.S. at page 17, 54 S.Ct. at page 281. 9 Unless the wife is in concealment, which does not appear to be the case here, the disclosure of her whereabouts to the husband is obviously not intended to be confidential and therefore is not privileged. Not every communication between husband and wife is blessed with the privilege. The general rule of evidence is competency. Incompetency is the exception, and to bring one within the exception, one must come within the reason for the exception. The reason here is protection of marital confidence, not merely of communication between spouses. It seems to me clear that all that is shown here is communication. The circumstances of confidence are absent; what all may know is certainly not confidential. 10 For refusal to divulge his wife's whereabouts, petitioner was in contempt. Since the sentence he received was such as he might have received for that single act of contempt, his conviction is valid. Cf. Pinkerton v. United States, 328 U.S. 640, 641, n. 1, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489; Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 1378, 87 L.Ed. 1774. If petitioner conceived his sentence to be illegal, he would not be without remedy, for he might seek a reduction thereof on remand of this case under Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. I intimate nothing as to that issue. 11 I would affirm the conviction. 1 Petitioner's wife, when apprehended, was sentenced to one year's imprisonment for contempt, Blau v. United States, supra, although other witnesses who refused to testify received shorter sentences. In sentencing Mrs. Blau, the judge stated: 'I haven't much sympathy for this lady because, as I said, she defied the Court by avoiding the process of the Court when she knew very well that she was wanted here, and yet she hid out, apparently so that the process of this court could not be served upon her.' 2 In view of our decision on this phase of the case, it is unnecessary to reach the question whether the single conviction for contempt (which was based on the refusal to give incriminating testimony and on the refusal to reveal a confidential marital communication) would be valid if petitioner were entitled to claim one, but not both, of the privileges.

01

340 U.S. 349 71 S.Ct. 295 95 L.Ed. 329 DEAN MILK CO.v.CITY OF MADISON, WIS., et al. No. 258. Argued Dec. 7, 1950. Jan. 15, 1951. Messrs. Jacob Geffs and George S. Geffs, Janesville, Wis., for appellant. Messrs. Harold E. Hanson and Walter P. Ela, Madison, Wis., for appellees. Mr. Justice CLARK delivered the opinion of the Court. 1 This appeal challenges the constitutional validity of two sections of an ordinance of the City of Madison, Wisconsin, regulating the sale of milk and milk products within the municipality's jurisdiction. One section in issue makes it unlawful to sell any milk as pasteurized unless it has been processed and bottled at an approved pasteurization plant within a radius of five miles from the central square of Madison.1 Another section, which prohibits the sale of milk, or the importation, receipt or storage of milk for sale, in Madison unless from a source of supply possessing a permit issued after inspection by Madison officials, is attacked insofar as it expressly relieves municipal authorities from any duty to inspect farms located beyond twenty-five miles from the center of the city.2 2 Appellant is an Illinois corporation engaged in distributing milk and milk products in Illinois and Wisconsin. It contended below, as it does here, that both the five-mile limit on pasteurization plants and the twenty-five-mile limit on sources of milk violate the Commerce Clause and the Fourteenth Amendment to the Federal Constitution. The Supreme Court of Wisconsin upheld the five-mile limit on pasteurization.3 As to the twenty-five-mile limitation the court ordered the complaint dismissed for want of a justiciable controversy. 1950, 257 Wis. 308, 43 N.W.2d 480. This appeal, contesting both rulings, invokes the jurisdiction of this Court under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). 3 The City of Madison is the county seat of Dane County. Within the county are some 5,600 dairy farms with total raw milk production in excess of 600,000,000 pounds annually and more than ten times the requirements of Madison. Aside from the milk supplied to Madison, fluid milk produced in the county moves in large quantities to Chicago and more distant consuming areas, and the remainder is used in making cheese, butter and other products. At the time of trial the Madison milkshed was not of 'Grade A' quality by the standards recommended by the United States Public Health Service, and no milk labeled 'Grade A' was distributed in Madison. 4 The area defined by the ordinance with respect to milk sources encompasses practically all of Dane County and includes some 500 farms which supply milk for Madison. Within the five-mile area for pasteurization are plants of five processors, only three of which are engaged in the general wholesale and retail trade in Madison. Inspection of these farms and plants is scheduled once every thirty days and is performed by two municipal inspectors, one of whom is full-time. The courts below found that the ordinance in question promotes convenient, economical and efficient plant inspection. 5 Appellant purchases and gathers milk from approximately 950 farms in northern Illinois and southern Wisconsin, none being within twenty-five miles of Madison. Its pasteurization plants are located at Chemung and Huntley, Illinois, about 65 and 85 miles respectively from Madison. Appellant was denied a license to sell its products within Madison solely because its pasteurization plants were more than five miles away. 6 It is conceded that the milk which appellant seeks to sell in Madison is supplied from farms and processed in plants licensed and inspected by public health authorities of Chicago, and is labeled 'Grade A' under the Chicago ordinance which adopts the rating standards recommended by the United States Public Health Service. Both the Chicago and Madison ordinances, though not the sections of the latter here in issue, are largely patterned after the Model Milk Ordinance of the Public Health Service. However, Madison contends and we assume that in some particulars its ordinance is more rigorous than that of Chicago. 7 Upon these facts we find it necessary to determine only the issue raised under the Commerce Clause, for we agree with appellant that the ordinance imposes an undue burden on interstate commerce. 8 This is not an instance in which an enactment falls because of federal legislation which, as a proper exercise of paramount national power over commerce, excludes measures which might otherwise be within the police power of the states. See Currin v. Wallace, 1939, 306 U.S. 1, 12—13, 59 S.Ct. 379, 385, 83 L.Ed. 441. There is no pertinent national regulation by the Congress, and statutes enacted for the District of Columbia indicate that Congress has recognized the appropriateness of local regulation of the sale of fluid milk. D.C.Code, 1940, §§ 33—301 et seq. It is not contended, however, that Congress has authorized the regulation before us. 9 Nor can there be objection to the avowed purpose of this enactment. We assume that difficulties in sanitary regulation of milk and milk products originating in remote areas may present a situation in which 'upon a consideration of all the relevant facts and circumstances it appears that the matter is one which may appropriately be regulated in the interest of the safety, health and well-being of local communities * * *.' Parker v. Brown, 1943, 317 U.S. 341, 362—363, 63 S.Ct. 307, 319, 87 L.Ed. 315; see H. P. Hood & Sons v. Du Mond, 1949, 336 U.S. 525, 531—532, 69 S.Ct. 657, 661, 93 L.Ed. 865. We also assume that since Congress has not spoken to the contrary, the subject matter of the ordinance lies within the sphere of state regulation even though interstate commerce may be affected. Milk Control Board v. Eisenberg Farm Products, 1939, 306 U.S. 346, 59 S.Ct. 528, 83 L.Ed. 752; see Baldwin v. G.A.F. Seelig, Inc., 1935, 294 U.S. 511, 524, 55 S.Ct. 497, 500, 79 L.Ed. 1032. 10 But this regulation, like the provision invalidated in Baldwin v. G.A.F. Seelig, Inc., supra, in practical effect excludes from distribution in Madison wholesome milk produced and pasteurized in Illinois. 'The importer * * * may keep his milk or drink it, but sell it he may not.' Id., 294 U.S. at page 521, 55 S.Ct. at page 500. In thus erecting an economic barrier protecting a major local industry against competition from without the State, Madison plainly discriminates against interstate commerce.4 This it cannot do, even in the exercise of its unquestioned power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests, are available. Cf. Baldwin v. G.A.F. Seelig, Inc., supra, 294 U.S. at page 524, 55 S.Ct. at page 500; State of Minnesota v. Barber, 1890, 136 U.S. 313, 328, 10 S.Ct. 862, 866, 34 L.Ed. 455. A different view, that the ordinance is valid simply because it professes to be a health measure, would mean that the Commerce Clause of itself imposes no limitations on state action other than those laid down by the Due Process Clause, save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods. Cf. H. P. Hood & Sons v. Du Mond, supra. Our issue then is whether the discrimination inherent in the Madison ordinance can be justified in view of the character of the local interests and the available methods of protecting them. Cf. Union Brokerage Co. v. Jensen, 1944, 322 U.S. 202, 211, 64 S.Ct. 967, 973, 88 L.Ed. 1227. 11 It appears that reasonable and adequate alternatives are available. If the City of Madison prefers to rely upon its own officials for inspection of distant milk sources, such inspection is readily open to it without hardship for it could charge the actual and reasonable cost of such inspection to the importing producers and processors. Cf. Sprout v. City of South Bend, 1928, 277 U.S. 163, 169, 48 S.Ct. 502, 504, 72 L.Ed. 833; see Miller v. Williams, D.C.Md., 1935, 12 F.Supp. 236, 242, 244. Moreover, appellee Health Commissioner of Madison testified that as proponent of the local milk ordinance he had submitted the provisions here in controversy and an alternative proposal based on § 11 of the Model Milk Ordinance recommended by the United States Public Health Service. The model provision imposes no geographical limitation on location of milk sources and processing plants but excludes from the municipality milk not produced and pasteurized conformably to standards as high as those enforced by the receiving city.5 In implementing such an ordinance, the importing city obtains milk ratings based on uniform standards and established by health authorities in the jurisdiction where production and processing occur. The receiving city may determine the extent of enforcement of sanitary standards in the exporting area by verifying the accuracy of safety ratings of specific plants or of the milkshed in the distant jurisdiction through the United States Public Health Service, which routinely and on request spot checks the local ratings. The Commissioner testified that Madison consumers 'would be safeguarded adequately' under either proposal and that he had expressed no preference. The milk sanitarian of the Wisconsin State Board of Health testified that the State Health Department recommends the adoption of a provision based on the Model Ordinance. Both officials agreed that a local health officer would be justified in relying upon the evaluation by the Public Health Service of enforcement conditions in remote producing areas. 12 To permit Madison to adopt a regulation not essential for the protection of local health interests and placing a discriminatory burden on interstate commerce would invite a multiplication of preferential trade areas destructive of the very purpose of the Commerce Clause. Under the circumstances here presented, the regulation must yield to the principle that 'one state in its dealings with another may not place itself in a position of economic isolation.' Baldwin v. G.A.F. Seelig, Inc., supra, 294 U.S. at page 527, 55 S.Ct. at page 502. 13 For these reasons we conclude that the judgment below sustaining the five-mile provision as to pasteurization must be reversed. 14 The Supreme Court of Wisconsin thought it unnecessary to pass upon the validity of the twenty-five-mile limitation, apparently in part for the reason that this issue was made academic by its decision upholding the five-mile section. In view of our conclusion as to the latter provision, a determination of appellant's contention as to the other section is now necessary. As to this issue, therefore, we vacate the judgment below and remand for further proceedings not inconsistent with the principles announced in this opinion. It is so ordered. 15 Judgment vacated and cause remanded. 16 Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice MINTON concur, dissenting. 17 Today's holding invalidates § 7.21 of the Madison, Wisconsin, ordinance on the following reasoning: (1) the section excludes wholesome milk coming from Illinois; (2) this imposes a discriminatory burden on interstate commerce; (3) such a burden cannot be imposed where, as here, there are reasonable, nondiscriminatory and adequate alternatives available. I disagree with the Court's premises, reasoning, and judgment. 18 (1) This ordinance does not exclude wholesome milk coming from Illinois or anywhere else. It does require that all milk sold in Madison must be pasteurized within five miles of the center of the city. But there was no finding in the state courts, nor evidence to justify a finding there or here, that appellant, Dean Milk Company, is unable to have its milk pasteurized within the defined geographical area. As a practical matter, so far as the record shows, Dean can easily comply with the ordinance whenever it wants to. Therefore, Dean's personal preference to pasteurize in Illinois, not the ordinance, keeps Dean's milk out of Madison. 19 (2) Characterization of § 7.21 as a 'discriminatory burden' on interstate commerce is merely a statement of the Court's result, which I think incorrect. The section does prohibit the sale of milk in Madison by interstate and intrastate producers who prefer to pasteurize over five miles distant from the city. But both state courts below found that § 7.21 represents a good-faith attempt to safeguard public health by making adequate sanitation inspection possible. While we are not bound by these findings, I do not understand the Court to overturn them. Therefore, the fact that § 7.21, like all health regulations, imposes some burden on trade, does not mean that it 'discriminates' against interstate commerce. 20 (3) This health regulation should not be invalidated merely because the Court believes that alternative milk-inspection methods might insure the cleanliness and healthfulness of Dean's Illinois milk. I find it difficult to explain why the Court uses the 'reasonable alternative' concept to protect trade when today it refuses to apply the same principle to protect freedom of speech. Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303. For while the 'reasonable alternative' concept has been invoked to protect First Amendment rights, e.g., Schneider v. State of New Jersey, 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed. 155, it has not heretofore been considered an appropriate weapon for striking down local health laws. Since the days of Chief Justice Marshall, federal courts have left states and municipalities free to pass bona fide health regulations subject only 'to the paramount authority of Congress if it decides to assume control * * *.' The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 406, 33 S.Ct. 729, 743, 57 L.Ed. 1511; Gibbons v. Ogden, 9 Wheat. 1, 203, 204, 6 L.Ed. 23; Mintz v. Baldwin, 289 U.S. 346, 349—350, 53 S.Ct. 611, 613, 77 L.Ed. 1245; and see Baldwin v. G.A.F. Seelig, 294 U.S. 511, 524, 55 S.Ct. 497, 500. This established judicial policy of refusing to invalidate genuine local health laws under the Commerce Clause has been approvingly noted even in our recent opinions measuring state regulation by stringent standards. See, e.g., H. P. Hood v. Du Mond, 336 U.S. 525, 531—532, 69 S.Ct. 657, 661, 93 L.Ed. 364. No case is cited, and I have found none, in which a bona fide health law was struck down on the ground that some other method of safeguarding health would be as good as, or better than, the one the Court was called on to review. In my view, to use this ground now elevates the right to traffic in commerce for profit above the power of the people to guard the purity of their daily diet of milk. 21 If, however, the principle announced today is to be followed, the Court should not strike down local health regulations unless satisfied beyond a reasonable doubt that the substitutes it proposes would not lower health standards. I do not think that the Court can so satisfy itself on the basis of its judicial knowledge. And the evidence in the record leads me to the conclusion that the substitute health measures suggested by the Court do not insure milk as safe as the Madison ordinance requires. 22 One of the Court's proposals is that Madison require milk processors to pay reasonable inspection fees at the milk supply 'sources.' Experience shows, however, that the fee method gives rise to prolonged litigation over the calculation and collection of the charges. E.g., Sprout v. City of South Bend, 277 U.S. 163, 48 S.Ct. 502, 72 L.Ed. 833; Capitol Greyhound Lines v. Brice, 339 U.S. 542, 70 S.Ct. 806. To throw local milk regulation into such a quagmire of uncertainty jeopardizes the admirable milk-inspection systems in force in many municipalities. Moreover, nothing in the record before us indicates that the fee system might not be as costly to Dean as having its milk pasteurized in Madison. Surely the Court is not resolving this question by drawing on its 'judicial knowledge' to supply information as to comparative costs, convenience, or effectiveness. 23 The Court's second proposal is that Madison adopt § 11 of the 'Model Milk Ordinance.' The state courts made no findings as to the relative merits of this inspection ordinance and the one chosen by Madison. The evidence indicates to me that enforcement of the Madison law would assure a more healthful quality of milk than that which is entitled to use the label of 'Grade A' under the Model Ordinance. Indeed, the United States Board of Public Health, which drafted the Model Ordinance, suggests that the provisions are 'minimum' standards only. The Model Ordinance does not provide for continuous investigation of all pasteurization plants as does § 7.21 of the Madison ordinance. Under § 11, moreover, Madison would be required to depend on the Chicago inspection system since Dean's plants, and the farms supplying them with raw milk, are located in the Chicago milkshed. But there is direct and positive evidence in the record that milk produced under Chicago standards did not meet the Madison requirements. 24 Furthermore, the Model Ordinance would force the Madison health authorities to rely on 'spot checks' by the United States Public Health Service to determine whether Chicago enforced its milk regulations. The evidence shows that these 'spot checks' are based on random inspection of farms and pasteurization plants: the United States Public Health Service rates the ten thousand or more dairy farms in the Chicago milkshed by a sampling of no more than two hundred farms. The same sampling technique is employed to inspect pasteurization plants. There was evidence that neither the farms supplying Dean with milk nor Dean's pasteurization plants were necessarily inspected in the last 'spot check' of the Chicago milkshed made two years before the present case was tried. 25 From what this record shows, and from what it fails to show, I do not think that either of the alternatives suggested by the Court would assure the people of Madison as pure a supply of milk as they receive under their own ordinance. On this record I would uphold the Madison law. At the very least, however, I would not invalidate it without giving the parties a chance to present evidence and get findings on the ultimate issues the Court thinks crucial—namely, the relative merits of the Madison ordinance and the alternatives suggested by the Court today. 1 General Ordinances of the City of Madison, 1949, § 7.21 provides as follows: 'It shall be unlawful for any person, association or corporation to sell, offer for sale or have in his or its possession with intent to sell or deliver in the City of Madison, any milk, cream or milk products as pasteurized unless the same shall have been pasteurized and bottled in the manner herein provided within a radius of five miles from the central portion of the City of Madison otherwise known as the Capitol Square, at a plant housing the machinery, equipment and facilities, all of which shall have been approved by the Department of Public Health.' 2 Id., § 7.11, provides in pertinent part as follows: 'It shall be unlawful for any person to bring into or receive into the City of Madison, Wisconsin, or its police jurisdiction, for sale, or to sell, or offer for sale therein, or to have in storage where milk or milk products are sold or served, any milk or milk product as defined in this ordinance from a source not possessing a permit from the Health Commissioner of the City of Madison, Wisconsin. 'Only a person who complies with the requirements of this ordinance shall be entitled to receive and retain such a permit. 'On the filing of an application for a permit with the Health Commissioner, he shall cause the source of supply named therein to be inspected and shall cause all other necessary inspections and investigations to be made. The Department of Public Health shall not be obligated to inspect and issue permits to farms located beyond twenty-five (25) miles from the central portion of the City of Madison otherwise known as the Capitol Square. * * *' 3 In upholding § 7.21, note 1 supra, the court relied upon the principles announced by it in Dyer v. City Council of Beloit, 1947, 250 Wis. 613, 27 N.W.2d 733, judgment vacated, 1948, 333 U.S. 825, 68 S.Ct. 87, 92 L.Ed. 1111. 4 It is immaterial that Wisconsin milk from outside the Madison area is subjected to the same proscription as that moving in interstate commerce. Cf. Brimmer v. Rebman, 1891, 138 U.S. 78, 82—83, 11 S.Ct. 213, 214, 34 L.Ed. 862. 5 Section 11 of the United States Public Health Service Milk Ordinance as recommended in 1939 provides: 'Milk and milk products from points beyond the limits of routine inspection of the city of .......... may not be sold in the city of .........., or its police jurisdiction, unless produced and/or pasteurized under provisions equivalent to the requirements of this ordinance; provided that the health officer shall satisfy himself that the health officer having jurisdiction over the production and processing is properly enforcing such provisions.' The following comment on this section is contained in the Public Health Service Milk Code: 'It is suggested that the health officer approve milk or milk products from distant points without his inspection if they are produced and processed under regulations equivalent to those of this ordinance, and if the milk or milk products have been awarded by the State control agency a rating of 90 percent or more on the basis of the Public Health Service rating method.' Federal Security Agency, Public Health Bulletin No. 220 (1939), 145.

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340 U.S. 290 71 S.Ct. 312 95 L.Ed. 280 KUNZv.PEOPLE OF STATE OF NEW YORK. No. 50. Argued Oct. 17, 1950. Decided Jan. 15, 1951. Mr. Osmond K. Fraenkel, New York City, for appellant. Mr. Seymour B. Quel, New York City, for appellee. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 New York City has adopted an ordinance which makes it unlawful to hold public worship meetings on the streets without first obtaining a permit from the city police commissioner.1 Appellant, Carl Jacob Kunz, was convicted and fined $10 for violating this ordinance by holding a religious meeting without a permit. The conviction was affirmed by the Appellate Part of the Court of Special Sessions, and by the New York Court of Appeals, three judges dissenting, 1950, 300 N.Y. 273, 90 N.E.2d 455. The case is here on appeal, it having been urged that the ordinance is invalid under the Fourteenth Amendment. 2 Appellant is an ordained Baptist minister who speaks under the auspices of the 'Outdoor Gospel Work,' of which he is the director. He has been preaching for about six years, and states that it is his conviction and duty to 'go out on the highways and byways and preach the word of God.' In 1946, he applied for and received a permit under the ordinance in question, there being no question that appellant comes within the classes of persons entitled to receive permits under the ordinance.2 This permit, like all others, was good only for the calendar year in which issued. In November, 1946, his permit was revoked after a hearing by the police commissioner. The revocation was based on evidence that he had ridiculed and denounced other religious beliefs in his meetings. 3 Although the penalties of the ordinance apply to anyone who 'ridicules and denounces other religious beliefs,' the ordinance does not specify this as a ground for permit revocation. Indeed, there is no mention in the ordinance of any power of revocation. However, appellant did not seek judicial or administrative review of the revocation proceedings, and any question as to the propriety of the revocation is not before us in this case. In any event, the revocation affected appellant's rights to speak in 1946 only. Appellant applied for another permit in 1947, and again in 1948, but was notified each time that his application was 'disapproved,' with no reason for the disapproval being given. On September 11, 1948, appellant was arrested for speaking at Columbus Circle in New York City without a permit. It is from the conviction which resulted that this appeal has been taken. 4 Appellant's conviction was thus based upon his failure to possess a permit for 1948. We are here concerned only with the propriety of the action of the police commissioner in refusing to issue that permit. Disapproval of the 1948 permit application by the police commissioner was justified by the New York courts on the ground that a permit had previously been revoked 'for good reasons'3. It is noteworthy that there is no mention in the ordinance of reasons for which such a permit application can be refused. This interpretation allows the police commissioner, an administrative official, to exercise discretion in denying subsequent permit applications on the basis of his interpretation, at that time, of what is deemed to be conduct condemned by the ordinance. We have here, then, an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights. 5 In considering the right of a municipality to control the use of public streets for the expression of religious views, we start with the words of Mr. Justice Roberts that 'Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' Hague v. C.I.O., 1939, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423. Although this Court has recognized that a statute may be enacted which prevents serious interference with normal usage of streets and parks, Cox v. State of New Hampshire, 1941, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, we have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places. In Cantwell v. State of Connecticut, 1940, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, this Court held invalid an ordinance which required a license for soliciting money for religious causes. Speaking for a unanimous Court, Mr. Justice Roberts said: 'But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.' 310 U.S. at page 307, 60 S.Ct. at page 904. To the same effect are Lovell v. City of Griffin, 1938, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Hague v. C.I.O., 1939, 307 U.S. 496, 58 S.Ct. 954, 83 L.Ed. 1423; Largent v. State of Texas, 1943, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873. In Saia v. People of State of New York, 1948, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574, we reaffirmed the invalidity of such prior restraints upon the right to speak: 'We hold that § 3 of this ordinance is unconstitutional on its face, for it establishes a previous restraint on the right of free speech in violation of the First Amendment which is protected by the Fourteenth Amendment against State action. To use a loudspeaker or amplifier one has to get a permit from the Chief of Police. There are no standards prescribed for the exercise of his discretion.' 334 U.S. at pages 559—560, 68 S.Ct. at page 1149, 92 L.Ed. 1574. 6 The court below has mistakenly derived support for its conclusion from the evidence produced at the trial that appellant's religious meetings had, in the past, caused some disorder. There are appropriate public remedies to protect the peace and order of the community if appellant's speeches should result in disorder or violence. 'In the present case, we have no occasion to inquire as to the permissible scope of subsequent punishment.' Near v. State of Minnesota, 1931, 283 U.S. 697, 715, 51 S.Ct. 625, 631, 75 L.Ed. 1357. We do not express any opinion on the propriety of punitive remedies which the New York authorities may utilize. We are here concerned with suppression—not punishment. It is sufficient to say that New York cannot vest restraining control over the right to speak on religious subjects in an administrative official where there are no appropriate standards to guide his action. 7 Reversed. 8 Mr. Justice BLACK concurs in the result. 9 Mr. Justice FRANKFURTER concurs in the result. 10 For concurring opinion see 340 U.S. 268, 71 S.Ct. 328. 11 Mr. Justice JACKSON, dissenting. 12 Essential freedoms are today threatened from without and within. It may become difficult to preserve here what a large part of the world has lost—the right to speak, even temperately, on matters vital to spirit and body. In such a setting, to blanket hateful and hate-stirring attacks on races and faiths under the protections for freedom of speech may be a noble innovation. On the other hand, it may be a quixotic tilt at windmills which belittles great principles of liberty. Only time can tell. But I incline to the latter view and cannot assent to the decision. I. 13 To know what we are doing, we must first locate the point at which rights asserted by Kunz conflict with powers asserted by the organized community. New York City has placed no limitation upon any speech Kunz may choose to make on private property, but it does require a permit to hold religious meetings in its streets. The ordinance, neither by its terms nor as it has been applied, prohibited Kunz,1 even in street meetings, from preaching his own religion or making any temperate criticism or refutation of other religions; indeed, for the year 1946, he was given a general permit to do so. His meetings, however, brought 'a flood of complaints' to city authorities that he was engaging in scurrilous attacks on Catholics and Jews. On notice, he was given a hearing at which eighteen complainants appeared. The Commissioner revoked his permit and applications for 1947 and 1948 were refused. For a time he went on holding meetings without a permit in Columbus Circle, where in September, 1948, he was arrested for violation of the ordinance. He was convicted and fined ten dollars. 14 At these meetings, Kunz preached, among many other things of like tenor, that 'The Catholic Church makes merchandise out of souls,' that Catholicism is 'a religion of the devil,' and that the Pope is 'the anti-Christ.' The Jews he denounced as 'Christ-killers,' and he said of them, 'All the garbage that didn't believe in Christ should have been burnt in the incinerators. It's a shame they all weren't.' 15 These utterances, as one might expect, stirred strife and threatened violence. Testifying in his own behalf, Kunz stated that he 'became acquainted with' one of the complaining witnesses, whom he thought to be a Jew, 'when he happened to sock one of my Christian boys in the puss.' Kunz himself complained to the authorities, charging a woman interrupter with disorderly conduct. He also testified that when an officer is not present at his meetings 'I have trouble then,' but 'with an officer, no trouble.' 16 The contention which Kunz brings here and which this Court sustains is that such speeches on the streets are within his constitutional freedom and therefore New York City has no power to require a permit. He does not deny that this has been and will continue to be his line of talk.2 He does not claim that he should have been granted a permit; he attacks the whole system of control of street meetings and says the Constitution gives him permission to speak and he needs none from the City. II. 17 The speeches which Kunz has made and which he asserts he has a right to make in the future were properly held by the courts below to be out of bounds for a street meeting and not constitutionally protected. This Court, without discussion, makes a contrary assumption which is basic to its whole opinion. It says New York has given 'an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets'. Again, it says that 'prior restraint on the exercise of First Amendment rights' invalidates the ordinance. (Emphasis supplied.) This seems to take the last step first, assuming as a premise what is in question. Of course, if Kunz is only exercising his constitutional rights, then New York can neither restrain nor punish him. But I doubt that the Court's assumption will survive analysis. 18 This Court today initiates the doctrine that language such as this, in the environment of the street meeting, is immune from prior municipal control. We would have a very different question if New York had presumed to say that Kunz could not speak his piece in his own pulpit or hall. But it has undertaken to restrain him only if he chooses to speak at street meetings. There is a world of difference. The street preacher takes advantage of people's presence on the streets to impose his message upon what, in a sense, is a captive audience. A meeting on private property is made up of an audience that has volunteered to listen. The question, therefore, is not whether New York could, if it tried, silence Kunz, but whether it must place its streets at his service to hurl insults at the passerby. 19 What Mr. Justice Holmes said for a unanimous Court in Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, has become an axion: 'The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.' This concept was applied in one of its few unanimous decisions in recent years, when, through Mr. Justice Murphy, the Court said: 'There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. * * *' (Emphasis supplied.) Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571—572, 62 S.Ct. 766, 769, 86 L.Ed. 1031. 20 There held to be 'insulting or 'fighting' words' were calling one a 'God damned racketeer' and a 'damned Fascist.' Equally inciting and more clearly 'fighting words,' when thrown at Catholics and Jews who are rightfully on the streets of New York, are statements that 'The Pope is the anti-Christ' and the Jews are 'Christ-killers.' These terse epithets come down to our generation weighted with hatreds accumulated through centuries of bloodshed. They are recognized words of art in the profession of defamation. They are not the kind of insult that men bandy and laugh off when the spirits are high and the flagons are low. They are not in that class of epithets whose literal sting will be drawn if the speaker smiles when he uses them. They are always, and in every context, insults which do not spring from reason and can be answered by none. Their historical associations with violence are well understood, both by those who hurl and those who are struck by these missiles. Jews, many of whose families perished in extermination furnaces of Dachau and Auschwitz, are more than tolerant if they pass off lightly the suggestion that unbelievers in Christ should all have been burned. Of course, people might pass this speaker by as a mental case, and so they might file out of a theatre in good order at the cry of 'fire.' But in both cases there is genuine likelihood that someone will get hurt. 21 This Court's prior decisions, as well as its decisions today, will be searched in vain for clear standards by which it does, or lower courts should, distinguish legitimate speaking from that acknowledged to be outside of constitutional protection. One reason for this absence is that this Court has had little experience in deciding controversies over city control of street meetings. As late as 1922, this Court declared, '* * * neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the States any restrictions about 'freedom of speech' * * *.' Prudential Insurance Co. of America v. Cheek, 259 U.S. 530, 543, 42 S.Ct. 516, 522, 66 L.Ed. 1044. But with the expanded authority recently assumed under the Due Process Clause of the Fourteenth Amendment, we must, unless we are to review a multitude of police-court cases, declare standards by which they may be decided below. 22 What evidences that a street speech is so provocative, insulting or inciting as to be outside of constitutional immunity from community interference? Is it determined by the actual reaction of the hearers? Or is it a judicial appraisal of the inherent quality of the language used? Or both? 23 I understand, though disagree with, the minority in the Feiner case, Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, who, so far as I can see, would require no standards since they recognize no limits at all, considering that some rioting is the price of free speech and that the city must allow all speech and pay the price. But every juristic or philosophic authority recognized in this field admits that there are some speeches one is not free to make.3 The problem, on which they disagree, is how and where to draw the line. 24 It is peculiar that today's opinion makes no reference to the 'clear and present danger' test which for years has played some part in free-speech cases. Cf. American Communications Ass'n v. Douds, 339 U.S. 382, 393, 70 S.Ct. 674, 681. If New York has benefit of the rule as Mr. Justice Holmes announced it, Schenck v. United States, supra, 249 U.S. at page 52, 39 S.Ct. at page 249, 63 L.Ed. 470, it would mean that it could punish or prevent speech if '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 the City has a right to prevent, among which I should suppose we would list street fighting or riots. As I have pointed out, the proof in this case leaves no doubt that Kunz's words, in the environment of the streets, have and will result in that, unless a police escort attends to awe the hearers into submission. 25 A hostile reception of his subject certainly does not alone destroy one's right to speak. A temperate and reasoned criticism of Roman Catholicism or Judaism might, and probably would, cause some resentment and protest. But in a free society all sects and factions, as the price of their own freedom to preach their views, must suffer that freedom in others. Tolerance of unwelcome, unorthodox ideas or information is a constitutionally protected policy not to be defeated by persons who would break up meetings they do not relish. 26 But emergencies may arise on streets which would become catastrophes if there was not immediate police action. The crowd which should be tolerant may be prejudiced and angry or malicious. If the situation threatens to get out of hand for the force present, I think the police may require the speaker, even if within his rights, to yield his right temporarily to the greater interest of peace. Of course, the threat must be judged in good faith to be real, immediate and serious. But silencing a speaker by authorities as a measure of mob control is like dynamiting a house to stop the spread of a conflagration. It may be justified by the overwhelming community interest that flames not be fed as compared with the little interest to be served by continuing to feed them. But this kind of disorder does not abridge the right to speak except for the emergency and, since the speaker was within his constitutional right to speak, it could not be grounds for revoking or refusing him a permit or convicting him of any offense because of his utterance. If he resisted an officer's reasonable demand to cease, he might incur penalties. 27 And so the matter eventually comes down to the question whether the 'words used are used in such circumstances and are of such a nature' that we can say a reasonable man would anticipate the evil result. In this case the Court does not justify, excuse, or deny the inciting and provocative character of the language, and it does not, and on this record could not, deny that when Kunz speaks he poses a 'clear and present' danger to peace and order. Why, then, does New York have to put up with it? 28 It is well to be vigilant to protect the right of Kunz to speak, but is he to be sole judge as to how far he will carry verbal attacks in the public streets? Is official action the only source of interference with religious freedom? Does the Jew, for example, have the benefit of these freedoms when, lawfully going about, he and his children are pointed out as 'Christ-killers' to gatherings on public property by a religious sectarian sponsored by a police bodyguard? 29 We should weight the value of insulting speech against its potentiality for harm. Is the Court, when declaring Kunz has the right he asserts, serving the great end for which the First Amendment stands? 30 The purpose of constitutional protection of speech is to foster peaceful interchange of all manner of thoughts, information and ideas. Its policy is rooted in faith in the force of reason. This Court wisely has said, 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution'. Cantwell v. State of Connecticut, 310 U.S. 296, 309 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213. 'It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' So said we all in Chaplinsky v. State of New Hampshire, supra, 315 U.S., at page 572, 62 S.Ct. at page 769, 86 L.Ed. 1031. It would be interesting if the Court would expose its reasons for thinking that Kunz's words are of more social value than those of Chaplinsky. III. 31 It is worthwhile to note that the judicial technique by which this Court strikes down the ordinance is very different from that employed by the New York Court of Appeals, which sustained it. The contrary results appear to be largely due to this dissimilarity. 32 The Court of Appeals did not treat the ordinance as existing in a vacuum but considered all the facts of the controversy. While it construed the ordinance 'as requiring the commissioner to give an annual permit for street preaching, to anyone who, like defendant, is a minister of religion,' 300 N.Y. 273, 276, 90 N.E.2d 455, 456 (emphasis supplied), it held on the facts that when, as here, the applicant 'claims a constitutional right to incite riots, and a constitutional right to the services of policemen to quell those riots', then a permit need not be issued. 300 N.Y. at page 278, 90 N.E.2d at page 457. 33 This Court, however, refuses to take into consideration Kunz's 'past' conduct or that his meetings have 'caused some disorder.' Nor does it deny that disorders will probably occur again. It comes close to rendering an advisory opinion when it strikes down this ordinance without evaluating the factual situation which has caused it to come under judicial scrutiny. If it were not for these characteristics of the speeches by Kunz, this ordinance would not be before us, yet it is said that we can hold it invalid without taking into consideration either what he has done or what he asserts a right to do. 34 It may happen that a statute will disclose by its very language that it is impossible of construction in a manner consistent with First Amendment rights. Such is the case where it aims to control matters patently not a proper subject of the police power. Lovell v. City of Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668, 82 L.Ed. 949. Cf. Hague v. CIO, 307 U.S. 496, 58 S.Ct. 954, 83 L.Ed. 1423; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574. Usually, however, the only proper approach takes into consideration both the facts of the case and the construction which the State has placed on the challenged law. Near v. State of Minnesota, 283 U.S. 697, 708, 51 S.Ct. 625, 628, 75 L.Ed. 1357; Cantwell v. State of Connecticut, supra, 310 U.S. at page 303, 60 S.Ct. at page 903, 84 L.Ed. 1213; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513; Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131. And in the absence of facts in the light of which the statute may be construed, we have said the proper procedure is not to pass on whether it conflicts with First Amendment rights. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877. That the approach will determine the result is indicated by comparison of the Saia case, in which an ordinance was held void on its face, with the Kovacs case, in which a similar ordinance, when tested as construed and applied, was held valid. The vital difference, as this case demonstrates, is that it is very easy to read a statute to permit some hypothetical violation of civil rights but difficult to draft one which will not be subject to the same infirmity. 35 This Court has not applied, and, I venture to predict, will not apply, to federal statutes the standard that they are unconstitutional if it is possible that they may be unconstitutionally applied. We should begin consideration of this case by deciding whether the opportunity to repeat his vituperative street speeches is within Kunz's constitutional rights, and here he must win on the strength of his own right.4 IV. 36 The question remains whether the Constitution prohibits a city from control of its streets by a permit system which takes into account dangers to public peace and order. I am persuaded that it does not do so, provided, of course, that the city does not so discriminate as to deny equal protection of the law or undertake a censorship of utterances that are not so defamatory, insulting, inciting, or provocative as to be reasonably likely to cause disorder and violence. 37 The Court does not hold that New York has abused the permit system by discrimination or actual censorship, nor does it deny the abuses of Kunz's part. But neither, says the Court, matters, holding that any prior restraint is bad, regardless of how fairly administered or what abuses it seeks to prevent. 38 It strikes rather blindly at permit systems which indirectly may affect First Amendment freedoms. Cities throughout the country have adopted the permit requirement to control private activities on public streets and for other purposes.5 The universality of this of regulation demonstrates a need and indicates widespread opinion in the profession that it is not necessarily incompatible with our constitutional freedoms. Is everybody out of step but this Court? 39 Until recently this custom of municipalities was regarded by this Court as consistent with the Constitution. It approved this identical ordinance in Smith v. People of State of New York, 292 U.S. 606, 54 S.Ct. 775, 78 L.Ed. 1468.6 This decision is now overruled. Although the ordinance was then attacked as a denial of equal protection of the law for failure to prescribe a reasonable classification, I cannot attribute to that decision as narrow an interpretation as the Court. Would this Court sustain an ordinance as providing a reasonable classification if the purpose of the classification was void on its face? 40 In the Chaplinsky case, prevention as well as punishment of 'limited classes of speech * * * have never been thought to raise any Constitutional problem.' (Emphasis supplied.) Mr. Justice Holmes pointed out in the Schenk case that the Constitution would not protect one from an injunction against uttering words that lead to riot. In Cox v. State of New Hampshire, 312 U.S. 569, 577 578, 61 S.Ct. 762, 766, 85 L.Ed. 1049, Chief Justice Hughes, for a unanimous Court, distinguished the requirement of a license for a parade or procession from other cases now relied on by this Court. He found requirement of a permit there constitutional and observed that such authority 'has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend.' 312 U.S. at page 574, 61 S.Ct. at page 765. The concept of civil liberty without order is the contribution of later-day jurists. 41 The Court, as authority for stripping New York City of control of street meetings, resurrects Saia v. New York, supra, which I, like some who now rely on it, had supposed was given decent burial by Kovacs v. Cooper, supra. Must New York, if it is to avoid chaos in its streets, resort to the sweeping prohibitions sanctioned in Kovacs, instead of the milder restraints of this permit system? Compelling a choice between allowing all meetings or no meetings is a dubious service to civil liberties. 42 Of course, as to the press, there are the best of reasons against any licensing or prior restraint. Decisions such as Near v. State of Minnesota, supra, hold any licensing or prior restraint of the press unconstitutional, and I heartily agree. But precedents from that field cannot reasonably be transposed to the street-meeting field. The impact of publishing on public order has no similarity with that of a street meeting. Publishing does not make private use of public property. It reaches only those who choose to read, and, in that way, is analogous to a meeting held in a hall where those who come do so by choice. Written words are less apt to incite or provoke to mass action than spoken words, speech being the primitive and direct communication with the emotions. Few are the riots caused by publication alone, few are the mobs that have not had their immediate origin in harangue. The vulnerability of various forms of communication to community control must be proportioned to their impact upon other community interests. 43 It is suggested that a permit for a street meeting could be required if the ordinance would prescribe precise standards for its grant or denial. This defect, if such it be, was just as apparent when, in the Smith case, this Court upheld the ordinance as it is today. The change must be found in the Court, not in the ordinance. 44 And what, in terms of its philosophy of decision, is this change? It is to require more severe and exacting standards of state and local statutes than of federal statutes. As this case exemplifies, local acts are struck down, not because in practical application they have actually invaded anyone's protected freedoms, but because they do not set up standards which would make such invasion impossible. However, with federal statutes, we say they must stand unless they require, or in application are shown actually to have resulted in, an invasion of a protected freedom.7 45 Of course, standards for administrative action are always desirable, and the more exact the better. But I do not see how this Court can condemn municipal ordinances for not setting forth comprehensive First Amendment standards. This Court never has announced what those standards must be, it does not now say what they are, and it is not clear that any majority could agree on them. In no field are there more numerous individual opinions among the Justices. The Court as an institution not infrequently disagrees with its former self or relies on distinctions that are not very substantial. Compare Jones v. City of Opelika of 1942, 316 U.S. 584, 62 S.Ct. 1231, 86 L.Ed. 1691, with Jones v. City of Opelika of 1943, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290, Minersville School District v. Gobitis of 1940; 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375, with West Virginia State Board of Education v. Barnette of 1943, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; Saia v. New York of 1948, supra, with Kovacs v. Cooper of 1949, supra. It seems hypercritical to strike down local laws on their faces for want of standards when we have no standards.8 And I do not find it required by existing authority. I think that where speech is outside of constitutional immunity the local community or the State is left a large measure of discretion as to the means for dealing with it. V. 46 If the Court is deciding that the permit system for street meetings is so unreasonable as to deny due process of law, it would seem appropriate to point out respects in which it is unreasonable. This I am unable to learn, from this or any former decision. The Court holds, however, that Kunz must not be required to get permission, the City must sit by until some incident, perhaps a sanguinary one, occurs and then there are unspecified 'appropriate public remedies'. We may assume reference is to the procedure of the Feiner case which, with one-third of the Court dissenting, is upheld.9 This invites comparison of the merits of the two methods both as to impact on civil liberties and as to achieving the ends of public order. 47 City officials stopped the meetings of both Feiner and Kunz. The process by which Feiner was stopped was the order of patrolmen, put into immediate effect without hearing. Feiner may have believed there would be no interference but Kunz was duly warned by refusal of a permit. He was advised of charges, given a hearing, confronted by witnesses, and afforded a chance to deny the charges or to confess them and offer to amend his ways. The decision of revocation was made by a detached and responsible administrative official and Kunz could have had the decision reviewed in court. 48 The purpose of the Court is to enable those who feel a call to proselytize to do so by street meetings. The means is to set up a private right to speak in the city streets without asking permission.10 Of course, if Kunz may speak without a permit, so may anyone else. If he may speak whenever and wherever he may elect, I know of no way in which the City can silence the heckler, the interrupter, the dissenter, the rivals with missionary fervor, who have an equal right at the same time and place to lift their voices. And, of course, if the City may not stop Kunz from uttering insulting and 'fighting' words, neither can it stop his adversaries, and the discussion degenerates to a name-calling contest without social value and, human nature being what it is, to a fight or perhaps a riot. The end of the Court's method is chaos. 49 But if the Court conceives, as Feiner indicates, that upon uttering insulting, provocative or inciting words the policeman on the best may stop the meeting, then its assurance of free speech in this decision is 'a promise to the ear to be broken to the hope,' if the patrolman on the beat happens to have prejudices of his own. 50 Turning then to the permit system as applied by the Court of Appeals, whose construction binds us, we find that issuance the first time is required. Denial is warranted only in such unusual cases as where an applicant has had a permit which has been revoked for cause and he asserts the right to continue the conduct which was cause for revocation. If anything less than a reasonable certainty of disorder was shown, denial of a permit would be improper. The procedure by which that decision is reached commends itself to the orderly mind—complaints are filed, witnesses are heard, opportunity to cross-examine is given, and decision is reached by what we must assume to be an impartial and reasonable administrative officer, and, if he denies the permit, the applicant may carry his cause to the courts. He may thus have a civil test of his rights without the personal humiliation of being arrested as presenting a menace to public order. It seems to me that this procedure better protects freedom of speech than to let everyone speak without leave, but subject to surveillance and to being ordered to stop in the discretion of the police. 51 It is obvious that a permit is a source of security and protection for the civil liberties of the great number who are entitled to receive them. It informs the police of the time and place one intends to speak, which allows necessary steps to insure him a place to speak where overzealous police officers will not order everyone who stops to listen to move on, and to have officers present to insure an orderly meeting. Moreover, disorder is less likely, for the speaker knows that if he provokes disorder his permit may be revoked, and the objector may be told that he has a remedy by filing a complaint and does not need to take the law in his own hands. Kunz was not arrested in 1946, when his speeches caused serious objections, nor was he set upon by the crowd. Instead, they did the orderly thing and made complaints which resulted in the revocation of his permit. This is the method that the Court frustrates today. 52 Of course, emergencies may arise either with or without the permit system. A speaker with a permit may go beyond bounds and incite violence, or a mob may undertake to break up an authorized and properly conducted meeting. In either case, the policeman on the spot must make the judgment as to what measures will most likely avoid violent disorders. But these emergencies seem less likely to occur with the permit system than if every man and his adversary take the law in their own hands. 53 The law of New York does not segregate, according to their diverse nationalities, races, religions, or political associations, the vast hordes of people living in its narrow confines. Every individual in this frightening aggregation is legally free to live, to labor, to travel, when and where he chooses. In streets and public places, all races and nationalities and all sorts and conditions of men walk, linger and mingle. Is it not reasonable that the City protect the dignity of these persons against fanatics who take possession of its streets to hurl into its crowds defamatory epithets that hurt like rocks? 54 If any two subjects are intrinsically incendiary and divisive, they are race and religion. Racial fears and hatreds have been at the root of the most terrible riots that have disgraced American civilization. They are ugly possibilities that overhang every great American city. The 'consecrated hatreds of sect' account for more than a few of the world's bloody disorders. These are the explosives which the Court sys Kunz may play with in the public streets, and the community must not only tolerate but aid him. I find no such doctrine in the Constitution. 55 In this case there is no evidence of a purpose to suppress speech, except to keep it in bounds that will not upset good order. If there are abuses of censorship or discrimination in administering the ordinance, as well there may be, they are not proved in this case. This Court should be particularly sure of its ground before it strikes down, in a time like this, the going, practical system by which New York has sought to control its street-meeting problem. 56 Addressing himself to the subject, 'Authority and the Individual,' one of the keenest philosophers of our time observes: 'The problem, like all those with which we are concerned, is one of balance; too little liberty brings stagnation, and too much brings chaos.'11 Perhaps it is the fever of our times that inclines the Court today to favor chaos. My hope is that few will take advantage of the license granted by today's decision. But life teaches on to distinguish between hope and faith. 1 Section 435—7.0 of chapter 18 of the Administrative Code of the City of New York reads as follows: 'a. Public worship.—It shall be unlawful for any person to be concerned or instrumental in collecting or promoting any assemblage of persons for public worship or exhortation, or to ridicule or denounce any form of religious belief, service or reverence, or to preach or expound atheism or agnosticism, or under any pretense therefor, in any street. A clergyman or minister of any denomination, however, or any person responsible to or regularly associated with any church or incorporated missionary society, or any lay-preacher, or lay-reader may conduct religious services, or any authorized representative of a duly incorporated organization devoted to the advancement of the principles of atheism or agnosticism may preach or expound such cause, in any public place or places specified in a permit therefor which may be granted and issued by the police commissioner. This section shall not be construed to prevent any congregation of the Baptist denomination from assembling in a proper place for the purpose of performing the rites of baptism, according to the ceremonies of that church. 'b. Interference with street, services.—It shall be unlawful for any person to disturb, molest or interrupt any cleargyman, minister, missionary, lay-preacher or lay-reader, who shall be conducting religious services by authority of a permit, issued hereunder, or any minister or people who shall be performing the rite of baptism as permitted herein, nor shall any person commit any riot or disorder in any such assembly. 'c. Violations.—Any person who shall violate any provision of this section, upon conviction thereof, shall be punished by a fine of not more than twenty-five dollars, or imprisonment for thirty days, or both.' This ordinance was previously challenged in People v. Smith, 263 N.Y. 255, 188 N.E. 745, appeal dismissed for want of a substantial federal question, Smith v. People of State of New York, 1934, 292 U.S. 606, 54 S.Ct. 775, 78 L.Ed. 1468. Smith, who had not applied for a permit under the ordinance, argued that the regulation of religious speakers alone constituted an unreasonable classification. None of the questions involved in the instant appeal were presented in the previous case. 2 The New York Court of Appeals has construed the ordinance to require that all initial requests for permits by eligible applicants must be granted. 300 N.Y. at page 276, 90 N.E.2d at page 456. 3 The New York Court of Appeals said: 'The commissioner had no reason to assume, and no promise was made, that defendant wanted a new permit for any uses different from the disorderly ones he had been guilty of before.' 300 N.Y. at page 278, 90 N.E.2d at page 457. 1 Kunz is within the classifications of persons to whom such permits may issue. Hence, we have here no challenge based on its exclusions. If an excluded person made appropriate challenge on equal protection grounds, I should very much doubt if the ordinance could be sustained. See, however, Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533, which sustains the power of New York City to classify printed communications it will permit on its streets on a basis that seems more remote from any traffic effect than a street meeting. 2 'Q. It is your religious conviction that this is the way you are to practice your religion? A. Yes. I feel this way, that the Holy Bible is the word of God. And whether the Holy Bible, the word of God, ridicules or denounces any man's religion, I am going to preach it. I feel I have a perfect right.' If there were otherwise any doubt that Kunz proposes to resume these attacks, it should be dispelled by the letters he has addressed to members of this Court asserting his right to do so and assailing, on religious grounds, judges who decided his case below. 3 One of these latter is Prof. Meiklejohn, who would go so far as to discard the 'clear and present danger' formula, at least as a restriction on political discussion, which he says '* * * stands on the record of the court as a peculiarly inept and unsuccessful attempt to formulate an exception to the principle of the freedom of speech.' Meiklejohn, Free Speech, And Its Relation to Self-Government, p. 50. But even he does not support unlimited speech. He says, '* * * No one can doubt that, in and well-governed society, the legislature has both the right and the duty to prohibit certain forms of speech. Libellous assertions may be, and must be, forbidden and punished. So too must slander. Words which incite men to crime are themselves criminal and must be dealt with as such. Sedition and treatson may be expressed by speech or writing. And, in those cases, decisive repressive action by the government is imperative for the sake of the general welfare. All these necessities that speech be limited are recognized and provided for under the Constitution. * * *' Id., at 18. 4 Brandeis, J., concurring, in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688. 5 New York, for example, has found a permit system the practical means of controlling meetings in its parks. This Court, as presently constituted, only last Term dismissed an attack on the park permit system 'for want of a substantial federal question', Justices Black and Douglas dissenting. Hass v. New York, 338 U.S. 803, 70 S.Ct. 66. New York also has used the requirement of a permit for assemblages which mask their faces to suppress the Ku Klux Klan without stopping harmless masquerade balls and the like. Penal Law, McK.Consol.Laws, c. 40, § 710. The permit system is used in many other situations where conceivable civil liberties are involved. 6 The issue was drawn for them with clarity by Chief Judge Pound in People v. Smith, 263 N.Y. 255. 257, 188 N.E. 745. The Court of Appeals unanimously said: "It is too well settled by judicial decisions in both the State and Federal courts that a municipality may pass an ordinance making it unlawful to hold public meetings upon the public streets without a permit therefor to require discussion. * * * This ordinance is not aimed against free speech. It is directed towards the manner in which the street may be used. * * *' The passion, rancor and malice sometimes aroused by sectarian religious controversies and attacks on religion seem to justify especial supervision over those who would conduct such meetings on the public streets.' And this Court held that holding presented no constitutional question of substance. 7 United Stataes v. Petrillo, supra. 8 It seems fair to contrast the precision which the Court imposes on municipalities with the standards set forth in the recent Act 'relating to the policing of the building and grounds of the Supreme Court of the United States.' 63 Stat. 616, 40 U.S.C.A. § 13f et seq. That makes it unlawful to 'make any harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.' § 5. It forbids display of any 'flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement.' § 6. Compare with Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. Moreover, it authorizes the Marshal to 'prescribe such regulations, approved by the Chief Justice of the United States, as may be deemed necessary for the adequate protection of the Supreme Court Building and grounds and of persons and property therein, and for the maintenance of suitable order and decorum within the Supreme Court Building and grounds.' § 7. Violation of these provisions or regulations is an offense punishable by fine and imprisonment. Section 10 provides that, 'In order to permit the observance of authorized ceremonies' within the building or grounds, the Marshal 'may suspend for such occasions so much of the prohibitions', including those above, 'as may be necessary for the occasion, but only if responsible officers shall have been appointed, and arrangements determined which are adequate, in the judgment of the Marshal, for the maintenance of suitable order and decorum in the proceedings, and for the protection of the Supreme Court Building and grounds and of persons and property therein.' Here is exalted artistry in declaring crime without definitive and authorizing permits without standards for use of public property for speaking. Of course, the statute would not be reported by the Judiciary Committees without at least informal approval of the Justices. The contrast between the standards set up for cities and those for ourselves suggests that our theorizing may be imposing burdens upon municipal authorities which are impossible or at least impractical to comply with. 9 I join in Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303. When in a colored neighborhood Feiner urged the colored people to rise up in arms and fight, he was using words which may have been 'rhetorical,' but it was the rhetoric of violence. Of course, we cannot tell, from a cold record, whether the action taken was the wisest way of dealing with the situation. But some latitude for honest judgment must be left to the locality. It is a startling proposition to me that serious public utterance which advises, encourages, or incites to a crime may not be made a crime because within constitutional protection. As Mr. Justice Holmes for a unanimous Court in Frohwerk v. United States, 249 U.S. 204, 206, 39 S.Ct. 249, 250, 63 L.Ed. 561, said: '* * * the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326 (328), 41 L.Ed. 715. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.' However, the case of Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325, illustrates the danger of abuse of the permit system which the Court should be alert to prevent. There is no evidence that those applicants were, ever had been, or threatened to be, disorderly or abusive in speech or manner, or that their speaking would be likely to incite or provoke any disorder. The denial of permission for the meeting was charged and appears to have been due to applicants' religious belief that they should not salute any flag, which they may not be compelled to do, and their conscientious objections to bearing arms in war, which Congress has accepted as a valid excuse from combat duty. In the courts of Maryland, this denial, so based, was conclusive against the right to speak. This was use of the permit system for censorship, and the convictions cannot stand. 10 Do we so quickly forget that one of the chief reasons for prohibiting use of 'released time' of school students for religious instruction was that the Constitution will not suffer tax-supported property to be used to propagate religion? People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 648. How can the Court now order use of tax-supported property for the purpose? In other words, can the First Amendment today mean a city cannot stop what yesterday it meant no city could allow? 11 Russell, Authority and the Individual, 25.

23

340 U.S. 361 71 S.Ct. 337 95 L.Ed. 337 NATIONAL LABOR RELATIONS BOARDv.GULLETT GIN CO., Inc. No. 122. Argued Nov. 29, 1950. Decided Jan. 15, 1951. Mr. A. Norman Somers, Washington, D.C., for petitioner. Mr. Conrad Meyer, 3rd, New Orleans, La., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 The question presented here is whether the National Labor Relations Board must deduct from back-pay awards to discriminatorily discharged employees sums paid to them as unemployment compensation by a state agency. 2 The Board found that respondent Gullett Gin Company had discharged certain employees in violation of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C. (Supp. III) § 141 et seq., 29 U.S.C.A. § 141 et seq., and ordered their reinstatement with back pay. Although the order provided for deduction of the employees' net earnings and willful losses of wages, if any, the Board refused to deduct certain payments made by the State of Louisiana as unemployment compensation. The Court of Appeals for the Fifth Circuit held such payments must be deducted, and modified the order accordingly. 179 F.2d 499. We granted certiorari because of the importance of the question presented in the administration of the Act. 340 U.S. 806, 71 S.Ct. 47. 3 In issuing the challenged order the Board acted under § 10(c) of the Act, 61 Stat. 147, 29 U.S.C. (Supp. III) § 160(c), 29 U.S.C.A. § 160(c), which provides that upon finding an unfair labor practice, the Board shall issue a cease and desist order requiring the guilty party 'to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act * * *.' 4 To effectuate the policies of the Act the Board has broad but not unlimited discretion. Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 11, 61 S.Ct. 77, 79, 85 L.Ed. 6. '(T)he power to command affirmative action is remedial, not punitive.' 311 U.S. at page 12, 61 S.Ct. at page 79. We must not, however, be more mindful of the limits of the Board's discretion than we are of our own limited function in reviewing Board orders. In an opinion dealing with a related matter the Court cautioned: 'There is an aea plainly covered by the language of the Act and an area no less plainly without it. But in the nature of things Congress could not catalogue all the devices and stratagems for circumventing the policies of the Act. Nor could it define the whole gamut of remedies to effectuate these policies in an infinite variety of specific situations. Congress met these difficulties by leaving the adaptation of means to end to the empiric process of administration. The exercise of the process was committed to the Board, subject to limited judicial review. Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board's discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.' Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271. 5 In effectuating the policies of the Act, the Board clearly may award back pay to discriminatorily discharged employees. This means that employees may be reimbursed for earnings lost by reason of the wrongful discharge, from which should be deducted net earnings of employees from other employment during the back-pay period, Republic Steel case, supra, and also sums which they failed without excuse to earn, Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 197—198, 61 S.Ct. 845, 853, 854, 85 L.Ed. 1271. 6 In Marshall Field & Co. v. National Labor Relations Board, 318 U.S. 253, 63 S.Ct. 585, 87 L.Ed. 744, this Court held that the benefits received by employees under a state unemployment compensation act were plainly not earnings which, under the Board's order in that case, could be deducted from the back pay awarded. The question of whether the Board had the power to make such an order was not reached for the reason that the question had not been presented to the Board as required by § 10(e) of the National Labor Relations Act, 49 Stat. 454, 29 U.S.C. § 160(e), 29 U.S.C.A. § 160(e). The question is here on this record, and we hold that the Board had the power to enter the order in this case refusing to deduct the unemployment compensation payments from back pay, and that in so doing the Board did not abuse its discretion. 7 Such action may reasonably be considered to effectuate the policies of the Act. To decline to deduct state unemployment compensation benefits in computing back pay is not to make the employees more than whole, as contended by respondent. Since no consideration has been given or should be given to collateral losses in framing an order to reimbuse employees for their lost earnings, manifestly no consideration need be given to collateral benefits which employees may have received. 8 But respondent argues that the benefits paid from the Louisiana Unemployment Compensation Fund were not collateral but direct benefits. With this theory we are unable to agree. Payments of unemployment compensation were not made to the employees by respondent but by the state out of state funds derived from taxation. True, these taxes were paid by employers, and thus to some extent respondent helped to create the fund. However, the payments to the employees were not made to discharge any liability or obligation of respondent, but to carry out a policy of social betterment for the benefit of the entire state. See Dart's La.Gen.Stat., 1939, § 4434.1, Act No. 97 of 1936, § 1, as amended by Act No. 164 of 1938, § 2; In re Cassaretakis, 289 N.Y. 119, 126, 44 N.E.2d 391, 394—395, affirmed sub nom. Standard Dredging Co. v. Murphy, 319 U.S. 306, 63 S.Ct. 1067, 87 L.Ed. 1416; Unemployment Compensation Commission v. Collins, 182 Va. 426, 438, 29 S.E.2d 388, 393. We think these facts plainly show the benefits to be collateral. It is thus apparent from what we have already said that failure to take them into account in ordering back pay does not make the employees more than 'whole' as that phrase has been understood and applied.1 9 Finally, respondent urges that the Board's order imposes upon it a penalty which is beyond the remedial powers of the Board because, to the extent that unemployment compensation benefits were paid to its discharged employees, operation of the experience-rating record formula under the Louisiana Act, Dart's La.Gen.Stat., 1939 (Cum. Supp. 1949) §§ 4434.1 et seq., Act No. 97 of 1936, § 1 et seq., as amended, will prevent respondent from qualifying for a lower tax rate. We doubt that the validity of a back-pay order ought to hinge on the myriad provisions of state unemployment compensation laws. Cf. National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 122—124, 64 S.Ct. 851, 856, 88 L.Ed. 1170. However, even if the Louisiana law has the consequence stated by respondent, which we assume arguendo, this consequence does not take the order without the discretion of the Board to enter. We deem the described injury to be merely an incidental effect of an order which in other respects effectuates the policies of the federal Act. It should be emphasized that any failure of respondent to qualify for a lower tax rate would not be primarily the result of federal but of state law, designed to effectuate a public policy with which it is not the Board's function to concern itself. Republic Steel case, supra. 10 Our holding is supported by the fact that when Congress amended the National Labor Relations Act in 1947, the Board had for many years been following the practice of disallowing deduction for collateral benefits such as unemployment compensation.2 During this period the Board's practice had been challenged before the courts in only two cases, and in both the Board's position was sustained. National Labor Relations Board v. Marshall Field & Co., 7 Cir., 129 F.2d 169, 144 A.L.R. 394; National Labor Relations Board v. Brashear Feight Lines, 8 Cir., 127 F.2d 198. In the course of adopting the 1947 amendments Congress considered in great detail the provisions of the earlier legislation as they had been applied by the Board.3 Under these circumstances it is a fair assumption that by reenacting without petinent modification the provision with which we here deal, Congress accepted the construction placed thereon by the Board and approved by the courts. See Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 114—115, 59 S.Ct. 423, 425, 83 L.Ed. 536; Brewster v. Gage, 280 U.S. 327, 337, 50 S.Ct. 115, 117, 74 L.Ed. 457; Norwegian Nitrogen Prod. Co. v. United States, 288 U.S. 294, 313—315, 53 S.Ct. 350, 357, 358, 77 L.Ed. 796. 11 The judgment is reversed and the case remanded for enforcement of the Board's order without the objectionable modification. It is so ordered. 12 Reversed and remanded. 13 Mr. Chief Justice VINSON took no part in the consideration of decision of this case. 1 We note that some states permit recoupment of benefits paid during a period for which the National Labor Relations Board subsequently awards back pay. E.g., In re Skutnik, 268 App.Div. 357, 51 N.Y.S.2d 711. Recoupment in such situations is a matter between the State and the employees. 2 3 N.L.R.B.Ann.Rep. 202, n. 11 (1938); 4 N.L.R.B.Ann.Rep. 100, n. 25 (1939); 11 N.L.R.B.Ann.Rep. 50 (1946). 3 Ample evidence of this may be found in the Committee reports accompanyng the bills which were the basis of the comprehensive 1947 Act. See H.R.Rep.No.245, 80th Cong., 1st Sess.; S.Rep.No.105, 80th Cong., 1st Sess.

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340 U.S. 315 71 S.Ct. 303 95 L.Ed. 295 FEINERv.PEOPLE OF STATE OF NEW YORK. No. 93. Argued Oct. 17, 1950. Decided Jan. 15, 1951. Messrs. Sidney H. Greenberg, Syracuse, N.Y., Emanuel Redfield, New York City, for petitioner. Mr. David J. Kelly, Washington, D.C., for respondent. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 Petitioner was convicted of the offense of disorderly conduct, a misdemeanor under the New York penal laws, in the Court of Special Sessions of the City of Syracuse and was sentenced to thirty days in the county penitentiary. The conviction was affirmed by the Onondaga County Court and the New York Court of Appeals, 1950, 300 N.Y. 391, 91 N.E.2d 316. The case is here on certiorari, 1950, 339 U.S. 962, 70 S.Ct. 987, petitioner having claimed that the conviction is in violation of his right of free speech under the Fourteenth Amendment. 2 In the review of state decisions where First Amendment rights are drawn in question, we of course make an examination of the evidence to ascertain independently whether the right has been violated. Here, the trial judge, who heard the case without a jury, rendered an oral decision at the end of the trial, setting forth his determination of the facts upon which he found the petitioner guilty. His decision indicated generally that he believed the state's witnesses, and his summation of the testimony was used by the two New York courts on review in stating the facts. Our appraisal of the facts is, therefore, based upon the uncontroverted facts and, where controversy exists, upon that testimony which the trial judge did reasonably conclude to be true. 3 On the evening of March 8, 1949, petitioner Irving Feiner was addressing an open-air meeting at the corner of South McBride and Harrison Streets in the City of Syracuse. At approximately 6:30 p.m., the police received a telephone complaint concerning the meeting, and two officers were detailed to investigate. One of these officers went to the scene immediately, the other arriving some twelve minutes later. They found a crowd of about seventy-five or eighty people, both Negro and white, filling the sidewalk and spreading out into the street. Petitioner, standing on a large wooden box on the sidewalk, was addressing the crowd through a loud-speaker system attached to an automobile. Although the purpose of his speech was to urge his listeners to attend a meeting to be held that night in the Syracuse Hotel, in its course he was making derogatory remarks concerning President Truman, the American Legion, the Mayor of Syracuse, and other local political officials. 4 The police officers made no effort to interfere with petitioner's speech, but were first concerned with the effect of the crowd on both pedestrian and vehicular traffic. They observed the situation from the opposite side of the street, noting that some pedestrians were forced to walk in the street to avoid the crowd. Since traffic was passing at the time, the officers attempted to get the people listening to petitioner back on the sidewalk. The crowd was restless and there was some pushing, shoving and milling around. One of the officers telephoned the police station from a nearby store, and then both policemen crossed the street and mingled with the crowd without any intention of arresting the speaker. 5 At this time, petitioner was speaking in a 'loud, high-pitched voice.' He gave the impression that he was endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights. The statements before such a mixed audience 'stirred up a little excitement.' Some of the onlookers made remarks to the police about their inability to handle the crowd and at least one threatened violence if the police did not act. There were others who appeared to be favoring petitioner's arguments. Because of the feeling that existed in the crowd both for and against the speaker, the officers finally 'stepped in to prevent it from resulting in a fight.' One of the officers approached the petitioner, not for the purpose of arresting him, but to get him to break up the crowd. He asked petitioner to get down off the box, but the latter refused to accede to his request and continued talking. The officer waited for a minute and then demanded that he cease talking. Although the officer had thus twice requested petitioner to stop over the course of several minutes, petitioner not only ignored him but continued talking. During all this time, the crowd was pressing closer around petitioner and the officer. Finally, the officer told petitioner he was under arrest and ordered him to get down from the box, reaching up to grab him. Petitioner stepped down, announcing over the microphone that 'the law has arrived, and I suppose they will take over now.' In all, the officer had asked petitioner to get down off the box three times over a space of four or five minutes. Petitioner had been speaking for over a half hour. 6 On these facts, petitioner was specifically charged with violation of § 722 of the Penal Law of New York, Mc.K.Consol. Laws, c. 40, the pertinent part of which is set out in the margin.1 The bill of particulars, demanded by petitioner and furnished by the State, gave in detail the facts upon which the prosecution relied to support the charge of disorderly conduct. Paragraph C is particularly pertinent here: 'By ignoring and refusing to heed and obey reasonable police orders issued at the time and place mentioned in the Information to regulate and control said crowd and to prevent a breach or breaches of the peace and to prevent injury to pedestrians attempting to use said walk, and being forced into the highway adjacent to the place in question, and prevent injury to the public generally.' 7 We are not faced here with blind condonation by a state court of arbitrary police action. Petitioner was accorded a full, fair trial. The trial judge heard testimony supporting and contradicting the judgment of the police officers that a clear danger of disorder was threatened. After weighing this contradictory evidence, the trial judge reached the conclusion that the police officers were justified in taking action to prevent a breach of the peace. The exercise of the police officers' proper discretionary power to prevent a breach of the peace was thus approved by the trial court and later by two courts on review.2 The courts below recognized petitioner's right to hold a street meeting at this locality, to make use of loud-speaking equipment in giving his speech, and to make derogatory remarks concerning public officials and the American Legion. They found that the officers in making the arrest were motivated solely by a proper concern for the preservation of order and protection of the general welfare, and that there was no evidence which could lend color to a claim that the acts of the police were a cover for suppression of petitioner's views and opinions. Petitioner was thus neither arrested nor convicted for the making or the content of his speech. Rather, it was the reaction which it actually engendered. 8 The language of Cantwell v. State of Connecticut, 1940, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, is appropriate here. 'The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. On one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.' 310 U.S. at page 308, 60 S.Ct. at page 905. The findings of the New York courts as to the condition of the crowd and the refusal of petitioner to obey the police requests, supported as they are by the record of this case, are persuasive that the conviction of petitioner for violation of public peace, order and authority does not exceed the bounds of proper state police action. This Court respects, as it must, the interest of the community in maintaining peace and order on its streets. Schneider v. State of New Jersey, Town of Irvington, 1939, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155; Kovacs v. Cooper, 1949, 336 U.S. 77, 82, 69 S.Ct. 448, 451, 93 L.Ed. 513. We cannot say that the preservation of that interest here encroaches on the constitutional rights of this petitioner. 9 We are well aware that the ordinary murmurings and objections of a hostile audience cannot be allowed to silence a speaker, and are also mindful of the possible danger of giving overzealous police officials complete discretion to break up otherwise lawful public meetings. 'A State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.' Cantwell v. State of Connecticut, supra, 310 U.S. at page 308, 60 S.Ct. at page 905, 84 L.Ed. 1213. But we are not faced here with such a situation. It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace. Nor in this case can we condemn the considered judgment of three New York courts approving the means which the police, faced with a crisis, used in the exercise of their power and duty to preserve peace and order. The findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner's deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech. 10 Affirmed. 11 Mr. Justice FRANKFURTER concurs in the result. 12 For concurring opinion see 340 U.S. 268, 71 S.Ct. 328. 13 Mr. Justice BLACK, dissenting. 14 The record before us convinces me that petitioner, a young college student, has been sentenced to the penitentiary for the unpopular views he expressed1 on matters of public interest while lawfully making a street-corner speech in Syracuse, New York.2 Today's decision, however, indicates that we must blind ourselves to this fact because the trial judge fully accepted the testimony of the prosecution witnesses on all important points.3 Many times in the past this Court has said that despite findings below, we will examine the evidence for ourselves to ascertain whether federally protected rights have been denied; otherwise review here would fail of its purpose in safeguarding constitutional guarantees.4 Even a partial abandonment of this rule marks a dark day for civil liberties in our Nation. 15 But still more has been lost today. Even accepting every 'finding of fact' below, I think this conviction makes a mockery of the free speech guarantees of the First and Fourteenth Amendments. The end result of the affirmance here is to approve a simple and readily available technique by which cities and states can with impunity subject all speeches, political or otherwise, on streets or elsewhere, to the supervision and censorship of the local police. I will have no part or parcel in this holding which I view as a long step toward totalitarian authority. 16 Considering only the evidence which the state courts appear to have accepted, the pertinent 'facts' are: Syracuse city authorities granted a permit for O. John Rogge, a former Assistant Attorney General, to speak in a public school building on March 8, 1948 on the subject of racial discrimination and civil liberties. On March 8th, however, the authorities cancelled the permit. The Young Progressives under whose auspices the meeting was scheduled then arranged for Mr. Rogge to speak at the Hotel Syracuse. The gathering on the street where petitioner spoke was held to protest the cancellation and to publicize the meeting at the hotel. In this connection, petitioner used derogatory but not profane language with reference to the city authorities, President Truman and the American Legion. After hearing some of these remarks, a policeman, who had been sent to the meeting by his superiors, reported to Police Headquarters by telephone. To whom he reported or what was said does not appear in the record, but after returning from the call, he and another policeman started through the crowd toward petitioner. Both officers swore they did not intend to make an arrest when they started, and the trial court accepted their statements. They also said, and the court believed, that they heard and saw 'angry mutterings,' 'pushing,' 'shoving and milling around' and 'restlessness.' Petitioner spoke in a 'loud, high pitched voice.' He siad that colored people 'don't have equal rights and they should rise up in arms and fight for them.'5 One man who heard this told the officers that if they did not take that 'S...O...B...' off the box, he would. The officers then approached petitioner for the first time. One of them first 'asked' petitioner to get off the box, but petitioner continued urging his audience to attend Rogge's speech. The officer next 'told' petitioner to get down, but he did not. The officer finally 'demanded' that petitioner get down, telling him he was under arrest. Petitioner then told the crowd that 'the law had arrived and would take over' and asked why he was arrested. The officer first replied that the charge was 'unlawful assembly' but later changed the ground to 'disorderly conduct.'6 17 The Court's opinion apparently rests on this reasoning: The policeman, under the circumstances detailed, could reasonably conclude that serious fighting or even riot was imminent; therefore he could stop petitioner's speech to prevent a breach of peace; accordingly, it was 'disorderly conduct' for petitioner to continue speaking in disobedience of the officer's request. As to the existence of a dangerous situation on the street corner, it seems farfetched to suggest that the 'facts' show any imminent threat of riot or uncontrollable disorder.7 It is neither unusual nor unexpected that some people at public street meetings mutter, mill about, push, shove, or disagree, even violently, with the speaker. Indeed, it is rare where controversial topics are discussed that an outdoor crowd does not do some or all of these things. Nor does one isolated threat to assault the speaker forebode disorder. Especially should the danger be discounted where, as here, the person threatening was a man whose wife and two small children accompanied him and who, so far as the record shows, was never close enough to petitioner to carry out the threat. 18 Moreover, assuming that the 'facts' did indicate a critical situation, I reject the implication of the Court's opinion that the police had no obligation to protect petitioner's constitutional right to talk. The police of course have power to prevent breaches of the peace. But if, in the name of preserving order, they ever can interfere with a lawful public speaker, they first must make all reasonable efforts to protect him.8 Here the policemen did not even pretend to try to protect petitioner. According to the officers' testimony, the crowd was restless but there is no showing of any attempt to quiet it; pedestrians were forced to walk into the street, but there was no effort to clear a path on the sidewalk; one person threatened to assault petitioner but the officers did nothing to discourage this when even a word might have sufficed. Their duty was to protect petitioner's right to talk, even to the extent of arresting the man who threatened to interfere.9 Instead, they shirked that duty and acted only to suppress the right to speak. 19 Finally, I cannot agree with the Court's statement that petitioner's disregard of the policeman's unexplained request amounted to such 'deliberate defiance' as would justify an arrest or conviction for disorderly conduct. On the contrary, I think that the policeman's action was a 'deliberate defiance' of ordinary official duty as well as of the constitutional right of free speech. For at least where time allows, courtesy and explanation of commands are basic elements of good official conduct in a democratic society. Here petitioner was 'asked' then 'told' then 'commanded' to stop speaking, but a man making a lawful address is certainly not required to be silent merely because an officer directs it. Petitioner was entitled to know why he should cease doing a lawful act. Not once was he told. I understand that people in authoritarian countries must obey arbitrary orders. I had hoped that there was no such duty in the United States. 20 In my judgment, today's holding means that as a practical matter, minority speakers can be silenced in any city. Hereafter, despite the First and Fourteenth Amendments, the policeman's club can take heavy toll of a current administration's public critics.10 Criticism of public officials will be too dangerous for all but the most courageous.11 This is true regardless of the fact that in two other cases decided this day, Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312; Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325, a majority, in obedience to past decisions of this Court, provides a theoretical safeguard for freedom of speech. For whatever is thought to be guaranteed in Kunz and Niemotko is taken away by what is done here. The three cases read together mean that while previous restraints probably cannot be imposed on an unpopular speaker, the police have discretion to silence him as soon as the customary hostility to his views develops. 21 In this case I would reverse the conviction, thereby adhering to the great principles of the First and Fourteenth Amendments as announced for this Court in 1940 by Mr. Justice Roberts: 22 'In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.' Cantwell v. State of Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213. 23 I regret my inability to pursuade the Court not to retreat from this principle. 24 Mr. Justice DOUGLAS, with whom Mr. Justice MINTON concurs, dissenting. 25 Feiner, a university student, made a speech on a street corner in Syracuse, New York, on March 8, 1949. The purpose of the speech was to publicize a meeting of the Young Progressives of America to be held that evening. A permit authorizing the meeting to be held in a public school auditorium had been revoked and the meeting shifted to a local hotel. 26 Feiner delivered his speech in a small shopping area in a predominantly colored residential section of Syracuse. He stood on a large box and spoke over loudspeakers mounted on a car. His audience was composed of about 75 people, colored and white. A few minutes after he started two police officers arrived. 27 The speech was mainly devoted to publicizing the evening's meeting and protecting the revocation of the permit. It also touched on various public issues. The following are the only excerpts revealed by the record: 28 'Mayor Costello (of Syracuse) is a champagne-sipping bum; he does not speak for the negro people.' 29 'The 15th Ward is run by corrupt politicians, and there are horse rooms operating there.' 30 'President Truman is a bum.' 31 'Mayor O'Dwyer is a bum.' 32 'The American Legion is a Nazi Gestapo.' 33 'The negroes don't have equal rights; they should rise up in arms and fight for their rights.' 34 There was some pushing and shoving in the crowd and some angry muttering. That is the testimony of the police. But there were no fights and no 'disorder' even by the standards of the police. There was not even any heckling of the speaker. 35 But after Feiner has been speaking about 20 minutes a man said to the police officers, 'If you don't get that son of a bitch off, I will go over and get him off there myself.' It was then that the police ordered Feiner to stop speaking; when he refused, they arrested him. 36 Public assemblies and public speech occupy an important role in American life. One high function of the police is to protect these lawful gatherings so that the speakers may exercise their constitutional rights. When unpopular causes are sponsored from the public platform, there will commonly be mutterings and unrest and heckling from the crowd. When a speaker mounts a platform it is not unusual to find him resorting to exaggeration, to vilification of ideas and men, to the making of false charges. But those extravagances, as we emphasized in Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, do not justify penalizing the speaker by depriving him of the platform or by punishing him for his conduct. 37 A speaker may not, of course, incite a riot any more than he may incite a breach of the peace by the use of 'fighting words'. See Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. But this record shows no such extremes. It shows an unsympathetic audience and the threat of one man to haul the speaker from the stage. It is against that kind of threat that speakers need police protection. If they do not receive it and instead the police throw their weight on the side of those who would break up the meetings, the police become the new censors of speech. Police censorship has all the vices of the censorship from city halls which we have repeatedy struck down. See Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Cantwell v. State of Connecticut, supra; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 891, 87 L.Ed. 1292; Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574. 1 § 722. Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: '1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior; '2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; '3. Congregates with others on a public street and refuses to move on when ordered by the police; * * *.' 2 The New York Court of Appeals said: 'An imminent danger of a breach of the peace, of a disturbance of public order, perhaps even of riot, was threatened * * * the defendant, as indicated above, disrupted pedestrian and vehicular traffic on the sidewalk and street, and, with intent to provoke a breach of the peace and with knowledge of the consequences, so inflamed and agitated a mixed audience of sympathizers and opponents that, in the judgment of the police officers present, a clear danger of disorder and violence was threatened. Defendant then deliberately refused to accede to the reasonable request of the officer, made within the lawful scope of his authority, that the defendant desist in the interest of public welfare and safety.' 300 N.Y. 391, 400, 402, 91 N.E.2d 316, 319, 321. 1 The trial judge framed the question for decision as follows: 'The question here, is what was said and what was done? And it doesn't make any difference whether whatever was said, was said with a loud speaker or not. There are acts and conduct an individual can engage in when you don't even have to have a crowd gathered around which would justify a charge of disorderly conduct. The question is, what did this defendant say and do at that particular time and the Court must determine whether those facts, concerning what the defendant did or said, are sufficient to support the charge.' There is no suggestion in the record that petitioner 'did' anything other than (1) speak and (2) continue for a short time to invite people to a public meeting after a policeman had requested him to stop speaking. 2 There was no charge that any city or state law prohibited such a meeting at the place or time it was held. Evidence showed that it was customary to hold public gatherings on that same corner every Friday night, and the trial judge who convicted petitioner admitted that he understood the meeting was a lawful one. Nor did the judge treat the lawful meeting as unlawful because a crowd congregated on the sidewalk. Consequently, any discussion of disrupted pedestrian and vehicular traffic, while suggestive coloration, is immaterial under the charge and conviction here. It is implied in a concurring opinion that the use of sound amplifiers in some way caused the meeting to become less lawful. This fact, however, had nothing to do with the conviction of petitioner. In sentencing him the trial court said: 'You had a perfect right to appear there and to use that implement, the loud speaker. You had a right to have it in the street.' See also note 1, supra. 3 The trial court made no findings of fact as such. A decision was rendered from the bench in which, among other things, the trial judge expressed some views on the evidence. See note 11, infra. 4 In Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074, the evidence as to whether Negroes had been discriminated against in the selection of grand juries was conflicting. Chief Justice Hughes, writing for the Court, said 294 U.S. at pages 589—590, 55 S.Ct. at pages 580: 'The question is of the application of this established principle (equal protection) to the facts disclosed by the record. That the question is one of fact does not relieve us of the duty to determine whether in truth a federal right has been denied. When a federal right has been specially set up and claimed in a state court, it is our province to inquire not merely whether it was denied in express terms but also whether it was denied in substance and effect. If this requires an examination of evidence, that examination must be made. Otherwise, review by this Court would fail of its purpose in safeguarding constitutional rights. Thus, whenever a conclusion of law of a state court as to a federal right and findings of fact are so intermingled that the latter control the former, it is incumbent upon us to analyze the facts in order that the appropriate enforcement of the federal right may be assured.' This same rule has been announced in the following cases as well as in numerous others: Truax v. Corrigan, 257 U.S. 312, 324, 42 S.Ct. 124, 126, 66 L.Ed. 254; Hooven & Allison Co. v. Evatt, 324 U.S. 652, 659, 65 S.Ct. 870, 874, 89 L.Ed. 1252; Chambers v. State of Florida, 309 U.S. 227, 228, 60 S.Ct. 472, 473, 84 L.Ed. 716; Pierre v. State of Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 538, 83 L.Ed. 757; Pennekamp v. State of Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295; Patton v. State of Mississippi, 332 U.S. 463, 466, 68 S.Ct. 184, 186, 92 L.Ed. 76; Craig v. Harney, 331 U.S. 367, 373, 67 S.Ct. 1249, 91 L.Ed. 1546; Oyama v. State of California, 332 U.S. 633, 636, 68 S.Ct. 269, 270, 92 L.Ed. 249; Pollock v. Williams, 322 U.S. 4, 13, 64 S.Ct. 792, 797, 88 L.Ed. 1095; Fay v. People of State of New York, 332 U.S. 261, 272, 67 S.Ct. 1613, 1619, 91 L.Ed. 2043; Akins v. State of Texas, 325 U.S. 398, 401, 65 S.Ct. 1276, 1278, 89 L.Ed. 1692; Kansas City Southern R. Co. v. C. H. Albers Comm'n Co., 223 U.S. 573, 591, 32 S.Ct. 316, 320, 56 L.Ed. 556; First National Bank of Hartford, Wisconsin v. City of Hartford, 273 U.S. 548, 552, 47 S.Ct. 462, 463, 71 L.Ed. 767; Fiske v. Kansas, 274 U.S. 380, 385, 47 S.Ct. 655, 656, 71 L.Ed. 1108; Great Northern R. Co. v. State of Washington, 300 U.S. 154, 165—167, 57 S.Ct. 397, 402, 403, 81 L.Ed. 573. This Court has used varying phraseology in stating the circumstances under which it would review state court findings of fact, but it has not hesitated to make such review when necessary to protect a federal right. Compare Great Northern R. Co. v. State of Washington, supra, with Taylor v. State of Mississippi, 319 U.S. 583, 585—586, 63 S.Ct. 1200, 1201, 1202, 87 L.Ed. 1600. 5 I am accepting this although I believe the record demonstrates rather conclusively that petitioner did not use the phrase 'in arms' in the manner testified to by the officers. Reliable witnesses swore that petitioner's statement was that his listeners 'could rise up and fight for their rights by going arm in arm to the Hotel Syracuse, black and white alike, to hear John Rogge.' The testimony of neither of the two officers contained the phrase 'in arms' when they first testified on this subject; they added it only after counsel for the prosecution was permitted by the court, over petitioner's objection, to propound leading and suggestive questions. In any event, the statement ascribed to petitioner by the officers seems clearly rhetorical when read in context. 6 'A charge of using language likely to cause a breach of the peace is a convenient catchall to hold unpopular soapbox orators.' Chafee, Free Speech in the United States, 524. The related charge of conducting a 'disorderly house' has also been used to suppress and punish minority views. For example, an English statute of 1799 classified as disorderly houses certain unlicensed places ('House, Room, Field, or other Place') in which 'any Lecture or Discourse shall be publickly delivered, or any publick Debate shall be had on any Subject * * *' or which was used 'for the Purpose of reading Books, Pamphlets, Newspapers, or other Publications * * *.' 39 Geo. III, c. 79, § 15. 7 The belief of the New York Court of Appeals that the situation on the street corner was critical is not supported by the record and accordingly should not be given much weight here. Two illustrations will suffice: The Court of Appeals relied upon a specific statement of one policeman that he interfered with Feiner at a time when the crowd was 'getting to the point where they would be unruly.' But this testimony was so patently inadmissible that it was excluded by the trial judge in one of the rare instances where the defendant received a favorable ruling. Secondly, the Court of Appeals stated that after Feiner had been warned by the police, he continued to 'blare out his provocative utterances over loud speakers to a milling, restless throng * * *.' I am unable to find anything in the record to support this statement unless the unsworn arguments of the assistant district attorney are accepted as evidence. The principal prosecution witness testified that after he asked Feiner to get down from the box, Feiner merely 'kept telling (the audience) to go to the Syracuse Hotel and hear John Rogge.' And this same witness even answered 'No' to the highly suggestive question which immediately followed, 'Did he say anything more about arming and fighting at that time?' 8 Cf. Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Sellers v. Johnson, 8 Cir., 163 F.2d 877; see also, summary of Brief for Committee on the Bill of Rights of the American Bar Association as amicus curiae, Hague v. C.I.O., supra, reprinted at 307 U.S. 678—682. 9 In Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155, we held that a purpose to prevent littering of the streets was insufficient to justify an ordinance which prohibited a person lawfully on the street from handing literature to one willing to receive it. We said 308 U.S. at page 162, 60 S.Ct. at page 151, 84 L.Ed. 155 'There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets.' In the present case as well, the threat of one person to assault a speaker does not justify suppression of the speech. There are obvious available alternative methods of preserving public order. One of these is to arrest the person who threatens an assault. Cf. Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S.Ct. 295, in which the Court invalidates a municipal health ordinance under the Commerce Clause because of a belief that the city could have accomplished its purposes by reasonably adequate alternatives. The Court certainly should not be less alert to protect freedom of speech than it is to protect freedom of trade. 10 Today the Court characterizes petitioner's speech as one designed to incite riot and approves suppression of his views. There is an alarming similarity between the power thus possessed by the Syracuse (or any other) police and that possessed by English officials under an act passed by Parliament in 1795. In that year Justices of the Peace were authorized to arrest persons who spoke in a manner which could be characterized as 'inciting and stirring up the People to Hatred or Contempt * * *' of the King or the Government. 36 Geo. III, c. 8, § 7. This statute 'was manifestly intended to put an end for ever to all popular discussion, either on political or religious matters.' 1 Buckle, History of Civilization in England (2d London ed.) 350. 11 That petitioner and the philosophy he espoused were objects of local antagonism appears clearly from the printed record in this case. Even the trial judge in his decision made no attempt to conceal his contempt for petitioner's views. He seemed outraged by petitioner's criticism of public officials and the American Legion. Moreover, the judge gratuitously expressed disapproval of O. John Rogge by quoting derogatory statements concerning Mr. Rogge which had appeared in the Syracuse press. The court approved the view that freedom of speech should be denied those who pit 'class against class * * * and religion against religion.' And after announcing its decision, the court persistently refused to grant bail pending sentence. Although it is unnecessary for me to reach the question of whether the trial below met procedural due process standards, I cannot agree with the opinion of the Court that 'Petitioner was accorded a full, fair trial.'

23

340 U.S. 474 71 S.Ct. 456 95 L.Ed. 456 UNIVERSAL CAMERA CORP.v.NATIONAL LABOR RELATIONS BOARD. No. 40. Argued Nov. 6, 7, 1950. Decided Feb. 26, 1951. [Syllabus from pages 474-475 intentionally omitted] Mr. Frederick R. Livingston, New York City, pro hac vice by special leave of Court, for petitioner. Mr. Mozart G. Ratner, Washington, D.C., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 The essential issue raised by this case and its companion, National Labor Relations Board v. Pittsburgh Steamship Co., 340 U.S. 498, 71 S.Ct. 453, infra, is the effect of the Administrative Procedure Act and the legislation colloquially known as the Taft-Hartley Act, 5 U.S.C.A. § 1001 et seq.; 29 U.S.C.A. § 141 et seq., on the duty of Courts of Appeals when called upon to review orders of the National Labor Relations Board. 2 The Court of Appeals for the Second Circuit granted enforcement of an order directing, in the main, that petitioner reinstate with back pay an employee found to have been discharged because he gave testimony under the Wagner Act, 29 U.S.C.A. § 151 et seq., and cease and desist from discriminating against any employee who files charges or gives testimony under that Act. The court below, Judge Swan dissenting, decreed full enforcement of the roder. 2 Cir., 179 F.2d 749. Because the views of that court regarding the effect of the new legislation on the relation between the Board and the courts of appeals in the enforcement of the Board's orders conflicted with those of the Court of Appeals for the Sixth Circuit1 we brought both cases here. 339 U.S. 951, 70 S.Ct. 842 and 339 U.S. 962, 70 S.Ct. 998. The clash of opinion obviously required settlement by this Court. I. 3 Want of certainty in judicial review of Labor Board decisions partly reflects the intractability of any formula to furnish definiteness of content for all the impalpable factors involved in judicial review. But in part doubts as to the nature of the reviewing power and uncertainties in its application derive from history, and to that extent an elucidation of this history may clear them away. 4 The Wagner Act provided: 'The findings of the Board as to the facts, if supported by evidence, shall be conclusive.' Act of July 5, 1935, § 10(e), 49 Stat. 449, 454, 29 U.S.C. § 160(e), 29 U.S.C.A. § 160(e). This Court read 'evidence' to mean 'substantial evidence,' Washington, V. & M. Coach Co. v. Labor Board, 301 U.S. 142, 57 S.Ct. 648, 81 L.Ed. 965, and we said that '(s) ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126. Accordingly, it 'must do more than create a suspicion of the existence of the fact to be established. * * * it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.' National Labor Relations Board v. Columbian Enameling &! Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. 5 The very smoothness of the 'substantial evidence' formula as the standard for reviewing the evidentiary validity of the Board's findings established its currency. But the inevitably variant applications of the standard to conflicting evidence soon brought contrariety of views and in due course bred criticism. Even though the whole record may have been canvassed in order to determine whether the evidentiary foundation of a determination by the Board was 'substantial,' the phrasing of this Court's process of review readily lent itself to the notion that it was enough that the evidence supporting the Board's result was 'substantial' when considered by itself. If is fair to say that by imperceptible steps regard for the fact-finding function of the Board led to the assumption that the requirements of the Wagner Act were met when the reviewing court could find in the record evidence which, when viewed in isolation, substantiated the Board's findings. Compare National Labor Relations Board v. Waterman Steamship Corp., 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. 704; National Labor Relations Board v. Bradford Dyeing Ass'n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226; and see National Labor Relations Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 62 S.Ct. 960, 86 L.Ed. 1305. This is not to say that every member of this Court was consciously guided by this view or that the Court ever explicitly avowed this practice as doctrine. What matters is that the belief justifiably arose that the Court had so construed the obligation to review.2 6 Criticism of so contracted a reviewing power reinforced dissatisfaction felt in various quarters with the Board's administration of the Wagner Act in the years preceding the war. The scheme of the Act was attacked as an inherently unfair fusion of the functions of prosecutor and judge.3 Accusations of partisan bias were not wanting.4 The 'irresponsible admission and weighing of hearsay, opinion, and emotional speculation in place of factual evidence' was said to be a 'serious menace.'5 No doubt some, perhaps even much, of the criticism was baseless and some surely was reckless.6 What is here relevant, however, is the climate of opinion thereby generated and its effect on Congress. Protests against 'shocking injustices'7 and intimations of judicial 'abdication'8 with which some courts granted enforcement of the Board's order stimulated pressures for legislative relief from alleged administrative excesses. 7 The strength of these pressurs was reflected in the passage in 1940 of the Walter-Logan Bill. it was vetoed by President Roosevelt, partly because it imposed unduly rigid limitations on the administrative process, and partly because of the investigation into the actual operation of the administrative process then being conducted by an experienced committee appointed by the Attorney General.9 It is worth noting that despite its aim to tighten control over administrative determinations of fact, the Walter-Logan Bill contented itself with the conventional formula that an agency's decision could be set aside if 'the findings of fact are not supported by substantial evidence.'10 8 The final report of the Attorney General's Committee was submitted in January, 1941. The majority concluded that '(d)issatisfaction with the existing standards as to the scope of judicial review derives largely from dissatisfaction with the fact-finding procedures now employed by the administrative bodies.'11 Departure from the 'substantial evidence' test, it thought, would either create unnecessary uncertainty or transfer to courts the responsibility for ascertaining and assaying matters the significance of which lies outside judicial competence. Accordingly, it recommended against Legislation embodying a general scheme of judicial review.12 9 Three members of the Committee registered a dissent. Their view was that the 'present system or lack of system of judicial review' led to inconsistency and uncertainty. They reported that under a 'prevalent' interpretation of the 'substantial evidence' rule 'if what is called 'substantial evidence' is found anywhere in the record to support conclusions of fact, the courts are said to be obliged to sustain the decision without reference to how heavily the countervailing evidence may preponderate—unless indeed the stage of arbitrary decision is reached. Under this interpretation, the courts need to read only one side of the case and, if they find any evidence there, the administrative action is to be sustained and the record to the contrary is to be ignored.'13 Their view led them to recommend that Congress enact principles of review applicable to all agencies not excepted by unique characteristics. One of these principles was expressed by the formula that judicial review could extend to 'findings, inferences, or conclusions of fact unsupported, upon the whole record, by substantial evidence.'14 So far as the history of this movement for enlarged review reveals, the phrase 'upon the whole record' makes its first appearance in this recommendation of the minority of the Attorney General's Committee. This evidence of the close relationship between the phrase and the criticism out of which it arose is important, for the substance of this formula for judicial review found its way into the statute books when Congress with unquestioning—we might even say uncritical—unanimity enacted the Administrative Procedure Act.15 10 Once is tempted to say 'uncritical' because the legislative history of that Act hardly speaks with that clarity of purpose which Congress supposedly furnishes courts in order to enable them to enforce its true will. On the one hand, the sponsors of the legislation indicated that they were reaffirming the prevailing 'substantial evidence' test.16 But with equal clarity they expressed disapproval of the manner in which the courts were applying their own standard. The committee reports of both houses refer to the practice of agencies to rely upon 'suspicion, surmise, implications, or plainly incredible evidence,' and indicate that courts are to exact higher standards 'in the exercise of their independent judgment' and on consideration of 'the whole record.'17 11 Similar dissatisfaction with too restricted application of the 'substantial evidence' test is reflected in the legislative history of the Taft-Hartley Act.18 The bill as reported to the House provided that the 'findings of the Board as to the facts shall be conclusive unless it is made to appear to the satisfaction of the court either (1) that the findings of fact are against the manifest weight of the evidence, or (2) that the findings of fact are not supported by substantial evidence.'19 The bill left the House with this provision. Early committee prints in the Senate provided for review by 'weight of the evidence' or 'clearly erroneous' standards.20 But, as the Senate Committee Report relates, 'it was finally decided to conform the statute to the corresponding section of the Administrative Procedure Act where the substantial evidence test prevails. In order to clearify any ambiguity in that statute, however, the committee inserted the words 'questions of fact, if supported by substantial evidence on the record considered as a whole * * *."21 12 This phraseology was adopted by the Senate. The House conferees agreed. They reported to the House: 'It is believed that the provisions of the conference agreement relating to the courts' reviewing power will be adequate to preclude such decisions as those in N.L.R.B. v. Nevada Consol. Copper Corp., 316 U.S. 105, 62 S.Ct. 960, 86 L.Ed. 1305 and in the Wilson, Columbia Products, Union Pacific Stages, Hearst, Republic Aviation, and Le Tourneau, etc. cases, supra, without unduly burdening the courts.'22 The Senate version became the law. 13 It is fair to say that in all this Congress expressed a mood. And it expressed its mood not merely by oratory but by legislation. As legislation that mood must be respected, even though it can only serve as a standard for judgment and not as a body of rigid rules assuring sameness of applications. Enfrocement of such broad standards implies subtlety of mind and solidity of judgment. But it is not for us to question that Congress may assume such qualities in the federal judiciary. 14 From the legislative story we have summarized, two concrete conclusions do emerge. One is the identity of aim of the Administrative Procedure Act and the Taft-Hartley Act regarding the proof with which the Labor Board must support a decision. The other is that now Congress has left no room for doubt as to the kind of scrutiny which a court of appeals must give the record before the Board to satisfy itself that the Board's order rests on adequate proof. 15 It would be mischievous wordplaying to find that the scope of review under the Taft-Hartley Act is any different from that under the Administrative Procedure Act. The Senate Committee which reported the review clause of the Taft-Hartley Act expressly indicated that the two standards were to conform in this regard, and the wording of the two Acts is for purposes of judicial administration identical. And so we hold that the standard of proof specifically required of the Labor Board by the Taft-Hartley Act is the same as that to be exacted by courts reviewing every administrative action subject to the Administrative Procedure Act. 16 Whether or not it was ever permissible for courts to determine the substantiality of evidence supporting a Labor Board decision merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn, the new legislation definitively precludes such a theory of review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes that courts consider the whole record. Committee reports and the adoption in the Administrative Procedure Act of the minority views of the Attorney General's Committee demonstrate that to enjoin such a duty on the reviewing court was one of the important purposes of the movement which eventuated in that enactment. 17 To be sure, the requirement for canvassing 'the whole record' in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view. 18 There remains, then, the question whether enactment of these two statutes has altered the scope of review other than to require that substantiality be determined in the light of all that the record relevantly presents. A formula for judicial review of administrative action may afford grounds for certitude but cannot assure certainty of application. Some scope for judicial discretion in applying the formula can be avoided only by falsifying the actual process of judging or by using the formula as an instrument of futile casuistry. It cannot be too often repeated that judges are not automata. The ultimate reliance for the fair operation of any standard is a judiciary of high competence and character and the constant play of an informed professional critique upon its work. 19 Since the precise way in which courts interfere with agency findings cannot be imprisoned within any form of words, new formulas attempting to rephrase the old are not likely to be more helpful than the old. There are no talismanic words that can avoid the process of judgment. The difficulty is that we cannot escape, in relation to this problem, the use of undefined defining terms. 20 Whatever changes were made by the Administrative Procedure and Taft-Hartley Acts are clearly within this area where precise definition is impossible. Retention of the familiar 'substantial evidence' terminology indicates that no drastic reversal of attitude was intended. 21 But a standard leaving an unavoidable margin for individual judgment does not leave the judicial judgment at large even though the phrasing of the standard does not wholly fence it in. The legislative history of these Acts demonstrates a purpose to impose on courts a responsibility which has not always been recognized. Of course it is a statute and not a committee report which we are interpreting. But the fair interpretation of a statute if often 'the art of proliferating a purpose', Brooklyn National Corp. v. Commissioner, 2 Cir., 157 F.2d 450, 451, revealed more by the demonstrable forces that produced it than by its precise phrasing. The adoption in these statutes of the judicially-constructed 'substantial evidence' test was a response to pressures for stricter and more uniform practice, not a reflection of approval of all existing practices. To find the change so elusive that it cannot be precisely defined does not mean it may be ignored. We should fail in our duty to effectuate the will of Congress if we denied recognition to expressed Congressional disapproval of the finality accorded to Labor Board findings by some decisions of this and lower courts, or even of the atmosphere which may have favored those decisions. 22 We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both. 23 From this it follows that enactment of these statutes does not require every Court of Appeals to alter its practice. Some perhaps a majority—have always applied the attitude reflected in this legislation. To explore whether a particular court should or should not alter its practice would only divert attention from the application of the standard now prescribed to a futile inquiry into the nature of the test formerly used by a particular court. 24 Our power to review the correctness of application of the present standard ought seldom to be called into action. Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied. II. 25 Our disagreement with the view of the court below that the scope of review of Labor Board decisions is unaltered by recent legislation does not of itself, as we have noted, require reversal of its decision. The court may have applied a standard of review which satisfies the present Congressional requirement. 26 The decision of the Court of Appeals is assailed on two grounds. It is said (1) that the court erred in holding that it was barred from taking into account the report of the examiner on questions of fact insofar as that report was rejected by the Board, and (2) that the Board's order was not supported by substantial evidence on the record considered as a whole, even apart from the validity of the court's refusal to consider the rejected portions of the examiner's report. 27 The latter contention is easily met. It is true that two of the earlier decisions of the court below were among those disapproved by Congress.23 But this disapproval, we have seen, may well have been caused by unintended intimations of judicial phrasing. And in any event, it is clear from the court's opinion in this case that it in fact did consider the 'record as a whole,' and did not deem itself merely the judicial echo of the Board's conclusion. The testimony of the company's witnesses was inconsistent, and there was clear evidence that the complaining employee had been discharged by an officer who was at one time influenced against him because of his appearance at the Board hearing. On such a record we could not say that it would be error to grant enforcement. 28 The first contention, however, raises serious questions to which we now turn. III. 29 The Court of Appeals deemed itself bound by the Board's rejection of the examiner's findings because the court considered these findings not 'as unassailable as a master's.'24 179 F.2d at 752. They are not. Section 10(c) of the Labor Management Relations Act provides that 'If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact * * *.' 61 Stat. 147, 29 U.S.C.(Supp. III) § 160(c), 29 U.S.C.A. § 160(c). The responsibility for decision thus placed on the Board is wholly inconsistent with the notion that it has power to reverse an examiner's findings only when they are 'clearly erroneous.' Such a limitation would make so drastic a departure from prior administrative practice that explicitness would be required. 30 The Court of Appeals concluded from this premise 'that, although the Board would be wrong in totally disregarding his findings, it is practically impossible for a court, upon review of those findings which the Board itself substitutes, to consider the Board's reversal as a factor in the court's own decision. This we say, because we cannot find any middle ground between doing that and treating such a reversal as error, whenever it would be such, if done by a judge to a master in equity.' 179 F.2d at 753. Much as we respect the logical acumen of the Chief Judge of the Court of Appeals, we do not find ourselves pinioned between the horns of his dilemma. 31 We are aware that to give the examiner's findings less finality than a master's and yet entitle them to consideration in striking the account, is to introduce another and an unruly factor into the judgmatical process of review. But we ought not to fashion an exclusionary rule merely to reduce the number of imponderables to be considered by reviewing courts. 32 The Taft-Hartley Act provides that 'The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.' 61 Stat. 148, 29 U.S.C.(Supp. III) § 160(e), 29 U.S.C.A. § 160(e). Surely an examiner's report is as much a part of the record as the complaint or the testimony. According to the Administrative Procedure Act, 'All decisions (including initial, recommended, or tentative decisions) shall become a part of the record * * *.' § 8(b), 60 Stat. 242, 5 U.S.C. § 1007(b), 5 U.S.C.A. § 1007(b). We found that this Act's provision for judicial review has the same meaning as that in the Taft-Hartley Act. The similarity of the two statutes in language and purpose also requires that the definition of 'record' found in the Administrative Procedure Act be construed to be applicable as well to the term 'record' as used in the Taft-Hartley Act. 33 It is therefore difficult to escape the conclusion that the plain language of the statutes directs a reviewing court to determine the substantiality of evidence on the record including the examiner's report. The conclusion is confirmed by the indications in the legislative history that enhancement of the status and function of the trial examiner was one of the important purposes of the movement for administrative reform. 34 This aim was set forth by the Attorney General's Committee on Administrative Procedure: 'In general, the relationship upon appeal between the hearing commissioner and the agency ought to a considerable extent to be that of trial court to appellate court. Conclusions, interpretations, law, and policy should, of course, be open to full review. On the other hand, on matters which the hearing commissioner, having heard the evidence and seen the witnesses, is best qualified to decide, the agency should be reluctant to disturb his findings unless error is clearly shown.'25 35 Apparently it was the Committee's opinion that these recommendations should not be obligatory. For the bill which accompanied the Final Report required only that hearing officers make an initial decision which would become final in the absence of further agency action, and that agencies which differed on the facts from their examiners give reasons and record citations supporting their conclusion.26 This proposal was further moderated by the Administrative Procedure Act. It permits agencies to use examiners to record testimony but not to evaluate it, and contains the rather obscure provision that an agency which reviews an examiner's report has 'all the powers which it would have in making the initial decision.'27 36 But this refusal to make mandatory the recommendations of the Attorney General's Committee should not be construed as a repudiation of them. Nothing in the statutes suggests that the Labor Board should not be influenced by the examiner's opportunity to observe the witnesses he hears and sees and the Board does not. Nothing suggests that reviewing courts should not give to the examiner's report such probative force as it intrinsically commands. To the contrary, § 11 of the Administrative Procedure Act contains detailed provisions designed to maintain high standards of independence and competence in examiners. Section 10(c) of the Labor Management Relations Act requires that examiners 'shall issue * * * a proposed report, together with a recommended order'. Both statutes thus evince a purpose to increase the importance of the role of examiners in the administrative process. High standards of public administration counsel that we attribute to the Labor Board's examiners both due regard for the responsibility which Congress imposes on them and the competence to discharge it.28 37 The committee reports also make it clear that the sponsors of the legislation thought the statutes gave significance to the findings of examiners. Thus, the Senate Committee responsible for the Administrative Procedure Act explained in its report that examiners' decisions 'would be of consequence, for example, to the extent that material facts in any case depend on the determination of credibility of witnesses as shown by their demeanor or conduct at the hearing.'29 The House Report reflects the same attitude;30 and the Senate Committee Report on the Taft-Hartley Act likewise indicates regard for the responsibility devolving on the examiner.31 38 We do not require that the examiner's findings be given more weight than in reason and in the light of judicial experience they deserve. The 'substantial evidence' standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case. To give it this significance does not seem to us materially more difficult than to heed the other factors which in sum determine whether evidence is 'substantial.' 39 The direction in which the law moves is often a guide for decision of particular cases, and here it serves to confirm our conclusion. However halting its progress, the trend in litigation is toward a rational inquiry into truth, in which the tribunal considers everything 'logically probative of some matter requiring to be proved.' Thayer, A Preliminary Treatise on Evidence, 530; Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369. This Court has refused to accept assumptions of fact which are demonstrably false, United States v. Provident Trust Co., 291 U.S. 272, 54 S.Ct. 389, 78 L.Ed. 793, even when agreed to by the parties, Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 37 S.Ct. 287, 61 L.Ed. 722. Machinery for discovery of evidence has been strengthened; the boundaries of judicial notice have been slowly but perceptibly enlarged. It would reverse this process for courts to deny examiners' findings the probative force they would have in the conduct of affairs outside a courtroom. 40 We therefore remand the cause to the Court of Appeals. On reconsideration of the record it should accord the findings of the trial examiner the relevance that they reasonably command in answering the comprehensive question whether the evidence supporting the Board's order is substantial. But the court need not limit its reexamination of the case to the effect of that report on its decision. We leave it free to grant or deny enforcement as it thinks the principles expressed in this opinion dictate. 41 Judgment vacated that cause remanded. 42 Mr. Justice BLACK and Mr. Justice DOUGLAS concur with parts I and II of this opinion but as to part III agree with the opinion of the court below, 2 Cir., 179 F.2d 749, 753. 1 National Labor Relations Board v. Pittsburgh Steamship Co., 180 F.2d 731; Id., 340 U.S. 498, 71 S.Ct. p. 453, infra. The Courts of Appeals of five circuits have agreed with the Court of Appeals for the Second Circuit that no material change was made in the reviewing power. Eastern Coal Corp. v. National Labor Relations Board, 4 Cir., 176 F.2d 131, 134—136; National Labor Relations Board v. La Salle Steele Co., 7 Cir., 178 F.2d 829, 833 834; National Labor Relations Board v. Minnesota Mining & Mfg. Co., 8 Cir., 179 F.2d 323, 325—326; National Labor Relations Board v. Continental Oil Co., 10 Cir., 179 F.2d 552, 555; National Labor Relations Board v. Booker, 5 Cir., 180 F.2d 727, 729; but see Labor Board v. Caroline Mills, Inc., 5 Cir., 167 F.2d 212, 213. 2 See the testimony of Dean Stason before the Subcommittee of the Senate Committee on the Judiciary in 1941. Hearings on S. 674, 77th Cong., 1st Sess. 1355—1360. 3 See, for example, the remarks of Laird Bell, then Chairman of the Committee on Administrative Law of the Chicago Bar Association, writing in 1940 in the American Bar Association Journal. 26 A.B.A.J. 552. 4 See Gall, The Current Labor Problem: The View of Industry, 27 Iowa L.Rev. 381, 382. 5 This charge was made by the majority of the Special Committee of the House appointed in 1939 to investigate the National Labor Relations Board. H.R.R.ep. No. 1902, 76th Cong., 3d Sess. 76. 6 Professor Gellhorn and Mr. Linfield reached the conclusion in 1939 after an extended investigation that 'the denunciations find no support in fact.' Gellhorn and Linfield, Politics and Labor Relations, 39 Col.L.Rev. 339, 394. See also Millis and Brown, From the Wagner Act to Taft-Hartley, 66—75. 7 Wilson & Co. v. National Labor Relations Board, 7 Cir., 126 F.2d 114, 117. 8 In National Labor Relations Board v. Standard Oil Co., 2 Cir., 138 F.2d 885, 887, Judge Learned Hand said, 'We understand the law to be that the decision of the Board upon that issue is for all practical purposes not open to us at all; certainly not after we have once decided that there was 'substantial' evidence that the 'disestablished' union was immediately preceded by a period during which there was a 'dominated' union. * * * '(W)e recognize how momentous may be such an abdication of any power of review * * *.' 9 86 Cong.Rec. 13942—13943, reprinted as H.R.Doc. No. 986, 76th Cong., 3d Sess. 10 S. 915, H.R. 6324, 76th Cong., 1st Sess., § 5(a). 11 Final Report, 92. 12 Referring to proposals to enlarge the scope of review to permit inquiry whether the findings are supported by the weight of the evidence, the majority said: 'Assuming that such a change may be desirable with respect to special administrative determinations, there is serious objection to its adoption for general application. 'In the first place there is the question of how much change, if any, the amendment would produce. The respect that courts have for the judgments of specialized tribunals which have carefully considered the problems and the evidence cannot be legislated away. The line between 'substantial evidence' and 'weight of evidence' is not easily drawn—particularly when the court is confined to a written record, has a limited amount of time, and has no opportunity further to question witnesses on testimony which seems hazy or leaves some lingering doubts unanswered. 'Substantial evidence' may well be equivalent to the 'weight of evidence' when a tribunal in which one has confidence and which had greater opportunities for accurate determination has already so decided. 'In the second place the wisdom of a general change to review of the 'weight of evidence' is questionable. If the change would require the courts to determine independently which way the evidence preponderates, administrative tribunals would be turned into little more than media for transmission of the evidence to the courts. It would destroy the values of adjudication of fact by experts or specialists in the field involved. It would divide the responsibility for administrative adjudications.' Final Report, 91 92. 13 Id., 210—211. 14 The minority enumerated four 'existing deficiencies' in judicial review. These were (1) 'the haphazard, uncertain, and variable results of the present system or lack of system of judicial review,' (2) the interpretation permitting substantiality to be determined without taking into account conflicting evidence, (3) the failure of existing formulas 'to take account of differences between the various types of fact determinations,' and (4) the practice of determining standards of review by 'case-to-case procedure of the courts.' They recommended that 'Until Congress finds it practicable to examine into the situation of particular agencies, it should provide more definitely by general legislation for both the availability and scope of judicial review in order to reduce uncertainty and variability. As the Committee recognizes in its report, there are several principal subjects of judicial review—including constitutional questions, statutory interpretation, procedure, and the support of findings of fact by adequate evidence. The last of these should, obviously we think, mean support of all findings of fact, including inferences and conclusions of fact, upon the whole record. Such a legislative provision should, however, be qualified by a direction to the courts to respect the experience, technical competence, specialized knowledge, and discretionary authority of each agency. We have framed such a provision in the appendix to this statement.' Id., 210—212. The text of the recommended provision is as follows: '(e) Scope of review.—As to the findings, conclusions, and decisions in any case, the reviewing court, regardless of the form of the review proceeding, shall consider and decide so far as necessary to its decision and where raised by the parties, all relevant questions of: (1) constitutional right, power, privilege, or immunity; (2) the statutory authority or jurisdiction of the agency; (3) the lawfulness and adequacy of procedure; (4) findings, inferences, or conclusions of fact unsupported, upon the whole record, by substantial evidence; and (5) administrative action otherwise arbitrary or capricious. Provided, however, That upon such review due weight shall be accorded the experience, technical competence, specialized knowledge, and legislative policy of the agency involved as well as the discretionary authority conferred upon it.' Id., 246—247. 15 60 Stat. 237, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq. The form finally adopted reads as follows: 'Sec. 10. Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion. * * * '(e) Scope of Review.—So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreason- ably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence in any case subject to the requirements of sections 7 and 8 or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error.' 60 Stat. 243—244, 5 U.S.C. § 1009(e), 5 U.S.C.A. § 1009(e). (Italics ours.) In the form in which he bill was originally presented to Congress, clause (B) (5) read, 'unsupported by competent, material, and substantial evidence upon the whole agency record as reviewed by the court in any case subject to the requirements of sections 7 and 8.' H.R. 1203, 79th Cong., 1st Sess., quoted in S.Doc. No. 248, 79th Cong., 2d Sess. 155, 160. References to competency and materiality of evidence were deleted and the final sentence added by the Senate Committee. S.Rep.No. 752, 79th Cong., 1st Sess. 28; S.Doc.No. 248, supra, 39—40, 214. No reason was given for the deletion. 16 A statement of the Attorney General appended to the Senate Report explained that the bill 'is intended to embody the law as declared, for example, in Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126.' Section 10(e) of Appendix B to S.Rep. No. 752, supra, reprinted in S.Doc. No. 248, supra, 230. Mr. McFarland, then Chairman of the American Bar Association Committee on Administrative Law, testified before the House Judiciary Committee to the same effect. Id., 85—86. 17 The following quotation from the report of the Senate Judiciary Committee indicates the position of the sponsors. 'The 'substantial evidence' rule set forth in section 10(e) is exceedingly important. As a matter of language, substantial evidence would seem to be an adequate expression of law. The difficulty comes about in the practice of agencies to rely upon (and of courts to tacitly approve) something less—to rely upon suspicion, surmise, implications, or plainly incredible evidence. It will be the duty of the courts to determine in the final analysis and in the exercise of their independent judgment, whether on the whole record the evidence in a given instance is sufficiently substantial to support a finding, conclusion, or other agency action as a matter of law. In the first instance, however, it will be the function of the agency to determine the sufficiency of the evidence upon which it acts—and the proper performance of its public duties will require it to undertake this inquiry in a careful and dispassionate manner. Should these objectives of the bill as worded fail, supplemental legislation will be required.' S.Rep. No. 752, supra, 30—31. The House Committee Report is to substantially the same effect. H.R.Rep. No. 1980, 79th Cong., 2d Sess. 45. The reports are reprinted in S.Doc. No. 248, supra, 216—217, 279. See also the response of Senator McCarran in debate, to the effect that the bill changed the 'rule' that courts were 'powerless to interfere' when there 'was no probative evidence.' Id., 322. And see the comment of Congressman Springer, a member of the House Judiciary Committee, id., 376. 18 61 Stat. 136, 29 U.S.C. (Supp. III) § 141 et seq., 29 U.S.C.A. § 141 et seq. 19 H.R. 3020, 80th Cong., 1st Sess., § 10(e), reprinted in 1 Legislative History of the Labor Management Relations Act 1947, p. 71. 20 The history of the evolution of the Senate provision was given by Senator Morse. 93 Cong.Rec. 5108, reprinted in 2 Legislative History 1504—1505. The prints were not approved by the Committee. 21 S.Rep. No. 105, 80th Cong., 1st Sess. 26—27, reprinted in 1 Legislative History 432—433. The Committee did not explain what the ambiguity might be; and it is to be noted that the phrase it italicized is indistinguishable in content from the requirement of § 10(e) of the Administrative Procedure Act that 'the court shall review the whole record or such portions thereof as may be cited by any party * * *.' Senator Taft gave this explanation to the Senate of the meaning of the section: 'In the first place, the evidence must be substantial; in the second place, it must still look substantial when viewed in the light of the entire record. That does not go so far as saying that a decision can be reversed on the weight of the evidence. It does not go quite so far as the power given to a circuit court of appeals to review a district-court decision, but it goes a great deal further than the present law, and gives the court greater opportunity to reverse an obviously unjust decision on the part of the National Labor Relations Board.' 93 Cong.Rec. 3839, reprinted in 2 Legislative History 1014. 22 H.R.Rep. No. 510, 80th Cong., 1st Sess. 56, reprinted in 1 Legislative History 560. In National Labor Relations Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 107, 62 S.Ct. 960, 961, 86 L.Ed. 1305, we reversed a judgment refusing to enforce a Board order because 'upon an examination of the record we cannot say that the findings of fact of the Board are without support in the evidence'. The sufficiency of evidence to support findings of fact is not involved in the three other decisions of this Court to which reference was made. National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170; Republic Aviation Corp. v. National Labor Relations Board (Labor Board v. Le Tourneau Co.), 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 557. The language used by the court offers a probable explanation for including two of the decisions of Courts of Appeals. In Wilson & Co. v. National Labor Relations Board, 126 F.2d 114, 117, the Court of Appeals for the Seventh Circuit sustained a finding that the employer dominated a company union after stating that it had 'recognized (or tried to) that findings must be sustained, even when they are contrary to the great weight of the evidence, and we have ignored, or at least endeavored to ignore, the shocking injustices which such findings, opposed to the overwhelming weight of the evidence, produce.' National Labor Relations Board v. Columbia Products Corp., 141 F.2d 687, 688 is a per curiam decision of the Court of Appeals for the Second Circuit sustaining a finding of discriminatory discharge. The court said of the Board's decison on a question of fact, 'Though it may strain our credulity, if it does not quite break it down, we must accept it * * *.' The reason for disapproval of National Labor Relations Board v. Union Pacific Stages, 99 F.2d 153, is not apparent. The Court of Appeals for the Ninth Circuit there enforced the portion of the Board's order directing the company to disavow a policy of discrimiantion against union members, on the ground that there appeared 'to be evidence, although disputed,' that some company officials had discouraged employees from joining. 99 F.2d at 179. The bulk of the lengthy opinion, however, is devoted to a discussion of the facts to support the court's conclusion that the Board's findings of discriminatory discharges should not be sustained. 23 National Labor Relations Board v. Standard Oil Co., 2 Cir., 138 F.2d 885; National Labor Relations Board v. Columbia Products Corp., 2 Cir., 141 F.2d 687. See notes 8 and 22, supra. 24 Rule 53(e)(2), Fed.Rules Civ.Proc., 28 U.S.C.A., gives finality to the findings of a master unless they are clearly erroneous. The court's ruling excluding from consideration disagreement between the Board and the examiner was in apparent conflict with the views of three other circuits. National Labor Relations Board v. Ohio Calcium Co., 6 Cir., 133 F.2d 721, 724; A. E. Staley Mfg. Co. v. National Labor Relations Board, 7 Cir., 117 F.2d 868, 878; Wilson & Co. v. National Labor Relations Board, 8 Cir., 123 F.2d 411, 418; cf. International Ass'n of Machinists v. National Labor Relations Board, 71 App.D.C. 175, 180, 110 F.2d 29, 34. 25 Final Report, 51. 26 §§ 308(1) and 309(2) of the proposed bill, quoted in Final Report, 200, 201. 27 § 8(a), 60 Stat. 242, 5 U.S.C. § 1007(a), 5 U.S.C.A. § 1007(a). The quoted provision did not appear in the bill in the form in which it was introduced into the Senate. S. 7, 79th Cong., 1st Sess., § 7. It was added by the Senate Judiciary Committee. The Committee published its reasons for modifying the earlier draft, but gave no explanation for this particular change. See S.Doc. No. 248, supra, 32—33. It is likely that the sentence was intended to embody a clause in the draft prepared by the Attorney General's Committee, which provided that on review of a case decided initially by an examiner an agency should have jurisdiction to remand or to 'affirm, reverse, modify, or set aside in whole or in part the decision of the hearing commissioner, or itself to make any finding which in its judgment is proper upon the record.' § 309(2), Final Report, 201. The substance of this recommendation was included in bills introduced into the House. H.R. 184, 79th Cong., 1st Sess., § 309(2), and H.R. 339, 79th Cong., 1st Sess., § 7(c), both quoted in S.Doc. No. 248, supra, 138, 143. 28 Salaries of trial examiners range from $7,600 to $10,750 per year. See Appendix to the Budget of the United States Government for the fiscal year ending June 30, 1952, p. 47. 29 S.Rep. No. 752, supra, 24, reproduced in S.Doc. No. 248, supra, 210. 30 H.R.Rep. No. 1980, 79th Cong., 2d Sess. 38—39, reprinted in S.Doc. No. 248, supra, 272—273. The House Report added that 'In a broad sense the agencies' reviewing powers are to be compared with that of courts under section 10(e) of the bill.' The language of the statute offers no support for this statement. 31 S.Rep. No. 105, 80th Cong., 1st Sess. 9, quoted in 1 Legislative History of the Labor Management Relations Act 1947, p. 415.

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340 U.S. 416 71 S.Ct. 373 95 L.Ed. 389 AMALGAMATED ASS'N OF STREET, ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA, DIVISION 998, et al.v.WISCONSIN EMPLOYMENT RELATIONS BOARD. No. 330. Argued Jan. 9, 10, 1951. Decided Feb. 26, 1951. Mr. David Previant, Milwaukee, Wis., for petitioner. Mr. J. Gilbert Hardgrove, Milwaukee, Wis., for appellee Milwaukee Gas Light Co. Mr. Martin R. Paulsen, Milwaukee, for respondent Milwaukee Elec. Ry. Transport Co. Mr. Malcolm Riley, Eau Claire, Wis., and Beatrice Lampert, Madison, Wis., for Wisconsin Employment Relations Board. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 The parties to this case are the same transit workers, the same transit company, and the Wisconsin Employment Relations Board before the Court in No. 329, 340 U.S. 383, 71 S.Ct. 359. This action arises out of the same threatened strike discussed in that case. After a restraining order had led to postponement of the strike, the Wisconsin Board appointed arbitrators to 'hear and determine' the dispute in accordance with the terms of the Wisconsin Public Utility Anti-Strike Law. Wis.Stat.1947, § 111.55. Upon the filing of the arbitrators' award, petitioners filed an action in a state circuit court to review that award. Id., § 111.60. That court affirmed the award and the Wisconsin Supreme Court affirmed, 1950, 257 Wis. 53, 42 N.W.2d 477. We granted certiorari in this case together with No. 329, 1950, 340 U.S. 874, 71 S.Ct. 124. 2 In the courts below and in this Court, petitioners attack the arbitration award on the same grounds urged against the Wisconsin Act as a whole in No. 329, and, in addition, raise issues peculiar to the arbitration phase of that act. But we do not reach these issues since it is clear that this case has become moot.1 3 The arbitration award became effective on April 11, 1949. Under the Wisconsin Act, that award 'shall continue effective for one year from that date,' unless sooner terminated by agreement of the parties. Wis.Stat.1949, § 111.59. We are informed that this award was superseded by agreement, and, in any event, the one-year period has elapsed. There being no subject matter upon which the judgment of this Court can operate, the cause is moot. 4 It is argued that the Wisconsin courts have adopted a practice of deciding questions of importance even though the case has become moot, and we are urged to follow that same practice. But whatever the practice in Wisconsin courts, 'A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it. United States v. Alaska S.S. Co., 253 U.S. 113, 115, 116, 40 S.Ct. 448 (449), 64 L.Ed. 808, and cases cited; United States v. Hamburg-Amerikanische Packet-Fahrt-Actien Gesellschaft, 239 U.S. 466, 475—477, 36 S.Ct. 212, 216, 60 L.Ed. 387.' St. Pierre v. United States, 1943, 319 U.S. 41, 42, 63 S.Ct. 910, 911, 87 L.Ed. 1199. 5 It appearing that the cause has become moot, the judgment of the Supreme Court of Wisconsin is vacated without costs and the cause is remanded for such proceedings as by that court may be deemed appropriate. 6 It is so ordered. 7 Judgment vacated and cause remanded. 1 It has also been argued that No. 329 and No. 438 are moot by reason of the settlement of the immediate dispute which led to the strike action in each case. The injunction before us in No. 329 is 'perpetual' by its terms so that the action does not become moot even though the decree be obeyed. J. I. Case Co. v. National Labor Board, 1944, 321 U.S. 332, 334, 64 S.Ct. 576, 578, 88 L.Ed. 762; Federal Trade Comm. v. Goodyear Tire & Rubber Co., 1938, 304 U.S. 257, 260, 58 S.Ct. 863, 864, 82 L.Ed. 1326, and cases cited therein. As to No. 438, the judgment below imposes fines upon petitioners. No question of mootness can be raised so long as enforcement of that judgment is sought.

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340 U.S. 543 71 S.Ct. 399 95 L.Ed. 523 UNITED STATESv.YELLOW CAB CO. CAPITAL TRANSIT CO. v. UNITED STATES. Nos. 218, 204. Argued Dec. 6, 1950. Decided Feb. 26, 1951. Mr. Frank F. Roberson, Washington, D.C., for Capital Transit co. Mr. James L. Morrison, Washington, D.C., for the United States. Mr. Bernard G. Segal, Philadelphia, Pa., for Yellow Cab Co. Mr. Justice BURTON delivered the opinion of the Court. 1 The question presented is whether the Federal Tort Claims Act1 empowers a United States District Court to require the United States to be impleaded as a third-party defendant and to answer the claim of a joint tort-feasor for contribution as if the United States were a private individual. For the reasons hereinafter stated, we hold that it does. 2 No. 218—Yellow Cab Case. 3 December 1, 1946, in Philadelphia, Pennsylvania, four passengers in a taxicab were injured by a collision between the cab and a United States mail truck. Claiming diversity of citizenship and charging negligence on the part of the cab driver, they sued his employer, the Yellow Cab Company, in the United States District Court. By leave of court, the company impleaded the United States as a third-party defendant and charged that the negligence of the mail truck driver made the United States liable for all or part of the passengers' claims against the company. The United States moved for its dismissal as a third-party defendant on the ground that the Federal Tort Claims Act does not authorize suits against it on derivative claims. The motions were denied. The court tried the cases together, without a jury, and rendered judgments against the company totaling $7,800, but in favor of the company against the United States for one-half of the several amounts awarded the passengers. Motions by the United States to set aside the judgments against it were denied and the Court of Appeals for the Third Circuit affirmed those denials. Howey v. Yellow Cab Co., 181 F.2d 967. On petition of the United States, we granted certiorari after the Capital Transit case, infra, had been decided the other way. 340 U.S. 809, 71 S.Ct. 63. 4 No. 204—Capital Transit Case. 5 August 4, 1947, in the District of Columbia, a passenger on a streetcar was injured by a collision between it and a jeep operated by a United States soldier acting within the scope of his duties. The passenger, charging negligence, sued the Capital Transit Company in the District Court for the District of Columbia. By leave of court, the company impleaded the United States as a third-party defendant, charging that the soldier's negligence was the sole or a contributing cause of the collision and asking judgment against the United States for a contributable portion of any sum which might be awarded against the company in favor of the passenger. In response to motions by the United States, the court entered a final judgment dismissing the third-party complaint on the ground that it failed to state a claim upon which relief could be granted against the United States. Stradley v. Capital Transit Co., D.C., 87 F.Supp. 94. The Court of Appeals for the District of Columbia Circuit affirmed. 87 U.S.App.D.C. 72, 183 F.2d 825. It reviewed the opinion in Howey v. Yellow Cab, supra, and disagreed with it. See also, Sappington v. Barrett, 86 U.S.App.D.C. 334, 182 F.2d 102. On petition of the company, we granted certiorari because of the conflict of decisions and the importance of the issue in the application of the Federal Tort Claims Act. 340 U.S. 808, 71 S.Ct. 61. 6 The Government Has Consented To Be Sued For Contribution. 7 In the Yellow Cab case the court below concluded that under the law of Pennsylvania a private individual would be liable to his joint tort-feasor for contribution,2 and that the United States, through the Federal Tort Claims, Act, had consented to be sued and would be liable, under the same circumstances, in the same manner and to the same extent. In the Capital Transit case, while the court below held that the United States could not be impleaded as a third-party defendant, it refrained from deciding whether, in a separate action, the company might enforce a right to contribution against the United States. Accordingly, although the court affirmed the dismissal of the third-party complaint against the United States, it did so without prejudice to the maintenance of a separate action for contribution by the joint tort-feasor. 87 U.S.App.D.C. at page 77, 183 F.2d at page 830.3 8 The Government now contends, in both cases, that it has not consented to be sued for contribution claimed by a joint tortfeasor, even in a separate action. We therefore discuss that issue first. 9 The Federal Tort Claims Act waives the Government's immunity from suit in sweeping language.4 It unquestionably waives it in favor of an injured person. It does the same for an insurer whose claim has been subrogated to his. United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 70 S.Ct. 207. The issue here is whether the Act also covers claims for contribution which would be due from the Government if the Government were a private individual. 10 On its face the Act amply covers such consent. Section 410(a) waives immunity from suit on—'any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this title, the United States shall be liable in respect of such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances, except that the United States shall not be liable for interest prior to judgment, or for punitive damages. * * *' (Emphasis supplied.) 60 Stat. 844, 28 U.S.C. (1946 ed.) § 931(a). 11 The words 'any claim against the United States * * * on account of personal injury' (emphasis supplied) are broad words in common usage. They are not words of art. Section 421 lists 12 classes of claims to which the waiver shall not apply, but claims for contribution are not so listed.5 12 This Act does not subject the Government to a previously unrecognized type of obligation. Through hundreds of private relief acts, each Congress for many years has recognized the Government's obligation to pay claims on account of damage to or loss of property or on account of personal injury or death caused by negligent or wrongful acts of employees of the Government. This Act merely substitutes the District Courts for Congress as the agency to determine the validity and amount of the claims. It suggests no reason for reading into it fine distinctions between various types of such claims. 13 Despite the broad language of the Act, the Government has reviewed its legislative history in an attempt to restrict its scope. Most of that history relates to periods prior to the 2d Session of the 79th Congress at which the Act was passed. After more than 20 years of consideration, the subject was then presented to Congress in a new aspect.6 The bill became Title IV of the Legislative Reorganization Bill of 1946 at a moment when the overwhelming purpose of Congress was to make changes of procedure which would enable it to devote more time to major public issues.7 The reports at that session omitted previous discussions which tended to restrict the scope of the Tort Claims bill. The proceedings emphasized the benefits to be derived from relieving Congress of the pressure of private claims. Recognizing such a clearly defined breadth of purpose for the bill as a whole, and the general trend toward increasing the scope of the waiver by the United States of its sovereign immunity from suit, it is inconsistent to whittle it down by refinements.8 14 Of course there is no immunity from suit by the Government to collect claims for contribution due it from its joint tort-feasors. The Government should be able to enforce this right in a federal court not only in a separate action but by impleading the joint tort-feasor as a third-party defendant. See 3 Moore's Federal Practice (2d ed. 1948) 507, et seq. It is fair that this should work both ways. However, if the Act is interpreted as now urged by the Government, it would mean that if an injured party recovered judgment against the Government, the Government then could sue its joint tort-feasor for the latter's contributory share of the damages (local substantive law permitting). On the other hand, if the injured party recovered judgment against the private tort-feasor, it would mean that (despite local substantive law favoring contributory liability) that individual could not sue the Government for the latter's contributory share of the same damages. Presumably, the claimant would be relegated to a private bill for legislative relief. Such a result should not be read into this Act without a clearer statement of it than appears here. 15 We find, therefore, that the Government has consented to be sued for contribution under the circumstances of these cases—at least in a separate action. There remains the question of whether the Government may be impleaded as a third-party defendant. The Government Has Consented To Be Impleaded as a Third-Party Defendant in an Action for Contribution Due a Joint Tort-Feasor. 16 The Government contends that, even if the Federal Tort Claims Act carries the Government's consent to be sued in a separate action for contribution due a joint tort-feasor, it does not carry consent to be impleaded as a third-party defendant to meet such a claim. 17 We find nothing in the nature of the rights and obligations of joint tort-feasors to require such a procedural distinction, nor does the Act state such a requirement. On the contrary, the Act expressly makes the Federal Rules of Civil Procedure applicable,9 and Rule 14 provides for third-party practice.10 18 This brings the instant cases within the principle approved in United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 383, 70 S.Ct. 207, 216: 19 'In argument before a number of District Courts and Courts of Appeals, the Government relied upon the doctrine that statutes waiving sovereign immunity must be strictly construed. We think that the congressional attitude in passing the Tort Claims Act is more accurately reflected by Judge Cardozo's statement in Anderson v. John L. Hayes Construction Co., 243 N.Y. 140, 147, 153 N.E. 28, 29—30: 'The exemption of the sovereign from suit involves hardship enough, where consent has been withheld. We are not to add to its rigor by refinement of construction, where consent has been announced." 20 Once we have concluded that the Federal Tort Claims Act covers an action for contribution due a tort-feasor, we should not, by refinement of construction, limit that consent to cases where the procedure is by separate action and deny it where the same relief is sought in a third-party action. As applied to the State of New York, Judge Cardozo said in language which is apt here: 'No sensible reason can be imagined why the state, having consented to be sued, should thus paralyze the remedy.' Anderson v. John L. Hayes Const. Co., 243 N.Y. at page 147, 153 N.E. at page 29. 'A sense of justice has brought a progressive relaxation by legislative enactments of the rigor of the immunity rule. As representative governments attempt to ameliorate inequalities as necessities will permit, prerogatives of the government yield to the needs of the citizen. * * * When authority is given, it is liberally construed.' United States v. Shaw, 309 U.S. 495, 501, 60 S.Ct. 659, 661, 84 L.Ed. 888. 21 The Government suggests that difficult procedural problems may arise in other cases if a waiver of immunity is held to exist in these cases. For example, the Act requires claims against the United States to be tried without a jury and, although a jury was not insisted upon in the instant cases, the Seventh Amendment to the Constitution preserves to private individuals their right of trial by jury on such claims in a federal court. The Government argues that the Act is not sufficiently specific to permit two such different modes of trial to arise in the same case. 22 Such difficulties are not insurmountable.11 If, for example, a jury had been demanded in the Yellow Cab case, the decision of jury and nonjury issues could have been handled in a manner comparable to that used when issues of law are tried to a jury and issues of an equitable nature in the same case are tried by the court alone.12 If special circumstances had demonstrated the inadvisability, in the first instance, of impleading the United States as a third-party defendant, the leave of court required by Rule 14 could have been denied.13 If, at a later stage, the situation had called for a separation of the claims, the court could have ordered their separate trial. Fed.Rules Civ.Proc., 42(b). The availability of third-party procedure is intended to facilitate, not to preclude, the trial of multiple claims which otherwise would be triable only in separate proceedings. The possibility of such procedural difficulties is not sufficient ground for so limiting the scope of the Act as to preclude its application to all cases of contribution or even to all cases of contribution arising under third-party practice. If the Act develops unanticipated complications, Congress can then meet them to such extent as it may desire to fit the demonstrated needs. 23 We therefore conclude that the Federal Tort Claims Act carries the Government's consent to be sued for contribution not only in a separate proceeding but also as a third-party defendant. 24 The Yellow Cab case is affirmed. The Capital Transit case is reversed and the cause remanded to the District Court for proceedings in conformity with this opinion. 25 No. 218, affirmed. 26 No. 204, reversed and remanded. 27 Mr. Justice BLACK and Mr. Justice DOUGLAS dissent. 1 Title IV of the Legislative Reorganization Act of 1946, 60 Stat. 812, 842—847, 28 U.S.C. (1946 ed.) §§ 921—946. Under the revision of the Judicial Code, effective September 1, 1948, 62 Stat. 869 et seq., these provisions now appear, with slight modifications, in 28 U.S.C. (1946 ed., Supp. III) §§ 1291, 1346(b), 1402(b), 1504, 2110, 2401(b), 2402, 2411, 2412 and 2671 2680, 28 U.S.C.A. §§ 1291, 1346(b), 1402(b), 1504, 2110, 2401(b), 2402, 2411, 2412, 2671—2680. 2 Pa.Laws 1939, No. 376; Purdon's Pa.Stat.Ann. Tit. 12, § 2081; and see Goldman v. Mitchell-Fletcher Co., 292 Pa. 354, 141 A. 231; Fisher v. Diehl, 156 Pa.Super. 476, 482, 40 A.2d 912, 916. For the District of Columbia, see Knell v. Feltman, 85 U.S.App.D.C. 22, 174 F.2d 662; George's Radio v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219. No question has been raised as to the applicability of the law of Pennsylvania and that of the District of Columbia in the respective cases as the law under which the liability of the United States is to be determined if its immunity from suit has been waived. 3 The District Court went further. It stated that it found 'nothing within the letter of the statute constituting a waiver of immunity in respect of claims against the United States for contribution in actions in tort.' 87 F.Supp. at page 95. 4 'Sec. 410. (a) Subject to the provisions of this title, the United States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred * * * sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this title, the United States shall be liable in respect of such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances, except that the United States shall not be liable for interest prior to judgment, or for punitive damages. Costs shall be allowed in all courts to the successful claimant to the same extent as if the United States were a private litigant, except that such costs shall not include attorneys' fees. * * *' 60 Stat. 843—844, 28 U.S.C. (1946 ed.) § 931(a). A proviso as to death cases, included in this section by 61 Stat. 722, as of August 2, 1946, is not material here. Effective September 1, 1948, the above provisions were repealed and their substance, material here, was largely reenacted in 28 U.S.C. (1946 ed., Supp. III) §§ 1346(b), 1402(b), 2402 and 2674, 28 U.S.C.A. §§ 1346(b), 1402(b), 2402, 2674. We rely on the meaning of the language in the original Act and read the revised language as carrying it out. Insofar as the changes are material here, the reviser's note merely stated that 'Minor changes were made in phraseology.' H.R.Rep. No. 308, 80th Cong., 1st Sess. A123. Furthermore, the acts complained of in the instant cases occurred before the revised code became effective and the parties treat the original language as applicable. 'Any rights or liabilities now existing under such (repealed) sections or parts thereof shall not be affected by this repeal.' 62 Stat. 992, effective September 1, 1948, 28 U.S.C.A. preceding section 1. 5 'Where a statute contains a clear and sweeping waiver of immunity from suit on all claims with certain well defined exceptions, resort to that rule (of strict construction) cannot be had in order to enlarge the exceptions.' Employers' Fire Ins. Co. v. United States, 9 Cir., 167 F.2d 655, 657. See also, Old Colony Ins. Co. v. United States, 6 Cir., 168 F.2d 931, 933. The significance of the failure to list a claim for contribution as excepted from the waiver is emphasized by such exceptions as the following: '(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid * * *. '(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. * * *' 60 Stat. 845, 846, 28 U.S.C. (1946 ed.) § 943(a) and (h), see 28 U.S.C. (1946 ed., Supp. III) § 2680(a) and (h), 28 U.S.C.A. § 2680(a, h). 6 The only Act previously adopted in this field was the Small Tort Claims Act of December 28, 1922. It merely authorized heads of executive departments and independent establishments to give summary relief an 'any claim accruing after April 6, 1917, on account of damages to or loss of privately owned property where the amount of the claim does not exceed $1,000, caused by the negligence of any officer or employee of the Government acting within the scope of his employment. * * *' 42 Stat. 1066, 31 U.S.C. (1940 ed.) § 215, 31 U.S.C.A. § 215; see 60 Stat. 843, 28 U.S.C. (1946 ed.) § 921, 28 U.S.C. (1946 ed., Supp. III) § 2672, 28 U.S.C.A. § 2672. Many bills to enlarge the waiver of immunity were introduced but not passed. See Brooks v. United States, 337 U.S. 49, 51, 69 S.Ct. 918, 919, 93 L.Ed. 1200; Gottlieb, The Federal Tort Claims Act—A Statutory Interpretation, 35 Geo.L.J. 1—8 (1946—1947). 7 The Special Senate Committee on the Organization of Congress, which reported the bill, referred to this Title IV as follows: 'It is complementary to the provision in title I banning private bills and resolutions in Congress, leaving claimants to their remedy under this title.' S.Rep. No. 1400 (on S. 2177), 79th Cong., 2d Sess. 29. That provision was: 'Private Bills Banned 'Sec. 131. No private bill or resolution (including so-called omnibus claims or pension bills), and no amendment to any bill or resolution, authorizing or directing (1) the payment of money for property damages, for personal injuries or death for which suit may be instituted under the Federal Tort Claims Act, or for a pension (other than to carry out a provision of law or treaty stipulation); (2) the construction of a bridge across a navigable stream; or (3) the correction of a military or naval record, shall be received or considered in either the Senate or the House of Representatives.' 60 Stat. 831. 8 The broad lines of the trend in waiving the immunity of the United States from suit appear from the Court of Claims Act of Feb. 24, 1855, 10 Stat. 612, see 28 U.S.C. (1946 ed., Supp. III) § 171 et seq., 28 U.S.C.A. § 171 et seq.; Tucker Act of Mar. 3, 1887, 24 Stat. 505, see 28 U.S.C. (1946 ed., Supp. III) § 1491 et seq., 28 U.S.C.A. § 1491 et seq.; Patent Infringement Act of June 25, 1910, 36 Stat. 851, as amended, 35 U.S.C. (1946 ed.) § 68 (now 28 U.S.C.A. § 1498); Suits in Admiralty Act of Mar. 9, 1920, 41 Stat. 525, as amended, 46 U.S.C. (1946 ed.) § 741 et seq., 46 U.S.C.A. § 741 et seq.; Small Tort Claims Act of Dec. 28, 1922, 42 Stat. 1066, see 28 U.S.C. (1946 ed., Supp. III) § 2672, 28 U.S.C.A. § 2672; Public Vessels Act of Mar. 3, 1925, as amended, 43 Stat. 1112, 46 U.S.C. (1946 ed.) § 781 et seq., 46 U.S.C.A. § 781 et seq. See also, Shumate, Tort Claims Against State Governments, 9 Law and Contemp.Prob. (1942), 242; Constitutional and Statutory Provisions of the States, Vol. VIII, Settlement of Claims against the States, published by the Council of State Governments (1950). The views expressed in the earlier legislative history of this particular bill lose force by their omission from the 1946 report and discussion. However, the following comment made in 1942 by the House Committee on the Judiciary, then in charge of the bill, is of some significance for the reason that it relates to the effect of the omission of a certain provision, and there was no occasion to refer again to that omission in 1946: 'Section 403 of the Senate bill provided for a proportionate liability of the United States where a Government employee was a joint tort-feasor with someone else. This provision is not contained in the recommended bill and in cases involving joint tort-feasors the rights and liabilities of the United States will be determined by the local law.' (Emphasis supplied.) H.R.Rep. No. 2245, 77th Cong., 2d Sess. 12. This recognizes that with the provision for proportionate liability eliminated, as is still the case, the immunity of the United States should be considered as waived in relation to the Government's rights and liabilities in cases involving joint tort-feasors. In the same report, at page 9, the Committee made statements which are relied upon by the Government in argument, as assimilating the proposed jurisdiction of the District Courts under the Federal Tort Claims Act to their existing jurisdiction under the Tucker Act. Based on such assimilation, it is argued that the United States may not be joined as a defendant under the new Act because it could not be so joined under the Tucker Act. These statements were repeated in the report of the same Committee in 1945 H.R.Rep. No. 1287 (on H.R. 181), 79th Cong., 1st Sess. 5. The statements, however, were entirely omitted from even the sectional analysis of the measure when in 1946 it was incorporated in the Reorganization Bill and the report on it was made by the Senate Committee on the Organization of Congress. S.Rep. No. 1400 (on S. 2177), 79th Cong., 2d Sess. 29—34. The omitted comments related to the joinder of the United States as a co-defendant, rather than as a third-party defendant. We note also that the Tort Claims Act substantially broadens the jurisdiction of the District Courts as compared to that provided by the Tucker Act. Under the Tort Claims Act their jurisdiction is unlimited in amount instead of being restricted to claims not exceeding $10,000; it is exclusive of, rather than concurrent with, that of the Court of Claims, and the District Court procedure is expressly made subject to the Federal Rules of Civil Procedure, 28 U.S.C.A., rather than to the Tucker Act. 9 'Sec. 411. In actions under this part (suits on tort claims against the United States), the forms of process, writs, pleadings, and motions, and the practice and procedure, shall be in accordance with the rules promulgated by the Supreme Court pursuant to the Act of June 19, 1934 (48 Stat. 1064) (Federal Rules of Civil Procedure); and the same provisions for counterclaim and set-off, for interest upon judgments, and for payment of judgments, shall be applicable as in cases brought in the United States district courts under the Act of March 3, 1887 (24 Stat. 505) (Tucker Act).' 60 Stat. 844, 28 U.S.C. (1946 ed.) § 932. The above references to the specific instances in which the Tucker Act procedure is to control under the Federal Tort Claims Act emphasize the application of the Federal Rules of Civil Procedure under all other circumstances. In the revision of Title 28, effective September 1, 1948, this section was omitted as unnecessary because 'the Rules of Civil Procedure promulgated by the Supreme Court shall apply to all civil actions.' S.Rep. No. 1559, 80th Cong., 2d Sess. 12, as to Amendment No. 61. 10 'Rule 14. Third-Party Practice. '(a) When Defendant May Bring in Third Party. Before the service of his answer a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. If the motion is granted and the summons and complaint are served, the person so served, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff's claim as provided in Rule 12 * * *. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. * * *' (The amendments which became effective March 19, 1948, and are included here, made no changes that are material in the instant cases.) Rule 20 similarly provides for the permissive joinder of parties. 11 See Englehardt v. United States, D.C. Md., 69 F.Supp. 451; Newsum v. Pennsylvania R. Co., D.C.S.D.N.Y., 79 F.Supp. 225 (third-party practice); State of Maryland, for Use of Pumphrey v. Manor Real Estate & Trust Co., D.C. Md., 83 F.Supp. 91, reversed in part on other grounds, 4 Cir., 176 F.2d 414; Rivers v. Bauer, D.C.E.D.Pa., 79 F.Supp. 403, affirmed, 3 Cir., 175 F.2d 774; and Bullock v. United States, D.C.N.J., 72 F.Supp. 445; also 3 Moore's Federal Practice (2d ed. 1948) 2737—2738; Hulen, Suits on Tort Claims Against the United States, 7 F.R.D. (1948) 699—700; and Note, Joinder of the Government under the Federal Tort Claims Act, 59 Yale L.J. 1515—1521 (1950). Contra: Prechtl v. United States, D.C.W.D.N.Y., 84 F.Supp. 889; Donovan v. McKenna, D.C.Mass., 80 F.Supp. 690; Uarte v. United States, D.C.S.D.Cal., 7 F.R.D. 705, affirmed on other grounds, 9 Cir., 175 F.2d 110; Drummond v. United States, D.C.E.D.Va., 78 F.Supp. 730. 12 See Ryan Distributing Corp. v. Caley, D.C.E.D.Pa., 51 F.Supp. 377 (in patent litigation, claim of damages for infringement was tried by jury and petition for injunction was passed on by the court); Ford v. C. E. Wilson & Co., D.C.Conn., 30 F.Supp. 163 (legal issues to jury, equity issues to the court); Munkacsy v. Warner Bros. Pictures, D.C.E.D.N.Y., 2 F.R.D. 380 (libel issue by jury; violation of civil rights where jury was not demanded was tried by the court); Mealy v. Fidelity National Bank, D.C.E.D.N.Y., 2 F.R.D. 339 (two causes of action tried by court and third by jury); Elkins v. Nobel, D.C.E.D.N.Y., 1 F.R.D. 357 (one cause of action tried by court and three by jury). See also, Fed.Rules Civ.Proc., 38(c), 39 and 42. 13 See note 10, supra.

78

340 U.S. 367 71 S.Ct. 438 95 L.Ed. 344 ROGERSv.UNITED STATES. No. 20. Argued Nov. 7, 1950. Decided Feb. 26, 1951. Rehearing Denied April 16, 1951. See 341 U.S. 912, 71 S.Ct. 619. Mr. Samuel D. Menin, Denver, Colo., for petitioners. Mr. Philip B. Perlman, Solicitor General, Washington, D.C., for respondent. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 This case arises out of an investigation by the regularly convened grand jury of the United States District Court for the District of Colorado. The books and records of the Communist Party of Denver were sought as necessary to that inquiry and were the subject of questioning by the grand jury. In September, 1948, petitioner, in response to a subpoena, appeared before the grand jury. She testified that she held the position of Treasurer of the Communist Party of Denver until January, 1948, and that, by virtue of her office, she had been in possession of membership lists and dues records of the Party. Petitioner denied having possession of the records and testified that she had turned them over to another. But she refused to identify the person to whom she had given the Party's books, stating to the court as her only reason: 'I don't feel that I should subject a person or persons to the same thing that I'm going through.'1 The court thereupon committed petitioner to the custody of the marshal until ten o'clock the next morning, expressly advising petitioner of her right to consult with counsel.2 2 The next day, counsel for petitioner informed the court that he had read the transcript of the prior day's proceedings and that, upon his advice, petitioner would answer the questions to purge herself of contempt.3 However, upon reappearing before the grand jury, petitioner again refused to answer the question. The following day she was again brought into court. Called before the district judge immediately after he had heard oral argument concerning the privilege against self-incrimination in another case, petitioner repeated her refusal to answer the question, asserting this time the privilege against self-incrimination.4 After ruling that her refusal was not privileged, the district judge imposed a sentence of four months for contempt. The Court of Appeals for the Tenth Circuit affirmed, 1950, 179 F.2d 559, and we granted certiorari, 1950, 339 U.S. 956, 70 S.Ct. 978. 3 If petitioner desired the protection of the privilege against self-incrimination, she was required to claim it. United States v. Monia, 1943, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 376. The privilege 'is deemed waived unless invoked.' United States v. Murdock, 1931, 284 U.S. 141, 148, 52 S.Ct. 63, 64, 76 L.Ed. 210.5 Furthermore, the decisions of this Court are explicit in holding that the privilege against self-incrimination 'is solely for the benefit of the witness,'6 and 'is purely a personal privilege of the witness.'7 Petitioner expressly placed her original declination to answer on an untenable ground, since a refusal to answer cannot be justified by a desire to protect others from punishment,8 much less to protect another from interrogation by a grand jury. Petitioner's claim of the privilege against self-incrimination was pure afterthought. Although the claim was made at the time of her second refusal to answer in the presence of the court, it came only after she had voluntarily testified to her status as an officer of the Communist Party of Denver. To uphold a claim of privilege in this case would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony. 4 The privilege against self-incrimination, even if claimed at the time the question as to the name of the person to whom petitioner turned over the Party records was asked, would not justify her refusal to answer. As a preliminary matter, we note that petitioner had no privilege with respect to the books of the Party, whether it be a corporation9 or an unincorporated association.10 Books and records kept 'in a representative rather than in a personal capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the papers might tend to incriminate (their keeper) personally.' United States v. White, 1944, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542.11 Since petitioner's claim of privilege cannot be asserted in relation to the books and records sought by the grand jury, the only claim for reversal of her conviction rests on the ground that mere disclosure of the name of the recipient of the books tends to incriminate. 5 In Blau v. United States, 1950, 340 U.S. 159, 71 S.Ct. 223, we held that questions as to connections with the Communist Party are subject to the privilege against self-incrimination as calling for disclosure of facts tending to criminate under the Smith Act, 18 U.S.C.A. § 2386.12 But petitioner's conviction stands on an entirely different footing, for she had freely described her membership, activities and office in the Party. Since the privilege against self-incrimination presupposes a real danger of legal detriment arising from the disclosure, petitioner cannot invoke the privilege where response to the specific question in issue here would not further incriminate her. Disclosure of a fact waives the privilege as to details. As this Court stated in Brown v. Walker, 1896, 161 U.S. 591, 597, 16 S.Ct. 644, 647, 40 L.Ed. 819: 'Thus, if the witness himself elects to waive his privilege, as he may doubtless do, since the privilege is for his protection and not for that of other parties, and discloses his criminal connections, he is not permitted to stop, but must go on and make a full disclosure.'13 6 Following this rule, federal courts have uniformly held that, where criminating facts have been voluntarily revealed, the privilege cannot be invoked to avoid disclosure of the details.14 The decisions of this Court in Arndstein v. McCarthy, 1920, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138, and McCarthy v. Arndstein, 1923, 262 U.S. 355, 43 S.Ct. 562, 67 L.Ed. 1023, further support the conviction in this case for, in sustaining the privilege on each appeal, the Court stressed the absence of any previous 'admission of guilt or incriminating facts,'15 and relied particularly upon Brown v. Walker, supra, and Foster v. People, 1869, 18 Mich. 266. The holding of the Michigan court is entirely apposite here: '(W)here a witness has voluntarly answered as to materially criminating facts, it is held with uniformity that he cannot then stop short and refuse further explanation, but must disclose fully what he has attempted to relate.' 18 Mich. at page 276.16 7 Requiring full disclosure of details after a witness freely testifies as to a criminating fact does not rest upon a further 'waiver' of the privilege against self-incrimination. Admittedly, petitioner had already 'waived' her privilege of silence when she freely answered criminating questions relating to her connection with the Communist Party. But when petitioner was asked to furnish the name of the person to whom she turned over Party records, the court was required to determine, as it must whenever the privilege is claimed, whether the question presented a reasonable danger of further crimination in light of all the circumstances, including any previous disclosures. As to each question to which a claim of privilege is directed, the court must determine whether the answer to that particular question would subject the witness to a 'real danger' of further crimination.17 After petitioner's admission that she held that office of Treasurer of the Communist Party of Denver, disclosure of acquaintance with her successor presents no more than a 'mere imaginary possibility'18 of increasing the danger of prosecution.19 8 Petitioner's contention in the Court of Appeals and in this Court has been that, conceding her prior voluntary crimination as to one element of proof of a Smith Act violation, disclosure of the name of the recipient of the Party records would tend to incriminate as to the different crime of conspiracy to violate the Smith Act. Our opinion in Blau v. United States, supra, 340 U.S. at page 161, 71 S.Ct. at page 224, explicitly rejects petitioner's argument for reversal here in its holding that questions relating to activities in the Communist Party are criminating both as to 'violation of (or conspiracy to violate) the Smith Act.' Of course, at least two persons are required to constitute a conspiracy, but the identity of the other members of the conspiracy is not needed, inasmuch as one person can be convicted of conspiring with persons whose names are unknown.20 9 Affirmed. 10 Mr. Justice CLARK took no part in the consideration or decision of this case. 11 Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS concur, dissenting. 12 Some people are hostile to the Fifth Amendment's provision unequivocally commanding that no United States official shall compel a person to be a witness against himself. They consider the provisions as an outmoded relic of past fears generated by ancient inquisitorial practices that could not possibly happen here. For this reason the provilege to be silent is sometimes accepted as being more or less of a constitutional nuisance which the courts should abate whenever and however possible. Such an end could be achieved by two obvious judicial techniques: (1) narrow construction of the scope of the privilege; (2) broad construction of the doctrine of 'waiver.' Any attempt to use the first of these methods, however, runs afoul of approximately 150 years of precedent. See Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, and cases there cited. This Court has almost always construed the Amendment broadly1 on the view that compelling a person to convict himself of crime is 'contrary to the principles of a free government' and 'abhorrent to the instincts of an American'; that while such a coercive practice 'may suit the purposes of despotic power * * * it cannot abide the pure atmosphere of political liberty and personal freedom.' Boyd v. United States, 116 U.S. 616, 632, 6 S.Ct. 524, 533, 29 L.Ed. 746; but cf. United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210. 13 The doctrine of waiver seems to be a more palatable but equally effective device for whittling away the protection afforded by the privilege, although I think today's application of that doctrine cannot be supported by our past decisions. Of course, it has never been doubted that a constitutional right could be intentionally relinquished and that such an intention might be found from a 'course of conduct.' Shepard v. Barron, 194 U.S. 553, 568, 24 S.Ct. 737, 742, 48 L.Ed. 1115. But we have said that intention to waive the privilege against self-incrimination is not 'lightly to be inferred' and that vague and uncertain evidence will not support a finding of waiver. Smith v. United States, 337 U.S. 137, 150, 69 S.Ct. 1000, 1007, 93 L.Ed. 1264, relying on Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, and cases there cited. In the case of this petitioner, there is no evidence that she intended to give up her privilege of silence concerning the persons in possession of the Communist Party records. To the contrary, the record—as set out in the Court's opinion—shows she intended to avoid answering the question on whatever ground might be available and asserted the privilege against self-incrimination at the first moment she became aware of its existence.2 This fact and the cases which make it crucial are ignored in the decision today. 14 Apparently, the Court's holding is that at some uncertain point in petitioner's testimony, regardless of her intention, admission of associations with the Communist Party automatically effected a 'waiver' of her constitutional protection as to all related questions.3 To adopt such a rule for the privilege against self-incrimination, when other constitutional safeguards must be knowingly waived, relegates the Fifth Amendment's privilege to a second-rate position. Moreover, today's holding creates this dilemma for witnesses: On the one hand, they risk imprisonment for contempt by asserting the privilege prematurely; on the other, they might lose the privilege if they answer a single question. The Court's view makes the protection depend on timing so refined that lawyers, let alone laymen, will have difficulty in knowing when to claim it.4 In this very case, it never occurred to the trial judge that petitioner waived anything.5 And even if voluntary testimony can under some circumstances work a waiver, it did not do so here because what petitioner stated to the grand jury 'standing alone did not amount to an admission of guilt or furnish clear proof of crime * * *.' Arndstein v. McCarthy, 254 U.S. 71, 72, 41 S.Ct. 26, 65 L.Ed. 138.6 15 Furthermore, unlike the Court, I believe that the question which petitioner refused to answer did call for additional incriminating information. She was asked the names of the persons to whom she had turned over the Communist Party books and records. Her anser would not only have been relevant in any future prosecution of petitioner for violation of the Smith Act but also her conviction might depend on testimony of the witnesses she was thus asked to identify. For these reasons the question sought a disclosure which would have been incriminating to the highest degree. Certainly no one can say that the answer '(could not) possibly be used as a basis for, or in aid of, a criminal prosecution against the witness * * *.' Brown v. Walker, 161 U.S. 591, 597, 16 S.Ct. 644, 647, 40 L.Ed. 819.7 16 The records in this and in the companion cases8 reveal a flagrant disregard of the constitutional privileges of petitioner and others called before the grand jury. The Special United States Attorney in charge made unwarranted assurances that might well have misled witnesses unable to match legal wits with him into making self-incriminating admissions.9 Although petitioner had been allowed on a previous day to consult with counsel, at the time she was brought before the District Court for final consideration of her case the judge arbitrarily refused to permit counsel to speak in her behalf, summarily commanding the attorney to sit down, and almost immediately thereafter sentenced petitioner to four months' imprisonment.10 In convicting her, the district judge neither held nor intimated that the privilege against self-incrimination had been waived.11 His erroneous belief was that intimate association with the Communist Party was not an incriminating fact. Therefore, although the Court now describes petitioner's claim of privilege as on 'afterthought,' it seems to me that the real 'afterthought,' in this case is the affirmance of the judgment below on a 'waiver' of equivalent theory. More important, however, I believe that today's expansion of the 'waiver' doctrine improperly limits one of the Fifth Amendment's great safeguards.12 17 I would reverse the judgment of conviction. 18 APPENDIX. 19 The following is the full transcript of proceedings at the time the judgment now under review was entered: 20 'The Court: * * * What is the next case? Can we dispose of these ladies now? 21 'Mr. Goldschein (Special United States Attorney): Mrs. Jane Rogers. 22 'The Court: Is she here? 23 'Mr. Goldschein: She is here, yes, sir. Now, may it please Your Honor— 24 'The Court: Step over here, madam. What is the status of her case? 25 'Mr. Goldschein: Mrs. Rogers refuses to answer the questions propounded to her in the grand jury room. She was brought back on yesterday, but says that she will answer one question but will not answer any others, and was advised that it would be necessary for her to answer all questions propounded except those which would incriminate her for the violation of a federal offense, and she says she won't answer any. 26 'The Court: Is that your position, madam? 27 'Mr. Menin (counsel for petitioner): I think there has been a misunderstanding. 28 'The Court: Just a minute. Will you please be seated, Mr. Menin? Please be seated. 29 'Mr. Menin: Well, I represent this lady. 30 'The Court: Just a moment. Please be seated. 31 'Mr. Menin: Very well. 32 'The Court: I'll hear you in due course(.) Madam, do you still persist in not answering these questions? 33 'Mrs. Rogers: Well, on the basis or Mr. Menin's statements this morning— 34 'The Court: Will you please answer the question yes or no? 35 'Mrs. Rogers: Well, I think that's rather undemocratic(.) I'm a very honest person. Would you mind letting me consider— 36 'The Court: Make any statement you wish. 37 'Mrs. Rogers: Well, as I said before, I'm a very honest person and I'm not acquainted with the tricks of legal procedure, but I understand from the reading of these cases this morning that I am—and I do have a right to refuse to answer these questions, on the basis that they would tend to incriminate me, and you read it yourself, that I have a right to decide that. 38 'The Court: You have not the right to say. 39 'Mrs. Rogers: According to what you read, I do. I stand on that. 40 'The Court: All right. If you will make no changes, it is the judgment and sentence of the court you be confined to the custody of the Attorney General for four months. Call the next case.' Transcript of Record, pp. 76—78 (September 23, 1948). 1 Transcript, p. 39 (September 21, 1948): 'The Court: Now, what is the question? 'Mr. Goldschein: Who has the books and records of the Communist Party of Denver new? Who did Mrs. Rogers give those books up to as she says she gave them up in January of this year? 'The Court: Do you care to answer that question, madam? 'Mrs. Rogers: I do not. 'The Court: What? 'Mrs. Rogers: I do not, and that's what I told them. 'The Court: Why won't you answer? 'Mrs. Rogers: I don't feel that I should subject a person or persons to the same thing that I'm going through. 'The Court: It is the order or finding of the Court that you should answer those questions. Now will you do that? 'Mrs. Rogers: No.' 2 Transcript, p. 40 (September 21, 1948): 'The Court: You will be detained until tomorrow morning until tne o'clock. In the meantime, you may consult counsel and have a hearing tomorrow morning at ten o'clock on your reasons for refusal to answer questions. Mrs. Rogers: I can consult counsel between now and then? The Court: Yes, but you will be in the custody of the marshal all the time. Get your counsel and bring him over here if you want to, but you will have to be in the custody of the marshal and spend the night in jail, I'm afraid.' 3 Transcript, pp. 43, 49 (September 22, 1948): 'Mr. Menin (After entering his appearance on behalf of petitioner): In regard to the witness Rogers, I've read the transcript of what has transpired in court here yesterday; and I believe that upon my advice she will answer questions which were propounded to her.' 'Mr. Menin: As to the witness Jane Rogers, I think she will purge herself of her contempt by answering the questions. 'The Court: In the case of the witness Rogers, then, the order of the Court is that she return to the Grand Jury room and if she purges herself of contempt, then upon bringing the matter back to the Court, she will be discharged. In the meantime, she will remain in custody.' 4 'No person * * * shall be compelled in any criminal case to be a witness against himself * * *.' U.S.Const. Amend. V. The proceedings leading to the claim of privilege by petitioner appear at Transcript, pp. 77—78 (September 23, 1948): 'The Court: Madam, do you still persist in not answering these questions? Mrs. Rogers: Well, on the basis of Mr. Menin's statements this morning— 'The Court: Will you please answer the question yes or no? Mrs. Rogers: Well, I think that's rather undemocratic. I'm a very honest person. Would you mind letting me consider— 'The Court: Make any statement you wish. 'Mrs. Rogers: Well, as I said before, I'm a very honest person and I'm not acquainted with the tricks of legal procedure, but I understand from the reading of these cases this morning that I am—and I do have a right to refuse to answer these questions, on the basis that they would tend to incriminate me, and you read it yourself, that I have a right to decide that. 'The Court: You have not the right to say. 'Mrs. Rogers: According to what you read, I do. I stand on that. 'The Court: All right. If you will make no changes, it is the judgment and sentence of the court you be confined to the custody of the Attorney General for four months. Call the next case.' 5 Citing U.S. ex rel. Vajtauer v. Commissioner of Immigration, 1927, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560. See Smith v. United States, 1949, 337 U.S. 137, 147, 69 S.Ct. 1000, 1005, 93 L.Ed. 1264; Corwin, The Supreme Court's Construction of the Self-Incrimination Clause, 29 Michigan L.Rev. 1, 198—199 (1930). 6 United States v. Murdock, 1931, 284 U.S. 141, 148, 52 S.Ct. 63, 64, 76 L.Ed. 210. 7 Hale v. Henkel, 1906, 201 U.S. 43, 69, 26 S.Ct. 370, 376, 50 L.Ed. 652; McAlister v. Henkel, 1906, 201 U.S. 90, 91, 26 S.Ct. 385, 50 L.Ed. 671. 8 Brown v. Walker, 1896, 161 U.S. 591, 609, 16 S.Ct. 644, 651, 40 L.Ed. 819; Hale v. Henkel, 1906, 201 U.S. 43, 69—70, 26 S.Ct. 370, 377, 50 L.Ed. 652. 9 Wilson v. United States, 1911, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771; Wheeler v. United States, 1913, 226 U.S. 478, 33 S.Ct. 158, 57 L.Ed. 309; Grant v. United States, 1913, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423; Essgee Co. v. United States, 1923, 262 U.S. 151, 43 S.Ct. 514, 67 L.Ed. 917. 10 Brown v. United States, 1928, 276 U.S. 134, 48 S.Ct. 288, 72 L.Ed. 500; United States v. White, 1944, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542. Cf. United States v. Fleischman, 1950, 339 U.S. 349, 358, 70 S.Ct. 739, 744. 11 See also the cases cited in notes 7 and 8, supra. The privilege does not attach to the books of an organization, whether or not the books in question are 'required records' of the type considered in Shapiro v. United States, 1948, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787. 12 Membership in the Communist Party was not, of itself, a crime at the time was not, of itself, a crime at the time the questions in this case were asked. And Congress has since expressly provided, in the Internal Security Act of 1950, Act of Sept. 23, 1950, 64 Stat. 987, 992, § 4(f), 50 U.S.C.A. § 783(f), that 'Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation (of this Act) or of any other criminal statute.' We, of course, express no opinion as to the implications of this legislation upon the issues presented by these cases. 13 Quoted with approval in Powers v. United States, 1912, 223 U.S. 303, 314, 32 S.Ct. 281, 283, 56 L.Ed. 448. 14 United States v. St. Pierre, 2 Cir., 1942, 132 F.2d 837, 147 A.L.R. 240; Brckeye Powder Co. v. Hazard Powder Co., D.C.Conn., 1913, 205 F. 827, 829. 15 262 U.S. at page 359, 43 S.Ct. at page 563, 67 L.Ed. 1023 (emphasis supplied). The Arndstein appeals, like the present case, arose out of an involuntary examination. The Court reserved, as we do here, the problems arising out of a possible abuse of the privilege against self-incrimination in adversary proceedings. Compare state court decisions collected in 147 A.L.R. 255 (1943). 16 VIII Wigmore, Evidence (1940) § 2276, quotes from Foster v. People, 1869, 18 Mich. 266, as authoritative and summarizes the law as follows: 'The case of the ordinary witness can hardly present any doubt. He may waive his privilege; this is conceded. He waives it by exercising his option of answering; this is conceded. Thus the only inquiry can be whether, by answering as to fact X, he waived it for fact Y. If the two are related facts, parts of a whole fact forming a single relevant topic, then his waiver as to a part is a waiver as to the remaining parts; because the privilege exists for the sake of the criminating fact as a whole.' (Emphasis in original.) 17 Heike v. United States, 1913, 227 U.S. 131, 144, 33 S.Ct. 226, 228, 57 L.Ed. 450; Brown v. Walker, 1896, 161 U.S. 591, 600, 16 S.Ct. 644, 648, 40 L.Ed. 819. 18 Mason v. United States, 1917, 244 U.S. 362, 366, 37 S.Ct. 621, 622, 61 L.Ed. 1198. 19 United States v. St. Pierre, 2 Cir., 1942. 132 F.2d 837, 147 A.L.R. 240, presented a closer question since the 'detail' which St. Pierre was required to divulge would identify a person without whose testimony St. Pierre could not have been convicted of a crime. We, of course, do not here pass upon the precise factual question there decided by the Court of Appeals. 20 Browne v. United States, 2 Cir., 1905, 145 F. 1, 13; Donegan v. United States, 2 Cir., 1922, 287 F. 641, 648; Pomerantz v. United States, 3 Cir., 1931, 51 F.2d 911, 913; Grove v. United States, 4 Cir., 1925, 3 F.2d 965, 967; McDonald v. United States, 8 Cir., 1925, 9 F.2d 506, 507; Rosenthal v. United States, 8 Cir., 1930, 45 F.2d 1000, 1003, 78 A.L.R. 1415; Didenti v. United States, 9 Cir., 1930, 44 F.2d 537, 538. See also Feder v. United States, 2 Cir., 1919, 257 F. 694, 697; Worthington v. United States, 7 Cir., 1933, 64 F.2d 936, 939. 1 'This provision (against self-incrimination) must have a broad construction in favor of the right which it was intended to secure.' Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 198, 35 L.Ed. 1110. 2 While it has been held that failure specifically to invoke the privilege prior to final judgment constituted a waiver, United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560; United States v. Murdock, 284 U.S. 141, 148, 52 S.Ct. 63, 64, 76 L.Ed. 210, such cases are not controlling here. Before final judgment was entered against this petitioner, she asserted the privilege not to incriminate herself under federal law, and was sentenced for standing on this ground. See Appendix following this opinion, 340 U.S. 381, 71 S.Ct. 446. 3 The Court's reliance on Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, as indicating that the privilege can be waived unintentionally is misplaced. For in the Brown case, it was said that 'if the witness himself elects to waive his privilege, * * * he is not permitted to stop, but must go on and make a full disclosure.' (Emphasis supplied.) 161 U.S. at page 597, 16 S.Ct. at page 647, 40 L.Ed. 819. 4 The practical difficulties inherent in the rule announced by the Court are made apparent by a reading of the opinions in United States v. St. Pierre, 2 Cir., 132 F.2d 837, 147 A.L.R. 240. 5 See note 11 and accompanying text, infra. 6 Today's opinion seeks to derive a looser test from certain negative language in the subsequent case of McCarthy v. Arndstein, 262 U.S. 355, 359, 43 S.Ct. 562, 563, 67 L.Ed. 1023, where it was said that if 'the previous disclosure by an ordinary witness is not an actual admission of guilt or incriminating facts, he is not deprived of the privilege of stopping short * * *.' In that very case, however, the Court quoted with approval the minimum rule it had previously announced. 262 U.S. at page 358, 43 S.Ct. at page 563, 67 L.Ed. 1023. Moreover, in stating the reason why Arndstein had not waived his privilege, the Court said: 'And since we find that none of the answers which had been voluntarily given by Arndstein, either by way of denials or partial disclosures, amounted to an admission or showing of guilt, we are of opinion that he was entitled to decline to answer further questions when so to do might tend to incriminate him.' 262 U.S. at pages 359 360, 43 S.Ct. at pages 563—564, 67 L.Ed. 1023. It is also suggested that the Michigan case of Foster v. People, 18 Mich. 266, was adopted as the federal rule by this Court in McCarthy v. Arndstein, supra, 262 U.S. at page 359, 43 S.Ct. at page 563, 67 L.Ed. 1023. Although the Foster case was there cited, no acceptance was intended of the language in the Michigan decision which a majority quotes today. That the Court would not have accepted this quotation is shown by the fact that it placed reliance on an English case, Regina v. Garbett, 2 C. & K. 474, 495, which was summarized as holding the following: '(I)t makes no difference in the right of a witness to protection from incriminating himself that he has already answered in part, he 'being entitled to claim the privilege at any stage of the inquiry." McCarthy v. Arndstein, supra, 262 U.S. at page 359, 43 S.Ct. at page 563, 67 L.Ed. 1023. 7 I do not understand the Court's holding to rely on the statement in the opinion that 'Petitioner had no privilege with respect to the books of the Party * * *.' This statement of course is not relevant in the present case where there is no issue of compelling petitioner to turn over unprivileged documents in her possession. But if the Court does intend to suggest that a witness is not privileged in refusing to answer incriminating questions merely because those questions relate to unprivileged documents, then I must point out that the decision in this case is entirely inconsistent with our recent unanimous decision in Blau v. United States, 340 U.S. 159, note 1, 71 S.Ct. 223. 8 Blau v. United States, supra; Blau v. United States, 340 U.S. 332, 71 S.Ct. 301. 9 Although the Court of Appeals upheld the convictions of most of the witnesses called before the grand jury, it made the following comment concerning the conduct of the Special United States Attorney: '(His) stock statement to the witness that she was not under investigation and that the grand jury was not proceeding against her, was not warranted. It was not for him to say what the scope of the grand jury's investigation was; neither was his statement a substitute for her constitutional protection.' Rogers v. United States, 10 Cir., 179 F.2d 559, 563. Other 'irregularities' in the proceedings below were also pointed out. 179 F.2d at page 561. Conduct of the same prosecutor during a similar grand jury investigation in Los Angeles was criticized by judges of the Ninth Circuit in Alexander v. United States, 181 F.2d 480. There it was said that the government attorney 'pursued the same tactics tending to put the witness of his guard * * *.' 181 F.2d at page 482. 10 The transcript of this portion of the proceedings below is set out in the Appendix. 11 The district judge's sole reference to 'waiver' was not made in the case of petitioner. In addressing one of the other witnesses, however, the judge said, 'Of course, anything you testify to, unless you signed a waiver, can't be used against you in any trial hereafter. That's the law, isn't it?' (Emphasis supplied.) The conviction of this witness, Nancy Wertheimer, was the only one reversed by the Court of Appeals. Rogers v. United States, 10 Cir., 179 F.2d 559. 12 For a description of the abuses which led to the incorporation of the privilege against self-incrimination in the Bill of Rights, see Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va.L.Rev. 763.

01

340 U.S. 419 71 S.Ct. 382 95 L.Ed. 391 UNITED STATES et al.v.ROCK ISLAND MOTOR TRANSIT CO. et al. No. 25. Argued Nov. 7, 1950. Decided Feb. 26, 1951. Rehearing Denied April 9, 1951. See 341 U.S. 906, 71 S.Ct. 609. [Syllabus from pages 419-421 intentionally omitted] Mr. Daniel W. Knowlton, Washington, D.C., for appellants. Mr. Harry E. Boe, Chicago, Ill., for appellee Rock Island Motor transit co. Mr. Einar Viren, Omaha, Neb., for appellee Omaha Chamber of Commerce. Messrs. Ernest Porter, Des Moines, Iowa, Bert F. Wisdom, Ida Grove, Iowa, for appellee Iowa State Commerce Comm'n. Mr. Justice REED delivered the opinion of the Court. 1 Questions of the power of the Interstate Commerce Commission to tighten the restrictions on operations of a railroad's motor-carrier affiliate are raised by this appeal. In the Commission's view the operations must be modified in order to make them truly auxiliary to or supplemental of the rail service. They are conducted (1) under a certificate of convenience and necessity issued in 1941 under § 207 of the Interstate Commerce Act, 49 U.S.C.A. § 307, and (2) under an order of 1944 approving the acquisition of another motor carrier. The certificate contains the condition that the Commission might impose other terms to restrict the holder's operation to service which is auxiliary to or supplemental of rail service. The order contains neither this condition nor any other relating to the specific operating rights of the carrier. 2 The issues involve a basic power of the Commission to regulate the operations of motor carriers affiliated with railroads so as to assure that at all times the motor operations shall be consonant with the National Transportation Policy, 54 Stat. 899, 49 U.S.C.A. preceding section 301. The Commission has decided that that policy requires the motor operations of railroads and their affiliates to be auxiliary to and supplemental of train service. This raises questions as to how the planned auxiliary and supplemental service is to be achieved. Differences also exist as to what phases of motor-carrier operations are auxiliary to and supplemental of rail or train service. 3 The Rock Island Motor Transit Company, a wholly-owned corporate subsidiary of the Chicago, Rock Island and Pacific Railroad Company and its predecessors, is a common carrier by motor vehicle engaged in transporting property in interand intrastate commerce, exclusively, for all practical purposes, along the rail lines of its parent corporation in Arkansas, Illinois, Indiana, Iowa, Minnesota, Missouri, Nebraska, Tennessee, Texas and Kansas. Many of Transit's operations alongside its parent are in different localities and under other I.C.C. authorities than the certificate and order here involved. 4 This appeal deals with additional operating restrictions placed subsequent to the Commission's formal approval of Transit's purchase and operation, upon two of Transit's acquisitions. The first is a segment of the so-called White Line Purchase. The Line was in process of perfecting its 'grandfather rights' under § 206(a), Motor Carrier Act, 49 U.S.C.A. § 306(a), at the time of appellees' agreement to purchase. The order directing issue of the certificate to Rock Island recognized this. This purchase was authorized under § 213, Motor Carrier Act of 1935, 49 Stat. 555, April 1, 1938, Docket No. MC—F—445; reported 5 M.C.C. 451, 15 M.C.C. 763. The segments of the White Line Purchase here involved are those between Des Moines, Iowa, and Omaha, Nebraska, and Des Moines, Iowa, and Silvis, Illinois, included in Transit's certificate of convenience and necessity issued in M.C. 29130, December 3, 1941. 5 That certificate had only the following provisions in any way applicable to this controversy: 6 'Service is authorized to and from the intermediate points on the above-specified routes which are also stations on the lines of The Chicago, Rock Island and Pacific Railway Company. 7 'The operations authorized on the abovespecified routes are subject to such further limitations, restrictions, or modifications as we may find it necessary to impose or make in order to insure that the service shall be auxiliary or supplementary to the train service of The Chicago, Rock Island and Pacific Railway Company and shall not unduly restrain competition.' 8 The second acquisition is the so-called Frederickson Purchase, authorized November 28, 1944, Docket No. MC—F—2327, under § 5, Interstate Commerce Act, 54 Stat. 905, by which Transit acquired, from the holders of a certificate of convenience and necessity, a route between Atlantic, Iowa, and Omaha, Nebraska. Neither the report nor the order contained provisions alike or akin to these just quoted from the White Line certificate. No order for a certificate has yet been entered and no certificate has been issued. 9 The routes here involved are a major part of the Rock Island's truck route between Chicago and Omaha. The eastern end of that route from Silvis, Illinois, to Chicago is operated under other I.C.C. authority. 10 Transit has been operating the above routes since their respective dates. Under those authorities, Transit states it has engaged in trucking service as follows: '(a) a coordinated rail-service, at rail rates auxiliary to the existing service of appellee's affiliated railroad; (b) a motor service in substitution of rail service, at rail rates; and (c) a motor common carrier service at rates and tariffs observed and applied by appellee's predecessors, as modified from time to time.' On February 5, 1945, the Commission directed reopening of the dockets to give reconsideration to the above certificate and order, 'solely to determine (a) the conditions or restrictions, if any appear necessary, which should be imposed to insure that the motor carrier service performed by The Rock Island Motor Transit Company is limited to that which is auxiliary to, or supplemental of, rail service, and (b) the condition, if any appears necessary, which should be imposed so as to make the authority granted to The Rock Island Motor Transit Company subject to such further conditons or restrictions as the Commission may find necessary to impose in order to insure that the service shall be auxiliary to, or supplemental of, rail service.' 11 At the end of that reconsideration, an order was entered to modify the White Purchase certificate and the Frederickson order in the following respects: 12 '1. The service to be performed by The Rock Island Motor Transit Company shall be limited to service which is auxiliary to, or supplemental of, train service of The Chicago, Rock Island and Pacific Railroad Company, hereinafter called the Railroad. 13 '2. The Rock Island Motor Transit Company shall not render any service to or from any point not a station on a rail line of the Railroad. 14 '3. No shipments shall be transported by The Rock Island Motor Transit Company between any of the following points, or through, or to, or from, more than one of said points: Omaha, Nebr., Des Moines, Iowa, and collectively Davenport and Bettendorf, Iowa, and Rock Island, Moline, and East Moline, Ill. 15 '4. All contractual arrangements between The Rock Island Motor Transit Company and the Railroad shall be reported to us and shall be subject to revision, if and as we find it to be necessary, in order that such arrangements shall be fair and equitable to the parties. 16 '5. Such further specific conditions as we, in the future, find it necessary to impose in order to insure that the service shall be auxiliary to, or supplemental of, train service.' Rock Island Motor Transit Co., 55 M.C.C. 567, 597—598, affirming 40 M.C.C. 457. 17 It is from those modifications that Transit sought relief through §§ 1336 and 2325 of 28 U.S.C., 28 U.S.C.A. §§ 1336, 2325 from a three-judge district court. The relief was granted and the orders were annulled and their enforcement enjoined. 90 F.Supp. 516. The United States and the Interstate Commerce Commission appealed under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. We noted probable jurisdiction. 18 Transit's objection to the order modifying the provisions under which it operates these routes may be generalized as a contention that the Commission's order changes or revokes a part of Transit's operating authority, previously granted by the Commission, without any failure by Transit to comply with any term, condition or limitation of the Commission authority under which Transit functions. Changes or revocations may only be made under § 212(a) of the Interstate Commerce Act, 49 U.S.C.A. § 312(a), for such failures.1 19 The Commission, on the other hand, takes the position that there is no change in or revocation of its authorization to operate as a motor common carrier. It looks upon the certificate for the White Line route and the order for the Frederickson Purchase as being controlled by the Interstate Commerce Act and Transit's applications for purchase approval. The Commission understands the Declaration of Policy, § 202(a) of the Motor Carrier Act, enacted at the inception of federal regulation of motor carriers in 1935, 49 Stat. 543, 49 U.S.C.A. § 302, as directing it to preserve the inherent advantages of such transportation in the public interest. It finds support for this view in the National Transportation Policy set out in the 1940 amendments to the Interstate Commerce Act, 54 Stat. 899, declaring that the Act should be administered so as to recognize and preserve the inherent advantages of rail, motor and water transportation.2 It treats § 213 of the Motor Carrier Act of 1935 and present § 5 of the Interstate Commerce Act as authorizing mergers, consolidations and acquisitions between rail and motor carriers only within the Transportation Policy.3 Although § 207, providing for the issuance of certificates of convenience and necessity, has no clause requiring special justification for railroads to receive motor-carrier operating rights, such as appears in the proviso in former § 213 and present § 5, the Commission applies the rules of the National Transportation Policy so as to read the proviso into § 207 in order to preserve the inherent advantages of motor-carrier service.4 20 The trial court accepted Transit's argument. 90 F.Supp. at page 519. The court found the undisputed fact to be that the Commission, in this modification proceeding, was not acting under § 212 of the Interstate Commerce Act authorizing changes or revocations in operating authority, but under claimed power subsequently to impose conditions to insure that the operations would be auxiliary to, or supplemental of, rail service; that Transit's operations were at all times auxiliary and supplemental to rail service within the Commission's definition of that service when the acquisitions were approved, and could not be changed or revoked except under § 212; that such restrictions as were proposed would interfere with the full motor common-carrier rights of Transit's predecessors guaranteed to them by the 'grandfather clause,' § 206, and transferred to Transit by a purchase approved by the Interstate Commerce Commission. 21 A glance at the proposed restrictions, supra, 340 U.S. 425 426, 71 S.Ct. 386, 387, shows the practical disadvantages to Transit. It cannot carry on a general all-motor operation on its own billings or under motor rates, joint or local.5 It cannot haul through motor traffic at rail tariffs between the 'key points,' Omaha, Des Moines and the Bettendorf-Rock Island-Moline center. Furthermore, Transit rests under the threat of possible future restrictions as need may be shown for their application to hold its operations, under changing conditions, to those then reasonably determined by the Commission to be needed to keep Transit's motor service auxiliary and supplemental to its parent's rail service. Transit alleges that the restrictions would bar it from participation in traffic on the affected routes that now produce a gross revenue of more than a million dollars a year. As damage to Transit, if the Commission order is enforced, was admitted, proof of the amount was dispensed with. 22 With the situation as above stated in mind, we take up the question of the validity of the Commission's action in this case. 23 Statutory Authority.—The Commission has power at the time of its approval of an application to limit the authority to be granted by certificates of convenience and necessity for the operation of motor carriers, whether the certificate is issued on an original application under § 207 or after acquisition under § 213 of the Motor Carrier Act, § 5(2), Interstate Commerce Act. Section 206 requires a certificate. Section 207 gives discretion to the Commission according to the statutory standards of convenience and necessity to authorize a part or all of the requested operations. The service must be performed according to the 'requirements, rules, and regulations of the Commission'. 24 The practice of the Commission from the beginning of motor-carrier regulation has been to restrict motor-carrier operations both geographically6 and functionally.7 The same was true of railroad motor-carrier affiliates. We think that at the time of issuance of the certificate, if the Commission reasonably deems the restriction useful in protecting competition, or for other statutory purposes, the Commission may require the railroad-affiliated motor carrier to perform only those services that are auxiliary and supplemental to the rail service. That the railroads made use of motor carriage primarily in such fashion was known to the Congress before the enactment of any regulatory legislation in the field.8 Such a restriction is a logical method to insure the maximum development of the two transportation agencies—rails and motors—as coordinate transportation services in accordance with the Declaration of Policy, § 202(a) of the Motor Carrier Act of 1935, 49 Stat. 543, later incorporated into the National Transportation Policy, prefixed to the Interstate Commerce Act of 1940, 54 Stat. 899. Specific statutory authority is found in the requirements of the proviso in § 213(a) of the Motor Carrier Act of 1935 and § 5 of the Interstate Commerce Act as amended in 1940, quoted in note 3, supra. Railroad operations as motor carriers are forbidden by that acquisition section except to enable a railroad 'to use service by motor vehicle to public advantage in its operations'.9 25 A spate of cases can be cited to support the practice, some of which were specifically called to Congress' attention prior to the enactment of the 1940 Act.10 With this knowledge that the Commission was granting certificates when it deemed the proposed railroad motor-carrier affiliates would operate as auxiliary to and supplemental of railroad service, Congress reenacted § 213 of the Motor Carrier Act in § 5(2) of the Transportation Act of 1940. Such limitation was in furtherance of the National Transportation Policy, for otherwise the resources of railroads might soon make over-the-road truck competition impossible, as unregulated truck transport, it was feared, might have crippled some railroads. Motor transportation then would be an adjunct to rail transportation, and hoped-for advancements in land transportation from supervised competition between motors and rails would not materialize. The control of the bulk of rail and motor transportation would be concentrated in one type of operation. Complete rail domination was not envisaged as a way to preserve the inherent advantages of each form of transportation.11 26 As indicated above in the text just preceding note 4, the Commission reads into § 207 the same requirement. Thus a consistent attitude toward the use of motors by railroads is maintained. It also relies on its understanding of the directions of the National Transportation Policy 'to recognize and preserve the inherent advantages of each', rail, motor, and water; and its reliance on that Policy is further justified by the Whittington amendment stating that '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. 27 But power in the Commission, before issuance of a certificate or approval of acquisition, to limit railroad motor operations so as to make them auxiliary and supplemental to rail service does not necessarily imply power to change the conditions designed to bring about the desired coordination, after issuance of the certificate. The parent railroad may have acquired or developed its motor affiliate in reliance on the conditions stated in the certificate. So far as the present case is concerned, there is a provision, quoted above, 340 U.S. at pages 423—424, 71 S.Ct. at page 386, making the certificate for the White Line operation subject to further limitations, restrictions or modifications the Commission might find necessary to insure a continuance of auxiliary and supplemental operation and to avoid undue restraint on competition. It was a clause like this in Interstate Commerce Commission v. Parker, 326 U.S. 60, 65 S.Ct. 1490, 89 L.Ed. 2051, that occasioned the comment that 'if the Commission later determines that the balance of public convenience and necessity shifts through competition or otherwise, so that injury to the public from impairment of the inherent advantages of motor transportation exceeds the advantage to the public of efficient rail transportation, the Commission may correct the tendency by restoration of the rail movement requirement or otherwise.' Id., 326 U.S. at pages 71—72, 65 S.Ct. at page 1496. As the issue in the Parker case was the right to issue certificates to railway subsidiaries when existing over-the-road motor carriage might have been utilized, no determination was made there as to whether or not such a reservation was valid. Its effect on the present issues comes from the ruling there made that the Commission had power to balance the public interests in the different methods of transportation so as to preserve the inherent advantages of each, even though its action might bring some disadvantage to one system or the other. This duty was said to have been imposed upon the Commission by the National Transportation Policy. Id., 326 U.S. at page 66, 65 S.Ct. at page 1493. 28 When competition, public interest in the preservation of the inherent advantages of rails and motors, and use of motor service by railroads in their operation, are the basis, as they are (see National Transportation Policy, 54 Stat. 899 and § 5(2)(b) for allowing acquisitions of motor routes by railroads, we think it consonant with that policy to reserve the right to make further limitations, restrictions or modifications to insure that the service remain auxiliary or supplemental. Congress could not have expected the Commission to be able to determine once and for all the provisions essential to maintain the required balance. Such a reservation, of course, does not provide unfettered power in the Commission to change the certificate at will. That would violate § 212, allowing suspension, change or revocation only for the certificate holders' willful failure to comply with the Act or lawful orders or regulations of the Commission. The reservation by its terms does not offend against the provision of § 212 that a certificate 'shall remain in effect until suspended or terminated', as § 212 provides. The Commission asserts the modifications were made in accordance with the certificate. The reservation would not authorize changes in operation or service unconnected with the plan of coordinated operation; and indeed Transit was not originally authorized to operate independently and at large. What the reservation does allow are changes to insure that the operations will continue as auxiliary or supplemental to the train service. 29 The consolidation section, § 5(2), permits a railroad to purchase a motor carrier only 'with the approval and authorization of the Commission'. That approval is contingent upon a finding of public advantage and lack of undue restraint on competition. Then approval is to be made 'upon the terms and conditions, and with the modifications, so found to be just and reasonable'. 30 We note the directions of § 208 as to the certificate, requiring that it 'shall specify the service to be rendered' and that 'there shall, at the time of issuance and from time to time thereafter, be attached to the exercise of the privileges granted by the certificate such reasonable terms, conditions, and limitations as the public convenience and necessity may * * * require'. We note also §§ 216(c) and 217(a) with their provisions allowing common carriers by motor to establish through routes and joint rates with other carriers, motor or otherwise. Sections 208, 216(c) and 217(a), 49 U.S.C.A. §§ 308, 316(c), 317(a), with their general provisions do not in our opinion override the specific requirement of the National Transportation Policy that the inherent advantages of all modes of transportation be retained, or of § 5 that acquisition of motor routes by railroads shall require the above special findings and may be subject to special conditions. Section 208 does not seem to conflict with § 5(2)(b), and § 216(c) is based on voluntary action. And we need not pause over the contention that limitations placed upon rail-owned motor carriers transform them from common into contract carriers under the definitions in § 203, 49 U.S.C.A. § 303. 31 The language of the proviso of § 5(2)(b), we hold, gives the Commission power to enforce the reservation in the certificate set out, 340 U.S. on pages 423—424, 71 S.Ct. on page 386, supra. We turn then to the question whether the five directed modifications of the certificate, 340 U.S. at pages 425—426, 71 S.Ct. at pages 386, 387, supra, fairly may be said to be of a character auxiliary to or supplemental of train service and not such a change or revocation in part as is contemplated by the procedure of § 212, for failure to comply with statutory or regulatory provisions. 32 Auxiliary and Supplemental.—The Interstate Commerce Act sets out only generally requirements that must be met by railroad applicants for motor-carrier certificates. In acquisition cases under § 5(2) the certificate is not to be issued without the statutory findings discussed above that the proposed merger or consolidation will be in the 'public interest' and that the railroad can use the motor service 'to public advantage in its operations'.12 33 The words 'auxiliary to or supplemental of'13 are not taken from the Act. There is no such specific limitation for railroad operation of motor carriers. Their connotation is to be gathered from the context in which they have been employed by the Commission. The certificate, 340 U.S. at pages 423—424, 71 S.Ct. at page 386, supra, used the phrase to avoid undue restraint on competition. That has been its use from the beginning. The only competition at which the limitation was directed was full railroad competition with over-the-road motor carriers. Appellees urge that the meaning of the words is limited by its application through the restrictions on the certificates at the time it was issued, December 3, 1941. 34 Appellees assert that under their certificate they could and did transport at either rail or truck billing and rates, with no restriction of movement along the route. The auxiliary and supplemental requirement, they argue, is adequately complied with by restricting the service to points 'which are also stations on the lines of The Chicago, Rock Island and Pacific Railway Company.' The Commission, appellees contend, was functioning with this geographical concept of auxiliary and supplemental in mind when, in 1941, reservation was made in Transit's certificate. To support this assertion, appellees call attention to the case in which the phrase 'auxiliary and supplementary' was first applied to authorize motor service of railroad affiliates, Pennsylvania Truck Lines, Inc.—Barker Motor Freight, 1 M.C.C. 101 at 113, October 8, 1936.14 Later, in 5 M.C.C. 9, March 6, 1937, the form was changed as shown below.15 That this authorization permitted general motor-carrier service along the rail lines, appellee states, is shown by Pennsylvania Truck Lines, Inc., Extension Lebanon, Ohio, 47 M.C.C. 837, decided January 6, 1948.16 See also, Southern Pacific Company—Valley Motor Lines, Inc., 39 M.C.C. 441, 447.17 35 The Commission asserts the meaning of 'auxiliary and supplemental' as used in the Barker Purchase and thereafter was not geographical. This, it says, is shown by the explanation in 5 M.C.C. at p. 11, a later Barker report and order.18 In 1943, after the certificate here in question was issued, the Commission defined 'auxiliary and supplemental' in the Texas and Pacific Motor Transport Company Application, 41 M.C.C. 721.19 The Commission notes that the Valley case, supra, came after Texas and Pacific, and now considers it disapproved by a subsequent denial of reconsideration of Texas & Pacific. 55 M.C.C. 567, 584—585. The question has evidently produced a difference of opinion in the Commission.20 36 Appellees charged that the Commission had tightened its 'concept of what is auxiliary to, or supplemental of, rail service.' 55 M.C.C. 567, 583. The Commission refused to accept that assumption and therefore did not discuss the necessity of proceeding under § 212 in changing or partially revoking the certificate. It held: 'We conclude that approval of the acquisition by Transit was solely for the purpose of enabling Transit to perform a service auxiliary to and supplemental of rail service; that such intent or purpose was adequately evidenced by the report of division 5 including the reservation of a right specifically to restrict if need should be found; that Transit has no cause for any complaint that it was misled to its prejudice and that our concept at the time of the original decision herein, as to what constitutes service auxiliary to or supplemental of rail service, though now described in greater detail, has not been revised to Transit's prejudice; and that there is no element of unfairness in our exercise now of any authority which we have to restrict future operations.' 55 M.C.C. 567, 585. It is to be noted also that the examiner's report on the White Line Purchase in 1938 recommended 'that no truck service shall be conducted at other than rail rates.' On objection by appellee this requirement was eliminated. 5 M.C.C. 451, 458; 55 M.C.C. 567, 576 ff.; 90 F.Supp. 516, 518. Furthermore, the Commission required the appellee to file tariffs for truck rates and truck billing with the Commission. 90 F.Supp. 516, 518. The District Court concluded as a matter of law as follows: '3. Prior to and at the time of the approval of the White Line transaction and the issuance in said proceeding of plaintiff's certificate, and at the time of the approval of the acquisition of the Frederickson certificate, the term, 'auxiliary to and supplemental of train service' did not prohibit the rendition of all-motor service directly for the shipping public at all-motor rates in addition to service at rail rates in substitution for and in lieu of the rail service of plaintiff's affiliated railroad.' 37 What was in the Commission's mind as to the meaning of auxiliary and supplemental at the time it issued its certificate, we cannot be sure. At present a motor service is auxiliary and supplemental to rail service, in the Commission's view, when the railroad-affiliated motor carrier in a subordinate capacity aids the railroad in its rail operations by enabling the railroad to give better service or operate more cheaply rather than independently competing with other motor carriers. Undoubtedly the Commission has not consistently required each rail-affiliated motor carrier to forego motor billings or tariffs. Key points to break traffic are relatively new. 28 M.C.C. 5. Rail affiliates have been permitted to leave the line of the railroad to serve communities without other transportation service.21 Those divergences, however, are an exercise of the discretionary and supervisory power with which Congress has endowed the Commission. It is because Congress could not deal with the multitudinous and variable situations that arise that the Commission was given authority to adjust services within the limits of the Motor Carrier Act, § 208. The Commission has continually evidenced, as indicated above, by opinion and certification its intention to have rail-owned motor carriers serve in auxiliary and supplemental capacity to the railroads. 38 Appellees urge that the new conditions mark a new Commission policy; that it is such a change in the certificate as was condemned in the case of water carriers by United States v. Seatrain Lines, 329 U.S. 424, 428, 67 S.Ct. 435, 437, 91 L.Ed. 396. Without relying upon the statutory differences between Commission power over motor and water carriers, 329 U.S. at pages 429—432, 67 S.Ct. at pages 437— 439, we believe that case is inapplicable to these circumstances. In Seatrain a certificate was granted to carry 'commodities generally.' For the Commission then to modify this to 'in railroad cars only' or 'except in railroad cars' would limit the freight authorized to be carried by the certificate. Transit's certificate, on the other hand, required service auxiliary and supplemental to rails, and the modification was not a change of policy as to that but an additional requirement to insure coordinated service. The new conditions, 340 U.S. at pages 425, 426, 71 S.Ct. at pages 386, 387, supra, are of a character that aids rail operation and minimizes competition with over-the-road motor carriers. Such added conditions are not changes in or revocations of a certificate in whole or in part but a carrying out of the reservation in the certificate. 39 The Commission has expressed its policy to limit rail affiliates to services in aid of rail transportation by the phrase, perhaps too summary, auxiliary and supplemental. Though the phrase is difficult to define precisely, its general content is set out in Texas & Pacific Motor Transport Co. Application, 41 M.C.C. 721, 726, quoted n. 19, supra. While the practice of the Commission has varied in the conditions imposed, the purpose to have rail-connected motor carriers act in coordination with train service has not. Circumstances change. Different conditions are required under different circumstances to maintain the balance between rail and motor carriage. We do not think the meaning of auxiliary and supplemental is limited to the Commission's practice at any particular time. So long as it may fairly be said that the practice required from the motor carrier falls within the meaning the Commission has given to auxiliary and supplemental, the condition is valid. 40 Such restrictions hamper railroad companies in the use of their physical facilities—stations, terminals, warehouses—their personnel and their capital in the development of their transportation enterprises to encompass all or as much of motor transportation as the roads may desire. The announced transportation policy of Congress did not permit such development.22 We hold that the new conditions are within the limits covered by the reservation of power to impose such further limitations as might be found necessary 'to insure that the service shall be auxiliary or supplementary to the train service' of The Chicago, Rock Island and Pacific Railway Company. 41 Frederickson Purchase.—The statement of facts at the beginning of this opinion shows the Fredericksons possessed certificates issued under the proviso of § 206, the 'grandfather clause.' Transit agreed to purchase these rights subject to the approval of the Commission. This approval was given by a report and order. The order approved the purchase of the 'operating rights and property * * * subject to the terms and conditions set out in the findings in said report.' The findings complied with § 5(2)(a) and (b) of the Transportation Act. They stated, 'The Rock Island Motor Transit Company will be entitled to a certificate covering the previously-described portion of rights granted in Nos. MC—530 and MC—530 (Sub-No. 1), which rights are herein authorized to be unified with rights otherwise confirmed in The Rock Island Motor Transit Company, with duplications eliminated; * * *.' The words 'previously-described portion of rights granted' covers the Frederickson certificates as 'a motor-vehicle common carrier of general commodities over regular routes between' named points. The Frederickson certificates also covered irregular routes for certain commodities. These latter rights were not purchased. The rights purchased were over-the-road motor-carrier rights. Neither those certificates nor the report or order on the purchase application contained anything specifically limiting the operations to service auxiliary to and supplemental of the Rock Island train service. There was a finding, in the words of the proviso to § 5(2)(b) that the purchase 'will enable the Chicago, Rock Island and Pacific Railway Company * * * to use service by motor vehicle to public advantage in its operations.' The transaction was consummated in January 1945, over six years after the approval of the White Line Purchase and over three years after the issue of that original certificate, hereinbefore discussed. 42 The basic question posed as to this purchase is similar to that in the White Line Purchase. Has the Commission power to place in the Frederickson certificates the modifications ordered for the White Line certificate? We will solve the problem by determining that the order approving the purchase has not the finality of a certificate but is rather only a tentative approach to the consummation of the purchase subject to changes in conditions and requirements. The power to issue the certificate with the White Line modified conditions follows, a priori, from what we have said in the foregoing division of this decision. This leaves unanswered the question of the power of the Commission to modify a railroad-affiliated motor carrier's certificate so as to make its operation auxiliary to and supplemental of the rail service, when no reservation for or restriction to that effect has been placed in the order directing the issue of the certificate or the certificate itself. If any such procedure should be undertaken by the Commission, that answer should await a fully developed statement and argument by the interests affected. Our reasons for holding that the Commission may validly insert the proposed limitations in the certificate follow. 43 Closings of loans and purchases involve nice timing adjustments. The transportation industry is familiar with the complexities of closings involving clearances or impositions of prior and underlying mortgages and partition of obligations among syndicates of lenders or purchasers, from rail system mortgages to secure various classes of obligees in reorganizations to simple borrowings for trusteed equipment. It understands the business risks of purchase or sale ahead of final commitment by a separate entity. A request for a statement of the terms of the proposed certificate of convenience and necessity would doubtless have been complied with by the Commission. If not, the closing with Frederickson could have been made by escrow or otherwise simultaneously with the issue of the certificate. 44 Transit had had experience with the problems of coordination between rail and motor service.23 In this application it objected to a limitation on freight of immediately prior or immediately subsequent rail carriage. The limitation was not put in the report as a condition. While the report stressed the rail operating advantages of the use of trucks, it did not deal with the terms auxiliary and supplemental. If the problem of limitation of the certificate to motor service in rail operation occurred to the applicant or the Commission, precedents from the Barker case to the White Line application would have indicated an inclusion in the certificate of a limitation of auxiliary to and supplemental of rail service. 45 Transit maintains that the order is final; that the result is the same as though the service requirements of the order of approval were written into the operating certificate as directed by the statute. § 208. 'The decisions of the Commission,' argues Transit, reflect 'finality of action.'24 Neither of the latter two cases in the note bear in any way on the present point. In both, certificates had been issued and the Commission said, in so many words, the certificates are final. In The Smith Bros. case, it added: 'We may issue decision upon decision, and order upon order, on an application for a certificate so long as sufficient reason therefor appears and until all controversy is determined, but once a certificate, duly and regularly issued, becomes effective, our authority to terminate it is expressly marked off and limited. All the antecedent decisions and orders are essentially procedural in character, and may be set aside, modified, or vacated, but the certificate marks the end of the proceeding, just as the entry of a final judgment or decree marks the end of a court proceeding.' P. 472. 46 What slight bearing Seatrain has weighs on the side of the interlocutory character of the approval order. The sentence referred to reads: 'But, as the Commission has said as to motor carrier certificates, while the procedural 'orders' antecedent to a water carrier certificate can be modified from time to time, the certificate marks the end of that proceeding.' 329 U.S. at page 432, 67 S.Ct. at page 439, 91 L.Ed. 396. 47 As under the statute, §§ 206, 207, 208, motor carriers must have certificates authorizing their operations, we conclude that the certificate is the final act or order that validates the operation. Until its form and content are fixed by delivery to the applicant, the power to frame it in accordance with statutory directions persists. 48 It may be said that, as the order permitted Transit to purchase the Frederickson 'operating rights,' it must have freedom to use all the seller's motor-carrier privileges; that the absence of a reservation defeats Commission power to insert 'auxiliary and supplemental' restrictions in the certificate. Since we hold the order of approval is not the final order, we reject the premise. 49 Other Objections.—A number of other objections to the enforcement of the orders were presented by appellees and considered by the Court. We comment briefly on those we think merit notice. 'Grandfather rights' under § 206 of the Transportation Act were the basis of the White and Frederickson applications for certificates of convenience and necessity. Transit acquired the sellers' rights to certificates. Appellees contend that as the sellers were entitled to broader operating rights than are allowed the purchaser under the modified certificate, the right to 'substantial parity between future operations and prior bona fide operations' guaranteed by § 206 is infringed by limiting the motor service to that auxiliary and supplemental to rail service.25 A railroad purchaser does not necessarily receive all rights a certificate holder possesses. Because of the National Transportation Policy and § 5, making a railroad's purchase subject to conditions, as hereinbefore described, approval may be conditioned by the Commission on the railroad purchaser's willingness to accept a narrower certificate than that possessed by the seller. 50 Finally, the appellee asserts that its certificate is property akin to a franchise; that it has invested large sums in the acquisition and equipment of its routes and service, and that what it alleges is revocation deprives it of property without due process of law. We think that our previous holding in this decision that Transit took its certificate and obtained approval of its acquisitions to operate in the aid of the railroad, auxiliary and supplemental thereto, makes it obvious that Transit had nothing of which it was deprived by the contested order. 51 The judgment of the three-judge District Court is reversed and the proceeding is remanded with directions to dismiss the complaint. 52 Mr. Justice BLACK, Mr. Justice DOUGLAS, Mr. Justice JACKSON and Mr. Justice BURTON dissent and would affirm the District Court's opinion. They are of the opinion that the Commission partially revoked the certificates involved in a manner not authorized by the Interstate Commerce Act. 1 Sec. 212(a), 49 Stat. 555, 52 Stat. 1238, 54 Stat. 924: 'Certificates, permits, and licenses shall be effective from the date specified therein, and shall remain in effect until suspended or terminated as herein provided. Any such certificate, permit, or license may, upon application of the holder thereof, in the discretion of the Commission, be amended or revoked, in whole or in part, or may upon complaint, or on the Commission's own initiative, after notice and hearing, be suspended, changed, or revoked, in whole or in part, for willful failure to comply with any provision of this part, or with any lawful order, rule, or regulation of the Commission promulgated thereunder, or with any term, condition, or limitation of such certificate, permit, or license: * * *.' 2 40 M.C.C., 457, 473: 'It is our opinion, originally indicated in the Kansas City Southern case and confirmed by nearly a decade of experience in motor-carrier regulations, that the preservation of the inherent advantages of motor-carrier service and of healthy competition between railroads and motor carriers and the promotion of economical and efficient transportation service by all modes of transportation and of sound conditions in the transportation and among the several carriers, in short the accomplishment of the purposes forming the national transportation policy, require that, except where unusual circumstances prevail, every grant to a railroad or to a railroad affiliate of authority to operate as a common carrier by motor vehicle or to acquire such authority by purchase or otherwise should be so conditioned as definitely to limit the future service by motor vehicle to that which is auxiliary to, or supplemental of, train service.' 3 § 213(a), 49 Stat. 556: 'Provided, however, That if a carrier other than a motor carrier is an applicant, or any person which is controlled by such a carrier other than a motor carrier or affiliated therewith within the meaning of section 5(8) of part I, the Commission shall not enter such an order unless it finds that the transaction proposed will promote the public interest by enabling such carrier other than a motor carrier to use service by motor vehicle to public advantage in its operations and will not unduly restrain competition.' This proviso remains in the Interstate Commerce Act, § 5(2)(b), 54 Stat. 906. 4 'We appreciate, of course, that section 207, unlike section 5, does not require of a railroad, undertaking to prove that public convenience and necessity require a motor service which it proposes, any greater measure of proof than is required of any other applicant. But this does not mean that it is as easy for one applicant, as for another, to prove need for a proposed service or that this Commission considering an application by a railroad for authority to perform an all-motor service, not in aid of its rail service but in competition therewith and with other motor carriers, can ignore the circumstance that such applicant is a railroad whose operation as proposed would ordinarily be inconsi(s)tent with the principles underlying the national transportation policy. In other words, a railroad applicant for authority to operate as a common carrier by motor vehicle, though required to do no more than prove, as any other applicant, that its service is required by public convenience and necessity, has a special burden, not by reason of any attitude or action on our part, but by reason of the very circumstance that it is a railroad. Where it fails to show special circumstances negativing any disadvantage to the public from this fact, a grant of authority to supply motor service other than service auxiliary to and supplemental of train service is not justified.' Rock Island Motor Transit Co., 40 M.C.C. 457, 471, 473—474; cf. Kansas City Southern Transport Co., 10 M.C.C. 221, 237. 5 Appellees deduce these limitations from the new condition (1), 340 U.S. 425, 71 S.Ct. 386, supra. As the Commission does not challenge the statement, and the record shows that the Commission so treats such conditions, we accept that interpretation. 55 M.C.C. 567, 581 ff. See 41 M.C.C. 721, 726; text at n. 19, infra. 6 § 207: 'Provided, however, That no such certificate shall be issued to any common carrier of passengers by motor vehicle for operations over other than a regular route or routes, and between fixed termini, except as such carriers may be authorized to engage in special or charter operations.' 7 Crescent Express Lines v. United States, 320 U.S. 401, 64 S.Ct. 167, 88 L.Ed. 127. 8 Motor Bus and Motor Truck Operation, 140 I.C.C. 685, 721, 745, 749; Coordination of Motor Transportation, 182 I.C.C. 263; 336 ff.; and see Report of the Federal Coordinator of Transportation on the Regulation of Transportation Agencies other than Railroads, S., Doc. No. 152, 73d Cong., 2d Sess., 15 ff., 35. Report of the Federal Coordinator of Transportation on Transportation Legislation, H.R.Doc.No.89, 74th Cong., 1st Sess. 6. 9 Proviso to § 5. See Commissioner Eastman, Hearings before Subcommittee of the Committee on Interstate Commerce, United States Senate on S. 3606, 75th Cong., 3d Sess. 23: 'The reason for that proviso was that at the time when this act was under consideration by your committee, there was a feeling on the part of many that railroads, for example, ought not be permitted to acquire motor carriers at all. It was pointed out, in opposition to that view, that there were many cases where railroads could use motor vehicles to great advantage in their operations, in substitution for rail service, as many of them are now doing. Many railroad men, for example, feel that the operation of way trains has become obsolete; that the motor vehicle can handle such traffic between small stations much more economically and conveniently than can be done by a way train; and the motor vehicles are being used in that way by many railroads. The same is true of many terminal operations. The motor vehicle is a much more flexible unit than a locomotive switching cars, and it can be used to great advantage and with great economy in many railroad operations.' And see statements of Sen. Wheeler, 79 Cong.Rec. 5655, and Rep. Sadowski, 79 Cong.Rec. 12206. Cf. Interstate Commerce Commission v. Parker, 326 U.S. 60, 65 S.Ct. 1490, 89 L.Ed. 2051. See also § 212(b). 10 E.g., Kansas City Southern Transport Co., 10 M.C.C. 221, 53d Annual Report of the Interstate Commerce Commission 107, November 1, 1939; Pennsylvania Truck Lines, Inc., 5 M.C.C. 9; 51st Annual Report 68—69. The Commission, in Appendix B to its brief in Nos. 38 and 39, United States v. Texas & Pacific Motor Transport Co., 340 U.S. 450, 71 S.Ct. 422, has collected 120 cases, beginning in 1936 with vol. 1 of the Motor Carrier Reports, dealing with the issuance of certificates to motor subsidiaries of rail carriers. The great bulk of these cases makes specific reference to the auxiliary and supplemental standard. 11 See Meck and Bogue, Federal Regulation of Motor Carrier Unification, 50 Yale L.J. 1376, 1408 ff. The Commission's view is evidenced in Pennsylvania Truck Lines, Inc., 1 M.C.C. 101, 111: 'While we have no doubt that the railroad could, with the resources at its command, expand and improve the partnership service and that, so far as numbers are concerned, there is now an ample supply of independent operators in the territory for the furnishing of competitive service, we are not convinced that the way to maintain for the future healthful competition between rail and truck service is to give the railroads free opportunity to go into the kind of truck service which is strictly competitive with, rather than auxiliary to, their rail operations. The language of section 213, above quoted, is evidence that Congress was not convinced that this should be done. Truck service would not, in our judgment, have developed to the extraordinary extent to which it has developed if it had been under railroad control. Improvement in the particular service now furnished by the partnership might flow from control by the railroad, but the question involved is broader than that and concerns the future of truck service generally. The financial and soliciting resources of the railroads could easily be so used in this field that the development of independent service would be greatly hampered and restricted, and with ultimate disadvantage to the public.' 12 In original applications under § 207, the fact that the applicant is a railroad brings up other questions of transportation policy. See note 4, supra. 13 The variant 'auxiliary to or supplementary to' appears to be used interchangeably with 'auxiliary to and supplemental of.' 14 '2. That the service to be rendered by the Barker Motor Freight, Incorporated, in the event the pertinent applications now pending before the Commission are subsequently approved by us, be confined to service auxiliary and supplementary to that performed by the Pennsylvania Railroad Company in its rail operations and in territory parallel and adjacent to its rail lines.' 15 'Provided, however, (1) that operations under the authority herein granted shall be confined between the points and over the routes described in the appendix, (2) that the authority herein granted shall not be construed to include the right of rendering service from or to, or the interchanging of traffic at, any point other than a station of the Pennsylvania Railroad Company, * * *.' 5 M.C.C. at 15. 16 'Under the Barker certificate applicant performs two distinct types of service; (1) substittued service for the railroad, and (2) independent motor carrier service for the general public. The latter service involves the transportation of general commodities, in any quantity, under motor carrier bills of lading and tariffs and at motor carrier rates. * * * Substituted service was being performed by applicant at the time of the hearing in January, 1945, over several routes most of which radiate out of Pittsburgh and Columbus. Independent service also was being performed at that time only over regular routes extending principally between the following points: * * *.' Applicant has its own agents and representatives who deal with the shippers in the performance of the independent service. In January 1945, 200 units of equipment were being used in independent service and 500 in substituted service.' 17 'The only definite restriction on the operating authority which was imposed in the Barker case and later cases has been designed to confine the motor-carrier operations acquired to the territory of the railroad through limiting the rights so as to authorize service only at stations on the railroad. Although, at times, a condition formerly was sometimes included in acquisition cases to the effect that service to be rendered should be 'auxiliary and supplementary' to the railroad's service, there has been no indication in the reports that such condition was intended to prohibit rendition of all motor-carrier service directly for the shipping public under the operating rights in addition to, in substitution for, and in lieu of, the parent railroad's service, or to restrict the operation solely to one in combination with the railroad's operation; nor is it our understanding that it has been so construed by the carriers.' 18 'The scope of the operations proposed to be retained is broader than intended by the conditions we stated in our prior report. Hence, it will be of advantage to the parties in this and later proceedings if we here amplify the meaning of those conditions. Approved operations are those which are auxiliary or supplementary to train service. Except as hereinafter indicated, nonapproved operations are those which otherwise compete with the railroad itself, those which compete with an established motor carrier, or which invade to a substantial degree a territory already adequately served by another rail carrier. 'Approved operations are best illustrated by the substitution of trucks for peddler or way-freight service in what is commonly called 'station-to-station' service.' 19 'Condition 1 (same as condition 1, 340 U.S. 425, 71 S.Ct. 386, supra) limits the character of service to be performed by the petitioner to that which is auxiliary to or supplemental of the rail service of the railway. It limits the service to be performed by truck to the transportation of the rail traffic of the railway. It permits the public to receive an improved rail service through the use of trucks instead of trains as a means of fulfilling the railway's undertaking to transport. Petitioner's status as a common carrier by motor vehicle is not independent upon its having direct dealings with the shipping public. Willett Co. of Indiana, Inc., Extension—Ill., Ind., and Ky., 21 M.C.C. 405. Its service is necessarily limited to points served by the railway, hence condition 2. Condition I permits all-motor movements in the handling of rail traffic at railroad rates and on railroad bills of lading. To and from certain points on segments of the rail lines, the improved service was to be accomplished by performing the movements partly by train and partly by motor vehicle, an auxiliary or supplemental service coordinated with the train service, hence condition 3. Since petitioner's certificates limit the service to be performed to that which is auxiliary to or supplemental of the rail service of the railway, it is without authority to engage in operations unconnected with the rail service and, accordingly, may not properly be a party to tariffs containing all-motor or joint rates, nor participate in a directory providing for the substitution of train service for motor-vehicle service at its option. To the extent petitioner is performing or participating in all-motor movements on the bills of lading of a motor carrier and at all-motor rates, it is performing a motor service in competition with the rail service and the service of existing motor carriers; and, to the extent it is substituting rail service for motor-vehicle service, the rail service is auxiliary to or supplemental of the motor-vehicle service rather than the motor-vehicle service being auxiliary to or supplemental of rail service.' P. 726. 20 See Kansas City Southern Transport, 28 M.C.C. 5, 24; Rock Island Motor Transit Extension, Eldon, Iowa, 33 M.C.C. 349, 361; Rock Island Motor Transit Co.—Purchase—White Line, 40 M.C.C. 457, 478. 'As previously stated, from the date of the decision in the Barker case to shortly before enactment of the transportation Act, 1940, the principles there recognized and applied, controlled the disposition of practically every rail-motor acquisition case. However, beginning with Frisco Transp. Co.—Purchase—Reddish, 35 M.C.C. 132, and continuing until quite recently, the practice of specifically reserving the right later to impose such restrictions as might be necessary to insure that future operations under the acquired authority should be limited to the rendition of service auxiliary to, or supplemental of, train service was not followed. With such departure from the former practice there also appears to have developed a tendency in rail-motor acquisition proceedings to treat the Barker case restrictions as geographical or territorial only in their intent rather than as substantive limitations upon the character of the service which might be rendered by a railroad or its affiliate under any acquired right.' 40 M.C.C. at 469. 21 Rock Island Motor Transit Co., Extension—Wellman, Iowa, 31 M.C.C. 643. See 55 M.C.C. 567, 584. 22 And cf. National Resources Planning Board, Transportation and National Policy (1942), H.R.Doc. 883, 77th Cong., 2d Sess., pp. 155, 156: 'In the present highly dynamic state of the transportation industry, it would be national folly to place the agencies in any kind of strait jacket. Each mode needs an opportunity to grow and change with the times. No drastic move to allocate traffic arbitrarily or to achieve a similar end by indirect means should be permitted private concerns of forced upon them by Government. The public has them by Government. The public has to develop the newer agencies and to revive the old for the purpose of weakening the monopolistic position once occupied by the railroads and of improving and expanding the services offered to users. It would be unfortunate if public policy or private practice were now employed to halt and reverse this trend, and thus to turn back the hands of the transportation clock to an earlier time.' 23 'Certain of Transit's present freight operations are subject to the limitation that service shall be solely that which is auxiliary to and supplemental of the train service of the railroad, and either that freight so handled shall have an immediately prior or subsequent rail haul by the railroad, or that it shall not be transported from, to, or between more than one of specified key points. However, its route between Atlantic and Omaha, Nebr., over U.S. Highway 6, serving all points which are stations on the railroad, is part of a route to and from Chicago, Ill., via Des Moines, acquired pursuant to authority granted in Rock Island M. Transit Co.—Purchase—White Line M. Frt., 5 M.C.C. 451, and is not so restricted.' The Chicago, Rock Island and Pac. R. Co.—Purchase—J. H. Frederickson, etc., 39 M.C.C. 824 (no printed report). 24 United States v. Seatrain Lines, 329 U.S. 424, 67 S.Ct. 435, 91 L.Ed. 396; Boulevard Transit Lines v. United States, D.C., 77 F.Supp. 594, 595; Smith Bros. Revocation of Certificate, 33 M.C.C. 465, 472. 25 The phrase is derived from Alton R. Co. v. United States, 315 U.S. 15, 22, 62 S.Ct. 432, 437, 86 L.Ed. 586; followed in United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 481, 62 S.Ct. 722, 726, 86 L.Ed. 971.

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340 U.S. 534 71 S.Ct. 377 95 L.Ed. 517 NORTON CO.v.DEPARTMENT OF REVENUE OF STATE OF ILLINOIS. No. 133. Argued Dec. 6, 1950. Decided Feb. 26, 1951. Order Conformed to May 21, 1951. See 99 N.E.2d 346. Mr. Joseph B. Brennan, Washington, D.C., for petitioner. Mr. William C. Wines, Chicago, Ill., for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 Petitioner, a Massachusetts corporation, manufactures and sells abrasive machines and supplies. Under consent from the State of Illinois to do business therein, it operates a branch office and warehouse in Chicago from which it makes local sales at retail. These sales admittedly subject it to an Illinois Occupation Tax 'upon persons engaged in the business of selling tangible personal property at retail in this State'. Ill.Rev.Stat.1949, c. 120, § 441. The base for computation of the tax is gross receipts. 2 Not all of petitioner's sales to Illinois customers are over-the-counter, but the State has collected, under protest, the tax on the entire gross income of this company from sales to its inhabitants. The statute specifically exempts 'business in interstate commerce' as required by the Constitution, and the question is whether the State has exceeded the constitutional range of its taxing power by taxing all of petitioner's Illinois derived income. 3 In Worcester, Massachusetts, petitioner manufactures some 225,000 items, 18,000 of which it usually carries in stock. There are its general management, accounting, and credit offices, where it accepts or rejects all direct mail orders and orders forwarded by its Chicago office. If an order calls for specially built machines, it is there studied and accepted or rejected. Orders are filled by shipment f.o.b. Worcester either directly to the customer or via the Chicago office. 4 The Chicago place of business performs several functions. It carries an inventory of about 3,000 most frequently purchased items. From these it serves cash customers and those whose credit the home office has approved, by consummating direct sales. Income from these sales petitioner admits to be constitutionally taxable. But this office also performs useful functions for other classes of customers. For those of no established credit, those who order items not in local stock, and those who want special equipment, it receives their order and forwards it to the home office for action there. For many of these Illinois customers it also acts as an intermediary to reduce freight charges. Worcester packages and marks each customer's goods but accumulates them until a carload lot can be consigned to the Chicago office. Chicago breaks the carload and reconsigns the separate orders in their original package to customers. The Chicago office thus intervenes between vendor and Illinois vendees and performs service helpful to petitioner's competition for that trade in all Illinois sales except when the buyer orders directly from Worcester, and the goods are shipped from there directly to the buyer. 5 The Illinois Supreme Court recognized that it was dealing with interstate commerce. It reiterated its former holdings 'that there could be no tax on solicitation of orders only' in the State.1 But no solicitors work the territory out of either the home office or the Chicago branch, although petitioner will supply engineering and technical advice. The Illinois court held that the presence of petitioner's local retail outlet, in the circumstances of this case, was sufficient to attribute all income derived from Illinois sales to that outlet and render it all taxable. 6 Where a corporation chooses to stay at home in all respects except to send abroad advertising or drummers to solicit orders which are sent directly to the home office for acceptance, filling, and delivery back to the buyer, it is obvious that the State of the buyer has no local grip on the seller. Unless some local incident occurs sufficient to bring the transaction within its taxing power, the vendor is not taxable. McLeod v. J. E. Dilworth Co., 322 U.S. 327, 64 S.Ct. 1023, 88 L.Ed. 1304. Of course, a state imposing a sales or use tax can more easily meet this burden, because the impact of those taxes is one the local buyer or user. Cases involving them are not controlling here, for this tax falls on the vendor.2 7 But when, as here, the corporation has gone into the State to do local business by state permission and has submitted itself to the taxing power of the State, it can avoid taxation on some Illinois sales only by showing that particular transactions are dissociated from the local business and interstate in nature. The general rule, applicable here, is that a taxpayer claiming immunity from a tax has the burden of establishing his exemption.3 8 This burden is never met merely by showing a fair difference of opinion which as an original matter might be decided differently. This corporation, by submitting itself to the taxing power of Illinois, likewise submitted itself to its judicial power to construe and apply its taxing statute insofar as it keeps within constitutional bounds. Of course, in constitutional cases, we have power to examine the whole record to arrive at an independent judgment as to whether constitutional rights have been invaded, but that does not mean that we will re-examine, as a court of first instance, findings of fact supported by substantial evidence.4 9 This corporation has so mingled taxable business with that which it contends is not taxable that it requires administrative and judicial judgment to separate the two. We conclude that, in the light of all the evidence, the judgment attributing to the Chicago branch income from all sales that utilized it either in receiving the orders or distributing the goods was within the realm of permissible judgment. Petitioner has not established that such services as were rendered by the Chicago office were not decisive factors in establishing and holding this market. On this record, no other source of the customer relationship is shown. 10 This corporation could have approached the Illinois market through solicitors only and it would have been entitled to the immunity of interstate commerce as set out in the Dilworth case. But, from a competitive point of view, that system has disadvantages. The trade may view the seller as remote and inaccessible. He cannot be reached with process of local courts for breach of contract, or for service if the goods are defective or in need of replacement. Petitioner elected to localize itself in the Illinois market with the advantages of a retail outlet in the State, to keep close to the trade, to supply locally many items and take orders for others, and to reduce freight costs to local consumers. Although the concern does not, by engaging in business within the State, lose its right to do interstate business with tax immunity, Cooney v. Mountain States Telephone & Telegraph Co., 294 U.S. 384, 55 S.Ct. 477, 79 L.Ed. 934, it cannot channel business through a local outlet to gain the advantage of a local business and also hold the immunities of an interstate business. 11 The only items that are so clearly interstate in character that the State could not reasonably attribute their proceeds to the local business are orders sent directly to Worcester by the customer and shipped directly to the customer from Worcester. Income from those we think was not subject to this tax. 12 The judgment below is vacated and the cause remanded for further proceedings not inconsistent herewith. It is so ordered. 13 Judgment vacated and cause remanded. 14 Mr. Justice REED, dissenting in part. 15 Mr. Justice REED concurs with the Court's opinion and judgment except as it permits Illinois to use as a base for the tax computation petitioner's sales, consummated in Massachusetts by the acceptance of orders forwarded to petitioner there by its Illinois branch office, filled in Massachusetts, and shipped from Massachusetts directly, and not by transhipment through the Illinois branch, to the buyer. In those sales title passes to buyer in Massachusetts. Illinois concedes in its brief the above facts as to this class of sales. From those facts I conclude that, nothing else appearing, the shipment was at the buyer's cost and risk. 16 The Illinois statute recognizes that interstate business is not to be taxed. The transactions described above are interstate business. 17 The pull to permit each state to measure its tax by gross receipts from all sales with some slight relation to the taxing state is strong. The Constitution, however, puts the regulation of interstate commerce in the hands of the Federal Government. We have gone far in interpretation of the Constitution to allow a state to collect tax money, but in view of the delegation to the Federal Government of the power over commerce carried on in more than one state, we should preserve interstate commerce itself from taxes levied on it directly or on the unapportioned gross receipts of that commerce. Central Greyhound Lines, Inc., v. Mealey, 334 U.S. 653, 68 S.Ct. 1260, 92 L.Ed. 1633; Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 67 S.Ct. 815, 91 L.Ed. 993; Interstate Oil Pipe Line Co. v. Stone, dissent, 337 U.S. 662, 676, 69 S.Ct. 1264, 1271, 93 L.Ed. 1613. 18 Our closest approach to the tax on the above interstate business was the tax on DuGrenier, Inc., in McGoldrick v. Felt & Tarrant Mfg. Co., 309 U.S. 70, 77, 60 S.Ct. 404, 405, 84 L.Ed. 584. Despite marked differences between the DuGrenier transactions and all others considered in McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 60 S.Ct. 388, 84 L.Ed. 565, without analysis of the effect of those differences and in reliance upon the fact that 'possession' was transferred to New York from the transportation company to the buyer, we upheld the tax. If by the language used it was meant to say that the seller delivered the goods to the buyer, the transactions were, as we said, 'controlled' by Berwind-White. 19 A few years later, however, in McLeod v. J. E. Dilworth Co., 322 U.S. 327, 64 S.Ct. 1023, 88 L.Ed. 1304, an opinion in which the writer of the DuGrenier opinion, Chief Justice Stone, joined, we made it clear that a tax cannot be collected by the buyer's state on orders solicited in one state, accepted in another, and shipped at the purchaser's risk. That later clarifying holding seems to me to state the true rule applicable here. I can see no difference, constitutionally, between solicitation by salesmen in a branch office or on the road. Such sales, consummated by direct shipment to Illinois buyers from out of the state are interstate business and free of the tax Illinois has levied. So far as the Supreme Court of Illinois holds those transactions taxable, it should be reversed. 20 Mr. Justice CLARK, dissenting in part. 21 I believe the respondent reasonably attributed all of the proceeds of petitioner's sales in Illinois to the company's local activities. I therefore agree with the Illinois Supreme Court that under the circumstances shipments sent directly to Illinois customers on orders sent directly to Worcester were subject to the tax. 22 As the Court points out, petitioner can avoid taxation on its direct sales only 'by showing that * * * (they) are dissociated from the local business and (are) interstate in nature. The general rule, applicable here, is that a taxpayer claiming immunity from a tax has the burden of establishing his exemption.' Petitioner has failed to meet this burden. In fact Illinois has shown that petitioner's Chicago office is its only source of customer relationship in Illinois; that the Chicago office provides the sole means through which petitioner can be reached with process by Illinois courts in the event a customer is aggrieved; that the local office affords service to machines after sale, as well as replacement of machines which are defective; that it stands ready to receive complaints and to offer engineering and technical advice; and that these multitudinous activities give to petitioner a local character which is most helpful in all its Illinois operations. Surely the Court's conclusion, that 'Petitioner has not established that such services as were rendered by the Chicago office were not decisive factors in establishing and holding this market', applies with equal validity to the direct sales. 23 In maintaining a local establishment of such magnitude, petitioner has adopted the label of home-town merchant. After it has received the manifold advantages of that label, we should not give our sanction to its claim made at taxpaying time that with respect to direct sales it is only an itinerant drummer. For the foregoing and other reasons which need not be stated, I would affirm in its entirety the judgment below. 24 Mr. Justice BLACK and Mr. Justice DOUGLAS join in this opinion. 1 405 Ill. 314, 320, 90 N.E.2d 737, 741. 2 Cf. Nelson v. Montgomery Ward & Co., 312 U.S. 373, 61 S.Ct. 593, 85 L.Ed. 897; Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 61 S.Ct. 586, 85 L.Ed. 888; McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 60 S.Ct. 388, 84 L.Ed. 565; MeLeod v. J. E. Dilworth Co., supra. 3 Compania General de Tabacos de Filipinas v. Collector of Internal Revenue, 279 U.S. 306, 310, 49 S.Ct. 304, 305, 73 L.Ed. 704; People of State of New York ex rel. Cohn v. Graves, 300 U.S. 308, 316, 57 S.Ct. 466, 469, 81 L.Ed. 666. 4 Merchant's National Bank of Richmond, Va., v. City of Richmond, 256 U.S. 635, 638, 41 S.Ct. 619, 620, 65 L.Ed. 1135; Carlson v. State of Washington ex rel. Curtiss, 234 U.S. 103, 106, 34 S.Ct. 717, 718, 58 L.Ed. 1237.

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340 U.S. 504 71 S.Ct. 470 95 L.Ed. 483 O'LEARY, Deputy Commissioner,v.BROWN-PACIFIC-MAXON, Inc., et al. No. 267. Argued Dec. 7, 1950. Decided Feb. 26, 1951. Mr. Morton Hollander, Washington, D.C., for petitioner. Mr. Edward S. Franklin, Seattle, Wash., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 In this case we are called upon to review an award of compensation under the Longshoremen's and Harbor Workers' Compensation Act. Act of March 4, 1927, 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq. The award was made on a claim arising from the accidental death of an employee of Brown-Pacific-Maxon, Inc., a government contractor operating on the island of Guam. Brown-Pacific maintained for its employees a recreation center near the shoreline, along which ran a channel so dangerous for swimmers that its use was forbidden and signs to that effect erected. John Valak, the employee, spent the afternoon at the center, and was waiting for his employer's bus to take him from the area when he saw or heard two men, standing on the reefs beyond the channel, signaling for help. Followed by nearly twenty others, he plunged in to effect a rescue. In attempting to swim the channel to reach the two men he was drowned. 2 A claim was filed by his dependent mother, based on the Longshoremen's Act and on an Act of August 16, 1941, extending the compensation provisions to certain employment in overseas possessions. 55 Stat. 622, 56 Stat. 1035, as amended, 42 U.S.C. § 1651, 42 U.S.C.A. § 1651. In due course of the statutory procedure, the Deputy Commissioner found as a 'fact' that 'at the time of his drowning and death the deceased was using the recreational facilities sponsored and made available by the employer for the use of its employees and such participation by the deceased was an incident of his employment, and that his drowning and death arose out of and in the course of said employment * * *.' Accordingly, he awarded a death benefit of $9.38 per week. Brown-Pacific and its insurance carrier thereupon petitioned the District Court under § 21 of the Act to set aside the award. That court denied the petition on the ground that 'there is substantial evidence * * * to sustain the compensation order.' On appeal, the Court of Appeals for the Ninth Circuit reversed. In concluded that 'The lethal currents were not a part of the recreational facilities supplied by the employer and the swimming in them for the rescue of the unknown man was not recreation. It was an act entirely disconnected from any use for which the recreational camp was provided and not in the course of Valak's employment.' 182 F.2d 772, 773. We granted certiorari, 340 U.S. 849, 71 S.Ct. 81, because the case brought into question judicial review of awards under the Longshoremen's Act in light of the Administrative Procedure Act. 3 The Longshoremen's and Harbor Workers' Act authorizes payment of compensation for 'accidental injury or death arising out of and in the course of employment'. § 2(2), 44 Stat. 1425, 33 U.S.C. § 902(2), 33 U.S.C.A. § 902(2). As we read its opinion the Court of Appeals entertained the view that this standard precluded an award for injuries incurred in an attempt to rescue persons not known to be in the employer's service, undertaken in forbidden waters outside the employer's premises. We think this is too restricted an interpretation of the Act. Workmen's compensation is not confined by commonlaw conceptions of scope of employment. Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 481, 67 S.Ct. 801, 808, 91 L.Ed. 1028; Matter of Waters v. William J. Taylor Co., 218 N.Y. 248, 251, 112 N.E. 727, 728, L.R.A.1917A, 347. The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, (1917) A.C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the 'obligations or conditions' of employment create the 'zone of special danger' out of which the injury arose. Ibid. A reasonable rescue attempt, like pursuit in aid of an officer making an arrest, may be 'one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute.' Matter of Babington v. Yellow Taxi Corp., 250 N.Y. 14, 17, 164 N.E. 726, 727; Puttkammer v. Industrial Comm., 371 Ill. 497, 21 N.E.2d 575. This is not to say that there are not cases 'where an employee even with the laudable purpose of helping another, might go so far from his employment and become so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.' Matter of Waters v. William J. Taylor Co., 218 N.Y. at page 252, 112 N.E. at page 728. We hold only that rescue attempts such as that before us are not necessarily excluded from the coverage of the Act as the kind of conduct that employees engage in as frolics of their own. 4 The Deputy Commissioner treated the question whether the particular rescue attempt described by the evidence was one of the class covered by the Act as a question of 'fact.' Doing so only serves to illustrate once more the variety of ascertainments covered by the blanket term 'fact.' Here of course it does not connote a simple, external, physical event as to which there is conflicting testimony. The conclusion concerns a combination of happenings and the inferences drawn from them. In part at least, the inferences presuppose applicable standards for assessing the simple, external facts. Yet the standards are not so severable from the experience of industry nor of such a nature as to be peculiarly appropriate for independent judicial ascertainment as 'questions of law.' 5 Both sides conceded that the scope of judicial review of such findings of fact is governed by the Administrative Procedure Act. Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq. The standard, therefore, is that discussed in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456. It is sufficiently described by saying that the findings are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole. The District Court recognized this standard. 6 When this Court determines that a Court of Appeals has applied an incorrect principle of law, wise judicial administration normally counsels remand of the cause to the Court of Appeals with instructions to reconsider the record. Compare Universal Camera Corp. v. National Labor Relations Board, supra. In this instance, however, we have a slim record and the relevant standard is not difficult to apply; and we think the litigation had better terminate now. Accordingly we have ourselves examined the record to assess the sufficiency of the evidence. 7 We are satisfied that the record supports the Deputy Commissioner's finding. The pertinent evidence was presented by the written statements of four persons and the testimony of one witness. It is, on the whole, consistent and credible. From it the Deputy Commissioner could rationally infer that Valak acted reasonably in attempting the rescue, and that his death may fairly be attributable to the risks of the employment. We do not mean that the evidence compelled this inference; we do not suggest that had the Deputy Commissioner decided against the claimant, a court would have been justified in disturbing his conclusion. We hold only that on this record the decision of the District Court that the award should not be set aside should be sustained. 8 Reversed. 9 Mr. Justice MINTON, with whom Mr. Justice JACKSON and Mr. Justice BURTON join, dissenting. 10 Liability accrues in the instant case only if the death arose out of and in the course of the employment. This is a statutory provision common to all Workmen's Compensation Acts. There must be more than death and the relationship of employee and employer. There must be some connection between the death and the employment. Not in any common-law sense of causal connection but in the common-sense, everyday, realistic view. The Deputy Commissioner knew that, so he found as a fact that 'at the time of his drowning and death the deceased was using the recreational facilities sponsored and made available by the employer for the use of its employees and such participation by the deceased was an incident of his employment * * *.' This finding is false and has no scintilla of evidence or inference to support it. 11 I am unable to understand how this Court can say this is a fact based upon evidence. It is undisputed upon this record that the deceased, at the time he met his death, was outside the recreational area in the performance of a voluntary act of attempted rescue of someone unknown to the record. There can be no inference of liability here unless liability follows from the mere relationship of employer and employee. The attempt to rescue was an isolated, voluntary act of bravery of the deceased in no manner arising out of or in the course of his employment. The only relation his employment had with the attempted rescue and the following death was that his employment put him on the Island of Guam. 12 I suppose the way to avoid what we said today in Universal Camera Corp. v. National Labor Relations Board, supra, is to find facts where there are no facts, on the whole record or any piece of it. It sounds a bit hollow to me for the Court, as it does, to quote from the New York case of Matter of Waters v. William J. Taylor Co., 218 N.Y. 248, 252, 112 N.E. 727, 728, L.R.A.1917A, 347, 'where an employee, even with the laudable purpose of helping another, might go so far from his employment and become so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.' This would seem to indicate that we are leaving some place for voluntary acts of the employees outside the course of their employment for which the employer may not be liable. There surely are such areas, but this case does not recognize them. The employer is liable in this case because he is an employer. 13 I would affirm the judgment of the Court of Appeals.

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340 U.S. 511 71 S.Ct. 447 95 L.Ed. 488 CANTON R. CO.v.ROGAN et al. No. 96. Argued Nov. 28, 29, 1950. Decided Feb. 26, 1951. Mr. J. Henry Lewin, Baltimore, Md., for Canton R. Co. Messrs. Hall Hammond and Harrison L. Winter, Baltimore, Md., for appellees. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 The State of Maryland imposes on steam railroad companies a franchise tax, measured by gross receipts, apportioned to the length of their lines within the State.1 Appellant Canton Railroad Company, a Maryland corporation, challenges the validity of the tax under the Import-Export Clause of the Constitution, Art. I, § 10, cl. 2, insofar as the gross income by which the taxes measured includes revenues derived from the handling of goods moving inforeign trade. 2 Canton is a common carrier of freight operating entirely within the City of Baltimore, Maryland. It maintains a marine terminal in the port of Baltimore and railroad lines connecting this terminal with the lines of major trunk-line railroads. Its operating revenues are derived from services which fall into the following classifications: 3 Switching freight cars from the piers to the lines of connecting railroads. 4 Storage pending forwarding, for which a charge is made for each day beyond a free period. 5 Wharfage, or the privilege of using Canton's piers for the transfer of cargo to lighters or to trucks. 6 Weighing of loaded freight cars. 7 Furnishing a crane for use in unloading vessels. This crane is operated by a stevedoring company, which pays Canton a set charge per ton for the 'crane privilege.' 8 A substantial proportion of the freight moved to and from the port consists of exports from and imports into the United States. In its report to the State Tax Commission for 1946, Canton showed gross receipts from its railroad business in Maryland of $1,588,744.48, of which it claimed $705,957.21 to be exempt from taxation because derived from operations in foreign commerce. After a hearing, the Commission rejected Canton's contention that a part of its gross receipts was constitutionally exempt from the tax, assessed its gross receipts at the higher figure, and imposed a tax of.$39,092.34. TheCommission's order was affirmed both by the Baltimore Circuit Court and by the Court of Appeals of Maryland, two judges dissenting. Western Maryland Ry. Co. v. State Tax Commission, Md., 73 A.2d 12. 9 The case is here on appeal. 10 The Constitution commands in Art. I, § 10, cl. 2 that 'No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws * * *.' The Maryland court held that the tax does not violate this provision of the Constitution; and we agree. 11 If this were a tax on the articles of import and export, we would have the kind of problem presented in Spalding & Bros. v. Edwards, 262 U.S. 66, 43 S.Ct. 485, 67 L.Ed. 865; Richfield Oil Corp. v. State Board, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80; Hooven & Allison Co. v. Evatt, 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252; and Joy Oil Co. v. State Tax Comm., 337 U.S. 286, 69 S.Ct. 1075, 93 L.Ed. 1366. But the present tax is not on the articles of import and export; nor is it the equivalent of a direct tax on the articles, as was held to be true of stamp taxes on foreign bills of lading, Fairbank v. United States, 181 U.S. 283, 21 S.Ct. 648, 45 L.Ed. 862, stamp taxes on charter parties in foreign commerce, United States v. Hvoslef, 237 U.S. 1, 35 S.Ct. 459, 59 L.Ed. 813; and stamp taxes on policies insuring exports against maritime risks. Thames & Mersey Marine Ins. Co. v. United States, 237 U.S. 19, 35 S.Ct. 496, 59 L.Ed. 821. It is true that the latter cases indicate that the prohibition of the Import-Export Clause against taxes on imports and exports involves more than an exemption from taxes laid upon the goods themselves. Moreover, Crew Levick Co. v. Com. of Pennsylvania, 245 U.S. 292, 38 S.Ct. 126, 62 L.Ed. 295, following the reasoning of Brown v. Maryland, 12 Wheat. 419, 444—445, 6 L.Ed. 678, gave like immunity to the business of selling goods in foreign commerce when gross receipts were taxes. Cf. Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 218, 53 S.Ct. 373, 77 L.Ed. 710. Though appellant is not engaged in the import-export business, it claims that its handling of goods, which are destined for export or which arrive as imports, is part of the process of exportation and importation. In support of the argument it refers to language in Spalding & Bros. v. Edwards, supra, and Richfield Oil Corp. v. State Board, supra, relative to when the export process starts; and it argues that, if the baseballs and the baseball bats in Spalding2 and the oil in Richfield were immune from the sales taxes because those commodities had been committed to exportation, the same immunity should be allowd here since the goods handled by appellant were similarly committed The difference is that in the present case the tax is not on the goods, but on the handling of them at the port. An article may be an export and immune from a tax long before or long after it reaches the port. But when the tax is on activities connected with the export or import the range of immunity cannot be so wide. 12 To export means to carry or send abroad; to import means to bring into the country. Those acts begin and end at water's edge. The broader definition which appellant tenders distorts the ordinary meaning of the terms. It would lead back to every forest, mine, and factory in the land and create a zone of tax immunity never before imagined. For if the handling of the goods at the port were part of the export process, so would hauling them to or from distant points or perhaps mining them or manufacturing them. The phase of the process would make no difference so long as the goods were in fact committed to export or had arrived as imports. 13 Appellant claims that loading and unloading are a part of its activities. But close examination of the record indicates that it merely rents a crane for loading and unloading and does not itself do the stevedoring work. Hence we need not decide whether loading for export and unloading for import are immune from tax by reason of the Import-Export Clause. Cf. Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 67 S.Ct. 815, 91 L.Ed. 993. 14 We do conclude, however, that any activity more remote than that does not commence the movement of the commodities abroad nor end their arrival and therefore is not a part of the export or import process. 15 The objection to Maryland's tax on the ground that interstate commerce is involved is not well taken. It is settled that a nondiscriminatory gross receipts tax on an interstate enterprise may be sustained if fairly apportioned to the business done within the taxing state, see Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 255, 58 S.Ct. 546, 548, 82 L.Ed. 823, and not reaching any activities carried on beyond the borders of the state. Where transportation is concerned, an apportionment according to the mileage within the state3 is an approved method. Central Greyhound Lines of New York v. Mealey, 334 U.S. 653, 663, 68 S.Ct. 1260, 1266, 92 L.Ed. 1633. 16 Affirmed. 17 The CHIEF JUSTICE took no part in the consideration or decision of this case. 18 For opinion of Mr. Justice Jackson see 340 U.S. 511, 71 S.Ct. 451. 19 By Mr. Justice JACKSON, reserving judgment. 20 In this case, I reserve judgment in the belief that today's decision of the Court may be found, upon consideration of matters not briefed or argued, to be untenable. 21 One of the fundamental federal policies, established by the Constitution itself, is that 'No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another * * *.' Art. I, § 9, cl. 6. This policy is further implemented by a requirement that federal duties, imposts and excises, be uniform, Art. I, § 8, cl. 1, and by a prohibition of any federal tax or duty on articles exported from a state, Art. I, § 9, cl. 5. But this policy of equality of access to the high seas can also be upset by the states. Hence the Constitution forbids any state, without the consent of Congress, to lay any imposts or duties on imports or exports, except to pay the cost of inspection laws. Art. I, § 10, cl. 2. 22 This detailed constitutional concern about exports and imports is a manifestation of a realistic recognition that a state or city with a safe harbor sits at a gateway with not only an inevitable natural advantage, but also a strategic one which may be exploited if not restrained. Political influence of wealthy and populous port areas was feared in the making of federal law, hence the restrictions on Congress. The disposition of cities and states to exploit their location astride the Nation's portals also was feared, hence the restriction on the states. 23 If the roads to the ports may be obstructed with local regulation and taxes, inland producers may be made to pay tribute to the seaboard for the privilege of exportation, and the longer the road to port, the more localities that may lay burdens on the passing traffic. The evident policy of the Constitution is to avoid these burdens and maintain free and equal access to foreign ports for the inland areas. If the constitutional policy can be avoided by shifting the tax from the exported article itself to some incident such as carriage, unavoidable in the process of exportation, then the policy is a practical nullity. I think prohibition of a tax on exports and imports goes beyond exempting specific articles from direct ad valorem duties—it prohibits taxing exports and imports as a process. 24 This is a matter of giving the inland farms and factories a fari access to the sea which will enable them to compete in foreign commerce, as well as to make imports as equally available as possible, regardless of distance from port. Ocean rates to a given foreign port are the same from all Atlantic ports, so that any differences in the costs of reaching the coast from the inland cannot be offset and represent net differences in the costs of reaching foreign markets. 25 Congress, the Interstate Commerce Commission, this Court, and American rail and motor carriers have all concurred in the development of rate structures on the premise that exports are to be recognized as such from the time they are delivered to the carrier for export and not merely when they reach the water's edge. There is a wealth of statutory material relating to the carriage of goods for export by railroads, motor carriers, and shipping companies.* Railroads have established lawful tariffs for export goods substantially less than for like goods destined for local markets. Texas & P.R. Co. v. I.C.C., 162 U.S. 197, 16 S.Ct. 666, 40 L.Ed. 940; Texas & P.R. Co. v. United States, 289 U.S. 627, 53 S.Ct. 768, 77 L.Ed. 1410. In the latter case, this Court recognized that export and import shipments, although not made on through bills, might lawfully be transported at rates below those charged for domestic traffic between the same points. 289 U.S. at page 636, 53 S.Ct. 771. The differential, I believe, is sometimes as much as fifty percent of the local tariff over the same route. Of course, if the export character of the goods is not to be recongized until they are ready to board or have boarded ship, this is a rank discrimination against local shippers quite without justification. 26 What Maryland has done, if these goods while in transit do constitute exports, is to tax gross proceeds of their transportation and handling, not merely the profits therefrom. This adds directly to the cost of their reaching ship-side, and the greater distance they travel, the greater possible accumulation of tax burden. Clearly, this is an obstruction in the path of the federal policy. 27 However, the effect of the federal policy on the validity of the Maryland tax was not advanced in the courts below nor here by railroad counsel, so I do not wish to express a final view on the matter. But I suspect today's decision will cause mischief in quarters we have not considered. 28 Mr. Justice FRANKFURTER joins this opinion. 1 Art. 81, §§ 94 1/2 and 95; Md.Ann.Code (1943 Supp.). 2 This case involved a federal tax equivalent to 3 per cent of the price 'Upon all tennis rackets, golf clubs, baseball bats,' etc. Act of Oct. 3, 1917, § 600(f), 40 Stat. 300, 316. It presented, as did the Fairbank, Hvoslef, and Thames & Mersey Ins. Co. cases, a question under Art. I, § 9, cl. 5 of the Constitution, which provides, 'No Tax or Duty shall be laid on Articles exported from any State.' 3 The tax required of appellant is 'upon such proportion of its gross earnings as the length of its line in this State bears to the whole length of its line'. § 95(b), supra, note 1. * As demonstrative that Congress is vitally concerned about exports and imports, see 15 U.S.C. § 173, 15 U.S.C.A. § 173, respecting the annual report on statistics of commerce required of the Director of the Bureau of Foreign and Domestic Commerce, in which he must outline the 'kinds, quantities, and values' of all articles exported or imported, showing the exports to and imports from each foreign country and their values, the exports being required to be broken down into those manufactured in the United States and their value, and those manufactured in other countries and their value. Also, although the Interstate Commerce Act does not apply to carriers engaged in foreign commerce insofar as their carriage beyond the limits of the United States is concerned, 49 U.S.C. § 902(i)(3), 49 U.S.C.A. § 902(i)(3); 49 C.F.R. § 141.67, their state-side activities have received considerable attention. Chapter 12, Part III of the Act, relating to water carriers, defines 'common carrier by water' as 'any person which holds itself out to the general public to engage in the transportation by water in interstate or foreign commerce of passengers or property * * *.' (Emphasis supplied.) 49 U.S.C. § 902(d), 49 U.S.C.A. § 902(d). Section 905(b) of the same Title states: 'It shall be the duty of common carriers by water to establish reasonable through routes * * * with common carriers by railroad * * * and just and reasonable rates * * * applicable thereto * * *. Common carriers by water may establish reasonable through routes and rates * * * with common carriers by motor vehicle. * * *' And § 905(c) provides that, 'It shall be unlawful for any common carrier by water to * * * give * * * any undue or unreasoanble preference or advantage to any particular person, port, * * * territory, or description of traffic * * *.' Further congressional concern is evidenced in 49 U.S.C. § 906(a), 49 U.S.C.A. § 906(a): 'Every common carrier by water shall file with the Commission and print, and keep open to public inspection tariffs showing all rates, fares, charges, classifications, rules, regulations, and practices for the transportation in interstate or foreign commerce of passengers and property between places on its own route, and between such places and places on the route of any other such carrier or on the route of any common carrier by railroad or by motor vehicle, when a through route and joint rate shall have been established. * * *' See also 49 U.S.C. § 6, par. (12), 49 U.S.C.A. § 6(12), providing: 'If any common carrier subject to this chapter and chapters 8 and 12 of this title enters into arrangements with any water carrier operating from a port in the United States to a foreign country * * * for the handling of through business between interior points of the United States and such foreign country, the Commission may by order require such common carrier to enter into similar arrangements with any or all other lines of steamships operating from said port to the same foreign country.' The ever-present concern with through routes and joint rates would appear a strong indication that the Congress regards goods as in export from the time they are first consigned to a carrier for a foreign destination, not from the time they reach the ship on which they are to be carried.

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340 U.S. 411 71 S.Ct. 375 95 L.Ed. 386 ST. JOHN et al.v.WISCONSIN EMPLOYMENT RELATIONS BOARD. No. 302. Argued Jan. 9, 10, 1951. Decided Feb. 26, 1951. Mr. Max Raskin, Milwaukee, Wis., for appellant. Mr. J. Gilbert Hardgrove, Milwaukee, Wis., for appellee Milwaukee Gas Light Co. Mr. Martin R. Paulsen, Milwaukee, Wis., for respondent Milwaukee Elec. Ry. Transport Co. Mr. Malcolm Riley, Eau Claire, Wis., and Beatrice Lampert, Madison, Wis., for Wisconsin Employment Relations Board. Mr. Justice Justice VINSON delivered the opinion of the Court. 1 The parties to this case are the same gas workers' union, many of the same officers of that union, the same gas companies and the Wisconsin Employment Relations Board involved in No. 438, 340 U.S. 383, 71 S.Ct. 359. The instant proceeding began when, at the time of the strike described in No. 438, appellant gas workers filed suit in a federal district court against the Wisconsin Employment Relations Board and the gas company for declaratory and injunctive relief to the end that the Wisconsin Public Utility Anti-Strike Law St. 1947, § 111.50 et seq., be adjudged invalid for the reasons successfully advanced in No. 438. 2 The District Court of three judges, convened under 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, did not reach the substantive issues, but relied on principles of res judicata, holding that a prior state court judgment to which appellants were party conclusively barred them from raising any issues pertaining to the constitutionality of the Wisconsin Act. In that prior state court action, brought to test the statute before any strike had been threatened, appellants sought a declaratory judgment that the Wisconsin Act contravened the State Constitution and the Federal Due Process Clause and was in conflict with federal labor legislation. Except for the question of undue delegation of power under the state constitution, the issues sought to be raised in the state declaratory proceeding were the same as those raised in No. 438, and in the instant proceeding. In the prior state court action, the Circuit Court entered judgment against appellants on the merits on all issues. On appeal, the Wisconsin Supreme Court affirmed, but reached the merits only in respect to the delegation-of-power issue. As to the issues common to that case, the instant case and No. 438, the State Supreme Court held that a decision on the constitutional questions presented would be premature in the absence of a concrete factual record, and that courts should not decide constitutional issues in the abstract or as hypothetical questions. United Gas, Coke & Chemical Workers of America, Local 18, C.I.O. v. Wisconsin Employment Relations Board, 1949, 255 Wis. 154, 38 N.W.2d 692. Certiorari to that decision was not sought in this Court, appellant contending that such a step would have been futile in view of the adequacy of the state grounds supporting the Wisconsin court's refusal to adjudicate the issues presented. 3 Following this abortive attempt to secure a final adjudication of the federal questions, there occurred a strike and a state circuit court issued a restraining order, as described in the opinion in No. 438. In the resulting contempt proceeding, before us in No. 438, appellants attack the validity of the Wisconsin Act, raising the Due Process and Commerce Clause questions. Appellees urged in that case, as they do in this case, that the prior state declaratory judgment proceeding barred appellants' further attack upon the act under the doctrine of res judicata. Appellees' reason that since the State Circuit Court judgment in the prior action went against appellants on the merits and since the Wisconsin Supreme Court ordered that judgment 'affirmed,' the judgment barred further attack on the statute by appellants without regard to what the Wisconsin Supreme Court might have said in its opinion. The Federal District Court adopted this line of reasoning as to res judicata and held, one judge dissenting, that appellants are barred from attacking the Wisconsin Public Utility Anti-Strike Law. 1950, 90 F.Supp. 347. The case is properly here on appeal. 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. 4 We need not linger over the propriety of invoking the doctrine of res judicata in this type of case, for we have a direct holding of the Wisconsin Supreme Court to show us that the District Court's interpretation of the state law as to res judicata in this particular case was erroneous. The State Circuit Court, in the contempt proceedings before this Court in No. 438, adopted the same theory of res judicata as did the District Court. That theory was urged upon the Wisconsin Supreme Court on appeal. Yet the highest state court did not hesitate in reaching and deciding on the merits the very issues which the State Circuit Court in that case and the District Court below held could not be raised by appellants. Wisconsin Employment Relations Board v. Milwaukee Gas Light Co. et al., 1950, 258 Wis. 1, 44 N.W.2d 547. This is the decision which we reversed this day in No. 438, 340 U.S. 383, 71 S.Ct. 359. Under such circumstances, justice requires that the judgment of the court below barring appellants from attacking the validity of the Wisconsin Public Utility Anti-Strike Law be vacated. 5 But there remains the question as to whether appellants are entitled to a federal court judgment restraining enforcement of the Wisconsin Act as prayed. Appellants seek only injunctive and declaratory relief looking to the future. In view of today's decisions in Nos. 329 and 438, the latter case involving the very parties to this action, 'we find no ground for supposing that the intervention of a federal court, in order to secure (appellants') constitutional rights, will be either necessary or appropriate.' Douglas v. City of Jeannette, 1943, 319 U.S. 157, 165, 63 S.Ct. 877, 882, 87 L.Ed. 1324. For this reason, the judgment below is vacated and the case remanded to the District Court with instructions to dismiss the complaint. 6 It is so ordered. 7 Judgment vacated and case remanded. 8 Mr. Justice FRANKFURTER, Mr. Justice BURTON, and Mr. Justice MINTON agree that the judgment of the State Court was not res judicata, but insofar as vacating the judgment below derives from the decisions in Nos. 329 and 438 they dissent for the reasons set forth in their dissenting opinion. 9 For dissenting opinion see 340 U.S. 383, 71 S.Ct. 359.

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340 U.S. 520 71 S.Ct. 450 95 L.Ed. 501 WESTERN MARYLAND RY. CO.v.ROGAN et al. No. 205. Argued Nov. 28, 29, 1950. Decided Feb. 26, 1951. Mr. William C. Purnell, Baltimore, Md., for Western Maryland ry. co. Messrs. Hall Hammond and Harrison L. Winter, Baltimore, Md., for appellees. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This is a companion case to Canton R. Co. v. Rogan, 340 U.S. 511, 71 S.Ct. 447. This appellant likewise challenges the validity under Art. I, § 10, cl. 2 of the Constitution of the application of the Maryland franchise tax* to the extent that the gross receipts by which the tax is measured include revenues derived from the transportation of goods moving in foreign trade. 2 Western Maryland Railway Company is an interstate common carrier by rail with lines in Maryland, West Virginia and Pennsylvania. It operates several piers in the port of Baltimore for handling cargoes of coal, ores and general merchandise, as well as a grain elevator. A substantial proportion of Western Maryland's freight traffic from and to these facilities consists of the transportation of goods imported into or to be exported from the United States. 3 The present case concerns the taxable years 1945 and 1946. For 1945 Western Maryland reported gross receipts of $33,156,236.74, of which the State Tax Commission, pursuant to the statutory formula, apportioned $13,219,822.62 to Maryland. For 1946 the amounts were $30,844,132.74 and $12,322,817.41 respectively. In subsequent amended returns Western Maryland excluded from taxable receipts the sums of $2,505,322.58 for 1945 and.$5,405,559.44 for 1946. It claimed that these amounts represented revenues from the transportation over its lines of exports and imports and were therefore beyond the state's power to tax. After a hearing, the Commission rejected this contention. Its assessment was sustained, and the case is here on appeal. 4 What we have said in Canton R. Co. v. Rogan, supra, is dispositive of this case. The present facts illustrate how wide a zone of tax immunity would be created if the contrary holding were made in the Canton R. Co. case. There we were dealing with the handling of exports and imports within a port. Here we have transportation of exports and imports to and from the port. If Maryland were required to grant tax immunity to the services involved in getting the exports to the port and the imports to their destination, so would any other State. The ultimate impact of such a holding is difficult to measure, since manifold services are involved in the movement of exports and imports within the country. Problems of this nature, like many problems in the law, involve the drawing of lines. So far as taxes on activities connected with bringing exports to or imports from the ship are concerned, we think the line must be drawn at the water's edge. Whether loading and unloading would be exempt is a question we reserve. 5 Affirmed. 6 The CHIEF JUSTICE took no part in the consideration or decision of this case. 7 For opinion of Mr. Justice Jackson, see 71 S.Ct. 451. * Art. 81, §§ 94 1/2 and 95; Md.Ann.Code 1943 Supp.

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340 U.S. 450 71 S.Ct. 422 95 L.Ed. 409 UNITED STATES et al.v.TEXAS & PACIFIC MOTOR TRANSPORT CO. REGULAR COMMON CARRIER CONFERENCE OF AMERICAN TRUCKING ASS'NS, INC. v. TEXAS & PACIFIC MOTOR TRANSPORT CO. Nos. 38, 39. Argued Nov. 7—8, 1950. Decided Feb. 26, 1951. Rehearing Denied April 9, 1951. See 341 U.S. 906, 71 S.Ct. 609. Mr. Daniel W. Knowlton, Washington, D.C., for the United States and Interstate Commerce Commission. Mr. Frank C. Brooks, Dallas, Tex., for Regular Common Carrier Conference of American Trucking Associations, Inc. Mr. J. T. Suggs, Dallas, Tex., for the Texas & Pacific Motor Transport co. Mr. Justice REED delivered the opinion of the Court. 1 These appeals, by the Interstate Commerce Commission, and by the intervenor, Regular Common Carrier Conference of American Trucking Associations, Inc., from the judgment of a three-judge federal district court setting aside two orders of the Interstate Commerce Commission, and entering a permanent injunction, raise questions similar to those discussed in No. 25, United States v. Rock Island Motor Transit Co., 340 U.S. 419, 71 S.Ct. 382. The questions relate to the power of the Commission to ban service practices theretofore permitted under certificates of public convenience and necessity previously issued to a common carrier by motor vehicle. The Commission acted under authority reserved in the certificate to impose additional restrictions to insure that the motor carrier's operations will be auxiliary to or supplemental of the operations of its parent common carrier by rail. 2 The Texas and Pacific Motor Transport Company is a wholly owned subsidiary of the Texas and Pacific Railway, operating a system of regular routes for the carriage of freight, from New Orleans to El Paso, Texas, and Lovington, New Mexico, roughly paralleling the lines of the railway and its subsidiaries. Transport was organized in 1929 to provide a local pick-up and delivery service in connection with rail transportation between points on the lines of the railway. Its first over-the-road common-carrier operation, between Monahans, Texas, and Lovington, New Mexico, was inaugurated just before the affective date of the Motor Carrier Act of 1935, 49 U.S.C.A. § 301 et seq. It extended its operations by obtaining certificates of convenience and necessity from the Commission, both under § 213 of the 1935 Act, now § 5 of the Interstate Commerce Act, providing for acquisition of established rights by purchase from other carriers ('grandfather' rights); and under § 207 of the Interstate Commerce Act, providing for new operations. 3 Between July 1939 and November 1942, the Commission issued sixteen certificates to Transport, covering various segments of its presently operating routes.1 In all the certificates the Commission reserved the right to impose further restrictions in order to confine Transport's operation to service 'auxiliary, to or supplemental of, rail service.' This condition was expressed in either one of the two forms set out in the margin.2 In addition, each certificate contained one or more, usually more, further conditions: (1) That the service to be performed was to be 'auxiliary to, or supplemental of' the rail service.3 (2) That only railway station points were to be served.4 (3) Either that (a) all shipments should be made on a through rail bill of lading, including a prior or subsequent rail movement;5 or (b) that no shipments should be made between certain 'key points' on the rail line, or through more than one of them.6 And (4) that the contractual arrangements between Transport and Railway be subject to modification by the Commission.7 4 The irregular incidence of these conditions in the certificates may be accounted for by the segmentary fashion in which Transport built up its system of routes, over a period of several years. They were not reconsidered as a group by the Commission until 1943, when, in response to a petition by Transport, to determine what modification should be made in its certificate No. MC—50544 (Sub-No. 11), particularly in regard to service for freight between El Paso and Sierra Blanca, Texas, for the Texas and New Orleans Railroad Company, it reopened nine of the certificate proceedings to consider whether Transport could join with other motor carriers in rates, some of which provided for substituting rail service for motor service. The Commission held that 'Since petitioner's certificates limit the service to be performed to that which is auxiliary to or supplemental of the rail service of the railway (in some the limitation was by reservation), it is without authority to engage in operations unconnected with the rail service and, accordingly, may not properly be a party to tariffs containing all-motor or joint rates, nor participate in a directory providing for the substitution of train service for motor-vehicle service at its option. To the extent petitioner is performing or participating in all-motor movements on the bills of lading of a motor carrier and at all-motor rates, it is performing a motor service in competition with the rail service and the service of existing motor carriers; and, to the extent it is substituting rail service for motor-vehicle service, the rail service is auxiliary to or supplemental of the motor-vehicle service rather than the motor-vehicle service being auxiliary to or supplemental of rail service.'8 The Commission did not issue any affirmative order, but directed Transport to modify its service in accordance with the findings, within a reasonable time. 5 Transport and Railway then petitioned jointly for reconsideration, or for further hearings, including hearings on certain other certificates; and, although the two petitioners later attempted to withdraw their petition on the ground that permission to file a joint tariff had been granted, the Commission nevertheless ordered that the proceedings be reopened in all sixteen certificates, and three Temporary Authorities, 'solely to determine what, if any, changes or modifications should be made in the conditions contained in the outstanding certificates of public convenience and necessity * * *.' 6 After a hearing at which Transport and Railway appeared, but refused to introduce any evidence, and after oral argument on the examiner's report, the Commission on January 22, 1948, ordered that all sixteen certificates be modified to include uniformly the substance of the five conditions set out above, specifically as follows: 7 '1. The service to be performed by applicant shall be limited to service which is auxiliary to, or supplemental of, the train service of The Texas and Pacific Railway Company, The Weatherford, Mineral Wells and Northwestern Railway Company, or Texas-New Mexico Railway Company, and, between El Paso and Sierra Blanca, Tex., the train service of Texas and New Orleans Railroad Company, hereinafter called the railways. 8 '2. Applicant shall not render any service to or from any point not a station on a rail line of the railways. 9 '3. No shipments shall be transported by applicant between any of the following points, or through, or to, or from, more than one of said points: New Orleans, Alexandria, and Shreveport, La., Texarkana, Tex.-Ark., Fort Worth-Dallas (considered as one), Abilene, Monahans, and El Paso, Tex. 10 '4. All contractual arrangements between applicant and the railways shall be reported to us and shall be subject to revision if and as we find it to be necessary, in order that such arrangements shall be fair and equitable to the parties. 11 '5. Such further specific conditions as in the future we may find necessary to impose in order to insure that the service shall be auxiliary to, or supplemental of, the train service of the railways.'9 12 The effect on appellee was to bar it from issuing its own bills of lading or performing all-motor service under all-motor local rates or all-motor joint rates with connecting motor carriers, or substituting rail service for motor service, and it could not be a party to such tariffs.10 Prior to these proceedings the appellee had issued its own bills of lading and participated in motor-carrier tariffs. The District Court found the value of the certificates, $65,000, would be destroyed and $240,000 annual revenue lost. 13 A petition for reconsideration of this order, and for oral argument before the entire Commission, was denied on May 9, 1949. Transport thereupon brought this suit in the Federal District Court, seeking to set aside the Commission's orders of January 22, 1948, and May 9, 1949, and to enjoin their enforcement. In the District Court proceedings the Regular Common Carrier Conference of American Trucking Associations intervened on behalf of the Commission. After hearing, the District Court made findings of fact and conclusions of law, and entered a judgment setting aside the Commission's orders, and permanently enjoining it from imposing any condition on Transport's certificates 'in such manner as will prohibit petitioner from: 14 'a. Filing, publishing and maintaining common carrier motor rates as provided by statute in the case of common carrier motor carriers generally; 15 'b. Interchanging traffic with other common carrier motor carriers on joint motor rates; 16 'c. Issuing its own bills of lading and tendering its service to the public generally on its own contracts of shipment; 17 'd. Transporting traffic to, through, from or between any so-called 'key points' on that part of its route covered by interstate certificates of public convenience and necessity, to which no 'key point' restriction attached on issuance of such certificates, or in such manner as will restrict petitioner to ship on rail rates or on railroad bills of lading.' 18 From this judgment the Commission and the intervenor, Common Carrier Conference, appeal here. 19 The District Court, 87 F.Supp. 107, 112, reasoned that the operations of Transport were at all times and in all ways auxiliary to and supplemental of the rail operations and therefore could not be restricted as attempted. The connotation of auxiliary and supplementary to the trial court was only a restriction limiting service to rail points. Without dealing specifically with the reservation to impose further conditions restricting the motor carrier's service to coordinated rail service, the District Court decided that the Commission's order restricting the service could not be valid in view of § 216, Transportation Act of 1940, 49 Stat. 560, 54 Stat. 924. That section allows motor common carriers to establish through routes, joint rates, practices and division of charges with other carriers by motor, rail or water.11 It held, too, that the Commission's action was in essence a revocation in part of a certificate and unlawful except under conditions prescribed by § 212, 49 Stat. 555, 54 Stat. 924, and unconstitutional because confiscatory. 20 Transport here supports the soundness of the reasons given by the three-judge District Court for its injunction and supplements them by contentions that the Commission's order was without support in the evidence and that Transport was not accorded due process of law at the hearing of October 17, 1944, 47 M.C.C. 753, 755. In view of our decision of today upholding the Commission in No. 25, United States v. Rock Island Motor Transit Co., 340 U.S. 419, 71 S.Ct. 382, all reasons for affirming the judgment below may be promptly rejected. 21 So far as the above issues relied upon by the District Court for its injunction are concerned, they seem to have been resolved in favor of the Government by our opinion in the Rock Island case. This proceeding involves certificates for new routes under § 207. No such certificates or applications were in that case. The opinion, however, considered the Commission's practice in § 207 proceedings and stated that it was the same as in §§ 5 and 213 acquisition proceedings. We now hold that the same considerations justify the reservation in issue here. See n. 2, supra. 22 Transport's position that the order in question was without support in the evidence is based on the theory that as evidence was taken in the original applications that resulted in the necessary findings under §§ 213 of the Motor Carrier Act and 5 of the Transportation Act of 1940 for certificates to railroad motor carrier affiliates, changes in practices cannot now be made without evidence that the formerly permitted practices had been inconsistent with the public interest and did unduly restrain competition. American Trucking Associations, Inc., v. United States, 326 U.S. 77, 86, 65 S.Ct. 1499, 1503, 89 L.Ed. 2065, and Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U.S. 88, 91, 33 S.Ct. 185, 186, 57 L.Ed. 431.12 23 The Louisville & Nashville case required a full hearing and the privilege of introducing testimony before the road's rates were set aside as unreasonable. The Commission was taking the position that the Hepburn Act allowed it to set aside rates after a 'hearing' without evidence. The American Trucking case dealt with the issuance of a series of certificates by the Commission to a railroad-affiliated motor carrier after refusal to admit evidence of the flow of truck traffic between various localities along the parent railroad, and of the effect of the existing and prospective railroad-affiliated motor carriers on the over-the-road carriers. On appeal from an affirmance by a district court, we reversed the Commission. 24 This situation, however, differs from those referred to by Transport in that the Commission has reopened the proceedings, after they were started by Transport for an interpretation of its right to file and maintain a motor common-carrier tariff. Hearings were had in 1942 at Dallas, at which appellee's witnesses gave testimony as to the freight interchange between appellee and other motor carriers and the existence of tariffs, etc. After the report of the Commission referred to 340 U.S. on page 454, 71 S.Ct. on page 424, Transport and the Texas and Pacific Railway petitioned for reconsideration by the Commission, setting out the facts of their current operations, and addressing themselves particularly to the elimination of the prior or subsequent rail-haul condition. Thereafter the proceedings were reopened to determine what changes or modifications should be made. Another hearing was held, October 17, 1944, and report made. At that hearing Transport appeared but refused to introduce evidence. The examiner examined an official of Transport as to the nature and extent of Transport's operations. This evidence developed the fact that Transport operated both on motor-carrier and rail rates under its own bills of lading in full competition with other motor carriers. Thus there appears in the record adequate evidence of the circumstances of Transport's operations. 25 Upon the due-process point we approve the ruling of the Commission. It follows: 'Applicant argues that the notice setting the proceedings for further hearing did not inform it or the other parties of the nature of the issues to be met, or give them sufficient time to prepare to meet the issues; and that the hearing, in view of the request for its cancellation, was in the nature of an ex parte proceeding. We are not impressed with applicant's argument that it was unable to foresee the issues. The notice in question stated that the further hearing was for the purpose of determining what changes, if any, should be made in the conditions, and thus placed the conditions themselves in issue. One of these is condition 5 or 5A, which in itself was adequate notice to applicant and the other parties that the primary purpose of the further hearing would be to determine, as provided for in that condition, whether it is necessary to change or modify the existing conditions or to add others so as effectively to restrict applicant's operations to service which is auxiliary to or supplemental of rail service. Applicant was given the opportunity of presenting evidence to show that no need exists for a change in its present conditions; however, not only did it choose not to offer such evidence, but it objected to the receipt of any evidence with respect thereto. In the circumstances, the examiner properly denied its motion to discontinue the further hearing and to withdraw its witness, and properly overruled its objection to the adduction of testimony through such witness.'13 26 The judgment of the three-judge District Court is reversed and the proceedings remanded with directions to dismiss the complaint. 27 Mr. Justice BLACK, Mr, Justice DOUGLAS, Mr. Justice JACKSON and Mr. Justice BURTON dissent. 1 Sixteen proceedings are covered by I.C.C. docket number MC 50544, and various subnumbers, set out in Appendix A to Texas & Pacific Motor Transport Co. Common Carrier Application, 47 M.C.C. 753, 764. Transport was also operating under certain temporary authorities, Nos. MC—50544 (Sub-Nos. 21—TA, 24—TA, and 30—TA), which expired before the issuance of the Commission's orders under consideration here. 2 '5. Such further specific conditions as we, in the future, may find it necessary to impose in order to restrict applicant's operation to service which is auxiliary to, or supplemental of, rail service. '5A. The authority herein granted shall be subject to such further limitations or restrictions as the Commission may hereafter find it necessary to impose in order to restrict applicant's operation tto service which is auxiliary to, or supplemental of, train service of the railway, and in order to insure that the service rendered shall not unduly restrain competition.' 47 M.C.C. 753, 766. 3 '1. The service to be performed by applicant shall be limited to service which is auxiliary to, or supplemental of, rail service of the Texas and Pacific Railway, or in certain cases of its subsidiary rail lines, (or of Texas-New Mexico Railway Company) herein called the railway.' Ibid. 4 '2. Applicant shall not serve, or interchange traffic at any point not a station on a rail line of the railway.' Ibid. 5 '3. Shipments transported by applicant shall be limited to those which it receives from or delivers to the railway under a through bill of lading covering, in addition to movement by applicant, a prior or subsequent movement by rail. '3A. Shipments transported by applicant shall be limited to those which it receives from or delivers to the railway under a through bill of lading covering in addition to movement by applicant, a prior or subsequent movement by rail, and those which it transports as parts of through shipments prior or subsequent to movement by rail under appropriate transit rules.' Ibid. 6 '3B. No shipments shall be transported by applicant as a common carrier by motor vehicle between any of the following points or through, or to, or from more than one of said points: Fort Worth, Tex., and Texarkana, Tex.-Ark. '3C. No shipments shall be transported by applicant between any of the following points or through, or to, or from more than one of said points: El Paso and Pecos, Tex.' Ibid. 7 '4. All contractual arrangements between applicant and the railway shall be reported to us and shall be subject to revision, if and as we find it to be necessary in order that such arrangements shall be fair and suitable to the parties.' Ibid. 8 41 M.C.C. 721, 726. 9 47 M.C.C. 753, 763—764. 10 47 M.C.C. 753, 754, and Rules 30, 107(a) and 107(b) of Supp. No. 5 to I.C.C. Tariff Circular No. 20. See 41 M.C.C. 721, 726, excerpted at note 19, No. 25, United States v. Rock Island Motor Transit Co., 340 U.S. 419, 71 S.Ct. 382. 11 'Thus, while the Commission might prescribe the points to be served, it could not forbid the participation in joint rates and through routes for the simple reason that such a provision would be inconsistent with the wording of Sec. 216 of the Act.' 87 F.Supp. 107, 112. 12 Several Commission decisions on the general necessity of evidence to support rulings are added. Greyhound Corporation (etc.)—Control, 50 M.C.C. 237, 242; Scannell (etc.)—Control, 50 M.C.C. 535, 541; C. & D. Motor Delivery Company—Purchase—Hubert C. Elliott, 38 M.C.C. 547, 553; Joint N.E. Motor Carrier Ass'n, Inc. v. Rose and Welloff, 43 M.C.C. 487, 488. None bear on such a situation as this. They relate to restrictions on the issue or transfer of certificates and revocation. 13 47 M.C.C. 753, 756.

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340 U.S. 498 71 S.Ct. 453 95 L.Ed. 479 NATIONAL LABOR RELATIONS BOARDv.PITTSBURGH S.S. CO. No. 42. Argued Nov. 6, 1950. Decided Feb. 26, 1951. Mr. Robert L. Stern, Washington, D.C., for petitioner. Mr. Nathan L. Miller, New York City, for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 We brought this case here because on an important phase in the administration of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., it was in conflict with National Labor Relations Board v. Universal Camera Corp., 2 Cir., 179 F.2d 749, just decided. Our decision in that case controls this. Since the court below applied what we have found to be the requisite standard in reviewing an order of the Labor Board, there remains only the contention that in any event there was no justification for the court below to find the Board's order to be unsupported 'by substantial evidence on the record considered as a whole.' This is an issue that does not call for extended discussion. 2 The case is before us for the second time. It arises from the petition of the Pittsburgh Steamship Company to review an order of the Board, entered August 13, 1946, directing it to reinstate a dismissed employee and to terminate what were found to be coercive and discriminatory labor practices. 69 N.L.R.B. 1395. The Court of Appeals originally denied enforcement on its finding that the order was vitiated by an underlying bias on the part of the trial examiner. 6 Cir., 167 F.2d 126. On certiorari, we rejected the Court of Appeals' conclusion that resolution of every controverted fact in favor of the Board established invalidating bias on the examiner's part. We also found that the record disclosed 'evidence substantial enough under the Wagner Act'. 337 U.S. 656, 661, 69 S.Ct. 1283, 1286, 93 L.Ed. 1602. That conclusion, it is proper to say, was reached on the assumption that under the Wagner Act substantiality was satisfied if there was evidence in the record in support of the Board's conclusions. But we remanded the case to the Court of Appeals to consider the effect on its reviewing duty of the Administrative Procedure and the Taft-Hartley Acts, 5 U.S.C.A. § 1001 et seq.; 29 U.S.C.A. § 141 et seq., both having come into force between the Board's order and the Court of Appeals decision. The Court of Appeals has now held, in accordance with our own view, that the scope of review had been extended 'beyond the requirements of the Wagner Act', 180 F.2d 731, 736, and that in the light of the new requirements the record considered as a whole disentitled enforcement of the order. 3 The Government concedes, we think rightly, that the scope of the court's reviewing power was governed by the legislation in force at the time that power was exercised even though the Board's order antedated such legislation. See United States v. Hooe, 3 Cranch 73, 79, 2 L.Ed. 370, and compare Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264. 4 The acts claimed to constitute unfair labor practices took place during the campaign of the National Maritime Union to organize the unlicensed employees of the respondent's 73 vessels, plying on the Great Lakes, during the winter and spring of 1944. The Board adopted the findings and conclusions of its trial examiner and held that the respondent had engaged for several months preceding the election in a deliberate course of antiunion conduct, thereby interfering with the rights of employees guaranteed by § 7 of the Wagner Act. 5 This conclusion was based in part on the discharge of a seaman who was one of the union organizers. The Board disbelieved some of the testimony justifying dismissal on the ground of incompetence and other evidence it deemed so insubstantial that it drew the 'plain inference' that the discharge was 'for reasons aside from the manner in which he performed his work.' 69 N.L.R.B. at 1420. The Board also relied on the testimony of union organizers, partly corroborated, that officers of some of the respondent's ships had expressed hostility to the union, in conversation with members of crews or in their presence. Evidence of respondent's intent to coerce employees was also found in two letters of the president of the steamship company circulated among the crews. Each assured that union membership would not affect an employee's position in the company. But an officer of the union testified that some of the polices attributed to the union in the letters were inaccurate and the Board found that these letters, although 'not unlawful per se * * * constitute an integral and inseparable part of the respondent's otherwise illegal course of conduct and when so viewed they assume a coercive character which is not privileged by the right of free speech.' 69 N.L.R.B. at 1396.* 6 Since the court below had originally found that the Board's order was vitiated by the examiner's bias, we must take care that the court has not been influenced by that feeling, however unconsciously, on reconsidering the record now legally freed from such imputation. Consideration of the opinion below in light of a careful reading of the entire record convinces us that the momentum of its prior decision did not enter into the decision now under review. The opinion was written by a different judge, and the court was differently constituted. The new member was a jduge well versed in matters of industrial relations and not likely to be unsympathetic with such findings as were here made by the Board. The court painstakingly reviewed the record and unanimously concluded that the inferences on which the Board's findings were based were so overborne by evidence calling for contrary inferences that the findings of the Board could not, on the consideration of the whole record, be deemed to be supported by 'substantial' evidence. 7 Were we called upon to pass on the Board's conclusions in the first instance or to make an independent review of the review by the Court of Appeals, we might well support the Board's conclusion and reject that of the court below. But Congress has charged the Courts of Appeals and not this Court with the normal and primary responsibility for granting or denying enforcement of Labor Board orders. 'The jurisdiction of the court Board orders. 'The be exclusive and its judgment and decree shall be final, except that the same shall be subject to review * * * by the Supreme Court of the United States upon writ of certiorari * * *.' Taft-Hartley Act, § 10(e), 61 Stat. 148, 29 U.S.C. (Supp. III) § 160(e), 29 U.S.C.A. § 160(e). Certiorari is granted only 'in cases involving principles the settlement of which is of importance to the public, as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority between the Circuit Courts of Appeals.' Layne & Bowler Corp. v. Western Well Works, 261 U.S. 387, 393, 43 S.Ct. 422, 423, 67 L.Ed. 712; Revised Rules of the Supreme Court of the United States, Rule 38, subd. 5, 28 U.S.C.A. The same considerations that should lead us to leave undisturbed, by denying certiorari, decisions of Courts of Appeals involving solely a fair assessment of a record on the issue of unsubstantiality, ought to lead us to do no more than decide that there was such a fair assessment when the case is here, as this is, on other legal issues. 8 This is not the place to review a conflict of evidence nor to reverse a Court of Appeals because were we in its place we would find the record tilting one way rather than the other, though fair-minded judges could find it tilting either way. It is not for us to invite review by this Court of decisions turning solely on evaluation of testimony where on a conscientious consideration of the entire record a Court of Appeals under the new dispensation finds the Board's order unsubstantiated. In such situations we should 'adhere to the usual rule of non-interference where conclusions of Circuit Courts of Appeals depend on appreciation of circumstances which admit of different interpretations'. Federal Trade Comm'n v. American Tobacco Co., 274 U.S. 543, 544, 47 S.Ct. 663, 71 L.Ed. 1193. 9 Affirmed. * Since we do not disturb the conclusion of the Court of Appeals that these letters are not substantial evidence of an unfair labor practice under the Wagner Act, we express no opinion on the possible effect of § 8(c) of the Taft-Hartley Act. 61 Stat. 142, 29 U.S.C. (Supp. III) § 158(c), 29 U.S.C.A. § 158(c). This section provides that expression of views, argument or opinion shall not be evidence of an unfair practice.

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340 U.S. 523 71 S.Ct. 432 95 L.Ed. 503 WARRENv.UNITED STATES. THE ANNA HOWARD SHAW et al. No. 87. Argued Jan. 2, 1951. Decided Feb. 26, 1951. Messrs. Saul Sperling and Charles A. Ellis, New York City for petitioner. Mr. Leavenworth Colby, Washington, D.C., for respondents. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Petitioner seeks in this suit maintenance and cure from the United States, as owner of S. S. Anna Howard Shaw. Petitioner was a messman who went ashore on leave while the vessel was at Naples in 1944. He and two other members of the crew first did some sightseeing. Then the three of them drank one bottle of wine and went to a dance hall, where they stayed an hour and a half, dancing. There was a room adjoining the dance hall that overlooked the ocean. French doors opened onto an unprotected ledge which extended out from the building a few feet. Petitioner stepped to within 6 inches of the edge and leaned over to take a look. As he did so, he took hold of an iron rod which seemed to be attached to the building. The rod came off and petitioner lost his balance and fell, breaking a leg. 2 The District Court awarded maintenance.1 75 F.Supp. 210, 76 F.Supp. 735. The Court of Appeals disallowed it. 2 Cir., 179 F.2d 919. The case is here on certiorari. 3 The Shipowners' Liability Convention, proclaimed by the President Sept. 29, 1939, 54 Stat. 1693, provides in Art. 2: 4 '1. The shipowner shall be liable in respect of— 5 '(a) sickness and injury occurring between the date specified in the articles of agreement for reporting for duty and the termination of the engagement; 6 '(b) death resulting from such sickness or injury. 7 '2. Provided that national laws or regulations may make exceptions in respect of: 8 '(a) injury incurred otherwise than in the service of the ship; 9 '(b) injury or sickness due to the wilful act, default or misbehaviour of the sick, injured or deceased person; 10 '(c) sickness or infirmity intentionally concealed when the engagement is entered into.' 11 Petitioner's argument is twofold. He maintains first that under paragraph 1 a shipowner's duty to provide maintenance and cure is absolute and that the exceptions specified in paragraph 2 are not operative until a statute is enacted which puts them in force. He argues in the second place that, even if paragraph 2 is operative without an Act of Congress, his conduct was not due to a 'wilful act, default or misbehaviour' within the meaning of that paragraph. An amicus curiae argues that the injury was not received 'in the service of the ship' within the meaning of Paragraph 2(a) of Art. 2. 12 There is support for petitioner's first point in the concurring opinion of Chief Justice Stone in Waterman Steamship Corp. v. Jones, 318 U.S. 724, 738,2 63 S.Ct. 930, 937, 87 L.Ed. 1107. But we think the preferred view is opposed. Our conclusion is that the exceptions permitted by paragraph 2 are operative by virtue of the general maritime law and that no Act of Congress is necessary to give them force. 13 The language of paragraph 2, in its ordinary range of meaning, easily permits that construction. It is 'national laws or regulations' which may make exceptions. The term law in our jurisprudence usually includes the rules of court decisions as well as legislative acts. That was held in Erie R. C. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 819, 82 L.Ed. 1188, to be true of the phrase 'The laws of the several states' as used in the first Judiciary Act. 1 Stat. 73, § 34. No reason is apparent why a more restricted meaning should be given 'national laws or regulations'. The purpose of the Convention would not be served by the narrow meaning. This Convention was a product of the International Labor Organization.3 Its purpose was to provide an international system of regulation of the shipowner's liability. That international system was aimed at providing a reasonable average which could be applied in any country.4 We find no suggestion that it was designed to adopt a more strict standard of liability than that which our maritime law provides. The aim indeed was not to change materially American standards but to equalize operating costs by raising the standards of member nations to the American level.5 If the Convention was designed to make absolute the liability of the shipping industry until and unless each member nation by legislative act reduced it, we can hardly believe some plain indication of the purpose would not have been made. Much of this body of maritime law had developed through the centuries in judicial decisions. To reject that body of law and start anew with a complete code would be a novel and drastic step. Under our construction the Convention provides a reasonable average for international application. The definition of the exceptions itself helps provide the average, leaving the creation of the exceptions to any source of law which the member nations recognize. That view serves the purpose of the Convention and conforms to the normal meaning of the words used. Our conclusion is that both paragraph 1 and paragraph 2 of Art. 2 state the standard of liability which legislative and decisional law define in particularity. 14 The District Court held that petitioner's degree of fault did not bar a recovery for maintenance and cure. The Court of Appeals thought otherwise. The question is whether the injury was 'due to the wilful act, default or misbehaviour' of petitioner within the meaning of Art. 2 paragraph 2(b) of the Convention. The standard prescribed is not negligence but wilful misbehavior. In the maritime law it has long been held that while fault of the seaman will forfeit the right to maintenance and cure, it must be 'some positively vicious conduct—such as gross negligence or willful disobedience of orders.' The Chandos, 6 Sawy, 544, 549—550; The City of Carlisle, D.C., 39 F. 807, 813, 5 L.R.A. 52; The Ben Flint, Fed.Cas.No.1,299, 1 Biss. 562, 566. And see Reed v. Canfield, Fed.Cas.No.11,641, 1 Summ. 195, 206. In Aguilar v. Standard Oil Co., 318 U.S. 724, 731, 63 S.Ct. 930, 934, 87 L.Ed. 1107, we stated that rule as follows: 'Conceptions of contributory negligence, the fellow-servant doctrine, and assumption of risk have no place in the liability or defense against it. Only some wilful misbehavior or deliberate act of indiscretion suffices to deprive the seaman of his protection.' 15 The exception which some cases have made for injuries resulting from intoxication, see Aguilar v. Standard Oil Co., supra, 318 U.S. at page 731, notes 11 and 12, 63 S.Ct. 934, has no place in this case. As the District Judge ruled, the amount of wine consumed hardly permits a finding of intoxication. Petitioner was plainly negligent. Yet we would have to strain to find the element of wilfulness or its equivalent. He sought to use some care when he looked down from the small balcony, as evidenced by his seizure of the iron bar for a handhold. His conduct did not measure up to a standard of due care under the circumstances. But we agree with the District Court that it was not wilful misbehavior within the meaning of the Convention. 16 Finally it is suggested that the injury did not occur 'in the service of the ship,' as that term is used in paragraph 2(a) of Art. 2 of the Convention. We held in Aguilar v. Standard Oil Co., supra, that maintenance and cure extends to injuries occurring while the seaman is departing on or returning from shore leave though he has at the time no duty to perform for the ship. It is contended that the doctrine of that case should not be extended to injuries received during the diversions of the seaman after he has reached the shore. Mr. Justice Rutledge, speaking for the Court in the Aguilar case, stated the reasons for extending maintenance and cure to shore leave cases as follows, 318 U.S. at pages 733—734, 63 S.Ct. at page 935: 17 'To relieve the shipowner of his obligation in the case of injuries incurred on shore leave would cast upon the seaman hazards encountered only by reason of the voyage. The assumption is hardly sound that the normal uses and purposes of shore leave are 'exclusively personal' and have no relation to the vessel's business. Men cannot live for long cooped up aboard ship without substantial impairment of their efficiency, if not also serious danger to discipline. Relaxation beyond the confines of the ship is necessary if the work is to go on, more so that it may move smoothly. No master would take a crew to sea if he could not grant shore leave, and no crew would be taken if it could never obtain it. * * * In short, shore leave is an elemental necessity in the sailing of ships, a part of the business as old as the art, not merely a personal diversion. 18 'The voyage creates not only the need for relaxation ashore, but the necessity that it be satisfied in distant and unfamiliar ports. If in those surroundings the seaman, without disqualifying misconduct, contracts disease or incurs injury, it is because of the voyage, the shipowner's business. That business has separated him from his usual places of association. By adding this separation to the restrictions of living as well as working aboard, it forges dual and unique compulsions for seeking relief wherever it may be found. In sum, it is the ship's business which subjects the seaman to the risks attending hours of relaxation in strange surroundings. Accordingly it is but reasonable that the business extend the same protections against injury from them as it gives for other risks of the employment.' 19 This reasoning is as applicable to injuries received during the period of relaxation while on shore as it is to those received while on shore as it is to those received while reaching it. To restrict the liability along the lines suggested would be to whittle it down 'by restrictive and artificial distinctions' as attempted in the Aguilar case. We repeat what we said there, 'If leeway is to be given in either direction, all the considerations which brought the liability into being dictate it should be in the sailor's behalf.' 318 U.S. at page 735, 63 S.Ct. at page 936. 20 Reversed. 21 Mr. Justice JACKSON and Mr. Justice CLARK dissent on the ground that the injuries were not sustained in the service of the ship. Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107, held a seaman to be in the ship's service while going to or from the ship over premises at which the ship docked, even if the prupose of being ashore was leave from duty. The route of access was not the choice of the seaman, and access to the ship was held essential to the ship's service. But the choice of places of refreshment and varieties of entertainment are the sailor's own. Unless his employment is a policy of accident insurance while on leave, recovery cannot be sustained in this case. That might be a wise rule of law but we think it one that should depend on legislation. 22 Mr. Justice FRANKFURTER, dissenting. 23 We brought this case here because it involved construction of the Shipowners' Liability Convention, 54 Stat. 1693. As to that, I agree with the Court that the Convention does not afford any basis for libellant's claim. Assuming that Article 2 of the Convention is self-executing, a matter which I do not now have to decide, the exceptions permitted by paragraph 2 of that Article are operative by virtue of the general maritime law. But I am unable to agree that we should reverse the Court of Appeals on its application of the proper standard to the facts. 24 The District Judge gave this description of what happened: 25 'Libellant was a messman aboard the S. S. 'Anna Howard Shaw.' On October 30, 1944, while the vessel was in the Bay of Naples, Italy, libellant left on shore leave. In company with the ship's carpenter and another messman, he went sightseeing. They came to the waterfront town of Bagnoli (referred to by libellant as Magnolia). The group stopped at various stores and at one such place they bought a small bottle of wine which they divided among them. About three miles down the shore from where they had landed from a motor lifeboat, they stopped at a dance hall and stayed an hour and a half or so. Libellant says he was dancing most of the time, and drank only one additional glass of wine. 26 'After a time libellant entered another room and approached a large window over-looking the sea, and he says the sight of the waves breaking upon the rocks some thirty-five feet below intrigued him. The French doors of this window extended to the level of the floor and he observed a sort of wholly unprotected ledge or balcony, which extended out from the building some two and a half or three feet. There was no railing of any sort and the slightest misstep or unsteadiness was almost sure to precipitate libellant. In any event, it was a perilous undertaking to go out upon this balcony and one even more perilous to lean over the edge to get a better view of the rocks and waves immediately below. But this is what libellant did. When he came to a position where the toes of his shoes were six inches from the edge, he leaned over, at the same time taking hold of a rod about one-half inch in circumference, which was apparently affixed to the building to his right. He merely took a casual glance at this rod and makes no claim to have done more. It looked like a 'lightning arrester or something of that type.' Whether the fastenings such as they were had been weakened by bombs and shell fire, which had otherwise marked the buildings in the vicinity to some extent, does not appear. Nor does the testimony disclose the purpose which this rod served. As he grasped it, and leaned over the edge, the rod came off and libellant lost his balance and fell. A similar ledge or balcony on one of the windows below broke his fall or he would have sustained injuries far more serious than a broken leg. This fall and its consequences are the basis for his suit for maintenance and cure.' D.C., 75 F.Supp. 210, 213. 27 The District Judge concluded that libellant had not acted 'in reckless disregard of safety'. 75 F.Supp. at page 216. The Court of Appeals for the Second Circuit unanimously reversed. It thought that 'In the case at bar, the risk of serious injury or even death if the seaman should fall over the cliff, was obvious; and the requisite degree of care correspondingly higher. In the face of evident danger, the care which Warren took was very slight—a mere casual glance at the rod which he thought to ba a 'lightning arrester or something of that type.' We think that a man who acts as he did under circumstances of danger does not show even a minimal degree of regard for the consequences of his act. Unless his ship is to be an insurer of his safety, he cannot recover against her.' 179 F.2d 919, 922. 28 I do not think the judgment of the Court of Appeals that the libellant's conduct was a 'deliberate act of indiscretion', Aguilar v. Standard Oil Co., 318 U.S. 724, 731, 63 S.Ct. 930, 934, 87 L.Ed. 1107, should be disturbed. 1 Petitioner sued the United States as owner and American South African Line, Inc. as the general agent and operator. The District Court dismissed the libel as to the United States and held the general agent liable under Hust v. Moore-McCormack Lines, 328 U.S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534. During the pendency of the appeal by the general agent and the cross-appeal by petitioner, Fink v. Shepard S.S. Co., 337 U.S. 810, 69 S.Ct. 1330, 93 L.Ed. 1709, was decided. Accordingly the decree against the general agent was reversed and the Court of Appeals considered the case on the merits against the United States. 2 Chief Justice Stone relied on the report of the Secretary of State to the President on the need for legislation implementing the Convention. The Secretary said in part: 'Many of the provisions of the convention are considered to be self-executing, and there would appear to be no need to repeat verbatim the language of the convention in a statute to make it effective. Some of the articles of the convention, however, after stating the general rule, provide that national laws may make specified exceptions thereto. If this Government is to be excepted from certain obligations of the convention or alterations in our present practice, it is necessary to do so affirmatively by statute.' H.R.Rep. No. 1328, 76th Cong., 1st Sess., p. 6. The Secretary had the following to say about Article 2: 'Section 4 follows the exceptions in article 2 of the convention which sets forth the risks covered in the entire convention. * * * Paragraph 1 of article 2 of the convention was not incorporated in the bill because of the belief (1) that it is self-executing in that it establishes liability, although no definite amount is provided; and (2) that it will not be held by the courts to conflict with the present law in this country.' Id., p. 6. The implementing legislation was passed by the House, 84 Cong.Rec. 10540, but not by the Senate. See Hearings, Subcommittee of the Committee on Commerce, U.S. Senate, on H.R. 6881, 76th Cong., 3d Sess.; S.Doc. 113, 77th Cong., 1st Sess., 87 Cong.Rec. 7434. 3 See Fried, Relations Between the United Nations and the International Labor Organization, 41 Am.Pol.Sci.Rev. 963; Dillon, International Labor Conventions; (1942); Shotwell, The Origins of the International Labor Organization (1934). The United States became a member of the International Labor Organization on August 20, 1934. See U.S. Treaties, Treaty Series, No. 874. 4 See International Labor Conference, Proceedings, Thirteenth Sess. (1929) p. 131. 5 The report of the Secretary of State recommending ratification of the Convention emphasized that the treaty (1) would not materially change American legal standards and (2) would raise standards of member nations to the American level and thus equalize operating costs. Sen.Exec.Rep. 8, 75th Cong., 3d Sess., p. 3.

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340 U.S. 462 71 S.Ct. 416 95 L.Ed. 417 UNITED STATES ex rel. TOUHYv.RAGEN et al. No. 83. Argued Nov. 27—28, 1950. Decided Feb. 26, 1951. Mr. Robert B. Johnstone, Chicago, Ill., for petitioner. Mr. Robert S. Erdahl, Washington, D.C., for respondent George R. mCswain. Mr. Justice REED delivered the opinion of the Court. 1 This proceeding brings here the question of the right of a subordinate official of the Department of Justice of the United States to refuse to obey a subpoena duces tecum ordering production of papers of the Department in his possession. The refusal was based upon a regulation1 issued by the Attorney General under 5 U.S.C. § 22, 5 U.S.C.A. § 22.2 2 Petitioner, Roger Touhy, an inmate of the Illinois State penitentiary, instituted a habeas corpus proceeding in the United States District Court for the Northern District of Illinois against the warden, alleging he was restrained in violation of the Due Process Clause of the Federal Constitution. In the course of that proceeding a subpoena duces tecum was issued and served upon George R. McSwain, the agent in charge of the Federal Bureau of Investigation at Chicago, requiring the production of certain records which, petitioner Touhy claims, contained evidence establishing that his conviction was brought about by fraud.3 At the hearing that considered the duty of submission of the subpoenaed papers, the U.S. Attorney made representations to the court and to opposing counsel as to how far the Attorney General was willing for his subordinates to go in the production of the subpoenaed papers. The suggestions were not accepted. Mr. McSwain was then placed upon the witness stand and ordered to bring in the papers. He personally declined to produce the records in these words: 'I must respectfully advise the Court that under instructions to me by the Attorney General that I must respectfully decline to produce them, in accordance with Department Rule No. 3229.'4 3 Thereupon, the judge found Mr. McSwain guilty of contempt of court in refusing to produce the records referred to in the subpoena and sentenced him to be committed to the custody of the Attorney General of the United States or his authorized representative until he obeyed the order of the court or was discharged by due process of law. 4 On appeal, the Court of Appeals reversed on the ground that Department of Justice Order No. 3229 was authorized by the statute and 'confers upon the Department of Justice the privilege of refusing to produce unless there has been a waiver of such privilege.' 180 F.2d 321, at page 327. 5 The court then considered whether or not the privilege of nondisclosure was waived. It quoted from Supplement No. 2 to Order No. 3229 this language: 'If questioned, the officer or employee should state that the material is at hand and can be submitted to the court for determination as to its materiality to the case and whether in the best public interests the information should be disclosed. The records should be kept in the United States Attorney's office or some similar place of safekeeping near the court room. Under no circumstances should the name of any confidential informant be divulged.' 180 F.2d 328. 6 The Court of Appeals said that 'this language contemplates some circumstances when the material called for must be submitted 'to the court for determination as to its materiality to the case and whether in the best public interests the information should be disclosed." The court found, however, that no such limited disclosure was requested but that Mr. McSwain was called upon 'to produce all documents and material called for in the subpoena without limitation and that at no time was he questioned' as to his willingness to submit the papers for determination as to materiality and best public interests. Consequently, he was not guilty of contempt unless the law required the witness to make unlimited production. The court thought that since this last would mean there was no privilege in the Department to refuse production, such a holding should not be made. It said: 'Submission could only have been required to the extent the privilege had been waived by the Attorney General and for the purpose and in the specific manner designated.' 180 F.2d 321, 328. 7 We granted certiorari, 340 U.S. 806, 71 S.Ct. 41, to determine the validity of the Department of Justice Order No. 3229. Among the questions duly presented by the petition for certiorari was whether it is permissible for the Attorney General to make a conclusive determination not to produce records and whether his subordinates in accordance with the order may lawfully decline to produce them in response to a subpoena duces tecum. 8 We find it unnecessary, however, to consider the ultimate reach of the authority of the Attorney General to refuse to produce at a court's order the government papers in his possession, for the case as we understand it raises no question as to the power of the Attorney General himself to make such a refusal. The Attorney General was not before the trial court. It is true that his subordinate, Mr. McSwain, acted in accordance with the Attorney General's instructions and a department order. But we limit our examination to what this record shows, to wit, a refusal by a subordinate of the Department of Justice to submit papers to the court in response to its subpoena duces tecum on the ground that the subordinate is prohibited from making such submission by his superior through Order No. 3229.5 The validity of the superior's action is in issue only insofar as we must determine whether the Attorney General can validly withdraw from his subordinates the power to release department papers. Nor are we here concerned with the effect of a refusal to produce in a prosecution by the United States6 or with the right of a custodian of government papers to refuse to produce them on the ground that they are state secrets7 or that they would disclose the names of informants.8 9 We think that Order No. 3229 is valid and that Mr. McSwain in this case properly refused to produce these papers. We agree with the conclusion of the Court of Appeals that since Mr. McSwain was not questioned on his willingness to submit the material 'to the court for determination as to its materiality to the case' and whether it should be disclosed, the issue of how far the Attorney General could or did waive any claimed privilege against disclosure is not material in this case. 10 Department of Justice Order No. 3229, note 1, supra, was promulgated under the authority of 5 U.S.C. § 22, 5 U.S.C.A. § 22. That statute appears in its present form in Revised Statutes § 161, and consolidates several older statutes relating to individual departments. See, e.g., 16 Stat. 163. When one considers the variety of information contained in the files of any government department and the possibilities of harm from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged is obvious. Hence, it was appropriate for the Attorney General, pursuant to the authority given him by 5 U.S.C. § 22, 5 U.S.C.A. § 22, to prescribe regulations not inconsistent with law for 'the custody, use, and preservation of the records, papers, and property appertaining to' the Department of Justice, to promulgate Order 3229. 11 Petitioner challenges the validity of the issue of the order under a legal doctrine which makes the head of a department rather than a court the determinator of the admissibility of evidence. In support of his argument that the Executive should not invade the Judicial sphere, petitioner cites Wigmore Evidence (3d ed.), § 2379, and Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60. But under this record we are concerned only with the validity of Order No. 3229. The constitutionality of the Attorney General's exercise of a determinative power as to whether or on what conditions or subject to what disadvantages to the Government he may refuse to produce government papers under his charge must await a factual situation that requires a ruling.9 We think Order No. 3229 is consistent with law. This case is ruled by Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846.10 12 That case concerned a collector of internal revenue adjudged in contempt for failing to file with his deposition copies of a distiller's reports in his possession as a subordinate officer of the Treasury. The information was needed in litigation in a state court to collect a state tax. The regulation upon which the collector relied for his refusal was of the same general character as Order No. 3229.11 After referring to the constitutional authority for the enactment of R.S. § 161, the basis, as 5 U.S.C. § 22, 5 U.S.C.A. s 22, for the regulation now under consideration, this Court reached the question of whether the regulation centralizing in the Secretary of the Treasury the discretion to submit records voluntarily to the courts was inconsistent with law, p. 469. It concluded that the Secretary's reservation for his own determination of all matters of that character was lawful. 13 We see no material distinction between that case and this. 14 The judgment of the Court of Appeals is affirmed. 15 Affirmed. 16 Mr. Justice BLACK and Mr. Justice DOUGLAS are of the opinion the judgment of the District Court should be affirmed. 17 Mr. Justice CLARK took no part in the consideration or decision of this case. 18 Mr. Justice FRANKFURTER, concurring. 19 Issues of far-reaching importance that the Government deemed to be involved in this case are now expressly left undecided. But they are questions that lie near the judicial horizon. To avoid future misunderstanding, I deem it important to state my understanding of the opinion of the Court—what it decides and what it leaves wholly open—on the basis of which I concur in it. 20 'This case,' the Court holds, 'is ruled' by Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846. I agree. Boske v. Comingore decided that the Secretary of the Treasury was authorized, as a matter of internal administration in his Department, to require that his subordinates decline to produce Treasury records in their possession. In the case before us production of documents belonging to the Department of Justice was declined by virtue of an order of the Attorney General instructing his subordinates not to produce certain documents. The authority of the Attorney General to make such a regulation for the internal conduct of the Department of Justice is not less than the power of the Secretary of the Treasury to promulgate the order upheld in Boske v. Comingore, supra. 21 But in holding that that decision rules this, the context of the earlier decision and the qualifications which that context implies become important. The regulation in Boske v. Comingore provided: (1) that collectors should under no circumstances disclose tax reports or produce them in court, and (2) that reports could be obtained only 'on a rule of the court upon the Secretary of the Treasury'. 177 U.S. at pages 460—461, 20 S.Ct. 702, 44 L.Ed. 846. The regulation also stated that the reports would be disclosed by the Secretary of the Treasury 'unless it should be found that circumstances or conditions exist which makes it necessary to decline, in the interest of the public service, to furnish such a copy.' Ibid. This portion of the regulation was not in issue, however, for the Court was considering the failure of the collector to produce, not the failure of the Secretary of the Treasury. This is emphasized by the Government's suggestion that: '(I)f the reports themselves were to be used this could be secured by a subpoena duces tecum to the head of the Treasury Department, or someone under his direction, who would produce the original papers themselves in court for introduction as evidence in the trial of the cause.' Brief for Appellee, p. 49, Boske v. Comingore, supra. 22 And the decision was strictly confined to the narrow issue before the Court. It is epitomized in the concluding paragraph of the Boske opinion: 'In our opinion the Secretary, under the regulations as to the custody, use and preservation of the records, papers and property appertaining to the business of his Department, may take from a subordinate, such as a collector, all discretion as to permitting the records in his custody to be used for any other purpose than the collection of the revenue, and reserve for his own determination all matters of that character.' 177 U.S. at page 470, 20 S.Ct. 706. 23 There is not a hint in the Boske opinion that the Government can shut off an appropriate judicial demand for such papers. 24 I wholly agree with what is now decided insofar as it finds that whether, when and how the Attorney General himself can be granted an immunity from the duty to disclose information contained in documents within his possession that are relevant to a judicial proceeding are matters not here for adjudication. Therefore, not one of these questions is impliedly affected by the very narrow ruling on which the present decision rests. Specifically, the decision and opinion in this case cannot afford a basis for a future suggestion that the Attorney General can forbid every subordinate who is capable of being served by process from producing relevant documents and later contest a requirement upon him to produce on the ground that procedurally he cannot be reached. In joining the Court's opinion I assume the contrary—that the Attorney General can be reached by legal process. 25 Though he may be so reached, what disclosures he may be compelled to make is another matter. It will of course be open to him to raise those issues of privilege from testimonial compulsion which the Court rightly holds are not before us now. But unless the Attorney General's amenability to process is impliedly recognized we should candidly face the issue of the immunity pertaining to the information which is here sought. To hold now that the Attorney General is empowered to forbid his subordinates, though within a court's jurisdiction, to produce documents and to hold later that the Attorney General himself cannot in any event be procedurally reached would be to apply a fox-hunting theory of justice that ought to make Bentham's skeleton rattle. 1 Department of Justice Order No. 3229, filed May 2, 1946, 11 Fed.Reg. 4920, reads: 'Pursuant to anthority vested in me by R.S. 161, U.S.Code, Title 5, Section 22, It is hereby ordered: 'All official files, documents, records and information in the offices of the Department of Justice, including the several offices of United States Attorneys, Federal Bureau of Investigation, United States Marshals, and Federal penal and correctional institutions, or in the custody or control of any officer or employee of the Department of Justice, are to be regarded as confidential. No officer or employee may permit the disclosure or use of the same for any purpose other than for the performance of his official duties, except in the discretion of the Attorney General, The Assistant to the Attorney General, or an Assistant Attorney General acting for him. 'Whenever a subpoena duces tecum is served to produce any of such files, documents, records or information, the officer or employee on whom such subpoena is served, unless otherwise expressly directed by the Attorney General, will appear in court in answer thereto and respectfully decline to produce the records specified there in, on the ground that the disclosure of such records is prohibited by this regulation.' Supplement No. 2 to that order, dated June 6, 1947, provides in part: 'To All United States Attorneys: 'PROCEDURE TO BE FOLLOWED UPON RECEIVING A SUBPOENA DUCES TECUM 'Whenever an officer or employee of the Department is served with a subpoena duces tecum to produce any official files, documents, records or information he should at once inform his superior officer of the requirement of the subpoena and ask for instructions from the Attorney General. If, in the opinion of the Attorney General, circumstances or conditions make it necessary to decline in the interest of public policy to furnish the information, the officer or employee on whom the subpoena is served will appear in court in answer thereto and courteously state to the court that he has consulted the Department of Justice and is acting in accordance with instructions of the Attorney General in refusing to produce the records. * * '* * * It is not necessary to bring the required documents into the court room and on the witness stand when it is the intention of the officer or employee to comply with the subpoena by submitting the regulation of the Department (Order No. 3229) and explaining that he is not permitted to show the files. If questioned, the officer or employee should state that the material is at hand and can be submitted to the court for determination as to its materiality to the case and whether in the best public interests the information should be disclosed. The records should be kept in the United States Attorney's office or some similar place of safe-keeping near the court room. Under no circumstances should the name of any confidential informant be divulged.' 2 'The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.' 3 The subpoena was also addressed to the Attorney General. There is no contention, however, that the Attorney General was personally served with the subpoena; nor did he appear. See Fed.Rules Civ.Proc., 45, 28 U.S.C.A. 4 We take this answer to refer to both the original Department of Justice Order No. 3229 and the supplement. 5 Although in this record there are indications that the U.S. Attorney was willing to submit the papers to the judge alone for his determination as to their materiality, the judge refused to accept the papers for examination on that basis. There is also in the record indication that the U.S. Attorney thought of submitting the papers to the court and opposing counsel in chambers but changed his mind. For our conclusion none of these facts are material, as the final order adjudging Mr. McSwain guilty of contempt was based, as above indicated, on a refusal by Mr. McSwain to produce, as instructed by the Attorney General in accordance with Department Order No. 3229. 6 Cf. United States v. Andolschek et al., 2 Cir., 142 F.2d 503. 7 See Wigmore Evidence (3d ed.), § 2378. 8 See Wigmore Evidence (3d ed.), § 2374. 9 Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666. For relatively recent consideration of the problem underlying governmental privilege against producing evidence, compare Duncan v. Cammell, Laird & Co., (1942) App.Cas. 624, with Robinson v. State of South Australia, (1931) App.Cas. 704. 10 That case has been generally followed. See, e.g., Ex parte Sackett, 9 Cir., 74 F.2d 922; In re Valecia Condensed Milk Co., 7 Cir., 240 F. 310; Harwood v. McMurtry, D.C., 22 F.Supp. 572; Stegall v. Thurman, D.C., 175 F. 813; Walling v. Comet Carriers, Inc., D.C., 3 F.R.D. 442, 443. 11 The following excerpts will show the similarity: "Whenever such subpoenas shall have been served upon them, they will appear in court in answer thereto and respectfully decline to produce the records called for, on the ground of being prohibited therefrom by the regulations of this department. * * * In all cases where copies of documents or records are desired by or on behalf of parties to a suit, whether in a court of the United States or any other, such copies shall be furnished to the court only and on a rule of the court upon the Secretary of the Treasury requesting the same. Whenever such rule of the court shall have been obtained collectors are directed to carefully prepare a copy of the record or document containing the information called for and send it to this office, whereupon it will be transmitted to the Secretary of the Treasury with a request for its authentication, under the seal of the department, and transmission to the judge of the court calling for it, unless it should be found that circumstances or conditions exist which makes it necessary to decline, in the interest of the public service, to furnish such a copy." 177 U.S. 461, 20 S.Ct. 702, 44 L.Ed. 846.

45

340 U.S. 573 71 S.Ct. 428 95 L.Ed. 547 MOOREv.CHESAPEAKE & O. RY. CO. No. 318. Argued Jan. 4, 1951. Reargued Jan. 10, 1951. Decided Feb. 26, 1951. Mr. George E. Allen, Richmond, Va., for petitioner. Messrs. Meade T. Spicer, Jr., and Strother Hynes, Richmond, Va., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 This action, brought under the Federal Employers' Liability Act1 in the United States District Court for the Eastern District of Virginia on behalf of a surviving widow and children, charged negligence against respondent railroad in the death of petitioner's decedent, who was acting in the course of his employment as a brakeman for respondent at the time of his death. The case was tried before a jury. At the conclusion of all the evidence, respondent moved for a directed verdict on the ground, among others, that respondent was not shown to have been negligent. The District Court reserved decision, pursuant to Rule 50 of the Federal Rules of Civil Procedure, 28 U.S.C.A. and submitted the case to the jury, which returned a verdict for petitioner. Respondent then renewed its contention by motion for judgment notwithstanding the verdict, which was sustained, and the action was dismissed on the merits. The Court of Appeals for the Fourth Circuit affirmed, 184 F.2d 176, and we granted certiorari to determine whether the province of the jury had been invaded by the action of the District Court. 340 U.S. 874, 71 S.Ct. 123. 2 On September 25, 1948, petitioner's decedent was employed by respondent as a brakeman in respondent's switching yards at Richmond, Virginia. The day was fair. At about 3:50 p.m., the crew with which decedent was working undertook its first car movement of the day. An engine and tender were headed into Track 12 and the front end of the engine was coupled onto 33 loaded freight cars which were to be moved out initially upon the straight track referred to as the ladder track. The switch at the junction of Track 12 and the ladder track was properly aligned for the train to pass onto the ladder track. Who aligned the switch does not appear. 3 Decedent gave the signal for the engine to back out of Track 12 with the cars. It moved out in a westerly direction, with the rear of the tender as the front of the moving train. Decedent was standing on a footboard at the rear of the tender, his back to the tender; the outer edge of the footboard was about ten inches in from the outer edge of the tender and about a foot above the rail. The engineer was in his seat on the same side of the train as the footboard on which decedent was standing. The engineer was turned in the seat and leaning out the side cab window, looking in the direction in which the train was moving. Decedent's duty as he rode on the footboard was to give signals to the engineer, who testified that he could at all times see the edge of the arm and shoulder of decedent. To be thus seen and in a position to give signals, decedent had to extend outward beyond the edge of the tender, supporting himself partly by a handrail, otherwise the tender, the top of which was eight feet seven inches above the footboard, would have obstructed the engineer's view of him altogether. 4 The engineer testified that as the train approached Switch 12 at about five miles an hour, having moved ten or twelve car lengths, he saw decedent slump as if his knees had given way, then right himself, then tumbel forward in a somersault toward the outside of the track. The engineer testified that he then made an emergency stop in an unsuccessful effort to avoid injuring decedent. The train ran the length of the tender and engine and about a car length and a half before it stopped at a point about an engine or car length past the switch on the ladder track. Decedent died immediately of the injuries received. 5 To recover under the Act it was incumbent upon petitioner to prove negligence of respondent which caused the fatal accident. Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 32, 64 S.Ct. 409, 411, 88 L.Ed. 520. The negligence she alleged was that respondent's engineer made a sudden and unexpected stop without warning, 'thereby causing decedent to be thrown from a position of safety on the rear of the tender' into the path of the train. 6 It is undisputed that only one stop of the train was made and that a sudden stop without warning. The engineer was the only witness to the accident and was called to testify by petitioner. He testified that he saw decedent fall from the tender and that he made an emergency stop in an attempt to avoid injuring him. He testified that he received no signal to stop and had no reason to stop until he saw decedent fall. When his attention was directed to the point, the engineer never waivered in his testimony that decedent was continuously in his view and in a position to give signals up to the time he was seen to fall and the emergency stop was made. 7 Petitioner attempts to avoid the effect of this by pointing to statements of the engineer which allegedly contradict his testimony that decedent was continuously in his view. Petitioner relies on testimony and measurements of an expert witness, and upon the fact that the jury was permitted to view the engine and tender, to support the alleged contradiction. As a consequence, it is asserted, the jury was entitled to disbelieve the engineer's version of the accident and to accept petitioner's. 8 True, it is the jury's function to credit or discredit all or part of the testimony. But disbelief of the engineer's testimony would not supply a want of proof. Bunt v. Sierra Butte Gold Min. Co., 138 U.S. 483, 485, 11 S.Ct. 464, 34 L.Ed. 1031. Nor would the possibility alone that the jury might disbelieve the engineer's version make the case submissible to it. 9 The burden was upon petitioner to prove that decedent fell after the train stopped without warning, which was the act of negligence she charged. Her evidence showed he fell before the train stopped. The only evidence which petitioner can glean from this record to support her charge is the engineer's testimony that there was no one around the switch as the train approached it, and that he did not know whether 'they' intended to take all of the 33 cars out of the switch at one time, or to stop and cut off some of them.2 From this it is said a jury might reasonably infer that the engineer decided to make and did make an emergency stop which threw decedent from the tender. However, the engineer's testimony, appearing at the very same page of the transcript as the statement relied on, was that he worked by signals; that he had received no signal to stop or do anything; that in the event he did not receive a signal he would '(k)eep pulling the cars on back' until he received a signal, until he 'cleared the switch' '(p)robably beyond.'3 We do not think that the isolated portion of the engineer's testimony relied on by petitioner permits an inference of negligence when placed in its setting of uncontradicted and unequivocal testimony totally at variance with such an inference. 10 Hence, all the evidence shows is that decedent fell before the train stopped. If one does not believe the engineer's testimony that he stopped after—indeed, because of—the fall, then there is no evidence as to when decedent fell. There would still be a failure of proof. 11 To sustain petitioner, one would have to infer from no evidence at all that the train stopped where and when it did for no purpose at all, contrary to all good railroading practice, prior to the time decedent fell, and then infer that decedent fell because the train stopped. This would be speculation run riot. Speculation cannot supply the place of proof. Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458. 12 Since there was no evidence of negligence, the court properly sustained the motion for judgment notwithstanding the verdict. The judgment is affirmed. 13 Affirmed. 14 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, 94 L.Ed. 236. See Affolder v. N.Y., C. & St. L.R. Co., 339 U.S. 96, 101, 70 S.Ct. 509, 511, 94 L.Ed. 683. 15 Mr. Justice REED took no part in the consideration or decision of this case. 16 Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting. 17 The complaint in this case alleged that petitioner's husband, while performing his duties as a railroad brakeman, was thrown from a footboard at the back of a tender and killed as a result of a sudden and unexpected stop made by the engineer. That these allegations, if proved, supported the jury's finding of negligence is not and could not be denied. I have no doubt but that the following evidence was sufficient to justify such a finding and the verdict for petitioner: 18 Decedent was an experienced brakeman with respondent railroad, having served in that capacity for about seven years. On the day of the accident, his duty required him to ride the footboard on the rear of a tender which was being moved backwards by an engine coupled to 33 loaded freight cars. The engineer testified that he suddenly threw the engine into reverse and made an emergency stop without warning. Decedent's badly broken and mutilated body was found lying beside the track. He had died as a result of his injuries. 19 Unless we are to require the element of proximate cause to be proved by eyewitness testimony, a reasonable jury certainly could infer from the foregoing facts that the sudden stopping of the engine threw the decedent to his death. Yet the Court apparently ignores this strong circumstantial evidence by relying upon the engineer's testimony that he made the sudden stop after he saw the decedent 'somersault' off the tender. Of course, had the jury believed both that the engineer stopped the train abruptly and that he did so at the time he said he did, it would have found for respondent. But as the Court concedes, the jury was not compelled wholly to accept or wholly to reject the engineer's version. It was entitled to credit part of his testimony and discredit the balance, especially since there were noticeable inconsistencies, improbabilities and self-interest in the engineer's story as to how and when the fall occurred. If the jury rejected the statement that decedent fell before the engine stopped, it could find for petitioner on the basis of the circumstantial evidence previously set out. 20 The trchnique used today in depriving petitioner of her verdict is to frame the issue in terms of 'When did the decedent fall?' and then to hold that petitioner failed to sustain the burden of proof because she introduced no eye-witness evidence on this point.* Such a myopic view loses sight of all the circumstances from which the time and cause of the fall can be inferred. What the record shows is that petitioner tried the case on a theory that decedent's fall resulted from a sudden stoppoing of the engine, while respondent asserted the theory that the fall was due to a heart attack. Although there was some showing that decedent had been afflicted with heart trouble in the past, respondent failed to produce any evidence that the body when found gave indications of heart disease. The jury therefore quite reasonably rejected respondent's theory for lack of proof. Just as reasonably, it accepted the petitioner's evidence as proving the allegations of her complaint. In my opinion, the taking of this verdict from petitioner is a totally unwarranted substitution of a court's view of the evidence for that of a jury. 21 I would reverse. 1 35 Stat. 65, as amended, 45 U.S.C. § 51 et seq., 45 U.S.C.A. § 51 et seq. 2 'Q. Were you going to take all of those thirty-eight (sic) cars out at one time through that switch' A. i don't know about that. I work by signals. I don't know whether they intended to put them all out and switch them or to stop and cut part of them off.' R. 30. 3 Supra, n. 2; 'Q. Had you received any signal at that time to stop or to do anything—cut off any of the cars? A. No, sir, I had not. 'Q. What were you going to do in the event you didn't receive any further signals either from the conductor or from Mr. Moore or from anybody else? A. Keep pulling the cars on back until I received a signal. 'Q. And until you cleared the switch, until you cleared No. 12 switch? A. Yes, sir. 'Q. You keep—A. Probably beyond. 'Q. You keep on going? A. Yes.' R. 30. * The Court also appears to believe that petitioner should have proved the engineer's purpose in stopping the train so suddenly. But whatever was the engineer's purpose, petitioner was entitled to recover in this case if her husband's death was caused by the sudden, unexpected stop.

78

340 U.S. 558 71 S.Ct. 408 95 L.Ed. 534 EMICH MOTORS CORPORATION et al.v.GENERAL MOTORS CORPORATION et al. No. 209. Argued Jan. 3—4, 1951. Decided Feb. 26, 1951. Rehearing Denied April 9, 1951. See 341 U.S. 906, 71 S.Ct. 610. Mr. Anthony Bradley Eben, Chicago, Ill., for petitioners. Mr. Ferris E. Hurd, Chicago, Ill., for respondents. Mr. Justice CLARK delivered the opinion of the Court. 1 This action was brought in the United States District Court for the Northern District of Illinois under § 4 of the Clayton Act1 to recover treble damages for injuries alleged to have been suffered by reason of a conspiracy in restraint of trade in violation of the Sherman Act, § 1.2 Plaintiffs, petitioners here, are Emich Motors Corporation, a former dealer in Chevrolet cars, and its related finance company, U.S. Acceptance Corporation. Respondents are General Motors Corporation and its wholly owned subsidiary finance company, General Motors Acceptance Corporation (GMAC). 2 Prior to this action respondents had been convicted in the Federal District Court for the Northern District of Indiana on an indictment charging them, and certain of their officers and agents who were acquitted, with a conspiracy in restraint of interstate trade in General Motors cars. At trial in the instant case petitioners were permitted to introduce the antecedent criminal indictment, verdict and judgment as evidence under § 5 of the Clayton Act, which provides in part that 3 'A final judgment or decree rendered in any criminal prosecution or in any suit or proceeding in equity brought by or on behalf of the United States under the anti-trust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any suit or proceeding brought by any other party against such defendant under said laws as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto * * *.'3 4 A judgment for petitioners was reversed by the Court of Appeals for the Seventh Circuit partly on the ground that the trial court erred in the use it permitted the jury to make of evidence derived from the prior criminal proceeding. 1950, 181 F.2d 70. We granted certiorari, limiting review to important questions as to the scope of § 5 of the Clayton Act. 1950, 340 U.S. 808, 71 S.Ct. 62, rehearing denied 1950, 340 U.S. 894, 71 S.Ct. 204. I. 5 The relevant facts as to the criminal prosecution against respondents may be stated briefly. The charge of the indictment was summarized on appeal as follows: 6 '* * * paragraph 34 charges * * * a conspiracy to restrain unduly the interstate trade and commerce in General Motors automobiles. Paragraph 35 states that the purpose of the defendants was to monopolize and control the business of financing the trade and commerce in new and used General Motors automobiles. Paragraph 70 alleges that dealers have complied with the defendants' coercive plan in order to save substantial investments in their businesses, paragraph 71 states that the effect of the conspiracy has been to restrain and burden unreasonably the interstate trade and commerce in General Motors automobiles, and paragraph 72 is a restatement of paragraph 34. 7 'The specific conduct embraced within the illegal concert of action is described in paragraphs 36 to 67 of the indictment * * *: (1) Requiring dealers to promise to use GMAC exclusively as a condition to obtaining a franchise for the sale, transportation and delivery of automobiles; (2) Making contracts for short periods and cancellable without cause, canceling or threatening to cancel such contracts unless GMAC facilities are used; (3) Discriminating against dealers not using GMAC by refusing to deliver cars when ordered, delaying shipment and shipping cars of different number, model, color and style; (4) Compelling dealers to disclose how they finance their wholesale purchases and retail sales, examining and inspecting dealers' books and accounts in order to procure this information, and requiring dealers to justify their using other financing media; (5) Giving special favors to dealers using the wholesale and retail facilities of GMAC; (6) Granting special favors to GMAC which are denied to other discount companies; (7) Giving dealers a rebate from the GMAC finance charge paid by the retail purchaser, in order to induce use of GMAC financing facilities; and (8) Compelling dealers to refrain from using other finance companies by all other necessary, appropriate or effective means.'4 8 The criminal case was submitted to the jury with instructions that the Government need not prove all of some twenty-six acts alleged in the indictment as the means of effecting the conspiracy. The jury rendered a general verdict finding the corporate defendants guilty and acquitting all individual defendants. Maximum fines were assessed against each of the corporations. The Seventh Circuit Court of Appeals affirmed. United States v. General Motors Corp., 1941, 121 F.2d 376. This Court denied certiorari, 1941, 314 U.S. 618, 62 S.Ct. 105, 86 L.Ed. 497, rehearing denied, 1941, 314 U.S. 710, 62 S.Ct. 178, 86 L.Ed. 566. 9 Among the almost 50 dealers and former dealers whose testimony the Government introduced in the criminal action was Fred Emich, who owned or controlled the corporations which are petitioners here. On the criminal appeal the Court of Appeals thus reviewed his testimony: 10 'Fred Emich was a Chevrolet dealer at Chicago, Illinois, from 1932 to 1936 and he owned his own finance company to facilitate his purchases and sales, a course of business conduct which displeased GMAC. He received unordered cars and trucks in 1933, and the city manager of Chevrolet informed him that shipment of unordered cars would cease as soon as he would give some of his time sales finance paper to GMAC. He gave GMAC around 10% of his business in 1934 and became acquainted with the visits of GMAC and Chevrolet representatives. The zone manager warned him at the 1935 contract renewal meeting to the effect that if he expected to continue as a Chevrolet dealer he had better use GMAC at least 50%. Again he experienced difficulties with Chevrolet. This time cars of wrong colors and models were shipped to him and unordered accessories in great quantities were forced upon him. In addition he was required to send blank checks to the factory before cars were shipped to him. He was told by the GMAC representative that these problems would disappear if he used GMAC. In 1936 Emich was given his 'last warning,' the zone manager telling him that he was going to make an example of Emich for his failure to use GMAC. Not long thereafter Emich was cancelled as a dealer, and he appealed to the president of General Motors where he pleaded that in a period of four years he had done a gross business of around $3,000,000. The president of General Motors told him that he had been cancelled because he did not use GMAC, that it was the policy of the corporation to require dealers to use GMAC, and that if Emich would not agree to use GMAC it would be useless for the president of General Motors to discuss his reinstatement * * *.'5 II. 11 In their complaint petitioners allege that respondents unlawfully conspired in restraint of interstate trade in General Motors cars; that the conspiracy so alleged is the same as that charged against respondents and of which they were convicted in the antecedent criminal action, a copy of the indictment therein being attached as an exhibit; that pursuant to this conspiracy respondents injured petitioners' businesses by one or more of the unlawful acts set forth in said indictment, more particularly by terminating or cancelling or threatening to terminate or cancel the dealer franchise contracts of Emich Motors, which had financed the purchase or sale of cars through U.S. Acceptance Corporation rather than through GMAC. Respondents deny any conspiracy; they admit cancellation of the franchises but assert that such action was justified by Emich Motors' failure to perform certain obligations thereunder, as well as its persistence in a course of conduct inimical to the interest of General Motors in promoting the sale of Chevrolet cars. 12 In order to establish their prima facie case under § 5, petitioners offered in evidence the six-volume record of testimony and exhibits in the criminal case. The court held it inadmissible as evidence for the jury, with certain exceptions not important here. However, over respondents' objection, the court admitted, as exhibits to go to the jury, the indictment, verdict and judgment of conviction in the criminal case. 13 In his instructions the trial judge summarized the criminal indictment, the complaint of petitioners, and respondents' answer. He then instructed that the 14 '* * * judgment in the criminal proceedings * * * is admitted as evidence in this case as prima facie evidence that (respondents) did enter into an unlawful conspiracy in violation of the anti-trust laws * * * in the manner described in the indictment * * *.' 15 After explaining the term 'prima facie evidence,' the court then summarized § 5 of the Clayton Act and charged that 16 '* * * it was not necessary for the government to prove all of the acts alleged in the separate sections of the indictment. * * * nor is it necessary for the plaintiffs to prove all the acts charged in the indictment for you to find that the conspiracy alleged did exist. 17 'The judgment in the criminal case was admitted in evidence in this case, pursuant to the law to which I have just referred, for the purpose of the plaintiff making a prima facie case against the defendants as to one of the issues of this case and only and solely for the purpose of defining, describing, and limiting the scope of the judgment on the verdict which was entered in that case, namely, the conspiracy to violate the anti-trust laws. 18 'The burden is on the plaintiffs of establishing by a preponderance of the evidence that they were injured by the defendants pursuant to or in the course of a conspiracy and in order to recover damages for the cancellation of the Chevrolet franchises they must prove by a preponderance of the evidence including the criminal judgment that the defendants entered into a conspiracy to compel the use of General Motors Acceptance Corporation by agreeing among themselves, among other things, to cancel dealers who failed or refused to use General Motors Acceptance Corporation to a satisfactory extent and that the franchise of Emich Motors Corporation was cancelled by reason of and pursuant to said conspiracy and not because of the things alleged by defendants as the reasons for such cancellation, and to recover any damages for the failure of defendants to deliver any Chevrolet automobiles, plaintiffs must establish that defendants as part of the conspiracy agreed among themselves to withhold or delay delivery of automobiles to dealers who refused or failed to use the services of General Motors Acceptance Corporation to a satisfactory extent and that the defendants actively failed to deliver or delayed shipments of cars to plaintiffs pursuant to and as a part of said alleged conspiracy.' (Emphasis supplied.) 19 The jury returned a verdict for petitioners which resulted in judgments for $1,236,000 treble damages. The court assessed $257,358.10 as costs and attorneys' fees. 20 The Court of Appeals concluded that under § 5 the criminal judgment was prima facie evidence 'that defendants had been guilty of a conspiracy to restrain dealers' interstate trade and commerce in General Motors cars for the purpose of monopolizing the financing essential to the movement of those cars.' It approved the trial court's ruling as to the inadmissibility in evidence of the entire record of the criminal case, but criticized the use of the indictment as an exhibit to the complaint, as well as certain references to the indictment in the opening statement and closing argument of petitioners' counsel to the jury. It held that serious error was committed when the indictment was sent to the jury as an exhibit and the trial court 'told the jury that it could look to it (the indictment) to ascertain the means and the acts committed in furtherance of the conspiracy * * *.' The court observed that 'it was unnecessary for the Government to prove * * * any of the acts or means, except for the purpose of establishing venue, in order for the jury in the criminal proceeding to find defendants guilty,' and that 'such acts and means are not to be considered as established by the finding of guilt.' It concluded that the use of the indictment as evidence was aggravated by the instruction of the trial judge last quoted and italicized in part, supra, 181 F.2d page 75. III. 21 The issue we must determine, as defined in our order granting review, is 'whether the Court of Appeals erred in construing § 5 of the Clayton Act * * * as not permitting: (a) the admission in the instant case of the indictment in the antecedent criminal case against respondents, nor (b) the judgment therein to be used as evidence that the conspiracy of which respondents had been convicted occasioned Emich Motors' cancellation.' 22 In considering the application of § 5 in this case we are confronted with five differing interpretations. The broadest construction is urged by petitioners who contend that the criminal judgment is prima facie evidence that Emich Motors' franchises were cancelled pursuant to the unlawful conspiracy, and that the entire record in the criminal case should be admissible in this action. The view of the trial judge differs only in that he would not permit the record in the criminal case, beyond the indictment, verdict and judgment, to go to the jury. The United States as amicus curiae takes a more contracted position, urging in its brief that the judgment is prima facie evidence of the conspiracy and also of the performance of such acts in accomplishing it as the jury in the criminal case, in rendering a verdict of guilty, necessarily found to have occurred, the latter to be determined by the trial judge in the treble-damage suit from the entire record in the criminal case. In its view the trial court under appropriate instructions may submit the criminal pleadings to the jury in order to assist it in understanding the charge as to what was determined by the criminal conviction. The Court of Appeals construes the section still more narrowly, holding the judgment prima facie evidence only of conspiracy by respondents. It concludes that none of the record in the criminal case should be exhibited to the jury, although the trial judge may examine it 'as an aid in determining or defining the issues presented by the earlier case * * *.' 181 F.2d 76. Finally, respondents contend that the indictment charged a single conspiracy to perform some twenty-six different acts; that since the Government did not offer evidence to support all of the acts and was required to prove only one of them, it is impossible upon a general verdict of guilty to determine on which of the various acts the jury based its verdict; that consequently the judgment has no relevance here. IV. 23 Section 5 of the Clayton Act was adopted in response to a recommendation by President Wilson that Congress 'agree giving private individuals * * * the right to found their (antitrust) suits for redress upon the facts and judgments proved and entered in suits by the Government where the Government has * * * sued the combinations complained of and won its suit * * *.' 51 Cong.Rec. 1964. Congressional reports and debates on the proposal which ultimately became § 5 reflect a purpose to minimize the burdens of litigation for injured private suitors by making available to them all matters previously established by the Government in antitrust actions. See H.R. Rep. No. 627, 63d Cong., 2d Sess. 14; S. Rep. No. 698, 63d Cong., 2d Sess. 45; 51 Cong.Rec. 9270, 9490, 13851. The intended application and extent of such evidentiary benefits is not revealed by legislative materials, except that they should follow equally from prior criminal prosecutions and equity proceedings by the Government. By its terms, however, § 5 makes a prior final judgment or decree in favor of the United States available to a private suitor as prima facie evidence of 'all matters respecting which' the judgment 'would be an estoppel' between the defendants and the United States. We think that Congress intended to confer, subject only to a defendant's enjoyment of its day in court against a new party, as large an advantage as the estoppel doctrine would afford had the Government brought suit. 24 The evidentiary use which may be made under § 5 of the prior conviction of respondents is thus to be determined by reference to the general doctrine of estoppel. As this Court has observed, that 'principle is as applicable to the decisions of criminal courts as to those of civil jurisdiction.' Frank v. Mangum, 1915, 237 U.S. 309, 334, 35 S.Ct. 582, 590, 59 L.Ed. 969; Sealfon v. United States, 1948, 332 U.S. 575, 578, 68 S.Ct. 237, 239, 92 L.Ed. 180. It is well established that a prior criminal conviction may work an estoppel in favor of the Government in a subsequent civil proceeding. United States v. Greater New York Live Poultry Chamber of Commerce, D.C.S.D.N.Y. 1931, 53 F.2d 518, affirmed sub nom. Local 167 v. United States, 1934, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804; Farley v. Patterson, 1915, 166 App.Div. 358, 152 N.Y.S. 59; see State v. Intoxicating Liquor (Adams), 1900, 72 Vt. 253, 47 A. 779; 2 Freeman, Judgments (5th ed. 1925,) § 657. Such estoppel extends only to questions 'distinctly put in issue and directly determined' in the criminal prosecution. See Frank v. Mangum, supra, 237 U.S. at page 334, 35 S.Ct. at page 590; United States v. Meyerson, D.C.S.D.N.Y. 1928, 24 F.2d 855, 856. In the case of a criminal conviction based on a jury verdict of guilty, issues which were essential to the verdict must be regarded as having been determined by the judgment. Cf. Commonwealth v. Evans, 1869, 101 Mass. 25. Accordingly, we think plaintiffs are entitled to introduce the prior judgment to establish prima facie all matters of fact and law necessarily decided by the conviction and the verdict on which it was based. 25 The difficult problem, of course, is to determine what matters were adjudicated in the antecedent suit. A general verdict of the jury or judgment of the court without special findings does not indicate which of the means charged in the indictment were found to have been used in effectuating the conspiracy. And since all of the acts charged need not be proved for conviction, United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129, such a verdict does not establish that defendants used all of the means charged or any particular one. Under these circumstances what was decided by the criminal judgment must be determined by the trial judge hearing the treble-damage suit, upon an examination of the record, including the pleadings, the evidence submitted, the instructions under which the jury arrived at its verdict, and any opinions of the courts. Sealfon v. United States, supra; cf. State of Oklahoma v. State of Texas, 1921, 256 U.S. 70, 41 S.Ct. 420, 65 L.Ed. 831.6 26 In the criminal case it was the Court of Appeals' undisturbed determination, which we accept here, that the jury verdict was firmly rooted in a finding of coercive conduct on the part of respondents toward General Motors dealers to force the use of GMAC facilities. That court, in commenting on the sufficiency of the evidence, said that 'the jury finding of coercion is supported by the evidence. The coercive practices were many and varied * * * and directly aimed to compel dealer-purchasers to use GMAC in financing the wholesale purchase and retail sale of General Motors cars. * * * Undoubtedly the jury was warranted in attaching the coercion label to the action thus adopted by the appellants.' United States v. General Motors Corp., 7 Cir., 1941, 121 F.2d 376, 397. The same conclusion was reached by this Court in Ford Motor Co. v. United States, 1948, 335 U.S. 303, 69 S.Ct. 93, 93 L.Ed. 24, where it was required for another purpose to determine what was necessarily found by the jury verdict in the criminal proceeding against General Motors and GMAC.7 27 We are, therefore, of opinion that the criminal judgment was prima facie evidence of the general conspiracy for the purpose of monopolizing the financing of General Motors cars, and also of its effectuation by coercing General Motors dealers to use GMAC. To establish their prima facie case it therefore was necessary for petitioners only to introduce, in addition to the criminal judgment, evidence of the impact of the conspiracy on them, such as the cancellation of their franchises and the purpose of General Motors in cancelling them, and evidence of any resulting damages.8 From this it follows that the Court of Appeals was in error when it held that the judgment was prima facie evidence only of a conspiracy by respondents. 28 What issues were decided by the former Government litigation is, of course, a question of law as to which the court must instruct the jury. It is the task of the trial judge to make clear to the jury the issues that were determined against the defendant in the prior suit, and to limit to those issues the effect of that judgment as evidence in the present action. As to the manner in which such explanation should be made, no mechanical rule can be laid down to control the trial judge, who must take into account the circumstances of each case. He must be free to exercise 'a well-established range of judicial discretion'. Nardone v. United States, 1939, 308 U.S. 338, 342, 60 S.Ct. 266, 268, 84 L.Ed. 307. He is not precluded from resorting to such portions of the record, including the pleadings and judgment, in the antecedent case as he may find necessary or appropriate to use in presenting to the jury a clear picture of the issues decided there and relevant to the case on trial. Cf. Eastman Kodak Co. v. Southern Photo Material Co., 5 Cir., 1923, 295 F. 98, 101, affirmed 1927, 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684. A similar discretion must be exercised in approving the attachment of a copy of the indictment as an exhibit to the complaint. 29 In summary the trial judge should (1) examine the record of the antecedent case to determine the issues decided by the judgment; (2) in his instructions to the jury reconstruct that case in the manner and to the extent he deems necessary to acquaint the jury fully with the issues determined therein; and (3) explain the scope and effect of the former judgment on the case at trial. The court may, in the interest of clarity, so inform the jury at the time the judgment in the prior action is offered in evidence; or he may so instruct at a later time if, in his discretion, the ends of justice will be served. 30 The case is remanded to the Court of Appeals with directions to modify its judgment to conform with this opinion. 31 It is so ordered. 32 Case remanded with directions. 33 Mr. Justice MINTON took no part in the consideration or decision of this case. 1 38 Stat. 731, 15 U.S.C. § 15, 15 U.S.C.A. § 15. 2 26 Stat. 209, 15 U.S.C. § 1, 15 U.S.C.A. § 1. 3 38 Stat. 731, 15 U.S.C. § 16, 15 U.S.C.A. § 16. 4 United States v. General Motors Corp., 7 Cir., 1941, 121 F.2d 376, 383. 5 United States v. General Motors Corp., 7 Cir., 1941, 121 F.2d 376, 396. 6 See also McLaren, The Doctrine of Res Judicata as Applied to the Trial of Criminal Cases, 10 Wash.L.Rev. 198, 200 (1935). 7 In the Ford case it was stated that the 'plain effect' of the instructions in the criminal action against General Motors and GMAC was 'to draw a line between such practices as cancellation of a dealer's contract, or refusal to renew it, or discrimination in the shipment of antomobiles, as a means of influencing dealers to use GMAC, all of which fall within the common understanding of 'coercion,' and other practices for which 'persuasion,' 'exposition' or 'argument' are fair characterizations. * * * The trial judge used the word 'coercion' to summarize practices which, if the jury found them to exist, would call for a verdict against General Motors. He used the words 'persuasion,' 'exposition' and 'argument' to describe conduct which, in common usage, is not 'coercion' and therefore would not support such a verdict. Nothing in other portions of the judge's charge erases or blurs this line of distinction.' 335 U.S. at pages 316—319, 69 S.Ct. at page 100. Relevant portions of the instructions are set forth at page 316 of 335 U.S., note 3, 69 S.Ct. at page 99. 8 In deciding that under § 5 the criminal judgment against respondents may be admitted as prima facie evidence only of the fact of conspiracy and of the use of coercive methods in carrying it out, we do not intend to preclude its admission for such other purposes, apart from § 5, as the general law of evidence may permit. Petitioners contend that the judgment may be considered by the jury as evidence of respondents' intention in cancelling the Emichs' franchises. Cf. Wigmore, Evidence §§ 302—304 (3d ed., 1940); American Medical Association v. United States, 1942, 76 U.S.App.D.C. 70, 130 F.2d 233, 250—252, affirmed 1943, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. 434. Whether this contention is correct and, if so, whether such evidence would establish prima facie an illegal motive are questions beyond the scope of our present review.

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340 U.S. 383 71 S.Ct. 359 95 L.Ed. 364 AMALGAMATED ASS'N OF STREET, ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA, DIVISION 998, et al.v.WISCONSIN EMPLOYMENT RELATIONS BOARD. UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA, CIO, et al. v. WISCONSIN EMPLOYMENT RELATIONS BOARD. Nos. 329, 438. Argued Jan. 9, 10, 1951. Decided Feb. 26, 1951. [Syllabus from pages 383-384 intentionally omitted] Mr. David Previant, Milwaukee, Wis., for Amalgamated Ass'n of Street, Electric Ry. and Motor Coach Employees of America, Div. 998. Mr. Arthur J. Goldberg, Washington, D.C., for United Gas, Coke & Chemical Workers of America, CIO. Mr. J. Gilbert, Hardgrove, Milwaukee, Wis., for appellee Milwaukee Gas Light Co. Mr. Martin R. Paulsen, Wilwaukee, Wis., for respondent Milwaukee Elec. Ry. Transport Co. Mr. Malcolm Riley, Eau Claire, Wis., and Beatrice Lampert, Madison, Wis., for Wisconsin Employment Relations Board. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 In these cases, the constitutionality of labor legislation of the State of Wisconsin known as the Public Utility Anti-Strike Law,1 has been drawn in question. 2 Petitioners in No. 329 are the union and its officers who represent the employees of the Milwaukee Electric Railway and Transport Company of Milwaukee, Wisconsin, for collective-bargaining purposes.2 For many years, the transit workers entered into collective-bargaining agreements with the transit company without resorting to strike. In 1948, however, the collective agreement was terminated when the parties were unable to agree on wages, hours and working conditions and the transit workers' union called a strike to enforce union demands. The respondent Wisconsin Employment Relations Board secured immediately an ex parte order from a State Circuit Court restraining the strike and, in compliance with that order, the union postponed its strike. Thereafter, the same Circuit Court entered a judgment under which petitioners are 'perpetually restrained and enjoined from calling a strike * * * which would cause an interruption of the passenger service of the (transit company).' The Wisconsin Supreme Court affirmed the judgment, 1950, 257 Wis. 43, 42 N.W.2d 471, and we granted certiorari, 1950, 340 U.S. 874, 71 S.Ct. 124, to review the important questions decided below. 3 Petitioners in No. 438 are the union and its officers who represent employees of the Milwaukee Gas Light Company and its subsidiary, the Milwaukee Solvay Coke Company, both of Milwaukee, Wisconsin, pursuant to a certification of the National Labor Relations Board.3 In 1949, the collective agreement between petitioners and the gas company was terminated and, upon failure of further bargaining and conciliation to resolve the dispute, a strike was called and the gas workers left their jobs. Respondent Wisconsin Employment Relations Board obtained forthwith an ex parte restraining order from a State Circuit Court requiring that petitioners 'absolutely desist and refrain from calling strike (or) going out on strike * * * which would cause an interruption of the service of the (gas company)' and ordering petitioners to 'take immediate steps to notify all employes called out on strike to resume service forthwith.' Although the strike was settled soon thereafter, the Circuit Court found that petitioners had not obeyed the restraining order and entered a judgment of contempt, imposing fines of $250 upon each petitioner. The Wisconsin Supreme Court affirmed that judgment, 1950, Wisconsin Employment Relations Board v. Milwaukee Gas Light Co., 258 Wis. 1, 44 N.W.2d 547, and we granted certiorari, 1950, 340 U.S. 903, 71 S.Ct. 283, since this case raises the same substantial questions as those before the Court in No. 329. 4 The injunctions were issued in each case upon the complaint of the Wisconsin Employment Relations Board, charged by statute with the enforcement of the Public Utility Anti-Strike Law. That act vests in the state circuit courts jurisdiction to enjoin violations of the Act, Wis.Stat.1949, § 111.63, the substantive provision involved in these cases providing as follows: 'It shall be unlawful for any group of employes of a public utility employer acting in concert to call a strike or to go out on strike, or to cause any work stoppage or slowdown which would cause an interruption of an essential service; it also shall be unlawful for any public utility employer to lock out his employes when such action would cause an interruption of essential service; and it shall be unlawful for any person or persons to instigate, to induce, to conspire with, or to encourage any other person or persons to engage in any strike or lockout or slowdown or work stoppage which would cause an interruption of an essential service. Any violation of this section by any member of a group of employes acting in concert or by any employer or by any officer of an employer acting for such employer, or by any other individual, shall constitute a misdemeanor.' Wis.Stat.1949, § 111.62.4 5 This provision is part of a statutory pattern designed to become effective whenever collective bargaining results in an 'impasse and stalemate' likely to cause interruption of the supply of an 'essential public utility service,' Wis.Stat.1949, § 111.50, that service including water, heat, gas, electric power, public passenger transportation and communications. Id., § 111.51. Whenever such an 'impasse' occurs, the Wisconsin Employment Relations Board is empowered to appoint a conciliator to meet with the parties in an effort to settled the dispute. Id., § 111.54. In the event of a failure of conciliation, the Board is directed to select arbitrators who shall 'hear and determine' the dispute. Id., § 111.55. The act establishes standards to govern the decision of the arbitrators, id., §§ 111.57—111.58, and provides that the order of the arbitrators shall be final and binding upon the parties, id., § 111.59, subject to judicial review, id., § 111.60. In summary, the act substitutes arbitration upon order of the Board for collective bargaining whenever an impasse is reached in the bargaining process. And, to insure conformity with the statutory scheme, Wisconsin denies to utility employees the right to strike. 6 In upholding the constitutionality of the Public Utility Anti-Strike Act, the Wisconsin Supreme Court stressed the importance of utility service to the public welfare and the plenary power which a state is accustomed to exercise over such enterprises. Petitioners' claim that the Wisconsin law conflicts with federal legislation enacted under the Commerce Clause of the Constitution (Art. I, § 8) was overruled, as were petitioners' contentions that the Wisconsin Act violates the Due Process Clause of the Fourteenth Amendment and the Thirteenth Amendment. Respondents controvert each of these contentions and, apart from the questions of res judicata discussed in 340 U.S. 411, 71 S.Ct. 375, raise no other grounds in support of the judgments below. We deal only with the question of conflicting federal legislation as we have found that issue dispositive of both cases. 7 First. We have recently examined the extent to which Congress has regulated peaceful strikes for higher wages in industries affecting commerce. International Union of United Auto Workers v. O'Brien, 1950, 339 U.S. 454, 70 S.Ct. 781, 94 L.Ed. 978. We noted that Congress, in § 7 of the National Labor Relations Act of 1935,5 as amended by the Labor Management Relations Act of 1947,6 expressly safeguarded for employees in such industries the 'right * * * to engage in * * * concerted activities for the purpose of collective bargaining or other mutual aid or protection,'7 'e.g., to strike.'8 We also listed the qualifications and regulations which Congress itself has imposed upon its guarantee of the right to strike, including requirements that notice be given prior to any strike upon termination of a contract,9 prohibitions on strikes for certain objectives declared unlawful by Congress,10 and special procedures for certain strikes which might create national emergencies.11 Upon review of these federal legislative provisions, we held, 339 U.S. at page 457, 70 S.Ct. at page 783: 8 '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 (93 L.Ed. 463); 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.'12 9 Second. The Wisconsin court sought to distinguish International Union of United Auto Workers v. O'Brien, supra, on the ground that the industry to which Michigan applied its notice and strike-vote provisions was a national manufacturing organization rather than a local public utility. Congress drew no such distinction but, instead, saw fit to regulate labor relations to the full extent of its constitutional power under the Commerce Clause, National Labor Board v. Fainblatt, 1939, 306 U.S. 601, 607, 307 U.S. 609, 59 S.Ct. 668, 672, 83 L.Ed. 1014. Ever since the question was fully argued and decided in Consolidated Edison Co. v. National Labor Board, 1938, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126, it has been clear that federal labor legislation, encompassing as it does all industries 'affecting commerce,' applies to a privately owned public utility whose business and activites are carried on wholly within a single state. The courts of appeal have uniformly held enterprises similar to and no more important to interstate commerce than the Milwaukee gas and transit companies before us in these cases subject to the provisions of the federal labor law.13 No distinction between public utilities and national manufacturing organizations has been drawn in the administration of the Federal Act,14 and, when separate treatment for public utilities was urged upon Congress in 1947, the suggested differentiation was expressly rejected.15 Creation of a special classification for public utilities is for Congress, not for this Court. 10 Third. As we have noted, in 1947 Congress enacted special procedures to deal with strikes which might create national emergencies.16 Respondents rely upon that action as showing a congressional intent to carve out a separate field of 'emergency' labor disputes and, pointing to the fact that Congress acted only in respect to 'national emergencies,' respondents ask us to hold that Congress intended, by silence, to leave the states free to regulate 'local emergency' disputes. However, the Wisconsin Act before us is not 'emergency' legislation but a comprehensive code for the settlement of labor disputes between public-utility employers and employees.17 Far from being limited to 'local emergencies,' the act has been applied to disputes national in scope,18 and application of the act does not require the existence of an 'emergency.'19 In any event, congressional imposition of certain restrictions on petitioners' right to strike, far from supporting the Wisconsin Act, shows that Congress has closed to state regulation the field of peaceful strikes in industries affecting commerce. United Auto Workers v. O'Brien, supra, 339 U.S. at page 457, 70 S.Ct. at page 782. And where, as here, the state seeks to deny entirely a federally guaranteed right which Congress itself restricted only to a limited extent in case of national emergencies, however serious, it is manifest that the state legislation is in conflict with federal law. 11 Like the majority strike-vote provision considered in O'Brien, a proposal that the right to strike be denied, together with the substitution of compulsory arbitration in cases of 'public emergencies,' local or national, was before Congress in 1947.20 This proposal, closely resembling the pattern of the Wisconsin Act, was rejected by Congress as being inconsistent with its policy in respect to enterprises covered by the Federal Act, and not because of any desire to leave the states free to adopt it.21 Michigan, in O'Brien, sought to impose conditions on the right to strike and now Wisconsin seeks to abrogate that right altogether insofar as petitioners are concerned.22 Such state legislation must yield as conflicting with the exercise of federally protected labor rights. 12 'If we begin with public utilities, it will be said that coal and steel are just as important as public utilities. I do not know where we could draw the line. 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. 13 'We did not feel that we should put into the law, as a part of the collective-bargaining machinery, an ultimate resort to compulsory arbitration, or to seizure, or to any other action. We feel that it would interfere with the whole process of collective bargaining. If such a remedy is available as a routine remedy, there will always be pressure to resort to it by whichever party thinks it will receive better treatment through such a process than it would receive in collective bargaining, and it will back out of collective bargaining. It will not make a bona-fide attempt to settle if it thinks it will receive a better deal under the final arbitration which may be provided.' 14 See also S.Rep.No. 105, 80th Cong., 1st Sess. 13—14, 28 (1947). 15 Fourth. Much of the argument generated by these cases has been considerably broader than the legal questions presented. 16 The utility companies, the State of Wisconsin and other states as amici stress the importance of gas and transit service to the local community and urge that predominately local problems are best left to local governmental authority for solution. On the other hand, petitioners and the National Labor Relations Board, as amicus, argue that prohibition of strikes with reliance upon compulsory arbitration for ultimate solution of labor disputes destroys the free collective bargaining declared by Congress to be the bulwark of the national labor policy. This, it is said, leads to more labor unrest and disruption of service than is now experienced under a system of free collective bargaining accompanied by the right to strike. The very nature of the debatable policy questions raised by these contentions convinces us that they cannot properly be resolved by the Court. In our view, these questions are for legislative determination and have been resolved by Congress adversely to respondents. 17 When it amended the Federal Act in 1947, Congress was not only cognizant of the policy questions that have been argued before us in these cases, but it was also well aware of the problems in balancing state-federal relationships which its 1935 legislation had raised. The legislative history of the 1947 Act refers to the decision of this Court in Bethlehem Steel Co. v. New York Labor Board, 1947, 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234, and, in its handling of the problems presented by that case, Congress demonstrated that it knew how to cede jurisdiction to the states.23 Congress knew full well that its labor legislation 'preempts the field that the act covers insofar as commerce within the meaning of the act is concerned'24 and demonstrated its ability to spell out with particularity those areas in which it desired state regulation to be operative.25 This Court, in the exercise of its judicial function, must take the comprehensive and valid federal legislation as enacted and declare invalid state regulation which impinges on that legislation. 18 Fifth. It would be sufficient to state that the Wisconsin Act, in forbidding peaceful strikes for higher wages in industries covered by the Federal Act, has forbidden the exercise of rights protected by § 7 of the Federal Act. In addition, it is not difficult to visualize situations in which application of the Wisconsin Act would work at cross-purposes with other policies of the National Act. But we content ourselves with citation of examples of direct conflict found in the records before us. In the case of the transit workers, the union agreed to continue collective bargaining after the strike became imminent, whereas the company insisted upon invocation of the compulsory arbitration features of the Wisconsin Act. That act requires that collective bargaining continue until an 'impasse' is reached, Wis.Stat. 1949, § 111.52, whereas the Federal Act requires that both employer and employees continue to bargain collectively,26 even though a strike may actually be in progress. National Labor Board v. Mackay Radio & Telegraph Co., 1938, 304 U.S. 333, 345, 58 S.Ct. 904, 910, 82 L.Ed. 1381. Further, the transit company was able to avoid entirely any determination of certain union demands when the arbitrators, in accordance with Wis.Stat. 1949, § 111.58, ruled that the matter of assigning of workers to certain shifts 'infringe(s) upon the right of the employer to manage his business'. Yet similar problems of work scheduling and shift assignment have been held to be appropriate subjects for collective bargaining under the Federal Act as administered by the National Labor Relations Board. See Woodside Cotton Mills Co., 21 N.L.R.B. 42, 54—55 (1940); American National Ins. Co., 89 N.L.R.B. 185 (1950), and cases cited therein. 19 The National Labor Relations Act of 1935 and the Labor Management Relations Act of 1947, passed by Congress pursuant to its powers under the Commerce Clause, are the supreme law of the land under Art. VI of the Constitution. Having found that the Wisconsin Public Utility Anti-Strike Law conflicts with that federal legislation, the judgments enforcing the Wisconsin Act cannot stand. 20 Reversed. 21 Mr. Justice FRANKFURTER, whom Mr. Justice BURTON and Mr. Justice MINTON join, dissenting. 22 Wisdonsin has provided that labor disputes in public utilities shall be resolved by conciliation or compulsory arbitration if: 23 (1) after exerting 'every reasonable effort to settle labor disputes' by collective bargaining, the parties have reached a 'state of impasse and stalemate', and (2) the labor dispute, if not settled, is 'likely to cause interruption of the supply of an essential public utility service.' Wis.Stat.1949, §§ 111.50—111.65.1 24 In the cases before us, the statute has been applied to prevent a halt in service by two utility companies.2 One furnishes heating and illuminating gas to the general public in the City and County of Milwaukee. The other provides bus and streetcar transportation in the same area. Both these companies give utility service only within the State of Wisconsin but have been found subject to the Taft-Hartley Act because their activities 'affect commerce.' Compare Consolidated Edison Co. v. National Labor Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126; La Crosse Telephone Corp. v. Wisconsin Board, 336 U.S. 18, 69 S.Ct. 379, 93 L.Ed. 463. The question is whether the Wisconsin statute, so applied, conflicts with the TaftHartley Act, 61 Stat. 136, 29 U.S.C. (Supp. III) § 141 et seq., 29 U.S.C.A. § 141 et seq. 25 A claim of conflict between State and federal labor legislation presents a familiar problem. On eight occasions this Court has considered whether the Taft-Hartley Act, or its predecessor, the Wagner Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., so collided with State law as to displace it. We have sustained State laws which dealt with mass picketing and intermittent work stoppages. Allen-Bradley Local v. Wisconsin Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154; International Union, United Automobile Workers v. Wisconsin Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651. We have also upheld a State law which required a two-thirds vote for a maintenance-of-membership clause in collective agreements. Algoma Plywood Co. v. Wisconsin Board, 336 U.S. 301, 69 S.Ct. 584, 93 L.Ed. 691. 26 On the other hand, we have found in five cases that the State law could not consistently stand with the federal law. In Hill v. State of Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782, the State was found to have interfered with the freedom in selecting bargaining agents as guaranteed by the federal act. In Bethlehem Steel Co. v. New York Board, 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234, the State recognized a foremen's under contrary to established policy of the National Board. In La Crosse Telephone Corp. v. Wisconsin Board, supra, a conflict was found in the bargaining units determined under the State and federal acts. In Plankinton Packing Co. v. Winconsin Board, 338 U.S. 953, 70 S.Ct. 491, a State superimposed upon federal outlawry of conduct as an 'unfair labor practice' its own finding of unfairness. In International Union of United Automobile Workers v. O'Brien, 339 U.S. 454, 70 S.Ct. 781, 94 L.Ed. 978, a State act covering all industry permitted strikes at a different time than the federal act and required, unlike federal law, a majority authorization for any strike. Also, these provisions were applied to only that portion of a bargaining unit, already determined under the federal act, located within the State of Michigan. 27 'The principle is thoroughly established that the exercise by the State of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so 'direct and positive' that the two acts cannot 'be reconciled or consistently stand together." Chief Justice Hughes in Kelly v. Washington, 302 U.S. 1, 10, 58 S.Ct. 87, 92, 82 L.Ed. 3. It is clear from the decisions just canvassed that the States are not precluded from enacting laws on labor relations merely because Congress has—to use the conventional phrase—entered the field. It is equally clear that the boundaries within which a State may act are determined by the terrain and not by abstract projection. Emphasis in the opinions has varied, but the guiding principle is still that set out in the first in the series of immediately relevant cases: whether 'the state system of regulation, as construed and applied here, can be reconciled with the federal Act and * * * the two as focused in this case can consistently stand together * * *.' Allen-Bradley Local v. Wisconsin Board, supra, 315 U.S. at page 751, 62 S.Ct. at page 826. The adjustment thus called for between State and National interests is not attained by reliance on uncritical generalities or rhetorical phrases unnourished by the particularities of specific situations. 28 At the outset it should be noted that the Taft-Hartley Act does not, in specific terms, deal with the problem of local strikes in public utilities even though such strikes, as a matter of constitutional law, may be brought under federal control. Congress considered and rejected special provision for settling public-utility disputes under federal law. See statement of Senator Taft, 93 Cong.Rec. 3835. So far as the statute and its legislative history indicate, however, Congress decided no more than that it did not wish to subject local utilities to the control of the Federal Government. Due regard for basic elements in our federal system makes it appropriate that Congress be explicit if it desires to remove from the orbit of State regulation matters of such intimate concern to a locality as the continued maintenance of services on which the decent life of a modern community rests. 29 The real issue before the Court is whether the Wisconsin legislation os conflicts with the specific terms or the policy fairly attributable to the provisions of the federal statute that the two cannot stand together. We are first met with the provisions of the Taft-Hartley Act concerning the 'right' to strike. Section 7 provides: 'Employees shall have the right * * * to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, * * *.' Section 13 provides: 'Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.' The word 'right' is 'one of the most deceptive of pitfalls.' Mr. Justice Holmes, in American Bank & Trust Co. v. Federal Bank, 256 U.S. 350, 358, 41 S.Ct. 499, 500, 65 L.Ed. 983. We have several times rejected an invitation to decide cases upon the basis of an absolute right to strike. In International Union, United Automobile Workers v. Wisconsin Board, supra, we found there was no 'right' to strike in violation of a State law construed to prohibit intermittent work stoppages. In Southern Steamship Co. v. National Labor Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246, we found there was no 'right' to strike in violation of a federal mutiny statute. In two other cases we held that employees who strike in violation of a collective agreement or engage in 'sit-down' strikes are not protected under the federal statute. National Labor Board v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682; National Labor Board v. Fansteel Corp., 306 U.,.s. 240, 59 S.Ct. 490, 83 L.Ed. 627. May the 'right' to strike be also limited by an otherwise valid State statute aimed at preventing a breakdown of public-utility service? 30 'Public utility employer' is defined in the Wisconsin Act to mean an employer 'engaged in the business of furnishing water, light, heat, gas, electric power, public passenger transportation or communication * * *.' § 111.51. Labor relations in such utilities have traditionally been subjected to regulation in a way that those in other industries have not. See Wilson v. New, 243 U.S. 332, 349, 37 S.Ct. 298, 302, 61 L.Ed. 755. Compare Conspiracy and Protection of Property Act, 38 & 39 Victoria, c. 86, par. 4 (1875). The range of control over business generally has been greatly extended by modern law. But the historic amenability to legal control of public calling is rooted deep. See Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 543, 43 S.Ct. 630, 635, 67 L.Ed. 1103. A stoppage in utility service so clearly involves the needs of a community as to evoke instinctively the power of government. This Court should not ignore history and economic facts in construing federal legislation that comes within the area of interacting State and federal control. To derive from the general language of the federal act a 'right' to strike in violation of a State law regulating public utilities is to strip from words the limits inherent in their context. 31 Any attempt by a State to impose upon industry any a whole a drastic limitation upon the right to strike would conflict with the federal law. Compare United Automobile Workers v. O'Brien, supra. And even as to emergency disputes—those involving the obvious public services—it may be urged that the prospect of settlement by arbitration may tend to make one or both parties reluctant to reach an agreement by bargaining. See Kennedy, The Handling of Emergency Disputes, Proceedings of Second Annual Meeting of Industrial Relations Research Assn. 14, 21—22 (1949). 32 But the principle of hands-of collective bargaining is not more absolute than the right to strike. The 'national emergency' provisions in the Taft-Hartley Act are an affirmative indication that the force of collective bargaining may be limited in emergency situations. Title II of the Taft-Hartley Act provides for special mediation procedures, a cooling-off period, and ballot by employees on the final offer of the employer, in order to prevent a strike or lockout in 'an entire industry or a substantial part thereof' if necessary to avoid peril to 'the national health or safety'. § 206. And Congress apparently expected that additional laws would be enacted if necessary.3 The 'national emergency' provisions were aimed at strikes of nationwide significance. They have been applied in eight disputes from 1947 to 1950: twice in industry-wide or coast-wide maritime negotiations; three times in industry-wide bituminous-coal negotiations; and in disputes arising in the meat-packing industry, the national telephone industry, and the atomic-energy installation at Oak Ridge. U.S. Dept. of Labor, Bureau of Labor Statistics, Federal Fact-Finding Boards and Boards of Inquiry (1950) 2. 33 Title II would be available for settlement of the disputes involved in the cases before us only if they were a part of a nation-wide utility dispute creating a national emergency.4 But the careful consideration given to the problem of meeting nation-wide emergencies and the failure to provide for emergencies other than those affecting the Nation as a whole do not imply paralysis of State police power. Rather, they imply that the States retain the power to protect the public interest in emergencies economically and practically confined within a State. It is not reasonable to impute to Congress the desire to leave States helpless in meeting local situations when Congress restricted national intervention to national emergencies. 34 Only one other of the petitioners' arguments raises a substantial question of conflict.5 Section 111.58 of the Wisconson Act prohibits the arbitrator from making an award 'which would infringe upon the right of the employer to manage his business'. In 340 U.S. 416, 71 S.Ct. 373, the Wisconsin court affirmed the Board's order refusing to make an award dealing with the composition of shifts. It is argued that this construction of the Wisconsin statute brings it in conflict with the Board position that parties must bargain on such an issue. See American National Insurance Co., 89 N.L.R.B. 185; Woodside Cotton Mills, 21 N.L.R.B. 42, 54—55. The term in the Wisconsin statute deals not with the scope of bargaining, but with the power of an arbitrator to make an award after bargaining has failed. The State law does nothing to relieve the employer of his duty to bargain under the federal act, nor is there any indication that the duty to bargain under the State act differs from that under the federal act. 35 Whether the State chose wisely in adopting arbitration rather than taking no measure or taking a more forceful measure to protect the public interest is not for us to decide. Seizure or martial law or other affirmative action by the State might be just as deleterious to collective bargaining as enforced arbitration, apart from raising other contentious issues. If there is legislative choice it is not for us to demand that what is chosen should commend itself to our private notions of wise policy. As to strikes creating a nation-wide emergency, the provisions of the Taft-Hartley Act indicate that the principle of collective bargaining may to some extent be subordinated to the interest of the public. I find no indication in the statute that the States are not equally free to protect the public interest in State emergencies. 36 The claim that the Wisconsin statute violates the Due Process Clause of the Fourteenth Amendment was for me definitively answered thirty years ago by Mr. Justice Brandeis: 37 'Because I have come to the conclusion that both the common law of a State and a statute of the United States (the Clayton Act, 15 U.S.C.A. § 12 et seq., 29 U.S.C.A. § 52) declare the right of industrial combatants to push their struggle to the limits of the justification of self-interest, I do not wish to be understood as attaching any constitutional or moral sanction to that right. All rights are derived from the purposes of the society in which they exist; above all rights rises duty to the community. The conditions developed in industry may be such that those engaged in it cannot continue their struggle without danger to the community. But it is not for judges to determine whether such conditions exist, nor is it their function to set the limits of permissible contest and to declare the duties which the new situation demands. This is the function of the legislature which, while limiting individual and group rights of aggression and defense, may substitute processes of justice for the more primitive method of trial by combat.' Duplex Co. v. Deering, 254 U.S. 443, 488, 41 S.Ct. 172, 184, 65 L.Ed. 349, dissenting. 1 Wis.Stat.1949, §§ 111.50 et seq. 2 The National Labor Relations Board has exercised jurisdiction over the transit company and its employees in conducting a so-called union shop election pursuant to § 9(e)(1) of the Labor Management Relations Act of 1947, 29 U.S.C. (Supp. III) § 159(e)(1), 29 U.S.C.A. § 159(e)(1). The National Labor Relations Board is presently investigating a charge filed by the transit workers' union in respect to an alleged unfair labor practice said to have been committed in respect to the controversy out of which this case arose. 3 The Milwaukee Gas Light Co., 50 N.L.R.B., 809, as amended, 52 N.L.R.B. 1213 (1943). The N.L.R.B. has also conducted a union shop election under § 9(e)(1) of the Federal Act, supra, note, 2, in respect to the supervisory employees of the gas company. And a union complaint that the gas company committed an unfair labor practice in respect to the dispute out of which this proceeding arose has been filed with the N.L.R.B. 4 Under Wis.Stat.1949, § 111.64, the following is applicable to the above provision: 'Nothing in this subchapter shall be construed to require any individual employe to render labor or service without his consent, or to make illegal the quitting of his labor or service or the withdrawal from his place of employment unless done in concert or agreement with others. No court shall have power to issue any process to compel an individual employe to render labor or service or to remain at his place of employment without his consent. It is the intent of this subchapter only to forbid employes of a public utility employer to engage in a strike or to engage in a work slowdown or stoppage in concert, and to forbid a public utility employer to lock out his employes, where such acts would cause an interruption of essential service.' We have before us, then, a statute aimed only at 'concerted' activities of public utility employees. 5 49 Stat. 449, 29 U.S.C. § 151 et seq., 29 U.S.C.A. § 151 et seq. 6 61 Stat. 136, 29 U.S.C (Supp. III) § 141 et seq., 29 U.S.C.A. § 141 et seq. 7 Section 7 of both acts, 29 U.S.C. (Supp. III) § 157, 29 U.S.C.A. § 157. See also §§ 2(3) and 13, 29 U.S.C. (Supp. III) §§ 152(3), 163, 29 U.S.C.A. §§ 152(3), 163; S.Rep. No. 573, 74th Cong., 1st Sess. 8—9 (1935); House Conf.Rep. No. 510, 80th Cong., 1st Sess. 38 (1947). In the 'Declaration of Policy' of the Labor Management Relations Act of 1947, Congress stated: 'It is the purpose and policy of this Act, in order to promote the full flow of commerce, to prescribe the legitimate rights of both employeesand employers in their relations affecting commerce * * *.' 29 U.S.C. (Supp. III) § 141(b), 29 U.S.C.A. § 141(b). The 'Findings and Policies' of the National Labor Relations Act provides, inter alia: 'It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.' 49 Stat. 449, 29 U.S.C. (Supp. III) § 151, 29 U.S.C.A. § 151. 8 H.R.Rep. No. 245, 80th Cong., 1st Sess. 26 (1947). 9 Section 8(d) of the 1947 Act, 29 U.S.C. (Supp. III) § 158(d), 29 U.S.C.A. § 158(d). Petitioners in both cases had complied with all notice requirements before strike action was taken. 10 Section 8(b)(4) of the 1947 Act, 29 U.S.C. (Supp. III) § 158(b)(4), 29 U.S.C.A. § 158(b)(4). See also § 10(j, l), 29 U.S.C. (Supp. III) § 160(j, l), 29 U.S.C.A. § 160(j, l), empowering and directing the N.L.R.B. to obtain injunctive relief against such unlawful strikes. 11 Sections 206—210 of the 1947 Act, 29 U.S.C. (Supp. III) §§ 176—180, 29 U.S.C.A. §§ 176—180. 12 Our decision in O'Brien, supra, followed shortly after our reversal, per curiam, in Plankinton Packing Co., supra, where the Wisconsin Employment Relations Board had, with the approval of the State Supreme Court, ordered reinstatement of an employee discharged because of his failure to join a union, even though his employment was not covered by a union shop or similar contract. Section 7 of the Labor Management Relations Act not only guarantees the right of self-organization and the right to strike, but also guarantees to individual employees the 'right to refrain from any or all of such activities', at least in the absence of a union shop or similar contractual arrangement applicable to the individual. Since the N.L.R.B. was given jurisdiction to enforce the rights of the employees, it was clear that the Federal Act had occupied this field to the exclusion of state regulation. Plankinton and O'Brien both show that states may not regulate in respect to rights guaranteed by Congress in § 7. 13 E.g., National Labor Board v. Baltimore Transit Co., 4 Cir., 1944, 140 F.2d 51, 53—54 (local transit company); Pueblo Gas & Fuel Co. v. National Labor Board, 10 Cir., 1941, 118 F.2d 304, 305—306 (local gas company); National Labor Board v. Western Massachusetts Electric Co., 1 Cir., 1941, 120 F.2d 455, 456—457; National Labor Board v. Gulf Public Service Co., 5 Cir., 1941, 116 F.2d 852, 854; Consumers Power Co. v. National Labor Board, 6 Cir., 1940, 113 F.2d 38, 39—41; Southern Colorado Power Co. v. National Labor Board, 10 Cir., 1940, 111 F.2d 539, 541—543 (local power companies). See also Virginia Elec. & Power Co. v. National Labor Board, 4 Cir., 1940, 115 F.2d 414, 415—416, upheld on the question of jurisdiction in National Labor Board v. Virginia Elec. & Power Co., 1941, 314 U.S. 469, 476, 62 S.Ct. 344, 347, 86 L.Ed. 348. The question of the applicability of the federal labor laws to local utilities is rarely litigated today. The Milwaukee Gas Light Company, employer in No. 438, conceded before the N.L.R.B. that it is engaged in commerce within the meaning of the Federal Act. 50 N.L.R.B. 800, 810 (1943). In 1947, it was proposed that the coverage of the Federal Act be limited so as to exclude utilities and other enterprises whose productive effort did not extend across state lines. H.R. 1095, 80th Cong., 1st Sess. § 2(b). Congress did not adopt any such limitation on the application of the National Labor Relations Act, but, instead, amended that Act with full appreciation of the extent of its coverage. See H.R.Rep. No. 245, 80th Cong., 1st Sess. 40, 44 (1947); S.Rep. No. 105, 80th Cong., 1st Sess. 26 (1947); H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 60 (1947). 14 The N.L.R.B. has specifically rejected the suggestion that in granting the right to strike or in the other provisions of the Federal Act Congress intended that there be any distinction between public utility employees and those otherwise employed. El Paso Electric Co., 13 N.L.R.B. 213, 240 (1939), enforced in El Paso Electric Co. v. National Labor Board, 5 Cir., 1941, 119 F.2d 581. In a recent statement of policy, the N.L.R.B. declared that, in view of the 'important impact on commerce,' jurisdiction will be exercised in 'all cases' involving the type of public utilities before us in these cases. Local Transit Co., 91 N.L.R.B. 623, 26 L.R.R.Man. 1547 (1950). 15 93 Cong.Rec. 3835 (1947), statement of Senator Taft, quoted in note 21, infra. The Case Bill, H.R. 4908, 79th Cong., 2d Sess. (1946), passed by both Houses of Congress during the session immediately preceding the enactment of the Labor Management Relations Act of 1947, proposed special techniques, including a temporary denial of the right to strike, in connection with 'labor dispute(s) affecting commerce, involving a public utility whose rates are fixed by some governmental agency.' § 6(a). In his veto message, the President criticized the special treatment accorded to public utilities, 92 Cong.Rec. 6674, 6676, (1946). Congress did not override the veto and, while such special treatment for public utilities was again proposed in 1947, note 16, infra, no such distinction is found in the 1947 legislation as finally enacted by Congress. 16 Section 206—210 of the 1947 Act, 29 U.S.C. (Supp. III) §§ 176—180, 29 U.S.C.A. §§ 176—180. These so-called national emergency provisions call for the appointment of a board of inquiry to report the facts of the dispute, followed by a vote of the employees on whether to strike. An injunction to maintain the status quo for a limited period pending the exhaustion of these remedies is authorized by the Act. The House version of the Labor Management Relations Act of 1947, H.R. 3020, 80th Cong., 1st Sess., contained a broader provision calling for a temporary prohibition on strikes whenever interstate commerce in an essential public service was threatened, during which time an advisory settlement board would recommend specific terms for settlement. A similar plan was proposed on a temporary basis in H.R. 2861, 80th Cong., 1st Sess., and approved by H.R.Rep.No.235, 80th Cong., 1st Sess. (1947). This plan was rejected in favor of the Senate version which permitted a temporary injunction against strikes only when the 'national health or safety' was imperiled and then only while a board of inquiry sifted the facts without making recommendations. H.R.Conf.Rep.No.510, 80th Cong., 1st Sess. 63—64 (1947). 17 The Wisconsin Act applies generally to 'labor disputes between public utility employers and their employes which cause or threaten to cause an interruption in the supply of an essential public utility service'. Wis.Stat.1949, § 111.50. 18 Communications Workers of America, C.I.O., Div. 23, and Wisconsin Telephone Co., Wis.E.R.B. Decision No. 2358—C (1950), (arbitrators appointed to determine the Wisconsin phase of the national telephone strike threatened in the spring of 1950). 19 Far from being legislation aimed at 'emergencies,' the Wisconsin Act has been invoked to avert a threatened strike of clerical workers of a utility. Wisconsin Telephone Clerical Union and Wisconsin Telephone Co., Wis.E.R.B.Case No. 2273 PU—9 (1949). See Wisconsin Telephone Co. v. Wisconsin E.R.B., 1948, 253 Wis. 584, 34 N.W.2d 844, where the Wisconsin Supreme Court refused to set aside the Board order appointing a conciliator in the same proceeding on the ground that the order was not appealable. 20 H.R. 17; H.R. 34; H.R. 68; H.R. 75; H.R. 76, all of the 80th Cong., 1st Sess. In addition to granting federal authority to ban strikes under certain circumstances, § 6(a) of each act would have permitted the operation of state anti-strike legislation. This legislative proposal is discussed by Representative Case in 93 Cong.Rec. A1007—A1009 (1947). See also the other proposals before the same Session of Congress to deny the right to strike in specified instances. H.R. 90 and H.R. 1095, both of the 80th Cong., 1st Sess. 21 The reasoning behind the congressional rejection of any proposals similar to the Wisconsin Act was stated by Senator Taft as follows, 93 Cong.Rec. 3835—3836 (1947): 'Basically, I believe that the committee feels, almost unanimously, that the solution of our labor problems must rest on a free economy and on free collective bargaining. The bill is certainly based upon that proposition. 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 recognize that right in spite of the inconvenience, and in some cases perhaps danger, to the people of the United States which may result from the exercise of such right. In the long run, I do not believe that that right will be abused. In the past few disputes finally reached the point where there was a direct threat to and definance of the rights of the people of the United States. '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. But if we impose compulsory arbitration, or if we give the Government power to fix wages at which men must work for another year or for two years to come, I do not see how in the end we can escape a collective economy. If we give the Government power to fix wages, I do not see how we can take from the Government the power to fix prices; and if the Government fixes wages and prices, we soon reach the point where all industry is under Government control, and finally there is a complete socialization of our economy. 'I feel very strongly that so far as possible we should avoid any system which attempts to give to the Government this power finally to fix the wages of any man. Can we do so constitutionally? Can we say to all the people of the United States, 'You must work at wages fixed by the Government'? I think it is a long step from freedom and a long step from a free economy to give the Government such a right. 'It is suggested that we might do so in the case of public utilities; and I suppose the argument is stronger there, because we fix the rates of public utilities, and we might, I suppose, fix the wages of public-Utility workers. Yet we have hesitated to embark even on that course, because if we once begin a process of the Government fixing wages, it must end in more and more wage fixing and finally Government price fixing. It may be a popular thing to do. Today people seem to think that all that it is necessary to do is to forbid strikes, fix wages, and compel men to continue working, without consideration of the human and constitutional problems involved in that process. 22 Congress demonstrated its ability to deny in express terms the right to strike when it so desired. See § 305 of the 1947 Act, 29 U.S.C. (Supp. III) § 188, 29 U.S.C.A. § 188, making it unlawful for employees of the United States or its agencies to participate in any strike. 23 Section 10(a) of the 1947 Act, 29 U.S.C. (Supp. III) § 160(a), 29 U.S.C.A. § 160(a). A proviso of § 10(a) authorizes cession of jurisdiction to the states only where the state law is consistent with the federal legislation. This insures that the national labor policy will not be thwarted even in the predominently local enterprises to which the proviso applies. S.Rep.No. 105, 80th Cong., 1st Sess. 26 (1947). See also minority views to same report, id., pt. 2, 38, agreeing as to this feature of the legislation. 24 H.R.Rep.No. 245, 80th Cong., 1st Sess. 44 (1947). 25 See §§ 8(d), 14(b), 202(c) and 203(b), 29 U.S.C. (Supp. III) §§ 158(d), 164(b), 172(c), and 173(b), 29 U.S.C.A. §§ 158(d), 164(b), 172(c), 173(b), in addition to § 10(a) of the 1947 Act for examples of congressional direction as to the role that states were to play in the area of labor regulation covered by the Federal Act. And § 2(2, 3) of the Federal Act, 29 U.S.C. (Supp. III) § 152(2, 3), 29 U.S.C.A. § 152(2, 3), specifically exclude from its operation the employees of 'any State or political subdivision thereof'. 26 § 8(a)(5), (b)(3); 29 U.S.C. (Supp. III) § 158(a)(5), (b)(3), 29 U.S.C.A. § 158(a)(5), (b)(3). 1 Section 111.50 states the policy of the statute in the following terms: 'It is hereby declared to be the public policy of this state that it is necessary and essential in the public interest to facilitate the prompt, peaceful and just settlement of labor disputes between public utility employers and their employes which cause or threaten to cause an interruption in the supply of an essential public utility service to the citizens of this state and to that end to encourage the making and maintaining of agreements concerning wages, hours and other conditions of employment through collective bargaining between public utility employers and their employes, and to provide settlement procedures for labor disputes between public utility employers and their employes in cases where the collective bargaining process has reached an impasse and stalemate and as a result thereof the parties are unable to effect such settlement and which labor disputes, if not settled, are likely to cause interruption of the supply of an essential public utility service. The interruption of public utility service results in damage and injury to the public wholly apart from the effect upon the parties immediately concerned and creates an emergency justifying action which adequately protects the general welfare.' 'Public utility employer' is defined as any employer 'engaged in the business of furnishing water, light, heat, gas, electric power, public passenger transportation or communication * * *.' § 111.51. Section 111.52 imposes a duty on employers and employees to bargain collectively. If collective bargaining fails, the statute provides for a conciliation procedure. § 111.54. If the conciliator is unable to effect a settlement within 15 days, the dispute is submitted to arbitration. § 111.55. Existing wages, hours, and conditions of employment are to be maintained during conciliation and arbitration. § 111.56. Standards for the arbitrator are set forth in the statute, § 111.57, and he is forbidden to make an award which 'would infringe upon the right of the employer to manage his business' or 'would interfere with the internal affairs of the union.' § 111.58. The arbitrator's award becomes binding on the parties 'together with such agreements as the parties may themselves have reached'. § 111.59. It may be changed by 'mutual consent or agreement of the parties', § 111.59, and is subject to judicial review. § 111.60. The statute makes it unlawful for any group of public-utility employees 'acting in concert' to call a strike or go out on strike or cause a work stoppage or slowdown which would cause an interruption of an essential service. The statute also makes it unlawful for a public utility employer to lock out his employees if such action would cause an interruption of essential service. § 111.62. Such unlawful action on the part of their employer or employees may be enjoined in an action instituted by the State Board. § 111.63, Section 111.64 makes clear that only a concerted refusal to work is made unlawful, and provided that no court shall issue process 'to compel an individual employe to render labor or service or to remain at his place of employment without his consent.' 2 The situation before us involves solely the interruption in essential services of a public utility. And attempt by Wisconsin to apply its arbitral scheme to a labor dispute that does not clearly involve such an essential utility operation is not now in issue. This makes it unnecessary for us to consider whether the Wisconsin law might be constitutionally applied to a strike of clerical employees such as that involved in Wisconsin Telephone Co. v. Wisconsin Board, 253 Wis. 584, 34 N.W.2d 844. In that case the Wisconsin Court did not uphold application of the statute to the particular dispute. It held only that the State Board's action in appointing a conciliator was a preliminary order and hence, under principles of administrative law, not reviewable. 3 See S.Rep.No. 105, 80th Cong., 1st Sess. 15: 'In most instances the force of public opinion should make itself sufficiently felt in (the) 80-day period (during which the strike is enjoined) to bring about a peaceful termination of the controversy. Should this expectation fail, the bill provides for the President laying the matter before Congress for whatever legislation seems necessary to preserve the health and safety of the Nation in the crisis.' The reference is to § 210 of the Taft-Hartley Act, which provides that if the injunction is discharged, 'the President shall submit to the Congress a full and comprehensive report of the proceedings, including the findings of the board of inquiry and the ballot taken by the National Labor Relations Board, together with such recommendations as he may see fit to make for consideration and appropriate action.' 4 It is clear that the national emergency provisions were not meant to cover local strikes such as those involved in the cases now before us. See S.Rep.No. 105, 80th Cong., 1st Sess. 14: 'While the committee is of the opinion that in most labor disputes the role of the Federal Government should be limited to mediation, we recognize that the repercussions from stoppages in certain industries are occasionally so grave that the national health and safety is imperiled. An example is the recent coal strike in which defiance of the President by the United Mine Workers Union compelled the Attorney General to resort to injunctive relief in the courts. The committee believes that only in national emergencies of this character should the Federal Government be armed with such power.' There might of course be a conflict if the Wisconsin Act were held applicable by her courts to a threatened strike which was only a part of a nation-wide utility dispute to which the provisions of Title II had been applied. But our task is to decide the case before us and not to conjure up difficulties that may never arise. See Allen Bradley Local v. Wisconsin Board, 315 U.S. 740, 746, 62 S.Ct. 820, 824, 86 L.Ed. 1154. The Wisconsin statute is not in conflict with the provisions of Title II of the Taft-Hartley Act creating a mediation and conciliation service. The federal act takes account of state mediation facilities, and the federal officials are directed 'to avoid attempting to mediate disputes which would have only a minor effect on interstate commerce if State or other conciliation services are available to the parties.' § 203(b). 5 A further argument is based upon § 111.56 of the Wisconsin Act which requires that the status quo as to terms of employment be maintained during conciliation and arbitration. The Taft-Hartley Act requires the parties to continue terms of an existing contract for only 60 days after notice of termination has been given or until the expiration date of the contract, whichever is later. § 8(d)(4). The additional restriction of the Wisconsin Act is imposed in order to assure the effectiveness of the arbitration system and presents no problem of conflict in administration of the two statutes. The only objections to the status quo provisions are the arguments against the incompatibility of the federal act and any system of compulsory arbitration. These have been discussed in the text. Two additional arguments are based upon hypothetical conflicts not raised by the present cases. Section 111.52 of the Wisconsin Act requires that the parties 'exert every reasonable effort' in order to settle the labor dispute. It is claimed that this language may be construed to require the parties to make concessions during the bargaining process—something which § 8(d) of the Taft-Hartley Act says they do not have to do. The second argument is that, from § 111.57 of the Wisconsin Act, it appears that arbitration might be required where negotiations were underway to amend an existing contract. Under § 8(d) of the Taft-Hartley Act, there is no duty to bargain concerning amendment of a contract still in effect. It is a sufficient answer to these contentions to note the broad separability provision in § 111.65 of the Wisconsin Act, and repeat what we said in Allen-Bradley Local v. Labor Board, 315 U.S. 740, 746, 62 S.Ct. 820, 824, 86 L.Ed. 1154: 'We deal * * * not with the theoretical disputes but with concrete and specific issues raised by actual cases. * * * Nor will we assume in advance that a State will so construe its law as to bring it into conflict with the federal Constitution or an act of Congress.'

910

340 U.S. 581 71 S.Ct. 474 95 L.Ed. 552 JOHNSONv.MUELBERGER. No. 296. Argued Jan. 4, 1951. Decided March 12, 1951. Mr. William E. Leahy, Washington, D.C., for petitioner. Mr. Saul Hammer, New York City, for respondent. Mr. Justice REED delivered the opinion of the Court. 1 The right of a daughter to attack in New York the validity of her deceased father's Florida divorce is before us. She was his legatee. The divorce was granted in Florida after the father appeared there and contested the merits. The issue turns on the effect in New York under these circumstances of the Full Faith and Credit Clause of the Federal Constitution, Art. 4, § 1. 2 Eleanor Johnson Muelberger, respondent, is the child of decedent E. Bruce Johnson's first marriage. After the death of Johnson's first wife in 1939, he married one Madoline Ham, and they established their residence in New York. In August 1942, Madoline obtained a divorce from him in a Florida proceeding, although the undisputed facts as developed in the New York Surrogate's hearing show that she did not comply with the jurisdictional ninety-day residence requirement.1 The New York Surrogate found that 'In the Florida court, the decedent appeared by attorney and interposed an answer denying the wrongful acts but not questioning the allegations as to residence in Florida. The record discloses that testimony was taken by the Florida court and the divorce granted Madoline Johnson. Both parties had full opportunity to contest the jurisdictional issues in the court and the decree is not subject to attack on the ground that petitioner was not domiciled in Florida.' In 1944 Mr. Johnson entered into a marriage, his third, with petitioner, Genevieve Johnson, and in 1945 he died, leaving a will in which he gave his entire estate to his daughter, Eleanor. After probate of the will, the third wife filed notice of her election to take the statutory one-third share of the estate, under § 18 of the New York Decedent Estate Law, McK.Consol.Laws, c. 13. This election was contested by respondent daughter, and a trial was had before the Surrogate, who determined that she could not attack the third wife's status as surviving spouse, on the basis of the alleged invalidity of Madoline's divorce, because the divorce proceeding had been a contested one, and '(s)ince the decree is valid and final in the State of Florida, it is not subject to collateral attack in the courts of this state.' 3 The Appellate Division affirmed the Surrogate's decree per curiam, 275 App.Div. 848, 88 N.Y.S.2d 783, but the New York Court of Appeals reversed. 301 N.Y. 13, 92 N.E.2d 44. The remittitur remanded the case to the Surrogate 'for further proceedings not inconsistent with' the opinion of the Court of Appeals. But in light of the record before us we assume that the requirement of Florida for a residence of 90 days as a jurisdictional basis for a Florida divorce is no longer open as an issue upon return of these proceedings to the Surrogate's Court. Accordingly the judgment under review is a final decree. 4 The Court of Appeals held that the Florida judgment finding jurisdiction to decree the divorce bound only the parties themselves. This followed from their previous opportunity to contest the jurisdictional issue. As the court read the Florida cases to allow Eleanor to attack the decree collaterally in Florida, it decided she should be equally free to do so in New York. The Court of Appeals reached this decision after consideration of the Full Faith and Credit Clause. Because the case involves important issues in the adjustment of the domestic-relations laws of the several states, we granted certiorari, Johnson v. Muelberger, 340 U.S. 874, 71 S.Ct. 121. 5 The clause and the statute prescribing the effect in other states of judgments of sister states are set out below.2 This statutory provision has remained substantially the same since 1790. 1 Stat. 122. There is substantially no legislative history to explain the purpose and meaning of the clause and of the statute.3 From judicial experience with and interpretation of the clause, there has emerged the succinct conclusion that the Framers intended it to help weld the independent states into a nation by giving judgments within the jurisdiction of the rendering state the same faith and credit in sister states as they have in the state of the original forum.4 The faith and credit given is not to be niggardly but generous, full.5 '(L)ocal policy must at times be required to give way, such 'is part of the price of our federal system."6 6 This constitutional purpose promotes unification, not centralization. It leaves each state with power over its own courts but binds litigants, wherever they may be in the Nation, by prior orders of other courts with jurisdiction.7 'One trial of an issue is enough. 'The principles of res judicata apply to questions of jurisdiction as well as to other issues,' as well to jurisdiction of the subject matter as of the parties.'8 The federal purpose of the clause makes this Court, for both state and federal courts,9 the 'final arbiter when the question is raised as to what is a permissible limitation on the full faith and credit clause.'10 7 In the exercise of this responsibility we have recently passed judgments that have restated the controlling effect of the clause on state proceedings subsequent to divorce decrees in other states. In Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26, we held that a Virginia decree of divorce, granted a husband who had acquired local domicile after he had obtained a decree of separation in the District of Columbia, the marital domicile, must be given effect in the District. The wife had entered her appearance in the Virginia court and was held bound by its findings of jurisdiction, after contest. In two cases, Williams I and II, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, and 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, we held that domicile of one party to a divorce creates an adequate relationship with the state to justify its exercise of power over the marital relation, 317 U.S. at page 298, 63 S.Ct. at page 213; 325 U.S. at page 235, 65 S.Ct. at page 1097. The later Williams case left a sister state free to determine whether there was domicile of one party in an 'ex parte' proceeding so as to give the court jurisdiction to enter a decree. 325 U.S. at page 230, note 6, 237, dissent 277, 65 S.Ct. 1095, 1098, 1117; Esenwein v. Commonwealth, 325 U.S. 279, 281, 65 S.Ct. 1118, 1119, 89 L.Ed. 1608. Cf. Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957. 8 Three years later a question undecided in Williams II was answered. In Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, a Florida divorce, where both parties appeared personally or by counsel, was held by Massachusetts not to be entitled to full faith or credit in that state because both parties lacked Florida domicile.11 320 Mass. 351, 358, 69 N.E.2d 801, 805. We reversed, saying: 'We believe that the decision of this Court in the Davis case and those in related situations are clearly indicative of the result to be reached here. Those cases stand for the proposition that the requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree.' 334 U.S. at pages 351 352, 68 S.Ct. at pages 1090, 1091. And cf. 334 U.S. at pages 355 356,12 68 S.Ct. at pages 1092, 1093. Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451; cf. Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561. 9 It is clear from the foregoing that, under our decisions, a state by virtue of the clause must give full faith and credit to an out-of-state divorce by barring either party to that divorce who has been personally served or who has entered a personal appearance from collaterally attacking the decree. Such an attack is barred where the party attacking would not be permitted to make a collateral attack in the courts of the granting state. This rule the Court of Appeals recognized. 301 N.Y. 13, 17, 92 N.E.2d 44, 46. It determined, however, that a 'stranger to the divorce action,' as the daughter was held to be in New York, may collaterally attack her father's Florida divorce in New York if she could have attacked it in Florida. 10 No Florida case has come to our attention holding that a child may contest in Florida its parent's divorce where the parent was barred from contesting, as here, by res judicata. State ex rel. Willys v. Chillingworth, 124 Fla. 274, 168 So. 249, on which the Court of Appeals of New York relied, does not so hold. That case was a suggestion for a writ of prohibition filed in the Supreme Court of Florida to prohibit a lower court of record from proceeding on a complaint filed by Willys' daughter that her stepmother's divorce from a former husband was fraudulently obtained. Therefore, it was alleged, her stepmother's marriage to Willys was void and the stepmother had no right or interest as widow in Willys' estate. The writ of prohibition was granted because of improper venue of the complaint. The two opinions intimated that a daughter, as heir, could represent a deceased father in an attack on a stepmother's former divorce.13 Neither of the opinions nor any of the Florida cases cited cover any situation where the doctrine of res judicata was or might be applied. That is, neither Willys nor his daughter was a party to the stepmother's divorce proceedings. If the laws of Florida should be that a surviving child is in privity with its parent as to that parent's estate, surely the Florida doctrine of res judicata would apply to the child's collateral attack as it would to the father's.14 If, on the other hand, Florida holds, as New York does in this case, that the child of a former marriage is a stranger to the divorce proceedings,15 late opinions of Florida indicate that the child would not be permitted to attack the divorce, since the child had a mere expectancy at the time of the divorce. 11 In deMarigny v. deMarigny, Fla., 43 So.2d 442, a second wife sought to have the divorce decree of the first marriage declared invalid. The Supreme Court of Florida held that the putative wife, being a stranger, without then existing interest, to the divorce decree, could not impeach it. It quoted with approval 1 Freeman on Judgments (5th ed.) 636, § 319: 'It is only those strangers who, if the judgment were given full credit and effect, would be prejudiced in regard to some pre-existing right, that are permitted to impeach the judgment. Being neither parties to the action, nor entitled to manage the cause nor appeal from the judgment, they are by law allowed to impeach it whenever it is attempted to be enforced against them so as to affect rights or interests acquired prior to its rendition.' 43 So.2d at page 447. 12 See also Gaylord v. Gaylord, Fla., 45 So.2d 507. The deMarigny case also refused to permit the putative wife to represent the state in an effort to redress an alleged fraud on the court. 13 We conclude that Florida would not permit Mrs. Muelberger to attack the Florida decree of divorce between her father and his second wife as beyond the jurisdiction of the rendering court. In that case New York cannot permit such an attack by reason of the Full Faith and Credit Clause. When a divorce cannot be attacked for lack of jurisdiction by parties actually before the court or strangers in the rendering state, it cannot be attacked by them anywhere in the Union. The Full Faith and Credit Clause forbids. 14 Reversed. 15 Mr. Justice FRANKFURTER dissents, substantially for the reasons given in the opinion of the New York Court of Appeals, 301 N.Y. 13, 92 N.E.2d 44, in light of the views expressed by him in Sherrer v. Sherrer and Coe v. Coe, 334 U.S. 343, 356, 68 S.Ct. 1097, 92 L.Ed. 1451. 16 Mr. Justice MINTON took no part in the consideration or decision of this case. 1 'In order to obtain a divorce the complainant must have resided ninety days in the State of Florida before the filing of the bill of complaint.' Fla.Stat.Ann.1943, § 65.02. This has been construed to require residence for the ninety days immediately preceding the filing date. Curley v. Curley, 144 Fla. 728, 198 So. 584. Madoline arrived in Florida from New York in June, and filed a bill of complaint on July 29. 2 U.S.Const. Art. IV, § 1: 'Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.' 28 U.S.C. § 1738, 28 U.S.C.A. § 1738: 'Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States any its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.' 3 Jackson, Full Faith and Credit—The Lawyer's Clause of the Constitution, 45 Col.L.Rev. 1. 4 Sherrer v. Sherrer, 334 U.S. 343, 355, 68 S.Ct. 1087, 1092, 1097, 92 L.Ed. 1429, and cases cited; Williams v. State of North Carolina, 317 U.S. 287, 301, 303, 63 S.Ct. 207, 214, 215, 87 L.Ed. 279; Riley v. New York Trust Co., 315 U.S. 343, 348—349, 62 S.Ct. 608, 611, 612, 86 L.Ed. 885. 5 Davis v. Davis, 305 U.S. 32, 40, 59 S.Ct. 3, 6, 83 L.Ed. 26. 6 Sherrer v. Sherrer, supra, 334 U.S. 355, 68 S.Ct. 1093. 7 Davis v. Davis, supra, 305 U.S. 41, 59 S.Ct. 6. 8 Treinies v. Sunshine Mining Co., 308 U.S. 66, 78, 60 S.Ct. 44, 50, 84 L.Ed. 85. 9 Mills v. Duryee, 7 Cranch 481, 485, 3 L.Ed. 411. 10 Williams v. North Carolina I, supra, 317 U.S. 302, 63 S.Ct. 215. 11 This was a proceeding where the former husband sought permission, under Mass.Gen.Laws (Ter.Ed.), c. 209, § 36, to convey real estate as if he were sole, because living apart from his wife for justifiable causes. 12 The dissent highlights the ruling: 'But the real question here is whether the Full Faith and Credit Clause can be used as a limitation on the power of a State over its citizens who do not change their domicile, who do not remove to another State, but who leave the State only long enough to escape the rigors of its laws, obtain a divorce, and then scurry back. To hold that this Massachusetts statute contravenes the Full Faith and Credit Clause is to say that that State has so slight a concern in the continuance or termination of the marital relationships of its domiciliaries that its interest may be foreclosed by an arranged litigation between the parties in which it was not represented.' 334 U.S. at pages 362—363, 68 S.Ct. at pages 1099, 1100. 13 124 Fla. at page 278, 168 So. at page 251: 'The rule is settled in this state that respondent, being heir to her father's estate, has a right to question the validity of his marriage to petitioner. Rawlins v. Rawlins (18 Fla. 345) and Kuehmsted v. Turnwall (103 Fla. 1180, 138 So. 775), supra.' This observation was not directed at circumstances where res judicata could bind the parent. 14 We find nothing in the Florida cases to cause us to question the application of the general rule that res judicata applies between parties both of whom appeared in prior litigation. See Sherrer v. Sherrer, 334 U.S. 343, 349, note 11, 68 S.Ct. 1087, 1089, 1092, 92 L.Ed. 1429. 15 See Note, Standing of Children to Attack Their Parents' Divorce Decree, 50 Col.L.Rev. 833.

1011

340 U.S. 590 71 S.Ct. 522 95 L.Ed. 560 UNITED STATESv.LEWIS. No. 347. Argued March 2, 1951. Decided March 26, 1951. Rehearing Denied April 30, 1951. See 341 U.S. 923, 71 S.Ct. 741. Mr. Ellis N. Slack, Washington, D.C., for petitioner. Mr. Sigmund W. David, Chicago, Ill., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 Respondent Lewis brought this action in the Court of Claims seeking a refund of an alleged overpayment of his 1944 income tax. The facts found by the Court of Claims are: In his 1944 income tax return, respondent reported about $22,000 which he had received that year as an employee's bonus. As a result of subsequent litigation in a state court, however, it was decided that respondent's bonus had been improperly computed; under compulsion of the state court's judgment he returned approximately $11,000 to his employer. Until payment of the judgment in 1946, respondent had at all times claimed and used the full $22,000 unconditionally as his own, in the good faith though 'mistaken' belief that he was entitled to the whole bonus. 2 On the foregoing facts the Government's position is that respondent's 1944 tax should not be recomputed, but that respondent should have deducted the $11,000 as a loss in his 1946 tax return. See G.C.M. 16730, XV—1 Cum. Bull. 179 (1936). The Court of Claims, however, relying on its own case, Greenwald v. United States, 57 F.Supp. 569, 102 Ct.Cl. 272, held that the excess bonus received 'under a mistake of fact' was not income in 1944 and ordered a refund based on a recalculation of that year's tax. 91 F.Supp. 1017, 1022, 117 Ct.Cl. 336. We granted certiorari, 340 U.S. 903, 71 S.Ct. 279, because this holding conflicted with many decisions of the courts of appeals, see, e.g., Haberkorn v. United States, 6 Cir., 173 F.2d 587, and with principles announced in North American Oil Consolidated v. Burnet, 286 U.S. 417, 52 S.Ct. 613, 76 L.Ed. 1197. 3 In the North American Oil case we said: 'If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.' 286 U.S. at 424, 52 S.Ct. at page 615, 76 L.Ed. 1197. Nothing in this language permits an exception merely because a taxpayer is 'mistaken' as to the validity of his claim. Nor has the 'claim of right' doctrine been impaired, as the Court of Claims stated, by Freuler v. Helvering, 291 U.S. 35, 54 S.Ct. 308, 78 L.Ed. 634, or Com'r v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752. The Freuler case involved an entirely different section of the Internal Revenue Code, and its holding is inapplicable here. 291 U.S. at 43, 54 S.Ct. at page 311, 78 L.Ed. 634. And in Com'r v. Wilcox, supra, we held that receipts from embezzlement did not constitute income, distinguishing North American Oil on the ground that an embezzler asserts no 'bona fide legal or equitable claim'. 327 U.S. at 408, 66 S.Ct. at page 549, 90 L.Ed. 752. 4 Income taxes must be paid on income received (or accrued) during an annual accounting period. Cf. I.R.C. §§ 41, 42, 26 U.S.C.A. §§ 41, 42; and see Burnet v. Sanford & Brooks Co., 282 U.S. 359, 363, 51 S.Ct. 150, 151, 75 L.Ed. 383. The 'claim of right' interpretation of the tax laws has long been used to give finality to that period, and is now deeply rooted in the federal tax system. See cases collected in 2 Mertens, Law of Federal Income Taxation, § 12.103. We see no reason why the Court should depart from this well-settled interpretation merely because it results in an advantage or disadvantage to a taxpayer.1 5 Reversed. 6 Mr. Justice DOUGLAS (dissenting). 7 The question in this case is not whether the bonus had to be included in 1944 income for purposes of the tax. Plainly it should have been because the taxpayer claimed it as of right. Some years later, however, it was judicially determined that he had no claim to the bonus. The question is whether he may then get back the tax which he paid on the money. 8 Many inequities are inherent in the income tax. We multiply them needlessly by nice distinctions which have no place in the practical administration of the law. If the refund were allowed, the integrity of the taxable year would not be violated. The tax would be paid when due; but the government would not be permitted to maintain the unconscionable position that it can keep the tax after it is shown that payment was made on money which was not income to the taxpayer. 1 It has been suggested that it would be more 'equitable' to reopen respondent's 1944 tax return. While the suggestion might work to the advantage of this taxpayer, it could not be adopted as a general solution because, in many cases, the three-year statute of limitations would preclude recovery. I.R.C. § 322(b), 26 U.S.C.A. § 322(b).

1112

340 U.S. 593 71 S.Ct. 515 95 L.Ed. 566 62 CASES, MORE OR LESS, EACH CONTAINING SIX JARSOF JAM et al.v.UNITED STATES. No. 363. Argued March 5—6, 1951. Decided March 26, 1951. Mr. Benjamin F. Stapleton, Jr., Denver, Colo., for petitioners. Mr. Robert L. Stern, Washington, D.C., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 The Federal Food, Drug, and Cosmetic Act authorizes the United States to bring a libel against any article of food which is 'misbranded' when using the channels of interstate commerce. Act of June 25, 1938, § 304, 52 Stat. 1040, 1044, 21 U.S.C. § 334, 21 U.S.C.A. § 334. The Act defines 'misbranded' in the eleven paragraphs of § 403. 52 Stat. 1047—1048, 21 U.S.C. § 343, 21 U.S.C.A. § 343. The question before us is raised by two apparently conflicting paragraphs. 2 One of them, subsection (c), comes from the original Pure Food and Drugs Act of 1906. Act of June 30, 1906, 34 Stat. 768, 770—771, § 8 (first paragraph concerning 'food,' and second proviso). It directs that a food shall be deemed 'misbranded' if it 'is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word 'imitation' and, immediately thereafter, the name of the food imitated.' The other, subsection (g), was added to the enlargement of the statute in 1938. It condemns as 'misbranded' a product which 'purports to be or is represented as a food', the ingredients of which the Administrator has standardized, if the product does not conform in all respects to the standards prescribed. The Administrator has authority to promulgate standards when in his judgment 'such action will promote honesty and fair dealing in the interest of consumers'. § 401, 52 Stat. 1046, 21 U.S.C. § 341, 21 U.S.C.A. § 341. 3 The proceeding before us was commenced in 1949 in the District Court for the District of New Mexico. By it the United States seeks to condemn 62 cases of 'Delicious Brand Imitation Jam,' manufactured in Colorado and shipped to New Mexico. The Government claims that this product 'purports' to be fruit jam, a food for which the Federal Security Administrator has promulgated a 'definition and standard of identity.' The regulation specifies that a fruit jam must contain 'not less than 45 parts by weight' of the fruit ingredient. 21 C.F.R. (1949 ed.) § 29.0. The product in question is composed of 55% sugar, 25% fruit, 20% pectin, and small amounts of citric acid and soda. These specifications show that pectin, a gelatinized solution consisting largely of water, has been substituted for a substantial proportion of the fruit required. The Government contends that the product is therefore to be deemed 'misbranded' under § 403(g). 4 On the basis of stipulated testimony the District Judge found that although the product seized did not meet the prescribed standards for fruit jam, it was 'wholesome' and 'in every way fit for human consumption.' It was found to have the appearance and taste of standardized jam, and to be used as a less expensive substitute for the standard product. In some instances, products similar to those seized were sold at retail to the public in response to telephone orders for jams, and were served to patrons of restaurants, ranches and similar establishments, who had no opportunity to learn the quality of what they received. But there is no suggestion of misrepresentation. The judge found that the labels on the seized jars were substantially accurate; and he concluded that since the product purported to be only an imitation fruit preserve and complied in all respects with subsection (c) of § 403 of the Act, it could not be deemed 'misbranded.' D.C., 87 F.Supp. 735. 5 The Court of Appeals for the Tenth Circuit, one judge dissenting, reversed this judgment. 183 F.2d 1014. It held that since the product seized closely resembled fruit jam in appearance and taste, and was used as a substitute for the standardized food, it 'purported' to be fruit jam, and must be deemed 'misbranded' notwithstanding that it was duly labeled an 'imitation.' The court therefore remanded the cause with instructions to enter a judgment for condemnation. We granted certiorari, 340 U.S. 890, 71 S.Ct. 207, because of the importance of the question in the administration of the Federal Food, Drug, and Cosmetic Act. 6 1. By the Act of 1906, 34 Stat. 768, as successively strengthened, Congress exerted its power to keep impure and adulterated foods and drugs out of the channels of commerce. The purposes of this legislation, we have said, 'touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words.' United States v. Dotterweich, 320 U.S. 277, 280, 64 S.Ct. 134, 136, 88 L.Ed. 48. This is the attitude with which we should approach the problem of statutory construction now presented. But our problem is to construe what Congress has written. After all, Congress expresses its purpose by words. It is for us to ascertain—neither to add nor to subtract, neither to delete nor to distort. 7 2. Misbranding was one of the chief evils Congress sought to stop. It was both within the right and the wisdom of Congress not to trust to the colloquial or the dictionary meaning of misbranding, but to write its own. Concededly we are not dealing here with misbranding in its crude manifestations, what would colloquially be deemed a false representation. Compare § 403(a), (b), (d), 52 Stat. 1047, 21 U.S.C. § 343(a), (b), (d), 21 U.S.C.A. § 343(a, b, d). Our concern is whether the article of food sold as 'Delicious Brand Imitation Jam' is 'deemed to be misbranded' according to § 403(c) and (g) of the Federal Food, Drug, and Cosmetic Act of 1938. 8 3. The controlling provisions of the Act are as follows: 9 'Sec. 304. (a) (as amended by the Act of June 24, 1948, 62 Stat. 582) 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, * * * 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: * * *. 10 'Sec. 401. Whenever in the judgment of the (Administrator) such action will promote honesty and fair dealing in the interest of consumers, he shall promulgate regulations fixing and establishing for any food, under its common or usual name so far as practicable, a reasonable definition and standard of identity, a reasonable standard of quality, and/or reasonable standards of fill of container: * * *. In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the (Administrator) shall, for the purpose of promoting honesty and fair dealing in the interest of consumers, designate the optional ingredients which shall be named on the label. * * * 11 'Sec. 403. A food shall be deemed to be misbranded * * * 12 '(c) If it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word 'imitation' and, immediately thereafter, the name of the food imitated. 13 '(g) If it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations as provided by section 401, unless (1) it conforms to such definition and standard, and (2) its label bears the name of the food specified in the definition and standard, and, insofar as may be required by such regulations, the common names of optional ingredients (other than spices, flavoring, and coloring) present in such food.' 14 4. By §§ 401 and 403(g), Congress vested in the Administrator the far-reaching power of fixing for any species of food 'a reasonable definition and standard of identity'. In Federal Security Administrator v. Quaker Oats Co., 318 U.S. 218, 63 S.Ct. 589, 87 L.Ed. 724, we held that this means that the Administrator may, by regulation, fix the ingredients of any food, and that thereafter a commodity cannot be introduced into interstate commerce which 'purports to be or is represented as' the food which has been thus defined unless it is composed of the required ingredients. The Administrator had prescribed the ingredients of two different species of food—'farina' and 'enriched farina.' The former was an exclusively milled wheat product; the latter included certain additional ingredients, one of which optionally could be vitamin D. The Quaker Oats Company marketed a product it called 'Quaker Farina Wheat Cereal Enriched with Vitamin D,' which did not conform to either standard. Because it contained an additional vitamin it was not 'farina'; because it lacked certain of the essential ingredients it could not be called 'enriched farina.' It was concededly a wholesome product, accurately labeled; but under the Administrator's regulations it could not be sold. We sustained the regulations, holding that Congress had constitutionally empowered the Administrator to define a food and had thereby precluded manufacturers—or courts—from determining for themselves whether some other ingredients would not produce as nutritious a product. 'The statutory purpose to fix a definition of identity of an article of food sold under its common or usual name would be defeated if producers were free to add ingredients, however wholesome, which are not within the definition.' 318 U.S. at page 232, 63 S.Ct. at page 597. 15 5. Our decision in the Quaker Oats case does not touch the problem now before us. In that case it was conceded that although the Quaker product did not have the standard ingredients, it 'purported' to be a standardized food. We did not there consider the legality of marketing properly labeled 'imitation farina.' That would be the comparable question to the one now here. 16 According to the Federal Food, Drug, and Cosmetic Act, nothing can be legally 'jam' after the Administrator promulgated his regulation in 1940, 5 Fed.Reg. 3554, 21 C.F.R. § 29.0, unless it contains the specified ingredients in prescribed proportion. Hence the product in controversy is not 'jam.' It cannot lawfully be labeled 'jam' and introduced into interstate commerce, for to do so would 'represent' as a standardized food a product which does not meet prescribed specifications. 17 But the product with which we are concerned is sold as 'imitationjam.' Imitation foods are dealt with in § 403(c) of the Act. In that section Congress did not give an esoteric meaning to 'imitation.' It left it to the understanding of ordinary English speech. And it directed that a product should be deemed 'misbranded' if it imitated another food 'unless its label bears, in type of uniform size and prominence, the word 'imitation' and, immediately thereafter, the name of the food imitated.' 18 In ordinary speech there can be no doubt that the product which the United States here seeks to condemn is an 'imitation' jam. It looks and tastes like jam; it is unequivocally labeled 'imitation jam.' The Government does not argue that its label in any way falls short of the requirements of § 403(c). Its distribution in interstate commerce would therefore clearly seem to be authorized by that section. We could hold it to be 'misbranded' only if we held that a practice Congress authorized by § 403(c) Congress impliedly prohibited by § 403(g). 19 We see no justification so to distort the ordinary meaning of the statute. Nothing in the text or history of the legislation points to such a reading of what Congress wrote. In § 403(g) Congress used the words 'purport' and 'represent'—terms suggesting the idea of counterfeit. But the name 'imitation jam' at once connotes precisely what the product is: a different, an inferior preserve, not meeting the defined specifications. Section 403(g) was designed to protect the public from inferior foods resembling standard products but marketed under distinctive names. See S.Rep.No. 361, 74th Cong., 1st Sess. 8—11. Congress may well have supposed that similar confusion would not result from the marketing of a product candidly and flagrantly labeled as an 'imitation' food. A product so labeled is described with precise accuracy. It neithers conveys any ambiguity nor emanates any untrue innuendo, as was the case with the 'Bred Spred' considered by Congress in its deliberation on § 403(g). See H.R.Rep.No. 2139, 75th Cong., 3d Sess. 5; House Hearings on H.R. 6906, 8805, 8941 and S. 5, 74th Cong., 1st Sess. 46—47. It purports and is represented to be only what it is—an imitation. It does not purport nor represent to be what it is not—the Administrator's genuine 'jam.' 20 In our anxiety to effectuate the congressional purpose of protecting the public, we must take care not to extend the scope of the statute beyond the point where Congress indicated it would stop. The Government would have us hold that when the Administrator standardizes the ingredients of a food, no imitation of that food can be marketed which contains an ingredient of the original and serves a similar purpose. If Congress wishes to say that nothing shall be marked in likeness to a food as defined by the Administrator, though it is accurately labeled, entirely wholesome, and perhaps more within the reach of the meager purse, our decisions indicate that Congress may well do so. But Congress has not said so. It indicated the contrary. Indeed, the Administrator's contemporaneous construction concededly is contrary to what he now contends. We must assume his present misconception results from a misreading of what was written in the Quaker Oats case. 21 Reversed. 22 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 23 The result reached by the Court may be sound by legislative standards. But the legal standards which govern us make the process of reaching that result tortuous to say the least. We must say that petitioner's 'jam' purports to be 'jam' when we read § 403(g) and purports to be not 'jam' but another food when we read § 403(c). Yet if petitioner's product did not purport to be 'jam' petitioner would have no claim to press and the Government no objection to raise.

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340 U.S. 622 71 S.Ct. 521 95 L.Ed. 586 HAMMERSTEINv.SUPERIOR COURT OF CALIFORNIA, IN AND FOR LOS ANGELES COUNTY et al. No. 421. Argued March 9, 1951. Decided March 26, 1951. Mr. Milton A. Rudin, Los Angeles, for petitioner. Mr. E. Loyd Saunders, Los Angeles, for respondents. PER CURIAM. 1 In this case the respondent Reggie Hammerstein, by her mother and guardian, commenced a paternity action against the petitioner in the Superior Court of California. Petitioner entered a special appearance in that court, alleging that it had no personal jurisdiction over him, as he was a New York resident. He moved to quash the service upon him in New York on the grounds that any judgment obtained against him in this proceeding would deprive him of due process. The motion to quash was denied. The superior court entered judgment for the respondent. 2 Prior to the entry of the judgment, petitioner filed a petition for a writ of prohibition in the District Court of Appeal. This petition was denied without opinion. The California Supreme Court denied his application for a hearing. After judgment, petitioner filed in the California Supreme Court a petition for a writ of certiorari to review the superior court proceedings. The California Supreme Court denied this petition without opinion. We granted certiorari, 1951, 340 U.S. 919, 71 S.Ct. 357. 3 Throughout these proceedings, petitioner preserved his federal questions, but since neither of the decisions below was accompanied by an opinion, it is not clear whether the California courts found it necessary to decide any federal question. If their judgments rest upon an adequate state ground, we, of course, will not review those judgments. If the denials of petitioner's applications for review were based upon a determination of the merits of his federal claim, the case will be ripe for our adjudication. In this circumstance, we think it advisable that we adhere to the procedure followed in Herb v. Pitcairn, 1945, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789. 4 We will continue the cause for such period as will enable counsel for the petitioner, with all convenient speed, to apply to the appropriate California courts for certificate or other expression, to show whether the judgments herein rest on adequate and independent state grounds or whether decision of the federal question was necessary to the judgments rendered. Cf. Loftus v. People of State of Illinois, 1948, 334 U.S. 804, 68 S.Ct. 1212, 92 L.Ed. 1737; State of Indiana ex rel. Anderson v. Brand, 1938, 303 U.S. 95, 58 S.Ct. 443, 82 L.Ed. 685. 5 Cause continued.

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340 U.S. 602 71 S.Ct. 508 95 L.Ed. 573 SPECTOR MOTOR SERVICE, Inc.,v.O'CONNOR. No. 132. Argued Nov. 29—30, 1950. Reargued Jan. 10, 1951. Decided March 26, 1951. Mr. Cyril Coleman, Hartford, Conn., for petitioner. Mr. Louis Weinstein, New Haven, Conn., for respondents. Mr. Justice BURTON delivered the opinion of the Court. 1 This proceeding attacks, under the Commerce Clause of the Constitution of the United States, art. 1, § 8, cl. 3, the validity of a state tax imposed upon the franchise of a foreign corporation for the privilege of doing business within the State when (1) the business consists solely of interstate commerce, and (2) the tax is computed at a nondiscriminatory rate on that part of the corporation's net income which is reasonably attributable to its business activities within the State. For the reasons hereinafter stated, we hold this application of the tax invalid. 2 Petitioner, Spector Motor Service, Inc., is a Missouri corporation engaged exclusively in interstate trucking. It instituted this action in 1942 in the United States District Court for the District of Connecticut against the Tax Commissioner of that State. It sought to enjoin collection of assessments and penalties totaling $7,795.50, which had been levied against it, for various periods between June 1, 1935, and December 31, 1940, under the Connecticut Corporation Business Tax Act of 1935 and amendments thereto.1 It asked also for a declaratory judgment as to its liability, if any, under that Act. It claimed that the tax imposed by the Act did not apply to it and that, if it did, such application violated both the Connecticut Constitution and the Commerce and Due Process Clauses of the United States Constitution, art. 1, § 8, cl. 3; Amend. 14. Finally, it alleged that it had no plain, speedy and efficient remedy at law or in equity in the state courts2 and that the collection of the taxes and penalties by the means provided in the statute would cause it irreparable injury. The District Court took jurisdiction, held that the Act did not apply to petitioner and granted the injunction sought. Spector Motor Service v. McLaughlin, 47 F.Supp. 671. The Court of Appeals for the Second Circuit, one judge dissenting, reversed. 139 F.2d 809. It held that the tax did apply to petitioner and was constitutional. We granted certiorari, 322 U.S. 720, 64 S.Ct. 1155, 88 L.Ed. 1560, but, after hearing, remanded the cause to the District Court with directions to retain the bill pending the determination of proceedings to be brought in the state court in conformity with the opinion rendered, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101. 3 Petitioner thereupon sought a declaratory judgment in the Superior Court for Hartford County, Connecticut. The Superior Court held that the tax was applicable to petitioner but invalid under the Commerce Clause. 15 Conn.Supp. 205. The Supreme Court of Errors of the State of Connecticut likewise held that petitioner was subject to the tax but it declined to pass on the effect of the Commerce Clause. Spector Motor Co. v. Walsh, 135 Conn. 37, 70, 61 A.2d 89, 105. On a motion asking it to dissolve its original injunction, the United States District Court declined to do so. 88 F.Supp. 711. It reviewed the recent decisions and held that, applying the Act to petitioner, as required by the interpretation of it by the state courts, such application violated the Commerce Clause of the United States Constitution. The Court of Appeals for the Second Circuit, acting through the same majority as on the previous occasion, reversed. One judge dissented for the reasons stated by the district judge and by the judge who had dissented on the former appeal. 181 F.2d 150. We granted certiorari because of the fundamental nature of the issue and the apparent conflict between the judgment below and previous judgments of this Court. Spector Motor Co. v. McLaughlin, 340 U.S. 806, 71 S.Ct. 49. The case was argued twice at this term. 4 The United States District Court had jurisdiction over this case in the first instance because of the uncertainty of the adequacy of a remedy in the state courts, and it did not lose that jurisdiction by virtue of the later clarification of the procedure in the courts of Connecticut. American Life Ins. Co. v. Stewart, 300 U.S. 203, 57 S.Ct. 377, 81 L.Ed. 605; Dawson v. Kentucky Distilleries & Warehouse Co., 255 U.S. 288, 41 S.Ct. 272, 65 L.Ed. 638. 5 The vital issue which remains is whether the application of the tax to petitioner violates the Commerce Clause of the Federal Constitution. We come to that issue now with the benefit of a statement from the state court of final jurisdiction showing exactly what it is that the State has sought to tax. The all-important 'operating incidence' of the tax is thus made clear.3 After full consideration and with knowledge that its statement would be made the basis of determining the validity of the application of the tax under the Commerce Clause, that court said: 6 'The tax is then a tax or excise upon the franchise of corporations for the privilege of carrying on or doing business in the state, whether they be domestic or foreign. Stanley Works v. Hackett, 122 Conn. 547, 551, 190 A. 743. Net earnings are used merely for the purpose of determining the amount to be paid by each corporation, a measure which, by the application of the rate charged, was intended to impose upon each corporation a share of the general tax burden as nearly as possible equivalent to that borne by other wealth in the state. As regards a corporation doing business both within and without the state, the intention was, by the use of a rather complicated formula, to measure the tax by determining as fairly as possible the proportionate amount of its business done in this state. There is no ground upon which the tax can be said to rest upon the use of highways by motor trucks * * *.' 135 Conn. at pages 56—57, 61 A.2d at pages 98—99. 7 The incidence of the tax is upon no intrastate commerce activities because there are none. Petitioner is engaged only in interstate transportation. Its principal place of business is in Illinois. It is authorized by the Interstate Commerce Commission to do certain interstate trucking and by the Connecticut Public Utilities Commission to do part of such interstate trucking in Connecticut. Petitioner has filed with the Secretary of State of Connecticut a certificate of its incorporation in Missouri, has designated an agent in Connecticut for service of process and has paid the state fee required in that connection. It has not been authorized by the State of Connecticut to do intrastate trucking and does not engage in it. See Terminal Taxicab Co. v. Kutz, Com'r of District of Columbia, 241 U.S. 252, 253—254, 36 S.Ct. 583, 584, 60 L.Ed. 984. 8 Petitioner's business is the interstate transportation of freight by motor truck between east and west. When a full truckload is to be shipped to or from any customer in Connecticut, petitioner's over-the-road trucks go directly to the customer's place of business. In the case of less-than-truckload shipments, pickup trucks operated by petitioner gather the freight from customers for assembly into full truckloads at either of two terminals maintained within the State. 'The pickup trucks merely act as a part of the interstate transportation of the freight.' 135 Conn. at page 44, 61 A.2d at page 93. 9 The tax does not discriminate between interstate and intrastate commerce. Neither the amount of the tax nor its computation need be considered by us in view of our disposition of the case. The objection to its validity does not rest on a claim that it places an unduly heavy burden on interstate commerce in return for protection given by the State. The tax is not levied as compensation for the use of highways4 or collected in lieu of an ad valorem property tax.5 Those bases of taxation have been disclaimed by the highest court of the taxing State. It is not a fee for an inspection or a tax on sales or use. It is a 'tax or excise' placed unequivocally upon the corporation's franchise for the privilege of carrying on exclusively interstate transportation in the State. It serves no purpose for the State Tax Commissioner to suggest that, if there were some intrastate commerce involved or if an appropriate tax were imposed as compensation for petitioner's use of the highways, the same sum of money as is at issue here might be collected lawfully from petitioner. Even though the financial burden on interstate commerce might be the same, the question whether a state may validly make interstate commerce pay its way depends first of all upon the constitutional channel through which it attempts to do so. Freeman v. Hewit, 329 U.S. 249, 67 S.Ct. 274, 91 L.Ed. 265; McLeod v. J. E. Dilworth Co., 322 U.S. 327, 64 S.Ct. 1023, 88 L.Ed. 1304. 10 Taxing power is inherent in sovereign states, yet the states of the United States have divided their taxing power between the Federal Government and themselves. They delegated to the United States the exclusive power to tax the privilege to engage in interstate commerce when they gave Congress the power 'To regulate Commerce with foreign Nations, and among the several States * * *.' U.S.Const. Art. I, § 8, cl. 3. While the reach of the reserved taxing power of a state is great, the constitutional separation of the federal and state powers makes it essential that no state be permitted to exercise, without authority from Congress, those functions which it has delegated exclusively to Congress. Another example of this basic separation of powers is the inability of the states to tax the agencies through which the United States exercises its sovereign powers. See McCulloch v. Maryland, 4 Wheat. 316, 425—437, 4 L.Ed. 579; Brown v. Maryland, 12 Wheat. 419, 445—449, 6 L.Ed. 678; Mayo v. United States, 319 U.S. 441, 63 S.Ct. 1137, 87 L.Ed. 1504. 11 The answer in the instant case has been made clear by the courts of Connecticut. It is not a matter of labels. The incidence of the tax provides the answer. The courts of Connecticut have held that the tax before us attaches solely to the franchise of petitioner to do interstate business. The State is not precluded from imposing taxes upon other activities or aspects of this business which, unlike the privilege of doing interstate business, are subject to the sovereign power of the State. Those taxes may be imposed although their payment may come out of the funds derived from petitioner's interstate business, provided the taxes are so imposed that their burden will be reasonably related to the powers of the State and nondiscriminatory. 12 This Court heretofore has struck down, under the Commerce Clause, state taxes upon the privilege of carrying on a business that was exclusively interstate in character. The constitutional infirmity of such a tax persists no matter how fairly it is apportioned to business done within the state. Alpha Portland Cement Co. v. Com. of Massachusetts, 268 U.S. 203, 45 S.Ct. 477, 69 L.Ed. 916 (measured by percentages of 'corporate excess' and net income); Ozark Pipe Line Corp. v. Monier, 266 U.S. 555, 45 S.Ct. 184, 69 L.Ed. 439 (measured by percentage of capital stock and surplus). See Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 669, et seq., 69 S.Ct. 1264, 1267, 93 L.Ed. 1613 (dissenting opinion which discusses the issue on the assumption that the activities were in interstate commerce); Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 67 S.Ct. 815, 91 L.Ed. 993; Freeman v. Hewit, supra.6 13 Our conclusion is not in conflict with the principle that, where a taxpayer is engaged both in intrastate and interstate commerce, a state may tax the privilege of carrying on intrastate business and, within reasonable limits,7 may compute the amount of the charge by applying the tax rate to a fair proportion of the taxpayer's business done within the state, including both interstate and intrastate. Interstate Oil Pipe Line Co. v. Stone, supra; International Harvester Co. v. Evatt, 329 U.S. 416, 67 S.Ct. 444, 91 L.Ed. 390; Atlantic Lumber Co. v. Com'r of Corporations and Taxation, 298 U.S. 553, 56 S.Ct. 887, 80 L.Ed. 1328. The same is true where the taxpayer's business activity is local in nature, such as the transportation of passengers between points within the same state, although including interstate travel, Central Greyhound Lines v. Mealey, 334 U.S. 653, 68 S.Ct. 1260, 92 L.Ed. 1633, or the publication of a newspaper, Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823. See also, Memphis Natural Gas Co. v. Stone, 335 U.S. 80, 68 S.Ct. 1475, 92 L.Ed. 1832. 14 In this field there is not only reason but long-established precedent for keeping the federal privilege of carrying on exclusively interstate commerce free from state taxation. To do so gives lateral support to one of the cornerstones of our constitutional law—McCulloch v. Maryland, supra. 15 The judgment of the Court of Appeals, which reversed that of the District Court, is accordingly reversed. 16 Reversed. 17 Mr. Justice CLARK, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting. 18 The Court assumes, and I think it has been clearly demonstrated, that the tax under challenge is nondiscriminatory, fairly apportioned and not an undue burden on interstate commerce. Hence, if an appellant had been engaged in an iota of activity which the Court would be willing to call 'intrastate,' Connecticut could have applied its tax to the company's interstate business in the precise form which it now seeks to employ—a tax on the privilege of doing business in Connecticut measured by the entire net income attributable to the State, even though derived from interstate commerce. 19 But solely because Spector engages in what the Court calls 'exclusively interstate' business, a different standard is applied. The Court does not ask whether the State is merely asking interstate commerce to pay its way, or whether the State in fact provides protection and services for which such commerce may fairly be charged. Nor is the Court concerned whether the tax puts interstate business at a competitive disadvantage or is likely to do so. Instead, the tax is declared invalid simply because the State has verbally characterized it as a levy on the privilege of doing business within its borders. The Court concedes, or at least appears to concede, that if the Connecticut legislature or highest court had described the tax as one for the use of highways or in lieu of an ad valorem property tax, Spector would have had to pay the same amount, calculated in the same way, as is sought to be collected here. In acknowledging this, the Court's own opinion totally refutes its protestation that the standard employed to strike down Connecticut's tax is more than a matter of labels. Spector remains free—as it has since the tax law was adopted in 1935—from paying any share of the State's expenses, and its tax-free status continues until Connecticut renames or reshuffles its tax. 20 Neither such a standard nor such a result persuades me. I agree with the well-reasoned opinions of the court below that the cases upholding fairly apportioned taxes on mixed intrastate and interstate business, and recognizing the right of states to make interstate commerce pay its way, have enfeebled—and justifiably so—the precedents which today's decision restores to full vigor. In the not too distant past, this seemed to be quite clear. In Memphis Natural Gas Co. v. Beeler, 1942, 315 U.S. 649, 62 S.Ct. 857, 86 L.Ed. 1090, a tax was upheld as being reasonably attributable to intrastate activities. But Chief Justice Stone, speaking for a unanimous Court, went further to state: 21 'In any case, even if taxpayer's business were wholly interstate commerce, a nondiscriminatory tax by Tennessee upon the net income of a foreign corporation having a commercial domicile there * * * or upon net income derived from within the state * * * is not prohibited by the commerce clause * * *.' 315 U.S. at page 656, 62 S.Ct. at page 862. 22 In light of the apparent need for clearing up the tangled underbrush of past cases, it appears that this view was delivered advisedly. Nor do I understand it to have been upset by Freeman v. Hewit, 1946, 329 U.S. 249, 67 S.Ct. 274, 91 L.Ed. 265, or Joseph v. Carter & Weekes Co., 1947, 330 U.S. 422, 67 S.Ct. 815, 91 L.Ed. 993. The former involved a gross-receipts tax capable of duplication by another state; the latter involved a gross-receipts tax rather than a net-income tax; and the opinion in each case was written by a member of the Court who joined in the Beeler decision. 23 But in any event, I would confine those decisions to their 'special facts.' Freeman v. Hewit, supra, 329 U.S. at page 252, 67 S.Ct. 278. The Connecticut tax meets every practical test of fairness and propriety enunciated in cases upholding privilege taxes on corporations doing a mixed intrastate and interstate business. These cases should govern here, for there is no apparent difference between an 'exclusively interstate' business and a 'mixed' business which would warrant different constitutional regard. There is nothing spiritual about interstate commerce. It is rarely devoid of significant contacts with the several states. Hence, this Court has long treated the problems in this field with a flexibility which the competing demands of federal and state governmental spheres have required. In the absence of federal action, this Court has been quick to recognize legitimate local interests and uphold state regulations of activities which admittedly form a part of, or impinge on, interstate commerce. See, e.g., South Carolina State Highway Dept. v. Barnwell Bros., 1938, 303 U.S. 177, 625, 58 S.Ct. 510, 82 L.Ed. 734. The same approach is hardly foreign to the field of state taxes: 24 '* * * (W)hen accommodation must be made between state and national interests, manufacture within a State, though destined for shipment outside, is not a seamless web so as to prevent a State from giving the manufacturing part detached relevance for purposes of local taxation.' Freeman v. Hewit, supra, 329 U.S. at page 255, 67 S.Ct. at page 278. 25 A similar recognition of facts is no less suited to this case. Spector qualified to do business in the State on June 11, 1934, by filing the necessary papers with the Secretary of State. It leases and utilizes terminals in Connecticut. It employs twenty-seven full-time workers in Connecticut, the payroll at New Britain amounting to $1,200 per week. It owns pickup trucks which are registered in its name with the State Motor Vehicle Department and which ply the streets of Connecticut cities. It uses heavy trucks which grind over Connecticut highways. As pointed out by the Connecticut Supreme Court of Errors, its leaseholds 26 '* * * were the means adopted by it for the successful operation of its business in this state, and no doubt they were of material service in producing the large proportion of the plaintiff's business which is attributable to Connecticut.' Spector Motor Service, Inc. v. Walsh, 1948, 135 Conn. 37, 50, 61 A.2d 89, 96. 27 To be sure, the company does not make intrastate deliveries. But if it did, its activities would differ only in that its trucks might use different streets and highways and make different stops; the protection and services rendered by the State would be the same. The local aspects of Spector's business, even though it might technically be 'exclusively interstate,' are easily as substantial as those which this Court recently found adequate to uphold parts of the Illinois occupation tax, Norton Co. v. Department of Revenue, 1951, 340 U.S. 534, 71 S.Ct. 377. They are at least as extensive as those which validated a 'privilege' tax in Memphis Natural Gas Co. v. Stone, 1948, 335 U.S. 80, 68 S.Ct. 1475, 92 L.Ed. 1832. 28 It has taken eight years and eight courts to bring this battered litigation to an end. The taxes involved go back thirteen years. It is therefore no answer to Connecticut and some thirty other states who have similar tax measures that they can now collect the same revenues by enacting laws more felicitously drafted. Because of its failure to use the right tag, Connecticut cannot collect from Spector for the years 1937 to date, and it and other states may well have past collections taken away and turned into taxpayer bonanzas by suits for refund not barred by the respective statutes of limitation. 29 Nor can the states be entirely certain that statutes recast in the light of this decision will be immune from later constitutional attack. It is at least doubtful that this statute is the only kind of measure which the Court might think would impose a tax 'on the privilege of doing interstate business.' But even assuming that the Court has promulgated a sure guide for states to follow in future enactments, the fact remains that there is no reasonable warrant for cloaking a purely verbal standard with constitutional dignity. 'Exclusively interstate commerce' receives adequate protection when state levies are fairly apportioned and nondiscriminatory. See opinion of Justice Rutledge in Interstate Oil Pipe Line Co. v. Stone, 1949, 337 U.S. 662, 69 S.Ct. 1264, 93 L.Ed. 1613. The 'protection' bestowed by today's decision is neither substantial nor deserved. 30 Objections to the fairness of Connecticut's apportionment formula have been correctly disposed of by the Court of Appeals. I would affirm its judgment. 1 'Sec. 418c. Imposition of tax. Every mutual savings bank, savings and loan association and building and loan association doing business in this state, and every other corporation or association carrying on business in this state which is required to report to the collector of internal revenue for the district in which such corporation or association has its principal place of business for the purpose of assessment, collection and payment of an income tax (with exceptions not material here) * * * shall pay, annually, a tax or excise upon its franchise for the privilege of carrying on or doing business within the state, such tax to be measured by the entire net income as herein defined received by such corporation or association from business transacted within the state during the income year and to be assessed at the rate of two per cent; * * *.' (Emphasis supplied.) Conn.Gen.Stat.Cum.Supp.1935. This section was amended in 1937 by inserting in the first italicized clause, after the words 'every other corporation or association carrying on,' the words 'or having the right to carry on'. Conn.Gen.Stat.Cum.Supp.1939, § 354e. Our conclusion is the same as to the assessments levied before and those levied after the amendment. The current revision of the statute, as subsequently amended, appears in Conn.Gen.Stat.1949, §§ 1896—1921. 2 '* * * no (United States) district court shall have jurisdiction of any suit to enjoin, suspend, or restrain the assessment, levy, or collection of any tax imposed by or pursuant to the laws of any State where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State.' 50 Stat. 738, 28 U.S.C. (1940 ed.) § 41(1). See 28 U.S.C. (1946 ed., Supp. III) § 1341, 28 U.S.C.A. § 1341. 3 State of Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 249, 85 L.Ed. 267. 4 See Capitol Greyhound Lines v. Brice, 339 U.S. 542, 70 S.Ct. 806, 94 L.Ed. 1053; Aero Mayflower Transit Co. v. Board of R.R. Com'rs, 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99; Interstate Busses Corp. v. Blodgett, 276 U.S. 245, 48 S.Ct. 230, 72 L.Ed. 551 (Conn. excise tax on the use of the highways). Cf. Memphis Natural Gas Co. v. Stone, 335 U.S. 80, 68 S.Ct. 1475, 92 L.Ed. 1832; McCarroll v. Dixie Greyhound Lines, 309 U.S. 176, 60 S.Ct. 504, 84 L.Ed. 683. 5 See Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 679, 69 S.Ct. 1264, 1273, 93 L.Ed. 1613; Cudahy Packing Co. v. Minnesota, 246 U.S. 450, 38 S.Ct. 373, 62 L.Ed. 827; Old Dominion S.S. Co. v. Com. of Virginia, 198 U.S. 299, 25 S.Ct. 686, 49 L.Ed. 1059; Postal Telegraph Cable Co. v. Adams, 155 U.S. 688, 15 S.Ct. 268, 39 L.Ed. 311. 6 The decision in Memphis Natural Gas Co. v. Beeler, 315 U.S. 649, 62 S.Ct. 857, 86 L.Ed. 1090, upheld a Tennessee tax on earnings of the taxpayer within that State where the earnings were derived from the intrastate distribution of gas by the taxpayer in a joint enterprise with the Memphis Power & Light Company. Any suggestion in that opinion as to the possible validity of such a tax if applied to earnings derived wholly from interstate commerce is not essential to the decision in the case. 7 See International Harvester Co. v. Evatt, 329 U.S. 416, 67 S.Ct. 444, 91 L.Ed. 390; Butler Bros. v. McColgan, 315 U.S. 501, 62 S.Ct. 701, 86 L.Ed. 991; Department of Treasury v. Wood Preserving Corp., 313 U.S. 62, 61 S.Ct. 885, 85 L.Ed. 1188; Ford Motor Co. v. Beauchamp, 308 U.S. 331, 60 S.Ct. 273, 84 L.Ed. 304; Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77, 58 S.Ct. 436, 82 L.Ed. 673; Hans Rees' Sons v. North Carolina, 283 U.S. 123, 51 S.Ct. 385, 75 L.Ed. 879; Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 41 S.Ct. 45, 65 L.Ed. 165.

78

340 U.S. 616 71 S.Ct. 524 95 L.Ed. 582 UNITED STATESv.MOORE et al. No. 344. Argued and Submitted Feb. 28— March 1, 1951. Decided March 26, 1951. Rehearing Denied April 30, 1951. See 341 U.S. 923, 71 S.Ct. 740. Mr. James L. Morrisson, Washington, D.C., for petitioner. Mr. Frank Cusack, Dallas, Tex., for respondents. Mr. Justice CLARK delivered the opinion of the Court. 1 The United States brings this action under the Housing and Rent Act of 1947, as amended,1 to obtain damages for violations of the Act and restitution of overceiling rentals collected. The question is whether under § 206(b) of the Act a landlord may be ordered to make restitution of overceiling rentals where a prohibitory injunction is not required because the defense-rental area was decontrolled after the violations but before the Government brought suit. 2 Respondents are landlords of housing accommodations in Dallas, Texas. Between October 1, 1947, and May 31, 1949, they demanded and received rents in excess of those allowed by the applicable maximum rent regulation2 issued under the Act. This action was begun in Federal District Court on June 29, 1949, pursuant to §§ 2053 and 206(b)4 of the Act. The complaint by its terms sought a prohibitory injunction, restitution of all overcharges, and statutory damages. Respondents moved to dismiss on the ground that on June 23, 1949, six days prior to filing of the complaint, the Housing Expediter, pursuant to action taken by the City of Dallas under § 204(j)(3) of the Act, 50 U.S.C.A.Appendix, § 1894(j)(3), terminated rent control in that city; that this act of the Expediter terminated as to Dallas all provisions of Title II of the Act including the remedial provisions under which this suit is brought; and that no saving clause was applicable. The District Court denied the motion. Respondents did not demand a jury. A trial to the court concluded in a judgment for the Government, allowing statutory damages of $50 for a wilful violation and ordering restitution to the tenant of all overcharges received. On appeal by respondents the Court of Appeals for the Fifth Circuit reversed. 1950, 182 F.2d 332. It held that the Government has a right of action solely for statutory damages under § 205 and remanded for new trial on this issue. A dismissal was directed insofar as the complaint seeks injunctive relief and restitution. The Government, asserting conflict with Porter v. Warner Holding, Co., 1946, 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332, petitioned for review here only of the court's denial of restitution. We granted certiorari. 1950, 340 U.S. 890, 71 S.Ct. 206.5 3 The Court of Appeals recognized that restitution of overceiling rentals may be ordered as ancillary to injunctive relief against violations of the Act or regulations. However, as petitioner conceded that it has no right to an injunction when rent control has been lawfully terminated, the court concluded that 'there remained no proceeding of which equity would have jurisdiction to which restitution could be adjunctive' and that restitution 'was neither appropriate nor issuable'. 182 F.2d at page 336. 4 Petitioner asserts that it is entitled to the remedy of restitution, independently of injunctive relief, under § 206(b) of the Act. This section provides that, if in the judgment of the Housing Expediter there is an actual or threatened violation of the Act or any regulation, 'the United States may make application to any * * * court of competent jurisdiction for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order shall be granted without bond.' (Emphasis supplied.) It is petitioner's contention that the italicized language authorizes the relief sought. 5 Both parties rely, as did the Court of Appeals, on the decision of this Court in Porter v. Warner Holding Co., supra, which construed § 205(a) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 925(a). This provision was the source of § 206(b) of the 1947 Act, and the two sections are for present purposes identical. The complaint in the Warner case sought injunctive relief against violations and restitution of overcharges. The lower courts allowed the injunction but denied restitution. This Court reversed, concluding that an order of restitution was a proper 'other order.' This interpretation was required to give effect to the congressional purpose to authorize whatever order within the inherent equitable power of the District Court may be considered appropriate and necessary to enforce compliance with the Act. The Court said that the section 'anticipates orders of that character, although it makes no attempt to catalogue the infinite forms and variations which such orders might take. * * * In framing such remedies * * * courts must act primarily to effectuate the policy of the Emergency Price Control Act and to protect the public interest while giving necessary respect to the private interests involved. The inherent equitable jurisdiction which is thus called into play clearly authorizes a court, in its discretion, to decree restitution of excessive charges in order to give effect to the policy of Congress.' 328 U.S. at page 400, 66 S.Ct. at page 1090, 90 L.Ed. 1332. Thus an equitable decree of restitution would be within the section if it was reasonably appropriate and necessary to enforce compliance with the Act and effectuate its purposes. 6 Adhering to the broad ground of interpretation of the 'other orders' provision adopted in the Warner case, we think the order for restitution entered by the District Court in this action was permissible under § 206(b). Such a decree clearly enforces compliance with the Act and regulations for the period in which respondents demanded and received excess rentals. If the provision in § 206(b) for orders enforcing compliance had been intended merely to insure subsequent obedience to rent regulations while in effect in a defense-rental area, it would have been unnecessary to authorize orders for other than injunctive relief since the latter remedy is wholly adequate to secure prospective compliance. See Ebeling v. Woods, 8 Cir., 1949, 175 F.2d 242, 244.6 7 Two contentions advanced by respondents require brief consideration. It is argued that termination of rent control in respondents' defense-rental area ended the legal effect of §§ 205 and 206 under which the action was instituted. Respondents rely here upon the literal provision of § 204(j)(3) that 'The Housing Expediter shall terminate the provisions of this title' upon the taking of appropriate action by the city. We think a sufficient answer is s 204(f), set out in the margin;7 it provides for the survival of rights and liabilities incurred prior to the expiration of the title on either the date specified by Congress in the Act or such date as the President or Congress might later determine. 8 Respondents also contend that the trial of this proceeding as an action for equitable relief denied their constitutional right to a jury trial. No demand for a jury trial was made as required by Federal Rule of Civil Procedure 38, 28 U.S.C.A. and, so far as this record shows, any right to a jury trial was waived. 9 The judgment of the Court of Appeals on respondents' appeal must be reversed and the cause remanded to that court for further proceedings in conformity with this opinion. 10 Reversed. 11 The CHIEF JUSTICE and Mr. Justice DOUGLAS would affirm the judgment on the opinion of the Court of Appeals. 182 F.2d 332. 12 Mr. Justice BLACK and Mr. Justice FRANKFURTER would affirm the judgment of the Court of Appeals. 1 61 Stat. 193, as amended, 50 U.S.C.App.(Supp. III) § 1881 et seq., 50 U.S.C.A.Appendix, § 1881 et seq. 2 Controlled Housing Rent Regulation, as amended, 12 Fed.Reg. 4331; 13 Fed.Reg. 1861; 14 Fed.Reg. 1571. 3 61 Stat. 199, as amended, 50 U.S.C.App.(Supp. III) § 1895, 50 U.S.C.A.Appendix, § 1895. 4 61 Stat. 199, as amended, 50 U.S.C.App.(Supp. III) § 1896(b), 50 U.S.C.A.Appendix, § 1896(b). 5 On cross-appeal by petitioner from the trial court's order allowing statutory damages for less than the amount, of the established overcharges, the Court of Appeals sustained petitioner's contention. 5 Cir., 1950, 182 F.2d 336. Respondents have not challenged this decision here. 6 It has uniformly been the view of the lower federal courts that restitution of overcharges may be ordered under § 206(b) of the 1947 Act and like provisions, whether or not injunctive relief is sought or is permissible at the time of the order. Woods v. Wayne, 4 Cir., 1949, 177 F.2d 559; Creedon v. Randolph, 5 Cir., 1948, 165 F.2d 918; Jackson v. Woods, 5 Cir., 1950, 182 F.2d 338; Bowles v. Skaggs, 6 Cir., 1945, 151 F.2d 817; Warner Holding Co. v. Creedon, 8 Cir., 1948, 166 F.2d 119; Ebeling v. Woods, 8 Cir., 1949, 175 F.2d 242; Woods v. Richman, 9 Cir., 1949, 174 F.2d 614; Woods v. Gochnour, 9 Cir., 1949, 177 F.2d 964; Emery v. United States, 9 Cir., 1951, 186 F.2d 900; United States v. Mashburn, D.C.W.D.Ark.1949, 85 F.Supp. 968; United States v. Cowen's Estate, D.C.D.Mass.1950, 91 F.Supp. 331; See Woods v. Wolfe, 3 Cir., 1950, 182 F.2d 516, 518—519. Only the court below in this proceeding has concluded that restitution must be denied in such cases because an injunction could not have been obtained when the complaint was filed. Compare Ebeling v. Woods, supra, and Woods v. Richman, supra, with Miller v. United States, 5 Cir., 1951, 186 F.2d 937. 7 'The provisions of this title shall cease to be in effect at the close of June 30, 1950, or upon the date of a proclamation by the President or upon the date specified in a concurrent resolution by the two Houses of the Congress, declaring that the further continuance of the authority granted by this title is not necessary because of the existence of an emergency, whichever date is the earlier; except that as to rights or liabilities incurred prior to such termination date, the provisions of this title and regulations, orders, and requirements thereunder shall be treated as still remaining in force for the purpose of sustaining any proper suit or action with respect to any such right or liability.' 63 Stat. 24, 50 U.S.C.App. (Supp. III) 1894(f), 50 U.S.C.A.Appendix, § 1894(f). The section has subsequently been amended in minor respects.

01

341 U.S. 37 71 S.Ct. 547 95 L.Ed. 726 Colonel ROBERTSON, President, Army Review Boardv.CHAMBERS. No. 295. Argued March 1, 1951. Decided April 9, 1951. Mr. Oscar H. Davis, Washington, D.C., for petitioner. Mr. H. Russell Bishop, Washington, D.C., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Respondent, a former captain in the Army, was honorably discharged for physical disability and without retirement pay, as the result of a decision by an Army Retiring Board. Respondent applied to the Army Disability Review Board for review of that action. The Review Board held that respondent was not entitled to retirement pay. Respondent, having requested a rehearing, was allowed to examine the record on which the rehearing would be based. He discovered that the record contained certain medical reports of the Veterans Administration concerning his condition. Respondent requested the Review Board to remove those reports from the record. The Review Board refused. Respondent thereupon instituted this mandamus proceeding seeking a mandatory injunction directing the President of the Review Board to exclude those reports from the record. The District Court dismissed the complaint. The Court of Appeals reversed. 87 U.S.App.D.C. 91, 183 F.2d 144. The case is here on certiorari, 340 U.S. 889, 71 S.Ct. 205. 2 The principal question relates to the provision in § 302(a) of the Servicemen's Readjustment Act of 1944, 58 Stat. 287, 59 Stat. 623, 38 U.S.C. § 693i(a), 38 U.S.C.A. § 693i(a), which describes the scope of review by the Review Board as follows: 'Such review shall be based upon all available service records relating to the officer requesting such review, and such other evidence as may be presented by such officer.' Respondent contends that the term 'service records' means the record of the service which the military man has rendered from the time of his entry into the service until his discharge. That was the view of the Court of Appeals. We, however, think otherwise. 3 Section 302(a) grants the Review Board 'the same powers as exercised by, or vested in, the board whose findings and decision are being reviewed.' That board is the Retiring Board which R.S. § 1248, 10 U.S.C. § 963, 10 U.S.C.A. § 963, says may 'inquire into and determine the facts touching the nature and occasion of the disability of any officer who appears to be incapable of performing the duties of his office, and shall have such powers of a court-martial and of a court of inquiry as may be necessary for that purpose.' 4 These powers of the Retiring Board have been given a wide reach, so that the nature and cause of the disability may be ascertained. Their broad character will not, of course, override the specific provision of § 302(a) to the effect that the 'review shall be based upon all available service records', etc. But the nature of the powers granted under R.S. § 1248 has relevance to the arguments pressed on us for and against reading 'service records' narrowly. 5 The powers granted the Retiring Board have been construed by the regulations in a liberal fashion, not in a narrow and stifling way. Thus the Adjutant General is required to furnish the board with the 'originals or certified copies of the complete medical history, and of all other official records affecting the health had physical condition of the officer.'1 The oral examination of the officer is granted for the purpose 'of making full discovery of all facts as to his condition.'2 These hearings are not contests; they are inquiries concerning disability. The purpose is to get at the truth of the matter.3 6 The medical history following the retirement will often be of great importance to the Review Board, since the statute of limitations which governs review is a long one. Requests for review may be made within 15 years after the retirement or after June 22, 1944, whichever is the later. § 302(b). Medical history may therefore be highly pertinent to the inquiry. Plainly the officer is granted authority under § 302(a) to introduce such evidence; and it is certain he will do so if it is favorable. We hesitate at a construction of the statute which forecloses the Army from considering the evidence when it is unfavorable.4 Yet that would be the result if we construed 'service records' narrowly. We think it would be more in harmony with the nature of the procedure, the purpose of the inquiry, and the powers granted the Review Board to construe 'service records' broadly enough to include these medical reports. 7 The reports in issue were official government reports transmitted to the Army and incorporated in that department's files. They therefore became a part of the record of the officer pertaining to his service. We conclude that they are 'service records' within the meaning of § 302(a). 8 Reversed. 1 Army Reg. 605—250, Mar. 28, 1944, par. 3a. 2 Id. at par. 21. 3 The regulations governing the Disability Review Board have incorporated this broad construction of the powers granted. Thus the Adjutant General is to provide that Board with 'all available Department of the Army and/or other records pertaining to the health and physical condition of the applicant.' 32 CFR § 581.1(a)(2)(iii). And see note 4 infra. 4 The regulations promulgated to govern Disability Review Board proceedings have not restricted the inquiry by such a cramped construction. They authorize the Board 'to receive additional evidence bearing on the causes and service-connection of (the disability)' without limitation. 32 CFR § 581.1(a)(1)(iii). Indeed they empower the Board to make its own physical examination of the retired officer at the time of the hearing. 32 CFR § 581.1(b)(2)(v).

12

341 U.S. 6 71 S.Ct. 534 95 L.Ed. 702 AMERICAN FIRE & CASUALTY CO.v.FINN. No. 252. Argued Dec. 7, 1950. Decided April 9, 1951. Mr. David Bland, Houston, Tex., for petitioner. Mr. Bailey P. Loften, Houston, Tex., for respondent. Mr. Justice REED delivered the opinion of the Court. 1 These proceedings present for determination the proper federal rule to be followed on a motion by a defendant to vacate a United States District Court judgment, obtained by a plaintiff after removal from a state court by defendant, and to remand the suit to the state court. Petitioner, the movant, urges that 28 U.S.C. § 1441, 28 U.S.C.A. § 1441 did not permit this removal and therefore the District Court was without jurisdiction to render the judgment which respondent, the plaintiff below, seeks to retain. The issue arose in this way: 2 Petitioner, the American Fire and Casualty Company, a Florida corporation, and its codefendant, the Indiana Lumbermens Mutual Insurance Company, an Indiana corporation, removed, in accordance with 28 U.S.C. § 1446, 28 U.S.C.A. § 1446, a suit brought by respondent Finn in a Texas state court against the two corporations and an individual, Reiss, local agent of both corporations and a resident of Texas. The suit was for a fire loss on Texas property suffered by respondent, a resident of Texas. Respondent tried to have the case remanded before trial but was unsuccessful. After special issues were found by the jury, judgment was entered against petitioner for the amount of insurance claimed and costs, and in favor of the other two defendants. The District Court denied the motion to vacate the judgment and the Court of Appeals affirmed. 181 F.2d 845. The latter court concluded there were causes of action against the foreign insurance companies 'separate and independent' from that stated against the resident individual. Since the causes against the companies would have been removable if sued on alone, the entire suit was removable. 28 U.S.C. § 1441(c), 28 U.S.C.A. § 1441(c). That ruling required consideration of the changes concerning removal made by § 1441(c), which superseded 28 U.S.C. (1946 ed.) § 71. The Court of Appeals said: 3 'The difference, if any, between separable controversies under the old statute and separate and independent claims under the new one is in degree, not in kind. It is difficult to distinguish between the two concepts, but it is not necessary to attempt it in a case like this, which would be removable under either statute.' 181 F.2d 846. 4 Consideration of the ruling on the motion to vacate the judgment requires a determination of whether the suit contained separate and independent causes of action under § 1441(c), and, if the conclusion is that it did not, a ruling on the effect of a judgment after a removal without right, initiated by the party against whom the judgment was ultimately rendered. As prompt, economical and sound administration of justice depends to a large degree upon definite and finally accepted principles governing important areas of litigation, such as the respective jurisdictions of federal and state courts, we granted certiorari. 340 U.S. 849, 71 S.Ct. 79. See also Mayflower Industries v. Thor Corporation, 3 Cir., 184 F.2d 537; Bentley v. Halliburton Oil Well Cementing Co., 5 Cir., 174 F.2d 788. I. 5 The removal took place after September 1, 1948, the effective date of the revision of the laws relating to judicial procedure. 62 Stat. 992, 28 U.S.C.A. note preceding § 1. The former provision governing removal, 28 U.S.C. (1946 ed.) § 71, read: 6 'And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district.' 7 The new section, 28 U.S.C. § 1441(c), 28 U.S.C.A. § 1441(c), states: 8 '(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.' 9 One purpose of Congress in adopting the 'separate and independent claim or cause of action' test for removability by § 1441(c) of the 1948 revision in lieu of the provision for removal of 28 U.S.C. (1946 ed.) § 71, was by simplification to avoid the difficulties experienced in determining the meaning of that provision.1 Another and important purpose was to limit removal from state courts.2 Section 71 allowed removal when a controversy was wholly between citizens of different states and fully determinable between them. Such a controversy was said to be 'separable.' The difficulties inherent in old § 71 show plainly in the majority and concurring opinions in Pullman Co. v. Jenkins, 305 U.S. 534, 542, 59 S.Ct. 347, 351, 83 L.Ed. 334. See note, 41 Harv.L.Rev. 1048. Often plaintiffs in state actions joined other state residents as defendants with out-of-state defendants so that removable controversies wholly between citizens of different states would not be pleaded. The effort frequently failed, see Pullman Co. v. Jenkins, 305 U.S. at page 538, 59 S.Ct. at page 349, and removal was allowed. Our consideration of the meaning and effect of 28 U.S.C. § 1441(c), 28 U.S.C.A. § 1441(c) should be carried out in the light of the congressional intention. Cf. Pullman Co. v. Jenkins, supra, 305 U.S. at page 547, 59 S.Ct. at page 353; Phillips v. United States, 312 U.S. 246, 250, 61 S.Ct. 480, 483, 85 L.Ed. 800. 10 The Congress, in the revision, carried out its purpose to abridge the right of removal.3 Under the former provision, 28 U.S.C. (1946 ed.) § 71, separable controversies authorized removal of the suit. 'Controversy' had long been associated in legal thinking with 'case.' It covered all disputes that might come before federal courts for adjudication. In § 71 the removable 'controversy' was interpreted as any possible separate suit that a litigant might properly bring in a federal court so long as it was wholly between citizens of different states. So, before the revision, when a suit in a state court had such a separate federally cognizable controversy, the entire suit might be removed to the federal court.4 11 A separable controversy is no longer an adequate ground for removal unless it also constitutes a separate and independent claim or cause of action. Compare Barney v. Latham, 103 U.S. 205, 212, 26 L.Ed. 514, with the revised § 1441. Congress has authorized removal now under § 1441(c) only when there is a separate and independent claim or cause of action.5 Of course, 'separate cause of action' restricts removal more than 'separable controversy.' In a suit covering multiple parties or issues based on a single claim, there may be only one cause of action and yet be separable controversies.6 The addition of the word 'independent' gives emphasis to congressional intention to require more complete disassociation between the federally cognizable proceedings and those cognizable only in state courts before allowing removal. 12 The effectiveness of the restrictive policy of Congress against removal depends upon the meaning ascribed to 'separate and independent * * * cause of action'. § 1441. Although 'controversy' and 'cause of action' are treated as synonymous by the courts in situations where the present considerations are absent,7 here it is obvious different concepts are involved.8 We are not unmindful that the phrase 'cause of action' has many meanings.9 To accomplish its purpose of limiting and simplifying removal, Congress used the phrase 'cause of action' in an accepted meaning to obtain that result. By interpretation we should not defeat that purpose. 13 In a suit turning on the meaning of 'cause of action,' this Court announced an accepted description. Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069.10 This Court said, 274 U.S. at page 321, 47 S.Ct. at page 602: 14 'Upon principle, it is perfectly plain that the respondent suffered but one actionable wrong and was entitled to but one recovery, whether his injury was due to one or the other of several distinct acts of alleged negligence or to a combination of some or all of them. In either view, there would be but a single wrongful invasion of a single primary right of the plaintiff, namely, the right of bodily safety, whether the acts constituting such invasion were one or many, simple or complex. 15 'A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show.' 16 See Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 443, 64 S.Ct. 208, 215, 88 L.Ed. 149.11 Considering the previous history of 'separable controversy,' the broad meaning of 'cause of action,' and the congressional purpose in the revision resulting in 28 U.S.C. § 1441(c), 28 U.S.C.A. § 1441(c), we conclude that where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c).12 17 In making this determination we look to the plaintiff's pleading, which controls. Pullman Co. v. Jenkins, 305 U.S. 534, 538, 59 S.Ct. 347, 349, 83 L.Ed. 334.13 The single wrong for which relief is sought is the failure to pay compensation for the loss on the property. Liability lay among three parties, but it was uncertain which one was responsible. Therefore, all were joined as defendants in one petition. First, facts were stated that made the petitioner, American Fire and Casualty Company, liable. It was alleged that the company, through its agent Reiss, insured the property destroyed for the amount claimed, that Reiss gave plaintiff credit for the premium, controlled her insurance, agreed to keep the property insured at all times. She further alleged that the Company issued the policy but Reiss retained the document in his possession and refused to deliver it after the fire. Then followed a prayer for judgment against the Company. 18 The next portion of the complaint stated, in the alternative, an obligation by the Indiana Lumbermens Insurance Company to pay the same loss. The policy with Lumbermens was attached as an exhibit, and allegations concerning Reiss similar to those in the first portion were made. A second prayer was added for recovery against Lumbermens. 19 The last portion of the complaint, alternative to both the preceding, alleged that Reiss, American Fire and Casualty Company and Indiana Lumbermens Insurance Company were jointly and severally liable for the loss. Reiss was said to be plaintiff's insurance broker, responsible for keeping her house insured. Plaintiff alleged Reiss insured her property with Lumbermens and never notified her of any cancellation or expiration. Reiss was alleged to have agreed later to insure her property with American, to have promised after the fire to deliver the policy, to have failed to make the promised delivery. She claimed that Reiss was responsible for 'anything that results in the defeat of her recovery on either one of said policies' and that he was 'the direct cause of the condition, of said insurance, and the proximate cause of all of plaintiff's troubles and confusion.' The pleader then asserted: 20 'That such acts and conduct on the part of said Joe Reiss as agent for the said two insurance companies, renders said Joe Reiss, agent, the Joe Reiss Insurance Agency and the American Fire and Casualty Insurance Company of Orlando, Florida, and the Indiana Lumbermens Mutual Insurance Company of Indianapolis, Indiana, jointly and severally liable for the full amount of the damages that plaintiff has suffered by reason of said fire in the amount of Five Thousand Dollars.' 21 The petition concluded with a prayer for joint and several judgment against all three defendants, based on the third set of allegations. 22 The past history of removal of 'separable' controversies, the effort of Congress to create a surer test, and the intention of Congress to restrict the right of removal leads us to the conclusion that separate and independent causes of action are not stated. The facts in each portion of the complaint involve Reiss, the damage comes from a single incident. The allegations in which Reiss is a defendant involve substantially the same facts and transactions as do the allegations in the first portion of the complaint against the foreign insurance companies. It cannot be said that there are separate and independent claims for relief as § 1441(c) requires. Therefore, we conclude there was no right to removal. II. 23 There are cases which uphold judgments in the district courts even though there was no right to removal.14 In those cases the federal trial court would have had original jurisdiction of the controversy had it been brought in the federal court in the posture it had at the time of the actual trial of the cause or of the entry of the judgment. That is, if the litigation had been initiated in the federal court on the issues and between the parties that comprised the case at the time of trial or judgment, the federal court would have had cognizance of the case. This circumstance was relied upon as the foundation of the holdings.15 The defendant who had removed the action was held to be estopped from protesting that there was no right to removal. Since the federal court could have had jurisdiction originally, the estoppel did not endow it with a jurisdiction it could not possess. 24 In this case, however, the District Court would not have had original jurisdiction of the suit, as first stated in the complaint, because of the present on each side of a citizen of Texas. 28 U.S.C. § 1332, 28 U.S.C.A. § 1332. The posture of this case even at the time of judgment also barred federal jurisdiction. A Texas citizen was and remained a party defendant. The trial court judgment, after decreeing recovery against American Fire and Casualty Company on the jury's verdict, added, over American's objection, 25 'It Is Further Ordered, Adjudged and Decreed that the Plaintiff take nothing as against Defendants, Indiana Lumbermens Mutual Insurance Company and Joe Reiss, individually and doing business as the Joe Reiss Insurance Agency, and that such Defendants go hence without day with their costs.' 26 By this decree the merits of the litigation against Reiss were finally adjudicated.16 The request of respondent to dismiss Reiss after the judgment was not acted upon by the trial court. 27 The jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation or by prior action or consent of the parties.17 To permit a federal trial court to enter a judgment in a case removed without right from a state court where the federal court could not have original jurisdiction of the suit even in the posture it had at the time of judgment, would by the act of the parties work a wrongful extension of federal jurisdiction and give district courts power the Congress has denied them. 28 The judgment of the Court of Appeals must be reversed and the cause remanded to the District Court with directions to vacate the judgment entered and, if no further steps are taken by any party to affect its jurisdiction,18 to remand the case to the District Court of Harris County, Texas, with costs against petitioner. State of Tennessee v. Union & Planters Bank, 152 U.S. 454, 464, 14 S.Ct. 654, 657, 38 L.Ed. 511. 29 It is so ordered. 30 Judgment of Court of Appeals reversed, and cause remanded with directions. 31 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice MINTON concur, dissenting. 32 I think petitioner, having asked for and obtained the removal of the case to the Federal District Court, and having lost its case in that court, is now estopped from having it remanded to the state court. 33 Mere irregularity in the removal may be waived where the suit might originally have been brought in the Federal District Court. Baggs v. Martin, 179 U.S. 206, 21 S.Ct. 109, 45 L.Ed. 155.1 That was a suit against a receiver which could have been instituted in the federal court. It was removed there by the receiver and judgment rendered against him. The court did not stop to inquire whether there had been a compliance with the removal provisions, holding that under those circumstances it did not lie in the mouth of the receiver to deny the jurisdiction he had sought. And see Toledo, St. L. & W.R. Co. v. Perenchio, 7 Cir., 205 F. 472; Handley-Mack Co. v. Godchaux Sugar Co., 6 Cir., 2 F.2d 435, 437; Bailey v. Texas Co., 2 Cir., 47 F.2d 153, 155. 34 The suit against petitioner could have been brought originally in the Federal District Court, since there was diversity of citizenship and the claim under the fire insurance policy was over $3,000. The requirements of diversity of citizenship and jurisdictional amount may not, of course, be waived. But a different provision of the statute is involved here. It is § 1441(c) of the Judicial Code which reads: 35 'Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.' 28 U.S.C. § 1441(c), 28 U.S.C.A. § 1441(c). 36 The argument is that the suit against Reiss, the individual defendant, could not be removed since both he and the plaintiff were residents of Texas, and that the suits against the two nonresident corporations could not be removed because the claim asserted against them was not 'separate and independent.' 37 But the judgment sought to be reviewed here was rendered by the District Court only against petitioner who could have been sued there originally2 and who invoked the jurisdiction of the District Court. As the court observed in the closely analogous case of Bailey v. Texas Co., supra, 47 F.2d at page 155, 'the resulting situation is equivalent to initiating an action in the District Court in which the defendant appears.'3 I think it is abusive of the interests of justice when the challenge now made is raised to the dignity of a jurisdictional question. Any requirement of § 1441(c) that was not met in this case rose to no level higher than an irregularity, so far as petitioner is concerned. Both Reiss and the other nonresident defendant have been dismissed from the case. The only judgment before the Court is one which satisfies the requirements of original jurisdiction. Petitioner—the one who invoked federal jurisdiction and as a result suffered the consequences of this judgment—should not now be heard to complain. Baggs v. Martin, supra, should govern this case. 1 See Reviser's Note with H.R. Rep. No. 308, 80th Cong., 1st Sess., April 25, 1947, to accompany the revision bill, H.R. 3214. (U.S.C.Cong.Serv., for Title 28, 1948, pp. 1697, 1699, 1855.) The Reviser's Note is reprinted at 28 U.S.C. § 1441, 28 U.S.C.A. § 1441. See United States v. National City Lines, 337 U.S. 78, 81, 69 S.Ct. 955, 956, 959, 93 L.Ed. 1226. 2 28 U.S.C. § 1441, 28 U.S.C.A. § 1441, Reviser's Note: 'Subsection (c) permits the removal of a separate cause of action but not of a separable controversy unless it constitutes a separate and independent claim or cause of action within the original jurisdiction of United States District Courts. In this respect it will somewhat decrease the volume of Federal litigation.' Congress had enacted other restrictions on removal in special acts such as the Federal Employer's Liability Act. 28 U.S.C. (1946 ed.) § 71; 28 U.S.C. § 1445, 28 U.S.C.A. § 1445. 3 Care was taken to maintain opportunity for state trial of non-federal matters. 28 U.S.C. § 1441, 28 U.S.C.A. § 1441, Reviser's Note: 'Rules 18, 20, and 23 of the Federal Rules of Civil Procedure permit the most liberal joinder of parties, claims, and remedies in civil actions. Therefore there will be no procedural difficulty occasioned by the removal of the entire action. Conversely, if the court so desires, it may remand to the State court all nonremovable matters.' See McFadden v. Grace Line, 82 F.Supp. 494. 4 Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514, is a good illustration. This Court held that there was separable controversies in a state court suit against a local corporation and nonresident individuals for an accounting on land sales. One group of sales was by the nonresidents before conveyance to the corporation; the other by the corporation after conveyance. See also Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334. There a suit was instituted in a California court for damages for a conductor's death caused by a drunken Pullman passenger. The defendants were the passenger (a Californian), the railroad (a Kentucky corporation, allegedly negligent for letting the passenger pass its gates), the Pullman Company (an Illinois corporation), and its porter (a Californian), the latter two allegedly negligent for letting the passenger on the Pullman. Had the porter not been a Californian, the Pullman Company could have removed on the ground of a separable controversy because no facts were alleged as to other defendants' negligence upon which its liability could be predicated. 305 U.S. at page 539, 59 S.Ct. at page 349. 'All persons interested in a separable controversy must be able to remove.' Discussed in Moore's Commentary on the U.S. Judicial Code, p. 247. 5 We think the 'claim' set out in a petition states the facts upon which the 'cause of action' rests. For the purpose of removal, the words cover the same allegations. Since the Pullman case and the Barney case do not contain separate and independent causes of action, they would not now be removable under 28 U.S.C. § 1441, 28 U.S.C.A. § 1441. 6 See note 4, supra. 7 E.g., Tolbert v. Jackson, 5 Cir., 99 F.2d 513, 514 (a valuable case) Des Moines Elevator & Grain Co. v. Underwriters Grain Ass'n, 8 Cir., 63 F.2d 103; Nichols v. Chesapeake & Ohio R. Co., 6 Cir., 195 F. 913. 8 See note 1, supra. 9 United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67 69, 53 S.Ct. 278, 280, 281, 77 L.Ed. 619; Bemis Bros. Bag. Co. v. United States, 289 U.S. 28, 33, 53 S.Ct. 454, 456, 77 L.Ed. 1011; Hurn v. Oursler, 289 U.S. 238, 247, 53 S.Ct. 586, 590, 77 L.Ed. 1148. 10 There a sailor filed a libel in admiralty and recovered for negligence in failing to provide a safe place to work, in failing to use reasonable care to avoid striking libellant, for unseaworthiness, incompetency of officers and failure to instruct plaintiff, an inexperienced sailor, in his duties. Later he sought further damages for the same accident, for negligence of officers and employees in the operation of the vessel. Recovery was denied in the second suit on the ground that it was the same cause of action as the first. 11 In Chase Securities Corp. v. Donaldson, 325 U.S. 304, 311, 65 S.Ct. 1137, 1141, 89 L.Ed. 1628, we accepted a like state rule: 'The state courts seem to have treated the complaint as setting up several bases for a single common-law cause of action in tort which had been remanded for retrial at the time the new statute was enacted. We must regard it in that same light.' So in Hurn v. Oursler, 289 U.S. 238, 246, 53 S.Ct. 586, 590, 77 L.Ed. 1148: 'The bill alleges the violation of a single right, namely, the right to protection of the copyrighted play. And it is this violation which constitutes the cause of action. Indeed, the claims of infringement and unfair competition so precisely rest upon identical facts as to be little more than the equivalent of different epithets to characterize the same group of circumstances. The primary relief sought is an injunction to put an end to an essentially single wrong, however differently characterized, not to enjoin distinct wrongs constituting the basis for independent causes of action.' See Behrens v. Skelly, 3 Cir., 173 F.2d 715, 719; Cope v. Anderson, 331 U.S. 461, 466, 67 S.Ct. 1340, 1342, 91 L.Ed. 1602. 12 See a discussion of cause of action in code pleading. Clark on Code Pleading (2d ed.), 137 et seq. 13 Moore's Commentary on the U.S. Judicial Code, supra, pp. 251—252: 'But where the plaintiff joins two or more defendants to recover damages for one injury, and even though he charges them with joint and several liability or only several liability, or charges them with liability in the alternative, there is no joinder of separate and independent causes of action within the meaning of § 1441(c). At most a separable controversy is presented where several or alternative liability is alleged, and is no longer the basis for removal.' Compare the opinion in Bentley v. Halliburton Oil Well Cementing Co., D.C., 81 F.Supp. 323, with the reversing opinion in 5 Cir., 174 F.2d 788. 14 Baggs v. Martin, 179 U.S. 206, 21 S.Ct. 109, 45 L.Ed. 155; Toledo v. Perenchio, 2 Cir., 205 F. 472; Handley-Mack v. Godchaux, 6 Cir., 2 F.2d 435; Bailey v. Texas Co., 2 Cir., 47 F.2d 153. 15 E.g., in Baggs v. Martin, 179 U.S. 206, 21 S.Ct. 109, 45 L.Ed. 155, the federal court had jurisdiction over the property in the hands of the receiver and it was not a proceeding wherein 'mere consent, or even voluntary action by the parties, * * * (conferred) jurisdiction upon a court which would not have possessed it without such consent or action.' 179 U.S. at page 209, 21 S.Ct. at page 110. 16 See Burton-Lingo Co. v. Lay, Tex.Civ.App., 142 S.W.2d 448; Spann Brothers Anto Supply Co. v. Miles, Tex.Civ.App., 135 S.W.2d 1016, 1017. 17 People's Bank of Belleville v. Calhoun, 102 U.S. 256, 260 261, 26 L.Ed. 101: 'It needs no citation of authorities to show that the mere consent of parties cannot confer upon a court of the United States the jurisdiction to hear and decide a case. If this were once conceded, the Federal courts would become the common resort of persons who have no right, either under the Constitution or the laws of the United States, to litigate in those courts.' Mansfield C. & L.M.R. Co. v. Swan, 111 U.S. 379, 383, 4 S.Ct. 510, 512, 28 L.Ed. 462, quoting with approval an excerpt from the dissent in the Dred Scott Case: 'It is true * * * 'as a general rule, that the court will not allow a party to rely on anything as cause for reversing a judgment which was for his advantage. In this we follow an ancient rule of the common law. But so careful was that law of the preservation of the course of its courts that it made an exception out of that general rule, and allowed a party to assign for error that which was for his advantage, if it were a departure by the court itself from its settled course of procedure." Also see, e.g., Wabash R. Co. v. Barbour, 6 Cir., 73 F. 513, 516; Capron v. Van Noorden, 2 Cranch 126, 2 L.Ed. 229. 18 Issues not raised in the records or briefs are not passed upon, such as the propriety of the District Court's allowing, after vacation of judgment, a motion to dismiss Reiss, the resident defendant; or the associated problem: whether, if such a dismissal is allowed, a new judgment can be entered on the old verdict without a new trial. These questions and like matters are for the consideration and decision of the District Court. See, e.g., Dollar S.S. Lines v. Merz, 9 Cir., 68 F.2d 594; International Ladies' Garment Workers' Union v. Donnelly Garment Co., 8 Cir., 121 F.2d 561. 1 As noted in Bailey v. Texas Co., 2 Cir., 47 F.2d 153, 155, Baggs v. Martin displaces the view earlier expressed by the Court in Torrence v. Shedd, 144 U.S. 527, 529, 12 S.Ct. 726, 727, 36 L.Ed. 528 and Martin v. Snyder, 148 U.S. 663, 13 S.Ct. 706, 37 L.Ed. 602. 2 We have here no joint liability between a nonresident defendant and a resident defendant, as was the situation in Chicago, B. & Q. R. Co. v. Willard, 220 U.S. 413, 418, 31 S.Ct. 460, 461, 55 L.Ed. 521. And see Alabama Great Southern R. Co. v. Thompson, 200 U.S. 206, 26 S.Ct. 161, 50 L.Ed. 441; Rupp v. Wheeling & L.E.R. Co., 6 Cir., 121 F. 825. The remedy sought against Reiss was alternative to the remedy sought against petitioner. 3 In that case the parties who could not have been brought to the District Court by removal were after removal dismissed out of the case and judgment was rendered against a defendant who could have been sued in the District Court.

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341 U.S. 1 71 S.Ct. 544 95 L.Ed. 697 UNITED STATESv.ALLIED OIL CORP. et al. No. 364. Argued March 6, 1951. Decided April 9, 1951. Mr. Robert W. Ginnane, Washington, D.C., for petitioner. Messrs. Thomas J. Downs, Theodore R. Sherwin, Chicago, Ill., for respondents. Mr. Justice BLACK delivered the opinion of the Court. 1 Section 205(e) of the Emergency Price Control Act of 1942, as amended, authorized the Price Administrator under certain circumstances to institute damage actions against sellers of commodities who charged more than prescribed ceiling prices.1 Pursuant to this section, the consolidated cases now before us were brought in the District Court by the Administrator in his own name 'for and on behalf of the United States,' and were properly ending there on April 23, 1947.2 On that day the President, in connection with the termination of price controls, promulgated Executive Orders Nos. 9841 and 9842:3 No. 9841, among other things, transferred various price administration functions to the Secretary of Commerce; No. 9842, so far as here material, authorized the Attorney General to conduct certain § 205(e) litigation 'in the name of the United States or otherwise as permitted by law * * *.' In view of these orders the Attorney General promptly moved to substitute the United States as party plaintiff in the present proceedings. Although the district judge granted the motion, he dismissed the complaints in 1950 on the ground that there had been an improper substitution because the suits could not be maintained in the name of the United States.4 The Court of Appeals affirmed. 183 F.2d 453. It held that the President in his Executive Orders did not intend to authorize conduct of § 205(e) actions in the name of the United States. A belief that the President had no power to do so led the court to this conclusion. To resolve the conflict between the decision and those from other circuits,5 we granted certiorari. 340 U.S. 895, 71 S.Ct. 237. 2 We hold that it was error to construe the Executive Orders as not allowing maintenance of these suits in the name of the United States. It is true that Order No. 9841 which transferred various OPA functions to the Secretary of Commerce empowered the Secretary to 'institute, maintain, or defend in his own name civil proceedings in any court * * *, relating to the matters transferred to him, including any such proceedings pending on the effective date of the transfer * * *.' (Emphasis added.)6 But this provision demonstrates no purpose to vest exclusive power in the Secretary to maintain all § 205(e) enforcement actions. By its express terms it is made subject to Executive Order 98427 which directs the Attorney General to 'coordinate, conduct, initiate, maintain or defend' litigation against violators of price control 'in the name of the United States or otherwise as permitted by law * * *.'8 All interested government agencies have construed the two orders together as authorizing the Attorney General to carry on § 205(e) enforcement cases and to do so in the name of the United States. The Emergency Court of Appeals and other courts of appeal have taken the same view.9 We believe that such a reading of the orders is the most reasonable construction of the language employed. 3 The substitution of the United States in these cases therefore was proper unless, as the Court of Appeals thought, the President lacked power to authorize it. The view below was that § 205(e) of the Price Control Act permitted enforcement suits to be brought only in the name of the Price Administrator, or, when the bulk of his duties were transferred to the Secretary of Commerce, in the name of the latter. Such a conclusion, however, is certainly not compelled by the section which provides merely for the bringing of actions by 'the Administrator * * * on behalf of the United States * * *.' There can be no question but that the President as a step in the winding-up process had power to transfer any or all of the price administration functions to the Attorney General. Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 113—119, 67 S.Ct. 1129, 1130, 1133, 91 L.Ed. 1375. Accordingly, Executive Order 9842 could lawfully delegate the control and direction of the present actions to that official. Moreover, nothing in § 205(e) prevents the Attorney General, who is customarily charged with representing the Government's interests in court, from following his normal procedure of maintaining enforcement suits in the name of the United States itself.10 No unfairness to the defendants will result. Regardless of captions, the issues in these cases could not change and the real party-in-interest plaintiff has always been the same. Cf. United States Dept. of Agriculture Emergency Crop and Feed Loans v. Remund, 330 U.S. 539, 542—543, 67 S.Ct. 891, 892, 893, 91 L.Ed. 1082. The handling of this litigation in the name of the United States is a fair and orderly method for carrying out the congressional mandate to wind up the OPA affairs. These cases should not have been dismissed.11 4 Reversed. 5 Mr. Justice DOUGLAS and Mr. Justice CLARK took no part in the consideration or decision of this case. 1 56 Stat. 33, as amended 58 Stat. 640, 50 U.S.C.App. § 925(e), 50 U.S.C.A.Appendix, § 925(e): 'If * * * the buyer either fails to institute an action * * * within thirty days from the date of the occurrence of the violation or is not entitled for any reason to bring the action, the Administrator may institute such action on behalf of the United States * * *.' 2 Actually, one of these six consolidated actions was instituted 'for and on behalf of the United States' in the name of Philip B. Fleming, Administrator of the Office of Temporary Controls after he had become the successor to the Price Administrator. On April 23, 1947, all six suits were properly pending in Fleming's name. See Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 113—119, 67 S.Ct. 1129, 1130, 1133, 91 L.Ed. 1375. The manner in which he became the successor of the Price Administrator is detailed by the Court of Appeals in its opinion below. United States v. Allied Oil Corp., 7 Cir., 183 F.2d 453. 3 12 Fed.Reg. 2645, 2646, 50 U.S.C.A.Appendix, §§ 601, 925 notes. 4 The ruling was that the Secretary of Commerce was the real party-in-interest plaintiff and that the actions had abated for failure to substitute the Secretary within six months as required by Rule 25(d), Fed.Rules Civ.Proc. 28 U.S.C.A. 5 Fleming v. Goodwin, 8 Cir., 165 F.2d 334; United States v. Koike, 9 Cir., 164 F.2d 155; Northwestern Lbr. & Shingle Co. v. United States, 10 Cir., 170 F.2d 692. 6 Executive Order No. 9841, § 402 provides: 'Functions under the Emergency Price Control Act of 1942, as amended, transferred under the provisions of this order shall be deemed to include authority on the part of each officer to whom such functions are transferred hereunder to institute, maintain, or defend in his own name civil proceedings in any court (including the Emergency Court of Appeals), relating to the matters transferred to him, including any such proceedings pending on the effective date of the transfer of any such function under this order. The provisions of this paragraph shall be subject to the provisions of the Executive order entitled 'Conduct of Certain Litigation Arising under Wartime Legislation,' (Order No. 9842) issued on the date of this order * * *.' 7 See Executive Order No. 9841, § 402, note 6, supra. 8 Executive Order No. 9842 provides: '1. The Attorney General is authorized and directed, in the name of the United States or otherwise as permitted by law, to coordinate, conduct, initiate, maintain or defend: * * *. '(b) Litigation against violaters of regulations, schedules or orders relating to maximum prices pertaining to any commodity which has been removed from price control * * *.' Price controls had been lifted on the commodities involved in the present actions prior to the promulgation of Executive Orders Nos. 9841 and 9842. 9 Hal-Mar Dress Co. v. Clark, 165 F.2d 222 and cases cited note 5, supra. 10 Cf. United States v. California, 332 U.S. 19, 27—28, 67 S.Ct. 1658, 1662, 1663, 91 L.Ed. 1889; United States v. San Jacinto Tin Co., 125 U.S. 273, 279, 8 S.Ct. 850, 853, 31 L.Ed. 747. 11 Respondents have contended in their brief that by virtue of 28 U.S.C. § 2105, 28 U.S.C.A. § 2105, the orders of the District Court dismissing these actions as abated were not subject to review. This contention is untenable in view of the recent decision in Snyder v. Buck, 340 U.S. 15, 21—22, 71 S.Ct. 93, 97.

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341 U.S. 22 71 S.Ct. 557 95 L.Ed. 713 STATE ex rel. DYER et al.v.SIMS. No. 147. Argued Dec. 5, 1950. Decided April 9, 1951. [Syllabus from pages 22-23 intentionally omitted] Mr. John B. Hollister, Cincinnati, Ohio, for petitioners. Mr. Charles C. Wise, Charleston, W.Va., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 After extended negotiations eight States entered into a Compact to control pollution in the Ohio River system. See Ohio River Valley Water Sanitation Compact, 54 Stat. 752, 33 U.S.C.A. § 567a note. Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia and West Virginia recognized that they were faced with one of the problems of government that are defined by natural rather than political boundaries. Accordingly, they pledged themselves to cooperate in maintaining waters in the Ohio River basin in a sanitary condition through the administrative mechanism of the Ohio River Valley Water Sanitation Commission, consisting of three members from each State and three representing the United States. 2 The heart of the Compact is Article VI. This provides that sewage discharged into boundary streams or streams flowing from one State into another 'shall be so treated, within a time reasonable for the construction of the necessary works, as to provide for substantially complete removal of settleable solids, and the removal of not less than forty-five per cent (45%) of the total suspended solids; provided that, in order to protect the public health or to preserve the waters for other legitimate purposes, * * * in specific instances such higher degree of treatment shall be used as may be determined to be necessary by the Commission after investigation, due notice and hearing.' Industrial wastes are to be treated 'to such degree as may be determined to be necessary by the Commission after investigation, due notice and hearing.' Sewage and industrial wastes discharged into streams located wholly within the State are to be treated 'to that extent, if any, which may be necessary to maintain such waters in a sanitary and satisfactory condition at least equal to the condition of the waters of the interstate stream immediately above the confluence.' Article IX provides that the Commission may, after notice and hearing, issue orders for compliance enforceable in the State and federal courts. It further provides: 'No such order shall go into effect unless and until it receives the assent of at least a majority of the commissioners from each of not less than a majority of the signatory States; and no such order upon a municipality, corporation, person or entity in any State shall go into effect unless and until it receives the assent of not less than a majority of the commissioners from such state.' 3 By Article X the States also agree 'to appropriate for the salaries, office and other administrative expenses, their proper proportion of the annual budget as determined by the Commission and approved by the Governors of the signatory States * * *.' 4 The present controversy arose because of conflicting views between officials of West Virginia regarding the responsibility of West Virginia under the Compact. 5 The Legislature of that State ratified and approved the Compact on March 11, 1939. W.Va.Acts 1939, c. 38. Congress gave its consent on July 11, 1940, 54 Stat. 752, and upon adoption by all the signatory States the Compact was formally executed by the Governor of West Virginia on June 30, 1948. At its 1949 session the West Virginia Legislature appropriated $12,250 as the State's contribution to the expenses of the Commission for the fiscal year beginning July 1, 1949. W.Va.Acts 1949, c. 9, Item 93. Respondent Sims, the auditor of the State, refused to issue a warrant upon its treasury for payment of this appropriation. To compel him to issue it, the West Virginia Commissioners to the Compact Commission and the members of the West Virginia State Water Commission instituted this original mandamus proceeding in the Supreme Court of Appeals of West Virginia. The court denied relief on the merits 58 S.E. 766, and we brought the case here, 340 U.S. 807, 71 S.Ct. 51, because questions of obviously important public interest are raised. 6 The West Virginia court found that the 'sole question' before it was the validity of the Act of 1939 approving West Virginia's adherence to the Compact. It found that Act invalid in that (1) the Compact was deemed to delegate West Virginia's police power to other States and to the Federal Government, and (2) it was deemed to bind future legislatures to make appropriations for the continued activities of the Sanitation Commission and thus to violate Art. X, § 4 of the West Virginia Constitution. 7 Briefs filed on behalf of the United States and other States, as amici, invite the Court to consider far-reaching issues relating to the Compact Clause of the United States Constitution. Art. I, § 10, cl. 3. The United States urges that the Compact be so read as to allow any signatory State to withdraw from its obligations at any time. Pennsylvania, Ohio, Indiana, Illinois, Kentucky and New York contend that the Compact Clause precludes any State from limiting its power to enter into a compact to which Congress has consented. We must not be tempted by these inviting vistas. We need not go beyond the issues on which the West Virginia court found the Compact not binding on that State. That these are issues which give this Court jurisdiction to review the State court proceeding, 28 U.S.C. § 1257, 28 U.S.C.A. § 1257, needs no discussion after Delaware River Joint Toll Bridge Comm. v. Colburn, 310 U.S. 419, 427, 60 S.Ct. 1039, 1040, 84 L.Ed. 1287. 8 Control of pollution in interstate streams might, on occasion, be an appropriate subject for national legislation. Compare State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487. But, with prescience, the Framers left the States free to settle regional controversies in diverse ways. Solution of the problem underlying this case may be attempted directly by the affected States through contentious litigation before this Court. State of Missouri v. State of Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497, Id., 200 U.S. 496, 26 S.Ct. 268, 50 L.Ed. 572; People of State of New York v. State of New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937. Adjudication here of conflicting State interests affecting stream pollution does not rest upon the law of a particular State. This Court decides such controversies according to 'principles it must have power to declare.' State of Missouri v. State of Illinois, supra, 200 U.S. at page 519, 26 S.Ct. at page 269. But the delicacy of interstate relationships and the inherent limitations upon this Court's ability to deal with multifarious local problems have naturally led to exacting standards of judicial intervention and have inhibited the formulation of a code for dealing with such controversies. As Mr. Justice Holmes put it: 'Before this court ought to intervene, the case should be of serious magnitude, clearly and fully proved, and the principle to be applied should be one which the court is prepared deliberately to maintain against all considerations on the other side.' State of Missouri v. State of Illinois, supra, 200 U.S. at page 521, 26 S.Ct. at page 270. 9 Indeed, so awkward and unsatisfactory is the available litigious solution for these problems that this Court deemed in appropriate to emphasize the practical constitutional alternative provided by the Compact Clause. Experience led us to suggest that a problem such as that involved here is 'more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of representatives of the States so vitally interested in it than by proceedings in any court however constituted.' People of State of New York v. State of New Jersey, supra, 256 U.S. at page 313, 41 S.Ct. at page 498. The suggestion has had fruitful response. 10 The growing interdependence of regional interests, calling for regional adjustments, has brought extensive use of compacts. A compact is more than a supple device for dealing with interests confined within a region. That it is also a means of safeguarding the national interest is well illustrated in the Compact now under review. Not only was congressional consent required, as for all compacts; direct participation by the Federal Government was provided in the President's appointment of three members of the Compact Commission. Art. IV; Art. XI, § 3. 11 But a compact is after all a legal document. Though the circumstances of its drafting are likely to assure great care and deliberation, all avoidance of disputes as to scope and meaning is not within human gift. Just as this Court has power to settle disputes between States where there is no compact, it must have final power to pass upon the meaning and validity of compacts. It requires no elaborate argument to reject the suggestion that an agreement solemnly entered into between States by those who alone have political authority to speak for a State can be unilaterally nullified, or given final meaning by an organ of one of the contracting States. A State cannot be its own ultimate judge in a controversy with a sister State. To determine the nature and scope of obligations as between States, whether they arise through the legislative means of compact or the 'federal common law' governing interstate controversies, Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110, 58 S.Ct. 803, 811, 82 L.Ed. 1202, is the function and duty of the Supreme Court of the Nation. Of course every deference will be shown to what the highest court of a State deems to be the law and policy of its State, particularly when recondite or unique features of local law are urged. Deference is one thing; submission to a State's own determination of whether it has undertaken an obligation, what that obligation is, and whether it conflicts with a disability of the State to undertake it is quite another. 12 The Supreme Court of Appeals of the State of West Virginia is, for exclusively State purposes, the ultimate tribunal in construing the meaning of her Constitution. Two prior decisions of this Court make clear, however, that we are free to examine determinations of law by State courts in the limited field where a compact brings in issue the rights of other States and the United States. 13 Commonwealth of Kentucky v. State of Indiana, 281 U.S. 163, 50 S.Ct. 275, 74 L.Ed. 784, dealt with a compact to build a bridge across the Ohio River. In an original action brought before this Court, Indiana defended on the ground that she should not be compelled to perform until the Indiana courts decided, in a pending case, whether her officials had been authorized to enter into the compact. Mr. Chief Justice Hughes, speaking for a unanimous Court, dismissed the argument: 'Where the States themselves are before this Court for the determination of a controversy between them, neither can determine their rights inter sese, and this Court must pass upon every question essential to such a determination, although local legislation and questions of state authorization may be involved. (Commonwealth of) Virginia v. (State of) West Virginia, 11 Wall. 39, 56, 20 L.Ed. 67; Id., 220 U.S. 1, 28, 31 S.Ct. 330, 55 L.Ed. 353. A decision in the present instance by the state court would not determine the controversy here.' 281 U.S. at pages 176—177, 50 S.Ct. at page 278. 14 In reaching this conclusion the Chief Justice could hardly avoid analogizing the situation to that where a question is raised whether a State has impaired the obligation of a contract. 'It has frequently been held that when a question is suitably raised whether the law of a State has impaired the obligation of a contract, in violation of the constitutional provision, this Court must determine for itself whether a contract exists, what are its obligations, and whether they have been impaired by the legislation of the State. While this Court always examines with appropriate respect the decisions of state courts bearing upon such questions, such decisions do not detract from the responsibility of this Court in reaching its own conclusions as to the contract, its obligations and impair ment, for otherwise the constitutional guaranty could not properly be enforced. Larson v. (State of) South Dakota, 278 U.S. 429, 433, 49 S.Ct. 196, 73 L.Ed. 441, and cases there cited.' 281 U.S. at page 176, 50 S.Ct. at page 278. And see Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 100, 58 S.Ct. 443, 446, 82 L.Ed. 685. 15 Hinderlider v. La Plata River & Cherry Creek Ditch Co., supra, is the second of these cases. It also makes clear, if authority be needed, that the fact the compact questions reach us on a writ of certiorari rather than by way of an original action brought by a State does not affect the power of this Court. In the Hinderlider case, an action was brought in the Colorado courts to enjoin performance of a compact between Colorado and New Mexico concerning water rights in the La Plata River. The State court held that the compact was invalid because it affected appropriation rights guaranteed by the Colorado State Constitution. 101 Colo. 73, 70 P.2d 849; see also 93 Colo. 128, 25 P.2d 187. Mr. Justice Brandeis, likewise speaking for a unanimous Court, held that the relative claims of New Mexico and Colorado citizens could be determined by compact and reversed the decision of the State court. 16 The issue in the Hinderlider case was whether the Colorado Legislature had authority, under the State Constitution, to enter into a compact which affected the water rights of her citizens. The issue before us is whether the West Virginia Legislature had authority, under her Constitution, to enter into a compact which involves delegation of power to an interstate agency and an agreement to appropriate funds for the administrative expenses of the agency. 17 That a legislature may delegate to an administrative body the power to make rules and decide particular cases is one of the axioms of modern government. The West Virginia court does not challenge the general proposition but objects to the delegation here involved because it is to a body outside the State and because its Legislature may not be free, at any time, to withdraw the power delegated. We are not here concerned, and so need not deal, with specific language in a State constitution requiring that the State settle its problems with other States without delegating power to an interstate agency. What is involved is the conventional grant of legislative power. We find nothing in that to indicate that West Virginia may not solve a problem such as the control of river pollution by compact and by the delegation, if such it be, necessary to effectuate such solution by compact. If this Court, in the exercise of its original jurisdiction, were to enter a decree requiring West Virginia to abate pollution of interstate streams, that decree would bind the State. The West Virginia Legislature would have no part in determining the State's obligation. The State Legislature could not alter it; it could not disregard it, as West Virginia on another occasion so creditably recognized. The obligation would be fixed by this Court on the basis of a master's report. Here, the State has bound itself to control pollution by the more effective means of an agreement with other States. The Compact involves a reasonable and carefully limited delegation of power to an interstate agency. Nothing in its Constitution suggests that, in dealing with the problem dealt with by the Compact, West Virginia must wait for the answer to be dictated by this Court after harassing and unsatisfactory litigation. 18 What Mr. Justice Brandeis said of the Colorado court decision in Hinderlider v. La Plata River & Cherry Creek Ditch Co., supra, applies to the decision of the West Virginia court: 'It ignores the history and order of development of the two means provided by the Constitution for adjusting interstate controversies. The compact—the legislative means—adapts to our Union of sovereign States the age-old treaty-making power of independent sovereign nations. Adjustment by compact without a judicial or quasi-judicial determination of existing rights had been practiced in the Colonies, was practiced by the States before the adoption of the Constitution, and had been extensively practiced in the United States for nearly half a century before this Court first applied the judicial means in settling the boundary dispute in State of Rhode Island v. (Commonwealth of) Massachusetts, 12 Pet. 657, 723 725, 9 L.Ed. 1233.' 304 U.S. at page 104, 58 S.Ct. at page 808. 19 The State court also held that the Compact is in conflict with Art. X, § 4, of the State Constitution and for that reason is not binding on West Virginia. This section provides: 'No debt shall be contracted by this State, except to meet casual deficits in the revenue, to redeem a previous liability of the State, to suppress insurrection, repel invasion, or defend the State in time of war; but the payment of any liability other than that for the ordinary expenses of the State, shall be equally distributed over a period of at least twenty years.' 20 The Compact was evidently drawn with great care to meet the problem of debt limitation in light of this section and similar restrictive provisions in the constitutions of other States. Although, under Art. X of the Compact, the States agree to appropriate funds for administrative expenses, the annual budget must be approved by the Governors of the signatory States. In addition, Article V provides: 'The Commission shall not incur any obligations of any kind prior to the making of appropriations adequate to meet the same; nor shall the Commission pledge the credit of any of the signatory States, except by and with the authority of the legislature thereof.' In view of these provisions, we conclude that the obligation of the State under the Compact is not in conflict with Art. X, § 4 of the State constitution. 21 Reversed and remanded. 22 Mr. Justice BLACK concurs in the result. 23 Mr. Justice REED (concurring). 24 I concur in the judgment of the Court but disagree with the assertion of power by this Court to interpret the meaning of the West Virginia Constitution. This Court must accept the State court's interpretation of its own Constitution unless it is prepared to say that the interpretation is a palpable evasion to avoid a federal rule.1 25 There is no problem concerning the binding effect upon this Court of state court interpretation of state law, under the Compact Clause such as there is under the clause against impairing the Obligation of Contracts.2 Under the latter clause, this Court, in order to determine whether the subsequent state law, constitutional or statutory, impairs the federal prohibition against impairment of contracts, has asserted power to construe for itself the disputed agreement, to decide whether it is a contract, and to interpret the subsequent state statute to decide whether it impairs that contract.3 Even then we accept state court conclusions unless 'manifestly wrong.'4 Examination here, under the Contract Clause, is to enforce the federal provision against impairment and is made only to decide whether under the Contract Clause there is a contract and whether it is impaired.5 This Court thus adjudges whether state action has violated the Federal Contract Clause. , it does not decide the meaning of a state statute as applied to a state appropriation. 26 Under the Compact Clause, however, the federal questions are the execution, validity and meaning of federally approved state compacts.6 The interpretation of the meaning of the compact controls over a state's application of its own law through the Supremacy Clause and not by any implied federal power to construe state law. 27 West Virginia adjudges her execution of the compact is invalid as a delegation of state police power and as a creation of debt beyond her constitutional powers. Since the Constitution provided the compact for adjusting interstate relations, compacts may be enforced despite otherwise valid state restrictions on state action. 28 This, I think, was the basis of our holding in Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S.Ct. 803, 82 L.Ed. 1202. The Supreme Court of Colorado held that compact invalid because it was an executive abandonment by Colorado of a citizen's previously acquired water rights, 304 U.S. at pages 104 and 108, 58 S.Ct. at pages 808 and 810. But we concluded: 'Whether the apportionment of the water of an interstate stream be made by compact between the upper and lower States with the consent of Congress or by a decree of this Court, the apportionment is binding upon the citizens of each State and all water claimants, even where the State had granted the water rights before it entered into the compact.' 304 U.S. at page 106, 58 S.Ct. at page 809. 29 For that conclusion reliance was placed upon State of Rhode Island v. Commonwealth of Massachusetts, 12 Pet. 657, 725, 9 L.Ed. 1233, where this Court, speaking of compacts, said: 'By this surrender of the power, which before the adoption of the constitution was vested in every state, of settling these contested boundaries, as in the plenitude of their sovereignty they might; they could settle them neither by war, or in peace, by treaty, compact or agreement, without the permission of the new legislative power which the states brought into existence by their respective and several grants in conventions of the people. If congress consented, then the states were in this respect restored to their original inherent sovereignty; such consent being the sole limitation imposed by the constitution, when given, left the states as they were before * * * whereby their compacts became of binding force, and finally settled the boundary between them; operating with the same effect as a treaty between sovereign powers.' 30 I would uphold the validity of the compact and reverse the judgment of West Virginia refusing mandamus, with direction to that court to enter a judgment not inconsistent with an opinion based upon the Supremacy Clause. 31 Mr. Justice JACKSON (concurring). 32 West Virginia officials induced sister States to contract with her and Congress to consent to the Compact. She now attempts to read herself out of this interstate Compact by reading into her Constitution a limitation upon the powers of her Governor and Legislature to contract. 33 West Virginia, for internal affairs, is free to interpret her own Constitution as she will. But if the compact system is to have vitality and integrity, she may not raise an issue of ultra vires, decide it, and release herself from an interstate obligation. The legal consequences which flow from the formal participation in a compact consented to by Congress is a federal question for this Court. 34 West Virginia points to no provision of her Constitution which we can say was clear notice or fair warning to Congress or other States of any defect in her authority to enter into this Compact. It is a power inherent in sovereignty limited only to the extent that congressional consent is required. State of Rhode Island v. Commonwealth of Massachusetts, 12 Pet. 657, 725, 9 L.Ed. 1233; Poole v. Fleeger's Lessee, 11 Pet. 185, 209, 9 L.Ed. 680. Whatever she now says her Constitution means, she may not apply retroactively that interpretation to place an unforeseeable construction upon what the other States to this Compact were entitled to believe was a fully authorized act. 35 Estoppel is not often to be invoked against a government. But West Virginia assumed a contractual obligation with equals by permission of another government that is sovereign in the field. After Congress and sister States had been induced to alter their positions and bind themselves to terms of a covenant, West Virginia should be estopped from repudiating her act. For this reason, I consider that whatever interpretation she may put on the generalities of her Constitution, she is bound by the Compact, and on that basis I concur in the judgment. 1 Union Pac. R. Co. v. Public Service Comm'n of Missouri, 248 U.S. 67, 39 S.Ct. 24, 63 L.Ed. 131. 2 U.S.Constitution, Art. I, § 10. 3 Appleby v. City of New York, 271 U.S. 364, 380, 46 S.Ct. 569, 573, 70 L.Ed. 992; John P. King Mfg. Co. v. City Council of Augusta, 277 U.S. 100, 114, 48 S.Ct. 489, 494, 72 L.Ed. 801; Coombes v. Getz, 285 U.S. 434, 441, 52 S.Ct. 435, 436, 76 L.Ed. 866. 4 Hale v. Iowa State Board of Assessment and Review, 302 U.S. 95, 101, 58 S.Ct. 102, 103, 82 L.Ed. 72. 5 Coolidge v. Long, 282 U.S. 582, 597, 51 S.Ct. 306, 309, 75 L.Ed. 562. 6 Delaware River Joint Toll Bridge Comm. v. Colburn, 310 U.S. 419, 428, 60 S.Ct. 1039, 1041, 84 L.Ed. 1287, where it is said, 'Hence we address ourselves to the language of the Compact'. And see the last paragraph of that opinion.

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341 U.S. 48 71 S.Ct. 552 95 L.Ed. 738 UNITED STATESv.ALCEA BAND OF TILLAMOOKS et al. No. 281. Argued March 2, 1951. Decided April 9, 1951. Mr. Philip B. Perlman, Sol. Gen., Washington, D.C., for petitioner. Messrs. Edward F. Howrey, Louis A. Gravelle, Washington, D.C., for respondents. PER CURIAM. 1 The facts leading to this controversy are fully set forth in United States v. Alcea Band of Tillamooks, 1946, 329 U.S. 40, 67 S.Ct. 167, 91 L.Ed. 29, where this Court affirmed a judgment of the Court of Claims, 59 F.Supp. 934, 103 Ct.Cl. 494 that certain named Indian tribes 'are entitled to recover' compensation for the taking of original Indian title by the United States in 1855. The amount of recovery was reserved expressly for the further proceedings which are before the Court in this case. After the affirmance, the Court of Claims heard evidence on the amount of recovery and entered a judgment for the value of the lands as of 1855 plus interest from that date. 87 F.Supp. 938, 115 Ct.Cl. 463. We granted certiorari limited to the question presented by the award of interest. 1950, 340 U.S. 873, 71 S.Ct. 121. 2 It is the 'traditional rule' that interest on claims against the United States cannot be recovered in the absence of an express provision to the contrary in the relevant statute or contract. 28 U.S.C. (Supp. III), § 2516(a), 28 U.S.C.A. § 2516(a). United States v. Thayer-West Point Hotel Co., 1947, 329 U.S. 585, 588, 67 S.Ct. 398, 399, 91 L.Ed. 521, and cases cited therein. This rule precludes an award of interest even though a statute should direct an award of 'just compensation' for a particular taking. United States v. Goltra, 1941, 312 U.S. 203, 61 S.Ct. 487, 85 L.Ed. 776. The only exception arises when the taking entitles the claimant to just compensation under the Fifth Amendment. Only in such cases does the award of compensation include interest. Seaboard Airline R. Co. v. United States, 1923, 261 U.S. 299, 43 S.Ct. 354, 67 L.Ed. 664; United States v. Thayer-West Point Hotel Co., supra. 3 Looking to the former opinions in this case, we find that none of them expressed the view that recovery was grounded on a taking under the Fifth Amendment. And, since the applicable jurisdictional Act, 49 Stat. 801 (1935), contains no provision authorizing an award of interest, such award must be reversed. 4 Reversed. 5 Mr. Justice JACKSON took no part in the consideration or decision of this case.

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341 U.S. 41 71 S.Ct. 553 95 L.Ed. 729 MOSERv.UNITED STATES. No. 301. Argued March 17, 1951. Decided April 9, 1951. Messrs. Jack Wasserman, Washington, D.C., and Morris E. Vogel, New York City, for petitioner. Mr. Stanley M. Silverberg, Washington, D.C., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 Petitioner, a native of Switzerland, was admitted to citizenship by the United States District Court for the Eastern District of New York on July 21, 1949.1 The Court of Appeals reversed,2 holding that petitioner was debarred from citizenship because he had claimed exemption from military service as a neutral alien during World War II. Important questions concerning the effect of treaty and statute upon the privilege of aliens to acquire citizenship are involved, and we granted certiorari.3 2 Petitioner first entered the United States in 1937. After a trip to Switzerland in 1940 for service in the Swiss Army, in which he held a commission, he returned to this country and married a United States citizen. He and his wife have three children, all born here. 3 Article II of the Treaty of 18504 between the United States and Switzerland provides that 'The citizens of one of the two countries, residing or established in the other, shall be free from personal military service * * *.' 4 Petitioner registered under Selective Service in 1940 and was classified III-A, based on dependency. When, on January 11, 1944, his Local Board in New York City reclassified him I-A, available for service, he sought the aid of the Legation of Switzerland in securing his deferment in accordance with the Treaty of 1850. At that time § 3(a) of the Selective Training and Service Act of 1940, as amended,5 provided for the exemption of neutral aliens from military service, with the proviso that one who claimed exemption should thereafter be debarred from becoming a citizen of the United States. Petitioner, however, advised the Local Board that he had taken steps with the Swiss Legation 'to be released unconditionally' from service under the Treaty. 5 Upon receiving petitioner's request for assistance, the Swiss Legation in Washington requested the Department of State that he be given an 'unconditional release' from liability for service, 'in conformity with' the Treaty. The Department referred the request to the Selective Service System, which replied that the Local Board had been instructed to inform petitioner that he might obtain a Revised Form 301 from the Swiss Legation to be used in claiming exemption. Selective Service Headquarters in Washington did so instruct the Director of Selective Service for New York City. On February 18, 1944, the Swiss Legation wrote petitioner that it had requested the Department of State to exempt him 'in accordance with the provisions of Art. II, of the Treaty * * *.' The letter continued: 6 'We are forwarding to you, herewith, two copies of DSS Form 301, revised, which kindly execute and file immediately with your Local Board. This action on your part is necessary in order to complete the exemption procedure; your Local Board, in accordance with Selective Service regulations, as amended, will then classify you in Class IV-C. 7 'Please note that, through filing of DSS Form 301, revised, you will not waive your right to apply for American citizenship papers. The final decision regarding your naturalization will remain solely with the competent Naturalization Courts.' 8 The Legation's emphasis in referring to 'Form 301, revised' is not without significance. The pertinent regulations promulgated by the President6 provided that to claim exemption an alien should file with his Local Board Form 301, which became known as DSS 301, 'Application by Alien for Relief from Military Service.' Above the signature line on this form there appeared the statement, in obvious reference to the proviso of § 3(a): 'I understand that the making of this application to be relieved from such liability will debar me from becoming a citizen of the United States.' But shortly after § 3(a) of the Act was amended to the content with which we here deal,7 the Swiss Legation had protested to the Department of State that it was inconsistent with the treaty rights of Swiss citizens. And the Department had hastened to assure the Legation that the Government had no intention of abrogating treaty rights or privileges of Swiss nationals. The State Department, in conjunction with Selective Service Headquarters and the Swiss Legation, had then negotiated agreement upon a Revised Form 301 which omitted the waiver quoted above and stated simply: 'I hereby apply for relief from liability for training and service in the land or naval forces of the United States.' A footnote of the revised form quoted pertinent parts of § 3(a). 9 It was under these circumstances that petitioner signed a Revised Form 301 on February 26, 1944, and was classified IV-C by his Local Board. The Court of Appeals has accepted, as do we, the finding of the District Court that petitioner signed the application for exemption believing that he was not thereby precluded from citizenship, and that had he known claiming exemption would debar him from citizenship, he would not have claimed it, but would have elected to serve in the armed forces. 10 Is petitioner debarred from citizenship by reason of the claimed exemption? 11 The Treaty of 1850 with Switzerland was in full force in 1940 when the Selective Training and Service Act was passed. Standing alone, the Treaty provided for exemption of Swiss citizens from military service of the United States, and if that were all, petitioner would have been entitled to unqualified exemption. Section 3(a) of the Act, while recognizing the immunity of citizens of neutral countries from service in our armed forces,8 imposed the condition that neutral aliens residing here who claimed such immunity would be debarred from citizenship. That the statute unquestionably imposed a condition on exemption not found in the Treaty does not mean they are inconsistent. Not doubting that a treaty may be modified by a subsequent act of Congress,9 it is not necessary to invoke such authority here, for we find in this congressionally imposed limitation on citizenship nothing inconsistent with the purposes and subject matter of the Treaty. The Treaty makes no provision respecting citizenship. On the contrary, it expressly provides that the privileges guaranteed by each country to resident citizens of the other 'shall not extend to the exercise of political rights'.10 The qualifications for and limitations on the acquisition of United States citizenship are a political matter11 which the Treaty did not presume to cover. 12 Thus, as a matter of law, the statute imposed a valid condition on the claim of a neutral alien for exemption; petitioner had a choice of exemption and no citizenship, or no exemption and citizenship. 13 But as we have already indicated, before petitioner signed the application for exemption, he had asserted a right to exemption without debarment from citizenship. In response to the claims of petitioner and others, and in apparent acquiescence, our Department of State had arranged for a revised procedure in claiming exemption. The express waiver of citizenship had been deleted. Petitioner had sought information and guidance from the highest authority to which he could turn, and was advised to sign Revised Form 301. He was led to believe that he would not thereby lose his rights to citizenship. If he had known otherwise he would not have claimed exemption. In justifiable reliance on this advice he signed the papers sent to him by the Legation. 14 We do not overlook the fact that the Revised Form 301 contained a footnote reference to the statutory provision, and that the Legation wrote petitioner, 'you will not waive your right to apply for American citizenship papers.' The footnote might have given pause to a trained lawyer. A lawyer might have speculated on the possible innuendoes in the use of the phrase 'right to apply,' as opposed to 'right to obtain.' But these are minor distractions in a total setting which understandably lulled this petitioner into misconception of the legal consequences of applying for exemption. 15 Nor did petitioner sign one thing and claim another, as in Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287. Since the Revised Form 301 contained no waiver, what he signed was entirely consistent with what he believed and claimed. 16 there is no need to evaluate these circumstances on the basis of any estoppel of the Government or the power of the Swiss Legation to bind the United States by its advice to petitioner. Petitioner did not knowingly and intentionally waive his rights to citizenship. In fact, because of the misleading circumstances of this case, he never had an opportunity to make an intelligent election between the diametrically opposed courses required as a matter of strict law. Considering all the circumstances of the case, we think that to bar petitioner, nothing less than an intelligent waiver is required by elementary fairness. Johnson v. United States, 318 U.S. 189, 197, 63 S.Ct. 549, 553, 87 L.Ed. 704. To hold otherwise would be to entrap petitioner. 17 The judgment of the Court of Appeals is reversed. 18 Mr. Justice DOUGLAS concurs in the result. 19 Mr. Justice BLACK and Mr. Justice FRANKFURTER agree with the Court's decision and opinion that Moser did not waive his rights of citizenship. Questions regarding the scope of the Treaty of 1850 and the bearing of the Selective Service Act of 1940 on the Treaty are therefore not reached and should not be considered. 1 85 F.Supp. 683. 2 182 F.2d 734. 3 340 U.S. 910, 71 S.Ct. 290. 4 11 Stat. 587, 589. 5 Section 3(a) of the Act, 54 Stat. 885, as amended, 55 Stat. 845, 50 U.S.C.App. § 303(a), 50 U.S.C.A.Appendix, § 303(a), provided 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. * * *.' 6 32 CFR, 1943 Cum.Supp., § 622.43. 7 See 55 Stat. 845; note 5, supra. 8 4 Moore International Law Digest 52—53, 61. 9 Clark v. Allen, 331 U.S. 503, 508—509, 67 S.Ct. 1431, 1434, 1435, 91 L.Ed. 1633; Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160, 54 S.Ct. 361, 367, 78 L.Ed. 695; Head Money Cases (Edye v. Robertson), 112 U.S. 580, 597—599, 5 S.Ct. 247, 253, 254, 28 L.Ed. 798. Cf. Cook v. United States, 288 U.S. 102, 120, 53 S.Ct. 305, 311, 77 L.Ed. 641. 10 11 Stat. 587, 588. 11 U.S.Const., Art. I, § 8, cl. 4; United States v. Macintosh, 283 U.S. 605, 615, 51 S.Ct. 570, 571, 75 L.Ed. 1302; United States v. Schwimmer, 279 U.S. 644, 649, 49 S.Ct. 448, 449, 73 L.Ed. 889; Zartarian v. Billings, 204 U.S. 170, 175, 27 S.Ct. 182, 183, 51 L.Ed. 428.

12

341 U.S. 50 71 S.Ct. 549 95 L.Ed. 740 SHEPHERD et al.v.STATE OF FLORIDA. No. 420. Argued March 9, 1951. Decided April 9, 1951. Messrs. Franklin H. Williams, and Robert L. Carter, New York City, for petitioners. Mr. Reeves Bowen, Tallahassee, Fla., for respondent. PER CURIAM. 1 The judgment is reversed. Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839. 2 Mr. Justice JACKSON, whom Mr. Justice FRANKFURTER joins, concurring in the result. 3 On the 16th of July, 1949, a seventeen-year-old white girl in Lake County, Florida, reported that she had been raped, at the point of a pistol, by four Negroes. Six days later petitioners were indicted and, beginning September 1, were tried for the offense, convicted without recommendation of mercy, and sentenced to death.1 The Supreme Court of Florida, in reviewing evidence of guilt, said, 'As we study the testimony, the only question presented here is which set of witnesses would the jury believe, that is, the State's witnesses or the testimony as given by the defendant-appellants.'2 4 But projudicial influences outside the courtroom, becoming all too typical of a highly publicized trial, were brought to bear on this jury with such force that the conclusion is inescapable that these defendants were prejudged as guilty and the trial was but a legal gestrue to register a verdict already dictated by the press and the public opinion which is generated. 5 Newspapers published as a fact, and attributed the information to the sheriff, that these defendants had confessed. No one, including the sheriff, repudiated the story.3 Witnesses and persons called as jurors said they had read or heard of this statement. However, no confession was offered at the trial. The only rational explanations for its nonproduction in court are that the story was false or that the confession was obtained under circumstances which made it inadmissible or its use inexpedient.4 6 If the prosecutor in the courtroom had told the jury that the accused had confessed but did not offer to prove the confession, the court would undoubtedly have declared a mistrial and cited the attorney for contempt. If a confession had been offered in court, the defendant would have had the right to be confronted by the persons who claimed to have witnessed it, to cross-examine them, and to contradict their testimony. If the court had allowed an involuntary confession to be placed before the jury, we would not hesitate to consider it a denial of due process of law and reverse. When such events take place in the courtroom, defendant's counsel can meet them with evidence, arguments, and requests for instructions, and can at least preserve his objections on the record. 7 But neither counsel nor court can control the admission of evidence if unproven, and probably unprovable, 'confessions' are put before the jury by newspapers and radio. Rights of the defendant to be confronted by witnesses against him and to cross-examine them are thereby circumvented. It is hard to imagine a more prejudicial influence than a press release by the officer of the court charged with defendants' custody stating that they had confessed, and here just such a statement, unsworn to, unseen, uncross-examined and uncontradicted, was conveyed by the press to the jury. 8 This Court has recently gone a long way to disable a trial judge from dealing with press interference with the trial process, Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546; Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, though it is to be noted that none of these cases involved a trial by jury. And the Court, by strict construction of an Act of Congress, has held not to be contemptuous of any kind of interference unless it takes place in the immediate presence of the court, Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172, the last place where a well-calculated obstruction of justice would be attempted. No doubt this trial judge felt helpless to give the accused any real protection against this out-of-court campaign to convict. But if freedoms of press are so abused as to make fair trial in the locality impossible, the judicial process must be protected by removing the trial to a forum beyond its probable influence. Newspapers, in the enjoyment of their constitutional rights, may not deprive accused persons of their right to fair trial. These convictions, accompanied by such events, do not meet any civilized conception of due process of law. That alone is sufficient, to my mind, to warrant reversal. 9 But that is not all. Of course, such a crime stirred deep feeling and was exploited to the limit by the press. These defendants were first taken to the county jail of Lake County. A mob gathered and demanded that defendants be turned over to it. By order of court, they were quickly transferred for safekeeping to the state prison, where they remained until about two weeks before the trial. Meanwhile, a mob burned the home of defendant Shepherd's father and mother and two other Negro houses. Negroes were removed from the community to prevent their being lynched. The National Guard was called out on July 17 and 18 and, on July 19, the 116th Field Artillery was summoned from Tampa. The Negroes of the community abandoned their homes and fled. 10 Every detail of these passion-arousing events was reported by the press under such headlines as, 'Night Riders Burn Lake Negro Homes' and 'Flames From Negro Homes Light Night Sky in Lake County.' These and many other articles were highly prejudicial, including a cartoon published at the time of the grand jury, picturing four electric chairs and headed, 'No Compromise—Supreme Penalty.' 11 Counsel for defendants made two motions, one to defer the trial until the passion had died out and the other for a change of venue. These were denied. The Supreme Court of Florida, in affirming the conviction, observed that 'The inflamed public sentiment was against the crime with which the appellants were charged rather than defendants' race.'5 Such an estimate seems more charitable than realistic, and I cannot agree that the prejudice had subsided at the time of trial. 12 The trial judge, anxious to assure as fair a trial as possible under the circumstances, was evidently concerned about violence at the trial. He promulgated special rules which limited the number of visitors to those that could be seated, allowed no one to stand or loiter in hallways, stairways, and parts of the courthouse for thirty minutes before court convened and after it recessed, closed the elevators except to officers of the court or individuals to whom the sheriff gave special permit, required each person entering the countroom to submit to search, prohibited any person from taking a 'valise, satchel, bag, basket, bottle, jar, jug, bucket, package, bundle, or other such item' to the courtroom floor of the courthouse, allowed crutches, canes and walking sticks only after inspection by the sheriff showed them to be necessary aids, prohibited demonstrations of any nature and made various other regulations, all of which the sheriff was charged to enforce and to that end was authorized to employ such number of deputies as might be necessary. Such precautions, however commendable, show the reaction that the atmosphere which permeated the trial created in the mind of the trial judge. 13 The situation presented by this record is not different, in essentials, from that which was found a denial of due process in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. Under these circumstances, for the Court to reverse these convictions upon the sole ground that the method of jury selection discriminated against the Negro race, is to stress the trivial and ignore the important. While this record discloses discrimination which under normal circumstances might be prejudicial, this trial took place under conditions and was accompanied by events which would deny defendants a fair trial before any kind of jury. I do not see, as a practical matter, how any Negro on the jury would have dared to cause a disagreement or acquittal. The only chance these Negroes had of acquittal would have been in the courage and decency of some sturdy and forthright white person of sufficient standing to face and live down the odium among his white neighbors that such a vote, if required, would have brought. To me, the technical question of discrimination in the jury selection has only theoretical importance. The case presents one of the best examples of one of the worst menaces to American justice. It is on that ground that I would reverse. 1 A recommendation of mercy was made as to defendant Charles Greenlee, a minor, and he does not appeal. The fourth suspect, Ernest Thomas, was killed resisting arrest. 2 46 So.2d 880, 885. 3 An editor, explaining the source of a statement in an article in his paper that all three Negroes had confessed, said: '(T)he information is based on articles in the various daily papers, and personal conversations I had with people generally. * * * (I)f articles appear in those papers that have stood the test two or three days without denial or correction, based on my previous experience as an editor, I assume them to be true. The article you called my attention to appeared to the best of my recollection in a number of daily papers and was not denied for a period of three days. I don't think they were ever denied.' 4 The defense offered, and the court rejected as completely irrelevant and immaterial, evidence of brutal, inhuman beatings of defendants by state officers in whose custody they were held. 5 46 So.2d at page 883.

12

341 U.S. 56 71 S.Ct. 565 95 L.Ed. 745 GERENDEv.BOARD OF SUP'RS OF ELECTIONS OF BALTIMORE CITY. No. 577. Argued April 9, 1951. Decided April 12, 1951. Rehearing Denied April 30, 1951. See 341 U.S. 923, 71 S.Ct. 741. Messrs. William H. Murphy, I. Duke Avnet, Baltimore, Md., for appellant. Messrs. Hall Hammond, J. Edgar Harvey, Baltimore, Md., for appellee. PER CURIAM. 1 This is an appeal from a decision of the Court of Appeals of the State of Maryland the effect of which is to deny the appellant a place on the ballot for a municipal election in the City of Baltimore on the ground that she has refused to file an affidavit required by state law. Md. Laws 1949, c. 86, § 15, 78 A.2d 660. The scope of the State law was passed on in Shub v. Simpson, Md., 76 A.2d 332. We read this decision to hold that to obtain a place on a Maryland ballot a candidate need only make oath that he is not a person who is engaged 'in one way or another in the attempt to overthrow the government by force or violence,' and that he is not knowingly a member of an organization engaged in such an attempt. 76 A.2d at 338. At the bar of this Court the Attorney General of the State of Maryland declared that he would advise the proper authorities to accept an affidavit in these terms as satisfying in full the statutory requirement. Under these circumstances and with this understanding, the judgment of the Maryland Court of Appeals is affirmed. 2 Affirmed. 3 Mr. Justice REED concurs in the result.

23

341 U.S. 105 71 S.Ct. 601 95 L.Ed. 788 CALIFORNIA STATE AUTO. ASS'N INTER-INSURANCE BUREAUv.MALONEY, Insurance Com'r of State of Callfornia. No. 310. Argued March 8, 1951. Decided April 23, 1951. Mr. Moses Lasky, San Francisco, Cal., for appellant. Mr. Harold B. Haas, San Francisco, Cal., for appellee. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Appellant is an unincorporated association which the California District Court of Appeal analogizes to a mutual insurance corporation. The details of its organization and operation are not important here. It is supervised by the Insurance Commissioner of California, like other insurance companies doing a liability insurance business. It was formed to write automobile insurance to a select group of members at a lower cost than the then prevailing rate. A California law requiring proof of financial responsibility from certain people before issuing them a license to drive a car, provides that a person who does not pay a judgment of $100 or more arising out of an automobile accident has his driver's license suspended, and the suspension can be lifted only by paying the judgment and establishing his ability to pay claims arising from future accidents. That ability to pay may be established by proof that the person is insured, by posting a surety bond, or by deposit of $11,000 in cash. Cal. Vehicle Code, 1943, §§ 410, 414. Another law requires operators of trucks for hire to supply such evidence of financial responsibility before they may get permits to operate trucks. Cal.Stat.1935, c. 312, Gen.Laws, Act 5134. 2 One result of these laws was to make it impossible for a large number of drivers—classified as poor risks by the insurance companies and not possessing enough resources to get a surety bond or to make the cash deposit—to receive drivers' licenses to operate motor vehicles. Some of these people were poor risks, others were not. Many hardship cases developed among people who were dependent on the use of the highways for a living. There was a proposal that California go into the insurance business and insure these and other risks. The insurance companies countered by adopting a voluntary assigned risk plan under which all automobile insurance companies doing business in California undertook to insure some, though not all, of the groups unable to obtain insurance. This plan, approved by California's Insurance Department, provided for the allocation of applicants to the subscribing insurers in proportion to the amount of automobile insurance written by each in the preceding year. 3 The voluntary plan did not reach all applicants. Moreover, appellant withdrew from it, causing the other insurers to be reluctant to continue it. Thereupon the legislature enacted the Compulsory Assigned Risk Law. Cal.Stat.1947, c. 39, p. 525, as amended, c. 1205. It provides that the Insurance Commissioner shall approve 'a reasonable plan for the equitable apportionment' among insurers of applicants for automobile insurance 'who are in good faith1 entitled to but are unable to procure such insurance through ordinary methods.' Cal. Insurance Code 1947, § 11620. It is mandatory on all insurers to subscribe to the plan. Id. §§ 11625, 11626. 4 The plan approved by the Commissioner was objectionable to appellant, who refused to subscribe to it. The Commissioner, acting pursuant to authority granted him, suspended appellant's permit to transact automobile liability insurance in California. Appellant contested the suspension in the California courts. The District Court of Appeal sustained the act against the claim that it violated the Due Process Clause of the Fourteenth Amendment. 96 Cal.App.2d 876, 216 P.2d 882. A petition for hearing was denied by the Supreme Court. The case is here on appeal. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). 5 Appellant assails the constitutionality of the Act under the Due Process Clause of the Fourteenth Amendment on the following grounds: it commands insurers to enter into contracts and to incur liabilities against their will; it forces on insurers contracts that have abnormal risks and from which financial loss may be expected; it requires appellant to alter its type of business from a cooperative with a select membership to a venture insuring members of the general public. 6 Appellant in support of its contentions presses Michigan Public Utilities Commission v. Duke, 266 U.S. 570, 45 S.Ct. 191, 69 L.Ed. 445 and Frost Trucking Co. v. Railroad Commission of State of California, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101 on us. Those cases held that private carriers by motor vehicle could not consistently with Due Process be converted into public carriers by legislative fiat nor be allowed to use the public highways only on condition that they become common carriers. We put those cases to one side. To be sure, appellant is required to insure members of a different group than the select one it voluntarily undertook to serve. But there are important restrictions on the financial commitments incident to the broadened undertaking. We were advised on the argument that the premiums chargeable can be commensurate with the greater risks of the new business. Confiscation is therefore not a factor in the case. Moreover, the California statute provides for an equitable apportionment of the assigned risks among all insurers, not that appellant serve all comers. Furthermore, uninsurable risks are eliminated from the plan; and policies issued may provide limited coverage of $5,000—$10,000. 7 The case in its broadest reach is one in which the state requires in the public interest each member of a business to assume a pro rata share of a burden which modern conditions have made incident to the business. It is therefore not unlike Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112, which sustained a state law assessing each state bank for the creation of a depositors' guaranty fund. What was there said about the police power—that it 'extends to all the great public needs' and may be utilized in aid of what the legislative judgment deems necessary to the public welfare, 219 U.S. at page 111, 31 S.Ct. at page 188—is peculiarly apt when the business of insurance is involved—a business to which the government has long had a 'special relation.'2 See Osborn v. Ozlin, 310 U.S. 53, 65, 66, 60 S.Ct. 758, 762, 763, 84 L.Ed. 1074. Here, as in the banking field, the power of the state is broad enough to take over the whole business, leaving no part for private enterprise. Mountain Timber Co. v. State of Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685; Osborn v. Ozlin, supra, 310 U.S. at page 66, 60 S.Ct. at page 763. The state may therefore hold its hand on condition that local needs be serviced by the business. Osborn v. Ozlin, supra, was such a case; it sustained on that theory Virginia's law requiring Virginia residents to have a share in writing casualty and surety risks in Virginia. The principle of Osborn v. Ozlin now presses for recognition in a situation as acute as any with which the states have had to deal. Highway accidents with their train of property and personal injuries are notoriously important problems in every community. Clearing the highways of irresponsible drivers, devising ways and means for making sure that compensation is awarded the innocent victims, and yet managing a scheme which leaves the highways open for the livelihood of the deserving are problems that have taxed the ingenuity of law makers and administrators. 8 Whether California's program is wise or unwise is not our concern. See Olsen v. State of Nebraska ex rel. Western Reference & Bond Ass'n, 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305; Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525. The problem is a local one on which views will vary. We cannot say California went beyond permissible limits when it made the liability insurance business accept insurable risks which circumstances barred from insurance and hence from the highways Appellant's business may of course be less prosperous as a result of the regulation. That diminution in value, however, has never mounted to the dignity of a taking in the constitutional sense. See Noble State Bank v. Haskell, supra, 219 U.S. at page 110, 31 S.Ct. at page 187; Block v. Hirsh, 256 U.S. 135, 155, 41 S.Ct. 458, 459, 65 L.Ed. 865. 9 Affirmed. 10 Mr. Justice BLACK would dismiss the appeal on the ground that the constitutional questions are frivolous. 1 Under the plan approved by the Commissioner, Cal. Administrative Code 1947, Tit. 10, §§ 2400—2498, there are several categories of people excluded. Those excluded cover a wide range. The following are illustrative: those convicted more than once, within three years of application, of manslaughter or negligent homicide resulting from operation of the vehicle; those convicted more than twice, in the same three-year period, of driving while intoxicated or under the influence of liquor; those addicted to use of drugs. § 2431. 2 State regulation of the insurance business has been upheld in a wide variety of circumstances against the claim that the law violated the Due Process Clause of the Fourteenth Amendment: See Hooper v. People of State of California, 155 U.S. 648, 15 S.Ct. 207, 39 L.Ed. 297, requirement of license and bond; Orient Insurance Co. v. Daggs, 172 U.S. 557, 19 S.Ct. 281, 43 L.Ed. 552, fixing recovery at insured value; Nutting v. Commonwealth of Massachusetts, 183 U.S. 553, 22 S.Ct. 238, 46 L.Ed. 324, license and deposit of security; Carroll v. Greenwich Insurance Co. of New York, 199 U.S. 401, 26 S.Ct. 66, 50 L.Ed. 246, prohibition of combinations or agreements between companies; Northwestern National Life Ins. Co. v. Riggs, 203 U.S. 243, 27 S.Ct. 126, 51 L.Ed. 168, limitation of defenses; Whitfield v. Aetna Life Ins. Co., 205 U.S. 489, 27 S.Ct. 578, 51 L.Ed. 895, same; German Alliance Ins. Co. v. Hale, 219 U.S. 307, 31 S.Ct. 246, 55 L.Ed. 229, statutory penalty against rate-fixing combinations; German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 34 S.Ct. 612, 58 L.Ed. 1011, rate regulations; Mountain Timber Co. v. State of Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, workmen's compensation act; La Tourette v. McMaster, 248 U.S. 465, 39 S.Ct. 160, 63 L.Ed. 362, licensing of brokers; National Union Fire Ins. Co. v. Wanberg, 260 U.S. 71, 43 S.Ct. 32, 67 L.Ed. 136, limiting the time for rejection of hail insurance policies; Merchants Mutual Automobile Liability Ins. Co. v. Smart, 267 U.S. 126, 45 S.Ct. 320, 69 L.Ed. 538, regulation of liability under indemnity policies; Aetna Insurance Co. v. Hyde, 275 U.S. 440, 48 S.Ct. 174, 72 L.Ed. 357, rate regulations; O'Gorman & Young v. Hartford Fire Ins. Co., 282 U.S. 251, 51 S.Ct. 130, 75 L.Ed. 324, regulation of agents' commissions; Hardware Dealers Mutual Fire Ins. Co. v. Glidden, 284 U.S. 151, 52 S.Ct. 69, 76 L.Ed. 214, prescribing compulsory arbitration provisions; Life & Casualty Ins. Co. v. McCray, 291 U.S. 566, 54 S.Ct. 482, 78 L.Ed. 987, additional recovery for failure to pay on demand; Osborn v. Ozlin, 310 U.S. 53, 60 S.Ct. 758, 84 L.Ed. 1074, requiring participation by resident agents; Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 63 S.Ct. 602, 87 L.Ed. 777, regulation of reciprocal insurance associations; State Farm Mutual Automobile Ins. Co. v. Duel, 324 U.S. 154, 65 S.Ct. 573, 89 L.Ed. 812, reserve requirements; Robertson v. People of State of California, 328 U.S. 440, 66 S.Ct. 1160, 90 L.Ed. 1366, licensing of brokers; Daniel v. Family Security Life Ins. Co., 336 U.S. 220, 69 S.Ct. 550, 93 L.Ed. 632, separation of life insurance and undertaking businesses.

78

341 U.S. 112 71 S.Ct. 605 95 L.Ed. 806 WOODWARDv.UNITED STATES et al. No. 476. Argued and Submitted April 11, 1951. Decided April 23, 1951. Mr. Claude T. Wood, Richland, Mo. (Louren G. Davidson, Springfield, Mo., of counsel), for petitioner. Mr. Flavius B. Freeman, Springfield, Mo., for respondent, LeRoy Haizlip. Messrs. Philip B. Perlman, Sol. Gen., Washington, D.C., Holmes Baldridge, Asst. Atty. Gen., John R. Benney, Paul A. Sweeney, Herman Marcus, Washington, D.C., for respondent, the United States. PER CURIAM. 1 Petitioner brought this action against the United States to secure the proceeds of a National Service Life Insurance Policy taken out by Evelyn Haizlip, a member of the Women's Army Corps. Before insured's death in 1945, petitioner, described by insured as her 'brother,' had been designated as beneficiary. The husband of the insured was interpleaded as a conflicting claimant. If petitioner, who was insured's brother by virtue of an adoption decree, is not within the permissible class of beneficiaries under § 602(g) of the National Service Life Insurance Act of 1940,1 the husband is entitled to the proceeds in this case. 2 The Court of Appeals affirmed the District Court which had held, 88 F.Supp. 152, that an adopted brother was not a permissible beneficiary under § 602(g). 8 Cir., 1950, 185 F.2d 134. See also the prior opinion of that court in this proceeding, 8 Cir., 1948, 167 F.2d 774. The Court of Appeals for the Third Circuit had reached a directly contrary conclusion under similar circumstances. Carpenter v. United States, 3 Cir., 1948, 168 F.2d 369, 3 A.L.R.2d 841. Our grant of certiorari was limited to the question whether a brother by adoption is within the permissible class of beneficiaries under § 602(g) of the National Service Life Insurance Act of 1940. 1951, 340 U.S. 929, 71 S.Ct. 496. 3 We have examined the Act, its legislative history and related statutory provisions and have considered the various inferences drawn from the legislative materials by counsel. The short of the matter is that Congress has not expressed itself in regard to the question before us. In resolving the conflict of decisions, we must determine whether the word 'brother,' as used in this federal statute, restricts the policyholder's choice of beneficiaries to brothers of the blood. We are persuaded by the policy against drawing such a distinction in the family relationship. Contemporaneous legal treatment of adopted children as though born into the family is a manifestation of that policy. See Carpenter v. United States, supra; McDonald v. United States, D.C.D.Mass.1950, 91 F.Supp. 163. Consequently, we hold that a brother by adoption is a permissible beneficiary under § 602(g) of the National Service Life Insurance Act of 1940. 4 Reversed. 1 'The insurance shall be payable only to a widow, widower, child * * *, parent, brother or sister of the insured. The insured shall have the right to designate the beneficiary or beneficiaries of the insurance, but only within the classes herein provided, * * *.' 54 Stat. 1008, 1010, as amended, 38 U.S.C. § 802(g), 38 U.S.C.A. § 802(g).

12

341 U.S. 97 71 S.Ct. 576 95 L.Ed. 774 WILLIAMSv.UNITED STATES. No. 365. Argued and Submitted Jan. 8, 1951. Decided April 23, 1951. Mr. Bart A. Riley, Miami, Fla., for petitioner. Mr. Philip Elman, Washington, D.C., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 The question in this case is whether a special police officer who in his official capacity subjects a person suspected of crime to force and violence in order to obtain a confession may be prosecuted under § 20 of the Criminal Code, 18 U.S.C. (1946 ed.) § 52, now 18 U.S.C.A. § 242. 2 Section 20 provides in pertinent part: 'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States * * * shall be fined not more than $1,000, or imprisoned not more than one year, or both.' 3 The facts are these: The Lindsley Lumber Co. suffered numerous thefts and hired petitioner, who operated a detective agency, to ascertain the identity of the thieves. Petitioner held a special police officer's card issued by the City of Miami, Florida, and had taken an oath and qualified as a special police officer. Petitioner and others over a period of three days took four men to a paint shack on the company's premises and used brutal methods to obtain a confession from each of them. A rubber hose, a pistol, a blunt instrument, a sash cord and other implements were used in the project. One man was forced to look at a bright light for fifteen minutes; when he was blinded, he was repeatedly hit with a rubber hose and a sash cord and finally knocked to the floor. Another was knocked from a chair and hit in the stomach again and again. He was put back in the chair and the procedure was repeated. One was backed against the wall and jammed in the chest with a club. Each was beaten, threatened, and unmercifully punished for several hours until he confessed. One Ford, a policeman, was sent by his superior to lend authority to the proceedings. And petitioner, who committed the assaults, went about flashing his badge. 4 The indictment charged among other things that petitioner acting under color of law used force to make each victim confess to his guilt and implicate others, and that the victims were denied the right to be tried by due process of law and if found guilty to be sentenced and punished in accordance with the laws of the state. Petitioner was found guilty by a jury under instructions which conformed with the rulings of the Court in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. The Court of Appeals affirmed. 179 F.2d 656. The case, which is a companion to No. 26, United States v. Williams, 341 U.S. 70, 71 S.Ct. 581, and No. 134, United States v. Williams, 341 U.S. 58, 71 S.Ct. 595, decided this day, is here on certiorari. 5 We think it clear that petitioner was acting 'under color' of law within the meaning of § 20, or at least that the jury could properly so find. We interpreted this phrase of § 20 in United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368. 'Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law.' And see Screws v. United States, supra, 325 U.S. at pages 107—111, 65 S.Ct. at pages 1038—1040, 89 L.Ed. 1495. It is common practice, as we noted in National Labor Relations Board v. Jones & Laughlin Co., 331 U.S. 416, 429, 67 S.Ct. 1274, 1281, 91 L.Ed. 1575, for private guards or detectives to be vested with policemen's powers. We know from the record that that is the policy of Miami, Florida. Moreover, this was an investigation conducted under the aegis of the State, as evidenced by the fact that a regular police officer was detailed to attend it. We need go no further to conclude that the lower court, to whom we give deference on local law matters, see Gardner v. State of New Jersey, 329 U.S. 565, 583, 67 S.Ct. 467, 476, 91 L.Ed. 504, was correct in holding that petitioner was no mere interloper but had a semblance of policeman's power from Florida. There was, therefore, evidence that he acted under authority of Florida law; and the manner of his conduct of the interrogations makes clear that he was asserting the authority granted him and not acting in the role of a private person. In any event the charge to the jury drew the line between official and unofficial conduct which we explored in Screws v. United States, supra, 325 U.S. at page 111, 65 S.Ct. at page 1040, 89 L.Ed. 1495, and gave petitioner all of the protection which 'color of' law as used in § 20 offers. 6 The main contention is that the application of § 20 so as to sustain a conviction for obtaining a confession by use of force and violence is unconstitutional. The argument is the one that a clear majority of the Court rejected in Screws v. United States, and runs as follows: 7 Criminal statutes must have an ascertainable standard of guilt or they fall for vagueness. See United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. Section 20, it is argued, lacks the necessary specificity when rights under the Due Process Clause of the Fourteenth Amendment are involved. We are pointed to the course of decisions by this Court under the Due Process Clause as proof of the vague and fluid standard for 'rights, privileges, or immunities secured or protected by the Constitution' as used in § 20. We are referred to decisions where we have been closely divided on whether state action violated due process. More specifically we are cited many instances where the Court has been conspicuously in disagreement on the illegal character of confessions under the Due Process Clause. If the Court cannot agree as to what confessions violate the Fourteenth Amendment, how can one who risks criminal prosecutions for his acts be sure of the standard? Thus it is sought to show that police officers such as petitioner walk on ground far too treacherous for criminal responsibility. 8 Many criminal statutes might be extended to circumstances so extreme as to make their application unconstitutional. Conversely, as we held in Screws v. United States, a close construction will often save an act from vagueness that is fatal. The present case is as good an illustration as any. It is as plain as a pikestaff that the present confessions would not be allowed in evidence whatever the school of thought concerning the scope and meaning of the Due Process Clause. This is the classic use of force to make a man testify against himself. The result is as plain as if the rack, the wheel, and the thumb screw—the ancient methods of securing evidence by torture, Brown v. State of Mississippi, 297 U.S. 278, 285—286, 56 S.Ct. 461, 464—465, 80 L.Ed. 682; Chambers v. State of Florida, 309 U.S. 227, 237, 60 S.Ct. 472, 477, 84 L.Ed. 716—were used to compel the confession. Some day the application of § 20 to less obvious methods of coercion may be presented and doubts as to the adequacy of the standard of guilt may be presented. There may be a similar doubt when an officer is tried under § 20 for beating a man to death. That was a doubt stirred in the Screws case; and it was the reason we held that the purpose must be plain, the deprivation of the constitutional right willful. But where police take matters in their own hands, seize victims, beat and pound them until they confess, there cannot be the slightest doubt that the police have deprived the victim of a right under the Constitution. It is the right of the accused to be tried by a legally constituted court, not by a kangaroo court. Hence when officers wring confessions from the accused by force and violence, they violate some of the most fundamental, basic, and well-established constitutional rights which every citizen enjoys. Petitioner and his associates acted willfully and purposely; their aim was precisely to deny the protection that the Constitution affords.1 It was an arrogant and brutal deprivation of rights which the Constitution specifically guarantees. Section 20 would be denied the high service for which it was designed if rights so palpably plain were denied its protection. Only casuistry could make vague and nebulous what our constitutional scheme makes so clear and specific. 9 An effort, however, is made to free Williams by an extremely technical construction of the indictment and charge, so as to condemn the application of § 20 on the grounds of vagueness. 10 The indictment charged that petitioners deprived designated persons of rights and privileges secured to them by the Fourteenth Amendment. These deprivations were defined in the indictment to include 'illegal' assault and battery. But the meaning of these rights in the context of the indictment was plain, viz. immunity from the use of force and violence to obtain a confession. Thus count 2 of the indictment charges that the Fourteenth Amendment rights of one Purnell were violated in the following respects: '* * * the right and privilege not to be deprived of liberty without due process of law, the right and privilege to be secure in his person while in the custody of the State of Florida, the right and privilege not to be subjected to punishment without due process of law, the right and privilege to be immune, while in the custody of persons acting under color of the laws of the State of Florida, from illegal assault and battery by any person exercising the authority of said State, and the right and privilege to be tried by due process of law and if found guilty to be sentenced and punished in accordance with the laws of the State of Florida; that is to say, on or about the 28th day of March, 1947, the defendants arrested and detained and caused to be arrested and detained the said Frank J. Purnell, Jr., and brought and caused him to be brought to and into a certain building sometimes called a shack on the premises of the Lindsley Lumber Co., at or near 3810 N.W. 17th Avenue, in said City of Miami, Florida, and did there detain the said Frank J. Purnell, Jr., and while he was so detained the defendants did then and there illegally strike, bruise, batter, beat, assault and torture the said Frank J. Purnell, Jr., in order illegally to coerce and force the said Frank J. Purnell, Jr., to make an admission and confession of his guilt in connection with the alleged theft of personal property, alleged to be the property of said Lindsley Lumber Co., and in order illegally to coerce and force the said Frank J. Purnell, Jr., to name and accuse other persons as participants in alleged thefts of personal property, alleged to be the property of the said Lindsley Lumber Co., and for the purpose of imposing illegal summary punishment upon the said Frank J. Purnell, Jr.' 11 The trial judge in his charge to the jury summarized Count 2 as meaning that the defendants beat Purnell 'for the purpose of forcing him to make a confession and for the purpose of imposing illegal summary punishment upon him.' He further made clear that the defendants were 'not here on trial for a violation of any law of the State of Florida for assault' nor 'for assault under any laws of the United States.' There cannot be the slightest doubt from the reading of the indictment and charge as a whole that the defendants were charged with and tried for one of the most brutal deprivations of constitutional rights that can be imagined. It therefore strains at technicalities to say that any issue of vagueness of § 20 as construed and applied is present in the case. Our concern is to see that substantial justice is done, not to search the record for possible errors which will defeat the great purpose of Congress in enacting § 20. 12 Affirmed. 13 Mr. Justice BLACK dissents. 14 Mr. Justice FRANKFURTER, Mr. Justice JACKSON and Mr. Justice MINTON, dissenting. 15 Experience in the effort to apply the doctrine of Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, leads Mr. Justice FRANKFURTER, Mr. Justice JACKSON and Mr. Justice MINTON to dissent for the reasons set forth in dissent in that case. 1 The trial judge charged in part on this phase of the case: 'The law denies to anyone acting under color of law, statute, ordinance, regulation or custom the right to try a person by ordeal; that is, for the officer himself to inflict such punishment upon the person as he thinks the person should receive. Now in determining whether this requisite of willful intent was present in this case as to these counts, you gentlemen are entitled to consider all the attendant circumstances: the malice, if any, of the defendants toward these men; the weapon used in the assault, if any; and the character and duration of the investigation, if any, of the assault, if any, and the time and manner in which it was carried out. All these facts and circumstances may be taken into consideration from the evidence that has been submitted for the purpose of determining whether the acts of the defendants were willful and for the deliberate and willful purpose of depriving these men of their Constitutional rights to be tried by a jury just like everyone else.'

12

341 U.S. 58 71 S.Ct. 595 95 L.Ed. 747 UNITED STATESv.WILLIAMS et al. No. 134. Argued Jan. 8, 1951. Decided April 23, 1951. Mr. Philip Elman, Washington, D.C., for appellant. Messrs. Ernest E. Roberts, John D. Marsh, Miami, Fla., for appellees. Mr. Justice REED delivered the opinion of the Court. 1 The United States appeals from an order of the United States District Court for the Southern District of Florida dismissing an indictment against the appellees here. 18 U.S.C. § 3731, 18 U.S.C.A. § 3731. That indictment, 18 U.S.C. § 1621, 18 U.S.C.A. § 1621, charged each appellee with the crime of perjury while testifying in a prior criminal trial. The former trial was on charges of using 'third degree' methods to force confessions from prisoners. 2 In that prior trial, six defendants—the four appellees and two others not here involved—were prosecuted under an indictment, four counts of which charged them, 18 U.S.C. § 241, 18 U.S.C.A. § 241, with conspiring 'to injure, oppress, threaten and intimidate (under color of state law, four citizens of the United States) in the free exercise and enjoyment of the rights and privileges secured * * * and protected by the Fourteenth Amendment. * * *'1 3 The other four counts of the indictment, 18 U.S.C. § 242, 18 U.S.C.A. § 242, charged that Williams, Bombaci, Ford, and another not here involved, as police officers acting under state laws, committed substantive crimes by subjecting four persons to deprivation of certain 'of the rights, privileges and immunities secured * * * and protected by the Fourteenth Amendment,'2 and that Yuhas and another wilfully aided and abetted in the commission of these substantive offenses. 4 In the prior trial, during which this indictment charges perjury was committed, Williams was found guilty by a jury of the substantive offenses. His conviction is affirmed today. See No. 365, Williams v. United States, infra, 341 U.S. 97, 71 S.Ct. 576. The jury found Bombaci and Ford not guilty of these offenses and Yuhas not guilty of aiding and abetting in the commission of these offenses. However, the jury was unable to agree on a verdict as to the four counts which charged conspiracy. Later a new indictment was presented which framed once again the conspiracy charges, and this time the appellees in this case were found guilty. The perjury charges not before us are not based on the proceedings in the second conspiracy trial. On appeal from the conviction in the second trial, and before the trial for perjury, the Court of Appeals quashed the conspiracy indictment and reversed. So far as here important, the basis for the reversal was that § 241 did not apply to the general rights extended to all persons by the Fourteenth Amendment. 179 F.2d 644, 648. This Court, today, affirms the Court of Appeals. No. 26, United States v. Williams, decided today, infra, 341 U.S. 70, 71 S.Ct. 581. 5 In dismissing the indictment in the case now before us, the District Court held, 93 F.Supp. 922, that since Williams had been convicted in the first trial of the substantive counts based upon his beating certain victims, to convict Williams of perjury for testifying that he had not beaten the victims—which is the gist of the perjury indictment against Williams—would constitute double jeopardy. 6 The District Court further reasoned that the jury's finding that Yuhas, Ford and Bombaci had not been guilty of the substantive offenses in the first trial, was a determination of their innocence 'whether as principals or accessories,' and therefore none of the three could be found guilty of the charge made by the perjury indictment: testifying falsely that they had not seen or observed Williams beating the victims. 7 Finally, the District Court reasoned that since the later indictment which repeated the conspiracy charges had been quashed on appeal, there was no jurisdiction to try the defendants on the conspiracy counts in the first criminal trial, and therefore the perjury counts based on the conspiracy counts in the prior case were bad. 8 The United States in its appeal urges that the District Court erred in all three grounds for quashing the perjury indictment. The federal perjury statute, 18 U.S.C. § 1621, 18 U.S.C.A. § 1621, reads as follows: 9 'Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both.' 10 Its terms cover parties as well as other witnesses. If any incident or judgment of a former trial bars a prosecution for perjury under § 1621, that effect must be imported into the perjury trial by a legal rule distinct from the statute. 11 I. Former Jeopardy.—The conviction of Williams, at a former trial, for beating certain victims is not former or double jeopardy. Obviously perjury at a former trial is not the same offense as the substantive offense, under 18 U.S.C. § 242, 18 U.S.C.A. § 242, of depriving a person of constitutional rights under color of law. 'It is only an identity of offenses which is fatal.' Pinkerton v. United States, 328 U.S. 640, 644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489, and cases cited. The trial court does not cite any authority for a contrary position, and appellees concede that the ground for dismissal cannot be sustained. It would be no service to the administration of justice to enlarge the conception of former jeopardy to afford a defendant immunity from prosecution for perjury while giving testimony in his own defense. Appellees' brief treats Williams' conviction as grounds for estoppel or res judicata. 12 II. Res Judicata.—Though former jeopardy by trial for the substantive crimes is not available as a defense against this perjury indictment, it could be that acquittal on the substantive charges would operate 'to conclude those matters in issue which the verdict determined though the offenses be different.' Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 239, 92 L.Ed. 180. 13 Petitioner in the Sealfon case was acquitted of a conspiracy charge of defrauding the United States of its governmental function of conserving and rationing sugar. One item of evidence was a letter to an alleged co-conspirator said to furnish a basis for getting sugar illegally. On another indictment for uttering false invoices for the same sugar involved in the conspiracy, Sealfon moved to quash on the ground of res judicata. The motion was denied and Sealfon was convicted. The test of the soundness of the motion was whether the 'verdict in the conspiracy trial was a determination favorable to petitioner of the facts essential to conviction of the substantive offense.' 332 U.S. at page 578, 68 S.Ct. at page 239, 92 L.Ed. 180. We thought the acquittal of conspiracy determined that Sealfon did not conspire with Greenberg, the only alleged co-conspirator. Admittedly Sealfon wrote a certain letter. 'As we read the records of the two trials, petitioner could be convicted of either offense only on proof that he wrote the letter pursuant to an agreement with Greenberg.' 332 U.S. at page 580, 68 S.Ct. at page 240. The core of the two cases was the same. As the first trial cleared him of sending the letter pursuant to a corrupt agreement, that fact was res judicata. A like basis for res judicata does not exist here. 14 Ford and Bombaci were acquitted in the former trial on all counts charging substantive crimes. Yuhas was charged and acquitted of aiding and abetting. We shall assume with the District Court that Ford and Bombaci were acquitted also of that charge. 18 U.S.C. § 2(a), 18 U.S.C.A. § 2(a). In essence the first prosecution was for arrest and abuse through beatings by police officers Williams, Ford and Bombaci, acting under the laws of Florida, with Yuhas aiding and abetting. The perjury charged in this present indictment, allegedly committed at that former trial in which all except Williams were acquitted of the substantive offenses, is that the three acquitted men testified falsely that they had not seen Williams abuse the prisoner. The trial court thought that 'Whether they had seen or observed Williams beat the victims was a part and parcel of the charge against them in the substantive counts' of abuse and aiding and abetting the abuse. Ehrlich v. United States, 145 F.2d 693, 5 Cir., was cited.3 93 F.Supp. 922. 15 We do not think the facts bring any of these defendants within the protection of res judicata, as recently expounded in Sealfon. Aiding and abetting means to assist the perpetrator of the crime.4 The substantive former charge against appellees here was abuse of a prisoner by police officers under color of state law. An acquittal of such a crime or of aiding and abetting was certainly not a determination that Ford, Bombaci or Yuhas did not see Williams assaulting the prisoners. 16 III. The counts in this indictment which charge that perjury was committed in the first conspiracy trial rely on the same facts to prove the perjury as are detailed above to support the counts of the indictment which charge perjury in the trial of the substantive counts. The trial court in the present case dismissed the counts for perjury committed in the first trial of the conspiracy charge for a different reason than that it gave for dismissal of the other perjury counts. In the first trial no verdict was reached by the jury on the conspiracy counts. The trial court in this case, however, relying upon the determination of the Fifth Circuit in the second conspiracy trial, Williams v. United States, 179 F.2d 644 (now affirmed here, No. 26, United States v. Williams, 341 U.S. 70, 71 S.Ct. 581, decided today), ruled that the former conspiracy indictment did not state an offense, and consequently perjury could not have been committed. The Court said it reached this conclusion because the court that tried the conspiracy indictment had 'no jurisdiction.' Evidently, the trial court was led to this conclusion by the requirement of the perjury statute, 18 U.S.C. § 1621, 18 U.S.C.A. § 1621, that there must be a 'competent tribunal' before a false statement in perjurious. 17 The charge in the conspiracy counts that the appellees, police officers and others, conspired to abuse a prisoner in their hands was based on 18 U.S.C. § 241, 18 U.S.C.A. § 241. The District Court had jurisdiction of offenses against the laws of the United States. 18 U.S.C. § 3231, 18 U.S.C.A. § 3231.5 Hence, it had jurisdiction of the subject matter, to wit, an alleged violation of a federal conspiracy statute, and, of course, of the persons charged. This made the trial take place before 'a competent tribunal': a court authorized to render judgment on the indictment. The circumstance that ultimately it is determined on appeal that the indictment is defective does not affect the jurisdiction of the trial court to determine the case presented by the indictment. 18 This was held as to a civil proceeding in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939. In that case, a suit in a federal district court for damages against federal officers for violation of plaintiff's rights to due process in arrest and freedom from unreasonable search and seizure under the Fourth and Fifth Amendments was held to give the district court jurisdiction sufficient to call for judgment on the merits, even though that judgment should dismiss the complaint for failure to state a cause of action. 327 U.S. at page 682, 66 S.Ct. at page 776. 'Jurisdiction is the power to decide a justiciable controversy, and includes questions of law as well as of fact.' Binderup v. Pathe Exchange, 263 U.S. 291, 305, 44 S.Ct. 96, 98, 68 L.Ed. 308. Even the unconstitutionality of the statute under which the proceeding is brought does not oust a court of jurisdiction. Chicot County District v. Baxter State Bank, 308 U.S. 371, 376, 60 S.Ct. 317, 319, 84 L.Ed. 329. See also Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104; M'Cormick v. Sullivant, 10 Wheat. 192, 6 L.Ed. 300. 19 It is true that there are certain essential facts that must exist to give any power to a court. Noble v. Union River Logging R. Co., 147 U.S. 165, 173, 13 S.Ct. 271, 273, 37 L.Ed. 123. As the existence of those facts are so plainly necessary, e.g., process, examples of decisions are rare. Absence of such facts makes the proceedings a nullity. Such a case was Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370. We there held that the Federal Government, in the exercise of its plenary power over bankruptcy, had ousted state courts of all independent power over farmer bankrupts. Therefore any subsequent orders in the state courts were void. 308 U.S. at pages 440—444, 60 S.Ct. at pages 346 348. In a criminal case we have said that a person convicted by a court without jurisdiction over the place of the crime could be released from restraint by habeas corpus where there were exceptional circumstances such as a conflict of jurisdiction between the state and the Federal Government. Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455. The kind of judicial controversies presented for adjudication in the cases cited above in this paragraph were not cognizable by the respective courts. It is absence of such basic facts of jurisdiction that has led courts to say that false testimony in the proceedings is not punishable as perjury. Where perjury charges arise from alleged false statements by the defendant in former trials, whether in that former trial he was also a defendant or only a witness, the same distinctions appear. Where the court of the first trial had no jurisdiction of the kind of judicial controversies presented for adjudication, a number of courts have held that false testimony in those proceedings is not punishable as perjury.6 So in a case where the court had general jurisdiction of the kind of prosecution, larceny less than felony, but not of the particular proceeding, larceny as a felony, there was no perjury. Johnson v. State, 58 Ga. 397. But where the court in the trial where the alleged perjury occurred had jurisdiction to render judgment on the merits in those proceedings, defects developed dehors the record7 or in the procedure, sufficient to invalidate any judgment on review,8 do not make a subsequent conviction for perjury in the former trial impossible. 20 One can find inconsistent and indeed conflicting rulings among the cases, even from the same jurisdictions, perhaps attributable to the use of the word 'jurisdiction' in the heterogeneous situations that occur. The line is narrow and often wavering between errors in the proceedings and lack of jurisdiction. Wharton, Criminal Law (12th ed.), § 1538. Here, however, we have a federal statute enacted in an effort to keep the course of justice free from the pollution of perjury. We have a court empowered to take cognizance of the crime of perjury and decide the issues under that statute. The effect of the alleged false testimony could not result in a miscarriage of justice in this case but the federal statute against perjury is not directed so much at its effects as at its perpetration; at the probable wrong done the administration of justice by false testimony. That statute has led federal courts to uphold charges of perjury despite arguments that the federal court at the trial affected by the perjury could not enter a valid judgment due to lack of diversity jurisdiction,9 or due to the unconstitutionality of the statute out of which the perjury proceedings arose.10 21 Where a federal court has power, as here, to proceed to a determination on the merits, that is jurisdiction of the proceedings. The District Court has such jurisdiction.11 Though the trial court or an appellate court may conclude that the statute is wholly unconstitutional, or that the facts stated in the indictment do not constitute a crime or are not proven, it has proceeded with jurisdiction and false testimony before it under oath is perjury. 22 Reversed. 23 Mr. Justice BLACK and Mr. Justice FRANKFURTER dissent. 1 The indictment specified the following 'rights and privileges': '* * * the right and privilege not to be deprived of liberty without due process of law, the right and privilege to be secure in his person while in the custody of the State of Florida, the right and privilege not to be subjected to punishment without due process of law, the right and privilege to be immune, while in the custody of persons acting under color of the laws of the State of Florida, from illegal assault and battery by any person exercising the authority of said State, and the right and privilege to be tried by due process of law and if found guilty to be sentenced and punished in accordance with the laws of the State of Florida; * * *.' 2 The specific 'rights and privileges' are the same as those listed in note 1. 3 In the Ehrlich case an acquittal of a charge of violation of the Price Control Act, 50 U.S.C.App. § 901 et seq., 50 U.S.C.A.Appendix, § 901 et seq., by collecting more than the sale bills for meat showed was held to bar a perjury charge that Ehrlich had sworn falsely that he had not received any payment for any sale at a price in excess of that shown on the sales slips. It was held that the plea in bar of the second prosecution was good on the ground that the allegedly perjurious words were the basis of the former crime charged and therefore the acquittal barred the perjury prosecution. A number of other cases are cited in appellees' brief. They support the rule that an acquittal on facts essential to conviction on the subsequent charge bars a later prosecution. None deal with the situation of Williams who was convicted on the prior trial of abuse under 18 U.S.C. § 242, 18 U.S.C.A. § 242. He can, of course, claim no bar against prosecution on a theory of estoppel since the facts in the former trial, if applicable to the subsequent one, were found against him. The cases are: United States v. De Angelo, 3 Cir., 138 F.2d 466, United States v. Butler, D.C., 38 F. 498; Chitwood v. United States, 8 Cir., 178 F. 442; Allen v. United States, 4 Cir., 194 F. 664, 39 L.R.A.,N.S., 385; Youngblood v. United States, 8 Cir., 266 F. 795; Kuskulis v. United States, 10 Cir., 37 F.2d 241. 4 To be present at a crime is not evidence of guilt as an aider or abettor. Hicks v. United States, 150 U.S. 442, 447, 450, 14 S.Ct. 144, 145, 147, 37 L.Ed. 1137. Cf. United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 225, 92 L.Ed. 210; 12 A.L.R. 279. The instructions at the trial of the substantive crimes followed this rule. E.g., 'I can't make it too emphatic to you, gentlemen, that mere presence when a crime is committed is, of course, not sufficient to render one guilty as aider or abettor.' 5 'The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. 'Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof.' 6 E.g., Collins v. State, 78 Ala. 433; Paine's Case, Yelv. 111, 80 Eng.Rep. 76 (1792). 7 82 A.L.R. 1138. 8 82 A.L.R. 1137. 9 West v. United States, 6 Cir., 258 F. 413, 416. 10 Boehm v. United States, 8 Cir., 123 F.2d 791, 809. Cf. Kay v. United States, 303 U.S. 1, 6, 58 S.Ct. 468, 471, 82 L.Ed. 607; Howat v. State of Kansas, 258 U.S. 181, 186, 189, 42 S.Ct. 277, 279, 280, 66 L.Ed. 550; Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979; United States v. United Mine Workers, 330 U.S. 258, 289—295, 67 S.Ct. 677, 693, 696, 91 L.Ed. 884. 11 The validity of § 241 has been repeatedly upheld. E.g., United States v. Mosley, 238 U.S. 383, 386, 35 S.Ct. 904, 905, 59 L.Ed. 1355; Logan v. United States, 144 U.S. 263, 293, 12 S.Ct. 617, 626, 36 L.Ed. 429; Ex parte Yarbrough, 110 U.S. 651, 667, 4 S.Ct. 152, 160, 28 L.Ed. 274.

01

341 U.S. 70 71 S.Ct. 581 95 L.Ed. 758 UNITED STATESv.WILLIAMS et al. No. 26. Argued Jan. 8, 1951. Decided April 23, 1951. Mr. Philip Elman, Washington, D.C., for petitioner. Mr. John D. Marsh, Miami, Fla., for respondent Charles R. Ford. Mr. Justice FRANKFURTER announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice JACKSON and Mr. Justice MINTON joined. 1 In 1947 a Florida corporation employed a detective agency to investigate thefts of its property. The inquiry was conducted by one Williams, the head of the agency, and among the participants were two of his employees and a member of the Miami police force detailed to assist in the investigation. Certain of the company's employees fell under suspicion; and Williams and his collaborators, without arresting the suspects, took them one by one to a shack on the company's premises. There the investigators subjected them to the familiar 'third-degree' which, after blows, kicks, threats, and prolonged exposure to a brilliant light, yielded 'confessions.' 2 Williams and the other three were thereupon indicted for violation of §§ 19 and 20 of the Criminal Code of the United States. 18 U.S.C. (1946 ed.) §§ 51 and 52, now 18 U.S.C. (1950 ed.) §§ 241 and 242, 18 U.S.C.A. §§ 241, 242. Williams was convicted under § 20, the indictment alleging that he 'wilfully, under color of the laws, statutes, ordinances, regulations and customs of the State of Florida * * * subjected * * * an inhabitant of the State of Florida, to deprivation of the rights, privileges and immunities secured to him and protected by the Fourteenth Amendment * * *.' 3 This conviction is reviewed in No. 365, 341 U.S. 97, 71 S.Ct. 576, infra, also decided this day. The other defendants were acquitted of the charges under § 20, and as to all defendants a mistrial was declared under § 19. This outcome of the indictment under §§ 19 and 20 was followed by a new indictment against the four defendants under § 19. The indictment alleged that 'acting under the laws of the State of Florida' the defendants 'conspired to injure * * * a citizen of the United States and of the State of Florida, in the free exercise and enjoyment of the rights and privileges secured to him and protected by the Fourteenth Amendment * * *.' This time all the defendants were convicted; but on appeal the Court of Appeals for the Fifth Circuit reversed. It held that in the conspiracy provision of § 19 'the Congress had in mind the federal rights and privileges which appertain to citizens as such and not the general rights extended to all persons by the clause of the Fourteenth Amendment.' 179 F.2d 644, 648. In the alternative, the court concluded that a broader construction of § 19 would render it void for indefiniteness, and that there was error in the judge's charge as well as in the exclusion of evidence of the prior acquittal of three of the defendants. Together with Nos. 134 and 365 of this Term, 341 U.S. 58, 71 S.Ct. 595; 341 U.S. 97, 71 S.Ct. 576, the other two cases growing out of the same affair, we brought the case here because important questions in the administration of civil rights legislation are raised. 340 U.S. 849, 71 S.Ct. 77. 4 The alternative grounds for the decision of the Court of Appeals need not be considered, for we agree that § 241 (to use the current designation for what was § 19 of the Criminal Code) does not reach the conduct laid as an offense in the prosecution here. This is not because we deny the power of Congress to enforce by appropriate criminal sanction every right guaranteed by the Due Process Clause of the Fourteenth Amendment; nor is it because we fully accept the course of reasoning of the court below. We base our decision on the history of § 241, its text and context, the statutory framework in which it stands, its practical and judicial application—controlling elements in construing a federal criminal provision that affects the wise adjustment between State responsibility and national control of essentially local affairs. The elements all converge in one direction. They lead us to hold that § 241 only covers conduct which interferes with rights arising from the substantive powers of the Federal Government. 5 What is now known as § 241 originated as § 6 of the Act of May 31, 1870, 16 Stat. 140. That statute was entitled 'An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes.' In furtherance of its chief end of assuring the right of Negroes to vote, it provided in §§ 2 and 3 that it should be a misdemeanor for any 'person or officer' wrongfully to fail in a duty imposed on him by State law to perform or permit performance of acts necessary to registering or voting. In § 4 interference with elections by private persons was made a similar offense. In the course of passage through Congress several sections were added which had a larger purpose. One of them, § 17, was derived from the Civil Rights Act of 1866, 14 Stat. 27, and was designed to 'secure to all persons the equal protection of the laws.'1 It imposed imprisonment up to one year and a fine up to one thousand dollars on 'any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by the last preceding section of this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens * * *.' 16 Stat. 140, 144. Through successive revisions it has become § 242, the application of which to the facts before us is considered in No. 365, 341 U.S. 97, 71 S.Ct. 576, infra. 6 Another of the broader provisions is the section which is our immediate concern. This was its original form: 'Sec. 6. And be it further enacted, That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court,—the fine not to exceed five thousand dollars, and the imprisonment not to exceed ten years,—and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the Constitution or laws of the United States.' 16 Stat. 140, 141. 7 The dominant conditions of the Reconstruction Period were not conducive to the enactment of carefully considered and coherent legislation. Strong post-war feeling caused inadequate deliberation and led to loose and careless phrasing of laws relating to the new political issues. The sections before us are no exception. Although enacted together, they were proposed by different sponsors and hastily adopted. They received little attention in debate. While the discussion of the bill as a whole fills about 100 pages of the Congressional Globe, only two or three related to § 6, and these are in good part a record of complaint that the section was inadequately considered or understood.2 8 Nevertheless some conclusions are warranted. The first is that interference with civil rights by State officers was dealt with fully by § 17 of the Act. Three years before its enactment Congress had passed the first general conspiracy statute. Act of March 2, 1867, § 30, 14 Stat. 484, R.S. § 5440, now 18 U.S.C. (1950 ed.) § 371, 18 U.S.C.A. § 371. This provision, in conjunction with § 17, reached conspiracies under color of State law to deprive persons of rights guaranteed by the Fourteenth Amendment. No other provision of the Act of 1870 was necessary for that purpose. 9 The second conclusion is that if language is to carry any meaning at all it must be clear that the principal purpose of § 6, unlike § 17, was to reach private action rather than officers of a State acting under its authority. Men who 'go in disguise upon the public highway, or upon the premises of another' are not likely to be acting in official capacities. The history of the times—the lawless activities of private bands, of which the Klan was the most conspicuous—explains why Congress dealt with both State disregard of the new constitutional prohibitions and private lawlessness.3 The sponsor of § 6 in the Senate made explicit that the purpose of his amendment was to control private conduct.4 10 These two conclusions strongly suggest a third: that the rights which § 6 protects are those which Congress can beyond doubt constitutionally secure against interference by private individuals. Decisions of this Court have established that this category includes rights which arise from the relationship of the individual and the Federal Government. The right of citizens to vote in congressional elections, for instance, may obviously be protected by Congress from individual as well as from State interference. Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274. On the other hand, we have consistently held that the category of rights which Congress may constitutionally protect from interference by private persons excludes those rights which the Constitution merely guarantees from interference by a State. Thus we held that an individual's interest in receiving a fair trial in State courts cannot be constitutionally vindicated by federal prosecution of private persons. United States v. Powell, 212 U.S. 564, 29 S.Ct. 690, 53 L.Ed. 653; accord, Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65; United States v. Wheeler, 254 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270. The distinction which these decisions draw between rights that flow from the substantive powers of the Federal Government and may clearly be protected from private interference, and interests which the Constitution only guarantees from interference by States, is a familiar one in American law. See, e.g., Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664. 11 To construe § 6 so as to protect interests not arising from the relationship of the individual with the Federal Government, but only guaranteed by the Constitution from interference by the States, would make its scope duplicate the coverage of § 17 and the general conspiracy clause. That this is not in fact what Congress desired is confirmed by further examination of the text of the statute. Full allowance for hasty draftsmanship cannot obscure clear indications from the text that the category of interests protected by § 6 does not include the rights against State action secured by § 17. 12 Thus, when Congress wished to protect from State action interests guaranteed by the Fourteenth Amendment, it described them in § 17 as rights 'secured or protected' by the Constitution. But in § 6 the narrower phrase 'granted or secured' is used to define the interests protected from interference by individuals. When Congress wanted to reach action by State officers, the explicit reference in § 17 to 'color' of State law demonstrates that Congress knew how to make this purpose known. Similarly, reference in §§ 2 and 3 to 'persons or officers' indicates that Congress was able explicitly to draft a section applicable to persons acting in private and official capacities alike. In contrast, § 6 was made applicable simply to 'persons.' Nothing in its terms indicates that color of State law was to be relevant to prosecution under it.5 13 To find this significance in the text of the Act of 1870 is not to give undue weight to differences in phraselogy appearing in the statute. For the text of these sections has been considered by Congress not once but five times. Some minor changes of phraseology were made in the course of the successive revisions. But neither the Revised Statutes of 1874—1878, nor the Criminal Code of 1909, nor the 1926 codification in the United States Code, nor the 1948 revision of the Criminal Code, indicates either in text or revisor's commentary any change in substance. The continuity of meaning is indicated in the Appendix to this opinion. 14 In three of the revisions, furthermore, Congress had before it a consistent course of decisions of this Court indicating that § 6—now § 241—was in practice interpreted only to protect rights arising from the existence and powers of the Federal Government. The pattern was established by United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588. The defendants were indicted for conspiring to deprive some Negro citizens of rights secured by the Constitution. This Court affirmed the decision of the Circuit Court arresting judgment entered on a verdict of guilty. It found that counts alleging interference with rights secured by the First, Second, Fourteenth and Fifteenth Amendments were objectionable because the rights asserted were not 'granted or secured by the Constitution or laws of the United States' within the meaning of the statute. 92 U.S. at 551, 23 L.Ed. 588. The pattern set by this case has never been departed from. 15 Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274, was the first of seven decisions in which the Court held or assumed that the right to vote in federal elections was protected by this legislation because it was a right 'granted or secured' by the Constitution or laws of the United States. Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340; United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355; and United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341, held that interference by private persons with the right to vote in general elections for members of Congress is an offense under § 241; in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, the statute was found applicable to the Louisiana system of primary elections for Congress.6 16 In United States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673, interference with the right to establish a claim under the Homestead Acts brought the offender within § 241. The right did not pertain to United States citizenship; but since it was 'wholly dependent upon the act of Congress,' obstructing its exercise came 'within the purview of the statute and of the constitutional power of Congress to make such statute.' 112 U.S. at 79, 80, 5 S.Ct. at page 37, 28 L.Ed. 673. Similarly, the Court has held that assault upon a citizen in the custody of a United States marshal is a violation of the statute, Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. And so, a citizen may not be denied the right to inform on violation of federal laws. In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150. 17 Contrariwise, we have held that conspiracies to force citizens to give up their jobs or compel them to move out of a State are not within the terms of the statute. Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65; United States v. Wheeler, 254 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270. And in United States v. Powell, 212 U.S. 564, 29 S.Ct. 690, 53 L.Ed. 653, we held that participants in a mob which seized a Negro from the custody of the local sheriff and lynched him were not indictable under § 241.7 18 In none of these decisions was the precise issue before us decided, for in none was it alleged that the defendants acted under color of State law. But the validity of a conviction under § 241 depends on the scope of that section, which cannot be expanded by the draftsman of an indictment. The uses to which a statute has been put are strong evidence of the ends it was intended to serve. In this instance the decisions buttress what common sense and a spontaneous reading of the statute independently make clear, and give added significance to repeated reenactment without substantial change.8 All the evidence points to the same conclusion: that § 241 applies only to interference with rights which arise from the relation of the victim and the Federal Government, and not to interference by State officers with rights which the Federal Government merely guarantees from abridgment by the States. 19 To reject this evidence and hold the indictment valid under § 241 not only involves a new, distorting construction of an old statute. It also makes for redundancy and confusion and raises some needless constitutional problems. For if we assume that a conspiracy such as that described here is under color of State law, it can be reached under § 242 and the general conspiracy statute. Indeed, the defendants before us were indicted and tried for violation of § 242; the conviction of one of them under that section is before us in No. 365. Unlike § 242, the section now before us is not qualified by the requirement that the defendants have acted 'wilfully,' and the very specialized content attributed to that word was found essential to sustaining § 242 in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. Nor does the defined crime have as an ingredient that the conspiracy be under color of State law. Criminal statutes should be given the meaning their language most obviously invites. Their scope should not be extended to conduct not clearly within their terms. 20 We therefore hold that including an allegation that the defendants acted under color of State law in an indictment under § 241 does not extend the protection of the section to rights which the Federal Constitution merely guarantees against abridgment by the States. Since under this interpretation of the statute the indictment must fall, the judgment of the court below is affirmed. 21 Affirmed. APPENDIX 22 Criminal Civil Rights Legislation: Comparative Table of Successive Phraseology 23 Material deleted by next subsequent revision shown in brackets. Material added or substituted in revision shown in italics Act of April 9, 1866, 14 Stat. 27 24 SEC. 2. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person [having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or] by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court. Act of May 31, 1870, 16 Stat. 141, 144 25 SEC. 6. And be it further enacted, That if two or more persons [shall band or] conspire [together], or go in disguise upon the [public] highway, or upon the premises of another, with intent to [violate any provision of this act, or to] injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege [granted or] secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons [shall be held guilty of felony, and, on conviction thereof,] shall be fined or imprisoned, [or both, at the discretion of the court,]—the fine not to exceed five thousand dollars, and the imprisonment not to exceed ten years,—and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the Constitution or laws of the United States.1 26 SEC. 17. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, [shall] subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by the last preceding section of this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, [in the discretion of the court].2 Revised Statutes of 1874-1878 27 SEC. 5508. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not more than ten years; and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.1 28 SEC. 5510. Every person who, under color of any law, statute, ordinance, regulation, or custom, subjects, or causes to be subjected, any inhabitant of any State or Territory to the deprivation of any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color or race, than are prescribed for the punishment of citizens, shall be punished by a fine of not more than one thousand dollars, or by imprisonment not more than one year, or by both. Criminal Code of 1909, 35 Stat. 1092 29 SEC. 19. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States. 30 SEC. 20. Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than one thousand dollars, or imprisoned not more than one year, or both. 31 United States Code, 1926 Codification, 44 Stat. 462, now 1946 ed. 32 Section 51. Conspiracy to injure persons in exercise of civil rights.—If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 and imprisoned not more than ten years, [and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States]. 33 52. Depriving citizens of civil rights under color of State laws.—Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, [or causes to be subjected,] any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punish- ments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both. 34 Title 18, United States Code, as revised in 1948 35 s. 241. Conspiracy against rights of citizens 36 If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or 37 If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured— They shall be fined not more than $5,000 or imprisoned not more than ten years, or both. 38 s. 242. Deprivation of rights under color of law 39 Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both. 40 Mr. Justice BLACK, concurring. 41 This is one of three prosecutions of respondents Williams, Ford, Bombaci and Perry arising out of their alleged conduct in brutally coercing confessions from certain persons suspected of theft. The first prosecution was under an indictment charging respondents and two other defendants not now before us with violation of the substantive offense and conspiracy sections of the Civil Rights Act. 18 U.S.C. (1946 ed.) §§ 51, 52 now 18 U.S.C. §§ 241, 242. That trial resulted in conviction of respondent Williams and acquittal of the other five on the substantive counts; a mistrial was declared as to all defendants on the conspiracy counts.1 Shortly thereafter two new indictments were returned: One again charged the six defendants with the same conspiracy; the other charged four of them with having committed perjury during their first trial.2 On the second trial for conspiracy all were convicted and it is these convictions of respondents that we review in the present case. 42 I am convinced from the records before us that the principle of res judicata should have barred the Government from trying respondents on this second indictment for conspiracy. In the first trial the judge instructed the jury to convict on the substantive counts all defendants who either committed that crime or aided, abetted, assisted, counseled, encouraged, commanded, induced, procured or incited any other person to do so. Acquittal of the five defendants was, therefore, a final determination that they had done none of these things, or, in effect, that they had nothing to do with the commission of the substantive offense itself. The principle of res judicata of course precludes a relitigation of the same factual issues in any subsequent trial. Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180. This being true, the broad scope of the facts found adversely to the Government in the first trial barred a conviction of the five defendants upon the second trial because there is no evidence that they conspired except insofar as the unlawful agreement can be inferred from their having participated in some way in the substantive crime. Consequently, the conspiracy convictions cannot stand as to respondents Ford, Bombaci and Perry, these three being among those previously found not guilty of the substantive charge. 43 Nor should the conspiracy conviction of respondent Williams stand under these circumstances. The indictment did not allege and there was no evidence to suggest that he conspired with any one other than the five named defendants. As a result, when the Government was precluded by res judicata from proving the guilt of any of Williams' alleged co-conspirators, the basis of the conspiracy charged as to Williams was necessarily removed since one person obviously cannot conspire with himself. Cf. Morrison v. People of State of California, 291 U.S. 82, 93, 54 S.Ct. 281, 286, 78 L.Ed. 664; Feder v. United States, 2 Cir., 257 F. 694, 5 A.L.R. 370; see also the cases collected in 72 A.L.R. 1180, 1186—1187; 97 A.L.R. 1312, 1313, 1316—1317. 44 Because, for the foregoing reasons, I believe the conspiracy convictions of respondents must fail, I find it unnecessary to determine whether 18 U.S.C. (1946 ed.) § 51, now 18 U.S.C. (1946 ed., Supp. III) § 241, 18 U.S.C.A. § 241, as applied, is too vague and uncertain in scope to be consistent with the Fifth Amendment. 45 Mr. Justice DOUGLAS, with whom Mr. Justice REED, Mr. Justice BURTON, and Mr. Justice CLARK concur, dissenting. 46 Sections 19 and 20 of the Criminal Code, now 18 U.S.C. §§ 241, 242, are companion sections designed for the protection of great rights won after the Nation's most critical internal conflict. Section 19 covers conspiracies; § 20, substantive offenses. Section 19 protects the 'citizen'; § 20 the 'inhabitant.' The sanction of § 19 extends to 'any right or privilege secured' to the citizen 'by the Constitution or laws of the United States'; the sanction of § 20 to 'any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.'1 47 Mr. Justice Rutledge in Screws v. United States, 325 U.S. 91, 119, 65 S.Ct. 1031, 1044, 89 L.Ed. 1495, wrote that in spite of the difference in wording of §§ 19 and 20 there are 'no differences in the basic rights guarded. Each protects in a different way the rights and privileges secured to individuals by the Constitution.' One would indeed have to strain hard at words to find any difference of substance between 'any right or privilege secured' by the Constitution or laws of the United States (§ 19) and 'any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States' (§ 20). If § 20 embraces a broader range of rights than § 19, it must be because it includes 'immunities' as well as 'rights' and 'privileges' and 'protects' them as well as 'secures' them. When no major difference between §§ 19 and 20 is apparent from the words themselves, it is strange to hear it said that though § 20 extends to rights guaranteed against state action by the Fourteenth Amendment, § 19 is limited to rights which the Federal Government can secure against invasion by private persons. The division of powers between State and Nation is so inherent in our republican form of government and so well established throughout our history that if Congress had desired to draw a distinction along that line, it is hard to imagine that it would not have made its purpose clear in the language used.2 48 It is true that §§ 19 and 20 have different origins. Section 20 came into the law as § 2 of the Act of April 7, 1866, 14 Stat. 27, while § 19 first appeared as § 6 of the Act of May 31, 1870, 16 Stat. 141. We reviewed the history of § 20 in Screws v. United States, 325 U.S. 91, 98—100, 65 S.Ct. 1031, 1033—1034, 89 L.Ed. 1495. The legislative history makes plain that § 20 was an antidiscrimination measure designed to protect Negroes in their newly won rights. It was enacted before the Fourteenth Amendment became effective. But after that date it was reenacted as § 17 of the Act of May 31, 1870, 16 Stat. 144; and in 1874 the prohibition against 'the deprivation of any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States' was introduced. R.S. § 5510. From this history there can be no doubt, as we stated in Screws v. United States, supra, 325 U.S. at page 100, 65 S.Ct. at pages 1034, 1035, and § 20 is 'one of the sanctions to the great rights which the Fourteenth Amendment was designed to secure.' If that be true—if 'rights, privileges, or immunities secured or protected by the Constitution and laws of the United States' as used in § 20 are not restricted to rights which the Federal Government can secure against interference by private persons—it is difficult to understand why 'any right or privilege secured to him by the Constitution or laws of the United States', as used in § 19, is so restricted. 49 It is true that a part of the purpose of § 19 (which, as I have said, originated as § 6 of the Act of May 31, 1870, 16 Stat. 141) was to give sanction to the right to vote which was guaranteed by the Fifteenth Amendment, recently adopted. That is made plain from the congressional debates. Cong. Globe, Pt. 4, 41st Cong., 2d Sess., pp. 3607 et seq. Yet the rights which § 19 protected were not confined to voting rights; and one who reads the legislative history finds no trace of a suggestion that the broadening of the language of § 19 to include 'any right or privilege secured' by the Constitution or laws of the United States was aimed only at those rights 'secured' by the Federal Government against invasion by private persons. 50 The distinction now urged has not been noticed by students of the period. Thus Flack, in Adoption of the Fourteenth Amendment (1908) p. 223, wrote, 'The bill as passed by the Houses was signed by the President May 31, 1870, and so became a law, and was, therefore, the first law for the enforcement of the Fourteenth and Fifteenth Amendments.' And see Mr. Justice Roberts in Hague v. C.I.O., 307 U.S. 496, 510, 59 S.Ct. 954, 961, 83 L.Ed. 1423. If the drastic restriction now proposed for § 19 had been part of the architectural scheme for the Act of May 31, 1870, it is difficult to imagine that some trace of the purpose would not have been left in the legislative history. What we find points indeed the other way. Senator Pool of North Carolina, who introduced the section from which § 19 evolved, indicated that it was his purpose to extend the protection of the new provision to the Fourteenth as well as to the Fifteenth Amendment.3 It has, indeed, long been assumed that § 19 had a coverage broad enough to include all constitutional rights. Thus in United States v. Mosley, 238 U.S. 383, 387, 35 S.Ct. 904, 905, 59 L.Ed. 1365, Mr. Justice Holmes observed that § 19 'dealt with Federal rights, and with all Federal rights.' 51 There is no decision, prior to that of the Court of Appeals in this case, which is opposed to that view. Fourteenth Amendment rights have sometimes been asserted under § 19 and denied by the Court. That was true in United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588. But the denial had nothing to do with the issues in the present case. The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals. See Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. The Cruikshank case, like others,4 involved wrongful action by individuals who did not act for a state nor under color of state authority. As the Court in the Cruikshank case said, 'The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it * * * add anything to the rights which one citizen has under the Constitution against another.' 92 U.S. pp. 554—555, 23 L.Ed. 588. There is implicit in this holding, as Mr. Justice Rutledge observed in the Screws case, supra, 325 U.S. at page 125, note 22, 65 S.Ct. at page 1047, 89 L.Ed. 1495, that wrongful action by state officials would bring the case within § 19. For the Court in the Cruikshank case stated, 'The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.' 52 Section 19 has in fact been applied to the protection of rights under the Fourteenth Amendment. See United States v. Hall, 26 Fed.Cas. page 79, No. 15,282; United States v. Mall, 26 Fed.Cas. page 1147, No. 15, 712; Ex parte Riggins, C.C., 134 F. 404, writ dismissed, 199 U.S. 547, 26 S.Ct. 147, 50 L.Ed. 303. Those attempts which failed did so not because § 19 was construed to have too narrow a scope, but because the action complained of was individual action, not state action. See, e.g., United States v. Powell, C.C., 151 F. 648, affirmed, 212 U.S. 564, 29 S.Ct. 690, 53 L.Ed. 653; Powe v. United States, 5 Cir., 109 F.2d 147. 53 While it is true, as Mr. Justice Rutledge stated in the Screws case, that there is no difference between §§ 19 and 20 so far as the 'basic rights guarded' are concerned, the coverage of the two sections is not coterminous. The difference is not merely in the fact that § 19 covers conspiracies and § 20 substantive offenses. Section 20 extends only to those who act 'under color' of law, while § 19 reaches 'two or more persons' who conspire to injure any citizen in the enjoyment of any right or privilege secured to him by the Constitution, etc. The reach of § 20 over deprivations of rights protected from invasion by private persons is therefore in this one respect less than that of § 19. But that is no comfort to respondents in the present case. It certainly cannot be doubted that state officers, or those acting under color of state law, who conspire to wring confessions from an accused by force and violence, are included in 'two or more persons' within the meaning of § 19. As we hold in No. 365, Williams v. United States, 71 S.Ct. 576, decided this day, such an act deprives the accused of the kind of trial which the Fourteenth Amendment guarantees. He is therefore denied the enjoyment of that right, within the meaning of § 19. 54 In Screws v. United States, supra, we relieved § 20 of the risk of unconstitutionality by reason of vagueness. We held that 'a requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness.' 325 U.S. p. 103, 65 S.Ct. at page 1036, 89 L.Ed. 1495. The same analysis does like service here, as evidenced both by the construction of § 19 and the charge to the jury in this case. 55 A conspiracy by definition is a criminal agreement for a specific venture. It is 'a partnership in crime.' United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253, 60 S.Ct. 811, 858, 84 L.Ed. 1129. As stated by Mr. Justice Holmes in Frohwerk v. United States, 249 U.S. 204, 209, 39 S.Ct. 249, 251, 63 L.Ed. 561, an 'intent to accomplish an object cannot be alleged more clearly than by stating that parties conspired to accomplish it.' The trial court in its charge to the jury followed the ruling in the Screws case and gave precise application to this concept in avoidance of any claim of unconstitutionality of § 19 on the grounds of vagueness. The court, after explaining to the jury what rights, enumerated in the indictment, were guaranteed under the Fourteenth Amendment, gave numerous charges on the element of intent. The following is typical: 56 'In order to convict under this indictment, it is necessary for the jury to find that the defendants had in mind the specific purpose of depriving the complaining witnesses of those rights guaranteed them under the Fourteenth Amendment to the Constitution of the United States, which are enumerated in the indictment, while acting under color of the laws of the State of Florida. 57 'The proof, if any, of a general intent to do the complaining witnesses a wrong is not sufficient, but a specific intent to deprive them of a Constitutional right, as the object of the conspiracy, if any, is a burden the law casts upon the Government. In considering whether the defendants had such specific intent, you may take into consideration all the circumstances of the case in the light of the evidence as it has been developed.' In view of the nature of the conspiracy and charge to the jury in the instant case, it would be incongruous to strike § 19 down on the grounds of vagueness and yet sustain § 20 as we did in the Screws case. 58 The defense of res judicata is based on the acquittal of five of the respondents for violation of § 20—the substantive offense. It is argued that there is no evidence that the five conspired except insofar as the unlawful agreement can be inferred from their having participated in some way in the substantive crime. It is further argued that acquittal on the substantive counts was a determination that the five had nothing to do with the commission of the substantive offense. The conclusion therefore is that their conviction of the conspiracy entailed a relitigation, in violation of the principles of Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180, of the factual issues involved in the prior trial. 59 The argument, however, is too facile for the facts. 60 First. The substantive crime was one of aiding and abetting. That offense has 'a broader application' than conspiracy. 'It makes a defendant a principal when he consciously shares in any criminal act whether or not there is a conspiracy.' Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919. Respondents may have conspired to do the act without actually aiding in its commission. In other words, the crimes are different. 61 Second. In the Sealfon case the jury's acquittal of the first offense necessarily constituted a rejection of the only evidence presented at the second trial and upon which conviction of the record offense depended. That was not true here. The acquittals on the substantive charges by no means established that the jury rejected all the evidence against the defendants. For example, the acquittals of the substantive offense may have been on the ground that the evidence showed no giving of actual aid to Williams when he obtained the confessions by force and violence. The evidence, though insufficient to show that the five participated in the execution of the project, could nonetheless make overwhelmingly clear that they were members of the conspiracy that conceived it. 62 The links that tied respondents to the conspiracy are therefore not necessarily those that the jury rejected in the earlier trial. Accordingly the rule of Sealfon v. United States, supra, has no application. 1 See the remarks of Senator Stewart at the time he proposed the amendment, Cong.Globe, 41st Cong., 2d Sess., 3480 (1870). 2 Sections 2, 3, and 4 appeared in the bill as it was first introduced into the Senate. Cong.Globe, 41st Cong., 2d Sess. 3480 (1870). Section 17 was proposed by Senator Stewart at the outset of the debate. Ibid. Section 6 was subsequently proposed by Senator Pool. Id., 3612. The debate of the Senate, which considered the Act as in Committee of the Whole, is found between pp. 3479 and 3808 of the Congressional Globe. Illustrative of the discussion of the consideration given the Act are these remarks of Senator Casserly: 'One of the worst provisions of the bill as it passed this body and as it went to the committee of conference, was a provision which escaped escaped the notice of nearly every one of the minority of this body, and I verily believe of a very considerable portion of the majority of the Senators in this body. I refer to those provisions which were taken out of a bill for the enforcement of the fourteenth amendment. 'Now, is it a fit thing that legislation of that importance should go through the American Congress unknown to those members who had taken the greatest interest in informing themselves, as well as to that large body of other members whose right it was to know upon what they were voting? * * * I shall not undertake to show how far the course of the majority, in forcing the Senate bill through to a final vote at a midnight session of unusual duration, without the least public demand or exigency for such a proceeding, contributed to such a result; how far it contributed to the making, to the enacting into a law of provisions which were not supposed or understood by a considerable portion of the body to be in the bill that was before it.' Id., 3759. See also the remarks of Senators Thurman and Stewart, id., 3672, 3808. The House devoted very little attention to the Act. See id., 1812, 3503, 3853, 3871. 3 The depth of feeling which the lawlessness of the period evoked is reflected in the letter of Chief Justice Thomas Ruffin to his son, July 8, 1869. See 4 Hamilton, The Papers of Thomas Ruffin, 225. 4 In introducing the provisions Senator Pool said, 'There are, Mr. President, various ways in which the right secured by the fifteenth amendment may be abridged by citizens in a State. If a State should undertake by positive enactment, as I have said, to abridge the right of suffrage, the courts of the country would prevent it; and I find that in section two of the bill which has been proposed as a substitute by the Judiciary Committee of the Senate provision is made for cases where officers charged with registration or officers charged with the assessment of taxes and with making the proper entries in connection therewith, shall refuse the right to register or to pay taxes to a citizen. * * * But, sir, individuals may prevent the exercise of the right of suffrage; individuals may prevent the enjoyment of other rights which are conferred upon the citizen by the fourteenth amendment, as well as trespass upon the right conferred by the fifteenth. Not only citizens, but organizations of citizens, conspiracies, may be and are, as we are told, in some of the States formed for that purpose.' Id., 3611. The only other pertinent remarks of the Senator are these: 'I believe that the United States has the right, and that it is an incumbent duty upon it, to go into the States to enforce the rights of the citizens against all who attempt to infringe upon those rights when they are recognized and secured by the Constitution of the country. * * * 'Mr. President, the liberty of a citizen of the United States, the prerogatives, the rights, and the immunities of American citizenship, should not be and cannot be safely left to the mere caprice of States either in the passage of laws or in the withholding of that protection which any emergency may require. It a State by omission neglects to give to every citizen within its borders a free, fair, and full exercise and enjoyment of his rights it is the duty of the United States Government to go into the State, and by its strong arm to see that he does have the full and free enjoyment of those rights.' Id., 3613. In both these passages the Senator states clearly that his proposals are intended to be applicable to private persons. In neither does he indicate distinctly the nature of the rights which § 6 is to protect. The phrase 'rights which are conferred upon the citizen by the fourteenth amendment' does not necessarily refer to interests guaranteed by the Amendment against State action. It may be relevant only to the new federal rights created by the Amendment through conferring citizenship on persons not previously entitled to it. 5 The position of § 6 in the statute as well as its phraseology indicates that it was not intended to be a companion to § 17, and to punish conspiracies wherever that section prohibited the substantive offense. It is likewise clear that § 6 was not intended to apply the provisions of § 17 to private persons in the sense that § 4 supplements §§ 2 and 3. The location of § 6 in the statute to the contrary confirms that its purpose and coverage are distinct from the other provisions of the law. 6 The two other decisions involving elections found the indictments wanting because what was charged was not deemed to constitute an effective interference with the exercise of a voter's feferal franchise. United States v. Gardwell, 243 U.S. 476, 37 S.Ct. 407, 61 L.Ed. 857; United States v. Bathgate, 246 U.S. 220, 38 S.Ct. 269, 62 L.Ed. 676. 7 Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 656, 32 L.Ed. 766, held that a conspiracy to drive aliens from their homes is not an offense under the statute, since it is expressly limited to interference with citizens. In three other decisions of this Court the section was involved, but no question pertinent to the issues now before us was decided. United States v. Mason, 213 U.S. 115, 29 S.Ct. 480, 53 L.Ed. 725; O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980; Pennsylvania System Federation v. Pennsylvania R. Co., 267 U.S. 203, 45 S.Ct. 307, 69 L.Ed. 574. 8 It is worth noting that count 1 of the indictment in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, laid a charge under § 51 (now § 241) similar to the indictment now here for review. There was a demurrer to that indictment on the ground that § 51 did not afford a legal basis for such a charge. The argument advanced by the Government to support court 1 was substantially the argument the Government now makes in this case. The demurrer was sustained and the Government did not challenge the District Court's interpretation of § 51, although the Criminal Appeals Act of 1907, 34 Stat. 1246, 18 U.S.C. (1946 ed.) § 682, now 18 U.S.C. (1950 ed.) § 3731, 18 U.S.C.A. § 3731, enabled the Government to secure review of that construction here. In a few early cases this section was applied in lower courts to rights not arising from the relation of the victim to the Federal Government. See United States v. Hall, 26 Fed.Cas. page 79, No. 15282; United States v. Mall, 26 Fed.Cas. page 1147, No. 15,712; Ex parte Riggins, C.C., 134 F. 404. Since in none of these decisions was it alleged that the defendants acted under color of State law each is plainly inconsistent with subsequent decisions of this Court. They also run counter even to the arguments adduced in support of the conviction here. 1 Because of the rearrangement and simplification of the clauses of s. 6 in the Revision of 1874-1878, certain changes cannot conveniently be shown by brackets and italics. They are immaterial. 2 The rights referred to in the preceding section are "to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens [and to] be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other". s. 16, 16 Stat. 144. [Page 84 intentionally left blank] 1 Williams' conviction on the substantive counts is reviewed in Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, decided today. 2 The indictment charging respondents Williams, Ford and Bombaci (and one defendant not before us in the present case) with perjury is reviewed today in United States v. Williams, 341 U.S. 58, 71 S.Ct. 595. Respondents have claimed that because of the pending perjury charges the defendants refrained from testifying in the present trial for conspiracy. 1 Section 19 of the Criminal Code, 18 U.S.C. (1946 ed.) § 51, provided: 'If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.' Section 20 of the Criminal Code, 18 U.S.C. (1946 ed.) § 52, provided: 'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both.' 2 The suggestion that the general conspiracy statute, § 30 of the Act of March 2, 1867, 14 Stat. 484, enacted three years before § 19, was adequate to reach conspiracies under color of state law to deprive persons of Fourteenth Amendment right and that therefore the inclusion of such rights in § 19 was not necessary bears little weight. The general conspiracy statute as originally enacted carried a penalty of not less than $1,000 and not more than $10,000 and imprisonment not exceeding 2 years. Section 19 has from the beginning carried a more severe penalty not more than $5,000 and imprisonment not to exceed 10 years. Moreover, § 19 at the time of its enactment carried a further penalty: the persons convicted were disabled from holding 'any office or place of honor, profit, or trust created by the Constitution or laws of the United States.' Act of May 31, 1870, § 6, 16 Stat. 141. The penalty of the general conspiracy statute has only recently been increased. See 18 U.S.C. (1946 ed., Supp. III) § 371, 18 U.S.C.A. § 371, reviser's note. 3 After discussing the Thirteenth, Fourteenth, and Fifteenth Amendments he said, 'I believe that we have a perfect right under the Constitution of the United States, not only under these three amendments, but under the general scope and features and spirit of the Constitution itself, to go into any of these States for the purpose of protecting and securing liberty. I admit that when you go there for the purpose of restraining liberty, you can go only under delegated powers in express terms; but to go into the States for the purpose of securing and protecting the liberty of the citizen and the rights and immunities of American citizenship is in accordance with the spirit and whole object of the formation of the Union and the national Government. 'There are, Mr. President, various ways in which the right secured by the fifteenth amendment may be abridged by citizens in a State. * * * I believe the language of the Senate bill is sufficiently large and comprehensive to embrace any other class of officers that might be charged with any act that was necessary to enable a citizen to perform any prerequisite to voting. But, sir, individuals may prevent the exercise of the right of suffrage; individuals may prevent the enjoyment of other rights which are conferred upon the citizen by the fourteenth amendment, as well as trespass upon the right conferred by the fifteenth. Not only citizens, but organizations of citizens, conspiracies, may be and are, as we are told, in some of the States formed for that purpose. I see in the fourth section of the Senate bill a provision for cases where citizens by threats, intimidation, bribery, or otherwise prevent, delay, or hinder the exercise of this right; but there is nothing here that strikes at organizations of individuals, at conspiracies for that purpose. * * * That the United States Government has the right to go into the States and enforce the fourteenth and the fifteenth amendments is, in my judgment, perfectly clear, by appropriate legislation that shall bear upon individuals. I cannot see that it would be possible for appropriate legislation to be resorted to except as applicable to individuals who violate or attempt to violate these provisions. Certainly we cannot legislate here against States. As I said a few moments ago, it is upon individuals that we must press our legislation. It matters not whether those individuals be officers or whether they are acting upon their own responsibility; whether they are acting singly or in organizations. If there is to be appropriate legislation at all, it must be that which applies to individuals. * * * 'Mr. President, the liberty of a citizen of the United States, the prerogatives, the rights, and immunities of American citizenship, should not be and cannot be safely left to the mere caprice of States either in the passage of laws or in the withholding of that protection which any emergency may require. If a State by omission neglects to give to every citizen within its borders a free, fair, and full exercise and enjoyment of his rights it is the duty of the United States Government to go into the State, and by its strong arm to see that he does have the full and free enjoyment of those rights.' Cong. Globe, 41st Cong., 2d Sess., pp. 3611, 3613. 4 See Hodges v. United States, 203 U.S. 1, 14, 27 S.Ct. 6, 7, 51 L.Ed. 65; United States v. Powell, C.C., 151 F. 648, affirmed 212 U.S. 564, 29 S.Ct. 690, 53 L.Ed. 653; United States v. Wheeler, 254 U.S. 281, 298, 41 S.Ct. 133, 135, 65 L.Ed. 270.

12

341 U.S. 214 71 S.Ct. 675 95 L.Ed. 879 BOWMAN DAIRY CO. et al.v.UNITED STATES et al. No. 435. Decided April 30, 1951. Argued March 9, 1951. Mr. L. Edward Hart, of Chicago, Ill., for petitioners Bowman Dairy co., et al. Mr. Walter J. Cummings, Jr., Chicago, Ill., for petitioners Borden Co., et al. Mr. Peyton Ford, Washington, D.C., for respondents. Mr. Justice MINTON delivered the opinion of the Court. 1 Petitioners were indicted for a violation of § 1 of the Sherman Act.1 Before the case was set for trial, each petitioner filed a motion under Rule 16 of the Federal Rules of Criminal Procedure2 for an order requiring the United States to produce for inspection all books, papers, documents, or objects obtained from petitioners and obtained by seizure or process from others. An agreed order was entered by the court and the Government fully complied therewith. The validity of this order is not in question. 2 Petitioners also moved under Rule 17(c)3 for an order directing the Government at a time and place to be specified therein to produce for inspection certain other books, papers, documents and objects obtained by the Government by means other than seizure or process. Petitioners filed and served on the Government attorneys a subpoena duces tecum, the pertinent part of which reads as follows: 3 'all documents, books, papers and objects (except memoranda prepared by Government counsel, and documents or papers solicited by or volunteered to Government counsel which consist of narrative statements of persons or memoranda of interviews), obtained by Government counsel, in any manner other than by seizure or process, (a) in the course of the investigation by Grand Jury No. 8949 which resulted in the return of the indictment herein, and (b) in the course of the Government's preparation for the trial of this cause, if such books, papers, documents and objects, (a) have been presented to the Grand Jury; or (b) are to be offered as evidence on the trial of the defendants, or any of them, under said indictment; or (c) are relevant to the allegations or charges contained in said indictment, whether or not they might constitute evidence with respect to the guilt or innocence of any of the defendants * * *.' 4 A hearing was held and the court entered an order directing the Government to produce for petitioners' inspection the materials designated in the subpoena. 5 Thereafter the Government moved to quash the subpoena and to set aside the order, contending that the access of a defendant in a criminal proceeding to materials in custody of Government attorneys is limited to rights granted by Rule 16 and that the District Court had erred in ordering production of the subpoenaed materials. This motion was denied. Respondent Hotchkiss, one of the Government attorneys to whom the subpoena was addressed, had possession of the materials called for, but refused to produce any of them. After a hearing, the District Court held him in contempt. The Court of Appeals reversed, 185 F.2d 159. We granted certiorari because of the importance of the scope of Rule 17(c) in federal practice. 340 U.S. 919, 71 S.Ct. 357. 6 During the hearing on petitioners' motions for an order under Rule 17(c), respondent Hotchkiss, acting for the Government, had offered to produce, and to enter into a stipulation therefor, all documents of evidentiary character, in the custody of the Government obtained other than by seizure or process, i.e., documents other than the work product of the Government, solicited and volunteered narrative statements, and memoranda of interviews. However, this offer did not include documents furnished the Government by voluntary and confidential informants. 7 The subpoena was broad enough to include any documents and other materials that had been furnished the Government by voluntary informants and which did not 'consist of narrative statements of persons or memoranda of interviews.' The Government's chief objection to the subpoena, as stated to the court by respondent Hotchkiss, was as follows: 8 'Mr. Hotchkiss: There is only one objection—basic objection which I would make to the form which is proposed: This language in this subpoena or proposed subpoena, as I construe it does not protect those confidential informants who have provided the Government with confidential material which the Government feels on the basis of very well established principles followed by the courts are normally protected from the view of litigants.' 9 It appears from respondent's colloquy with the court that the confidential material which he would except from the subpoena consisted of 'documents furnished the Government without process or seizure by voluntary informants.' 10 It was intended by the rules to give some measure of discovery. Rule 16 was adopted for that purpose. It gave discovery as to documents and other materials otherwise beyond the reach of the defendant which, as in the instant case, might be numerous and difficult to identify. The rule was to apply not only to documents and other materials belonging to the defendant, but also to those belonging to others which had been obtained by seizure or process. This was a departure from what had theretofore been allowed in criminal cases.4 11 Rule 16 deals with documents and other materials that are in the possession of the Government and provides how they may be made available to the defendant for his information. In the interest of orderly procedure in the handling of books, papers, documents and objects in the custody of the Government accumulated in the course of an investigation and subpoenaed for use before the grand jury and on the trial, it was provided by Rule 16 that the court could order such materials made available to the defendant for inspection and copying or photographing. In that way, the control and possession of the Government is not disturbed. Rule 16 provides the only way the defendant can reach such materials so as to inform himself. 12 But if such materials or any part of them are not put in evidence by the Government, the defendant may subpoena them under Rule 17(c) and use them himself. It would be strange indeed if the defendant discovered some evidence by the use of Rule 16 which the Government was not going to introduce and yet could not require its production by Rule 17(c). There may be documents and other materials in the possession of the Government not subject to Rule 16. No good reason appears to us why they may not be reached by subpoena under Rule 17(c) as long as they are evidentiary. That is not to say that the materials thus subpoenaed must actually be used in evidence. It is only required that a good-faith effort be made to obtain evidence. The court may control the use of Rule 17(c) to that end by its power to rule on motions to quash or modify.5 13 It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest terms. Rule 17 provided for the usual subpoena ad testificandum and duces tecum, which may be issued by the clerk, with the provision that the court may direct the materials designated in the subpoena duces tecum to be produced at a specified time and place for inspection by the defendant. Rule 17(c) was not intended to provide an additional means of discovery. Its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials. United States v. Maryland & Virginia Milk Producers Ass'n, D.C., 9 F.R.D. 509. However, the plain words of the Rule are not to be ignored. They must be given their ordinary meaning to carry out the purpose of establishing a more liberal policy for the production, inspection and use of materials at the trial. There was no intention to exclude from the reach of process of the defendant any material that had been used before the grand jury or could be used at the trial. In short, any document or other materials, admissible as evidence, obtained by the Government by solicitation or voluntarily from third persons is subject to subpoena. It was material of this character which the Government was unwilling to stipulate to produce or to produce in obedience to the subpoena. Such materials were subject to the subpoena. Where the court concludes that such materials ought to be produced, it should, of course, be solicitous to protect against disclosures of the identity of informants, and the method, manner and circumstances of the Government's acquisition of the materials. 14 Clause (c), which is the last clause in the subpoena, reads as follows: 15 'are relevant to the allegations or charges contained in said indictment, whether or not they might constitute evidence with respect to the guilt or innocence of any of the defendants * * *.' 16 This is a catch-all provision, not intended to produce evidentiary materials but is merely a fishing expedition to see what may turn up. The clause is therefore invalid. 17 The subpoena calls for materials which the Government is bound to produce and for materials it is not bound to produce. The District Court said: 'Give us all.' The Government replied: 'We will give you nothing.' Both were wrong. The Government should produce the evidentiary materials called for by the subpoena. It need not produce anything under clause (c). 18 One should not be held in contempt under a subpoena that is part good and part bad. The burden is on the court to see that the subpoena is good in its entirety and it is not upon the person who faces punishment to cull the good from the bad. 19 Accordingly, the judgment of the Court of Appeals is vacated and the cause remanded to the District Court for further proceedings in conformity with this opinion. It is so ordered. 20 Judgment of the Court of Appeals reversed and cause remanded to the District Court with directions. 21 Mr. Justice BLACK would affirm the District Court. 22 Mr. Justice CLARK took no part in the consideration or decision of this case. 1 26 Stat. 209, 15 U.S.C. § 1, 15 U.S.C.A. § 1. 2 'Rule 16. Discovery and Inspection 'Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. The order shall specify the time, place and manner of making the inspection and of taking the copies or photographs and may prescribe such terms and conditions as are just.' 18 U.S.C.A. 3 'Rule 17. Subpoena '(a) For Attendance of Witnesses; Form; Issuance. A subpoena shall be issued by the clerk * * * and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and sealed but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served. '(c) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.' 18 U.S.C.A. 4 See Advisory Committee's Note to Rule 16, 18 U.S.C. p. 1969, 18 U.S.C.A. 5 'We also find in the same rule, under (c), a provision for the production of documentary evidence or objects—the familiar subpoena duces tecum—and if the person upon whom the subpoena is served thinks it is broad or unreasonable or oppressive he may apply to the court to quash the subpoena. Furthermore, while normally under a subpoena the books and other things called for would merely be brought into court at the time of the trial, let us say immediately before they are to be offered in evidence, there is a provision in this rule that the court may, in the proper case, direct that they be brought into court in advance of the time that they are offered in evidence, so that they may then be inspected in advance, for the purpose of course of enabling the party to see whether he can use it or whether he wants to use it.' Statement of Mr. G. Aaron Youngquist, Member of Advisory Committee, Federal Rules of Criminal Procedure, Proceedings of the Institute on Federal Rules of Criminal Procedure (New York University School of Law, Institute Proceedings, Vol. VI, 1946), pp. 167—168.

01

341 U.S. 123 71 S.Ct. 624 95 L.Ed. 817 JOINT ANTI-FASCIST REFUGEE COMMITTEEv.McGRATH, Atty. Gen. of the United States, et al. NATIONAL COUNCIL OF AMERICAN-SOVIET FRIENDSHIP, Inc., et al. v. McGRATH, Atty. Gen. of the United States, et al. INTERNATIONAL WORKERS ORDER, Inc., et al. v. McGRATH, Atty. Gen. of the United States, et al. Nos. 8, 7, 71. Argued Oct. 11, 1950. Decided April 30, 1951. Mr. Benedict Wolf, New York City, and O. John Rogge, Washington, D.C., for petitioner Joint Anti-Fascist Refugee Committee. Mr. David Rein, Washington, D.C., for petitioners National Council of American-Soviet Friendship, Inc., and others. Mr. Allen R. Rosenberg, Washington, D.C., for petitioners International Workers Order, Inc., and another. Mr. Philip B. Perlman, Sol. Gen., Washington, D.C., for respondents. Mr. Justice BURTON announced the judgment of the Court and delivered the following opinion, in which Mr. Justice DOUGLAS joins: 1 In each of these cases the same issue is raised by the dismissal of a complaint for its failure to state a claim upon which relief can be granted. That issue is whether, in the face of the facts alleged in the complaint and therefore admitted by the motion to dismiss, the Attorney General of the United States has authority to include the complaining organization in a list of organizations designated by him as Communist and furnished by him to the Loyalty Review Board of the United States Civil Service Commission. He claims to derive authority to do this from the following provisions in Part III, § 3, of Executive Order No. 9835, issued by the President, March 21, 1947, 5 U.S.C.A. § 631 note: 2 'Part III—Responsibilities of Civil Service Commission 3 '3. The Loyalty Review Board shall currently be furnished by the Department of Justice the name of each foreign or domestic organization, association, movement, group or combination of persons which the Attorney General, after appropriate investigation and determination, designates as totalitarian, fascist, communist or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means. 4 'a. The Loyalty Review Board shall disseminate such information to all departments and agencies.' 3 CFR, 1947 Supp., pp. 129, 131, 12 Fed.Reg. 1935, 1938. 5 The respective complaints describe the complaining organizations as engaged in charitable or civic activities or in the business of fraternal insurance. Each implies an attitude of cooperation and helpfulness, rather than one of hostility or disloyalty, on the part of the organization toward the United States. Two of the complaints deny expressly that the organization is within any classification specified in Part III, § 3, of the order. 6 For the reasons hereinafter stated, we conclude that, if the allegations of the complaints are taken as true (as they must be on the motions to dismiss), the Executive Order does not authorize the Attorney General to furnish the Loyalty Review Board with a list containing such a designation as he gave to each of these organizations without other justification. Under such circumstances his own admissions render his designations patently arbitrary because they are contrary to the alleged and uncontroverted facts constituting the entire record before us. The complaining organizations have not been afforded any opportunity to substantiate their allegations, but at this stage of the proceedings the Attorney General has chosen not to deny their allegations and has not otherwise placed them in issue. 7 Whatever may be his authority to designate these organizations as Communist upon undisclosed facts in his possession, he has not chosen to limit himself to that authorization. By his present procedure he has claimed authority so to designate them upon the very facts alleged by them in their own complaints. Self-serving or not, those allegations do not state facts from which alone a reasonable determination can be derived that the organizations are Communist. To defend such a designation of them, on the basis of the complaints alone, is an assertion of Presidential authority so to designate an organization at the option of the Attorney General without reliance upon either disclosed or undisclosed facts supplying a reasonable basis for the determination. It is that, and only that outer limit of the authority of the Attorney General that is now before us. 8 At least since 1939, increasing concern has been expressed, in and out of Congress, as to the possible presence in the employ of the Government of persons disloyal to it. This is reflected in the legislation, reports and executive orders culminating in Executive Order No. 9835.1 That order announced the President's Employees Loyalty Program in the Executive Branch of the Government. It states that both 'maximum protection must be afforded the United States against infiltration of disloyal persons into the ranks of its employees, and equal protection from unfounded accusations of disloyalty must be afforded the loyal employees of the Government: * * *.' It provides for the Loyalty Review Board and sets up a standard for refusals of and removals from employment on grounds relating to loyalty. It outlines the use to be made in that connection of the list of organizations to be furnished by the Attorney General.2 The organizations to be designated on that list are not limited to those having federal employees in their memberships. They may even exclude such employees from membership. Accordingly, the impact of the Attorney General's list is by no means limited to persons who are subject to the Employees Loyalty Program. 9 The Attorney General included each of the complaining organizations in the list he furnished to the Loyalty Review Board November 24, 1947. That list was disseminated by the Board to all departments and agencies of the United States December 4, 1947. 13 Fed.Reg. 1473.3 The complaints allege that such action resulted in nationwide publicity and caused the injuries to the complaining organizations which are detailed later. September 17, 1948, during the pendency of the instant cases but before action upon the appeals in any of them, 'the Attorney General furnished the Loyalty Review Board with a consolidated list containing the names of all of the organizations previously designated by him as within Executive Order 9835, segregated according to the classifications enumerated in section 3, Part III, on the basis of dominant characteristics.'4 He enumerated six classifications and classified the three complaining organizations as 'Communist.'5 10 The instant cases originated in the District Court for the District of Columbia and come here after affirmance by the Court of Appeals. We granted certiorari because of the importance of the issues and their relation to the Employees Loyalty Program. No. 8, 339 U.S. 910, 70 S.Ct. 573; No. 7, 339 U.S. 956, 70 S.Ct. 978; No. 71, 340 U.S. 805, 71 S.Ct. 39. No. 8.—The Refugee Committee Case 11 The complainant is the Joint Anti-Fascist Refugee Committee, an unincorporated association in the City and State of New York. It is the petitioner here. The defendants in the original action were the Attorney General, Tom C. Clark, and the members of the Loyalty Review Board. J. Howard McGrath has been substituted as the Attorney General and he and the members of that Board are the respondents here. 12 The following statement, based on the allegations of the complaint, summarizes the situation before us: The complainant is 'a charitable organization engaged in relief work' which carried on its relief activities from 1942 to 1946 under a license from the President's War Relief Control Board. Thereafter, it voluntarily submitted its program, budgets and audits for inspection by the Advisory Committee on Voluntary Foreign Aid of the United States Government. Since its inception, it has, through voluntary contributions, raised and disbursed funds for the benefit of anti-Fascist refugees who assisted the Government of Spain against its overthrow by force and violence. The organization's aims and purposes 'are to raise, administer and distribute funds for the relief and rehabilitation of Spanish Republicans in exile and other anti-fascist refugees who fought in the war against Franco.'6 13 It has disbursed $1,011,448 in cash, and $217,903 in kind, for the relief of anti-Fascist refugees and their families. This relief has included money, food, shelter, educational facilities, medical treatment and supplies, and clothing to recipients in 11 countries including the United States. The acts of the Attorney General and the Loyalty Review Board, purporting to be taken by them under authority of the Executive Order, have seriously and irreparably impaired, and will continue to so impair, the reputation of the organization and the moral support and good will of the American people necessary for the continuance of its charitable activities. Upon information and belief, these acts have caused many contributors, especially present and prospective civil servants, to reduce or discontinue their contributions to the organization; members and participants in its activities have been 'vilified and subjected to public shame, disgrace, ridicule and obloquy * * *' thereby inflicting upon it economic injury and discouraging participation in its activities; it has been hampered in securing meeting places; and many people have refused to take part in its fund-raising activities. 14 This complaint does not contain an express denial that the complaining organization is within the classifications named in Part III, § 3, of Executive Order No. 9835. It does, however, state that the actions of the Attorney General and the Loyalty Review Board which are complained of are unauthorized and without warrant in law and amount to a deprivation of the complainant's rights in violation of the Constitution; that Executive Order No. 9835, on its face and as construed and applied, violates the First, Fifth, Ninth and Tenth Amendments to the Constitution of the United States and that § 9A of the Hatch Act, 53 Stat. 1148, 5 U.S.C. (1946 ed., Supp. III) § 118j, insofar as it purports to authorize the instant application of the order, is void.7 It asks for declaratory and injunctive relief, alleging that the complaining organization is suffering irreparable loss and that no adequate remedy is available to it except through the equity powers of the District Court. That court granted a motion to dismiss the complaint for its failure to state a claim upon which relief could be granted and denied the complainant's motion for a preliminary injunction.8 The Court of Appeals affirmed, one judge dissenting. Joint Anti-Fascist Refugee Committee v. Clark, 85 U.S.App.D.C. 255, 177 F.2d 79. No. 7.—The National Council Case 15 In this case the court below relied upon its decision in the Refugee Committee case and reached the same result, per curiam (unreported). Except as indicated below in our summary of the facts alleged, this case, for our purposes, is like the first. The complainants, who are the petitioners here, are the National Council of American-Soviet Friendship, Inc., a New York nonprofit membership corporation, organized in 1943; the Denver Council of American-Soviet Friendship, a Colorado unincorporated association and local affiliate of the National Council; and six individual officers and directors of one or the other of these organizations. The purpose of the National Council 'is to strengthen friendly relations between the United States and the Union of Soviet Socialist Republics by disseminating to the American people educational material regarding the Soviet Union, by developing cultural relations between the peoples of the two nations, and by combatting anti-Soviet propaganda designed to disrupt friendly relations between the peoples of these nations and to divide the United Nations.' The complaint alleges that all of the complainants are seriously and irreparably injured in their capacity to conduct the National Council's educational, cultural and fund-raising program, and that the individual complainants have suffered personal losses such as the removal of one from an assistant rectorship of a church, the loss by another of a teaching position, and numerous cancellations of lecturing and professional engagements. The complaint expressly states that—'In all its activities the National Council has sought to further the best interests of the American people by lawful, peaceful and constitutional means. It has never in any way engaged in any conduct or activity which provides any basis for it to be designated as 'totalitarian, fascist, communist or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means." No. 71.—The International Workers Case 16 The complaining organization, which is the petitioner here, is a fraternal benefit society, organized in 1930 as a corporation under the Insurance Law of the State of New York, McK.Consol.Laws, c. 28, operating for the mutual benefit of its members and their beneficiaries and not for profit. It is licensed and operates in the District of Columbia and several states; its purposes are comparable to those of fraternal benefit societies in general; it operates under a lodge system and has a representative form of government; at the time of the promulgation of the Department of Justice list it had 185,000 members, including employees of the Federal Government and of various states and municipalities; it provided life insurance protection for its membership exceeding $120,000,000; its activities have been the subject of administrative and judicial proceedings in addition to those before the insurance departments of the states in which it functions, and, as a result of such proceedings, 'the purposes, and activities of the order have been held to be free from any illegal or improper taint * * *.'9 Among the allegations of damage, made upon information and belief, the complaint states that, solely as a result of the respondents' acts, there have been instituted against the order and its members a multiplicity of administrative proceedings, including those to rescind licenses, franchises, or tax exemptions, or to impede the naturalization of its members. Because of respondents' acts, many such members, especially present and prospective civil servants, have resigned or withdrawn from membership in the order, and many potential members have declined to join it.10 17 The second amended complaint was dismissed by the District Court, 88 F.Supp. 873. That judgment was affirmed by the Court of Appeals, one judge dissenting. 86 U.S.App.D.C. 287, 182 F.2d 368. 18 If, upon the allegations in any of these complaints, it had appeared that the acts of the respondents, from which relief was sought, were authorized by the President under his Executive Order No. 9835, the case would have bristled with constitutional issues. On that basis the complaint would have raised questions as to the justiciability and merit of claims based upon the First, Fifth, Ninth and Tenth Amendments to the Constitution. It is our obligation, however, not to reach those issues unless the allegations before us squarely present them. See United States v. Lovett, 328 U.S. 303, 320, 66 S.Ct. 1073, 1081, 90 L.Ed. 1252. Cf. United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160. 19 The Executive Order contains no express or implied attempt to confer power on anyone to act arbitrarily or capriciously—even assuming a constitutional power to do so. The order includes in the purposes of the President's program not only the protection of the United States against disloyal employees but the 'equal protection' of loyal employees against unfounded accusations of disloyalty. 3 CFR, 1947 Supp., p. 129, 12 Fed.Reg. 1935. The standards stated for refusal of and removal from employment require that 'on all the evidence, reasonable grounds (shall) exist for belief that the person involved is disloyal * * *.' Id., at 132, 12 Fed.Reg. 1938. Obviously it would be contrary to the purpose of that order to place on a list to be disseminated under the Loyalty Program any designation of an organization that was patently arbitrary and contrary to the uncontroverted material facts. The order contains the express requirement that each designation of an organization by the Attorney General on such a list shall be made only after an 'appropriate * * * determination' as prescribed in Part III, § 3. An 'appropriate' governmental 'determination' must be the result of a process of reasoning. It cannot be an arbitrary fiat contrary to the known facts. This is inherent in the meaning of 'determination.' It is implicit in a government of laws and not of men. Where an act of an official plainly falls outside of the scope of his authority, he does not make that act legal by doing it and then invoking the doctrine of administrative construction to cover it. 20 It remains, therefore, for us to decide whether, on the face of these complaints, the Attorney General is acting within his authority in furnishing the Loyalty Review Board with a designation of the complaining organizations either as 'Communist' or as within any other classification of Part III, § 3, of the order. In the National Council and International Workers cases, the complaining organization is alleged not only to be a civic or insurance organization, apparently above reproach from the point of view of loyalty to the United States, but it is also declared to be one that is not within any classification listed in Part III, § 3, of the order. In the Refugee Committee case, the negative allegations are omitted but the affirmative allegations are incompatible with the inclusion of the complaining organization within any of the designated classifications. The inclusion of any of the complaining organizations in the designated list solely on the facts alleged in the respective complaints, which must be the basis for our decision here, is therefore an arbitrary and unauthorized act. In the two cases where the complaint specifically alleges the factual absence of any basis for the designation, and the respondents' motion admits that allegation, the designation is necessarily contrary to the record. The situation is comparable to one which would be created if the Attorney General, under like circumstances, were to designate the American National Red Cross as a Communist organization. Accepting as common knowledge the charitable and loyal status of that organization, there is no doubt that, in the absence of any contrary claim asserted against it, the Executive Order does not authorize its inclusion by the Attorney General as a 'Communist' organization or as coming within any of the other classifications named in Part III, § 3, of the order. 21 Since we find that the conduct ascribed to the Attorney General by the complaints is patently arbitrary, the deference ordinarily due administrative construction of an administrative order is not sufficient to bring his alleged conduct within the authority conferred by Executive Order No. 9835. The doctrine of administrative construction never has been carried so far as to permit administrative discretion to run riot. If applied to this case and compounded with the assumption that the President's Executive Order was drafted for him by his Attorney General, the conclusion would rest upon the premise that the Attorney General has attempted to delegate to himself the power to act arbitrarily. We cannot impute such an attempt to the Nation's highest law enforcement officer any more than we can to its President. 22 In thus emphasizing an outer limit to what can be considered an authorized designation of an organization under the order, the instant cases serve a valuable purpose. They demonstrate that the order does not authorize, much less direct, the exercise of any such absolute power as would permit the inclusion in the Attorney General's list of a designation that is patently arbitrary or contrary to fact.11 23 When the acts of the Attorney General and of the members of the Loyalty Review Board are stripped of the Presidential authorization claimed for them by the respondents, they stand, on the face of these complaints, as unauthorized publications of admittedly unfounded designations of the complaining organizations as 'Communist.' Their effect is to cripple the functioning and damage the reputation of those organizations in their respective communities and in the nation. The complaints, on that basis, sufficiently charge that such acts violate each complaining organization's common-law right to be free from defamation. 'A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.' Restatement, Torts, § 559.12 24 These complaints do not raise the question of the personal liability of public officials for money damages caused by their ultra vires acts. See Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780. They ask only for declaratory and injunctive relief striking the names of the designated organizations from the Attorney General's published list and, as far as practicable, correcting the public records. 25 The respondents are not immune from such a proceeding. Only recently, this Court recognized that 'the action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff's property) can be regarded as so 'illegal' as to permit a suit for specific relief against the officer as an individual * * * if it is not within the officer's statutory powers or, if within those powers * * * if the powers, or their exercise in the particular case, are constitutionally void.' Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 701—702, 69 S.Ct. 1457, 1467, 93 L.Ed. 1628. The same is true here, where the acts complained of are beyond the officer's authority under the Executive Order.13 26 Finally, the standing of the petitioners to bring these suits is clear.14 The touchstone to justiciability is injury to a legally protected right15 and the right of a bona fide charitable organization to carry on its work, free from defamatory statements of the kind discussed, is such a right. 27 It is unrealistic to contend that because the respondents gave no orders directly to the petitioners to change their course of conduct, relief cannot be granted against what the respondents actually did. We long have granted relief to parties whose legal rights have been violated by unlawful public action, although such action made no direct demands upon them. Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563; Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131.16 The complaints here amply allege past and impending serious damages caused by the actions of which the petitioners complain. 28 Nothing we have said purports to adjudicate the truth of petitioners' allegations that they are not in fact communistic. We have assumed that the designations made by the Attorney General are arbitrary because we are compelled to make that assumption by his motions to dismiss the complaints. Whether the complaining organizations are in fact communistic or whether the Attorney General possesses information from which he could reasonably find them to be so must await determination by the District Court upon remand. 29 For these reasons, we find it necessary to reverse the judgments of the Court of Appeals in the respective cases and to remand each case to the District Court with instructions' to deny the respondents' motion that the complaint be dismissed for failure to state a claim upon which relief can be granted. 30 Reversed and remanded. 31 Mr. Justice CLARK took no part in the consideration or decision of any of these cases. 32 Mr. Justice BLACK, concurring. 33 Without notice or hearing and under color of the President's Executive Order No. 9835, the Attorney General found petitioners guilty of harboring treasonable opinions and designs, officially branded them as Communists, and promulgated his findings and conclusions for particular use as evidence against government employees suspected of disloyalty. In the present climate of public opinion it appears certain that the Attorney General's much publicized findings, regardless of their truth or falsity, are the practical equivalents of confiscation and death sentences for any blacklisted organization not possessing extraordinary financial, political or religious prestige and influence. The Government not only defends the power of the Attorney General to pronounce such deadly edicts but also argues that individuals or groups so condemned have no standing to seek redress in the courts, even though a fair judicial hearing might conclusively demonstrate their loyalty. My basic reasons for rejecting these and other contentions of the Government are in summary the following: (1) I agree with Mr. Justice BURTON that petitioners have standing to sue for the reason among others that they have a right to conduct their admittedly legitimate political, charitable and business operations free from unjustified governmental defamation. Otherwise, executive officers could act lawlessly with impunity. And, assuming that the President may constitutionally authorize the promulgation of the Attorney General's list, I further agree with Mr. Justice BURTON that this Court should not attribute to the President a purpose to vest in a cabinet officer the power to destroy political, social, religious or business organizations by 'arbitrary fiat,' and thus the methods employed by the Attorney General exceed his authority under Executive Order No. 9835. 34 (2) Assuming, though I deny, that the Constitution permits the executive officially to determine, list and publicize individuals and groups as traitors and public enemies, I agree with Mr. Justice FRANKFURTER that the Due Process Clause of the Fifth Amendment would bar such condemnation without notice and a fair hearing. My views previously expressed under similar circumstances are relevant here. E.g., dissenting opinion in Ludecke v. Watkins, 335 U.S. 160, 173, 68 S.Ct. 1429, 1435, 92 L.Ed. 881; and see In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682. 35 (3) More fundamentally, however, in my judgment the executive has no constitutional authority, with or without a hearing, officially to prepare and publish the lists challenged by petitioners. In the first place, the system adopted effectively punishes many organizations and their members merely because of their political beliefs and utterances, and to this extent smacks of a most evil type of censorship. This cannot be reconciled with the First Amendment as I interpret it. See my dissent in American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 445, 70 S.Ct. 674, 707, 94 L.Ed. 925. Moreover, officially prepared and proclaimed governmental blacklists possess almost every quality of bills of attainder, the use of which was from the beginning forbidden to both national and state governments. U.S.Const. Art. I, §§ 9, 10. It is true that the classic bill of attainder was a condemnation by the legislature following investigation by that body, see United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252, while in the present case the Attorney General performed the official tasks. But I cannot believe that the authors of the Constitution, who outlawed the bill of attainder, inadvertently endowed the executive with power to engage in the same tyrannical practices that had made the bill such an odious institution.1 36 There is argument that executive power to issue these pseudo-bills of attainder can be implied from the undoubted power of the Government to hire and discharge employees and to protect itself against treasonable individuals or organizations.2 Our basic law, however, wisely withheld authority for resort to executive investigations, condemnations and blacklists as a substitute for imposition of legal types of penalties by courts following trial and conviction in accordance with procedural safeguards of the Bill of Rights.3 37 In this day when prejudice, hate and fear are constantly invoked to justify irresponsible smears and persecution of persons even faintly suspected of entertaining unpopular views, it may be futile to suggest that the cause of internal security would be fostered, not hurt, by faithful adherence to our constitutional guarantees of individual liberty. Nevertheless, since prejudice manifests itself in much the same way in every age and country and since what has happened before can happen again, it surely should not be amiss to call attention to what has occurred when dominant governmental groups have been left free to give uncontrolled rein to their prejudices against unorthodox minorities. As specific illustration, I am adding as an appendix Macaulay's account of a parliamentary proscription which took place when popular prejudice was high; this is only one out of many similar instances that readily can be found.4 Memories of such events were fresh in the minds of the founders when they forbade the use of the bill of attainder. 38 Appendix to Opinion of Mr. Justice BLACK. 39 James II, the last Stuart king of England, was driven from his throne in 1688 by William of Orange. After a brief sojourn at Saint Germains in France, James landed in Ireland where he was supported by those Irish Catholics who had suffered greatly at the hands of the English Protestant colonists. One of his first official acts was to call an Irish Parliament which enacted the bill of attainder described by the historian Macaulay as follows: 40 '* * * (the Commons) respected no prerogative, however ancient, however legitimate, however salutary, if they apprehended that (James II) might use it to protect the race which they abhorred. They were not satisfied till they had extorted his reluctant consent to a portentous law, a law without a parallel in the history of civilised countries, the great Act of Attainder. 41 'A list was framed containing between two and three thousand names. At the top was half the peerage of Ireland. Then came baronets, knights, clergymen, squires, merchants, yeomen, artisans, women, children. No investigation was made. Any member who wished to rid himself of a creditor, a rival, a private enemy, gave in the name to the clerk at the table, and it was generally inserted without discussion. The only debate of which any account has come down to us related to the Earl of Strafford. He had friends in the House who ventured to offer something in his favour. But a few words from Simon Luttrell settled the question. 'I have,' he said, 'heard the King say some hard things of that lord.' This was thought sufficient, and the name of Strafford stands fifth in the long table of the proscribed. 42 'Days were fixed before which those whose names were on the list were required to surrender themselves to such justice as was then administered to English Protestants in Dublin. If a proscribed person was in Ireland, he must surrender himself by the tenth of August. If he had left Ireland since the fifth of November 1688, he must surrender himself by the first of September. If he had left Ireland before the fifth of November 1688, he must surrender himself by the first of October. If he failed to appear by the appointed day, he was to be hanged, drawn, and quartered without a trial, and his property was to the confiscated. It might be physically impossible for him to deliver himself up within the time fixed by the Act. He might be bedridden. He might be in the West Indies. He might be in prison. Indeed there notoriously were such cases. Among the attainted Lords was Mountjoy. He had been induced by the villany of Tyrconnel to trust himself at Saint Germains: he had been thrown into the Bastile: he was still lying there; and the Irish parliament was not ashamed to enact that, unless he could, within a few weeks, make his escape from his cell, and present himself at Dublin, he should be put to death. 43 'As it was not even pretended that there had been any inquiry into the guilt of those who were thus proscribed, as not a single one among them had been heard in his own defence, and as it was certain that it would be physically impossible for many of them to surrender themselves in time, it was clear that nothing but a large exercise of the royal prerogative of mercy could prevent the perpetration of iniquities so horrible that no precedent could be found for them even in the lamentable history of the troubles of Ireland. The Commons therefore determined that the royal prerogative of mercy should be limited. Several regulations were devised for the purpose of making the passing of pardons difficult and costly: and finally it was enacted that every pardon granted by his Majesty, after the end of November 1689, to any of the many hundreds of persons who had been sentenced to death without a trial, should be absolutely void and of none effect. Sir Richard Nagle came in state to the bar of the Lords and presented the bill with a speech worthy of the occasion. 'Many of the persons here attainted,' said he, 'have been proved traitors by such evidence as satisfies us. As to the rest we have followed common fame.' 44 'With such reckless barbarity was the list framed that fanatical royalists, who were, at that very time, hazarding their property, their liberty, their lives, in the cause of James, were not secure from proscription. The most learned man of whom the Jacobite party could boast was Henry Dodwell, Camdenian Professor in the University of Oxford. In the cause of hereditary monarchy he shrank from no sacrifice and from no danger. It was about him that William (of Orange) uttered those memorable words: 'He has set his heart on being a martyr; and I have set mine on disappointing him.' But James was more cruel to friends than William to foes. Dodwell was a Protestant: he had some property in Connaught: these crimes were sufficient; and he was set down in the long roll of those who were doomed to the gallows and the quartering block. 45 'That James would give his assent to a bill which took from him the power of pardoning, seemed to many persons impossible. * * * He might also have seen that the right course was the wise course. Had he, on this great occasion, had the spirit to declare that he would not shed the blood of the innocent, and that, even as respected the guilty, he would not divest himself of the power of tempering judgment with mercy, he would have regained more hearts in England than he would have lost in Ireland. But it was ever his fate to resist where he should have yielded, and to yield where he should have resisted. The most wicked of all laws received his sanction; and it is but a very small extenuation of his guilt that his sanction was somewhat reluctantly given. 46 'That nothing might be wanting to the completeness of this great crime, extreme care was taken to prevent the persons who were attainted from knowing that they were attainted, till the day of grace fixed in the Act was passed. The roll of names was not published, but kept carefully locked up in Fitton's closet. Some Protestants, who still adhered to the cause of James, but who were anxious to know whether any of their friends or relations had been proscribed, tried hard to obtain a sight of the list; but solicitation, remonstrance, even bribery, proved vain. Not a single copy got abroad till it was too late for any of the thousands who had been condemned without a trial to obtain a pardon. 47 '* * * That the colonists, when they had won the victory, grossly abused it, that their legislation was, during many years, unjust and tyrannical, is most true. But it is not less true that they never quite came up to the atrocious example set by their vanquished enemy during his short tenure of power.' 48 3 Macaulay, History of England from the Accession of James the Second (London, 1855) 216—220. (Footnotes appearing in the original have been omitted.) 49 Mr. Justice FRANKFURTER, concurring. 50 The more issues of law are inescapably entangled in political controversies, especially those that touch the passions of the day, the more the Court is under duty to dispose of a controversy within the narrowest confines that intellectual integrity permits. And so I sympathize with the endeavor of my brother BURTON to decide these cases on a ground as limited as that which has commended itself to him. Unfortunately, I am unable to read the pleadings as he does. Therefore I must face up to larger issues. But in a case raising delicate constitutional questions it is particularly incumbent first to satisfy the threshold inquiry whether we have any business to decide the case at all. Is there, in short, a litigant before us who has a claim presented in a form and under conditions 'appropriate for judicial determination'? Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 464, 81 L.Ed. 617. I. 51 Limitation on 'the judicial Power of the United States' is expressed by the requirement that a litigant must have 'standing to sue' or, more comprehensively, that a federal court may entertain a controversy only if it is 'justiciable.' Both characterizations mean that a court will not a decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was, generally speaking, the business of the Colonial courts and the courts of Westminster when the Constitution was framed. The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a 'case or controversy.' The scope and consequences of the review with which the judiciary is entrusted over executive and legislative action require us to observe these bounds fastidiously. See the course of decisions beginning with Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436, through Parker v. Los Angeles County, 338 U.S. 327, 70 S.Ct. 161, 94 L.Ed. 144. These generalities have had myriad applications. Each application, even to a situation not directly pertinent to what is before us, reflects considerations relevant to decision here. I shall confine my inquiry, however, by limiting it to suits seeking relief from governmental action. 52 (1) The simplest application of the concept of 'standing' is to situations in which there is no real controversy between the parties. Regard for the separation of powers, see Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246, and for the importance to correct decision of adequate presentation of issues by clashing interests, see Chicago & G.T.R. Co. v. Wellman, 143 U.S. 339, 12 S.Ct. 400, 36 L.Ed. 176, restricts the courts of the United States to issues presented in an adversary manner. A petitioner does not have standing to sue unless he is 'interested in, and affected adversely by, the decision' of which he seeks review. His 'interest must be of a personal, and not of an official, nature.' Braxton County Court v. State of West Virginia ex rel. Dillon, 208 U.S. 192, 197, 28 S.Ct. 275, 276, 52 L.Ed. 450; see also Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. The interest must not be wholly negligible, as that of a taxpayer of the Federal Government is considered to be, Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078; cf. Crampton v. Zabriskie, 101 U.S. 601, 25 L.Ed. 1070. A litigant must show more than that 'he suffers in some indefinite way in common with people generally.' Frothingham v. Mellon, supra, 262 U.S. at page 488, 43 S.Ct. at page 601. 53 Adverse personal interest, even of such an indirect sort as arises from competition, is ordinarily sufficient to meet constitutional standards of justiciability. The courts may therefore by statute be given jurisdiction over claims based on such interests. Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869, 1037; cf. Interstate Commerce Comm. v. Oregon-Washington R. & Nav. Co., 288 U.S. 14, 53 S.Ct. 266, 77 L.Ed. 588. 54 (2) To require a court to intervene in the absence of a statute, however, either on constitutional grounds or in the exercise of inherent equitable powers, something more than adverse personal interest is needed. This additional element is usually defined in terms which assume the answer. It is said that the injury must be 'a wrong which directly results in the violation of a legal right.' Alabama Power Co. v. Ickes, 302 U.S. 464, 479, 58 S.Ct. 300, 303, 82 L.Ed. 374. Or that the controversy 'must be definite and concrete, touching the legal relations of parties having adverse legal interests.' Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, supra, 300 U.S. at pages 240—241, 57 S.Ct. at page 464. These terms have meaning only when contained by the facts to which they have been applied. In seeking to determine whether in the case before us the standards they reflect are met, therefore, we must go to the decisions. They show that the existence of 'legal' injury has turned on the answer to one or more of these questions: (a) Will the action challenged at any time substantially affect the 'legal' interests of any person? (b) Does the action challenged affect the petitioner with sufficient 'directness'? (c) Is the action challenged sufficiently 'final'? Since each of these questions itself contains a word of art, we must look to experience to find their meaning. 55 (a) Will the action challenged at any time substantially affect the 'legal' interests of any person? A litigant ordinarily has standing to challenge governmental action of a sort that, if taken by a private person, would create a right of action cognizable by the courts. United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171.1 Or standing may be based on an interest created by the Constitution or a statute. E.g., Parker v. Fleming, 329 U.S. 531, 67 S.Ct. 463, 91 L.Ed. 479; Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385; cf. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939. But if no comparable common-law right exists and no such constitutional or statutory interest has been created, relief is not available judicially. Thus, at least unless capricious discrimination is asserted, there is no protected interest in contracting with the Government. A litigant therefore has no standing to object that an official has misinterpreted his instructions in requiring a particular clause to be included in a contract. Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108. Similarly, a determination whether the Government is within its powers in distributing electric power may be of enormous financial consequence to a private power company, but it has no standing to raise the issue. Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543; cf. Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374. The common law does not recognize an interest in freedom from honest competition; a court will give protection from competition by the Government, therefore, only when the Constitution or a statute creates such a right. 56 (b) Does the action challenged affect petioner with sufficient 'directness'? Frequently governmental action directly affects the legal interests of some person, and causes only a consequential detriment to another. Whether the person consequentially harmed can challenge the action is said to depend on the 'directness' of the impact of the action on him. A shipper has no standing to attack a rate not applicable to him but merely affecting his previous competitive advantage over shippers subject to the rate. Edward Hines Yellow Pine Trustees v. United States, 263 U.S. 143, 148, 44 S.Ct. 72, 73, 68 L.Ed. 216; Alexander Sprunt & Son v. United States, 281 U.S. 249, 255, 257, 50 S.Ct. 315, 318, 74 L.Ed. 832. When those consequentially affected may resort to an administrative agency charged with their protection, courts are especially reluctant to give them 'standing' to claim judicial review. See City of Atlanta v. Ickes, 308 U.S. 517, 60 S.Ct. 170, 84 L.Ed. 440; cf. Associated Industries of New York State v. Ickes, 2 Cir., 134 F.2d 694.2 57 But it is not always true that only the person immediately affected can challenge the action. The fact that an advantageous relationship is terminable at will does not prevent a litigant from asserting that improper interference with it gives him 'standing' to assert a right of action. Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 38 S.Ct. 65, 62 L.Ed. 260. On this principle in alien employee was allowed to challenge a State law requiring his employer to discharge all but a specified proportion of alien employees, Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, and a private school to enjoin enforcement of a statute requiring parents to send their children to public schools, Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070. The likelihood that the interests of the petitioner will be adequately protected by the person directly affected is a relevant consideration, compare Columbia Broadcasting System v. United States, 316 U.S. 407, 423 424, 62 S.Ct. 1194, 1203, 86 L.Ed. 1563, with Schenley Distillers Corp. v. United States, 326 U.S. 432, 435, 66 S.Ct. 247, 248, 90 L.Ed. 181, as is, probably, the nature of the relationship involved. See Davis & Farnum Mfg. Co. v. City of Los Angeles, 189 U.S. 207, 220, 23 S.Ct. 498, 501, 47 L.Ed. 778; Truax v. Raich, 239 U.S. 33, 38—39, 36 S.Ct. 7, 9, 60 L.Ed. 131.3 58 (c) Is the action challenged sufficiently final? Although a litigant is the person most directly affected by the challenged action of the Government, he may not have 'standing' to raise his objections in a court if the action has not, as it were, come to rest.4 Courts do not review issues, especially constitutional issues, until they have to. See Parker v. Los Angeles County, supra, and see Brandeis, J., concurring in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688. In part, this practice reflects the tradition that courts, having final power, can exercise it most wisely by restricting themselves to situations in which decision is necessary. In part, it is founded on the practical wisdom of not coming prematurely or needlessly in conflict with the executive or legislature. See Rochester Telephone Corp. v. United States, 307 U.S. 125, 130—131, 59 S.Ct. 754, 757, 83 L.Ed. 1147. Controversies, therefore, are often held nonjusticiable '(w)here the action sought to be reviewed may have the effect of forbidding or compelling conduct on the part of the person seeking to review it, but only if some further action is taken by the Commission.' Rochester Telephone Corp. v. United States, supra, 307 U.S. at page 129, 59 S.Ct. at page 756; and see Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568. There is no 'standing' to challenge a preliminary administrative determination, although the determination itself causes some detriment to the litigant. United States v. Los Angeles & S.L.R. Co., 273 U.S. 299, 47 S.Ct. 413, 71 L.Ed. 651; cf. Ex parte Williams, 277 U.S. 267, 48 S.Ct. 523, 72 L.Ed. 877. Nor does the reservation of authority to act to a petitioner's detriment entitle him to challenge the reservation when it is conceded that the authority will be exercised only on a contingency which appears not to be imminent. Eccles v. Peoples Bank of Lakewood Village, Cal., 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784. Lack of finality also explains the decision in Standard Computing Scale Co. v. Farrell, 249 U.S. 571, 39 S.Ct. 380, 63 L.Ed. 780. There the Court was faced by an advisory 'specification' of characteristics desirable in ordinary measuring scales. The specification could be enforced only by independent local officers' withholding their approval of the equipment. Justiciability was denied.5 59 'Finality' is not, however, a principle inflexibly applied. If the ultimate impact of the challenged action on the petitioner is sufficiently probable and not too distant, and if the procedure by which that ultimate action may be questioned is too onerous or hazardous, 'standing' is given to challenge the action at a preliminary stage. Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Santa Fe Pac, R. Co. v. Lane, 244 U.S. 492, 37 S.Ct. 714, 61 L.Ed. 1275; see Waite v. Macy, 246 U.S. 606, 38 S.Ct. 395, 62 L.Ed. 892. It is well settled that equity will enjoin enforcement of criminal statutes found to be unconstitutional 'when it is found to be essential to the protection of the property rights, as to which the jurisdiction of a court of equity has been invoked.' E.g., Philadelphia Co. v. Stimson, 223 U.S. 605, 621, 32 S.Ct. 340, 345, 56 L.Ed. 570.6 And if the determination challenged creates a status which enforces a course of conduct through penal sanctions, a litigant need not subject himself to the penalties to challenge the determination. La Crosse Telephone Corp. v. Wisconsin Employment Relations Board, 336 U.S. 18, 69 S.Ct. 379, 93 L.Ed. 463; Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111. 60 (3) Whether 'justiciability' exists, therefore, has most often turned on evaluating both the appropriateness of the issues for decision by courts and the hardship of denying judicial relief. This explains the inference to be drawn from the cases that 'standing' to challenge official action is more apt to exist when that action is not within the scope of official authority than when the objection to the administrative decision goes only to its correctness. See United States v. Los Angeles & S.L.R. Co., 273 U.S. 299, 314—315, 47 S.Ct. 413, 416, 71 L.Ed. 651; Pennsylvania R. Co. v. United States Railroad Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536; Ex parte Williams, 277 U.S. 267, 271, 48 S.Ct. 523, 525, 72 L.Ed. 877.7 The objection to judicial restraint of an unauthorized exercise of powers is not weighty.8 II. 61 The injury asserted in the cases at bar does not fall into any familiar category. Petitioner in No. 8, the Joint Anti-Fascist Refugee Committee, is, according to its complaint, an unincorporated association engaged in relief work on behalf of Spanish Republican refugees. Since its inception it has distributed relief totaling $1,229,351; currently it is committed to regular monthly remittances of $5,400. Its revenues have been obtained from public contributions, garnered largely at meetings and social functions. The National Council of American-Soviet Friendship, petitioner in No. 7, is a nonprofit membership corporation whose purpose is alleged to be to strengthen friendly relations between the United States and the Soviet Union by developing cultural relations 'between the peoples of the two nations' and by disseminating in this country educational materials about Russia. It has obtained its funds through public appeals and through collections at meetings. Petitioner in No. 71 is the International Workers Order. Its complaint states that it is a fraternal benefit society, comprising over 1,800 lodges, with assets totaling approximately $5,000,000. Its members pay dues for the general expenses of the Order, and many of them make additional contributions for life, sickness and disability insurance. In addition to its insurance activities, the Order 'attempts to encourage the preservation of the cultural heritages and artistic values developed * * * by the peoples of the different countries of the world and brought with them to the United States.' 62 In November 1947, each of these organizations was included in the list of groups designated by the Attorney General as within the provisions of Executive Order No. 9835, the President's Loyalty Order. The list was disseminated to all departments and agencies of the Government. Six months later, each was with more particularity labeled 'communist.' Each alleges substantial injury as a consequence. Publicity and meeting places have become difficult for the Refugee Committee and the Council to obtain. The federal tax exemptions of all three organizations have been revoked; licenses necessary to solicitation of funds have been denied the Refugee Committee; and the New York Superintendent of Insurance has begun proceedings, in which a representative of the Attorney General of the United States has appeared, for dissolution of the Order. Most important, each of the organizations asserts that it has lost supporters and members, especially from present or prospective federal employees. Claiming that the injury is irreparable, each asks for relief by way of a declaratory judgment and an injunction. 63 The novelty of the injuries described in these petitions does not alter the fact that they present the characteristics which have in the past led this Court to recognize justiciability. They are unlike claims which the courts have hitherto found incompatible with the judicial process. No lack of finality can be urged. Designation works an immediate substantial harm to the reputations of petitioners. The threat which it carries for those members who are, or propose to become, federal employees makes it not a finicky or tenuous claim to object to the interference with their opportunities to retain or secure such employees as members. The membership relation is as substantial as that protected in Truax v. Raich and Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, supra. And it is at least doubtful that the members could or would adequately present the organizations' objections to the designation provisions of the Order. 64 Only on the ground that the organizations assert no interest protected in analogous situations at common law, by statute, or by the Constitution, therefore, can plausible challenge to their 'standing' here be made. But the reasons which made an exercise of judicial power inappropriate in Perkins v. Lukens Steel Co., Tennessee Electric Power Co. v. Tennessee Valley Authority and Alabama Power Co. v. Ickes, supra, are not apposite here. There the injuries were such that, had they not been inflicted by the Government, they clearly could not have been redressed. In Perkins v. Lukens Steel Co., it was not asserted that the authority under which the Government acted was invalid; only the correctness of an interpretation of a statute in the course of the exercise of an admitted power was challenged. In the power cases protection from competition was sought; but the thrust of the law is to preserve competition, not to give protection from it. The action there challenged, furthermore, was not directed at named individuals. Here, on the other hand, petitioners seek to challenge governmental action stigmatizing them individually. They object, not to a particular erroneous application of a valid power, but to the validity of the regulation authorizing the action. They point to two types of injury, each of a sort which, were it not for principles of governmental immunity, would be clearly actionable at common law. 65 This controversy is therefore amenable to the judicial process.9 Its justiciability does not depend solely on the fact that the action challenged is defamatory. Not every injury inflicted by a defamatory statement of a government officer can be redressed in court. On the balance of all considerations, the exercise here of judicial power accords with traditional canons for access to courts without inroads on the effective conduct of government. III. 66 This brings us to the merits of the claims before the Court. Petitioners are organizations which, on the face of the record, are engaged solely in charitable or insurance activities. They have been designated 'communist' by the Attorney General of the United States. This designation imposes no legal sanction on these organizations other than that it serves as evidence in ridding the Government of persons reasonably suspected of disloyalty. It would be blindness, however, not to recognize that in the conditions of our time such designation drastically restricts the organizations, if it does not proscribe them. Potential members, contributors or beneficiaries of listed organizations may well be influenced by use of the designation, for instance, as ground for rejection of applications for commissions in the armed forces or for permits for meetings in the auditoriums of public housing projects. Compare Act of April 3, 1948, § 110(c), 62 Stat. 143, 22 U.S.C. (Supp. III) § 1508(c), 22 U.S.C.A. § 1508(c). Yet, designation has been made without notice, without disclosure of any reasons justifying it, without opportunity to meet the undisclosed evidence or suspicion on which designation may have been based, and without opportunity to establish affirmatively that the aims and acts of the organization are innocent. It is claimed that thus to maim or decapitate, on the mere say-so of the Attorney General, an organization to all outward-seeming engaged in lawful objectives is so devoid of fundamental fairness as to offend the Due Process Clause of the Fifth Amendment. 67 Fairness of procedure is 'due process in the primary sense.' Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 681, 50 S.Ct. 451, 454, 74 L.Ed. 1107. It is ingrained in our national traditions and is designed to maintain them. In a variety of situations the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution. '(T)his court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in 'due process of law' as understood at the time of the adoption of the Constitution. One of these principles is that no person shall be deprived of his liberty without opportunity, at some time to be heard * * *.' The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86, 100—101, 23 S.Ct. 611, 614, 47 L.Ed. 721. '(B)y 'due process' is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought.' Hagar v. Reclamation District, No. 108, 111 U.S. 701, 708, 4 S.Ct. 663, 667, 28 L.Ed. 569. 'Before its property can be taken under the edict of an administrative officer, the appellant is entitled to a fair hearing upon the fundamental facts.' Southern R. Co. v. Commonwealth of Virginia ex rel. Shirley, 290 U.S. 190, 199, 54 S.Ct. 148, 151, 78 L.Ed. 260. 'Whether acting through its judiciary or through its Legislature, a state may not deprive a person of all existing remedies for the enforcement of a right, which the state has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it.' Brinkerhoff-Faris Trust & Savings Co. v. Hill, supra, 281 U.S. at page 682, 50 S.Ct. at page 454. 68 The requirement of 'due process' is not a fair-weather or timid assurance. It must be respected in periods of calm and in times of trouble; it protects aliens as well as citizens. But 'due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Expressing as it does in its ultimate analysis respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization, 'due process' cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, 'due process' is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess. Due process is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process. 69 Fully aware of the enormous powers thus given to the judiciary and especially to its Supreme Court, those who founded this Nation put their trust in a judiciary truly independent—in judges not subject to the fears or allurements of a limited tenure and by the very nature of their function detached from passing and partisan influences. 70 It may fairly be said that, barring only occasional and temporary lapses, this Court has not sought unduly to confine those who have the responsibility of governing by giving the great concept of due process doctrinaire scope. The Court has responded to the infinite variety and perplexity of the tasks of government by recognizing that what is unfair in one situation may be fair in another. Compare, for instance, Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 15 L.Ed. 372, with Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938, and see Federal Communications Comm. v. WJR, 337 U.S. 265, 275, 69 S.Ct. 1097, 1103, 93 L.Ed. 1353. Whether the ex parte procedure to which the petitioners were subjected duly observed 'the rudiments of fair play', Chicago, M. & St. P.R. Co. v. Polt, 232 U.S. 165, 168, 34 S.Ct. 301, 58 L.Ed. 554, cannot, therefore, be tested by mere generalities or sentiments abstractly appealing. The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged, the balance of hurt complained of and good accomplished—these are some of the considerations that must enter into the judicial judgment. 71 Applying them to the immediate situation, we note that publicly designating an organization as within the proscribed categories of the Loyalty Order does not directly deprive anyone of liberty or property. Weight must also be given to the fact that such designation is not made by a minor official but by the highest law officer of the Government. Again, it is fair to emphasize that the individual's interest is here to be weighed against a claim of the greatest of all public interests, that of national security. In striking the balance the relevant considerations must be fairly, which means coolly, weighed with due regard to the fact that this Court is not exercising a primary judgment but is sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government. 72 But the significance we attach to general principles may turn the scale when competing claims appeal for supremacy. Achievements of our civilization as precious as they were hard won were summarized by Mr. Justice Brandeis when he wrote that 'in the development of our liberty insistence upon procedural regularity has been a large factor.' Burdeau v. McDowell, 256 U.S. 465, 477, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (dissenting). It is noteworthy that procedural safeguards constitute the major portion of our Bill of Rights. And so, no one now doubts that in the criminal law a 'person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence'. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682. 'The hearing, moreover, must be a real one, not a sham or a pretense.' Palko v. State of Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 153, 82 L.Ed. 288. Nor is there doubt that notice and hearing are prerequisite to due process in civil proceedings, e.g., Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S.Ct. 625, 59 L.Ed. 1027. Only the narrowest exceptions, justified by history become part of the habits of our people or by obvious necessity, are tolerated. Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837; Endicott-Johnson Corp. v. Encyclopedia Press, 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288; see Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 394, 69 L.Ed. 767. 73 It is against this background of guiding considerations that we must view the rather novel aspects of the situation at hand. It is not true that the evils against which the Loyalty Order was directed are wholly devoid of analogy in our own history. The circumstances attending the Napoleonic conflicts, which gave rise to the Sedition Act of 1798, 1 Stat. 596, readily come to mind. But it is true that the executive action now under scrutiny is of a sort not heretofore challenged in this Court. That of itself does not justify the ex parte summary designation procedure. It does make it necessary to consider its validity when judged by our whole experience with the Due Process Clause. IV. 74 The construction placed by this Court upon legislation conferring administrative powers shows consistent respect for a requirement of fair procedure before men are denied or deprived of rights. From a great mass of cases, running the full gamut of control over property and liberty, there emerges the principle that statutes should be interpreted, if explicit language does not preclude, so as to observe due process in its basic meaning. See, e.g., Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143; American Power & Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 107—108, 67 S.Ct. 133, 143, 91 L.Ed. 103; Wong Yang Sung v. McGrath, 339 U.S. 33, 49, 70 S.Ct. 445, 453, 94 L.Ed. 616. Fair hearings have been held essential for rate determinations10 and, generally, to deprive persons of property.11 An opportunity to be heard is constitutionally necessary to deport persons even though they make no claim of citizenship, and is accorded to aliens seeking entry in the absence of specific directions to the contrary.12 Even in the distribution by the Government of benefits that may be withheld, the opportunity of a hearing is deemed important.13 75 The high social and moral values inherent in the procedural safeguard of a fair hearing are attested by the narrowness and rarity of the instances when we have sustained executive action even though it did not observe the customary standards of procedural fairness. It is in these instances that constitutional compulsion regarding fair procedure was directly in issue. Thus it has been held that the Constitution cannot be invoked to prevent Congress from authorizing disbursements on the ex parte determination of an administrative officer that prescribed conditions are met. United States v. Babcock, 250 U.S. 328, 39 S.Ct. 464, 63 L.Ed. 1011; cf. United States ex rel. Dunlap v. Black, 128 U.S. 40, 9 S.Ct. 12, 32 L.Ed. 354. The importation of goods is a privilege which, if Congress clearly so directs, may likewise be conditioned on ex parte findings. Buttfield v. Stranahan, 192 U.S. 470, 24 S.Ct. 349, 48 L.Ed. 525; cf. Hilton v. Merrett, 110 U.S. 97, 3 S.Ct. 548, 28 L.Ed. 83. Only by a close division of the Court was it held that at a time of national emergency, when war has not been closed by formal peace, the Attorney General is not required to give a hearing before denying hospitality to an alien deemed dangerous to public security. Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 881; United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317. Again, when decisions of administrative officers in execution of legislation turn exclusively on considerations similar to those on which the legislative body could itself have acted summarily, notice and hearing may not be commanded by the Constitution. Bi-Metallic Inv. Co. v. State Board of Equalization of Colorado, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372.14 Finally, summary administrative procedure may be sanctioned by history or obvious necessity. But these are so rare as to be isolated instances. Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 15 L.Ed. 372; Springer v. United States, 102 U.S. 586, 26 L.Ed. 253; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385. 76 This Court is not alone in recognizing that the right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society. Regard for this principle has guided Congress and the Executive. Congress has often entrusted, as it may, protection of interests which it has created to administrative agencies rather than to the courts. But rarely has it authorized such agencies to act without those essential safeguards for fair judgment which in the course of centuries have come to be associated with due process. See Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61; Tutun v. United States, 270 U.S. 568, 576, 577, 46 S.Ct. 425, 426, 70 L.Ed. 738; Pennsylvania R. Co. v. United States Railroad Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536.15 And When Congress has given an administrative agency discretion to determine its own procedure, the agency has rarely chosen to dispose of the rights of individuals without a hearing, however informals.16 77 The heart of the matter is that democracy implies respect for the elementary rights of men, however suspect or unworthy; a democratic government must therefore practice fairness; and fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.17 78 An opportunity to be heard may not seem vital when an issue relates only to technical questions susceptible of demonstrable proof on which evidence is not likely to be overlooked and argument on the meaning and worth of conflicting and cloudy data not apt to be helpful. But in other situations an admonition of Mr. Justice Holmes becomes relevant. 'One has to remember that when one's interest is keenly excited evidence gathers from all sides around the magnetic point * * *.'18 It should be particularly heeded at times of agitation and anxiety, when fear and suspicion impregnate the air we breathe. Compare Brown, The French Revolution in English History. '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.' United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 551, 70 S.Ct. 309, 317, 94 L.Ed. 317 (dissenting). Appearances in the dark are apt to look different in the light of day. 79 Man being what he is cannot safely be trusted with complete immunity from outward responsibility in depriving others of their rights. At least such is the conviction underlying our Bill of Rights. That a conclusion satisfies one's private conscience does not attest its reliability. The validity and moral authority of a conclusion largely depend on the mode by which it was reached. Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done.19 V. 80 The strength and significance of these considerations considerations which go to the very ethos of the scheme of our society—give a ready answer to the problem before us. That a hearing has been thought indispensable in so many other situations, leaving the cases of denial exceptional, does not of itself prove that it must be found essential here. But it does place upon the Attorney General the burden of showing weighty reason for departing in this instance from a rule so deeply imbedded in history and in the demands of justice. Nothing in the Loyalty Order requires him to deny organizations opportunity to present their case. The Executive Order, defining his powers, directs only that designation shall be made 'after appropriate investigation and determination.' This surely does not preclude an administrative procedure, however informal, which would incorporate the essentials of due process. Nothing has been presented to the Court to indicate that it will be impractical or prejudicial to a concrete public interest to disclose to organizations the nature of the case against them and to permit them to meet it if they can. Indeed, such a contention could hardly be made inasmuch as the Loyalty Order itself requires partial disclosure and hearing in proceedings against a Government employee who is a member of a proscribed organization. Whether such procedure sufficiently protects the rights of the employee is a different story. Such as it is, it affords evidence that the wholly summary process for the organizations is inadequate.20 And we have controlling proof that Congress did not think that the Attorney General's procedure was indispensable for the protection of the public interest. The McCarran Act, passed under circumstances certainly not more serene than when the Loyalty Order was issued, grants organizations a full administrative hearing, subject to judicial review, before they are required to register as 'Communist-action' or 'Communist-front.'21 81 We are not here dealing with the grant of Government largess. We have not before us the measured action of Congress, with the pause that is properly engendered when the validity of legislation is assailed. The Attorney General is certainly not immune from the historic requirements of fairness merely because he acts, however conscientiously, in the name of security. Nor does he obtain immunity on the ground that designation is not an 'adjudication' or a 'regulation' in the conventional use of those terms. Due process is not confined in its scope to the particular forms in which rights have heretofore been found to have been curtailed for want of procedural fairness. Due process is perhaps the most majestic concept in our whole constitutional system. While it contains the garnered wisdom of the past in assuring fundamental justice, it is also a living principle not confined to past instances. 82 Therefore the petitioners did set forth causes of action which the District Court should have entertained. 83 Mr. Justice DOUGLAS, concurring. 84 While I join in the opinion of Mr. Justice BURTON, which would dispose of the cases on procedural grounds, the Court has decided them on the Constitution. And so I turn to that aspect of the cases. 85 The resolution of the constitutional question presents one of the gravest issues of this generation. There is no doubt in my mind of the need for the Chief Executive and the Congress to take strong measures against any Fifth Column worming its way into government—a Fifth Column that has access to vital information and the purpose to paralyze and confuse. The problems of security are real. So are the problems of freedom. The paramount issue of the age is to reconcile the two. 86 In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within. The present cases, together with No. 49, Bailey v. Richardson, 341 U.S. 918, 71 S.Ct. 669, affirmed today by an equally divided Court, are simple illustrations of that trend. 87 I disagree with Mr. Justice JACKSON that an organization whether it be these petitioners, the American Red Cross, the Catholic Church, the Masonic Order, or the Boy Scouts—has no standing to object to being labeled 'subversive' in these ex parte proceedings. The opinion of Mr. Justice FRANKFURTER disposes of that argument. This is not an instance of name calling by public officials. This is a determination of status—a proceeding to ascertain whether the organization is or is not 'subversive.' This determination has consequences that are serious to the condemned organizations. Those consequences flow in part, of course, from public opinion. But they also flow from actions of regulatory agencies that are moving in the wake of the Attorney General's determination to penalize or police these organizations.1 An organization branded as 'subversive' by the Attorney General is maimed and crippled. The injury is real, immediate, and incalculable. 88 The requirements for fair trials under our system of government need no elaboration. A party is entitled to know the charge against him; he is also entitled to notice and opportunity to be heard. Those principles were, in my opinion, violated here. 89 The charge that these organizations are 'subversive' could be clearly defined. But how can anyone in the context of the Executive Order say what it means? It apparently does not necessarily mean 'totalitarian,' 'facist' or 'communist' because they are separately listed. Does it mean an organization with socialist ideas? There are some who lump Socialists and Communists together. Does it mean an organization that thinks the lot of some peasants has been improved under Soviet auspices? Does it include an organization that is against the action of the United Nations in Korea? Does it embrace a group which on some issues of international policy aligns itself with the Soviet viewpoint? Does it mean a group which has unwittingly become the tool for Soviet propaganda? Does it mean one into whose membership some Communists have infiltrated? Or does it describe only an organization which under the guise of honorable activities serves as a front for Communist activities? 90 No one can tell from the Executive Order what meaning is intended. No one can tell from the records of the cases which one the Attorney General applied. The charge is flexible; it will mean one thing to one officer, another to someone else. It will be given meaning according to the predilections of the prosecutor; 'subversive' to some will be synonymous with 'radical'; 'subversive' to others will be synonymous with 'communist.' It can be expanded to include those who depart from the orthodox party line—to those whose words and actions 'though completely loyal) do not conform to the orthodox view on foreign or domestic policy. These flexible standards, which vary with the mood or political philosophy of the prosecutor, are weapons which can be made as sharp or as blunt as the occasion requires. Since they are subject to grave abuse, they have no place in our system of law. When we employ them, we plant within our body politic the virus of the totalitarian ideology which we oppose. 91 It is not enough to know that the men applying the standard are honorable and devoted men. This is a government of laws not of men. The powers being used are the powers of government over the reputations and fortunes of citizens. In situations far less severe or important than these a party is told the nature of the charge against him. Thus when a defendant is summoned before a federal court to answer to a claim for damages or to a demand for an injunction against him, there must be a 'plain statement of the claim showing that the pleader is entitled to relief.'2 If that is necessary for even the most minor claim asserted against a defendant, we should require no less when it comes to determinations that may well destroy the group against whom the charge of being 'subversive' is directed.3 When the Government becomes the moving party and levels its great powers against the citizen, it should be held to the same standards of fair dealing as we prescribe for other legal contests. To let the Government adopt such lesser ones as suits the convenience of its officers is to start down the totalitarian path. 92 The trend in that direction is only emphasized by the failure to give notice and hearing on the charges in these cases and by the procedure adopted in Bailey v. Richardson, supra. 93 Notice and opportunity to be heard are fundamental to due process of law. We would reverse these cases out of hand if they were suits of a civil nature to establish a claim against petitioners. Notice and opportunity to be heard are indispensable to a fair trial whether the case be criminal or civil. See Coe v. Armour Fertilizer Works, 237 U.S. 413, 424, 35 S.Ct. 625, 629, 59 L.Ed. 1027; Palko v. State of Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 152, 82 L.Ed. 288; In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682. The gravity of the present charges is proof enough of the need for notice and hearing before the United States officially brands these organizations as 'subversive.' No more critical governmental ruling can be made against an organization these days. It condemns without trial. It destroys without opportunity to be heard. The condemnation may in each case be wholly justified. But government in this country cannot by edict condemn or place beyond the pale. The rudiments of justice, as we know it, call for notice and hearing—an opportunity to appear and to rebut the charge. 94 The system used to condemn these organizations is bad enough. The evil is only compounded when a government employee is charged with being disloyal. Association with or membership in an organization found to be 'subversive' weighs heavily against the accused. He is not allowed to prove that the charge against the organization is false. That case is closed; that line of defense is taken away. The technique is one of guilt by association—one of the most odious institutions of history. The fact that the technique of guilt by association was used in the prosecutions at Nuremberg4 does not make it congenial to our constitutional scheme. Guilt under our system of government is personal. When we make guilt vicarious we borrow from systems alien to ours and ape our enemies. Those short-cuts may at times seem to serve noble aims; but we depreciate ourselves by indulging in them. When we deny even the most degraded person the rudiments of a fair trial, we endanger the liberties of everyone. We set a pattern of conduct that is dangerously expansive and is adaptable to the needs of any majority bent on suppressing opposition or dissension. 95 It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law. The case of Dorothy Bailey is an excellent illustration of how dangerous a departure from our constitutional standards can be. She was charged with being a Communist and with being active in a Communist 'front organization.' The Review Board stated that the case against her was based on reports, some of which came from 'informants certified to us by the Federal Bureau of Investigation as experienced and entirely reliable.' Counsel for Dorothy Bailey asked that their names be disclosed. That was refused. 96 Counsel for Dorothy Bailey asked if these informants had been active in a certain union. The chairman replied, 'I haven't the slightest knowledge as to who they were or how active they have been in anything.' 97 Counsel for Dorothy Bailey asked if those statements of the informants were under oath. The chairman answered, 'I don't think so.' 98 The Loyalty Board convicts on evidence which it cannot even appraise. The critical evidence may be the word of an unknown witness who is 'a paragon of veracity, a knave, or the village idiot.'5 His name, his reputation, his prejudices, his animosities, his trustworthiness are unknown both to the judge and to the accused. The accused has no opportunity to show that the witness lied or was prejudiced or venal. Without knowing who her accusers are she has no way of defending. She has nothing to offer except her own word and the character testimony of her friends. 99 Dorothy Bailey was not, to be sure, faced with a criminal charge and hence not technically entitled under the Sixth Amendment to be confronted with the witnesses against her. But she was on trial for her reputation, her job, her professional standing. A disloyalty trial is the most crucial event in the life of a public servant. If condemned, he is branded for life as a person unworthy of trust or confidence. To make that condemnation without meticulous regard for the decencies of a fair trial is abhorrent to fundamental justice. 100 I do not mean to imply that but for these irregularities the system of loyalty trials is constitutional. I do not see how the constitutionality of this dragnet system of loyalty trials which has been entrusted to the administrative agencies of government can be sustained. Every government employee must take an oath of loyalty.6 If he swears falsely, he commits perjury and can be tried in court. In such a trial he gets the full protection of the Bill of Rights, including trial by jury and the presumption of innocence. I am inclined to the view that when a disloyalty charge is substituted for perjury and an administrative board substituted for the court 'the spirit and the letter of the Bill of Rights' are offended.7 101 The problem of security is real; and the Government need not be paralyzed in handling it. The security problem, however, relates only to those sensitive areas where secrets are or may be available, where critical policies are being formulated, or where sabotage can be committed. The department heads must have leeway in handling their personnel problems in these sensitive areas. The question is one of the fitness or qualifications of an individual for a particular position. One can be transferred from those areas even when there is no more than a suspicion as to his loyalty. We meet constitutional difficulties when the Government undertakes to punish by proclaiming the disloyalty of an employee and making him ineligible for any government post. The British have avoided those difficulties by applying the loyalty procedure only in sensitive areas and in using it to test the qualifications of an employee for a particular post, not to condemn him for all public employment.8 When we go beyond that procedure and adopt the dragnet system now in force, we trench upon the civil rights of our people. We condemn by administrative edict, rather than by jury trial.9 Of course, no one has a constitutional right to a government job. But every citizen has a right to a fair trial when his government seeks to deprive him of the privileges of first-class citizenship. 102 The evil of these cases is only emphasized by the procedure employed in Dorothy Bailey's case. Together they illustrate how deprivation of our citizens of fair trials is subversion from within. 103 Mr. Justice JACKSON, concurring. 104 It is unfortunate that this Court should flounder in wordy disagreement over the validity and effect of procedures which have already been pursued for several years. The extravagance of some of the views expressed and the intemperance of their statement may create a suspicion that the decision of the case does not rise above the political controversy that engendered it. 105 Mr. Justice BURTON, and those for whom he speaks, would rescue the Loyalty Order from inquiry as to its validity by spelling out an admission by the Attorney General that it has been arbitrarily misapplied. Mr. Justice BLACK would have us hold that listing by the Attorney General of organizations alleged to be subversive is the equivalent of a bill of attainder for treason after the fashion of those of the Stuart kings, while Mr. Justice REED contends, in substance, that the designation is a mere press release without legal consequences. 106 If the Court agreed that an accused employee could challenge the designation, its effect would be only advisory or prima facie; but as I point out later, the Court refuses so to limit the effect of the designation. In view of these and other diversified opinions, none of which has attracted sufficient adherents for a Court and none of which I can fully accept, I shall state rather than argue my view of the matter. 107 1. The Loyalty Order does affect substantive legal rights.—I agree that mere designation as subversive deprives the organizations themselves of no legal right or immunity. By it they are not dissolved, subjected to any legal prosecution, punished, penalized, or prohibited from carrying on any of their activities. Their claim of injury is that they cannot attract audiences, enlist members, or obtain contributions as readily as before. These, however, are sanctions applied by public disapproval, not by law. It is quite true that the popular censure is focused upon them by the Attorney General's characterization. But the right of privacy does not extend to organized groups or associations which solicit funds or memberships or to corporations dependent upon the state for their charters.1 The right of individuals to assemble is one thing; the claim that an organization of secret undisclosed character may conduct public drives for funds or memberships is another. They may be free to solicit, propagandize, and hold meetings, but they are not free from public criticism or exposure. If the only effect of the Loyalty Order was that suffered by the organizations, I should think their right to relief very dubious. 108 But the real target of all this procedure is the government employee who is a member of, or sympathetic to, one or more accused organizations. He not only may be discharged, but disqualified from employment, upon no other ground than such membership or sympathetic affiliation. And he cannot attack the correctness of the Attorney General's designation in any loyalty proceeding.2 109 Ordinary dismissals from government service which violate no fixed tenure concern only the Executive branch, and courts will not review such discretionary action.3 However, these are not discretionary discharges but discharges pursuant to an order having force of law. Administrative machinery is publicly set up to comb the whole government service4 to discharge persons or to declare them ineligible for employment upon an incontestable finding, made without hearing, that some organization is subversive. To be deprived not only of present government employment but of future opportunity for it certainly is no small injury when government employment so dominates the field of opportunity. 110 The fact that one may not have a legal right to get or keep a government post does not mean that he can be adjudged ineligible illegally. Perkins v. Elg.5 111 2. To promulgate with force of law a conclusive finding of disloyalty, without hearing at some stage before such finding becomes final, is a denial of due process of law.—On this subject, I agree with the opinion of Mr. Justice FRANKFURTER. That the safeguard of a hearing would not defeat the effectiveness of a Loyalty Program is apparently the judgment of Congress and of State Legislatures, for, as he points out, both congressional and state loyalty legislation recognize the right. 112 3. The organizations may vindicate unconstitutional deprivation of members' rights.—There are two stages at which administrative hearings could protect individuals' legal rights one is before an organization is designated as subversive, the other is when the individual, because of membership, is accused of disloyalty. Either choice might be a permissible solution of a difficult problem inherent in such an extensive program. But an equally divided Court today, erroneously, I think, rejects the claim that the individual has hearing rights.6 I am unable to comprehend the process by which those who think the Attorney General's designation is no more than a press release can foreclose attack upon it in the employees' case. Also beyond my understanding is how a Court whose collective opinion is that the designations are subject to judicial inquiry can at the same time say that a discharge based at least in part on them is not. 113 By the procedures of this Loyalty Order, both groups and individuals may be labeled disloyal and subversive. The Court grants judicial review and relief to the group while refusing it to the individual. So far as I recall, this is the first time this Court has held rights of individuals subordinate and inferior to those of organized groups. I think that is an inverted view of the law—it is justice turned bottom-side up. 114 I have believed that a corporation can maintain an action to protect rights under the Due Process or Equal Protection Clauses of the Fourteenth Amendment, e.g., Wheeling Steel Corp. v. Glander, 337 U.S. 562, 574, 69 S.Ct. 1291, 1297, 93 L.Ed. 1544. The only practical judicial policy when people pool their capital, their interests, or their activities under a name and form that will identify collective interests, often is to permit the association or corporation in a single case to vindicate the interests of all. 115 This procedure is appropriate here where the Government has lumped all the members' interests in the organization so that condemnation of the one will reach all. The Government proceeds on the basis that each of these associations is so identical with its members that the subversive purpose and intents of the one may be attributed to and made conclusive upon the other. Having adopted this procedure in the Executive Department, I think the Government can hardly ask the Judicial Department to deny the standing of the organizations to vindicate its members' rights. 116 Unless a hearing is provided in which the organization can present evidence as to its character, a presumption of disloyalty is entered against its every member-employee, and because of it, he may be branded disloyal, discharged, and rendered ineligible for government service. I would reverse the decisions for lack of due process in denying a hearing at any stage. 117 Mr. Justice REED, with whom THE CHIEF JUSTICE and Mr. Justice MINTON join, dissenting. 118 The three organizations named in the caption, together with certain other groups and individuals, filed suits in the United States District Court for the District of Columbia primarily to have declared unconstitutional Executive Order No. 9835, March 21, 1947, 12 Fed.Reg. 1935, as applied against these petitioners. Acting under Part III, § 3 of Executive Order No. 9835, note 38 infra, the Attorney General, on November 24, 1947, transmitted the required list of organizations to the Loyalty Review Board. This list included the three above-named organizations. The Board promptly disseminated the information to all departments and agencies. It was published as Appendix A to Title 5, Administrative Personnel, CFR § 210.11(b)(6). 13 Fed.Reg. 1471. Later, September 17, 1948, the three organizations were designated by the Attorney General as 'communist.' 13 Fed.Reg. 6135. The relief sought by petitioners was to have the names of the organizations deleted from the allegedly unconstitutionally created lists because of the obvious harm to their activities by reason of their designation. 119 The list was transmitted to the Board by the Attorney General as a part of the plan of the President, broadly set forth in Executive Order No. 9835, to furnish maximum protection 'against infiltration of disloyal persons into the ranks of (government) employees, and equal protection from unfounded accusations of disloyalty' for the loyal employees. 12 Fed.Reg. 1935. Executive Order No. 9835 came after long consideration of the problems of possible damage to the Government from disloyalty among its employees. 92 Cong.Rec. 9601. See the Report of the President's Temporary Commission on Employee Loyalty (appointed 1946), p. 23: 'The presence within the government of any disloyal or subversive persons, or the attempt by any such persons to obtain government employment, presents a problem of such importance that it must be dealt with vigorously and effectively.' A list of subversive organizations under Executive Order No. 9300, 3 CFR, 1943 Cum.Supp., 1252, was likewise disseminated to government agencies. 13 Fed.Reg. 1473. Great Britain (see note 31, infra), Australia (Act of October 20, 1950), New Zealand (Deynzer v. Campbell, (1950) N.Z.L.R. 790; 37th Rep., Public Service Comm'n, New Zealand, 1949, p. 14; 38th Rep., Public Service Comm'n, New Zealand, 1950, p. 12), and the Union of South Africa (Act No. 44 of 1950) have taken legislative or administrative steps to control disloyalty among government employees. See The Report of the Royal Commission (Canada) appointed under Order in Council, P.C. 411, February 5, 1946. The method of dealing with communism and communists adopted by the Commonwealth of Australia was held beyond the powers of that government. Australian Communist Party v. Commonwealth, decision of Friday, March 9, 1951, 83 C.L.R. 1. 120 The procedure for designating these petitioners as communists may be summarized as follows: Executive Order No. 9835, Part III, was issued by the President as Chief Executive, 'in the interest of the internal management of the Government' and under the Civil Service Act of 1883, 22 Stat. 403, as amended, 5 U.S.C.A. § 632 et seq., and § 9A of the Hatch Act. 5 U.S.C.Supp. II, § 118j, 5 U.S.C.A. § 118j. The former acts give general regulatory powers over the employment and discharge of government personnel; the latter is more specific.1 These present cases do not involve the removal of any employee. The Order required investigation of the loyalty of applicants for government employment and similar investigation of present employees. To assure uniformity and fairness throughout the Government in the investigation of employees, a Loyalty Review Board was created to review loyalty cases from any department or agency, disseminate information pertinent to employee loyalty programs, and advise the heads thereof. Standards were provided for employment and discharge. So far as pertinent to the objections of petitioner to inclusion on the list of subversive and communist organizations, they appear in note 3 and in the note below.2 It was apparently to avoid the necessity of continuous reexamination by all government departments and agencies of the characteristics of organizations suspected of aims inimical to the Government that provision was made in the Order for examination and designation of such organizations by the Attorney General. 12 Fed.Reg. 1938, Part III, § 3.3 It was under this plan that the Attorney General made his designations. 121 The designations made available for the use of the Loyalty Review Board and the departmental or agency loyalty boards, the result of the investigation of the Attorney General into the character of organizations that might fall under suspicion as totalitarian, fascist, communist or subversive. The list does not furnish a basis for any court action against the organizations so designated. It of course might follow from discovery of facts by the investigation that criminal or civil proceedings would be begun to enforce an applicable criminal statute or to cancel the franchise or some license of a listed organization. In such a proceeding, however, the accused organization would have the usual protections of any defendant. The list is evidence only of the character of the listed organizations in proceedings before loyalty boards to determine whether 'reasonable' grounds exist for belief 'that the employee under consideration' is disloyal to the Government of the United States. See note 2, supra. The names were placed on the list by the Attorney General after investigation. If legally permissible, as carried out by the Attorney General, there is no question but that a single investigation as to the character of an organization is preferable to one by each of the more than a hundred agencies of government that are catalogued in the United States Government Organization Manual. To require a determination as to each organization for the administrative hearing of each employee investigated for disloyalty would be impossible. The employee's association with a listed organization does not, under the Order, establish, even prima facie, reasonable grounds for belief in the employee's disloyalty.4 122 None of the complaints deny that the Attorney General made an 'investigation' of the organizations to determine whether or not they were totalitarian, fascist, communist or subversive as required by Part III, § 3, or that he had material information concerning disloyal activities on their part. The Council came the nearest to such an allegation in the quoted excerpts from their complaint in note 10, but we read them as no more than allegations of unconstitutionality because 'investigation' without notice and hearing is not 'appropriate.' Certainly there is no specific allegation of the way in which the Attorney General failed to follow the Order. We therefore assume that the designation was made after appropriate investigation and determination.5 123 No objection is or could reasonably be made in the records or briefs to an examination by the Government into the loyalty of its employees. Although the Founders of this Republic rebelled against their established government of England and won our freedom, the creation of our own constitutional government endowed that new government, the United States of America, with the right and duty to protect its existence against any force that seeks its overthrow or changes in its structure by other than constitutional means. Tolerant as we are of all political efforts by argument or persuasion to change the basis of our social, economic or political life, the line if drawn sharply and clearly at any act or incitement to act in violation of our constitutional processes. Surely the Government need not await an employee's conviction of a crime involving disloyalty before separating him from public service. Governments cannot be indifferent to manifestations of subversion. As soon as these are significant enough reasonably to cause concern as to the likelihood of action, the duty to protect the state compels the exertion of governmental power. Not to move would brand a government with a dangerous weakness of will. The determination of the time for action rests with the executive and legislature arms. An objection to consideration of an employee's sympathetic association with an admitted totalitarian, fascist, communist or subversive group, as bearing upon the propriety of his retention or employment as a government employee would have no better standing. The Order gives conclusive indication of the type of organization that is meant by the four word-labels.6 Following them in Part III, § 3, 12 Fed.Reg. 1938, are the words, 'or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.' Bracketed with membership in listed organizations (Exec.Order No. 9835, Part V) as activities for consideration in determining an employee's loyalty are those listed below. These are the standards that define the type of organization subject to designation.7 Of course, the Order means that a communist or subversive organization is of the same general character as one that seeks to alter our form of government by unconstitutional means, 13 Fed.Reg. 6137, to wit by force and violence. 124 Procedure under the Executive Order does not require 'proof' in the sense of a court proceeding that these communist organizations teach or incite to force and violence to obtain their objectives.8 What is required by the Order is an examination and determination by the Attorney General that these organizations are 'communist.' The description 'communist' is adequate for the purposes of inquiry and listing. No such precision of definition is necessary as a criminal prosecution might require. Cf. United States v. Chemical Foundation, 272 U.S. 1, 14, 47 S.Ct. 1, 6, 71 L.Ed. 131. Communism is well understood to mean a group seeking to overthrow by force and violence governments such as ours and to establish a new government based on public ownership and direction of productive property. Undoubtedly, there are reasonable grounds to conclude that accepted history teaches that revolution by force and violence to accomplish this end is a tenet of communists.9 No more is necessary to justify an organization's designation as communist. 125 As a basis for petitioners' attack on the list, the Refugee Committee set forth facts in its complaint to show its charitable character. These indicate activities and expenditures in aid of the Spanish Republicans in flight from their homeland. The International Workers Order sets forth facts to show that it was a duly organized fraternal benefit society under New York law, furnishing sickness and death benefits as well as life insurance protection to its members. It states other worthy objectives in which it is engaged and asserts it is not an organization such as are referred to in the Order, Part III, § 3, supra. The Council, too, sets out its purpose to promote American-Soviet friendship by means of education and information. It asserts: 'In all its activities the National Council has sought to further the best interests of the American people by lawful, peaceful and constitutional means.' 126 The absence of any provision in the Order or rules for notice to suspected organizations, for hearings with privilege to the organizations to confront witnesses, cross-examine, produce evidence and have representation of counsel or judicial review of the conclusion reached by the Attorney General is urged by the petitioners, as a procedure so fundamentally unfair and restrictive of personal freedoms as to violate the Federal Constitution, specifically the Due Process Clause and the First Amendment. No opportunity was allowed by the Attorney General for petitioners to offer proof of the legality of their purposes or to disprove charges of subversive operations. This is the real gravamen of each complaint, the basis upon which the determination of unconstitutionality is sought.10 127 To these complaints, the Government filed motions to dismiss because of failure to state a claim upon which relief could be granted. The motions were granted by the District Court and the Court of Appeals affirmed. 128 Admissions by motions to dismiss.—It is held in Mr. Justice BURTON'S opinion that the motion to dismiss should have been denied. It is said: 'The inclusion of any of the complaining organizations in the designated list solely on the facts alleged in the respective complaints, which must be the basis for our decision here, is therefore an arbitrary and unauthorized act. In the two cases where the complaint specifically alleges the factual absence of any basis for the designation, and the respondents' motion admits that allegation, the designation is necessarily contrary to the record.' 341 U.S. 137, 71 S.Ct. 631. 129 I understand Mr. Justice BURTON'S opinion to hold that as a motion to strike for failure to state a cause of action admits all well-pleaded facts, respondents' motion admits such allegations in the complaint as that quoted in the third preceding paragraph from the Council's complaint and the assertions that petitioners are not 'totalitarian, facist, communist or subversive.' Such statements, however, appear to me to be only conclusions of law as to the effect of facts stated, or empty assertions or conclusions without well-pleaded facts to sustain them.11 Where the issue is the permissibility of designation without notice or hearing, a motion to strike does not admit an allegation of 'arbitrary' action or that 'all its activities (are) * * * constitutional.' These complaints may not be decided upon any such posture in pleading. Petitioners' charge, that their 'designation' violates due process and the First Amendment, remains the issue. 130 Standing to sue.—A question is raised by the United States as to petitioners' standing to maintain these actions. It seems unnecessary to analyze that problem in this dissent. If there should be a determination that petitioners' constitutional rights are violated by petitioners' designation under Part III, § 3, of the Order, it would seem they would have standing to seek redress. The 'standing' turns on the existence of the federal right.12 Does petitioners' designation abridge their rights under the First Amendment? Do petitioners have a constitutional right under the Due Process Clause of the Fifth Amendment to require a hearing before the Attorney General designates them as a subversive or communist organization for the purposes of Executive Order No. 9835? 131 First Amendment.—Petitioners assert that their inclusion on the disloyal list has abridged their freedom of speech, since listeners or readers are more difficult to obtain for their speeches and publications, and parties interested in their work are more hesitant to become associates. The Refugee Committee brief adds that 'thought' is also abridged. A concurring opinion accepts these arguments to the point of concluding that the publication of the lists 'with or without a hearing' violates the First Amendment. 132 This Court, throughout the years, has maintained the protection of the First Amendment as a major safeguard to the maintenance of a free republic. This Nation has never suffered from an enforced conformity of expression or a limitation of criticism. But neither are we compelled to endure espionage and sedition. Wide as are the freedoms of the First Amendment, this Court has never hesitated to deny the individual's right to use the privileges for the overturn of law and order. Reasonable restraints for the fair protection of the Government against incitement to sedition cannot properly be said to be 'undemocratic' or contrary to the guarantees of free speech. Otherwise the guarantee of civil rights would be a mockery.13 Even when this Court spoke out most strongly against previous restraints, it was careful to recognize that 'The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.' Near v. State of Minnesota, ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357. 133 Recognizing that the designation, rightly or wrongly, of petitioner organizations as communist impairs their ability to carry forward successfully whatever legitimate objects they seek to accomplish, we do not accept their argument that such interference is an abridgment of First Amendment guarantees.14 They are in the position of every proponent of unpopular views. Heresy induces strong expressions of opposition. So long as petitioners are permitted to voice their political ideas, free from suggestions for the opportune use of force to accomplish their social and economic aims, it is hard to understand how any advocate of freedom of expression can assert that their right has been unconstitutionally abridged. As nothing in the orders or regulations concerning this list limits the teachings or support of these organizations, we do not believe that any right of theirs under the First Amendment is abridged by publication of the list. 134 Due Process.—This point brings us face to face with the argument that whether the Attorney General was right or wrong in listing these organizations, his designation cannot stand because a final decision of ineligibility for employment without notice and hearing rises to the importance of a constitutional defect. If standards for definition of organizations includable on the list are necessary, the order furnishes adequate tests as appears from the text preceding notes 2 and 7 above and the standards set out in those notes. Compare cases cited, note 6, supra. 135 Does due process require notice and hearing for the Department of Justice investigation under Executive Order No. 9835, Part III, § 3, note 3, supra, preliminary to listing? As a standard for due process one cannot do better than to accept as a measure that no one may be deprived of liberty or property without such reasonable notice and hearing as fairness requires. This is my understanding of the meaning of the opinions upon due process cited in the concurring opinions. We are not here concerned with the rightfulness of the extent of participation in the investigations that might be claimed by petitioners.15 They were given no chance to take part. Their claim is that the listing resulted in a deprivation of liberty or property contrary to the procedure required by the Fifth Amendment.16 136 The contention can be answered summarily by saying that there is no deprivation of any property or liberty of any listed organization by the Attorney General's designation. It may be assumed that the listing is hurtful to their prestige, reputation and earning power. It may be such an injury as would entitle organizations to damages in a tort action against persons not protected by privilege. See Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780; Glass v. Ickes, 73 App.D.C. 3, 117 F.2d 273, 132 A.L.R. 1328. This designation, however, does not prohibit any business of the organizations, subject them to any punishment or deprive them of liberty of speech or other freedom. The cases relied upon in the briefs and opinions of the majority as requiring notice and hearing before valid action can be taken by administrative officers are where complainant will lose some property or enforceable civil or statutory right by the action taken or proposed.17 '(A) mere abstract declaration' by an administrator regarding the character of an organization, without the effect of forbidding or compelling conduct on the part of complainant, ought not to be subject to judicial interference. Rochester Telephone Corp. v. United States, 307 U.S. 125, 129, 143, 59 S.Ct. 754, 756, 763, 83 L.Ed. 1147. That is, it does not require notice and hearing. 137 These petitioners are not ordered to do anything and are not punished for anything. Their position may be analogized to that of persons under grand jury investigation. Such persons have no right to notice by and hearing before a grand jury; only a right to defend the charge at trial.18 Property may be taken for government use without notice or hearing by a mere declaration of taking by the authorized official. No court has doubted the constitutionality of such summary action under the due process clause when just compensation must be paid ultimately.19 Persons may be barred from certain positions merely because of their associations.20 138 To allow petitioners entry into the investigation would amount to interference with the Executive's discretion, contrary to the ordinary operations of Government. Long ago Mr. Chief Justice Taney in Decatur v. Paulding, 14 Pet. 497, 10 L.Ed. 559, stated the rule and the reason against judicial interference with executive discretion: 139 'The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. * * * 140 'If a suit should come before this Court, which involved the construction of any of these laws, the Court certainly would not be bound to adopt the construction given by the head of a department. And if they supposed his decision to be wrong, they would, of course, no pronounce their judgment. But their judgment upon the construction of a law must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the act of Congress, in order to ascertain the rights of the parties in the cause before them.' 14 Pet. 515, 10 L.Ed. 559. 141 'The interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied that such a power was never intended to be given to them.' 14 Pet. 516, 10 L.Ed. 559. 142 That rule still stands. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct. 1457, 1468, 93 L.Ed. 1628.21 This Court applied it recently in Chicago & Southern Air Lines, Inc., v. Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568, as to foreign policy decisions of the President concerning overseas airline licenses.22 In State of Louisiana v. McAdoo, 234 U.S. 627, 34 S.Ct. 938, 940, 58 L.Ed. 1506, the State sought to enjoin an order of the Secretary of the Treasury fixing the customs rate on sugar as 'arbitrary, illegal, and unjust' and irreparably injurious to the State. The Court refused the State permission to file the suit as in reality a suit against the United States, saying an officer may be compelled to act ministerially. 'But if the matter in respect to which the action of the official is sought, is one in which the exercise of either judgment or discretion is required, the courts will refuse to substitute their judgment or discretion for that of the official intrusted by law with its execution. Interference in such a case would be to interfere with the ordinary functions of government.' 234 U.S. at page 633, 34 S.Ct. at page 941, 58 L.Ed. 1506. It seems clearly erroneous to suggest that 'listing' determines any 'guilt' or 'punishment' for the organizations or has any finality in determining the loyalty of members. The President and the Attorney General pointed this out.23 It is written into the Code of Federal Regulations, 5 CFR § 210.11(b)(6), note 4, supra. The standard for discharge emphasizes the meaning. See notes 2 and 7, supra. 143 Before stating our conclusions a comment should be made as to the introduction by the concurring opinions of a discussion of the rights of a member of these organizations. It is suggested by one concurrence that as the 'Government proceeds on the basis that each of these associations is so identical with its members that the subversive purpose and intents of the one may be attributed to and made conclusive upon the other,' the organization must be permitted to vindicate the members' rights or due process is not satisfied. Another concurrence states 'an employee may lose his job because of the Attorney General's secret and ex parte action.' Both concurrences indicate, it seems to me, that as a member of petitioner organizations is denied due process by the effect of listing the organizations, the organization is likewise denied due process in the listing. Without accepting the logic of the concurrences, and waiving inquiry as to the standing of a corporation or unincorporated association to defend the rights of a member to employment, we think the suggestions as to lack of due process are based on an erroneous premise. Employees generally, under executive departments and agencies, whether or not members of listed organizations, without special statutory protection such as permanent employees under the competitive and classified civil service laws and regulations or preference eligibles under the Veterans' Preference Act of 1944, 58 Stat. 387, 5 U.S.C.A. § 851, 5 U.S.C.A. § 851 et seq., 5 CFR, Parts 9 and 22, and Part 2, § 2.104, are subject to summary removal by the appointing officers.24 Listing of these organizations does not conclude the members' rights to hold government employment. It is only one piece of evidence for consideration.25 That mere membership in listed organizations does not normally bring about findings of disloyalty is graphically shown by a report of proceedings under the loyalty program.26 The procedure for removal of employees suspected of disloyalty follows the routine prescribed for the removal of employees on other grounds for dismissal. Employees under investigation have never had the right to confrontation, cross-examination and quasi-judicial hearing. 5 U.S.C. § 652, 5 U.S.C.A. § 652, 37 Stat. 555. Normal removal procedure functions for permanent employees about in this way. The employing agency may remove for the efficiency of the service, including grounds for disqualification of an applicant. 5 CFR, 1947 Supp. § 9.101.27 Removal requires notice and charges.28 Before the loyalty review boards similar procedure is followed.29 Where initial consideration indicates a removal of an incumbent for disloyalty may be warranted, notice is provided for.30 Thus, there is scrupulous care taken to see that an employee who has fallen under suspicion has notice of the charges and an opportunity to explain his actions. The employee has no opportunity to disprove the characterization placed upon the listed organization by the Attorney General for the practical reasons stated following note 2, supra. The employee does have every opportunity to explain his association with that organization. The Constitution requires for the employee no more than this fair opportunity to explain his questioned activities. Such procedure is quite similar to that followed in Great Britain in the removal or transfer of civil servants from positions 'vital to the security of the State.' The Prime Minister assumed the authority to designate membership in the Communist Party or 'other forms of continuing association' therewith as sufficient to bar employment in sensitive areas.31 144 Conclusion.—In our judgment organizations are not affected by these designations in such a manner as to permit a court's interference or to deny due process. That conclusion holds good also when we assume the organizations may present their members' grievances over discharge as a part of the organization's case. The administrative hearing granted an employee facing discharge is a statutory modification of the employing agent's former authority to discharge summarily. Such act or grace does not create a constitutional right. Due process is called for in determinations affecting rights. 145 What petitioners seek is a ruling that the Government cannot designate organizations as communist for the purpose of furthering investigations into employees' loyalty by the employing agencies without giving those organizations an opportunity to examine and meet the information on which the list is based. One can understand that position. There is a natural hesitation against any action that may damage any person or organization through an error that notice and hearing might correct. Such attitude of tolerance is reflected in § 13 of the Internal Security Act of 1950, 64 Stat. 987, 998. A statutory requirement for notice and administrative hearing, however, does not mean the existence of a constitutional requirement.32 146 The Executive his authority to gather information concerning the loyalty of its employees as congressional committees have power to investigate matters of legislative interest. A public statement of legislative conclusions on information that later may be found erroneous may damage those investigated but it is not a civil judgment or a criminal conviction. Due process does not apply. Questions of propriety of political action are not for the courts. Information that an employee associates with or belongs to organizations considered communistic may be deemed by the Executive a sound reason for making inquiries into the desirability of the employment of that employee. That is not 'guilt by association.' It is a warning to investigate the conduct of the employee and his opportunity for harm. 147 While we must be on guard against being moved to conclusions on the constitutionality of action, legislative or executive, by the circumstances of the moment, undoubtedly varying conditions call for differences in procedure. Due process requires appraisal in the light of conditions confronting the executive during the continuation of the challenged action.33 Power lies in the executive to guard the Nation from espionage, subversion and sedition by examining into the loyalty of employees, and due process in such investigation depends upon the particular exercise of that power in particular conditions.34 In investigations to determine the purposes of suspected organizations, the Government should be free to proceed without notice or hearing. Petitioners will have protection when steps are taken to punish or enjoin their activities. Where notice and such administrative hearing as the Code Federal Regulations prescribes precede punishment, injunction or discharge, petitioners and their members' rights to due process are protected. 148 The judgment of the Court of Appeals should be affirmed. 1 E.g., § 9A of the Hatch Political Activity Act, August 2, 1939, 53 Stat. 1148, 5 U.S.C. (1946 ed., Supp. III) § 118j, 5 U.S.C.A. § 118j; Smith Act, June 28, 1940, 54 Stat. 671, now 18 U.S.C. (1946 ed., Supp. III) §§ 2385, 2387; Voorhis Anti-Propaganda Act, October 17, 1940, 54 Stat. 1201, now 18 U.S.C. (1946 ed., Supp. III) § 2386; many appropriation act riders barring the use of funds to pay 'any person who advocates, or who is a member of an organization that advocates, the overthrow of the Government of the United States by force or violence: * * *' such as that at 55 Stat. 42, § 3; Exec. Order No. 9300, 'Establishing the Interdepartmental Committee to Consider Cases of Subversive Activity on the Part of Federal Employees', February 5, 1943, 3 CFR, 1943 Cum.Supp., p. 1252, 8 Fed.Reg. 1701; and Exec. Order No. 9806, 'Establishing the President's Temporary Commission on Employee Loyalty', November 25, 1946, 3 CFR, 1946 Supp., p. 183, 11 Fed.Reg. 13863. See also, United States v. Lovett, 328 U.S. 303, 308—313, 66 S.Ct. 1073, 1075—1078, 90 L.Ed. 1252. A later expression of congressional policy appears in Title I (the Subversive Activities Control Act of 1950) of the Internal Security Act of 1950 (the McCarran Act) of September 23, 1950, 64 Stat. 987, 50 U.S.C.A. § 781 et seq. This requires any 'Communist-action organization' or 'Communist-front organization' to register with the Attorney General (§ 7) and provides for hearings before a newly created 'Subversive Activities Control Board' (§§ 12, 13). 2 'Part V-Standards '1. The standard for the refusal of employment or the removal from employment in an executive department or agency on grounds relating to loyalty shall be that, on all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States. '2. Activities and associations of an applicant or employee which may be considered in connection with the determination of disloyalty may include one or more of the following: 'f. Membership in, affiliation with or sympathetic association with any foreign or domestic organization, association, movement, group or combination of persons, designated by the Attorney General as totalitarian, fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny other persons their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.' 3 CFR, 1947 Supp., p. 132, 12 Fed.Reg. 1938. 3 As published in the Federal Register, March 20, 1948, the list includes two groups. The first group contains none of the present complainants. The Attorney General explains that that group 'is reported as having been previously named as subversive by the Department of Justice and as having been previously disseminated among the Government agencies for use in connection with consideration of employee loyalty under Executive Order No. 9300, issued February 5, 1943 * * *.' 13 Fed.Reg. 1473. The second group includes each of the complaining organizations. The Attorney General lists this group, with the first, under the general heading 'Appendix A—List of Organizations Designated by the Attorney General Pursuant to Executive Order No. 9835.' 5 CFR, 1949, c. II, Pt. 210, pp. 199—201, 13 Fed.Reg. 1471, 1473. He then places the second group under the following subheading: 'Under Part III, section 3, of Executive Order No. 9835, the following additional organizations are designated: * * *.' Id., at 201, 13 Fed.Reg. 1473. 4 13 Fed.Reg. 6137—6138. This classification was disseminated to all departments and agencies September 21, 1948, and the classified list was published October 21, 1948, as an amendment to 5 CFR, 1949, c. II, Pt. 210, pp. 200—202, 203—205. 5 The six classifications were: 'Totalitarian,' 'Fascist,' 'Communist,' 'Subversive,' 'Organizations Which Have 'Adopted a Policy of Advocating or Approving the Commission of Acts of Force and Violence to Deny Others Their Rights Under the Constitution of the United States," and 'Organizations Which 'Seek to Alter the Form of Government of the United States by Unconstitutional Means." 5 CFR, 1949, c. II, Pt. 210, pp. 203—205, 13 Fed.Reg. 6137 6138. The Attorney General also explained that— 'Applying the elementary rule of statutory construction, each of these classifications must be taken to be independent and mutually exclusive of the others. It may well be that a designated organization, by reason of origin, leadership, control, purposes, policies or activities, alone or in combination, may fall within more than one of the specified classifications. In such cases a reasonable interpretation of the Executive order would seem to require that designation be predicated upon its dominant characteristics rather than extended to include all other classifications possible on the basis of what may be subordinate attributes of the group. In classifying the designated organizations the Attorney General has been guided by this policy. Accordingly, it should not be assumed that an organization's dominant characteristic is its only characteristic.' Id., at 203, 13 Feg.Reg. 6137. 6 The complaint adds that—'Before the end of the war in Europe, this relief consisted of: (1) the release and assistance of those of the aforesaid refugees who were in concentration camps in Vichy France, North Africa and other countries; (2) transportation and asylum for those of the aforesaid refugees in flight; (3) direct relief and aid, to those of the aforesaid refugees requiring help, through the Red Cross and other international agencies. At the present time, the Joint Anti-Fascist Refugee Committee relief work is principally devoted to aiding those Spanish Republican refugees, and other anti-fascist refugees who fought against Franco, located in France and Mexico.' 7 Executive Order No. 9835 purports to rest, in part, upon the authority of § 9A of the Hatch Act. 3 CFR, 1947 Supp., p. 129, 12 Fed.Reg. 1935. 8 In this case, unlike the others, the complainant asked that a three-judge District Court be convened, pursuant to 28 U.S.C. (1946 ed.) § 380a, now part of 28 U.S.C. (1946 ed., Supp. III) §§ 2281—2284. The District Court, however, dismissed the complaint without convening such a court. 9 The complaint also alleges in Part IV: '8. The purpose, objectives and activities of the Order are in no sense subversive. The Order is not an organization within the meaning of Part III, section 3 of Executive Order No. 9835, and it has not adopted a policy of advocating or approving the commission of acts of force or violence, or to deny other persons the rights under the Constitution or as seeking to alter the form of government by unconstitutional means, but on the contrary, the Order is opposed to the commission of acts of force or violence, fights against the denial of rights to any person, and is opposed to the altering of our form of government by any illegal or unconstitutional means. The Order is dedicated to the democratic ideals and traditions of the United States and the principles of freedom and equality embodied in the Constitution.' 10 The complaint attacks the constitutionality of § 9A of the Hatch Act but does not ask for the convening of a three-judge District Court. In this case, A. L. Drayton, as a member of the order and a civil employee of the United States, sought permission from the District Court to intervene under Rule 24(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and to have added as defendants three members of the Loyalty Review Board of the Post Office Department. His motion was denied and his appeal from that denial dismissed. The respondents now advise us that, in a separate proceeding, he appealed to the Loyalty Review Board from a decision adverse to his loyalty, with the result that such decision has been reversed and that he has returned to duty. While he has not withdrawn his appeal from the denial of his motion to intervene, we find no reason to review the discretion exercised by the District Court in denying that motion. Allen Calculators v. National Cash Register Co., 322 U.S. 137, 64 S.Ct. 905, 88 L.Ed. 1188; see 4 Moore's Federal Practice (2d ed. 1950) 62—64. 11 The designation of these organizations was not preceded by any administrative hearing. The organizations received no notice that they were to be listed, had no opportunity to present evidence on their own behalf and were not informed of the evidence on which the designations rest. See Chin Yow v. United States, 208 U.S. 8, 28 S.Ct. 201, 52 L.Ed. 369. We have noted the following recitals made by the Attorney General in describing his standard procedure in the preparation of his lists: 'After the issuance of Executive Order No. 9835 by the President, the Department of Justice compiled all available data with respect to the type of organization to be dealt with under that order. The investigative reports of the Federal Bureau of Investigation concerning such organizations were correlated. Memoranda on each such organization were prepared by attorneys of the Department. The list of organizations contained herein has been certified to the Board by the Attorney General on the basis of recommendations of attorneys of the Department as reviewed by the Solicitor General, the Assistant Attorneys General, and the Assistant Solicitor General, and subsequent careful study of all by the Attorney General.' 5 CFR, 1949, c. II, Pt. 210, pp. 199 200, 13 Fed.Reg. 1471. These recitals, however, relate to the mechanics used rather than to the appropriateness of the determination or the justification for the respective designations. They fall short of disclosing that there has been such an administrative hearing as would offset the admissions of the specific allegations of the complaints which are inherent in the respondents' motions to dismiss. See Fed.Rules Civ.Proc., 12(b) and 56(c), and Regan v. Farmers' Loan & Trust Co., 154 U.S. 362, 401—402, 14 S.Ct. 1047, 1055, 1056, 38 L.Ed. 1014. We have treated the designation of an organization by the Attorney General in his list as including his furnishing of that list to the Loyalty Review Board with knowledge of that Board's obligation to disseminate it to all departments and agencies of the Government. 12 As an illustration of the meaning of § 559, the Restatement suggests: '2. A writes in a letter to B that C is a member of the Ku Klux Klan. B lives in a community in which a substantial number of the citizens regard this organization as a discreditable one. A has defamed C.' See also, Spanel v. Pegler, 7 Cir., 160 F.2d 619, 171 A.L.R. 699; Wright v. Farm Journal, 2 Cir., 158 F.2d 976; Grant v. Reader's Digest Ass'n, 2 Cir., 151 F.2d 733; Mencher v. Chesley, 297 N.Y. 94, 75 N.E.2d 257; Prosser, Handbook of the Law of Torts § 91; 171 A.L.R. 709—710, Note. 13 We do not reach either the validity of the Employees Loyalty Program or the effect of the respondents' acts in furnishing and disseminating a comparable list in any instance where such acts are within the authority purportedly granted by the Executive Order. Cf. Carter v. Carter Coal Co., 298 U.S. 238, 289—292, 56 S.Ct. 855, 863—864, 80 L.Ed. 1160; United States v. Butler, 297 U.S. 1, 68—78, 56 S.Ct. 312, 320—325, 80 L.Ed. 477; Linder v. United States, 268 U.S. 5, 17, 45 S.Ct. 446, 448, 69 L.Ed. 819; M'Culloch v. State of Maryland, 4 Wheat. 316, 423, 4 L.Ed. 579. 14 Rule 17(b) of the Federal Rules of Civil Procedure gives unincorporated associations the right to sue in their own names for the enforcement of rights existing under the Constitution or laws of the United States. And see Restatement, Torts, § 561(2) and Comment b thereon. See also, New York Society for Suppression of Vice v. MacFadden Publications, 260 N.Y. 167, 183 N.E. 284, 86 A.L.R. 440; cf. Pullman Standard Car Mfg. Co. v. Local Union No. 2928 of United Steelworkers of America, 7 Cir., 152 F.2d 493. 15 Utah Fuel Co. v. National Bituminous Coal Comm., 306 U.S. 56, 59 S.Ct. 409, 83 L.Ed. 483; Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111; Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570. 16 United States v. Los Angeles & S.L.R. Co., 273 U.S. 299, 309—310, 47 S.Ct. 413, 414, 71 L.Ed. 651, does not prescribe a contrary course. In that case we held that the Interstate Commerce Commission order fixing a rate base could not be attacked by a bill in equity when the base could be challenged in subsequent proceedings fixing the rate. No comparable alternative relief is available here. 1 In November 1794, there was introduced in Congress a resolution of public disapprovable of certain 'self-created Democratic societies' thought to be responsible for stirring up the people to insurrection. Madison opposed the resolution, apparently believing that if it were enacted it would be a bill of attainder. His views in this regard are reported as follows: 'It is in vain to say that this indiscriminate censure is no punishment. If it falls on classes, or individuals, it will be a severe punishment. * * * Is not this proposition, if voted, a vote of attainder?' 4 Annals of Cong. 934 (1794). 2 But compare Madison in Federalist Paper No. 42: 'As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other, the Convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a Constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.' 3 One purpose of the Attorney General's blacklist under Executive Order 9835 is for use as evidence against government employees tried for disloyalty before loyalty boards acting under the same Executive Order. Proof of membership in a blacklisted organization, or of association with its members, can weigh heavily against a government employee's loyalty. Thus an employee may lose his job because of the Attorney General's secret and ex parte action. This is well illustrated in the case of Bailey v. Richardson, 341 U.S. 918, 71 S.Ct. 669, decided today by an equally divided Court. The Loyalty Board's finding against Miss Bailey appears to have rested in part on her supposed association with such organizations and in part on secret unsworn hearsay statements communicated to the Board by anonymous informers. Judge Edgerton's dissenting opinion demonstrates how the entire loyalty program grossly deprives government employees of the benefits of constitutional safeguards. Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, 66. 4 The Appendix is an illustration of persecution of Protestants by Catholics. For instances of persecution of Catholics by Protestants, see my dissenting opinion in American Communications Ass'n, C.I.O., v. Douds, 339 U.S. 382, 445, 70 S.Ct. 674, 707, 94 L.Ed. 925, particularly notes 3, 4 and 7. 1 The decisions are collected in the dissenting opinion in Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 705, 69 S.Ct. 1457, 1469, 93 L.Ed. 1628. 2 A statute may of course confer standing even in this situation. Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869, 1037; Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563; cf. Youngstown Sheet & Tube Co. v. United States, 295 U.S. 476, 55 S.Ct. 822, 79 L.Ed. 1553; Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733. 3 The Davis & Farnum case held that a subcontractor did not have standing to enjoin a municipal ordinance which prohibited a construction project in violation of a right of the owner of the land on which it was to be built. The Court held that the petitioner had no legal interest in the controversy, since his interest was only 'indirect.' 4 Government action is 'final' in the sense here involved when at no future time will its impact on the petitioner become more conclusive, definite, or substantial. 'Finality' is also employed in a different sense with which we are not here concerned, in reference to judicial action not subject to subsequent revisory executive or legislative action. Cf. United States v. Ferreira, 13 How. 40, 14 L.Ed. 42. 5 The Court expressed the decision in terms of the nonlegislative character of the specification. But since the validity of the specification could be determined in an action for injunction or mandamus against the local officers, the decision does not establish that final administrative action is immune from review because it is not legislative in form. 6 See also decisions treating as 'justiciable' bills to enjoin regulations which create duties immediately enforceable by imposition of penalties. Assigned Car Cases, 274 U.S. 564, 47 S.Ct. 727, 71 L.Ed. 1204; United States v. Baltimore & O.R. Co., 293 U.S. 454, 55 S.Ct. 268, 79 L.Ed. 587. 7 In the Los Angeles case the Court thus supported its conclusion that the bill was not justiciable under general equity powers: 'The investigation was undertaken in aid of the legislative purpose of regulation. In conducting the investigation, and in making the report, the Commission performed a service specifically delegated and prescribed by Congress. Its conclusions, if erroneous in law, may be disregarded. But neither its utterances, nor its processes of reasoning, as distinguished from its acts, are a subject for injunction.' 273 U.S. at pages 314—315, 47 S.Ct. at page 416, 71 L.Ed. 651. Pennsylvania R. Co. v. United States Railroad Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536, was a bill to enjoin the Railroad Labor Board from publishing that the petitioner had violated its decision. Decisions of the Board were not legally enforceable; and the Court therefore concluded that they violated 'no legal or equitable right of the complaining company.' 261 U.S. at page 85, 43 S.Ct. at page 283. The Court considered at length, however, the company's argument that the Board had been given no jurisdiction to decide the particular issue involved. That it found it necessary to decide this issue against the company on the merits indicates that it thought a stronger case for standing would have been presented had the decision been beyond the Board's authority. In Ex parte Williams, 277 U.S. at page 271, 48 S.Ct. at page 525, there is a suggestion that a litigant may have standing to enjoin a tax assessment when the challenge is to the validity of the statute authorizing the assessment, although there would be no standing to challenge the assessment on the ground that it denied equal protection of the laws. 8 Compare the decisions which hold that certain executive officers are not liable in suits for damages for erroneous or even malicious conduct in office, so long as they are acting within the scope of the authority given them. Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780; Gregoire v. Biddle, 2 Cir., 177 F.2d 579. 9 A Denver affiliate of the National Council, joined as petitioner in No. 7, has standing identical with its parent. The individual petitioners in that suit, however, have as officers of the Council an interest which is too remote to justify finding the issues justiciable as to them. 10 The reasonableness of rates has of course been held in part a question for the courts. Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287, 40 S.Ct. 527, 64 L.Ed. 908; cf. Chicago, M. & St. P.R. Co. v. State of Minnesota ex rel. Railroad & Warehouse Comm., 134 U.S. 418, 10 S.Ct. 462, 33 L.Ed. 970. But to the extent that finality is accorded to the determination of an administrative agency the Court has exacted a high standard of procedural fairness. Ohio Bell Tel. Co. v. Public Utilities Commission of Ohio, 301 U.S. 292, 304, 57 S.Ct. 724, 730, 81 L.Ed. 1093; see Interstate Commerce Comm. v. Louisville & N.R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431; United States v. Abilene & S.R. Co., 265 U.S. 274, 44 S.Ct. 565, 68 L.Ed. 1016; West Ohio Gas Co. v. Public Utilities Commission of Ohio (No. 1), 294 U.S. 63, 55 S.Ct. 316, 79 L.Ed. 761; Railroad Comm. of California v. Pacific Gas & Electric Co., 302 U.S. 388, 58 S.Ct. 334, 82 L.Ed. 319; Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 999, 82 L.Ed. 1129; cf. United States v. Illinois Central R. Co., 291 U.S. 457, 54 S.Ct. 471, 78 L.Ed. 909. 11 In Southern R. Co. v. Commonwealth of Virginia ex rel. Shirley, 290 U.S. 190, 54 S.Ct. 148, 78 L.Ed. 260, the Court declared unconstitutional a state officer's ex parte order that a railroad install an overhead crossing. Compare Monongahela Bridge Co. v. United States, 216 U.S. 177, 30 S.Ct. 356, 54 L.Ed. 435, in which a comparable order of the Secretary of War, entered after hearing, was upheld. In decisions involving local taxation for improvements, the Court has required that owners be given a hearing on valuation as well as on the question whether their property has been benefited whenever that determination has not been legislatively made. See, e.g., Embree v. Kansas City & Liberty Boulevard Road Dist., 240 U.S. 242, 36 S.Ct. 317, 60 L.Ed. 624; cf. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143. And although an individual's interest has been created by an ex parte decision, it may not be destroyed 'without that character of notice and opportunity to be heard essential to due process of law.' United States ex rel. Turner v. Fisher, 222 U.S. 204, 208, 32 S.Ct. 37, 56 L.Ed. 165; Garfield v. United States ex rel. Goldsby, 211 U.S. 249, 29 S.Ct. 62, 53 L.Ed. 168. See also Ex parte Robinson, 19 Wall. 505, 22 L.Ed. 205. 12 The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721; see Kwock Jan Fat v. White, 253 U.S. 454, 40 S.Ct. 566, 64 L.Ed. 1010; Wong Yang Sung v. McGrath, 339 U.S. 33, 49, 70 S.Ct. 445, 453, 94 L.Ed. 616; cf. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317. In Lloyd Sabaudo Societa Anonima Per Azioni v. Elting, 287 U.S. 329, 53 S.Ct. 167, 77 L.Ed. 341, the Court held that a steamship company required to pay a fine to obtain port clearance for a ship which had brought a diseased alien to this country was entitled to determination of the facts by fair procedure. The Court disapproved in part Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320, 29 S.Ct. 671, 53 L.Ed. 1013. 13 In Dismuke v. United States, 297 U.S. 167, 172, 56 S.Ct. 400, 403, 80 L.Ed. 561, the Court said that 'in the absence of compelling language, resort to the courts to assert a right which the statute creates will be deemed to be curtailed only so far as authority to decide is given to the administrative officer. * * * If he is authorized to determine questions of fact, his decision must be accepted unless he exceeds his authority by making a determination which is arbitrary or capricious or unsupported by evidence, * * * or by failing to follow a procedure which satisfies elementary standards of fairness and reasonableness essential to the due conduct of the proceeding which Congress has authorized * * *.' 14 Thus, no hearing need be granted on the question whether property is needed for a public use. Rindge Co. v. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 67 L.Ed. 1186. Cf. Martin v. Mott, 12 Wheat. 19, 6 L.Ed. 537; United States v. George S. Bush & Co., 310 U.S. 371, 60 S.Ct. 944, 84 L.Ed. 1259. 15 Cf. Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796. In recent customs legislation Congress has required a hearing on objections to appraisement. 38 Stat. 187, as amended, 19 U.S.C. § 1501, 19 U.S.C.A. § 150; see Freund, Administrative Powers over Persons and Property, 163. In numberless other situations Congress has required the essentials of a hearing. Among those that have come before this Court are removal orders of the Federal Reserve Board, Board of Governors of Federal Reserve System v. Agnew, 329 U.S. 441, 67 S.Ct. 411, 91 L.Ed. 408; determinations under the Hatch Act, State of Oklahoma v. United States Civil Service Commn., 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794; induction orders under the draft law, Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; minimum price orders of the Secretary of Agriculture, Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733; price control, Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834; minimum wage determinations, Opp Cotton Mills v. Administrator of Wage and Hour Division of Department of Labor, 312 U.S. 126, 657, 61 S.Ct. 524, 85 L.Ed. 624; labor relations regulation, National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 47, 57 S.Ct. 615, 629, 81 L.Ed. 893; Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111; Inland Empire District Council, Lumber and Sawmill Workers Union v. Millis, 325 U.S. 697, 65 S.Ct. 1316, 89 L.Ed. 1877. 16 In 1941 the Attorney General's Committee on Administrative Procedure reported that it 'found in its investigation of the administrative process few instances of indifference on the part of the agencies to the basic values which underlie a fair hearing.' These values it defined as follows: 'Before adverse action is to be taken by an agency, whether it be denying privileges to an applicant or bounties to a claimant, before a cease-and-desist order is issued or privileges or bounties are permanently withdrawn, before an individual is ordered directly to alter his method of business, or before discipline is imposed upon him, the individual immediately concerned should be apprised not only of the contemplated action with sufficient precision to permit his preparation to resist, but, before final action, he should be apprised of the evidence and contentions brought forward against him so that he may meet them. He must be offered a forum which provides him with an opportunity to bring his own contentions home to those who will adjudicate the controversy in which he is concerned. The forum itself must be one which is prepared to receive and consider all that he offers which is relevant to the controversy.' Final Report, p. 62. The monographs prepared under the direction of the Committee support the conclusion that by statutory direction or administrative interpretation agencies consistently grant at least minimum rights of hearing. For example, the Walsh-Healey Act, 41 U.S.C.A. § 35 et seq., is enforceable by the Government's recovery of liquidated damages and by its withholding further contracts for a three-year period. Administrative hearings are employed for all contested action. Monograph of the Attorney General's Committee on Administrative Procedure, S. Doc. No. 186, 76th Cong., 3d Sess., Part 1, p. 7. It is generally the practice of the Veteran's Administration to grant hearings on request of claimants. Id., Part 2, p. 11. Hearings are granted on request on applications for permits from the Federal Alcohol Administration, id., Part 5, p. 6, and when licenses granted under the Grain Standards Act are suspended or revoked, id., Part 7, p. 10. The Federal Deposit Insurance Corporation determines admissibility of banks to membership without giving the applicant a hearing or formal opportunity to contradict the bank examiner's report. However, grounds for disapproval are reported to the applicant. Id., Part 13, p. 15. War Department officials grant hearings on applications to construct installations in navigable waters, except when it is clear that the application should or should not be granted. S. Doc. No. 10, 77th Cong., 1st Sess., Part 2, p. 7. A 1939 amendment to the social security law requires hearings in the event a claimant is dissatisfied with the disposition of the case by the Bureau of Old-Age and Survivors Insurance. Id., Part. 3, p. 14. The Department of the Interior grants hearings in allocating grazing lands, id., Part 7, pp. 9, 10; in disposing of applications for mineral leases, except where hearing would serve no useful purpose, id., at 26; and in determining questions of fact necessary to issuing mining patents, id., at 36. Hearings are frequently employed in investigations under flexible tariff procedures of the Tariff Commission, id., Part. 14, p. 12. 17 The importance of opportunity to be heard is recognized as well by the English courts. The leading case is Board of Education v. Rice, (1911) A.C. 179. Lord Loreburn said in dictum, 'In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. * * * They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.' Id., at 182. This principle has been approved in a long line of decisions. See Local Government Board v. Arlidge, (1915) A.C. 120, 132—133; General Medical Council v. Spackman, (1943) A.C. 627; Errington v. Minister of Health, (1935) 1 K.B. 249; Rex v. Westminster, (1941) 1 K.B. 53. The Committee on Minister's Powers reported in 1936 that while in administrative determination in Minister may 'depart from the usual forms of legal procedure or from the common law rules of evidence, he ought not to depart from or offend against 'natural justice." Three principles of 'natural justice' were stated to be that 'a man may not be a judge in his own cause,' that 'No party ought to be condemned unheard,' and that 'a party is entitled to know the reason for the decision.' Report of Committee on Ministers' Powers, Cmd. 4060, pp. 75—80. 18 Mr. Justice Holmes made this remark in a letter to Mr. Arthur Garfield Hays in 1928. See Bent, Justice Oliver Wendell Holmes, 312. 19 'In a government like ours, entirely popular, care should be taken in every part of the system, not only to do right, but to satisfy the community that right is done.' 5 The Writings and Speeches of Daniel Webster, 163. The same thought is reflected in a recent opinion by the Lord Chief Justice. A witness in a criminal case had been interrogated by the court in the absence of the defendant. Quashing the conviction, Lord Goddard said: 'That is a matter which cannot possibly be justified. I am not suggesting for one moment that the justices had any sinister or improper motive in acting as they did. It may be that they sent for this officer in the interests of the accused; it may be that the information which the officer gave was in the interests of the accused. That does not matter. Time and again this court has said that justice must not only be done but must manifestly be seen to be done. * * *' Rex v. Bodmin JJ., (1947) 1 K.B. 321, 325. 20 Other evidence is furnished by the State of New York. The Feinberg Law, comparable in purpose and in its scheme to the Loyalty Order, makes notice and hearing prerequisite to designation of organizations. See Thompson v. Wallin, 301 N.Y. 476, 484, 95 N.E.2d 806. 21 Act of September 23, 1950, c. 1024, §§ 13, 14, 64 S.Ct. 987, 998, 1001, 50 U.S.C.A. §§ 792, 793. 1 The Bureau of Internal Revenue canceled the tax-exempt status of contributions to eight 'subversive' organizations shortly after the Attorney General's list was released. The Bureau's announcement of the revocation indicated that the listing provided the basis for it. Treasury Dept. Press Release No. S—613, Feb. 4, 1948, 5 C.C.H. 1948 Fed.Tax Rep. par. 6075. The New York Feinberg Law, directed at eliminating members of subversive organizations from employment in the public schools, authorizes the Board of Regents to utilize the Attorney General's list in drawing up its own list of subversive organizations. Membership in a listed organization is prima facie evidence of disqualification. Laws of New York 1949, c. 360, Education Law, McK.Consol.Laws, c. 16, § 3022(2). The New York Superintendent of Insurance recently brought an action to dissolve the International Workers Order, Inc., petitioner in No. 71, on the grounds that it was on the Attorney General's list. Matter of People of New York (International Workers Order, Inc.) Motion 165, Supreme Court of New York County, Dec. 18, 1950. (See 199 Misc. 941, 106 N.Y.S.2d 953.) The Maryland Ober Law requires candidates for appointive or elective office to certify whether they are members of 'subversive' organizations. Laws of Maryland 1949, c. 86, §§ 10 15. The Commission which drafted the Act contemplated that the Attorney General's list would be employed in policing these oaths. Report of Commission on Subversive Activities to Governor Lane and the Maryland General Assembly, January 1949, p. 43. 2 Rule 8(a), Federal Rules of Civil Procedure. 3 As Mr. Justice FRANKFURTER points out, due process requires no less. But apart from due process in the constitutional sense is the power of the Court to prescribe standards of conduct and procedure for inferior federal courts and agencies. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. 4 The International Tribunal tried Nazi organizations to determine whether they were 'criminal.' Art. 9, Charter of the International Military Tribunal, Nazi Conspiracy and Aggression, Vol. 1, Office of U.S. Chief Counsel, U.S. Government Printing Office (1946) p. 6. That procedure, unlike the present one, provided that accused organizations might defend themselves against that charge. Ibid. But the finding of guilt as to an organization was binding on an individual who was later brought to trial for the crime of membership in a criminal organization. Article 10 provided: 'In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.' Id. 5 Barth, The Loyalty of Free Men (1951) p. 109. 6 'The oath to be taken by any person elected or appointed to any office of honor or profit either in the civil, military, or naval service, except the President of the United States shall be as follows: 'I, A B, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." 23 Stat. 22, R.S. § 1757, 5 U.S.C. § 16, 5 U.S.C.A. § 16. And see Act of Sept. 6, 1950, c. 896, § 1209, 64 Stat. 595, 764. 7 See the address by Benjamin V. Cohen, Cong. R. c., A785, A786. 8 448 H.C.Deb. 1703 et seq., 3418 et seq. (5th Ser. 1947 1948). The meticulous care with which this small select group is handled is reflected in the letter of the Prime Minister, dated Dec. 1, 1948, reporting on the purge of communists and fascists from the civil service. 459 H.C.Deb. 830 (5th Ser. 1948—1949). The number of cases considered by the end of April 1950, was 86, classified as follows: See British Information Services, Reference Division, April, 1950. 9 The Civil Service Commission reports as of February, 1951, the following statistics relating to adjudications of loyalty under Executive Order No. 9835 of March 21, 1947: 1 United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 368, 94 L.Ed. 401. 2 'Boards * * * should not enter upon any evidential investigation of the nature of any of the organizations identified in the Attorney General's list, for the purpose of attacking, contradicting, or modifying the controlling conclusion reached by the Attorney General in such list. * * * The Board should permit no evidence or argument before it on the point.' Loyalty Review Board, Memorandum No. 2, March 9, 1948. 3 Eberlein v. United States, 257 U.S. 82, 42 S.Ct. 12, 66 L.Ed. 140; Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774. This is true, although reasons stated are alleged to be false or the officer taking the action is alleged to have acted in a biased, prejudicial and unfair manner. Golding v. United States, 78 Ct.Cl. 682, 685; certiorari denied 292 U.S. 643, 54 S.Ct. 776, 78 L.Ed. 1494. 4 'A total of 3,166 Government employees have quit or have been discharged under President Truman's loyalty program since it began March 21, 1947, the Loyalty Review Board reported today. 'Of these, 294 actually were discharged for disloyalty. The remainder, 2,872, quit while under investigation and might or might not have been found disloyal.' New York Times, January 16, 1951. 5 307 U.S. 325, 349, 59 S.Ct. 884, 896, 83 L.Ed. 1320. That was an action to mandamus the Secretary of State to issue a passport, to which it was conceded Miss Elg had no legal right, its issuance being wholly within Executive discretion which the courts would not attempt to control. Chief Justice Hughes pointed out, however, that its denial to Miss Elg was not grounded in the Secretary's general discretion but 'solely on the ground that she had lost her native born American citizenship.' Finding that ground untenable, this Court directed its decree against the Secretary. The Secretary might say she would get no passport, but he could not, for unjustifiable reasons, say she was ineligible for one. 6 Bailey v. Richardson, 341 U.S. 918, 71 S.Ct. 669. 1 5 U.S.C.Supp. II, § 118j, 5 U.S.C.A. § 118j: '(1) It shall be unlawful for any person employed in any capacity by any agency of the Federal Government, whose compensation, or any part thereof, is paid from funds authorized or appropriated by any Act of Congress, to have membership in any political party or organization which advocates the overthrow of our constitutional form of government in the United States. '(2) Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any Act of Congress for such position or office shall be used to pay the compensation of such person.' 2 See 12 Fed.Reg. 1938, 5 CFR § 210.11(a): '(a) Standard. The standard for the refusal of employment or the removal from employment in an Executive department or agency on grounds relating to loyalty shall be that, on all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States. The panel shall reach its decision on consideration of the complete file, arguments, brief and testimony presented to it. '(b) Activities and associations. Among the activities and associations of an applicant or employee which may be considered in connection with the determination of disloyalty may be one or more of the following: '(6) Membership in, affiliation with or sympathetic association with any foreign or domestic organization, association, movement, group or combination of persons, designated by the Attorney General as totalitarian, fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny other persons their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.' 3 '3. The Loyalty Review Board shall currently be furnished by the Department of Justice the name of each foreign or domestic organization, association, movement, group or combination of persons which the Attorney General, after appropriate investigation and determination, designates as totalitarian, fascist, communist or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means. 'a. The Loyalty Review Board shall disseminate such information to all departments and agencies.' 4 5 CFR § 210.11(b)(6): 'Such membership, affiliation or sympathetic association is simply one piece of evidence which may or may not be helpful in arriving at a conclusion as to the action which is to be taken in a particular case. * * *' See 5 CFR § 200.1. 5 13 Fed.Reg. 1471: 'After the issuance of Executive Order No. 9835 by the President, the Department of Justice compiled all available data with respect to the type of organization to be dealt with under that order. The investigative reports of the Federal Bureau of Investigation concerning such organizations were correlated. Memoranda on each such organization were prepared by attorneys of the Department. The list of organizations contained herein has been certified to the Board by the Attorney General on the basis of recommendations of attorneys of the Department as reviewed by the Solicitor General, the Assistant Attorneys General, and the Assistant Solicitor General, and subsequent careful study of all by the Attorney General.' Cf. United States v. Chemical Foundation, 272 U.S. 1, 14, 47 S.Ct. 1, 6, 71 L.Ed. 131; Lewis v. United States, 279 U.S. 63, 73, 49 S.Ct. 257, 260, 73 L.Ed. 615. 6 Cf. Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232; New York Central Securities Corp. v. United States, 287 U.S. 12, 24, 53 S.Ct. 45, 48, 77 L.Ed. 138; United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877. 7 5 CFR § 210.11(b): '(1) Sabotage, espionage, or attempts or preparations therefor, or knowingly associating with spies or saboteurs; '(2) Treason or sedition or advocacy thereof; '(3) Advocacy of revolution or force or violence to alter the constitutional form of government of the United States; '(4) Intentional, unauthorized disclosure to any person under circumstances which may indicate disloyalty to the United States, of documents or information of a confidential or non-public character obtained by the person making the disclosure as a result of his employment by the Government of the United States, or prior to his employment; '(5) Performing or attempting to perform his duties, or otherwise acting, so as to serve the interests of another government in preference to the interests of the United States; * * *.' See also n. 2, supra. 8 In Schneiderman v. United States, 320 U.S. 118, 148, 158, 63 S.Ct. 1333, 1347, 1352, 87 L.Ed. 1796, a review of the evidence of communist theory upon the use of force and violence presented in that record led this Court to hold that the evidence concerning communist teaching upon force and violence was not so 'clear, unequivocal and convincing' as to justify deportation of that defendant. We refused specifically to pass upon the attitude of communism toward force and violence. 320 U.S. at pages 148, 158, 63 S.Ct. at pages, 1347, 1352. 9 The Russian Imperial Government fell quickly in February 1917, because its power had been sapped by bureaucratic rapacity and war losses as well as by communist revolutionary doctrines. Even under those circumstances, there are said to have been more than a thousand casualities in St. Petersburg. I Trotsky, History of the Russian Revolution, 141. The doctrine and practices of communism clearly enough teach the use of force against an existing noncommunist government to justify an official of our Government taking steps to protect governmental personnel by screening individuals to determine whether they accept force and violence as a political weapon. From the last paragraphs of the Communist Manifesto to the seizure of the last satellite, force and violence appears as a communist method for gaining control. Lenin, Collected Works (1930), Vol. XVIII, pp. 279—280; Trotsky, op. cit., 106, 120, 144, 151; Lenin, The State and Revolution, August, 1917, Foreign Languages Publishing House, Moscow (1949), 28, 30, 33. Translations furnished me indicate the same attitude on the part of Stalin. Collected Works, Vol. I, pp. 131—137, 185—205, 241—246; Vol. III, pp. 367—370. And see Leites, The Operational Code of the Politburo (1950) c. xiii, 'Violence.' See § 2 of the Internal Security Act of 1950, 64 Stat. 987, 50 U.S.C.A. § 782. 10 In the Refugee Committee complaint unconstitutionality of the designation was predicated upon repugnancy: '(1) It is repugnant to the Constitution of the United States as a deprivation of freedom of speech, of the press, and of assembly and association in violation of the First Amendment. '(2) * * * as a deprivation of the fundamental rights of the people of the United States reserved to the people of the United States by the Ninth and Tenth Amendments. '(3) * * * as a deprivation of liberty and property without due process of law in violation of the Fifth Amendment.' In the Council case, it was predicated upon a lack of 'any advance notice' and the Attorney General's acting 'without making 'an appropriate investigation and determination' as required' by the Order. It was said: 'The aforesaid actions of the defendants have been arbitrary, capricious, contrary to law, in excess of statutory right and authority. Such actions have violated the rights of the plaintiffs guaranteed by the First and Fifth Amendments to the Constitution and are contrary to the Ninth and Tenth Amendments.' The same general allegations of violations of the Due Process Clause and First Amendment appear in No. 71, International Workers Order, Inc. 11 Nortz v. United States, 294 U.S. 317, 324, 55 S.Ct. 428, 429, 79 L.Ed. 907; Pierce Oil Corp. v. City of Hope, 248 U.S. 498, 39 S.Ct. 172, 63 L.Ed. 381; Straus v. Foxworth, 231 U.S. 162, 168, 34 S.Ct. 42, 43, 58 L.Ed. 168. 12 Bell v. Hood, 327 U.S. 678, 681, 684. 66 S.Ct. 773, 775, 776, 90 L.Ed. 939; Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 690, 69 S.Ct. 1457, 1461, 93 L.Ed. 1628. 13 United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 95, 67 S.Ct. 556, 567, 91 L.Ed. 754, and cases cited; American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 394 399, 70 S.Ct. 674, 681—684, 94 L.Ed. 925; Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 328. 14 The fairness of that designation is considered under the next point. 15 Perhaps they would insist not only on notice that an investigation is to be had but on an opportunity to be present and to have counsel, to cross-examine, to object to the introduction of evidence, to argue and to have judicial review. Cf. Hiatt v. Compagna, 5 Cir., 178 F.2d 42, affirmed by an equally divided court, 340 U.S. 880, 71 S.Ct. 192. An injunction against listing could have delayed administration until today. The statutory requirement for a hearing explains the statement in Morgan v. United States, 304 U.S. 1, 14, 58 S.Ct. 773, 775, 999, 82 L.Ed. 1129, that 'in administrative proceedings of a quasi-judicial character the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. These demand 'a fair and open hearing,' essential alike to the legal validity of the administrative regulation and to the maintenance of public confidence in the value and soundness of this important governmental process. Such a hearing has been described as an 'inexorable safeguard." This hearing was a rate determination proceeding. See the statement in the first Morgan case, 298 U.S. 468, 480, 56 S.Ct. 906, 911, 80 L.Ed. 1288: 'That duty is widely different from ordinary executive action. It is a duty which carries with it fundamental procedural requirements. There must be a full hearing. There must be evidence adequate to support pertinent and necessary findings of fact.' No enforceable rights to a hearing exist in an alien seeking admission to the United States. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 313, 94 L.Ed. 317; Nishimura; Ekiu v. United States, 142 U.S. 651, 12 S.Ct. 336, 35 L.Ed. 1146; To the extent that Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 49i, 66 L.Ed. 938, requires a hearing, it is on the issue of alienage, and not of admissibility. 16 Of course, notice to petitioners that an investigation was to be had to determine whether they had seditious purposes would be useless without opportunity for an administrative hearing. That is the effect of petitioners' argument. 17 For example, Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111, interpreted a statutory requirement for determination by the Interstate Commerce Commission of the subjection of the railroad to the Railway Labor Act, 45 U.S.C.A. § 151 et seq., to necessitate procedural due process, 'the hearing of evidence and argument'. We held, 305 U.S. at page 183, 59 S.Ct. at page 163, that equity had cognizance of an objection to the proceeding, as 'arbitrary and capricious', 305 U.S. at page 185, 69 S.Ct. at page 165, because failure to post a prescribed notice is punishable as a crime. A 'right' was asserted. Reliance on Interstate Commerce Comm. v. Louisville & N.R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431, is misplaced. The statute gave a right to a full hearing, 227 U.S. at page 91, 33 S.Ct. at page 186. United States v. Lovett, 328 U.S. 303, 316, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252, protected an employee against what this Court held was legislative decree of exclusion from government employment without trial. Columbia Broadcasting System v. United States, 316 U.S. 407, 418, 62 S.Ct. 1194, 1200, 86 L.Ed. 1563, depends upon this Court's ruling that the regulation there subjected to attack required the Federal Communications Commission to reject applications and cancel outstanding licenses 'on the grounds specified in the regulations without more.' 18 Duke v. United States, 4 Cir., 90 F.2d 840, 112 A.L.R. 317; United States v. Central Supply Ass'n, D.C., 34 F.Supp. 241. 19 40 U.S.C.A. § 258a, 46 Stat. 1421, and annotations; Catlin v. United States, 324 U.S. 229, 231, 65 S.Ct. 631, 632, 89 L.Ed. 911. 20 E.g., Underwriters from bank employment or direction. 12 U.S.C. § 78, 12 U.S.C.A. § 78, 48 Stat. 194, as amended, 49 Stat. 709. 21 This Court has declared the courts cannot supervise departmental action in discharge for inefficient rating, Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774, or enjoin leases of public lands where no contract rights are involved, Chapman v. Sheridan-Wyoming Co., 338 U.S. 621, 625, 70 S.Ct. 392, 394, 94 L.Ed. 393. Cf. Work v. United States ex rel. Rives, 267 U.S. 175, 45 S.Ct. 252, 69 L.Ed. 561. 22 It said, 333 U.S. at page 111, 68 S.Ct. at page 436: 'It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative.' And added, 333 U.S. at pages 112—113, 68 S.Ct. at page 437: 'Until the decision of the Board has Presidential approval, it grants to privilege and denies no right. It can give nothing and can take nothing away from the applicant or a competitor. It may be a step which if erroneous will mature into a prejudicial result, as an order fixing valuations in a rate proceeding may foreshow and compel a prejudicial rate order. But administrative orders are not reviewable unless and until they impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process.' 23 5 C.F.R., App.A., p. 200, 13 Fed.Reg. 1471—1473: 'In connection with the designation of these organizations, the Attorney General has pointed out, as the President had done previously, that it is entirely possible that many persons belonging to such organizations may be loyal to the United States; that membership in, affiliation with, or sympathetic association with, any organization designated is simply one piece of evidence which may or may not be helpful in arriving at a conclusion as to the action which is to be taken in a particular case. 'Guilt by association' has never been one of the principles of our American jurisprudence. We must be satisfied that reasonable grounds exist for concluding that an individual is disloyal. That must be the guide.' 24 Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774; United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 102, 67 S.Ct. 556, 570, 91 L.Ed. 754. Classified civil service employees by statute shall have notice of the charges in writing and the privilege of filing an answer with affidavits. The statute adds, 'No examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer or employee directing the removal or suspension without pay.' 5 U.S.C. § 652, 5 U.S.C.A. § 652, 37 Stat. 555. And cf. Executive Order dated July 27, 1897, amending Civil Service Rule II, in 18th Report of the U.S. Civil Service Commission, at 282. 25 5 CFR § 220.2(a)(6). See note 4, supra. 26 'A total of 3,166 Government employees have quit or have been discharged under President Truman's loyalty program since it began March 21, 1947, the Loyalty Review Board reported today. 'Of these, 294 actually were discharged for disloyalty. The remainder, 2,872, quit while under investigation and might or might not have been found disloyal. 'The loyalty figures cover all 2,000,000 or more Government employees, plus the additional thousands hired since the program was begun in the spring of 1947. 'The regular monthly loyalty report showed that loyalty boards of the various Federal agencies had received 13,842 reports from the Federal Bureau of Investigation and other investigating agencies since March 21, 1947. This meant investigators found something about those persons that raised a question about their loyalty. 'Of the cases ruled on by loyalty boards, 8,371 were found loyal and 522 disloyal. Of the 522, 294 were discharged, 186 won their jobs back on appeal and forty-two are still waiting decisions.' New York Times, January 16, 1951. See also n. 9 of Mr. Justice DOUGLAS' concurrence. 27 Disqualification grounds are in 5 CFR § 2.104(a): '(a) An applicant may be denied examination and an eligible may be denied appointment for any of the following reasons: '(1) Dismissal from employment for delinquency or misconduct. '(2) Physical or mental unfitness for the position for which applied. '(3) Criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct. '(4) Intentional false statements or deception or fraud in examination or appointment. '(5) Refusal to furnish testimony as required by § 5.3 of this chapter. '(6) Habitual use of intoxicating beverages to excess. '(7) On all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States. '(8) Any legal or other disqualification which makes the applicant unfit for the service.' Paragraph (7) is new. Cf. 12 Fed.Reg. 1938. 28 5 CFR § 9.102(1): 'No employee, veteran or nonveteran, shall be separated, suspended, or demoted except for such cause as will promote the efficiency of the service and for reasons given in writing. The agency shall notify the employee in writing of the action proposed to be taken. This notice shall set forth, specifically and in detail, the charges preferred against him. The employee shall be allowed a reasonable time for filing a written answer to such charges and furnishing affidavits in support of his answer. He shall not, however, be entitled to an examination of witnesses, nor shall any trial or hearing be required except in the discretion of the agency.' See Part 22 for appeals under Veterans' Preference Act of 1944. 29 5 CFR, Part 220. 30 5 CFR § 220.2(f) and (g). '(g) * * * The notice of proposed removal action required in paragraph (f) of this section shall state to the employee: '(1) The charges against him in factual detail, setting forth with particularity the facts and circumstances relating to the charges so far as security considerations will permit, in order to enable the employee to submit his answer, defense or explanation. '(2) His right to answer the charges in writing, under oath or affirmation, within a specified reasonable period of time, not less than ten (10) calendar days from the date of the receipt by the employee of the notice. '(3) His right to have an administrative hearing on the charges before a loyalty board in the agency, upon his request. '(4) His right to appear before such board personally, to be represented by counsel or representative of his own choosing, and to present evidence in his behalf.' Id., § 220.3(d): '(d) Presentation of evidence. Both the Government and the applicant or employee may introduce such evidence as the board may deem proper in the particular case. 'The board shall take into consideration the fact that the applicant or employee may have been handicapped in his defense by the non-disclosure to him of confidential information or by the lack of opportunity to cross-examine persons constituting such sources of information.' 31 The Prime Minister first described this program in a statement in the House of Commons, March 15, 1948, 448 H.C.Deb. 1703 ff., and in further detail on March 25, id. at 3418 ff. The standards for the program are set forth at 451 H.C.Deb., Written Answers, p. 118, in the form of instructions to three 'advisers on Communists and Fascists in the Civil Service,' retired civil servants designated to perform a function essentially parallel to that of the Loyalty Review Board here: '1. The Government have stated that no one who is believed to be:— '(i) either a member of the Communist Party or of a Fascist organization; or '(ii) associated with either the Communist Party or a Fascist organization in such a way as to raise legitimate doubts about his reliability; is to be employed in connection with work the nature of which is vital to the security of the State. '2. You have been appointed to advise Ministers, in any cases referred to you, whether in your opinion their prima facie ruling that a civil servant comes under (i) or (ii) above is or is not substantiated. The decision on what employment is to be regarded as involving 'connection with work the nature of which is vital to the security of the State' is one not for you but for Ministers in charge of Departments. '3. Your functions do not extend beyond advising the Minister whether the prima facie case has or has not been substantiated. You are not concerned with the action which he may decide to take in relation to the matter.' The Prime Minister stated that the civil servant concerned would be informed as specifically as possible of the charges against him, but that 'It is quite impossible—and everyone will realise that it is—that we should give in detail exactly the sources of information. If we do that, we destroy anything like an effective security service.' Id., Vol. 448, at 3423. He would be allowed to appear personally in response to charges. Id. at 3426. While the program is primarily intended to effect the transfer of unreliable civil servants to jobs not vital to the security of the state (unless their technical training fits them only for security jobs), nevertheless it has apparently been extended to cover all jobs in certain agencies, such as the Air Ministry Headquarters. Id., Vol. 452, at 940—941. The Prime Minister did not answer directly questions as to the scope of the order in relation to 'the telephone service and key telephone exchanges,' id., Vol. 448, at 1705, or 'members of the Services who are engaged in dealing with secret processes.' Id. at 1706. 32 Cf. Standard Computing Scale Co. v. Farrell, 249 U.S. 571, 39 S.Ct. 380, 63 L.Ed. 780. 33 Hirabayashi v. United States, 320 U.S. 81, 93, 100, 63 S.Ct. 1375, 1382, 1385, 87 L.Ed. 1774. 34 Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426, 442, 54 S.Ct. 231, 235, 241, 78 L.Ed. 413.

89

341 U.S. 114 71 S.Ct. 670 95 L.Ed. 809 UNITED STATESv.PEWEE COAL CO., Inc. No. 168. Argued Jan. 2, 3, 1951. Decided April 30, 1951. Mr. Oscar H. Davis, Washington, D.C., for petitioner. Mr. Burr Tracy Ansell, Washington, D.C., for respondent. Mr. Justice BLACK delivered the judgment of the Court and an opinion in which Mr. Justice FRANKFURTER, Mr. Justice DOUGLAS, and Mr. Justice JACKSON joined. 1 Respondent, Pewee Coal Co., Inc., is a coal mine operator whose property was allegedly possessed and operated by the United States from May 1 to October 12, 1943, to avert a nation-wide strike of miners. Pewee brought this action in the Court of Claims to recover under the Fifth Amendment1 for the total operating losses sustained during that period. After considering the evidence, the court held that there had been a 'taking' entitling Pewee to compensation. It found the total operating loss to be $36,128.96, but rendered judgment for only.$2,241.26, this amount being the portion of the operating loss which the court found attributable to Government operation of the mine. 88 F.Supp. 426, 115 Ct.Cl. 626. Pewee did not seek review here. We granted the Government's petition for certiorari2 in which two questions are presented: (1) Was there such a taking of Powee's property as to justify compensation under the Fifth Amendment? (2) If there was, does the record support the award of.$2,241.26? 2 First. We agree with the Court of Claims that there was a 'taking' requiring the Government to pay Pewee. The facts upon which this conclusion rests are set out in the findings and opinion below and need not be repeated in detail here. See 88 F.Supp. 426, 115 Ct.Cl. 626. The following are sufficient to show the general picture: On May 1, 1943, the President issued Executive Order 9340, 8 Fed.Reg. 5695, directing the Secretary of Interior '* * * to take immediate possession, so far as may be necessary or desirable, of any and all mines producing coal in which a strike or stoppage has occurred or is threatened, * * * and to operate or arrange for the operation of such mines * * *.' On the same day, the Secretary issued an 'Order for Taking Possession' of most of the Nation's mines, including Pewee's. 8 Fed.Reg. 5767. To convince the operators, miners and public that the United States was taking possession for the bona fide purpose of operating the mines, the Government formally and ceremoniously proclaimed that such was its intention. It required mine officials to agree to conduct operations as agents for the Government; required the American flag to be flown at every mine; required placards reading 'United States Property!' to be posted on the premises; and appealed to the miners to dig coal for the United States as a public duty. Under these circumstances and in view of the other facts which were found, it should not and will not be assumed that the seizure of the mines was a mere sham or pretense to accomplish some unexpressed governmental purpose instead of being the proclaimed actual taking of possession and control. In United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, there had been a government seizure of the mines under presidential and secretarial orders, which insofar as here material, were substantially the same as those issued in the present case. We rejected the contention of the mine workers that 'the Government's role in administering the bituminous coal mines (was) for the most part fictional and for the remainder nominal only.'3 We treated that seizure as making the mines governmental facilities 'in as complete a sense as if the Government held full title and ownership.' Id., 330 U.S. at pages 284—285, 67 S.Ct. at page 691. It follows almost as a matter of course from our holding in United Mine Workers that the Government here 'took' Pewee's property and became engaged in the mining business.4 3 Second. Having taken Pewee's property, the United States became liable under the Constitution to pay just compensation. Ordinarily, fair compensation for a temporary possession of a business enterprise is the reasonable value of the property's use. See Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765; United States v. General Motors Co., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311. But in the present case, there is no need to consider the difficult problems inherent in fixing the value of the use of a going concern because Pewee neither claimed such compensation nor proved the amount. It proceeded on the ground that the Fifth Amendment requires the United States to bear operating losses incurred during the period the Government operates private property in the name of the public without the owner's consent. We believe that this contention expresses a correct general principle which under the circumstances of this case supports the judgment for.$2,241.26. 4 Like any private person or corporation, the United States normally is entitled to the profits from, and must bear the losses of, business operations which it conducts. When a private business is possessed and operated for public use, no reason appears to justify imposition of losses sustained on the person from whom the property was seized. This is conceptually distinct from the Government's obligation to pay fair compensation for property taken, although in cases raising the issue, the Government's profit and loss experience may well be one factor involved in computing reasonable compensation for a temporary taking. Of course, there might be an express or implied agreement between the parties that the Government should not receive operating profits nor bear the losses, in which event the general principle would be inapplicable. But the possibility that such an agreement existed in the present case may be disposed of quickly. Pewee's failure to seek review here makes it unnecessary to consider whether the company consented to bear the disallowed and major portion of the losses sustained during the period of governmental control. And there is no indication that Pewee expressly or impliedly agreed to assume the loss of.$2,241.26 which the court found mainly attributable to increased wage payments made to comply with a War Labor Board decision. 5 Where losses resulting from operation of property taken must be borne by the Government, it makes no difference that the losses are caused in whole or in part by compliance with administrative regulations requiring additional wages to be paid. With a without a War Labor Board order, when the Government increased the wages of the miners whom it employed, it thereby incurred the expense. Moreover, it is immaterial that governmental operation resulted in a smaller loss than Pewee would have sustained if there had been no seizure of the mines. Whatever might have been Pewee's losses had it been left free to exercise its own business judgment, the crucial fact is that the Government chose to intervene by taking possession and operating control. By doing so, it became the proprietor and, in the absence of contrary arrangements, was entitled to the benefits and subject to the liabilities which that status involves. 6 The judgment of the Court of Claims is affirmed. 7 Affirmed. 8 Mr. Justice REED, concurring. 9 I agree that in this case there was a 'taking' by eminent domain that requires the Government to pay just compensation to the owner of the property for its use. However, it is impossible for me to accept the view that the 'taking' in this case requires the United States to bear all operating losses during the period it controls the property without the owner's consent or agreement. Such a view would lead to disastrous consequences where properties necessarily taken for the benefit of the Nation have a long record of operating losses, e.g., certain railroads, coal mines, or television broadcasting stations. The question of who bears such losses is not, I think, 'conceptually distinct' from the question of just compensation. Losses or profits on the temporary operation after the declaration or judgment of taking are factors to be taken into consideration in determining what is just compensation to the owner. 10 This is a temporary taking. The relatively new technique of temporary taking by eminent domain is a most useful administrative device: many properties, such as laundries, or coal mines, or railroads, may be subjected to public operation only for a short time to meet war or emergency needs, and can then be returned to their owners. However, the use of the temporary taking has spawned a host of difficult problems, e.g., United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311; United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729; Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765, especially in the fixing of the just compensation. Market value, despite its difficulties, provides a fairly acceptable test for just compensation when the property is taken absolutely. See United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336; United States v. John F. Felin & Co., 334 U.S. 624, 68 S.Ct. 1238, 92 L.Ed. 1614; United States v. Toronto H. & B. Navigation Co., 338 U.S. 396, 70 S.Ct. 217, 94 L.Ed. 195; United States v. Commodities Trading Corp., 339 U.S. 121, 70 S.Ct. 547, 94 L.Ed. 707. But in the temporary taking of operating properties, e.g., Marion & Rye Valley R. Co. v. United States, 270 U.S. 280, 46 S.Ct. 253, 70 L.Ed. 585; United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, market value is too uncertain a measure to have any practical significance. The rental value for a fully functioning railroad for an uncertain period is an unknowable quantity. This led to a government guarantee of earnings in the First World War, 40 Stat. 451. Cf. United States v. Westinghouse Electric & Mfg. Co., 339 U.S. 261, 70 S.Ct. 644, 94 L.Ed. 816. The most reasonable solution is to award compensation to the owner as determined by a court under all the circumstances of the particular case. 11 Temporary takings can assume various forms. There may be a taking in which the owners are ousted from operation, their business suspended, and the property devoted to new uses. United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311; United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729; Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765. A second kind of taking is where, as here, the Government, for public safety or the protection of the public welfare, 'takes' the property in the sense of assuming the responsibility of its direction and employment for national purposes, leaving the actual operations in the hands of its owners as government officials appointed to conduct its affairs with the assets and equipment of the controlled company. Examples are the operation of railroads, motor carriers, or coal mines. Marion & Rye Valley R. Co. v. United States, 270 U.S. 280, 46 S.Ct. 253, 70 L.Ed. 585; United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 667, 91 L.Ed. 884. 12 When, in a temporary taking, no agreement is reached with the owners, the courts must determine what payments the Government must make. Whatever the nature of the 'taking,' the test should be the constitutional requirement of 'just compensation.' However, there is no inflexible requirement that the same incidents must be used in each application of the test. 13 So far as the second kind of temporary 'taking' is concerned, the Government's supervision of a losing business for a temporary emergency ought not to place upon the Government the burden of the losses incurred during that supervision unless the losses were incurred by governmental acts, e.g., if the business would not have been conducted at all but for the Government, or if extra losses over what would have been otherwise sustained were occasioned by Government operations. Where the owner's losses are what they would have been without the 'taking,' the owner has suffered no loss or damage for which compensation is due. Cf. Marion & Rye Valley R. Co. v. United States, 270 U.S. 280, 46 S.Ct. 253, 70 L.Ed. 585. The measure of just compensation has always been the loss to the owner, not the loss or gain to the Government. Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195, 30 S.Ct. 459, 460, 54 L.Ed. 725. 14 Here the Court of Claims has correctly applied these principles in a case of a losing operation in a temporary taking. It has found that a certain sum was expended without legal or business necessity so to do. This sum was the extra allowance paid at the direction of the United States under a certain War Labor Board recommendation that had no legal sanction. 50 U.S.C.App. § 1507, 50 U.S.C.A.Appendix, § 1507; E.O. 9017, 3 CFR Cum.Supp. 1075, 50 U.S.C.A.Appendix, § 1507 note. I would not overturn its finding in this case and would therefore affirm. 15 Mr. Justice BURTON, with whom THE CHIEF JUSTICE, Mr. Justice CLARK and Mr. Justice MINTON concur, dissenting. 16 I agree that there was a 'taking' of the mining property from May 1 to October 12, 1943, but I find no ground for allowing the respondent to recover the sum here sought as compensation for such taking. 17 This case is within the principle stated in Marion & Rye Valley R. Co. v. United States, 270 U.S. 280, 282, 46 S.Ct. 253, 254, 70 L.Ed. 585, as follows: '(E)ven if there was technically a taking, the judgment for defendant was right. Nothing was recoverable as just compensation, because nothing of value was taken from the company; and it was not subjected by the Government to pecuniary loss. Nominal damages are not recoverable in the Court of Claims.' 18 Here there is no showing by the company of any rental value due it as compensation for the Government's possession of its properties. There is no showing that anything of compensable value was taken by the Government from the company, or that the Government subjected the company to any pecuniary loss. The dissenting judge in the Court of Claims pointed out that—'This extra expense consisted of an increased vacation allowance to the plaintiff's workmen, and the refund to them of occupational charges like rentals on mine lamps. The court has not found that the plaintiff (company) could have operated its mine without making the concessions directed by the War Labor Board, nor has it found what the losses to the plaintiff would have been if the Government had not intervened and the strike had continued. I think that the court is not justified in awarding the plaintiff the amount of these expenditures when it does not and, I think, could not, find that the plaintiff was, in fact, financially harmed by the Government's acts.' 88 F.Supp. at page 431, 115 Ct.Cl. at pages 678—679. 19 Accordingly, I would reverse the judgment of the Court of Claims and allow no recovery by the respondent. 1 '* * * nor shall private property be taken for public use, without just compensation.' U.S.Const., Amend. V. 2 340 U.S. 808, 71 S.Ct. 55. 3 Brief for United Mine Workers of America and John L. Lewis, p. 32, United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884. 4 The case of Marion & Rye Valley R. Co. v. United States, 270 U.S. 280, 46 S.Ct. 253, 254, 70 L.Ed. 585, is cited by the Government as supporting its view that there was no 'taking' here. In that case, however, the Court had 'no occasion to determine whether in law the President took possession and assumed control' of a railroad. Instead, it dealt with the problem on the assumption that there was a 'taking' and proceeded to decision on the finding that the railroad 'was not subjected by the Government to pecuniary loss.' This decision cannot be accepted as controlling the present case since whether there is a 'taking' must be determined in light of the particular facts and circumstances involved.

34

341 U.S. 277 71 S.Ct. 685 95 L.Ed. 939 BRANNAN, Secretary of Agriculturev.ELDER et al. ELDER et al. v. BRANNAN, Secretary of Agriculture. Nos. 473, 474. Argued April 11, 1951. Decided May 7, 1951. Motion for Leave to File Petition for Rehearing Denied June 4, 1951. See 341 U.S. 956, 71 S.Ct. 1012. [Syllabus from pages 277-279 intentionally omitted] Messrs. Greene Chandler Furman, Robert D. Elder, pro se. Mr. Morton Liftin, Washington, D.C., for Brannan. Mr. Justice CLARK delivered the opinion of the Court. 1 These actions involve questions concerning the precise scope of rights to employment in the federal service granted by the Veterans' Preference Act of 1944. 58 Stat. 387, 5 U.S.C. (1946 ed.) § 851 et seq., 5 U.S.C.A. § 851 et seq. The ultimate issues are two: (1) whether under § 12 of the Act veterans with temporary war-service appointments are entitled to retention preference over nonveterans with the equivalent of classified civil service status when reduction-in-force discharges are made; and (2) whether the reemployment rights of veterans lawfully discharged are governed by § 12 retention priorities or by other provisions of the Act. 2 We treat these cases together, as did the courts below, and shall refer to Elder and Furman as petitioners. Petitioners are honorably discharged veterans and as such are concededly entitled to whatever benefits the Act affords. They were appointed associate attorneys in the Office of the Solicitor of the Department of Agriculture in July and August 1943. At the time of their appointments, a civil service regulation was in effect under which all appointments as attorneys were to be limited to the duration of the war plus six months, and persons so appointed were not to acquire a classified (competitive) civil service status. On May 29, 1947, petitioners and eighteen other attorneys in the Department were notified that, because of a reduction in force compelled by lack of funds, they would be separated from service on June 30 following. Nonveteran attorneys with the equivalent of classified status were to be retained. The selection was made on the basis of civil service retention-preference regulations—under § 12—which plainly required that nonveterans with classified status or its equivalent be given a higher retention priority than veterans without. 3 Plaintiffs appealed to the Commission, which subsequently found that their separation was in accord with the statute and regulations. Meanwhile, however, they instituted these actions in the District Court for the District of Columbia, alleging first that they had acquired a classified status, and hence were entitled under the regulations to a retention priority over nonveterans; second, that in any event, the statute gave veterans an absolute retention priority regardless of status, and that Commission regulations to the contrary were invalid. 4 While these actions were pending, the Department came into additional funds, and several attorneys not reached for separation resigned voluntarily or transferred. The Department then rehired nine of the attorneys previously separated, the first of whom took office on October 27, 1947. Some of the attorneys rehired were nonveterans with a lower reduction-in-force retention priority than that possessed by petitioners at the time all were separated. On this ground, the latter amended their complaints before the District Court to allege in addition that they had been deprived of a preferential right to 'reemployment' or 'reinstatement.' The Secretary moved for a summary judgment, and the District Court granted the motion. On appeal, the Court of Appeals affirmed the judgment that petitioners' separation from the service was lawful. But it found that the allegations concerning violation of reemployment or reinstatement rights were well founded. The court therefore reversed and remanded with directions with the Secretary be given leave to deny the facts alleged. 87 U.S.App.D.C. 117, 184 F.2d 219. From this judgment, the parties cross-filed petitions for review. Petitioners sought review of the judgment that their separation was lawfully carried out. The Secretary sought review of the judgment that petitioners' allegations as to deprivation of reemployment or reinstatement rights stated a cause of action under the statute. We granted certiorari because of the obvious impact of these issues on federal employment policies. 1951, 340 U.S. 928, 71 S.Ct. 496. 5 For reasons outlined below, we agree that petitioners' separation from service was in full accord with the statute. We disagree with the holding that the allegations of the complaint are sufficient to state an unlawful deprivation of a preferential right to reemployment. I. 6 As the Court of Appeals pointed out, there is no merit in petitioners' contention that they had acquired a classified civil service status and were thus entitled under the regulations to retention preference over all nonveterans.1 The validity of petitioners' discharge, therefore, turns on the validity of the Commission's retention-preference regulations. 5 CFR (Supp.1947) § 20.3. These regulations were adopted pursuant to § 12 of the Veterans' Preference Act, 5 U.S.C. § 861, 5 U.S.C.A. § 861, which reads in part as follows: 7 'In any reduction in personnel in any civilian service of any Federal agency, competing employees shall be released in accordance with Civil Service Commission regulations which shall give due effect to tenure of employment, military preference, length of service, and efficiency ratings: Provided, * * * That preference employees whose efficiency ratings are 'good' or better shall be retained in preference to all other competing employees and that preference employees whose efficiency ratings are below 'good' shall be retained in preference to competing nonpreference employees who have equal or lower efficiency ratings * * *.' (Emphasis added.) 8 The regulations first define 'competing' employees on the basis of tenure of employment. The highest priority is given Group A, which includes (1) employees having classified civil service status, and (2) those holding positions excepted from examination requirements and whose appointments are without time limitation. Group B, second in retention priority, includes employees without classified status or whose appointments are limited to the duration of the war plus six months. Group C is composed of employees appointed for one year or less. The regulations then classify employees within each group on the basis of veterans' preference and efficiency ratings. Subgroups A—1, B—1 and C—1 include employees with both veterans' preference and efficiency ratings of 'good' or better. Subgroups A 2, B—2 and C—2 include those with 'good' or better efficiency ratings but without veterans' preference. Under these regulations, petitioners, as war-service employees, were classified B—1, and were separated while some nonveteran attorneys with an A—2 classification (permanent employees) were retained. The Secretary had no other choice, since the regulations group employees by tenure and limit the reach of veterans' preference to competing employees of the same group. 9 Petitioners contend that this feature violates the statute, that the proviso of § 12 plainly gives veterans with an efficiency rating of 'good' or better an absolute preference over all other employees, with or without classified status or its equivalent. But the proviso, like the body of § 12, contains the term 'competing' employees, which necessarily implies that a veteran's preference operates only within a defined group. And since the statute does not supply a definition, we must determine from the legislative history of the Act, and from prior legislation and regulations, whether the Commission's definition may reasonably be said to 'carry into full effect the provisions, intent, and purpose (of the statute)'. 5 U.S.C. § 868, 5 U.S.C.A. § 868. 10 This Court made a similar examination in Hilton v. Sullivan, 1948, 334 U.S. 323, 68 S.Ct. 1020, 92 L.Ed. 1416. The decision in that case upheld that retention-preference regulations insofar as they granted veterans with classified status an absolute priority over nonveterans of the same status regardless of length of service. The Court stated that in the light of all pertinent history 'no other interpretation of (§ 12) * * * can fairly be reached.' Id., 334 U.S. at page 336, 68 S.Ct. at page 1026, 92 L.Ed. 1416. Since 'length of service' and 'tenure of employment' appear as parallel terms in the body of § 12, it can be argued that if the proviso eliminates length of service as a barrier to veterans' preference, it also eliminates tenure. But this ignores a crucial difference in the historical treatment of these two factors. Executive orders and Civil Service regulations prior to 1944 had consistently disregarded length of service in giving veterans preference over nonveterans with the same tenure—a fact stressed in the Hilton case. Id., 334 U.S. at pages 336—337, 68 S.Ct. at pages 1026—1027, 92 L.Ed. 1416. On the other hand, the regulations had just as consistently distinguished 'competing' groups on the basis of tenure, and had confined the scope of veterans' preference to employees of the same group. As early as 1932, the Commission provided that reduction in force was to be carried out in inverse order of tenure, permanent employees to be separated last.2 The rule was still in force at the time the Veterans' Preference Act of 1944 was passed. 5 CFR (Supp.1943) § 12.304. 11 Moreover, the legislative history of the Act is barren of any indication that this long-established separation of 'competing' employees on the basis of tenure was to be broken down and subordinated to veterans' preference. In general, the Act was designed to 'give legislative sanction to existing veterans' preference' and to 'give some additional strength' to that preference.3 Additional rights granted were specifically brought to the Congress' attention. One addition which was stressed, for example, was the third proviso of § 12, which grants preference to veteran employees of an agency when that agency is replaced or any of its functions transferred to another administrative body.4 But in the only interpretive discussion of the proviso here involved, Commissioner Flemming stated that it 'simply continues what has been in practice throughout the entire Federal service since 1923.'5 More important, two bills earlier proposed by veterans' organizations would have specifically granted the right which plaintiffs claim in this case—absolute preference in retention regardless of tenure.6 These bills were rejected in favor of § 12 as enacted, the language of which was proposed by the Commission itself.7 In sum, the Commission's retention regulations can hardly be called invalid for making a distinction on the basis of tenure when they reflect a long-standing definition of 'competing' groups, when they were issued by the agency which proposed the statutory language finally adopted, and when Congress indicated no intent whatsoever to supply a new standard. 12 Two further points remain. Petitioners contend that, apart from § 12, veterans were given an absolute preference by § 4 of the Act of 1912, 37 Stat. 413, 5 U.S.C.A. § 648, and that the preference so granted was carried over by the saving clause in § 18 of the 1944 Act. 5 U.S.C. § 867, 5 U.S.C.A. § 867. The flaw in this argument, as the court below pointed out, is that § 4 by its terms was confined to the classified civil service. Its features were subsequently applied, under Executive Orders, within the unclassified service, but as indicated above, temporary appointment veterans never had retention preference over permanent tenure nonveterans. Alternatively, petitioners contend that § 2 of the 1944 Act in and of itself extends absolute preference to veterans with limited tenure. 5 U.S.C. § 851, 5 U.S.C.A. § 851. But it seems apparent that § 2 gives no specific preference rights at all. The section contains only a general statement of policy, a listing of preferred groups, and a specification of federal positions covered. It provides that 'preference shall be given' in certification for appointment, appointment, reinstatement, reemployment and retention; it does not delineate what that preference shall be. The details are spelled out in subsequent sections of the Act, retention preference being governed by § 12. Cf. Hilton v. Sullivan, supra. Section 2 was described throughout the legislative history as merely 'defining the groups to whom preference was to be granted.'8 13 Since retention rights are governed by § 12, and since the regulations are consistent with the statute, petitioners were properly separated from their positions in the Federal service. II. 14 The complaint that plaintiffs were wrongfully denied preference in rehiring rests solely on the allegation that the Department reemployed attorneys with a lower classification on the retention register. The Court of Appeals concluded that this allegation, not denied by the Secretary, was sufficient to state a cause of action under the statute. It held that § 2 of the statute granted 'reinstatement and re-employment' preference rights, and that these rights were measured by the retention-preference regulations under § 12. D.C.Cir., 1950, 87 U.S.App.D.C. 117, 120, 184 F.2d 219, 222. Neither of these holdings withstands analysis. Section 2, as has been indicated, grants no specific rights except insofar as it may be thought to preserve, in conjunction with § 18, any rights previously arising from statute, executive order or regulation and not granted by the other sections of the 1944 Act. 15 Nor are we able to accept the ruling that reinstatement or reemployment references are to be measured by retention-preference regulations under § 12. Reemployment preferences are specially dealt with elsewhere in the Act. Section 15 provides that all preference eligibles who have been separated without fault on their part may—at their request—have their names placed on all appropriate registers or employment lists for positions for which they are qualified. 5 U.S.C. § 864, 5 U.S.C.A. § 864. It further provides that their eligibility for reappointment is then governed by §§ 7, 8 of the Act, dealing with appointments in general. 5 U.S.C. §§ 856, 857, 5 U.S.C.A. §§ 856, 857. The names of preference eligibles are placed on the appropriate registers or lists in accordance with their respective numerical ratings, which are augmented by 10 points in the case of disabled veterans, their wives, or unmarried widows of deceased veterans; 5 points in the case of other preference eligibles. 5 U.S.C. § 852, 5 U.S.C.A. § 852. The appointing officer may pass over a veteran in favor of a nonveteran, but if he does so he must file in writing his reasons therefor, and the Commission must examine those reasons to determine their sufficiency. Section 15 further provides that no appointment shall be made from an examination register, except of 10-point preference eligibles, when there are three or more names of preference eligibles on any appropriate reemployment list for the position to be filled. 16 There is no persuasive reason why the provisions of § 15 are not applicable in this case. Petitioners make a twofold argument to the contrary: (1) that their right was to preference in 'reinstatement' rather than in 'reemployment,' and that 'reinstatement' preference is granted and governed by § 2; (2) that § 15 applies only to the competitive civil service, from which attorneys were excepted by regulations taking effect May 1, 1947. 12 Fed.Reg. 2839, 5 CFR (Supp.1947) § 6.4. Even if valid, the first contention is of no help to petitioners. 'Reinstatement'—to the extent it had any peculiar meaning in civil service parlance prior to the time that 1944 Act was passed—meant reemployment of a person upon formal request of the appointing officer. 1 Fed.Reg. 602, 5 CFR §§ 9.1, 9.101 (1939).9 The preference accorded veterans was that they might be reinstated without time limit, whereas a request for reinstatement of nonveterans had to come within specified periods after their separation. The term was nto confined to reappointment to a position formerly held. An involuntarily separated employee could be reinstated in any part of the service, and the Commission was authorized to provide for similar reinstatement of any classified status employee. The apparent analogue of this type of reemployment is contained in § 13 of the 1944 Act, which provides that any preference eligible 'who has resigned or who has been dismissed or furloughed' may be appointed to any position for which he is eligible 'at the request of any appointing officer'. 5 U.S.C. § 862, 5 U.S.C.A. § 862. Petitioners would interpret § 2 as creating an entirely new and absolute right of preference in 'reinstatement,' not dependent upon the request of the appointing officer. Such an interpretation would not only stretch § 2 beyond its apparent and intended scope, but would in effect strike § 15 off the books, since no veteran would ever have cause to use the limited preference in reemployment there granted. 17 The second claim, that § 15 covers reemployment only in positions within the competitive civil service, is clearly erroneous. The section provides that the name of a preference eligible be placed on appropriate registers and lists 'for every position for which his qualifications have been established, as maintained by the Civil Service Commission, or as shall be maintained by any agency or project of the Federal Government * * *.' 18 Petitioners were lawfully separated from their positions in the Department of Agriculture. Their rights to preference in reemployment were governed by § 15 of the Act. They were entitled to those rights only if they requested that their names be placed on the appropriate reemployment list. Their complaints contain no allegation that they made such a request. And even if they did so, their preference rights were violated only if the appointing officer failed to follow the procedures specified by §§ 7, 8, 15 and pertinent regulations. Again, there are no such allegations in the complaints. The complaints as they stand are fatally defective in these respects, and unless petitioners on remand are able to supply the missing links in allegations and proof, the Secretary is entitled to a summary judgment. 19 The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded to the District Court for further proceedings in conformity with this opinion. So ordered. 20 Affirmed in part, reversed in part, and remanded to District Court with directions. 21 Mr. Justice BLACK dissents. 1 Executive Order 9063, issued February 16, 1942, and in effect at all times relevant, authorized the Civil Service Commission to formulate special procedures for the recruitment of personnel during the war, and further provided that '(p)ersons appointed solely by reason of any special procedures adopted under authority of this order * * * shall not thereby acquire a classified (competitive) civil-service status, but, in the discretion of the Civil Service Commission, may be retained for the duration of the war and for six months thereafter.' 3 CFR (Cum.Supp.1943) 1091. On March 16, 1942, the Board of Legal Examiners, functioning under the Commission, amended its regulations to provide that all appointment to attorney positions be effected under this Executive Order, and be limited to the duration of the war plus six months. 7 Fed.Reg. 2201. See also Executive Order 9230, August 20, 1942, 7 Fed.Reg. 6665, 3 CFR (Cum.Supp.1943) 1201, 1202. This regulation was continued in effect by § 17.1(g) of the Board's regulations, 5 CFR (Cum.Supp.1943) § 17.1(g), and § 17.1(g) remained in effect when, by Executive Order 9358 of July 1, 1943, 8 Fed.Reg. 9175, the functions of the Board were vested in the Commission itself. No plausible reason has been or could be advanced for holding this regulation invalid. 2 Minute of the Civil Service Commission, August 11, 1932. See Civil Service Commission, Acts, Rules and Regulations (as amended to September 15, 1934) p. 54. 3 Statement of Representative Starnes, author of the bill, Hearings before Senate Committee on Civil Service on S. 1762 and H.R. 4115, 78th Cong., 2d Sess. 8—9; statement of Representative Ramspeck, Chairman of the Civil Service Committee, 90 Cong.Rec. 3505 (1944). 4 Hearings, supra, note 3 at 9—10. For a specification of this and other additions to veterans' rights, see also, 90 Cong.Rec. 3503; S. Rep. No. 907, 78th Cong., 2d Sess. 2—4; H.R.Rep. No. 1289, 78th Cong., 2d Sess. 3—4. 5 Hearings, supra, note 3 at 27. 6 H.R. 5101, 76th Cong., 1st Sess.; H.R. 5147, 76th Cong., 1st Sess. 7 H.R.Rep. No. 1289, supra, note 4 at 6. 8 H.R.Rep.No.1289, supra, note 4 at 3; S.Rep.No.907, supra, note 4 at 2; 90 Cong.Rec. 3503. 9 The provisions of Part 9 were superseded in part by the wartime service regulations adopted in 1943, § 18.8 of which provided that former employees with at least one year's service 'may be reappointed by war service appointment to any position for which he meets the standards,' and further provided that veterans who would have status for reinstatement under Part 9 could be reemployed without regard to length of prior service. 5 CFR (Supp.1943) § 18.8.

12

341 U.S. 223 71 S.Ct. 703 95 L.Ed. 886 JORDANv.DE GEORGE. No. 348. Argued March 5, 1951. Decided May 7, 1951. Rehearing Denied June 4, 1951. See 341 U.S. 956, 71 S.Ct. 1011. Mr. John F. Davis, Washington, D.C., for petitioner. Mr. Thomas F. Dolan, Chicago, Ill., for respondent. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 This case presents only one question: whether conspiracy to defraud the United States of taxes on distilled spirits is a 'crime involving moral turpitude' within the meaning of § 19(a) of the Immigration Act of 1917.1 2 Respondent, a native and citizen of Italy, has lived continuously in the United States since he entered this country in 1921.2 In 1937, respondent was indicted under 18 U.S.C. § 883 for conspiring with seven other defendants to violate twelve sections of the Internal Revenue Code. The indictment specifically charged him with possessing whiskey and alcohol 'with intent to sell it in fraud of law and evade the tax thereon.' He was further accused of removing and concealing liquor 'with intent to defraud the United States of the tax thereon.'4 After pleading guilty, respondent was sentenced to imprisonment in a federal penitentiary for a term of one year and one day. 3 Respondent served his sentence under this conviction, and was released from custody. Less than a year later, he returned to his former activities and in December 1939, he was indicted again with eight other defendants for violating the same federal statutes. He was charged with conspiring to 'unlawfully, knowingly, and willfully defraud the United States of tax on distilled spirits.'5 After being tried and found guilty in 1941, he was sentenced to imprisonment for two years. 4 While serving his sentence under this second conviction, deportation proceedings were commenced against the respondent under § 19(a) of the Immigration Act which provides: 5 '* * * any alien * * * who is hereafter sentenced more than once to such a term of imprisonment (one year or more) because of conviction in this country of any crime involving moral turpitude, committed at any time after entry * * * shall, upon the warrant of the Attorney General, be taken into custody and deported. * * *'6 6 After continued hearings and consideration of the case by the Commissioner of Immigration and Naturalization and by the Board of Immigration Appeals, respondent was ordered to be deported in January 1946, on the ground that he had twice been convicted and sentenced to terms of one year or more of crimes involving moral turpitude.7 Deportation was deferred from time to time at respondent's request until 1949, when the District Director of Immigration and Naturalization moved to execute the warrant of deportation. 7 Respondent then sought habeas corpus in the District Court, claiming that the deportation order was invalid because the crimes of which he had been convicted did not involve moral turpitude. The District Court held a hearing, and dismissed the petition. The Court of Appeals reversed the order of the District Court and ordered that the respondent be discharged. 1950, 183 F.2d 768. The Court of Appeals stated that 'crimes involving moral turpitude,' as those words were used in the Immigration Act, 'were intended to include only crimes of violence, or crimes which are commonly thought of as involving baseness, vileness or depravity. Such a classification does not include the crime of evading the payment of tax on liquor, nor of conspiring to evade that tax.' 183 F.2d at page 772. We granted certiorari to review the decision, 1950, 340 U.S. 890, 71 S.Ct. 207, as conflicting with decisions of the courts of appeals in other circuits. 8 This Court has interpreted the provision of the statute before us 'to authorize deportation only where an alien having committed a crime involving moral turpitude and having been convicted and sentenced, once again commits a crime of that nature and is convicted and sentenced for it.' Fong Haw Tan v. Phelan, 1948, 333 U.S. 6, 9—10, 68 S.Ct. 374, 375, 92 L.Ed. 433. Respondent has on two separate occasions been convicted of the same crime, conspiracy to defraud the United States of taxes on distilled spirits. Therefore, our inquiry in this case is narrowed to determining whether this particular offense involves moral turpitude. Whether or not certain other offenses involve moral turpitude is irrelevant and beside the point. 9 The term 'moral turpitude' has deep roots in the law. The presence of moral turpitude has been used as a test in a variety of situations, including legislation governing the disbarment of attorneys8 and the revocation of medical licenses.9 Moral turpitude also has found judicial employment as a criterion in disqualifying and impeaching witnesses,10 in determining the measure of contribution between joint tortfeasors,11 and in deciding whether certain language is slanderous.12 10 In deciding the case before the Court, we look to the manner in which the term 'moral turpitude' has been applied by judicial decision. Without exception, federal and state courts have held that a crime in which fraud is an ingredient involves moral turpitude. In the construction of the specific section of the Statute before us, a court of appeals has stated that fraud has ordinarily been the test to determine whether crimes not of the gravest character involve moral turpitude. United States ex rel. Berlandi v. Reimer, 2 Cir., 1940, 113 F.2d 429. 11 In every deportation case where fraud has been proved, federal courts have held that the crime in issue involved moral turpitude. This has been true in a variety of situations involving fraudulent conduct: obtaining goods under fraudulent pretenses, Bermann v. Reimer, 2 Cir., 1941, 123 F.2d 331; conspiracy to defraud by deceit and falsehood, Mercer v. Lence, 10 Cir., 1938, 96 F.2d 122; forgery with intent to defraud, United States ex rel. Popoff v. Reimer, 2 Cir., 1935, 79 F.2d 513; using the mails to defraud, Ponzi v. Ward, D.C.1934, 7 F.Supp. 736; execution of chattel mortgage with intent to defraud, United States ex rel. Millard v. Tuttle, D.C.1930, 46 F.2d 342; concealing assets in bankruptcy, United States ex rel. Medich v. Burmaster, 8 Cir., 1928, 24 F.2d 57; issuing checks with intent to defraud, United States ex rel. Portada v. Day, D.C.1926, 16 F.2d 328. In the state courts, crimes involving fraud have universally been held to involve moral turpitude.13 12 Moreover, there have been two other decisions by courts of appeals prior to the decision now under review on the question of whether the particular offense before us in this case involves moral turpitude within the meaning of § 19(a) of the Immigration Act. In United States ex rel. Berlandi v. Reimer, 2 Cir., 1940, 113 F.2d 429, and Maita v. Haff, 9 Cir., 1940, 116 F.2d 337, courts of appeals specifically decided that the crime of conspiracy to violate the internal revenue laws by possessing and concealing distilled spirits with intent to defraud the United States of taxes involves moral turpitude. Furthermore, in Guarneri v. Kessler, 5 Cir., 1938, 98 F.2d 580, a court of appeals held that the crime of smuggling alcohol into the United States with intent to defraud the United States involves moral turpitude. 13 In view of these decisions, it can be concluded that fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude. It is therefore clear, under an unbroken course of judicial decisions, that the crime of conspiring to defraud the United States is a 'crime involving moral turpitude.' 14 But it has been suggested that the phrase 'crime involving moral turpitude' lacks sufficiently definite standards to justify this deportation proceeding and that the statute before us is therefore unconstitutional for vagueness. Under this view, no crime, however grave, could be regarded as falling within the meaning of the term 'moral turpitude.' The question of vagueness was not raised by the parties nor argued before this Court. 15 It is significant that the phrase has been part of the immigration laws for more than sixty years.14 As discussed above, the phrase 'crime involving moral turpitude' has also been used for many years as a criterion in a variety of other statutes. No case has been decided holding that the phrase is vague, nor are we able to find any trace of judicial expression which hints that the phrase is so meaningless as to be a deprivation of due process. 16 Furthermore, this Court has itself construed the phrase 'crime involving moral turpitude.' In United States ex rel. Volpe v. Smith, Director of Immigration, 1933, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298, the Court interpreted the same section of the Immigration Statute now before us. There, an alien had been convicted of counterfeiting government obligations with intent to defraud, and one question of the case was whether the crime of counterfeiting involved moral turpitude. This question was raised by the parties and discussed in the briefs. The Court treated the question without hesitation, stating that the crime of counterfeiting obligations of the United States was 'plainly a crime involving moral turpitude.' 289 U.S. at page 423, 53 S.Ct. at page 666. (Emphasis supplied.) 17 The essential purpose of the 'void for vagueness' doctrine is to warn individuals of the criminal consequences of their conduct. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, decided April 23, 1951; Screws v. United States, 1945, 325 U.S. 91, 103 104, 65 S.Ct. 1031, 1036, 89 L.Ed. 1495. This Court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law. Lanzetta v. State of New Jersey, 1939, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; United States v. L. Cohen Grocery Co., 1921, 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516. It should be emphasized that this statute does not declare certain conduct to be criminal. Its function is to apprise aliens of the consequences which follow after conviction and sentence of the requisite two crimes. 18 Despite the fact that this is not a criminal statute, we shall nevertheless examine the application of the vagueness doctrine to this case. We do this in view of the grave nature of deportation. The Court has stated that 'deportation is a drastic measure and at times the equivalent of banishment or exile * * *. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty.' Fong Haw Tan v. Phelan, supra. We shall, therefore, test this statute under the established criteria of the 'void for vagueness' doctrine. 19 We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzbach, 1930, 280 U.S. 396, 399, 50 S.Ct. 167, 168, 74 L.Ed. 508. Impossible standards of specificity are not required.15 United States v. Petrillo, 1947, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877. The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Connally v. General Construction Co., 1926, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322. 20 We conclude that this test has been satisfied here. Whatever else the phrase 'crime involving moral turpitude' may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude. We have recently stated that doubt as to the adequacy of a standard in less obvious cases does not render that standard unconstitutional for vagueness. See Williams v. United States, supra. But there is no such doubt present in this case. Fraud is the touchstone by which this case should be judged. The phrase 'crime involving moral turpitude' has without exception been construed to embrace fraudulent conduct. We therefore decide that Congress sufficiently forewarned respondent that the statutory consequence of twice conspiring to defraud the United States is deportation. 21 Reversed. 22 Mr. Justice JACKSON, dissenting. 23 Respondent, because he is an alien, and because he has been twice convicted of crimes the Court holds involve 'moral turpitude,' is punished with a life sentence of banishment in addition to the punishment which a citizen would suffer for the identical acts. Mr. Justice BLACK, Mr. Justice FRANKFURTER and I cannot agree, because we believe the phrase 'crime involving moral turpitude,' as found in the Immigration Act,1 has no sufficiently definite meaning to be a constitutional standard for deportation. 24 Respondent migrated to this country from his native Italy in 1921 at the age of seventeen. Here he has lived twenty-nine years, is married to an American citizen, and his son, citizen by birth, is now a university student. In May, 1938, he pleaded guilty to a charge of conspiracy to violate the Internal Revenue Code2 and was sentenced to imprisonment for one year and one day. On June 6, 1941, he was convicted of a second violation and sentenced to imprisonment for two years. During the decade since, he has not been arrested or charged with any law violation. While still in prison, however, deportation proceedings were instituted against him, resulting in 1946, in a warrant for arrest and deportation. 25 By habeas corpus proceedings, De George challenged the deportation order upon the ground that his is not a crime 'involving moral turpitude.' The District Court thought it did and dismissed the writ. The Court of Appeals for the Seventh Circuit thought it did not and reversed.3 There is a conflict among the circuits.4 26 What the Government seeks, and what the Court cannot give, is a basic definition of 'moral turpitude' to guide administrators and lower courts. 27 The uncertainties of this statute do not originate in contrariety of judicial opinion. Congress knowingly conceived it in confusion. During the hearings of the House Committee on Immigration, out of which eventually came the Act of 1917 in controversy, clear warning of its deficiencies was sounded and never denied. 28 'Mr. Sabath * * * (Y)ou know that a crime involving moral turpitude has not been defined. No one can really say what is meant by saying a crime involving moral turpitude. Under some circumstances, larceny is considered a crime involving moral turpitude—that is, stealing. We have laws in some States under which picking out a chunk of coal on a railroad track is considered larceny or stealing. In some States it is considered a felony. Some States hold that every felony is a crime involving moral turpitude. In some places the stealing of a watermelon or a chicken is larceny. In some States the amount is not stated. Of course, if the larceny is of an article, or a thing which is less than $20 in value, it is a misdemeanor in some States, but in other States there is no distinction.'5 29 Despite this notice, Congress did not see fit to state what meaning it attributes to the phrase 'crime involving moral turpitude.' It is not one which has settled significance from being words of art in the profession. If we go to the dictionaries, the last resort of the baffled judge, we learn little except that the expression is redundant, for turpitude alone means moral wickedness or depravity6 and moral turpitude seems to mean little more than morally immoral.7 The Government confesses that it is 'a term that is not clearly defined,' and says: 'The various definitions of moral turpitude provide no exact test by which we can classify the specific offenses here involved.' 30 Except for the Court's opinion, there appears to be universal recognition that we have here an undefined and undefinable standard. The parties agree that the phrase is ambiguous and have proposed a variety of tests to reduce the abstract provision of this statute to some concrete meaning. 31 It is proposed by respondent, with strong support in legislative history, that Congress had in mind only crimes of violence.8 If the Court should adopt this construction, the statute becomes sufficiently definite, and, of course, would not reach the crimes of the respondent. 32 The Government suggests seriousness of the crime as a test and says the statute is one by which it is 'sought to reach the confirmed criminal, whose criminality has been revealed in two serious penal offenses.' (Italics supplied.) But we cannot, and the Court does not, take seriousness as a test of turpitude. All offenses denounced by Congress, prosecuted by the Executive, and convicted by the courts, must be deemed in some degree 'serious' or law enforcement would be a frivolous enterprise. However, use of qualifying words must mean that not all statutory offenses are subject to the taint of turpitude. The higher degrees of criminal gravity are commonly classified as felonies, the lower ones as misdemeanors. If the Act contemplated that repetition of any serious crime would be grounds for deportation, it would have been simple and intelligible to have mentioned felonies. But the language used indicates that there are felonies which are not included and perhaps that some misdemeanors are. We cannot see that seriousness affords any standard of guidance. 33 Respondent suggests here, and the Government has on other occasions taken the position, that the traditional distinction between crimes mala prohibita and those mala in se will afford a key for the inclusions and exclusions of this statute.9 But we cannot overlook that what crimes belong in which category has been the subject of controversy for years.10 This classification comes to us from common law, which in its early history freely blended religious conceptions of sin with legal conceptions of crime. This statute seems to revert to that practice. 34 The Government, however, offers the mala prohibita, mala in se doctrine here in slightly different verbiage for determining the nature of these crimes. It says: 'Essentially, they must be measured against the moral standards that prevail in contemporary society to determine whether the violations are generally considered essentially immoral.' 35 Can we accept 'the moral standards that prevail in contemporary society' as a sufficiently definite standard for the purposes of the Act? This is a large country and acts that are regarded as criminal in some states are lawful in others. We suspect that moral standards which prevail as to possession or sale of liquor that has evaded tax may not be uniform in all parts of the country, nor in all levels of 'contemporary society.' How should we ascertain the moral sentiments of masses of persons on any better basis than a guess?11 36 The Court seems no more convinced than are we by the Government's attempts to reduce these nebulous abstractions to a concrete working rule, but to sustain this particular deportation it improvises another which fails to convince us. Its thesis is (1) that the statute is sixty years old, (2) that state courts have used the same concept for various purposes, and (3) that fraud imports turpitude into any offense. 37 1. It is something less than accurate to imply that in any sense relevant to this issue this phrase has been 'part of the immigration laws for more than sixty years.'12 38 But, in any event, venerability of a vague phrase may be an argument for its validity when the passing years have by administration practice or judicial construction served to make it clear as a word of legal art. To be sure, the phrase in its present context has been on the statute books since 1917. It has never before been in issue before this Court. Reliance today on United States ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298, is unwarranted. There the Court assumed without analysis or discussion a proposition not seriously relied on. There have, however, been something like fifty cases in lower courts which applied this phrase. No one can read this body of opinions and feel that its application represents a satisfying, rational process. If any consistent pattern of application or consensus of meaning could be distilled from judicial decision, neither the Government nor the Court spells it out. Irrationality is inherent in the task of translating the religious and ethical connotations of the phrase into legal decisions. The lower court cases seem to rest, as we feel this Court's decision does, upon the moral reactions of particular judges to particular offenses. What is striking about the opinions in these 'moral turpitude' cases is the wearisome repetition of cliche § attempting to define 'moral turpitude,' usually a quotation from Bouvier. But the guiding line seems to have no relation to the result reached. The chief impression from the cases is the caprice of the judgments.13 How many aliens have been deported who would not have been had some other judge heard their cases, and vice versa, we may only guess. That is not government by law. 39 2. The use of the phrase by state courts for various civil proceedings affords no teaching for federal courts. The Federal Government has no common-law crimes and the judges are not permitted to define crimes by decision, for they rest solely in statute.14 Nor are we persuaded that the state courts have been able to divest the phrase of its inherent ambiguities and vagueness. 40 3. The Court concludes that fraud is 'a contaminating component in any crime' and imports 'moral turpitude.' The fraud involved here is nonpayment of a tax. The alien possessed and apparently trafficked in liquor without paying the Government its tax. That, of course, is a fraud on the revenues. But those who deplore the traffic regard it as much an exhibition of moral turpitude for the Government to share its revenues as for respondents to withhold them. Those others who enjoy the traffic are not notable for scruples as to whether liquor has a law-abiding pedigree. So far as this offense is concerned with whiskey, it is not particularly un-American, and we see no reason to strain to make the penalty for the same act so much more severe in the case of an alien 'bootlegger' than it is in the case of a native 'moonshiner.' I have never discovered that disregard of the Nation's liquor taxes excluded a citizen from our best society and I see no reason why it should banish an alien from our worst. 41 But it is said he has cheated the revenues and the total is computed in high figures. If 'moral turpitude' depends on the amount involved, respondent is probably entitled to a place in its higher brackets. Whether by popular test the magnitude of the fraud would be an extenuating or an aggravating circumstance, we do not know. We would suppose the basic morality of a fraud on the revenues would be the same for petty as for great cheats. But we are not aware of any keen sentiment of revulsion against one who is a little niggardly on a customs declaration or who evades a sales tax, a local cigarette tax, or fails to keep his account square with a parking meter. But perhaps what shocks is not the offense so much as a conviction. 42 We should not forget that criminality is one thing—a matter of law—and that morality, ethics and religious teachings are another. Their relations have puzzled the best of men. Assassination, for example, whose criminality no one doubts, has been the subject of serious debate as to its morality.15 This does not make crime less criminal, but it shows on what treacherous grounds we tread when we undertake to translate ethical concepts into legal ones, case by case. We usually end up by condemning all that we personally disapprove and for no better reason than that we disapprove it. In fact, what better reason is there? Uniformity and equal protection of the law can come only from a statutory definition of fairly stable and confined bounds. 43 A different question might be before us had Congress indicated that the determination by the Board of Immigration Appeals that a crime involves 'moral turpitude' should be given the weight usually attributed to administrative determinations. But that is not the case, nor have the courts so interpreted the statute. In the fifty-odd cases examined, no weight was attached to the decision of that question by the Board, the court in each case making its own independent analysis and conclusion. Apparently, Congress expected the courts to determine the various crimes includable in this vague phrase.16 We think that not a judicial function. 44 A resident alien is entitled to due process of law.17 We have said that deportation is equivalent to banishment or exile.18 Deportation proceedings technically are not criminal; but practically they are for they extend the criminal process of sentencing to include on the same convictions an additional punishment of deportation. If respondent were a citizen, his aggregate sentences of three years and a day would have been served long since and his punishment ended. But because of his alienage, he is about to begin a life sentence of exile from what has become home, of separation from his established means of livelihood for himself and his family of American citizens. This is a savage penalty and we believe due process of law requires standards for imposing it as definite and certain as those for conviction of crime. 45 Strangely enough, the Court does not even pay the tribute of a citation to its recent decision in Musser v. State of Utah, 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562, where a majority joined in vacating and remanding a decision which had sustained convictions under a Utah statute which made criminal a conspiracy 'to commit acts injurious to public morals'. We said of that statute: 'Standing by itself, it would seem to be warrant for conviction for agreement to do almost any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, trade, commerce, justice or order.' 333 U.S. at 97, 68 S.Ct. at page 398. For my part, I am unable to rationalize why 'acts injurious to public morals' is vague if 'moral turpitude' is not. And on remand, the Supreme Court of Utah said: 'We are * * * unable to place a construction on these words which limits their meaning beyond their general meaning.' State v. Musser, 1950, Utah, 223 P.2d 193, 194. 46 In Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840, the Court directly struck down for indefiniteness a statute sixty years on the statute books of New York and indirectly like statutes long on the books of half the States of the Union.19 The New York statute made a person guilty of a misdemeanor who in any way distributes 'any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime; * * *.' 333 U.S. at 508, 68 S.Ct. at page 666. That statute was certainly no more vague than the one before us now and had not caused even a fraction of the judicial conflict that 'moral turpitude' has. 47 In Winters v. New York, supra, the Court rested heavily on Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, in which this Court found unconstitutional indefiniteness in a statute calling for 'the current rate of per diem wages in the locality' where contractors were doing government work. (The sanction of the statute was a relatively small money fine, or a maximum of six months, though of course a corporate violator could only be subjected to the fine.) The test by which vagueness was to be determined according to the Connally case was that legislation uses terms 'so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application * * *.' 269 U.S. at 391, 46 S.Ct. at page 127. It would seem to be difficult to find a more striking instance than we have here of such a phrase since it requires even judges to guess and permits them to differ. 48 We do not disagree with a policy of extreme reluctance to adjudge a congressional Act unconstitutional. But we do not here question the power of Congress to define deportable conduct. We only question the power of administrative officers and courts to decree deportation until Congress has given an intelligible definition of deportable conduct. 1 39 Stat. 889, as amended, 8 U.S.C. § 155(a), 8 U.S.C.A. § 155(a). 2 Less than three years after entering the United States, respondent was convicted for transporting liquor and sentenced to a term in the reformatory. In 1931, he was convicted and fined for transferring license plates. 3 35 Stat. 1096, now 18 U.S.C. § 371: 'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.' 4 These charges were based upon 26 U.S.C. (1934 ed.) §§ 1155(f), 1440 and 1441 (now 26 U.S.C.A. §§ 2806(f), 3320, 3321). 5 The record establishes that respondent was a large-scale violator engaged in a sizable business. The second indictment alone charged him with possessing 4,675 gallons of alcohol and an undetermined quantity of distilled spirits. At the rate of $2.25 a gallon then in effect, the tax on the alcohol alone would have been over $10,000. 6 39 Stat. 889, as amended, 8 U.S.C. § 155(a), 8 U.S.C.A. § 155(a). 7 Section 19(a) further provides: '* * * The provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the State, make a recommendation to the Attorney General that such alien shall not be deported in pursuance of this chapter * * *.' 39 Stat. 889, as amended, 8 U.S.C. § 155(a), 8 U.S.C.A. § 155(a). The record does not indicate that respondent has been pardoned, nor that the sentencing judge recommended that he not be deported, nor that respondent requested that such recommendation be made. 8 In re Kirby, 1897, 10 S.D. 322, 73 N.W. 92, 39 L.R.A. 856, 859; Bartos v. United States District Court, 8 Cir., 1927, 19 F.2d 722; see Bradway, Moral Turpitude as the Criterion of Offenses that Justify Disbarment, 24 Cal.L.Rev. 9—27. 9 Fort v. City of Brinkley, 1908, 87 Ark. 400, 112 S.W. 1084, 1085. 'It seems clearly deducible from the above cited authorities that the words 'moral turpitude' had a positive and fixed meaning at common law * * *.' 10 3 Wigmore, Evidence (3d ed.), 540; cases are collected at 40 A.L.R. 1049, and 71 A.L.R. 219. 11 Fidelity & Cas. Co. v. Christenson, 1931, 183 Minn. 182, 236 N.W. 618. 12 Baxter v. Mohr, 1902, 37 Misc. 833, 76 N.Y.S. 982. 13 State decisions have held that the following crimes involve moral turpitude: passing a check with intent to defraud, Bancroft v. Board of Governors of Registered Dentists of Oklahoma, 1949, 202 Okl. 108, 210 P.2d 666; using the mails to defraud, Neibling v. Terry, 1944, 352 Mo. 396, 177 S.W.2d 502, 152 A.L.R. 249; In re Comyns, 1925, 132 Wash. 391, 232 P. 269; obtaining money and property by false and fraudulent pretenses, In re Needham, 1936, 364 Ill. 65, 4 N.E.2d 19; possessing counterfeit money with intent to defraud, Fort v. City of Brinkley, 1908, 87 Ark. 400, 112 S.W. 1084. One state court has specifically held that the wilful evasion of federal income taxes constitutes moral turpitude. Louisiana State Bar Ass'n v. Steiner, 1944, 204 La. 1073, 16 So.2d 843. 14 The term 'moral turpitude' first appeared in the Act of March 3, 1891, 26 Stat. 1084, which directed the exclusion of 'persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude'. Similar language was reenacted in the Statutes of 1903 and 1907. § 2, Act of March 3, 1903, 32 Stat. 1213; § 2, Act of Feb. 20, 1907, 34 Stat. 898. It has been suggested that the fact that this phrase has been used in the Immigration Laws for over sixty years has no weight in upholding its constitutionality. Of course, the mere existence of a statute for over sixty years does not provide immunity from constitutional attack. We have recently held an equally ancient statute unconstitutional for vagueness. Winters v. People of State of New York, 1948, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. There, a statute, which employed vague terminology wholly lacking in common law background or interpretation, was aimed at limiting rights of free speech. Even in the Winters case, however, several dissenting members of this Court were of the view that the venerability of the statute was an element to be considered in deciding the question of vagueness. 15 The phrase 'crime involving moral turpitude' presents no greater uncertainty or difficulty than language found in many other statutes repeatedly sanctioned by the Court. The Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note, provides the most obvious example, 'restraint of trade' as construed to mean 'unreasonable or undue restraint of trade,' Nash v. United States, 1913, 229 U.S. 373, 33 S.Ct. 780, 781, 57 L.Ed. 1232. Compare other statutory language which has survived attack under the vagueness doctrine in this Court: 'in excess of the number of employees needed by such licensee to perform actual services', United States v. Petrillo, 1947, 332 U.S. 1, 67 S.Ct. 1538, 1540, 91 L.Ed. 1877; 'any offensive, derisive or annoying word', Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 768, 86 L.Ed. 1031; 'connected with or related to the national defense', Gorin v. United States, 1941, 312 U.S. 19, 61 S.Ct. 429, 436, 85 L.Ed. 488; 'psychopathic personality,' State of Minnesota v. Probate Court, 1940, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744; 'willfully overvalues any security,' Kay v. United States, 1938, 303 U.S. 1, 58 S.Ct. 468, 470, 82 L.Ed. 607; 'fair and open competition', Old Dearborn Co. v. Seagram Corp., 1936, 299 U.S. 183, 57 S.Ct. 139, 144, 81 L.Ed. 109; 'reasonable variations shall be permitted,' United States v. Shreveport Grain and Elevator Co., 1932, 287 U.S. 77, 53 S.Ct. 42, 44, 77 L.Ed. 175; 'unreasonable waste of natural gas', Bandini Petroleum Co. v. Superior Court, 1931, 284 U.S. 8, 52 S.Ct. 103, 104, 76 L.Ed. 136; 'political purposes,' United States v. Wurzbach, 1930, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508; 'range usually occupied by any cattle grower,' Omaechevarria v. State of Idaho, 1918, 246 U.S. 343, 38 S.Ct. 323, 324, 62 L.Ed. 763. 1 Section 19(a) of the Immigration Act of February 5, 1917, 39 Stat. 889, as amended, 8 U.S.C. § 155(a), 8 U.S.C.A. § 155(a). 2 26 U.S.C. § 3321, 26 U.S.C.A. § 3321, 53 Stat. 401. 3 183 F.2d 768. 4 United States ex rel. Berlandi v. Reimer, 2 Cir., 113 F.2d 429, and Maita v. Haff, 116 F.2d 337, 9 Cir., hold this crime involves moral turpitude. Cf. Guarneri v. Kessler, 5 Cir., 98 F.2d 580, certiorari denied, 305 U.S. 648, 59 S.Ct. 229, 83 L.Ed. 419. 5 Hearings before House Committee on Immigration and Naturalization on H.R. 10384, 64th Cong., 1st Sess. 8. 6 Black's Law Dictionary defines turpitude as: '(I)nherent baseness or vileness of principle or action; shameful wickedness; depravity.' An example of its use alone to signify immorality may be taken from Macaulay, whose most bitter critics would admit he was a master of the English word. 'The artists corrupted the spectators, and the spectators the artists, till the turpitude of the drama became such as must astonish all who are not aware that extreme relaxation is the natural effect of extreme restraint.' History of England, Vol. I (1849 ed.), p. 374. 7 Bouvier's Law Dictionary, Rawles Third Revision, p. 2247, defines 'moral turpitude' as 'an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.' 8 'Mr. Woods * * * I would make provisions to get rid of an alien in this country who comes here and commits felonies and burglaries, holds you up on the streets, and commits crimes against our daughters, because we do not want that kind of alien here, and they have no right to be here. * * * The rule is that if we get a man in this country who has not become a citizen, who knocks down people in the street, who murders or who attempts to murder people, who burglarizes our houses with blackjack and revolver, who attacks our women in the city, those people should not be here. * * *' Hearings before House Committee on Immigration and Naturalization on H.R.10384, 64th Cong., 1st Sess. 14. Mr. Woods was not an ordinary witness. As the then Police Commissioner of New York City, his testimony appears to have been most influential in this provision of the 1917 Act. 9 In Volume II of Administrative Decisions under Immigration and Nationality Laws of the United States, p. 141, there is an administrative interpretation by the Department then having the administration of the Act. In an opinion on a deportation proceeding decided by the Board June 26, 1944, and approved by the Attorney General July 12, 1944, the statement was quoted with approval: "A crime involving moral turpitude may be either a felony or misdemeanor, existing at common law or created by statute, and is an act or omission which is malum in se and not merely malum prohibitum; which is actuated by malice or committed with knowledge and intention and not done innocently or (without advertence) or reflection; which is so far contrary to the moral law, as interpreted by the general moral sense of the community, that the offender is brought to public disgrace, is no longer generally respected, or is deprived of social recognition by good living persons; but which is not the outcome merely of natural passion, of animal spirits, of infirmity of temper, of weakness of character, of mistaken principles, unaccompanied by a vicious motive or a corrupt mind.' (Italics supplied.)' 10 Crimes mala in se, according to Blackstone, are offenses against '(t)hose rights then which God and nature have established, and are therefore called natural rights such as are life and liberty, * * * the worship of God, the maintenance of children, and the like.' They are 'crimes and misdemeanors, that are forbidden by the superior laws, and therefore styled mala in se (crimes in themselves), such as murder, theft, and perjury: which contract no additional turpitude from being declared unlawful by the inferior legislature.' According to Blackstone, crimes mala prohibita 'enjoin only positive duties, and forbid only such things as are not mala in se * * * without any intermixture of moral guilt.' Illustrative of this type of crime are 'exercising trades without serving an apprenticeship thereto, for not burying the dead in woollen, for not performing the statutework on the public roads, and for innumerable other positive misdemeanors. Now these prohibitory laws do not make the transgression a moral offense, or sin: the only obligation in conscience is to submit to the penalty, if levied.' and his conscience will be clear, which ever side of the alternative he thinks proper to embrace.' Cooley's Blackstone, Vol. I (4th ed.), pp. *54, *58. Of this, J.W.C. Turner says: 'Some of the weak points in this doctrine were detected by an early editor of Blackstone, and in modern times it is generally regarded as quite discredited.' The Modern Approach to Criminal Law 221. And cf. United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604. 11 As Judge Learned Hand put it, in attempting to resolve a similar conflict: 'Even though we could take a poll, it would not be enough merely to count heads, without any appraisal of the voters. A majority of the votes of those in prisons and brothels, for instance, ought scarcely to outweigh the votes of accredited churchgoers. Nor can we see any reason to suppose that the opinion of clergymen would be a more reliable estimate than our own.' Schmidt v. United States, 2 Cir., 177 F.2d 450, 451. 12 We are construing the Act of 1917 and not the earlier Immigration Acts, those of March 3, 1891, 26 Stat. 1084; March 3, 1903, 32 Stat. 1213; February 20, 1907, 34 Stat. 898. All of these prior statutes allowed deportation for conviction for every felony or crime, which meant for conviction of every crime involving a sentence of not less than a year. It then added another deportable category, to wit, misdemeanors involving moral turpitude. In addition to all crimes involving a sentence of a year or more, the earlier Acts carved out a small category of petty offenses, when they were of a kind 'involving moral turpitude,' i.e., offenses even though carrying a small sentence having a manifestation of intrinsic badness. But that creates a very different problem from requiring us to discriminate among all offenses, felonies and misdemeanors on the basis of intrinsic badness. 13 How unguiding the guide 'moral turpitude' is in relation to the enforcement of the Act of 1917, can be shown by three pairs of cases: (1) In Tillinghast v. Edmead, 31 F.2d 81, 85, the First Circuit, over a pungent dissent, held that a conviction for petty larceny by an 'ignorant colored girl' working as a domestic was an offense involving 'moral turpitude.' On the other hand, in United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400, the Second Circuit held that conviction for possession of a jimmy, with intent to use it in the commission of some crime, the jimmy being 'adapted, designed and commonly used for the commission of the crimes of burglary and larceny' was not for an offense involving 'moral turpitude.' (2) In United States ex rel. Mazzillo v. Day, D.C.S.D.N.Y., 15 F.2d 391, Judge Knox held that an assault in the second degree, though by one intoxicated, constituted a crime involving 'moral turpitude.' But in United States ex rel. Manzella v. Zimmerman, D.C.E.D.Pa., 71 F.Supp. 534, Judge Maris held that jailbreaking by a bank-robber awaiting trial was not an offense involving 'moral turpitude.' (3) In Rousseau v. Weedin, 284 F. 565, 566, the Ninth Circuit held that one who was convicted of being a 'jointist' under a Washington statute prohibiting 'the unlawful sale of intoxicating liquor' was deportable as having committed a crime involving 'moral turpitude.' While in Hampton v. Wong Ging, 9 Cir., 299 F. 289, 290, it held (with the same two judges sitting in both cases) that a conviction under the Narcotic Act was not of itself a crime of 'moral turpitude,' since the record did not show whether the offense for which conviction was had was 'of such an aggravated character as to involve moral turpitude.' 14 Viereck v. United States, 318 U.S. 236, 241, 63 S.Ct. 561, 563, 87 L.Ed. 734. 15 John Stuart Mill, referring to the morality of assassination of political usurpers, passed by examination of the subject of Tyrannicide, as follows: 'I shall content myself with saying that the subject has been at all times one of the open questions of morals; that the act of a private citizen in striking down a criminal, who, by raising himself above the law, has placed himself beyond the reach of legal punishment or control, has been accounted by whole nations, and by some of the best and wisest of men, not a crime, but an act of exalted virtue; and that, right or wrong, it is not in the nature of assassination, but of civil war.' Mill, On Liberty and Considerations on Representative Government, p. 14, n. 1. The vice of leaving statutes that inflict penalties so vague in definition that they throw the judge in each case back upon his own notions is the unconscious tendency to 'Compound for sins they are inclin'd to, 'By damning those they have no mind to.' Butler, Vol. 1 Hudibras (1772 ed.), 28. 16 However, a statement by the Chairman of the Committee on Immigration and Naturalization may suggest another explanation: 'My recollection is that the Supreme Court of the United States has determined what crimes are crimes involving moral turpitude under the Federal law, and if so, that would control, I should think.' Hearings before House Committee on Immigration and Naturalization on H.R.10384, 64th Cong., 1st Sess. 8. 17 Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616. 18 Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433. 19 The Court's reference to the dissent in the Winters case would seem to make questionable its present force as an authority.

12

341 U.S. 290 71 S.Ct. 715 95 L.Ed. 949 UNITED STATES et al.v.CHAMPLIN REFINING CO. No. 433. Argued March 8, 9, 1951. Decided May 7, 1951. Mr. Charles H. Weston, Washington, D.C., for appellants. Mr. Dan Moody, Austin, Tex., for appellee. Mr. Justice CLARK delivered the opinion of the Court. 1 Section 1 of the Interstate Commerce Act provides that 'common carriers' engaged in the 'transportation' of oil or other commodities shall be subject to the regulatory requirements specified in other sections of the statute.1 In an earlier proceeding, this Court found that Champlin, as owner of a pipe line, was a 'common carrier' within the meaning of § 1; and on the record there presented the Court upheld an I.C.C. order under § 19a(a)—(e) of the Act requiring the company to submit valuation data, maps, charts and other documents pertaining to its operations.2 Champlin Refining Co. v. United States, 1946, 329 U.S. 29, 67 S.Ct. 1, 91 L.Ed. 22. The present proceeding involves a subsequent I.C.C. order directing Champlin (1) to file annual, periodic and special reports, and to institute and maintain a uniform system of accounts applicable to pipe lines, both under § 20 of the Act;3 and (2) to publish and file schedules showing the rates and charges for interstate transportation of refined petroleum products, pursuant to § 6.4 2 A specially constituted three-judge District Court, with one member dissenting, refused to enforce the order on the ground that Champlin, at least for the purposes of §§ 6 and 20, is not within the class of carriers intended to be regulated by the Act. It held further that to impose the requirements of § 6 on Champlin would be to take its property without due process in violation of the Fifth Amendment. D.C., 95 F.Supp. 170. The Government and the Commission appealed, 28 U.S.C. §§ 1253, 2101(e), 2325. 3 The facts here are substantially the same as in the earlier case. Champlin owns and operates a pipe line running from its refinery at Enid, Oklahoma, to terminals at Hutchinson, Kansas; Superior, Nebraska; and Rock Rapids, Iowa—a distance of 516 miles. It uses the pipe line solely to carry its own refined petroleum products, such as gasoline and kerosene. No other refiner has connections with the line, and none has ever shipped products through it. The line does not connect with any other pipe line. Champlin has storage facilities at each of its three terminals. Jobbers purchasing Champlin products supply their own transportation from the storage tanks to their bulk depots. 4 Since the first case, there has been a change in Champlin's method of quoting prices. At the time of the earlier proceeding, the price was computed as f.o.b. the Enid refinery, plus a differential equal to the through rail rate from Enid to the purchaser's destination minus the charges for local transportation between the nearest pipe-line terminal and the destination. However, Champlin made frequent and substantial departures from this formula in order to meet competitive prices at various locations. In May 1948, the company began quoting prices as f.o.b. the respective terminals, a policy which is still in effect. But as before, adjustments are made so that delivered prices to jobbers will be competitive with those offered by other refiners. 5 On the basis of these and other facts, the Government contends (1) that there are no significant factual differences between this and the prior case, and therefore Champlin is barred by collateral estoppel from relitigating the holding of this Court that it is a 'common carrier' engaged in 'transportation' within the meaning of § 1 of the Act; (2) that since the definition of 'common carrier' in § 1 applies to §§ 6 and 20 as well as to § 19a, the Court's prior holding per se establishes the validity of the present order; (3) that even if estoppel does not apply, the facts are adequate under the statute to support the Commission's order; (4) that the alleged constitutional question is frivolous. 6 Champlin claims (1) that factual changes remove this case from the realm of collateral estoppel; (2) that the Court specifically reserved the statutory issue presented by this case, namely whether the I.C.C. may convert a private carrier into a common carrier for hire; and (3) that the lower court was correct in holding that the Act violates the Fifth Amendment if construed to authorize the I.C.C.'s order. 7 We agree with the Government that there have been no significant factual changes in Champlin's operations since the prior case. The practice of quoting prices f.o.b. Enid made it superficially more obvious that transportation charges were being collected, a point which the Court brought out. 329 U.S. at page 34, 67 S.Ct. 3. And the record indicates that the change to an f.o.b. terminal formula resulted in minor alterations in the pattern of relative delivered prices at various locations. But Champlin is still transporting, and unless it has launched on a calculated plan of bankruptcy, its prices on the average are necessarily intended to cover transportation costs as well as other costs. Champlin further points out that it has constructed ethyl plants at two of its pipe-line terminals and is there processing some 20 percent of its products. It claims that this change makes the pipe line a part of 'manufacturing' facilities and thus brings the company within the Uncle Sam rule, which excepted a class of gathering lines from the coverage of the Act. The Pipe Line Cases (U.S. v. Ohio Oil Co.), 1914, 234 U.S. 548, 562, 34 S.Ct. 956, 959, 58 L.Ed. 1459. But a Champlin officer testified in this case that the company has 'always done some blending and treating' of its products at the terminals; and 80 percent of the products are still transported in their final form. Hence, there is no justification for reconsidering this Court's refusal to 'expand the actual holding' of the Uncle Sam case (The Pipeline Cases) supra, to include Champlin, and its ruling that Champlin was a 'common carrier' as defined by § 1 of the Act. 8 However, we disagree with the Government's contention that the prior holding disposes of all the statutory issues in this case. To be sure, the literal terms of the statute lend some weight to the Government's argument. Section 1(1) provides that 'The provisions of this part' shall apply to 'common carriers' as defined, the word 'part' referring to §§ 1—27 inclusive. Section 19a, under which the earlier order was issued, applies to 'every common carrier subject to the provisions of this part'. Section 20 applies to 'carriers', which is defined in subparagraph (8) as 'common carrier(s) subject to this chapter'; and § 6 applies to 'every common carrier subject to the provisions of this chapter'. Hence, the Commission's jurisdiction to issue orders under any of these sections is determined by a decision that a company is a 'common carrier' under § 1. The Government in effect argues, however, that a decision as to jurisdiction also settles the merits, that facts adequate to support a specific valuation order under § 19a are also adequate to support an order under §§ 6 and 20. But this is the very conclusion which this Court necessarily rejected in Champlin I. In that case, it was Champlin which argued that an interpretation encompassing it within § 1 would convert a private pipe line into a public utility and require it to become a common carrier in fact. But the Court stated that 'our conclusion rests on no such basis and affords no such implication * * * (The contention) is too premature and hypothetical to warrant consideration * * *.' 329 U.S. at page 35, 67 S.Ct. at page 3. In holding merely that Champlin could be required to submit information as a 'common carrier' under the Act, the Court plainly indicated that the application of more rigorous sanctions would be reserved for treatment as an independent statutory issue on a proper record. 9 The reasons for this approach were suggested in Valvoline Oil Co. v. United States, 1939, 308 U.S. 141, 146, 60 S.Ct. 160, 162, 84 L.Ed. 151. Collection of information has a significance independent from the imposition of regulations, whether or not such regulations ever come forth. Valuation and cost data from companies not subject to rate making may add to the statistical reliability of standards imposed on those companies which are. 'Publicity alone may give effective remedy to abuses, if any there be.' 308 U.S. at page 146, 60 S.Ct. at page 163. Disclosure may alter the future course of a company otherwise disposed to indulge in activities which the statute condemns. Disclosure provides the basis for prompt action should a future change in circumstances make full-scale regulation appropriate. Finally, reports may bring to light new abuses and thus provide the groundwork for future statutory amendments. We assume that the Congress which passed the Interstate Commerce Act was well aware of these benefits. We conclude, as before, that the Congress did not mean to eschew them by omitting a general provision empowering the Commission to collect pertinent data from all interstate pipe lines. 10 The prior holding, therefore, supports that part of the Commission's order involving § 20 of the Act. The requirement of annual and special reports cannot be differentiated from a request for maps, charts and valuation data. The requirement that Champlin maintain a uniform system of accounts is somewhat more burdensome, but we think its independent value as a measuring rod for companies fully regulated under the Act is clearly sufficient to justify the Commission's requesting so much as is pertinent. 11 At the same time, we find it hard to conclude, despite the generality of the statutory terms used, that Congress intended to apply the sanctions of § 6—imposing the duty of serving the public at regulated rates—on all private pipe lines merely because they cross state lines. The statute cannot be divorced from the circumstances existing at the time it was passed, and from the evil which Congress sought to correct and prevent. The circumstances and the evil are well-known. Pipe lines were few in number and heavily concentrated under the control of one company, Standard Oil. That company, through the ownership of subsidiaries and affiliates, had 'made itself master of the only practicable oil transportation between the oil fields east of California and the Atlantic Ocean and carried much the greater part of the oil between those points. * * * Availing itself of its monopoly of the means of transportation (it) refused through its subordinates to carry any oil unless the same was sold to it or to them * * * on terms more or less dictated by itself.' The Pipe Line Cases, supra, 234 U.S. at page 559, 34 S.Ct. at page 958. Small independent producers—who lacked the resources to construct their own lines, or whose output was so small that a pipe line built to carry that output alone would be economically unfeasible—were in a desperate competitive position. There is little doubt, from the legislative history, that the Act was passed to eliminate the competitive advantage which existing or future integrated companies might possess from exclusive ownership of a pipe line. 12 This evil could not have been reached by bringing within the coverage of the Act only those pipe lines who were common carriers for hire in the common-law sense. Attempts so to limit the Act's scope were made during the course of congressional debates. Senator Lodge, sponsor of the principal amendment, rendered the obvious answer that such an alteration would 'absolutely destroy (the proposal) * * * so far as its effectiveness is concerned.' 40 Cong.Rec. 7000 (1906). Hence the bill as finally enacted was clearly intended 'to bring within its scope pipe lines that although not technically common carriers yet were carrying all oil offered, if only the offerers would sell at their price.' The Pipe Line Cases, supra, 334 U.S. at page 560, 34 S.Ct. at page 958. And see Valvoline Oil Co. v. United States, supra. We may also assume for purposes of argument—no such facts ever having been before this Court—that the generality of the term 'all pipe-lines' was meant to impose full regulation on integrated producer pipe lines who exploit a competitive advantage simply by refusing to deal with independent producers having no comparably cheap method of reaching consuming markets. But it would be strange to suppose that Congress, in adopting a term broad enough to cover all competitive imbalances which might arise, intended that the Commission should make common carriers for hire out of private pipe lines whose services were unused, unsought after, and unneeded by independent producers, and whose presence fosters competition in markets heavily blanketed by large 'majors.' Such a step would at best be pointless; it might well subvert the chief purpose of the Act. 13 Yet on the record before us, this is precisely what the Commission is attempting to do. Unlike the crude-oil gathering lines of Valvoline, which carried the products of over 3,800 independent owners and operators, Champlin's refined-products line carries only its own.5 The Government concedes that the order under § 6 carries a necessary implication that Champlin may now be forced to devote its pipe line, at least partially, to public use. Nevertheless, the Commission has not only failed to disclose circumstances which the Act was passed to correct, but has either assumed or made findings to the contrary. In addition to findings previously referred to, the Commission stated as follows: 14 'Only about 1.98 percent of the total gasoline consumed in (Champlin's marketing) area is moved through the pipe line and sold from respondent's terminal storage facilities. * * * The total capacity of the common-carrier lines into the Nebraska market is about 13 times that of the Champlin line and about 10 times that of the latter into the Iowa market. The common-carrier pipe-line capacity available to refineries in Oklahoma and Kansas aggregates 172,800 barrels a day (in contrast to Champlin's capacity of 9,800 barrels), and respondent's pipeline is the smallest of any common-carrier or private pipe line operating in this territory. Apparently, common-carrier pipe-line transportation is available to any small refiner in this area desiring such transportation. 15 'So far as appears, no other pipe-line company has threatened to force * * * a connection (with Champlin's), and because of the ample common-carrier pipe-line facilities available, as revealed by respondent, no refinery would be likely to interest itself in such a connection.' 274 I.C.C. 412—413, 415 (1949). (Emphasis supplied.) 16 The court below, in its Findings of Fact, concluded that 'Champlin does not have a monopoly or any power to establish a monopoly either in the transportation of petroleum products into the trade territory or in the sale of petroleum products therein.' D.C. 1950, 95 F.Supp. 170. It further found that 'Champlin * * * is a small company in comparison with companies with which it competes in the area reached by its pipe line * * * Champlin's acts create competition.' Ibid. See also Chairman Splawn, dissenting from the Commission report. 274 I.C.C. 416.6 The Government seeks to rebuild its case by pointing to small refiners who are closer to Champlin's pipe line than to any other, and by stressing the expense of building long connecting lines. But there is no evidence that any of these refiners wish to market outside their immediate area. And in any event, it is not the function of this Court to rescue the Commission by making findings de novo which the Commission itself was unable or unwilling to make. We hold that on this record the Commission's order, insofar as it concerns § 6, goes beyond what Congress contemplated when it passed the Act. 17 The judgment below will be modified by striking out those portions setting aside the Commission's order in Cause No. 29912, Champlin Refining Company Accounts and Reports, and as modified, it is affirmed. 18 So ordered. 19 Modified and affirmed. 20 Mr. Justice FRANKFURTER, while joining the Court's opinion, would overrule the earlier Champlin decision, 329 U.S. 29, 67 S.Ct. 1, 91 L.Ed. 22, on the ground set forth in the dissent in that case. 21 Mr. Justice DOUGLAS, with whom Mr. Justice REED and Mr. Justice BURTON concur, concurring in part and dissenting in part. 22 The term 'common carrier' has but one meaning in the Act—the meaning given it by § 1. That definition was held in Champlin Refining Co. v. United States, 329 U.S. 29, 67 S.Ct. 1, 91 L.Ed. 22, sufficiently broad to include appellee. Section 19a was involved there and § 6 is involved here. That may make a constitutional difference; but there can be none so far as the statute is concerned. Since § 6, like § 19a, can reach appellee only through § 1, if § 1 is broad enough for the one section it is broad enough for the other. As the Court in its several decisions has not been consistent in its interpretation of the scope of the Act as applied to private pipe lines, I feel free to follow the precedent of the Pipe-Line Cases, 234 U.S. 548, 561 562, 34 S.Ct. 956, 58 L.Ed. 1459, and the view expressed in the dissent in Champlin Refining Co. v. United States, 329 U.S. 29, 67 S.Ct. 1, 91 L.Ed. 22, that pipe lines carrying only the commodities of their owners from the owners' refineries to the owners' storage tanks for marketing have not been made by Congress subject to the Act. Consequently, I agree that § 1 is not broad enough to bring appellee under the regulatory power of the Interstate Commerce Commission. Therefore, neither § 6 nor § 20 applies. 23 Mr. Justice BLACK (dissenting). 24 From whatever angle this case is approached, it seems to me that the holding of the Court is wrong. The decision rides roughshod over clear statutory language making the Hepburn Act1 applicable to interstate oil-carrying pipe lines, and makes impossible enforcement of the Act as Congress intended. The decision undercuts and I think overrules several prior cases without mentioning this fact. And this appellant, Champlin, is even given a second trial and victorious relitigation of the same issues we had previously determined against it. Finally, the opinion suggests to me that the Court accepts what I deem to be a frivolous constitutional challenge to the Act, namely that Congress is without power to force oil-carrying interstate pipe lines to serve as common carriers for hire. I. 25 The Court's holding that Champlin must comply with § 20 of the Hepburn Act, but need not comply with § 6, cannot be reconciled with clear language in those sections or with our previous decisions construing the same language. Section 20 authorizes the Interstate Commerce Commission to require that 'all common carriers subject to the provisions of this Act'2 file, among other things, certain annual reports; § 6 commands that 'Every common carrier subject to the provisions of this Act'3 shall file schedules of rates with the Commission. I do not understand why it should be necessary to labor the obvious—this language requires Champlin (if it is a 'common carrier subject to the * * * Act') to comply with § 6 if it is required to comply with § 20, or to comply with § 20 if it is required to comply with § 6. The Court holds that Champlin is a 'common carrier subject to' the Act, and accordingly sustains the Commission's order to file reports under § 20. Paradoxically, however, it then proceeds to hold that the same Champlin, though 'subject to' the Act, need not comply with § 6. How the Court gives the identical language in the two sections such different meanings is left a mystery.4 26 The Court may be saying that § 6 is something sui generis, that no pipe-line company need comply with that section unless it is something more than a 'common carrier subject to the * * * Act'.5 While the meaning of this 'something more' is not made clear, the Court, in overturning the Commission order does suggest in passing that it might possibly sustain an order requiring Champlin to comply with § 6 upon Commission findings that the company exploited 'a competitive advantage simply by refusing to deal with independent producers having no comparably cheap method of reaching consuming markets' or that Champlin enjoyed a 'monopoly' position in its area. Certainly nothing in the Hepburn Act should encourage such judicial creativeness for § 6 applies to 'Every common carrier subject to the * * * Act' in language which does not logically admit of limiting the section's coverage to carriers that have refused 'to deal with independent producers' or achieved 'monopoly' status. That § 6 would or could be thus restricted was not hinted at in the Pipe Line Cases, (U.S. v. Ohio Oil Co.), 234 U.S. 548, 34 S.Ct. 956, 58 L.Ed. 1459 (where this section was involved), nor in Valvoline Oil Co. v. United States, 308 U.S. 141, 60 S.Ct. 160, 84 L.Ed. 151,6 nor in our decision in the first Champlin case, Champlin Rfg. Co. v. United States, 329 U.S. 29, 67 S.Ct. 1, 91 L.Ed. 22.7 It should be noted that the dissenting justices in Champlin I thought that an additional 'something' was necessary before the Hepburn Act was applicable; they believed that none of the Act's provisions should apply to pipe-line companies unless they were 'common carriers in substance.' But neither those justices nor anyone else, so far as I know, have ever before suggested that the Court can pick and choose sections into which additional requirements can be imported. This possibility remained for today's majority to discover, 46 years after passage of the Hepburn Act.8 II. 27 Far more important than the judicial exemption of Champlin from filing papers under § 6, however, is the Court's holding that pipe-line companies engaged in interstate transportation of their own petroleum products need not act as public carriers for hire unless they have already voluntarily become 'something more' than interstate oil-carrying pipe lines. The proper answer to this basic question in the case turns on § 1 of the Hepburn Act: '(T)his Act shall apply to any corporation or any person or persons engaged in the transportation of oil or other commodity * * * by means of pipe lines * * * who shall be considered and held to be common carriers within the meaning and purpose of this Act * * *.'9 28 That Champlin is a common carrier within the literal language of this provision is shown by the unchallenged findings of fact made by the I.C.C.: Champlin, a fully integrated company, produces, refines, transports and markets petroleum products. Through a wholly owned subsidiary it also buys, gathers and transports to its refinery oil produced from the wells of others.10 Its trunk pipe line extends 516 miles across five states from its refinery at Enid, Oklahoma, to its terminal at Rock Rapids, Iowa. Although application of the Act does not depend on a pipe-line company's size, Champlin is by no means a small company; rather, it occupies an important position in the area it serves.11 But for the Court's holding, I should have thought that § 1 of the Act on the admitted facts obviously required Champlin to serve as a common carrier for the products of others. 29 That the Hepburn Act did convert Champlin into a public carrier for hire is made even clearer by the legislative history. The pipe-line provision was sponsored in 1906 by Senator Henry Cabot Lodge of Massachusetts who offered to amend a pending railroad bill in a manner which would convert interstate oil-carrying pipe lines into common carriers subject to regulation by the I.C.C.12 The Lodge Amendment reflected dissatisfaction with monopoly conditions in the petroleum industry. Such conditions, it was thought, had been brought about in the main through control of oil-carrying pipe lines by large integrated companies (especially the Standard Oil Company) which were using their control to exclude independent producers and refiners from this cheap transportation facility.13 But the ensuing debate left no room for doubt that the purpose of the Amendment, as its language clearly showed, was to deprive any oil company, not merely Standard,14 of power to utilize pipe-line control to crush competition. To this end, as is shown by an Appendix following this opinion, the Amendment was designed to make public or common carriers for hire out of every private pipe-line company transporting petroleum products in interstate commerce. Senators who were opposed charged that the passage of the Amendment would do exactly this against the will of 'private' carriers. Lodge and other proponents freely admitted it, explaining that anything less would be ineffective. All congressional efforts to narrow the Amendment to cover only companies already acting like common carriers were defeated. Therefore it is strange to say, as the Court does, that applying the pipe-line provisions so as to make Champlin a common carrier for hire would 'subvert the chief purpose of the Act.' Stranger still is the Court's unexplained apprehension that requiring all interstate pipe-line companies to serve as public carriers for hire would somehow 'foster' monopoly. III. 30 The Court, without mentioning it, necessarily overrules one or more of our previous decisions construing the Hepburn Act. In the Pipe Line Cases, supra, it was held that the Hepburn Act converted into common carriers for hire all private pipe-line companies 'engaged in the transportation of oil or other commodity' across state lines, a decision which meant that all such companies are by law required to offer their services to the public.15 In the first Champlin case, supra, we determined that this appellant was so 'engaged.'16 Consequently, today's decision allowing Champlin to refrain from filing tariffs under § 6 necessarily overrules either the Pipe Line Cases or Champlin I, or both. If they are to be overruled, the Court should say so. I would not overrule either. 31 Nor do I understand how today's holding can be reconciled with Valvoline Oil Co. v. United States, supra, where we held that Valvoline was a 'common carrier subject to' (308 U.S. 141, 60 S.Ct. 161) the Act. The pattern of operations of Valvoline and Champlin are identical with two minor exceptions: (1) Valvoline's interstate pipe lines transported crude oil while Champlin's trunk line transports gasoline. This difference is immaterial; even assuming that 'gasoline' is not 'oil' within the meaning of § 1, that section makes the Act apply not merely to any pipe-line company carrying 'oil' but to pipe-line companies carrying any 'other commodity.' (2) Valvoline chose to operate its gathering lines and purchase oil from independent producers in its own corporate name while Champlin chooses to operate its gathering lines and purchase oil in the name of a wholly owned subsidiary. The Court, however, had no difficulty in the Pipe Line Cases in treating as a single unit the Standard Oil Company and its wholly owned or even partly owned subsidiaries.17 32 The Court nevertheless seeks to distinguish the Valvoline case on the ground that Valvoline 'carried the products of over 3,800 independent owners and operators'. The quoted language correctly states a fact only if it is understood to mean that Valvoline made purchases from 3,800 independents and then carried the purchased oil in its pipe line. This fact, however, certainly does not distinguish the two cases. Like Valvoline, Champlin carries the 'oil of others' all the way from the well to the market area: over half of the oil and gasoline carried by Champlin is originally purchased as crude oil from independent producers in the field before transportation begins.19 As noted above, Champlin does make these purchases through a wholly owned subsidiary, rather than in its own corporate name, but this fact is unimportant.20 33 Since there is no substantial difference between the operations of Champlin and Valvoline, and between the legal arguments made in the two cases, I conclude that, verbalisms aside, the effect of today's decision is to undermine the Valvoline holding. In this situation I think Valvoline should be expressly overruled. Why, in fairness, should Valvoline and others similarly situated be required to serve as common carriers for hire while Champlin is left free to conduct its pipe lines as it chooses? IV. 34 In the first Champlin case (308 U.S. 141, 60 S.Ct. 161) we upheld findings of fact made by the I.C.C., 49 Val.Rep.(I.C.C.) 463, 470, that appellant was 'engaged in the transportation' and was 'a common carrier subject to the provisions of' the Act. Since these questions were 'distinctly put in issue and directly determined,' Champlin may not dispute them in this second proceeding between the same parties unless there is a departure from the principles most recently announced in United States v. Munsingwear, 340 U.S. 36, 38, 71 S.Ct. 104, 106. Yet three concurring justices today appear to take the position that Champlin is not 'engaged in transportation,' and is therefore not a common carrier subject to the Act, a position which this Court emphatically rejected in Champlin I. I also believe that the majority's position is unjustified under the Munsingwear principle when the effect (as distinguished from the language) of their decision is considered. V. 35 Why should the Court interpret the Hepburn Act in a way which nullifies its purpose? I am forced by process of elimination to consider whether the decision reflects either a hostility to the policy of the Act or an unarticulated belief that it is unconstitutional, if enforced as written. Neither this Court nor any other should strangle an Act because of judicial disagreement with congressional policy. If destruction of the Act results from a feeling that the Constitution forbids Congress to convert private companies into public servants, I think that this view should be announced here, as it was by a majority of the court below. Pipe-line companies, administrators of the law, the bench, the bar, and the Congress are entitled to no less. Of course, the same constitutional contention was expressly rejected in 1914 in the Pipe Line Cases, supra: As to companies which, like Champlin, built their lines after passage of the Act, Justice Holmes, speaking for the Court, dismissed the challenge brusquely with less than a sentence, stating merely that 'there can be no doubt that it (the pipe line provision) is valid.' 234 U.S. at page 561, 34 S.Ct. at page 958. Again, in 1922, the Court, relying on the Pipe Line Cases, supra, rejected a somewhat similar constitutional agrument as 'futile to the point almost of being frivolous.' Pierce Oil Corp. v. Phoenix Rfg. Co., 259 U.S. 125, 128, 42 S.Ct. 440, 441, 66 L.Ed. 855. Surely a contention deemed 'almost frivolous' twenty-nine years ago should not now be reinvigorated by implication. VI. 36 No one can be sure that under the Act as now rewritten by the Court the Commission can or should succeed in forcing any oil company—even those now complying with the Act—to carry gasoline or oil for others as a common carrier. Even without the newly engrafted, Court-created hurdles, the pipe-line provisions, for one reason or another, have never been enforced as effectively as might be desired.21 Perhaps, therefore, no great harm will result from the Court's polite but sure frustration of the Hepburn Act's purpose. Some people in and familiar with the oil industry, however, believe that this Act should be strengthened, not weakened.22 Be that as it may, I deem it my duty to vote to enforce the Act as Congress has passed it. 37 I would reverse. APPENDIX to Opinion of Mr. Justice BLACK 38 On May 4, 1906, President Theodore Roosevelt transmitted to the Congress a report describing and condemning various monopolistic practices in the petroleum industry. 40 Cong.Rec. 6358. Senator Lodge of Massachusetts on the same day introduced an amendment to § 1 of the Hepburn Act making pipe-line companies engaged in the interstate transportation of oil and other commodities common carriers: '(That the provisions of this act shall apply to) Any corporation or any person or persons engaged in the transportation of oil or other commodity, except natural gas or water for municipal purposes, by means of pipe lines, or partly by pipe lines and partly by railroad, or partly by pipe lines and partly by water, who shall be considered and held to be common carriers within the meaning and purpose of this act * * *.' Id. at 6361. 39 Senator Foraker of Ohio immediately objected to the broad scope of the Lodge proposal: 'I do not want to make any opposition to the Senator's amendment, but it occurs to me that the amendment ought to be further amended, so as to provide that it shall apply only to pipe lines operated for the public. I do not understand how you could compel a man who has a private pipe line of his own to become a common carrier * * *. I think such a limitation ought to be put in the Senator's amendment by an amendment to the amendment that it shall apply to all pipe lines that are carrying for the public, and not to private lines that an individual or a single corporation may have laid down and put into operation for its own benefit.' Id. at 6361. 40 Senator Nelson in reply stated that Foraker's suggestion would 'practically nullify the provision, because every one of these pipe lines cay say 'we refuse to do business for the public.' Practically the (Lodge) amendment would be of no use at all.' Id. at 6365. And Senator Lodge added: '(T)he amendment suggested by (Senator Foraker) to the effect that no pipe line, unless it carries for the public, shall come under this rule, will, as (Senator Nelson) says, absolutely destroy the value of my amendment.' Id. at 6365. 41 During the course of the debate an attempt was made to make the Lodge amendment applicable only to carriers 'for the public' or to 'transportation for hire' or 'for compensation,' but it was unsuccessful. Id. at 7000. Senator Lodge again stated that such an amendment would 'absolutely destroy' his proposal 'so far as its effectiveness is concerned.' Id. at 7000. 42 There can be no doubt but that the proponents knew and stated their purpose. Senator Lodge declared: '(T)he purpose of this amendment is to bring the transportation of oil and other commodities within the interstate-commerce law. Oil is one of the greatest articles of interstate commerce carried in this country, and it is now absolutely outside and beyond any Government regulation whatsoever.' Id. at 6365. Later he added: 'All pipe lines owned by any company within the United States * * * are made common carriers.' Id. at 7001. Senator Clay, speaking about the pipe-line provision, observed: 'This bill makes every corporation engaged in the transmission of oil a common carrier. Every private corporation transmitting its own oil * * * is made a common carrier by the (Lodge) amendment * * *.' Id. at 7009. And Senator Culberson said: 'Nothing is left to the courts for construction, but the statute itself declares that any corporation, or any person or persons engaged in transporting oil by pipe lines—of course, as interstate commerce—are common carriers, and are declared to be such in this act of Congress, subject to the authority of this act * * *.' Id. at 7005. Senator Bailey, in the final debate on the measure, described the Lodge proposal as the "pipe-line amendment' by which we mean the amendment that makes the pipe lines common carriers.' Id. at 9647. 43 The 'commodities clause' of the Hepburn Act was designed to prevent railroads from owning businesses whose shipments they carried. When that clause was first considered in the Senate, it applied to 'common carriers subject to' the Act. Some senators realized that the 'commodities clause'—read together with the Lodge Amendment making every pipe-line company subject to the Act would force a divorcement of pipe lines from refineries. To avoid this, they again suggested that the Lodge proposal be amended so as to apply only to pipe lines operating for the public. Senator Lodge said: 'What I want to suggest to the Senator is that this (original Lodge) amendment makes the pipe lines and the oil companies subject to all the provisions of the bill. If the Senator thinks there is an injustice, the place to remedy it is on page 5, at that amendment (the commodities clause), and not at this one (the Lodge amendment).' Id. at 7009. Accordingly, the 'commodities clause' finally passed by Congress referred specifically to railroads. 34 Stat. 585. 1 49 U.S.C. § 1, 49 U.S.C.A. § 1: '(1) Carriers subject to requlation. 'The provisions of this chapter shall apply to common carriers engaged in— '(b) The transportation of oil or other commodity, except water and except natural or artificial gas, by pipe line * * *. '(3) * * * (a) The term 'common carrier' as used in this chapter shall include all pipe-line companies; * * *.' 2 49 U.S.C. § 19a, 49 U.S.C.A. § 19a: '(a) Physical valuation of property of carriers; classification and inventory. 'The Commission shall * * * investigate, ascertain, and report the value of all the property owned or used by every common carrier subject to the provisions of this chapter * * *. '(e) * * * Every common carrier subject to the provisions of this chapter shall furnish to the commission or its agents from time to time and as the commission may require maps, profiles, contracts, reports of engineers, and any other documents * * *.' 3 49 U.S.C. § 20, 49 U.S.C.A. § 20: '(1) Reports from carriers and lessors. 'The Commission is authorized to require annual, periodical, or special reports from carriers * * *. '(3) Uniform system of accounts. 'The Commission may, in its discretion, for the purpose of enabling it the better to carry out the purposes of this chapter, prescribe a uniform system of accounts applicable to any class of carriers subject thereto * * *. '(4) Depreciation charges. 'The Commission shall * * * prescribe for carriers the classes of property for which depreciation charges may properly be included under operating expenses, and the rate or rates of depreciation which shall be charged * * *. '(8) * * * the term 'carrier' means a common carrier subject to this chapter * * *.' 4 49 U.S.C. § 6, 49 U.S.C.A. § 6: '(1) Schedule of rates, fares, and charges; filing and posting. 'Every common carrier subject to the provisions of this chapter shall file with the commission * * * and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation * * *.' Section 1(5) of the Act provides that all charges 'shall be just and reasonable'. 49 U.S.C. § 1(5), 49 U.S.C.A. § 1(5). 5 Champlin is sole owner of the stock of the Cimarron Valley Pipe Line Company, an intrastate crude-oil gathering system which supplies oil from both its own and others' wells to the Champlin refinery. However, the Commission both in this case and in Champlin I gave no consideration, either in the hearings or the orders, to Champlin's gathering facilities. In any event, it would seem that Champlin's exclusive ownership of the refined-products line would be of no concern to independent crude-oil producers unless the following assumptions were true: (a) that independent refiners were shut out of gasoline markets which they would otherwise enter; (b) that this reduced their output below the capacity of their refineries; (c) that this decreased their demand for crude oil, thus reducing their competition with Champlin in the purchase of crude, and thus depressing the price which crude-oil producers could get. As to the first, and crucial, assumption, the Commission found precisely to the contrary. See text, infra. 6 '* * * (T)he evidence is clear that there has been, and is, no holding out by Champlin of a common-carrier service either directly or indirectly. None of the products moved through the line has ever been purchased from any other interest. Moreover, the evidence shows that the products transported through Champlin's pipe line constitutes an inconsequential part of the total volume of products that moves by pipe line to the consuming territory served by Champlin from its storage facilities. 'Requiring Champlin to comply with our valuation orders and the requirements of section 20 of the act * * * is one thing, but to require it to file tariffs and thereby obligate itself to transport oil products of others in common-carrier service, to the exclusion of its own, is something entirely different. 'The purpose of the amendment in 1906 was to protect small independent producers from monopoly power. This report construes that amendment so as to convert into a common carrier the pipe line wholly owned and completely utilized by a relatively small independent company, though the company is wholly dependent upon such facility * * * in the conduct of its refining business. This ultra literal construction regardless of differing conditions and circumstances might well have the effect of destroying small independent companies instead of affording them the protection intended by the amendment.' (Emphasis supplied.) 1 34 Stat. 584. The Hepburn Act was passed in 1906 as an amendment to the Interstate Commerce Act of 1887, 24 Stat. 379, and may now be found in 49 U.S.C. §§ 1—27, 49 U.S.C.A. §§ 1—27. All quotations in the text follow the original language of the Hepburn Act, this Court twice having held that subsequent minor modifications changed neither the purpose nor the meaning of the Act. Valvoline Oil Co. v. United States, 308 U.S. 141, 145—146, 60 S.Ct. 160, 162, 84 L.Ed. 151; Champlin Rfg. Co. v. United States, 329 U.S. 29, 32, note 4, 67 S.Ct. 1, 2, 91 L.Ed. 22. 2 34 Stat. 593, now 49 U.S.C. § 20, 49 U.S.C.A. § 20, which provides that the I.C.C. may require reports 'from carriers' and '* * * the term 'carrier' means a common carrier subject to this chapter * * *.' 3 34 Stat. 586, now 49 U.S.C. § 6, 49 U.S.C.A. § 6: 'Every common carrier subject to the provisions of this chapter shall file * * *.' 4 The mystery is not lessened by the Court's use of the concept of the 'Commission's jurisdiction' in connection with tariffs. For the duty of a common carrier to file tariffs is not dependent on any 'jurisdiction' or any order of the I.C.C. Section 6 unequivocally commands that common carriers subject to the Act 'shall file.' See note 3, supra. 5 I am unable to find any support for this interesting theory in the language or history of any part of the Act, or from any other source. But see Splawn, Commissioner, dissenting, 274 I.C.C. 416; compare the opinion of Commissioners Aitchison, Splawn and Alldredge in the first Champlin case, 49 Val.Rep. (I.C.C.) 463. 6 See Part III, infra. 7 The holding of the last two cited cases was that Valvoline and Champlin had to comply with 49 U.S.C. § 19a(a) and (e), 49 U.S.C.A. § 19a(a, e). Section 19a, like § 6 and § 20, applies to 'every common carrier subject to the provisions of this chapter * * *.' 8 I do not think that the Court in Champlin I reserved 'as an independent statutory issue on a proper record' (emphasis added) the question whether Champlin could be converted into a public carrier for hire; rather the question left open was whether the Fifth Amendment barred converting Champlin into a public carrier. Of course, the Government argued in Champlin I, as it did in Valvoline, that the Act's provisions should be treated as 'separable' in passing on the constitutional question raised. But the Government has never intimated that the sections of the Act as a matter of statutory construction were 'separable.' Even an assumption that the sections were separable, however, would not justify the Court in exempting Champlin from § 6 unless it could find support for such an exemption in some statutory language. The Court has pointed to no such exclusionary language; I can find none. Moreover, as an Appendix to this opinion, infra, 341 U.S. 317, 318, 71 S.Ct. 730, shows, Senator Lodge intended to make 'the pipe lines and the oil companies subject to all the provisions of the bill' unless expressly excluded in a particular provision. 9 34 Stat. 584, now 49 U.S.C. § 1, 49 U.S.C.A. § 1: '(1) * * * The provisions of this chapter shall apply to common carriers engaged in—* * * (b) (t)he transportation of oil or other commodity * * * by pipe line * * *. (3) * * * (a) The term 'common carrier' as used in this chapter shall include all pipe-line compenies; * * *.' See note 1, supra. 10 Mr. A. G. E. Leverton, Comptroller of the Champlin Refining Company testified: 'We have never produced more than approximately 45 percent of the crude oil required by our refinery and hence have always been compelled to purchase on the open market, more than half of our crude oil requirements * * *.' 11 The total cost of Champlin's pipe line and appurtenant facilities as of December 31, 1940, was $3,189,028.66. Champlin, according to the I.C.C., owns: (1) Approximately 149 oil wells on 53 leases in Oklahoma, 45 wells on 13 leases in Kansas, and 52 wells on 10 leases in Texas; (2) approximately 75,000 acres of undeveloped leases; (3) the Enid refinery which processes approximately 4 1/2 million barrels of crude oil annually; (4) all the stock of the Cimarron Valley Pipe Line Company which owns and operates 450 miles of gathering lines in Oklahoma; (5) 723 tank cars; (6) approximately 316 filling stations and 248 gasoline and oil bulk plants; (7) the products pipe line involved in this case; (8) trucks and other equipment used to promote the producing, purchasing and refining of crude oil and the marketing of the products thereof. 49 Val.Rep. (I.C.C.) 463—464; 274 I.C.C. 410. 12 The 'pipe line provision' was added to § 1 of the Hepburn Act and is the language quoted from § 1 in the text accompanying note 9, supra. That provision is now found in 49 U.S.C. § 1, 49 U.S.C.A. § 1. See note 9, supra. 13 Immediately before Senator Lodge introduced his amendment, President Theodore Roosevelt transmitted to the Congress a report on the transportation of petroleum. 40 Cong.Rec. 6358. The report pointed out the advantage possessed by Standard Oil as a result of its control of pipe lines. H.R.Doc. No. 100, 59th Cong., 1st Sess. 29, 36—37, 60—62, 398—400. For the background of monopolistic practices in the petroleum industry at that time, see generally Beard, Regulation of Pipe Lines as Common Carriers (1941), 10—27; 2 Sharfman, The Interstate Commerce Commission (1931), 59, 96; Whitesel, Recent Federal Regulation of the Petroleum Pipe Line as a Common Carrier, 32 Cornell L.Q. 337, 341. For history of Standard Oil practices, see Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619; United States v. Standard Oil Co. of New Jersey, C.C., 173 F. 177; Tarbell, The History of The Standard Oil Company (1925). Control of pipe-line transportation is still important today. See, e.g., the statement of Alfred M. Landon: 'Very little crude oil is moved in any other way than by pipe line. There is only a small amount moved by intrastate shipments. The independent producer therefore finds himself at the mercy of his competitor in the business of producing oil when that competitor controls practically one hundred per cent of the transportation facilities, because it becomes simply a question of bookkeeping as to the end of the business in which this big monopoly shows its profit. It can pay less for the oil and make its profit from the transportation. The independent refiner is choked also by this same means—the control of the transportation facilities.' Hearings before House Committee on Interstate and Foreign Commerce on H.R. 16695, 71st Cong., 3d Sess. 59. 14 As to the danger involved in interpreting this Act as aimed at a single corporation, see McFarland v. American Sugar Refining Co., 241 U.S. 79, 36 S.Ct. 498, 60 L.Ed. 899. 15 Justice Holmes wrote for the Court: 'The provisions of the act are to apply to any person engaged in the transportation of oil by means of pipe lines. The words 'who shall be considered and held to be common carriers within the meaning and purpose of this act' obviously are not intended to cut down the generality of the previous declaration to the meaning that only those shall be held common carriers within the act who were common carriers in a technical sense, but an injunction that those in control of pipe lines and engaged in the transportation of oil shall be dealt with as such.' 234 U.S. at pages 559—560, 34 S.Ct. at page 958. Both the Interstate Commerce Commission and the Commerce Court had construed the statute as requiring all interstate, oil-carrying pipe lines to serve as common carriers for hire. 24 I.C.C. 1 (1912); Prairie Oil & Gas Co. v. U.S., Com.Ct.1913, 204 F. 798. It is true that the Commerce Court held the Hepburn Act unconstitutional as a taking of property without due process of law, one judge dissenting. But on appeal, Pipe Line Cases, 234 U.S. 548, 34 S.Ct. 956, 58 L.Ed. 1459, this Court reversed, holding the Act constitutional: As to those pipe lines in existence before passage of the Act, one ground assigned by the Court was that they were already common carriers in substance. As to pipe lines built subsequent to the passage of the Act, see Part V, infra. 18 As to the factual similarity between Champlin's and Valvoline's domination (or lack of domination) in the fields served, compare 274 I.C.C. 413 ('(a)pparently, common-carrier pipe-line transportation is available to any small refiner in (Champlin's) area desiring such transportation') with 47 Val.Rep.(I.C.C.) 534, 535 ('(a)t least one common-carrier pieline company serves each of the fields reached by the Valvoline'). 16 329 U.S. at page 34, 67 S.Ct. 1, 91 L.Ed. 22. In the Pipe Line Cases, supra, the Uncle Sam Oil Company, which operated its business on the border between Oklahoma and Kansas, was held not to be so 'engaged' because it was 'simply drawing oil from its own wells across a state line to its own refinery, for its own use, and that (was) all * * *.' 234 U.S. at page 562, 34 S.Ct. at page 959. There is no Uncle Sam problem in this case since a majority of the Court today reaffirms the former holding that Champlin is 'engaged in transportation.' 17 But cf. United States v. Elgin, J. & E.R. Co., 298 U.S. 492, 56 S.Ct. 841, 80 L.Ed. 1300; United States v. South Buffalo R. Co., 333 U.S. 771, 68 S.Ct. 868, 92 L.Ed. 1077. DP It should be noted, moreover, that Valvoline unsuccessfully made the same contention that the Court now accepts in order to relieve Champlin from its statutory duties. Thus, Valvoline attempted to avoid becoming a common carrier for hire by claiming that the Act applied only to companies enjoying a monopoly position in an area, a position not held by Valvoline because public pipe lines for hire adequately served the fields where Valvoline bought its oil.18 The I.C.C. refused to accept Valvoline's proposed interpretation of the Act, and we necessarily did the same in affirming the Commission's order. 19 See note 10, supra. Whether Champlin buys from more or less than 3,800 independent producers does not appear in the record. But the exact number cannot have legal significance here. See Valvoline Oil Co. v. United States, 308 U.S. 141, 147, 60 S.Ct. 160, 163, 84 L.Ed. 151. 20 Even if Champlin produced all the oil it transported, the Act would require its regulation because of the effect of exclusive pipe-line ownership on Champlin's price policy at the other end of the pipe line. For one major purpose of the Act was to insure competition in the petroleum industry by regulating pipe-line transportation so that the independent refiner, the jobber and the consumer would not be charged exorbitant prices by the integrated companies. See 40 Cong.Rec. 6365, 6366; Note, Public Control of Petroleum Pipe Lines, 51 Yale L.J. 1338, 1347 1348. It is noteworthy that the price of Champlin's gasoline was 1/8¢ per gallon higher at Superior, Kansas (a point not served by any other common carrier pipe line), than it was at Rock Rapids, Iowa (a point served by a common carrier line, hence in a competitive market); Rock Rapids is 260 miles further from the Enid refinery than is Superior. The effect of such control was pointed out long ago by this Court in Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 77, 31 S.Ct. 502, 523, 55 L.Ed. 619, as follows: 'As substantial power over the crude product was the inevitable result of the absolute control which existed over the refined product, the monopolization of the one carried with it the power to control the other * * *.' 21 'The major oil companies have their greatest control in the transportation of crude oil. * * * The control of transportation today by the majors appears in many respects to be just as complete and effective as was the case of the Standard Oil Trust.' Report of the Temporary National Economic Committee, 76th Cong., 3d Sess., Monograph 39 (1941), p. 28. This report contains an excellent discussion of transportation problems in the petroleum industry. Id. at 19—28. And see Kemnitzer, Rebirth of Monopoly (1938), 78—95; Whitesel, Recent Federal Regulation of the Petroleum Pipe Line as a Common Carrier, 32 Cornell L.Q. 337, 355 369. 22 See, e.g., the statement of Alfred M. Landon: 'The crushing strength of the old Standard Oil Co. lay in the fact that, of its thirty-odd companies, some were producers only, some were transporters only, some were refiners only, and some were marketers only. 'But the master minds that controlled the old Standard Oil Co. coordinated these thirty and odd companies into one vast company—a great single, integrated, coordinated 'unit' that, as a corporate entity, did all of these things (producing, transporting, refining, and marketing)—and all of them within the corporate inclusiveness of 'one' company. 'Therein rested the terrific, the overpowering strength of the old Standard Oil Co. 'To-day, from a corporate standpoint, we have the 'equivalent,' many times over, of the old Standard Oil Co. * * * 'It is inevitable that the only escape from monopolistic domination in the oil industry—and it is being rapidly accomplished through mergers and integration—is to clearly, definitely, and effectively segregate, first, the entire pipe line transportation system of the oil industry from the rest of the industry. The first effect of this segregation would be the substitution of competition in the transportation of crude oil for the present practice which, in each individual case, is, to all practical purposes, a monopoly.' Hearings before House Committee on Interstate and Foreign Commerce on H.R. 16695, 71st Cong., 3d Sess. 60, 61. For views against the proposed strengthening of the Hepburn Act see House Report on Pipe Lines, 72d Cong., 2d Sess. (1933), especially Special Counsel Splawn's conclusions, p. lxxviii. See also Kemnitzer, Rebirth of Monopoly (1938), 87—90; F. R. Black, Oil Pipe Line Divorcement by Litigation and Legislation, 25 Cornell L.Q. 510.

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341 U.S. 321 71 S.Ct. 684 95 L.Ed. 968 EWING, Federal Security Administrator,v.GARDNER. No. 621. Decided May 7, 1951. PER CURIAM. 1 The petition for writ of certiorari is granted. The sole question presented by the petition is the validity of the affirmance by the Court of Appeals of the judgment rendered against the petitioner for costs by the District Court. There being no express statutory authority for the allowance of costs to the respondent, such an award of costs is precluded by 28 U.S.C. § 2412(a). The judgment of the Court of Appeals, insofar as it relates to the taxation of costs against the petitioner, is therefore reversed. 2 Reversed in part.

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341 U.S. 267 71 S.Ct. 680 95 L.Ed. 927 MOSSER et al.v.DARROW et al. No. 461. Argued April 10—11, 1951. Decided May 7, 1951. Messrs. Roger S. Foster, Washington, D.C., Stanley A. Kaplan, Chicago, Ill., for petitioners. Messrs. Irving Herriott, Urban A. Lavery, Chicago, Ill., for respondents. Mr. Justice JACKSON delivered the opinion of the Court. 1 The principal question here concerns personal liability of a reorganization trustee who, although making no personal profit, permitted key employees to profit from trading in securities of the debtors' subsidiaries. Upon a long record, controlling facts have been found with little disagreement. 2 In 1935, the United States District Court appointed respondent Darrow as reorganization trustee for two common-law trusts. These had functioned as holding companies and their principal assets were the securities of twenty-seven underlying companies, each of which owned improved real estate and had its own debt and capital structure. Both the subsidiary companies and the two trusts had been promoted by Jacob Kulp and Myrtle Johnson, who thoroughly knew the inside of the business and were acquainted with many of the investors. The tangled financial history leading to the reorganization is not important to our issue. 3 Darrow employed Kulp and Miss Johnson to assist in his trusteeship. That they were competent and useful is undenied. Kulp managed the physicial properties while Miss Johnson supervised the office, had complete charge of all records of income, expenditures and properties of both debtors and all underlying companies. Darrow decided upon a policy of buying in bonds of the subsidiaries for retirement, where they were available at a discount, and during his trusteeship reduced the outstanding bonds of subsidiaries by this method by about two and one-half million dollars. Darrow depended upon Miss Johnson's judgment and advice in allocating funds for sinking fund operations, in his purchase of securities and in fixing prices to be offered. 4 Kulp and Miss Johnson were employed by Darrow with the express agreement that they could continue to trade in securities of the debtors' subsidiaries personally and through Colonial Securities Corporation, which they owned. Without such consent they stated they would not have remained. Darrow and Colonial for a considerable period shared office facilities and personnel, with Miss Johnson in charge both of the trustee's office, which was interested in the purchase of bonds, and her own Colonial, interested in the same thing. 5 Miss Johnson and Kulp, during their employment by the trustee, traded extensively in bonds of the subsidiary companies. On many occasions they acquired bonds for themselves and on the same day, or within a few days, transferred them to Darrow at a profit. Darrow paid for some securities in advance of their delivery to him and for some even before Miss Johnson had made her own purchase of them. Johnson and Kulp sometimes bought for themselves bonds offered by bondholders who had come to the trustee's office to dispose of them to the trustee. They made substantial profits through these transactions. 6 In his eight years of trusteeship, Darrow filed but one account for one of the debtor-corporations and none for the other. The Securities and Exchange Commission intervened and demanded investigation of his conduct of the trust and thereafter he resigned and filed his accounts, which were met with objections by his successor trustee. These issues were referred to a special master, who heard a long contest over the foregoing and many other items unimportant here. The master recommended a surcharge on account of the foregoing conduct. The master's report was reviewed by the District Court, which concluded that the evidence supported the findings and recommendations and surcharged the trustee in the amount of $43,447.46, reserving some questions for later consideration. Darrow appealed and the Court of Appeals reversed the decision of the District Court, for reasons that we will later consider. 184 F.2d 1. We conclude that the District Court was correct and the decision of the Court of Appeals cannot stand. 7 At the outset we are met with a jurisdictional objection. Respondent contends that we are powerless to grant a motion to substitute parties because the petition for the writ of certiorari is jurisdictionally defective in that it is filed in the name of Stacy Mosser, a resigned trustee. It is further contended that John W. Guild, the other named petitioner, is without standing to seek review because he is only an indenture trustee. Both contentions are erroneous. 8 An indenture trustee's standing is expressly authorized by 52 Stat. 894, 11 U.S.C. § 606, 11 U.S.C.A. § 606, which provides, 'The debtor, the indenture trustees, and any creditor or stockholder of the debtor shall have the right to be heard on all matters arising in a proceeding under this chapter.' (Italics added.) And respondent, in opposing the motion to substitute, erroneously relies on cases involving government officers. Davis v. Preston, 280 U.S. 406, 50 S.Ct. 171, 74 L.Ed. 514; Snyder v. Buck, 340 U.S. 15, 21, 71 S.Ct. 93, 96. Successor trustees, unlike successors of public officers, are regarded as transferees or assignees of all the interests of their predecessor, and removal of a trustee does not cause abatement. 52 Stat. 840, 860, 11 U.S.C. § 74, 11 U.S.C.A. § 74. We hold, in accord with Bowden v. Johnson, 107 U.S. 251, 264, 2 S.Ct. 246, 256, 27 L.Ed. 386, that substitution is fully authorized and proper in these circumstances and accordingly turn to the merits. 9 This was a strict trusteeship, not one of those quasi-trusteeships in which self-interest and representative interests are combined. A reorganization trustee is the representative of the court and it is not contended and would not be arguable that if he had engaged for his own advantage in the same transactions that he authorized on the part of his subordinates he should not be surcharged. Equity tolerates in bankruptcy trustees no interest adverse to the trust. This is not because such interests are always corrupt but because they are always corrupting. By its exclusion of the trustee from any personal interest, it seeks to avoid such delicate inquiries as we have here into the conduct of its own appointees by exacting from them forbearance of all opportunities to advance self-interest that might bring the disinterestedness of their administration into question. 10 These strict prohibitions would serve little purpose if the trustee were free to authorize others to do what he is forbidden. While there is no charge of it here, it is obvious that this would open up opportunities for devious dealings in the name of others that the trustee could not conduct in his own. The motives of man are too complex for equity to separate in the case of its trustees the motive of acquiring efficient help from motives of favoring help, for any reason at all or from anticipation of counterfavors later to come. We think that which the trustee had no right to do he had no right to authorize, and that the transactions were as forbidden for benefit of others as they would have been on behalf of the trustee himself. 11 It is argued here, and appears to have been the view of the Court of Appeals, that principles of negligence applied and that a trustee could not be surcharged under many decisions unless guilty of 'supine negligence.' We see no room for the operation of the principles of negligence in a case in which conduct has been knowingly authorized. This is not the case of a trustee betrayed by those he had grounds to believe were trustworthy, for these employees did exactly what it was agreed by the trustee that they should do. The question whether he was negligent in not making detailed inquiries into their operations is unimportant, because he had given a blanket authority for the operations. The liability here is not created by a failure to detect defalcations, in which case negligence might be required to surcharge the trustee, but is a case of a willful and deliberate setting up of an interest in employees adverse to that of the trust. 12 It is contended, however, that the trust has incurred no loss. Indeed, it is argued, and much evidence was taken to the effect, that the buying program of Darrow as a whole was to the advantage of the trust. Of course, these dealings in a rising market did not directly extract any amounts from the till of the trustee. But it is obvious that a buying program to retire at discount bonds of subsidiaries advances most rapidly and achieves its greatest results when the purchase prices are lowest. Darrow concededly relied on Miss Johnson in fixing offering prices. Those offering prices were sufficiently above what bondholders were willing to accept, so that a margin was left for Miss Johnson to profit. It may not have been intentionally rigged for the purpose, but there can be no doubt of the result. If people were willing to trudge to the trustee's office to dispose of their holdings for less than his offer, there is no reason why the advantage of that low price should not have been taken by the trustee. Instead, in his own office, Miss Johnson intervened between the seller and the buyer and made a profit for herself by doing so. 13 In one of the larger transactions, a block of securities was offered at judicial sale. Darrow did not bid but Miss Johnson did. About one-half of the purchase price she obtained through a resale to Darrow. He paid her, in advance of delivery, $12,447 for securities that cost her approximately $8,000, and his check was used by Miss Johnson to make the payment due under her bid. If Darrow's employees were able to purchase in the open market these securities at less than Darrow on their advice thereafter offered and paid, it is difficult to say that there was no injury to the estate of the trust through these transactions. But equity has sought to limit difficult and delicate fact-finding tasks concerning its own trustee by precluding such transactions for the reason that their effect is often difficult to trace, and the prohibition is not merely against injuring the estate—it is against profiting out of the position of trust. That this has occurred, so far as the employees are concerned, is undenied. 14 It is argued, and the Court of Appeals appears to have been impressed by the argument, that this surcharge creates a very heavy liability upon a man who enjoyed no personal profit and must be condoned "so as not to strike terror into mankind acting for the benefit of others and not for their own." 184 F.2d 1, 8. Trustees are often obliged to make difficult business judgments, and the best that disinterested judgment can accomplish with foresight may be open to serious criticism by obstreperous creditors aided by hindsight. Court are quite likely to protect trustees against heavy liabilities for disinterested mistakes in business judgment. But a trusteeship is serious business and is not to be undertaken lightly or so discharged. The most effective sanction for good administration is personal liability for the consequences of forbidden acts, and there are ways by which a trustee may effectively protect himself against personal liability. 15 The practice is well established by which trustees seek in structions from the court, given upon notice to creditors and interested parties, as to matters which involve difficult questions of judgment. In this particular matter, it is claimed that the special knowledge of Miss Johnson and Kulp was indispensable to the trustee. This, it is said, is the reason the trustee yielded to their insistence upon the right to speculate in the securities underlying the trust. If their services were so indispensable that an arrangement so highly irregular was of advantage to the trust, this might have been fully disclosed to the court and the creditors cited to show cause why it should not have been openly authorized. Instead of this, the trustee, although he did discuss with Judge Holly the employment of Kulp and Miss Johnson, did not disclose the critical fact that he was employing them on terms which permitted their trading in the underlying securities. Indeed, it appears that he did not even disclose this feature of the transaction to his own counsel. It is hardly probable that a candid disclosure to creditors, to the court, and to interested parties would have resulted in instructions to have pursued this course; but, had it been authorized, at least the assenting creditors might have found themselves estopped to question the transaction. 16 A further remedy of a trustee for limiting, if not avoiding, personal liability is to account at prompt intervals, which puts upon objectors the burden of raising their objections. And had the trustee accounted, as good practice would have required, he undoubtedly would have discovered long ago that this arrangement was objectionable. It hardly lies in the mouth of a trustee to allow his liabilities to accumulate over such a period of time and then ask the court to relieve him of them because they have become too burdensome. 17 In fairness to the trustee, it is to be noted that there is no hint or proof that he has been corrupt or that he has any interest, present or future, in the profits he has permitted these employees to make. For all that appears, he was simply misled into thinking these persons indispensable, but he entered into an arrangement which courts cannot sanction unless they are to open the door to practices which would demoralize trusteeships and discredit bankruptcy administration. 18 The judgment of the Court of Appeals is reversed and the cause remanded to the District Court for proceedings consistent with this opinion. 19 Reversed and remanded. 20 Mr. Justice BURTON took no part in the consideration or decision of this case. 21 Mr. Justice BLACK, dissenting. 22 The Special Master, District Court, Court of Appeals and this Court all seem to agree that the respondent trustee, Darrow, has been guilty of no act of bad faith. As a result of his administration, large profits accrued to the estate. Nevertheless, the Court now holds that respondent must be surcharged $43,000 solely because two of the trust's employees profited to that extent from trading in trust securities with his knowledge. This rule of trustee liability did not exist before today, as is shown by the fact that no statute or case is cited in support of the Court's decision. 23 Despite its novelty, there is much to be said in favor of such a rule for cases arising in the future. It seems to me, however, that there is no reason why the rule should be retroactively applied to this respondent when to do so is grossly unfair. Admittedly, the most that can be said against respondent is that he made an honest mistake which before today would not have subjected him to the heavy financial penalty. Under these circumstances, if the new rule is to be announced by the Court, I think it should be given prospective application only. See Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 and cases cited, 85 A.L.R. 262. 24 I would affirm the judgment of the Court of Appeals.

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341 U.S. 319 71 S.Ct. 730 95 L.Ed. 966 UNITED STATESv.WHEELOCK BROS., Inc. WHEELOCK BROS., Inc. v. UNITED STATES. Nos. 169, 177. Argued Jan. 3, 1951. Decided May 7, 1951. Mr. Max Siskind, New York City, for Wheelock Bros. Inc. Mr. Oscar H. Davis, Washington, D.C., for the United States. PER CURIAM. 1 Wheelock Bros., Inc., a private motor carrier, sued in the Court of Claims to recover just compensation for an alleged temporary taking of its properties and business by the United States pursuant to Executive Order No. 9462. 9 Fed.Reg. 10071, Aug. 11, 1944. The Court of Claims entered judgment awarding Wheelock Bros., Inc., just compensation in an amount less than that claimed. 1950, 115 Ct.Cl. 733, 88 F.Supp. 278. We granted certiorari on the petitions of both parties. 1950, 340 U.S. 808, 71 S.Ct. 55. 2 While the action was pending in the Court of Claims, Congress passed the Motor Carrier Claims Commission Act,1 providing that that Commission 'shall hear and determine, according to law, existing claims against the United States arising out of the taking by the United States of possession or control of any of the motor-carrier transportation systems described in Executive Order Numbered 9462 * * *.' Section 2. Within the time provided in the Act and before entry of judgment in the Court of Claims, Wheelock Bros., Inc., filed its claim with the Commission. 3 At the threshold, we are met with the question whether the Court of Claims had jurisdiction to enter judgment in this case. Congress, in § 6 of the Motor Carrier Claims Commission Act, expressly provided: 'The jurisdiction of the Commission over claims presented to it as provided in section 2 of this Act shall be exclusive; but nothing in this Act shall prevent any person who does not elect to present his claim to the Commission from pursuing any other remedy available to him.' 4 Wheelock Bros., Inc., by filing its claim with the Commission, did elect to present it to that tribunal. The Commission's jurisdiction over the claim being 'exclusive,' the Court of Claims was without jurisdiction to enter judgment in this case. For this reason, the judgment below is vacated and the case is remanded to the Court of Claims with instructions to dismiss the claim in that court. 5 It is so ordered. 6 Judgment vacated, case remanded with instructions. 1 62 Stat. 1222 (1948), as amended, 62 Stat. 1289, 1290 (1948), 63 Stat. 80 (1949), 49 U.S.C.A. § 305 note.

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341 U.S. 246 71 S.Ct. 692 95 L.Ed. 912 MONTANA-DAKOTA UTILITIES CO.v.NORTHWESTERN PUBLIC SERVICE CO. No. 77. Argued Nov. 27, 1950. Decided May 7, 1951. Mr. William D. Mitchell, Washington, D.C., for petitioner. Mr. Jacob M. Lashly, St. Louis, Mo., for respondent. Mr. Howard E. Wahrenbrock, Washington, D.C., for Federal Power Commission, amicus curiae, by special leave of Court. Mr. Justice JACKSON delivered the opinion of the Court. 1 Petitioner and respondent are public electric utilities companies engaged in interstate commerce. Petitioner's predecessor and respondent were under the same management through interlocking directorships and joint officers. During that relationship the two interchanged electric energy, shared expenses, and made a number of intercompany contracts establishing rates and charges, which contracts were filed with and accepted by the Federal Power Commissoin. These contract rates and charges are at the root of this controversy. Petitioner charges that during the period 1935—1945, its predecessor paid respondent unreasonably high prices for what respondent furnished it, and that it received unreasonably low rates for what it provided respondent. That advantage, it is alleged, was fraudulent and unlawful and was due to the interlocking directorate, which prevented protest to the Commission to have reasonable rates and charges established pursuant to the provisions of the Federal Power Act.1 2 Petitioner sued in United States District Court and asserted jurisdiction on the ground that the case 'arises under the Constitution, or laws of the United States'2 and, more particularly, under a 'law regulating commerce,'3 specifically the Federal Power Act. 3 Petitioner was successful in the District Court, which found the contracts void for fraud and the rates and charges established therein unreasonable. The court also determined what would have been reasonable rates and charges for the period in question and gave judgment for the difference between its conception of reasonable charges and the actual charges, amounting to over three-quarters of a million dollars.4 4 The judgment was reversed by the Court of Appeals for the Eighth Circuit on the ground that the District Court was without jurisdiction.5 5 As frequently happens where jurisdiction depends on subject matter, the question whether jurisdiction exists has been confused with the question whether the complaint states a cause of action. The Judicial Code, in vesting jurisdiction in the District Courts, does not create causes of action, but only confers jurisdiction to adjudicate those arising from other sources which satisfy its limiting provisions. Petitioner asserted a cause of action under the Power Act. To determine whether that claim is well founded, the District Court must take jurisdiction, whether its ultimate resolution is to be in the affirmative or the negative. If the complaint raises a federal question, the mere claim confers power to decide that it has no merit, as well as to decide that it has. In the words of Mr. Justice Holmes, '* * * if the plaintiff really makes a substantial claim under an act of Congress there is jurisdiction whether the claim ultimately be held good or bad.' The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 412, 57 L.Ed. 716. See also Hurn v. Oursler, 289 U.S. 238, 240, 53 S.Ct. 586, 587, 77 L.Ed. 1148. Even a patently frivolous complaint might be sufficient to confer power to make a final decision that it is of that nature, binding as res judicata on the parties. 6 Petitioner's complaint, in substance, alleges existence of the interlocking directorship, contends that such relationship was used fraudulently to deprive it of its federally conferred right to reasonable rates and charges, and demands reparations. We think there was power in the District Court to decide whether the claims so grounded constitute a cause of action maintainable in federal court and, if so, whether it is sustained on the facts. We think a direction to dismiss for want of jurisdiction was error and that it should not stand as a precedent. 7 However, it is clear that the reason underlying the Court of Appeals' decision was that no federal cause of action was established. If this was correct, we should sustain the judgment of reversal, though on other grounds than those stated. 8 The petitioner's problem is to avoid Scylla without being drawn into Charybdis. If its cause of action arises from fraud and deceit, it is a common-law action of which a federal court has no jurisdiction, there being no diversity in citizenship of these parties. But if it arises from being charged rates in excess of those permitted by the Power Act, it is confronted with the exclusive powers of the Commission to determine what those rates are to be. Hence, it is necessary to bring the case into court, not as a fraud action, but as one to enforce the Power Act, using the allegations of fraud to escape the limitations of the Power Commission remedies. I. 9 Petitioner identifies as the source of its cause of action the Federal Power Act's requirement of reasonable electric utility rates,6 which, it contends, creates its legal right to rates which a court may deem reasonable, even if different from those accepted by the Federal Power Commission. It is admitted, however, that a utility could not institute a suit in a federal court to recover a portion of past rates which it simply alleges were unreasonable. It would be out of court for failure to exhaust administrative remedies, for, at any time in the past, it could have applied for and secured a review and, perhaps, a reduction of the rates by the Commission.7 10 Petitioner gives its case a different cast by alleging that by fraudulent abuse of the interlocking relationship its predecessor was deprived of its independence and power to resort to its administrative remedy. 11 But the problem is whether it is open to the courts to determine what the reasonable rates during the past should have been. The petitioner, in contending that they are so empowered, and the District Court, in undertaking to exercise that power, both regard reasonableness as a justiciable legal right rather than a criterion for administrative application in determining a lawful rate. Statutory reasonableness is an abstract quality represented by an area rather than a pinpoint. It allows a substantial spread between what is unreasonable because too low and what is unreasonable because too high. To reduce the abstract concept of reasonableness to concrete expression in dollars and cents is the function of the Commission. It is not the disembodied 'reasonableness' but that standard when embodied in a rate which the Commission accepts or determines that governs the rights of buyer and seller. A court may think a different level more reasonable. But the prescription of the statute is a standard for the Commission to apply and, independently of Commission action, creates no right which courts may enforce. 12 Petitioner cannot separate what Congress has joined together. It cannot litigate in a judicial forum its general right to a reasonable rate, ignoring the qualification that it shall be made specific only by exercise of the Commission's judgment, in which there is some considerable element of discretion. It can claim no rate as a legal right that is other than the filed rate, whether fixed or merely accepted by the Commission, and not even a court can authorize commerce in the commodity on other terms. 13 We hold that the right to a reasonable rate is the right to the rate which the Commission files or fixes, and that, except for review of the Commission's orders, the courts can assume no right to a different one on the ground that, in its opinion, it is the only or the more reasonable one. II. 14 The petitioner here contends that its case is different by reason of its allegations of fraud. Those, the evidence that supports them, and the findings are exceedingly general, and it is not entirely clear whether, in addition to the claim that constructive fraud may be inferred from the intercorporate relationship, specific acts of deceit are found. Nor does it appear to have been thought that the difference between constructive and actual fraud mattered. 15 If the petitioner's grievance arises from active fraud and deceit, it gains nothing from the Federal Act. Such an action would have been maintainable if no Federal Power Act had been enacted. Before the Act, petitioner would have had no statutory right to a reasonable rate, but it did have a common-law right not to be defrauded into paying an excessive or unreasonable one. The Federal Act adds nothing to fraud as an actionable wrong, and, therefore, to find a cause of action of this character would only be to dismiss it for want of diversity. 16 But petitioner's case appears to have rested more heavily and perhaps entirely on constructive fraud presumed from the intercorporate relationship. The Act vests in the Commission power to authorize an interlocking directorate, which otherwise is prohibited, 'upon due showing * * * that neither public nor private interests will be adversely affected thereby.'8 The relationship here concerned had received Commission approval. The effect of the approval is to exempt the relationship from the ban of the Act and remove from it any presumption of fraud that might be thought to arise from its mere existence. It would be a strange contradiction between judicial and administrative policies if a relationship which the Commission has declared will not adversely affect public or private interests were regarded by courts as enough to create a presumption of fraud. Perhaps, in the absence of the Commission's approval, such relationship would be sufficient to raise the presumption under state law, but it cannot do so where the federal supervising authority has expressly approved the arrangement. 17 We need not decide what action the Commission is empowered to take if it believes that a fraud has been committed on itself, for it has taken no action which gives rise to or affects this controversy. III. 18 The entire Court is agreed that the judgment rendered by the District Court cannot stand and all agree that it cannot adjudicate the issues that plaintiff tendered to it. We disagree only as to the consequences of the disability. The majority believe the federal court should dismiss the complaint. A minority urges that we should direct the District Court to refer issues to the Federal Power Commission. 19 It is true that in some cases the Court has directed lower federal courts to stay their hands pending reference to an administrative body of a subsidiary question. Smith v. Hoboken R. R., Warehouse & S.S. Connecting R. Co., 328 U.S. 123, 66 S.Ct. 947, 90 L.Ed. 1123; Thompson v. Texas Mexican R. Co., 328 U.S. 134, 66 S.Ct. 937, 90 L.Ed. 1132; General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 60 S.Ct. 325, 84 L.Ed. 361. But in all those cases the plaintiff below concededly stated a federally cognizable cause of action, to which the referred issue was subsidiary. In no instance have we directed a court to retain a case in which it could not determine a single one of its vital issues. Here the issue of reasonableness of the charges is not one clearly severable from the issues of liability, for the acts charged do not amount to fraud unless there has been an unreasonable charge. Injury is an essential element of remediable fraud. 'Deceit and injury must concur.' Adams v. Clark, 1925, 239 N.Y. 403, 410, 146 N.E. 642, 644. See also Connelly v. Bartlett, 1924, 286 Mass. 311, 315, 190 N.E. 799, 801. 20 If the court is presented with a case it can decide but some issue is within the competence of an administrative body, in an independent proceeding, to decide, comity and avoidance of conflict as well as other considerations make it proper to refer that issue. But we know of no case where the court has ordered reference of an issue which the administrative body would not itself have jurisdiction to determine in a proceeding for that purpose. The fact that the Congress withheld from the Commission power to grant reparations9 does not require courts to entertain proceedings they cannot themselves decide in order indirectly to obtain Commission action which Congress did not allow to be taken directly. There is no indication in the Power Act that that was Congress' intent. 21 It is urged that this leaves petitioner without a remedy under the Power Act. We agree. In that respect, petitioner is no worse off after losing its lawsuit than its customers are if it wins. Unless we are to assume that this company failed to include its buying costs in its selling rates, we must assume that any unreasonable amounts it paid suppliers it collected from consumers. Indeed, this is the assumption made by the Commission in its brief as amicus curiae here.10 It is admitted that, if it recoups again what it has already recouped from the public, there is no machinery in or out of court by which others who have paid unreasonable charges to it can recover.11 22 Under such circumstances, we conclude that, since the case involves only issues which a federal court cannot decide and can only refer to a body which also would have no independent jurisdiction to decide, it must decline the case forthrightly rather than resort to such improvisation. 23 The judgment below is affirmed upon the ground that the petitioner has not established a cause of action. It is so ordered. 24 Judgment of Court of Appeals affirmed. 25 Mr. Justice FRANKFURTER, joined by Mr. Justice BLACK, Mr. Justice REED, and Mr. Justice DOUGLAS, dissenting. 26 The plaintiff, Montana-Dakota Utilities Company, petitioner here, is the successor in interest to several utility companies which distributed electric energy in North and South Dakota. The defendant, Northwestern Public Service Company, served the region to the south of Montana-Dakota's territory. Both corporations have been subject to the Federal Power Act since its enactment in 1935. 49 Stat. 847, 16 U.S.C. § 824 et seq., 16 U.S.C.A. § 824 et seq. The controversy arises out of relations between the two enterprises prior to 1945. The facts which raise the question whether the Federal District Court had jurisdiction to entertain the suit may be briefly summarized. 27 After January 1, 1935, all but one of Montana-Dakota's directors were directors of Northwestern, and all of Montana-Dakota's officers were officers of the other company. These interlocking arrangements received formal authorization by the Federal Power Commission, as required by § 305(b) of the Act. 16 U.S.C. § 825d(b), 16 U.S.C.A. § 825d(b). At different times between 1935 and 1945 contracts were made between the two corporations for the sale of electric energy. All such agreements have to be filed with the Commission, § 205(c), 16 U.S.C. § 824d(c), 16 U.S.C.A. § 824d(c), but the legality of rates so filed is not conditioned upon the Commission's approval. Unless they are challenged, either by an interested party or on the Commission's initiative, the filed rates become the legal rates. Montana-Dakota now claims, in essence, that for a decade Northwestern, by virtue of its control, deprived Montana-Dakota of the rights which that corporation enjoyed uner the Federal Power Act and prevented it from contemporaneously asserting them before the Federal Power Commission. Montana-Dakota was prevented from filing what would have been the lawful rates because Northwestern, as the dominus of Montana-Dakota, filed rates for that company that were less than the reasonable rates to be exacted under the Federal Power Act rates which would have been determined by arm's length dealing between the two companies. Having secured freedom of action and thereby the power to assert its rights, Montana-Dakota brought this suit in the United States District Court for the District of South Dakota to recoup the losses which it claims were thus imposed on it. 28 The defendant moved to dismiss the complaint for want of jurisdiction in that it failed to state a claim under federal law. The motion was denied, 73 F.Supp. 149, and the case went to trial. The District Court found unfair dealing in the circumstances of the interlocking relationship and resulting unreasonableness in the rates, and gave judgment for the plaintiff in the sum of $779,958.30, principal and interest. 29 The Court of Appeals for the Eighth Circuit reversed. It held that the Federal Power Commission 'had jurisdiction and was the proper tribunal in the first instance' to determine the reasonableness of the rates and the bearing of fraud practiced on the Commission in securing permission for the interlocking arrangements and the resulting subversion of rights under the Federal Power Act. The court found that 'The Commission can, no doubt, correct its own mistakes', but it did not specify the administrative remedies it deemed available. It concluded that the District Court was without power to entertain the complaint and ordered it dismissed. 181 F.2d 19, 23. We brought the case here since important issues in the administration of the Federal Power Act are at stake. 340 U.S. 806, 71 S.Ct. 40. 30 Section 317 of the Federal Power Act in its present form confers on the district courts of the United States 'exclusive jurisdiction of violations of this Act or the rules, regulations, and orders thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, this Act or any rule, regulation, or order thereunder.' 49 Stat. 862, 16 U.S.C. § 825p, 16 U.S.C.A. § 825p. There can be no doubt, therefore, that if the complaint, fairly construed in light of the successful determination of the issues, seeks to enforce a duty which the Federal Power Act recognizes, the District Court properly entertained the suit under the jurisdictional provisions of the Act, reinforcing, as they do, the general jurisdictional provisions governing the district courts. See Act of March 3, 1911, § 24(1), (8), 36 Stat. 1091, 1092, 28 U.S.C. §§ 1331, 1337, 28 U.S.C.A. §§ 1331, 1337. 31 The Federal Power Act directs that 'All rates and charges made, demanded, or received by any public utility for or in connection with the transmission or sale of electric energy subject to the jurisdiction of the Commission, and all rules and regulations affecting or pertaining to such rates or charges shall be just and reasonable, and any such rate or charge that is not just and reasonable is hereby declared to be unlawful.' § 205(a), 49 Stat. 851, 16 U.S.C. § 824d(a), 16 U.S.C.A. § 824d(a). 32 We face at the outset the contention that this section confers on the Federal Power Commission authority to award reparations for unreasonable rates collected in the past. Federal railroad rate legislation gave such a power to the Interstate Commerce Commission. Act of Feb. 4, 1887, §§ 9, 16, 24 Stat. 382, 384—385, as amended, 49 U.S.C. §§ 9, 16(1), 49 U.S.C.A. §§ 9, 16(1); cf. Act of Aug. 15, 1921, § 308, 42 Stat. 165, 7 U.S.C. § 209, 7 U.S.C.A. § 209. But it was not given to the Federal Power Commission. It was withheld deliberately. See S.Rep. No. 621, 74th Cong., 1st Sess. 20. Wholesale consumers of electric energy were apparently considered, as a rule, adequately protected by the provisions of the Act authorizing the Commission to grant prospective relief and, in certain circumstances, to order refunding of sums accumulated during the pendency of rate proceedings. §§ 205(e), 206(a), 49 Stat. 852, 16 U.S.C. §§ 824d(e), 824e(a), 16 U.S.C.A. §§ 824d(e), 824e(a). Despite the unqualified statutory declaration that unreasonable rates are unlawful, we think it clear that Congress did not intend either court or Commission to have the power to award reparations on the ground that a properly filed rate or charge has in fact been unreasonably high or low. If that were all the complaint before us showed, we would agree that recovery of damages in a civil action would not be an appropriate remedy, and that the complaint should have been dismissed. 33 But the case before us is very different. Montana-Dakota does not assert merely that the rates fixed and filed for it by the defendant were unreasonable. Montana-Dakota claimed and introduced evidence to show that some contracts required by the Act to be filed were not filed at all; that others were filed months late; and that some were not the bona fide contracts obtained by arm's length negotiation that on their face they appeared to be, but instead were 'conceived and put into operation by the defendant and its aforesaid directors and officers for the purpose of exacting large charges from (Montana-Dakota) for the purpose, among other things, of offsetting charges of (Montana-Dakota) for electrical energy generated in North Dakota and transmitted to and sold to defendant for resale in South Dakota.' See cause 3, V of the complaint. Thus the complaint in substance alleges that Northwestern misled the Commission into approving schedules which would not have been approved had Northwestern complied with the obligations of full and fair disclosure imposed on it by the Federal Power Act. While the complaint does not artistically allege that domination by Northwestern prevented Montana-Dakota from complaining to the Commission that the rates and charges were unreasonable, that is its plain import and the facts were so found at the trial. 34 We are not here concerned with the complaint insofar as it sets forth a common-law cause of action based on misuse of powers by the directors of a controlled corporation. Such an action by itself of course cannot be brought in a federal court in the absence of diversity of citizenship between the parties. But this does not preclude the same circumstances from giving rise to a cause of action that has its roots in the Federal Power Act. As such the controversy does fall within the jurisdiction of a federal court. The essence of this cause of action is that the Federal Power Act imposed on Northwestern the duty to charge and pay reasonable rates in its transactions with Montana-Dakota; and that while under the Act rates appropriately filed are, when unchallenged, the legal rates and deemed to be reasonable, in the circumstances here alleged the schedules and contracts filed were not complete or timely or bona fide. Since it was coercively controlled, Montana-Dakota could neither file rates that were truly reasonable nor protest unreasonable rates filed on its behalf. 35 The Court of Appeals apparently closed the door of the District Court to this suit on the assumption that relief could be had from the Federal Power Commission for the damage flowing from violation of the Federal Power Act. Of course a court would not grant relief, at least in the first instance, if an adequate administrative remedy were available. It is fundamental to federal regulatory legislation that 'no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.' Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50—51, 58 S.Ct. 459, 463, 82 L.Ed. 638. This principle is particularly relevant to rate regulation. Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 33 S.Ct. 916, 57 L.Ed. 1472; Armour & Co. v. Alton R. Co., 312 U.S. 195, 61 S.Ct. 498, 85 L.Ed. 771. Compare Great Northern R. Co. v. Merchants Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943. 36 But we do not find that the Federal Power Act provides administrative remedies to meet the situation before us. We have seen that that Act does not authorize the Commission to award reparations to those subjected to unreasonable rates. The Act likewise does not afford to the Commission the authority conferred on administrative agencies under other regulatory statutes to award damages to those injured by violations of the Act. Compare Act of February 4, 1887, § 9, 24 Stat. 382, 49 U.S.C. § 9, 49 U.S.C.A. § 9; Act of August 15, 1921, § 309(e), 42 Stat. 166, 7 U.S.C. § 210(e), 7 U.S.C.A. § 210(e). The Power Act, it is true, does give the Commission authority to look into past rates in order to determine whether the Act has been violated. § 307(a), 49 Stat. 856, 16 U.S.C. § 825f(a), 16 U.S.C.A. § 825f(a). See Atlantic Coast Line R. Co., v. State of Florida, 295 U.S. 301, 312, 55 S.Ct. 713, 717, 79 L.Ed. 1451. But such an inquiry cannot be made the basis for an administrative award of damages to the victims of the violations. Again, the Commission may, as the Government suggests, have power under the omnibus provisions of § 309 to vacate its approval of a rate when approval has been obtained by fraud. 49 Stat. 858, 16 U.S.C. § 825h, 16 U.S.C.A. § 825h. But this does not authorize the Commission to fix rate orders retrospectively. The Commission may establish rates only 'to be thereafter observed and in force.' § 206(a), 49 Stat. 852, 16 U.S.C. § 824e(a), 16 U.S.C.A. § 824e(a). 37 If the Commission can neither fix rates retrospectively nor award damages, it clearly can afford no adequate remedy to Montana-Dakota. Vacating its acquiescence in the interlocking directorate or in the schedules filed by Northwestern might prevent Northwestern from asserting the approval of the federal agency in an action brought against it under State law; but it would not provide a basis for recovery by the injured party or impose any certain liability on the wrongdoer. We are bound to conclude that the Court of Appeals was in error in thinking that an adequate administrative remedy existed and precluded courts from granting relief. 38 But we cannot agree that the inability of the Federal Power Commission to grant relief requires that courts be similarly disabled. Courts, unlike administrative agencies, are organs with historic antecedents which bring with them well-defined powers. They do not require explicit statutory authorization for familiar remedies to enforce statutory obligations. Texas & N.O.R. Co. v. Brotherhood of Ry. & S. S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034; Virginian R. Co. v. System Federation, No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189. A duty declared by Congress does not evaporate for want of a formulated sanction. When Congress has 'left the matter at large for judicial determination', our function is to decide what remedies are appropriate in the light of the statutory language and purpose and of the traditional modes by which courts compel performance of legal obligations. See Board of Com'rs of Jackson County v. United States, 308 U.S. 343, 351, 60 S.Ct. 285, 288, 84 L.Ed. 313. If civil liability is appropriate to effectuate the purposes of a statute, courts are not denied this traditional remedy because it is not specifically authorized. Texas & Pac. R. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874; 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; cf. De Lima v. Bidwell, 182 U.S. 1, 21 S.Ct. 743, 45 L.Ed. 1041. 39 That civil liability is an appropriate remedy in the situation before us is attested alike by the words of the statute, by the force of familiar principles of liability, and by practical considerations in carrying out legislative objectives. 40 The Power Act is explicit that any 'rate or charge that is not just and reasonable is hereby declared to be unlawful.' § 205(a), 49 Stat. 851, 16 U.S.C. § 824d(a), 16 U.S.C.A. § 824d(a). The aim of Congress would be needlessly aborted if this 'definite statutory prohibition of conduct' did not impose civil liability in a situation not covered by administrative remedies merely because no judicial relief was explicitly authorized. Compare Texas & N.O.R. Co. v. Brotherhood of Ry. & S.S. Clerks, supra, 281 U.S. at page 568, 50 S.Ct. at page 433. The right of civil recovery by persons compelled to pay unreasonable or discriminatory rates to common carriers is one of the oldest forms of relief in our law. Western Union Tel. Co. v. Call Publishing Co., 181 U.S. 92, 21 S.Ct. 561, 45 L.Ed. 765. To enforce a remedy for collection of unreasonable charges in the situation before us, therefore, would recognize deeply-rooted law; to deny it would be inconsistent with long-established judicial practice. The experience of the Commission indicates that the statute itself, by virtue of the positive duties it commands, under normal circumstances is very largely its own sanction.1 Want of explicitness in providing a familiar remedy for the rare case of disobedience should not be construed a denial of it. 41 To leave relief to the diverse and conflicting State law dealing with intercorporate relations would make for conflicting local administration of an important national problem. This Court has recently shown marked reluctance to leave to the States determination of even State law questions involved in the administration of the Federal Power Act. First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143. What is involved here—the frustration, by misuse of the machinery of the Federal Power Act, of the command of Congress that rates be reasonable—has a federal character and significance. We do not think it likely that Congress intended that there should be no relief for this kind of tampering with the federal regulatory scheme other than that which might be afforded by the corporation law of the forty-eight States. 42 We could attribute such a purpose to Congress only if to allow civil relief in the situation before us would interfere with the administrative remedies contemplated under the Act, or impose on courts alien responsibilities or duties they are not equipped to fulfill. No such consequence is remotely involved in utilizing this age-old remedy. The statute is based on the assumption that unlawful rates will ordinarily be promptly corrected at the initiative of injured parties permitted to resort to the Commission for prospective relief. § 306, 49 Stat. 856, 16 U.S.C. § 825e, 16 U.S.C.A. § 825e. That procedure is not available when the wrong asserted is that the defendant corporation has established unlawful schedules by fraudulent domination of the utility with which it transacts business. To grant judicial relief for such a wrong will not interfere with the remedial procedure to which the Act confines corporations which are their own masters. 43 Nor will it transfer to the courts responsibility for deciding questions which should properly be presented to the Power Commission. In a variety of situations we have recently emphasized the principle that courts and agencies 'are to be deemed collaborative instrumentalities of justice'. United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 1005, 85 L.Ed. 1429; Id., 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211; Palmer v. Commonwealth of Massachusetts, 308 U.S. 79, 60 S.Ct. 34, 84 L.Ed. 93. To that end it is established practice that courts may entertain actions brought before them, but call to their aid the appropriate administrative agency on questions within its administrative competence. See Smith v. Hoboken R.R., Warehouse & S.S. Connecting R. Co., 328 U.S. 123, 66 S.Ct. 947, 90 L.Ed. 1123; Thompson v. Texas Mexican R. Co., 328 U.S. 134, 66 S.Ct. 937, 90 L.Ed. 1132; cf. United States Alkali Export Ass'n v. United States, 325 U.S. 196, 210, 65 S.Ct. 1120, 1128, 89 L.Ed. 1554. In the El Dorado Oil Works litigation we held that proper procedure required the District Court to entertain a suit on a contract but to look to the Interstate Commerce Commission for guidance as to transportation practices involved in carrying out the contract. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433, 60 S.Ct. 325, 331, 84 L.Ed. 361; El Dorado Oil Works v. United States, 328 U.S. 12, 66 S.Ct. 843, 90 L.Ed. 1053. The fact that the Federal Power Commission is not itself authorized to award damages does not disable it from advising a court on questions on which its judgment is needed. See United States v. Morgan, supra; Atlantic Coast Line R. Co. v. State of Florida, supra, 295 U.S. at page 312, 55 S.Ct. at page 717. We see no reason why the Commission's findings should not be sought here. 44 We think, therefore, that a cause of action within the jurisdiction of the district courts is stated by a complaint charging a distributor of electric energy at wholesale in interstate commerce (1) with buying or selling at unreasonable rates, (2) with failure to comply with procedural requirements of the Federal Power Act, and (3) with preventing others from resorting to the remedies afforded by that Act. In such cases the district court should stay proceedings and request determination by the Federal Power Commission of matters within the Commission's special competence. It is within the Commission's demain to rule whether filed rates should not, in view of all relevant circumstances, be considered 'reasonable' rates. It also falls to the Commission to decide what would have been the reasonable rates. The opinion of the Commission, being 'only a preliminary, interim step' towards final judgment, would not be a reviewable order under § 313(b) of the Act, but would be reviewed only as a part of the judgment entered by the district court. Federal Power Comm. v. Hope Natural Gas Co., 320 U.S. 591, 618, 619, 64 S.Ct. 281, 295, 88 L.Ed. 333. 45 The objections raised to this procedure have apparently not been considered substantial by the Federal Power Commission, the body primarily charged with administration of the Act.2 We do not think they should prevail. The function of the District Court is not simply to serve as a facade behind which the Commission is enabled to accomplish indirectly what it cannot do directly. Certain issues of fact—the completeness of disclosure, for instance, or the loyalties of the directors—are properly for the court. Action by the court may similarly be required in determining the appropriate disposition of the fund. See Federal Power Comm. v. Interstate Natural Gas Co., 336 U.S. 577, 66 S.Ct. 775, 93 L.Ed. 895; Interstate Natural Gas Co. v. Federal Power Comm., 5 Cir., 181 F.2d 833. Recovery by Montana-Dakota need not be a windfall to that company. Many changes in costs charged utilities are not reflected in prices they may collect. Compare St. Louis & O'Fallon R. Co. v. United States, 279 U.S. 461, 488, 505—509, 49 S.Ct. 384, 388, 395, 396, 73 L.Ed. 798 (Mr. Justice Brandeis, dissenting). To the extent that Montana-Dakota has passed on its loss to its customers, they may be permitted recovery from it on well-established principles of unjust enrichment. And even if the effect of awarding relief is ultimately to benefit Montana-Dakota, it certainly has a better claim to the exacted funds than Northwestern. The procedure here outlined is not unlike that which the Court employed in United States v. Morgan, supra, where a similar demand was made on the resourcefulness of law to find a remedy to meet an unusual situation. Such a remedy not only defeats unjust enrichment as between private parties. This is accomplished in the public interest of effectuating the Federal Power Act. 46 Because we conclude that the District Court, while correct in refusing to dismiss the complaint, should have asked the Federal Power Commission to determine matters peculiarly within its competence and report its finding to that court, we think the case should be remanded to that court for further proceedings not inconsistent with this opinion. We do not, of course, intimate any opinion as to the sufficiency of the evidence to support the conclusion that the filed rates in this case should not be deemed lawful. Nor would we restrict any appropriate use the Commission might wish to make of evidence adduced at the trial. 1 41 Stat. 1063, 49 Stat. 838, 62 Stat. 275, 16 U.S.C. §§ 791a—825r, 16 U.S.C.A. §§ 791a—825r. 2 28 U.S.C. § 1331. 3 28 U.S.C. § 1337. 4 Not reported. 5 181 F.2d 19. 6 Section 205(a) of the Act, 49 Stat. 851, 16 U.S.C. § 824d(a), 16 U.S.C.A. § 824d(a), states that: 'All rates and charges * * * and all rules and regulations affecting or pertaining to such rates or charges shall be just and reasonable, and any such rate or charge that is not just and reasonable is hereby declared to be unlawful.' 7 § 206(a), 49 Stat. 852, 16 U.S.C. § 824e(a), 16 U.S.C.A. § 824e(a). 8 § 305, 49 Stat. 856, 16 U.S.C. § 825d(b), 16 U.S.C.A. § 825d(b). 9 S.Rep.No.621, 74th Cong., 1st Sess. 20. 10 Brief for the Federal Power Commission as amicus curiae, pp. 13—14. 11 Id., pp. 14—17. 1 Data supplied by the Commission show that rate reductions proposed by utilities invariably become effective as filed. More that half of the rate increases likewise become effective automatically as filed. Those which are suspended by the Commission are as a general rule withdrawn, modified, or approved after informal conferences between the parties and the Commission's staff. 2 In its brief here the Commission urged adoption of substantially the ground set forth in this opinion.

89

341 U.S. 322 71 S.Ct. 758 95 L.Ed. 969 NATIONAL LABOR RELATIONS BOARDv.HIGHLAND PARK MFG. CO. No. 425. Argued April 23, 1951. Decided May 14, 1951. Mr. Mozart G. Ratner, Washington, D.C., for petitioner. Mr. Whiteford S. Blakeney, Charlotte, N.C., for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 The National Labor Relations Board entertained a complaint by the Textile Workers Union of America against respondent, Highland Park Manufacturing Company, and ordered respondent to bargain with that Union. At all times relevant to the proceedings, the Textile Workers Union was affiliated with the Congress of Industrial Organizations and, while the Textile Workers Union officers had filed the non-Communist affidavits pursuant to statute, the officers of the C.I.O. at that time had not. The statute provides that 'No investigation shall be made by the Board * * *, 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 * * * by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constitutent unit that he is not a member of the Communist Party (etc.).' § 9(h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 61 Stat. 146, 29 U.S.C. (Supp. III), § 159(h), 29 U.S.C.A. § 159(h). (Italics added.) The order was challenged upon the grounds, among others, that the failure of the C.I.O. officers to file non-Communist affidavits disabled its affiliate, the Textile Workers Union, and the Board could not entertain their complaint and enter the order. 2 The general counsel of the Board had ruled that the Board could not entertain a complaint under these circumstances; but the Board, with one member dissenting, overruled him, for reasons stated in Matter of Northern Virginia Broadcasters, 75 N.L.R.B. 11. The Court of Appeals for the District of Columbia Circuit reached the same conclusion as the Board in West Texas Utilities Co. v. National Labor Relations Board, 87 U.S.App.D.C. 179, 184 F.2d 233. The Court of Appeals for the Fourth Circuit in this case, 184 F.2d 98, and the Court of Appeals for the Fifth Circuit in National Labor Relations Board v. Postex Cotton Mills, 181 F.2d 919, arrived at a contrary result, holding that the Board could not entertain the complaint. The conflicting results are each so well-considered and so throughly documented in opinions already appearing in the books that little could be added to either. We agree with the conclusions of the Fourth and Fifth Circuits. 3 The definition of 'labor union' in the statute concededly includes the C.I.O. It is further conceded that the phrase 'labor organization national or international in scope' as found in § 10(c) refers to the A.F. of L. and C.I.O. (Italics added.) But it is claimed that when the adjectives 'national' or 'international' are alone added, they exclude the C.I.O., because it is regarded in labor circles as a federation rather than a national or international union. We think, however, that the use of geographic terms to reach nation-wide or more than nation-wide unions does not exclude those of some particular technical structure. The C.I.O., being admittedly a labor union and one of nation-wide jurisdiction, operation and influence, is certainly in the speech of people a national union, whatever its internal composition. If Congress intended geographic adjectives to have a structural connotation or to have other than their ordinarily accepted meaning, it would and should have given them a special meaning by definition. 4 The language in its ordinarily accepted sense is consistent with the context and purpose of the Act, which we have defined at length in American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. As the Court of Appeals for both the Fourth and Fifth Circuits has said, the congressional purpose was to 'wholly eradicate and bar from leadership in the American labor movement, at each and every level, adherents to the Communist party and believers in the unconstitutional overthrow of our Government.' 181 F.2d 919, 920; 184 F.2d 98, 101. It would require much clearer language of exemption to justify holding that the very top levels of influence and actual power in the labor movement in this country were untouched while only the lower levels were affected. 5 The further contention is advanced by the Board that the administrative determination that a petitioning labor organization has complied with the Act is not subject to judicial review at the instance of an employer in an unfair labor practice proceeding. If there were dispute as to whether the C.I.O. had filed the required affidavits or whether documents filed met the statutory requirements and the Board had resolved that question in favor of the labor organizations, a different question would be presented. But here there is no question of fact. While the C.I.O. officers have since filed the affidavits, they were not on file at any time relevant to this proceeding. 6 It would be strange indeed if the courts were compelled to enforce without inquiry an order which could only result from proceedings that, under the admitted facts, the Board was forbidden to conduct. The Board is a statutory agency, and, when it is forbidden to investigate or entertain complaints in certain circumstances, its final order could hardly be valid. We think the contention is without merit and that an issue of law of this kind, which goes to the heart of the validity of the proceedings on which the order is based, is open to inquiry by the courts when they are asked to lend their enforcement powers to an administrative tribunal. 7 Judgment affirmed. 8 Mr. Justice BLACK took no part in the consideration or decision of this case. 9 Mr. Justice FRANKFURTER, dissenting. 10 Congress, of course, could have exacted affidavits of nonmembership in Communist organizations from the officers of all local unions, of all nationals and internationals of which locals are constituents, and of all the federated organizations—i.e., the C.I.O. and the A.F. of L.—of which national and international organizations are members. To carry out such a purpose it could have been explicit. It could also have used some colloquially all-embracing term such as the phrase 'national or international in scope' which it in fact did employ in § 10(c) of the Act. Congress did not choose to express its will in either of these unequivocal forms. Instead it used the phrase 'national or international labor organization.' 11 The fact that the phrase 'national or international labor organization' consists of ordinary English words, which to the ordinary ear may carry a meaning different from that which they carry in the domain of industrial relations, does not destroy our duty to determine whether they do have a technical meaning when used in regard to matters of industrial relations. See the decision, per Holmes, J., in Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 73 L.Ed. 170. The Taft-Hartley Act is not an abstract document to be construed with only the aid of a standard dictionary. Its sponsors were familiar with labor organization and labor problems and it was doubtless drawn by specialists in labor relations. If they used terms having a special meaning within the field, such words of art, in the absence of contrary indications, must be given that meaning. 12 The best source for us in determining whether a term used in the field of industrial relations has a technical connotation is the body to which Congress has committed the administration of the statute. Certainly, if there is no reasonable ground for rejecting the determination of the National Labor Relations Board, its view should not be rejected. We are advised by the Board that 'national and international organization' is a term of art referring to the autonomous national and international organizations of workers which in federation constitute the C.I.O. and the A.F. of L. 'We are familiar with no use of the term 'national or international labor organization' which includes parent federations such as the AFL or the CIO within its meaning. On the contrary, every definition or description of the structure of these two federations clearly indicates that the AFL and the CIO are different from 'national' or 'international' labor organizations.' Northern Virginia Broadcasters, Inc., 75 N.L.R.B. 11, 13. Nothing called to our attention has put in question this authoritative finding by the National Labor Relations Board. We ought not, therefore, to reject it. 13 Mr. Justice DOUGLAS, dissenting. 14 I see no answer to the analysis of Mr. Justice FRANKFURTER if objectivity is our standard and if the expertise of administrative agencies is to continue as our guide. In situations no more difficult than this we have taken the administrative construction of statutory words. Until today the test has been not whether the construction would be our own if we sat as the Board, but whether it has a reasonable basis in custom, practice, or legislative history. See Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301; National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170. 15 Of course the C.I.O. is at times a 'national or international labor organization' within the meaning of the Act. The Board so held in American Optical Co., 81 N.L.R.B. 453. In that case the petitioning labor organization was an 'organizing committee' of the C.I.O. over which the C.I.O. had control comparable to the power a 'national or international' union exercises over its constituent unions. The same would be true of local unions directly chartered by the C.I.O. If one of those unions had filed the complaint against respondent, then the C.I.O. would have to file the affidavits, since it would be in the relation of a 'national or international labor organization' to that dispute. A labor organization which has that relation to a dispute has the power and control at which the affidavit provision is aimed. If we took, as we customarily do, the administrative construction of the words Congress used, we would hold that the C.I.O. must file the affidavits only when in the dispute before the Board it stands, as it sometimes does, in the position of 'national or international labor organization'—to use the parlance of the trade. But that is a different case from the one before us.

23

341 U.S. 329 71 S.Ct. 777 95 L.Ed. 993 PANHANDLE EASTERN PIPE LINE CO.v.MICHIGAN PUBLIC SERVICE COMMISSION et al. No. 486. Argued April 23, 1951. Decided May 14, 1951. Mr. Robert P. Patterson, New York City, for appellant. Mr. Edmund E. Shepherd, Lansing, Mich., for appellee Michigan Public Service Comm. Mr. Donald R. Richberg, Washington, D.C., for appellee Michigan Consolidated Gas Co. Mr. Justice MINTON delivered the opinion of the Court. 1 This is an appeal from the affirmance of an order of the Michigan Public Service Commission requiring appellant to obtain a certificate of public convenience and necessity before selling natural gas direct to industrial consumers in a municipality already served by a public utility. 2 Appellant is engaged in the transportation of natural gas by pipe line from fields in Texas, Oklahoma and Kansas into areas which include the State of Michigan. Appellant is a 'natural gas company' within the coverage of the Natural Gas Act, 52 Stat. 821, 15 U.S.C. § 717 et seq., 15 U.S.C.A. § 717 et seq., and subject thereunder to regulation by the Federal Power Commission. Appellee Michigan Consolidated Gas Company is a public utility of Michigan which under appropriate authorization distributes gas to domestic, commercial and industrial consumers in and around Detroit. Consolidated obtains its entire supply of natural gas for distribution in the Detroit district from appellant. 3 In 1945, appellant publicly announced a program of securing large idnustrial customers for the direct sale of natural gas in Michigan. In Detroit it offered to pay the City for the right to lay and operate its pipe line along the streets and alleys directly to large industrial customers. In October of that year appellant succeeded in securing a large direct-sale contract with the Ford Motor Company for gas at its Dearborn plant, located in the Detroit district. Ford was already purchasing substantial quantities of gas for industrial use at the Dearborn plant from Consolidated. 4 Believing its interests and those of its customers were prejudiced by appellant's program, particularly the Ford contract, Consolidated filed a complaint with the Michigan Public Service Commission. Appellant appeared to contest the jurisdiction of the Commission over such sales. After hearing, the Commission ordered appellant to—'cease and desist from making direct sales and deliveries of natural gas to industries within the State of Michigan, located within municipalities already beng served by a public utility, until such time as it shall have first obtained a certificate of public convenience and necessity from this Commission to perform such service.'1 5 Appellant obtained an injunction against the order of the Commission in the Circuit Court of Ingham County, Michigan. The Circuit Court held that the order was a prohibition of interstate commerce and therefore invalid. The Supreme Court of Michigan, three judges dissenting, reversed the Circuit Court and affirmed the Commission's order. 328 Mich. 650, 44 N.W.2d 324. That court rejected the argument that the order of the Commission was an absolute denial of the right of appellant to sell natural gas in Michigan direct to consumers. Since appellant was free to make application to the Michigan Commission for a certificate of public convenience and necessity as to such sales, the order was construed as denying the right of appellant to sell direct without first obtaining such certificate. The court held this requirement to be within the State's regulatory authority despite the interstate character of the sales. This appeal challenges the correctness of that decision. 6 The sale to industrial consumers as proposed by appellant is clearly interstate commerce. Panhandle Eastern Pipe Line Co. v. Public Service Comm. of Indiana, 332 U.S. 507, 513, 68 S.Ct. 190, 193, 92 L.Ed. 128; Pennsylvania Gas Co. v. Commission, 252 U.S. 23, 28, 40 S.Ct. 279, 280, 64 L.Ed. 434. But the sale and distribution of gas to local consumers made by one engaged in interstate commerce is 'essentially local' in aspect and is subject to state regulation without infringement of the Commerce Clause of the Federal Constitution, article 1, § 8, cl. 3. In the absence of federal regulation, state regulation is required in the public interest. Pennsylvania Gas Co. v. Commission, supra, 252 U.S. at page 31, 40 S.Ct. at page 281, 64 L.Ed. 434. See also opinion of Cardozo, J., in Pennsylvania Gas Co. v. Public Service Commission, 225 N.Y. 397, 122 N.E. 260. These principles apply to direct sales for industrial consumption as well as to sales for domestic and commercial uses. Panhandle-Indiana, supra, 332 U.S. at pages 514, 519—520, 68 S.Ct. at pages 193, 196, 92 L.Ed. 128. 7 The facts in the instant case show that the proposed sales are primarily of local interest. They emphasize the need for local regulation and the wisdom of the principles just discussed. To accommodate its operations, appellant proposes to use the streets and alleys of Detroit and environs. A local utility already operating in the same area, Consolidated, receives its entire supply of natural gas from appellant. A substantial portion of Consolidated's revenues is derived from sales to large industrial consumers. Appellant ignored requests of Consolidated for additional gas to meet the increased wants of its industrial customers. Instead of attempting to meet increased needs through Consolidated, appellant launched a program to secure for itself large industrial accounts from customers, some of whom were already being served by Consolidated. In connection with the Ford Motor Company, it is noteworthy that the tap line by which appellant proposed to serve Ford directly would be substantially parallel to and only a short distance from the existing tap line by which Consolidated now serves Ford. 8 Thus, not only would there be two utilities using local facilities to accommodate their distribution systems, but they would be seeking to serve the same industrial consumers. Appellant asserts a right to compete for the cream of the volume business without regard to the local public convenience or necessity. Were appellant successful in this venture, it clearly presents a situation of 'essentially Consolidated's over-all costs of service and its rates to customers whose only source of supply is Consolidated. This clearly preents a situation of 'essentially local' concern and of vital interest to the State of Michigan. 9 Of course, when Congress acts in this field it is supreme. It has acted. Section 1(b) of the Natural Gas Act, supra, provides as follows: 10 'The provisions of this 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 for domestic, commercial, industrial, or any other use, 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 or to the production or gathering of natural gas.' 11 By this Act Congress occupied only a part of the field. As to sales, only the sale of gas in interstate commerce for resale was covered. Direct sales for consumptive use were designedly left to state regulation. Panhandle-Indiana, 332 U.S. at pages 516—518, 68 S.Ct. at pages 194, 196, 92 L.Ed. 128. Speaking further of the division of regulatory authority over interstate commerce in natural gas, this Court said in the same case: 12 'It would be an exceedingly incongruous result if a statute so motivated, designed and shaped to bring about more effective regulation, and particularly more effective state regulation, were construed in the teeth of those objects, and the import of its wording as well, to cut down regulatory power and to do so in a manner making the states less capable of regulation than before the statute's adoption. Yet this, in effect, is what appellant asks us to do. For the essence of its position, apart from standing directly on the commerce clause, is that Congress by enacting the Natural Gas Act has 'occupied the field,' i.e., the entire field open to federal regulation, and thus has relieved its direct industrial sales of any subordination to state control. 13 'The exact opposite is the fact. Congress, it is true, occupied a field. But it was meticulous to take in only territory which this Court had held the states could not reach. That area did not include direct consumer sales, whether for industrial or other uses. Those sales had been regulated by the states and the regulation had been repeatedly sustained. In no instance reaching this Court had it been stricken down. 14 'The Natural Gas Act created an articulate legislative program based on a clear recognition of the respective responsibilities of the federal and state regulatory agencies. It does not contemplate ineffective regulation at either level. We have emphasized repeatedly that Congress meant to create a comprehensive and effective regulatory scheme, complementary in its operation to those of the states and in no manner usurping their authority. * * * And, as was pointed out in Federal Power Comm. v. Hope Natural Gas Co., 320 U.S. (591) at page 610, 64 S.Ct. (281) at page 291 (88 L.Ed. 333), 'the primary aim of this legislation was to protect consumers against exploitation at the hands of natural gas companies.' The scheme was one of co-operative action between federal and state agencies. It could accomplish neither that protective aim nor the comprehensive and effective dual regulation Congress had in mind, if those companies could divert at will all or the cream of their business to unregulated industrial uses.' 332 U.S. at pages 519, 520—521, 68 S.Ct. at pages 196—197, 92 L.Ed. 128. 15 The statutory scheme of 'dual regulation' might have some overlaps or conflicts but no such exigencies appear here. There are no opposing directives and hence no necessity for us to resolve any conflicting claims as between state and federal regulation. 16 Appellant concedes, as it must, that direct sales by it to industrial consumers are subject to state rate regulation under the Panhandle-Indiana decision. It contends, however, that that decision does not comprehend its problem, reasoning that the jurisdiction here asserted by the Michigan Commission is the power to prohibit interstate commerce in natural gas. 17 Although the end result might be prohibition of particular direct sales, to require appellant to secure a certificate of public convenience and necessity before it may enter a municipality already served by a public utility is regulation, not absolute prohibition. There is no intimation that appellant cannot deliver and sell available gas to Consolidated for resale to customers who have additional gas requirements. It is no discrimination against interstate commerce for Michigan to require appellant to route its sales of gas through the existing certificated utility where the public convenience and necessity would not be served by direct sales. That there is neither discrimination nor prohibition here saves this regulation from the rule of such cases as Hood & Sons v. DuMond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865, relied on by appellant, where a state was said to have discriminated against interstate commerce by prohibiting it because it would subject local business to competition. And the statute under which the Michigan Commission acted does not distinguish between an interstate or intrastate agency desiring to operate in a locality already served by a utility.2 See Cities Service Co. v. Peerless Co., 340 U.S. 179, 188, 71 S.Ct. 215, 220. 18 It does not follow that because appellant is engaged in interstate commerce it is free from state regulation or free to manage essentially local aspects of its business as it pleases. The course of this Court's decisions recognizes no such license. See Cities Service case, supra; Panhandle-Indiana case, supra; Pennsylvania Gas Co. v. Public Service Commission, 252 U.S. 23, 40 S.Ct. 279, 64 L.Ed. 434. Such a course would not accomplish the effective dual regulation Congress intended, and would permit appellant to prejudice substantial local interests. This is not compelled by the Natural Gas Act or the Commerce Clause of the Constitution. 19 Judgment affirmed. 20 Mr. Justice FRANKFURTER, whom Mr. Justice DOUGLAS joins, dissenting. 21 Panhandle seeks to sell natural gas from its fields in Texas, Oklahoma and Kansas directly to the Ford Motor Company at its Dearborn plant in Michigan. Concededly this is the clearest kind of interstate commerce. We have not here in controversy Panhandle's desire to lay pipes in the public highways of Michigan and the power of Michigan to make exactions for such privileges so long as it does not offend the doctrine of unconstitutional conditions. Michigan here is asserting a wholly different claim. The State claims the right to say whether an out-of-State seller may be permitted to compete with Michigan distributors in the sale of natural gas to Michigan industrial consumers. Michigan says that it may determine that the local market is saturated and that, since the entry of an out-of-State distributor may disadvantage or disrupt the local market, it may deny him leave to make such sales. 22 The right here asserted by Michigan to prohibit Panhandle from furnishing gas directly to consumers has, since 1938, by virtue of the Natural Gas Act, been lodged in the Federal Power Commission. We are advised by the Commission that it has exercised in multitudinous instances authority over transportation for direct sale to consumers. 'It is, of course, true,' adds the Commission, 'that a state certificate authorizing an interstate sale to an industrial consumer would be meaningless if the Federal Commission can deny a certificate for the necessary transportation facility, and vice versa.' If this means anything it means that the control which Michigan here claims is within the effective authority of the Federal Power Commission. The Federal Power Commission may deny a certificate for transportation of gas by Panhandle to the Ford Motor Company for the same reasons that Michigan would rely upon in withholding a certificate of convenience and necessity to Panhandle to sell its gas to Ford. Questions of conservation, of market stability, of cutthroat competition and the like would be relevant factors in one case as well as in the other. The Commission is clear that the power of Michigan is subordinate to its authority, so that Michigan could not frustrate the Commission's authority in granting or denying to Panhandle the right to enter Michigan for direct sale to consumers. 23 The inference to be drawn from the Commission's position is that, since Panhandle needs the Commission's certificate for the physical transportation of the gas to Ford, it cannot in any event make such sale to Ford prior to the issuance of the certificate. Howsoever this be, the Court has placed the case in a different focus. It is suggested that until there is an actual clash between an order of the Commission and the order now assailed there is a vacuum which Michigan may enter. No doubt Congress could give the States authority over such a field of interstate commerce and deny it to the Commission or give it to the States until supplanted by Commission action. It has done neither. The problem therefore remains what it was under the law of the Commerce Clause before the enactment of the Natural Gas Act. 24 The problem does not disappear by invoking a solving phrase, 'regulation, not absolute prohibition.' The Commerce Clause sought to put an end to the economic autarchy of the States. It is not for Michigan to determine what competition she will or will not allow from without, subject, of course, to her right to protect those State interests which are implied by the now threadbare phrase that interstate commerce must also pay its way, or to protect local interests that only incidentally or insignificantly touch interstate or foreign commerce. E.g., Union Brokerage Co. v. Jensen, 322 U.S. 202, 64 S.Ct. 967, 88 L.Ed. 1227. 25 If there were no Constitution with a Commerce Clause each State could shut out the products of other States or admit them on conditions. Under the Constitution such commerce belongs not to the States but to Congress. It is not for the States, in pursuit of local State policies, to decide what products from without may cross State boundaries or admit them on condition that they satisfy local economic policy. If as a matter of national policy States are to have such power, Congress must give it to them, as it did in the case of liquor, prison-made goods, and insurance. See Act of Aug. 8, 1890, 26 Stat. 313, 27 U.S.C. § 121, 27 U.S.C.A. § 121; Act of July 24, 1935, 49 Stat. 494; Act of Aug. 10, 1939, 53 Stat. 1391, 26 U.S.C. § 1606(a); Act of Mar. 9, 1945, 59 Stat. 34, 15 U.S.C. § 1012(b), 15 U.S.C.A. § 1012(b). 26 Against the inherent right of a State to keep out except by its leave the products or services from other States, the decisions in Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623, and Bush & Sons Co. v. Maloy, 267 U.S. 317, 45 S.Ct. 326, 69 L.Ed. 627, seem to me decisive. 27 What Mr. Justice Brandeis, speaking for the entire Court, excepting only Mr. Justice McReynolds, said in the Buck case defines the situation here. There, as here, the Court was confronted with a State statute requiring a certificate of convenience and necessity. The regulation related to passenger and freight busses. There was no outright prohibition, but of course such a system of certification is based on the duty of denying access to the market if the community is already adequately served. Such a scheme 'determines whether the prohibition shall be applied by resort, through state officials, to a test which is peculiarly within the province of the federal action—the existence of adequate facilities for conducting interstate commerce. * * * Thus, the provision of the Washington statute is a regulation, not of the use of its own highways, but of interstate commerce. Its effect upon such commerce is not merely to burden but to obstruct it. Such state action is forbidden by the Commerce Clause.' 267 U.S. at page 316, 45 S.Ct. at page 326, 69 L.Ed. 623. 28 It is easy to mock or minimize the significance of 'free trade among the states', Baldwin v. G.A.F. Seelig, 294 U.S. 511, 526, 55 S.Ct. 497, 501, 79 L.Ed. 1032, which is the significance given to the Commerce Clause by a century and a half of adjudication in this Court. With all doubts as to what lessons history teaches, few seem clearer than the beneficial consequences which have flowed from this conception of the Commerce Clause. It is true of this principle, as of others, that the principle is not to be reduced to the appeal of the particular instance in which it is invoked. 1 The Commission acted under authority of Mich.Comp.Laws, 1948, § 460.502, which provides: 'Sec. 2. No public utility shall hereafter begin the construction or operation of any public utility plant or system thereof nor shall it render any service for the purpose of transacting or carrying on a local business either directly, or indirectly, by serving any other utility or agency so engaged in such local business, in any municipality in this state where any other utility or agency is then engaged in such local business and rendering the same sort of service, or where such municipality is receiving service of the same sort, until such public utility shall first obtain from the commission a certificate that public convenience and necessity requires or will require such construction, operation, service, or extension.' Other relevant sections of the Michigan statute provide: 'Sec. 3. Before any such certificate of convenience and necessity shall issue, the applicant therefor shall file a petition with the commission stating the name of the municipality or municipalities which it desires to serve and the kind of service which it proposes to render, and that the applicant has secured the necessary consent or franchise from such municipality or municipalities authorizing it to transact a local business.' § 460.503. 'Sec. 5. In determining the question of public convenience and necessity the commission shall take into consideration the service being rendered by the utility then serving such territory, the investment in such utility, the benefit, if any, to the public in the matter of rates and such other matters as shall be proper and equitable in determining whether or not public convenience and necessity requires the applying utility to serve the territory. * * *' § 460.505. 2 See note 1, supra.

910

341 U.S. 384 71 S.Ct. 745 95 L.Ed. 1035 SCHWEGMANN BROS. et al.v.CALVERT DISTILLERS CORP. SCHWEGMANN BROS. et al. v. SEAGRAM DISTILLERS CORP. Nos. 442, 443. Argued April 9—10, 1951. Decided May 21, 1951. Rehearing Denied June 4, 1951. See 341 U.S. 956, 71 S.Ct. 1011. On Writs of Certiorari to the United States Court of Appeals for the Fifth Circuit. Messrs. Saul Stone, John Minor Wisdom, New Orleans, La., for petitioners. Mr. Monte M. Lemann, New Orleans, La., for respondents. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Respondents, Maryland and Delaware corporations, are distributors of gin and whiskey. They sell their products to wholesalers in Louisiana, who in turn sell to retailers. Respondents have a price-fixing scheme whereby they try to maintain uniform retail prices for their products. They endeavor to make retailers sign price-fixing contracts under which the buyers promise to sell at not less than the prices stated in respondents' schedules. They have indeed succeeded in getting over one hundred Louisiana retailers to sign these agreements. Petitioner, a retailer in New Orleans, refused to agree to the price-fixing scheme and sold respondents' products at a cut-rate price. Respondents thereupon brought this suit in the District Court by reason of diversity of citizenship to enjoin petitioner from selling the products at less than the minimum prices fixed by their schedules. 2 It is clear from our decisions under the Sherman Act, 26 Stat. 209, 15 U.S.C.A. §§ 1—7, 15 note, that this interstate marketing arrangement would be illegal, that it would be enjoined, that it would draw civil and criminal penalties, and that no court would enforce it. Fixing minimum prices, like other types of price fixing, is illegal per se. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 71 S.Ct. 259. Resale price maintenance was indeed struck down in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502. The fact that a state authorizes the price fixing does not, of course, give immunity to the scheme, absent approval by Congress. 3 Respondents, however, seek to find legality for this marketing arrangement in the Miller-Tydings Act enacted in 1937 as an amendment to § 1 of the Sherman Act. 50 Stat. 693, 15 U.S.C. § 1, 15 U.S.C.A. § 1. That amendment provides in material part that 'nothing herein contained shall render illegal, contracts or agreements prescribing minimum prices for the resale' of specified commodities when 'contracts or agreements of that description are lawful as applied to intrastate transactions' under local law.1 (Italics added.) 4 Louisiana has such a law. Act No. 13 of 1936, La.Gen.Stat. §§ 9809.1 et seq., LSA—RS 51:391 et seq. It permits a 'contract' for the sale or resale of a commodity to provide that the buyer will not resell 'except at the price stipulated by the vendor.' The Louisiana statute goes further, It not only allows a distributor and retailer to make a 'contract' fixing the resale price; but once there is a pricefixing 'contract,' known to a seller, with any retailer in the state, it also condemns as unfair competition a sale at less than the price stipulated even though the seller is not a party to the 'contract.'2 In other words, the Louisiana statute enforces price fixing not only against parties to a 'contract' but also against nonsigners. So far as Louisiana law is concerned, price fixing can be enforced against all retailers once any single retailer agrees with a distributor on the resale price. And the argument is that the Miller-Tydings Act permits the same range of price fixing. 5 The argument is phrased as follows: the present action is outlawed by the Sherman Act—the Miller-Tydings Act apart—only if it is a contract, combination, or conspiracy in restraint of trade. But if a contract or agreement is the vice, then by the terms of the Miller-Tydings Act that contract or agreement is immunized, provided it is immunized by state law. The same is true if the vice is a conspiracy, since a conspiracy presupposes an agreement. That was in essence the view of the Court of Appeals, which affirmed by a divided vote a judgment of a district court enjoining petitioner from price cutting. 184 F.2d 11. 6 The argument at first blush has appeal. But we think it offends the statutory scheme. 7 We note to begin with that there are critical differences between Louisiana's law and the Miller-Tydings Act. The latter exempts only 'contracts or agreements prescribing minimum prices for the resale'. On the other hand, the Louisiana law sanctions the fixing of maximum as well as minimum prices, for it exempts any provision that the buyer will not resell 'except at the price stipulated by the vendor.' We start then with a federal act which does not, as respondents suggest, turn over to the states the handling of the whole problem of resale price maintenance on this type of commodity. What is granted is a limited immunity—a limitation that is further emphasized by the inclusion in the state law and the exclusion from the federal law of the nonsigner provision. The omission of the nonsigner provision from the federal law is fatal to respondents' position unless we are to perform a distinct legislative function by reading into the Act a provision that was meticulously omitted from it. 8 A refusal to read the nonsigner provision into the Miller-Tydings Act makes sense if we are to take the words of the statute in their normal and customary meaning. The Act sanctions only 'contracts or agreements'. If a distributor and one or more retailers want to agree, combine, or conspire to fix a minimum price, they can do so if state law permits. Their contract, combination, or conspiracy—hitherto illegal—is made lawful. They can fix minimum prices pursuant to their contract or agreement with impunity. When they seek, however, to impose price fixing on persons who have not contracted or agreed to the scheme, the situation is vastly different. That is not price fixing by contract or agreement; that is price fixing by compulsion. That is not following the path of consensual agreement; that is resort to coercion. 9 Much argument is made to import into the contracts which respondents make with retailers a provision that the parties may force nonsigners into line. It is said that state law attaches that condition to every such contract and that therefore the Miller-Tydings Act exempts it from the Sherman Act. Such a condition, if implied, creates an agreement respecting not sales made under the contract but other sales. Yet all that are exempted by the Miller-Tydings Act are 'contracts or agreements prescribing minimum prices for the resale' of the articles purchased, not 'contracts or agreements' respecting the practices of non-contracting competitors of the contracting retailers. 10 It should be noted in this connection that the Miller-Tydings Act expressly continues the prohibitions of the Sherman Act against 'horizontal' price fixing by those in competition with each other at the same functional level.3 Therefore, when a state compels retailers to follow a parallel price policy, it demands private conduct which the Sherman Act forbids. See Parker v. Brown, 317 U.S. 341, 350, 63 S.Ct. 307, 313, 87 L.Ed. 315. Elimination of price competition at the retail level may, of course, lawfully result if a distributor successfully negotiates individual 'vertical' agreements with all his retailers. But when retailers are forced to abandon price competition, they are driven into a compact in violation of the spirit of the proviso which forbids 'horizontal' price fixing. A real sanction can be given the prohibitions of the proviso only if the price maintenance power granted a distributor is limited to voluntary engagements. Otherwise, the exception swallows the proviso and destroys its practical effectiveness. 11 The contrary conclusion would have a vast and devastating effect on Sherman Act policies. If it were adopted, once a distributor executed a contract with a single retailer setting the minimum resale price for a commodity in the state, all other retailers could be forced into line. Had Congress desired to eliminate the consensual element from the arrangement and to permit blanketing a state with resale price fixing if only one retailer wanted it, we feel that different measures would have been adopted—either a nonsigner provision would have been included or resale price fixing would have been authorized without more. Certainly the words used connote a voluntary scheme. Contracts or agreements convey the idea of a cooperative arrangement, not a program whereby recalcitrants are dragged in by the heels and compelled to submit to price fixing. 12 The history of the Act supports this construction. The efforts to override the rule of Dr. Miles Medical Co. v. John D. Park & Sons Co., supra, were long and persistent. Many bills had been introduced on this subject before Senator Tydings introduced his. Thus in 1929, in the Seventy-First Congress, the Capper-Kelly fair trade bill was offered.4 It had no nonsigner provision. It merely permitted resale price maintenance as respects specified classes of commodities by declaring that no such 'contract relating to the sale or resale' shall be unlawful. As stated in the House Report that bill merely legalized an agreement 'that the vendee will not resell the commodity specified in the contract except as a stipulated price.'5 That bill became the model for the California act passed in 1931—the first state act permitting resale price maintenance.6 The California act contained no nonsigner clause. Neither did the Capper-Kelly bill that was introduced in the Seventy-Second Congress.7 So far as material here it was identical with its predecessor. 13 The Capper-Kelly bill did not pass. And by the time the next bill was introduced—three years later—the California act had been changed by the addition of the nonsigner provision.8 That was in 1933. Yet when in 1936 Senator Tydings introduced his first bill in the Seventy-Fourth Congress9 he followed substantially the Capper-Kelly bills and wrote no nonsigner provision into it. His bill merely legalized 'contracts or agreements prescribing minimum prices or other conditions for the resale' of a commodity. By this date several additional states had resale price maintenance laws with nonsigner provisions.10 Even though the state laws were the models for the federal bills, the nonsigner provision was never added. That was true of the bill introduced in the Seventy-Fifth Congress as well as the subsequent one. They all followed in this respect the pattern of the Capper-Kelly bill as it appeared before the first nonsigner provision was written into state law. The 'contract' concept utilized by Capper-Kelly before there was a nonsigner provision in state law was thus continued even after the nonsigner provision appeared. The inference, therefore, is strong that there was continuity between the first Tydings bill and the preceding Capper-Kelly bills. The Tydings bills built on the same foundation; they were no more concerned with nonsigner provisions than were their predecessors. In view of this history we can only conclude that, if the draftsman intended that the nonsigning retailer was to be coerced, it was strange indeed that he omitted the one clear provision that would have accomplished that result. 14 An argument is made from the reports and debates to the effect that 'contracts or agreements' nevertheless includes the nonsigner provisions of state law. The Senate Report on the first Tydings bill, after stating that the California law authorized a distributor 'to make a contract that the purchaser will not resell' except at the stipulated price, said that the proposed federal law 'does no more than to remove Federal obstacles to the enforcement of contracts which the States themselves have declared lawful.'11 The Senate Report on the second Tydings bill, which was introduced in the Seventy-fifth Congress, did little more than reprint the earlier report.12 The House Report, heavily relied on here, gave a more extended analysis.13 15 The House Report referred to the state fair trade acts as authorizing the maintenance of resale prices by contract and as providing that 'third parties with notice are bound by the terms of such a contract regardless of whether they are parties to it'; and the Report also stated that the objective of the Act was to permit the public policy of the states having such acts to operate with respect to interstate contracts for the sale of goods.14 This Report is the strongest statement for respondents' position which is found in the legislative history. The bill which that Report endorsed, however, did not pass. The bill which became the law was attached by the Senate Committee on the District of Columbia as a rider to the District of Columbia revenue bill. In that form it was debated and passed. 16 It is true that the House Report quoted above15 was referred to when the Senate amendment to the revenue measure was before the House.16 And one Congressman in the debate said that the nonsigner provision of state laws was validated by the federal law. 17 But we do not take these remarks at face value. In the first place, the House Report, while referring to the nonsigner provision when describing a typical state fair trade act, is so drafted that the voluntary contract is the core of the argument for the bill. Hence, the General Statement in the Report states that the sole objective of the Act was 'to permit the public policy of States having 'fair trade acts' to operate with respect to interstate contracts for the resale of goods'; and the fair trade acts are referred to as legalizing 'the maintenance, by contract, of resale prices of branded or trade-marked goods.'17 (Italics added.) 18 In the second place, the remarks relied on were not only about a bill on which no vote was taken; they were about a bill which sanctioned 'contracts or agreements' prescribing not only 'minimum prices' but 'other conditions' as well. The words 'other conditions' were dropped from the amendment that was made to the revenue bill. Why they were deleted does not appear. It is said that they have no relevance to the present problem, since we are dealing here with 'minimum prices' not with 'other conditions.' But that answer does not quite hold. The question is the amount of state law embraced in the words 'contracts or agreements'. It might well be argued that one of the 'conditions' attaching to a contract fixing a minimum price would be the liability of a nonsigner. We do no more than stir the doubt, for the doubt alone is enough to make us skeptical of the full implications of the old report as applied to a new and different bill. 19 We look for more definite clues; and we find the following statement made on the floor by Senator Tydings: 'What does the amendment do? It permits a man who manufactures an article to state the minimum resale price of the article in a contract with the man who buys it for ultimate resale to the public. * * *'18 Not once did Senator Tydings refer to the nonsigner provisions of state law. Not once did he suggest that the amendment would affect anyone but the retailer who signs the contract. We search the words of the sponsors for a clear indication that coercive as well as voluntary schemes or arrangements are permissible. We find none.19 What we do find is the expression of fear in the minority report of the Senate Committee that the nonsigner provisions of the state laws would be made effective if the law passed.20 These fears were presented in the Senate debate by Senator King in opposition to the amendment.21 But the Senate Report emphasizes the 'permissive' nature of the state laws,22 not once pointing to their coercive features. 20 The fears and doubts of the opposition are no authoritative guide to the construction of legislation. It is the sponsors that we look to when the meaning of the statutory words is in doubt. And when we read what the sponsors wrote and said about the amendment, we cannot find that the distributors were to have the right to use not only a contract to fix retail prices but a club as well. The words they used—'contracts or agreements'—suggest just the contrary. 21 It should be remembered that it was the state laws that the federal law was designed to accommodate. Federal regulation was to give way to state regulation. When state regulation provided for resale price maintenance by both those who contracted and those who did not, and the federal regulation was relaxed only as respects 'contracts or agreements,' the inference is strong that Congress left the noncontracting group to be governed by preexisting law. In other words, since Congress was writing a law to meet the specifications of state law, it would seem that if the nonsigner provision as well as the 'contract' provision of state law were to be written into federal law, the pattern of the legislation would have been different. 22 We could conclude that Congress carved out the vast exception from the Sherman Act now claimed only if we were willing to assume that it took a devious route and yet failed to make its purpose plain. 23 Reversed. 24 Mr. Justice JACKSON, whom Mr. Justice MINTON joins, concurring. 25 I agree with the Court's judgment and with its opinion insofar as it rests upon the language of the Miller-Tydings Act. But it does not appear that there is either necessity or propriety in going back of it into legislative history. 26 Resort to legislative history is only justified where the face of the Act is inescapably ambiguous, and then I think we should not go beyond Committee reports, which presumably are well considered and carefully prepared. I cannot deny that I have sometimes offended against that rule. But to select casual statements from floor debates, not always distinguished for candor or accuracy, as a basis for making up our minds what law Congress intended to enact is to substitute ourselves for the Congress in one of its important functions. The Rules of the House and Senate, with the sanction of the Constitution, require three readings of an Act in each House before final enactment. That is intended, I take it, to make sure that each House knows what it is passing and passes what it wants, and that what is enacted was formally reduced to writing. It is the business of Congress to sum up its own debates in its legislation. Moreover, it is only the words of the bill that have presidential approval, where that approval is given. It is not to be supposed that, in signing a bill the President endorses the whole Congressional Record. For us to undertake to reconstruct an enactment from legislative history is merely to involve the Court in political controversies which are quite proper in the enactment of a bill but should have no place in its interpretation. 27 Moreover, there are practical reasons why we should accept whenever possible the meaning which an enactment reveals on its face. Laws are intended for all of our people to live by; and the people go to law offices to learn what their rights under those laws are. Here is a controversy which affects every little merchant in many States. Aside from a few offices in the larger cities, the materials of legislative history are not available to the lawyer who can afford neither the cost of acquisition, the cost of housing, or the cost of repeatedly examining the whole congressional history. Moreover, if he could, he would not know any way of anticipating what would impress enough members of the Court to be controlling. To accept legislative debates to modify statutory provisions is to make the law inaccessible to a large part of the country. 28 By and large, I think our function was well stated by Mr. Justice Holmes: 'We do not inquire what the legislature meant; we ask only what the statute means.' Holmes, Collected Legal Papers, 207. See also Soon Hing v. Crowley, 113 U.S. 703, 710—711, 5 S.Ct. 730, 734, 28 L.Ed. 1145. And I can think of no better example of legislative history that is unedifying and unilluminating that that of the Act before us. 29 Mr. Justice FRANKFURTER, whom Mr. Justice BLACK and Mr. Justice BURTON join, dissenting. 30 In 1890, Congress passed the Sherman Law, which declared illegal '(e)very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations'. Act of July 2, 1890, § 1, 26 Stat. 209, 15 U.S.C. § 1, 15 U.S.C.A. § 1. In 1937, Congress passed the Miller-Tydings Amendment. This excepted from the Sherman Law 'contracts or agreements' prescribing minimum prices for the resale of trade-marked commodities where such contracts or agreements were valid under State statute or policy. Act of Aug. 17, 1937, Title VIII, 50 Stat. 673, 693, 15 U.S.C. § 1, 15 U.S.C.A. § 1. It would appear that, insofar as the Sherman Law made maintenance of minimum resale prices illegal, the Miller-Tydings Amendment made it legal to the extent that State law legalized it. 'Contracts or agreements' immunized by the Miller-Tydings Amendment surely cannot have a narrower scope than 'contract, combination * * * or conspiracy' in the Sherman Law. The Miller-Tydings Amendment is an amendment to *s 1 of the Sherman Law. The category of contract cannot be given different content in the very same section of the same act, and every combination or conspiracy implies an agreement. 31 The setting of the Miller-Tydings Amendment and its legislative history remove any lingering doubts. The depression following 1929 gave impetus to the movement for legislation which would allow the fixing of minimum resale prices. In 1931, California passed a statute allowing a manufacturer to establish resale prices binding only upon retailers who voluntarily entered into a contract with him. This proved completely ineffective, and in 1933 California amended her statute to provide that such a contract established a minimum price binding upon any person who had notice of the contract. Grether, Experience in California with Fair Trade Legislation Restricting Price Cutting, 24 Calif.L.Rev. 640, 644 (1936). This amendment was the so-called 'non-signer' clause which, in effect, allowed a manufacturer or wholesaler to fix a minimum resale price for his product. Every 'fair trade' law thereafter passed by any State contained this 'non-signer' clause. By the close of 1936, 14 States had passed such laws. In 1937, 28 more States passed them. Today, 45 out of 48 States have 'fair trade' laws. See Report of the Federal Trade Commission on Resale Price Maintenance XXVII (Dec. 13, 1945). 32 A substantial obstacle remained in the path of the 'fair trade' movement. In 1911, we had decided Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502. There, in a suit brought against a 'non-signer,' we held that an agreement to maintain resale prices was a 'contract * * * in restraint of trade' which was contrary to the Sherman Law. To remove this block, the Miller-Tydings Amendment was enacted. It is said, however, that thereby Congress meant only to remove the bar of the Sherman Law from agreements between the manufacturer and retailer, that Congress did not mean to make valid the 'non-signer' clause which formed an integral part of each of the 42 State statutes in effect when the Amemdment was passed. 33 The Miller-Tydings Amendment was passed as a rider to a Revenue Bill for the District of Columbia. The Senate Committee which attached the rider referred the Senate to S.Rep.No.2053, 74th Cong., 2d Sess.1 The House Conference Report (H.R.Rep.No.1413, 75th Cong., 1st Sess.), contains only five lines concerning the rider. But the rider was not a new measure. It came as no surprise to the House, which already had before it practically the same language in the Miller Bill, reported favorably by the Committee on the Judiciary. H.R.Rep.No.382, 75th Cong., 1st Sess. Both the House and Senate, therefore, had before them reports dealing with the substance of the Miller- Tydings Amendment. These reports speak for themselves, and I attach them as appendices to this opinion. 341 U.S. 402, 71 S.Ct. 754. Every State act referred to in these reports contained a 'non-signer' provision I cannot see how, in view of these reports, we can conclude that Congress meant the 'non-signer' provisions to be invalid under the Sherman Law—unless, that is, we are to depart from the respect we have accorded authoritative legislative history in scores of cases during the last decade. See cases collected in Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 687, Appendix A, 69 S.Ct. 322, 337, 355, 93 L.Ed. 288. In many of these cases the purpose of Congress was far less clearly revealed than here.2 It has never been questioned in this Court that committee reports, as well as statements by those in charge of a bill or of a report, are authoritative elucidations of the scope of a measure. 34 It is suggested that we go to the words of the sponsors of the Miller-Tydings Amendment. We have done so. Their words confirm the plain meaning of the words of the statute and of the congressional reports. Senator Tydings made the following statement: 'What we have attempted to do is what 42 States have already written on their statute books. It is simply to back up those acts, that is all; to have a code of fair trade practices written not by a national board such as the N.R.A. but by each State, so that the people may go to the State legislature and correct immediately any abuses that may develop.' 81 Cong.Rec. 7496. 35 Representative Dirksen made a statement to the House as a member of its Conference Committee. He referred to the case of Old Dearborn Distributing Co. v. Seagram Distillers Corp., 299 U.S. 183, 57 S.Ct. 139, 81 L.Ed. 109, in which this Court had held that the 'non-signer' provision of the Illinois 'fair trade' statute did not violate the Due Process Clause. Mr. Dirksen continued: 'A question then arose as to whether or not the maintenance of such resale prices under a State fair trade act might not be in violation of the Sherman Anti-Trust Law of 1890 insofar as these transactions sprang from a contract in interstate commerce. This question was presented to the House Judiciary Committee and there determined by the reporting of the Miller bill. It was essentially nothing more than an enabling act which placed the stamp of approval upon price maintenance transactions under State acts, notwithstanding the Sherman Act of 1890.' 81 Cong.Rec. 8138. 36 Every one of the 42 State acts which the Miller-Tydings Amendment was to 'back up'—the acts on which the Miller-Tydings Amendment was to place a 'stamp of approval'—contained a 'non-signer' provision. As demonstrated by experience in California, the State acts would have been futile without the 'non-signer' clause. The Court now holds that the Miller-Tydings Amendment does not cover these 'non-signer' provisions. Not only is the view of the Court contrary to the words of the statute and to the legislative history. It is also in conflict with the interpretation given the Miller-Tydings Amendment by the Federal Trade Commission,3 by the Department of Justice,4 and by practically all persons adversely affected by the 'fair trade' laws.5 The 'fair trade' laws may well be unsound as a matter of economics. Perhaps Congress should not pass an important measure dealing with an extraneous subject as a rider to a revenue bill, with the coercive influence it exerts in avoiding a veto; perhaps it should restrict legislation to a single relevant subject, as required by the constitutions of three-fourths of the States. These are matters beyond the Court's concern. Where both the words of a statute and its legislative history clearly indicate the purpose of Congress, it should be respected. We should not substitute our own notion of what Congress should have done. 37 APPENDIX to the Opinion of Mr. Justice Frankfurter. 38 House Report No. 382, 75th Cong., 1st Sess. 39 The Committee on the Judiciary, to whom was referred the bill (H.R. 1611) to amend the act entitled 'An act to protect trade and commerce against unlawful restraints and monopolies', approved July 2, 1890, after consideration, report the same favorably to the House with an amendment with the recommendation that as amended the bill do pass. 40 The committee amendment is as follows: Strike out all after the enacting clause and insert in lieu thereof the following: 41 'That section 1 of the Act entitled 'An Act to protect trade and commerce against unlawful restraints and monopolies', approved July 2, 1890 (U.S.Code, title 15, sec. 1), be amended to read as follows: 42 "Section 1. Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or which foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. Nothing herein contained shall render illegal, contracts or agreements prescribing minimum prices or other conditions for the resale of a commodity which bears, or the label or container of which bears, the trade mark, brand, or name of the producer or distributor of such commodity and which is in free and open competition with commodities of the same general class produced or distributed by others, when such contracts or agreements are lawful as applied to intrastate transactions, under any statute, law, or public policy now or hereafter in effect in any State, Territory, or the District of Columbia in which such resale is made, or to which the commodity is to be transported for such resale, and the making of such contracts or agreements shall not be an unfair method of competition under section 5, as amended and supplemented, of the Act entitled 'An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes', approved September 26, 1914 (U.S.Code, title 15, sec. 45)." General Statement 43 The sole objective of this proposed legislation is to permit the public policy of States having 'fair trade acts' to operate with respect to interstate contracts for the resale of goods within those States. The fairtrade acts referred to legalize the maintenance, by contract, of resale prices of branded or trade-marked goods which are in free competition with other goods of the same general class. 44 To accomplish this end, the reported bill amends section 1 of the Sherman Antitrust Act which declares every contract in restraint of trade illegal. The amendment adds a sentence to the section, in the nature of a limitation, to the effect, in substance, that nothing therein contained shall render illegal contracts prescribing minimum prices or other conditions for resale of branded or trade-marked goods when such contracts are lawful as to intrastate transactions under the State law of the State in which the resale is to be made; and that the making of such contracts shall not be an unfair method of competition under section 5 of the Federal Trade Commission Act. 45 In view of the decision of the Supreme Court in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502, and other cases, it is doubtful, at least, that such contracts are now valid in interstate commerce. State Fair Trade Acts 46 State fair trade acts typically provide, first, that contracts may lawfully be made which provide for maintenance by contract of resale prices of branded or trade-marked competitive goods. Second, that third parties with notice are bound by the terms of such a contract regardless of whether they are parties to it. 47 The pertinent provisions of the Illinois act, recently held constitutional by the Supreme Court in the case of Old Dearborn Distributing Co. v. Seagram-Distillers Corporation, 1936, 299 U.S. 183, 57 S.Ct. 139, 81 L.Ed. 109, read as follows: 48 's 1. No contract relating to the sale or resale of a commodity which bears, or the label or content of which bears, the trade mark, brand, or name of the producer or owner of such commodity and which is in fair and open competition with commodities of the same general class produced by others shall be deemed in violation of any law of the State of Illinois by reason of any of the following provisions which may be contained in such contract: 49 '(1) That the buyer will not resell such commodity except at the price stipulated by the vendor. 50 '(2) That the producer or vendee of a commodity require upon the sale of such commodity to another that such purchaser agree that he will not, in turn, resell except at the price stipulated by such producer or vendee. 51 'Such provisions in any contract shall be deemed to contain or imply conditions that such commodity may be resold without reference to such agreement in the following cases: 52 '(1) In closing out the owner's stock for the purpose of discontinuing delivery of any such commodity: Provided, however, That such stock is first offered to the manufacturer of such stock at the original invoice price, at least ten (10) days before such stock shall be offered for sale to the public. 53 '(2) When the goods are damaged or deteriorated in quality, and notice is given to the public thereof. 54 '(3) By any officer acting under the orders of any court. 55 's 2. Wilfully and knowingly advertising, offering for sale, or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provisions of section 1 of this Act, whether the person so advertising, offering for sale, or selling is or is not a party to such contract, is unfair competition and is actionable at the suit of any person damaged thereby.' 56 The following States, the committee is advised, have adopted fair trade acts: California, Washington, Oregon, Montana, Wyoming, Arizona, New Mexico, Utah, North Dakota, South Dakota, Kansas, Louisiana, Arkansas, Iowa, Wisconsin, Illinois, Kentucky, Tennessee, Indiana, Ohio, Georgia, Virginia, West Virginia, Pennsylvania, Maryland, New York, New Jersey, and Rhode Island. 57 The committee is advised that in addition one house of each of the following States have passed a fair trade bill: South Carolina, North Carolina, Idaho, Colorado, and Oklahoma. 58 The committee is further advised that bills are pending in the Legislatures of Nevada, Michigan, Minnesota, Texas, Mississippi, Delaware, Missouri, Connecticut, Massachusetts, New Hampshire, and Maine; and that only one State, Vermont, has definitely rejected legislation of this character. Economic Aspects 59 The anticipated economic effects of the legislation here proposed were presented both by proponents and opponents of the bill in the hearings held by the subcommittee of the Committee on the Judiciary in charge of the bill. On the one hand it is urged that predatory price cutting is a weapon of monopolistic large distributors to crush small businessmen. On the other hand, it is contended that price-maintenance legislation tends unduly to enhance the price of goods to the consumer. To this argument it is answered that the free play of competition between products of different manufacturers of the same general class will prevent such a result. 60 However, in the opinion of the committee, those arguments are more properly addressed to the State legislatures considering the enactment of fair trade acts. It is the legislature's responsibility to fix the public policy of the State. This legislation merely seeks to help effectuate a public policy so fixed in a State. It has no application to any State which does not see fit to enact a fair trade act. 61 In this connection the committee invites attention to the following paragraph of the opinion of the Supreme Court, heretofore referred to, upholding the constitutionality of the Illinois act, the Court speaking through Mr. Justice Sutherland: 62 'There is a great body of fact and opinion tending to show that price cutting by retail dealers is not only injurious to the good will and business of the producer and distributor of identified goods, but injurious to the general public as well. The evidence to that effect is voluminous; but it would serve no useful purpose to review the evidence or to enlarge further upon the subject. True, there is evidence, opinion, and argument to the contrary; but it does not concern us to determine where the weight lies. We need say no more than that the question may be regarded as fairly open to differences of opinion. The legislation here in question proceeds upon the former and not the latter view; and the legislative determination in that respect, in the circumstances here disclosed, is conclusive so far as this court is concerned. Where the question of what the facts establish is a fairly debatable one we accept and carry into effect the opinion of the legislature. Radice v. (People of State of) New York, 264 U.S. 292, 294, 44 S.Ct. 325, 326, 68 L.Ed. 690; Zahn v. Board of Public Works (of City of Los Angeles), 274 U.S. 325, 328, 47 S.Ct. 594, 595, 71 L.Ed. 1074, and cases cited'. (299 U.S. 183, 57 S.Ct. 145.) Effectuation of State Public Policy 63 Your committee respectfully submit that sound public policy on the part of the Federal Government lies in the direction of lending assistance to the States to effectuate their own public policy with regard to their internal affairs. It is submitted that this is especially true where such assistance, as in this instance, consists of removing a handicap resulting from the surrender of the power over interstate commerce by the States to the Federal Government. 64 Senate Report No. 2053, 74th Cong., 2d Sess. 65 The Committee on the Judiciary, having had under consideration the bill (S. 3822) to amend the act entitled 'An Act to protect trade and commerce against unlawful restraints and monopolies', approved July 2, 1890, report the same back with the recommendation that the bill do pass. 66 In 1933 a law was enacted by the State of California authorizing a manufacturer or producer of a commodity which bears his trade mark, brand, or name, and which is sold in free and open competition with commodities of the same general class produced by others, to make a contract that the purchaser will not resell such commodity except at the price stipulated by the manufacturer or producer. 67 The purpose of the California act, as expressed in its title, was to protect trade-mark owners, distributors, and the general public against injurious and uneconomic practices in the distribution of articles of standard quality under a trade mark, brand, or name, and the particular practice against which it was directed was the so-called 'loss-leader selling.' 68 Since the passage of the California act similar legislation has been enacted in 12 other States, namely, New York, Illinois, Pennsylvania, New Jersey, Oregon, Washington, Wisconsin, Iowa, Maryland, Ohio, Virginia, and Rhode Island (the last three since the introduction of the proposed bill). 69 In still other States contracts stipulating minimum resale prices are valid at common law. 70 In the States where such contracts are lawful it has been found that loss-leader selling of identified merchandise sold under competitive conditions operates as a fraud on the consumer destroys the producer's goodwill in his trade mark, and is used by the large merchant to eliminate his small independent competitor. 71 In recommending the passage of S. 3822 the committee, while fully recognizing the evils of loss-leader selling, is not required to determine the effectiveness of the device adopted by the States to eliminate the same. 72 It is sufficient that this type of selling unquestionably has had a disastrous effect upon the small independent retailer, thereby tending to create monopoly, and that a large number of States have found that its evil effects can be mitigated, if not eliminated, by legalizing contracts stipulating minimum resale prices. 73 The Congress is not called upon to pass upon the effectiveness of the remedy, but it should not put obstacles in the way of efforts of the individual States to make the remedy effective. 74 Though there is no specific adjudication on the subject, it is believed that contracts stipulating minimum resale prices, even when they are made or are to be performed in a State where such contracts are lawful, may violate the Sherman Act whenever the goods sold under the contract move in interstate commerce. 75 Consequently, many manufacturers not domiciled in the state of the vendee are unwilling to run the risk of violating the Federal law, and the effectiveness of the State fair-trade laws is thereby seriously impaired. 76 S. 3822 removes the doubt as to the applicability of the Sherman Act by expressly legalizing such contracts where legal under the laws of the State where made or where they are to be performed. 77 Moreover, the proposed bill declares such contracts shall not be an unfair method of competition under the Federal Trade Commission law. 78 The language of the bill, in describing the class of commodities to which it is applicable, follows closely the language of the State acts, and the scope of the bill is therefore carefully limited to commodities 'in free and open competition with commodities of the same general class produced by others.' 79 The State acts are in no sense general price-fixing acts. They merely authorize a manufacturer or producer to enter into contracts for the maintenance of his price, but they do not compel him to do so. In other words, they are merely permissive. 80 They do not authorize horizontal contracts, that is to say, contracts or agreements between manufacturers, between producers, or between wholesalers, or between retailers as to the sale or resale price of any commodity. 81 They apply only to commodities which are in free and open competition with commodities of the same general class produced by others, and they therefore do not in any sense restrain trade or competition. In fact, they legalize a device which is intended to increase competition and prevent monopoly. 82 But most important, from the standpoint of the Congress, the proposed bill merely permits the individual States to function, without Federal restraint, within their proper sphere, and does not commit the Congress to a national policy on the subject matter of the State laws. 83 In other words, the bill does no more than to remove Federal obstacles to the enforcement of contracts which the States themselves have declared lawful. 1 Resale price maintenance is allowed only as respects commodities which bear, or the label or container of which bear, the trade mark, brand, or name of the producer or distributor and which are in free and open competition with commodities of the same general class produced or distributed by others. Excluded are agreements between manufacturers, between producers, between wholesalers, between brokers, between factors, between retailers or between persons, firms or corporations in competition with each other. 2 The nonsigner clause in the Louisiana Act reads as follows: 'Wilfully and knowingly advertising, offering for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provision of section 1 of this Act (§ 9809.1) whether the person so advertising, offering for sale or selling is or is not a party to such contract, is unfair competition and is actionable at the suit of any person damaged thereby.' 3 'Provided further, That the preceding proviso shall not make lawful any contract or agreement, providing for the establishment or maintenance of minimum resale prices on any commodity herein involved, between manufacturers, or between producers, or between wholesalers, * * * or between retailers, or between persons, firms, or corporations in competition with each other.' 15 U.S.C. § 1, 15 U.S.C.A. § 1. 4 S. 240, 71st Cong., 1st Sess.; H.R.11, 71st Cong., 1st Sess. See H.R.Rep.No. 536, 71st Cong., 2d Sess. 5 H.R.Rep.No.536, 71st Cong., 2d Sess., p. 2. 6 Cal.Stat.1931, c. 278. The California Act was sometimes known as 'the Junior Capper-Kelly.' See Grether, Price Control Under Fair Trade Legislation (1939) p. 54. 7 S. 97, 72d Cong., 1st Sess.; H.R.11, 72d Cong., 1st Sess. 8 Cal.Stat.1933, c. 260: The California law is now found in Business & Professions Code, Pt. 2, c. 3, § 16904. 9 S. 3822, 74th Cong., 2d Sess., 80th Cong.Rec. 1007. 10 See Ill.Laws 1935, p. 1436, Ill.Rev.Stat.1949, c. 121 1/2, § 188 et seq.; Iowa Laws 1935, c. 106, I.C.A. § 550.1 et seq.; Md.Laws 1935, c. 212, § 2; N.J.Laws 1935, c. 58, § 2, N.J.S.A. 56:4—6; N.Y.Laws 1935, c. 976, § 2; Or.Laws 1935, c. 295, § 2; Pa.Laws 1935, No. 115, § 2, 73 P.S. § 8; Wash.Laws 1935. c. 177, § 4; Wis.Laws 1935, c. 52. 11 S.Rep.No.2053, 74th Cong., 2d Sess. 2. 12 S.Rep.No.257, 75th Cong., 1st Sess. 13 H.R.Rep.No.382, 75th Cong., 1st Sess. 14 Id., p. 2. 15 Id. 16 See, e.g., the statement of Rep. Dirksen, a House conferee, in 81 Cong.Rec. 8138. 17 H.R.Rep.No.382, 75th Cong., 1st Sess. 2. 18 81 Cong.Rec. 7495. 19 H.R.Rep.No.1413, 75th Cong., 1st Sess. 10 (the Conference Report of the House) merely stated: 'This amendment provides for an amendment to the antitrust laws under which contracts and agreements stipulating minimum resale prices of certain commodities, and which are similar to contracts and agreements which are lawful as applied to intrastate commerce, are not to be regarded as being illegal under the antitrust laws.' 20 S.Rep.No.879, 75th Cong., 1st Sess. 21 81 Cong.Rec. 7491. And see S.Rep.No.879, Part 2, 75th Cong., 1st Sess. 22 S.Rep.No.879, 75th Cong., 1st Sess. 6. 1 The Senate Report on the District of Columbia Revenue Bill, S.Rep.No.879, 75th Cong., 1st Sess., quoted S.Rep.No.2053, 74th Cong., 2d Sess. See S.Rep.No.257, 75th Cong., 1st Sess., which also quotes the text of the earlier report. 2 The intricate verbal arguments used to support the Court's decision do not affect the clarity of the statute and its legislative history. (1) It is said that the proviso to the Miller-Tydings Amendment makes it inapplicable to 'nonsigner' clauses in State acts. But the proviso only made explicit that the Amendment applied only to vertical agreements and did not make legal horizontal agree- ments, for example, those between retailers or between manufacturers. See statements of Senator Tydings, 81 Cong.Rec. 7487, 7496. The wording of the proviso, in fact, follows closely a statement of what the Senate Committee thought was implicit in the State acts. See S.Rep.No.2053, 74th Cong., 2d Sess. 2. (2) The fact that the 1931 California statute used wording similar to the Miller-Tydings Amendment and was later amended to refer to nonsigners is beside the mark. The words of the 1933 amendment to the California statute make clear that it was not, like the Miller-Tydings Amendment, designed to remove the bar of an antitrust act. It was enacted to give an affirmative right to recover from nonsigners, something the Miller-Tydings Amendment does not purport to do. In such a statute specific language referring to nonsigners would of course have to be used. (3) It is said that H.R.Rep.No.382, 75th Cong., 1st Sess., refers to a bill containing the phrase 'other conditions.' The words 'other conditions' when used in conjunction with a phrase referring to minimum prices, could scarcely mean anything except 'conditions other than minimum prices.' We are here concerned with minimum prices. (4) 'Permissive' was used in the Senate Report not to refer to retailers but to manufacturers. '(The State acts) merely authorize a manufacturer or producer to enter into contracts for the maintenance of his price, but they do not compel him to do so. In other words, they are merely permissive.' S.Rep.No.2053, 74th Cong., 2d Sess. 2. 3 See letter addressed to the President by the Chairman of the Federal Trade Commission, S.Doc.No.58, 75th Cong., 1st Sess., pp. 2—3. See also Report of the Federal Trade Commission on Resale Price Maintenance LXII (Dec. 13, 1945). 4 The Department of Justice appears to have instituted no prosecutions because of enforcement of 'fair trade' acts against nonsigners. The Assistant Attorney General who played an important part in enforcement of the antitrust laws called for repeal of the Miller-Tydings Amendment because it made legal the nonsigner provisions of the State 'fair trade' acts. Statement of Mr. Thurman Arnold, T.N.E.C. Hearings, pp. 18162—18165. 5 The contention that the 'non-signer' provisions are not within the Miller-Tydings Amendment appears to have been made in only two reported cases since the Amendment was passed in 1937. Calamia v. Goldsmith Bros., Inc., 299 N.Y. 636, 87 N.E.2d 50; Id., 299 N.Y. 795, 87 N.E.2d 687; Pepsodent Co. v. Krauss Co., D.C., 56 F.Supp. 922. In both, the argument was rejected.

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341 U.S. 341 71 S.Ct. 762 95 L.Ed. 1002 ALABAMA PUBLIC SERVICE COMMISSION et al.v.SOUTHERN RY. CO. No. 395. Argued Feb. 27, 28, 1951. Decided May 21, 1951. Mr. Richard T. Rives, Montgomery, Ala. for appellants. Mr. Merton Roland Nachman, Jr., Montgomery, Ala., for appellants, pro hoc vice, by special leave of Court. Mr. Charles Clark, Washington, D.C., for appellee. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 The Southern Railway Company, appellee, brought this action in the Federal District Court to enjoin the members of the Alabama Public Service Commission and the Attorney General of Alabama, appellants, from enforcing laws of Alabama prohibiting discontinuance of certain railroad passenger service. Appellee's Alabama intrastate service is governed by a statute prohibiting abandonment of 'any portion of its service to the public * * * unless and until there shall first have been filed an application for a permit to abandon service and obtained from the commission a permit allowing such abandonment.' Ala.Code, 1940, tit. 48, § 106.1 Severe penalties are prescribed for wilful violation of regulatory statutes or orders of the Commission by utilities or their employees. Id. §§ 399, 400, 405. 2 Appellee operates a railroad system throughout the South. This case, however, involves only that Alabama intrastate passenger service furnished by trains Nos. 7 and 8 operated daily between Tuscumbia, Alabama, and Chattanooga, Tennessee, a distance of approximately 145 miles mainly within Alabama. On September 13, 1948, appellee applied to the Alabama Public Service Commission for permission to discontinue trains Nos. 7 and 8, alleging that public use of the service had so declined that revenues fell far short of meeting direct operating expenses. After hearing evidence at Huntsville, Alabama, one of the communities served by the trains, the Commission entered an order on April 3, 1950, denying permission to discontinue on the grounds that there exists a public need for the service and that appellee had not attempted to reduce losses through adoption of more economical operating methods. 3 Instead of pursuing its right of appeal to the state courts,2 appellee filed a complaint in the United States District Court alleging diversity of citizenship and that requiring continued operation of trains Nos. 7 and 8 at an out-of-pocket loss amounted to a confiscation of its property in violation of the Due Process Clause of the Fourteenth Amendment. Injunctive relief was prayed to protect appellee from irreparable loss, flowing on the one hand from operating losses in complying with Alabama law or, on the other, from severe penalties for discontinuance of service in the face of that law. A three-judge court3 heard evidence, made its own findings of fact and entered judgment holding the Commission order void and permanently enjoining appellants from taking any steps to enforce either the Commission order or the penalty provisions of the Alabama Code in relation to the discontinuance of trains Nos. 7 and 8.4 D.C.1950, 91 F.Supp. 980. The case is properly here on appeal, 28 U.S.C.(Supp.III) § 1253. 4 Federal jurisdiction in this case is grounded upon diversity of citizenship as well as the allegation of a federal question. Exercise of that jurisdiction does not involve construction of a state statute so ill-defined that a federal court should hold the case pending a definitive construction of that statute in the state courts, e.g., Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971; Shipman v. DuPre, 1950, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877. We also put to one side those cases in which the constitutionality of a state statute itself is drawn into question, e.g., Toomer v. Witsell, 1948, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460. For in this case appellees attack a state administrative order issued under a valid regulatory statute designed to assure the provision of adequate intrastate service by utilities operating within Alabama.5 5 Appellee takes the position, adopted by the court below, that whenever a plaintiff can show irreparable loss caused by an allegedly invalid state administrative order ripe for judicial review in the state courts the presence of diversity of citizenship or a federal question opens the federal courts to litigation as to the validity of that order, at least so long as no action involving the same subject matter is actually pending in the state courts. But, it by no means follows from the fact of district court jurisdiction that such jurisdiction must be exercised in this case.6 As framed by the Court in Burford v. Sun Oil Co., 1943, 319 U.S. 315, 318, 63 S.Ct. 1098, 1099, 87 L.Ed. 1424, the question before us is: 'Assuming that the federal district court had jurisdiction, should it, as a matter of sound equitable discretion, have declined to exercise that jurisdiction here?' 6 In assessing the propriety of equitable relief, a review of the regulatory problem involved in this case is appropriate. 7 Appellee conducts an interstate business over the same tracks and by means of the same trains involved in this case, and such interstate activities are regulated by the Federal Interstate Commerce Commission, 49 U.S.C. § 1 et seq., 49 U.S.C.A. § 1 et seq. But, it has long been held that this interblending of the interstate and intrastate operations does not deprive the states of their primary authority over intrastate transportation in the absence of congressional action supplementing that authority. The Minnesota Rate Cases (Simpson v. Shepard) 1913, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511. And Congress has since provided: 'That nothing in (the Interstate Commerce Act) shall impair or affect the right of a State, in the exercise of its police power, to require just and reasonable freight and passenger service for intrastate business, except insofar as such requirement is inconsistent with any lawful order of the (Interstate Commerce Commission).' 49 U.S.C. § 1(17) (a), 49 U.S.C.A. § 1(17)(a).7 8 This Court has held that regulation of intrastate railroad service is 'primarily the concern of the state.' State of North Carolina v. United States, 1945, 325 U.S. 507, 511, 65 S.Ct. 1260, 1263, 89 L.Ed. 1760 (rates); Palmer v. Com. of Massachusetts, 1939, 308 U.S. 79, 60 S.Ct. 34, 84 L.Ed. 93 (discontinuance of local service). 9 State and federal regulatory agencies have expressed concern over the chronic deficit arising out of passenger train operations as a threat to the financial security of the American railroads and have recommended drastic action to minimize the deficit, including the discontinuance of unpatronized and unprofitable service.8 However, our concern in this case is limited to the propriety of a federal court injuntion enjoining enforcement of a state regulatory order.9 10 The court below justified the exercise of its jurisdiction with a finding that continued operation of trains Nos. 7 and 8 would result in confiscation of appellee's property in violation of the Due Process Clause of the Fourteenth Amendment. In pursuing the threshold inquiry whether a federal court should exercise jurisdiction in this case, we find it unnecessary to consider issues relating to the merits of appellee's case, issues which appellants did not see fit to raise in this Court either in their Statement of Jurisdiction or in their briefs. We do note that in passing upon similar contentions in the past, this Court has recognized that review of an order requiring performance of a particular utility service, even at a pecuniary loss, is subject to considerations quite different from those involved when the return on the entire intrastate operations of a utility is drawn into question. Atlantic Coast Line R. Co. v. North Carolina Corporation Commission, 1907, 206 U.S. 1, 24—27, 27 S.Ct. 585, 593, 595, 51 L.Ed. 933. The problems raised by the discontinuance of trains Nos. 7 and 8 cannot be resolved alone by reference to appellee's loss in their operation but depend more upon the predominantly local factor of public need for the service rendered. Chesapeake & Ohio R. Co. v. Public Service Commission of West Virginia, 1917, 242 U.S. 603, 608, 37 S.Ct. 234, 236, 61 L.Ed. 520. 11 The Alabama Commission, after a hearing held in the area served, found a public need for the service. The court below, hearing evidence de novo, found that no public necessity exists in view of the increased use and availability of motor transportation. We do not attempt to resolve these inconsistent findings of fact. We take note, however, of the fact that a federal court has been asked to intervene in resolving the essentially local problem of balancing the loss to the railroad from continued operation of trains Nos. 7 and 8 with the public need for that service in Tuscumbia, Decatur, Huntsville, Scottsboro, and the other Alabama communities directly affected. 12 Not only has Alabama established its Public Service Commission to pass upon a proposed discontinuance of intrastate transportation service, but it has also provided for appeal from any final order of the Commission to the circuit court of Montgomery County as a matter of right. Ala. Code 1940, Tit. 48, § 79. That court, after a hearing on the record certified by the Commission, is empowered to set aside any Commission order found to be contrary to the substantial weight of the evidence or erroneous as a matter of law, id. § 82, and its decision may be appealed to the Alabama Supreme Court. Id. § 90. Statutory appeal from an order of the Commission is an integral part of the regulatory process under the Alabama Code. Appeals, concentrated in one circuit court, are 'supervisory in character'. Avery Freight Lines, Inc. v. White, 1944, 245 Ala. 618, 622—623, 18 So.2d 394, 398, 154 A.L.R. 732. The Supreme Court of Alabama has held that it will review an order of the Commission as if appealed directly to it, Alabama Public Service Commission v. Nunis, 1949, 252 Ala. 30, 34, 39 So.2d 409, 412, and that judicial review calls for an independent judgment as to both law and facts when a denial of due process is asserted. Alabama Public Service Commission v. Southern Bell Tel. and Tel. Co., 1949, 253 Ala. 1, 11—12, 42 So.2d 655, 662. 13 The fact that review in the Alabama courts is limited to the record taken before the Commission presents no constitutional infirmity. Washington ex rel. Oregon R. and N. Co. v. Fairchild, 1912, 224 U.S. 510, 32 S.Ct. 535, 56 L.Ed. 863. And, whatever the scope of review of Commission findings when an alleged denial of constitutional rights is in issue, it is now settled that a utility has no right to relitigate factual questions on the ground that constitutional rights are involved. State of New York v. United States 1947, 331 U.S. 284, 334—336, 67 S.Ct. 1207, 1233, 1234, 91 L.Ed. 1492; Railroad Commission of Texas v. Rowan & Nichols Oil Co., 1941, 311 U.S. 570, 576, 61 S.Ct. 343, 346, 85 L.Ed. 358. Appellee complains of irreparable injury resulting from the Commission order pending judicial review, but has not invoked the protective powers of the Alabama courts to direct the stay or supersedeas of a Commission order pending appeal. Ala. Code 1940, Tit. 48, §§ 81, 84.10 Appellee has not shown that the Alabama procedure for review of Commission orders is in any way inadequate to preserve for ultimate review in this Court any federal questions arising out of such orders. 14 As adequate state court review of an administrative order based upon predominantly local factors is available to appellee,11 intervention of a federal court is not necessary for the protection of federal rights. Equitable relief may be granted only when the District Court, in its sound discretion exercised with the 'scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts,'12 is convinced that the asserted federal right cannot be preserved except by granting the 'extraordinary relief of an injunction in the federal courts.'13 Considering that '(f)ew public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies,'14 the usual rule of comity must govern the exercise of equitable jurisdiction by the District Court in this case. Whatever rights appellee may have are to be pursued through the state courts. Burford v. Sun Oil Co., 1943, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; Railroad Commission of Texas v. Rowan & Nichols Oil Co., 1941, 311 U.S. 570, 577, 61 S.Ct. 343, 346, 85 L.Ed. 358; Railroad Commission of Texas v. Rowan & Nichols Oil Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368, as amended, 1940, 311 U.S. 614, 615, 61 S.Ct. 66, 85 L.Ed. 390. 15 The Johnson Act, 48 Stat. 775 (1934), now 28 U.S.C. (Supp. III) § 1342, does not affect the result in this case. That Act deprived federal district courts of jurisdiction to enjoin enforcement of certain state administrative orders affecting public utility rates where 'A plain, speedy and efficient remedy may be had in the courts of such State.' As the order of the Alabama Service Commission involved in this case is not one affecting appellee's rates, the Johnson Act is not applicable. We have assumed throughout this opinion that the court below had jurisdiction, 341 U.S. 345, 71 S.Ct. 766, but hold that jurisdiction should not be exercised in this case as a matter of sound equitable discretion. 16 As this Court held in Great Lakes Dredge & Dock Co. v. Huffman, 1943, 319 U.S. 293, 297—298, 63 S.Ct. 1070, 1072, 1073, 87 L.Ed. 1407: 17 'This withholding of extraordinary relief by courts having authority to give it is not a denial of the jurisdiction which Congress has conferred on the federal courts * * *. On the contrary, it is but a recognition * * * that a federal court of equity * * * should stay its hand in the public interest when it reasonably appears that private interests will not suffer. * * * 18 'It is in the public interest that federal courts of equity should exercise their discretionary power to grant or withhold relief so as to avoid needless obstruction of the domestic policy of the states.'15 19 For the foregoing reasons, the judgment of the District Court is reversed. 20 Reversed. 21 Mr. Justice FRANKFURTER, whom Mr. Justice JACKSON joins, concurring in the result. 22 The Southern Railway asked leave of the Alabama Public Service Commission to take off two of its passenger trains. The Commission, deeming the service of these runs necessary for the communities served, denied leave. The Railway thereafter applied to the United States District Court for an injunction against the order of the Commission. The bill asking for this injunction was based on a claim under the Due Process Clause of the Fourteenth Amendment. The allegations of the bill and the proof under it failed to establish a substantial claim under the United States Constitution. Under familiar, well-established principles the District Court should have dismissed the bill. The Court likewise directs the District Court to dismiss the bill. But it chooses to do so by a line of argument in plain disregard of congressional legislation. Against that I am compelled to protest. 23 Alabama has the conventional feature of railroad regulatory legislation requiring leave of the State Public Service Commission for the discontinuance of trains. Ala. Code 1940, tit. 48, § 106. The Southern Railway Company asked permission to discontinue the two trains on the ground that, as segregated items of its total business in Alabama, these trains were operating at a substantial loss. The Commission refused permission after a full hearing, and no question of procedural due process is before us. 24 Southern brought its suit to restrain enforcement of the Commission order in the United States District Court for the Middle District of Alabama. The case was heard by a three-judge court, as required by 28 U.S.C. § 2281, and a permanent injunction was granted. A direct appeal to this Court lies from such a decision. 28 U.S.C. § 1253. 25 In holding that the order of the State Commission violated the Due Process Clause of the Fourteenth Amendment, the District Court relied chiefly upon the fact that the operation of the two trains involved a substantial loss. It has long been settled, however, that a requirement that a particular service be rendered at a loss does not make such a service confiscatory and thereby an unconstitutional taking of property. St. Louis & S.F.R. Co. v. Gill, 156 U.S. 649, 665—666, 667, 15 S.Ct. 484, 490, 491, 39 L.Ed. 567, 573; Atlantic Coast Line R. Co. v. North Carolina Comm., 206 U.S. 1, 27 S.Ct. 585, 51 L.Ed. 933; Missouri Pacific R. Co. v. State of Kansas, 216 U.S. 262, 278, 30 S.Ct. 330, 335, 54 L.Ed. 472; Chesapeake & O.R. Co. v. Public Service Comm. of State of West Virginia, 242 U.S. 603, 37 S.Ct. 234, 61 L.Ed. 520; Puget Sound Traction, Light & Power Co. v. Reynolds, 244 U.S. 574, 37 S.Ct. 705, 61 L.Ed. 1325; Fort Smith Light & Traction Co. v. Bourland, 267 U.S. 330, 45 S.Ct. 249, 69 L.Ed. 631; see Northern Pacific R. Co. v. North Dakota, 236 U.S. 585, 600, 35 S.Ct. 429, 434, 59 L.Ed. 735. 26 Unlike a department store or a grocery, a railroad cannot of its own free will discontinue a particular service to the public because an item of its business has become unprofitable. 'One of the duties of a railroad company doing business as a common carrier is that of providing reasonably adequate facilities for serving the public. This duty arises out of the acceptance and enjoyment of the powers and privileges granted by the State and endures so long as they are retained. It represents a part of what the company undertakes to do in return for them, and its performance cannot be avoided merely because it will be attended by some pecuniary loss.' Chesapeake & O.R. Co. v. Public Service Comm. of State of West Virginia, supra, 242 U.S. at page 607, 37 S.Ct. at page 236. 27 It is true that we have, on rare occasion, found an order requiring service so arbitrary as to constitute confiscation. Thus, in Northern Pacifi R. Co. v. North Dakota, supra, the State was attempting to force railroads to subsidize production of a particular commodity. In Mississippi Railroad Comm. v. Mobile & O.R. Co., 244 U.S. 388, 37 S.Ct. 602, 61 L.Ed. 1216, the Court concluded: 'Looking to the extent and productiveness of the business of the company as a whole, the small traveling population to be served, the character and large expense of the service required by this order, and to the serious financial conditions confronting the carrier, with the public loss and inconvenience which its financial failure would entail, we fully agree with the District Court in concluding that the order of the commission at the time and under the circumstances when it was issued was arbitrary and unreasonable * * *.' 244 U.S. at page 396, 37 S.Ct. at page 605. 28 In the case before us, the trains involved, Nos. 7 and 8, are local passenger trains operated between Sheffield-Tuscumbia, Alabama, and Chattanooga. Southern operates four other trains between these points. Nos. 45 and 46 do not stop at all stations and operate on a schedule inconvenient to the public here concerned. The State Commission found that the schedules of Nos. 35 and 36 'are not comparable to' those of Trains 7 and 8 and do not afford the same convenience. 29 It appears that the operation of Trains 7 and 8 resulted in a loss of $8,527.24 per month during the twelve-month period ending February 28, 1949. During the five-month period ending July 31, 1949, the loss amounted to $10,738.51 per month. But the railroad made no claim that it is operating at a loss, or failing to receive a fair return, either on its total investment or upon its investment within the State of Alabama. The record contains only the sketchiest findings concerning the operation of the railroad in its entirety. But it does appear that, although Southern has operated its passenger business at a loss aside from the war years, it has earned a substantial net operating income upon both its entire business and its service within the State of Alabama.1 This litigation seems to have been concerned almost exclusively with the operations of Trains 7 and 8. No showing whatever was made that by the loss incurred in running these trains Southern was deprived of that protection for its investment in Alabama which alone can be made the basis of a claim under the Due Process Clause of the Fourteenth Amendment. The lack of merit in the plaintiff's case is so clear that it calls for dismissal of the complaint. 30 Instead, as we have stated, this Court rests its decision on a ground that requires it to overturn a long course of decisions and, in effect, to repeal an act of Congress defining the jurisdiction of the district courts. It is undisputed that the plaintiff is asserting a claim under the Federal Constitution. The Court admits that the District Court has jurisdiction of the suit. 28 U.S.C. §§ 1331, 1332. It is said, however, that the District Court must decline to exercise this jurisdiction because judicial review of the order could have been had in the State courts. 31 In 1875, Congress for the first time (barring the abortive Act of 1801) opened the federal courts to claims based on a right under the Constitution or laws of the United States. Act of March 3, 1875, 18 Stat. 470.2 Theretofore such claims had to be pursued in the State courts and brought to this Court for review of the federal question under § 25 of the Judiciary Act of 1789, 1 Stat. 73, 85. In Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 391, 14 S.Ct. 1047, 1052, 38 L.Ed. 1014, we rejected the argument that suit could not be brought in the federal court to restrain the enforcement of a State agency order. The Court has consistently held to the view that it cannot overrule the determination of Congress as to whether federal courts should be allowed jurisdiction, concurrent with the State courts, even where the plaintiff seeks to restrain action of a State agency. Smyth v. Ames, 169 U.S. 466, 516, 18 S.Ct. 418, 422, 42 L.Ed. 819; Willcox v. Consolidated Gas Co., 212 U.S. 19, 40, 29 S.Ct. 192, 195, 53 L.Ed. 382; Bacon v. Rutland R. Co., 232 U.S. 134, 137, 34 S.Ct. 283, 284, 58 L.Ed. 538; Detroit & Mackinac R. Co. v. Michigan R. Comm., 235 U.S. 402, 35 S.Ct. 126, 59 L.Ed. 288; Oklahoma N. Gas Co. v. Russell, 261 U.S. 290, 293, 43 S.Ct. 353, 354, 67 L.Ed. 659; Prendergast v. New York Telephone Co. 262 U.S. 43, 47, 43 S.Ct. 466, 468, 67 L.Ed. 853; Pacific Telephone & Telegraph Co., v. Kuykendall, 265 U.S. 196, 201, 44 S.Ct. 553, 555, 68 L.Ed. 975; Railroad Warehouse Comm. of Minnesota v. Duluth St. R. Co., 273 U.S. 625, 628, 47 S.Ct. 489, 490, 71 L.Ed. 807; see Prentis v. Atlantic Coast Line R. Co., 211 U.S. 210, 228, 29 S.Ct. 67, 70, 53 L.Ed. 150. 32 These cases can be overruled. They cannot be explained away. The theory of the cases now discarded was clearly stated in Willcox v. Consolidated Gas Co., supra, decided the same Term as the Prentis case: 'That the case may be one of local interest only is entirely immaterial, so long as the parties are citizens of different States or a question is involved which by law brings the case within the jurisdiction of a Federal court. The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.' 212 U.S. at page 40, 29 S.Ct. at page 195. What the Court today holds is that if a plaintiff can be sent to a State court to challenge an agency order there is no federal court available to him.3 Since the body of decisions which hold the contrary is thus to be discarded, they ought not to be left as derelicts on the waters of the law. 33 In Congress, a prolonged debate has ensued over the wisdom of the broad grants of power made to the federal courts of original jurisdiction—power which may be invoked against State regulation of economic enterprise. Bill after bill has been proposed to prevent the lower federal courts from interfering with such State action. Finally, in 1910, by a provision in the Mann-Elkins Act, Congress provided that an action for an interlocutory injunction to restrain the action of a State officer acting under a statute alleged to violate the Federal Constitution be heard by a court of three judges, with a right of direct appeal to the Supreme Court. Act of June 18, 1910, § 17, 36 Stat. 539, 557. In 1913, this procedure was extended to applications for an interlocutory injunction to restrain enforcement of the order of a State board or commission. Act of March 4, 1913, 37 Stat. 1013. By the same statute, a State was empowered to keep litigation concerning the validity of State agency regulation in its own courts if it was willing to stay the administrative order.4 In 1925, the provision for a three-judge court and direct appeal was extended to a permanent injunction. Act of Feb. 13, 1925, c. 229, § 1, 43 Stat. 936, 938. 34 Congress, fully aware of the problem, was still not satisfied with the jurisdiction it had left to the federal district courts. Accordingly, in 1934, it passed the Johnson Act which withdrew their jurisdiction over suits to enjoin the enforcement of State rate orders, providing that a remedy was available in the State courts. Act of May 14, 1934, 48 Stat. 775. This restriction on a district court is not here applicable, for the order in controversy is not a rate order. In 1937, Congress further limited federal jurisdiction by providing that a district court could not enjoin enforcement of a State tax statute where a remedy was available in the State courts. Act of Aug. 21, 1937, 50 Stat. 738. 35 Plainly we are concerned with a jurisdictional issue which has been continuously before Congress and with which it has dealt by explicit and detailed legislation. Congress first made a broad grant of jurisdiction to the federal courts as to all constitutional and other federal claims. Experience gave rise to dissatisfaction with this grant and Congress began to hedge and limit the power. It required that the case be heard by three judges, that a speedy appeal be available, and that the State courts could have exclusive jurisdiction if they would stay the administrative order. It withdrew jurisdiction to enjoin enforcement of State statutes and orders in the two fields where the greatest dissatisfaction with federal jurisdiction existed rate orders and taxation—so long as a State remedy was available. But Congress did not take away the power of the district court to decide a case like the one before us. Instead, it recognized by the wording of § 17 of the Mann-Elkins Act and later legislation that it had given a right to resort to the federal courts and that such power was an obligatory jurisdiction, not to be denied because as a matter of policy it might be more desirable to raise such constitutional claims in a State court. 36 The Court rejects the guidance of these amendatory acts, all placing specific limitations upon the exercise of district court jurisdiction in cases affecting local regulation. Instead, the Court now limits the jurisdiction of the federal courts as though Congress had amended § 1331 of Title 28 to read: 'The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States, provided that the district courts shall not exercise this jurisdiction where a suit involves a challenge to an order of a state regulatory commission.' (New matter in italics.) 37 It does not change the significance of the Court's decision to coat it with the sugar of equity maxims. As we have seen, there is no warrant in the decisions of this Court for saying that the plaintiff has an 'adequate remedy at law' merely because he may bring suit in the State courts. An 'adequate remedy at law,' as a bar to equitable relief in the federal courts, refers to a remedy on the law side of federal courts. Petroleum Exploration, Inc., v. Public Service Commission, 304 U.S. 209, 217, 58 S.Ct. 834, 838, 82 L.Ed. 1294; Di Giovanni v. Camden Ins. Ass'n, 296 U.S. 64, 69, 56 S.Ct. 1, 3, 80 L.Ed. 47; Henrietta Mills v. Rutherford County, 281 U.S. 121, 126, 50 S.Ct. 270, 272, 74 L.Ed. 737; Risty v. Chicago, R.I. & Pac. R. Co., 270 U.S. 378, 388, 46 S.Ct. 236, 240, 70 L.Ed. 641. An equity court may decline to give relief by injunction if the plaintiff would be adequately compensated by money damages, his 'remedy at law'. Armour & Co. v. Dallas, 255 U.S. 280, 41 S.Ct. 291, 65 L.Ed. 635; City of Harrisonville v. W. S. Dickey Clay Co., 289 U.S. 334, 53 S.Ct. 602, 77 L.Ed. 1208. But it is not suggested that this suit should have been transferred to the law side of the federal court. 38 An equity court may also decline to issue an injunction if the interest of the plaintiff is relatively unimportant when compared to some overwhelming public interest. See Mr. Justice Brandeis, dissenting, in Truax v. Corrigan, 257 U.S. 312, 354, 374, 42 S.Ct. 124, 137, 145, 66 L.Ed. 254. See also Virginian R. Co. v. System Federation, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789. An equity court, in the exercise of its broad powers, may also decline to give relief if there are special circumstances which make it desirable for the court to stay its hand or decline to interfere. Thus, traditionally, an equity court will be reluctant to interfere with the administration of criminal justice. Beal v. Missouri Pacific R. Co., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577. It should avoid decision of a constitutional question when construction of a State statute in the State courts may make such a decision unnecessary. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. It may decline to consider a case which involves a specialized aspect of a complicated system of local law outside the normal competence of a federal court. Burford v. Sun Oil Co., 319 U.S. 315, 332 et seq., 63 S.Ct. 1098, 1106, 87 L.Ed. 1424. In that case, the majority found that the technicalities of oil regulation and the importance of competent, uniform review made it proper for the District Court to decline to exercise its equity jurisdiction. Again, an equity court, like a court of law for that matter, ought not to hear a case before the plaintiff has exhausted all available nonjudicial legal remedies. Prentis v. Atlantic Coast Line R. Co., supra. 39 Here the plaintiff has exhausted its nonjudicial remedies. Avery Freight Lines, Inc., v. Persons, 1947, 250 Ala. 40, 32 So.2d 886. Concededly there is no State statute to construe. There is no consideration which should make a court of equity, as a matter of discretion, decline to entertain a bill for an injunction. Nor does the situation in this suit involve a specialized field of State law in which out-of-State federal judges are not at home. On the contrary, the claim that is made here is within the easy grasp of federal judges, and certainly within the competence of three judges bred in Alabama law, with wide experience in its administration. The only reason for declining to entertain the suit is that it may well be more desirable as a matter of State-Federal relations for the order of a State agency to be reviewed originally in the State lower court and not to be challenged in the first instance in a federal court. It is not for me to quarrel with the wisdom of such a policy. But Congress, in the constitutional exercise of its power to define the jurisdiction of the inferior federal courts, has decided otherwise. 40 Equity by its very nature denies relief if, on balance of considerations of convenience relevant to equity, it would be inequitable to grant the extraordinary remedy of an injunction. Federal courts of equity have always acted on this equitable doctrine. But it was never a doctrine of equity that a federal court should exercise its judicial discretion to dismiss a suit merely because a State court could entertain it. 41 This is so because discretion based solely on the availability of a remedy in the State courts would for all practical purposes repeal the Act of 1875. This Act gave to the federal courts a jurisdiction not theretofore possessed so that a State could not tie up a litigant making such a claim by requiring that the bring suit for redress in its own courts. That jurisdiction was precisely the jurisdiction to hear constitutional challenge to local action on the basis of the vast limitations placed upon State action by the Civil War amendments. And precisely because of objections to the choice of courts given plaintiffs by the Act of 1875, Congress, by piecemeal restrictive legislation, did require that some federal claims against local regulatory action be litigated originally in State courts and from there brought here for review. 42 By one fell swoop the Court now finds that Congress indulged in needless legislation in the Acts of 1910, 1913, 1925, 1934 and 1937. By these measures, Congress, so the Court now decides, gave not only needless but inadequate relief, since it now appears that the federal courts have inherent power to aterilize the Act of 1875 against all proceedings challenging local regulation. For if this decision means anything beyond disposing of this particular litigation it means that hereafter no federal court should entertain a suit against any action of a State agency. For every State must afford judicial review in its courts of a claim under the Due Process Clause if such claim would give a federal court jurisdiction. In the absence of such judicial review in the State courts, State action under the doctrine of Ohio Valley Water Co. v. Borough of Ben Avon, 253 U.S. 287, 40 S.Ct. 527, 64 L.Ed. 908, would be nugatory because unconstitutional. 43 I regret my inability to make clear to the majority of this Court that its opinion is in flagrant contradiction with the unbroken course of decisions in this Court for seventy-five years. 1 Upon the filing of an application for permission to discontinue, the statute provides for notification of municipal officials, publication of notice in the area affected by the change in service, and a hearing by the Commission. Ala.Code, 1940, tit. 48, § 107. 'The commission, as it deems to the best interest of the public, may grant in part or in whole, or may refuse such applications, * * *.' Id. § 108. 2 Ala.Code 1940, tit. 48, § 79 et seq. 3 Under 28 U.S.C. (Supp. III) § 2281, only a district court of three judges may issue an injunction restraining enforcement of 'any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes * * *.' The word 'statute' comprehends all state legislative enactments, including those expresed through administrative orders. American Federation of Labor v. Watson, 1946, 327 U.S. 582, 591—593, 66 S.Ct. 761, 765, 766, 90 L.Ed. 873; Oklahoma Natural Gas Co. v. Russell, 1923, 261 U.S. 290, 292, 43 S.Ct. 353, 67 L.Ed. 359. 4 Appellants contend for the first time in this Court that a suit to restrain state officials from enforcing unconstitutional state laws is, in effect, a suit against the state prohibited by the Eleventh Amendment. The contention is not tenable in view of the many cases prior to and following Ex parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, in which this Court has granted such relief over the same objection. 5 The Alabama statute requiring application for a permit from the Alabama Public Service Commission before discontinuing transportation service was upheld by this Court in St. Louis-San Francisco R. Co. v. Alabama Public Service Commission, 1929, 279 U.S. 560, 79 S.Ct. 383, 73 L.Ed. 893. The statute was recently construed and applied by the Alabama Supreme Court in Alabama Public Service Commission v. Atlantic Coast Line R. Co., 1950, 253 Ala. 559, 45 So.2d 449. 6 Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 504—505, 67 S.Ct. 839, 840, 841, 91 L.Ed. 1055; Great Lakes Dredge & Dock Co. v. Huffman, 1943, 319 U.S. 293, 297, 63 S.Ct. 1070, 1072, 87 L.Ed. 1407; Atlas Life Ins. Co. v. W.I. Southern, Inc., 1939, 306 U.S. 563, 570, 59 S.Ct. 657, 660, 83 L.Ed. 987; Canada Malting Co., Ltd., v. Paterson Steamships, Ltd., 1932, 285 U.S. 413, 422—423, 52 S.Ct. 413, 415, 76 L.Ed. 837. 7 Appellee seeks to discontinue only two of several passenger trains serving the same communities. This is a proposed partial discontinuance and not an abandonment over which the Interstate Commerce Commission is given exclusive authority under 49 U.S.C. § 1(18—20), 49 U.S.C.A. § 1(18—20). State of Colorado v. United States, 1926, 271 U.S. 153, 46 S.Ct. 452, 70 L.Ed. 878. The I.C.C. has held that it has no authority under 49 U.S.C. § 1(18 20), 49 U.S.C.A. § 1(18—20) to authorize a partial discontinuance as such of intrastate passenger service. Kansas City Southern R. Co., 94 I.C.C. 691 (1925). New York Central R. Co., 254 I.C.C. 745, 765 (1944). 8 See 46th Annual Report, Interstate Commerce Commission (1950) 5—6; 63d Annual Report, Interstate Commerce Commission (1949) 4—5; Increased Freight Rates, 1948, 276 I.C.C. 9, 32—40 (1949); Proceedings, 61st Annual Convention, National Association of Railroad and Utilities Commissioners (1949) 378—382, 410—414. 9 As the jurisdiction of the Interstate Commerce Commission under 49 U.S.C. § 13(4), 49 U.S.C.A. § 13(4) has not been invoked for decision as to whether the continuance of this intrastate service constitutes an undue discrimination against interstate commerce we cannot, in this proceeding, consider any impact the order of the Alabama Public Service Commission might have on interstate commerce. Western & Atlantic R. Co. v. Georgia Public Service Comm., 1925, 267 U.S. 493, 45 S.Ct. 409, 69 L.Ed. 750, and cases cited therein. 10 Compare Pacific Telephone & Telegraph Co. v. Kuykendall, 1924, 265 U.S. 196, 44 S.Ct. 553, 68 L.Ed. 975, where supersedeas was not available to adequately protect federal rights, and Oklahoma Natural Gas Co. v. Russell, 1923, 261 U.S. 290, 43 S.Ct. 353, 67 L.Ed. 659, where supersedeas was sought but denied by the state court. 11 Compare such cases as Bacon v. Rutland R. Co., 1914, 232 U.S. 134, 34 S.Ct. 283, 58 L.Ed. 538, where State judicial review procedures plus review in this Court were thought to be inadequate. This inadequacy derived from the rationale that the federal right of a utility to be protected from confiscation of its property depended upon 'pure matters of fact' to the extent that a de novo hearing of such facts in a federal court was essential to the protection of constitutional rights. Prentis v. Atlantic Coast Line R. Co., 1908, 211 U.S. 210, 228, 29 S.Ct. 67, 70, 53 L.Ed. 150. See Lilienthal, The Federal Courts and State Regulation of Public Utilities, 43 Harv.L.Rev. 379, 424 (1930). The decisions in Railroad Commission of Texas v. Rowan & Nichols Oil Co., 1941, 311 U.S. 570, 576, 61 S.Ct. 343, 346, 85 L.Ed. 358, and State of New York v. United States, supra, holding that due process does not require relitigation of factual matters determined by an administrative body, eliminated the premise upon which equitable relief in Bacon rested. 12 Matthews v. Rodgers, 1932, 284 U.S. 521, 525, 52 S.Ct. 217, 219, 76 L.Ed. 447. See Com. of Pennsylvania v. Williams, 1935, 294 U.S. 176, 185, 55 S.Ct. 380, 385, 79 L.Ed. 841. 13 Railroad Commission of Texas v. Rowan & Nichols Oil Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368, as amended, 1940, 311 U.S. 614, 615, 61 S.Ct. 66, 85 L.Ed. 390. 14 Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971. 15 In Meredith v. Winter Haven, 1943, 320 U.S. 228, 237, 64 S.Ct. 7, 12, 88 L.Ed. 9, the Court sustained the exercise of jurisdiction by a federal court in a case involving matters of state law, but only where decision 'does not require the federal court to determine or shape state policy governing administrative agencies' and 'entails no interference with such agencies or with the state courts.' The absence of a legal remedy in the federal courts does not of itself justify the granting of equitable relief in such cases. Atlas Life Ins. Co. v. W.I. Southern, Inc., 1939, 306 U.S. 563, 569—570, 59 S.Ct. 657, 660, 83 L.Ed. 987. 1 The record contains no allegations or findings on the value of the railroad's property and no particulars concerning its accounting system. Finding 23 indicates that the railroad has had the following yearly 'net operating income' from its entire business: 1931-1941 (average). $16,232,045 1942-1945 (average). 35,561,045 1946-1948 (average). 23,278,299 Finding 24 indicates that the railroad has had the following yearly 'net operating income' from its service within Alabama: 1936-1941 (average).$1,508,282 1942-1945 (average). 4,220,203 1946-1948 (average). 2,598,459 2 Jurisdiction over cases where there is diversity of citizenship was conferred by § 11 of the Judiciary Act of 1789. 1 Stat. 73, 78. In Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9, we held that in an equity case the District Court could not decline to exercise its jurisdiction merely because matters of State law were involved. 3 We are told by the Court: 'Compare such cases as Bacon v. Rutland R. Co., 1914, 232 U.S. 134, 34 S.Ct. 283, 58 L.Ed. 538, where State judicial review procedures plus review in this Court were thought to be inadequate.' There is not the shadow of a hint in the Bacon case to warrant such an explanation of it. No such thing was 'thought' before today's decision. The Bacon case is merely an instance of what until today was the settled doctrine that a railroad company had the choice of going either into the State court or into the federal court to press a federal constitutional claim. It is suggested that the 'inadequacy' of State judicial review, by which the Bacon case is now sought to be explained, 'derived from the rationale that the federal right of a utility to be protected from confiscation of its property depended upon 'pure matters of fact' to the extent that a de novo hearing of such facts in a federal court was essential to the protection of constitutional rights. Prentis v. Atlantic Coast Line R. Co., 1908, 211 U.S. 210, 228, 29 S.Ct. 67, 70, 53 L.Ed. 150.' I regret the necessity for saying again that there is no warrant whatever for this statement. It cannot be found at the place cited in the Prentis opinion. That merely repeats the doctrine of the numerous cases after the Act of 1875 that a plaintiff has a choice of State or federal court where a constitutional claim is made: 'All their constitutional rights, we repeat, depend upon what the facts are found to be. They are not to be forbidden to try those facts before a court of their own choosing if otherwise competent. 'A State cannot tie up a citizen of another State, having property within its territory invaded by unauthorized acts of its own officers, to suits for redress in its own courts.' Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 391 (14 S.Ct. 1047, 1052, 38 L.Ed. 1014); Smyth v. Ames, 169 U.S. 466, 517 (18 S.Ct. 418, 422, 42 L.Ed. 819. See McNeill v. Southern Railway Co., 202 U.S. 543 (26 S.Ct. 722, 50 L.Ed. 1142); Ex parte Young, 209 U.S. 123, 165 (28 S.Ct. 441, 456, 52 L.Ed. 714).' 4 'It is further provided that if before the final hearing of such application a suit shall have been brought in a court of the State having jurisdiction thereof under the laws of such State, to enforce such statute or order, accompanied by a stay in such State court of proceedings under such statute or order pending the determination of such suit by such State court, all proceedings in any court of the United States to restrain the execution of such statute or order shall be stayed pending the final determination of such suit in the courts of the State.' 37 Stat. 1014. See 28 U.S.C. § 2284(5). Alabama did not avail itself of this means for taking the litigation from the federal court.

89

341 U.S. 367 71 S.Ct. 783 95 L.Ed. 1019 TENNEY et al.v.BRANDHOVE. No. 338. Argued March 1, 1951. Decided May 21, 1951. Mr. Harold C. Faulkner, San Francisco, Cal., for petitioners. Messrs. Martin J. Jarvis, Richard O. Graw, San Francisco, Cal., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 William Brandhove brought this action in the United States District Court for the Northern District of California, alleging that he had been deprived of rights guaranteed by the Federal Constitution. The defendants are Jack B. Tenney and other members of a committee of the California Legislature, the Senate Fact-Finding Committee on Un-American Activities, colloquially known as the Tenney Committee. Also named as defendants are the Committee and Elmer E. Robinson, Mayor of San Francisco. 2 The action is based on §§ 43 and 47(3) of Title 8 of the United States Code, 8 U.S.C.A. §§ 43, 47(3). These sections derive from one of the statutes, passed in 1871, aimed at enforcing the Fourteenth Amendment. Act of April 20, 1871, c. 22, §§ 1, 2, 17 Stat. 13. Section 43 provides: 3 '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 proceeding for redress.' R.S. § 1979, 8 U.S.C. § 43, U.S.C.A. § 43. 4 Section 47(3) provides a civil remedy against 'two or more persons' who may conspire to deprive another of constitutional rights, as therein defined.1 5 Reduced to its legal essentials, the complaint shows these facts. The Tenney Committee was constituted by a resolution of the California Senate on June 20, 1947. On January 28, 1949, Brandhove circulated a petition among members of the State Legislature. He alleges that it was circulated in order to persuade the Legislature not to appropriate further funds for the Committee. The petition charged that the Committee had used Brandhove as a tool in order 'to smear Congressman Franck R. Havenner as a 'Red' when he was a candidate for Mayor of San Francisco in 1947; and that the Republican machine in San Francisco and the campaign management of Elmer E. Robinson, Franck Havenner's opponent, conspired with the Tenney Committee to this end.' In view of the conflict between this petition and evidence previously given by Brandhove, the Committee asked local prosecuting officials to institute criminal proceedings against him. The Committee also summoned Brandhove to appear before them at a hearing held on January 29. Testimony was there taken from the Mayor of San Francisco, allegedly a member of the conspiracy. The plaintiff appeared with counsel, but refused to give testimony. For this, he was prosecuted for contempt in the State courts. Upon the jury's failure to return a verdict this prosecution was dropped. After Brandhove refused to testify, the Chairman quoted testimony given by Brandhove at prior hearings. The Chairman also read into the record a statement concerning an alleged criminal record of Brandhove, a newspaper article denying the truth of his charges, and a denial by the Committee's counsel—who was absent that Brandhove's charges were true. 6 Brandhove alleges that the January 29 hearing 'was not held for a legislative purpose,' but was designed 'to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights of free speech and to petition the Legislature for redress of grievances, and also to deprive him of the equal protection of the laws, due process of law, and of the enjoyment of equal privileges and immunities as a citizen of the United States under the law, and so did intimidate, silence, deter, and prevent and deprive plaintiff.' Damages of $10,000 were asked 'for legal counsel, traveling, hotel accommodations, and other matters pertaining and necessary to his defense' in the contempt proceeding arising out of the Committee hearings. The plaintiff also asked for punitive damages. 7 The action was dismissed without opinion by the District Judge. The Court of Appeals for the Ninth Circuit held, however, that the complaint stated a cause of action against the Committee and its members. 183 F.2d 121.2 We brought the case here because important issues are raised concerning the rights of individuals and the power of State legislatures. 340 U.S. 903, 71 S.Ct. 279. 8 We are again faced with the Reconstruction legislation which caused the Court such concern in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, and in the Williams cases decided this term. Williams v. U.S., 341 U.S. 97, 71 S.Ct. 576; Id., 341 U.S. 70, 71 S.Ct. 581; Id., 341 U.S. 58, 71 S.Ct. 595. But this time we do not have to wrestle with far-reaching questions of constitutionality or even of construction. We think it is clear that the legislation on which this action is founded does not impose liability on the facts before us, once they are related to the presuppositions of our political history. 9 The privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries. As Parliament achieved increasing independence from the Crown, its statement of the privilege grew stronger. In 1523, Sir Thomas More could make only a tentative claim. Roper, Life of Sir Thomas More, in More's Utopia (Adams ed.) 10. In 1668, after a long and bitter struggle, Parliament finally laid the ghost of Charles I, who had prosecuted Sir John Elliot and others for 'seditious' speeches in Parliament. Proceedings against Sir John Elliot, 3 How. St.Tr., 294, 332. In 1689, the Bill of Rights declared in unequivocal language: 'That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.' 1 Wm. & Mary, Sess. 2, c. II. See Stockdale v. Hansard, 9 Ad. & El. 1, 113—114 (1839). 10 Freedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation. It was deemed so essential for representatives of the people that it was written into the Articles of Confederation and later into the Constitution. Article V of the Articles of Confederation is quite close to the English Bill of Rights: 'Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress * * *.' Article I, § 6, of the Constitution provides: '* * * for any Speech or Debate in either House, (the Senators and Representatives) shall not be questioned in any other Place.' 11 The reason for the privilege is clear. It was well summarized by James Wilson, an influential member of the Committee of Detail which was responsible for the provision in the Federal Constitution. 'In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.' II Works of James Wilson (Andrews ed. 1896) 38. See the statement of the reason for the privilege in the Report from the Select Committee on the Official Secrets Acts (House of Commons, 1939) xiv. 12 The provision in the United States Constitution was a reflection of political principles already firmly established in the States. Three State Constitutions adopted before the Federal Constitution specifically protected the privilege. The Maryland Declaration of Rights, Nov. 3, 1776, provided: 'That freedom of speech, and debates or proceedings in the Legislature, ought not to be impeached in any other court or judicature.' Art. VIII. The Massachusetts Constitution of 1780 provided 'The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever.' Part I, Art. XXI. Chief Justice Parsons gave the following gloss to this provision in Coffin v. Coffin, 1808, 4 Mass. 1, 27: 13 'These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office; and I would define the article as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules.' 14 The New Hampshire Constitution of 1784 provided: 'The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any action, complaint, or prosecution, in any other court or place whatsoever.' Part I, Art. XXX.3 15 It is significant that legislative freedom was so carefully protected by constitutional framers at a time when even Jefferson expressed fear of legislative excess.4 For the loyalist executive and judiciary had been deposed, and the legislature was supreme in most States during and after the Revolution. 'The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.' Madison, The Federalist, No. XLVIII. 16 As other States joined the Union or revised their Constitutions, they took great care to preserve the principle that the legislature must be free to speak and act without fear of criminal and civil liability. Forty-one of the forty-eight States now have specific provisions in their Constitutions protecting the privilege.5 17 Did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here? Did it mean to subject legislators to civil liability for acts done within the sphere of legislative activity? Let us assume, merely for the moment, that Congress has constitutional power to limit the freedom of State legislators acting within their traditional sphere. That would be a big assumption. But we would have to make an ever rasher assumption to find that Congress thought it had exercised the power. These are difficulties we cannot hurdle. The limits of §§ 1 and 2 of the 1871 statute—now §§ 43 and 47(3) of Title 8—were not spelled out in debate. We cannot believe that Congress—itself a staunch advocate of legislative freedom—would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us. 18 We come then to the question whether from the pleadings it appears that the defendants were acting in the sphere of legitimate legislative activity. Legislatures may not of course acquire power by an unwarranted extension of privilege. The House of Commons' claim of power to establish the limits of its privilege has been little more than a pretense since Ashby v. White, 2 Ld. Raym, 938, 3 Id. 320. This Court has not hesitated to sustain the rights of private individuals when it found Congress was acting outside its legislative role. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; Marshall v. Gordon, 243 U.S. 521, 37 S.Ct. 448, 61 L.Ed. 881; compare McGrain v. Daugherty, 273 U.S. 135, 176, 47 S.Ct. 319, 329, 71 L.Ed. 580. 19 The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives. The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130, 3 L.Ed. 162, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned. See cases cited in State of Arizona v. State of California, 283 U.S. 423, 455, 51 S.Ct. 522, 526, 75 L.Ed. 1154. 20 Investigations, whether by standing or special committees, are an established part of representative government.6 Legislative committees have been charged with losing sight of their duty of disinterestedness. In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed.7 Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses. The courts should not go beyond the narrow confines of determining that a committee's inquiry may fairly be deemed within its province. To find that a committee's investigation has exceeded the bounds of legislative power it must be obvious that there was a usurpation of functions exclusively vested in the Judiciary or the Executive. The present case does not present such a situation. Brandhove indicated that evidence previously given by him to the committee was false, and he raised serious charges concerning the work of a committee investigating a problem within legislative concern. The Committee was entitled to assert a right to call the plaintiff before it and examine him. 21 It should be noted that this is a case in which the defendants are members of a legislature. Legislative privilege in such a case deserves greater respect than where an official acting on behalf of the legislature is sued or the legislature seeks the affirmative aid of the courts to assert a privilege. In Kilbourn v. Thompson, supra, this Court allowed a judgment against the Sergeant-at-Arms, but found that one could not be entered against the defendant members of the House. 22 We have only considered the scope of the privilege as applied to the facts of the present case. As Mr. Justice Miller said in the Kilbourn case: 'It is not necessary to decide here that there may not be things done, in the one House or the other, of an extraordinary character, for which the members who take part in the act may be held legally responsible.' 103 U.S. at page 204. We conclude only that here the individual defendants and the legislative committee were acting in a field where legislators traditionally have power to act, and that the statute of 1871 does not create civil liability for such conduct. 23 The judgment of the Court of Appeals is reversed and that of the District Court affirmed. 24 Reversed. 25 Mr. Justice BLACK, concurring. 26 The Court holds that the Civil Rights statutes1 were not intended to make legislators personally liable for damages to a witness injured by a committee exercising legislative power. This result is reached by reference to the long-standing and wise tradition that legislators are immune from legal responsibility for their intra-legislative statements and activities. The Court's opinion also points out that Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, held legislative immunity to have some limits. And today's decision indicates that there is a point at which a legislator's conduct so far exceeds the bounds of legislative power that he may be held personally liable in a suit brought under the Civil Rights Act. I substantially agree with the Court's reasoning and its conclusion. But since this is a difficult case for me, I think it important to emphasize what we do not decide here. 27 It is not held that the validity of legislative action is coextensive with the personal immunity of the legislators. That is to say, the holding that the chairman and the other members of his Committee cannot be sued in this case is not a holding that their alleged persecution of Brandhove is legal conduct. Indeed, as I understand the decision, there is still much room for challenge to the Committee action. Thus for example, in any proceeding instituted by the Tenney Committee to fine or imprison Brandhove on perjury, contempt or other charges, he would certainly be able to defend himself on the ground that the resolution creating the Committee or the Committee's actions under it were unconstitutional and void. 28 In this connection it is not out of place to observe that the resolution creating the Committee is so broadly drawn that grave doubts as raised as to whether the Committee could constitutionally exercise all the powers purportedly bestowed on it.2 In part, the resolution directs the Committee 'to ascertain * * * all facts relating to the activities of persons and groups known or suspected to be dominated or controlled by a foreign power, and who owe allegiance thereto because of religious, racial, political, ideological, philosophical, or other ties, including but not limited to the influence upon all such persons and groups of education, economic circumstances, social positions, fraternal and casual associations, living standards, race, religion, politics, ancestry and the activities of paid provocation * * *.' Cal. Senate Resolution 75, June 20, 1947. 29 Of course the Court does not in any way sanction a legislative inquisition of the type apparently authorized by this resolution. 30 Unfortunately, it is true that legislative assemblies, born to defend the liberty of the people, have at times violated their sacred trusts and become the instruments of oppression. Many specific instances could be cited but perhaps the most recent spectacular illustration is the use of a committee of the Argentine Congress as the instrument to strangle the independent newspaper La Prensa because of the views it espoused.3 In light of this Argentine experience, it does not seem inappropriate to point out that the right of every person in this country to have his say, however unorthodox or unpopular he or his opinions may be, is guaranteed by the same constitutional amendment that protects the free press. Those who cherish freedom of the press here would do well to remember that this freedom cannot long survive the legislative snuffing out of freedom to believe and freedom to speak. 31 Mr. Justice DOUGLAS, dissenting. 32 I agree with the opinion of the Court as a statement of general principles governing the liability of legislative committees and members of the legislatures. But I do not agree that all abuses of legislative committees are solely for the legislative body to police. 33 We are dealing here with a right protected by the Constitution—the right of free speech. The charge seems strained and difficult to sustain; but it is that a legislative committee brought the weight of its authority down on respondent for exercising his right of free speech. Reprisal for speaking is as much an abridgment as a prior restraint. If a committee departs so far from its domain to deprive a citizen of a right protected by the Constitution, I can think of no reason why it should be immune. Yet that is the extent of the liability sought to be imposed on petitioners under 8 U.S.C. § 43, 8 U.S.C.A. § 43.1 34 It is speech and debate in the legislative department which our constitutional scheme makes privileged. Included, of course, are the actions of legislative committees that are authorized to conduct hearings or make investigations so as to lay the foundation for legislative action. But we are apparently holding today that the actions of those committees have no limits in the eyes of the law. May they depart with impunity from their legislative functions, sit as kangaroo courts, and try men for their loyalty and their political beliefs? May they substitute trial before committees for trial before juries? May they sit as a board of censors over industry, prepare their blacklists of citizens, and issue pronouncements as devastating as any bill of attainder? 35 No other public official has complete immunity for his actions. Even a policeman who exacts a confession by force and violence can be held criminally liable under the Civil Rights Act, as we ruled only the other day in Williams v. United States, 341 U.S. 97, 71 S.Ct. 576. Yet now we hold that no matter the extremes to which a legislative committee may go it is not answerable to an injured party under the civil rights legislation. That result is the necessary consequence of our ruling since the test of the statute, so far as material here, is whether a constitutional right has been impaired, not whether the domain of the committee was traditional. It is one thing to give great leeway to the legislative right of speech, debate, and investigation. But when a committee perverts its power, brings down on an individual the whole weight of government for an illegal or corrupt purpose, the reason for the immunity ends. It was indeed the purpose of this civil rights legislation to secure federal rights against invasion by officers and agents of the states. I see no reason why any officer of government should be higher than the Constitution from which all rights and privileges of an office obtain. 1 R.S. § 1980 (pt. 3), 8 U.S.C. § 47(3), 8 U.S.C.A. § 47(3): 'If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, and person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice-President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.' 2 The Court of Appeals affirmed the dismissal as to Robinson on the ground that he was not acting under color of law and that the complaint did not show him to be a member of a conspiracy. We have denied a petition to review this decision. Brandhove v. Robinson, 341 U.S. 936, 71 S.Ct. 853. 3 In two State Constitutions of 1776, the privilege was protected by general provisions preserving English law. See S.Car.Const.1776, Art. VII; N.J.Const.1776, Art. XXII. Compare N.Car.Const.1776, Part II, Art. XLV. Three other of the original States made specific provision to protect legislative freedom immediately after the Federal Constitution was adopted. See Pa.Const.1790, Art. I, § 17; Ga.Const.1789, Art. I, § 14; Del.Const.1792, Art. II, § 11. Connecticut and Rhode Island so provided in the first constitutions enacted to replace their uncodified organic law. Conn.Const.1818, Art. III, § 10; R.I.Const.1842, Art. IV, § 5. In New York, the Bill of Rights passed by the legislature on January 26, 1787, provided: 'That the freedom of speech and debates, and proceedings in the senate and assembly, shall not be impeached or questioned in any court or place out of the senate or assembly.' In Virginia, as well as in the other colonies, the assemblies had built up a strong tradition of legislative privilege long before the Revolution. See Clarke, Parliamentary Privilege in the American Colonies (1943), passim, especially 70 and 93 et seq. 4 See Jefferson, Notes on the State of Virginia (3d Am. ed. 1801) 174—175. The Notes were written in 1781. See also, a letter from Jefferson to Madison, March 15, 1789, to be published in a forthcoming volume of The Papers of Thomas Jefferson (Boyd ed.): 'The tyranny of the legislatures is the most formidable dread at present, and will be for long years.' As to the political currents at the time the United States Constitution and the State Constitutions were formulated, see Corwin, The Progress of Constitutional Theory between the Declaration of Independence and the Meeting of the Philadelphia Convention, 30 Am.Hist.Rev. 511 (1925). 5 Ala.Const. Art. IV, § 56; Ariz.Const. Art. IV (ii), § 7; Ark.Const. Art. V, § 15; Colo.Const. Art. V, § 16; Conn.Const. Art. III, § 10; Del.Const. Art. II, § 13; Ga.Const. Art. III, § vii, par. 3; Idaho Const. Art. III, § 7; Ill.Const. Art. IV, § 14; Ind.Const. Art. IV, § 8; Kans.Const. Art. II, § 22; Ky.Const. § 43; La.Const. Art. III, § 13; Me.Const. Art. IV(iii), § 8; Md.D.R. 10, Art. III, § 18; Mass. Pt. I, Art. 21; Mich.Const. Art. V, § 8; Minn.Const. Art. IV, § 8; Mo.Const. Art. III, § 19; Mont.Const. Art. V, § 15; Nebr.Const. Art. III, § 26; N.H.Const. Pt. I, Art. 30; N.J.Const. Art. IV, § iv, par. 8; N.M.Const. Art. IV, § 13; N.Y.Const. Art. III, § 11; N.D.Const. Art. II, § 42; Ohio Const. Art. II, § 12; Okla.Const. Art. V, § 22; Ore.Const. Art. IV, § 9; Pa.Const. Art. II, § 15; R.I.Const. Art. IV, § 5; S.D.Const. Art. III, § 11; Tenn.Const. Art. II, § 13; Tex.Const. Art. III, § 21; Utah Const. Art. VI, § 8; Vt.Const. ch. I, Art. 14; Va.Const. Art. IV, § 48; Wash.Const. Art. II, § 17; W.Va.Const. Art. VI, § 17; Wis.Const., Art. IV, § 16; Wyo.Const. Art. III, § 16. Compare Iowa Const Art. III, § 10; N.C.Const. Art. II, § 17 (right of legislator to protest action of legislature). See also, Calif.Const. Art. IV, § 11; Iowa Const. Art. III, § 11; Miss.Const. Art. IV, § 48; Nev.Const., Art. IV, § 11; S.C.Const. Art. III, § 14 (freedom from arrest). Only the Florida Constitution has no provision concerning legislative privilege. 6 See Wilson, Congressional Government (1885), 303: 'It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. 7 See Dilliard, Congressional Investigations: The Role of the Press, 18 U. of Chi.L.Rev. 585. 1 8 U.S.C. §§ 43, 47(3), 8 U.S.C.A. §§ 43, 47(3). 2 See Judge Edgerton dissenting in Barsky v. United States, 83 U.S.App.D.C. 127, 138, 167 F.2d 241, 252; Judge Charles E. Clark dissenting in United States v. Josephson, 2 Cir., 165 F.2d 82, 93. 3 N.Y. Times, Mar. 16, 1951, p. 1, col. 2; N.Y.Times, Mar. 17, 1951, p. 1, col. 2. The situation was graphically described in an editorial appearing in La Nacion of Buenos Aires on March 18, 1951: 'But no one could have imagined until this moment that Congress, properly invested with implicit powers of investigation, could decree interventions of this nature intended to carry out acts which, under no circumstances, come within the province of the Legislature. In the present case this alteration of functions is of unusual importance because it affects an inviolable constitutional principle. If Congress cannot dictate 'laws restrictive of the freedom of the press' (Art. 23, Argentine Constitution) which would be the only possible step within its specific function, how could it take possession of newspapers, hinder their activity and decide their fate, all these being acts whereby the exercise of that same freedom is rendered impracticable? If such a state of things is permitted and becomes generalized, then it means that the repetition of these acts whenever it is deemed suitable in view of conflicting opinions, would cause the constitutional guarantee to be utterly disregarded. * * * Last year the activities of an investigating congressional commission (The Committee on Anti-Argentine Activities), appointed for another concrete purpose, served to bring about the closure of up to 49 newspapers in one day. * * *' See generally, Editor & Publisher, Mar. 24, 1951, p. 5. 1 'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, and 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 proceeding for redress.'

12

341 U.S. 491 71 S.Ct. 820 95 L.Ed. 1135 HAMMERSTEINv.SUPERIOR COURT OF CALIFORNIA et al. No. 421. Argued March 9, 1951. Decided May 28, 1951. Mr. Milton A. Rudin, Los Angeles, Cal., for petitioner. Mr. E. Loyd Saunders, Los Angeles, Cal., for respondents. PER CURIAM. 1 After argument, we continued this cause to enable the petitioner to apply for a certificate or other expression from the appropriate California courts to show whether the judgments rested on adequate and independent state grounds or whether decision of the federal question was necessary to the judgments rendered. 1951, 340 U.S. 622, 71 S.Ct. 521. Such expressions have been obtained. 2 The Supreme Court has informed us that its refusal to grant a writ of certiorari from the default judgment entered by the Superior Court was based upon petitioner's failure to utilize the proper channel of review, namely, his failure to appeal from the default judgment. Inasmuch as our jurisdiction to review state court judgments extends only to final judgments rendered 'by the highest court of a State in which a decision could be had,' 28 U.S.C. § 1257, we have no jurisdiction to review the proceedings arising from the default judgment. 3 The District Court of Appeal has informed us that the decision of the federal question was essential to its denial of the application for writ of prohibition, and that its judgment did not rest upon an independent state ground. The expression we have received from the California Supreme Court is also susceptible of the interpretation that its denial of a hearing from the judgment of the District Court of Appeal was based upon an adequate state ground. We do not consider the force of that statement since it is clear that the judgment properly before us is that of the District Court of Appeal, which did decide the federal question. See American Railway Express Co. v. Levee, 1923, 263 U.S. 19, 20—21, 44 S.Ct. 11, 12, 68 L.Ed. 140. We have jurisdiction over that judgment. Rescue Army v. Municipal Court, 1947, 331 U.S. 549, 565 568, 67 S.Ct. 1409, 1417, 1419, 91 L.Ed. 1666; Bandini Co. v. Superior Court, 1931, 284 U.S. 8 at 14, 52 S.Ct. 103, 105, 76 L.Ed. 136, and cases cited. 4 The presence of jurisdiction upon petition for writ of certiorari does not, of course, determine the exercise of that jurisdiction, for the issuance of the writ is discretionary. In this case petitioner could have obtained review of the final adjudication of the merits by appealing from the default judgment. The California Supreme Court has apparently refrained from taking action because of the existence of that remedy. In these circumstances we think it advisable not to exercise our jurisdiction. The writ is therefore dismissed as improvidently granted. Cf. Loftus v. Illinois, 1949, 337 U.S. 935, 69 S.Ct. 1511, 93 L.Ed. 1741; Phyle v. Duffy, 1948, 334 U.S. 431, 68 S.Ct. 1131, 92 L.Ed. 1494; Hedgebeth v. North Carolina, 1948, 334 U.S. 806, 68 S.Ct. 1185, 92 L.Ed. 1739. 5 Writ dismissed. 6 Mr. Justice BLACK, Mr. Justice DOUGLAS, Mr. Justice JACKSON and Mr. Justice CLARK dissent.

89

341 U.S. 412 71 S.Ct. 806 95 L.Ed. 1062 RADIO CORP. OF AMERICA et al.v.UNITED STATES et al. No. 565. Argued March 26, 27, 1951. Decided May 28, 1951. [Syllabus from 413 intentionally omitted] John T. Cahill, New York City, for appellants Radio Corp. of America and others. Simon H. Rifkind, New York City, for appellant Emerson Radio & Phonograph Corp. Alfred Kamin, Chicago, Ill., for appellant Local 1031, International Brotherhood of Electrical Workers, A.F.L. Philip B. Perlman, Solicitor Gen., Washington, D.C., for appellees United States and Federal Communications Commission. Samuel I. Rosenman, New York City, for appellee Columbia Broadcasting Co., Inc. A. L. Schapiro, B. C. Schiff, Chicago, Ill., for intervenor-appellant Pilot Radio Corp. Mr. Justice BLACK delivered the opinion of the Court. 1 Radio Corporation of America (RCA) and two of its subsidiaries brought this action in a three-judge District Court to enjoin and set aside an order of the Federal Communications Commission prescribing standards for transmission of color television.1 The effect of the challenged order was to reject a color system proposed by RCA and to accept one proposed by the Columbia Broadcasting System (CBS).2 The basis of RCA's complaint was that the order had been entered arbitrarily and capriciously, without the support of substantial evidence, against the public interest, and contrary to law. After hearing and oral argument, the District Court entered summary judgment sustaining the Commission, one judge dissenting.3 RCA and the other plaintiffs took this direct appeal under 28 U.S.C. § 1253 and § 2101(b). 2 At the outset we are faced with RCA's contention that the District Court failed to review the record as a whole in determining whether the Commission's order was supported by substantial evidence; it is urged that for this reason we should summarily reverse and remand the case for further consideration by that court. If RCA's premise were correct, the course which it suggests might be wholly appropriate. For as pointed out recently, in considering the question of sufficiency of evidence to support an administrative order this Court must and does rely largely on a first reviewing court's conclusion. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456. The present case, however, need not be returned for further scrutiny below because we are convinced that the review already afforded did not fall short of that which is required. The District Court heard oral argument for three days and deliberated for about five weeks before handing down its decision. Both the majority and dissenting opinions show a familiarity with RCA's basic contention (and the minor ones as well) that could have come only from careful study of the record as a whole. To be sure, there was a casual statement in the majority opinion susceptible of the interpretation that the court in reaching the decision made an examination of the record less complete than it should have been.4 Fairly construed, however, the remark, while perhaps unfortunate, is entirely consistent with that conscientious review which we are satisfied was given this record by the District Court. We therefore pass to the question of validity of the Commission's order. 3 All parties agree, as they must, that given a justifiable fact situation, the Commission has power under 47 U.S.C. § 303(c), (e), (f), (g), 47 U.S.C.A. § 303(c, e—g)5 to do precisely what it did in this case, namely, to promulgate standards for transmission of color television that result in rejecting all but one of the several proposed systems. Moreover, it cannot be contended seriously that the Commission in taking such a course was without evidential support for its refusal to adopt the RCA system at this time.6 The real argument, advanced at great length and in many different forms, boils down to this: Viewing the record as a whole, the Commission as a matter of law erred in concluding that the CBS color system had reached a state of development which justified its acceptance to the exclusion of RCA's and that of others. Consequently, before the Commission, the District Court and here, RCA's main attempt has been to persuade that no system has yet been proven worthy of acceptance for public use, that commercial color broadcasting must be postponed awaiting inventions that will achieve more nearly perfect results. 4 We sustain the Commissioner's power to reject this position and hold valid the challenged order, buttressed as it is by the District Court's approval. To explain our conclusion it is unnecessary to repeat the detailed statement of facts made in the majority and minority opinions of the Commission and District Court.7 Nor, for present purposes, it is necessary to attempt a translation of the technical terms invented to carry meanings in the rapidly growing television industry. It will suffice to give the following brief summary of the background of the Commission's findings and what was found: 5 Standards for black and white television transmission were first promulgated by the Commission in 1941. RCA's complaint alleges, and all apparently agree, that 'The quality of the present (black and white) service, the improvements and reductions in price to the public that have been made, the incredible expansion of the industry as a whole, are all due to the fact that manufacturers could build upon a single set of long-range high-quality standards.'8 From 1941 until now the Commission has been engaged in consideration of plans and proposals looking toward promulgation of a single set of color standards.9 CBS apparently made quicker progress in developing an acceptable system than did others.10 It was soon attacked, however, on the ground that it was utilizing old knowledge highly useful in the realm of the physical sciences and mechanical practices but incongruous in the new fields of electronics occupied by television. This is still the core of the objection to the CBS system, together with the objection that existing receiving sets are not constructed in such a way that they can, without considerable adjustments, receive CBS color broadcasts either in color or black and white. The fact that adjustments are required before a CBS color broadcast can be received in black and white on existing sets makes this system 'incompatible' with the millions of television receivers now in the hands of the public. 6 There is no doubt that a 'compatible' color television system would be desirable. Recognition of this fact seems to be the controlling reason why the Commission did not long ago approve the 'incompatible' CBS system. In the past, it has postponed adoption of standards with the hope that a satisfactory 'compatible' color television system would be developed. But this time, in light of previous experience, the Commission thought that further delay in making color available was too high a price to pay for possible, 'compatibility' in the future, despite RCA's claim that it was on the verge of discovering an acceptable 'compatible' system. 7 The Commission's special familiarity with the problems involved in adopting standards for color television is amply attested by the record. It has determined after hearing evidence on all sides that the CBS system will provide the public with color of good quality and that television viewers should be given an opportunity to receive it if they so desire.11 This determination certainly cannot be held capricious. It is true that the choice between adopting standards now or at a later date was not free from difficulties. Moreover, the wisdom of the decision made can be contested as is shown in the dissenting opinions of two Commissioners. But courts should not overrule an administrative decision merely because they disagree with its wisdom.12 We cannot say the District Court misapprehended or misapplied the proper judicial standard in holding that the Commission's order was not arbitrary or against the public interest as a matter of law.13 8 Whether Commission should have reopened its proceeedings to permit RCA to offer proof of new discoveries for its system was a question within the discretion of the Commission which we find was not abused.14 We have considered other minor contentions made by RCA but are satisfied with the way the District Court disposed of them. 9 The District Court's judgment sustaining the order of the Commission is 10 Affirmed. 11 Mr. Justice FRANKFURTER, dubitante. 12 Since I am not alone in entertaining doubts about this case they had better be stated. The ultimate issue is the function of this Court in reviewing an order of the Federal Communications Commission, adopted October 10, 1950, whereby it promulgated standards for the transmission of color television. The significance of these standards lies in the sanction of a system of 'incompatible' color television, that is, a system requiring a change in existing receivers for the reception of black and white as well as colored pictures. The system sanctioned by the Commission's order will require the addition of an appropriate gadget to the millions of outstanding receiving sets at a variously estimated, but in any event substantial, cost. From the point of view of the public interest, it is highly desirable to have a color television system that is compatible. The Commission's order sanctioning an incompatible system is based not on the scientific unattainability of a compatible system, nor even on a forecast that its feasibility is remote. It rests on the determination that inasmuch as compatibility has not yet been achieved, while a workable incompatible system has proven itself, such a system, however intrinsically unsatisfactory, ought no longer to be withheld from the public. 13 After hearings on the Commission's proposals were closed, the Radio Corporation of America, persistent promotor of a compatible system, suggested to the Commission further consideration of the progress made after the Commission had taken the matter under advisement in May, 1950. To be sure, this proffer of relevant information concerning progress toward the desired goal was made by an interested party. But within the Commission itself the need for further light was urged in view of the rapid development that had been made since the Commission's hearings got under way. The heart of the controversy was thus put by Commissioner Hennock: 'It is of vital importance to the future of television that we make every effort to gain the time necessary for further experimentation leading to the perfection of a compatible color television system.' The Commission did not rule out reasonable hope for the early attainment of compatibility. Indeed, it gave ground for believing that success of experimentation to that end is imminent. But it shut off further inquiry into developments it recognized had grown apace because in its 'sound discretion' it concluded that 'a delay in reaching a determination with respect to the adoption of standards for color television service * * * would not be conductive to the orderly and expeditious dispatch of the Commission's business and would not best serve the ends of justice * * *.' 14 The real question, as I have indicated, is whether this determination of the Commission, considering its nature and its consequences, is beyond judicial scrutiny. 15 I am no friend of judicial intrusion into the administrative process. I do not believe in a construction of the Communications Act that would cramp the broad powers of the Communications Commission. See National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344. I have no doubt that if Congress chose to withdraw all court review from the Commission's orders it would be constitutionally free to do so. See Stark v. Wickard, 321 U.S. 288, 312, 64 S.Ct. 559, 572, 88 L.Ed. 733. And I deem it essential to the vitality of the administrative process that, even when subject to judicial review, the Commission be allowed to exercise its powers unhampered by the restrictive procedures appropriate for litigation in the courts. See Federal Communications Comm'n v. National Broadcasting Co., 319 U.S. 239, 248, 63 S.Ct. 1035, 1039, 87 L.Ed. 1374. But so long as the Congress has deemed it right to subject the orders of the Commission to review by this Court, the duty of analyzing the essential issues of an order cannot be escaped by too easy reliance on the conclusions of a district court or on the indisputable formula that an exercise of discretion by the Commission is not to be displaced by a contrary exercise of judicial discretion. 16 What may be an obvious matter of judgment for the Commission in one situation may so profoundly affect the public interest in another as not to be a mere exercise of conventional discretion. Determinations by the Commission are not abstract determinations. We are not here called upon to pass on the abstract question whether the Commission may refuse to reconsider a problem before it although enlightening new evidence is promised. We are faced with a particular order of great significance. It is not the effect of this order upon commercial rivalries that gives it moment. The Communications Act was not designed as a code for the adjustment of conflicting private interests. It is the fact that the order originates color television, with far-reaching implications to the public interest. 17 The assumption underlying our system of regulation is that the national interest will be furthered by the fullest possible use of competition. At some point, of course, the Commission must fix standards limiting competition. But once those standards are fixed, the incentive for improvement is relaxed . It is obvious that the money spent by the public to adapt and convert the millions of sets now in use may well make the Commission reluctant to sanction new and better standards for color pictures if those standards would outmode receiving sets adapted to the system already in use. And even if the Commission is willing to adopt a second, inconsistent set of color television standards sometime in the future, the result will be economic waste on a vast scale. 18 And all to what end? And for what overriding gain? Of course the Commission does not have to wait for the millennium. Of course it does not have to withhold color pictures from the American public indefinitely because improvements in color transmission will steadily be perfected. That is not what is involved here. What the Commission here decided is that it could not wait, or the American public could not wait, a little while longer, with every prospect of a development which, when it does come, concededly will promote the public interest more than the incompatible system now authorized. Surely what constitutes the public interest on an issue like this is not one of those expert matters as to which courts should properly bow to the Commission's expertness. In any event, nothing was submitted to us on argument, nor do I find anything in the Commission's brief of 150 pages, which gives any hint as to the public interest that brooks no delay in getting color television even though the method by which it will get it is intrinsically undesirable, inevitably limits the possibilities of an improved system or, in any event, leads to potential great economic waste. The only basis for this haste is that the desired better method has not yet proved itself and in view of past failures there is no great assurance of early success. And so, since a system of color television, though with obvious disadvantages, is avilable, the requisite public interest which must control the Commission's authorization is established. I do not agree. 19 One of the more important sources of the retardation or regression of civilization is man's tendency to use new inventions indiscriminately or too hurriedly without adequate reflection of long-range consequences. No doubt the radio enlarges man's horizon. But by making him a captive listener it may make for spiritual impoverishment. Indiscriminate use of the radio denies him the opportunities for reflection and for satisfying those needs of withdrawal of which silent prayer is only one manifestation. It is an uncritical assumption that every form of reporting or communication is equally adaptable to every situation. Thus, there may be a mode of what is called reporting which may defeat the pursuit of justice. 20 Doubtless, television may find a place among the devices of education; but much long-headed thought and patient experimentation are demanded lest uncritical use may lead to hasty jettisoning of hard-won gains of civilization. The rational process of trial and error implies a wary use of novelty and a critical adoption of change. When a college head can seriously suggest, not by way of irony, that soon there will be no need of people being able to read—that illiteracy will be the saving of wasteful labor—one gets an idea of the possibilities of the new barbarism parading as scientific progress. 21 Man forgets at terrible cost that the environment in which an event is placed may powerfully determine its effect. Disclosure conveyed by the limitations and power of the camera does not convey the same things to the mind as disclosure made by the limitations and power of pen or voice. The range of presentation, the opportunities for distortion, the impact on reason, the effect on the looker-on as against the reader-hearer, vary; and the differences may be vital. Judgment may be confused instead of enlightened. Feeling may be agitated, not guided; reason deflected, not enlisted. Reason—the deliberative process—has its own requirements, met by one method and frustrated by another.* 22 What evil would be encouraged, what good retarded by delay? By haste, would morality be enhanced, insight deepened, and judgment enlightened? Is it even economically advantageous to give governmental sanction to color television at the first practicable moment, or will it not in fact serve as an added drain on raw materials for which the national security has more exigent needs? 23 Finally, we are told that the Commission's determination as to the likely prospect of early attainment of compatibility is a matter within its competence and not subject to court review. But prophecy of technological feasibility is hardly in the domain of expertness so long as scientific the technological barriers do not make the prospect fanciful. In any event, this Court is not without experience in understanding the nature of such complicated issues. We have had occasion before to consider complex scientific matters. Telephone Cases, (Dolbear v. American Bell Telephone Co.), 126 U.S. 1, 8 S.Ct. 778, 31 L.Ed. 863; McCormick v. Whitmer, 129 U.S. 1, 9 S.Ct. 213, 32 L.Ed. 593 (harvester); Corona Cord Tire Co. v. Dovan Chemical Corp., 276 U.S. 358, 48 S.Ct. 380, 72 L.Ed. 610 (improvement in vulcanization of rubber); De Forest Radio Co. v. General Electric Co., 283 U.S. 664, 51 S.Ct. 563, 75 L.Ed. 1339 (high-vacuum discharge tube); Radio Corporation of America v. Radio Engineering Laboratories, 293 U.S. 1, 55 S.Ct. 928, 79 L.Ed. 163 (audion oscillator); Marconi Wireless Telegraph Co. of America v. United States, 320 U.S. 1, 63 S.Ct. 1393, 87 L.Ed. 1731 (wireless telegraphy improvement); and Universal Oil Products Co. v. Globe Oil & Refining Co., 322 U.S. 471, 64 S.Ct. 1110, 88 L.Ed. 1399 (oil cracking process). 24 Experience has made it axiomatic to eschew dogmatism in predicting the impossibility of important developments in the realms of science and technology. Especially when the incentive is great, invention can rapidly upset prevailing opinions of feasibility. One may even generalize that once the deadlock in a particular field of inquiry is broken progress becomes rapid. Thus, the plastics industry developed apace after a bottleneck had been broken in the chemistry of rubbers. Once the efficacy of sulfanilamide was clearly established, competent investigators were at work experimenting with thousands of compounds, and new and better antibiotics became available in a continuous stream. A good example of the rapid change of opinion that often occurs in judgment of feasibility is furnished by the cyclotron. Only a few years ago distinguished nuclear physicists proclaimed the limits on the energy to which particles could be accelerated by the use of a cyclotron. It was suggested that 12,000,000-volt protons were the maximum obtainable. Within a year the limitations previously accepted were challenged. At the present time there are, I believe, in operation in the United States at least four cyclotrons which accelerate protons to energies of about 400,000,000 volts. One need not have the insight of a great scientific investigator, nor the rashness of the untutored, to be confident that the prognostications now made in regard to the feasibility of a 'compatible' color television system will be falsified in the very near future. 1 The subsidiaries are the National Broadcasting Co. and RCA Victor Distributing Corp. Later, other parties were permitted over the Commission's objection to intervene in support of RCA's position. The Columbia Broadcasting System (CBS) intervened as a party defendant. 2 The order also rejected a system proposed by Color Television, Inc., which is not a party to this litigation. 3 D.C.N.D.Ill., 95 F.Supp. 660. 4 'After listening to many hours of oral argument by able counsel representing the respective parties, we formed some rather definite impressions relative to the merits of the order, as well as the proceedings before the Commission upon which it rests. And our reading and study of the numerous and voluminous briefs with which we have been favored have not altered or removed those impressions. Also, in studying the case, we have been unable to free our minds of the question as to why we should devote the time and energy which the importance of the case merits, realizing as we must that the controversy can only be finally terminated by a decision of the Supreme Court. This is so because any decision we make is appealable to that court as a matter of right and we were informed during oral argument, in no uncertain terms, that which otherwise might be expected, that is, that the aggrieved party or parties will immediately appeal. In other words, this is little more than a practice session where the parties prepare and test their ammunition for the big battle ahead.' (Emphasis added.) 95 F.Supp. at page 664. 5 47 U.S.C. § 303, 47 U.S.C.A. § 303: '* * * (T)he Commission * * * as public convenience, interest, or necessity requires, shall— '(c) Assign bands of frequencies to the various classes of stations, and assign frequencies for each individual station and determine the power which each station shall use and the time during which it may operate; '(e) Regulate the kind of apparatus to be used with respect to its external effects and the purity and sharpness of the emissions from each station and from the apparatus therein; '(f) Make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and to carry out the provisions of this Act * * *. '(g) Study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest'. 6 The Commission unanimously believed that CBS had the best system presently available, although two Commissioners dissented on other grounds. The relative merits and demerits of the RCA and CBS systems were summarized as follows: '(T)he RCA system (is) deficient in the following respects: '(a) The color fidelity of the RCA picture is not satisfactory. '(b) The texture of the color picture is not satisfactory. '(c) The receiving equipment utilized by the RCA system is exceedingly complex. '(d) The equipment utilized at the station is exceedingly complex. '(e) The RCA color system is much more susceptible to certain kinds of interference than the present monochrome system or the CBS system. '(f) There is not adequate assurance in the record that RCA color pictures can be transmitted over the 2.7 megacycle coaxial cable facilities. '(g) The RCA system has not met the requirements of successful field testing. '(T)he CBS system produces a color picture that is most satisfactory from the point of view of texture, color fidelity and contrast. * * * (R)eceivers and station equipment are simple to operate and * * * receivers when produced on a mass marketing basis should be within the economic reach of the great mass of purchasing public. * * * (E)ven with present equipment the CBS system can produce color pictures of sufficient brightness without objectionable flicker to be adequate for home use and * * * the evidence concerning long persistence phosphors shows that there is a specific method available for still further increasing brightness with no objectionable flicker. Finally, * * * while the CBS system has less geometric resolution than the present monochrome system the addition of color to the picture more than outweighs the loss in geometric resolution so far as apparent definition is concerned.' Second Report of the Commission, October 10, 1950, 1 Pike & Fischer Radio Reg. (P. & F.), 91:26, pp. 91:441 442. 7 The facts found by the Commission appear in two reports on Color Television Issues. First Report of the Commission, September 1, 1950, 1 P. & F. 91:24, p. 91:261; Second Report of the Commission, October 10, 1950, 1 P. & F. 91:26, p. 91:441. The District Court described the proceedings before the Commission as follows: 'The hearing, participated in by all members of the Commission, commenced September 26, 1949 and ended May 26, 1950. In all, fifth-three different witnesses were heard and 265 exhibits received. The transcript of the hearing covers 9717 pages. During the period from November 22, 1949 to February 6, 1950, extensive field tests were made of the three systems (RCA, CBS, Color Television, Inc.) proposed. Progress reports concerning these tests were filed with the Commission by the three proponents during December 1949 and January 1950. Comparative demonstrations of the three proposed systems were made on different dates until May 17, 1950.' 95 F.Supp. at page 665. 8 Emphasis added. 9 See the particularly interesting historical summary of these efforts in Commissioner Jones' dissent to the First Report of the Commission, September 1, 1950, 1 P. & F. 91:24, pp. 91:346 447. His view was that color television standards should have been promulgated long before they were. 10 See note 6, supra. 11 See note 6, supra. 12 National Broadcasting Co. v. United States, 319 U.S. 190, 224, 63 S.Ct. 997, 1013, 87 L.Ed. 1344. 13 Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 490—491, 71 S.Ct. 456, 466. 14 See United States v. Pierce Auto Freight Lines, 327 U.S. 515, 534—535, 66 S.Ct. 687, 697, 90 L.Ed. 821. With respect to reopening the record, the Commission said in part: '* * * (A) new television system is not entitled to a hearing or a reopening of a hearing simply on the basis of a paper presentation. In the radio field many theoretical systems exist and can be described on paper but it is a long step from this process to successful operation. There can be no assurance that a system is going to work until the apparatus has been built and has been tested. None of the new systems or improvements in systems meet these tests so as to warrant reopening of the hearing. * * * 'The Commission does not imply that there is no further room for experimentation. * * * Many of the results of such experimentation can undoubtedly be added without affecting existing receivers. As to others some obsolescence of existing receivers may be involved if the changes are adopted. In the interest of stability this latter type of change will not be adopted unless the improvement is substantial in nature, when compared to the amount of dislocation involved. But when such an improvement does come along, the Commission cannot refuse to consider it merely because the owners of existing receivers might be compelled to spend additional money to continue receiving programs. '* * * (A)ny improvement that results from the experimentation might face the problem of being incompatible with the present monochrome system or the color system we are adopting today. In that event, the new color system or other improvement will have to sustain the burden of showing that the improvement which results is substantial enough to be worth while when compared to the amount of dislocation involved to receivers then in the hands of the public.' Second Report of the Commission, October 10, 1950, 1 P. & F. 91:26, p. 91:445—446. * 'Broadcasting as an influence on men's minds has great possibilities, either of good or evil. The good is that if broadcasting can find a serious audience it is an unrivalled means of bringing vital issues to wider understanding. The evil is that broadcasting is capable of increasing perhaps the most serious of all dangers which threaten democracy and free institutions today the danger of passivity—of acceptance by masses of orders given to them and of things said to them. Broadcasting has in itself a tendency to encourage passivity, for listening as such, if one does no more, is a passive occupation. Television may be found to have this danger of passivity in even stronger form.' Report of the Broadcasting Committee, 1949 (Cmd. 8116, 1951) 75.

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341 U.S. 479 71 S.Ct. 814 95 L.Ed. 1118 HOFFMANv.UNITED STATES. No. 513. Argued April 25, 1951. Decided May 28, 1951. Mr. William A. Gray, Philadelphia, Pa., for petitioner. Mr. John F. Davis, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 Petitioner has been convicted of criminal contempt for refusing to obey a federal court order requiring him to answer certain questions asked in a grand jury investigation. He raises here important issues as to the application of the privilege against self-incrimination under the Fifth Amendment, claimed to justify his refusal. 2 A special federal grand jury was convened at Philadelphia on September 14, 1950, to investigate frauds upon the Federal Government, including violations of the customs, narcotics and internal revenue liquor laws of the United States, the White Slave Traffic Act, perjury, bribery, and other federal criminal laws, and conspiracy to commit all such offenses. In response to subpoena petitioner appeared to testify on the day the grand jury was empaneled, and was examined on October 3. The pertinent interrogation, in which he refused to answer, follows: 3 'Q. What do you do now, Mr. Hoffman? A. I refuse to answer. 4 'Q. Have you been in the same undertaking since the first of the year? A. I don't understand the question. 5 'Q. Have you been doing the same thing you are doing now since the first of the year? A. I refuse to answer. 6 'Q. Do you know Mr. William Weisberg? A. I do. 7 'Q. How long have you known him? A. Practically twenty years, I guess. 8 'Q. When did you last see him? A. I refuse to answer. 9 'Q. Have you seen him this week? A. I refuse to answer. 10 'Q. Do you know that a subpoena has been issued for Mr. Weisberg? A. I heard about it in Court. 11 'Q. Have you talked with him on the telephone this week? A. I refuse to answer. 12 'Q. Do you know where Mr. William Weisberg is now? A. I refuse to answer.' It was stipulated that petitioner declined to answer on the ground that his answers might tend to incriminate him of a federal offense. 13 Petitioner's claim of privilege was challenged by the Government in the Federal District Court for the Eastern District of Pennsylvania, which found no real and substantial danger of incrimination to petitioner and ordered him to return to the grand jury and answer. Petitioner stated in open court that he would not obey the order, and on October 5 was adjudged in criminal contempt and sentenced to five months imprisonment. 18 U.S.C. § 401; Federal Rule of Criminal Procedure 42(a), 18 U.S.C.A. 14 Petitioner appealed to the Court of Appeals for the Third Circuit, where the record was docketed on October 11. After denial by the District Court of his request for bail pending appeal, petitioner on October 20 filed in that court a 'Petition for Reconsideration of Allowance of Bail Pending Appeal,' alleging that 'on the basis of the facts contained in his affidavit, attached * * *, he was justified in his refusal to answer the questions as aforesaid, or, in any event, that there is so substantial a question involved that your petitioner should be released on bail * * *.' In the accompanying affidavit petitioner asserted that 15 'He assumed when he refused to answer the questions involved before the Grand Jury, that both it and the Court were cognizant of, and took into consideration, the facts on which he based his refusals to answer. 16 'He has since been advised, after his commitment, that the Court did not consider any of said facts upon which he relied and, on the contrary, the Court considered only the bare record (of the questions and answers as set out above). 17 'In the interest of justice and particularly in aid of a proper determination of the above petition, he submits the following in support of his position that he genuinely feared to answer the questions propounded: 18 '(a) This investigation was stated, in the charge of the Court to the Grand Jury, to cover 'the gamut of all crimes covered by federal statute.' * * * 19 '(b) Affiant has been publicly charged with being a known underworld character, and a racketeer with a twenty year police record, including a prison sentence on a narcotics charge. * * * 20 '(c) Affiant, while waiting to testify before the Grand Jury, was photgraphed with one Joseph N. Bransky, head of the Philadelphia office of the United States Bureau of Narcotics. * * * 21 '(d) Affiant was questioned concerning the whereabouts of a witness who had not been served with a subpoena and for whom a bench warrant was sought by the Government prosecutor. * * * 22 'On the basis of the above public facts as well as the facts within his own personal knowledge, affiant avers that he had a real fear that the answers to the questions asked by the Grand Jury would incriminate him of a federal offense.' 23 Included as appendices to the affidavit were clippings from local newspapers, of dates current with the grand-jury proceeding, reporting the facts asserted in the affidavit. On October 23 the District Court allowed bail. On the following day the petition for reconsideration of allowance of bail, including affidavit and appendices, was filed in the Court of Appeals as a supplemental record on appeal. The Government moved to strike this matter on the ground that it was not properly part of the appeal record. 24 The Court of Appeals granted the motion to strike and affirmed the conviction. 1950, 185 F.2d 617, 620. With respect to the questions regarding Weisberg, the court held unanimously that 'the relationship between possible admissions in answer to the questions * * * and the proscription of (pertinent federal criminal statutes (18 U.S.C. §§ 371, 1501)) would need to be much closer for us to conclude that there was real danger in answering.' As to the questions concerning petitioner's business, the court observed that 'It is now quite apparent that the appellant could have shown beyond question that the danger was not fanciful.' In the court's view the data submitted in the supplemental record 'would rather clearly be adequate to establish circumstantially the likelihood that appellant's assertion of fear of incrimination was not mere contumacy.' But the Court of Appeals concluded, again unanimously, that the information offered in support of the petition for reconsideration of bail 'was not before the court when it found appellant in contempt, and therefore cannot be considered now.' Thus limited to the record originally filed, the majority of the court was of the opinion, with respect to the business questions, that 'the witness here failed to give the judge any information which would allow the latter to rule intelligently on the claim of privilege for the witness simply refused to say anything and gave no facts to show why he refused to say anything.' One judge dissented, concluding that the District Court knew that 'the setting of the controversy' was 'a grand jury investigation of racketeering and federal crime in the vicinity' and 'should have adverted to the fact of common knowledge that there exists a class of persons who live by activity prohibited by federal criminal laws and that some of these persons would be summoned as witnesses in this grand jury investigation.' Petitioner unsuccessfully sought rehearing in the Court of Appeals, urging remand to the District Court to permit reconsideration of the conviction on the basis of data in the supplemental record. We granted certiorari, 1951, 340 U.S. 946, 71 S.Ct. 532. 25 This is another of five proceedings before this Court during the present Term in each of which the privilege against self-incrimination has been asserted in the course of federal grand-jury investigations.* A number of similar cases have been considered recently by the lower courts. The signal increase in such litigation emphasizes the continuing necessity that prosecutors and courts alike be 'alert to repress' any abuses of the investigatory power invoked, bearing in mind that while grand juries 'may proceed, either upon their own knowledge or upon the examination of witnesses, to imquire * * * whether a crime cognizable by the court has been committed', Hale v. Henkel, 1906, 201 U.S. 43, 65, 26 S.Ct. 370, 375, 50 L.Ed. 652, yet 'the most valuable function of the grand jury (has been) not only to examine into the commission of crimes, but to stand between the prosecutor and the accused,' id., 201 U.S. at page 59, 26 S.Ct. at page 373, 50 L.Ed. 652. Enforcement officials taking the initiative in grnad-jury proceedings and courts charged with their superintendence should be sensitive to the considerations making for wise exercise of such investigatory power, not only where constitutional issues may be involved but also where the noncoercive assistance of other federal agencies may render it unnecessary to invoke the compulsive process of the grand jury. 26 The Fifth Amendment declares in part that 'No person * * * shall be compelled in any Criminal Case to be a witness against himself'. This guarantee against testimonial compulsion, like other provisions of the Bill of Rights, 'was added to the original Constitution in the conviction that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed.' Feldman v. United States, 1944, 322 U.S. 487, 489, 64 S.Ct. 1082, 1083, 88 L.Ed. 1408. This provision of the Amendment must be accorded liberal construction in favor of the right it was intended to secure. Counselman v. Hitchcock, 1892, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110; Arndstein v. McCarthy, 1920, 254 U.S. 71, 72 73, 41 S.Ct. 26, 65 L.Ed. 138. 27 The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. (Patricia) Blau v. United States, 1950, 340 U.S. 159, 71 S.Ct. 223. But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Mason v. United States, 1917, 244 U.S. 362, 365, 37 S.Ct. 621, 622, 61 L.Ed. 1198, and cases cited. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438, and to require him to answer if 'it clearly appears to the court that he is mistaken.' Temple v. Commonwealth, 1880, 75 Va. 892, 899. However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim 'must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.' See Taft, J., in Ex parte Irvine, C.C.S.D.Ohio, 1896, 74 F. 954, 960. 28 What were the circumstances which the District Court should have considered in ruling upon petitioner's claim of privilege? This is the background as indicated by the record: 29 The judge who ruled on the privilege had himself impaneled the special grand jury to investigate 'rackets' in the district. He had explained to the jury that 'the Attorney General's office has come into this district to conduct an investigation * * * (that) will run the gamut of all crimes covered by Federal statute.' 'If rackets infest or encrust our system of government,' he instructed, 'just as any blight attacks any other growth, it withers and dies. * * *' Subpoenas had issued for some twenty witnesses, but only eleven had been served; as the prosecutor put it, he was 'having trouble finding some big shots.' Several of those who did appear and were called into the grand-jury room before petitioner had refused to answer questions until ordered to do so by the court. The prosecutor had requested bench warrants for eight of the nine who had not appeared the first day of the session, one of whom was William Weisberg. Petitioner had admitted having known Weisberg for about twenty years. In addition, counsel for petitioner had advised the court that 'It has been broadly published that (petitioner) has a police record.' 30 The court should have considered, in connection with the business questions, that the chief occupation of some persons involves evasion of federal criminal laws, and that truthful answers by petitioner to these questions might have disclosed that he was engaged in such proscribed activity. 31 Also, the court should have recognized, in considering the Weisberg questions, that one person with a police record summoned to testify before a grand jury investigating the rackets might be hiding or helping to hide another person of questionable repute sought as a witness. To be sure, the Government may inquire of witnesses before the grand jury as to the whereabouts of unlocated witnesses; ordinarily the answers to such questions are harmless if not fruitless. But of the seven questions relating to Weisberg (of which three were answered), three were designed to draw information as to petitioner's contacts and connection with the fugitive witness; and the final question, perhaps an afterthought of the prosecutor, inquired of Weisberg's whereabouts at the time. All of them could easily have required answers that would forge links in a chain of facts imperiling petitioner with conviction of a federal crime. The three questions, if answered affirmatively, would establish contacts between petitioner and Weisberg during the crucial period when the latter was eluding the grand jury; and in the context of these inquiries the last question might well have called for disclosure that Weisberg was hiding away on petitioner's premises or with his assistance. Petitioner could reasonably have sensed the peril of prosecution for federal offenses ranging from obstruction to conspiracy. 32 In this setting it was not 'perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer(s) cannot possibly have such tendency' to incriminate. Temple v. Commonwealth, 1880, 75 Va. 892, 898, cited with approval in Counselman v. Hitchcock, 1892, 142 U.S. 547, 579— 580, 12 S.Ct. 195, 204, 35 L.Ed. 1110. See also, Arndstein v. McCarthy, 1920, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138. 33 This conclusion is buttressed by the supplemental record. It showed that petitioner had a twenty-year police record and had been publicly labeled an 'underworld character and racketeer'; that the Senate Crime Investigating Committee had placed his name on a list of 'known gangsters' from the Philadelphia area who had made Miami Beach their headquarter; that Philadelphia police officials had described him as 'the king of the shore rackets who lives by the gun'; that he had served a sentence on a narcotics charge; and that his previous conviction was dramatized by a picture appearing in the local press while he was waiting to testify, in which petitioner was photographed with the head of the Philadelphia office of the United States Bureau of Narcotics in an accusing pose. 34 It appears that the petition which comprised the supplemental record, though captioned a 'Petition for Reconsideration of Allowance of Bail Pending Appeal,' was by its terms an application to the District Court to vacate the contempt order on constitutional grounds, and alternatively a second motion for bail. Clearly this petition, filed but two weeks after the contempt order, was directed to the power of the committing court to discharge the contemnor for good cause—a power which courts should be solicitous to invoke when important constitutional objections are renewed. Cf. Gouled v. United States, 1921, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647. The ends of justice require discharge of one having such a right whenever facts appear sufficient to sustain the claim of privilege. Accordingly the supplemental record should have been considered by the Court of Appeals. 35 For these reasons we cannot agree with the judgments below. If this result adds to the burden of diligence and efficiency resting on enforcement authorities, any other conclusion would seriously compromise an important constitutional liberty. 'The immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime.' United States v. White, 1944, 322 U.S. 694, 698, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542. Pertinent here is the observation of Mr. Justice Brandeis for this Court in McCarthy v. Arndstein, 1924, 266 U.S. 34, 42, 45 S.Ct. 16, 17, 69 L.Ed. 158. 'If Congress should hereafter conclude that a full disclosure * * * by the witnesses is of greater importance than the possibility of punishing them for some crime in the past, it can, as in other cases, confer the power of unrestricted examination by providing complete immunity.' 36 Reversed. 37 Mr. Justice REED dissents. He agrees with the conclusions reached by Judges Goodrich and Kalodner as expressed in the opinion below. * (Patricia) Blau v. United States, 1950, 340 U.S. 159, 71 S.Ct. 223; (Irving) Blau v. United States, 1951, 340 U.S. 332, 71 S.Ct. 301; Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438; Greenberg v. United States, 3 Cir., 1951, 187 F.2d 35, 37, petition for writ of certiorari pending. (See 341 U.S. 944, 71 S.Ct. 1013.)

01

341 U.S. 446 71 S.Ct. 832 95 L.Ed. 1096 ZITTMANv.McGRATH, Attorney General. McCARTHY v. McGRATH, Attorney General. Nos. 298, 314. Argued Feb. 28, 1951. Decided May 28, 1951. Mr. Joseph M. Cohen, New York City, for petitioner Zittman. Mr. Henry I. Fillman, New York City, for petitioner McCarthy. Mr. Ralph S. Spritzer, Washington, D.C., for respondent. Mr. Justice JACKSON, delivered the opinion of the Court. 1 On December 11, 1941, petitioner Zittman, holder of claims against the Deutsche Reichsbank and the Deutsche Golddiskontbank, caused attachment warrants to be issued by the appropriate New York court and levied on accounts maintained by the debtors in New York City with the Chase National Bank. On January 21, 1942, petitioner McCarthy, holder of a claim against the Reichsbank, also attached its accounts with the Chase Bank. Both attachments were followed by state court actions which were pursued to default judgments. The judgments remain unsatisfied because the attached funds were and are 'frozen' by federal government foreign funds controls. The New York courts have repeatedly extended the ninety-day limitation provided for the sheriff to reduce the accounts to his possession or commence an action to do so,1 so that the attachments, like the judgments, are outstanding. 2 The accounts were frozen June 14, 1941, by Executive Order No. 8785,2 which extended to assets of German nationals freezing controls initiated by Executive Order No. 8389,3 issued April 10, 1940, by the President, pursuant to the powers vested in him by § 5(b), of the Trading With the Enemy Act.4 The general effect of the basic order was to forbid 'transactions' in the assets of blocked nationals, including all 'transfers' of such funds.5 In October, 1946, more than four and a half years after the levy of these attachments, the Alien Property Custodian issued Vesting Orders, which vested 'that certain debt or other obligation owing to' the German bank 'and any and all rights to demand, enforce and collect the same.' The Chase Bank notified the Custodian that, due to the outstanding attachment levies, it could not release the accounts.6 Some sixteen months later, the Custodian petitioned the United States District Court for the Southern District of New York for a declaratory judgment that the petitioners 'obtained no lien or other interest in' the attached accounts and that he was entitled to take the entire balances. The District Court granted the relief sought,7 and the United States Court of Appeals for the Second Circuit affirmed, per curiam, solely on the authority of Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480.8 We granted certiorari.9 The question is whether the attachment levies were 'transfers' forbidden by Executive Order No. 8389. 3 I. Rights of the Judgment Creditors Under New York Law. 4 In the New York courts, petitioners invoked one of several provisional remedies which, from time out of mind, New York has extended to its citizens against their nonresident debtors. These, in appropriate circumstances, may take the form of receivership10 or attachment.11 While these two remedies differ in nature and incidents, they are alike in being available at the commencement or during the pendency of an action, are not independent but auxiliary in character, and are not designed finally to adjudge substantive rights but to secure such judgment as may be rendered. As employed in this case, attachment also was the sole basis of jurisdiction. 5 The attachment levy on bank balances is perfected by service of a certified copy of the warrant of attachment on the banking institution,12 which is required to certify to the sheriff making the levy the balance due to the defendant.13 The levy does not require the sheriff to take physical possession of any property, nor does it require any transfer of title. The effect is prescribed: 'Any such person so served with a certified copy of a warrant of attachment is forbidden to make or suffer, any transfer or other disposition of, or interfere with, any such property or interest therein so levied upon, * * * or sell, assign or transfer any right so levied upon, to any person, or persons, other than the sheriff serving the said warrant until ninety days from the date of such service, except upon direction of the sheriff or pursuant to an order of the court.'14 The account attached must, on the sheriff's demand, be paid over to him within ninety days, unless, as here, the time has been extended by order of court, and the sheriff is authorized to institute an action within that time to recover amounts withheld.15 6 These creditors prosecuted their actions to judgments which could be satisfied only from attached property and by issuance of executions.16 An attachment merges in an execution when issued, but it is not annulled until the judgment is paid and remains in force to keep alive the lien on the property. Castriotis v. Guaranty Trust Co., 1920, 229 N.Y. 74, 79, 127 N.E. 900, 902. 7 Execution, if issued, would require a transfer of credit and of funds, but this step has not been taken and, it is admitted, cannot be taken in these cases without a federal license. While requirement of a federal license creates something of a contingency as to satisfaction of the judgments, as matter of New York law this does not deprive the judgment of its validity or the attachment of its lien. Commission for Polish Relief v. Banca Nationala a Rummaniei, 1942, 288 N.Y. 332, 338, 43 N.E.2d 345, 347. 8 Although the provisional remedy of attachment, as used in this case, has served to provide the basis of jurisdiction and has created a lien to secure satisfaction of the judgment, it is clear that it has neither attempted nor accomplished any transfer of possession, for these attachments, have been maintained for over nine years, and the accounts are still where they were before the attachments were levied. That there has been no transfer of title to the funds by the proceedings to date also is clear. If the judgment debtors chose to satisfy the judgments by other means, or to substitute an undertaking for the property attached, they could do so, and the accounts would be freed of the lien.17 9 Under state law, the position of these judgment creditors is that they have judgments, secured by attachments on balances owned by German aliens, good as against the debtors, but subject to federal licensing before they can be satisfied by transfer of title or possession. The Custodian claims, in a collateral attack, that federal courts should pronounce them wholly void and of no effect. 10 II. Effect of Federal Foreign Funds Control on Attachment. 11 The Government, in the present action, relies heavily on General Ruling No. 12 under Executive Order No. 8389, issued April 21, 1942, some three to five months after these attachments were levied, and almost two years after issuance of the Executive Order which it purports to interpret.18 Then, for the first time, an attachment levy was specifically designated as a prohibited 'transfer.' The Government asks that it be construed to prohibit such attachments as here made and be applied retroactively to these attachments made before its promulgation. Whether an administrative agency could thus lump all attachments as prohibited 'transfers,' without reference to the nature of the rights acquired or steps taken under the various state laws providing for attachments, presents a question which we need not decide here. Some attachments may well be transfers, and thus prohibited. We deal here only with an attachment under New York law relating specifically to bank accounts. 12 This General Ruling, as thus interpreted to forbid these attachments, would be not only retroactive but inconsistent and irreconcilable with the contentions made one day after its issuance by both the Treasury and the Department of Justice to the New York Court of Appeals. These Departments filed a brief amicus curiae, dated April 22, 1942, in the New York Court of Appeals in Commission for Polish Relief v. Banca Nationala a Rumaniei, supra. The case involved an attachment, identical in state law character with those here, of bank balances in New York of the National Bank of Rumania, which had been frozen by Executive Order prior to levy. The Government's brief was subscribed by the General Counsel of the Treasury and an Assistant Attorney General, both members of the New York bar, presumably familiar with the peculiarities of the New York law of attachment of bank accounts. It specifically called attention to General Ruling No. 12, and, referring to the claim of incompatibility between the attachment and the federal freezing program, it declared: 'This is the first occasion in which a court of last resort in this country has been called upon to meet this issue * * *.'19 It went on to advise the Court of Appeals definitely and comprehensively as to the rights of New York courts to proceed on the basis of the attachment there involved. In view of the Custodian's present contentions, it merits extensive consideration. 13 The New York courts were advised of five purposes of the Federal Government's program: '1. Protecting property of persons in occupied countries'; '2. Preventing the Axis, now our enemy, from acquiring any benefit from these blocked assets'; '3. Facilitating the use of blocked assets in the United Nations war effort and protecting American banks and business institutions'; '4. Protecting American creditors'; '5. Foreign relations, including post-war negotiations and settlements.'20 14 To accomplish these purposes in relation to over seven billion dollars of blocked foreign assets, it was said that '* * * the Treasury has had to deal with the problem of litigation, particularly attachment actions, as affecting blocked assets,'21 and the position of the Treasury was represented as follows: 15 '* * * the Treasury did not want to interfere with the orderly consideration of cases by the courts, including attachment actions, and at the same time it was essential to the Government's program that the results of court proceedings be subject to the same policy considerations from the point of view of freezing control as those arising or recognized through voluntary action of the parties. 16 'Indeed the Treasury regards the courts as the appropriate place to decide disputed claims and suggested to parties that they adjudicate such claims before applying for a license to permit the transfer of funds. The judgment was then regarded by the Treasury as the equivalent of a voluntary payment order without the creation or transfer of any vested interest, and a license was issued or denied on the same principles of policy as those governing voluntary transfers of blocked assets. 17 'The Treasury Department did not feel that it could finally pass on an application for a license to transfer blocked assets where the facts were disputed or liability denied. The Treasury felt that it was not practical to pass on the freezing control questions involved in such applications until there was at least a determination of the facts by a court of law * * *.'22 18 Notwithstanding this assertion of complete discretion to grant or withhold approval of ultimate transfers, the Government advised the Court of Appeals that, 'So far as foreign funds control is concerned there can be an attachable interest under New York law with respect to the blocked assets. * * *'23 In language applicable to the case before us now, it said: 'The National Bank of Rumania has property within the jurisdiction. It has not been divested of all its property rights. In fact, its interests today in the blocked assets are perhaps by far the most valuable of all the interests in such assets. This property has not been confiscated by the Government. The National Bank of Rumania is prohibited from exercising powers and privileges which prior to the Executive Order it could exercise. * * * (T)he right of the owner of a blocked account to apply for a license to make payment out of such an account is a most substantial one, and that lawful payment can be made if a license is granted.'24 And the Government continued: 19 'An attachment action against a national's blocked account is an attempt to obtain an unlicensed assignment of the national's interest in the blocked account—nothing more and nothing less. 20 'In this sense, the attachment action might be regarded as a levy upon the nationals contingent power (i.e. contingent upon Treasury authorization) to transfer all his interest in the blocked account to A; any judgment in the attachment action resulting in giving A a contingent interest in the account equivalent to what he would have obtained by voluntary assignment. 21 'The value of such an interest is of course problematical. Whether it is worthless or worth full value will depend upon whether the transfer sought is in accordance with the Government's policies in administering freezing control. 22 'Under this analysis of what the nature of any attachment action against a blocked account must be, in the light of the purposes of freezing control, it is suggested that an attachment action of this nature might well be allowed in the New York courts.25 23 'The Federal Government is anxious to keep to a minimum interference with the normal rights of litigants and the jurisdiction of courts to hear and determine cases, consistent with the most effective prosecution by the Government of total war. Applied to the instant case, this means that the Federal Government must have its hands unfettered in using freezing control, recognizing that it is desirable that private litigants be able to attach some interest with respect to blocked assets in order to clarify their rights and liabilities. 24 'This has been suggested in this Brief. The Government believes that the interests of private litigants in state courts can be served without interference with the freezing control program. However, the interest of the Government is paramount to the rights of private litigations in this field and should this Court be of the view that under the New York law there cannot be a valid attachment of the limited interests herein suggested, then the Government must reluctantly take the position that in the absence of further authorization under the freezing control, there can be no attachable interests under New York law with respect to blocked assets.'26 25 As the Government pointed out in the Polish Relief case, the Custodian is charged, among other things, with preserving and distributing blocked assets for the benefit of American creditors. Few claims are not subject to some question, and the Treasury does not pay questionable claims. For those claims to be settled so that they can properly be paid out of blocked assets they must be adjudicated valid by some court of law. Because the debtor rarely is amenable to personal service, any action must be in the nature of a quasi-in-rem action preceded by an attachment of property belonging to the debtor within the jurisdiction of the court. If, as the Custodian now contends, the freezing program puts all assets of an alien debtor beyond the reach of an attachment, it is not difficult to see that there can be no adjudications of the validity of American claims and consequently the claims, not being settled, would not be satisfied by the Treasury. The logical end of that course would be complete frustration of a large part of the freezing program. We cannot believe that the President intended the program to reach such a self-generated stalemate. 26 The New York Court of Appeals took the position urged by the Federal Government. It held that the interest of the debtor, although subject to the licensing contingency, was sufficient as matter of state law to render the levy valid and sufficient as a basis of jurisdiction to decide any issues between the attaching creditor and the foreign debtor. At the same time, it acknowledged that any transfer of the attached funds to satisfy the judgment could only be had if and when the proper license had been secured. Commission for Polish Relief v. Banca Nationala a Rumaniei, supra. 27 What the New Yok courts have done here is not distinguishable from what the Government urged in the Polish Relief case. Indeed, in that case, the Secretary of the Treasury had expressly denied the application of the petitioner for a license for his attachment. In spite of that, however, the Government urged that the attachment was authorized by settled administrative practice: 'From the very inception of freezing control, litigants, prior to commencing attachment actions against funds belonging to blocked nationals, have requested the Secretary of the Treasury to license a transfer to the sheriff by attachment. In all those cases, running into the hundreds, the Treasury Department has taken a consistent position. The Treasury Department has authorized the bringing of an attachment action. However, the Treasury Department has not licensed a transfer of the blocked funds to the sheriff prior to judgment.'27 28 The foregoing is confirmed in this case by a stipulation that consistent administrative practice treated attachments such as we have here as permissible and valid at the time they were levied.28 29 The Custodian now asks the federal courts to declare the state court attachments nullities. His request here is not merely that he is entitled to take and administer the fund, but that the attachments are not effective as against the right, title, and interest of the German banks. His request is irreconcilable with the admitted administrative practice and the position urged upon the New York courts in the Polish Relief case. He predicates that reversal of position, and so far has been sustained in it, upon the decision of this Court in Propper v. Clark, supra, to which we accordingly turn. III. 30 The essence of the Custodian's argument that Propper v. Clark requires invalidation of these attachments, as stated in his brief, is that: '* * * (I)t is little short of absurd to suggest that, while creditors of an enemy national are precluded from reaching his blocked property in the absence of a license where they proceed by the provisional remedy of receivership, the opposite result will be permitted where they follow the provisional remedy of attachment.'29 31 The answer to this suggested absurdity is that a distinction in New York law, all important here, has eluded the Custodian. The receiver in Propper was not a receiver appointed as a provisional remedy but was a special statutory receiver which state law purported to vest with both title and right to possession, which, in case of blocked assets of a foreign corporate debtor, would obviously defeat the scheme of federal controls. As our opinion notes, 337 U.S. at page 475, 69 S.Ct. at page 1336, 93 L.Ed. 1480, Propper's claim, adverse to that of the Custodian, was initiated by a temporary receiver, later made permanent, appointed by a New York state court pursuant to § 977—b of the New York Civil Practice Act, which is entitled, 'Receivers to liquidate local assets of foreign corporations.' That is a special proceeding added to New York practice by the 1936 Legislature,30 and provides for appointment of a liquidating receiver of assets within the State owned by a foreign corporation which has been dissolved, liquidated, or nationalized, or which, voluntarily or otherwise, has ceased to do business.31 Upon application by a creditor of such a corporation, the court appoints a temporary receiver.32 Title to all such assets vests in him upon appointment,33 and the statute requires and empowers him to 'reduce to his possession any and all assets, credits, choses in action and property' found in the State.34 If it is established on trial that the corporation has been dissolved or nationalized or that its charter has been annulled or that it has ceased, for any reason, to do business, the receivership is made permanent35 and notice is given to all creditors to prove their claims.36 Those allowed, the receiver pays in accordance with statutory priorities.37 Any surplus is paid to stockholders of the corporation or, in the discretion of the court, to a receiver or liquidator, if any, appointed in the domicile of the corporation or elsewhere.38 32 This special proceeding, which has nothing but name in common with the traditional provisional remedy of receivership,39 was introduced to protect resident creditors and shareholders against confiscatory decrees by foreign nations. As one court has said: 33 'This section became effective on the 8th day of June, 1936, and marks a distinct change in the policy of this State with respect to the disposition of property situated here but which belongs to a foreign corporation that has ceased to do business for any reason, or has been dissolved, liquidated, or nationalized. 34 'The purpose of this statute, clearly, is to administer the distribution of such assets in this State, irrespective of the scheme of distribution promulgated in any other State, inclusive of the domicile of the foreign corporation. * * *' Oliner v. American-Oriental Banking Corp., 1937, 252 App.Div. 212, 297 N.Y.S. 432, 433, affirmed 1938, 277 N.Y. 588, 13 N.E.2d 783. See also Moscow Fire Ins. Co. v. Bank of New York & Trust Co., 1937, 161 Misc. 903, 924, 294 N.Y.S. 648, 676. 35 Such was the position of the receiver whose claims we rejected in Propper v. Clark. The courts of New York had themselves recognized that the Propper receivership conflicted in principle with federal funds control and had pointed out that in practice it might well defeat the federal policy. It was said, 'The principle is well settled that war suspends the right of nonresident alien enemies to prosecute actions in our courts * * * and it cannot be denied that the plaintiff (Propper), although himself neither an enemy nor an alien nor a nonresident, is seeking to enforce a cause of action which, at least until his appointment, existed, if at all, in favor of a non-resident alien which is also an enemy as the term 'enemy' is defined in the Trading with the Enemy Act * * *. His right to recover must rest upon the rights of such nonresident alien enemy, and while Civil Practice Act, sec. 977—b purports to vest a receiver appointed thereunder with title to claims existing in favor of the foreign corporation it also is possible that under that section some proceeds of a recovery herein ultimately may benefit non-resident alien enemies. * * *' Propper v. Buck, 1942, 178 Misc. 76, 78, 33 N.Y.S.2d 11, 13. 36 But, as the Government before that decision so unequivocally urged upon the New York Court of Appeals, attachment proceedings as pursued in these cases have no such consequences. Nothing in these state court proceedings have purported to frustrate the purposes of the federal freezing program. On the contrary, the effect of the State's action, like that of the federal, was to freeze these funds, to prevent their withdrawal or transfer to use of the German nationals. There is no suggestion that these attachment proceedings could in any manner benefit the enemy. The sole beneficiaries are American citizens whose liens are not derived from the enemy but are adverse to any enemy interests. And, if no federal freeze orders were in existence, these state proceedings would tie up enemy property and reduce the amounts available for enemy disposition. We agree with the Government's assurance to the Court of Appeals in the Polish Relief case that these proceedings, in view of the fact that they do not purport to control the Custodian in the exercise of the federal licensing power, or in the power to vest the res if he sees fit to do so for administration, are not inconsistent with the freezing program and we think they were not invalidated or considered in Propper v. Clark, supra. The latter decision is not authority for the judgment asked and obtained by the Custodian here. 37 IV. The Vesting Order. 38 The Custodian in this case has only sought to vest in himself the 'right, title, and interest' of the German banks. As we understand it, he acknowledges that if the interests acquired by the attachments are valid as against the German banks he is not, under the Vesting Orders involved, as he has chosen to phrase them, entitled to the attached funds, but he takes the position that no valid rights against the German debtors were acquired by the attachments because prohibited by the freezing program.40 He has, in short, put himself in the shoes of the German banks. As against the German debtors, the attachments and the judgments they secure are valid under New York law, and cannot be cancelled or annulled under a Vesting Order by which the Custodian takes over only the right, title, and interest of those debtors in the accounts. But, of course, as against the Custodian, exercising the paramount power of the United States, they do not control or limit the federal policy of dealing with alien property and do not prevent a res vesting, as sustained in the companion cases, if the Custodian sees fit to take over the entire fund for administration under the Act. In such case, all federal questions as to recognition by the Custodian of the state law lien, or priority of payment, are reserved for decision if and when presented in accordance with the Act. 39 This result, as we have indicated, in no way impairs federal control over alien property, since the petitioners admit that they cannot secure payment from the attached frozen funds without a license from the Custodian. The case is, therefore, more nearly like Lyon v. Singer, 339 U.S. 841, 842, 70 S.Ct. 903, 904, 94 L.Ed. 1323, where this Court said: '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.' 40 The decision of the court below is reversed. 41 Reversed. 42 Mr. Justice CLARK took no part in the consideration or decision of these cases. 43 Mr. Justice DOUGLAS, concurring. 44 I join in the opinion of the Court since it places control of the public interest phase of the controversy in the licensing power of the Custodian. Payment of claims requires a license.1 A license, of course, may be refused when payment would accrue directly or indirectly to the benefit of the enemy. But the policy of the Act is in no way subverted by recognition of a lien which can ripen into a priority only if payment would have no such effect. Denial of the lien could be made only if the Act called for an equality of distribution among claimants, regardless of their innocence or guilt. I can find nothing in the Act which warrants leveling the good faith lien claimant to the unsecured status of the others.2 45 Mr. Justice REED, with whom Mr. Justice BURTON joins, concurring in part and dissenting in part. 46 The Court fails to decide the only question of importance presented by this case. This question is whether a state attachment, obtained on assets previously blocked under Executive Order No. 8785, gives the attaching creditor any right in those assets that displaces the power of the Government to make such disposition or use of the assets as it may ultimately determine is for the best interest of the Nation and its citizens. The Court defers all questions as to 'recognition by the Custodian of the state law lien, or priority of payment' for later decision. Under today's decision the Alien Property Custodian vests the account in question without knowing what power he has over its handling or disposition. Such uncertainty will hamper administration and be an open invitation to the owners of blocked assets to sell their interests in the blocked property, as the Custodian phrases it, 'to friendly speculators willing to buy at a discount and to await payment on the ultimate day of unblocking.' The Custodian sought a determination of this troublesome question. His petition in the District Court asked that court to declare that 'respondents Zittman and McCarthy, and McCloskey, as sheriff, obtained no lien or other interest in the 'Reichsbank-Direktorium' or the Deutsche Golddiskontbank accounts, or the funds represented thereby, and that by virtue of Vesting Orders Nos. 7792 and 7870 the petitioner is entitled to the entire balances remaining in the 'Reichsbank-Direktorium' and Deutsche Golddiskontbank accounts on the books of the respondent Chase National Bank, together with all accrued dividends and accumulations.' 47 The decree sustained that request on the authority of Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480. It is to be noted that the prayer referred to liens or other interests in the accounts and asked that the balances be turned over. The Court is of the view that this is not a simple turn-over request but also seeks a declaration 'that no valid rights against the German debtors were acquired by the attachments because prohibited by the freezing program.' 48 While such construction of the petition is possible, I read it to seek a rather different decision. The Custodian's complaint prayed a ruling that the attaching creditors obtained to lien or other interest in the accounts that could determine his action in administering or distributing the fund in accordance with the direction of Congress. This is made clear by the statements excerpted from the Custodian's brief in the margin.1 It is substantiated by United States Treasury Department General Ruling No. 12, upon which the Custodian relies.2 49 If the Court has any doubt that anything else was meant by the complaint or decree, the proper course would be to insert in the decree a modifying proviso to the effect that 'no lien or other interest, except as between the debtor and creditor, was obtained by the attachment proceedings in the state court.' See Lyon v. Singer, 339 U.S. 841, 70 S.Ct. 903, 94 L.Ed. 1323. 50 In my judgment a valid state attachment, obtained subsequent to the blocking order, is good as between an alien and his creditors. I an also sure that such an attachment has no compelling power upon the Attorney General in his administration of the Trading With the Enemy Act. 51 Propper v. Clark, 337 U.S. 472, 482—486, 69 S.Ct. 1333, 1339 1341, 93 L.Ed. 1480, so holds. It was like the present case—a suit by the Alien Property Custodian, after a vesting order, to get possession of the blocked credits. In Propper v. Clark, as in this case, there was a claim that an interest had passed to a third party, Propper, as permanent receiver by judicial decree entered between the blocking and vesting orders. There is nothing in the group of cases in Lyon v. Singer, 339 U.S. 841, 70 S.Ct. 903, 94 L.Ed. 1323, to weaken the holding in the Propper case. The transactions in those later cases likewise took place after a federal blocking order and before a vesting order by the Alien Property Custodian. The New York Court of Appeals had decided that the claimants had preferred claims under New York law against the assets of the alien. We recognized those claims since they were conditioned upon licensing by the Alien Property Custodian, but we distinctly said that the ruling in Propper v. Clark was not affected because in the Propper case '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.' Therefore the clear rule of the Propper case that the Custodian vests and administers entirely free from effective interference over any rights or title secured by the attachment stands unimpaired. In such a situation it does not seem to me that there can be any difference between a title acquired by receiver, subject to the control of the Custodian as licensor, and the lien acquired by the attaching creditor, subject to the same license limitation. The Court's distinction between Propper v. Clark and this case should have no effect on the result here. 52 I disagree, too, with the Court's interpretation of the brief filed by the Government in Polish Relief Commission v. Banca Nationala a Rumaniei, 288 N.Y. 332, 43 N.E.2d 345. The case holds only that the attachment is good between the debtor and creditor. It does not hold it good against the Government nor did the Government beirf, as I read it, so concede. The brief merely approved suits between litigants to settle those litigants' personal rights, not to get gransfers of or liens on frozen assets effective against the Custodian. That is litigation pursuant to General Ruling No. 12(d), note 2, supra. This is clear from the brief, excerpts from which appear below.3 53 As the Court does not agree with me on the propriety of making a determination at the present time as above suggested and has left open for future litigation 'all federal questions as to recognition by the custodian of the state law lien, or priority of payment,' I forbear from expressing my views at length until this issue is presented. 54 As indicated above, I think we should modify the judgment entered below by some such insertion as I have heretofore suggested on pages 467—468 of 341 U.S., page 844 of 71 S.Ct., and as so modified affirm that decree. 1 As provided for in N.Y. Civil Practice Act, § 922. 2 3 CFR, 1943 Cum.Supp. 948, 6 Fed.Reg., 2897, 12 U.S.C.A. § 95a note. 3 3 CFR, 1943 Cum.Supp. 645, 5 Fed.Reg. 1400, 12 U.S.C.A. § 95a note. 4 40 Stat. 411, 415, as amended by Joint Resolution of May 7, 1940, 54 Stat. 179, and First War Powers Act of 1941, § 301, 55 Stat. 839, 50 U.S.C.A.Appendix, § 5(b). 5 Executive Order No. 8389, as amended, provides: 'Section 1. All of the following transactions are prohibited, except as specifically authorized by the Secretary of the Treasury by means of regulations, rulings, instructions, licenses, or otherwise, if * * * such transactions involve property in which any foreign country designated in this Order, or any national thereof, has at any time on or since the effective date of this Order had any interest of any nature whatsoever, direct or indirect: 'A. All transfers of credit between any banking institutions within the United States * * *; 'B. All payments by or to any banking institution within the United States; 'E. All transfers, withdrawals or exportations of, or dealings in, any evidences of indebtedness or evidences of ownership of property by any person within the United States; and 'F. Any transaction for the purpose or which has the effect of evading or avoiding the foregoing prohibitions.' 6 The Attorney General has since succeeded to the functions and powers of the Alien Property Custodian, but, for convenience, the Respondent interest will be referred to throughout as the Custodian. 7 Clark v. Chase Nat. Bank of City of N.Y., D.C., 82 F.Supp. 740. 8 McGrath v. Chase Nat. Bank of City of N.Y., 2 Cir., 182 F.2d 349. 9 340 U.S. 882, 71 S.Ct. 195. 10 N.Y.Civ.Pract.Act, §§ 974—977. 11 Id. §§ 902—973. 12 Id. § 917(2). 13 Id. § 918. 14 Id. § 917(2). 15 Id. § 922(1). 16 Id. § 520. 17 Id. §§ 952, 953. 18 General Ruling No. 12(5)(a) under Executive Order No. 8389, 31 CFR, 1943 Cum.Supp., 8849, April 21, 1942, defined a prohibited 'transfer' as '* * * any actual or purported act or transaction * * * the purpose, intent, or effect of which is to create, surrender, release, transfer, or alter, directly or indirectly, any right, remedy, power, privilege, or interest with respect to any property and without limitation upon the foregoing shall include * * * the creation or transfer of any lien; the issuance, docketing, filing, or the levy of or under any judgment, decree, attachment, execution, or other judicial or administrative process or order, or the service of any garnishment * * *.' 19 Brief of the United States as amicus curiae, p. 2, Commission for Polish Relief v. Banca Nationala a Rumaniei, 1942, 288 N.Y. 332, 43 N.E.2d 345. 20 Id. at pp. 5, 7, 9, 11, 13. 21 Id. at p. 14. 22 Id. at pp. 14—15. 23 Id. at p. 42. 24 Id. at p. 50. 25 Id. at p. 52. 26 Id. at p. 53. 27 Id. at p. 39. 28 The stipulation of facts states: '5. From the inception of 'freezing' controls, all litigants who, prior to commencing attachment actions against funds belonging to blocked nationals, had requested the Secretary of the Treasury to license an attachment, or levy, received from the Treasury Department a response of the following nature: 'Under Executive Order No. 8389, as amended, and the Regulations issued thereunder, no attempt is made to limit the bringing of suits in the courts of the United States or of any of the States. However, should you secure a judgment against one of the parties referred to in your letter, which is a country covered by the Order, or a national thereof, a license would have to be secured before payment could be made from accounts in banking institutions within the United States in the name of such country or national. '6. From the inception of 'freezing' controls, the Secretary of the Treasury in administering the 'freezing' control program adopted the position, in response to numerous requests made of him, that the bringing of an action, the issuance of a warrant of attachment therein, and the levy thereunder upon blocked property found within the jurisdiction of the court which issued the warrant were not forbidden but that a license was required to be secured before payment could be made from the blocked account to satisfy any judgment recovered in such action. '7. * * * A license to institute the action and levy the attachment was in fact not required by the Treasury Department.' 29 Brief for Respondent, pp. 16—17. 30 L.1936, c. 917. 31 N.Y.Civ.Pract.Act § 977—b(1). 32 Id. § 977—b(4). 33 Id. § 977—b(19). 34 Id. § 977—b(4). 35 Id. § 977—b(10). 36 Id. § 977—b(11). 37 Id. § 977—b(16). 38 Ibid. 39 Id. §§ 974—977. A receiver appointed as a provisional remedy is not an agent or representative of either party, but holds the property during the litigation pending final judgment. Weeks v. Weeks, 1887, 106 N.Y. 626, 631, 13 N.E. 96, 98; People ex rel. Attorney General v. Security Life Ins. & Annuity Co., 1879, 79 N.Y. 267, 270. 'The receiver acquires no title, but only the right of possession as the officer of the court. The title remains in those in whom it was vested when the appointment was made.' Stokes v. Hoffman House, 1901, 167 N.Y. 554, 559—560, 60 N.E. 667, 669, 53 L.R.A. 870, quoting Keeney v. Home Ins. Co., 1877, 71 N.Y. 396, 401, 27 Am.St.Rep. 60, 63. See also Carmody's Manual of New York Civil Practice (Carr, Finn, Saxe, 1946 Ed.) § 609. 40 Brief for Respondent, p. 27. 1 See § 5(b) of the Trading With the Enemy Act, 40 Stat. 411, 415, as amended 54 Stat. 179, 55 Stat. 839, and 8 CFR, c. II, Part 511. 2 The priority of debt claims contained in § 34(g), 60 Stat. 925, 928, does not purport to deal with creditors preferred by reason of a lien lawfully acquired in judicial proceedings. 1 'Petitioners could not thereafter acquire a property interest in the blocked accounts which could prevail against a subsequent vesting by the Custodian.' Resp. brief, p. 9. 'Petitioners stress that nothing in the Trading With the Enemy Act or in the freezing regulations prohibits the bringing of suits against enemy nationals in time of war. This is correct. Indeed, the Treasury Department in administering the controls took the position from the outset that parties were free to seek adjudications of their rights vis-a-vis blocked nationals.' Id. p. 13. 'Respondent does not contend that the attachments were sbsoutely (sic) void or that they were illegal. He agrees that freezing did not purport to prohibit the resort to judicial process. He states simply that transfers in blocked property were proscribed and that the judicial hand was stayed to that extent. Not attachments, but transfers, were controlled. That means that a fixed or absolute lien (as distinguished from 'a potential right or a contingent lien') could not be created without a release of the property from federal control. Since the perfecting of a fixed lien is characteristically subject to numerous contingencies under state law, e.g., the entry of a judgment in plaintiff's favor it would seem clear that the imposition of a further condition by operation of federal law—the procurement of a license—is not inconsistent with proceedings by way of attachment. 'In effect, then, the Treasury said this:—Blocked property is subject to a federal injunction against transfer. This does not prevent a state court from issuing a writ which also directs the holder of the blocked property to keep it intact. And if the state court, in these circumstances, regards its own process as offering a sufficient promise of control to warrant an exercise of its jurisdiction (sic), there is no objection to its declaring the rights of a suitor as against the owner of the blocked property. But the state court's power to confer a proprietary interest upon the suitor necessarily awaits a lifting of the federal injunction.' Id. pp. 49—50. 2 '(d) Any transfer affected by the Order and/or this general ruling and involved in, or arising out of, any action or proceeding in any Court within the United States shall, so far as affected by the Order and/or this general ruling, be valid and enforceable for the purpose of determining for the parties to the action or proceeding the rights and liabilities therein litigated; Provided, however, That no attachment, judgment, decree, lien, execution, garnishment, or other judicial process shall confer or create a greater right, power or privilege with respect to, or interest in, any property in a blocked account than the owner of such property could create or confer by voluntary act prior to the issuance of an appropriate license.' 7 Fed.Reg. 2991. 3 'Almost from the outset of freezing control the Treasury has had to deal with the problem of litigation, particularly attachment actions, as affecting blocked assets. As will be more fully developed later in this brief, the Treasury did not want to interfere with the orderly consideration of cases by the courts, including attachment actions, and at the same time it was essential to the Government's program that the results of court proceedings be subject to the same policy considerations from the point of view of freezing control as those arising or recognized through voluntary action of the parties. 'Indeed the Treasury regards the courts as the appropriate place to decide disputed claims and suggested to parties that they adjudicate such claims before applying for a license to permit the transfer of funds. The judgment was then regarded by the Treasury as the equivalent of a voluntary payment order without the creation or transfer of any vested interest, and a license was issued or denied on the same principles of policy as those governing voluntary transfers of blocked assets.' P. 14. 'The judicial procedure is generally geared to deal only with the rights and liabilities of the parties to the proceeding. The judicial procedure is not the most appropriate field to determine the great political questions of national and international magnitude that will inhere in the ultimate disposition of foreign-owned property in this country and in the determination of the rights of groups of American and foreign creditors. These great problems of national policy can be handled adequately only by the Federal Government. The determination of such national policies should not be forced by judicial decisions in particular cases determining the rights and liabilities of the parties to the proceedings. The questions are political and for the executive, not the judiciary. They are federal, not state. They call for uniform treatment with reference to large national policies, not for disparate local treatment to accord with local policies. Moreover Congress and the executive have set up machinery to deal with the problems, a machinery designed to relate the solution to the whole was effort and the inevitable postwar problems.' P. 12. 'Freezing control in protecting blocked assets of overrun countries and their nationals had as a further purpose the desire to make such assets available, at least in part, in the war effort against the Axis. Needless to say, if there can be unlicensed transfers of title to blocked property, the true owners of such blocked property may be prevented from using the property in the war effort. * * *' Pp. 9—10. "Blocked dollars' are still valuable dollars. With a license they are 'free dollars.' More than eighty general licenses and 400,000 special licenses have been issued under the freezing control, authorizing the use of blocked dollars for stated purposes. Moreover, 'hope springs eternal in the human breast.' There are always those who are willing to wait for the day when the war is over with the expectation that the freezing control will be lifted.' P. 8.

1112

341 U.S. 428 71 S.Ct. 822 95 L.Ed. 1078 STANDARD OIL CO.v.STATE OF NEW JERSEY, by PARSONS, Attorney General of State of New Jersey. No. 384. Argued March 5, 1951. Decided May 28, 1951. Mr. Josiah Stryker, Newark, N.J., for appellant. Mr. Emerson Richards, Atlantic City, N.J., for appellee. Mr. Justice REED delivered the opinion of the Court. 1 The Standard Oil Company a New Jersey corporation, appeals from a judgment of the Supreme Court of New Jersey insofar as it declares escheated to the State of New Jersey unpaid dividends declared upon the stock of Standard Oil, and twelve shares of the common stock of the Company. The New Jersey Escheat Act reads in part: 2 'If any person, who, at the time of his death, has been or shall have been, the owner of any personal property within this State, and shall have died, or shall die, intestate, without heirs or known kindred, capable of inheriting the same, and without leaving a surviving spouse, such personal property, of whatsoever nature the same may be, shall escheat to the State.' 3 'Whenever the owner, beneficial owner, or person entitled to any personal property within this State, has been or shall be and remain unknown for the period of fourteen successive years, or whenever the whereabouts of such owner, beneficial owner or person, has been or shall be and remain unknown for the period of fourteen successive years, or whenever any personal property wherever situate has been or shall be and remain unclaimed for the period of fourteen successive years, then, in any such event, such personal property shall escheat to the State.' N.J.Rev.Stat. 2:53 16, 2:53—17, N.J.S.A. 4 In accordance with the procedure prescribed by the Act, a petition in the name of the State of New Jersey for a decree escheating certain personal property,1 including the property in issue here, was filed in the Chancery Division of the Superior Court of New Jersey. The petition alleged that appellant had in its custody or possession property which was subject to escheat under the Act for each of the alternative reasons listed in the above provisions: the owners of the property had died intestate without leaving anyone capable of taking the property; the owners had been unknown for fourteen successive years; the whereabouts of the owners had been unknown for fourteen successive years; the property had been unclaimed for fourteen successive years. 5 The appellant answered the petition and, after notice and hearing, the Chancery Division of the Superior Court entered a final judgment ordering escheat of the personal property. 2 N.J.Super. 442, 64 A.2d 386, 5 N.J.Super. 460, 68 A.2d 499. This judgment was modified and affirmed as modified by the Supreme Court of New Jersey. 5 N.J. 281, 74 A.2d 565. 6 Standard Oil, appealing from the decision of the Supreme Court of New Jersey, claims that the New Jersey Escheat Act and the judgment thereunder deprived the Company of its property without due process of law in violation of the Fourteenth Amendment. This unconstitutional deprivation is alleged to arise from the fact that the judgment of escheat does not protect Standard Oil from later liability to the stockholders whose claims to stock and dividends are escheated, because: (1) both the notice to the claimants of the property prescribed by the statute and the notice actually published were so inadequate that claimants were afforded no reasonable opportunity to learn of the escheat proceeding and of its effect on their claims, or to appear and protect their rights; (2) the obligation of the contracts of the persons whose property was escheated was impaired by the statute and judgment thereunder in violation of Art. I, § 10, cl. 1 of the Constitution of the United States; (3) the New Jersey courts were without jurisdiction to enter the judgment since neither the shares of stock nor the dividends had a situs in New Jersey for the purpose of escheat, nor were either lawfully seized in the escheat proceedings.2 7 Notice.—Appellant contends that the judgment of escheat deprives the various claimants against Standard Oil of their property without adequate notice, and since the claimants may therefore sue appellant later and recover on these claims, this statute and judgment deprive appellant of its property without due process of law.3 8 The statute, N.J.Rev.Stat. 2:53—21, N.J.S.A., provides: 9 'A notice containing a summary of the order designating the time and place of hearing, as approved by the court shall be published in a manner directed by the court and shall also be published once a week for three successive weeks in a newspaper of general circulation designated by the court; * * *.' 10 The Supreme Court of New Jersey authoritatively construed this to require 'that the notice shall identify the property of which escheat is sought and the last known owner.' 5 N.J. at page 307, 74 A.2d at page 577.4 The published notice in this case corresponded with this construction. It described the property in accordance with the state court's understanding of the requirements of N.J.Rev.Stat. 2:53—21, N.J.S.A., and clearly indicated that the petition was one for escheat. 11 This case differs from Wuchter v. Pizutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446, relied on by appellant, since it is not here attempted to validate a defective statutory provision for notice by recourse to the sufficiency of the notice which, although not required by statute, was in fact given. Here it is the statute itself, as interpreted by the state court, which requires what we think is adequate notice. 12 In Security Savings Bank v. California, 263 U.S. 282, 44 S.Ct. 108, 68 L.Ed. 301, a case involving statutory escheat of the bank deposits presumed abandoned, where nothing to the contrary is known by bank officials, because unused and unclaimed for twenty years, it was similarly contended the bank was denied due process because depositors would not be bound by the judgment of escheat. 263 U.S. at page 286, 44 S.Ct. at page 110. This Court said '(T)he essentials of jurisdiction over the deposits are that there be seizure of the res at the commencement of the suit, and reasonable notice and opportunity to be heard.' 263 U.S. at page 287, 44 S.Ct. at page 110. The procedural provision made the depositors affected parties and required publication in Sacramento County, only, of the summons with no requirement of the depositors' addresses. Delivery of a copy of the summons on the bank was commanded. It was held, 263 U.S. at page 287, 44 S.Ct. at page 110, that the personal service on the bank effected seizure of the deposit and the publication of the summons was effective as similar publication would be in litigation involving unknown persons with possible claims to property. Cf. Anderson National Bank v. Luckett, 321 U.S. 233, 243, 64 S.Ct. 599, 604, 88 L.Ed. 692. 13 In Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, in a proceeding to settle trusts with numerous parties as possible beneficiaries whose names and interests were unknown to the trustee, we commented on the subject of notice: 14 '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.' 339 U.S. at page 317, 70 S.Ct. at page 658. We held that: 15 '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.' 339 U.S. at page 318, 70 S.Ct. at page 659. 16 The sound reasons stated in the foregoing cases for deeming the notices there given adequate to bind interested persons in the respective proceedings, lead us to the conclusion that the notice by publication in this case was adequate. If the state has the responsibility of looking after abandoned property subject to its sovereign power, these publications are adequate to affect the owner's rights. 17 Impairment of Contract.—Appellant attacks the validity of the New Jersey escheat statute on the ground that it impairs the contract rights of the owners of the dividends and stock certificates in violation of Art. I, § 10, cl. 1, of the Constitution: 'No State shall * * * pass any * * * Law impairing the Obligation of Contracts * * *.' This New Jersey law was enacted to authorize the state to take possession of 'personal property' whenever the owner entitled to that 'personal property within (New Jersey) * * * shall be and remain unknown' or his 'whereabouts' remain unknown or the property remains 'unclaimed' for fourteen successive years. N.J.Rev.Stat. 2:53—15 and 17, N.J.S.A. We need not consider whether a state possesses inherent power for such legislation as to personalty as the successor to a prerogative of royal sovereignty.5 18 As a broad principle of jurisprudence rather than as a result of the evolution of legal rules, it is clear that a state, subject to constitutional limitations, may use its legislative power to dispose of property within its reach, belonging to unknown persons.6 Such property thus escapes seizure by would-be possessors and is used for the general good rather than for the chance enrichment of particular individuals or organizations. Normally the obligor or holder and the obligee or owner of abandoned property would, as here, have no contractual arrangement between themselves for its disposition in case of the owner's failure to make claim. As the disposition of abandoned property is a function of the state, no implied contract arises between obligor and obligee to determine the disposition of such property. Consequently, there is no impairment of contract by New Jersey's statute, enacted subsequent to the creation of the obligations here under examination, but only the exercise of a regulatory power over abandoned property.7 19 Situs of Property.—Appellant argues that the escheat to New Jersey of the stock and the dividends denies it due process because such property has no situs in New Jersey for the purpose of escheat.8 Appellant also contends that it has neither custody nor possession of these debts or demands due from it to its stockholders and therefore they cannot be seized. Since the property cannot be seized or escheated, the corporation would remain liable to its stockholders, and to require the payment to the state denies due process. 20 Appellant has no tangible property in New Jersey except its stock and transfer books, kept at its registered office, located in the office of an individual, at Flemington, New Jersey. Appellant points out that in the Security Savings Bank case, 263 U.S. at page 285, 44 S.Ct. at page 109, 68 L.Ed. 301, and the Anderson National Bank case, 321 U.S. at page 241, 64 S.Ct. at page 603, 88 L.Ed. 692, the contracts of deposit were made in the respective states by banks doinb business therein. A like situation does not exist here, as the stock was issued and the dividends were held in other states. Further it is said that the bank deposit cases did not deal with escheat statutes, but rather, like the Moore case, with conservation statutes. 21 It was not solely the fact that the contracts for bank deposits were made in California and Kentucky that gave those states power over the abandoned deposits. Had the contract been one of bailment between two individual citizens of those states who had subsequently removed in another state, the courts of the state of the contract would not have controlled, though its laws might have. The controlling fact was that the banks and the depositors could be served with process, either personally or by publication, to determine rights in this chose in action.9 22 Appellant is a corporation of New Jersey, amenable to process through its designated agent at its registered office. N.J.Rev.Stat. 14:4—1, 14:4—2, N.J.S.A. Cf. State v. Garford Trucking, Inc., 4 N.J. 346, 72 A.2d 851, 16 A.L.R.2d 1407. This gave New Jersey power to seize the res here involved, to wit, the 'debts or demands due to the escheated estate'. And the fact that this is immediate escheat is not significant. Escheat is permitted against persons whose addresses or existence is unknown.10 The taking-over in the bank deposit cases foreshadowed escheat. See the Malone case, 221 U.S. at page 664, 31 S.Ct. at page 662, 55 L.Ed. 899, the Security Savings Bank case, 263 U.S. at pages 283 and 290, 44 S.Ct. at pages 109, 111, 68 L.Ed. 301, the Anderson National Bank case, 321 U.S. at page 241, 64 S.Ct. at page 603, 88 L.Ed. 692. 23 No matter where the appellant's assets may be, since it is its obligation to pay to the escheated estate that is taken, personal service on appellant effects a seizure of that obligation in just the same way that service on a bank is seizure of the deposit as shown in the Notice subdivision of this opinion, supra, 341 U.S. 432, 71 S.Ct. 825. That power to seize the debt by jurisdiction over the debtor provides not only the basis for notice to the absent owner but also for taking over the debt from the debtor. Security Savings Bank v. California, supra, 263 U.S. at page 287, 44 S.Ct. at page 110, 68 L.Ed. 301. It is true that fiction plays a part in the jurisprudential concept of control over intangibles. There is no fiction, however, in the fact that choses in action, stock certificates and dividends held by the corporation, are property. Whether such property has its situs with the obligor or the obligee or for some purposes with both has given rise to diverse views in this Court.11 24 We see no reason to doubt that, where the debtor and creditor are within the jurisdiction of a court, that court has constitutional power to deal with the debt. Since choses in action have no spatial or tangible existence, control over them can 'only arise from control or power over the persons whose relationships are the source of the rights and obligations.' Estin v. Estin, 334 U.S. 541, 548, 68 S.Ct. 1213, 1218, 92 L.Ed. 1561.12 Situs of an intangible is fictional but control over parties whose judicially coerced action can make effective rights created by the chose in action enables the court with such control to dispose of the rights of the parties to the intangible.13 Since such power exists through the state's jurisdiction of the parties whose dealings have created the chose in action, we need not rely on the concept that the asset represented by the certificate or dividend is where the obligor is found.14 The rights of the owners of the stock and dividends come within the reach of the court by the notice, i.e., service by publication; the rights of the appellant by personal service. That power enables the escheating state to compel the issue of the certificates or payment of the dividends. Compare Great Northern R. Co. v. Sutherland, 273 U.S. 182, 193, 47 S.Ct. 315, 319, 71 L.Ed. 596.15 This gives New Jersey jurisdiction to act. That action, of course, must be in accord with the boundaries on legislation set by the Constitution. 25 Unclaimed property at the disposal of the state may include deposits in banks doing business in the particular state, though incorporated by the Federal Government. 12 U.S.C. § 21 et seq., 12 U.S.C.A. § 21 et seq. Anderson Nat. Bank v. Luckett, 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692. Such a deposit 'is a part of the mass of property within the state whose transfer and devolution is subject to (the same) state control', 321 U.S. at page 248, 64 S.Ct. at page 607, as would be 'tangible property.' Security Savings Bank v. California, supra, 263 U.S. at page 285, 44 S.Ct. at page 109, 68 L.Ed. 301. Moneys owed by foreign insurance companies, doing business in a state, on life policies issued on the lives of residents of that state and remaining unclaimed for an adequate period, are subject to the state's disposition. Connecticut Mut. Life Ins. Co. v. Moore, 333 U.S. 541, 68 S.Ct. 682, 92 L.Ed. 863. 26 We think that stock certificates and undelivered dividends thereon may also be abandoned property subject to the disposition of the domiciliary state of the corporation when the whereabouts of the owners are unknown for such lengths of time, and under such circumstances, as permit the declaration of abandonment.16 That rule is applicable here. 27 Full Faith and Credit.—Finally, we shall deal with appellant's objection that this statutory escheat takes its property without due process because it does not protect it from claims by the owners. The argument is that the protection afforded by the New Jersey escheat statute is inadequate in that N.J.Rev.Stat. 2:53—23.1, N.J.S.A.17 is no protection beyond the state against owners of the escheated shares or against escheat or conservation actions by other states against Standard Oil of New Jersey for the same debts or demands due from Standard to its stockholders.18 The judgment, as modified, calls for the reissue of the abandoned certificates to New Jersey and for the payment to that state of the unpaid dividends. 28 We have indicated above that we consider the notice to the stockholders adequate to support a valid judgment against their rights as well as those of the Company. The res is the debt and the same rule applies as with tangible property.19 The debts or demands represented by the stock and dividends having been taken from the appellant company by a valid judgment of New Jersey, the same debts or demands against appellant cannot be taken by another state. The Full Faith and Credit Clause bars any such double escheat. Cf. Baltimore & Ohio R. Co. v. Hostetter, 240 U.S. 620, 624, 36 S.Ct. 475, 476, 60 L.Ed. 829, and cases cited, particularly Harris v. Balk, 198 U.S. 215, 226, 25 S.Ct. 625, 628, 49 L.Ed. 1023. 29 Dissents suggest that states may enact only custodial statutes until this Court settles any controversy that may arise between states over rights to abandoned choses in action. The details of the method of bringing other states and foreign countries before this Court for selection of the appropriate sovereignty to receive the abandoned property are not elaborated upon. The claim of no other state to this property is before us and, of course, determination of any right of a claimant state against New Jersey for the property escheated by New Jersey must await presentation here. 30 The judgment of the Supreme Court of New Jersey is affirmed. 31 Affirmed. 32 Mr. Justice FRANKFURTER, whom Mr. Justice JACKSON joins, dissenting. 33 I do not understand that the Court affirms the judgment of escheat on the ground that New Jersey may condition the granting of a corporate charter on payment to the State of dividends unclaimed after 14 years. Indeed, the Court specifically bars the possibility of double escheat, which would logically result from such a holding. As I understand it, the decision must rest upon New Jersey's power over interests which in a territorial sense are assumed to be within its control. The foundation of this power is usually conveyed by the concept of situs. As to this ground of decision I must dissent. In Connecticut Mut. Life Ins. Co. v. Moore, 333 U.S. 541, 68 S.Ct. 682, 92 L.Ed. 863, this Court sustained a New York statute allowing escheat of the unclaimed proceeds of insurance policies on the basis of the insured's residence in the State at the time of the delivery of the policy. On that basis, the State where the last known owner was domiciled certainly has a better claim to abandoned stock than a State in which it happens that the corporation is subject to process. 34 If perchance one is to infer from the opinion that the unclaimed dividends deposited with the Guaranty Trust Company of New York are also escheatable by New York and that New York, had she anticipated New Jersey, could have exhausted all the potentialities of escheat in the unclaimed dividends, there is an added reason for dissent. The Constitution ought not to be placed in an unseemly light by suggesting that the constitutional rights of the several States depend on, and are terminated by, a race of diligence. The Bankruptcy Act, 11 U.S.C.A. § 1 et seq., expresses appropriate condemnation of such unseemly conduct and accidental solution of competing interests. It is one thing for a State to take custody of abandoned property as trustee, leaving open for subsequent determination what State has a controlling interest justifying escheat. But if a State wishes to assert its right to escheat property which by its very nature is not exclusively within its control, other interested States should be parties to the litigation. The right to resort to this Court for a adjudgment of conflicting interests among several States has been placed in the Constitution to avoid crude remedies of self-help in the settlement of interstate controversies. See State of Texas v. Florida, 306 U.S. 398, 59 S.Ct. 563, 830, 83 L.Ed. 817. 35 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 36 There are several states with possible claims to the escheat of intangibles. The state of incorporation of the obligor; the state where the last known owner was domiciled (see Connecticut Mut. Life Ins. Co. v. Moore, 333 U.S. 541, 68 S.Ct. 682, 92 L.Ed. 863); the state where later on the true residence of the owner was proved to be; the state of his last known domicile; the state where the obligor has its main place of business; in case of insurance or trust property, the state of residence (or domicile) of the beneficiary. There may be still other states with claims of an equal or greater dignity to these. In this case we have heard from only one—the state of incorporation. 37 I think any of several states, including the state of incorporation, might constitutionally enact a custodial statute under which it undertook to hold the escheated intangibles pending determination by this Court of the claims of competing states. New Jersey has not done that. New Jersey undertakes to appropriate to her exclusive use (after a short statute of limitations has run) this vast amount of wealth. Hence, I dissent. 1 The Escheat Act defines the term 'personal property' to include 'moneys, negotiable instruments, choses in action, interest, debts or demands due to the escheated estate, stocks, bonds, deposits, machinery, farm crops, live stock, fixtures, and every other kind of tangible or intangible property and the accretions thereon'. N.J.Rev.Stat. 2:53—15, N.J.S.A. 2 In addition to the shares of common stock and the dividends, the personal property in possession of appellant, which the Chancery Division of the Superior Court held to be escheated, included unpaid wages of former employees, money withheld from wages of former employees for purchase of Liberty Bonds, moneys representing the amounts of unpresented commercial checks issued by appellant, and moneys representing unpresented coupons on a debenture issue. But the Supreme Court of New Jersey held that the Escheat Act did not apply to debts or demands due the escheated estate that had been 'extinguished, either by satisfaction or by the bar of the statute of limitations.' State v. Standard Oil Co., 5 N.J. 281, 293, 74 A.2d 565, 570. Moneys representing unpaid wages and unpresented checks and coupons were affected by this ruling. The New Jersey rule is that the statute of limitation bars the right as well as the remedy. 5 N.J. at page 292, 74 A.2d at page 570 et seq. Cf. Chase Securities Corp. v. Donaldson, 325 U.S. 304, 311, 65 S.Ct. 1137, 1140, 89 L.Ed. 1628, considering Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483. The New Jersey Supreme Court also held that minor claims that were not listed in the notice of the Chancery Division's proceedings were not escheated. 5 N.J. 281, 310, 74 A.2d 565. Consequently, appellant complains only of the escheat of twelve shares of common stock of an aggregate par value of $300, and of unpaid dividends. Of course, New Jersey's construction of the escheat statutes is binding on this Court except where matters of federal law are involved. Hebert v. Louisiana, 272 U.S. 312, 317, 47 S.Ct. 103, 104, 71 L.Ed. 270; United States v. Burnison, 339 U.S. 87, 89, 70 S.Ct. 503, 504, 94 L.Ed. 675. 3 The escheat statute makes the decree a full release of liability in any jurisdiction in which it is effective but New Jersey makes no guarantee to protect appellant against such claims. N.J.Rev.Stat. 2:53—23.1, N.J.S.A. 4 The new Jersey Supreme Court did not specifically require that the address of the last known owner be included in the notice, but the notice which it approved did, in fact, contain the last known addresses, and also described the value and character of the property which was to be escheated. The notice was published once a week for three successive weeks, in accordance with the statutory requirement. N.J.Rev.Stat. 2:53—21, N.J.S.A. 5 The right of the King at common law to take possession, in certain circumstances, of abandoned chattels is clear. VII Holdsworth, History of English Law (2d ed.) 495. E.g., treasure trove, Attorney-General v. Trustees of the British Museum, (1903) 2 Ch. 598. This doctrine of bona vacantia came to include choses in action, X Holdsworth, supra, 350, such as certificates of stock in corporations, VII Holdsworth, supra, 515, et seq.; Ames, Disseisin of Chattels, 3 Select Essays in Anglo-American Legal History 541, 558. Thus the King possessed as bona vacantia the right to dividends on a claim of a dissolved corporation in a bankruptcy proceeding against the corporation's debtor. This was held in 1898 on the theory that the corporation was 'extinct without successor or representative.' In re Higginson & Dean, (1899) 1 Q.B. 325, 330. See Grant on Corporations (1854 ed.) 303 304. Wright, J., said, (1899) 1 Q.B. 329: 'The Courts will not allow a person who has obtained title or possession as a mere trustee of chattels to set up unconscientiously any beneficial title by occupancy, possession, or otherwise.' Thus the Crown took the place of the extinct creditor. Cf. Enever, Bona Vacantia under the Law of England (1927) 55. See particularly, In re Melrose Ave., 234 N.Y. 48, 53, 136 N.E. 235, 23 A.L.R. 1233. Cunnack v. Edwards, (1896) 2 Ch. 679, dealt with a society treated as a legal unit. The members had associated themselves to provide annuities for their widows. After the death of all the associates and their widows, 1250 surplus remained. As it was not a charity but rather a business arrangement under which all obligees had received payment in full, the court held that neither the cy-pres doctrine nor the doctrine of the resulting trust applied, and as Lord Halsbury put it: 'The only other alternative remaining is that which I adopt, namely, that these funds are bona vacantia, and belong to the Crown in that character.' 6 Cunnius v. Reading School District, 198 U.S. 458, 469, 25 S.Ct. 721, 724, 49 L.Ed. 1125. Compare Mormon Church v. United States, 136 U.S. 1, 47, 10 S.Ct. 792, 804, 34 L.Ed. 481. See 3 Scott, Law of Trusts (1939) § 411.4. 7 Security Savings Bank v. California, 263 U.S. 282, 285, 44 S.Ct. 108, 109, 68 L.Ed. 301; Connecticut Mut. Life Ins. Co. v. Moore, 333 U.S. 541, 545—548, 68 S.Ct. 682, 685, 686, 92 L.Ed. 863; Provident Inst. for Savings in Town of Boston v. Malone, 221 U.S. 660, 663, 665—666, 31 S.Ct. 661, 662, 663, 55 L.Ed. 899. 8 Each classified list of debts or demands due to the escheated estates by the appellant company includes as the last known addresses of the holders of said claims chiefly points outside New Jersey. The methods of payment of the different claims have varied. For example, dividends have been paid from bank accounts maintained in New York banks by appellant either in its own name or that of its transfer agent. As we think these business practices are not significant in determining appellant's liability for these escheats, they will not be further discussed. 9 This is like the creditor's ability to garnishee the debtor of his debtor, wherever the garnisheed debtor may be. Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023; Louisville & Nashville R. Co. v. Deer, 200 U.S. 176, 26 S.Ct. 207, 50 L.Ed. 426; Baltimore & Ohio R. Co. v. Hostetter, 240 U.S. 620, 36 S.Ct. 475, 60 L.Ed. 829. Cf. Carpenter, 31 Harv.L.Rev. 905, but see Beale, 27 Harv.L.Rev. 107. Whatever may be Professor Beale's view of garnishment, he agrees with the theory of control relied upon herein. 'The true doctrine would seem to be that a debt has in fact no situs anywhere; not merely because it is intangible but because as a mere forced relation between the parties it has no real existence anywhere. Like other such relations it may, of course, be controlled by the law, and by the courts as instruments of the law; but the control must be obtained by making use of the relation. In order to control the relation the court must have the power to control both parties to it. Any court which has both debtor and creditor may compel a release from the creditor and an assignment of the action of the creditor. In other words if a debt is to be legally assigned or discharged it requires the action of both parties and especially the creditor, and the court which has to apply such a process must do so through its control over both parties.' 27 Harv.L.Rev. at 115—116. 10 Christianson v. King County, 239 U.S. 356, 368, 36 S.Ct. 114, 119, 60 L.Ed. 327; Hamilton v. Brown, 161 U.S. 256, 268, 16 S.Ct. 585, 589, 40 L.Ed. 691. 11 Blackstone v. Miller, 188 U.S. 189, 23 S.Ct. 277, 47 L.Ed. 439, overruled by Farmers Loan & Trust Co. v. Minnesota, 280 U.S. 204, 209, 50 S.Ct. 98, 99, 74 L.Ed. 371. The latter case led to a like decision in First National Bank of Boston v. Maine, 284 U.S. 312, 52 S.Ct. 174, 76 L.Ed. 313, which was in turn overruled by State Tax Comm'n v. Aldrich, 316 U.S. 174, 181, 62 S.Ct. 1008, 1011, 86 L.Ed. 1358. See Treichler v. Wisconsin, 338 U.S. 251, 256, 70 S.Ct. 1, 3, 94 L.Ed. 37. 12 Curry v. McCanless, 307 U.S. 357, 365—366, 59 S.Ct. 900, 905, 83 L.Ed. 1339: 'Such rights are but relationships between persons, natural or corporate, which the law recognizes by attaching to them certain sanctions enforceable in courts. The power of government over them and the protection which it gives them cannot be exerted through control of a physical thing. They can be made effective only through control over and protection afforded to those persons whose relationships are the origin of the rights.' See a like ruling in Direction der Disconto-Gesellschaft v. United States Steel Co., D.C., 300 F. 741, 746, and 267 U.S. 22, 28, 45 S.Ct. 207, 208, 69 L.Ed. 495. 13 When taxation of intangibles was ruled by Farmers Loan & Trust Co. v. Minnesota, 280 U.S. 204, 50 S.Ct. 98, 74 L.Ed. 371, to the effect that states could not tax intangibles belonging to nonresidents though owed by residents, Washington held that a Washington bank deposit, belonging to the estate of a known nonresident decedent without heirs, could not escheat to Washington. '(T)he situs of this property was at the domicile of its owner, and therefore it was not property within this state at the time of his death and not subject to escheat under our statute.' In re Lyons' Estate, 175 Wash. 115, 123, 26 P.2d 615, 618. A contrary view was taken in In re Rapoport's Estate, 317 Mich. 291, 26 N.W.2d 777. There it was held that the Michigan bank deposit of a nonresident decedent without heirs passed to Michigan on the theory that the Michigan escheat statute overruled the Michigan doctrine of the domiciliary situs of intangibles. 14 2 Beale, Conflict of Laws § 309.1: 'The picture of bona vacantia is that of movables without an owner being taken by the officers of the state. In reality, the money which (is) represented by the bank deposit was where the bank was when it was proved to be without an owner.' An obligor in a chose in action, a bank especially, does not always have tangible assets to represent the liability. 15 The fact that New Jersey has adopted the Uniform Stock Transfer Act with its provisions for the transfer of shares and the replacement of lost certificates is, we think, without a bearing on the problem of power to escheat. N.J.Rev.Stat. 14:8—27 and 14:8—43, N.J.S.A. While those sections provide for transfer of stock certificates only by delivery and the issue of new certificates only after notice by publication or otherwise and upon security, they were apparently treated by New Jersey as inapplicable to the problem of escheat. See State v. Standard Oil Co., 5 N.J. 281, 307, 74 A.2d 565. New Jersey may consider that escheat is a proceeding of the same general character as matters of internal corporate management reserved in its decision in Elgart v. Mintz, 123 N.J.Eq. 404, 197 A. 747, 753, an attachment case. The purpose of the Uniform Stock Transfer Act was to provide a system for transfer of stock that states might follow to simplify transactions that touched other states. See for example the complications over attachments in Mills v. Jacobs, 333 Pa. 231, 4 A.2d 152, 122 A.L.R. 333. As the Uniform Stock Transfer Act was not specifically directed at shares with unknown owners, New Jersey may treat such shares in its corporations differently from lost shares. 16 Cf. VII Holdsworth, History of English Law (2d ed.) 515. 17 2:53—23.1: 'Operation and effect in decree 'Any decree entered pursuant to the act to which this act is a supplement, shall automatically operate as a full, absolute and unconditional release and discharge of the person having such property in possession or custody from any and all claim, demand, or liability to any person whatever other than the State Treasurer with respect to such property, and such decree may be pleaded as an absolute bar to any action brought against such person with respect to such property by any person other than the State Treasurer.' 18 We lay aside without consideration the possibility that the escheated certificates had legally been transferred to other parties by the owners prior to publication in this action. '* * * I think that the risk * * * is not serious enough to justify a refusal to adjust the differences actually presented.' Direction der Disconto-Gesellschaft v. United States Steel Co., D.C., 300 F. 741, 743; 267 U.S. 22, 29, 45 S.Ct. 207, 208, 69 L.Ed. 495. 19 Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Hamilton v. Brown, 161 U.S. 256, 16 S.Ct. 585, 40 L.Ed. 691; Pennington v. Fourth National Bank, 243 U.S. 269, 270, 37 S.Ct. 282, 61 L.Ed. 713. See n. 9, supra.

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341 U.S. 665 71 S.Ct. 961 95 L.Ed. 1277 NATIONAL LABOR RELATIONS BOARDv.INTERNATIONAL RICE MILLING CO., Inc., et al. No. 313. Argued Feb. 27, 1951. Decided June 4, 1951. Mr. David P. Findling, Washington, D.C., for petitioner. Mr. Conrad Meyer III, New Orleans, La., for respondents. Mr. Justice BURTON delivered the opinion of the Court. 1 The question presented is whether a union violated § 8(b)(4) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C. § 151, 29 U.S.C.A. § 151, as amended by the Labor Management Relations Act, 1947,1 under the following circumstances: Although not certified or recognized as the representative of the employees of a certain mill engaged in interstate commerce, the agents of the union picketed the mill with the object of securing recognition of the union as the collective bargaining representative of the mill employees. In the course of their picketing, the agents sought to influence, or in the language of the statute they 'encouraged,' two men in charge of a truck of a neutral customer of the mill to refuse, in the course of their employment, to go to the mill for an order of goods. For the reasons hereinafter stated, we hold that such conduct did not violate § 8(b)(4). 2 This case was heard here with No. 393, National Labor Relations Board v. Denver Building and Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943; No. 108, InternationalBrotherhood of Electrical Workers v. National Labor Relations Board, 341 U.S. 694, 71 S.Ct. 954; and No. 85, Local 74, United Brotherhood of Carpenters v. National Labor Relations Board, 341 U.S. 707, 71 S.Ct. 966. Its facts, however, distinguish it from those cases. 3 This review is confined to the single incident described in the complaint issued by the Acting Regional Director of the National Labor Relations Board against the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 201, A.F.L., herein called the union. The complaint originally was based upon four charges made against the union by several rice mills engaged in interstate commerce near the center of the Louisiana rice industry. The mills included the International Rice Milling Company, Inc., which gives its name to this proceeding, and the Kaplan Rice Mills, Inc., a Louisiana corporation, which operated the mill at Kaplan, Louisiana, where the incident now before us occurred. The complaint charged that the union or its agents, by their conduct toward two employees of a neutral customer of the Kaplan Rice Mills, engaged in an unfair labor practice contrary to § 8(b)(4). The Board, with one member not participating, adopted the findings and conclusions of its trial examiner as to the facts but disagreed with his recommendation that those facts constituted a violation of § 8(b)(4)(A) or (B). The Board dismissed the complaint but attached the trial examiner's intermediate report to its decision. 84 N.L.R.B. 360. The Court of Appeals set aside the dismissal and remanded the case for further proceedings. 183 F.2d 21. We granted certiorari because of the importance of the principle involved and because of the conflicting views of several circuits as to the meaning of § 8(b)(4). 340 U.S. 902, 71 S.Ct. 278.2 4 The findings adopted by the Board show that the incident before us occurred at the union's picket line near the Kaplan Mill in October, 1947. The pickets generally carried signs, one being 'This job is unfair to' the union. The goal of the pickets was recognition of the union as the collective bargaining representative of the mill employees, but none of those employees took part in the picketing. Late one afternoon two employees of The Sales and Service House, which was a customer of the mill, came in a truck to the Kaplan Mill to obtain rice or bran for their employer. The union had no grievance against the customer and the latter was a neutral in the dispute between the union and the mill. The pickets formed a line across the road and walked toward the truck. When the truck stopped, the pickets told its occupants there was a strike on and that the truck would have to go back. Those on the truck agreed, went back to the highway and stopped. There one got out and went to the mill across the street. At that time a vice president of the Kaplan Mill came out and asked whether the truck was on its way to the mill and whether its occupants wanted to get the order they came for. The man on the truck explained that he was not the driver and that he would have to see the driver. On the driver's return, the truck proceeded, with the vice president, to the mill by a short detour. The pickets ran toward the truck and threw stones at it. The truck entered the mill, but the findings do not disclose whether the articles sought there were obtained. The Board adopted the finding that 'the stopping of the Sales House truck drivers and the use of force in connection with the stoppage were within the 'scope of the employment' of the pickets as agents of the respondent (union) and that such activities are attributable to the respondent.' 84 N.L.R.B. 360, 372. 5 The most that can be concluded from the foregoing, to establish a violation of § 8(b)(4), is that the union, in the course of picketing the Kaplan Mill, did encourage two employees of a neutral customer to turn back from an intended trip to the mill and thus to refuse, in the course of their employment, to transport articles or perform certain services for their employer. We may assume, without the necessity of adopting the Board's findings to that effect, that the objects of such conduct on the part of the union and its agents were (1) to force Kaplan's customer to cease handling, transporting or otherwise dealing in products of the mill or to cease doing business with Kaplan, at that time and place, and (2) to add to the pressure on Kaplan to recognize the union as the bargaining representative of the mill employees. 6 A sufficient answer to this claimed violation of the section is that the union's picketing and its encouragement of the men on the truck did not amount to such an inducement or encouragement to 'concerted' activity as the section proscribes. While each case must be considered in the light of its surrounding circumstances, yet the applicable proscriptions of § 8(b)(4) are expressly limited to the inducement or encouragement of concerted conduct by the employees of the neutral employer.3 That language contemplates inducement or encouragement to some concert of action greater than is evidenced by the pickets' request to a driver of a single truck to discontinue a pending trip to a picketed mill. There was no attempt by the union to induce any action by the employees of the neutral customer which would be more widespread than that already described. There were no inducements or encouragements applied elsewhere than on the picket line. The limitation of the complaint to an incident in the geographically restricted area near the mill is significant, although not necessarily conclusive. The picketing was directed at the Kaplan employees and at their employer in a manner traditional in labor disputes. Clearly, that, in itself, was not proscribed by § 8(b)(4). Insofar as the union's efforts were directed beyond that and toward the employees of anyone other than Kaplan, there is no suggestion that the union sought concerted conduct by such other employees. Such efforts also fall short of the proscriptions in § 8(b)(4). In this case, therefore, we need not determine the specific objects toward which a union's encouragement of concerted conduct must be directed in order to amount to an unfair labor practice under subsection (A) or (B) of § 8(b)(4). A union's inducements or encouragements reaching individual employees of neutral employers only as they happen to approach the picketed place of business generally are not aimed at concerted, as distinguished from individual, conduct by such employees. Generally, therefore, such actions do not come within the proscription of § 8(b)(4), and they do not here. 7 In the instant case the violence on the picket line is not material. The complaint was not based upon that violence, as such. To reach it, the complaint more properly would have relied upon § 8(b)(1)(A)4 or would have addressed itself to local authorities. The substitution of violent coercion in place of peaceful persuasion would not in itself bring the complained-of conduct into conflict with § 8(b)(4). It is the object of union encouragement that is proscribed by that section, rather than the means adopted to make it felt.5 8 That Congress did not seek, by § 8(b)(4), to interfere with the ordinary strike has been indicated recently by this Court.6 This is emphasized in § 13 as follows: 'Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.' 61 Stat. 151, 29 U.S.C. (Supp. III) § 163, 29 U.S.C.A. § 163. 9 By § 13, Congress has made it clear that § 8(b)(4), and all other parts of the Act which otherwise might be read so as to interfere with, impede or diminish the union's traditional right to strike, may be so read only if such interference, impediment or diminution is 'specifically provided for' in the Act.7 No such specific provision in § 8(b)(4) reaches the incident here. The material legislative history supports this view.8 10 On the single issue before us, we sustain the action of the Board and the judgment of the Court of Appeals, accordingly, is reversed. 11 Reversed. 1 'Sec. 8. * * * '(b) It shall be an unfair labor practice for a labor organization or its agents— '(4) to engage in, or, to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; (B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9; (C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of section 9; (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work: Provided, That nothing contained in this subsection (b) shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this Act; * * *.' (Emphasis supplied.) 61 Stat. 140—142, 29 U.S.C. (Supp. III) § 158(b)(4), 29 U.S.C.A. § 158(b)(4). The above provisions, together with those of § 303, 61 Stat. 158, 29 U.S.C. (Supp. III) § 187, 29 U.S.C.A. § 187, have been referred to by Congress and the courts as the 'secondary boycott sections' of the Act. 2 While the complaint charged no unfair labor practice on the part of the union in its relations with employees of the Kaplan Mill, it did charge that the union also violated § 8(b)(4)(A) by its conduct in inducing and encouraging employees of two neutral railroads to engage in a concerted refusal, in the course of their employment, to transport or otherwise handle articles shipped to or from some of the respective mills, including the Kaplan Mill. Not only did the encouragement of concerted action which was alleged in that charge differ substantially from the conduct which is before us but the Board found that the railroad employees were not employees within the meaning of § 8(b) (4). 84 N.L.R.B. 360. The Court of Appeals held to the contrary and remanded the charge for further proceedings. 183 F.2d 21, 24—26. The Board, however, does not seek a review of that order. 3 It is not charged here that the union or its agents themselves engaged in a strike or concerted activity for an object proscribed by § 8(b)(4). 4 'Sec. 8. * * * '(b) It shall be an unfair labor practice for a labor organization or its agents— '(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: * * *.' 61 Stat. 140—141, 29 U.S.C. (Supp. III) § 158(b)(1)(A), 29 U.S.C.A. § 158(b)(1)(A). 'Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities * * *.' 61 Stat. 140, 29 U.S.C. (Supp. III) § 157, 29 U.S.C.A. § 157. 5 '* * * The Labor Management Relations Act declared it to be an unfair labor practice for a union to induce or engage in a strike or concerted refusal to work where an object thereof is any of certain enumerated ones. § 8(b)(4) * * *. While the Federal Board is empowered to forbid a strike, when and because its purpose is one that the Federal Act made illegal, it has been given no power to forbid one because its method is illegal—even if the illegality were to consist of actual or threatened violence to persons or destruction of property.' International Union, U.A.W.A.F. of L., Local 232 v. Wisconsin Employment Relations Board, 336 U.S. 245, 253, 69 S.Ct. 516, 521, 93 L.Ed. 651. 6 In this Act 'Congress safeguarded the exercise by employees of 'concerted activities' and expressly recognized the right to strike.' International Union of United Auto, Aircraft and Agr. Implement Workers v. O'Brien, 339 U.S. 454, 457, 70 S.Ct. 781, 782, 94 L.Ed. 978; see also, Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 389, 404, 71 S.Ct. 359, 362, 370; United Electrical & Machine Workers, 85 N.L.R.B. 417, 418; Oil Workers International Union, 84 N.L.R.B. 315, 318—320. 7 See also, the protection given to the right to engage in concerted activities by § 7 of the Act, note 4, supra. As to both §§ 13 and 7, see International Union, U.A.W.A.F. of L., Local 232 V. Wisconsin Employment Relations Board, supra, 336 U.S. at pages 258—264, 69 S.Ct. at pages 523—526. The character of the problem of reconciliation of the right to strike with the limitations expressed in § 8(b)(4) is not unlike that which confronted the Court in Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 806, 65 S.Ct. 1533, 1538, 89 L.Ed. 1939: 'The result of all this is that we have two declared congressional policies which it is our responsibility to try to reconcile. The one seeks to preserve a competitive business economy; the other to preserve the rights of labor to organize to better its conditions through the agency of collective bargaining. We must determine here how far Congress intended activities under one of these policies to neutralize the results envisioned by the other.' 8 Senator Taft, Chairman of the Senate Committee on Labor and Public Welfare, and floor manager for the bill in the Senate, said: '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.' 93 Cong.Rec. 3835. Similar statements by Senator Taft appear at 93 Cong.Rec. 3838, 4198, 4867, 6446, 7537. Several other members of the Committee expressed like views: Senator Ellender at 93 Cong.Rec. 4131—4132; Senator Ball at 4834, 4838, 7529—7530; Senator Aiken at 4860; and Senator Morse at 4864, 4871—4873. See also, 'the primary strike for recognition (without a Board certification) is not proscribed.' S.Rep. No. 105, 80th Cong., 1st Sess. (Pt. 1) 22, and see H.R.Rep. No. 510, 80th Cong., 1st Sess. 43. In discussing the effect of § 8(b)(4), and in showing its application only to circumstances other than those involved in this case, Senator Taft said further: 'The Senator will find a great many decisions * * * which hold that under the common law a secondary boycott is unlawful. * * * under the provisions of the Norris-LaGuardia Act (29 U.S.C.A. § 101 et seq.), it became impossible to stop a secondary boycott or any other kind of a strike, no matter how unlawful it may have been at common law. All this provision of the bill (§ 8(b)(4)) does is to reverse the effect of the law as to secondary boycotts.' 93 Cong.Rec. 4198.

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341 U.S. 494 71 S.Ct. 857 95 L.Ed. 1137 DENNIS et al.v.UNITED STATES. No. 336. Argued Dec. 4, 1950. Decided June 4, 1951. Messrs. Harry Sacher, New York City, George W. Crockett, Jr., Washington, D.C., Abraham J. Isserman, Los Angeles, Cal., for petitioners. Messrs. Philip B. Perlman, Sol. Gen., Irving S. Shapiro, Washington, D.C., for respondent. Mr. Chief Justice VINSON announced the judgment of the Court and an opinion in which Mr. Justice REED, Mr. Justice BURTON and Mr. Justice MINTON join. 1 Petitioners were indicted in July, 1948, for violation of the conspiracy provisions of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.) § 11, during the period of April, 1945, to July, 1948. The pretrial motion to quash the indictment on the grounds, inter alia, that the statute was unconstitutional was denied, United States v. Foster, D.C., 80 F.Supp. 479, and the case was set for trial on January 17, 1949. A verdict of guilty as to all the petitioners was returned by the jury on October 14, 1949. The Court of Appeals affirmed the convictions. 183 F.2d 201. We granted certiorari, 340 U.S. 863, 71 S.Ct. 91, limited to the following two questions: (1) Whether either § 2 or § 3 of the Smith Act, inherently or as construed and applied in the instant case, violates the First Amendment and other provisons of the Bill of Rights; (2) whether either § 2 or § 3 of the Act, inherently or as construed and applied in the instant case, violates the First and Fifth Amendments because of indefiniteness. 2 Sections 2 and 3 of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.) §§ 10, 11 (see present 18 U.S.C. § 2385), provide as follows: 3 'Sec. 2. 4 '(a) It shall be unlawful for any person— 5 '(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government; 6 '(2) with intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence; 7 '(3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof. 8 '(b) For the purposes of this section, the term 'government in the United States' means the Government of the United States, the government of any State, Territory, or possession of the United States, the government of the District of Columbia, or the government of any political subdivision of any of them. 9 'Sec. 3. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the acts prohibited by the provisions of * * * this title.' 10 The indictment charged the petitioners with wilfully and knowingly conspiring (1) to organize as the Communist Party of the United States of America a society, group and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and (2) knowingly and wilfully to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. The indictment further alleged that § 2 of the Smith Act proscribes these acts and that any conspiracy to take such action is a violation of § 3 of the Act. 11 The trial of the case extended over nine months, six of which were devoted to the taking of evidence, resulting in a record of 16,000 pages. Our limited grant of the writ of certiorari has removed from our consideration any question as to the sufficiency of the evidence to support the jury's determination that petitioners are guilty of the offense charged. Whether on this record petitioners did in fact advocate the overthrow of the Government by force and violence is not before us, and we must base any discussion of this point upon the conclusions stated in the opinion of the Court of Appeals, which treated the issue in great detail. That court held that the record in this case amply supports the necessary finding of the jury that petitioners, the leaders of the Communist Party in this country, were unwilling to work within our framework of democracy, but intended to initiate a violent revolution whenever the propitious occasion appeared. Petitioners dispute the meaning to be drawn from the evidence, contending that the Marxist-Leninist doctrine they advocated taught that force and violence to achieve a Communist form of government in an existing democratic state would be necessary only because the ruling classes of that state would never permit the transformation to be accomplished peacefully, but would use force and violence to defeat any peaceful political and economic gain the Communists could achieve. But the Court of Appeals held that the record supports the following broad conclusions: By virtue of their control over the political apparatus of the Communist Political Association,1 petitioners were able to transform that organization into the Communist Party; that the policies of the Association were changed from peaceful cooperation with the United States and its economic and political structure to a policy which had existed before the United States and the Soviet Union were fighting a common enemy, namely, a policy which worked for the overthrow of the Government by force and violence; that the Communist Party is a highly disciplined organization, adept at infiltration into strategic positions, use of aliases, and double-meaning language; that the Party is rigidly controlled; that Communists, unlike other political parties, tolerate no dissension from the policy laid down by the guiding forces, but that the approved program is slavishly followed by the members of the Party; that the literature of the Party and the statements and activities of its leaders, petitioners here, advocate, and the general goal of the Party, was, during the period in question, to achieve a successful overthrow of the existing order by force and violence. I. 12 It will be helpful in clarifying the issues to treat next the contention that the trial judge improperly interpreted the statute by charging that the statute required an unlawful intent before the jury could convict. More specifically, he charged that the jury could not find the petitioners guilty under the indictment unless they found that petitioners had the intent 'to overthrow * * * the Government of the United States by force and violence as speedily as circumstances would permit.' 13 Section 2(a)(1) makes it unlawful 'to knowingly or willfully advocate, * * * or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence * * *.'; Section 2(a)(3), 'to organize or help to organize any society, group, or assembly of persons who teach, advocate or encourage the overthrow * * *.' Because of the fact that § 2(a)(2) expressly requires a specific intent to overthrow the Government, and because of the absence of precise language in the foregoing subsections, it is claimed that Congress deliberately omitted any such requirement. We do not agree. It would require a far greater indication or congressional desire that intent not be made an element of the crime than the use of the disjunctive 'knowingly or willfully' in § 2(a)(1), or the omission of exact language in § 2(a)(3). The structure and purpose of the statute demand the inclusion of intent as an element of the crime. Congress was concerned with those who advocate and organize for the overthrow of the Government. Certainly those who recruit and combine for the purpose of advocating overthrow intend to bring about that overthrow. We hold that the statute requires as an essential element of the crime proof of the intent of those who are charged with its violation to overthrow the Government by force and violence. See Williams v. United States, 1951, 341 U.S. 97, 101—102, 71 S.Ct. 576, 579, 580; Screws v. United States, 1945, 325 U.S. 91, 101 105, 65 S.Ct. 1031, 1035, 1037, 8. L.Ed. 1495; Cramer v. United States, 1945, 325 U.S. 1, 31, 65 S.Ct. 918, 933, 89 L.Ed. 1441. 14 Nor does the fact that there must be an investigation of a state of mind under this interpretation afford any basis for rejection of that meaning. A survey of Title 18 of the U.S.Code indicates that the vast majority of the crimes designated by that Title require, by express language, proof of the existence of a certain mental state, in words such as 'knowingly,' 'maliciously,' 'wilfully,' 'with the purpose of,' 'with intent to,' or combinations or permutations of these and synonymous terms. The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence. See American Communications Ass'n v. Douds, 1950, 339 U.S. 382, 411, 70 S.Ct. 674, 690, 94 L.Ed. 925. 15 It has been suggested that the presence of intent makes a difference in the law when an 'act otherwise excusable or carrying minor penalties' is accompanied by such an evil intent. Yet the existence of such an intent made the killing condemned in Screws, supra, and the beating in Williams, supra, both clearly and severely punishable under state law, offenses constitutionally punishable by the Federal Government. In those cases, the Court required the Government to prove that the defendants intended to deprive the victim of a constitutional right. If that precise mental state may be an essential element of a crime, surely an intent to overthrow the Government of the United States by advocacy thereof is equally susceptible of proof.2 II. 16 The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a 'right' to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence. The question with which we are concerned here is not whether Congress has such power, but whether the means which it has employed conflict with the First and Fifth Amendments to the Constitution. 17 One of the bases for the contention that the means which Congress has employed are invalid takes the form of an attack on the face of the statute on the grounds that by its terms it prohibits academic discussion of the merits of Marxism-Leninism, that it stifles ideas and is contrary to all concepts of a free speech and a free press. Although we do not agree that the language itself has that significance, we must bear in mind that it is the duty of the federal courts to interpret federal legislation in a manner not inconsistent with the demands of the Constitution. American Communications Ass'n v. Douds, 1950, 339 U.S. 382, 407, 70 S.Ct. 674, 688, 94 L.Ed. 925. We are not here confronted with cases similar to Thornhill v. State of Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Herndon v. Lowry, 1937, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; and DeJonge v. State of Oregon, 1937, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278, where a state court had given a meaning to a state statute which was inconsistent with the Federal Constitution. This is a federal statute which we must interpret as well as judge. Herein lies the fallacy of reliance upon the manner in which this Court has treated judgments of state courts. Where the statute as construed by the state court transgressed the First Amendment, we could not but invalidate the judgments of conviction. 18 The very language of the Smith Act negates the interpretation which petitioners would have us impose on that Act. It is directed at advocacy, not discussion. Thus, the trial judge properly charged the jury that they could not convict if they found that petitioners did 'no more than pursue peaceful studies and discussions or teaching and advocacy in the realm of ideas.' He further charged that it was not unlawful 'to conduct in an American college and university a course explaining the philosophical theories set forth in the books which have been placed in evidence.' Such a charge is in strict accord with the statutory language, and illustrates the meaning to be placed on those words. Congress did not intend to eradicate the free discussion of political theories, to destroy the traditional rights of Americans to discuss and evaluate ideas without fear of governmental sanction. Rather Congress was concerned with the very kind of activity in which the evidence showed these petitioners engaged. III. 19 But although the statute is not directed at the hypothetical cases which petitioners have conjured, its application in this case has resulted in convictions for the teaching and advocacy of the overthrow of the Government by force and violence, which, even though coupled with the intent to accomplish that overthrow, contains an element of speech. For this reason, we must pay special heed to the demands of the First Amendment marking out the boundaries of speech. 20 We pointed out in Douds, supra, that the basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda will answer propaganda, free debate od ideas will result in the wisest governmental policies. It is for this reason that this Court has recognized the inherent value of free discourse. An analysis of the leading cases in this Court which have involved direct limitations on speech, however, will demonstrate that both the majority of the Court and the dissenters in particular cases have recognized that this is not an unlimited, unqualified right, but that the societal value of speech must, on occasion, be subordinated to other values and considerations. 21 No important case involving free speech was decided by this Court prior to Schenck v. United States, 1919, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470. Indeed, the summary treatment accorded an argument based upon an individual's claim that the First Amendment protected certain utterances indicates that the Court at earlier dates placed no unique emphasis upon that right.3 It was not until the classic dictum of Justice Holmes in the Schenck case that speech per se received that emphasis in a majority opinion. That case involved a conviction under the Criminal Espionage Act, 40 Stat. 217. The question the Court faced was whether the evidence was sufficient to sustain the conviction. Writing for a unanimous Court, Justice Holmes stated 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.' 249 U.S. at page 52, 39 S.Ct. at page 249, 63 L.Ed. 470. But the force of even this expression is considerably weakened by the reference at the end of the opinion to Goldman v. United States, 1918, 245 U.S. 474, 38 S.Ct. 166, 62 L.Ed. 410, a prosecution under the same statute. Said Justice Holmes, 'Indeed (Goldman) might be said to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a few words.' 249 U.S. at page 52, 39 S.Ct. at page 249, 63 L.Ed. 470. The fact is inescapable, too, that the phrase bore no connotation that the danger was to be any threat to the safety of the Republic. The charge was causing and attempting to cause insubordination in the military forces and obstruct recruiting. The objectionable document denounced conscription and its most inciting sentence was, 'You must do your share to maintain, support and uphold the rights of the people of this country.' 249 U.S. at page 51, 39 S.Ct. at page 248, 63 L.Ed. 470. Fifteen thousand copies were printed and some circulated. This insubstantial gesture toward insubordination in 1917 during war was held to be a clear and present danger of bringing about the evil of military insubordination. 22 In several later cases involving convictions under the Criminal Espionage Act, the nub of the evidence the Court held sufficient to meet the 'clear and present danger' test enunciated in Schenck was as follows: Frohwerk v. United States, 1919, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561—publication of twelve newspaper articles attacking the war; Debs v. United States, 1919, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566—one speech attacking United States' participation in the war; Abrams v. United States, 1920, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173—circulation of copies of two different socialist circulars attacking the war; Schaefer v. United States, 1920, 251 U.S. 466, 40 S.Ct. 259, 64 L.Ed. 360—publication of a Germanlanguage newspaper with allegedly false articles, critical of capitalism and the war; Pierce v. United States, 1920, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542 circulation of copies of a four-page pamphlet written by a clergyman, attacking the purposes of the war and United States' participation therein. Justice Holmes wrote the opinions for a unanimous Court in Schenck, Frohwerk and Debs. He and Justice Brandeis dissented in Abrams, Schaefer and Pierce. The basis of these dissents was that, because of the protection which the First Amendment gives to speech, the evidence in each case was insufficient to show that the defendants had created the requisite danger under Schenck. But these dissents did not mark a change of principle. The dissenters doubted only the probable effectiveness of the puny efforts toward subversion. in Abrams, they wrote, 'I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.' 250 U.S. at page 627, 40 S.Ct. at page 21, 63 L.Ed. 1173. And in Schaefer the test was said to be 'one of degree', 251 U.S. at page 482, 40 S.Ct. at page 265, 64 L.Ed. 360, although it is not clear whether 'degree' refers to clear and present danger or evil. Perhaps both were meant. 23 The rule we deduce from these cases is that where an offense is specified by a statute in nonspeech or nonpress terms, a conviction relying upon speech or press as evidence of violation may be sustained only when the speech or publication created a 'clear and present danger' of attempting or accomplishing the prohibited crime, e.g., interference with enlistment. The dissents, we repeat, in emphasizing the value of speech, were addressed to the argument of the sufficiency of the evidence. 24 The next important case4 before the Court in which free speech was the crux of the conflict was Gitlow v. People of State of New York, 1925, 268 U.S. 652, 45 S.Ct. 625, 626, 69 L.Ed. 1138. There New York had made it a crime to advocate 'the necessity or propriety of overthrowing * * * organized government by force * * *.' The evidence of violation of the statute was that the defendant had published a Manifesto attacking the Government and capitalism. The convictions were sustained, Justices Holmes and Brandeis dissenting. The majority refused to apply the 'clear and present danger' test to the specific utterance. Its reasoning was as follows: The 'clear and present danger' test was applied to the utterance itself in Schenck because the question was merely one of sufficiency of evidence under an admittedly constitutional statute. Gitlow, however, presented a different question. There a legislature had found that a certain kind of speech was, itself, harmful and unlawful. The constitutionality of such a state statute had to be adjudged by this Court just as it determined the constitutionality of any state statute, namely, whether the statute was 'reasonable.' Since it was entirely reasonable for a state to attempt to protect itself from violent overthrow the statute was perforce reasonable. The only question remaining in the case became whether there was evidence to support the conviction, a question which gave the majority no difficulty. Justices Holmes and Brandeis refused to accept this approach, but insisted that wherever speech was the evidence of the violation, it was necessary to show that the speech created the 'clear and present danger' of the substantive evil which the legislature had the right to prevent. Justices Holmes and Brandeis, then, made no distinction between a federal statute which made certain acts unlawful, the evidence to support the conviction being speech, and a statute which made speech itself the crime. This approach was emphasized in Whitney v. People of State of California, 1927, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095, where the Court was confronted with a conviction under the California Criminal Syndicalist statute. The Court sustained the conviction, Justices Brandeis and Holmes concurring in the result. In their concurrence they repeated that even though the legislature had designated certain speech as criminal, this could not prevent the defendant from showing that there was no danger that the substantive evil would be brought about. 25 Although no case subsequent to Whitney and Gitlow has expressly overruled the majority opinions in those cases, there is little doubt that subsequent opinions have inclined toward the Holmes-Brandeis rationale.5 And in American Communications Ass'n v. Douds, supra (339 U.S. 382, 70 S.Ct. 681), we were called upon to decide the validity of § 9(h) of the Labor-Management Relations Act of 1947, 29 U.S.C.A. § 159(h). That section required officials of unions which desired to avail themselves of the facilities of the National Labor Relations Board to take oaths that they did not belong to the Communist Party and that they did not believe in the overthrow of the Government by force and violence. We pointed out that Congress did not intend to punish brief, but rather intended to regulate the conduct of union affairs. We therefore held that any indirect sanction on speech which might arise from the oath requirement did not present a proper case for the 'clear and present danger' test, for the regulation was aimed at conduct rather than speech. In discussing the proper measure of evaluation of this kind of legislation, we suggested that the Holmes-Brandeis philosophy insisted that where there was a direct restriction upon speech, a 'clear and present danger' that the substantive evil would be caused was necessary before the statute in question could be constitutionally applied. And we stated, '(The First) 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.' 339 U.S. at page 412, 70 S.Ct. at page 691, 94 L.Ed. 925. But we further suggested that neither Justice Holmes nor Justice Brandeis ever envisioned that a shorthand phrase should be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case. Speech is not an absolute, above and beyond control by the legislature when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature. See Douds, 339 U.S. at page 397, 70 S.Ct. at page 683, 94 L.Ed. 925. To those who would paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we must reply that all concepts are relative. 26 In this case we are squarely presented with the application of the 'clear and present danger' test, and must decide what that phrase imports. We first note that many of the cases in which this Court has reversed convictions by use of this or similar tests have been based on the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction of speech. In this category we may put such cases as Schneider v. State, 1939, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell v. State of Connecticut, 1940, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Martin v. City of Struthers, 1943, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; Thomas v. Collins, 1945, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; Marsh v. State of Alabama, 1945, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; but cf. Prince v. Com. of Massachusetts, 1944, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; Cox v. State of New Hampshire, 1941, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected. If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase 'clear and present danger' of the utterances bringing about the evil within the power of Congress to punish. 27 Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt. In the instant case the trial judge charged the jury that they could not convict unless they found that petitioners intended to overthrow the Government 'as speedily as circumstances would permit.' This does not mean, and could not properly mean, that they would not strike until there was certainty of success. What was meant was that the revolutionists would strike when they thought the time was ripe. We must therefore reject the contention that success or probability of success is the criterion. 28 The situation with which Justices Holmes and Brandeis were concerned in Gitlow was a comparatively isolated event, bearing little relation in their minds to any substantial threat to the safety of the community. Such also is true of cases like Fiske v. State of Kansas, 1927, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108, and DeJonge v. State of Oregon, 1937, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; but cf. Lazar v. Com. of Pennsylvania, 1932, 286 U.S. 532, 52 S.Ct. 639, 76 L.Ed. 1272. They were not confronted with any situation comparable to the instant one—the development of an apparatus designed and dedicated to the overthrow of the Government, in the context of world crisis after crisis. 29 Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: 'In each case (courts) must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.' 183 F.2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words. 30 Likewise, we are in accord with the court below, which affirmed the trial court's finding that the requisite danger existed. The mere fact that from the period 1945 to 1948 petitioners' activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. And this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger. Cf. Pinkerton v. United States, 1946, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489; Goldman v. United States, 1918, 245 U.S. 474, 38 S.Ct. 166, 62 L.Ed. 410; United States v. Rabinowich, 1915, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211. If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added. IV. 31 Although we have concluded that the finding that there was a sufficient danger to warrant the application of the statute was justified on the merits, there remains the problem of whether the trial judge's treatment of the issue was correct. He charged the jury, in relevant part, as follows: 32 'In further construction and interpretation of the statute I charge you that it is not the abstract doctrine of overthrowing or destroying organized government by unlawful means which is denounced by this law, but the teaching and advocacy of action for the accomplishment of that purpose, by language reasonably and ordinarily calculated to incite persons to such action. Accordingly, you cannot find the defendants or any of them guilty of the crime charged unless you are satisfied beyond a reasonable doubt that they conspired to organize a society, group and assembly of persons who teach and advocate the overthrow or destruction of the Government of the United States by force and violence and to advocate and teach the duty and necessity of overthrowing or destroying the Government of the United States by force and violence, with the intent that such teaching and advocacy be of a rule or principle of action and by language reasonably and ordinarily calculated to incite persons to such action, all with the intent to cause the overthrow or destruction of the Government of the United States by force and violence as speedily as circumstances would permit. 33 'If you are satisfied that the evidence establishes beyond a reasonable doubt that the defendants, or any of them, are guilty of a violation of the statute, as I have interpreted it to you, I find as matter of law that there is sufficient danger of a substantive evil that the Congress has a right to prevent to justify the application of the statute under the First Amendment of the Constitution. 34 'This is matter of law about which you have no concern. It is a finding on a matter of law which I deem essential to support my ruling that the case should be submitted to you to pass upon the guilt or innocence of the defendants. * * *' 35 It is thus clear that he reserved the question of the existence of the danger for his own determination, and the question becomes whether the issue is of such a nature that it should have been submitted to the jury. 36 The first paragraph of the quoted instructions calls for the jury to find the facts essential to establish the substantive crime, violation of §§ 2(a)(1) and 2(a)(3) of the Smith Act, involved in the conspiracy charge. There can be no doubt that if the jury found those facts against the petitioners violation of the Act would be established. The argument that the action of the trial court is erroneous, in declaring as a matter of law that such violation shows sufficient danger to justify the punishment despite the First Amendment, rests on the theory that a jury must decide a question of the application of the First Amendment. We do not agree. 37 When facts are found that establish the violation of a statute, the protection against conviction afforded by the First Amendment is a matter of law. The doctrine that there must be a clear and present danger of a substantive evil that Congress has a right to prevent is a judicial rule to be applied as a matter of law by the courts. The guilt is established by proof of facts. Whether the First Amendment protects the activity which constitutes the violation of the statute must depend upon a judicial determination of the scope of the First Amendment applied to the circumstances of the case. 38 Petitioners' reliance upon Justice Brandeis' language in his concurrence in Whitney, supra, is misplaced. In that case Justice Brandeis pointed out that the defendant could have made the existence of the requisite danger the important issue at her trial, but that she had not done so. In discussing this failure, he stated that the defendant could have had the issue determined by the court or the jury.6 No realistic construction of this disjunctive language could arrive at the conclusion that he intended to state that the question was only determinable by a jury. Nor is the incidental statement of the majority in Pierce, supra, of any more persuasive effect.7 There the issue of the probable effect of the publication had been submitted to the jury, and the majority was apparently addressing its remarks to the contention of the dissenters that the jury could not reasonably have returned a verdict of guilty on the evidence.8 Indeed, in the very case in which the phrase was born, Schenck, this Court itself examined the record to find whether the requisite danger appeared, and the issue was not submitted to a jury. And in every later case in which the Court has measured the validity of a statute by the 'clear and present danger' test, that determination has been by the court, the question of the danger not being submitted to the jury. 39 The question in this case is whether the statute which the legislature has enacted may be constitutionally applied. In other words, the Court must examine judicially the application of the statute to the particular situation, to ascertain if the Constitution prohibits the conviction. We hold that the statute may be applied where there is a 'clear and present danger' of the substantive evil which the legislature had the right to prevent. Bearing, as it does, the marks of a 'question of law,' the issue is properly one for the judge to decide. V. 40 There remains to be discussed the question of vagueness whether the statute as we have interpreted it is too vague, not sufficiently advising those who would speak of the limitations upon their activity. It is urged that such vagueness contravenes the First and Fifth Amendments. This argument is particularly nonpersuasive when presented by petitioners, who, the jury found, intended to overthrow the Government as speedily as circumstances would permit. See Abrams v. United States, 1919, 250 U.S. 616, 627 629, 40 S.Ct. 17, 21, 63 L.Ed. 1173 (dissenting opinion); Whitney v. People of State of California, 1927, 274 U.S. 357, 373, 47 S.Ct. 641, 647, 71 L.Ed. 1095 (concurring opinion); Taylor v. State of Mississippi, 1943, 319 U.S. 583, 589, 63 S.Ct. 1200, 1203, 87 L.Ed. 1600. A claim of guilelessness ill becomes those with evil intent. Williams v. United States, 1951, 341 U.S. 97, 101—102, 71 S.Ct. 576, 579, 580; Jordan v. De George, 1951, 341 U.S. 223, 71 S.Ct. 703; American Communication Ass'n v. Douds, 339 U.S. at 413, 70 S.Ct. at page 691, 94 L.Ed. 925; Screws v. United States, 1945, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495. 41 We agree that the standard as defined is not a neat, mathematical formulary. Like all verbalizations it is subject to criticism on the score of indefiniteness. But petitioners themselves contend that the verbalization, 'clear and present danger' is the proper standard. We see no difference, from the standpoint of vagueness, whether the standard of 'clear and present danger' is one contained in haec verba within the statute, or whether it is the judicial measure of constitutional applicability. We have shown the indeterminate standard the phrase necessarily connotes. We do not think we have rendered that standard any more indefinite by our attempt to sum up the factors which are included within its scope. We think it well serves to indicate to those who would advocate constitutionally prohibited conduct that there is a line beyond which they may not go—a line which they, in full knowledge of what they intend and the circumstances in which their activity takes place, will well appreciate and understand. Williams, supra, 341 U.S. at pages 101—102, 71 S.Ct. at pages 579, 580; Jordan, supra, 341 U.S. 223, 71 S.Ct. 703; United States v. Petrillo, 1948, 332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877; United States v. Wurzback, 1930, 280 U.S. 396, 399, 50 S.Ct. 167, 168, 74 L.Ed. 508; Nash v. United States, 1913, 229 U.S. 373, 376 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232. Where there is doubt as to the intent of the defendants, the nature of their activities, or their power to bring about the evil, this Court will review the convictions with the scrupulous care demanded by our Constitution. But we are not convinced that because there may be borderline cases at some time in the future, these convictions should be reversed because of the argument that these petitioners could not know that their activities were constitutionally proscribed by the statute. 42 We have not discussed many of the questions which could be extracted from the record, although they were treated in detail by the court below. Our limited grant of the writ of certiorari has withdrawn from our consideration at this date those questions, which include, inter alia, sufficiency of the evidence, composition of jury, and conduct of the trial. 43 We hold that §§ 2(a)(1), 2(a)(3) and 3 of the Smith Act, do not inherently, or as construed or applied in the instant case, violate the First Amendment and other provisions of the Bill of Rights, or the First and Fifth Amendments because of indefiniteness. Petitioners intended to overthrow the Government of the United States as speedily as the circumstances would permit. Their conspiracy to organize the Communist Party and to teach and advocate the overthrow of the Government of the United States by force and violence created a 'clear and present danger' of an attempt to overthrow the Government by force and violence. They were properly and constitutionally convicted for violation of the Smith Act. The judgments of conviction are affirmed. 44 Affirmed. 45 Mr. Justice CLARK took no part in the consideration or decision of this case. 46 Mr. Justice FRANKFURTER, concurring in affirmance of the judgment. 47 The defendants were convicted under § 3 of the Smith Act for conspiring to violate § 2 of that Act, which makes it unlawful 'to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence'. Act of June 28, 1940, § 2(a)(3), 54 Stat. 670, 671, 18 U.S.C. § 10, now 18 U.S.C. § 2385. The substance of the indictment is that the defendants between April 1, 1945, and July 20, 1948, agreed to bring about the dissolution of a body known as the Communist Political Association and to organize in its place the Communist Party of the United States; that the aim of the new party was 'the overthrow and destruction of the Government of the United States by force and violence'; that the defendants were to assume leadership of the Party and to recruit members for it and that the Party was to publish books and conduct classes, teaching the duty and the necessity of forceful overthrow. The jury found all the defendants guilty. With one exception, each was sentenced to imprisonment for five years and to a fine of $10,000. The convictions were affirmed by the Court of Appeals for the Second Circuit. 183 F.2d 201. We were asked to review this affirmance on all the grounds considered by the Court of Appeals. These included not only the scope of the freedom of speech guaranteed by the Constitution, but also serious questions regarding the legal composition of the jury and the fair conduct of the trial. We granted certiorari, strictly limited, however, to the contention that §§ 2 and 3 of the Smith Act, inherently and as applied, violated the First and Fifth Amendments. 340 U.S. 863, 71 S.Ct. 91. No attempt was made to seek an enlargement of the range of questions thus defined, and these alone are now open for our consideration. All others are foreclosed by the decision of the Court of Appeals. 48 As thus limited, the controversy in this Court turns essentially on the instructions given to the jury for determining guilt or innocence. U.S. v. Foster, D.C., 9 F.R.D. 367. The first question is whether—wholly apart from constitutional matters—the judge's charge properly explained to the jury what it is that the Smith Act condemns. The conclusion that he did so requires no labored argument. On the basis of the instructions, the jury found, for the purpose of our review, that the advocacy which the defendants conspired to promote was to be a rule of action, by language reasonably calculated to incite persons to such action, and was intended to cause the overthrow of the Government by force and violence as soon as circumstances permit. This brings us to the ultimate issue. In enacting a statute which makes it a crime for the defendants to conspire to do what they have been found to have conspired to do, did Congress exceed its constitutional power? 49 Few questions of comparable import have come before this Court in recent years. The appellants maintain that they have a right to advocate a political theory, so long, at least, as their advocacy does not create an immediate danger of obvious magnitude to the very existence of our present scheme of society. On the other hand, the Government asserts the right to safeguard the security of the Nation by such a measure as the Smith Act. Our judgment is thus solicited on a conflict of interests of the utmost concern to the well-being of the country. This conflict of interests cannot be resolved by a dogmatic preference for one or the other, nor by a sonorous formula which is in fact only a euphemistic disguise for an unresolved conflict. If adjudication is to be a rational process, we cannot escape a candid examination of the conflicting claims with full recognition that both are supported by weighty title-deeds. I. 50 There come occasions in law, as elsewhere, when the familiar needs to be recalled. Our whole history proves even more decisively than the course of decisions in this Court that the United States has the powers inseparable from a sovereign nation. 'America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent.' Chief Justice Marshall in Cohens v. Com. of Virginia, 6 Wheat. 264, 414, 5 L.Ed. 257. The right of a government to maintain its existence—self-preservation is the most pervasive aspect of sovereignty. 'Security against foreign danger,' wrote Madison, 'is one of the primitive objects of civil society.' The Federalist, No. 41. The constitutional power to act upon this basic principle has been recognized by this Court at different periods and under diverse circumstances. 'To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come * * *. The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth * * *.' The Chinese Exclusion Case (Chae Chan Ping v. United States) 130 U.S. 581, 606, 9 S.Ct. 623, 630, 32 L.Ed. 1068. See also De Lima v. Bidwell, 182 U.S. 1, 21 S.Ct. 743, 45 L.Ed. 1041; Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297; State of Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641; United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255. The most tragic experience in our history is a poignant reminder that the Nation's continued existence may be threatened from within. To protect itself from such threats, the Federal Government 'is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions.' Mr. Justice Bradley, concurring in Legal Tender Cases, 12 Wall. 457, 554, 556, 20 L.Ed. 287; and see In re Debs, 158 U.S. 564, 582, 15 S.Ct. 900, 905, 39 L.Ed. 1092. 51 But even the all-embracing power and duty of self-preservation are not absolute. Like the war power, which is indeed an aspect of the power of self-preservation, it is subject to applicable constitutional limitations. See Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194. Our Constitution has no provision lifting restrictions upon governmental authority during periods of emergency, although the scope of a restriction may depend on the circumstances in which it is invoked. 52 The First Amendment is such a restriction. It exacts obedience even during periods of war; it is applicable when war clouds are not figments of the imagination no less than when they are. The First Amendment categorically demands that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.' The right of a man to think what he pleases, to write what he thinks, and to have his thoughts made available for others to hear or read has an engaging ring of universality. The Smith Act and this conviction under it no doubt restrict the exercise of free speech and assembly. Does that, without more, dispose of the matter? 53 Just as there are those who regard as invulnerable every measure for which the claim of national survival is invoked, there are those who find in the Constitution a wholly unfettered right of expression. Such literalness treats the words of the Constitution as though they were found on a piece of outworn parchment instead of being words that have called into being a nation with a past to be preserved for the future. The soil in which the Bill of Rights grew was not a soil of arid pedantry. The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. The Massachusetts Constitution of 1780 guaranteed free speech; yet there are records of at least three convictions for political libels obtained between 1799 and 1803.1 The Pennsylvania Constitution of 1790 and the Delaware Constitution of 1792 expressly imposed liability for abuse of the right of free speech.2 Madison's own State put on its books in 1792 a statute confining the abusive exercise of the right of utterance.3 And it deserves to be noted that in writing to John Adam's wife, Jefferson did not rest his condemnation of the Sedition Act of 1798 on his belief in unrestrained utterance as to political matter. The First Amendment, he argued, reflected a limitation upon Federal power, leaving the right to enforce restrictions on speech to the States.4 54 The language of the First Amendment is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Not what words did Madison and Hamilton use, but what was it in their minds which they conveyed? Free speech is subject to prohibition of those abuses of expression which a civilized society may forbid. As in the case of every other provision of the Constitution that is not crystallized by the nature of its technical concepts, the fact that the First Amendment is not self-defining and self-enforcing neither impairs its usefulness nor compels its paralysis as a living instrument. 55 'The law is perfectly well settled', this Court said over fifty years ago, 'that the first 10 amendments to the Constitution, commonly known as the 'Bill of Rights,' were not intended to lay down any novel principles of government, but simply to embody certain 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. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.' Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 329, 41 L.Ed. 715. That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years. See, e.g., Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. 1115. Absolute rules would inevitably lead to absolute exceptions, and such exceptions would eventually corrode the rules.5 The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process, than by announcing dogmas too inflexible for the non-Euclidian problems to be solved. 56 But how are competing interests to be assessed? Since they are not subject to quantitative ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment?—who is to balance the relevant factors and ascertain which interest is in the circumstances to prevail? Full responsibility for the choice cannot be given to the courts. Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures. 57 Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress. The nature of the power to be exercised by this Court has been delineated in decisions not charged with the emotional appeal of situations such as that now before us. We are to set aside the judgment of those whose duty it is to legislate only if there is no reasonable basis for it. In re Sinking-Fund Cases, 99 U.S. 700, 718, 25 L.Ed. 496; Mugler v. State of Kansas, 123 U.S. 623, 660—661, 8 S.Ct. 273, 296, 297, 31 L.Ed. 205; United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234. We are to determine whether a statute is sufficiently definite to meet the constitutional requirements of due process, and whether it respects the safeguards against undue concentration of authority secured by separation of power. United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516. We must assure fairness of procedure, allowing full scope to governmental discretion but mindful of its impact on individuals in the context of the problem involved. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624. And, of course, the proceedings in a particular case before us must have the warrant of substantial proof. Beyond these powers we must not go; we must scrupulously observe the narrow limits of judicial authority even though self-restraint is alone set over us. Above all we must remember that this Court's power of judicial review is not 'an exercise of the powers of a super-Legislature'. Mr. Justice Brandeis and Mr. Justice Holmes, dissenting in Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 534, 44 S.Ct. 412, 421, 68 L.Ed. 813. 58 A generation ago this distribution of responsibility would not have been questioned. See Fox v. State of Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573; Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Bartels v. State of Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047; cf. New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184. But in recent decisions we have made explicit what has long been implicitly recognized. In reviewing statutes which restrict freedoms protected by the First Amendment, we have emphasized the close relation which those freedoms bear to maintenance of a free society. See Kovacs v. Cooper, 336 U.S. 77, 89, 95, 69 S.Ct. 448, 454, 458, 93 L.Ed. 513 (concurring). Some members of the Court—and at times a majority—have done more. They have suggested that our function in reviewing statutes restricting freedom of expression differs sharply from our normal duty in sitting in judgment on legislation. It has been said that such statutes 'must be justified by clear public interest, threatened not doubtedly or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice.' Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430. It has been suggested, with the casualness of a footnote, that such legislation is not presumptively valid, see United States v. Carolene Products Co., 304 U.S. 144, 152, note 4, 58 S.Ct. 778, 783, 82 L.Ed. 1234, and it has been weightily reiterated that freedom of speech has a 'preferred position' among constitutional safeguards. Kovacs v. Cooper, 336 U.S. 77, 88, 69 S.Ct. 448, 454, 93 L.Ed. 513. 59 The precise meaning intended to be conveyed by these phrases need not now be pursued. It is enough to note that they have recurred in the Court's opinions, and their cumulative force has, not without justification, engendered belief that there is a constitutional principle, expressed by those attractive but imprecise words, prohibiting restriction upon utterance unless it creates a situation of 'imminent' peril against which legislation may guard.6 It is on this body of the Court's pronouncements that the defendants' argument here is based. 60 In all fairness, the argument cannot be met by reinterpreting the Court's frequent use of 'clear' and 'present' to mean an entertainable 'probability.' In giving this meaning to the phrase 'clear and present danger,' the Court of Appeals was fastidiously confining the rhetoric of opinions to the exact scope of what was decided by them. We have greater responsibility for having given constitutional support, over repeated protests, to uncritical libertarian generalities. 61 Nor is the argument of the defendants adequately met by citing isolated cases. Adjustment of clash of interests which are at once subtle and fundamental is not likely to reveal entire consistency in a series of instances presenting the clash. It is not too difficult to find what one seeks in the language of decisions reporting the effort to reconcile free speech with the interests with which it conflicts. The case for the defendants requires that their conviction be tested against the entire body of our relevant decisions. Since the significance of every expression of thought derives from the circumstances evoking it, results reached rather than language employed give the vital meaning. See Cohens v. Com. of Virginia, 6 Wheat. 264, 442, 5 L.Ed. 257; Wambaugh, The Study of Cases 10. 62 There is an added reason why we must turn to the decisions. 'Great cases,' it is appropriate to remember, 'like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.' Mr. Justice Holmes, dissenting in Northern Securities Co. v. United States, 193 U.S. 197, 400—401, 24 S.Ct. 436, 468, 48 L.Ed. 679. 63 This is such a case. Unless we are to compromise judicial impartiality and subject these defendants to the risk of an ad hoc judgment influenced by the impregnating atmosphere of the times, the constitutionality of their conviction must be determined by principles established in cases decided in more tranquil periods. If those decisions are to be used as a guide and not as an argument, it is important to view them as a whole and to distrust the easy generalizations to which some of them lend themselves. II. 64 We have recognized and resolved conflicts between speech and competing interests in six different types of cases.7 65 1. The cases involving a conflict between the interest in allowing free expression of ideas in public places and the interest in protection of the public peace and the primary uses of streets and parks, were too recently considered to be rehearsed here. Niemotko v. State of Maryland, 340 U.S. 268, 273, 71 S.Ct. 325, 327. It suffices to recall that the result in each case was found to turn on the character of the interest with which the speech clashed, the method used to impose the restriction, and the nature and circumstances of the utterance prohibited. While the decisions recognized the importance of free speech and carefully scrutinized the justification for its regulation, they rejected the notion that vindication of the deep public interest in freedom of expression requires subordination of all conflicting values. 66 2. A critique of the cases testing restrictions on picketing is made more difficult by the inadequate recognition by the Court from the outset that the loyalties and responses evoked and exacted by picket lines differentiate this form of expression from other modes of communication. See Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. But the crux of the decision in the Thornhill case was that a State could not constitutionally punish peaceful picketing when neither the aim of the picketing nor the manner in which it was carried out conflicted with a substantial interest. In subsequent decisions we sustained restrictions designed to prevent recurrence of violence, Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, or reasonably to limit the area of industrial strife, Carpenters & Joiners Union v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143; cf. Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178. We held that a State's policy against restraints of trade justified it in prohibiting picketing which violated that policy, Giboney v. Empire Storage Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; we sustained restrictions designed to encourage self-employed persons, International Brotherhood of Teamsters Union v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995; and to prevent racial discrimination, Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985. The Fourteenth Amendment bars a State from prohibiting picketing when there is no fair justification for the breadth of the restriction imposed. American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Cafeteria Employees Union v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58. But it does not prevent a State from denying the means of communication that picketing affords in a fair balance between the interests of trade unionism and other interests of the community. 67 3. In three cases we have considered the scope and application of the power of the Government to exclude, deport, or denaturalize aliens because of their advocacy or their beliefs. In United States ex rel. Turner v. Williams, 194 U.S. 279, 24 S.Ct. 719, 48 L.Ed. 979, we held that the First Amendment did not disable Congress from directing the exclusion of an alien found in an administrative proceeding to be an anarchist. '(A)s long as human governments endure', we said, 'They cannot be denied the power of self-preservation, as that question is presented here.' 194 U.S. at page 294, 24 S.Ct. at page 724, 48 L.Ed. 979. In Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, and Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103, we did not consider the extent of the power of Congress. In each case, by a closely divided Court, we interpreted a statute authorizing denaturalization or deportation to impose on the Government the strictest standards of proof. 68 4. History regards 'freedom of the press' as indispensable for a free society and for its government. We have, therefore, invalidated discriminatory taxation against the press and prior restraints on publication of defamatory matter. Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357. 69 We have also given clear indication of the importance we attach to dissemination of ideas in reviewing the attempts of States to reconcile freedom of the press with protection of the integrity of the judicial process. In Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295, the Court agreed that the Fourteenth Amendment barred a State from adjudging in contempt of court the publisher of critical and inaccurate comment about portions of a litigation that for all practical purposes were no longer pending. We likewise agreed, in a minor phase of our decision in Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, that even when statements in the press relate to matters still pending before a court, convictions for their publication cannot be sustained if their utterance is too trivial to be deemed a substantial threat to the impartial administration of justice 70 The Court has, however, sharply divided on what constitutes a sufficient interference with the course of justice. In the first decision, Patterson v. State of Colorado, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879, the Court affirmed a judgment for contempt imposed by a State supreme court for publication of articles reflecting on the conduct of the court in cases still before it on motions for rehearing. In the Bridges case, however, a majority held that a State court could not protect itself from the implied threat of a powerful newspaper that failure of an elected judge to impose a severe sentence would be a 'serious mistake.' The same case also placed beyond a State's power to punish the publication of a telegram from the president of an important union who threatened a damaging strike in the event of an adverse decision. The majority in Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546, held that the Fourteenth Amendment protected 'strong,' 'intemperate,' 'unfair' criticism of the way an elected law judge was conducting a pending civil case. None of the cases establishes that the public interest in a free press must in all instances prevail over the public interest in dispassionate adjudication. But the Bridges and Craig decisions, if they survive, tend to require a showing that interference be so imminent and so demonstrable that the power theoretically possessed by the State is largely paralyzed. 71 5. Our decision in American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, recognized that the exercise of political rights protected by the First Amendment was necessarily discouraged by the requirement of the Taft-Hartley Act that officers of unions employing the services of the National Labor Relations Board sign affidavits that they are not Communists. But we held that the statute was not for this reason presumptively invalid. The problem, we said, was '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.' 339 U.S. at page 400, 70 S.Ct. at page 684, 94 L.Ed. 925. On balance, we decided that the legislative judgment was a permissible one.8 72 6. Statutes prohibiting speech because of its tendency to lead to crime present a conflict of interests which bears directly on the problem now before us. The first case in which we considered this conflict was Fox v. Washington, supra. The statute there challenged had been interpreted to prohibit publication of matter 'encouraging an actual breach of law.' We held that the Fourteenth Amendment did not prohibit application of the statute to an article which we concluded incited a breach of laws against indecent exposure. We said that the statute 'lays hold of encouragements that, apart from statute, if directed to a particular person's conduct, generally would make him who uttered them guilty of a misdemeanor if not an accomplice or a principal in the crime encouraged, and deals with the publication of them to a wider and less selected audience.' 236 U.S. at pages 277—278, 35 S.Ct. at page 384, 59 L.Ed. 573. To be sure, the Fox case preceded the explicit absorption of the substance of the First Amendment in the Fourteenth. But subsequent decisions extended the Fox principle to free-speech situations. They are so important to the problem before us that we must consider them in detail. 73 (a) The first important application of the principle was made in six cases arising under the Espionage Act of 1917. That Act prohibits conspiracies and attempts to 'obstruct the recruiting or enlistment service'. In each of the first three cases Mr. Justice Holmes wrote for a unanimous Court, affirming the convictions. The evidence in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470, showed that the defendant had conspired to circulate among men called for the draft 15,000 copies of a circular which asserted a 'right' to oppose the draft. The defendant in Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561, was shown to have conspired to publish in a newspaper twelve articles describing the sufferings of American troops and the futility of our war aims. The record was inadequate, and we said that it was therefore 'impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that the fact was known and relied upon by those who sent the paper out.' 249 U.S. at page 209, 39 S.Ct. at page 251, 63 L.Ed. 561. In Debs v. United States, 249 U.S. 211, 39 S.Ct. 251, 63 L.Ed. 566, the indictment charged that the defendant had delivered a public speech expounding socialism and praising Socialists who had been convicted of abetting violation of the draft laws. 74 The ground of decision in each case was the same. The First Amendment 'cannot have been, and obviously was not, intended to give immunity for every possible use of language. Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 41 L.Ed. 715.' Frohwerk v. United States, supra, 249 U.S. at page 206, 39 S.Ct. at page 250, 63 L.Ed. 561. '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. It is a question of proximity and degree.' Schenck v. United States, supra, 249 U.S. at page 52, 39 S.Ct. at page 249, 63 L.Ed. 470. When 'the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service,' and 'the defendant had the specific intent to do so in his mind', conviction in wartime is not prohibited by the Constitution. Debs v. United States, supra, 249 U.S. at page 216, 39 S.Ct. at page 254, 63 L.Ed. 566. 75 In the three succeeding cases Holmes and Brandeis, JJ., dissented from judgments of the Court affirming convictions. The indictment in Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173, was laid under an amendment to the Espionage Act which prohibited conspiracies to advocate curtailment of production of material necessary to prosecution of the war, with the intent thereby to hinder the United States in the prosecution of the war. It appeared that the defendants were anarchists who had printed circulars and distributed them in New York City. The leaflets repeated standard Marxist slogans, condemned American intervention in Russia, and called for a general strike in protest. In Schaefer v. United States, 251 U.S. 466, 40 S.Ct. 259, 64 L.Ed. 360, the editors of a German language newspaper in Philadelphia were charged with obstructing the recruiting service and with wilfully publishing false reports with the intent to promote the success of the enemies of the United States. The evidence showed publication of articles which accused American troops of weakness and mendacity and in one instance misquoted or mistranslated two words of a Senator's speech. The indictment in Pierce v. United States, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542, charged that the defendants had attempted to cause insubordination in the armed forces and had conveyed false reports with intent to interfere with military operations. Conviction was based on circulation of a pamphlet which belittled Allied war aims and criticized conscription in strong terms. 76 In each case both the majority and the dissenting opinions relied on Schenck v. United States. The Court divided on its view of the evidence. The majority held that the jury could infer the required intent and the probable effect of the articles from their content. Holmes and Brandeis, JJ., thought that only 'expressions of opinion and exhortations,' 250 U.S. at 631, 40 S.Ct. at page 22, 63 L.Ed. 1173, were involved, that they were 'puny anonymities,' 250 U.S. at page 629, 40 S.Ct. at page 21, 'impotent to produce the evil against which the statute aimed', 251 U.S. 493, 40 S.Ct. 268, 64 L.Ed. 360, and that from them the specific intent required by the statute could not reasonably be inferred. The Court agreed that an incitement to disobey the draft statute could constitutionally be punished. It disagreed over the proof required to show such an incitement. 77 (b) In the eyes of a majority of the Court, Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, presented a very different problem. There the defendant had been convicted under a New York statute nearly identical with the Smith Act now before us. The evidence showed that the defendant was an official of the Left Wing Section of the Socialist Party, and that he was responsible for publication of a Left Wing Manifesto. This document repudiated 'moderate Socialism,' and urged the necessity of a militant 'revolutionary Socialism,' based on class struggle and revolutionary mass action. No evidence of the effect of the Manifesto was introduced; but the jury were instructed that they could not convict unless they found that the document advocated employing unlawful acts for the purpose of overthrowing organized government. 78 The conviction was affirmed. The question, the Court held, was entirely different from that involved in Schenck v. United States, where the statute prohibited acts without reference to language. Here, where 'the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil, is not open to consideration.' 268 U.S. at page 670, 45 S.Ct. at page 631, 69 L.Ed. 1138. It is sufficient that the defendant's conduct falls within the statute, and that the statute is a reasonable exercise of legislative judgment. 79 This principle was also applied in Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095, to sustain a conviction under a State criminal syndicalism statute. That statute made it a felony to assist in organizing a group assembled to advocate the commission of crime, sabotage, or unlawful acts of violence as a means of effecting political or industrial change. The defendant was found to have assisted in organizing the Communist Labor Party of California, an organization found to have the specified character. It was held that the legislature was not unreasonable in believing organization of such a party 'involves such danger to the public peace and the security of the State, that these acts should be penalized in the exercise of its police power.' 274 U.S. at page 371, 47 S.Ct. at page 647, 71 L.Ed. 1095. 80 In neither of these cases did Mr. Justice Holmes and Mr. Justice Brandeis accept the reasoning of the Court. "The question," they said, quoting from Schenck v. United States, "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 (the State) has a right to prevent." 268 U.S. at pages 672 673, 45 S.Ct. at page 632, 69 L.Ed. 1138. Since the Manifesto circulated by Gitlow 'had no chance of starting a present conflagration', 268 U.S. at page 673, 45 S.Ct. at page 632, they dissented from the affirmance of his conviction. In Whitney v. People of State of California, they concurred in the result reached by the Court, but only because the record contained some evidence that organization of the Communist Labor Party might further a conspiracy to commit immediate serious crimes, and the credibility of the evidence was not put in issue by the defendant.9 81 (c) Subsequent decisions have added little to the principles established in these two groups of cases. In the only case arising under the Espionage Act decided by this Court during the last war, the substantiality of the evidence was the crucial issue. The defendant in Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534, was an educated man and a citizen, not actively affiliated with any political group. In 1942 he wrote three articles condemning our wartime allies and urging that the war be converted into a racial conflict. He mailed the tracts to 600 people, including high-ranking military officers. According to his testimony his intention was to 'create sentiment against war amongst the white races'. (322 U.S. 680, 64 S.Ct. 1236.) The majority of this Court held that a jury could not reasonably infer from these facts that the defendant had acted with a specific intent to cause insubordination or disloyalty in the armed forces. 82 Of greater importance is the fact that the issue of law which divided the Court in the Gitlow and Whitney cases has not again been clearly raised, although in four additional instances we have reviewed convictions under comparable statutes. Fiske v. State of Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108, involved a criminal syndicalism statute similar to that before us in Whitney v. People of State of California. We reversed a conviction based on evidence that the defendant exhibited an innocuous preamble to the constitution of the Industrial Workers of the World in soliciting members for that organization. In Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066, the defendant had solicited members for the Communist Party, but there was no proof that he had urged or even approved those of the Party's aims which were unlawful. We reversed a conviction obtained under a statute prohibiting an attempt to incite to insurrection by violence, on the ground that the Fourteenth Amendment prohibited conviction where on the evidence a jury could not reasonably infer that the defendant had violated the statute the State sought to apply.10 83 The other two decisions go no further than to hold that the statute as construed by the State courts exceeded the bounds of a legislative judgment founded in reason. The statute presented in De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278, had been construed to apply to anyone who merely assisted in the conduct of a meeting held under the auspices of the Communist Party. In Taylor v. State of Mississippi, 319 U.S. 583, 63 S.Ct. 1200. 1201, 87 L.Ed. 1600, the statute prohibited dissemination of printed matter 'designed and calculated to encourage violence, sabotage, or disloyalty to the government of the United States, or the state of Mississippi'. We reversed a conviction for what we concluded was mere criticism and prophesy, without indicating whether we thought the statute could in any circumstances validly be applied. What the defendants communicated, we said, 'is not claimed or shown to have been done with an evil or sinister purpose, to have advocated or incited subversive action against the nation or state, or to have threatened any clear and present danger to our institutions or our Government.' 319 U.S. at pages 589—590, 63 S.Ct. at pages 1201, 1204. 84 I must leave to others the ungrateful task of trying to reconcile all these decisions. In some instances we have too readily permitted juries to infer deception from error, or intention from argumentative or critical statements. Abrams v. United States, supra; Schaefer v. United States, supra; Pierce v. United States, supra; Gilbert v. State of Minnesota, 254 U.S. 325, 41 S.Ct. 125, 65 L.Ed. 287. In other instances we weighted the interest in free speech so heavily that we permitted essential conflicting values to be destroyed. Bridges v. State of California, supra; Craig v. Harney, supra. Viewed as a whole, however, the decisions express an attitude toward the judicial function and a standard of values which for me are decisive of the case before us. 85 First.—Free-speech cases are not an exception to the principle that we are not legislators, that direct policy-making is not our province. How best to reconcile competing interests is the business of legislatures, and the balance they strike is a judgment not to be displaced by ours, but to be respected unless outside the pale of fair judgment. 86 On occasion we have strained to interpret legislation in order to limit its effect on interests protected by the First Amendment. Schneiderman v. United States, supra; Bridges v. Wixon, supra. In some instances we have denied to States the deference to which I think they are entitled. Bridges v. State of California, supra; Craig v. Harney, supra. Once in this recent course of decisions the Court refused to permit a jury to draw inferences which seemed to me to be obviously reasonable. Hartzel v. United States, supra. 87 But in no case has a majority of this Court held that a legislative judgment, even as to freedom of utterance, may be overturned merely because the Court would have made a different choice between the competing interests had the initial legislative judgment been for it to make. In the cases in which the opinions go farthest towards indicating a total rejection of respect for legislative determinations, the interests between which choice was actually made were such that decision might well have been expressed in the familiar terms of want of reason in the legislative judgment. In Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, for example, decision could not unreasonably have been placed on the ground that no substantial interest justified a State in requiring an out-of-State labor leader to register before speaking in advocacy of the cause of trade unionism. In Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313, it was broadly held that a municipality was not justified in prohibiting knocking on doors and ringing doorbells for the purpose of delivering handbills. But since the good faith and reasonableness of the regulation were placed in doubt by the fact that the city did not think it necessary also to prohibit door-to-door commercial sales, decision could be sustained on narrower ground. And compare Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920. 88 In other cases, moreover, we have given clear indication that even when free speech is involved we attach great significance to the determination of the legislature. Gitlow v. People of State of New York, supra; Whitney v. People of State of California, supra; American Communications Ass'n v. Douds, supra; cf. Bridges v. State of California, 314 U.S. at page 260, 62 S.Ct. at page 192, 86 L.Ed. 192. And see Hughes v. Superior Court, supra; International Brotherhood of Teamsters Union v. Hanke, supra. 89 In Gitlow v. People of State of New York, we put our respect for the legislative judgment in terms which, if they were accepted here, would make decision easy. For that case held that, when the legislature has determined that advocacy of forceful overthrow should be forbidden, a conviction may be sustained without a finding that in the particular case the advocacy had a close relation to a serious attempt at overthrow. We held that it was enough that the statute be a reasonable exercise of the legislative judgment, and that the defendant's conduct fall within the statute. 90 One of the judges below rested his affirmance on the Gitlow decision, and the defendants do not attempt to distinguish the case. They place their argument squarely on the ground that the case has been overruled by subsequent decisions. It has not been explicitly overruled. But it would be disingenuous to deny that the dissent in Gitlow has been treated with the respect usually accorded to a decision. 91 The result of the Gitlow decision was to send a left-wing Socialist to jail for publishing a Manifesto expressing Marxist exhortations. It requires excessive tolerance of the legislative judgment to suppose that the Gitlow publication in the circumstances could justify serious concern. 92 In contrast, there is ample justification for a legislative judgment that the conspiracy now before us is a substantial threat to national order and security. If the Smith Act is justified at all, it is justified precisely because it may serve to prohibit the type of conspiracy for which these defendants were convicted. The court below properly held that as a matter of separability the Smith Act may be limited to those situations to which it can constitutionally be applied. See 183 F.2d at pages 214—215. Our decision today certainly does not mean that the Smith Act can constitutionally be applied to facts like those in Gitlow v. People of State of New York. While reliance may properly be placed on the attitude of judicial self-restraint which the Gitlow decision reflects, it is not necessary to depend on the facts or the full extent of the theory of that case in order to find that the judgment of Congress, as applied to the facts of the case now before us, is not in conflict with the First Amendment. 93 Second.—A survey of the relevant decisions indicates that the results which we have reached are on the whole those that would ensue from careful weighing of conflicting interests. The complex issues presented by regulation of speech in public places, by picketing, and by legislation prohibiting advocacy of crime have been resolved by scrutiny of many factors besides the imminence and gravity of the evil threatened. The matter has been well summarized by a reflective student of the Court's work. 'The truth is that the clear-and-present-danger test is an oversimplified judgment unless it takes account also of a number of other factors: the relative seriousness of the danger in comparison with the value of the occasion for speech or political activity; the availability of more moderate controls than those which the state has imposed; and perhaps the specific intent with which the speech or activity is launched. No matter how rapidly we utter the phrase 'clear and present danger,' or how closely we hyphenate the words, they are not a substitute for the weighing of values. They tend to convey a delusion of certitude when what is most certain is the complexity of the strands in the web of freedoms which the judge must disentangle.' Freund, On Understanding the Supreme Court 27—28. 94 It is a familiar experience in the law that new situations do not fit neatly into legal conceptions that arose under different circumstances to satisfy different needs. So it was when the injunction was tortured into an instrument of oppression against labor in industrial conflicts. So it is with the attempt to use the direction of thought lying behind the criterion of 'clear and present danger' wholly out of the context in which it originated, and to make of it an absolute dogma and definitive measuring rod for the power of Congress to deal with assaults against security through devices other than overt physical attempts. 95 Bearing in mind that Mr. Justice Holmes regarded questions under the First Amendment as questions of 'proximity and degree', Schenck v. United States, 249 U.S. at page 52, 39 S.Ct. at page 249, 63 L.Ed. 470, it would be a distortion, indeed a mockery, of his reasoning to compare the 'puny anonymities,' 250 U.S. at page 629, 40 S.Ct. at page 17, 63 L.Ed. 1173, to which he was addressing himself in the Abrams case in 1919 or the publication that was 'futile and too remote from possible consequences', 268 U.S. at 673, 45 S.Ct. at page 632, 69 L.Ed. 1138, in the Gitlow case in 1925 with the setting of events in this case in 1950. 96 'It does an ill-service to the author of the most quoted judicial phrases regarding freedom of speech, to make him the victim of a tendency which he fought all his life, whereby phrases are made to do service for critical analysis by being turned into dogma. 'It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis.' Holmes, J., dissenting, in Hyde v. United States, 225 U.S. 347, 384, at page 391, 32 S.Ct. 793, at page 811, 56 L.Ed. 1114.' The phrase 'clear and present danger', in its origin, 'served to indicate the importance of freedom of speech to a free society but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution.' Pennekamp v. State of Florida, 328 U.S. 331, 350, 352—353, 66 S.Ct. 1029, 1040, 90 L.Ed. 1295 (concurring). It were far better that the phrase be abandoned than that it be sounded once more to hide from the believers in an absolute right of free speech the plain fact that the interest in speech, profoundly important as it is, is no more conclusive in judicial review than other attributes of democracy or than a determination of the people's representatives that a measure is necessary to assure the safety of government itself. 97 Third.—Not every type of speech occupies the same position on the scale of values. There is no substantial public interest in permitting certain kinds of utterances: 'the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.' Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031. We have frequently indicated that the interest in protecting speech depends on the circumstances of the occasion. See cases collected in Niemotko v. State of Maryland, 340 U.S. at pages 275—283, 71 S.Ct. at pages 329, 333. It is pertinent to the decision before us to consider where on the scale of values we have in the past placed the type of speech now claiming constitutional immunity. 98 The defendants have been convicted of conspiring to organize a party of persons who advocate the overthrow of the Government by force and violence. The jury has found that the object of the conspiracy is advocacy as 'a rule or principle of action,' 'by language reasonably and ordinarily calculated to incite persons to such action,' and with the intent to cause the overthrow 'as speedily as circumstances would permit.' 99 On any scale of values which we have hitherto recognized, speech of this sort ranks low. 100 Throughout our decisions there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken. The distinction has its root in the conception of the common law, supported by principles of morality, that a person who procures another to do an act is responsible for that act as though he had done it himself. This principle was extended in Fox v. State of Washington, supra, to words directed to the public generally which would constitute an incitement were they directed to an individual. It was adapted in Schenck v. United States, supra, into a rule of evidence designed to restrict application of the Espionage Act. It was relied on by the Court in Gitlow v. People of State of New York, supra. The distinction has been repeated in many of the decisions in which we have upheld the claims of speech. We frequently have distinguished protected forms of expression from statements which 'incite to violence and crime and threaten the overthrow of organized government by unlawful means.' Stromberg v. People of State of California, 283 U.S. at 369, 51 S.Ct. at page 535, 75 L.Ed. 1117. See also Near v. State of Minnesota, 283 U.S. at 716, 51 S.Ct. at page 631, 75 L.Ed. 1357; De Jonge v. State of Oregon, 299 U.S. at 365, 57 S.Ct. at page 260, 81 L.Ed. 278; Cantwell v. State of Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213; Taylor v. State of Mississippi, 319 U.S. at 589, 63 S.Ct. at 1203, 87 L.Ed. 1600. 101 It is true that there is no divining rod by which we may locate 'advocacy.' Exposition of ideas readily merges into advocacy. The same Justice who gave currency to application of the incitement doctrine in this field dissented four times from what he thought was its misapplication. As he said in the Gitlow dissent, 'Every idea is an incitement.' 268 U.S. at 673, 45 S.Ct. at page 632, 69 L.Ed. 1138. Even though advocacy of overthrow deserves little protection, we should hesitate to prohibit it if we thereby inhibit the interchange of rational ideas so essential to representative government and free society. 102 But there is underlying validity in the distinction between advocacy and the interchange of ideas, and we do not discard a useful tool because it may be misused. That such a distinction could be used unreasonably by those in power against hostile or unorthodox views does not negate the fact that it may be used reasonably against an organization wielding the power of the centrally controlled international Communist movement. The object of the conspiracy before us is so clear that the chance of error in saying that the defendants conspired to advocate rather than to express ideas is slight. Mr. Justice DOUGLAS quite properly points out that the conspiracy before us is not a conspiracy to overthrow the Government. But it would be equally wrong to treat it as a seminar in political theory. III. 103 These general considerations underlie decision of the case before us. 104 On the one hand is the interest in security. The Communist Party was not designed by these defendants as an ordinary political party. For the circumstances of its organization, its aims and methods, and the relation of the defendants to its organization and aims we are concluded by the jury's verdict. The jury found that the Party rejects the basic premise of our political system—that change is to be brought about by nonviolent constitutional process. The jury found that the Party advocates the theory that there is a duty and necessity to overthrow the Government by force and violence. It found that the Party entertains and promotes this view, not as a prophetic insight or as a bit of unworldly speculation, but as a program for winning adherents and as a policy to be translated into action. 105 In finding that the defendants violated the statute, we may not treat as established fact that the Communist Party in this country is of significant size, well-organized, well-disciplined, conditioned to embark on unlawful activity when given the command. But in determining whether application of the statute to the defendants is within the constitutional powers of Congress, we are not limited to the facts found by the jury. We must view such a question in the light of whatever is relevant to a legislative judgment. We may take judicial notice that the Communist doctrines which these defendants have conspired to advocate are in the ascendency in powerful nations who cannot be acquitted of unfriendliness to the institutions of this country. We may take account of evidence brought forward at this trial and elsewhere, must of which has long been common knowledge. In sum, it would amply justify a legislature in concluding that recruitment of additional members for the Party would create a substantial danger to national security. 106 In 1947, it has been reliably reported, at least 60,000 members were enrolled in the Party.11 Evidence was introduced in this case that the membership was organized in small units, linked by an intricate chain of command, and protected by elaborate precautions designed to prevent disclosure of individual identity. There are no reliable data tracing acts of sabotage or espionage directly to these defendants. But a Canadian Royal Commission appointed in 1946 to investigate espionage reported that it was 'overwhelmingly established' that 'the Communist movement was the principal base within which the espionage network was recruited.'12 The most notorious spy in recent history was led into the service of the Soviet Union through Communist indoctrination.13 Evidence supports the conclusion that members of the Party seek and occupy positions of importance in political and labor organizations.14 Congress was not barred by the Constitution from believing that indifference to such experience would be an exercise not of freedom but of irresponsibility. 107 On the other hand is the interest in free speech. The right to exert all governmental powers in aid of maintaining our institutions and resisting their physical overthrow does not include intolerance of opinions and speech that cannot do harm although opposed and perhaps alien to dominant, traditional opinion. The treatment of its minorities, especially their legal position, is among the most searching tests of the level of civilization attained by a society. It is better for those who have almost unlimited power of government in their hands to err on the side of freedom. We have enjoyed so much freedom for so long that we are perhaps in danger of forgetting how much blood it cost to establish the Bill of Rights. 108 Of course no government can recognize a 'right' of revolution, or a 'right' to incite revolution if the incitement has no other purpose or effect. But speech is seldom restricted to a single purpose, and its effects may be manifold. A public interest is not wanting in granting freedom to speak their minds even to those who advocate the overthrow of the Government by force. For, as the evidence in this case abundantly illustrates, coupled with such advocacy is criticism of defects in our society. Criticism is the spur to reform; and Burke's admonition that a healthy society must reform in order to conserve has not lost its force. Astute observers have remarked that one of the characteristics of the American Republic is indifference to fundamental criticism. Bryce, The American Commonwealth, c. 84. It is a commonplace that there may be a grain of truth in the most uncouth doctrine, however false and repellent the balance may be. Suppressing advocates of overthrow inevitably will also silence critics who do not advocate overthrow but fear that their criticism may be so construed. No matter how clear we may be that the defendants now before us are preparing to overthrow our Government at the propitious moment, it is self-delusion to think that we can punish them for their advocacy without adding to the risks run by loyal citizens who honestly believe in some of the reforms these defendants advance. It is a sobering fact that in sustaining the convictions before us we can hardly escape restriction on the interchange of ideas. 109 We must not overlook the value of that interchange. Freedom of expression is the well-spring of our civilization—the civilization we seek to maintain and further by recognizing the right of Congress to put some limitation upon expression. Such are the paradoxes of life. For social development of trial and error, the fullest possible opportunity for the free play of the human mind is an indispensable prerequisite. The history of civilization is in considerable measure the displacement of error which once held sway as official truth by beliefs which in turn have yielded to other truths. Therefore the liberty of man to search for truth ought not to be fettered, no matter what orthodoxies he may challenge. Liberty of thought soon shrivels without freedom of expression. Nor can truth be pursued in an atmosphere hostile to the endeavor or under dangers which are hazarded only by heroes. 110 'The interest, which (the First Amendment) guards, and which gives it its importance, presupposes that there are no orthodoxies religious, political, economic, or scientific—which are immune from debate and dispute. Back of that is the assumption—itself an orthodoxy, and the one permissible exception—that truth will be most likely to emerge, if no limitations are imposed upon utterances that can with any plausibility be regarded as efforts to present grounds for accepting or rejecting propositions whose truth the utterer asserts, or denies.' International Brotherhood of Electrical Workers v. National Labor Relations Board, 2 Cir., 181 F.2d 34, 40. In the last analysis it is on the validity of this faith that our national security is staked. 111 It is not for us to decide how we would adjust the clash of interests which this case presents were the primary responsibility for reconciling it ours. Congress has determined that the danger created by advocacy of overthrow justifies the ensuing restriction on freedom of speech. The determination was made after due deliberation, and the seriousness of the congressional purpose is attested by the volume of legislation passed to effectuate the same ends.15 112 Can we then say that the judgment Congress exercised was denied it by the Constitution? Can we establish a constitutional doctrine which forbids the elected representatives of the people to make this choice? Can we hold that the First Amendment deprives Congress of what it deemed necessary for the Government's protection? 113 To make validity of legislation depend on judicial reading of events still in the womb of time—a forecast, that is, of the outcome of forces at best appreciated only with knowledge of the topmost secrets of nations—is to charge the judiciary with duties beyond its equipment. We do not expect courts to pronounce historic verdicts on bygone events. Even historians have conflicting views to this day on the origins and conduct of the French Revolution, or, for that matter, varying interpretations of 'the glorious Revolution' of 1688. It is as absurd to be confident that we can measure the present clash of forces and their outcome as to ask us to read history still enveloped in clouds of controversy. 114 In the light of their experience, the Framers of the Constitution chose to keep the judiciary dissociated from direct participation in the legislative process. In asserting the power to pass on the constitutionality of legislation, Marshall and his Court expressed the purposes of the Founders. See Charles A. Beard, the Supreme Court and the Constitution. But the extent to which the exercise of this power would interpenetrate matters of policy could hardly have been foreseen by the most prescient. The distinction which the Founders drew between the Court's duty to pass on the power of Congress and its complementary duty not to enter directly the domain of policy is fundamental. But in its actual operation it is rather subtle, certainly to the common understanding. Our duty to abstain from confounding policy with constitutionality demands perceptive humility as well as self-restraint in not declaring unconstitutional what in a judge's private judgment is deemed unwise and even dangerous. 115 Even when moving strictly within the limits of constitutional adjudication, judges are concerned with issues that may be said to involve vital finalities. The too easy transition from disapproval of what is undesirable to condemnation as unconstitutional, has led some of the wisest judges to question the wisdom of our scheme in lodging such authority in courts. But it is relevant to remind that in sustaining the power of Congress in a case like this nothing irrevocable is done. The democratic process at all events is not impaired or restricted. Power and responsibility remain with the people and immediately with their representation. All the Court says is that Congress was not forbidden by the Constitution to pass this enactment and that a prosecution under it may be brought against a conspiracy such as the one before us. IV. 116 The wisdom of the assumptions underlying the legislation and prosecution is another matter. In finding that Congress has acted within its power, a judge does not remotely imply that he favors the implications that lie beneath the legal issues. Considerations there enter which go beyond the criteria that are binding upon judges within the narrow confines of their legitimate authority. The legislation we are here considering is but a truncated aspect of a deeper issue. For me it has been most illuminatingly expressed by one in whom responsibility and experience have fructified native insight, the Director-General of the British Broadcasting Corporation: 117 'We have to face up to the fact that there are powerful forces in the world today misusing the privileges of liberty in order to destroy her. The question must be asked, however, whether suppression of information or opinion is the true defense. We may have come a long way from Mill's famous dictum that: 'If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind,' but Mill's reminders from history as to what has happened when suppression was most virulently exercised ought to warn us that no debate is ever permanently won by shutting one's ears or by even the most Draconian policy of silencing opponents. The debate must be won. And it must be won with full information. Where there are lies, they must be shown for what they are. Where there are errors, they must be refuted. It would be a major defeat if the enemies of democracy forced us to abandon our faith in the power of informed discussion and so brought us down to their own level. Mankind is so constituted, moreover, that if, where expression and discussion are concerned, the enemies of liberty are met with a denial of liberty, many men of goodwill will come to suspect there is something in the proscribed doctrine after all. Erroneous doctrines thrive on being expunged. They die if exposed.' Sir William Haley, What Standards for Broadcasting? Measure, Vol. I, No. 3, Summer 1950, pp. 211—212. 118 In the context of this deeper struggle, another voice has indicated the limitations of what we decide today. No one is better equipped than George F. Kennan to speak on the meaning of the menace of Communism and the spirit in which we should meet it. 119 'If our handling of the problem of Communist influence in our midst is not carefully moderated—if we permit it, that is, to become an emotional preoccupation and to blind us to the more important positive tasks before us—we can do a damage to our national purpose beyond comparison greater than anything that threatens us today from the Communist side. The American Communist party is today, by and large, an external danger. It represents a tiny minority in our country; it has no real contact with the feelings of the mass of our people; and its position as the agency of a hostile foreign power is clearly recognized by the overwhelming mass of our citizens. 120 'But the subjective emotional stresses and temptations to which we are exposed in our attempt to deal with this domestic problem are not an external danger: they represent a danger within ourselves—a danger that something may occur in our own minds and souls which will make us no longer like the persons by whose efforts this republic was founded and held together, but rather like the representatives of that very power we are trying to combat: intolerant, secretive, suspicious, cruel, and terrified of internal dissension because we have lost our own belief in ourselves and in the power of our ideals. The worst thing that our Communists could do to us, and the thing we have most to fear from their activities, is that we should become like them. 121 'That our country is beset with external dangers I readily concede. But these dangers, at their worst, are ones of physical destruction, of the disruption of our world security, of expense and inconvenience and sacrifice. These are serious, and sometimes terrible things, but they are all things that we can take and still remain Americans. 122 'The internal danger is of a different order. America is not just territory and people. There is lots of territory elsewhere, and there are lots of people; but it does not add up to America. America is something in our minds and our habits of outlook which causes us to believe in certain things and to behave in certain ways, and by which, in its totality, we hold ourselves distinguished from others. If that once goes there will be no America to defend. And that can go too easily if we yield to the primitive human instinct to escape from our frustrations into the realms of mass emotion and hatred and to find scapegoats for our difficulties in individual fellow-citizens who are, or have at one time been, disoriented or confused.' George F. Kennan, Where do You Stand on Communism? New York Times Magazine, May 27, 1951, pp. 7, 53, 55. 123 Civil liberties draw at best only limited strength from legal guaranties. Preoccupation by our people with the constitutionality, instead of with the wisdom, of legislation or of executive action is preoccupation with a false value. Even those who would most freely use the judicial brake on the democratic process by invalidating legislation that goes deeply against their grain, acknowledge, at least by paying lip service, that constitutionality does not exact a sense of proportion or the sanity of humor or an absence of fear. Focusing attention on constitutionality tends to make constitutionality synonymous with wisdom. When legislation touches freedom of thought and freedom of speech, such a tendency is a formidable enemy of the free spirit. Much that should be rejected as illiberal, because repressive and envenoming, may well be not unconstitutional. The ultimate reliance for the deepest needs of civilization must be found outside their vindication in courts of law; apart from all else, judges, howsoever they may conscientiously seek to discipline themselves against it, unconsciously are too apt to be moved by the deep under-currents of public feeling. A persistent, positive translation of the liberating faith into the feelings and thoughts and actions of men and women is the real protection against attempts to strait-jacket the human mind. Such temptations will have their way, if fear and hatred are not exorcized. The mark of a truly civilized man is confidence in the strength and security derived from the inquiring mind. We may be grateful for such honest comforts as it supports, but we must be unafraid of its incertitudes. Without open minds there can be no open society. And if society be not open the spirit of man is mutilated and becomes enslaved. 124 Appendix to Opinion of Mr. Justice Frankfurter. 125 Opinions responsible for the view that speech could not constitutionally be restricted unless there would result from it an imminent—i.e., close at hand—substantive evil. 126 1. Thornhill v. State of Alabama, 310 U.S. 88, 104—105, 60 S.Ct. 736, 745, 84 L.Ed. 1093 (State statute prohibiting picketing held invalid): '* * * Every expression of opinion on matters that are important has the potentiality of inducing action in the interests of one rather than another group in society. But the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests. Abridgment of the liberty of such discussion can be justified only where the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion. * * * 127 '* * * (N)o clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter.' 128 2. Bridges v. State of California, 314 U.S. 252, 262—263, 62 S.Ct. 190, 193, 194, 86 L.Ed. 192 (convictions for contempt of court reversed): '* * * (T)he 'clear and present danger' language of the Schenck case has afforded practical guidance in a great variety of cases in which the scope of constitutional protections of freedom of expression was in issue. It has been utilized by either a majority or minority of this Court in passing upon the constitutionality of convictions under espionage acts, Schenck v. United States, supra (249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470); Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173; under a criminal syndicalism act, Whitney v. (People of State of) California, supra (274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095); under an 'anti-insurrection' act, Herndon v. Lowry, supra (301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066); and for breach of the peace at common law, Cantwell v. (State of) Connecticut, supra (310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213). And very recently we have also suggested that 'clear and present danger's is an appropriate guide in determining the constitutionality of restrictions upon expression where the substantive evil sought to be prevented by the restriction is 'destruction of life or property, or invasion of the right of privacy.' Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 745, 84 L.Ed. 1093. 129 'What finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law 'abridging the freedom of speech, or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.' 130 3. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (flag-salute requirement for school children held invalid): 'In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. It is important to note that while it is the Fourteenth Amendment which bears directly upon the State it is the more specific limiting principles of the First Amendment that finally govern this case.' 131 4. Thomas v. Collins, 323 U.S. 516, 529—530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (State statute requiring registration of labor organizers held invalid as applied): 'The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. Cf. Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Prince v. (Com. of) Massachusetts, 321 U.S. 158, 64 S.Ct. 438 (88 L.Ed. 645). That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice. Compare United States v. Carolene Products Co., 304 U.S. 144, 152, 153, 58 S.Ct. 778, 783, 784, 82 L.Ed. 1234. 132 'For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasions for permissible limitation.' 5. Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (conviction for contempt of court reversed): 'The fires which (the language) kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.' 133 6. Giboney v. Empire Storage Co., 336 U.S. 490, 503, 69 S.Ct. 684, 691, 93 L.Ed. 834 (injunction against picketing upheld): '* * * There was clear danger, imminent and immediate, that unless restrained, appellants would succeed in making (the State's policy against restraints of trade) a dead letter insofar as purchases by nonunion men were concerned. * * *' 134 7. Terminiello v. City of Chicago, 337 U.S. 1, 4—5, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (conviction for disorderly conduct reversed): 'Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. (State of) New Hampshire, supra, 315 U.S. (568) at pages 571—572, 62 S.Ct. (766, 768) at page 769, 86 L.Ed. 1031, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. (State of) California, 314 U.S. 252, 262, 62 S.Ct. 190, 193, 86 L.Ed. 192; Craig v. Harney, 331 U.S. 367, 373, 67 S.Ct. 1249, 1253, 91 L.Ed. 1546. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.' 135 8. American Communications Ass'n v. Douds, 339 U.S. 382, 396, 412, 70 S.Ct. 674, 683, 691, 94 L.Ed. 925 ('Non-Communist affidavit' provision of Taft-Hartley Act upheld): '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.' And again, '(The First) 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.' 136 Mr. Justice JACKSON, concurring. 137 This prosecution is the latest of neverending, because never successful, quests for some legal formula that will secure an existing order against revolutionary radicalism. It requires us to reappraise, in the light of our own times and conditions, constitutional doctrines devised under other circumstances to strike a balance between authority and liberty. 138 Activity here charged to be criminal is conspiracy—that defendants conspired to teach and advocate, and to organize the Communist Party to teach and advocate, overthrow and destruction of the Government by force and violence. There is no charge of actual violence or attempt at overthrow.1 139 The principal reliance of the defense in this Court is that the conviction cannot stand under the Constitution because the conspiracy of these defendants presents no 'clear and present danger' of imminent or foreseeable overthrow. I. 140 The statute before us repeats a pattern, originally devised to combat the wave of anarchistic terrorism that plagued this country about the turn of the century,2 which lags at least two generations behind Communist Party techniques. 141 Anarchism taught a philosophy of extreme individualism and hostility to government and property. Its avowed aim was a more just order, to be achieved by violent destruction of all government.3 Anarchism's sporadic and uncoordinated acts of terror were not integrated with an effective revolutionary machine, but the Chicago Haymarket riots of 1886,4 attempted murder of the industrialist Frick, attacks on state officials, and assassination of President McKinley in 1901, were fruits of its preaching. 142 However, extreme individualism was not conducive to cohesive and disciplined organization. Anarchism fell into disfavor among incendiary radicals, many of whom shifted their allegiance to the rising Communist Party. Meanwhile, in Europe anarchism had been displaced by Bolshevism as the doctrine and strategy of social and political upheaval. Led by intellectuals hardened by revolutionary experience, it was a more sophisticated, dynamic and realistic movement. Establishing a base in the Soviet Union, it founded an aggressive international Communist apparatus which has modeled and directed a revolutionary movement able only to harass our own country. But it has seized control of a dozen other countries. 143 Communism, the antithesis of anarchism,5 appears today as a closed system of thought representing Stalin's version of Lenin's version of Marxism. As an ideology, it is not one of spontaneous protest arising from American working-class experience. It is a complicated system of assumptions, based on European history and conditions, shrouded in an obscure and ambiguous vocabulary, which allures our ultrasophisticated intelligentsia more than our hard-headed working people. From time to time it champions all manner of causes and grievances and makes alliances that may add to its foothold in government or embarrass the authorities. 144 The Communist Party, nevertheless, does not seek its strength primarily in numbers. Its aim is a relatively small party whose strength is in selected, dedicated, indoctrinated, and rigidly disciplined members. From established policy it tolerates no deviation and no debate. It seeks members that are, or may be, secreted in strategic posts in transportation, communications, industry, government, and especially in labor unions where it can compel employers to accept and retain its members.6 It also seeks to infiltrate and control organizations of professional and other groups. Through these placements in positions of power it seeks a leverage over society that will make up in power of coercion what it lacks in power of persuasion. 145 The Communists have no scruples against sabotage, terrorism, assassination, or mob disorder; but violence is not with them, as with the anarchists, an end in itself. The Communist Party advocates force only when prudent and profitable. Their strategy of stealth precludes premature or uncoordinated outbursts of violence, except, of course, when the blame will be placed on shoulders other than their own. They resort to violence as to truth, not as a principle but as an expedient. Force or violence, as they would resort to it, may never be necessary, because infiltration and deception may be enough. 146 Force would be utilized by the Communist Party not to destroy government but for its capture. The Communist recognizes that an established government in control of modern technology cannot be overthrown by force until it is about ready to fall of its own weight. Concerted uprising, therefore, is to await that contingency and revolution is seen, not as a sudden episode, but as the consummation of a long process. 147 The United States, fortunately, has experienced Communism only in its preparatory stages and for its pattern of final action must look abroad. Russia, of course, was the pilot Communist revolution, which to the Marxist confirms the Party's assumptions and points it destiny.7 But Communist technique in the overturn of a free government was disclosed by the coup d'etat in which they seized power in Czechoslovakia.8 There the Communist Party during its preparatory stage claimed and received protection for its freedoms of speech, press, and assembly. Pretending to be but another political party, it eventually was conceded participation in government, where it entrenched reliable members chiefly in control of police and information services. When the government faced a foreign and domestic crisis, the Communist Party had established a leverage strong enough to threaten civil war. In a period of confusion the Communist plan unfolded and the underground organization came to the surface throughout the country in the form chiefly of labor 'action committees.' Communist officers of the unions took over transportation and allowed only persons with party permits to travel. Communist printers took over the newspapers and radio and put out only party-approved versions of events. Possession was taken of telegraph and telephone systems and communications were cut off wherever directed by party heads. Communist unions took over the factories, and in the cities a partisan distribution of food was managed by the Communist organization. A virtually bloodless abdication by the elected government admitted the Communists to power, whereupon they instituted a reign of oppression and terror, and ruthlessly denied to all others the freedoms which had sheltered their conspiracy. II. 148 The foregoing is enough to indicate that, either by accident or design, the Communist strategem outwits the anti-anarchist pattern of statute aimed against 'overthrow by force and violence' if qualified by the doctrine that only 'clear and present danger' of accomplishing that result will sustain the prosecution. 149 The 'clear and present danger' test was an innovation by Mr. Justice Holmes in the Schenck case,9 reiterated and refined by him and Mr. Justice Brandeis in later cases,10 all arising before the era of World War II revealed the subtlety and efficacy of modernized revolutionary techniques used by totalitarian parties. In those cases, they were faced with convictions under so-called criminal syndicalism statutes aimed at anarchists but which, loosely construed, had been applied to punish socialism, pacifism, and left-wing ideologies, the charges often resting on far-fetched inferences which, if true, would establish only technical or trivial violations. They proposed 'clear and present danger' as a test for the sufficiency of evidence in particular cases. 150 I would save it, unmodified, for application as a 'rule of reason'11 in the kind of case for which it was devised. When the issue is criminality of a hot-headed speech on a street corner, or circulation of a few incendiary pamphlets, or parading by some zealots behind a red flag, or refusal of a handful of school children to salute our flag, it is not beyond the capacity of the judicial process to gether, comprehend, and weigh the necessary materials for decision whether it is a clear and present danger of substantive evil or a harmless letting off of steam. It is not a prophecy, for the danger in such cases has matured by the time of trial or it was never present. The test applies which does not directly or explicitly advocate is sought to be based on a speech or writing which does not directly or explccitly advocate a crime but to which such tendency is sought to be attributed by construction or by implication from external circumstances. The formula in such cases favors freedoms that are vital to our society, and, even if sometimes applied too generously, the consequences cannot be grave. But its recent expansion has extended, in particular to Communists, unprecedented immunities.12 Unless we are to hold our Government captive in a judge-made verbal trap, we must approach the problem of a well-or-ganized, nation-wide conspiracy, such as I have described, as realistically as our predecessors faced the trivialities that were being prosecuted until they were checked with a rule of reason. 151 I think reason is lacking for applying that test to this case. 152 If we must decide that this Act and its application are constitutional only if we are convinced that petitioner's conduct creates a 'clear and present danger' of violent overthrow, we must appraise imponderables, including international and national phenomena which baffle the best informed foreign offices and our most experienced politicians. We would have to foresee and predict the effectiveness of Communist propaganda, opportunities for infiltration, whether, and when, a time will come that they consider propitious for action, and whether and how fast our existing government will deteriorate. And we would have to speculate as to whether an approaching Communist coup would not be anticipated by a nationalistic fascist movement. No doctrine can be sound whose application requires us to make a prophecy of that sort in the guise of a legal decision. The judicial process simply is not adequate to a trial of such far-flung issues. The answers given would reflect our own political predilections and nothing more. 153 The authors of the clear and present danger test never applied it to a case like this, nor would I. If applied as it is proposed here, it means that the Communist plotting is protected during its period of incubation; its preliminary stages of organization and preparation are immune from the law; the Government can move only after imminent action is manifest, when it would, of course, be too late. III. 154 The highest degree of constitutional protection is due to the individual acting without conspiracy. But even an individual cannot claim that the Constitution protects him in advocating or teaching overthrow of government by force or violence. I should suppose no one would doubt that Congress has power to make such attempted overthrow a crime. But the contention is that one has the constitutional right to work up a public desire and will to do what it is a crime to attempt. I think direct incitement by speech or writing can be made a crime, and I think there can be a conviction without also proving that the odds favored its success by 99 to 1, or some other extremely high ratio. 155 The names of Mr. Justice Holmes and Mr. Justice Brandeis cannot be associated with such a doctrine of governmental disability. After the Schenck case, in which they set forth the clear and present danger test, they joined in these words of Mr. Justice Holmes, spoken for a unanimous Court: 156 '* * * (T)he First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326 (328), 41 L.Ed. 715. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.' Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 250, 63 L.Ed. 561. 157 The same doctrine was earlier stated in Fox v. State of Washington, 236 U.S. 273, 277, 35 S.Ct. 383, 384, 59 L.Ed. 573, and that case was recently and with approval cited in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 690, 93 L.Ed. 834. 158 As aptly stated by Judge Learned Hand in Masses Publishing Co. v. Patten, D.C., 244 F. 535, 540: 'One may not counsel or advise others to violate the law as it stands. Words are not only the keys of persuasion, but the triggers of action, and those which have no purport but to counsel the violation of law cannot by any latitude of interpretation be a part of that public opinion which is the final source of government in a democratic state.' Of course, it is not always easy to distinguish teaching or advocacy in the sense of incitement from teaching or advocacy in the sense of exposition or explanation. It is a question of fact in each case. IV. 159 What really is under review here is a conviction of conspiracy, after a trial for conspiracy, on an indictment charging conspiracy, brought under a statute outlawing conspiracy. With due respect to my colleagues, they seem to me to discuss anything under the sun except the law of conspiracy. One of the dissenting opinions even appears to chide me for 'invoking the law of conspiracy.' As that is the case before us, it may be more amazing that its reversal can be proposed without even considering the law of conspiracy. 160 The Constitution does not make conspiracy a civil right. The Court has never before done so and I think it should not do so now. Conspiracies of labor unions, trade associations, and news agencies have been condemned, although accomplished, evidenced and carried out, like the conspiracy here, chiefly by letter-writing, meetings, speeches and organization. Indeed, this Court seems, particularly in cases where the conspiracy has economic ends, to be applying its doctrines with increasing severity. While I consider criminal conspiracy a dragnet device capable of perversion into an instrument of injustice in the hands of a partisan or complacent judiciary, it has an established place in our system of law, and no reason appears for applying it only to concerted action claimed to disturb interstate commerce and withholding it from those claimed to undermine our whole Government.13 161 The basic rationale of the law of conspiracy is that a conspiracy may be an evil in itself, independently of any other evil it seeks to accomplish. Thus, we recently held in Pinkerton v. United States, 328 U.S. 640, 643—644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489, 'It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. * * * And the plea of double jeopardy is no defense to a conviction for both offenses. * * *' 162 So far does this doctrine reach that it is well settled that Congress may make it a crime to conspire with others to do what an individual may lawfully do on his own. This principle is illustrated in conspiracies that violate the antitrust laws as sustained and applied by this Court. Although one may raise the prices of his own products, and many, acting without concert, may do so, the moment they conspire to that end they are punishable. The same principle is applied to organized labor. Any workman may quit his work for any reason, but concerted actions to the same end are in some circumstances forbidden. National Labor Relations Act, as amended, 61 Stat. 136, § 8(b), 29 U.S.C. § 158(b), 29 U.S.C.A. § 158(b). 163 The reasons underlying the doctrine that conspiracy may be a substantive evil in itself, apart from any evil it may threaten, attempt or accomplish, are peculiarly appropriate to conspiratorial Communism. 164 'The reason for finding criminal liability in case of a combination to effect an unlawful end or to use unlawful means, where none would exist, even though the act contemplated were actually committed by an individual, is that a combination of persons to commit a wrong, either as an end or as a means to an end, is so much more dangerous, because of its increased power to do wrong, because it is more difficult to guard against and prevent the evil designs of a group of persons than of a single person, and because of the terror which fear of such a combination tends to create in the minds of people.'14 165 There is lamentation in the dissents about the injustice of conviction in the absence of some overt act. Of course, there has been no general uprising against the Government, but the record is replete with acts to carry out the conspiracy alleged, acts such as always are held sufficient to consummate the crime where the statute requires an overt act. 166 But the shorter answer is that no overt act is or need be required. The Court, in antitrust cases, early upheld the power of Congress to adopt the ancient common law that makes conspiracy itself a crime. Through Mr. Justice Holmes, it said: 'Coming next to the objection that no overt act is laid, the answer is that the Sherman act (15 U.S.C.A. §§ 1—7, 15 note) punishes the conspiracies at which it is aimed on the common law footing—that is to say, it does not make the doing of any act other than the act of conspiring a condition of liability.' Nash v. United States, 229 U.S. 373, 378, 33 S.Ct. 780, 782, 57 L.Ed. 1232. Reiterated, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 252, 60 S.Ct. 811, 846, 84 L.Ed. 1129. It is not to be supposed that the power of Congress to protect the Nation's existence is more limited than its power to protect interstate commerce. 167 Also, it is urged that since the conviction is for conspiracy to teach and advocate, and to organize the Communist Party to teach and advocate, the First Amendment is violated, because freedoms of speech and press protect teaching and advocacy regardless of what is taught or advocated. I have never thought that to be the law. 168 I do not suggest that Congress could punish conspiracy to advocate something, the doing of which it may not punish. Advocacy or exposition of the doctrine of communal property ownership, or any political philosophy unassociated with advocacy of its imposition by force or seizure of government by unlawful means could not be reached through conspiracy prosecution. But it is not forbidden to put down force or violence, it is not forbidden to punish its teaching or advocacy, and the end being punishable, there is no doubt of the power to punish conspiracy for the purpose. 169 The defense of freedom of speech or press has often been raised in conspiracy cases, because, whether committed by Communists, by businessmen, or by common criminals, it usually consists of words written or spoken, evidenced by letters, conversations, speeches or documents. Communication is the essence of every conspiracy, for only by it can common purpose and concert of action be brought about or be proved. However, when labor unions raised the defense of free speech against a conspiracy charge, we unanimously said: 170 'It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now. * * * 171 '* * * It is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. * * * Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society.' Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 502, 69 S.Ct. 684, 688, 691, 93 L.Ed. 834. 172 A contention by the press itself, in a conspiracy case, that it was entitled to the benefits of the 'clear and present danger' test, was curtly rebuffed by this Court, saying: 'Nor is a publisher who engages in business practices made unlawful by the Sherman Act entitled to a partial immunity by reason of the 'clear and present danger' doctrine. * * * Formulated as it was to protect liberty of thought and of expression, it would degrade the clear and present danger doctrine to fashion from it a shield for business publishers who engage in business practices condemned by the Sherman Act. * * *' Associated Press v. United States, 326 U.S. 1, 7, 65 S.Ct. 1416, 1418, 89 L.Ed. 2013. I should think it at least as 'degrading' to fashion of it a shield for conspirators whose ultimate purpose is to capture or overthrow the Government. 173 In conspiracy cases the Court not only has dispensed with proof of clear and present danger but even of power to create a danger: 'It long has been settled, however, that a 'conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy.' * * * Petitioners, for example, might have been convicted here of a conspiracy to monopolize without ever having acquired the power to carry out the object of the conspiracy * * *.' American Tobacco Co. v. United States, 328 U.S. 781, 789, 66 S.Ct. 1125, 1129, 90 L.Ed. 1575. 174 Having held that a conspiracy alone is a crime and its consummation is another, it would be weird legal reasoning to hold that Congress could punish the one only if there was 'clear and present danger' of the second. This would compel the Government to prove two crimes in order to convict for one. 175 When our constitutional provisions were written, the chief forces recognized as antagonists in the struggle between authority and liberty were the Government on the one hand and the individual citizen on the other. It was thought that if the state could be kept in its place the individual could take care of himself. 176 In more recent times these problems have been complicated by the intervention between the state and the citizen of permanently organized, well-financed, semisecret and highly disciplined political organizations. Totalitarian groups here and abroad perfected the technique of creating private paramilitary organizations to coerce both the public government and its citizens. These organizations assert as against our Government all of the constitutional rights and immunities of individuals and at the same time exercise over their followers much of the authority which they deny to the Government. The Communist Party realistically is a state within a state, an authoritarian dictatorship within a republic. It demands these freedoms, not for its members, but for the organized party. It denies to its own members at the same time the freedom to dissent, to debate, to deviate from the party line, and enforces its authoritarian rule by crude purges, if nothing more violent. 177 The law of conspiracy has been the chief means at the Government's disposal to deal with the growing problems created by such organizations. I happen to think it is an awkward and inept remedy, but I find no constitutional authority for taking this weapon from the Government. There is no constitutional right to 'gang up' on the Government. 178 While I think there was power in Congress to enact this statute and that, as applied in this case, it cannot be held unconstitutional,15 I add that I have little faith in the long-range effectiveness of this conviction to stop the rise of the Communist movement. Communism will not go to jail with these Communists. No decision by this Court can forestall revolution whenever the existing government fails to command the respect and loyalty of the people and sufficient distress and discontent is allowed to grow up among the masses. Many failures by fallen governments attest that no government can long prevent revolution by outlawry.16 Corruption, ineptitude, inflation, oppressive taxation, militarization, injustice, and loss of leadership capable of intellectual initiative in domestic or foreign affairs are allies on which the Communists count to bring opportunity knocking to their door. Sometimes I think they may be mistaken. But the Communists are not building just for today—the rest of us might profit by their example. 179 Mr. Justice BLACK, dissenting. 180 Here again, as in Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, my basic disagreement with the Court is not as to how we should explain or reconcile what was said in prior decisions but springs from a fundamental difference in constitutional approach. Consequently, it would serve no useful purpose to state my position at length. 181 At the outset I want to emphasize what the crime involved in this case is, and what it is not. These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date: The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids. I would hold § 3 of the Smith Act authorizing this prior restraint unconstitutional on its face and as applied. 182 But let us assume, contrary to all constitutional ideas of fair criminal procedure, that petitioners although not indicted for the crime of actual advocacy, may be punished for it. Even on this radical assumption, the other opinions in this case show that the only way to affirm these convictions is to repudiate directly or indirectly the established 'clear and present danger' rule. This the Court does in a way which greatly restricts the protections afforded by the First Amendment. The opinions for affirmance indicate that the chief reason for jettisoning the rule is the expressed fear that advocacy of Communist doctrine endangers the safety of the Republic. Undoubtedly, a governmental policy of unfettered communication of ideas does entail dangers. To the Founders of this Nation, however, the benefits derived from free expression were worth the risk. They embodied this philosophy in the First Amendment's command that 'Congress shall make no law * * * abridging the freedom of speech, or of the press * * *.' I have always believed that the First Amendment is the keystone of our Government, that the freedoms it guarantees provide the best insurance against destruction of all freedom. At least as to speech in the realm of public matters, I believe that the 'clear and present danger' test does not 'mark the furthermost constitutional boundaries of protected expression' but does 'no more than recognize a minimum compulsion of the Bill of Rights.' Bridges v. State of California, 314 U.S. 252, 263, 62 S.Ct. 190, 86 L.Ed. 192. 183 So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress' or our own notions of mere 'reasonableness.' Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those 'safe' or orthodox views which rarely need its protection. I must also express my objection to the holding because, as Mr. Justice Douglas' dissent shows, it sanctions the determination of a crucial issue of fact by the judge rather than by the jury. Nor can I let this opportunity pass without expressing my objection to the severely limited grant of certiorari in this case which precluded consideration here of at least two other reasons for reversing these convictions: (1) the record shows a discriminatory selection of the jury panel which prevented trial before a representative cross-section of the community; (2) the record shows that one member of the trial jury was violently hostile to petitioners before and during the trial. 184 Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society. 185 Mr. Justice DOUGLAS, dissenting. 186 If this were a case where those who claimed protection under the First Amendment were teaching the techniques of sabotage, the assassination of the President, the filching of documents from public files, the planting of bombs, the art of street warfare, and the like, I would have no doubts. The freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond the pale along with obscenity and immorality. This case was argued as if those were the facts. The argument imported much seditious conduct into the record. That is easy and it has popular appeal, for the activities of Communists in plotting and scheming against the free world are common knowledge. But the fact is that no such evidence was introduced at the trial. There is a statute which makes a seditious conspiracy unlawful.1 Petitioners, however, were not charged with a 'conspiracy to overthrow' the Government. They were charged with a conspiracy to form a party and groups and assemblies of people who teach and advocate the overthrow of our Government by force or violence and with a conspiracy to advocate and teach its overthrow by force and violence.2 It may well be that indoctrination in the techniques of terror to destroy the Government would be indictable under either statute. But the teaching which is condemned here is of a different character. 187 So far as the present record is concerned, what petitioners did was to organize people to teach and themselves teach the Marxist-Leninist doctrine contained chiefly in four books:3 Foundations of Leninism by Stalin (1924); The Communist Manifesto by Marx and Engels (1848); State and Revolution by Lenin (1917); History of the Communist Party of the Soviet Union (B.) (1939). 188 Those books are to Soviet Communism what Mein Kampf was to Nazism. If they are understood, the ugliness of Communism is revealed, its deceit and cunning are exposed, the nature of its activities becomes apparent, and the chances of its success less likely. That is not, of course, the reason why petitioners chose these books for their classrooms. They are fervent Communists to whom these volumes are gospel. They preached the creed with the hope that some day it would be acted upon. 189 The opinion of the Court does not outlaw these texts nor condemn them to the fire, as the Communists do literature offensive to their creed. But if the books themselves are not outlawed, if they can lawfully remain on library shelves, by what reasoning does their use in a classroom become a crime? It would not be a crime under the Act to introduce these books to a class, though that would be teaching what the creed of violent overthrow of the Government is. The Act, as construed, requires the element of intent—that those who teach the creed believe in it. The crime then depends not on what is taught but on who the teacher is. That is to make freedom of speech turn not on what is said, but on the intent with which it is said. Once we start down that road we enter territory dangerous to the liberties of every citizen. 190 There was a time in England when the concept of constructive treason flourished. Men were punished not for raising a hand against the king but for thinking murderous thoughts about him. The Framers of the Constitution were alive to that abuse and took steps to see that the practice would not flourish here. Treason was defined to require overt acts—the evolution of a plot against the country into an actual project. The present case is not one of treason. But the analogy is close when the illegality is made to turn on intent, not on the nature of the act. We then start probing men's minds for motive and purpose; they become entangled in the law not for what they did but for what they thought; they get convicted not for what they said but for the purpose with which they said it. 191 Intent, of course, often makes the difference in the law. An act otherwise excusable or carrying minor penalties may grow to an abhorrent thing if the evil intent is present. We deal here, however, not with ordinary acts but with speech, to which the Constitution has given a special sanction. 192 The vice of treating speech as the equivalent of overt acts of a treasonable or seditious character is emphasized by a concurring opinion, which by invoking the law of conspiracy makes speech do service for deeds which are dangerous to society. The doctrine of conspiracy has served divers and oppressive purposes and in its broad reach can be made to do great evil. But never until today has anyone seriously thought that the ancient law of conspiracy could constitutionally be used to turn speech into seditious conduct. Yet that is precisely what is suggested. I repeat that we deal here with speech alone, not with speech plus acts of sabotage or unlawful conduct. Not a single seditious act is charged in the indictment. To make a lawful speech unlawful because two men conceive it is to raise the law of conspiracy to appalling proportions. That course is to make a radical break with the past and to violate one of the cardinal principles of our constitutional scheme. 193 Free speech has occupied an exalted position because of the high service it has given our society. Its protection is essential to the very existence of a democracy. The airing of ideas releases pressures which otherwise might become destructive. When ideas compete in the market for acceptance, full and free discussion exposes the false and they gain few adherents. Full and free discussion even of ideas we hate encourages the testing of our own prejudices and preconceptions. Full and free discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart. 194 Full and free discussion has indeed been the first article of our faith. We have founded our political system on it. It has been the safeguard of every religious, political, philosophical, economic, and racial group amongst us. We have counted on it to keep us from embracing what is cheap and false; we have trusted the common sense of our people to choose the doctrine true to our genius and to reject the rest. This has been the one single outstanding tenet that has made our institutions the symbol of freedom and equality We have deemed it more costly to liberty to suppress a despised minority than to let them vent their spleen. We have above all else feared the political censor. We have wanted a land where our people can be exposed to all the diverse creeds and cultures of the world. 195 There comes a time when even speech loses its constitutional immunity. Speech innocuous one year may at another time fan such destructive flames that it must be halted in the interests of the safety of the Republic. That is the meaning of the clear and present danger test. When conditions are so critical that there will be no time to avoid the evil that the speech threatens, it is time to call a halt. Otherwise, free speech which is the strength of the Nation will be the cause of its destruction. 196 Yet free speech is the rule, not the exception. The restraint to be constitutional must be based on more than fear, on more than passionate opposition against the speech, on more than a revolted dislike for its contents. There must be some immediate injury to society that is likely if speech is allowed. The classic statement of these conditions was made by Mr. Justice Brandeis in his concurring opinion in Whitney v. People of State of California, 274 U.S. 357, 376—377, 47 S.Ct. 641 648, 649, 71 L.Ed. 1095. 197 'Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated. 198 'Those who won our independence by revolution were not cowards. They did notfear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, 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.' (Italics added.) I had assumed that the question of the clear and present danger, being so critical an issue in the case, would be a matter for submission to the jury. It was squarely held in Pierce v. United States, 252 U.S. 239, 244, 40 S.Ct. 205, 208, 64 L.Ed. 542, to be a jury question. Mr. Justice Pitney, speaking for the Court, said, 'Whether the statement contained in the pamphlet had a natural tendency to produce the forbidden consequences, as alleged, was a question to be determined not upon demurrer but by the jury at the trial.' That is the only time the Court has passed on the issue. None of our other decisions is contrary. Nothing said in any of the nonjury cases has detracted from that ruling.4 The statement in Pierce v. United States, supra, states the law as it has been and as it should be. The Court, I think, errs when it treats the question as one of law. 199 Yet, whether the question is one for the Court or the jury, there should be evidence of record on the issue. This record, however, contains no evidence whatsoever showing that the acts charged viz., the teaching of the Soviet theory of revolution with the hope that it will be realized, have created any clear and present danger to the Nation. The Court, however, rules to the contrary. It says, 'The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score.' 200 That ruling is in my view not responsive to the issue in the case. We might as well say that the speech of petitioners is outlawed because Soviet Russia and her Red Army are a threat to world peace. 201 The nature of Communism as a force on the world scene would, of course, be relevant to the issue of clear and present danger of petitioners' advocacy within the United States. But the primary consideration is the strength and tactical position of petitioners and their converts in this country. On that there is no evidence in the record. If we are to take judicial notice of the threat of Communists within the nation, it should not be difficult to conclude that as a political party they are of little consequence. Communists in this country have never made a respectable or serious showing in any election. I would doubt that there is a village, let alone a city or county or state, which the Communists could carry. Communism in the world scene is no bogey-man; but Communism as a political faction or party in this country plainly is. Communism has been so thoroughly exposed in this country that it has been crippled as a political force. Free speech has destroyed it as an effective political party. It is inconceivable that those who went up and down this country preaching the doctrine of revolution which petitioners espouse would have any success. In days of trouble and confusion, when bread lines were long, when the unemployed walked the streets, when people were starving, the advocates of a short-cut by revolution might have a chance to gain adherents. But today there are no such conditions. The country is not in despair; the people know Soviet Communism; the doctrine of Soviet revolution is exposed in all of its ugliness and the American people want none of it. 202 How it can be said that there is a clear and present danger that this advocacy will succeed is, therefore, a mystery. Some nations less resilient than the United States, where illiteracy is high and where democratic traditions are only budding, might have to take drastic steps and jail these men for merely speaking their creed. But in America they are miserable merchants of unwanted ideas; their wares remain unsold. The fact that their ideas are abhorrent does not make them powerful. 203 The political impotence of the Communists in this country does not, of course, dispose of the problem. Their numbers; their positions in industry and government; the extent to which they have in fact infiltrated the police, the armed services, transportation, stevedoring, power plants, munitions works, and other critical places—these facts all bear on the likelihood that their advocacy of the Soviet theory of revolution will endanger the Republic. But the record is silent on these facts. If we are to proceed on the basis of judicial notice, it is impossible for me to say that the Communists in this country are so potent or so strategically deployed that they must be suppressed for their speech. I could not so hold unless I were willing to conclude that the activities in recent years of committees of Congress, of the Attorney General, of labor unions, of state legislatures, and of Loyalty Boards were so futile as to leave the country on the edge of grave peril. To believe that petitioners and their following are placed in such critical positions as to endanger the Nation is to believe the incredible. It is safe to say that the followers of the creed of Soviet Communism are known to the F.B.I.; that in case of war with Russia they will be picked up overnight as were all prospective saboteurs at the commencement of World War II; that the invisible army of petitioners is the best known, the most beset, and the least thriving of any fifth column in history. Only those held by fear and panic could think otherwise. 204 This is my view if we are to act on the basis of judicial notice. But the mere statement of the opposing views indicates how important it is that we know the facts before we act. Neither prejudice nor hate nor senseless fear should be the basis of this solemn act. Free speech—the glory of our system of government—should not be sacrificed on anything less than plain and objective proof of danger that the evil advocated is imminent. On this record no one can say that petitioners and their converts are in such a strategic position as to have even the slightest chance of achieving their aims. 205 The First Amendment provides that 'Congress shall make no law * * * abridging the freedom of speech'. The Constitution provides no exception. This does not mean, however, that the Nation need hold its hand until it is in such weakened condition that there is no time to protect itself from incitement to revolution. Seditious conduct can always be punished. But the command of the First Amendment is so clear that we should not allow Congress to call a halt to free speech except in the extreme case of peril from the speech itself. The First Amendment makes confidence in the common sense of our people and in their maturity of judgment the great postulate of our democracy. Its philosophy is that violence is rarely, if ever, stopped by denying civil liberties to those advocating resort to force. The First Amendment reflects the philosophy of Jefferson 'that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order.'5 The political censor has no place in our public debates. Unless and until extreme and necessitous circumstances are shown our aim should be to keep speech unfettered and to allow the processes of law to be invoked only when the provocateurs among us move from speech to action. 206 Vishinsky wrote in 1938 in The Law of the Soviet State, 'In our state, naturally, there is and can be no place for freedom of speech, press, and so on for the foes of socialism.' 207 Our concern should be that we accept no such standard for the United States. Our faith should be that our people will never give support to these advocates of revolution, so long as we remain loyal to the purposes for which our Nation was founded. Appendix to Opinion of Mr. Justice Douglas 208 There have been numerous First Amendment cases before the Court raising the issue of clear and present danger since Mr. Justice Holmes first formulated the test in Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470. Most of them, however, have not involved jury trials. 209 The cases which may be deemed at all relevant to our problem can be classified as follows: 210 Convictions for contempt of court (nonjury): Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546. 211 Convictions by state courts sitting without juries, generally for violations of local ordinances: Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Tucker v. State of Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Saia v. People of State 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, 93 L.Ed. 513; Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312; Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303. 212 Injunctions against enforcement of state or local laws (non-jury): Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Minersville School District v. Gobitis, 310 U.S. 386, 60 S.Ct. 1010, 84 L.Ed. 1375; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. 213 Administrative proceedings (non-jury): Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103; Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796; American Communications Association v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. 214 Cases tried before juries for violations of state laws directed against advocacy of anarchy, criminal syndicalism, etc.: Gilbert v. State of Minnesota, 254 U.S. 325, 41 S.Ct. 125, 65 L.Ed. 287; Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; Fiske v. State of Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108; Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; Taylor v. State of Mississippi, 319 U.S. 583, 63 S.Ct. 1200, 87 L.Ed. 1600; or for minor local offenses: Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325. 215 Federal prosecutions before juries under the Espionage Act of 1917 following World War I: Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561; Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566; Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173; Schaefer v. United States, 251 U.S. 466, 40 S.Ct. 259, 64 L.Ed. 360; Pierce v. United States, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542. Pierce v. United States ruled that the question of clear and present danger was for the jury. In the other cases in this group the question whether the issue was for the court or the jury was not raised or passed upon. 216 Federal prosecution before a jury under the Espionage Act of 1917 following World War II: Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534. The jury was instructed on clear and present danger in terms drawn from the language of Mr. Justice Holmes in Schenck v. United States, supra, 249 U.S. at page 52, 39 S.Ct. at page 249, 63 L.Ed. 470. The Court reversed the conviction on the ground that there had not been sufficient evidence for submission of the case to the jury. 1 Following the dissolution of the Communist International in 1943, the Communist Party of the United States dissolved and was reconstituted as the Communist Political Association. The program of this Association was one of cooperation between labor and management, and, in general, one designed to achieve national unity and peace and prosperity in the post-war period. 2 We have treated this point because of the discussion accorded it by the Court of Appeals and its importance to the administration of this statute, compare Johnson v. United States, 1943, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704, although petitioners themselves requested a charge similar to the one given, and under Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., would appear to be barred from raising this point on appeal. Cf. Boyd v. United States, 1926, 271 U.S. 104, 46 S.Ct. 442, 70 L.Ed. 857. 3 Toledo Newspaper Co. v. United States, 1918, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186; Fox v. State of Washington, 1915, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573; Davis v. Com. of Massachusetts, 1897, 167 U.S. 43, 17 S.Ct. 731, 42 L.Ed. 71; see Gompers v. Bucks Stove & Range Co., 1911, 221 U.S. 418, 439, 31 S.Ct. 492, 497, 55 L.Ed. 797; Robertson v. Baldwin, 1897, 165 U.S. 275, 281, 17 S.Ct. 326, 328, 41 L.Ed. 715. 4 Cf. Gilbert v. State of Minnesota, 1920, 254 U.S. 325, 41 S.Ct. 125, 65 L.Ed. 287. 5 Contempt of court: Craig v. Harney, 1947, 331 U.S. 367, 368, 373, 67 S.Ct. 1249, 1251, 1253, 91 L.Ed. 1546; Pennekamp v. State of Florida, 1946, 328 U.S. 331, 333—336, 66 S.Ct. 1029, 1030 1032, 90 L.Ed. 1295; Bridges v. State of California, 1941, 314 U.S. 252, 260—263, 62 S.Ct. 190, 192—194, 86 L.Ed. 192. Validity of state statute: Thomas v. Collins, 1945, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430; Taylor v. State of Mississippi, 1943, 319 U.S. 583, 589—590, 63 S.Ct. 1200, 1203 1204, 87 L.Ed. 1600; Thornhill v. State of Alabama, 1940, 310 U.S. 88, 104—406, 60 S.Ct. 736, 745—746, 84 L.Ed. 1093. Validity of local ordinance or regulation: West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628; Carlson v. People of State of California, 1940, 310 U.S. 106, 113, 60 S.Ct. 746, 749, 84 L.Ed. 1104. Common law offense: Cantwell v. State of Connecticut, 1940, 310 U.S. 296, 308, 311, 60 S.Ct. 900, 905, 906, 84 L.Ed. 1213. 6 'Whether in 1919, when Miss Whitney did the things complained of, there was in California such clear and present danger of serious evil, might have been made the important issue in the case. She might have required that the issue be determined either by the court or the jury. She claimed below that the statute as applied to her violated the Federal Constitution; but she did not claim that it was void because there was no clear and present danger of serious evil, nor did she request that the existence of these conditions of a valid measure thus restricting the rights of free speech and assembly be passed upon by the court or a jury. On the other hand, there was evidence on which the court or jury might have found that such danger existed.' (Emphasis added.) 274 U.S. at page 379, 47 S.Ct. at page 649, 71 L.Ed. 1095. 7 'Whether the printed words would in fact produce as a proximate result a material interference with the recruiting or enlistment service, or the operation or success of the forces of the United States, was a question for the jury to decide in view of all the circumstances of the time and considering the place and manner of distribution.' 1920, 252 U.S. 239, 250, 40 S.Ct. 205, 210, 64 L.Ed. 542. 8 A similarly worded expression is found in that part of the majority opinion sustaining the overruling of the defendants' general demurrer to the indictment. 252 U.S. at 244, 40 S.Ct. at page 207, 64 L.Ed. 542. Since the defendants had not raised the issue of 'clear and present danger' at the trial, it is clear that the Court was not faced with the question whether the trial judge erred in not determining, as a conclusive matter, the existence or nonexistence of a 'clear and present danger'. The only issue to which the remarks were addressed was whether the indictment sufficiently alleged the violation. 1 Mass.Const., 1780, Part I, Art. XVI. See Duniway, Freedom of the Press in Massachusetts 144—146. 2 Pa.Const., 1790, Art. IX, § 7; Del.Const., 1792, Art. I, § 5. 3 The General Assembly of Virginia passed a statute on December 26, 1792, directed at establishment of 'any government separate from, or independent of the government of Virginia, within the limits thereof, unless by act of the legislature of this commonwealth for that purpose first obtained.' The statute provided that 'EVERY person * * * who shall by writing or advised speaking, endeavour to instigate the people of this commonwealth to erect or establish such government without such assent as aforesaid, shall be adjudged guilty of a high crime and misdemeanor * * *.' Va.Code, 1803, c. CXXXVI. 4 In a letter to Abigail Adams, dated September 11, 1804, Jefferson said with reference to the Sedition Act: 'Nor does the opinion of the unconstitutionality and consequent nullity of that law remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the US. The power to do that is fully possessed by the several state legislatures. It was reserved to them, and was denied to the general government, by the constitution according to our construction of it. While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the right of the states, and their exclusive right, to do so.' The letter will be published in a forthcoming volume of The Papers of Thomas Jefferson (Boyd ed.), to which I am indebted for its reproduction here in its exact form. The Sedition Act of July 14, 1798, was directed at two types of conduct. Section 1 made it a criminal offense to conspire 'to impede the operation of any law of the United States,' and to 'counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination'. Section 2 provided: 'That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.' 1 Stat. 596—597. No substantial objection was raised to § 1 of the Act. The argument against the validity of § 2 is stated most fully in the Virginia Report of 1799—1800. That Report, prepared for the House of Delegates by a committee of which Madison was chairman, attempted to establish that the power to regulate speech was not delegated to the Federal Government by the Constitution, and that the First Amendment had prohibited the National Government from exercising the power. In reply it was urged that power to restrict seditious writing was implicit in the acknowledged power of the Federal Government to prohibit seditious acts, and that the liberty of the press did not extend to the sort of speech restricted by the Act. See the Report of the Committee of the House of Representatives to which were referred memorials from the States, H.R.Rep.No.110, 5th Cong., 3d Sess., published in American State Papers, Misc. vol. 1, p. 181. For an extensive contemporary account of the controversy, see St. George Tucker's 1803 edition of Blackstone's Commentaries, appendix to vol. 1, part 2, note G. 5 Professor Alexander Meiklejohn is a leading exponent of the absolutist interpretation of the First Amendment. Recognizing that certain forms of speech require regulation, he excludes those forms of expression entirely from the protection accorded by the Amendment. 'The constitutional status of a merchant advertising his wares, of a paid lobbyist fighting for the advantage of his client, is utterly different from that of a citizen who is planning for the general welfare.' Meiklejohn, Free Speech 39. 'The radio as it now operates among us is not free. Nor is it entitled to the protection of the First Amendment. It is not engaged in the task of enlarging and enriching human communication. It is engaged in making money.' Id. at 104. Professor Meiklejohn even suggests that scholarship may now require such subvention and control that it no longer is entitled to protection by the First Amendment. See id. at 99—100. Professor Chafee in his review of the Meiklejohn book, 62 Harv.L.Rev. 891, has subjected this position to trenchant comment. 6 In Hartzel v. United States, 322 U.S. 680, 687, 64 S.Ct. 1233, 1236, 88 L.Ed. 1534, the Court reversed a conviction for wilfully causing insubordination in the military forces on the ground that the intent required by the statute was not shown. It added that there was a second element necessary to conviction, 'consisting of a clear and present danger that the activities in question will bring about the substantive evils which Congress has a right to prevent. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470. Both elements must be proved by the Government beyond a reasonable doubt.' Other passages responsible for attributing to the Court the principle that imminence of the apprehended evil is necessary to conviction in free-speech cases are collected in an Appendix to this opinion. 341 U.S. 556, 71 S.Ct. 891. 7 No useful purpose would be served by considering here decisions in which the Court treated the challenged regulation as though it imposed no real restraint on speech or on the press. E.g., Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953; Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262; Railway Express Agency v. People of State of New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533; Lewis Publishing Co. v. Morgan, 229 U.S. 288, 33 S.Ct. 867, 57 L.Ed. 1190. We recognized that restrictions on speech were involved in United States ex rel. Milwaukee Publishing Co. v. Burleson, 255 U.S. 407, 41 S.Ct. 352, 65 L.Ed. 704, and Gilbert v. State of Minnesota, 254 U.S. 325, 41 S.Ct. 125, 65 L.Ed. 287; but the decisions raised issues so different from those presented here that they too need not be considered in detail. Our decisions in Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, and Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840, turned on the indefiniteness of the statutes. 8 The Taft-Hartley Act also requires that an officer of a union using the services of the National Labor Relations Board take oath 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 Court divided on the validity of this requirement. Test oaths raise such special problems that decisions on their validity are not directly helpful here. See West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. 9 Burns v. United States, 274 U.S. 328, 47 S.Ct. 650, 71 L.Ed. 1077, adds nothing to the decision in Whitney v. People of State of California. 10 In Herndon v. State of Georgia, 295 U.S. 441, 55 S.Ct. 794, 79 L.Ed. 1530, the opinion of the Court was concerned solely with a question of procedure. Mr. Justice Brandeis, Mr. Justice Stone, and Mr. Justice Cardozo, however, thought that the problem of Gitlow v. People of State of New York was raised. See 295 U.S. at page 446, 55 S.Ct. at page 796, 79 L.Ed. 1530. 11 See the testimony of the Director of the Federal Bureau of Investigation. Hearings before the House Committee on Un-American Activities, on H.R.1884 and H.R.2122, 80th Cong., 1st Sess., Part 2, p. 37. 12 Report of the Royal Commission to Investigate Communication of Secret and Confidential Information to Agents of a Foreign Power, June 27, 1946, p. 44. There appears to be little reliable evidence demonstrating directly that the Communist Party in this country has recruited persons willing to engage in espionage or other unlawful activity on behalf of the Soviet Union. The defection of a Soviet diplomatic employee, however, led to a careful investigation of an espionage network in Canada, and has disclosed the effectiveness of the Canadian Communist Party in conditioning its members to disclose to Soviet agents vital information of a secret character. According to the Report of the Royal Commission investigating the network, conspiratorial characteristics of the Party similar to those shown in the evidence now before us were instrumental in developing the necessary motivation to cooperate in the espionage. See pp. 43—83 of the Report. 13 The Communist background of Dr. Klaus Fuchs was brought out in the proceedings against him. See The (London) Times, Mar. 2, 1950, p. 2, col. 6. 14 See American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. Former Senator Robert M. La Follette, Jr., has reported his experience with infiltration of Communist sympathizers into congressional committee staffs. Collier's, Feb. 8, 1947, p. 22. 15 Immigration laws require, for instance, exclusion and deportation of aliens who advocate the overthrow of the Government by force and violence, and declare ineligible for naturalization aliens who are members of organizations so advocating. Act of Feb. 5, 1917, § 19, 39 Stat. 889, 8 U.S.C. § 155, 8 U.S.C.A. § 155; Act of Oct. 16, 1918, 40 Stat. 1012, 8 U.S.C. § 137, 8 U.S.C.A. § 137; Act of Oct. 14, 1940, § 305, 54 Stat. 1141, 8 U.S.C. § 705, 8 U.S.C.A. § 705. The Hatch Act prohibits employment by any Government agency of members of organizations advocating overthrow of 'our constitutional form of government'. Act of Aug. 2, 1939, § 9A, 53 Stat. 1148, 5 U.S.C. (Supp. III) § 118j, 8 U.S.C.A. § 118j. The Voorhis Act of Oct. 17, 1940, was passed to require registration of organizations subject to foreign control which engage in political activity. 54 Stat. 1201, 18 U.S.C. § 2386. The Taft-Hartley Act contains a section designed to exclude Communists from positions of leadership in labor organizations. Act of June 23, 1947, § 9(h), 61 Stat. 146, 29 U.S.C. (Supp. III) § 159(h), 29 U.S.C.A. § 159(h). And, most recently, the McCarran Act requires registration of 'Communist-action' and 'Communist-front' organizations. Act of Sept. 23, 1950, § 7, 64 Stat. 987, 993, 50 U.S.C.A. § 786. 1 The Government's own summary of its charge is: 'The indictment charged that from April 1, 1945, to the date of the indictment petitioners unlawfully, wilfully, and knowingly conspired with each other and with other persons unknown to the grand jury (1) to organize as the Communist Party of the United States of America a society, group and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and (2) knowingly and wilfully to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. The indictment alleged that Section 2 of the Smith Act proscribes these acts and that the conspiracy to take such action is a violation of Section 3 of the act (18 U.S.C. 10, 11 (1946 ed.)).' 2 The Government says this Act before us was modeled after the New York Act of 1909, sustained by this Court in Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. That, in turn, as the Court pointed out, followed an earlier New York Act of 1902. Shortly after the assassination of President McKinley by an anarchist, Congress adopted the same concepts in the Immigration Act of March 3, 1903. 32 Stat. 1213, § 2. Some germs of the same concept can be found in some reconstruction legislation, such as the Enforcement Act of 1871, 17 Stat. 13. The Espionage Act of 1917, 40 Stat. 217, tit. 1, § 3, which gave rise to a series of civil-rights decisions, applied only during war and defined as criminal 'false statements with intent' to interfere with our war effort or cause insubordination in the armed forces or obstruct recruiting. However, a wave of 'criminal syndicalism statutes' were enacted by the States. They were generally upheld, Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095, and prosecutions under them were active from 1919 to 1924. In California alone, 531 indictments were returned and 164 persons convicted. 4 Encyc.Soc.Sci. 582, 583. The Smith Act followed closely the terminology designed to incriminate the methods of terroristic anarchism. 3 Elementary texts amplify the theory and practice of these movements which must be greatly oversimplified in this opinion. See Anarchism, 2 Encyc.Soc.Sci. 46; Nihilism, 11 Encyc.Soc.Sci. 377. 4 Spies v. People, 122 Ill. 1, 12 N.E.2d 865, 17 N.E. 898. 5 Prof. Beard demonstrates this antithesis by quoting the Russian anarchist leader Bakunin, as follows: "Marx is an authoritarian and centralizing communist. He wishes what we wish: the complete triumph of economic and social equality, however, within the state and through the power of the state, through the dictatorship of a very strong and, so to speak, despotic provisional government, that is, by the negation of liberty. His economic ideal is the state as the sole owner of land and capital, tilling the soil by means of agricultural associations, under the management of its engineers, and directing through the agency of capital all industrial and commercial associations. "We demand the same triumph of economic and social equality through the abolition of the state and everything called juridical right, which is according to our view the permanent negation of human right. We wish the reconstruction of society and the establishment of the unity of mankind not from above downward through authority, through socialistic officials, engineers and public technicians, but from below upward through the voluntary federation of labor associations of all kinds emancipated entirely from the yoke of the state." Beard, Individualism and Capitalism, 1 Encyc.Soc.Sci. 145, 158. 6 For methods and objects of infiltration of labor unions, see American Communications Ass'n v. Douds, 339 U.S. 382, 422, 70 S.Ct. 674, 695, 94 L.Ed. 925. 7 The Czar's government, in February 1917, literally gave up, almost without violence, to the Provisional Government, because it was ready to fall apart from its corruption, ineptitude, superstition, oppression and defeat. The revolutionary parties had little to do with this and regarded it as a bourgeoisie triumph. Lenin was an exile in Switzerland, Trotsky in the United States, and Stalin was in Siberia. The Provisional Government attempted to continue the war against Germany, but it, too, was unable to solve internal problems and its Galician campaign failed with heavy losses. By October, its prestige and influence sank so low that it could not continue. Meanwhile, Lenin and Trotsky had returned and consolidated the Bolshevik position around the Soviets, or trade unions. They simply took over power in an almost bloodless revolution between October 25 and November 7, 1917. That Lenin and Trotsky represented only a minority was demonstrated in November elections, in which the Bolsheviks secured less than a quarter of the seats. Then began the series of opportunistic movements to entrench themselves in power. Faced by invasion of the allies, by counterrevolution, and the attempted assassination of Lenin, terrorism was resorted to on a large scale and all the devices of the Czar's police state were reestablished. See 1 Carr, The Bolshevik Revolution, 1917—1923, 99—110, and Moore, Soviet Politics—The Dilemma of Power, 117—139. 8 Ivo Duchacek, The Strategy of Communist Infiltration: Czechoslovakia, 1944—1948, World Politics, vol. II, No. 3 (April 1950), pp. 345—372; and The February Coup in Czechoslovakia, id., July 1950, 511—532; see also Kertesz, The Methods of Communist Conquest: Hungary, 1944—1947, id., October, 1950, pp. 20—54; Lasswell, the Strategy of Soviet Propaganda, 24 Acad.Pol.Sci.Proc. 214, 221. See also Friedman, The Break-up of Czech Democracy. 9 Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 249, 63 L.Ed. 470. This doctrine has been attacked as one which 'annuls the most significant purpose of the First Amendment. It destroys the intellectual basis of our plan of self-government.' Meiklejohn, Free Speech And Its Relation to Self-Government, 29. It has been praised: 'The concept of freedom of speech received for the first time an authoritative judicial interpretation in accord with the purposes of the framers of the Constitution.' Chafee, Free Speech in the United States, 82. In either event, it is the only original judicial thought on the subject, all later cases having made only extensions of its application. All agree that it means something very important, but no two seem to agree on what it is. See concurring opinion, Mr. Justice Frankfurter, Kovacs v. Cooper, 336 U.S. 77, 89, 69 S.Ct. 448, 454, 93 L.Ed. 513. 10 Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095. Holmes' comment on the former, in his letters to Sir Frederick Pollock of June 2 and 18, 1925, as 'a case in which conscience and judgment are a little in doubt,' and description of his dissent as one 'in favor of the rights of an anarchist (so-called) to talk drool in favor of the proletarian dictatorship' show the tentative nature of his test, even as applied to a trivial case. Holmes-Pollock Letters (Howe ed. 1946). 11 So characterized by Mr. Justice Brandeis is Schaefer v. United States, 251 U.S. 466, 482, 40 S.Ct. 259, 264, 64 L.Ed. 360. 12 Recent cases have pushed the 'clear and present danger' doctrine to greater extremes. While Mr. Justice Brandeis said only that the evil to be feared must be 'imminent' and 'relatively serious,' Whitney v. People of State of California, 274 U.S. 357, 376 and 377, 47 S.Ct. 641, 648, 71 L.Ed. 1095, more recently it was required 'that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.' Bridges v. State of California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192. (Italics supplied.) Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, overruled earlier holdings that the courts could take judicial notice that the Communist Party does advocate overthrow of the Government by force and violence. This Court reviewed much of the basic Communist literature that is before us now, and held that it was within 'the area of allowable thought', id., 320 U.S. at page 139, 63 S.Ct. at page 1343, 87 L.Ed. 1796, that it does not show lack of attachment to the Constitution, and that success of the Communist Party would not necessarily mean the end of representative government. The Court declared further that 'A tenable conclusion from the foregoing is that the Party in 1927 desired to achieve its purpose by peaceful and democratic means, and as a theoretical matter justified the use of force and violence only as a method of preventing an attempted forcible counter-overthrow once the Party had obtained control in a peaceful manner, or as a method of last resort to enforce the majority will if at some indefinite future time because of peculiar circumstances constitutional or peaceful channels were no longer open.' Id., 320 U.S. at 157, 63 S.Ct. at page 1352, 87 L.Ed. 1796. Moreover, the Court considered that this 'mere doctrinal justification or prediction of the use of force under hypothetical conditions at some indefinite future time—prediction that is not calculated or intended to be presently acted upon, * * *,' ibid., was within the realm of free speech. A dissent by Mr. Chief Justice Stone, for himself and Justices Roberts and Frankfurter, challenged these naive conclusions, as they did again in Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103, in which the Court again set aside an Attorney General's deportation order. Here Mr. Justice Murphy, without whom there would not have been a majority for the decision, speaking for himself in a concurring opinion, pronounced the whole deportation statute unconstitutional, as applied to Communists, under the 'clear and present danger test', because, 'Not the slightest evidence was introduced to show that either bridges or the Communist Party seriously and imminently threatens to uproot the Government by force or violence.' 326 U.S. at 165, 65 S.Ct. at page 1457, 89 L.Ed. 2103. 13 These dangers were more fully set out in Krulewitch v. United States, 336 U.S. 440, 445, 69 S.Ct. 716, 719, 93 L.Ed. 790. 14 Miller on Criminal Law, 110. Similar reasons have been reiterated by this Court. United States v. Rabinowich, 238 U.S. 78, 88, 35 S.Ct. 682, 684, 59 L.Ed. 1211; Pinkerton v. United States, 328 U.S. 640, 643—644, 66 S.Ct. 1180, 1181, 1182, 90 L.Ed. 1489. 15 The defendants have had the benefit so far in this case of all the doubts and confusions afforded by attempts to apply the 'clear and present danger' doctrine. While I think it has no proper application to the case, these efforts have been in response to their own contentions and favored rather than prejudiced them. There is no call for reversal on account of it. 16 The pathetically ineffective efforts of free European states to overcome feebleness of the Executive and decomposition of the Legislative branches of government by legal proscriptions are reviewed in Loewenstein, Legislative Control of Political Extremism in European Democracies, 38 Col.L.Rev. 591, 725 (1938). The Nazi Party seizure of power in Germany occurred while both it and its Communist counterpart were under sentence of illegality from the courts of the Weimar Republic. The German Criminal Code struck directly at the disciplinary system of totalitarian parties. It provided: 'The participation in an organization the existence, constitution, or purposes of which are to be kept secret from the Government, or in which obedience to unknown superiors or unconditional obedience to known superiors is pledged, is punishable by imprisonment up to six months for the members and from one month to one year for the founders and officers. Public officials may be deprived of the right to hold public office for a period of from one to five years.' 2 Nazi Conspiracy and Aggression (GPO 1946) 11. The Czar's government of Russia fell while the Communist leaders were in exile. See n. 7. Instances of similar failures could be multiplied indefinitely. 1 18 U.S.C. § 2384 provides: 'If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined not more than $5,000 or imprisoned not more than six years, or both.' 2 18 U.S.C. §§ 10, 11, 54 Stat. 671. 3 Other books taught were Problems of Leninism by Stalin, Strategy and Tactics of World Communism (H.R.Doc. No. 619, 80th Cong., 2d Sess.), and Program of the Communist International. 4 The cases which reached the Court are analyzed in the Appendix attached to this opinion 341 U.S. 591, 71 S.Ct. 908. 5 12 Hennings Stat. (Virginia 1823), c. 34, p. 84. Whipple, Our Ancient Liberties (1927), p. 95, states: 'This idea that the limit on freedom of speech or press should be set only by an actual overt act was not new. It had been asserted by a long line of distinguished thinkers including John Locke, Montesquieu in his The Spirit of the Laws ('Words do not constitute an overt act'), the Rev. Phillip Furneaux, James Madison, and Thomas Jefferson.'

23

341 U.S. 694 71 S.Ct. 954 95 L.Ed. 1299 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 501, A.F. OF L. et al.v.NATIONAL LABOR RELATIONS BOARD. No. 108. Argued Feb. 26, 27, 1951. Decided June 4, 1951. Mr. Louis Sherman, Washington, D.C., for petitioners. Mr. Mozart G. Ratner, Washington, D.C., for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 This is a companion case to No. 393, National Labor Relations Board v. Denver Building and Construction Trades Council (the Denver case), 341 U.S. 675, 71 S.Ct. 943, and No. 85, Local 74, United Brotherhood of Carpenters v. National Labor Relations Board (the Chattanooga case), 341 U.S. 707, 71 S.Ct. 966. 2 The principal question here is whether a labor organization and its agent committed an unfair labor practice, within the meaning of § 8(b)(4)(A) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C. § 151, 29 U.S.C.A. § 151, as amended by the Labor Management Relations Act, 1947,1 when, by peaceful picketing, the agent induced employees of a subcontractor on a construction project to engage in a strike in the course of their employment, where an object of such inducement was to force the general contractor to terminate its contract with another subcontractor. For the reasons hereafter stated, we hold that an unfair labor practice was committed. 3 In December, 1947, the Giorgi Construction Company, a partnership (here called Giorgi) having its principal place of business at Port Chester, New York, contracted to build a private dwelling in Greenwich, Connecticut. The contract price was $15,200. Giorgi did part of the work with its own employees but subcontracted the electrical work to Samuel Langer and the carpentry work to Nicholas Deltorto, the principal place of business of each of whom was also at Port Chester. Langer's subcontract was for $325. 4 Langer in the past had employed union men but, prior to this project, had become involved in a dispute with petitioner, International Brotherhood of Electrical Workers, Local 501, A.F. of L., here called the Electricians Union, because of his employment of nonunion men. By the middle of April, 1948, Langer's two electricians, neither of whom was a member of the Electricians Union, had completed the roughing in of the electrical work which was necessary before the walls of the house could be completed. At that point, on two days when no employees of Langer were present on the project, but before the completion of Langer's subcontract, William Patterson, the other petitioner herein, visited the project in his capacity of agent and business representative of the Electricians Union. The only workmen then present were Deltorto and his two carpenters, each of whom was a member of Local 543, United Brotherhood of Carpenters & Joiners of America, A.F. of L., here called the Carpenters Union. Patterson informed Deltorto and one or both of his workmen that the electrical work on the job was being done by nonunion men. Deltorto and his men expressed ignorance of that fact, but Patterson, on the second day of his visits, repeated the statement and proceeded to picket the premises himself, carrying a placard which read 'This job is unfair to organized labor: I.B.E.W. 501 A.F.L.' Deltorto and his men thereupon stopped work and left the project. Deltorto promptly telephoned Giorgi, the general contractor, that his carpenters had walked off the job because the electrical delegate had picketed it. Patterson also telephoned Giorgi saying that Langer was 'unfair' and that Giorgi would have to replace Langer with a union contractor in order to complete the job. He added that if Giorgi did not replace Langer, he would not receive any skilled trades to finish the rest of the work. 5 No communication was had with Langer by either of petitioners. The next day, Giorgi recited these circumstances to Langer and the latter released Giorgi from the electrical subcontract, saying that he would step aside so that a union subcontractor could take over. He did no further work on the project. Giorgi informed Deltorto that the trouble had been straightened out, and the latter's carpenters returned to the project. 6 On a charge filed by Langer, based upon these events, the Regional Director of the National Labor Relations Board issued a complaint against the Electricians Union and Patterson. It alleged that they had induced and encouraged the employees of Deltorto to engage in a strike or a concerted refusal in the course of their employment to perform services for him, an object thereof being to force or require Giorgi to cease doing business with Langer in violation of § 8(b)(4)(A).2 7 With the consent of the present petitioners, a restraining order was issued against them by the United States District Court for the Southern District of New York, pursuant to § 10(l).3 The complaint was referred to the same trial examiner who heard the Denver case, 341 U.S. 675, 71 S.Ct. 943. He distinguished the action of petitioners from that which he had found in the Denver case to constitute a strike signal, and recommended dismissal of the complaint on the ground that petitioners' action here was permissible under § 8(c), despite the provisions of § 8(b)(4)(A). The Board, with two members dissenting, upheld its jurisdiction of the complaint against a claim that the actions complained of did not sufficiently affect interstate commerce. The majority of the Board so holding then affirmed the rulings which the examiner had made during the hearings, adopted certain of his findings, conclusions and recommendations, attached his intermediate report to its decision, but declined to follow his recommendation to dismiss the complaint. The Board expressly held that § 8(c) did not immunize petitioners' conduct from the proscriptions of § 8(b)(4)(A). 82 N.L.R.B. 1028. It ordered petitioners to—'Cease and desist from inducing or encouraging the employees of Nicholas Deltorto or any employer, by picketing or related conduct, to engage in a strike or a concerted refusal in the course of their employment to perform any services, where an object thereof is to force or require Giorgi Construction Co. or any other employer or person to cease doing business with Samuel Langer.' Id., at 1030. 8 Petitioners asked the United States Court of Appeals, under § 10(f),4 to review and set aside that order. The Board answered and asked enforcement of it. With one judge dissenting, the court below ordered enforcement. 181 F.2d 34. We granted certiorari. 340 U.S. 902, 71 S.Ct. 278. See National Labor Relations Board v. Denver Building and Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943. 9 1. Petitioners contest the jurisdiction of the Board on the ground of the insufficiency of the effect of the actions complained of upon interstate commerce. The facts, which were found in detail in the intermediate report, approved by the Board and upheld by the court below, are in our opinion sufficient to sustain that jurisdiction on the grounds stated in the Denver case, 341 U.S. 675, 71 S.Ct. 943. In addition, the contractor and both subcontractors in the instant case had their principal places of business in New York. The performance of their contractual obligations on this project in Connecticut accordingly emphasizes the interstate movement of the services and materials which they here supplied. 10 2. The secondary character of the activities here complained of and their objectives also come within the pattern of the Denver case. In the instant case, a labor dispute had been pending for some time between Langer and the Electricians Union, but no demands were made upon him directly by either of petitioners in connection with this project. There are no findings that the picketing was aimed at Langer to force him to employ union workmen on this job. On the contrary, the findings demonstrate that the picketing was directed at Deltorto's employees to induce them to strike and thus force Deltorto, the carpentry subcontractor, to force Giorgi, the general contractor, to terminate Langer's electrical subcontract. 11 3. The Denver case also covers the point that it was sufficient that an objective of the picketing, although not necessarily the only objective of the picketing, was to force Giorgi to terminate Langer's uncompleted contract and thus cease doing business with him on the project. 12 4. The principal feature of the instant case, not squarely covered by the Denver case, is that there is no finding here that the picketing and other activities of petitioners were mere signals in starting and stopping a strike in accordance with by-laws or other controlling practices of the Electricians and Carpenters Unions. The complaint here is not that petitioners, like the Trades Council in the Denver case, themselves engaged in or called a strike of Deltorto's carpenters in order to force the general contractor to cease doing business with the electrical subcontractor. Here the complaint is that petitioners, by peaceful picketing, rather than by prearranged signal, induced or encouraged the employees of Deltorto to strike (or to engage in a concerted refusal to perform any services for Deltorto) in the course of their employment to force Giori, the contractor, to cease doing business with Langer, the electrical subcontractor. 13 While in the Denver case we have held that § 8(c)5 had no application to a strike signal, there are other considerations that enter into the decision here. The question here is what effect, if any, shall be given to § 8(c) in its application to peaceful picketing conducted by a labor organization or its agents merely as an inducement or encouragement of employees to engage in a secondary boycott. Petitioners contend that § 8(c) immunizes peaceful picketing, even though the picketing induces a secondary boycott made unlawful by § 8(b)(4). The Board reached the opposite conclusion and the court below approved the Board's order as applied to the facts of this case which it recognized as amounting to 'bare instigation' of the secondary boycott.6 We agree with the Board. 14 a. To exempt peaceful picketing from the condemnation of § 8(b)(4)(A) as a means of bringing about a secondary boycott is contrary to the language and purpose of that section. The words 'induce or encourage' are broad enough to include in them every form of influence and persuasion.7 There is no legislative history to justify an interpretation that Congress by those terms has limited its proscription of secondary boycotting to cases where the means of inducement or encouragement amount to a 'threat of reprisal or force or promise of benefit.' Such an interpretation would give more significance to the means used than to the end sought. If such were the case there would have been little need for § 8(b)(4) defining the proscribed objectives, because the use of 'restraint and coercion' for any purpose was prohibited in this whole field by § 8(b)(1)(A). 15 'Induce or encourage' appear in like context in § 303. The action proscribed by the terms of § 8(b)(4) is made in § 303 the basis for the recovery of damages in a civil action. Because § 8(c) is in terms limited to unfair labor practice proceedings and § 303 refers only to civil actions for damages,8 it seems clear that § 8(c) does not apply to an action under § 303. That section does not mention unfair labor practices through which alone the provisions of § 8(c) can become applicable. If § 8(c) were given the effect which petitioners urge, it would limit § 8(b)(4)(A) so as to give the words 'induce or encourage' a meaning in that section different than they have in § 303. We think that the words are entitled to the same meaning in §§ 8(b)(4) and 303. 16 b. The intended breadth of the words 'induce or encourage' in § 8(b)(4)(A) is emphasized by their contrast with the restricted phrases used in other parts of § 8(b). For example, the unfair labor practice described in § 8(b)(1) is one 'to restrain or coerce' employees; in § 8(b)(2) it is to 'cause or attempt to cause an employer'; in § 8(b)(5) it is to 'require of employees'; and in § 8(b) (6) it is to 'cause or attempt to cause an employer'. The scope of 'induce' and especially of 'encourage' goes beyond each of them. 17 c. To exempt peaceful picketing from the reach of § 8(b)(4) would be to open the door to the customary means of enlisting the support of employees to bring economic pressure to bear on their employer. The Board quickly recognized that to do so would be destructive of the purpose of § 8(b)(4)(A). It said 'To find that peaceful picketing was not thereby proscribed would be to impute to Congress an incongruous intent to permit, through indirection, the accomplishment of an objective which it forbade to be accomplished directly.' United Brotherhood of Carpenters, 81 N.L.R.B. 802, 811. Also—'It was the objective of the unions' secondary activities * * * and not the quality of the means employed to accomplish that objective, which was the dominant factor motivating Congress in enacting that provision. * * * In these circumstances, to construe Section 8(b)(4)(A) as qualified by Section 8(c) would practically vitiate its underlying purpose and amount to imputing to Congress an unrealistic approach to the problem.' (Emphasis in original.) Id., at 812. 18 The legislative history does not sustain a congressional purpose to outlaw secondary boycotts under § 8(b)(4) and yet in effect to sanction them under § 8(c). 19 d. We find no indication that Congress thought that the kind of picketing and related conduct which was used in this case to induce or encourage a strike for an unlawful object was any less objectionable than engaging directly in that strike. The court below, after finding that there was 'bare instigation' here rather than an appeal to reason by 'the expressing of any views, argument, or opinion,' traced the development of the doctrine that he who provokes or instigates a wrong makes himself a party to it. That court then reached the conclusion that it is 'highly unlikely that by § 8(c) Congress meant to abolish a doctrine, so deeply embedded in our civil and criminal law.' 181 F.2d at page 39. 20 e. The remedial function of § 8(c) is to protect noncoercive speech by employer and labor organization alike in furtherance of a lawful object. It serves that purpose adequately without extending its protection to speech or picketing in furtherance of unfair labor practices such as are defined in § 8(b)(4). The general terms of § 8(c) appropriately give way to the specific provisions of § 8(b)(4). 21 5. The prohibition of inducement or encouragement of secondary pressure by § 8(b)(4)(A) carries no unconstitutional abridgment of free speech. The inducement or encouragement in the instant case took the form of picketing followed by a telephone call emphasizing its purpose. The constitutionality of § 8(b)(4)(A) is here questioned only as to its possible relation to the freedom of speech guaranteed by the First Amendment. This provision has been sustained by several Courts of Appeals.9 The substantive evil condemned by Congress in § 8(b)(4) is the secondary boycott and we recently have recognized the constitutional right of states to proscribe picketing in furtherance of comparably unlawful objectives.10 There is no reason why Congress may not do likewise. 22 6. Petitioners object to the breadth of the Board's order as stated in 82 N.L.R.B. at 1030, supra, 341 U.S. 698—699, 71 S.Ct. 957. They contend that its language prohibits inducement not only of employees of Deltorto but also the inducement of employees of any other employer to strike, where an object thereof is to force Giorgi or any other employer or person to cease doing business with Langer. To confine the order solely to secondary pressure through Giorgi or Deltorto would leave Langer and other employers who do business with him exposed to the same type of pressure through other comparable channels. The order properly enjoins petitioners from exerting this pressure upon Langer, through other employers, as well as through Giorgi and Deltorto. We may well apply here the principle stated in International Salt Co. v. United States, 332 U.S. 392, 400, 68 S.Ct. 12, 17, 92 L.Ed. 20: 'When the purpose to restrain trade appears from a clear violation of law, it is not necessary that all of the untraveled roads to that end be left open and that only the worn one be closed.' And see United States v. United States Gypsum Co., 340 U.S. 76, 90, 71 S.Ct. 160, 170. 23 The judgment of the Court of Appeals accordingly is affirmed. 24 Affirmed. 25 Mr. Justice REED, Mr Justice DOUGLAS and Mr. Justice JACKSON would reverse the judgment of the Court of Appeals. 1 61 Stat. 140—141, 29 U.S.C. (Supp. III) § 158(b)(4)(A), 29 U.S.C.A. § 158(b)(4)(A). For text see National Labor Relations Board v. Denver Building and Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, note 1. 2 The complaint referred originally not only to the unfair labor practice here considered but also to coercion in violation of § 8(b)(1)(A), and to threats of action addressed to other employers. Those charges were dismissed by the Board and are not before us. 3 61 Stat. 149—150, 29 U.S.C. (Supp. III) § 160(l), 29 U.S.C.A. § 160(l). For text see National Labor Relations Board v. Denver Building and Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, note 10. 4 61 Stat. 148—149, 29 U.S.C. (Supp. III) § 160(f), 29 U.S.C.A. § 160(f). 5 'The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.' 61 Stat. 142, 29 U.S.C. (Supp. III) § 158(c), 29 U.S.C.A. § 158(c). 6 This issue is extensively reviewed and determined in favor of the view that § 8(c) does not immunize otherwise unfair labor practice against § 8(b)(4) (A) in United Brotherhood of Carpenters, 81 N.L.R.B. 802, 807—816. In affirming that conclusion the Court of Appeals for the Tenth Circuit said: 'They established a picket at the building project of Klassen. And they placed Klassen on a so-called blacklist and gave wide circulation of the fact among those particularly interested in the building industry, all for the purpose of compelling Klassen to cease doing business with Wadsworth. There is nothing in the language or legislative history of section 8(c) which indicates persuasively a Congressional intent to create an asylum of immunity from the proscription of section 8(b)(4)(A) for acts and conduct of that kind.' National Labor Relations Board v. United Brotherhood of Carpenters, 184 F.2d 60, 62. Petition for certiorari was filed in this Court and action on the petition was withheld pending decision of the instant cases. The United Brotherhood of Carpenters filed a brief as amicus curiae in connection with the hearings of these cases and the petition of certiorari is this day being denied. 341 U.S. 947, 71 S.Ct. 1011. See also, United Brotherhood of Carpenters v. Sperry, 10 Cir., 170 F.2d 863, 868—869; Printing Specialties Union, 82 N.L.R.B. 271; Bricklayers Union, 82 N.L.R.B. 228; Local 1796, United Brotherhood of Carpenters, 82 N.L.R.B. 211; Dennis, The Boycott Under the Taft-Hartley Act, N.Y.U. Third Annual Conference on Labor (1950), 367, 382—386. 7 Induce: '1. To lead on; to influence; to prevail on; to move by persuasion or influence.' Encourage: '1. To give courage to; to inspire with courage, spirit, or hope; to raise the confidence of; to animate; hearten; * * *. '2. To embolden, incite, or induce as by inspiration, recommendation, etc., hence, to advise; * * *. '3. To give help or patronage to, as an industry; to foster; * * *.' Webster's New Int'l Dict., Unabridged (2d ed. 1945). 8 'Sec. 303. (a) It shall be unlawful, for the purposes of this section only, in an industry or activity affecting commerce, for any labor organization to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is— '(1) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; '(b) Whoever shall be injured in his business or property by reason of any violation of subsection (a) may sue therefor in any district court of the United States subject to the limitations and provisions of section 301 (hereof) without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit.' 61 Stat. 158—159, 29 U.S.C. (Supp. III) § 187, 29 U.S.C.A. § 187. 9 See National Labor Relations Board v. United Brotherhood of Carpenters, 10 Cir., 184 F.2d 60, 62, certiorari denied this day as No. 387, 341 U.S. 947, 71 S.Ct. 1011; National Labor Relations Board v. Local 74, United Brotherhood of Carpenters, 6 Cir., 181 F.2d 126, 132, affirmed as No. 85, 341 U.S. 707, 71 S.Ct. 966; National Labor Relations Board v. Wine, Liquor & Distillery Workers Union, 2 Cir., 178 F.2d 584, 587—588, 16 A.L.R.2d 762; Printing Specialties and Paper Converters Union v. Le Baron, 9 Cir., 171 F.2d 331, 334—335; United Brotherhood of Carpenters v. Sperry, 10 Cir., 170 F.2d 863, 868—869. See also, as to § 8(b)(4)(C), Douds v. Local 1250, Retail Wholesale Dept. Store Union, 2 Cir., 170 F.2d 700, 701. 10 See Building Service Employees International Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045; International Brotherhood of Teamsters v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995; Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834.

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341 U.S. 651 71 S.Ct. 937 95 L.Ed. 1253 COLLINS et al.v.HARDYMAN et al. No. 217. Argued Jan. 8, 9, 1951. Decided June 4, 1951. Mr. Aubrey N. Irwin, Glendale, Cal., for petitioners. Messrs. A. L. Wirin, Loren Miller, Los Angeles, Cal., for respondents. Mr. Justice JACKSON delivered the opinion of the Court. 1 This controversy arises under 8 U.S.C. § 47(3), 8 U.S.C.A. § 47(3), which provides civil remedies for certain conspiracies.1 A motion to dismiss the amended complaint raises the issue of its sufficiency and, of course, requires us to accept its well-pleaded facts as the hypothesis for decision. 2 Its essential allegations are that plaintiffs are citizens of the United States, residents of California, and members or officers of a voluntary association or political club organized for the purpose of participating in the election of officers of the United States, petitioning the national government for redress of grievances, and engaging in public meetings for the discussion of national public issues. It planned a public meeting for November 14, 1947, on the subject, 'The Cominform and the Marshall Plan,' at which it was intended to adopt a resolution opposing said Marshall Plan, to be forwarded, by way of a petition for the redress of grievances, to appropriate federal officials. 3 The conspiracy charged as being within the Act is that defendants, with knowledge of the meeting and its purposes, entered into an agreement to deprive the plaintiffs, 'as citizens of the United States, of privileges and immunities, as citizens of the United States, of the rights peaceably to assemble for the purpose of discussing and communicating upon national public issues * * *.' And further, 'to deprive the plaintiffs as well as the members of said club, as citizens of the United States, of equal privileges and immunities under the laws of the United States * * *.' This is amplified by allegations that defendants knew of many public meetings in the locality, at which resolutions were adopted by groups with whose opinions defendants agreed, and with which defendants did not interfere or conspire to interfere. 'With respect to the meeting aforesaid on November 14, 1947, however, the defendants conspired to interfere with said meeting for the reason that the defendants opposed the views of the plaintiff. * * *.' 4 In the effort to bring the case within the statute, the pleader also alleged that defendants conspired 'to go in disguise upon the highways' and that they did in fact go in disguise 'consisting of the unlawful and unauthorized wearing of caps of the American Legion.' The District Court disposed of this part of the complaint by holding that wearing such headgear did not constitute the disguise or concealment of identity contemplated by the Act. Plaintiffs thereupon abandoned that part of the complaint and do not here rely upon it to support their claims. 5 The complaint then separately sets out the overt acts of injury and damage relied upon to meet the requirements of the Act. To carry out the conspiracy, it is alleged, defendants proceeded to the meeting place and, by force and threats of force, did assault and intimidate plaintiffs and those present at the meeting and thereby broke up the meeting, thus interfering with the right of the plaintiffs to petition the Government for redress of grievances. Both compensatory and punitive damages are demanded. 6 It is averred that the cause of action arises under the statute cited and under the Constitution of the United States. But apparently the draftsman was scrupulously cautious not to allege that it arose under the Fourteenth Amendment, or that defendants had conspired to deprive plaintiffs of rights secured by that Amendment, thus seeking to avoid the effect of earlier decisions of this Court in Fourteenth Amendment cases. 7 The complaint makes no claim that the conspiracy or the overt acts involved any action by state officials, or that defendants even pretended to act under color of state law. It is not shown that defendants had or claimed any protection or immunity from the law of the State, or that they in fact enjoyed such because of any act or omission by state authorities. Indeed, the trial court found that the acts alleged are punishable under the laws of California relating to disturbance of the peace, assault, and trespass, and are also civilly actionable.2 8 The District Judge held that the statute does not and cannot constitutionally afford redress for invasions of civil rights at the hands of individuals, but can only be applied to injuries to civil rights by persons acting pursuant to or under color of state law.3 In reversing the District Court's dismissal of the complaint, the Court of Appeals for the Ninth Circuit held otherwise, one judge dissenting.4 The Court of Appeals for the Eighth Circuit, in Love v. Chandler, 124 F.2d 785, has ruled in accord with the District Judge and the dissenting Court of Appeals Judge here.5 To resolve the conflict, we granted certiorari.6 9 This statutory provision has long been dormant. It was introduced into the federal statutes by the Act of April 20, 1871, entitled, 'An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.'7 The Act was among the last of the reconstruction legislation to be based on the 'conquered province' theory which prevailed in Congress for a period following the Civil War. This statute, without separability provisions, established the civil liability with which we are here concerned as well as other civil liabilities, together with parallel criminal liabilities. It also provided that unlawful combinations and conspiracies named in the Act might be deemed rebellions, and authorized the President to employ the militia to suppress them. The President was also authorized to suspend the privilege of the writ of habeas corpus. It prohibited any person from being a federal grand or petit juror in any case arising under the Act unless he took and subscribed an oath in open court 'that he has never, directly or indirectly, counselled, advised, or voluntarily aided any such combination or conspiracy'. Heavy penalties and liabilities were laid upon any person who, with knowledge of such conspiracies, aided them or failed to do what he could to suppress them. 10 The Act, popularly known as the Ku Klux Act, was passed by a partisan vote in a highly inflamed atmosphere. It was preceded by spirited debate which pointed out its grave character and susceptibility to abuse, and its defects were soon realized when its execution brought about a severe reaction.8 11 The provision establishing criminal conspiracies in language indistinguishable from that used to describe civil conspiracies came to judgment in United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290.9 It was held unconstitutional. This decision was in harmony with that of other important decisions during that period10 by a Court, every member of which had been appointed by President Lincoln, Grant, Hayes, Garfield or Arthur—all indoctrinated in the cause which produced the Fourteenth Amendment, but convinced that it was not to be used to centralize power so as to upset the federal system. 12 While we have not been in agreement as to the interpretation and application of some of the post-Civil War legislation,11 the Court recently unanimously declared, through the Chief Justice: 13 'Since the decision of this Court in the Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.'12 14 And Mr. Justice DOUGLAS, dissenting, has quoted with approval from the Cruikshank case, "The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it * * * add anything to the rights which one citizen has under the Constitution against another.' 92 U.S. (at) p(ages) 554—555, 23 L.Ed. 588.' And "The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty." He summed up: 'The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals. * * *'13 15 It is apparent that, if this complaint meets the requirements of this Act, it raises constitutional problems of the first magnitude that, in the light of history, are not without difficulty. These would include issues as to congressional power under and apart from the Fourteenth Amendment, the reserved power of the States, the content of rights derived from national as distinguished from state citizenship, and the question of separability of the Act in its application to those two classes of rights. The latter question was long ago decided adversely to the plaintiffs. Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 763, 32 L.Ed. 766. Before we embark upon such a constitutional inquiry, it is necessary to satisfy ourselves that the attempt to allege a cause of action within the purview of the statute has been successful. 16 The section under which this action is brought falls into two divisions. The forepart defines conspiracies that may become the basis of liability, and the latter portion defines overt acts necessary to consummate the conspiracy as an actionable wrong. While a mere unlawful agreement or conspiracy may be made a federal crime, as it was at common law,14 this statute does not make the mere agreement or understanding for concerted action which constitutes the forbidden conspiracy an actionable wrong unless it matures into some action that inflicts injury. That, we think, is the significance of the second division of the section. 17 The provision with reference to the overt act will bear repeating, with emphasis supplied: '* * * (I)n any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages * * *.' 18 In the light of the dictum in United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588, we assume, without deciding, that the facts pleaded show that defendants did deprive plaintiffs 'of having and exercising' a federal right which, provided the defendants were engaged in a 'conspiracy set forth in this section,' would bring the case within the Act. 19 The 'conspiracy' required is differently stated from the required overt act and we think the difference is not accidental but significant. Its essentials, with emphasis supplied, are that two or more persons must conspire (1) for the purpose of depriving any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the law; or (2) for the purpose of preventing or hindering the constituted authorities from giving or securing to all persons the equal protection of the laws; or (3) to prevent by force, intimidation, or threat, any citizen entitled to vote from giving his support or advocacy in a legal manner toward election of an elector for President or a member of Congress; or (4) to injure any citizen in person or property on account of such support or advocacy. There is no claim that any allegation brings this case within the provisions that we have numbered (2), (3), and (4), so we may eliminate any consideration of those categories. The complaint is within the statute only if it alleges a conspiracy of the first described class. It is apparent that this part of the Act defines conspiracies of a very limited character. They must, we repeat, be 'for the purpose of depriving * * * of the equal protection of the laws, or of equal privileges and immunities under the laws'. (Italics supplied.) Passing the argument, fully developed in the Civil Rights Cases, that an individual or group of individuals not in office cannot deprive anybody of constitutional rights, though they may invade or violate those rights, it is clear that this statute does not attempt to reach a conspiracy to deprive one of rights, unless it is a deprivation of equality, of 'equal protection of the law,' or of 'equal privileges and immunities under the law'. That accords with the purpose of the Act to put the lately freed Negro on an equal footing before the law with his former master. The Act apparently deemed that adequate and went no further. 20 What we have here is not a conspiracy to affect in any way these plaintiffs' equality of protection by the law, or their equality of privileges and immunities under the law. There is not the slightest allegation that defendants were conscious of or trying to influence the law, or were endeavoring to obstruct or interfere with it. The only inequality suggested is that the defendants broke up plaintiffs' meeting and did not break up meetings of others with whose sentiments they agreed. To be sure, this is not equal injury, but it is no more a deprivation of 'equal protection' or of 'equal privileges and immunities' than it would be for one to assault one neighbor without assaulting them all, or to libel some persons without mention of others. Such private discrimination is not inequality before the law unless there is some manipulation of the law or its agencies to give sanction or sanctuary for doing so. Plaintiffs' rights were certainly invaded, disregarded and lawlessly violated, but neither their rights nor their equality of rights under the law have been, or were intended to be, denied or impaired. Their rights under the laws and to protection of the laws remain untouched and equal to the rights of every other Californian, and may be vindicated in the same way and with the same effect as those of any other citizen who suffers violence at the hands of a mob. 21 We do not say that no conspiracy by private individuals could be of such magnitude and effect as to work a deprivation of equal protection of the laws, or of equal privileges and immunities under laws. Indeed, the post Civil War Ku Klux Klan, against which this Act was fashioned, may have, or may reasonably have been thought to have, done so. It is estimated to have had a membership of around 550,000, and thus to have included 'nearly the entire adult male white population of the South.'15 It may well be that a conspiracy, so farflung and embracing such numbers, with a purpose to dominate and set at naught the 'carpetbag' and 'scalawag' governments of the day, was able effectively to deprive Negroes of their legal rights and to close all avenues of redress or vindication, in view of the then disparity of position, education and opportunity between them and those who made up the Ku Klux Klan. We do not know. But here nothing of that sort appears. We have a case of a lawless political brawl, precipitated by a handful of while citizens against other white citizens. California courts are open to plaintiffs and its laws offer redress for their injury and vindication for their rights. 22 We say nothing of the power of Congress to authorize such civil actions as respondents have commenced or otherwise to redress such grievances as they assert. We think that Congress has not, in the narrow class of conspiracies defined by this statute, included the conspiracy charged here. We therefore reach no constitutional questions. The facts alleged fall short of a conspiracy to alter, impair or deny equality of rights under the law, though they do show a lawless invasion of rights for which there are remedies in the law of California. It is not for this Court to compete with Congress or attempt to replace it as the Nation's law-making body. 23 The judgment of the Court of Appeals is reversed. 24 Reversed. 25 Mr. Justice BURTON, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS concur, dissenting. 26 I cannot agree that the respondents in their complaint have failed to state a cause of action under R.S. § 1980(3), 8 U.S.C. § 47(3), 8 U.S.C.A. § 47(3). 27 The right alleged to have been violated is the right to petition the Federal Government for a redress of grievances. This right is expressly recognized by the First Amendment and this Court has said that 'The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.' United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588, and see In re Quarles and Butler, 158 U.S. 532, 535, 15 S.Ct. 959, 960, 39 L.Ed. 1080. The source of the right in this case is not the Fourteenth Amendment. The complaint alleges that petitioners 'knowingly' did not interfere with the 'many public meetings' whose objectives they agreed with, but that they did conspire to break up respondents' meeting because petitioners were opposed to respondents' views, which were expected to be there expressed. Such conduct does not differ materially from the specific conspiracies which the Court recognizes that the statute was intended to reach. 28 The language of the statute refutes the suggestion that action under color of state law is a necessary ingredient of the cause of action which it recognizes. R.S. § 1980(3) speaks of 'two or more persons in any State or Territory' conspiring. That clause is not limited to state officials. Still more obviously, where the section speaks of persons going 'in disguise on the highway * * * for the purpose of depriving * * * any person or class of persons of the equal protection of the laws,' it certainly does not limit its reference to actions of that kind by state officials. When Congress, at this period, did intend to limit comparable civil rights legislation to action under color of state law, it said so in unmistakable terms. In fact, R.S. § 1980(3) originally was § 2 of the Act of April 20, 1871, and § 1 of that same Act said 'That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject * * * any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall * * * be liable to the party injured * * *.' (Emphasis added.) 17 Stat. 13. 29 Congress certainly has the power to create a federal cause of action in favor of persons injured by private individuals through the abridgment of federally created constitutional rights. It seems to me that Congress has done just this in R.S. § 1980(3). This is not inconsistent with the principle underlying the Fourteenth Amendment. That amendment prohibits the respective states from making laws abridging the privileges or immunities of citizens of the United States or denying to any person within the jurisdiction of a state the equal protection of the laws. Cases holding that those clauses are directed only at state action are not authority for the contention that Congress may not pass laws supporting rights which exist apart from the Fourteenth Amendment. 30 Accordingly, I would affirm the judgment of the Court of Appeals. 1 17 Stat. 13, 8 U.S.C. § 47(3), 8 U.S.C.A. § 47(3) reads: 'If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.' This paragraph should be read in the context of other paragraphs of the same section, and note should also be taken of 8 U.S.C. § 43, 8 U.S.C.A. § 43, which reads: '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 proceeding for redress.' 2 The opinion of District Judge Yankwich for this cites in his notes, 80 F.Supp. 501, 510: '39. Cal.Penal Code, Section 415 (disturbance of the peace of neighborhood or person) Section 403 (disturbance of public meetings). '40. Cal.Penal Code, Section 602(j) (illegal entry for the purpose of injuring property or property rights or interfering or obstructing lawful business of another). '41. Cal.Penal Code, Sections 240, 241 (assault); sections 242, 243 (battery). Among the corresponding civil sections relating to civil remedies are California Civil Code, Section 43 (guarantee against personal bodily harm or restraint); Government Code, Section 241 (defining as citizens all persons born or residing within the state); California Code of Civil Procedure, Section 338(3) (section 338(2)) (action for trespass to real property may be brought within three years); section 340(3) (action for assault and battery may be brought within one year). And for the state civil rights provisions, see California Civil Code, Sections 51—54.' 3 80 F.Supp. 501, 510. 4 183 F.2d 308. 5 Other recent cases involving the statute are Viles v. Symes, 10 Cir., 129 F.2d 828; Robeson v. Fanelli, D.C., 94 F.Supp. 62; and Ferrer v. Fronton Exhibition Co., 5 Cir., 188 F.2d 954. 6 340 U.S. 809, 71 S.Ct. 63. 7 17 Stat. 13. 8 The background of this Act, the nature of the debates which preceded its passage, and the reaction it produced are set forth in Bowers, The Tragic Era, 340—348. 9 R.S. § 5519, under which the prosecution was brought, provided: 'If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, and person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; each of such persons shall be punished by a fine of not less than five hundred dollars nor more than five thousand dollars, or by imprisonment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprisonment.' 10 Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394; United States v. Reese, 92 U.S. 214, 23 L.Ed. 563; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; In re Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. 11 Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. 12 Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161. 13 United States v. Williams, 341 U.S. 70, 92, 71 S.Ct. 581, 593. 14 Nash v. United States, 229 U.S. 373, 378, 33 S.Ct. 780, 782, 57 L.Ed. 1232; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 252, 60 S.Ct. 811, 857, 84 L.Ed. 1129. 15 8 Encyc. Soc. Sci., 606, 607.

12

341 U.S. 593 71 S.Ct. 971 95 L.Ed. 1199 TIMKEN ROLLER BEARING CO.v.UNITED STATES. No. 352. Argued April 24, 1951. Decided June 4, 1951. Messrs. Luther Day, Cleveland, Ohio, John G. Ketterer, Canton, Ohio, for appellant. Mr. W. Perry Epes, Alexandria, Va., for appellee. Mr. Justice BLACK delivered the opinion of the Court. 1 The United States brought this civil action to prevent and restrain violations of the Sherman Act1 by appellant, Timken Roller Bearing Co., an Ohio corporation. The complaint charged that appellant, in violation of §§ 1 and 3 of the Act,2 combined, conspired and acted with British Timken, Ltd. (British Timken), and Societe Anonyme Francaise Timken (French Timken) to restrain interstate and foreign commerce by eliminating competition in the manufacture and sale of antifriction bearings in the markets of the world. After a trial of more than a month the District Court made detailed findings of fact which may be summarized as follows: 2 As early as 1909 appellant and British Timken's predecessor had made comprehensive agreements providing for a territorial division of the world markets for antifriction bearings. These arrangements were somewhat modified and extended in 1920, 1924 and 1925. Again in 1927 the agreements were substantially renewed in connection with a transaction by which appellant and one Dewar, an English businessman, cooperated in purchasing all the stock of British Timken. Later some British Timken stock was sold to the public with the result that appellant now holds about 30% of the outstanding shares while Dewar owns about 24%.3 In 1928 appellant and Dewar organized French Timken and since that date have together owned all the stock in the French company. Beginning in that year, appellant, British Timken and French Timken have continuously kept operative "business agreements" regulating the manufacture and sale of antifriction bearings by the three companies and providing for the use by the British and French corporations of the trademark "Timken."4 Under these agreements the contracting parties have (1) allocated trade territories among themselves; (2) fixed prices on products of one sold in the territory of the others; (3) cooperated to protect each other's markets and to eliminate outside competition; and (4) participated in cartels to restrict imports to, and exports from, the United States. 3 On these findings, the District Court concluded that appellant had violated the Sherman Act as charged, and entered a comprehensive decree designed to bar future violations. 83 F.Supp. 284. The case is before us on appellant's direct appeal under 15 U.S.C. § 29, 15 U.S.C.A. § 29. 4 Although appellant has indiscriminately challenged the District Court's judgment and decree in over 200 separate assignments of error, the real grounds relied on for reversal are only a few in number.5 In the first place, appellant contends that most of the District Court's material findings of fact are without evidential support, that they 'ignore or fail properly to evaluate' evidence supporting appellant's position, and that it was error for the court to refuse to make additional findings. For the most part, this shotgun approach is actually only a dispute as to the proper inferences to be drawn from the evidence in the record;6 in effect, it is an invitation for us to try the case de novo. This Court must decline such an invitation just as it does when the Government makes the same request. United States v. Yellow Cab Co., 338 U.S. 338, 70 S.Ct. 177, 94 L.Ed. 150. In the present case, the trial judge after a patient hearing carefully analyzed the evidence in an opinion prepared with obvious care.7 Appellant's lengthy brief has failed to establish that there was error in making any crucial, or even important, ultimate or subsidiary finding. Since we cannot say the findings are 'clearly erroneous,' we accept them. Fed.Rules Civ.Proc., 52(a), 28 U.S.C.A. 5 Appellant next contends that the restraints of trade so clearly revealed by the District Court's findings can be justified as 'reasonable,' and therefore not in violation of the Sherman Act, because they are 'ancillary' to allegedly 'legal main transactions,' namely, (1) a 'joint venture' between appellant and Dewar, and (2) an exercise of appellant's right to license the trademark 'Timken.' 6 We cannot accept the 'joint venture' contention. That the trade restraints were merely incidental to an otherwise legitimate 'joint venture' is, to say the least, doubtful. The District Court found that the dominant purpose of the restrictive agreements into which appellant, British Timken and French Timken entered was to avoid all competition either among themselves or with others. Regardless of this, however, appellant's argument must be rejected. Our prior decisions plainly establish that agreements providing for an aggregation of trade restraints such as those existing in this case are illegal under the Act. Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 213, 71 S.Ct. 259, 261; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223—224 and note 59, 60 S.Ct. 811, 844—845, 84 L.Ed. 1129; United States v. National Lead Co. D.C., 63 F.Supp. 513, affirmed 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077; United States v. American Tobacco, 221 U.S. 106, 180—184, 31 S.Ct. 632, 648—650, 55 L.Ed. 663; Associated Press v. United States, 326 U.S. 1, 15, 65 S.Ct. 1416, 1422, 89 L.Ed. 2013. See also United States v. Aluminum Co. of America, 2 Cir., 148 F.2d 416, 439—445. The fact that there is common ownership or control of the contracting corporations does not liberate them from the impact of the antitrust laws. E.g., Kiefer-Stewart Co. v. Seagram & Sons, supra 340 U.S. at page 215, 71 S.Ct. at page 262. Nor do we find any support in reason or authority for the proposition that agreements between legally separate persons and companies to suppress competition among themselves and others can be justified by labeling the project a 'joint venture.' Perhaps every agreement and combination to restrain trade could be so labeled. 7 Nor can the restraints of trade be justified as reasonable steps taken to implement a valid trademark licensing system, even if we assume with appellant that it is the owner of the trademark 'Timken' in the trade areas allocated to the British and French corporations. Appellant's premise that the trade restraints are only incidental to the trademark contracts is refuted by the District Court's finding that the 'trade mark provisions (in the agreements) were subsidiary and secondary to the central purpose of allocating trade territories.' Furthermore, while a trademark merely affords protection to a name, the agreements in the present case went far beyond protection of the name 'Timken' and provided for control of the manufacture and sale of antifriction bearings whether carrying the mark or not. A trademark cannot be legally used as a device for Sherman Act violation. Indeed, the Trade Mark Act of 1946 itself penalizes use of a mark 'to violate the antitrust laws of the United States.'8 8 We also reject the suggestion that the Sherman Act should not be enforced in this case because what appellant has done is reasonable in view of current foreign trade conditions. The argument in this regard seems to be that tariffs, quota restrictions and the like are now such that the export and import of antifriction bearings can no longer be expected as a practical matter; that appellant cannot successfully sell its American-made goods abroad; and that the only way it can profit from business in England, France and other countries is through the ownership of stock in companies organized and manufacturing there. This position ignores the fact that the provisions in the Sherman Act against restraints of foreign trade are based on the assumption, and reflect the policy, that export and import trade in commodities is both possible and desirable. Those provisions of the Act are wholly inconsistent with appellant's argument that American business must be left free to participate in international cartels, that free foreign commerce in goods must be sacrificed in order to foster export of American dollars for investment in foreign factories which sell abroad. Acceptance of appellant's view would make the Sherman Act a dead letter insofar as it prohibits contracts and conspiracies in restraint of foreign trade. If such a drastic change is to be made in the statute, Congress is the one to do it. 9 Finally, appellant attacks the District Court's decree as being too broad in scope. The decree enjoins continuation or repetition of the conduct found illegal. This is clearly correct. Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 461, 60 S.Ct. 618, 627, 84 L.Ed. 852. It also contains certain other restraining provisions which were within the court's discretion because 'relief, to be effective, must go beyond the narrow limits of the proven violation.' United States v. United States Gypsum Co., 340 U.S. 76, 90, 71 S.Ct. 160, 170. The most vigorous objection, however, is made to those portions of the decree relating to divestiture of appellant's stockholdings and other financial interests in British and French Timken. 10 Mr. Justice DOUGLAS, Mr. Justice MINTON and I believe that the decree properly ordered divestiture. Our views on this point are as follows: Appellant's interests in the British and French companies were obtained as part of a plan to promote the illegal trade restraints. If not severed, the intercompany relationships will provide in the future, as they have in the past, the temptation and means to engage in the prohibited conduct. These considerations alone should be enough to support the divestiture order. United States v. Paramount Pictures, Inc., 334 U.S. 131, 152—153, 68 S.Ct. 915, 926—927, 92 L.Ed. 1260; United States v. National Lead Co., 332 U.S. 319, 363, 67 S.Ct. 1634, 1655, 91 L.Ed. 2077. But there are other considerations as well. The decree should not be overturned unless we can say that the District Court abused its discretion. Absent divestiture, it is difficult to see where other parts of the decree forbidding trade restraints would add much to what the Sherman Act by itself already prohibits.9 And obviously the most effective way to suppress further Sherman Act violations is to end the inter-corporate relationship which has been the core of the conspiracy. For these reasons, Mr. Justice DOUGLAS, Mr. Justice MINTON and I cannot say that the District Court abused its discretion in ordering divestiture.10 11 Nevertheless, a majority of this Court, for reasons set forth in other opinions filed in this case, believe that divestiture should not have been ordered by the District Court. Therefore, it becomes necessary to strike from the decree §§ VIII, IVB, and the phrase 'or B' in § IVC. As so modified, the judgment of the District Court is affirmed. 12 It is so ordered. 13 Judgment modified and affirmed. 14 Mr. Justice BURTON and Mr. Justice CLARK took no part in the consideration or decision of this case. 15 Mr. Justice REED, with whom The CHIEF JUSTICE joins, concurring. 16 It seems to me there can be no valid objection to that part of the opinion which approves the finding of the District Court that the Timken Roller Bearing Company has violated §§ 1 and 3 of the Sherman Act. It may seem strange to have a conspiracy for the division of territory for marketing between one corporation and another in which it has a large or even a major interest, but any other conclusion would open wide the doors for violation of the Sherman Act at home and in foreign fields. My disagreement with the opinion is based on the suggested requirement that American Timken divest itself of all interest in British Timken and French Timken as required by paragraph VIII of the decree set out below.1 My reasons for this disagreement follow. 17 There are no specific statutory provisions authorizing courts to employ the harsh remedy of divestiture in civil proceedings to restrain violations of the Sherman Act. Fines and imprisonment may follow criminal convictions, 15 U.S.C. § 1, 15 U.S.C.A. § 1, and divestiture of property has been used in decrees, not as punishment, but to assure effective enforcement of the laws against restraint of trade.2 18 Since divestiture is a remedy to restore competition and not to punish those who restrain trade, it is not to be used indiscriminately, without regard to the type of violation or whether other effective methods, less harsh, are available. That judicial restraint should follow such lines is exemplified by our recent rulings in United States v. National Lead Co., 332 U.S. 319, pages 348—353, 67 S.Ct. 1634, pages 1647—1650, 91 L.Ed. 2077, where we approved divestiture of some properties belonging to the conspirators and denied it as to others. While the decree here does not call for confiscation, it does call for divestiture. I think that requirement is unnecessary.3 19 In this case the prohibited plan grew out of the effort to implement a patent monopoly. The difficulties of cultivating a foreign market for our manufactured goods obviously entered into creation of the British and French companies so as to enjoy a right of distribution into areas where otherwise restrictions, because of tariffs, quotas and exchange, might be expected. We fail to see such propensity toward restraint of trade as is evidenced in the Crescent case. 20 What we have is an American corporation, dominant in the field of tapered roller bearings, producing between 70 and 80 percent of the American output. In 1947 its gross sales were over $77,000,000. This is a distinctive type of bearing, competing successfully for adoption by industry with other antifriction bearings. Timken produces about 25% of all United States antifriction bearings. As there were no findings of facts tending to show violation of the Sherman Act otherwise than through formal agreements for partition of territory, we assume appellant's conduct was otherwise lawful. 21 In such circumstances, there was, of course, no occasion for the lower court to order any splitting up of a consolidated entity. Cf. Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619; United States v. American Tobacco Co., 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663. There has been no effort to create numerous smaller companies out of Timken so that there will be no dominant individual in the tapered roller bearing field. The American company had had a normal growth and development. Its relations with English and French Timken were close and American Timken had stock and contracts for furthur stock in both foreign companies of value in the development of its foreign business. Such business arrangements should not be destroyed unless necessary to do away with the prohibited evil. 22 An injunction was entered by the District Court to prohibit the continuation of the objectionable contracts. Violation of that injunction would threaten the appellant and its officers with civil and criminal contempt. United States v. Goldman, 277 U.S. 229, 48 S.Ct. 486, 72 L.Ed. 862, and Hill v. U.S. ex rel. Weiner, 300 U.S. 105, 57 S.Ct. 347, 81 L.Ed. 537. The paucity of cases dealing with contempt of Sherman Act injunctions is, I think, an indication of how carefully the decrees are obeyed. The injunction is a far stronger sanction against further violation than the Sherman Act alone. Once in possession of facts showing violation, the Government would obtain a quick and summary punishment of the violator. Furthermore this case remains on the docket for the purpose of 'enforcement of compliance' and 'punishment of violations.' This provision should leave power in the court to enforce divestiture, if the injunction alone fails. Prompt and full compliance with the decree should be anticipated. 23 This Court is hesitant, always, to interfere with the scope of the trial court's decree.4 However, in this case it seems appropriate to indicate my disapproval of the requirement of divestiture and to suggest a direction to the District Court that provisions leading to that result be eliminated from the decree. Such remand would also give opportunity for reconsideration of the changes necessary in the decree because of the remand and the death of Mr. Dewar. 24 In my view such an order should be entered. 25 Mr. Justice FRANKFURTER, dissenting. 26 The force of the reasoning against divestiture in this case fortifies the doubts which I felt about the Government's position at the close of argument and persuades me to associate myself, in substance, with the dissenting views expressed by Mr. Justice JACKSON. Even 'cartel' is not a talismanic word, so as to displace the rule of reason by which breaches of the Sherman Law are determined. Nor is 'division of territory' so self-operating a category of Sherman Law violations as to dispense with analysis of the practical consequences of what on paper is a geographic division of territory. 27 While American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826, presented a wholly different set of facts from those before us, the decision in that case does point to the fact that the circumstances of foreign trade may alter the incidence of what in the setting of domestic commerce would be a clear case of unreasonable restraint of trade. 28 Of course, it is not for this Court to formulate economic policy as to foreign commerce. But the conditions controlling foreign commerce may be relevant here. When as a matter of cold fact the legal, financial, and governmental policies deny opportunities for exportation from this country and importation into it, arrangements that afford such opportunities to American enterprise may not fall under the ban of a fair construction of the Sherman Law because comparable arrangements regarding domestic commerce come within its condemnation. 29 Mr. Justice JACKSON, dissenting. 30 I doubt that it should be regarded as an unreasonable restraint of trade for an American industrial concern to organize foreign subsidiaries, each limited to serving a particular market area. If so, it seems to preclude the only practical means of reaching foreign markets by many American industries. 31 The fundamental issue here concerns a severely technical application to foreign commerce of the concept of conspiracy. It is admitted that if Timken had, within its own corporate organization, set up separate departments to operate plants in France and Great Britain, as well as in the United State, 'that would not be a conspiracy. You must have two entities to have a conspiracy.'1 Thus, although a single American producer, of course, would not compete with itself, either abroad or at home, and could determine prices and allot territories with the same effect as here, that would not be a violation of the Act, because a corporation cannot conspire with itself. Government counsel answered affirmatively the question of the Chief Justice: 'Your theory is that if you have a separate corporation that makes the difference?'2 Thus, the Court applies the well-established conspiracy doctrine that what it would not be illegal for Timken to do alone may be illegal as a conspiracy when done by two legally separate persons. The doctrine now applied to foreign commerce is that foreign subsidiaries organized by an American corporation are 'separate persons,' and any arrangement between them and the parent corporation to do that which is legal for the parent alone is an unlawful conspiracy. I think that result places too much weight on labels. 32 But if we apply the most strict conspiracy doctrine, we still have the question whether the arrangement is an unreasonable restraint of trade or a method and means of carrying on competition in trade. Timken did not sit down with competitors and divide an existing market between them. It has at all times, in all places, had powerful rivals. It was not effectively meeting their competition in foreign markets, and so it joined others in creating a British subsidiary to go after business best reachable through such a concern and a French one to exploit French markets. Of course, in doing so, it allotted appropriate territory to each and none was to enter into competition with the other or with the parent. Since many foreign governments prohibit or handicap American corporations from owning plants, entering into contracts, or engaging in business directly, this seems the only practical way of waging competition in those areas. 33 The philosophy of the Government, adopted by the Court, is that Timken's conduct is conspiracy to restrain trade solely because the venture made use of subsidiaries. It is forbidden thus to deal with and utilize subsidiaries to exploit foreign territories, because 'parent and subsidiary corporations must accept the consequences of maintaining separate corporate entities,'3 and that consequence is conspiracy to restrain trade. But not all agreements are conspiracies and not all restraints of trade are unlawful. In a world of tariffs, trade barriers, empire or domestic preferences, and various forms of parochialism from which we are by no means free, I think a rule that it is restraint of trade to enter a foreign market through a separate subsidiary of limited scope is virtually to foreclose foreign commerce of many kinds. It is one thing for competitors or a parent and its subsidiaries to divide the United States domestic market which is an economic and legal unit; it is another for an industry to recognize that foreign markets consist of many legal and economic units and to go after each through separate means. I think this decision will restrain more trade than it will make free. 1 26 Stat. 209, 15 U.S.C. §§ 1—4, 15 U.S.C.A. §§ 1—4. 2 These sections declare illegal all contracts, combinations or conspiracies in restraint of trade or commerce among the states and territories or with foreign nations. 3 Dewar died while the appeal in this case was pending. See note 10 infra. 4 The most recent of these agreements, which was to have governed the conduct of the parties until 1965, is dated November 28, 1938. 5 Appellant originally attacked the decision below in 206 assignments of error, including 69 alleged errors in the District Court's findings of fact, 26 in its conclusions of law, and 62 based on the court's refusal to make new and additional findings. (Later appellant abandoned 5 of the assignments.) These assignments are unduly repetitious, some are frivolous, and the excessive number obscures the actual grounds on which appellant relies for reversal. As the Government pointed out in its motion to dismiss the appeal, our prior cases justify dismissal in such situations. See Local 167 v. United States, 291 U.S. 293, 296, 54 S.Ct. 396, 397, 78 L.Ed. 804; Phillips & Colby Construction Co. v. Seymour, 91 U.S. 646, 648, 23 L.Ed. 341. We do not take that action, however, since appellant in its brief opposing the Government's motion has sufficiently spelled out the few real objections it raises here. 6 This is well illustrated by the following portion of the 'Summary of Argument' which appears in the appellant's brief: 'The evidence relied upon by the district court as demonstrating conduct of an intentional restraint of trade by the three Timken companies from 1928 on is just as reconcilable with the conduct of a legal joint adventure as with the conduct of a combination for the purpose of suppressing competition and controlling world trade in tapered roller bearings, and therefore the district court's decision to the contrary is clearly erroneous.' Brief for Appellant, pp. 78—79. 7 Appellant claims the District Court's findings of fact and conclusions of law failed to comply with Rule 52(a) of the Federal Rules of Civil Procedure. We think that the opinion below meets all the requirements of the Rule. 8 60 Stat. 427, 439, § 33(b)(7), 15 U.S.C. §§ 1051, 1115(b)(7), 15 U.S.C.A. §§ 1051, 1115(b)(7). The reason for the penalty provision was that 'trade-marks have been misused. * * * have been used in connection with cartel agreements.' 92 Cong.Rec. 7872. 9 We would reject the argument that divestiture is unwise in light of current foreign trade conditions for substantially the same reasons we rejected it in connection with appellant's contention that there was no violation of the Sherman Act. 10 Dewar died while this appeal was pending. Were it not for the present litigation, appellant, under the contracts between it and Dewar, would be entitled to purchase Dewar's interest in British Timken (which would give appellant a 54% stock interest in that corporation); appellant also has a right of first refusal as to Dewar's 50% stock interest in French Timken (which, if exercised, would give appellant 100% ownership of that company). Appellant moved in the District Court to reopen the record to admit evidence of these changed circumstances caused by Dewar's death and for a reconsideration of the divestiture provisions of the decree. The District Court denied the motion. Mr. Justice DOUGLAS, Mr. Justice MINTON and I would hold that this ruling was within its discretion. 1 'VIII. A. Within two years from the date of this judgment, defendant shall divest itself of all stock holdings and other financial interests, direct or indirect, in British Timken and French Timken. Within one year from the date of this judgment, defendant shall present to the Court for its approval a plan for such divestiture. 'B. Defendant is hereby enjoined and restrained, from the date of this judgment, from: '1. Acquiring, directly or indirectly, any ownership interest in (by purchase or acquisition of assets or securities, or through the exercise of any option, or otherwise), or any control over, British Timken or French Timken, or any subsidiary, successor or assign thereof; '2. Exercising any influence or control over the production, sales or other business policies of British Timken or French Timken, or any subsidiary, successor, assign, agent, sales representative, or distributor thereof; '3. Causing, authorizing or knowingly permitting any officer, director, or employee of defendant or its subsidiaries to serve as an officer, director, or employee of British Timken or French Timken or of any subsidiary, successor, assign, agent, sales representative, or distributor thereof.' 2 United States v. Crescent Amusement Co., 323 U.S. 173, 189, 65 S.Ct. 254, 262, 89 L.Ed. 160; United States v. Paramount Pictures, 334 U.S. 131, 166 (Third), 68 S.Ct. 915, 933, 92 L.Ed. 1260; D.C., 85 F.Supp. 881, 895, affirmed sub nom. United States v. Loew's, Inc., 339 U.S. 974, 70 S.Ct. 1031; United States v. Aluminum Co. of America, D.C., 91 F.Supp. 333, 392 (Aluminum Limited) at page 418—419. 3 Cf. Hartford - Empire Co. v. United States, 323 U.S. 386, 413, 65 S.Ct. 373, 387, 89 L.Ed. 322, et seq. 4 See United States v. United States Gypsum Co., 340 U.S. 76, 89, 71 S.Ct. 160, 170. 1 Argument of government counsel reported 19 L.W. 3291 et seq. 2 See note 1, supra. 3 See note 1, supra.

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341 U.S. 609 71 S.Ct. 980 95 L.Ed. 1212 HUGHESv.FETTER et al. No. 355. Argued March 1, 2, 1951. Decided June 4, 1951. Mr. Samuel Goldenberg, Milwaukee, Wis., for appellants. Mr. Herbert L. Wible, Milwaukee, Wis., for appellees. Mr. Justice BLACK delivered the opinion of the Court. 1 Basing his complaint on the Illinois wrongful death statute,1 appellant administrator brought this action in the Wisconsin state court to recover damages for the death of Harold Hughes, who was fatally injured in an automobile accident in Illinois. The allegedly negligent driver and an insurance company were named as defendants. On their motion the trial court entered summary judgment 'dismissing the complaint on the merits.' It held that a Wisconsin statute, which creates a right of action only for deaths caused in that state, establishes a local public policy against Wisconsin's entertaining suits brought under the wrongful death acts of other states.2 The Wisconsin Supreme Court affirmed, notwithstanding the contention that the local statute so construed violated the Full Faith and Credit Clause of Art. IV, § 1 of the Constitution.3 The case is properly here on appeal under 28 U.S.C. § 1257. 2 We are called upon to decide the narrow question whether Wisconsin, over the objection raised, can close the doors of its courts to the cause of action created by the Illinois wrongful death act.4 Prior decisions have established that the Illinois statute is a 'public act' within the provision of Art. IV, § 1 that 'Full Faith and Credit shall be given in each State to the public Acts * * * of every other State.'5 It is also settled that Wisconsin cannot escape this constitutional obligation to enforce the rights and duties validly created under the laws of other states by the simple device of removing jurisdiction from courts otherwise competent.6 We have recognized, however, that full faith and credit does not automatically compel a forum state to subordinate its own statutory policy to a conflicting public act of another state; rather, it is for this Court to choose in each case between the competing public policies involved.7 The clash of interests in cases of this type has usually been described as a conflict between the public policies of two or more states.8 The more basic conflict involved in the present appeal, however, is as follows: On the one hand is the strong unifying principle embodied in the Full Faith and Credit Clause looking toward maximum enforcement in each state of the obligations or rights created or recognized by the statutes of sister states;9 on the other hand is the policy of Wisconsin, as interpreted by its highest court, against permitting Wisconsin courts to entertain this wrongful death action.10 3 We hold that Wisconsin's policy must give way. That state has no real feeling of antagonism against wrongful death suits in general.11 To the contrary, a forum is regularly provided for cases of this nature, the exclusionary rule extending only so far as to bar actions for death not caused locally.12 The Wisconsin policy, moreover, cannot be considered as an application of the forum non conveniens doctrine, whatever effect that doctrine might be given if its use resulted in denying enforcement to public acts of other states. Even if we assume that Wisconsin could refuse, by reason of particular circumstances, to hear foreign controversies to which nonresidents were parties,13 the present case is not one lacking a close relationship with the state. For not only were appellant, the decedent and the individual defendant all residents of Wisconsin, but also appellant was appointed administrator and the corporate defendant was created under Wisconsin laws. We also think it relevant, although not crucial here, that Wisconsin may well be the only jurisdiction in which service could be had as an original matter on the insurance company defendant.14 And while in the present case jurisdiction over the individual defendant apparently could be had in Illinois by substituted service,15 in other cases Wisconsin's exclusionary statute might amount to a deprivation of all opportunity to enforce valid death claims created by another state. 4 Under these circumstances, we conclude that Wisconsin's statutory policy which excludes this Illinois cause of action is forbidden by the national policy of the Full Faith and Credit Clause.16 The judgment is reversed and the cause is remanded to the Supreme Court of Wisconsin for proceedings not inconsistent with this opinion. 5 Reversed and remanded. 6 Mr. Justice FRANKFURTER, whom Mr. Justice REED, Mr. Justice JACKSON, and Mr. Justice MINTON, join, dissenting. 7 This is an action brought in the Wisconsin State courts to recover for the wrongful death of Harold G. Hughes. Hughes was killed in an automobile accident in Illinois. An Illinois statute provides that an action may be brought to recover damages for a wrongful death occurring in that State. Smith-Hurd's Ill.Ann.Stat. c. 70, §§ 1, 2. A Wisconsin statute provides that an action may not be brought in the courts of that State for a wrongful death occurring outside Wisconsin. Wis.Stat., 1949, § 331.03. The Wisconsin courts, obeying the command of the Wisconsin statute, dismissed the action. I cannot agree that the Wisconsin statute, so applied, is contrary to Art. IV, § 1 of the United States Constitution: 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.' 8 The Full Faith and Credit Clause was derived from a similar provision in the Articles of Confederation. Art. IV, par. 3. The only clue to its meaning in the available records of the Constitutional Convention is a notation in Madison's Debates that 'Mr. Wilson & Docr. Johnson (who became members of the committee to which the provision was referred) supposed the meaning to be that Judgments in one State should be the ground of actions in other States, & that acts of the Legislatures should be included, for the sake of Acts of insolvency etc—.' II Farrand, The Records of the Federal Convention, 447. This Court has, with good reason, gone far in requiring that the courts of a State respect judgments entered by courts of other States. Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039; Kenney v. Supreme Lodge, 252 U.S. 411, 40 S.Ct. 371, 64 L.Ed. 638; Milwaukee County v. M. E. White Co., 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220; cf. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149. But the extent to which a State must recognize and enforce the rights of action created by other States is not so clear. 9 1. In the field of commercial law—where certainty is of high importance—we have often imposed a rather rigid rule that a State must defer to the law of the State of incorporation, or to the law of the place of contract. Thus, in Broderick v. Rosner, 294 U.S. 629, 55 S.Ct. 589, 79 L.Ed. 1100, we held that New Jersey could not close its courts to suits which involved stockholder liability arising under the laws of New York. We had already said, in Converse v. Hamilton, 224 U.S. 243, 260, 32 S.Ct. 415, 419, 56 L.Ed. 749, that such liability was 'peculiarly within the regulatory power' of the State of incorporation; 'so much so that no other State properly can be said to have any public policy thereon.' In John Hancock Mut. Life Insurance Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106, we held that the Georgia courts had to give full faith and credit to a New York parole evidence statute which prevented recovery on an insurance contract made in New York. In both these cases, the Court, speaking through Mr. Justice Brandeis, emphasized that it was the particular relationship involved which made the Full Faith and Credit Clause applicable. 10 In Pink v. A.A.A. Highway Express, 314 U.S. 201, 62 S.Ct. 241, 86 L.Ed. 152, the Court found that the Full Faith and Credit Clause did not require the courts of the forum to enforce, against local policyholders, assessments valid under the laws of the state of incorporation of a mutual insurance company. In Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481, we decided that the forum may decline to enforce an insurance policy in favor of beneficiaries who have no insurable interest under local law. Order of United Commercial Travelers v. Wolfe, 331 U.S. 586, 67 S.Ct. 1355, 91 L.Ed. 1687, seems to have made it clear, however, that these decisions did not represent a radical departure from the earlier cases. We held in the Wolfe case that the forum was required to give full faith and credit to a law of the state of incorporation allowing a fraternal benefit society to limit the duration of its liability. It is not merely a bit of rhetoric to caution against imposing on the courts of the forum a 'state of vassalage.' Hawkins v. Barney's Lessee, 5 Pet. 457, 467, 8 L.Ed. 190, quoted in Order of United Commercial Travelers v. Wolfe, supra, 331 U.S. at page 627, 67 S.Ct. at page 1374, 91 L.Ed. 1687, dissenting opinion. But this consideration of autonomy is not sufficient to overcome the advantages to be obtained from a degree of certainty in corporate and commercial law. 11 2. In cases involving workmen's compensation, there is also a pre-existing relationship between the employer and employee that makes certainty of result desirable. The possible interest of the forum in protecting the workman, however, has made this Court reluctant to impose rigid rules. In Bradford Electric Light Co. v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026, suit was brought in New Hampshire to recover for the wrongful death of an employee occurring in New Hampshire. We held, in an opinion by Mr. Justice Brandeis, that the court sitting in New Hampshire would have to dismiss the action because workmen's compensation was an exclusive remedy under the laws of Vermont, where the contract of employment was made, where the employment was usually carried on, and where both the employer and the employee were domiciled Mr. Justice Stone concurred on the ground that the New Hampshire courts would apply the Vermont law on principles of comity. He thought the Full Faith and Credit Clause 'should be interpreted as leaving the courts of New Hampshire free, in the circumstances now presented, either to apply or refuse to apply the law of Vermont, in accordance with their own interpretation of New Hampshire policy and law.' 286 U.S. at pages 164—165, 52 S.Ct. at pages 577—578, 76 L.Ed. 1026. 12 In Alaska Packers Ass'n v. Industrial Acc. Commission, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044, we held that California where the contract of employment was entered into—was free to apply the terms of its own workmen's compensation statute to an employee injured in Alaska, although an Alaska statute purported to give an exclusive remedy to persons injured there. In Pacific Employers Insurance Co. v. Industrial Accident Commission, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940, we held that the California courts need not give full faith and credit to the exclusive remedy provisions of the Massachusetts workmen's compensation statute, although Massachusetts was the place of contract and the usual place of employment. 13 Mr. Justice Stone, who wrote the opinions in the latter two cases, specifically limited the Clapper decision: 'The Clapper case cannot be said to have decided more than that a state statute applicable to employer and employee within the state, which by its terms provides compensation for the employee if he is injured in the course of his employment while temporarily in another state, will be given full faith and credit in the latter when not obnoxious to its policy.' 306 U.S. at page 504, 59 S.Ct. at page 634, 83 L.Ed. 940. 14 3. In the tort action before us, there is little reason to impose a 'state of vassalage' on the forum. The liability here imposed does not rest on a pre-existing relationship between the plaintiff and defendant. There is consequently no need for fixed rules which would enable parties, at the time they enter into a transaction, to predict its consequences. 15 The Court, in the Clapper case, stressed that New Hampshire had opened its courts to the action, but had refused to recognize a substantive defense. Indeed, the Court indicated that a State may be free to close its courts to suits based on the tort liability created by the statutes of other States: 'It is true that the full faith and credit clause does not require the enforcement of every right conferred by a statute of another State. There is room for some play of conflicting policies. Thus, a plaintiff suing in New Hampshire on a statutory cause of action arising in Vermont might be denied relief because the forum fails to provide a court with jurisdiction of the controversy, see Chambers v. Baltimore & Ohio R. Co., 207 U.S. 142, 148, 149, 28 S.Ct. 34 (35, 36), 52 L.Ed. 143; compare Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747 * * *. A state may, on occasion, decline to enforce a foreign cause of action. In so doing, it merely denies a remedy, leaving unimpaired the plaintiff's substantive right, so that he is free to enforce it elsewhere.' 286 U.S. at page 160, 52 S.Ct. at page 576, 76 L.Ed. 1026. 16 This Court should certainly not require that the forum deny its own law and follow the tort law of another State where there is a reasonable basis for the forum to close its courts to the foreign cause of action. The decision of Wisconsin to open its courts to actions for wrongful deaths within the State but close them to actions for deaths outside the State may not satisfy everyone's notion of wise policy. See Loucks v. Standard Oil Co., 1918, 224 N.Y. 99, 120 N.E. 198. But it is neither novel nor without reason. Compare the similar Illinois statute which was before this Court in Kenney v. Supreme Lodge, supra. Wisconsin may be willing to grant a right of action where witnesses will be available in Wisconsin and the courts are acquainted with a detailed local statute and cases construing it. It may not wish to subject residents to suit where out-of-state witnesses will be difficult to bring before the court, and where the court will be faced with the alternative of applying a complex foreign statute—perhaps inconsistent with that of Wisconsin on important issues—or fitting the statute to the Wisconsin pattern. The legislature may well feel that it is better to allow the courts of the State where the accident occurred to construe and apply its own statute, and that the exceptional case where the defendant cannot be served in the State where the accident occurred does not warrant a general statute allowing suit in the Wisconsin courts. The various wrongful death statutes are inconsistent on such issues as beneficiaries, the party who may bring suit, limitations on liability, comparative negligence, and the measure of damages . See Report of the Special Commission to Study the Method of Assessing Damages in Actions for Death (Mass.Sen. No. 430; Dec. 31, 1942) 21 et seq.; Note, (1950) Wis.L.Rev. 354, 360, 363. The measure of damages and the relation of wrongful death actions to actions for injury surviving death have raised extremely complicated problems, even for a court applying the familiar statute of its own State. See Note, 91 U. of Pa.L.Rev. 68 (1942); Oppenheim, The Survival of Tort Actions and the Action for Wrongful Death—A Survey and a Proposal, 16 Tulane L.Rev. 386 (1942). These diversities reasonably suggest application by local judges versed in them. Compare Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; Alabama Public Service Comm. v. Southern R. Co., 341 U.S. 341, 71 S.Ct. 762. 17 No claim is made that Wisconsin has discriminated against the citizens of other States and thus violated Art. IV, § 2 of the Constitution. Compare Douglas v. New York, N.H. & H.R. Co., supra. Nor is a claim made that the lack of a forum in Wisconsin deprives the plaintiff of due process. Compare Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107; Missouri v. Lewis, 101 U.S. 22, 30, 25 L.Ed. 989. Nor is it argued that Wisconsin is flouting a federal statute. Compare Atlantic Coast Line R. Co. v. Burnett, 239 U.S. 199, 201, 36 S.Ct. 75, 76, 60 L.Ed. 226. The only question before us is now far the Full Faith and Credit Clause undercuts the purpose of the Constitution, made explicit by the Tenth Amendment, to leave the conduct of domestic affairs to the States. Few interests are of more dominant local concern than matters governing the administration of law. This vital interest of the States should not be sacrificed in the interest of a merely literal reading of the Full Faith and Credit Clause. 18 There is no support, either in reason or in the cases, for holding that this Court is to make a de novo choice between the policies underlying the laws of Wisconsin and Illinois. I cannot believe that the Full Faith and Credit Clause provided a 'writer's inkhorn' so that this Court might separate right from wrong. 'Prima facie every state is entitled to enforce in its own courts its own statutes, lawfully enacted. One who challenges that right, because of the force given to a conflicting statute of another state by the full faith and credit clause, assumes the burden of showing, upon some rational basis, that of the conflicting interests involved those of the foreign state are superior to those of the forum.' Mr. Justice Stone, in Alaska Packers Ass'n v. Industrial Accident Commission, supra, 294 U.S. at pages 547—548, 55 S.Ct. at pages 523—524, 79 L.Ed. 1044. In the present case, the decedent, the plaintiff, and the individual defendant were residents of Wisconsin. The corporate defendant was created under Wisconsin law. The suit was brought in the Wisconsin courts. No reason is apparent—and none is vouchsafed in the opinion of the Court—why the interest of Illinois is so great that it can force the courts of Wisconsin to grant relief in defiance of their own law. 19 Finally, it may be noted that there is no conflict here in the policies underlying the statute of Wisconsin and that of Illinois. The Illinois wrongful death statute has a proviso that 'no action shall be brought or prosecuted in this State to recover damages for a death occurring outside of this State where a right of action for such death exists under the laws of the place where such death occurred and service of process in such suit may be had upon the defendant in such place.' Smith-Hurd's Ill.Ann.Stat. c. 70, § 2. The opinion of the Court concedes that 'jurisdiction over the individual defendant apparently could be had in Illinois by substituted service'. Smith-Hurd's Ill.Ann.Stat. c. 95 1/2, § 23. Thus, in the converse of the case at bar—if Hughes had been killed in Wisconsin and suit had been brought in Illinois—the Illinois courts would apparently have dismissed the suit. There is no need to be 'more Roman than the Romans.'1 1 Smith-Hurd's Ill.Ann.Stat. c. 70, §§ 1, 2. 2 Wis.Stat., 1949, § 331.03. This section contains language typically found in wrongful death acts but concludes as follows: 'provided, that such action shall be brought for a death caused in this state.' 3 257 Wis. 35, 42 N.W.2d 452. 4 The parties concede, as they must, that if the same cause of action had previously been reduced to judgment, the Full Faith and Credit Clause would compel the courts of Wisconsin to entertain an action to enforce it. Kenney v. Supreme Lodge, 252 U.S. 411, 40 S.Ct. 371, 64 L.Ed. 638. 5 E.g., Broderick v. Rosner, 294 U.S. 629, 644, 55 S.Ct. 589, 593, 79 L.Ed. 1100; Bradford Elec. Light Co. v. Clapper, 286 U.S. 145, 154—155, 52 S.Ct. 571, 573—574, 76 L.Ed. 1026; John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178, 183, 57 S.Ct. 129, 132, 81 L.Ed. 106. 6 E.g., Broderick v. Rosner, 294 U.S. 629, 642—643, 55 S.Ct. 589, 592—593, 79 L.Ed. 1100; Converse v. Hamilton, 224 U.S. 243, 260—261, 32 S.Ct. 415, 419—420, 56 L.Ed. 749; cf. Kenney v. Supreme Lodge, 252 U.S. 411, 415, 40 S.Ct. 371, 372, 64 L.Ed. 638; Angel v. Bullington, 330 U.S. 183, 188, 67 S.Ct. 657, 660, 91 L.Ed. 832. The reliance of the Supreme Court of Wisconsin on Chambers v. Baltimore & O.R. Co., 207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143, was misplaced. That case does not hold that one state, consistently with Art. IV, § 1, can exclude from its courts causes of action created by another state for, as pointed out in Broderick v. Rosner, supra, 294 U.S. at page 642, n. 3, 55 S.Ct. at page 592, 79 L.Ed. 1100, in Chambers 'no claim was made under the full faith and credit clause.' 7 E.g., Pink v. A.A.A. Highway Express, 314 U.S. 201, 210 211, 62 S.Ct. 241, 246—247, 86 L.Ed. 152; Pacific Employers Ins. Co. v. Ind. Acc. Commission, 306 U.S. 493, 502, 59 S.Ct. 629, 633, 83 L.Ed. 940; Alaska Packers Ass'n v. Industrial Accident Commission, 294 U.S. 532, 547, 55 S.Ct. 518, 523, 79 L.Ed. 1044. 8 See, e.g., Alaska Packers Ass'n v. Industrial Accident Commission, 294 U.S. 532, 547—550, 55 S.Ct. 518, 523—525, 79 L.Ed. 1044. 9 This clause 'altered the status of the several states as independent foreign sovereignties, each free to ignore rights and obligations created under the laws or established by the judicial proceedings of the others, by making each an integral part of a single nation * * *.' Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439, 64 S.Ct. 208, 214, 88 L.Ed. 149. See also Milwaukee County v. M. E. White Co., 296 U.S. 268, 276—277, 56 S.Ct. 229, 233—234, 80 L.Ed. 220; Order of United Commercial Travelers v. Wolfe, 331 U.S. 586, 67 S.Ct. 1355, 91 L.Ed. 1687. 10 The present case is not one where Wisconsin, having entertained appellant's lawsuit, chose to apply its own instead of Illinois' statute to measure the substantive rights involved. This distinguishes the present case from those where we have said that 'Prima facie every state is entitled to enforce in its own courts its own statutes, lawfully enacted.' Alaska Packers Ass'n v. Industrial Acc. Commission, 294 U.S. 532, 547, 55 S.Ct. 518, 524, 79 L.Ed. 1044; see also, Williams v. State of North Carolina, 317 U.S. 287, 295—296, 63 S.Ct. 207, 211—212, 87 L.Ed. 279. 11 It may well be that the wrongful death acts of Wisconsin and Illinois contain different provisions in regard to such matters as maximum recovery and disposition of the proceeds of suit. Such differences, however, are generally considered unimportant. See cases collected 77 A.L.R. 1311, 1317—1324. 12 See note 2, supra. 13 See Broderick v. Rosner, 294 U.S. 629, 643, 55 S.Ct. 589, 592, 79 L.Ed. 1100; compare Anglo-American Provision Co. v. Davis Provision Co., 191 U.S. 373, 24 S.Ct. 92, 48 L.Ed. 225, with Kenney v. Supreme Lodge, 252 U.S. 411, 40 S.Ct. 371, 64 L.Ed. 638. 14 Cf. Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 359—360, 34 S.Ct. 587, 588—589, 58 L.Ed. 997. 15 Smith-Hurd's Ill.Ann.Stat. c. 95 1/2, § 23. 16 In certain previous cases, e.g., Pacific Employers Ins. Co. v. Industrial Acc. Commission, 306 U.S. 493, 502, 59 S.Ct. 629, 633, 83 L.Ed. 940; Alaska Packers Ass'n v. Industrial Accident Commission, 294 U.S. 532, 547, 55 S.Ct. 518, 523, 79 L.Ed. 1044, this Court suggested that under the Full Faith and Credit Clause a forum state might make a distinction between statutes and judgments of sister states because of Congress' failure to prescribe the extra-state effect to be accorded public acts. Subsequent to these decisions the Judicial Code was revised so as to provide: 'Such Acts (of the legislature of any state) * * * and judicial proceedings * * * shall have the same full faith and credit in every court within the United States * * * as they have * * * in the courts of such State * * * from which they are taken.' (Italics added.) 28 U.S.C. (1946 ed., Supp. III), § 1738. In deciding the present appeal, however, we have found it unnecessary to rely on any changes accomplished by the Judicial Code revision. 1 Compare Freund, Chief Justice Stone and the Conflict of Laws, 59 Harv.L.Rev. 1210, 1220 (1946).

78

341 U.S. 716 71 S.Ct. 909 95 L.Ed. 1317 GARNER et al.v.BOARD OF PUBLIC WORKS OF CITY OF LOS ANGELES et al. No. 453. Argued April 25, 1951. Decided June 4, 1951. Messrs. Charles J. Katz, Los Angeles, Cal., Samuel Rosenwein, New York City, for petitioners. Mr. Alan G. Campbell, Los Angeles, Cal., for respondents. Mr. Justice CLARK delivered the opinion of the Court. 1 In 1941 the California Legislature amended the Charter of the City of Los Angeles to provide in part as follows: 2 '* * * no person shall hold or retain or be eligible for any public office or employment in the service of the City of Los Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior to the effective date of this section advised, advocated or taught, or who may, after this section becomes effective (April 28, 1941), advise, advocate or teach, or who is now or has been within five (5) years prior to the effective date of this section, or who may, after this section becomes effective, become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period of five (5) years, advised, advocated or taught the overthrow by force or violence of the government of the United States of America or of the State of California. 3 'In so far as this section may be held by any court of competent jurisdiction not to be self-executing, the City Council is hereby given power and authority to adopt appropriate legislation for the purpose of effectuating the objects hereof.' Cal.Stat.1941, c. 67, p. 3409, § 432. 4 Pursuant to the authority thus conferred the City of Los Angeles in 1948 passed ordinance No. 94,004 requiring every person who held an office or position in the service of the city to take an oath prior to January 6, 1949. In relevant part the oath was as follows: 'I further swear (or affirm) that I do not advise, advocate or teach, and have not within the period beginning five (5) years prior to the effective date of the ordinance requiring the making of this oath or affirmation, advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California and that I am not now and have not, within said period, been or become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means of the Government of the United States, or of the State of California. I further swear (or affirm) that I will not, while I am in the service of the City of Los Angeles, advise, advocate or teach, or be or become a member of or affiliated with any group, association, society, organization or party which advises, advocates or teaches, or has within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California * * *.' 5 The ordinance also required every employee to execute an affidavit 'stating whether or not he is or ever was a member of the Communist Party of the United States of America or of the Communist Political Association, and if he is or was such a member, stating the dates when he became, and the periods during which he was, such a member * * *.' 6 On the final date for filing of the oath and affidavit petitioners were civil service employees of the City of Los Angeles. Petitioners Pacifico and Schwartz took the oath but refused to execute the affidavit. The remaining fifteen petitioners refused to do either. All were discharged for such cause, after administrative hearing, as of January 6, 1949. In this action they sue for reinstatement and unpaid salaries. The District Court of Appeal denied relief. 1950, 98 Cal.App.2d 493, 220 P.2d 958. We granted certiorari, 1951, 340 U.S. 941, 71 S.Ct. 505. 7 Petitioners attack the ordinance as violative of the provision of Art. I, § 10 of the Federal Constitution that 'No State shall * * * pass any Bill of Attainder, (or) ex post facto Law * * *.' They also contend that the ordinance deprives them of freedom of speech and assembly and of the right to petition for redress of grievances. 8 Petitioners have assumed that the oath and affidavit provisions of the ordinance present similar constitutional considerations and stand or fall together. We think, however, that separate disposition is indicated. 9 1. The affidavit raises the issue whether the City of Los Angeles is constitutionally forbidden to require that its employees disclose their past or present membership in the Communist Party or the Communist Political Association. Not before us is the question whether the city may determine that an employee's disclosure of such political affiliation justifies his discharge. 10 We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust. Both are commonly inquired into in determining fitness for both high and low positions in private industry and are not less relevant in public employment. The affidavit requirement is valid. 11 2. In our view the validity of the oath turns upon the nature of the Charter amendment (1941) and the relation of the ordinance (1948) to this amendment. Immaterial here is any opinion we might have as to the Charter provision insofar as it purported to apply retrospectively for a five-year period prior to its effective date. We assume that under the Federal Constitution the Charter amendment is valid to the extent that it bars from the city's public service persons who, subsequent to its adoption in 1941, advise, advocate, or teach the violent overthrow of the Government or who are or become affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States. Cf. Gerende v. Board of Supervisors of Elections, 1951, 341 U.S. 56, 71 S.Ct. 565. Likewise, as a regulation of political activity of municipal employees, the amendment was reasonably designed to protect the integrity and competency of the service. This Court has held that Congress may reasonably restrict the political activity of federal civil service employees for such a purpose, United Public Workers v. Mitchell, 1947, 330 U.S. 75, 102—103, 67 S.Ct. 556, 570, 571, 91 L.Ed. 754, and a State is not without power to do as much. 12 The Charter amendment defined standards of eligibility for employees and specifically denied city employment to those persons who thereafter should not comply with these standards. While the amendment deprived no one of employment with or without trial, yet from its effective date it terminated any privilege to work for the city in the case of persons who thereafter engaged in the activity proscribed. 13 The ordinance provided for administrative implementation of the provisions of the Charter amendment. The oath imposed by the ordinance proscribed to employees activity which had been denied them in identical terms and with identical sanctions in the Charter provision effective in 1941. The five-year period provided by the oath extended back only to 1943. 14 The ordinance would be ex post facto if it imposed punishment for past conduct lawful at the time it was engaged in. Passing for the moment the question whether separation of petitioners from their employment must be considered as punishment, the ordinance clearly is not ex post facto. The activity covered by the oath had been proscribed by the Charter in the same terms, for the same purpose, and to the same effect over seven years before, and two years prior to the period embraced in the oath. Not the law but the fact was posterior. 15 Bills of attainder are 'legislative acts * * * that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial * * *.' United States v. Lovett, 1946, 328 U.S. 303, 315, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252. Punishment is a prerequisite. See concurring opinion in Lovett, supra, 328 U.S. at pages 318, 324, 66 S.Ct. at pages 1080, 1083. Whether legislative action curtailing a privilege previously enjoyed amounts to punishment depends upon 'the circumstances attending and the causes of the deprivation.' Cummings v. State of Missouri, 1867, 4 Wall. 277, 320, 18 L.Ed. 356. We are unable to conclude that punishment is imposed by a general regulation which merely provides standards of qualification and eligibility for employment. 16 Cummings v. State of Missouri, 1867, 4 Wall. 277, 18 L.Ed. 356, and Ex parte Garland, 1867, 4 Wall. 333, 18 L.Ed. 366, the leading cases in this Court applying the federal constitutional prohibitions against bills of attainder, recognized that the guarantees against such legislation were not intended to preclude legislative definition of standards of qualification for public or professional emplyment. Carefully distinguishing an instance of legislative 'infliction of punishment' from the exercise of 'the power of Congress to prescribe qualifications,' the Court said in Garland's case: 'The legislature may undoubtedly prescribe qualifications for the office, to which he must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of any of the ordinary avocations of life.' 4 Wall. at pages 379—380, 18 L.Ed. 366. See also, Cummings v. State of Missouri, supra, 4 Wall. at pages 318—319, 18 L.Ed. 356. This doctrine was reaffirmed in Dent v. State of West Virginia, 1889, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623, in which Mr. Justice Field, who had written the Cummings and Garland opinions, wrote for a unanimous Court upholding a statute elevating standards of qualification to practive medicine. And in Hawker v. People of State of New York, 1898, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002, the Court upheld a statute forbidding the practice of medicine by any person who had been convicted of a felony. Both Dent and Hawker distinguished the Cummings and Garland cases as inapplicable when the legislature establishes reasonable qualifications for a vocational pursuit with the necessary effect of disqualifying some persons presently engaged in it. 17 Petitioners rely heavily upon United States v. Lovett, 1946, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252, in which a legislative act effectively separating certain public servants from their positions was held to be a bill of attainder. Unlike the provisions of the Charter and ordinance under which petitioners were removed, the statute in the Lovett case did not declare general and prospectively operative standards of qualification and eligibility for public employment. Rather, by its terms it prohibited any further payment of compensation to named individual employees. Under these circumstances, viewed against the legislative background, the statute was held to have imposed penalties without judicial trial. 18 Nor are we impressed by the contention that the oath denies due process because its negation is not limited to affiliations with organizations known to the employee to be in the proscribed class. We have no reason to suppose that the oath is or will be construed by the City of Los Angeles or by California courts as affecting adversely those persons who during their affiliation with a proscribed organization were innocent of its purpose, or those who severed their relations with any such organization when its character became apparent, or those who were affiliated with organizations which at one time or another during the period covered by the ordinance were engaged in proscribed activity but not at the time of affiant's affiliation.1 We assume that scienter is implicit in each clause of the oath. As the city has done nothing to negative this interpretation, we take for granted that the ordinance will be so read to avoid raising difficult constitutional problems which any other application would present. Fox v. State of Washington, 1915, 236 U.S. 273, 277, 35 S.Ct. 383, 384, 59 L.Ed. 573. It appears from correspondence of record between the city and petitioners that although the city welcomed inquiry as to its construction of the oath, the interpretation upon which we have proceeded may not have been explicitly called to the attention of petitioners before their refusal. We assume that, if our interpretation of the oath is correct, the City of Los Angeles will give those petitioners who heretofore refused to take the oath an opportunity to take it as interpreted and resume their employment. 19 The judgment as to Pacifico and Schwartz is affirmed. The judgment as to the remaining petitioners is affirmed on the basis of the interpretation of the ordinance which we have felt justified in assuming. 20 Affirmed. 21 Mr. Justice FRANKFURTER, concurring in part and dissenting in part. 22 The Constitution does not guarantee public employment. City, State and Nation are not confined to making provisions appropriate for securing competent professional discharge of the functions pertaining to diverse governmental jobs. They may also assure themselves of fidelity to the very presuppositions of our scheme of government on the part of those who seek to serve it. No unit of government can be denied the right to keep out of its employ those who seek to overthrow the government by force or violence, or are knowingly members of an organization engaged in such endeavor. See Gerende v. Board of Supervisors of Elections, 341 U.S. 56, 71 S.Ct. 565. 23 But it does not at all follow that because the Constitution does not guarantee a right to public employment, a city or a State may resort to any scheme for keeping people out of such employment. Law cannot reach every discrimination in practice. But doubtless unreasonable discriminations, if avowed in formal law, would not survive constitutional challenge. Surely, a government could not exclude from public employment members of a minority group merely because they are odious to the majority, nor restrict such employment, say, to nativeborn citizens. To describe public employment as a privilege does not meet the problem. 24 This line of reasoning gives the direction, I believe, for dealing with the issues before us. A municipality like Los Angeles ought to be allowed adequate scope in seeking to elicit information about its employees and from them. It would give to the Due Process Clause an unwarranted power of intrusion into local affairs to hold that a city may not require its employees to disclose whether they have been members of the Communist Party or the Communist Political Association. In the contex of our time, such membership is sufficiently relevant to effective and dependable government, and to the confidence of the electorate in its government. I think the precise Madison would have been surprised even to hear it suggested that the requirement of this affidavit was an 'Attainder' under Art. I, § 10, of the Constitution. For reasons outlined in the concurring opinion in United States v. Lovett, 328 U.S. 303, 318, 66 S.Ct. 1073, 1080, 90 L.Ed. 1252, I cannot so regard it. This kind of inquiry into political affiliation may in the long run do more harm than good. But the two employees who were dismissed solely because they refused to file an affidavit stating whether or when they had been members of the Communist Party or the Communist Political Association cannot successfully appeal to the Constitution of the United States. 25 A very different issue is presented by the fifteen employees who were discharged because they refused to take this oath: 'I * * * do solemnly swear (or affirm) * * * that I * * * have not, within said period (from December 6, 1943), been or become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means of the Government of the United States of America, or of the State of California.' 26 The validity of an oath must be judged on the assumption that it will be taken conscientiously. This ordinance does not ask the employee to swear that he 'knowingly' or 'to the best of his knowledge' had no proscribed affiliation. Certainty is implied in the disavowal exacted. The oath thus excludes from city employment all persons who are not certain that every organization to which they belonged or with which they were affiliated (with all the uncertainties of the meaning of 'affiliated') at any time since 1943 has not since that date advocated the overthrow by 'unlawful means' of the Government of the United States or of the State of California. 27 The vice in this oath is that it is not limited to affiliation with organizations known at the time to have advocated overthrow of government. We have here a very different situation from that recently before us in Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565. There the Attorney General of Maryland assured this Court that he would advise the appropriate authorities to accept as the oath required by State law from a candidate for office, an affirmation that he is not engaged in the attempt to overthrow the Government by force or violence and that he is not knowingly a member of an organization engaged in such an attempt. The Attorney General did not give this assurance as a matter of personal relaxation of a legal requirement. He was able to give it on the basis of the interpretation that the Court of Appeals of Maryland, the highest court of that State, had placed upon the legislation. No such assurance was remotely suggested on behalf of Los Angeles. Naturally not. Nothing in the decisions under review would warrant such restricted interpretation of the assailed ordinance.1 To find scienter implied in a criminal statute is the obvious way of reading such a statute, for guilty knowledge is the normal ingredient of criminal responsibility. The ordinance before us exacts an oath as a condition of employment; it does not define a crime. It is certainly not open to this Court to rewrite the oath required by Los Angeles of its employees, after the oath as written has been sustained by the California courts. 28 If this ordinance is sustained, sanction is given to like oaths for every governmental unit in the United States. Not only does the oath make an irrational demand. It is bound to operate as a real deterrent to people contemplating even innocent associations. How can anyone be sure that an organization with which he affiliates will not at some time in the future be found by a State or National official to advocate overthrow of government by 'unlawful means'? All but the hardiest may well hesitate to join organizations if they know that by such a proscription they will be permanently disqualified from public employment. These are considerations that cut deep into the traditions of our people. Gregariousness and friendliness are among the most characteristic of American attitudes. Throughout our history they have been manifested in 'joining.' See Arthur M. Schlesinger, Sr., Biography of a Nation of Joiners, published in 50 American Historical Review 1, reprinted in Schlesinger, Paths to the Present, 23. 29 Giving full scope to the selective processes open to our municipalities and States in securing competent and reliable functionaries free from allegiance to any alien political authority, I do not think that it is consonant with the Due Process Clause for men to be asked, on pain of giving up public employment, to swear to something they cannot be expected to know. Such a demand is at war with individual integrity; it can no more be justified than the inquiry into belief which Mr. Justice BLACK, Mr. Justice JACKSON, and I deemed invalid in American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. 30 The needs of security do not require such curbs on what may well be innocuous feelings and associations. Such curbs are indeed self-defeating. They are not merely unjustifiable restraints on individuals. They are not merely productive of an atmosphere of repression uncongenial to the spiritual vitality of a democratic society. The inhibitions which they engender are hostile to the best conditions for securing a highmined and high-spirited public service. 31 It is not for us to write the oath that Los Angeles may exact. And so as to the fifteen employees I think the case should go back to the State court, with instructions that these petitioners be reinstated unless they refuse to take an oath or affirmation within the scope indicated in this opinion. 32 Mr. Justice BURTON, dissenting in part and concurring in part. I. 33 I cannot agree that under our decisions the oath is valid. United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252; Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366; Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356. The oath is so framed as to operate retrospectively as a perpetual bar to those employees who held certain views at any time since a date five years preceding the effective date of the ordinance. It leaves no room for a change of heart. It calls for more than a profession of present loyalty or promise of future attachment. It is not limited in retrospect to any period measured by reasonable relation to the present. In time this ordinance will amount to the requirement of an oath that the affiant has never done any of the proscribed acts. Cf. Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565; American Communications Ass'n v. Douds, 339 U.S. 382, 413 414, 70 S.Ct. 674, 691, 692, 94 L.Ed. 925. 34 The oath is not saved by the fact that it reaches back only to December 6, 1943, and that city employees have been forbidden since April 28, 1941, under § 432 of the Los Angeles Charter, to advise, teach or advocate the violent overthrow of the Government. See the Lovett, Garland and Cummings cases, supra. II. 35 I agree with the Court that the judgment should be affirmed as to petitioners Pacific and Schwartz. They executed the oath but refused to sign an affidavit calling for information as to their past or present membership in the Communist Party or the Communist Political Association. Such refusal does not now present the question of whether the Constitution permits the City to discharge them from municipal employment on the basis of information in their affidavits. We have before us only the question of whether municipal employees may be required to give to their employer factual information which is relevant to a determination of their present loyalty and suitability for public service. Such loyalty and suitability is no less material in candidates for appointment as municipal employees than in candidates for elective office, Gerende v. Board of Supervisors, supra, or union officers, American Communications Ass'n v. Douds, supra. 36 Mr. JUSTICE BLACK, dissenting. 37 I agree with the dissenting opinion of Mr. JUSTICE DOUGLAS but wish to emphasize two objections to the opinion of the Court: 38 1. Our per curiam opinion in Gerende v. Board of Supervisors, 341 U.S. 56, in no way stands for the principle for which the Court cites it today. In Gerende, we upheld a Maryland law that had been interpreted by the highest court of that state to require only an oath that a candidate "is not a person who is engaged 'in one way or another in the attempt to overthrow the government by force or violence,' and that he is not knowingly a member of an organization engaged in such an attempt." The oath and affidavit in the present case are obviously not so limited. 39 The opinion of the Court creates considerable doubt as to the continued vitality of three of our past decisions; Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333; United States v. Lovett, 328 U.S. 303. To this extent it weakens one more of the Constitution's great guarantees of individual liberty. See, e.g., Dennis v. United States, ante, p. 494, and Breard v. Alexandria, ante, p. 622, decided this day. 40 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK joins, dissenting. 41 Petitioners are citizens of the United States and civil service employees of the City of Los Angeles. In 1948 the City of Los Angeles passed Ordinance No. 94,004 which requires each of its employees to subscribe to an oath of loyalty which included, inter alia, an affirmation that he does not advise, advocate, or teach, and has not within the five years prior to the effective date of the ordinance 'advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California,' and that he is not and has not within that period been 'a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means of the Government of the United States of America, or of the State of California.' 42 The ordinance also requires each employee to execute an affidavit stating 'whether or not he is or ever was a member of the Communist Party of the United States of America or of the Communist Political Association, and if he is or was such a member, stating the dates when he became, and the periods during which he was, such a member.' 43 The ordinance was passed to effectuate the provisions of § 432 of the Charter of Los Angeles, Cal.Stat.1941, c. 67, p. 3409, which provides, inter alia, that no person who has within five years prior to the adoption of § 432 advised, advocated or taught the overthrow by force or violence of the government of the United States or of California, or who during that time has been a member of or affiliated with any group or party which has advised, advocated, or taught that doctrine, shall hold or retain or be eligible for any employment in the service of the city. Thus the ordinance and § 432 of the Charter read together make plain that prior advocacy or membership is without more a disqualification for employment. Both the oath and the affidavit are methods for enforcement of that policy. 44 Fifteen of the petitioners refused to sign either the oath or the affidavit. Two took the oath but refused to sign the affidavit. All seventeen were discharged—the sole ground being their refusal to sign the affidavit or to sign and to take the oath, as the case may be. They had an administrative review, which afforded them no relief. This suit was thereupon instituted in the California court, claiming reinstatement and unpaid salaries. Relief was denied by the District Court of Appeal, 98 Cal.App.2d 493, 220 P.2d 958; and a hearing was denied by the Supreme Court, three justices dissenting. The case is here on certiorari. 45 The case is governed by Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356, and Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366, which struck down test oaths adopted at the close of the Civil War. The Cummings case involved provisions of the Missouri Constitution requiring public officials and certain classes of professional people, including clergymen, to take an oath that, inter alia, they had never been 'in armed hostility' to the United States; that they had never 'by act or word' manifested their 'adherence to the cause' of enemies of the country or their 'desire' for the triumph of its enemies; that they had never 'knowingly and willingly harbored, aided, or countenanced' an enemy; that they had never been a 'member of, or connected with, any order, society, or organization inimical to the government of the United States' or engaged 'in guerilla warfare' against its inhabitants; that they had never left Missouri 'for the purpose of avoiding enrollment for or a draft into the military service of the United States' or become enrolled as a southern sympathizer. 46 The Garland case involved certain Acts of Congress requiring public officials and attorneys practicing before the federal courts to take an oath that they had 'voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility' against the United States and that they had 'neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States.' The Court amended its rules of admission to require this oath. 47 Cummings, a Catholic priest, was indicted and convicted for teaching and preaching without having first taken the oath. 48 Garland, a member of the Bar of the Court, had served in the Confederate Government, for which he had received a pardon from the President conditioned on his taking the customary oath of loyalty. He applied for permission to practice before the Court without taking the new oath. 49 Article I, § 10 of the Constitution forbids any state to 'pass any Bill of Attainder' or any 'ex post facto Law'. Article I, § 9 curtails the power of Congress by providing that 'No Bill of Attainder or ex post facto Law shall be passed.' The Court ruled that the test oaths in the Cummings and Garland cases were bills of attainder and ex post facto laws within the meaning of the Constitution. 'A bill of attainder,' wrote Mr. Justice Field for the Court, 'is a legislative act which inflicts punishment without a judicial trial.'1 Cummings v. State of Missouri, supra, 4 Wall. at page 323, 18 L.Ed. 356; and see United States v. Lovett, 328 U.S. 303, 317, 318, 66 S.Ct. 1073, 1079, 1080, 90 L.Ed. 1252. The Court held that deprivation of the right to follow one's profession is punishment. A bill of attainder, though generally directed against named individuals, may be directed against a whole class. Bills of attainder usually declared the guilt; here they assumed the guilt and adjudged the punishment conditionally, i.e., they deprived the parties of their right to preach and to practice law unless the presumption were removed by the expurgatory oath. That was held to be as much a bill of attainder as if the guilt had been irrevocably pronounced. The laws were also held to be ex post facto since they imposed a penalty for an act not so punishable at the time it was committed. 50 There are, of course, differences between the present case and the Cummings and Garland cases. Those condemned by the Los Angeles ordinance are municipal employees; those condemned in the others were professional people. Here the past conduct for which punishment is exacted is single—advocacy within the past five years of the overthrow of the Government by force and violence. In the other cases the acts for which Cummings and Garland stood condemned covered a wider range and involved some conduct which might be vague and uncertain. But those differences, seized on here in hostility to the constitutional provisions, are wholly irrelevant. Deprivation of a man's means of livelihood by reason of past conduct, not subject to this penalty when committed, is punishment whether he is a professional man, a day laborer who works for private industry, or a government employee. The deprivation is nonetheless unconstitutional whether it be for one single past act or a series of past acts. The degree of particlarity with which the past act is defined is not the criterion. We are not dealing here with the problem of vagueness in criminal statutes. No amount of certainty would have cured the laws in the Cummings and Garland cases. They were stricken down because of the mode in which punishment was inflicted. 51 Petitioners were disqualified from office not for what they are today, not because of any program they currently espouse. Cf. Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565, not because of standards related to fitness for the office, cf. Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Hawker v. People of State of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002, but for what they once advocated. They are deprived of their livelihood by legislative act, not by judicial processes. We put the case in the aspect most invidious to petitioners. Whether they actually advocated the violent overthrow of Government does not appear. But here, as in the Cummings case, the vice is in the presumption of guilt which can only be removed by the expurgatory oath. That punishment, albeit conditional, violates here as it did in the Cummings case the constitutional prohibition against bills of attainder. Whether the ordinance also amounts to an ex post facto law is a question we do not reach. 52 Mr. Justice BLACK, dissenting. 53 I agree with the dissenting opinion of Mr. Justice DOUGLAS but wish to emphasize two objections to the opinion of the Court: 54 1. Our per curiam opinion in Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565, in no way stands for the principle for which the Court cites it today. In Gerende, we upheld a Maryland law that had been interpreted by the highest court of that state to require only an oath that a candidate 'is not a person who is engaged 'in one way or another in the attempt to overthrow the government by force or violence,' and that he is not knowingly a member of an organization engaged in such an attempt.' The oath and affidavit in the present case are obviously not so limited. 55 2. The opinion of the Court creates considerable doubt as to the continued vitality of three of our past decisions: Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356; Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366; United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252. To this extent it weakens one more of the Constitution's great guarantees of individual liberty. See, e.g., Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857; Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920. 1 In interpreting local legislation proscribing affiliation with defective organizations, the Supreme Court of California has gone beyond the literal text of a statute so as to require knowledge of the character of the organization, as of the time of affiliation, by the person whose affiliation is in question. In People v. Steelik, 1921, 187 Cal. 361, 376, 203 P. 78, 79, the Court upheld a conviction under the Criminal Syndicalism Act of 1919 which made one guilty of a felony who 'is' a member of any one of a certain class of proscribed organizations. The indictment in relevant part alleged that defendants 'are and each of them is' a member of a proscribed organization. The court interpreted the statute as defining and the indictment as charging 'the offense of criminal syndicalism, in that he knowingly belonged' to a proscribed organization. (Emphasis added.) 187 Cal. 376, 203 P. 84. 1 Nothing in the decision or opinion of the Supreme Court of California in People v. Steelik, 187 Cal. 361, 203 P. 78, 80, indicates that the courts of California would at their own instance read into the Los Angeles oath a limitation which is not there expressed. In the Steelik case the court was considering a statute which provided that 'Any person who * * * (o)rganizes or assists in organizing, or is or knowingly becomes a member of, any organization' teaching criminal syndicalism is guilty of a felony. Cal.Stat.1919, c. 188, § 2. The court held only that the word 'knowingly' qualified the word 'is' in addition to the word 'becomes.' 1 Mr. Justice Field continued: 'If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the text-books, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offence.' 4 Wall. at page 323, 18 L.Ed. 356. In addition to the history of bills of attainder in England, the draftsmen of the Constitution had before them recent examples of such legislation by the Revolutionary governments of the states. Legislative action against persons of known or suspected Loyalist sympathies included outright attaint of treason or subversion (e.g., Georgia, Act of March 1, 1778; Pennsylvania, Law 1778, c. 49; New York Laws, 1779, Third Session, c. 25); proscription and banishment (e.g., Massachusetts, Act of Sept. 1778, Charters and Gen.Laws, c, 48; New Hampshire, Laws 1778, Fourth Session, c. 9); confiscation (e.g., Delaware, Laws 1778, c. 29b; New Jersey, Act of Dec. 11, 1778, Laws, p. 40); as well as numerous test oaths involving, among other penalties, disqualification from holding office or practicing certain professions. See laws collected in Van Tyne, The Loyalists in the American Revolution, App. B, C; and generally, Thompson, Anti-Loyalist Legislation During the American Revolution, 3 Ill.L.Rev. 81, 147.

23

341 U.S. 675 71 S.Ct. 943 95 L.Ed. 1284 NATIONAL LABOR RELATIONS BOARDv.DENVER BLDG. & CONST. TRADES COUNCIL et al. No. 393. Argued Feb. 27, 1951. Decided June 4, 1951. [Syllabus from pages 675-676 intentionally omitted] Mr. David P. Findling, Washington, D.C., for petitioner. Mr. William E. Leahy, Washington, D.C., for respondents. Mr. Justice BURTON delivered the opinion of the Court. 1 The principal question here is whether a labor organization committed an unfair labor practice, within the meaning of § 8(b)(4)(A) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C. § 151, 29 U.S.C.A. § 151, as amended by the Labor Management Relations Act, 1947,1 by engaging in a strike, an object of which was to force the general contractor on a construction project to terminate its contract with a certain subcontractor on that project. For the reasons hereafter stated, we hold that such an unfair labor practice was committed. 2 In September, 1947, Doose & Lintner was the general contractor for the construction of a commercial building in Denver, Colorado. It awarded a subcontract for electrical work on the building, in an estimated amount of $2,300, to Gould & Preisner, a firm which for 20 years had employed nonunion workmen on construction work in that city. The latter's employees proved to be the only nonunion workmen on the project. Those of the general contractor and of the other subcontractors were members of unions affiliated with the respondent Denver Building and Construction Trades Council (here called the Council). In November a representative of one of those unions told Gould that he did not see how the job could progress with Gould's nonunion men on it. Gould insisted that they would complete the electrical work unless bodily put off. The representative replied that the situation would be difficult for both Gould & Preisner and Doose & Lintner. 3 January 8, 1948, the Council's Board of Business Agents instructed the Council's representative 'to place a picket on the job stating that the job was unfair' to it.2 In keeping with the Council's practice,3 each affiliate was notified of that decision. That notice was a signal in the nature of an order to the members of the affiliated unions to leave the job and remain away until otherwise ordered. Representatives of the Council and each of the respondent unions visited the project and reminded the contractor that Gould & Preisner employed nonunion workmen and said that union men could not work on the job with nonunion men. They further advised that if Gould & Preisner's men did work on the job, the Council and its affiliates would put a picket on it to notify their members that nonunion men were working on it and that the job was unfair. All parties stood their ground. 4 January 9, the Council posted a picket at the project carrying a placard stating 'This Job Unfair to Denver Building and Construction Trades Council.'4 He was paid by the Council and his picketing continued from January 9 through January 22. During that time the only persons who reported for work were the nonunion electricians of Gould & Preisner. January 22, before Gould & Preisner had completed its subcontract, the general contractor notified it to get off the job so that Doose & Lintner could continue with the project. January 23, the Council removed its picket and shortly thereafter the union employees resumed work on the project. Gould & Preisner protested this treatment but its workmen were denied entrance to the job. 5 On charges filed by Gould & Preisner, the Regional Director of the National Labor Relations Board issued the complaint in this case against the Council and the respondent unions.5 It alleged that they had engaged in a strike or had caused strike action to be taken on the project by employees of the general contractor and of other subcontractors, an object of which was to force the general contractor to cease doing business with Gould & Preisner on that project. 6 Between the Board's receipt of the charges and the filing of the complaint based upon them, the Regional Director of the Board petitioned the United States District Court for the District of Colorado for injunctive relief.6 That petition was dismissed on the jurisdictional ground that the activities complained of did not affect interstate commerce. Sperry v. Denver Building & Const. Trades Council, D.C., 77 F.Supp. 321. Such action will be discussed later under the heading of res judicata. Hearings were held by the Board's trial examiner on the merits of the complaint. The Board adopted its examiner's findings, conclusions and recommendations, with minor additions and modifications not here material. It attached the examiner's intermediate report to its decision and ordered respondents to cease and desist from engaging in the activities charged. 82 N.L.R.B. 1195. Respondents petitioned the United States Court of Appeals for the District of Columbia Circuit for a review under § 10(f).7 The Board answered and asked for enforcement of its order. That court held, with one judge dissenting, that the conduct complained of affected interstate commerce sufficiently to give the Board jurisdiction over it, but the court unanimously set aside the order of the Board and said: 'Convinced that the action in the circumstances of this case is primary and not secondary we are obliged to refuse to enforce the order based on § 8(b)(4) (A).' 87 U.S.App.D.C. 293, 304, 186 F.2d 326, 337. The Board claimed a conflict between that conclusion and the reasoning of the Court of Appeals for the Second Circuit in No. 108, International Brotherhood of Electrical Workers v. National Labor Relations Board, 181 F.2d 34, and of that for the Sixth Circuit in No. 85, National Labor Relations Board v. Local 74, United Brotherhood of Carpenters, 181 F.2d 126. We granted certiorari in each case, 340 U.S. 902—903, 71 S.Ct. 281, and all were argued with No. 313, National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 71 S.Ct. 961.8 In another companion case, No. 387, United Brotherhood of Carpenters v. National Labor Relations Board, decided by the Court of Appeals for the Tenth Circuit, 184 F.2d 60, certiorari has been denied this day, 341 U.S. 947, 71 S.Ct. 1011. 7 I. Res Judicata.—Respondents not only attack the jurisdiction of the Board on the ground that the actions complained of did not affect interstate commerce, but they contend that the decision rendered on that point by the District Court for the District of Colorado in Sperry v. Denver Building & Const. Trades Council, supra, has made the issue res judicata.9 We do not agree. The District Court did not have before it the record on the merits. It proceeded under § 10(l)10 which is designed to assist a preliminary investigation of the charges before the filing of a complaint. If the officer or regional attorney to whom the matter is referred has reasonable cause to believe that a charge is true and that a complaint should issue, the statute says that he shall petition an appropriate District Court for injunctive relief, pending the final adjudication of the Board. Such proceeding is independent of that on the merits under § 10(a)—(d). There is a separate provision for securing injunctive relief after the filing of the complaint. § 10(j). Court review is authorized in § 10(e) and (f). As held by the Board, 82 N.L.R.B. at 1203—1204, and the court below, 87 U.S.App.D.C. 297, 299, 186 F.2d at pages 330, 332, the very scheme of the statute accordingly contemplates that a decision on jurisdiction made in the independent preliminary proceeding for interlocutory relief, under § 10(l), shall not foreclose a proceeding on the merits such as is now before us.11 8 II. Effect on Interstate Commerce.—The activities complained of must affect interstate commerce in order to bring them within the jurisdiction of the Board.12 The Board here found that their effect was sufficient to sustain its jurisdiction and the Court of Appeals was satisfied. We see no justification for reversing that conclusion. 9 The Board found that, in 1947, Gould & Preisner purchased $86,560.30 of raw materials, of which $55,745.25, or about 65%, were purchased outside of Colorado. Also, most of the merchandise it purchased in Colorado had been produced outside of that State. While Gould & Preisner performed no services outside of Colorado, it shipped $5,000 of its products outside of that State. Up to the time when its services were discontinued on the instant project, it had expended on it about $315 for labor and about $350 for materials. On a 65% basis, $225 of those materials would be from out of the State. The Board adopted its examiner's finding that any widespread application of the practices here charged might well result in substantially decreasing the influx of materials into Colorado from outside the State and it recognized that Gould & Preisner's annual purchase of over $55,000 of such materials was not negligible. 10 The Board also adopted the finding that the activities complained of had a close, intimate and substantial relation to trade, traffic and commerce among the states and that they tended to lead, and had led, to labor disputes burdening and obstructing commerce and the free flow of commerce. The fact that the instant building, after its completion, might be used only for local purposes does not alter the fact that its construction, as distinguished from its later use, affected interstate commerce. 11 Even when the effect of activities on interstate commerce is sufficient to enable the Board to take jurisdiction of a complaint, the Board sometimes properly declines to do so, stating that the policies of the Act would not be effectuated by its assertion of jurisdiction in that case. Here, however, the Board not only upheld the filing of the complaint but it sustained the charges made in it. 12 The same jurisdictional language as that now in effect appeared in the National Labor Relations Act of 193513 and this Court said of it in that connection: 'Examining the Act in the light of its purpose and of the circumstances in which it must be applied we can perceive no basis for inferring any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which courts would apply the maxim de minimis.' National Labor Relations Board v. Fainblatt, 306 U.S. 601, 607, 307 U.S. 609, 59 S.Ct. 668, 672, 83 L.Ed. 1014; see also National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893. 13 The maxim de minimis non curat lex does not require the Board to refuse to take jurisdiction of the instant case.14 14 III. The Secondary Boycott.—We now reach the merits. They require a study of the objectives of the strike and a determination whether the strike came within the definition of an unfair labor practice stated in § 8(b)(4)(A). 15 The language of that section which is here essential is as follows: 16 '(b)) It shall be an unfair labor practice for a labor organization * * * 17 '(4) to engage in * * * a strike * * * where an object thereof is: (A) forcing or requiring * * * any employer or other person * * * to cease doing business with any other person; * * *.' 61 Stat. 141, 29 U.S.C. (Supp. III) § 158(b) (4)(A), 29 U.S.C.A. § 158(b)(4)(A). 18 While § 8(b)(4) does not expressly mention 'primary' or 'secondary' disputes, strikes or boycotts, that section often is referred to in the Act's legislative history as one of the Act's 'secondary boycott sections.' The other is § 303, 61 Stat. 158, 29 U.S.C.(Supp.III) § 187, 29 U.S.C.A. § 187, which uses the same language in defining the basis for private actions for damages caused by these proscribed activities. 19 Senator Taft, who was the sponsor of the bill in the Senate and was the Chairman of the Senate Committee on Labor and Public Welfare in charge of the bill, said, in discussing this section: '* * * under the provisions of the Norris-LaGuardia Act (29 U.S.C.A. § 101 et seq.), it became impossible to stop a secondary boycott or any other kind of a strike, no matter how unlawful it may have been at common law. All this provision of the bill does is to reverse the effect of the law as to secondary boycotts. It has been set forth that there are good secondary boycotts and bad secondary boycotts. Our committee heard evidence for weeks and never succeeded in having anyone tell us any difference between different kinds of secondary boycotts. So we have so broadened the provision dealing with secondary boycotts as to make them an unfair labor practice.' 93 Cong.Rec. 4198. 20 The Conference Report to the House of Representatives said: 'Under clause (A) (of § 8(b)(4)) strikes or boycotts, or attempts to induce or encourage such action, were made unfair labor practices if the purpose was to force an employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of another, or to cease doing business with any other person. Thus it was made an unfair labor practice for a union to engage in a strike against employer A for the purpose of forcing that employer to cease doing business with employer B. Similarly it would not be lawful for a union to boycott employer A because employer A uses or otherwise deals in the goods of, or does business with, employer B.' H.R.Rep. No. 510, 80th Cong., 1st Sess. 43.15 21 At the same time that §§ 7 and 1316 safeguard collective bargaining, concerted activities and strikes between the primary parties to a labor dispute, § 8(b)(4) restricts a labor organization and its agents in the use of economic pressure where an object of it is to force an employer or other person to boycott someone else. 22 A. We must first determine whether the strike in this case had a proscribed object. The conduct which the Board here condemned is readily distinguishable from that which it declined to condemn in the Rice Milling case, 341 U.S. 665, 71 S.Ct. 961. There the accused union sought merely to obtain its own recognition by the operator of a mill, and the union's pickets near the mill sought to influence two employees of a customer of the mill not to cross the picket line. In that case we supported the Board in its conclusion that such conduct was no more than was traditional and permissible in a primary strike. The union did not engage in a strike against the customer. It did not encourage concerted action by the customer's employees to force the customer to boycott the mill. It did not commit any unfair labor practice proscribed by § 8(b)(4). 23 In the background of the instant case there was a longstanding labor dispute between the Council and Gould & Preisner due to the latter's practice of employing nonunion workmen on construction jobs in Denver. The respondent labor organizations contend that they engaged in a primary dispute with Doose & Lintner alone, and that they sought simply to force Doose & Lintner to make the project an all-union job. If there had been no contract between Doose & Lintner and Gould & Preisner there might be substance in their contention that the dispute involved no boycott. If, for example, Doose & Lintner had been doing all the electrical work on this project through its own nonunion employees, it could have replaced them with union men and thus disposed of the dispute. However, the existence of the Gould & Preisner subcontract presented a materially different situation. The nonunion employees were employees of Gould & Preisner. The only way that respondents could attain their purpose was to force Gould & Preisner itself off the job. This, in turn, could be done only through Doose & Lintner's termination of Gould & Preisner's subcontract. The result is that the Council's strike, in order to attain its ultimate purpose, must have included among its objects that of forcing Doose & Lintner to terminate that subcontract. On that point, the Board adopted the following finding: 'That an object, if not the only object, of what transpired with respect to * * * Doose & Lintner was to force or require them to cease doing business with Gould & Preisner seems scarcely open to question, in view of all of the facts. And it is clear at least as to Doose & Lintner, that that purpose was achieved.' (Emphasis supplied.) 82 N.L.R.B. at 1212.17 24 We accept this crucial finding. It was an object of the strike to force the contractor to terminate Gould & Preisner's subcontract. 25 B. We hold also that a strike with such an object was an unfair labor practice within the meaning of § 8(b)(4)(A). 26 It is not necessary to find that the sole object of the strike was that of forcing the contractor to terminate the subcontractor's contract. This is emphasized in the legislative history of the section.18 See also, National Labor Relations Board v. Wine, Liquor & Distillery Workers Union, 2 Cir., 178 F.2d 584, 586, 16 A.L.R.2d 762. 27 We agree with the Board also in its conclusion that the fact that the contractor and subcontractor were engaged on the some construction project, and that the contractor had some supervision over the subcontractor's work, did not eliminate the status of each as an independent contractor or make the employees of one the employees of the other. The business relationship between independent contractors is too well established in the law to be overridden without clear language doing so. The Board found that the relationship between Doose & Lintner and Gould & Preisner was one of 'doing business' and we find no adequate reason for upsetting that conclusion.19 28 Finally, § 8(c)20 safeguarding freedom of speech has no significant application to the picket's placard in this case. Section 8(c) does not apply to a mere signal by a labor organization to its members, or to the members of its affiliates, to engage in an unfair labor practice such as a strike proscribed by § 8(b)(4)(A). That the placard was merely such a signal, tantamount to a direction to strike, was found by the Board. '* * * the issues in this case turn upon acts by labor organizations which are tantamount to directions and instructions to their members to engage in strike action. The protection afforded by Section 8(c) of the Act to the expression of 'any views, argument or opinion' does not pertain where, as here, the issues raised under Section 8(b)(4)(A) turn on official directions or instructions to a union's own members.' 82 N.L.R.B. at 1213.21 29 The further conclusion that § 8(c) does not immunize action against the specific provisions of § 8(b)(4)(A) has been announced in other cases. See No. 108, International Brotherhood of Electrical Workers v. National Labor Relations Board, 341 U.S. 694, 71 S.Ct. 954.22 30 Not only are the findings of the Board conclusive with respect to questions of fact in this field when supported by substantial evidence on the record as a whole,23 but the Board's interpretation of the Act and the Board's application of it in doubtful situations are entitled to weight. In the views of the Board as applied to this case we find conformity with the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own. 31 For these reasons we conclude that the conduct of respondents constituted an unfair labor practice within the meaning of § 8(b)(4)(A). The judgment of the Court of Appeals accordingly is reversed and the case is remanded to it for procedure not inconsistent with this opinion. 32 It is so ordered. 33 Reversed and remanded with directions. 34 Mr. Justice JACKSON would affirm the judgment of the Court of Appeals. 35 Mr. Justice DOUGLAS, with whom Mr. Justice REED joins, dissenting. 36 The employment of union and nonunion men on the same job is a basic protest in trade union history. That was the protest here. The union was not out to destroy the contractor because of his antiunion attitude. The union was not pursuing the contractor to other jobs. All the union asked was that union men not be compelled to work alongside nonunion men on the same job. As Judge Rifkind stated in an analogous case, 'the union was not extending its activity to a front remote from the immediate dispute but to one intimately and indeed inextricably united to it.'1 37 The picketing would undoubtedly have been legal if there had been no subcontractor involved—if the general contractor had put nonunion men on the job. The presence of a subcontractor does not alter one whit the realities of the situation; the protest of the union is precisely the same. In each the union was trying to protect the job on which union men were employed. If that is forbidden, the Taft-Hartley Act makes the right to strike, guaranteed by § 13, dependent on fortuitous business arrangements that have no significance so far as the evils of the secondary boycott are concerned. I would give scope to both § 8(b)(4) and § 13 by reading the restrictions of § 8(b)(4) to reach the case where an industrial dispute spreads from the job to another front.2 1 'Sec. 8. * * * '(b) It shall be an unfair labor practice for a labor organization or its agents— '(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; * * *.' 61 Stat. 140—141, 29 U.S.C. (Supp. III) § 158(b)(4)(A), 29 U.S.C.A. § 158(b)(4)(A). 2 Denver Building Trades Council, 82 N.L.R.B. 1195, 1210. 3 The Council's by-laws provided in part: 'Article I—B 'Section 1. It shall be the duty of this Council to stand for absolute closed shop conditions on all jobs in the City of Denver and jurisdictional surroundings. * * * (Emphasis in original.) 'Section 2. The Board of Business Agents * * * shall have the power to declare a job unfair and remove all men from the job. They shall also have the power to place the men back on the job when satisfactory arrangements have been made. 'Section 3. Any craft refusing to leave a job which has been declared unfair or returning to the job before being ordered back by the Council or its Board of Agents shall be tried, and if found guilty, shall be fined the sum of $25.00. 'Section 4. Refusal of any organization to pay said fine shall be followed by expulsion from this Council. An organization so expelled shall pay said fine and one complete back quarter dues and per capita before being reinstated. 'Article XI—B 'Section 1. Strikes must be called by the Council or the Board of Agents in conformity with Article I—B, Sections 1—2. When strikes are called the Council shall have full jurisdiction over the same, and any contractor, who works on a struck job, or employs non-union men to work on a struck job, shall be declared unfair and all union men shall be called off from his work or shop. 'Section 2. The representative of the Council shall have the power to order all strikes when instructed to do so by the Council or Board of Agents. * * * All employees on a struck job shall leave the same when ordered to do so by the Council Agent and remain away from the same until such time as a settlement is made, or otherwise ordered.' 82 N.L.R.B. at 1214—1215. 4 82 N.L.R.B. at 1211. 5 Originally the complaint was directed also against another union and included incidents at two other construction projects in Denver on which Gould & Preisner had subcontracted to do electrical work. The trial examiner recommended that the Board issue a cease and desist order based upon one of those incidents, but the Board dismissed the complaint as to all conduct except that on the project before us. 6 Under § 10(l), 61 Stat. 149—150, 29 U.S.C. (Supp. III) § 160(l), 29 U.S.C.A. § 160(l). 7 61 Stat. 148—149, 29 U.S.C. (Supp. III) § 160(f), 29 U.S.C.A. § 160(f). 8 For a collection and review of the Board and lower court cases dealing with these and related issues under § 8(b)(4), see Dennis, The Boycott under the Taft-Hartley Act, N.Y.U. Third Annual Conference on Labor (1950), 367—460. 9 An appeal to the Court of Appeals in that proceeding was dismissed by the Board with that court's consent. 10 '(l) Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(A), (B), or (C) of section 8(b), the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any district court of the United States (including the District Court of the United States for the District of Columbia) within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law: * * *.' 61 Stat. 149, 29 U.S.C. (Supp. III) § 160(l), 29 U.S.C.A. § 160(l). 11 See, also, National Labor Relations Board v. Local 74, United Brotherhood of Carpenters, 6 Cir., 181 F.2d 126, affirmed 341 U.S. 707, 71 S.Ct. 966; Denver Building Trades Council, 82 N.L.R.B. 93. 12 'Sec. 10(a) The Board is empowered * * * to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. * * *' 61 Stat. 146, 29 U.S.C. (Supp. III) § 160(a), 29 U.S.C.A. § 160(a). 'Sec. 2. When used in this Act— '(6) The term 'commerce' means trade, traffic, commerce, transportation, or communication among the several States * * *. '(7) The term 'affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. * * *' 61 Stat. 137—138, 29 U.S.C. (Supp. III) § 152(6)(7), 29 U.S.C.A. § 152(6, 7). 13 49 Stat. 450, 29 U.S.C. § 152(6) and (7), 29 U.S.C.A. § 152(6, 7). 14 '* * * Congress gave the Board authority to prevent practices 'tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.' * * * Congress therefore left it to the Board to ascertain whether proscribed practices would in particlar situations adversely affect commerce when judged by the full reach of the constitutional power of Congress. Whether or no practices may be deemed by Congress to affect interstate commerce is not to be determined by confining judgment to the quantitative effect of the activities immediately before the Board. Appropriate for judgment is the fact that the immediate situation is representative of many others throughout the country, the total incidence of which if left unchecked may well become far-reaching in its harm to commerce.' Polish National Alliance v. National Labor Relations Board, 322 U.S. 643, 648, 64 S.Ct. 1196, 1199, 88 L.Ed. 1509. See also, United Brotherhood of Carpenters v. Sperry, 10 Cir., 170 F.2d 863, 867—868. For the current practice see Mimeograph Release of National Labor Relations Board, dated October 6, 1950, entitled 'N.L.R.B. Clarifies and Defines Areas In Which It Will and Will Not Exercise Jurisdiction.' See also, Hotel Assn. of St. Louis, 92 N.L.R.B. 1388, 27 L.R.R.M. 1243. 15 See also, Hearings before the Senate Committee on Labor and Public Welfare on S. 55 and S.J.Res. 22, 80th Cong., 1st Sess. 14, 568, 688, 983, 1614, 1814, 1838; S.Rep. No. 105, 80th Cong., 1st Sess. (Pt. 1) 3, 22, 54, (Pt. 2) 19; 93 Cong.Rec. 4844, 4845, 4858. 16 61 Stat. 140, 151, 29 U.S.C. (Supp. III) §§ 157, 163, 29 U.S.C.A. §§ 157, 163. 17 The Board further stated: '2. The Trial Examiner found that the Council and the other three Respondents, by picketing Doose & Lintner's * * * project as alleged in the complaint and thereby causing members of local unions affiliated with the Council to quit work on that project, with an object of forcing Doose & Lintner to cease doing business with Gould & Preisner, engaged in strike action in violation of Section 8(b)(4)(A). We find merit in the Respondents' exceptions only with respect to Carpenters (not involved here), and otherwise agree in substance with the Trial's Examiner's finding.' 82 N.L.R.B. at 1196. 18 Senator Taft, sponsor of the bill, stated in his supplementary analysis of it as passed: 'Section 8(b)(4), relating to illegal strikes and boycotts, was amended in conference by striking out the words 'for the purpose of' and inserting the clause 'where an object thereof is." 93 Cong.Rec. 6859. 19 See note 17, supra, and see also: 'What the issue really boils down to is this: Does Section 8(b)(4)(A) apply to normal business dealings between a contractor and subcontractor, both engaged in the same general business, where boycott pressure is applied against the subcontractor in aid of a dispute with the principal contractor? Clearly it does under the wording of the statute.' Metal Polishers Union, 86 N.L.R.B. 1243, 1252. And see National Labor Relations Board v. Wine, Liquor & Distillery Workers Union, 2 Cir., 178 F.2d 584. 20 'The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.' 61 Stat. 142, 29 U.S.C. (Supp. III) § 158(c), 29 U.S.C.A. § 158(c). 21 'This strike action, of which the picketing was an integral and inseparable part, had the planned and expected effect of denying the services of all union workmen to Doose & Lintner while they continued to utilize the services of Gould & Preisner. Yet as soon as the illegal objective of the Respondents' strike action had been achieved, the picket, the signal to union workmen that a strike was in progress, was removed. Thereupon union workmen were again available to Doose & Lintner. Thus the joint enterprise of the Respondents was accomplished within the framework and intent of the Council's bylaws but in violation of Section 8(b)(4)(A) of the Act.' 82 N.L.R.B. at 1216. And see reference to this finding by the same trial examiner in International Brotherhood of Electrical Workers, 82 N.L.R.B. 1028, 1046, n. 55. 22 'We therefore conclude that Section 8(b)(4)(A) prohibits peaceful picketing, as well as other peaceful means of inducement and encouragement, in furtherance of an objective proscribed therein and that Section 8(c) does not immunize such conduct.' United Brotherhood of Carpenters, 81 N.L.R.B. 802, 815; see also, pp. 807—816; enforcement order issued in National Labor Relations Board v. United Brotherhood of Carpenters, 10 Cir., 184 F.2d 60, certiorari denied this day as No. 387, 341 U.S. 947, 71 S.Ct. 1011. See United Brotherhood of Carpenters v. Sperry, 10 Cir., 170 F.2d 863, 868—869; Printing Specialties Union, 82 N.L.R.B. 271, 290; Bricklayers Union, 82 N.L.R.B. 228; Local 1796, United Brotherhood of Carpenters, 82 N.L.R.B. 211. 23 Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456; National Labor Relations Board v. Pittsburgh Steamship Co., 340 U.S. 498, 71 S.Ct. 453. 1 Douds v. Metropolitan Federation, D.C., 75 F.Supp. 672, 677. 2 See the opinion of Judge Fahy below, 87 U.S.App.D.C. 293, 186 F.2d 326; and the dissenting opinion of Judge Clark, International Brotherhood of Electrical Workers v. National Labor Relations Board, 2 Cir., 181 F.2d 34, 40.

67

341 U.S. 737 71 S.Ct. 987 95 L.Ed. 1331 LAND et al.v.DOLLAR et al. (two cases). In re KILLION (two cases). SAWYER et al. v. DOLLAR et al. Nos. 353, 697, 702, —- and —-. Decided June 4, 1951. PER CURIAM. 1 (1) Nos. 697 and 702 are before the Court of petitions for certiorari to review, first, an order of the District Court for the District of Columbia requiring that Charles Sawyer endorse certain stock certificates as 'United States Maritime Commission, by Charles Sawyer, Secretary of Commerce,' and, second, a Restraining Order issued by the Court of Appeals for the District of Columbia enjoining named petitioners from: 2 'proposing, seeking or advocating any step in any proceeding, whether in said suit entitled United States v. R. Stanley Dollar et al., or in any other proceeding, inconsistent with strict compliance with and obedience to the orders heretofore entered by this Court in this cause. 3 'And it is further ordered that said persons are and each of them is enjoined and restrained until further order of this Court from complying with, taking advantage of, or utilizing, or seeking to comply with, utilize or take advantage of said temporary injunction issued by the United States District Court for the Northern District of California, Southern Division, in said cause entitled United States v. R. Stanley Dollar et al., or any order of similar tenor which may hereafter be entered by said court or any other court.' 4 The two orders are before the Court for the first time in Nos. 697 and 702. Certiorari is granted in these cases. 5 (2) Subsequent to the issuance of the above Restraining Order, the Court of Appeals for the District of Columbia Circuit found named petitioners to be in civil contempt of its prior decrees by reason of, inter alia, their activities in connection with obtaining the temporary injunction on behalf of the United States in its suit in the Northern District of California, referred to in the Restraining Order. The order of contempt has been stayed pending disposition of Nos. 697 and 702 as well as the forthcoming petitions for certiorari directed to the contempt order. Motion of respondents to vacate the stay is denied. 6 (3) No action is taken at this time on petitioners' motion for leave to file a motion for reconsideration of our denial of certiorari in No. 353. 340 U.S. 884, 71 S.Ct. 198. The motion is continued on the docket so that there may be no question as to this Court's control over No. 353 for whatever action may be deemed appropriate. 7 (4) It has been suggested that this Court delay the normal ending of the October Term, 1950, and hear argument within a matter of weeks. No motion for advancement has been filed. 8 We agree that expeditious disposition of the important issues in this lengthy proceeding is highly desirable. But our desire for expedition must be weighed against the danger to orderly presentation of important issues inherent in hasty briefing and argument. And this is particularly so when it is suggested that we hear argument not only in Nos. 697 and 702 now before us, but also in the cases to come to us from the order of civil contempt in which petitions for certiorari are to be filed. 9 There is a further consideration militating against premature disposition of the issues presented. There is now pending in the United States District Court for the Northern District of California an action brought by the United States for adjudication of its claim of title in the same shares of stock as those involved in the instant cases. We have heretofore held that judgments entered in the instant cases would not be res judicata against the United States. Land v. Dollar, 1947, 330 U.S. 731, 736, 737, 739, 67 S.Ct. 1009, 1011, 1012, 1013, 91 L.Ed. 1209. Appeals have been taken from the temporary injunction issued in that suit on behalf of the United States and with which much of the present phase of this litigation is concerned. We are advised that on May 31, 1951, the Court of Appeals for the Ninth Circuit heard argument on a motion to stay the temporary injunction pending appeal from the order granting the temporary injunction and has taken that motion under advisement. On June 1, 1951, the District Court for the Northern District of California began its hearing on defendants' (respondents in this Court) motion to dismiss the complaint and for summary judgment. 10 For the foregoing reasons, we do not accept the suggestion that hearing argument in a matter of weeks is compatible with the orderly administration of justice. 11 Certiorari granted, motion to vacate stay denied, motion for leave to file continued, and suggestion that ending of term be delayed rejected. 12 Mr. Justice BLACK and Mr. Justice CLARK took no part in the consideration or decision of these applications. 13 Mr. Justice FRANKFURTER does not join in this opinion. LAND 14 v. DOLLAR 15 No. 697. 16 Separate memorandum of Mr. Justice FRANKFURTER. 17 It is not practicable, as a rule, for reasons indicated in my memorandum in State of Maryland v. Baltimore Radio Show, 338 U.S. 912, 70 S.Ct. 252, to set forth the considerations that move the Court in granting or denying a petition for certiorari. And since an unexplained announcement of an individual vote on such action is too often apt to be equivocal, it has been my unbroken practice not to note my vote on the disposition of such petitions. However, the petition now before the Court is the latest stage in a long process. In different phases it has been here three times. Because our action may be misleading, unless viewed in its setting, a plain narrative of the course of this litigation in its bearing on this petition is, I believe, desirable. 18 1. What is ultimately in issue is the ownership of the Dollar Steamship Lines. As a result of transactions between the Lines and the United States Maritime Commission, which we need not here relate, 92% of the stock of the corporation was in 1945 listed in the name of the Maritime Commission and voted by the members of that body. On November 6 of that year, the former Dollar stockholders (hereafter called the Dollars) brought suit against the members of the Commission, alleging that the stock was unlawfully withheld and demanding its return. The action was brought in the District Court for the District of Columbia, and for four and one-half years wound its way through the Court of Appeals to this Court, back to the District Court, and once again to the Court of Appeals. 81 U.S.App.D.C. 28, 154 F.2d 307; 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209; D.C., 82 F.Supp. 919; 87 U.S.App.D.C. 214, 184 F.2d 245. At every stage, the Commissioners were represented by attorneys from the Department of Justice, who asserted as ground for dismissal that the action was a suit against the United States to which consent had not been given. Our decision, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209, held that if the allegations of the complaint were true, the action was not against the United States, but rather against the Commissioners in their individual capacities. The District Court decided on the merits that the facts were not as they had been alleged. 82 F.Supp. 919. But on July 17, 1950, the Court of Appeals reversed. It held that the stock of the corporation was unlawfully withheld by the members of the Commission, and that, since title to it had never vested in the United States, the suit was not against the sovereign. 87 U.S.App.D.C. 214, 184 F.2d 245. We refused to review this decision. 340 U.S. 884, 71 S.Ct. 198. Later, we refused to reconsider our refusal. 340 U.S. 948, 71 S.Ct. 530. 19 2. The upshot of the litigation at this point was that the Dollars had obtained a final judgment that the members of the United States Maritime Commission were unlawfully withholding the stock of the corporation, and that, as against the Commissioners, the Dollars were entitled to it. To carry out the judgment the District Court entered an order on mandate on December 11, 1950. That order stated in part that 'title to the shares in question is in the plaintiffs (Dollars), since they were never legally divested of the same, and the asserted title of all others arising out of the same transaction to the contrary (is) null and void * * *.' 97 F.Supp. 59. 20 3. The members of the Maritime Commission took an appeal from this order. They urged that it was too broad, in that it purported to bind, not only the individual members of the Commission, but also the United States. The Court of Appeals remanded the cause with instructions to enter a narrower order, the terms of which it prescribed. The substance of those terms is as follows: '(P) laintiffs (Dollars) are entitled to possession of the shares as against defendants, and the defendants are ordered and directed to deliver forthwith to the plaintiffs the said shares. The possession to which plaintiffs are entitled is an effective possession of the shares. In so far as such right requires action on the part of defendants in addition to physical delivery of the certificates, such action is hereby directed to be taken. Plaintiffs are entitled under this judgment to all rights belonging to possessors of the shares.' 188 F.2d 629, 631. 21 In further explanation of its order the Court stated: 'The District Court is directed to enforce obedience to its order, as herein modified, whether effective process is against the present named defendants or is against another official, or other officials, against whom the order might be lawfully enforced if he or they were a party or parties to the suit. 22 'If the Secretary of Commerce now has custody or possession of the shares, he obviously acquired such custody or possession since the beginning of this action, indeed since the order of June 11, 1947 (prohibiting transfer of the stock pendente lite). Obedience to the order about to be entered pursuant to this opinion is, therefore, enforceable against him, and he is liable, under Rule 71 (Fed. Rules Civ.Proc. 28 U.S.C.A.), supra, to the same process for enforcing obedience to that order as if he were a party.' D.C.Cir., 188 F.2d 629, 632. 23 4. We were asked to grant certiorari to review this order for enforcement. On March 12, 1951, we refused. 340 U.S. 948, 71 S.Ct. 530, 533. It was at this point that we refused to reconsider our refusal to review the decision on the merits. 24 5. Accordingly, the case went back to the District Court. That court entered two orders on March 16. The first was in the terms prescribed by the Court of Appeals. The second was designed to enforce the judgment against the Secretary of Commence, who, under a Presidential Reorganization Plan, had succeeded the Maritime Commission as custodian of the stock shortly before the Court of Appeals entered its decision on the merits. This order directed the Secretary to endorse the stock certificates in his possession in blank, by writing on them the words, 'United States Maritime Commission, by Charles Sawyer, Secretary of Commerce.' It required further that he deliver the stock to a representative of the Dollars, and that he instruct the corporation to make the transfers of record. In the event that the Secretary failed to endorse the stock before delivery or to issue the instructions prior to March 17, the Clerk of the District Court was directed to perform these acts in his place. 97 F.Supp. 60. 25 6. Meanwhile, a new proceeding got under way. On March 12, the day we denied certiorari to the decision of the Court of Appeals modifying the order on mandate, the Government filed a complaint in the District Court for the Northern District of California, Southern Division. In this action, the United States was named as plaintiff, and sought relief by injunction, declaratory judgment, and damages against the Dollar shareholders, the corporation, and the transfer agents responsible for the stock. The claim urged was substantially the same as that which Government counsel for members of the Maritime Commission had unsuccessfully advanced in the litigation in the District of Columbia which culminated in the judgment against the individual defendants. 26 7. On March 19, the Government moved for a preliminary injunction in this California litigation. It requested that the Dollars be restrained from 'exercising or attempting to exercise any rights or privileges as the owners' of the stock, from making demands upon the corporation that new certificates be issued in their name, and from transferring the stock certificates in their possession. The Government supported its motion by an affidavit of the present Chairman of the Federal Maritime Board. On the basis of a report of the Maritime Commission to the Congress on April 10, 1939, which referred to the Dollar management as 'shockingly incompetent' and charged it with drawing excessive salaries from the corporation and with '(f)ailure to maintain adequate service from the West Coast to the Orient,' the Chairman stated that '(s)hould inefficient management replace the existing management' of the corporation, 'grave danger exists that this important unit of the American Merchant Marine may deteriorate as it did before when under the control of plaintiffs in the case of R. Stanley Dollar et al. v. Emory S. Land et at.' On April 6 the District Judge announced that he would issue a temporary restraining order. See 97 F.Supp. 50. 27 8. That order, dated April 11, is in pertinent part as follows: 28 'Now, therefore, it is hereby ordered by this Court that, in order to preserve the status quo pending the determination by this Court as to whether plaintiff on the one hand, or the (Dollars) * * * on the other hand, are the lawful owners of said stock, the (Dollars) * * * be and they hereby are, enjoined pending the entry official judgment in this action, from exercising or attempting to exercise any rights or privileges as owners of stock certificates * * *, and from making any demands upon (the corporation or its agents) * * * that new certificates representing said shares of stock * * * be issued to (the Dollars) * * *, or that said (Dollars) be registered as the owners of the shares of stock represented by said certificates * * *, and from pledging, selling, transferring, or otherwise disposing of said stock certificates and the shares of stock represented thereby, and 29 'It is further ordered by this Court that (the corporation and its agents) * * * be, and they hereby are, restrained, pending the entry of final judgment in this action, from issuing any new certificates of stock of (the corporation) representing said shares to (the Dollars) * * *, from registering or recording (the Dollars) * * * as owners of any of the shares of stock * * *, and from in any way recognizing said (Dollars) * * *, as the lawful owners of said shares of stock or said certificates.' 30 9. While these proceedings were taking place in California, appeals were taken to the Court of Appeals for the District of Columbia Circuit from the two orders entered by the District Court for the District of Columbia on March 16. The Secretary of Commerce and the members of the Maritime Commission urged as grounds for reversal that the lower court had misconstrued the mandate of the Court of Appeals, and had jeopardized the United States' claim of title by giving the Dollars power to transfer the stock to a bona fide purchaser for value. They did not assert as grounds for reversing the orders that the Dollars were likely so to mismanage the corporation that assets to which the United States might ultimately be entitled would be wasted. On April 4 the Court dismissed the appeals, without opinion. At the same time it took under advisement a motion to impose sanctions on the representatives of the Government. 31 10. The Court of Appeals acted on the motion to impose sanctions by orders dated April 10, for reasons indicated in a statement read in open court on April 6 and an opinion filed on April 11. 190 F.2d 366. 32 (a) It issued an order requiring the Secretary of Commerce, the Solicitor General, and other officials of the Department of Justice and of the corporation to show cause why they should not be held in contempt for disobedience to the orders of the courts of the District of Columbia. It based this order in part on allegations that the respondents 'refused to endorse the certificates and refused to instruct the transfer agent to transfer the shares' as directed by the Court. Instead, respondents 'executed proxies in their own names after the decree of this court was known to them,' and 'warned, in writing, the transfer agent of the corporation not to transfer the shares of stock.' In part, the order was based on the allegation that respondents 'sought and obtained from the District Court in Northern California an injunction against the Dollar interests, restraining them from attempting to secure compliance with the decree of this court.' 190 F.2d at page 374. The proceedings to which this order has led are not before us on this petition. 33 (b) The Court of Appeals issued a restraining order also directed to the Secretary of Commerce, the Solicitor General, and officers of the Department of Justice and the corporation. It recited that these respondents 'caused to be instituted' the California suit, and that 'in said action said respondents have sought in the name of the United States relief which is contrary to, inconsistent with, and in nullification of this Court's decisions and orders' in the case. It stated at the hearing on the order that it was not deciding 'whether the United States might seek ancillary injunctive relief in any other respect; that is, in any respect save only the defeat and nullification of a judgment already finally entered by a court of competent jurisdiction.' It ordered that the respondents, their agents, attorneys, and all persons in active concert with any of them 34 'be and they hereby are enjoined and restrained until further order of this Court from proposing, seeking or advocating any step in any proceeding, whether in said suit entitled United States v. R. Stanley Dollar et al., or in any other proceeding, inconsistent with strict compliance with and obedience to the orders heretofore entered by this Court in this cause. 35 'And it is further ordered that said persons are and each of them is enjoined and restrained until further order of this Court from complying with, taking advantage of, or utilizing, or seeking to comply with, utilize or take advantage of said temporary injunction issued by the United States District Court for the Northern District of California, Southern Division, in said cause entitled United States v. R. Stanley Dollar, et al., or any order of similar tenor which may hereafter be entered by said court or any other court.' 36 We have before us for review on this petition (1) the order of the Court of Appeals for the District of Columbia Circuit dismissing appeals from the orders entered by the District Court on March 16 directing that the stock be delivered to the Dollars; (2) the restraining order issued by the Court of Appeals for the District of Columbia Circuit on April 10. 37 Three other matters concerning this litigation are also now before the Court. They are referred to in a per curiam opinion. This memorandum does not address itself to them. 38 On Motion to Vacate Stay of Contempt Order. SAWYER 39 v. DOLLAR In re KILLION 40 Nos. —-, —-. 41 By Mr. Justice JACKSON. 42 Respondents ask the full Court to vacate a stay of proceedings granted by THE CHIEF JUSTICE. I regret that I cannot acquiesce in summary disposition of the motion, for I think the circumstances require the Court to set it down for prompt argument and act only after hearing both sides. 43 This Court examined the decision of the Court of Appeals that the Dollar interests were entitled to the stock in question and decided that it did not merit further review. 87 U.S.App.D.C. 214, 184 F.2d 245. Certiorari denied, 340 U.S. 884, 71 S.Ct. 198. The courts below properly understood that we then regarded that litigation as ended and the District Court entered its mandate. When complete compliance was withheld, the mandate was modified to order officials to deliver up 'effective possession' of the stock. Certiorari was sought from this enforcement order and we were also again asked to review the merits. We denied both. 340 U.S. 948, 71 S.Ct. 530, 533. To date, 'effective possession' has not been delivered. 44 We may have been right or we may have been wrong in these repeated denials of review. But what the Court of Appeals has now done is try to effectuate a judgment that we, by refusal to review, in effect have confirmed. 45 Denial by the full Court of this motion fixes it as the Court's policy to suspend enforcement indefinitely, certainly so long as any phase of this matter is pending here. Successive stays will issue as of course until we decide this and perhaps also the case recently commenced in California. No one knows for how long this will continue. My prediction would be in terms of years rather than months. 46 Certainly both the appearance and substance of justice require that the parties be heard before the Court denies respondents, for an indefinite period, the benefits of the judgment they have won. We should not overlook the fact that management of this shipping concern is kept out of the hands of those whom years of litigation have adjudged to be its owners, and no protection by bond, condition of the order, or otherwise is provided for them during such time as it is kept in the hands adjudged to have it illegally. 47 This Court, now asked to vacate the stay order, denies the motion without hearing either of the parties. This matter has become one of considerable delicacy and I should not, in effect, approve an indefinite stay of proceedings without hearing all the argument and information that either party can offer. I do not think denial without hearing is prudent judicial action. No legitimate interest could suffer from a hearing and we would surely be better informed as a result of it. 48 Even if the parties themselves are not strictly entitled to or do not want to argue this motion, I should require them to do so, for hearings are more important here for the benefit of the Court, as a protection against unwise decision, than for benefit of the parties. It is the Court that is now on trial. When the shoe of contempt was on the other foot, we strongly supported the Government's demand for complete submission to court decrees, even before they were sustained by this Court and though their validity was reasonably in doubt. On this basis a heavy fine was levied against the United Mine Workers. United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884. See also McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599. 49 The spectacle of this Court stalling the enforcement efforts of lower courts while there is outstanding a judgment that some of the Nation's high officials are guilty of contempt of court is not wholesome. The evil influence of such an example will be increased by delay. This Court should exercise utmost care lest it appear to be indifferent to a claim of official disobedience. 50 Moreover, we owe something in this matter to the Court of Appeals. That court held several hearings, considered every phase of this case in careful and exhaustive opinions, and made detailed findings of fact. It embarked on this effort at enforcement only after this Court had refused to review the basic orders. They were clearly justified in believing that we expected the order to be enforced. Surely we do not want to confirm Mr. Dooley's observation to the effect that an appeal is an occasion for one court to show its contempt for another. 51 Being outvoted as to the stay, however, I think it is owing to the Court itself, to the courts below, and to both litigants, to hear and decide the controversial orders without delay. Any denial of this motion or continuance of the stay should be conditioned upon a shortening of the time of all parties and an argument of the cases on the merits within two weeks, deferring the Court's adjournment until the controversy is finally cleared up. If the Court of Appeals is wrong, we should promptly vindicate the officials involved. If that court is right, we should not waiver in upholding its hand. 52 I withhold my assent from the per curiam opinion of today.

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341 U.S. 707 71 S.Ct. 966 95 L.Ed. 1309 LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, A. F. OF L. et al.v.NATIONAL LABOR RELATIONS BOARD. No. 85. Argued Feb. 26, 1951. Decided June 4, 1951. Mr. Charles H. Tuttle, New York City, for petitioners. Mr. Mozart G. Ratner, Washington, D.C., for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 This is a companion case to No. 393, National Labor Relations Board v. Denver Building and Construction Trades Council (the Denver case), 341 U.S. 675, 71 S.Ct. 943, and No. 108, International Brotherhood of Electrical Workers v. National Labor Relations Board (the Greenwich case), 341 U.S. 694, 71 S.Ct. 954. 2 The principal question is whether, under for following circumstances, a union engaged in an unfair labor practice within the meaning of § 8(b)(4)(A) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C. § 151, 29 U.S.C.A. § 151, as amended by the Labor Management Relations Act, 1947:1 On the day before the effective date of that amendment, the union ordered its members, who were working on a dwelling renovation project, to engage in a strike, where an object thereof was to force the owner of the dwelling to cancel a contract for the installation of wall and floor coverings; and then for several days, on and after the effective date of the amendment, the strike was continued under the same conditions which created it and for the same objective. For the reasons hereafter stated, we hold that an unfair labor practice was engaged in on and after the effective date of the amendment. 3 For some years before March, 1947, Ira A. Watson Company, a Rhode Island corporation (here called Watson's), operated a general retail store in Chattanooga, Tennessee, including a department for the sale and installation of wall and floor coverings. Since that time Watson's has operated a specialty store devoted to those activities. At about the same time, Local 74, United Brotherhood of Carpenters and Joiners of America, A.F. of L. (here called the union), and its business agent, Jack Henderson (respectively the petitioners in the instant case), asked Watson's to enter into a closed-shop agreement with the union recognizing it as the bargaining agent of Watson's installation employees. None of its employees were members of the union and Watson's declined to enter the agreement. Thereupon, from the latter part of March until about August 28, 1947, petitioners maintained a picket in front of Watson's store carrying a placard. This announced, over the name of the union, that Watson's was 'unfair to organized labor' or later 'This store employs non-union labor.' Watson's sometimes sold wall or floor coverings without installing them and, at other times, it insisted upon installing such coverings as a condition of their sale. When the installations were made by Watson's, the work was done by nonunion men. 4 August 7, 1947, George D. Stanley, who owned a dwelling near Chattanooga, contracted with D. F. Parker to improve and renovate it. Parker was to furnish and supervise the workmen and select the materials. Stanley was to pay the wages of the workmen, the cost of the materials, and a ten per cent commission to Parker on both. Parker was a member of the union and he hired union members to do the carpentry work. If the wall and floor coverings desired by Stanley had been available in Chattanooga elsewhere than at Watson's, Parker would have purchased them from such source and would have employed union men to install them. However, neither Parker nor Stanley could find such coverings in Chattanooga except at Watson's and Watson's insisted on installing them as a condition of their sale. Although knowing that Watson's would use nonunion men to make the installations, Stanley, with Parker's implied consent, contracted with Watson's for the purchase and installation of the coverings. Watson's began its installation Sunday, August 17, when there were no other workmen present. Monday and Tuesday, apparently with Parker's approval, the installation continued during regular working hours. Wednesday, two of the union carpenters stopped work for half an hour because of the presence on the job of the nonunion installation workers. Parker, however, induced the carpenters to resume work. This situation came to the attention of the union and, on Thursday, August 21, Henderson came to the project and told the four union carpenters who were working there that they could not continue to work with nonunion men or where nonunion men were employed. At that hour, none of Watson's men were present but the installation of coverings contracted for by Stanley with Watson's had not been completed. The union men finished their day's work but, in compliance with the instructions thus issued by petitioners, did not return on the following days. Watson's men returned and completed their work by August 28, and the entire renovation was finished by the end of August. The unfinished carpentry work was done by two of the four union men who had been on the job and who returned without the knowledge or consent of petitioners. On August 22, 1947, § 8(b)(4)(A) took effect.2 5 Watson's promptly filed a charge with the National Labor Relations Board based upon the continuance of the above strike by petitioners on and after August 22. The Regional Director issued a complaint charging the union and Henderson with engaging in an unfair labor practice as defined in § 8(b)(4)(A).3 Pursuant to § 10(l),4 the Regional Director petitioned the United States District Court for the Eastern District of Tennessee for injunctive relief. This relief was denied on the ground that the conduct complained of took place before August 22 and was at that time lawful. Styles v. Local 74, United Brotherhood of Carpenters, D.C., 74 F.Supp. 499. 6 After hearings before an examiner, the Board, with one member dissenting, affirmed the rulings of its examiner, attached his intermediate report to its decision, 80 N.L.R.B. 533, 540, and adopted his findings, conclusions and recommendations with additions and modifications. It ordered the union and Henderson to 'Cease and desist from engaging in or inducing the members of Local 74 to engage in a strike or a concerted refusal in the course of their employment to perform services for any employer, where an object thereof is to require any employer or other person to cease doing business with Ira A. Watson, doing business as Watson's Specialty Store.' Id., at 539. 7 The dissent was on the ground that the effect of the actions complained of upon interstate commerce was so remote and insubstantial and the controversy was so local in character that it was undesirable for the Board to exercise federal power in relation to it. Id., at 540. On a review under § 10(e),5 the Court of Appeals for the Sixth Circuit ordered enforcement of the order. 181 F.2d 126. We granted certiorari. 340 U.S. 902, 71 S.Ct. 277. See National Labor Relations Board v. Denver Building and Construction Trades Council, 341 U.S. 682, 683, 71 S.Ct. 948. 8 1. Petitioners contest the jurisdiction of the Board on the ground of the insufficiency of the effect of the actions complained of upon interstate commerce. We conclude that the findings in the intermediate report, adopted by the Board and accepted by the court below, are sufficient to sustain the Board's jurisdiction. Denver case, 341 U.S. 683—687, 71 S.Ct. 949, 950. From March to September, 1947, Watson's purchased about $93,000 worth of goods. Thirty-three percent was shipped to it in interstate business. Thirty percent more had been manufactured outside of Tennessee. Watson's sales and installation jobs came to about $100,000 of which eight percent represented sales and installations outside of the State. The Board also referred to the fact that Watson's operated a system of 26 or 27 retail stores in seven different states, of which the Chattanooga store apparently was an integral part. 9 2. The complaint was not against the picketing at Watson's store from March to August 28, 1947. See National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 71 S.Ct. 961. The complaint was directed against petitioners' extension of their activities to the Stanley project by there ordering a strike, or concerted cessation of work, on the part of Stanley's union carpenters6 with an object of forcing Stanley to cancel his installation contract with Watson's. Section 8(c)7 is not applicable. This strike was ordered by Henderson in person. The union and he both engaged in and ordered the strike. The carpenters as individual employees are not charged with an unfair labor practice. The charge is confined to the actions of the labor organization and its agent in engaging in, ordering and continuing a strike for a proscribed object after Congress had made such conduct an unfair labor practice. 10 3. As determined in the Denver case, it is enough that one of the objects of the action complained of was to force Stanley to cancel Watson's contract. It does not immunize such action from § 8(b)(4)(A) to show that it also had as an object the enforcement of a rule of the union that its members should not work on a project on which nonunion men were employed.8 The statute did not require the individual carpenters to remain on this job. It did, however, make it an unfair labor practice for the union or its agent to engage in a strike, as they did here, when an object of doing so was to force the project owner to cancel his installation contract with Watson's. 11 4. Even assuming that, if petitioners had engaged in such a strike or had induced the union carpenters to take part in it on and after August 22, 1947, it would have been an unfair labor practice under the new amendment, petitioners contend that their actions all took place before August 22, and that they did nothing on or after that date which is proscribed by § 8(b)(4) (A).9 The answer turns on what actually took place on and after August 22. As to that the Board concluded: 'Nor is it material * * * that the labor dispute had its origin before the effective date of the amended Act, for we are convinced that it was continued and prolonged after the effective date by the very same factors which originally created it and for the same original objective which, as found above, Section 8(b)(4)(A) declares unlawful. Thus, at material times both before and after the effective date of the amendments * * * (2) the Respondents' (here petitioners) strike order, which admittedly was never rescinded, was outstanding and effectively prevented the carpenters from officially working on the job as long as Watson's men were also working; * * *.' 80 N.L.R.B. at 537—538.10 12 We agree with the court below in sustaining that conclusion.11 13 5. We have considered the remaining questions raised by petitioners, based on constitutional or other grounds and have resolved them in favor of sustaining the Board and the court below. This case has not been rendered moot by the completion of the renovation project. The complaint was against petitioners' use of secondary pressure upon Watson's in a manner proscribed by the statute. The use of such pressure on this renovation project was merely a sample of what might be repeated elsewhere if not prohibited. The underlying dispute between petitioners and Watson's has not been shown to have been resolved. 14 The judgment of the Court of Appeals accordingly is affirmed. 15 Affirmed. 16 Mr. Justice REED, Mr. Justice DOUGLAS and Mr. Justice JACKSON are of the opinion that the judgment should be reversed. 1 61 Stat. 140—141, 29 U.S.C. (Supp. III) § 158(b)(4)(A), 29 U.S.C.A. § 158(b)(4)(A). For text see National Labor Relations Board v. Denver Building and Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, note 1. 2 The Labor Management Relations Act, 1947, was enacted into law June 23, 1947, but Title I, containing § 8(b)(4)(A), took effect 60 days later. 61 Stat. 152, 162, 29 U.S.C. (Supp. III), note following § 151, 29 U.S.C.A. § 151 note. 3 The complaint originally also charged violations of § 8(b)(1)(A) but the Board dismissed those allegations and they are not before us. 4 61 Stat. 149—150, 29 U.S.C. (Supp. III) § 160(l), 29 U.S.C.A. § 160(l). For text see National Labor Relations Board v. Denver Building and Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, note 10. 5 61 Stat. 147—148, 29 U.S.C. (Supp. III) § 160(e), 29 U.S.C.A. § 160(e). 6 The examiner expressed doubt as to whether the carpenters were employees of Parker or of Stanley but decided to assume that they were employees of Stanley. 80 N.L.R.B. at 544, n. 12. 7 61 Stat. 142, 29 U.S.C. (Supp. III) § 158(c), 29 U.S.C.A. § 158(c). For text see the Denver case, 341 U.S. 675, 71 S.Ct. 943, note 20. 8 The examiner found that Henderson testified credibly that this rule applied whether or not the nonunion men were physically present at the moment. It was enough that nonunion men were employed on the project. Henderson, therefore, applied the rule here because, although Watson's men were absent from the project on August 21, 1947, Watson's installation contract was not yet complete, and it was clear that its completion would mean the return of nonunion men to the project. Henderson testified also that the rule applied even to the employment of nonunion labor which did not come under the jurisdiction of Local 74. 80 N.L.R.B. at 546, 553, n. 33. 9 In the proceedings for an injunction under § 10(l) the District Court so held. Its decision, however, was based upon the affidavits before it rather than upon the record before the Board and its conclusion did not bind the Board in the proceeding on the merits. 74 F.Supp. 499, and see National Labor Relations Board v. Denver Building and Construction Trades Council, 341 U.S. 679—685, 71 S.Ct. 947—949. 10 Petitioners gain nothing from, § 102: 'No provision of this title (which includes § 8(b)(4)(A)) shall be deemed to make an unfair labor practice any act which was performed prior to the date of the enactment of this Act (June 23, 1947) which did not constitute an unfair labor practice prior thereto * * *.' 61 Stat. 152, 29 U.S.C. (Supp. III), note following § 158, 29 U.S.C.A. § 158 note. 11 For a comparable result relating to a labor dispute which commenced before the taking effect of the National Labor Relations Act of 1935, 29 U.S.C.A. § 151 et seq., see Jeffery-De Witt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 112 A.L.R. 948.

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341 U.S. 622 71 S.Ct. 920 95 L.Ed. 1233 BREARDv.CITY OF ALEXANDRIA, LA. No. 399. Argued March 7, 8, 1951. Decided June 4, 1951. [Syllabus from pages 622-623 intentionally omitted] Mr. E. Russell Shockley, Philadelphia, Pa., for appellant. Mr. Frank H. Peterman, Alexandria, La., for appellee. Mr. Justice REED delivered the opinion of the Court. 1 The appellant here, Jack H. Breard, a regional representative of Keystone Readers Service, Inc., a Pennsylvania corporation, was arrested while going from door to door in the City of Alexandria, Louisiana, soliciting subscriptions for nationally known magazines. The arrest was solely on the ground that he had violated an ordinance because he had not obtained the prior consent of the owners of the residences solicited. Breard, a resident of Texas, was in charge of a crew of solicitors who go from house to house in the various cities and towns in the area under Breard's management and solicit subscriptions for nationally known magazines and periodicals, including among others the Saturday Evening Post, Ladies Home Journal, Country Gentleman, Holiday, Newsweek, American Home, Cosmopolitan, Esquire, Pic, Parents, Today's Woman and True. These solicitors spend only a few days in each city, depending upon its size. Keystone sends a card from its home office to the new subscribers acknowledging receipt of the subscription and thereafter the periodical is forwarded to the subscriber by the publisher in interstate commerce through the mails. 2 The ordinance under which the arrest was made, so far as is here pertinent, reads as follows: 3 'Section 1. Be it ordained by the council of the city of Alexandria, Louisiana, in legal session convened that the practice of going in and upon private residences in the City of Alexandria, Louisiana by solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise not having been requested or invited so to do by the owner or owners, occupant or occupants of said private residences for the purpose of soliciting orders for the sale of goods, wares and merchandise and/or disposing of and/or peddling or hawking the same is declared to be a nuisance and punishable as such nuisance as a misdemeanor.' 4 It, or one of similar import, has been on the statute books of Alexandria for many years. It is stipulated that: 5 'Such ordinance was enacted by theCity Council, among other reasons, because some householders complained to those in authority that in some instances, for one reason or another, solicitors were undesirable or discourteous, and some householders complained that, whether a solicitor was courteous or not, they did not desire any uninvited intrusion into the privacy of their home.' 6 The protective purposes of the ordinance were underscored by the Supreme Court of Louisiana in its opinion. 217 La. 820, 47 So.2d 553, at page 555. 7 At appellant's trial for violation of the ordinance, there was a motion to quash on the ground that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution; that it violates the Federal Commerce Clause, art. 1, § 8, cl. 3; and that it violates the guarantees of the First Amendment of freedom of speech and of the press, made applicable to the states by the Fourteenth Amendment to the Constitution of the United States. Appellant's motion to quash was overruled by the trial court and he was found guilty and sentenced to pay a $25 fine or serve 30 days in jail. The Supreme Court of Louisiana affirmed appellant's conviction and expressly rejected the federal constitutional objections. 217 La. 820, 47 So.2d 553. The case is here on appeal, 28 U.S.C. § 1257, Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869. 8 All declare for liberty and proceed to disagree among themselves as to its true meaning. There is equal unanimity that opportunists, for private gain, cannot be permitted to arm themselves with an acceptable principle, such as that of a right to work, a privilege to engage in interstate commerce, or a free press, and proceed to use it as an iron standard to smooth their path by crushing the living rights of others to privacy and repose. This case calls for an adjustment of constitutional rights in the light of the particular living conditions of the time and place. Everyone cannot have his own way and each must yield something to the reasonable satisfaction of the needs of all. 9 It is true that the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers for all kinds of salable articles.1 When such visitors are barred from premises by notice or order, however, subsequent trespasses have been punished.2 Door-to-door canvassing has flourished increasingly in recent years with the ready market furnished by the rapid concentration of housing. The infrequent and still welcome solicitor to the rural home became to some a recurring nuisance in towns when the visits were multiplied.3 Unwanted knocks on the door by day or night are a nuisance, or worse, to peace and quiet. The local retail merchant, too, has not been unmindful of the effective competition furnished by house-to-house selling in many lines. As a matter of business fairness, it may be thought not really sporting to corner the quarry in his home and through his open door put pressure on the prospect to purchase. As the exigencies of trade are not ordinarily expected to have a higher rating constitutionally than the tranquillity of the fireside, responsible municipal officers have sought a way to curb the annoyances while preserving complete freedom for desirable visitors to the homes. The idea of barring classified salesmen from homes by means of notices posted by individual householders was rejected early as less practical than an ordinance regulating solicitors.4 10 The Town of Green River, Wyoming, undertook in 1931 to remedy by ordinance the irritating incidents of house-to-house canvassing for sales. The substance of that ordinance, so far as here material, is the same as that of Alexandria, Louisiana.5 The Green River ordinance was sustained by the Circuit Court of Appeals of the Tenth Circuit in 1933 against an attack by a nonresident corporation, a solicitor of orders, through a bill for an injunction to prohibit its enforcement, on the federal constitutional grounds of interference with interstate commerce, deprivation of property without due process of law, and denial of the equal protection of the laws. Town of Green River v. Fuller Brush Co., 10 Cir., 65 F.2d 112. No review of that decision was sought. An employee of the Brush Company challenged the same ordinance again in the courts of Wyoming in 1936 on a prosecution by the town for the misdemeanor of violating its terms. On this attack certain purely state grounds were relied upon, which we need not notice, and the charges of violation of the Federal Constitution were repeated. The ordinance was held valid by the Supreme Court of Wyoming. Town of Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456.6 11 Due Process.—On appeal to this Court, appellant urged particularly the unconstitutionality under the Fourteenth Amendment Due Process Clause of such unreasonable restraints as the Green River ordinance placed on 'the right to engage in one of the common occupations of life,' citing inter alia, New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S.Ct. 371, 374, 76 L.Ed. 747, and Adams v. Tanner, 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336. He also relied upon the alleged prohibition of interstate commerce under the guise of a police regulation.7 12 Here this Court dismissed for want of a substantial federal question. Bunger v. Green River, 300 U.S. 638, 57 S.Ct. 510, 81 L.Ed. 854. For an answer to the argument that the ordinance denied due process because of its unreasonable restraint on the right to engage in a legitimate occupation, this Court cited three cases: Gunding v. Chicago, 177 U.S. 183, 20 S.Ct. 633, 44 L.Ed. 725;8 Western Turf Association v. Greenberg, 204 U.S. 359, 27 S.Ct. 384, 51 L.Ed. 520;9 and Williams v. Arkansas, 217 U.S. 79, 30 S.Ct. 493, 54 L.Ed. 673.10 13 The opinions of this Court since this Green River case have not given any ground to argue that the police power of a state over soliciting has constitutional infirmities under the due process principle embodied in the concept of freedom to carry on an inoffensive trade or business. Decisions such as Liebmann and Tanner, supra, invalidating legislative action, are hardly in point here. The former required a certificate of convenience and necessity to manufacture ice, and the latter prohibited employment agencies from receiving remuneration for their services. The Green River ordinance can be characterized as prohibitory of appellant's legitimate business of obtaining subscriptions to periodicals only in the limited sense of forbidding solicitation of subscriptions by house-to-house canvass without invitation. All regulatory legislation is prohibitory in that sense. The usual methods of solicitation—radio, periodicals, mail, local agencies—are open.11 Furthermore, neither case is in as strong a position today as it was when Bunger appealed. See Olsen v. Nebraska, 313 U.S. 236, 243, et seq., 61 S.Ct. 862, 863, 85 L.Ed. 1305, and Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 535, 69 S.Ct. 251, 256, 93 L.Ed. 212. 14 The Constitution's protection of property rights does not make a state or a city impotent to guard its citizens against the annoyances of life because the regulation may restrict the manner of doing a legitimate business.12 The question of a man's right to carry on with propriety a standard method of selling is presented here in its most appealing form—an assertion by a door-to-door solicitor that the Due Process Clause of the Fourteenth Amendment does not permit a state or its subdivisions to deprive a specialist in door-to-door selling of his means of livelihood. But putting aside the argument that after all it is the commerce, i.e., sales of periodicals, and not the methods, that is petitioner's business, we think that even a legitimate occupation may be restricted or prohibited in the public interest. See the dissent in New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 303, 52 S.Ct. 371, 375, 383, 76 L.Ed. 747. The problem is legislative where there are reasonable bases for legislative action.13 We hold that this ordinance is not invalid under the Due Process Clause of the Fourteenth Amendment. 15 Commerce Clause.—Nor did this Court in Bunger consider the Green River ordinance invalid under the Commerce Clause as an unreasonable burden upon or an interference with interstate commerce.14 As against the cases cited in Bunger's behalf this Court relied upon Asbell v. Kansas, 209 U.S. 251, 254, 255, 28 S.Ct. 485, 486, 52 L.Ed. 778 (allowing Kansas to have its own inspection for cattle imported into the state, except for immediate slaughter); Savage v. Jones, 225 U.S. 501, 525, 32 S.Ct. 715, 722, 56 L.Ed. 1182 (allowing a state to regulate the sale and require a formula for stock feeds); Hartford Accident & Indemnity Co. v. People of State of Illinois, 298 U.S. 155, 158, 56 S.Ct. 685, 686, 80 L.Ed. 1099 (upholding an Illinois statute requiring commission merchants to keep record of out-of-state consignments and obtain a license and give a bond).15 16 Appellant does not, of course, argue that the Commerce Clause forbids all local regulation of solicitation for interstate business. 17 'Under our constitutional system, there necessarily remains to the States, until Congress acts, a wide range for the permissible exercise of power appropriate to their territorial jurisdiction although interstate commerce may be affected. * * * States are thus enabled to deal with local exigencies and to exert in the absence of conflict with federal legislation an essential protective power.'16 18 Such state power has long been recognized.17 Appellant argues that the ordinance violates the Commerce Clause 'because the practical operation of the ordinance, as applied to appellant and others similarly situated, imposes an undue and discriminatory burden upon interstate commerce and in effect is tantamount to a prohibition of such commerce.' The attempt to secure the householder's consent is said to be too costly and the results negligible. The extent of this interstate business, as stipulated, is large.18 Appellant asserts that Green River v. Bunger, supra, is inapplicable to the commerce issue, although the point was made and met, because the effect of the ordinance at that date, 1936, upon commerce was 'incidental'19 and because it was decided 'before the widespread enactment of Green River Ordinances and before their actual and cumulative effect upon interstate commerce could possibly be forecast.' It is urged that our recent cases of Hood & Sons v. DuMond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865, and Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S.Ct. 295, demonstrate that this Court will not permit local interests to protect themselves against out-of-state competition by curtailing interstate business.20 19 It was partly because the regulation in Dean Milk Co. discriminated against interstate commerce that it was struck down. 20 'In thus erecting an economic barrier protecting a major local industry against competition from without the State, Madison plainly discriminates against interstate commerce. This it cannot do, even in the exercise of its unquestioned power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests, are available.' 340 U.S. at page 354, 71 S.Ct. at page 298. 21 Nor does the clause as to alternatives apply to the Alexandria ordinance. Interstate commerce itself knocks on the local door. It is only by regulating that knock that the interests of the home may be protected by public as distinct from private action.21 Likewise in Hood & Sons v. DuMond it was the discrimination against out-of-state dealers that invalidated the order refusing a license to buy milk to an out-of-state distributor.22 Where no discrimination existed, in a somewhat similar situation, we upheld the state regulation as a permissible burden on commerce.23 See in accord, Panhandle Eastern Pipe Line Co. v. Michigan Pub. Serv. Comm., supra, 341 U.S. 329, 336, 71 S.Ct. 777, 781. 22 We recognize the importance to publishers of our many periodicals of the house-to-house method of selling by solicitation. As a matter of constitutional law, however, they in their business operations are in no different position so far as the Commerce Clause is concerned than the sellers of other wares.24 Appellant, as their representative or in his own right as a door-to-door canvasser, is no more free to violate local regulations to protect privacy than are other solicitors. As we said above, the usual methods of seeking business are left open by the ordinance. That such methods do not produce as much business as house-to-house canvassing is, constitutionally, immaterial and a matter for adjustment at the local level in the absence of federal legislation. Cf. Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 66 S.Ct. 1142, 90 L.Ed. 1342. Taxation that threatens interstate commerce with prohibition or discrimination is bad, Nippert v. Richmond, 327 U.S. 416, 434, 66 S.Ct. 586, 594, 90 L.Ed. 760, but regulation that leaves out-of-state sellers on the same basis as local sellers cannot be invalid for that reason. 23 While taxation and licensing of hawking or peddling, defined as selling and delivering in the state, has long been thought to show no violation of the Commerce Clause, solicitation of orders with subsequent interstate shipment has been immune from such an exaction.25 These decisions have been explained by this Court as embodying a protection of commerce against discrimination made most apparent by fixed-sum licenses regardless of sales.26 Where the legislation is not an added financial burden upon sales in commerce or an exaction for the privilege of doing interstate commerce but a regulation of local matters, different considerations apply. 24 We think Alexandria's ordinance falls in the classification of regulation. The economic effects on interstate commerce in door-to-door soliciting cannot be gainsaid. To solicitors so engaged, ordinances such as this compel the development of a new technique of approach to prospects. Their local retail competitors gain advantages from the location of their stores and investments in their stock but the solicitor retains his flexibility of movement and freedom from heavy investment. 25 The general use of the Green River type of ordinance shows its adaptation to the needs of the many communities that have enacted it. We are not willing even to appraise the suggestion, unsupported in the record, that such wide use springs predominantly from the selfish influence of local merchants. 26 Even before this Court's decision in Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313, holding invalid, when applied to a person distributing leaflets advertising a religious meeting, an ordinance of the City of Struthers, Ohio, forbidding the summoning of the occupants of a residence to the door, our less extreme cases had created comment. See Chafee, Free Speech in the United States (1941) 406.27 27 To the city council falls the duty of protecting its citizens against the practices deemed subversive of privacy and of quiet. A householder depends for protection on his city board rather than churlishly guarding his entrances with orders forbidding the entrance of solicitors. A sign would have to be a small billboard to make the differentiations between the welcome and unwelcome that can be written in an ordinance once cheaply for all homes. 28 'The police power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community.'28 29 When there is a reasonable basis for legislation to protect the social, as distinguished from the economic, welfare of a community, it is not for this Court because of the Commerce Clause to deny the exercise locally of the sovereign power of Louisiana.29 Changing living conditions or variations in the experiences or habits of different communities may well call for different legislative regulations as to methods and manners of doing business. Powers of municipalities are subject to control by the states. Their judgment of local needs is made from a more intimate knowledge of local conditions than that of any other legislative body. We cannot say that this ordinance of Alexandria so burdens or impedes interstate commerce as to exceed the regulatory powers of that city. 30 First Amendment.—Finally we come to a point not heretofore urged in this Court as a ground for the invalidation of a Green River ordinance. This is that such an ordinance is an abridgment of freedom of speech and the press. Only the press or oral advocates of ideas could urge this point. It was not open to the solicitors for gadgets or brushes. The point is not that the press is free of the ordinary restraints and regulations of the modern state, such as taxation or labor regulation, referred to above at note 24, but, as stated in appellant's brief, 'because the ordinance places an arbitrary, unreasonable and undue burden upon a well established and essential method of distribution and circulation of lawful magazines and periodicals and, in effect, is tantamount to a prohibition of the utilization of such method.' Regulation necessarily has elements of prohibition. Thus the argument is not that the money-making activities of the solicitor entitle him to go 'in or upon private residences' at will, but that the distribution of periodicals through door-to-door canvassing is entitled to First Amendment protection.30 This kind of distribution is said to be protected because the mere fact that money is made out of the distribution does not bar the publications from First Amendment protection.31 We agree that the fact that periodicals are sold does not put them beyond the protection of the First Amendment.32 The selling, however, brings into the transaction a commercial feature. 31 The First and Fourteenth Amendments have never been treated as absolutes.33 Freedom of speech or press does not mean that one can talk or distribute where, when and how one chooses. Rights other than those of the advocates are involved. By adjustment of rights, we can have both full liberty of expression and an orderly life. 32 The case that comes nearest to supporting appellant's contention is Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 863. There a municipal ordinance forbidding anyone summoning the occupants of a residence to the door to receive advertisements was held invalid as applied to the free distribution of dodgers 'advertising a religious meeting.' Attention was directed in note 1 of that case to the fact that the ordinance was not aimed 'solely at commercial advertising.' It was said: 33 'The ordinance does not control anything but the distribution of literature, and in that respect it substitutes the judgment of the community for the judgment of the individual householder.' 319 U.S. at pages 143—144, 63 S.Ct. at page 863. 34 The decision to release the distributor was because: 35 'Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved.' 319 U.S. at pages 146—147, 63 S.Ct. at page 865. There was dissent even to this carefully phrased application of the principles of the First Amendment. As no element of the commercial entered into this free solicitation and the opinion was narrowly limited to the precise fact of the free distribution of an invitation to religious services, we feel that it is not necessarily inconsistent with the conclusion reached in this case. 36 In Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, and Tucker v. Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274,34 a state was held by this Court unable to punish for trespass, after notice under a state criminal statute, certain distributors of printed matter, more religious than commercial. The statute was held invalid under the principles of the First Amendment. In the Marsh case it was a private corporation, in the Tucker case the United States, that owned the property used as permissive passways in company and government-owned towns. In neither case was there dedication to public use but it seems fair to say that the permissive use of the ways was considered equal to such dedication. Such protection was not extended to colporteurs offending against similar state trespass laws by distributing, after notice to desist, like publications to the tenants in a private apartment house. Hall v. Virginia, 188 Va. 72, 49 S.E.2d 369, appeal, after conviction, on the ground of denial of First Amendment rights, dismissed on motion of appellee to dismiss because of lack of substance in the question, 335 U.S. 875, 912, 69 S.Ct. 240, 480, 93 L.Ed. 418; see note 2, supra. 37 Since it is not private individuals but the local and federal governments that are prohibited by the First and Fourteenth Amendments from abridging free speech or press, Hall v. Virginia does not rule a conviction for trespass after notice by ordinance. However, if as we have shown above, 341 U.S. 640, 71 S.Ct. 931, a city council may speak for the citizens on matters subject to the police power, we would have in the present prosecution the time-honored offense of trespass on private grounds after notice. Thus the Marsh and Tucker cases are not applicable here. 38 This makes the constitutionality of Alexandria's ordinance turn upon a balancing of the conveniences between some householders' desire for privacy and the publisher's right to distribute publications in the precise way that those soliciting for him think brings the best results. The issue brings into collision the rights of the hospitable housewife, peering on Monday morning around her chained door with those of Mr. Breard's courteous, well-trained but possibly persistent solicitor, offering a bargain on culture and information through a joint subscription to the Saturday Evening Post, Pic and Today's Woman. Behind the housewife are many housewives and homeowners in the towns where Green River ordinances offer their aid. Behind Mr. Breard are 'Keystone' with an annual business of $5,000,000 in subscriptions and the periodicals with their use of house-to-house canvassing to secure subscribers for their valuable publications, together with other housewives who desire solicitors to offer them the opportunity and remind and help them, at their doors, to subscribe for publications. 39 Subscriptions may be made by anyone interested in receiving the magazines without the annoyances of house-to-house canvassing. We think those communities that have found these methods of sale obnoxious may control them by ordinance. It would be, it seems to us, a misuse of the great guarantees of free speech and free press to use those guarantees to force a community to admit the solicitors of publications to the home premises of its residents. We see no abridgment of the principles of the First Amendment in this ordinance. 40 Affirmed. 41 Mr. Chief Justice VINSON, with whom Mr. Justice DOUGLAS, joins, dissenting. 42 The ordinance before us makes criminal the hitherto legitimate business practice of soliciting magazine subscriptions from door to door without prior invitation of the home owner. Looking only to the face of that ordinance, the Court sustains it as against objections under the Due Process Clause, the Commerce Clause and the First Amendment. I dissent and would reverse the judgment below without reaching all of the issues raised, for, in my opinion, the ordinance constitutes an undue and discriminatory burden on interstate commerce. 43 The Court holds that because the 'ordinance falls in the classification of regulation,' the city council is free to burden interstate commerce. 341 U.S. 638, 71 S.Ct. 931. In my view, the ordinance is a flat prohibition of solicitation. The Louisiana Supreme Court recognized this fact when it characterized the ordinance as 'provid(ing) for a blanket prohibition of solicitation without invitation, save for food vendors, who are specifically exempt.' 217 La. at page 828, 47 So.2d at page 556. Unlike this Court, the state court acknowledged the prohibitory character of the ordinance in rejecting appellant's claim under the Commerce Clause in the following portion of its opinion: 44 'The ordinance imposes no tax, no license. It is a prohibition of an activity on local territory, involving the problematical sale of a commodity originating in another state, which is actually distributed through the United States Mails. It imposes no burden on the distribution itself, nor on the manufacture of the commodity, nor on any phase of the transportation from one place to another of that commodity.' (Emphasis in original.) 217 La. at page 829, 47 So.2d at page 556. 45 At least since the decision in Robbins v. Shelby County Taxing District, 1887, 120 U.S. 489, 497, 7 S.Ct. 592, 596, 30 L.Ed. 694, this Court has regarded the process of soliciting orders for goods to be shipped across state lines as being interstate commerce as much as the transportation itself. Under the line of cases following this principle, reexamined and reaffirmed in Nippert v. Richmond, 1946, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760, the process of solicitation for interstate commerce cannot be subjected to taxes, licenses or bonding requirements that in their practical operation discriminate against or unduly burden interstate commerce. The Court does not today purport to overrule this line of decisions. And it acknowledges, as it must, that the Court has sharply distinguished the process of solicitation of interstate business from the essentially local retailing operations of hawking and peddling. See Wagner v. Covington, 1919, 251 U.S. 95, 103—104, 40 S.Ct. 93, 95, 64 L.Ed. 157, and cases cited therein. Nor does the opinion dispute that this ordinance has a severe economic impact upon the substantial interstate business of appellant's employer, as well as the entire magazine industry which derives 50% to 60% of its annual subscription circulation from the very type of solicitation prohibited by this ordinance. I disagree with the Court in its holding that an ordinance imposing a 'blanket prohibition' can be sustained under the Commerce Clause as mere regulation. 46 Congress is given the power 'To regulate commerce * * * among the several States.' U.S.Const. Art. I, § 8, cl. 3. The doctrine of Cooley v. Board of Port Wardens, 1851, 12 How. 299, 13 L.Ed. 996, permits a state to exercise its police powers in a manner impinging upon interstate commerce only where the subject of regulation is essentially local and then only when there is no discrimination against or undue burden on interstate commerce. This is an approach grounded in the practical, an approach which imposes upon this Court the 'duty to determine whether the statute (or ordinance) under attack, whatever its name may be, will in its practical operation work discrimination against interstate commerce.' Best & Co. v. Maxwell, 1940, 311 U.S. 454, 455—456, 61 S.Ct. 334, 335, 85 L.Ed. 275. That this ordinance, on its face, professes to protect the home does not relieve us of our duty to weigh the practical effect of the ordinance upon interstate commerce. Lack of discrimination on its face has not heretofore been regarded as sufficient to sustain an ordinance without inquiry into its practical effects upon interstate commerce. E.g., Dean Milk Co. v. Madison, 1951, 340 U.S. 349, 354, 71 S.Ct. 295, 297 (prohibition against sale of milk pasteurized more than five miles from city); Real Silk Hosiery Mills v. Portland, 1925, 268 U.S. 325, 336, 45 S.Ct. 525, 526, 69 L.Ed. 982, (requirement that solicitors file bond); Minnesota v. Barber, 1890, 136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455 (statute requiring inspection of meat within state). 47 In passing upon other ordinances affecting solicitors, this Court has not hesitated in noting the economic fact that 'the 'real competitors' of (solicitors) are, among others, the local retail merchants.' Nippert v. Richmond, supra, 327 U.S. at page 433, 66 S.Ct. at page 594, citing Best & Co. v. Maxwell, supra. See also Robbins v. Shelby County Taxing District, supra, 120 U.S. at page 498, 7 S.Ct. 596. The Court acknowledges 'effective competition' between solicitors and the local retail merchants, 341 U.S. 627, 71 S.Ct. 924, but is deliberate in its refusal to appraise the practical effect of this ordinance as a deterrent to interstate commerce, 341 U.S. 639, 71 S.Ct. 931. I think it plain that a 'blanket prohibition' upon appellant's solicitation discriminates against and unduly burdens interstate commerce in favoring local retail merchants. 'Whether or not it was so intended, those are its necessary effects.' Nippert v. Richmond, supra, 327 U.S. at page 434, 66 S.Ct. at page 595. The fact that this ordinance exempts solicitation by the essentially local purveyors of farm products shows that local economic interests are relieved of the burdensome effects of the ordinance. No one doubts that protection of the home is a proper subject of legislation, but that end can be served without prohibiting interstate commerce. Our prior decisions cannot be avoided by limiting their authority to the limited categories of tax and license. On the contrary, we must guard against state action which, "in any form or under any guise, directly burden(s) the prosecution of interstate business." Baldwin v. G.A.F. Seelig, Inc., 1935, 294 U.S. 511, 522, 55 S.Ct. 497, 500, 79 L.Ed. 1032, citing International Textbook Co. v. Pigg, 1910, 217 U.S. 91, 112, 30 S.Ct. 481, 487, 54 L.Ed. 678. See also Hood & Sons v. DuMond, 1949, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865. I cannot agree that this Court should defer to the City Council of Alexandria as though we had before us an act of Congress regulating commerce. See 341 U.S. 640, 71 S.Ct. 931. '(T)his Court, and not the state legislature (or the city council), is under the commerce clause the final arbiter of the competing demands of state (or local) and national interests.' Southern Pacific Co. v. Arizona, 1945, 325 U.S. 761, 769, 65 S.Ct. 1515, 1520, 89 L.Ed. 1915. 48 The Court relies upon Bunger v. Green River, 1937, 300 U.S. 638, 57 S.Ct. 510, 81 L.Ed. 854, where the conviction of a Fuller Brush man was sustained under an ordinance akin to the one before us. The order was entered without argument, without opinion and with citation of the three cases discussed by the Court, 341 U.S. 633, 71 S.Ct. 928, each of which cases sustained as 'incidental' to interstate commerce state action regulating local inspection and feeding of cattle, and the sale of produce.* 49 I would apply to this case the principles so recently announced in Dean Milk Co. v. Madison, 1951, 340 U.S. 349, 71 S.Ct. 295. In the course of its discussion of our Dean Milk decision, the Court remarks that in the instant case 'Interstate commerce itself knocks on the local door.' 341 U.S. 636, 71 S.Ct. 929. As I read the prior decisions of this Court, that fact, far from justifying avoidance of Dean Milk, buttresses my conclusion that the ordinance cannot consistently with the Commerce Clause be applied to appellant. 50 Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting. 51 On May 3, 1943, this Court held that cities and states could not enforce laws which impose flat taxes on the privilege of door-to-door sales of religious literature, Jones v. Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; Murdock v. Com. of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, or which make it unlawful for persons to go from home to home knocking on doors and ringing doorbells to invite occupants to religious, political or other kinds of public meetings. Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313. Over strong dissents, these laws were held to invade liberty of speech, press and religion in violation of the First and Fourteenth Amendments. Today a new majority adopts the position of the former dissenters and sustains a city ordinance forbidding door-to-door solicitation of subscriptions to the Saturday Evening Post, Newsweek and other magazines. Since this decision cannot be reconciled with the Jones, Murdock and Martin v. Struthers cases, it seems to me that good judicial practice calls for their forthright overruling. But whether this is done or not, it should be plain that my disagreement with the majority of the Court as now constituted stems basically from a different concept of the reach of the constitutional liberty of the press rather than from any difference of opinion as to what former cases have held. 52 Today's decision marks a revitalization of the judicial views which prevailed before this Court embraced the philosophy that the First Amendment gives a preferred status to the liberties it protects. I adhere to that preferred position philosophy. It is my belief that the freedom of the people of this Nation cannot survive even a little governmental hobbling of religious or political ideas, whether they be communicated orally or through the press. 53 The constitutional sanctuary for the press must necessarily include liberty to publish and circulate. In view of our economic system, it must also include freedom to solicit paying subscribers. Of course homeowners can if they wish forbid newsboys, reporters or magazine solicitors to ring their doorbells. But when the homeowner himself has not done this, I believe that the First Amendment, interpreted with due regard for the freedoms it guarantees, bars laws like the present ordinance which punish persons who peacefully go from door to door as agents of the press.* 1 Restatement of Torts, § 167; Cooley, Torts (4th ed.) § 248. 2 Hall v. Com. of Virginia, 188 Va. 72, 49 S.E.2d 369, appeal dismissed 335 U.S. 875, 69 S.Ct. 240, 93 L.Ed. 418; statutes collected Martin v. City of Struthers, 319 U.S. 141, 147, note 10, 63 S.Ct. 862, 865, 87 L.Ed. 1313. 3 'We must assume that the practice existed in the town as the first section states, and that it had become annoying and disturbing and objectionable to at least some of the citizens. We think like practices have become so general and common as to be of judicial knowledge, and that the frequent ringing of doorbells of private residences by itinerant vendors and solicitors is in fact a nuisance to the occupants of homes. It is not appellee and its solicitors and their methods alone that must be considered in determining the reasonableness of the ordinance, but many others as well who seek in the same way to dispose of their wares. One follows another until the ringing doorbells disturb the quietude of the home and become a constant annoyance.' Town of Green River v. Fuller Brush Co., 10 Cir., 65 F.2d 112, 114, 88 A.L.R. 177. 4 Town of Green River v. Bunger, 50 Wyo. 52, 70, 58 P.2d 456, 462; cf. Real Silk Hosiery Mills v. City of Richmond, D.C., 298 F. 126. 5 The ordinance now under consideration, § 3, does not apply to 'the sale, or soliciting of orders for the sale, of milk, dairy products, vegetables, poultry, eggs and other farm and garden produce * * *.' Appellant makes no point against the present ordinance on the ground of invalid classification. Cf. Tigner v. Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124; Williams v. Arkansas, 217 U.S. 79, 90, 30 S.Ct. 493, 495, 54 L.Ed. 673. 6 The validity of Green River ordinances has also been considered in a number of state courts. Five states—Colorado, Louisiana (in cases previous to the instant one), New Mexico, New York, and Wyoming—have upheld the ordinance, against objections that it was beyond the scope of the police power, deprived vendors of property rights without due process of law, deprived them of the equal protection of the laws, and infringed upon the Commerce Clause, and the First and Fourteenth Amendments. McCormick v. City of Montrose, 105 Colo. 493, 99 P.2d 969; Shreveport v. Cunningham, 190 La. 481, 482, 182 So. 649; City of Alexandria v. Jones, 216 La. 923, 45 So.2d 79; Green v. Gallup, 46 N.M. 71, 120 P.2d 619; People v. Bohnke, 287 N.Y. 154, 38 N.E.2d 478; Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456. Eleven states, on the other hand, have held such ordinances invalid. All of these states acted in part at least on nonfederal grounds, and the only federal constitutional argument, which was considered by three states, was that based on the Due Process Clause. No state court, in voiding the ordinance, has reached the Commerce Clause or the First Amendment issues urged here. The principal grounds relied on have been that the prohibited conduct amounted at most only to a private nuisance and not a public one; that there was no showing of injury to public health or safety by the prohibited conduct; that there was a vested right in a lawful occupation, so that it was subject only to regulation but not to prohibition; and that the ordinance was beyond the delegated powers of the municipality. Prior v. White, 132 Fla. 1, 180 So. 347, 116 A.L.R. 1176 (not more than a private nuisance); Clay v. Matthews, 185 Ga. 279, 194 S.E. 172 (affirming without opinion by an evenly divided court); DeBerry v. LaGrange, 62 Ga.App. 74, 8 S.E.2d 146 (not a nuisance; invades an inalienable right to the occupation of soliciting); Osceola v. Blair, 231 Iowa 770, 2 N.W.2d 83 (not a nuisance, deprives persons of a property right in their occupation); City of Mt. Sterling v. Donaldson Baking Co., 287 Ky. 781, 155 S.W.2d 237 (not a public nuisance, beyond the scope of the municipal police power); Jewel Tea Co. v. Bel Air, 172 Md. 536, 192 A. 417 (not a nuisance, nor within delegated powers of municipality); Jewel Tea Co. v. Geneva, 137 Neb. 768, 291 N.W. 664 (not a public nuisance, arbitrary, violates Due Process Clause, citing Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813); N.J. Good Humor, Inc., v. Board of Commissioners, 124 N.J.L. 162, 11 A.2d 113 (not a valid police regulation, beyond powers of municipality); McAlester v. Grand Union Tea Co., 186 Okl. 487, 98 P.2d 924 (only a private nuisance); City of Orangeburg v. Farmer, 181 S.C. 143, 186 S.E. 783 (unreasonable, prohibits a lawful occupation, in violation of state and federal due process, enacted with improper motive); Ex parte Faulkner, 143 Tex.Cr.R. 272, 158 S.W.2d 525 (beyond the powers of the municipality); White v. Town of Culpeper, 172 Va. 630, 1 S.E.2d 269 (not a public nuisance). The ordinances in the Bel Air and Culpeper cases contained discriminatory provisions not involved in the instant case. It should be noted also that while New York upheld the ordinance in Bohnke, supra, as applied to distribution of religious tracts, that case was decided before this Court's decision in Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313. Enforcement of Green River ordinances has subsequently been enjoined as against members of the Jehovah's Witnesses sect, in Donley v. Colorado Springs, D.C., 40 F.Supp. 15, and Zimmerman v. Village of London, D.C.Ohio, 38 F.Supp. 582. 7 He cited: Real Silk Hosiery Mills v. Portland, 268 U.S. 325, 45 S.Ct. 525, 69 L.Ed. 982; DiSanto v. Pennsylvania, 273 U.S. 34, 47 S.Ct. 267, 71 L.Ed. 524; International Textbook Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678; Rogers v. Arkansas, 227 U.S. 401, 33 S.Ct. 298, 57 L.Ed. 569; Robbins v. Shelby Taxing District, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694; Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032; Stewart v. People of State of Michigan, 232 U.S. 665, 34 S.Ct. 476, 58 L.Ed. 786. 8 An ordinance forbidding the sale of cigarettes without a license was upheld. 'Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and what such regulations shall be and to what particular trade, business or occupation they shall apply, are questions for the State to determine, and their determination comes within the proper exercise of the police power by the State, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the State to pass, and they form no subject for Federal interference.' 177 U.S. at page 188, 20 S.Ct. at page 635. 9 A statute making it unlawful to refuse a purchaser of a ticket admission to a place of public entertainment except in certain circumstances relating to drunkenness and vice, was upheld. 'Does the statute deprive the defendant of any property right without due process of law? We answer this question in the negative. Decisions of this court, familiar to all, and which need not be cited, recognize the possession, by each State, of powers never surrendered to the general government; which powers the state, except as restrained by its own Constitution or the Constitution of the United States, may exert not only for the public health, the public morals, and the public safety, but for the general or common good, for the well-being, comfort and good order of the people.' 204 U.S. at page 363, 27 S.Ct. at page 386. 'Such a regulation, in itself just, is likewise promotive of peace and good order among those who attend places of public entertainment or amusement.' 204 U.S. at page 364, 27 S.Ct. at page 386. 10 The following sections of a statute of Arkansas, Acts 1907, Act No. 236, were upheld: "Sec. 1. That it shall be unlawful for any person or persons, except as hereinafter provided in § 2 of this act, to drum or solicit business or patronage for any hotel, lodging house, eating house, bath house, physician, masseur, surgeon, or other medical practitioner, on the trains, cars, depots of any railroad or common carrier operating or running within the State of Arkansas. "Sec. 2. That it shall be unlawful for any railroad or common carrier operating a line within the State of Arkansas knowingly to permit its trains, cars or depots within the State to be used by any person or persons for drumming or soliciting business or patronage for any hotel, lodging house, eating house, bath house, physician, masseur, surgeon, or other medical practitioner, or drumming or soliciting for any business or profession whatsoever; * * *." 217 U.S. 86, 30 S.Ct. 493. This Court quoted the Supreme Court of Arkansas as saying: "Drummers who swarm through the trains soliciting for physicians, bath houses, hotels, etc., make existence a burden to those who are subjected to their repeated solicitations. It is true that the traveler may turn a deaf ear to these importunities, but this does not render it any the less unpleasant and annoying. The drummer may keep within the law against disorderly conduct, and still render himself a source of annoyance to travelers by his much beseeching to be allowed to lead the way to a doctor or a hotel." 217 U.S. 89, 30 S.Ct. 495. 11 But cf. Jensen, Burdening Interstate Direct Selling, 12 Rocky Mtn.L.Rev. 257, 275: 'To disclaim this economic effect of upholding the ordinance and to suggest other methods of merchandising to direct-selling businesses short of local retailing, as was done by the Tenth Circuit Court of Appeals (65 F.2d 112), shows a woeful lack of knowledge of the actual problems of direct-to-consumer merchandising.' 12 Nebbia v. People of State of New York, 291 U.S. 502, 523, 54 S.Ct. 505, 510, 78 L.Ed. 940: 'Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.' Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533; Daniel, Attorney General v. Family Security Life Ins. Co., 336 U.S. 220, 69 S.Ct. 550, 93 L.Ed. 632. 13 State of Arizona v. California, 283 U.S. 423, 454—455, 51 S.Ct. 522, 525, 526, 75 L.Ed. 1154; Henneford v. Silas Mason Co., 300 U.S. 577, 586, 57 S.Ct. 524, 528, 81 L.Ed. 814. 14 Constitution, Art. I, § 8, cl. 3. 15 The cases cited for Bunger may be easily distinguished. The cases of the Shelby County Taxing District, Rogers v. Arkansas, 227 U.S. 401, 33 S.Ct. 298, 57 L.Ed. 569, and Stewart v. Michigan, 232 U.S. 665, 34 S.Ct. 476, 58 L.Ed. 786, relate to taxes upon or licenses to do an interstate business. The same is true of Real Silk Hosiery Mills v. Portland, 268 U.S. 325, 45 S.Ct. 525, 526, 69 L.Ed. 982. There is, however, in this latter case a statement that should be noticed: 'Nor can we accept the theory that an expressed purpose to prevent possible frauds is enough to justify legislation which really interferes with the free flow of legitimate interstate commerce. See Shafer v. Farmers' Grain Co., 268 U.S. 189, 45 S.Ct. 481, 69 L.Ed. 909.' 268 U.S. at page 336, 45 S.Ct. at page 526. That should be read as a comment on an ordinance requiring a license and a bond to carry on interstate business. Cf. Parker v. Brown, 317 U.S. 341, 361, 63 S.Ct. 307, 318, 87 L.Ed. 315. The statute held invalid in the International Textbook case (International Textbook Co. v. Pigg), 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678, was one construed to require a license to transact interstate business. Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032, held invalid a state law prohibiting the sale of milk imported from another state unless the price paid in the selling state reached the minimum price requirement of sellers in the regulating state. The DiSanto case (DiSanto v. Pennsylvania), 273 U.S. 34, 47 S.Ct. 267, 71 L.Ed. 524, holding invalid as a direct burden on commerce a state law requiring steamship agents to procure a license, can no longer be cited as authority for such a ruling. California v. Thompson, 313 U.S. 109, 115, 61 S.Ct. 930, 933, 85 L.Ed. 1219. None of these cases reach the problem here under consideration of local regulation of solicitor's conduct. 16 Kelly v. Washington, 302 U.S. 1, 9—10, 58 S.Ct. 87, 92, 82 L.Ed. 3. 17 Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996; Emert v. Missouri, 156 U.S. 296, 15 S.Ct. 367, 39 L.Ed. 430; Austin v. Tennessee, 179 U.S. 343, 21 S.Ct. 132, 45 L.Ed. 224; The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 402, 408, 33 S.Ct. 729, 741, 743, 57 L.Ed. 1511; South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 187, 625, 58 S.Ct. 510, 514, 82 L.Ed. 734; California v. Thompson, 313 U.S. 109, 61 S.Ct. 930; Parker v. Brown, 317 U.S. 341, 359, 362, 63 S.Ct. 307, 317, 319, 87 L.Ed. 315; Toomer v. Witsell, 334 U.S. 385, 394, 68 S.Ct. 1156, 1161, 92 L.Ed. 1460; Panhandle Eastern Pipe Line Co. v. Michigan Pub.Serv. Comm., 341 U.S. 329, 71 S.Ct. 777. 'As has been so often stated but nevertheless seems to require constant repetition, not all burdens upon commerce, but only undue or discriminatory ones, are forbidden. For, though 'interstate business must pay its way,' a State consistently with the commerce clause cannot put a barrier around its borders to bar out trade from other States and thus bring to naught the great constitutional purpose of the fathers in giving to Congress the power 'To regulate Commerce with foreign Nations, and among the several States * * *'. Nor may the prohibition be accomplished in the guise of taxation which produces the excluding or discriminatory effect.' Nippert v. Richmond, 327 U.S. 416, 425 426, 66 S.Ct. 586, 590, 90 L.Ed. 760. And cf. Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 61 S.Ct. 586, 85 L.Ed. 888, where the maintenance of retail stores within a state by a corporation engaged in direct mail selling was held to permit the state to tax such sales to its residents, even though none of the corporation's agents within the state had any connection with the sales. 18 'The solicitation of subscriptions in the field regularly accounts for from 50% to 60% of the total annual subscription circulation of nationally-distributed magazines which submit verified circulation reports to the Audit Bureau of Circulations. * * * During the period from 1925 to date, the average circulation per issue of such magazines attributable to field subscription solicitation, * * * has amounted to more than 30% of the total average annual circulation per issue * * *.' The total subscription value obtained by Keystone Readers Service, appellant's employer, in 1948 was $5,319,423.40. There is a national association of magazine publishers, a trade organization whose members publish some 400 nationally distributed magazines with a combined circulation of 140 million copies. This association sponsors and maintains a central registry plan to which agencies like Keystone, soliciting subscriptions, belong. 19 'Incidental' as a test has not continued as a useful manner for determining the validity of local regulation of matters affecting interstate commerce. 'Such regulations by the state are to be sustained, not because they are 'indirect' rather than 'direct,' * * * not because they control interstate activities in such a manner as only to affect the commerce rather than to command its operations. But they are to be upheld because upon a consideration of all the relevant facts and circumstances it appears that the matter is one which may appropriately be regulated in the interest of the safety, health and well-being of local communities, and which, because of its local character and the practical difficulties involved, may never be adequately dealt with by Congress.' Parker v. Brown, 317 U.S. 341, 362—363, 63 S.Ct. 307, 319, 87 L.Ed. 315. 20 So far as this argument seeks to blame the passage of the ordinance on local retailers, we disregard it. Such arguments should be presented to legislators, not to courts. Arizona v. California, 283 U.S. 423, 455, 51 S.Ct. 522, 75 L.Ed. 1154. See 341 U.S. 639, 71 S.Ct. 931, supra. 21 340 U.S. at pages 354—355, 71 S.Ct. at page 298: 'If the City of Madison prefers to rely upon its own officials for inspection of distant milk sources, such inspection is readily open to it without hardship for it could charge the actual and reasonable cost of such inspection to the importing producers and processors.' 22 336 U.S. 525, 531—532, 533, 69 S.Ct. 657, 662, 93 L.Ed. 865: 'It (the opinion in Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032) recognized, as do we, broad power in the State to protect its inhabitants against perils to health or safety, fraudulent traders and highway hazards, even by use of measures which bear adversely upon interstate commerce. But it laid repeated emphasis upon the principle that the State may not promote its own economic advantages by curtailment or burdening of interstate commerce. 'This distinction between the power of the State to shelter its people from menaces to their health or safety and from fraud, even when those dangers emanate from interstate commerce, and its lack of power to retard, burden or constrict the flow of such commerce for their economic advantage, is one deeply rooted in both our history and our law.' 23 Milk Control Board v. Eisenberg Farm Products, 306 U.S. 346, 59 S.Ct. 528, 83 L.Ed. 752. 24 Giragi v. Moore, 301 U.S. 670, 57 S.Ct. 946, 81 L.Ed. 1334; Id., 48 Ariz. 33, 58 P.2d 1249, 110 A.L.R. 314; Id., 49 Ariz. 74, 64 P.2d 819, 110 A.L.R. 320; Associated Press v. National Labor Relations Board, 301 U.S. 103, 132—133, 57 S.Ct. 650, 655, 656, 81 L.Ed. 953; Associated Press v. United States, 326 U.S. 1, 7, 65 S.Ct. 1416, 1418, 89 L.Ed. 2013. 25 Emert v. Missouri, 156 U.S. 296, 15 S.Ct. 367, 39 L.Ed. 430; see Commonwealth v. Ober, 12 Cush., Mass., 493; Crenshaw v. Arkansas, 227 U.S. 389, 399—400, 33 S.Ct. 294, 297, 57 L.Ed. 565; Rogers v. Arkansas, 227 U.S. 401, 33 S.Ct. 298, 57 L.Ed. 569; Caskey Baking Co. v. Com. of Virginia, 313 U.S. 117, 119, 61 S.Ct. 881, 882, 85 L.Ed. 1223. 26 McGoldrick v. Berwind-White Co., 309 U.S. 33, 55—57, 60 S.Ct. 388, 397—398, 84 L.Ed. 565; Nippert v. Richmond, 327 U.S. 416, 421—425, 66 S.Ct. 586, 588—590. 27 'House to house canvassing raises more serious problems. Of all the methods of spreading unpopular ideas, this seems the least entitled to extensive protection. The possibilities of persuasion are slight compared with the certainties of annoyance. Great as is the value of exposing citizens to novel views, home is one place where a man ought to be able to shut himself up in his own ideas if he desires. There he should be free not only from unreasonable searches and seizures but also from hearing uninvited strangers expound distasteful doctrines. A doorbell cannot be disregarded like a handbill. It takes several minutes to ascertain the purpose of a propagandist and at least several more to get rid of him. * * * Moreover, hospitable housewives dislike to leave a visitor on a windy doorstep while he explains his errand, yet once he is inside the house robbery or worse may happen. So peddlers of ideas and salesmen of salvation in odd brands seem to call for regulation as much as the regular run of commercial canvassers. * * * Freedom of the home is as important as freedom of speech. I cannot help wondering whether the Justices of the Supreme Court are quite aware of the effect of organized front-door intrusions upon people who are not sheltered from zealots and impostors by a staff of servants or the locked entrance of an apartment house.' 28 Kovacs v. Cooper, 336 U.S. 77, 83, 69 S.Ct. 448, 451, 93 L.Ed. 513. 29 United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234: 'But by their very nature such 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. Here the demurrer challenges the validity of the statute on its face and it is evident from all the considerations presented to Congress, and those of which we may take judicial notice, that the question is at least debatable whether commerce in filled milk should be left unregulated, or in some measure restricted, or wholly prohibited. As that decision was for Congress, neither the finding of a court arrived at by weighing the evidence, nor the verdict of a jury can be substituted for it.' See Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869; Skiriotes v. Florida, 313 U.S. 69, 79, 61 S.Ct. 924, 930, 85 L.Ed. 1193; Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270. 30 Cf. Martin v. Struthers, 319 U.S. 141, 146, 63 S.Ct. 862, 864, 87 L.Ed. 1313; Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949. 31 Thomas v. Collins, 323 U.S. 516, 531, 65 S.Ct. 315, 323, 89 L.Ed. 430. 32 Cf. Kovacs v. Cooper, 336 U.S. 77, 88, note 14; concurrence at page 90, 69 S.Ct. 448, 454, 455, 93 L.Ed. 513. See note 24, supra. 33 Cantwell v. Connecticut, 310 U.S. 296, 303, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213; Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Murdock v. Pennsylvania, 319 U.S. 105, 109—110, 63 S.Ct. 870, 873, 87 L.Ed. 1292; Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645; Saia v. New York, 334 U.S. 558, 561, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574; Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303. See the collection of cases in Niemotko v. Maryland, 340 U.S. 268, at page 276 ff, 71 S.Ct. 325, 330. 34 These cases called forth numerous notes, e.g., 46 Col.L.Rev. 457; 34 Georgetown L.J. 244; 44 Mich.L.Rev. 848. * It is passing strange that, after relying on three cases grounded solely on 'incidental' as a test of validity under the Commerce Clause, the Court should itself state that such a test 'has not continued as a useful manner for determining the validity of local regulation of matters affecting interstate commerce.' 341 U.S. 635, 71 S.Ct. 929, note 19. * Of course I believe that the present ordinance could constitutionally be applied to a 'merchant' who goes from door to door 'selling pots.' Compare Martin v. Struthers, 319 U.S. 141, 144, 63 S.Ct. 862, 863, 87 L.Ed. 1313 with Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262.

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342 U.S. 19 72 S.Ct. 14 96 L.Ed. 19 SUTPHEN ESTATES, Inc.v.UNITED STATES et al. No. 25. Argued Oct. 11, 1951. Decided Nov. 5, 1951. Rehearing Denied Jan. 2, 1952. See 342 U.S. 907, 72 S.Ct. 289. Mr. H. G. Pickering, New York City, for appellant. Mr. Charles H. Weston, Washington, D.C., for the United States. Mr. Joseph M. Proskauer, New York City, for appellees, Warner Bros. Pictures, Inc., et al. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Rule 24(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides in part as follows: '(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.' 2 Appellant claims intervention of right in the Sherman Act1 proceedings involving the reorganization of certain producers and distributors of motion picture films whose activities had been found to violate the Act. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260. If appellant may intervene as of right, the order of the court denying intervention is appealable. See Brotherhood of Railroad Trainmen v. Baltimore & O.R. Co., 331 U.S. 519, 524, 67 S.Ct. 1387, 1389, 91 L.Ed. 1646; 32 Stat. 823, as amended, 15 U.S.C. (Supp. II) § 29, 15 U.S.C.A. § 29. It was to resolve that question that we postponed the question of our jurisdiction of the appeal to the hearing on the merits. 3 The present controversy stems from the reorganization of Warner Bros. Pictures, Inc., pursuant to a decree of the court in the Sherman Act proceedings. Under this decree provision is made for the divorcement of Warner's theatre business from its production and distribution business. The various steps in the reorganization are not material here. It is sufficient to note that according to the plan the stockholders of Warner will vote a dissolution of Warner. Two new companies will be formed, one to receive the theatre assets, the other to receive the production and distribution assets. Each of the new companies will distribute its capital stock pro rata to Warner's stockholders. 4 Warner is a guarantor of a lease of theatre properties made by appellant to a subsidiary of a subsidiary of Warner. The lease, executed in 1928 and modified in 1948, is for a term of 98 years. The plan of reorganization submitted to the stockholders provides, as we read it and as construed by counsel for appellees on oral argument, that liabilities of the class in which the guaranty falls will be assumed by the new theatre company. Appellant seeks intervention to protect its guaranty. 5 There is intervention as of right under Rule 24[a][2] 'when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action.' Appellant However, is not a privy of Warner; its rights not only do not derive from Warner, they are indeed adverse to Warner. The decree in this case, like that in Credits Commutation Co. v. United States, 177 U.S. 311, 20 S.Ct. 636, 44 L.Ed. 782, therefore is not res judicata of the rights sought to be protected through intervention. 6 Nor is appellant entitled to intervene as of right by reason of Rule 24(a) (3). It is true that this is a case of 'a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court * * *' within the meaning of Rule 24(a)(3). For it is the authority of the court under the Sherman Act that sanctions and directs the reorganization. United States v. Paramount Pictures, Inc., supra, 334 U.S. at pages 170 et seq., 68 S.Ct. at page 935. Appellant argues that it is 'adversely affected' by the disposition of the property. It points out that under the plan its guarantor is dissolved and his property divided among two new companies, only one of which assumes the guarantor's liabilities under the lease. It argues that it is entitled to a judicially ascertained equivalent for the Warner guaranty. And it claims that in this case that equivalent would be a guaranty by each of the new companies. 7 We do not think, however, that on this record appellant has shown that it will be 'adversely affected' by the reorganization within the meaning of Rule 24(a) (3). It will have the guaranty of the new theatre company. No showing is made or attempted that that company lacks the financial strength to assume the responsibilities of the guaranty. No showing is made or attempted that the contingent liability under the guaranty is so imminent and onerous as to make the guaranty of the new company substantially less valuable than the guaranty of Warner's. For all we know, a guaranty of a company in the theatre business, freed from the hazards of the production and distribution business, may be even more valuable than the guaranty of Warner's. We do not pass here on the fairness of the plan of reorganization. Cf. Continental Insurance Co. v. United States, 259 U.S. 156, 42 S.Ct. 540, 66 L.Ed. 871. We hold only that appellant has not maintained the burden of showing that under Rule 24(a)(3) it may intervene as of right. 8 Permissive intervention is governed by Rule 24(b). But we have said enough to show that the claim of injury to appellant is too speculative and too contingent on unknown factors to conclude that there was an abuse of discretion in denying leave to intervene. The court had ample reason to prevent the administration of the decree from being burdened with a collateral issue that on this record can properly be adjudicated elsewhere. The appeal is therefore dismissed. 9 Appeal dismissed. 10 Mr. Justice JACKSON, Mr. Justice CLARK, and Mr. Justice MINTON took no part in the consideration or decision of this case. 11 Mr. Justice BLACK, dissenting. 12 Warner Brothers, Inc., has been guarantor on a lease of theater properties made by appellant Sutphen Estates. Under a court decree of dissolution Warner is to be split up into two companies, only one of which will expressly assume the Warner guarantee to Sutphen. Sutphen's lease can no longer be guaranted by the combined assets of the illegal corporation we have ordered dissolved. Perhaps it is inevitable that the guarantee will be impaired to some extent, but we should insure that Sutphen suffers no more than its fair share of whatever losses may result from the enforcement of the antitrust laws. 13 I am of the opinion that the issue of impairment can best be and should be determined by the District Court as a part of the dissolution proceedings. Furthermore, I cannot assent to an opinion that permits this question of impairment to remain open for adjudication elsewhere at some indefinite time in the future. 14 Dissolution of Warner, which we have ordered, cannot be completely consummated if the decree leaves in doubt whether both new companies are jointly obligated on Sutphen's lease. Cf. Continental Insurance Co. v. United States, 259 U.S. 156, 173—174, 42 S.Ct. 540, 545, 546, 66 L.Ed. 871. Surely, if we have the power to order a dissolution to prevent Sherman Act violations, we have power to insure that the newly created companies are permanently and totally disinterested in each other's future activities, and are in no way united by past obligations. 1 15 U.S.C.A. §§ 1—7, 15 note.

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342 U.S. 33 72 S.Ct. 10 96 L.Ed. 46 DIXONv.DUFFY, Warden. No. 79. Argued Oct. 16, 1951. Decided Nov. 5, 1951. Mr. Franklin C. Stark, Oakland, Cal., for petitioner. Mr. Clarence A. Linn, San Francisco, Cal., for respondent. PER CURIAM. 1 Petitioner was convicted in the California Superior Court in 1949 of making and possessing counterfeiting dies or plates in violation of Cal. Penal Code, 1949, § 480. He did not appeal, but sought to challenge the validity of his conviction by filing successive petitions for a writ of habeas corpus in the California Superior Court and California District Court of Appeal. 2 Following denial of these petitions, he instituted this case by filing an original petition for a writ of habeas corpus in the Supreme Court of California. The Supreme Court of California denied the petition without opinion, two justices thereof voting for issuance of the writ. We granted certiorari, 341 U.S. 938, 71 S.Ct. 995, 95 L.Ed. 1366, because of a serious claim that petitioner had been deprived of his rights under the Federal Constitution. 3 At the bar of this Court, the Attorney General of the State of California argued that habeas corpus was not a proper state remedy for determination of petitioner's federal claim. It is the position of the Attorney General that petitioner's failure to appeal in this case barred him from seeking post-conviction relief by way of a collateral habeas corpus proceeding. He admits that habeas corpus is available in California in cases involving certain exceptional circumstances, but contends that this is not such a case. If the Attorney General is correct, the judgment may rest on a non-federal ground, thus calling for dismissal of our writ of certiorari. In this state of uncertainty, we follow our precedents in Herb v. Pitcairn, 1945, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789, and Loftus v. People of State of Illinois, 1948, 334 U.S. 804, 68 S.Ct. 1212, 92 L.Ed. 1737. 4 Accordingly, the cause is ordered continued for such period as will enable counsel for petitioner to secure a determination from the Supreme Court of California as to whether the judgment herein was intended to rest on an adequate independent state ground or whether decision of the federal claim was necessary to the judgment rendered. 5 Cause continued. 6 Mr. Justice DOUGLAS dissents. 7 Mr. Justice MINTON took no part in the consideration or decision of this case.

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342 U.S. 1 72 S.Ct. 1 96 L.Ed. 3 STACK et al.v.BOYLE, U.S. Marshal. No. 400. Argued on Motions for Bail and for Writs of Habeas Corpus Prior to Docketing of Petition for Certiorari Oct. 18, 1951. Decided Nov. 5, 1951. [Syllabus from pages 1-2 intentionally omitted] Messrs. Benjamin Margolis, A. L. Wirin, Los Angeles, Cal., for Stack et al. Mr. Philip B. Perlman, Sol. Gen., Washington, D.C., for Boyle, Marshal. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 Indictments have been returned in the Southern District of California charging the twelve petitioners with conspiring to violate the Smith Act, 18 U.S.C. (Supp. IV) §§ 371, 2385, 18 U.S.C.A. §§ 371, 2385. Upon their arrest, bail was fixed for each petitioner in the widely varying amounts of $2,500, $7,500, $75,000 and $100,000. On motion of petitioner Schneiderman following arrest in the Southern District of New York, his bail was reduced to $50,000 before his removal to California. On motion of the Government to increase bail in the case of other petitioners, and after several intermediate procedural steps not material to the issues presented here, bail was fixed in the District Court for the Southern District of California in the uniform amount of $50,000 for each petitioner. 2 Petitioners moved to reduce bail on the ground that bail as fixed was excessive under the Eighth Amendment.1 In support of their motion, petitioners submitted statements as to their financial resources, family relationships, health, prior criminal records, and other information. The only evidence offered by the Government was a certified record showing that four persons previously convicted under the Smith Act in the Southern District of New York had forfeited bail. No evidence was produced relating those four persons to the petitioners in this case. At a hearing on the motion, petitioners were examined by the District Judge and cross-examined by an attorney for the Government. Petitioners' factual statements stand uncontroverted. 3 After their motion to reduce bail was denied, petitioners filed applications for habeas corpus in the same District Court. Upon consideration of the record on the motion to reduce bail, the writs were denied. The Court of Appeals for the Ninth Circuit affirmed. 192 F.2d 56. Prior to filing their petition for certiorari in this Court, petitioners filed with Mr. Justice DOUGLAS an application for bail and an alternative application for habeas corpus seeking interim relief. Both applications were referred to the Court and the matter was set down for argument on specific questions covering the issues raised by this case. 4 Relief in this type of case must be speedy if it is to be effective. The petition for certiorari and the full record are now before the Court and, since the questions presented by the petition have been fully briefed and argued, we consider it appropriate to dispose of the petition for certiorari at this time. Accordingly, the petition for certiorari is granted for review of questions important to the administration of criminal justice.2 5 First. From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), 18 U.S.C.A., federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 1895, 156 U.S. 277, 285, 15 S.Ct. 450, 453, 39 L.Ed. 424. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning. 6 The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty. Ex parte Milburn, 1835, 9 Pet. 704, 710, 9 L.Ed. 280. Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is 'excessive' under the Eighth Amendment. See United States v. Motlow, 10 F.2d 657 (1926, opinion by Mr. Justice Butler as Circuit Justice of the Seventh circuit). 7 Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. The traditional standards as expressed in the Federal Rules of Criminal Procedure3 are to be applied in each case to each defendant. In this case petitioners are charged with offenses under the Smith Act and, if found guilty, their convictions are subject to review with the scrupulous care demanded by our Constitution. Dennis v. United States, 1951, 341 U.S. 494, 516, 71 S.Ct. 857, 870, 95 L.Ed. 1137. Upon final judgment of conviction, petitioners face imprisonment of not more than five years and a fine of not more than $10,000. It is not denied that bail for each petitioner has been fixed in a sum much higher than that usually imposed for offenses with like penalties and yet there has been no factual showing to justify such action in this case. The Government asks the courts to depart from the norm by assuming, without the introduction of evidence, that each petitioner is a pawn in a conspiracy and will, in obedience to a superior, flee the jurisdiction. To infer from the fact of indictment alone a need for bail in an unusually high amount is an arbitrary act. Such conduct would inject into our own system of government the very principles of totalitarianism which Congress was seeking to guard against in passing the statute under which petitioners have been indicted. 8 If bail in an amount greater than that usually fixed for serious charges of crimes is required in the case of any of the petitioners, that is a matter to which evidence should be directed in a hearing so that the constitutional rights of each petitioner may be preserved. In the absence of such a showing, we are of the opinion that the fixing of bail before trial in these cases cannot be squared with the statutory and constitutional standards for admission to bail. 9 Second. The proper procedure for challenging bail as unlawfully fixed is by motion for reduction of bail and appeal to the Court of Appeals from an order denying such motion. Petitioners' motion to reduce bail did not merely invoke the discretion of the District Court setting bail within a zone of reasonableness, but challenged the bail as violating statutory and constitutional standards. As there is no discretion to refuse to reduce excessive bail, the order denying the motion to reduce bail is appealable as a 'final decision' of the District Court under 28 U.S.C. (Supp. IV) § 1291, 28 U.S.C.A. § 1291. Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 545—547, 69 S.Ct. 1221, 1225—1226, 93 L.Ed. 1528. In this case, however, petitioners did not take an appeal from the order of the District Court denying their motion for reduction of bail. Instead, they presented their claims under the Eighth Amendment in applications for writs of habeas corpus. While habeas corpus is an appropriate remedy for one held in custody in violation of the Constitution, 28 U.S.C. (Supp. IV) § 2241(c)(3), 28 U.S.C.A. § 2241(c)(3), the District Court should withhold relief in this collateral habeas corpus action where an adequate remedy available in the criminal proceeding has not been exhausted. Ex parte Royall, 1886, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868; Johnson v. Hoy, 1913, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497. 10 The Court concludes that bail has not been fixed by proper methods in this case and that petitioners' remedy is by motion to reduce bail, with right of appeal to the Court of Appeals. Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded to the District Court with directions to vacate its order denying petitioners' applications for writs of habeas corpus and to dismiss the applications without prejudice. Petitioners may move for reduction of bail in the criminal proceeding so that a hearing may be held for the purpose of fixing reasonable bail for each petitioner. 11 It is so ordered. 12 Judgment of Court of Appeals vacated and case remanded to District Court with directions. 13 Mr. Justice MINTON took no part in the consideration or decision of this case. 14 By Mr. Justice JACKSON, whom Mr. Justice FRANKFURTER joins. 15 I think the principles governing allowance of bail have been misunderstood or too casually applied in these cases and that they should be returned to the Circuit Justice or the District Courts for reconsideration in the light of standards which it is our function to determine. We have heard the parties on only four specific questions relating to bail before conviction—two involving considerations of law and of fact which should determine the amount of bail, and two relating to the procedure for correcting any departure therefrom. I consider first the principles which govern release of accused persons upon bail pending their trial. 16 The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Without this conditional privilege, even those wrongly accused are punished by a period of imprisonment while awaiting trial and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense. To open a way of escape from this handicap and possible injustice, Congress commands allowance of bail for one under charge of any offense not punishable by death, Fed.Rules Crim.Proc. 46(a)(1) providing: 'A person arrested for an offense not punishable by death shall be admitted to bail * * *' before conviction. 17 Admission to bail always involves a risk that the accused will take flight. That is a calculated risk which the law takes as the price of our system of justice. We know that Congress anticipated that bail would enable some escapes, because it provided a procedure for dealing with them. Fed.Rules Crim.Proc. 46(f). 18 In allowance of bail, the duty of the judge is to reduce the risk by fixing an amount reasonably calculated to hold the accused available for trial and its consequence. Fed.Rules Crim.Proc. 46(c). But the judge is not free to make the sky the limit, because the Eighth Amendment to the Constitution says: 'Excessive bail shall not be required * * *.' 19 Congress has reduced this generality in providing more precise standards, stating that '* * * the amount thereof shall be such as in the judgment of the commissioner or court or judge or justice will insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail and the character of the defendant.' Fed.Rules Crim.Proc. 46(c). 20 These statutory standards are not challenged as unconstitutional, rather the amounts of bail established for these petitioners are alleged to exceed these standards. We submitted no constitutional questions to argument by the parties, and it is our duty to avoid constitutional issues if possible. For me, the record is inadequate to say what amounts would be reasonable in any particular one of these cases and I regard it as not the function of this Court to do so. Furthermore, the whole Court agrees that the remedy pursued in the circumstances of this case is inappropriate to test the question and bring it here. But I do think there is a fair showing that these congressionally enacted standards have not been correctly applied. 21 It is complained that the District Court fixed a uniform blanket bail chiefly by consideration of the nature of the accusation and did not take into account the difference in circumstances between different defendants. If this occurred, it is a clear violation of Rule 46(c). Each defendant stands before the bar of justice as an individual. Even on a conspiracy charge defendants do not lose their separateness or identity. While it might be possible that these defendants are identical in financial ability, character and relation to the charge—elements Congress has directed to be regarded in fixing bail—I think it violates the law of probabilities. Each accused is entitled to any benefits due to his good record, and misdeeds or a bad record should prejudice only those who are guilty of them. The question when application for bail is made relates to each one's trustworthiness to appear for trial and what security will supply reasonable assurance of his appearance. 22 Complaint further is made that the courts below have been unduly influenced by recommendations of very high bail made by the grand jury. It is not the function of the grand jury to fix bail, and its volunteered advice is not governing. Since the grand jury is a secret body, ordinarily hearing no evidence but the prosecution's, attended by no counsel except the prosecuting attorneys, it is obvious that it is not in a position to make an impartial recommendation. Its suggestion may indicate that those who have heard the evidence for the prosecution regard it as strongly indicative that the accused may be guilty of the crime charged. It could not mean more than that without hearing the defense, and it adds nothing to the inference from the fact of indictment. Such recommendations are better left unmade, and if made should be given no weight. 23 But the protest charges, and the defect in the proceedings below appears to be, that, provoked by the flight of certain Communists after conviction, the Government demands and public opinion supports a use of the bail power to keep Communist defendants in jail before conviction. Thus, the amount is said to have been fixed not as a reasonable assurance of their presence at the trial, but also as an assurance they would remain in jail. There seems reason to believe that this may have been the spirit to which the courts below have yielded, and it is contrary to the whole policy and philosophy of bail. This is not to say that every defendant is entitled to such bail as he can provide, but he is entitled to an opportunity to make it in a reasonable amount. I think the whole matter should be reconsidered by the appropriate judges in the traditional spirit of bail procedure. 24 The other questions we have heard argued relate to the remedy appropriate when the standards for amount of bail are misapplied. Of course, procedural rights so vital cannot be without means of vindication. In view of the nature of the writ of habeas corpus, we should be reluctant to say that under no circumstances would it be appropriate. But that writ will best serve its purpose and be best protected from discrediting abuse if it is reserved for cases in which no other procedure will present the issues to the courts. Its use as a substitute for appeals or as an optional alternative to other remedies is not to be encouraged. Habeas corpus is not, in the absence of extraordinary circumstances, the procedure to test reasonableness of bail. 25 We think that, properly limited and administered, the motion to reduce bail will afford a practical, simple, adequate and expeditious procedure. In view of prevailing confusions and conflicts in practice, this Court should define and limit the procedure with considerable precision, in the absence of which we may flood the courts with motions and appeals in bail cases. 26 The first fixing of bail, whether by a commissioner under Rule 5(b), or upon removal under Rule 40(a), Fed.Rules Crim.Proc., or by the court upon arraignment after indictment, 18 U.S.C. § 3141, 18 U.S.C.A. § 3141, is a serious exercise of judicial discretion. But often it must be done in haste—the defendant may be taken by surprise, counsel has just been engaged, or for other reasons the bail is fixed without that full inquiry and consideration which the matter deserves. Some procedure for reconsideration is a practical necessity, and the court's power over revocation or reduction is a continuing power which either party may invoke as changing circumstances may require. It is highly important that such preliminary matters as bail be disposed of with as much finality as possible in the District Court where the case is to be tried. It is close to the scene of the offense, most accessible to defendant, has opportunity to see and hear the defendant and the witnesses personally, and is likely to be best informed for sound exercise of discretion. Rarely will the original determination be disturbed, if carefully made, but if the accused moves to reduce or the Government to revoke bail, a more careful deliberation may then be made on the relevant evidence presented by the parties, and if the defendant or the Government is aggrieved by a denial of the motion an appeal may be taken on the record as it then stands. 27 It is my conclusion that an order denying reduction of bail is to be regarded as a final decision which may be appealed to the Court of Appeals. But this is not because every claim of excessive bail raises a constitutional question. It is because we may properly hold appeal to be a statutory right. While only a sentence constitutes a final judgment in a criminal case, Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 165, 82 L.Ed. 204, it is a final decision that Congress has made reviewable. 28 U.S.C. § 1291, 28 U.S.C.A. § 1291. While a final judgment always is a final decision, there are instances in which a final decision is not a final judgment. The purpose of the finality requirement is to avoid piecemeal disposition of the basic controversy in a single case 'where the result of review will be 'to halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation * * *" Cobbledick v. United States, 309 U.S. 323, 326, 60 S.Ct. 540, 542, 84 L.Ed. 783. But an order fixing bail can be reviewed without halting the main trial—its issues are entirely independent of the issues to be tried—and unless it can be reviewed before sentence, it never can be reviewed at all. The relation of an order fixing bail to final judgment in a criminal case is analogous to an order determining the right to security in a civil proceeding, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, or other interlocutory orders reviewable under 28 U.S.C. § 1292, 28 U.S.C.A. § 1292. I would hold, therefore, that such orders are appealable. 28 I cannot agree, however, that an order determining what amount of bail is reasonable under the standards prescribed does not call for an exercise of discretion. The Court of Appeals is not required to reexamine every order complained of. They represent exercises of discretion, upon questions, usually, of fact. Trivial differences or frivolous objections should be dismissed. The Appellate Court should only reverse for clear abuse of discretion or other mistake of law. And it ought to be noted that this Court will not exercise its certiorari power in individual cases except where they are typical of a problem so important and general as to deserve the attention of the supervisory power. 29 If we would follow this course of reasoning, I think in actual experience it would protect every right of the accused expeditiously and cheaply. At the same time, it would not open the floodgates to a multitude of trivial disputes abusive of the motion procedure. 30 Having found that the habeas corpus proceeding was properly dismissed by the District Court, in which its judgment was affirmed by the Court of Appeals, we should to that extent affirm. Having thus decided that the procedure taken in this case is not the proper one to bring the question of excessiveness of bail before the courts, there is a measure of inconsistency and departure from usual practice in our discussion of matters not before us. Certainly it would be inappropriate to say now that any particular amount as to any particular defendant is either reasonable or excessive. That concrete amount, in the light of each defendant's testimony and that of the Government, should be fixed by the appropriate judge or Justice upon evidence relevant to the standards prescribed. It is not appropriate for the Court as a whole to fix bail where the power has been given to individual judges and Justices to do so. But there is little in our books to help guide federal judges in bail practice, and the extraordinary and recurring nature of this particular problem seems to warrant a discussion of the merits in which we would not ordinarily engage. 31 It remains to answer our own question as to whether the power to grant bail is in the Court or in the Circuit Justice. There is considerable confusion as to the source and extent of that power. 32 Fed. Rules Crim. Proc. 46(a)(1), with respect to noncapital cases does not state who has power to grant bail before conviction it simply directs that in such case bail 'shall' be granted. For an answer to the 'who' question it is necessary to turn to the Criminal Code. 33 18 U.S.C.A. § 3141, entitled 'Power of courts and magistrates', provides: 'Bail may be taken by any court, judge or magistrate authorized to arrest and commit offenders, but in capital cases bail may be taken only by a court of the United States having original or appellate jurisdiction in criminal cases or by a justice or judge thereof.' 34 The power to arrest and commit offenders is contained in 18 U.S.C.A. § 3041, which states that: 'For any offense against the United States, the offender may, by any justice or judge of the United States, * * * be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense.' (Italics added.) The fact that this section specifically grants the power of arrest to 'any justice * * * of the United States' supports the conclusion that Justices of this Court have the power of arrest, and, having that power under this section, they therefore also have power to grant bail under § 3141. 35 The Reviser's Notes to § 3141 disclose that it is the product of Rev.Stat. §§ 1015 and 1016, which were embodied verbatim in 18 U.S.C. (1940 ed.) §§ 596 and 597. The Reviser also states that, 'Sections 596 and 597 of Title 18, U.S.C., 1940 ed., except as superseded by rule 46(a)(1) of the Federal Rules of Criminal Procedure are consolidated and rewritten in this section without change of meaning. 80th Congress House Report No. 304.' (Italics added.) Since no change of meaning was intended, the context of the old sections becomes pertinent. 36 Rev.Stat. § 1015 reads: 'Bail shall be admitted upon all arrests in criminal cases where the offense is not punishable by death; and in such cases it may be taken by any of the persons authorized by the preceding section to arrest and imprison offenders.' 'The preceding section,' § 1014, is the predecessor of 18 U.S.C.A. § 3041, and reads the same as that section, namely: 'For any crime or offense against the United States, the offender may, by any justice or judge of the United States, * * * be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. * * *'. (Italicized words are those omitted in 18 U.S.C.A. § 3041.) 37 Going on in the Revised Statutes, § 1016 states that: 'Bail may be admitted upon all arrests in criminal cases where the punishment may be death; but in such cases it shall be taken only by the Supreme Court or a circuit court, or by a justice of the Supreme Court, a circuit judge, or a judge of a district court, who shall exercise their discretion therein, having regard to the nature and circumstance of the offense, and of the evidence, and to the usages of law.' 38 The evident tenor of §§ 1015 and 1016, taken together with § 1014, is that a Justice of this Court is one of many who can grant bail in a noncapital case but is one of a restricted class who can grant bail in a capital case. Section 1016 appears to narrow the class included in § 1015. 39 To correlate the Revised Statutes with the present statutory scheme: 40 1. Rule 46(a)(1), reading as follows, is taken from Rev.Stat. §§ 1015 and 1016 insofar as the latter govern who shall be admitted to bail and the considerations to be given the admission to bail of a capital case defendant. Rule 46(a)(1), 'Bail before conviction': 41 'A person arrested for an offense not punishable by death shall be admitted to bail. A person arrested for an offense punishable by death may be admitted to bail by any court or judge authorized by law to do so in the exercise of discretion, giving due weight to the evidence and to the nature and circumstances of the offense.' 42 2. 18 U.S.C.A. § 3041, governing power of arrest, is taken directly from Rev.Stat. § 1014. 43 3. 18 U.S.C.A. § 3141, setting out who may grant bail, is taken from Rev.Stat. §§ 1015 and 1016 insofar as the latter are apropos of that subject. 44 It thus appears that the scheme of the Revised Statutes has been taken over bodily into the present Code and Rules. The only change I perceive is that, under the Revised Statutes, there was no clear statutory authority for a court to grant bail in a noncapital case. Rev.Stat. § 1015 (and § 1014) applicable to such case speak only of individuals. 18 U.S.C.A. § 3141 confers the power on 'any court, judge or magistrate authorized to arrest and commit offenders.' The only reasonable construction of the latter is the obvious literal one, that is, that courts as well as the individuals empowered to arrest and commit offenders by 18 U.S.C. § 3041, 18 U.S.C.A. § 3041 are authorized to grant bail. This is substantiated by the language of Fed.Rules Crim.Proc. 46(c), 'Amount (of bail)': 'If the defendant is admitted to bail, the amount thereof shall be such as in the judgment of the commissioner or court or judge or justice will insure the presence of the defendant * * *.' (Italics added.) 45 That is the one difference between the Revised Statutes' scheme and the present—the power to grant bail in noncapital cases now clearly is vested in the courts as well as in individual judges and justices. 46 With the premise provided by the Revisor that the power to grant bail before conviction is the same now as under the Revised Statutes, the one exception being the extension to the courts just noted, the conclusion follows that bail can be granted by any court of the United States, including this Court, or by any judge of the United States, including the Justices of this Court. 47 The next problem is how Rule 45 of the Rules of this Court, 28 U.S.C.A., is to be assimilated with the foregoing. Only the first and fourth subsections of the Rule have any present pertinence. They read as follows: 48 '1. Pending review of a decision refusing a writ of habeas corpus, the custody of the prisoner shall not be disturbed. 49 '4. The initial order respecting the custody or enlargement of the prisoner pending review, as also any recognizance taken, shall be deemed to cover not only the review in the intermediate appellate court but also the further possible review in this court; and only where special reasons therefor are shown to this court will it disturb that order, or make any independent order in that regard.' The apparent conflict between the two subsections disappears when subsection 4 is viewed as a reservation of power in this Court only, not in an individual Justice of this Court, to issue an order in exceptional cases disturbing the custody of the prisoner. No other court and no individual judge or justice can disturb the custody of the prisoner. See Carlson v. Landon, 341 U.S. 918, 71 S.Ct. 744, 95 L.Ed. 1353. 50 The next problem is the bearing, if any, of Fed.Rules Crim.Proc. 46(a)(2), covering the right to bail 'Upon Review.' It reads: 'Bail may be allowed pending appeal or certiorari only if it appears that the case involves a stubstantial question which should be determined by the appellate court. Bail may be allowed by the trial judge or by the appellate court or by any judge thereof or by the circuit justice. * * *' Insofar as it might be applicable to petitioners' case, since they were seeking a review when they filed their petition for bail, it would not seem that it has any efficacy. They have not yet been tried for the offense for which they have been indicted, so that the much wider powers of bail conferred by the statutes governing bail before conviction are applicable. Rule 46(a)(2) is only intended to apply where a review of a conviction on the merits is sought. 51 Turning back to the case at hand, and treating the application to Mr. Justice DOUGLAS for bail as one for bail pending review of a denial of habeas corpus, I think it clear that he does not have power to grant bail, but the full Court does have that power. However, since the Court sustains the denial of habeas corpus, treating the application for bail strictly as one pending review of the denial of habeas corpus, the problems it raises are actually moot. If the application to Mr. Justice DOUGLAS be treated as one made for fixing bail in the original case, it is my opinion that he has power to entertain it. 1 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' U.S.Const. Amend. VIII. 2 In view of our action in granting and making final disposition of the petition for certiorari, we have no occasion to determine the power of a single Justice or Circuit Justice to fix bail pending disposition of a petition for certiorari in a case of this kind. 3 Rule 46(c). 'AMOUNT. If the defendant is admitted to bail, the amount thereof shall be such as in the judgment of the commissioner or court or judge or justice will insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail and the character of the defendant.'

01

342 U.S. 25 72 S.Ct. 17 96 L.Ed. 26 McMAHONv.UNITED STATES et al. No. 17. Argued Oct. 17, 1951. Decided Nov. 5, 1951. Rehearing Denied Dec. 11, 1951. See 342 U.S. 899, 72 S.Ct. 228. Mr. Paul M. Goldstein, for Philadelphia, Pa., for petitioner. Mr. Leavenworth Colby, Washington, D.C., for respondents. Mr. Justice JACKSON delivered the opinion of the Court. 1 Petitioner, a seaman, brought this suit in admiralty alleging in the first count a cause of action based on negligence and unseaworthiness, while in the second count he sought maintenance and cure. He alleged the actionable wrongs to have taken place in November and December of 1945, but he did not file his libel until January 22, 1948. 2 The Act which gives to seamen employed by the United States on government-owned vessels the same rights as those employed on privately owned and operated American vessels provides that claims like those of the petitioner, '* * * if administratively disallowed in whole or in part * * *,' may be enforced pursuant to the provisions of the Suits in Admiralty Act.1 That Act in turn provides that any suit thereunder '* * * shall be brought within two years after the cause of action arises * * *.'2 Courts of Appeals have rendered conflicting decisions as to whether the date of injury or the date of disallowance of the claim commences the period of limitation. The District Court dismissed this petitioner's complaint on the ground set up by the Government that it was not filed within two years from the dates of his injuries.3 The Court of Appeals for the Third Circuit affirmed on the same ground, adhering to its view expressed in an earlier case, and, it subsequently developed, in agreement with the Court of Appeals for the Second Circuit.4 3 The contention of the petitioner is that he could not sue until his claim had been administratively disallowed, and that he had no 'cause of action' until he could sue. Accordingly, he argues that the period of limitations cannot start to run until his claim has been administratively disallowed because only then does his 'cause of action' arise. In his support he points to Thurston v. United States, 179 F.2d 514, in which the Court of Appeals for the Ninth Circuit held in accord with his present contentions. 4 We find ourselves unable to agree with petitioner and the Ninth Circuit, for we think it clear that the proper construction of the language used in the Suits in Admiralty Act is that the period of limitation is to be computed from the date of the injury. It was enacted several years before suits such as the present, on disallowed claims, were authorized. Certainly during those years the limitation depended upon the event giving rise to the claims, not upon the rejection. When later the right to sue was broadened to include such claims as this, there was no indication of any change in the limitation contained in the older Act. While, as the court below pointed out, legislation for the benefit of seamen is to be construed liberally in their favor, it is equally true that statutes which waive immunity of the United States from suit are to be construed strictly in favor of the sovereign.5 Since no time is fixed within which the seaman is obliged to present his claim, under petitioner's position he would have it in his power, by delaying its filing, to postpone indefinitely commencement of the running of the statute of limitations and thus to delay indefinitely knowledge by the Government that a claim existed. We cannot construe the Act as giving claimants an option as to when they will choose to start the period of limitation of an action against the United States. Accordingly, we hold that the statute of limitations runs from the date of the injury, and affirm the court below. 5 It is to be observed that the regulations applicable to the filing of such a claim provide that, if it is not rejected in writing within sixty days from filing, it shall be presumed to have been administratively disallowed and the claimant shall be entitled to enforce his claim.6 The record filed with us does not disclose when petitioner's claim was filed or, with precision, when it was disallowed. In view of that state of the record making it uncertain whether the point would have any effect on the outcome and the fact that petitioner has not raised the point, we find it inappropriate to consider whether the statute of limitations is tolled for a maximum of sixty days while a claim is pending and not disallowed either by notice or by operation of the regulations. 6 Affirmed. 7 Mr. Justice BLACK and Mr. Justice DOUGLAS think that, for reasons stated in Thurston v. United States, 9 Cir., 179 F.2d 514, the statute of limitations did not begin to run until the claim was disallowed and would therefore reverse this judgment. 8 Mr. Justice MINTON took no part in the consideration or decision of this case. 1 Clarification Act of March 24, 1943, § 1(a), 57 Stat. 45, 50 U.S.C.App. § 1291(a), 50 U.S.C.A.Appendix, § 1291(a). 2 Suits in Admiralty Act, § 5, 41 Stat. 526, 46 U.S.C. § 745, 46 U.S.C.A. § 745. 3 91 F.Supp. 593. 4 186 F.2d 227; Rodinciuc v. United States, 3 Cir., 175 F.2d 479, 481; Gregory v. United States, 2 Cir., 187 F.2d 101, 103. 5 United States v. Michel, 282 U.S. 656, 659, 51 S.Ct. 284, 285, 75 L.Ed. 598; United States v. Shaw, 309 U.S. 495, 500—501, 60 S.Ct. 659, 661, 84 L.Ed. 888; United States v. Sherwood, 312 U.S. 584, 586—587, 61 S.Ct. 767, 769—770, 85 L.Ed. 1058. 6 General Order 32, Administrator, War Shipping Administration, 8 Fed.Reg. 5414, 46 CFR § 304.26.

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342 U.S. 29 72 S.Ct. 12 96 L.Ed. 31 GARDNERv.PANAMA R. CO. No. 22. Argued Oct. 11, 1951. Decided Nov. 5, 1951. Mr. Eugene Eisenmann, New York City, for petitioner. Mr. Thomas J. Maginnis, New York City, for respondent. PER CURIAM. 1 This suit in admiralty, a libel in personam brought in the District Court for the Canal Zone, is petitioner's third attempt to secure damages for injuries alleged to have been sustained on December 3, 1947, while a passenger on board respondent's steamship Panama. 2 Petitioner instituted her first action against the respondent on April 10, 1948. This complaint was dismissed October 7, 1948, after the company successfully maintained that petitioner's only remedy was to sue the United States under the Federal Tort Claims Act; that respondent, whose entire stock is owned by the United States, was a 'federal agency' within the meaning of that Act.1 3 An action against the United States filed on November 29, 1948—still within the one-year period of limitation—was dismissed by the District Court before reaching trial on the merits, after Congress had amended, on July 16, 1949, the Federal Tort Claims Act, excluding from its coverage 'Any claim arising from the activities of the Panama Railroad Company.'2 4 Five days later, on October 19, 1949, petitioner commenced the present suit. Respondent pleaded laches on the theory that, since the one-year Canal Zone statute of limitations3 now barred any action at law, laches should bar any remedy in admiralty. The District Court sustained this defense, and entered judgment for the respondent. The Court of Appeals affirmed on that ground, 185 F.2d 730. We granted certiorari, 341 U.S. 934, 71 S.Ct. 854. 5 Though the existence of laches is a question primarily addressed to the discretion of the trial court, the matter should not be determined merely by a reference to and a mechanical application of the statute of limitations. The equities of the parties must be considered as well. Where there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief. The Key City, 1872, 14 Wall. 653, 20 L.Ed. 896; Southern Pacific Co. v. Bogert, 1919, 250 U.S. 483, 39 S.Ct. 533, 63 L.Ed. 1099; Holmberg v. Armbrecht, 1946, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743; see McGrath v. Panama R. Co., 5 Cir., 1924, 298 F. 303, 304. 6 Petitioner has diligently sought redress in this case. Twice within the year following her injuries she brought suit. The second action abated through an Act of Congress and not through any fault of her own. There is no showing that respondent's position has suffered from the fact that the claim has not yet proceeded to trial on its merits. 7 Respondent contends that, in any event, the decision below must be affirmed because the petitioner at no time has had a cause of action against the company. It contends that, at the time of the injury, the United States and not the company was liable, and that Public Law 172, which now renders the company amenable to suit, should not operate retroactively to transfer the preexisting liability of the Government to the respondent. 8 We must reject this view. The company was subject to suit before passage of the Tort Claims Act, Panama R. Co. v. Minnix, 5 Cir., 1922, 282 F. 47, and its inclusion within the scope of that Act meant only that the United States was responsible in damages for its torts. Without interval, from the time of respondent's incorporation, until July 16, 1949, those injured through fault of the company were never left without means of redress. Respondent would now have us attribute to Congress the intent to create an inequitable hiatus. Despite the fact that the stated 'purpose' of Public Law 172 was simply to 'exclude claims against the * * * Company from the provisions' of the Tort Claims Act,4 respondent would have us hold that Congress meant to cut off, summarily, the remedy of all who had sued the United States for torts which had been committed by the Panama Railroad Company during the year preceding enactment of Public Law 172. 9 In our view, the amendment permitted outstanding claims upon which suit had been instituted against the United States to be enforced by prompt proceedings directly against the company. The petitioner followed this course. This interpretation would seem to be sustained by the statement of the company's president when he endorsed the passage of Public Law 172, securing the exclusion of respondent from the Tort Claims Act, at which time he said that though the Act embraced 'claims against the Panama Railroad Company,' its provisions were not well designed to expedite the redress of such injuries, and that Congress should enact Public Law 172 'to continue unimpaired * * * the amenability of the Company to suit in the ordinary course.'5 10 The decision of the Court of Appeals is reversed and the cause is remanded to the District Court for further proceedings. 11 Reversed. 12 Mr. Justice MINTON took no part in the consideration or decision of this case. 1 28 U.S.C. §§ 2671, 2679, 28 U.S.C.A. §§ 2671, 2679. 2 Public Law 172, 81st Cong., 1st Sess., 63 Stat. 444, 28 U.S.C. § 2680(m), 28 U.S.C.A. § 2680(m). 3 Canal Zone Code, 1934, Tit. 4, § 87(3). 4 H.R.Rep.No.830, 81st Cong., 1st Sess.; S.Rep.No.167, Id. 5 H.R.Rep.No.830, supra, 3, 4; S.Rep.No.167, supra, 3, 4.

89

342 U.S. 35 72 S.Ct. 11 96 L.Ed. 47 PALMER OIL CORP. et al.v.AMERADA PETROLEUM CORP. et al. FARWELL et al. v. AMERADA PETROLEUM CORP. et al. Nos. 301, 302. Decided Nov. 5, 1951. PER CURIAM. 1 The Court is advised that, on May 26, 1951, Laws 1951, p. 142, the Oklahoma Legislature repealed Okla.Stat. 1941, Cum. Supp. 1949, Tit. 52, §§ 286.1—286.17, the constitutionality of which is drawn in question by these appeals. The causes are therefore ordered continued for such period as will enable appellants with all convenient speed to secure in an appropriate state proceeding a determination as to the effect of this repeal on the matters raised in these appeals. 2 Causes continued.

89

342 U.S. 36 72 S.Ct. 97 96 L.Ed. 48 UNITED STATESv.CARIGNAN. No. 5. Argued Oct. 8, 1951. Decided Nov. 13, 1951. Mr. Philip Elman, Washington, D.C., for petitioner. Mr. Harold J. Butcher, Anchorage, Alaska, for respondent. Mr. Justice REED delivered the opinion of the Court. 1 Respondent Carignan was convicted in the District Court for the Territory of Alaska of first degree murder in attempting to perpetrate a rape. Alaska Compiled Laws Annotated, 1949, § 65—4—1. He was sentenced to death. The conviction was reversed by the United States Court of Appeals for the Ninth Circuit. Carignan v. United States, 185 F.2d 954. The sole ground of the reversal was the admission of a confession obtained in a manner held to be contrary to the principles expounded by this Court in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, and Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. 2 The case is here on writ of certiorari granted on the petition of the Government. 341 U.S. 934, 71 S.Ct. 853, 95 L.Ed. 1363. The question presented by the petition was whether it was error to admit at the trial respondent's confession of the murder. The confession was held inadmissible because given before arrest, indictment, or commitment on the murder charge. The confession was given after respondent had been duly committed to jail, Rule 5, Federal Rules of Criminal Procedure, 18 U.S.C.A., under a warrant which charged that he had, at a time six weeks after the murder, perpetrated an assault with intent to rape. 3 Respondent advances three additional issues to support the reversal of the conviction besides the above point on detention. First. Error, it is argued, was committed by the trial court in admitting the confession because it was obtained by secret interrogation and psychological pressure by police officers. Second. Further error, it is said, followed from a failure of the trial court to submit to the jury, as a question of fact, the voluntary or involuntary character of the confession. Third. Error occurred when the trial court refused to permit respondent to take the stand and testify in the absence of the jury to facts believed to indicate the involuntary character of the confession.1 4 The United States concedes in regard to the third issue that the better practice, when admissibility of a confession is in issue, is for the judge to hear a defendant's offered testimony in the absence of the jury as to the surrounding facts. Therefore, the Government makes no objection to the reversal of the conviction on that ground. We think it clear that this defendant was entitled to such an opportunity to testify. An involuntary confession is inadmissible. Wilson v. United States, 162 U.S. 613, 623, 16 S.Ct. 895, 899, 40 L.Ed. 1090. Such evidence would be pertinent to the inquiry on admissibility and might be material and determinative. The refusal to admit the testimony was reversible error. As this error makes necessary a new examination into the voluntary character of the confession, there is no need now to pursue on this record the first and second issues brought forward by respondent, except to say that the facts in this record surrounding the giving of the confession do not necessarily establish coercion, physical or psychological, so as to render the confession inadmissible. The evidence on the new trial will determine the necessity for or character of instructions to the jury on the weight to be accorded the confession, if it is admitted in evidence. Cf. United States v. Lustig, 2 Cir., 163 F.2d 85, 88—89; McNabb v. United States, 318 U.S. 332, 338, note 5, 63 S.Ct. 608, 612, 87 L.Ed. 819. So long as no coercive methods by threats or inducements to confess are employed, constitutional requirements do not forbid police examination in private of those in lawful custody or the use as evidence of information voluntarily given.2 5 The following summary of the uncontradicted facts discloses the circumstances leading to the confession. Respondent Carignan was detained by the Anchorage police in connection with the subsequent assault case from about 11 a.m., Friday, September 16, 1949. He was identified in a line-up by the victim, and confessed to the assault. Around 4 p.m. on the same day he was arrested and duly committed for the assault. His trial on the assault charge took place subsequent to this confession. 6 During the time between his detention and commitment for the assault, respondent was questioned by the police about the murder which was the basis of the conviction now under review. A witness who had seen the man involved in the murder and his victim together at the scene of the crime was brought to the police station during this time. From a line-up he picked out respondent Carignan as one appearing to be the person that he saw on that occasion. Carignan did not give any information about his activities on the day the murder was committed. 7 The night of Friday, September 16, Carignan was lodged in the city jail. The next morning, Saturday, Herring, the United States Marshal, undertook to question respondent in regard to the earlier crime of murder. No evidence appears of violence, of persistent questioning, or of deprivation of food or rest. Respondent was told that he did not have to make a statement, and that no promises could be made to him one way or another. There were pictures of Christ and of various saints on the walls of the office in which the conversation occurred. The Marshal evidently suggested to him that his Maker might think more of him if he told the truth about the crime. The evidence also shows that the Marshal told Carignan that he, the Marshal, had been in an orphan asylum as a youth, as had Carignan. On respondent's request a priest was called. The accused talked to the priest alone for some time and later told the Marshal he would give him a statement. After his return to the jail about 5 p.m. on Saturday, he was left undisturbed. 8 On Sunday he was not questioned, and on Monday morning the Marshal again took respondent out of jail and into the grand jury room in the courthouse. Upon the Marshal's inquiry if he had any statement to make, respondent answered that he had but that he wished to see the priest first. 9 After talking to the priest again for some time, he gave the Marshal a written statement. The statement was noncommittal as to the murder charge. Two other police officers who were with the Marshal and Carignan then suggested that perhaps Carignan would rather talk to the Marshal alone. They withdrew. The Marshal told Craignan, in response to an inquiry, that he had been around that court for twenty-seven years and that during that time 'there had been no hanging, what would happen to him I couldn't promise him or anyone else.' There was also some talk about McNeil Island, the location of the nearest federal penitentiary, and the Marshal said, in reply to a question of Carignan's, that he, the Marshal, 'had known men that had been there and learned a trade and that made something of their lives.' After a few moments' further conversation Carignan completed the written statement that was later put in evidence. It then admitted the killing. 10 Whether involuntary confessions are excluded from federal criminal trials on the ground of a violation of the Fifth Amendment's protection against self-incrimination,3 or from a rule that forced confessions are untrustworthy,4 these uncontradicted facts do not bar this confession as a matter of law. The constitutional test for admission of an accused's confession in federal courts for a long time has been whether it was made 'freely, voluntarily, and without compulsion or inducement of any sort.'5 However, this Court in recent years has enforced a judicially created federal rule of evidence, to which the label 'McNabb rule' has been applied, that confessions shall be excluded if obtained during 'illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the 'confession is the result of torture, physical or psychological".6 Violation of the McNabb rule, in the view of the Court of Appeals, not the assertedly involuntary character of the confession, caused that court to reverse the conviction.7 Our problem in this review is whether the McNabb rule covers this confession or, if not, whether that rule of evidence should now be judicially extended to these facts. 11 By United States v. Mitchell, 322 U.S. 65, 70—71, 64 S.Ct. 896, 898, 88 L.Ed. 1140, this Court decided that the McNabb rule was not intended as a penalty or sanction for violation of R.S.D.C. § 397, a commitment statute. The same conclusion applies to Rule 5, Federal Rules of Criminal Procedure.8 This rule applies to Alaska. Rule 54(a). See Upshaw v. United States, 335 U.S. 410, 411, 69 S.Ct. 170, 93 L.Ed. 100. Mitchell's confession, made before commitment, but also before his detention had been illegally prolonged, was admitted as evidence because it was not elicited 'through illegality.' The admission, therefore, was not 'use by the Government of the fruits of wrongdoing by its officers.' Upshaw v. United States, supra, 335 U.S. 413, 69 S.Ct. 172.9 12 The McNabb rule has been stated thus: '* * * that a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the 'confession is the result of torture, physical or psychological * * *." Upshaw v. United States, 335 U.S. at page 413, 69 S.Ct. at page 172, 93 L.Ed. 100. 13 One cannot say that this record justifies characterization of this confession as given during unlawful detention. Rule 5, Federal Rules of Criminal Procedure, does not apply in terms, because Carignan was neither arrested for nor charged with the murder when the confession to that crime was made. He had been arrested and committed for the assault perpetrated six weeks after the murder. His detention, therefore, was legal. Further, before the confession, there was basis for no more than a strong suspicion that Carignan was the murderer. That suspicion arose from a doubtful identification by a person who had in passing seen a man resembling the respondent at the scene of the murder and from a similarity of circumstances between the murder and the assault.10 The police could hardly be expected to make a murder charge on such uncertainties without further inquiry and investigation. This case falls outside the reason for the rule, i.e., to abolish unlawful detention. Such detention was thought to give opportunity for improper pressure by police before the accused had the benefit of the statement by the commissioner. Rule 5(b), supra, note 8. Upshaw v. United States, supra, 335 U.S. 414, 69 S.Ct. 172; McNabb v. United States, supra, 318 U.S. 344, 63 S.Ct. 614. Carignan had received that information at his commitment for the assault. 14 Another extension of the McNabb rule would accentuate the shift of the inquiry as to admissibility from the voluntariness of the confession to the legality of the arrest and restraint. Complete protection is afforded the civil rights of an accused who makes an involuntary confession or statement when such confession must be excluded by the judge or disregarded by the jury upon proof that it is not voluntary. Such a just and merciful rule preserves the rights of accused and society alike. It does not sacrifice justice to sentimentality. An extension of a mechanical rule based on the time of a confession would not be a helpful addition to the rules of criminal evidence. We decline to extend the McNabb fixed rule of exclusion to statements to police or wardens concerning other crimes while prisoners are legally in detention on criminal charges. 15 The decision of the Court of Appeals is modified and, as modified by this opinion, the judgment is affirmed. 16 Mr. Justice MINTON took no part in the consideration or decision of this case. 17 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice FRANKFURTER join, concurring. 18 I agree that the judgment of conviction was properly set aside. But my reason strikes deeper than the one on which the Court rests its opinion. There are time-honored police methods for obtaining confessions from an accused. One is detention without arraignment, the problem we dealt with in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. Then the accused is under the exclusive control of the police, subject to their mercy, and beyond the reach of counsel or of friends. What happens behind doors that are opened and closed at the sole discretion of the police is a black chapter in every country—the free as well as the despotic, the modern as well as the ancient. In the McNabb case we tried to rid the federal system of those breeding grounds for coerced confessions. 19 Another time-honored police method for obtaining confessions is to arrest a man on one charge (often a minor one) and use his detention for investigating a wholly different crime. This is an easy short cut for the police. How convenient it is to make detention the vehicle of investigation! Then the police can have access to the prisoner day and night. Arraignment for one crime gives some protection. But when it is a pretense or used as the device for breaking the will of the prisoner on long, relentless, or repeated questionings, it is abhorrent. We should free the federal system of that disreputable practice which has honeycombed the municipal police system in this country.* We should make illegal such a perversion of a 'legal' detention. 20 The rule I propose would, of course, reduce the 'efficiency' of the police. But so do the requirements for arraignment, the prohibition against coerced confessions, the right to bail, the jury trial, and most of our other procedural safeguards. We in this country, however, early made the choice—that the dignity and privacy of the individual were worth more to society than an all-powerful police. 21 We are framing here a rule of evidence for criminal trials in the federal courts. That rule must be drawn in light not of the facts of the particular case but of the system which the particular case reflects. Hence, the fact that the charge on which this respondent was arraigned was not a minor one nor one easily conceived by the police is immaterial. The rule of evidence we announce today gives sanction to a police practice which makes detention the means of investigation. Therein lies its vice. Hence, we do not reach the question whether a confesion so obtained violates the Fifth Amendment. 1 Since these issues were in controversy below, they are available to respondent as grounds for affirmance of the Court of Appeals. Langnes v. Green, 282 U.S. 531, 535, 538, 51 S.Ct. 243, 244, 245, 246, 75 L.Ed. 520; United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 330, 57 S.Ct. 216, 225, 81 L.Ed. 255. 2 Ziang Sung Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 1, 3, 69 L.Ed. 131; Lisenba v. People of State of California, 314 U.S. 219, 239, 62 S.Ct. 280, 291, 86 L.Ed. 166; McNabb v. United States, 318 U.S. 332, 346, 63 S.Ct. 608, 615, 87 L.Ed. 819. Cf. Hardy v. United States, 186 U.S. 224, 228, 22 S.Ct. 889, 890, 46 L.Ed. 1137. 3 Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 186, 42 L.Ed. 568; Powers v. United States, 223 U.S. 303, 313, 32 S.Ct. 281, 283, 56 L.Ed. 448. 4 Wigmore, Evidence (1940 ed.), § 822. Cf. Ziang Sung Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 1, 3, 69 L.Ed. 131. 5 Wilson v. United States, 162 U.S. 613, 623, 16 S.Ct. 895, 899, 40 L.Ed. 1090. 6 Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 172, 93 L.Ed. 100; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. 7 Carignan v. United States, 9 Cir., 185 F.2d 954: 'Healy, Circuit Judge: 'What the court has to decide is whether the circumstances outlined were such as to bring the case within the spirit and intent of Rule 5 and the holding of the McNabb decision, supra, as further expounded in Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100, * * *.4 4 'In the view of the writer of this opinion something approaching psychological pressure, not unmixed with deceit, contributed to the extraction of the confession. Since the majority are of a contrary opinion this possible aspect has not been given weight in the decision to reverse.' 185 F.2d at page 958. Bone, Circuit Judge: 'However, I emphasize that my concurrence rests solely upon the fact that appellant was not arraigned prior to being interrogated by the Marshal and prior to the making of the confession. The evidence in this case convinces me that the confession was freely made and was not the product of any form of promises or inducement that would or should vitiate it.' 185 F.2d at page 961. See also Pope, Circuit Judge, dissenting, 185 F.2d at page 962. 8 Federal Rules of Criminal Procedure: 'Rule 5. Proceedings before the Commissioner— '(a) Appearance before the Commissioner. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith. '(b) Statement by the Commissioner. The commissioner shall inform the defendant of the complaint against him, of his right to retain counsel and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The commissioner shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail as provided in these rules.' 9 In the Mitchell case defendant's confession was given at the police station before commitment, a few minutes after two policemen had jailed him following his arrest on a charge of housebreaking and larceny. For the purpose of aiding in clearing up a series of housebreakings, Mitchell's appearance for commitment was illegally postponed for eight days. 10 The weakness of this evidence is shown by the record. 'Q. Now, at any later time, Mr. Keith, were you called upon to identify anyone that resembled the person that you saw, the male person in the grass that night? A. I was taken to the police station and viewed the line-up. 'Q. Do you recall how many were in that line-up? A. There was either four of five, I don't exactly recollect. 'Q. Did you pick out some person that appeared to be the person that you saw on this particular occasion? A. I did. 'Q. Do you see anyone in the courtroom today that resembles the party that you saw that night in question? A. I do. 'Q. Will you point him out? A. He is right over there.' R. 120—121. 'Q. Now, were you able to remember the person you saw there so that when you saw him in the courtroom today you were able to recognize him as the same person? A. I couldn't positively swear that he is the same person.' R. 128. 'Q. When did you next see the man whom you identified as the person you saw in the park in the grass? A. In the police line-up. 'Q. Did you have any difficulty recognizing him at that time? A. Well, no. I picked him out as looking nearer like the man that I saw there than any man I have seen.' R. 130. * See, for example, 29 City Club Bulletin of Portland, Oregon, No. 7, June 18, 1948.

01

342 U.S. 48 72 S.Ct. 93 96 L.Ed. 59 UNITED STATESv.JEFFERS. No. 3. Argued Oct. 15, 1951. Decided Nov. 13, 1951. Beatrice Rosenberg, Washington, D.C., for petitioner. Mr. T. Emmett McKenzie, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 Here we are faced with troublesome questions as to the exclusion from evidence, on motion of the accused, of contraband narcotics claimed by him which were seized on the premises of other persons in the course of a search without a warrant. On the basis of the seized narcotics, the accused, respondent here, was convicted of violation of the narcotics laws, 26 U.S.C. § 2553(a), 26 U.S.C.A. § 2553(a), and 21 U.S.C. § 174, 21 U.S.C.A. § 174.1 Prior to trial the District Court had denied respondent's motion to suppress, as evidence at the trial, the property seized. The Court of Appeals reversed the conviction by a divided court, 88 U.S.App.D.C. 58, 187 F.2d 498. Since a determination of the question is important in the administration of criminal justice, we brought the case here. 340 U.S. 951, 71 S.Ct. 570, 95 L.Ed. 685. 2 The evidence showed that one Roberts came to the Dunbar Hotel in the District of Columbia on Monday, September 12, 1949, at about 3 p.m., sought out the house detective, Scott, and offered him $500 to let him into a room in the hotel occupied by respondent's two aunts, the Misses Jeffries. Roberts told Scott that respondent had 'some stuff stashed' in the room. The house detective told Roberts to call back later in the evening and he would see about it. He then immediately reported the incident to Lieut. Karper, in charge of the narcotics squad of the Metropolitan Police, who came to the hotel about 4 p.m. Karper went with Scott to the room occupied by the Misses Jeffries. When there was no answer to their knock on the door the two officers then went to the assistant manager and obtained a key to the room. Although neither officer had either a search or an arrest warrant they unlocked the door, entered the room and, in the absence of the Misses Jeffries as well as the respondent, proceeded to conduct a detailed search thereof. On the top shelf of a closet they discovered a pasteboard box containing 19 bottles of cocaine, of which only two had U.S. tax stamps attached, and one bottle of codeine, also without stamps. The bottles were seized and taken to Scott's office, where Lieut. Karper telephoned the federal narcotics agent and upon the latter's arrival turned the seized articles over to him. Respondent was arrested the following day on the charges before us, at which time he claimed ownership of the narcotics seized. 3 It appeared from the evidence at the pretrial hearing that the Misses Jeffries had given respondent a key to their room, that he had their permission to use the room at will, and that he often entered the room for various purposes. They had not given him permission to store narcotics there and had no knowledge that any were so stored. The hotel records reflected that the room was assigned to and paid for by them alone. 4 We agree with the Court of Appeals that the seizure was made in violation of the Fourth Amendment and on motion of respondent its fruits should have been excluded as evidence on his trial. 5 The Fourth Amendment2 prohibits both unreasonable searches and unreasonable seizures, and its protection extends to both 'houses' and 'effects.' Over and again this Court has emphasized that the mandate of the Amendment requires adherence to judicial processes. See Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Agnello v. United States, 1925, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145. Only where incident to a valid arrest, United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, or in 'exceptional circumstances,' Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, may an exemption lie, and then the burden is on those seeking the exemption to show the need for it, McDonald v. United States, 1948, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153. In so doing the Amendment does not place an unduly oppressive weight on law enforcement officers but merely interposes an orderly procedure under the aegis of judicial impartiality that is necessary to attain the beneficent purposes intended. Johnson v. United States, supra. Officers instead of obeying this mandate have too often, as shown by the numerous cases in this Court, taken matters into their own hands and invaded the security of the people against unreasonable search and seizure. 6 The law does not prohibit every entry, without a warrant, into a hotel room. Circumstances might make exceptions and certainly implied or express permission is given to such persons as maids, janitors or repairmen in the performance of their duties. But here the Government admits that the search of the hotel room, as to the Misses Jeffries, was unlawful. They were not even present when the entry, search and seizure were conducted; nor were exceptional circumstances present to justify the action of the officers. There was no question of violence, no movable vehicle was involved, nor was there an arrest or imminent destruction, removal, or concealment of the property intended to be seized. In fact, the officers admit they could have easily prevented any such destruction or removal by merely guarding the door. Instead, in entering the room and making the search for the sole purpose of seizing respondent's narcotics, the officers not only proceeded without a warrant or other legal authority, but their intrusion was conducted surreptitiously and by means denounced as criminal. 7 The Government argues, however, that the search did not invade respondent's privacy and that he, therefore, lacked the necessary standing to suppress the evidence seized. The significant act, it says, is the seizure of the goods of the respondent without a warrant. We do not believe the events are so easily isolable. Rather they are bound together by one sole purpose—to locate and seize the narcotics of respondent. The search and seizure are, therefore, incapable of being untied. To hold that this search and seizure were lawful as to the respondent would permit a quibbling distinction to overturn a principle which was designed to protect a fundamental right. The respondent unquestionably had standing to object to the seizure made without warrant or arrest unless the contraband nature of the narcotics seized precluded his assertion, for purposes of the exclusionary rule, of a property interest therein. 8 It is urgently contended by the Government that no property rights within the meaning of the Fourth Amendment exist in the narcotics seized here, because they are contraband goods in which Congress has declared that 'no property rights shall exist'3. The Government made the same contention in Trupiano v. United States, 1948, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663. See Brief for the United States, pp. 24 45. This Court disposed of the contention saying: 'It follows that it was error to refuse petitioners' motion to exclude and suppress the property which was improperly seized. But since this property was contrabrand, they have no right to have it returned to them.' 334 U.S. at 710, 68 S.Ct. 1235. 9 The same section declaring that 'no property rights shall exist' in contraband goods provides for the issuance of search warrants 'for the seizure' of such property. The Government's view in Trupiano was that the latter provision applies 'when the entry must be made to seize'; but not 'where, after a lawful entry for another purpose, the contraband property is before the eyes of the enforcing officers.'4 This construction would make it necessary for the officers to have a search warrant here. We are of the opinion that Congress, in abrogating property rights in such goods, merely intended to aid in their forfeiture and thereby prevent the spread of the traffic in drugs rather than to abolish the exclusionary rule formulated by the courts in furtherance of the high purposes of the Fourth Amendment. See In re Fried, 2 Cir., 1947, 161 F.2d 453. 10 Since the evidence illegally seized was contraband the respondent was not entitled to have it returned to him. It being his property, for purposes of the exclusionary rule, he was entitled on motion to have it suppressed as evidence on his trial. 11 Affirmed. 12 THE CHIEF JUSTICE and Mr. Justice REED dissent. 13 Mr. Justice MINTON took no part in the consideration or decision of this case. 1 'It shall be unlawful for any person to purchase, sell, dispense, or distribute any of the drugs mentioned in section 2550(a) except in the original stamped package or from the original stamped package; and the absence of appropriate tax-paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession same may be found; * * *.' 26 U.S.C. § 2553(a), 26 U.S.C.A. § 2553(a). 'If any person fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or assists in so doing or receives, conceals, buys, sells or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, such person shall upon conviction be fined not more than $5,000 and imprisoned for not more than ten years. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.' 21 U.S.C. § 174, 21 U.S.C.A. § 174. 2 '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.' 3 'It shall be unlawful to have or possess any liquor or property intended for use in violating the provisions of this part, or the internal-revenue laws, or regulations prescribed under such part or laws, or which has been so used, and no property rights shall exist in any such liquor or property. A search warrant may issue as provided in title XI of the Act of June 15, 1917, 40 Stat. 228 (U.S.C., Title 18, §§ 611—633) (since superseded by Fed.Rules Crim.Proc. 41, 18 U.S.C.A.), for the seizure of such liquor or property. Nothing in this section shall in any manner limit or affect any criminal or forfeiture provision of the internal-revenue laws, or of any other law. The seizure and forfeiture of any liquor or property under the provisions of this part, and the disposition of such liquor or property subsequent to seizure and forfeiture, or the disposition of the proceeds from the sale of such liquor or property, shall be in accordance with existing laws or those hereafter in existence relating to seizures, forfeitures, and disposition of property or proceeds, for violation of the internal-revenue laws.' 26 U.S.C. § 3116, 26 U.S.C.A. § 3116. 4 Brief for the United States, pp. 35—36 (emphasis added).

01

342 U.S. 98 72 S.Ct. 154 96 L.Ed. 113 UNITED STATESv.WUNDERLICH et al. No. 11. Argued Nov. 6, 1951. Decided Nov. 26, 1951. Paul A. Sweeney, Washington, D.C., for petitioner. Harry D. Ruddiman, Washington, D.C., for respondents. Mr. Justice MINTON delivered the opinion of the Court. 1 This Court is again called upon to determine the meaning of the 'finality clause' of a standard form government contract. Respondents agreed to build a dam for the United States under a contract containing the usual 'Article 15.'1 That Article provides that all disputes involving questions of fact shall be decided by the contracting officer, with the right of appeal to the head of the department 'whose decision shall be final and conclusive upon the parties thereto.' Dissatisfied with the resolution of various disputes by the department head, in this instance the Secretary of the Interior, respondents brought suit in the Court of Claims. That court reviewed their contentions, and in the one claim involved in this proceeding set aside the decision of the department head. 117 Ct.Cl. 92. Although there was some dispute below, the parties now agree that the question decided by the department head was a question of fact. We granted certiorari, 341 U.S. 924, 71 S.Ct. 795, 95 L.Ed. 1356 to clarify the rule of this Court which created an exception to the conclusiveness of such administrative decision. 2 The same Article 15 of a government contract was before this Court recently, and we held, after a review of the authorities, that such Article was valid. United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288, 94 L.Ed. 256. Nor was the Moorman case one of first impression. Contracts, both governmental and private, have been before this Court in several cases in which provisions equivalent to Article 15 have been approved and enforced 'in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment * * *.' Kihlberg v. United States, 97 U.S. 398, 402, 24 L.Ed. 1106; Sweeney v. United States, 109 U.S. 618, 620, 3 S.Ct. 344, 27 L.Ed. 1053; Martinsburg & P.R. Co. v. March, 114 U.S. 549, 553, 5 S.Ct. 1035, 1037, 29 L.Ed. 255; Chicago, S.F. & C.R. Co. v. Price, 138 U.S. 185, 195, 11 S.Ct. 290, 292, 34 L.Ed. 917. 3 In Ripley v. United States, 223 U.S. 695, 704, 750, 32 S.Ct. 352, 356, 56 L.Ed. 614, gross mistake implying bad faith is equated to 'fraud.' Despite the fact that other words such as 'negligence,' 'incompetence,' 'capriciousness,' and 'arbitrary' have been used in the course of the opinions, this Court has consistently upheld the finality of the department head's decision unless it was founded on fraud, alleged and proved. So fraud is in essence the exception. By fraud we mean conscious wrongdoing, an intention to cheat or be dishonest. The decision of the department head, absent fraudulent conduct, must stand under the plain meaning of the contract. 4 If the decision of the department head under Article 15 is to be set aside for fraud, fraud should be alleged and proved, as it is never presumed. United States v. Colorado Anthracite Co., 225 U.S. 219, 226, 32 S.Ct. 617, 620, 56 L.Ed. 1063. In the case at bar, there was no allegation of fraud. There was no finding of fraud nor request for such a finding. The finding of the Court of Claims was that the decision of the department head was 'arbitrary,' 'capricious,' and 'grossly erroneous.' But these words are not the equivalent of fraud, the exception which this Court has heretofore laid down and to which it now adheres without qualification. 5 Respondents were not compelled or coerced into making the contract. It was a voluntary undertaking on their part. As competent parties they have contracted for the settlement of disputes in an arbitral manner. This, we have said in Moorman, Congress has left them free to do. United States v. Moorman, supra, 338 U.S. at page 462, 70 S.Ct. 291. The limitation upon this arbitral process is fraud, placed there by this Court. If the standard of fraud that we adhere to is too limited, that is a matter for Congress. 6 Since there was no pleading of fraud, and no finding of fraud, and no request for such a finding, we are not disposed to remand the case for any further findings, as respondents urge. We assume that if the evidence had been sufficient to constitute fraud, the Court of Claims would have so found. In the absence of such finding, the decision of the department head must stand as conclusive, and the judgment is reversed. 7 Reversed. 8 Mr. Justice DOUGLAS, with whom Mr. Justice REED concurs, dissenting. 9 Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered. At times it has been his property that has been invaded; at times, his privacy; at times, his liberty of movement; at times, his freedom of thought; at times, his life. Absolute discretion is a ruthless master. It is more destructive of freedom than any of man's other inventions. 10 The instant case reveals only a minor facet of the age-long struggle. The result reached by the Court can be rationalized or made plausible by casting it in terms of contract law: the parties need not have made this contract; those who contract with the Government must turn square corners; the parties will be left where their engagement brought them. And it may be that in this case the equities are with the Government, not with the contractor. But the rule we announce has wide application and a devastating effect. It makes a tyrant out of every contracting officer. He is granted the power of a tyrant even though he is stubborn, perverse or captions. He is allowed the power of a tyrant though he is incompetent or negligent. He has the power of life and death over a private business even though his decision is grossly erroneous. Power granted is seldom neglected. 11 The principle of checks and balances is a healthy one. An official who is accountable will act more prudently. A citizen who has an appeal to a body independent of the controversy has protection against passion, obstinacy, irrational conduct, and incompetency of an official. The opinion by Judge Madden in this case expresses a revulsion to allowing one man an uncontrolled discretion over another's fiscal affairs. We should allow the Court of Claims, the agency close to these disputes, to reverse an official whose conduct is plainly out of bounds whether he is fraudulent, perverse, captious, incompetent, or just palpably wrong. The rule we announce makes government oppressive. The rule the Court of Claims espouses gives a citizen justice even against his government. 12 Mr. Justice JACKSON, dissenting. 13 It is apparent that the Court of Claims, which deals with many such cases while we deal with few, has reached a conclusion that contracting officers and heads of departments sometimes are abusing the power of deciding their own lawsuits which these contract provisions give to them. It also is apparent that the Court of Claims does not believe that our decision in United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288, 94 L.Ed. 256, completely closed the door to judicial relief from arbitrary action unless it also is fraudulent in the sense of 'conscious wrongdoing, an intention to cheat or be dishonest.' Nor could I have believed it. 14 Granted that these contracts are legal, it should not follow that one who takes a public contract puts himself wholly in the power of contracting officers and department heads. When we recently repeated in Moorman that their decisions were "conclusive, unless impeached on the ground of fraud, or such gross mistake as necessarily implied bad faith", Id., 338 U.S. at page 461, 70 S.Ct. at page 290 (emphasis supplied), I supposed that we meant that part of the reservation for which I have supplied emphasis. Today's decision seems not only to read that out of the Moorman decision, but also to add an exceedingly rigid meaning to the word 'fraud.' 15 Undoubtedly contracting parties can agree to put decision of their disputes in the hands of one of them. But one who undertakes to act as a judge in his own case or, what amounts to the same thing, in the case of his own department, should be under some fiduciary obligation to the position which he assumes. He is not at liberty to make arbitrary or reckless use of his power, nor to disregard evidence, nor to shield his department from consequences of its own blunders at the expense of contractors. He is somewhat in the position of the lawyer dealing with his client or the doctor with his patient, for the superiority of his position imposes restraints appropriate to the trust. Though the contractor may have convenanted to be satisfied with what his adversay renders to him, it must be true that he who bargains to be made judge of his own cause assumes an implied obligation to do justice. This does not mean that every petty disagreement should be readjudged, but that the courts should hold the administrative officers to the old but vanishing standard of good faith and care. 16 I think that we should adhere to the rule that where the decision of the contracting officer or department head shows 'such gross mistake as necessarily to imply bad faith' there is a judicial remedy even if it has its origin in overzeal for the department, negligence of the deciding official, misrepresentations—however innocent—by subordinates, prejudice against the contractor, or other causes that fall short of actual corruption. Men are more often bribed by their loyalties and ambitions than by money. I still believe one should be allowed to have a judicial hearing before his business can be destroyed by administrative action, although the Court again thinks otherwise. Cf. Ewing v. Mytinger & Casselberry, 339 U.S. 594, 604, 70 S.Ct. 870, 875, 94 L.Ed. 1088. 1 'Article 15. 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.'

89

342 U.S. 76 72 S.Ct. 130 96 L.Ed. 100 BINDCZYCKv.FINUCANE et al. No. 18. Argued Oct. 10, 1951. Decided Nov. 26, 1951. Mr. Joseph A. Fanelli, Washington, D.C., for petitioner. Mr. James L. Morrisson, Washington, D.C., for respondents. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 On December 2, 1943, the Circuit Court of Frederick County, Maryland, issued a certificate of naturalization to petitioner after proceedings that conformed with the requirements of the Nationality Act of 1940. 54 Stat. 1137, 8 U.S.C. § 501 ff, 8 U.S.C.A. § 501 et seq. Seven days later, and at the same term of court, the Government moved to vacate and set aside the order of naturalization, claiming on evidence outside the record that it was obtained by fraud and that therefore the citizenship was illegally procured. 2 It is admitted that the requirements of § 338 of the Nationality Act, wherein Congress made specific provision for 'revoking * * * the order admitting * * * to citizenship * * * on the ground of fraud or on the ground that such order * * * (was) illegally procured',1 were not followed. Instead, the Maryland court exercised its general power under Maryland law to set aside judgments during the term of court in which they were rendered.2 3 We brought this case here to determine whether the requirements of § 338 control the revocation of citizenship on the ground of fraud or on the ground that it was illegally procured; or whether the grant of citizenship by the courts of the forty-eight States is subject to whatever summary control State courts may have over their merely local judgments. The questions are of obvious importance in the administration of the naturalization laws, apart from the conflict between the views of the court below and those of the Court of Appeals for the Seventh Circuit in United States ex rel. Volpe v. Jordan, 161 F.2d 390. 4 The issue was raised by petitioner's action in the District Court for the District of Columbia for a judgment declaring him to be a citizen of the United States and for an order restraining respondents from deporting him. Upon a motion by the Government to dismiss the complaint, petitioner moved for summary judgment which was granted by the District Court, declaring petitioner 'to be a national and citizen of the United States' but 'without prejudice to the government's right to institute appropriate proceedings for denaturalization under Sec. 338 of the Nationality Act of 1940.' The Court of Appeals reversed, 87 U.S.App.D.C. 137, 184 F.2d 225, and we granted certiorari. 341 U.S. 919, 71 S.Ct. 742, 95 L.Ed. 1353. 5 Due regard for § 338, including the history of its origin, and for the nature of a judgment of naturalization, together with a consideration of the conflicting and capricious diversities of local law affecting the finality of local judgments, compel us to hold that § 338 is the exclusive procedure for canceling citizenship on the score of fraudulent or illegal procurement based on evidence outside the record. 6 Section 338 of the Nationality Act of 1940 is for our purpose the reenactment of § 15 of the Act of June 29, 1906, 34 Stat. 596, 601. That Act was the culmination of half a century's agitation directed at naturalization frauds, particularly in their bearing upon the suffrage.3 On the basis of a nationwide survey to determine the incidence and causes of naturalization frauds with a view to devising recommendations for corrective legislation, President Theodore Roosevelt's Commission on Naturalization prepared a report which was the foundation of the Act of 1906. H.R.Doc.No.46, 59th Cong., 1st Sess. This report, the hearings before congressional committees and their reports, the floor debates on the proposed measure, leave no doubt that the target of legislation was fraudulent naturalization.4 It is equally clear that the remedy for the disclosed evil lay in the effective exercise of the power of Congress 'To establish an uniform Rule of Naturalization'. U.S.Const., Art. I, § 8, cl. 4. 7 To prevent fraud in a proceeding before a naturalization court, the Act devised a scheme of administrative oversight for the naturalization process. The Government was given the right to appear. § 11, 34 Stat. 596, 599. This right was fortified by requiring notice of the petition to the newly created Bureau of Immigration and Naturalization and a ninety-day waiting period between the filing of the petition and the final hearing. §§ 6 and 12, 34 Stat. 596, 598 and 599. These were safeguards to enable verification by the Bureau of the facts alleged in the petition and investigation of the qualifications of the applicant for citizenship.5 By these provisions Congress recognized that enforcement is the heart of the law. 8 But Congress was not content to devise measures against fraud in procuring naturalization only. In § 15 of the Act of 1906 it formulated a carefully safeguarded method for denaturalization. Though the principal criticism leading to the enactment concerned the evils inherent in widely diverse naturalization procedures, experience was not wanting of the dangers and hardships attendant on haphazard denaturalization. Information was before Congress that ever since 1890 the then circuit courts had vacated naturalization orders at the suit of the Attorney General,6 although when the validity of § 15 was before it, this Court left open the question whether a court of equity had such power without express legislative authority. Johannessen v. United States, 225 U.S. 227, 240, 32 S.Ct. 613, 616, 56 L.Ed. 1066. But the revocation of citizenship before 1906 was not always surrounded by the safeguards of an original equity proceeding. See, e.g., Tinn v. United States District Attorney, 1906, 148 Cal. 773, 84 P. 152.7 Indeed, the history of the Act of 1906 makes clear that elections could be influenced by irregular denaturalizations as well as by fraudulent naturalizations. The only instance in the extensive legislative materials of vacation of naturalization orders by what appears to have been the procedure urged by the Government in this case involved just such a situation. A judge who had naturalized seven aliens on the supposition that they were members of his own political party promptly vacated his order when this supposition was corrected. See Rep.Atty.Gen. 394 (1903).8 9 Significantly, floor action on § 15 in the House reveals a specific purpose to deprive the naturalizing court as such of power to revoke. The original bill authorized United States attorneys to institute revocation proceedings in the court issuing the certificate as well as in a court having jurisdiction to naturalize in the district of the naturalized citizen's residence. H.R.15442, 59th Cong., 1st Sess., § 17. A committee amendment adopted just before final passage put the section in the form in which it was enacted. That amendment, in the words of Congressman Bonynge, the manager of the bill, 'takes away the right to institute (a revocation proceeding) in the court out of which the certificate of citizenship may have been issued, unless the alien happens to reside within the jurisdiction of that court.' 40 Cong.Rec. 7874. 10 In the light of this legislative history we cannot escape the conclusion that in its detailed provisions for revoking a naturalization because of fraud or illegal procurement not appearing on the face of the record, Congress formulated a self-contained, exclusive procedure. With a view to protecting the Government against fraud while safeguarding citizenship from abrogation except by a clearly defined procedure, Congress insisted on the detailed, explicit provisions of § 15. To find that at the same time it left the same result to be achieved by the confused and conflicting medley, as we shall see, of State procedures for setting aside local judgments is to read congressional enactment without respect for reason. 11 Between them, these two sections, § 11 and § 15, provided a complete and exclusive framework for safeguarding citizenship against unqualified applicants. Under the first, the Government was given ample opportunity to interpose objections prior to the order of naturalization. If proper account was not taken of the evidence, the Government had recourse to appeal for examination of the action of the naturalizing court on the record. Tutun v. United States, 270 U.S. 568, 46 S.Ct. 425, 70 L.Ed. 738. Congress, however, thought that ninety days was quite enough time for the Government to develop its case—indeed many members deemed it too long. 40 Cong.Rec. 7766—7770. At the expiration of that time, if citizenship was granted, it was to be proof against attacks for fraud or illegal procurement based on evidence outside the record, except through the proceedings prescribed in § 15. The congressional scheme, providing carefully for the representation of the Government's interest before the grant of citizenship and a detailed, safeguarded procedure for attacking the decree on evidence of fraud outside the record,9 covers the whole ground. Every national interest is thereby protected. 12 Neither uncontested practice nor adjudication by lower courts has rendered a verdict which is disregarded by our construction of § 338. Nor as a rule for future conduct is any burden thereby placed on the Government in setting aside a naturalization order where it can prove illegality or fraud. 13 An abstract syllogism is pressed against this natural, because rational, treatment of § 338 as the exclusive and safeguarding procedure for voiding naturalizations granted after compliance with the careful formalities of § 334.10 Grant of citizenship is a judgment; a judgment is within the control of the issuing court during the court's term; therefore naturalization is subject to revocation for fraud or illegal procurement during the term of the court that granted it. So runs the argument. Such abstract reasoning is mechanical jurisprudence in its most glittering form. It disregards all those decisive considerations by which a provision like § 338 derives the meaning of life from the context of its generating forces and its purposes. It also disregards the capricious and haphazard results that would flow from applying such an empty syllogism to the actualities of judicial administration. 14 By giving State courts jurisdiction in naturalization cases, Congress empowered some thousand State court judges to adjudicate citizenship. If the requirements specifically defined in § 338 for revocation of citizenship were to be supplemented by State law regarding control over judgments by way of the 'term rule' or otherwise, the retention of citizenship would be contingent upon application of myriad discordant rules by a thousand judges scattered over the land. 15 Wide and whimsical diversities are revealed by the local law of the forty-eight States in the power of their courts to set aside local judgments.11 The courts of some States have no power to set aside their own judgments; courts in other States have almost unlimited power. Not only is there this great diversity among the States. There are capricious differences within individual States. That Congress, composed largely of lawyers, should have gone through the process of the elaborate definition in § 338 but impliedly also allowed denaturalization through the eccentricities and accidents of variegated State practice, is an assumption that ought to have a solider foundation than an abstract syllogism. Without more, we cannot believe that Congress would subject a naturalized citizen who has achieved that status only by the protecting formalities of the Nationality Act—to such unpredictable attack.12 16 Finally, it is suggested that since § 15 was found not to prevent the taking of appeals from a naturalization order, Tutun v. United States, supra, and since there are diversities in the time for appeal among State courts with power to naturalize, the diversities among State courts in the power to vacate their own judgments ought not to require resort to § 338 as the exclusive, uniform procedure for denaturalization. 17 One answer is that the Act of 1906 and its successor, the Nationality Act of 1940, had no provision whatever as to appellate review of errors appearing of record in a naturalization court. On the other hand, Congress laboriously dealt with the revocation of naturalization obtained by fraud or otherwise illegally. And since appellate review is so ingrained a part of American justice, this Court in the Tutun case naturally held that it was not to be assumed that Congress denied the right of appeal merely because it did not affirmatively confer it. Of course there are differences among State judiciaries as to the time within which an appeal can be taken. But the differences are within a narrow and unimportant range13 compared with the enormous and quixotic differences relating to a court's control over its judgments on the score of fraud or illegality. It is one thing to allow some play for the joints in a statutory scheme like the Nationality Act, enforceable by both State and federal courts. It is quite another to inject a wholly dislocating factor by incorporating the diverse State rules for vacating judgments into the revocation process, which Congress specifically and comprehensively dealt with in § 338. 18 Congressional concern for uniformity in post-naturalization proceedings was shown in this very connection. The bill before Congress in 1906 provided for a uniform mode of appeal to the United States Circuit Courts of Appeals from naturalization judgments rendered by State, as well as federal, courts. H.R. 15442, 59th Cong., 1st Sess., § 13. Constitutional doubts and the practical problems which such an anomalous procedure would raise led to the omission of this section, leaving appeal procedure to the States. 40 Cong.Rec. 7784—7787. It is not to be supposed, however, that where, as with denaturalization, such doubts and anomalies were not present, Congress would gratuitously abandon the constitutional mandate to establish 'an uniform Rule of Naturalization.' It established such a rule in § 338. 19 Accordingly, the judgment below must be reversed and that of the District Court reinstated. 20 It is so ordered. 21 Judgment of Court of Appeals reversed and judgment of District Court reinstated. 22 Mr. Justice CLARK and Mr. Justice MINTON took no part in the consideration or decision of this case. 23 For dissenting opinion of Mr. Justice REED, joined by Mr. Justice BURTON, see 72 S.Ct. 138. 24 APPENDIX. 25 Power of State Courts to Vacate Their Own Judgments1 26 The diversities in State rules governing the power to vacate judgments are illustrated by the following: 27 (1) The common law rule, still followed by many States, including Maryland, is that for the duration of the term in which the judgment is entered the court may entertain a motion to change it.2 This 'term rule' inevitably would produce erratic results as to naturalization:3 28 (a) States differ very substantially in the length of court terms set by legislature or court. See 3 Martindale-Hubbell Law Directory, 'Court Calendars' (1951). For example, in several counties of Kentucky the Circuit Court holds terms of only six days' duration; in contrast, the terms of the Oklahoma District Courts are six months in length. 29 (b) Even within a State the length of terms may vary greatly. Consider Indiana, for example. The Marion County (Indianapolis) Superior Court has monthly terms; some judges of the Lake County Superior Court hold terms lasting for six months.4 30 (c) In a good many States the length of term may fluctuate with the amount of business that happens to be before the court, and with the untrammelled discretion of a judge in adjourning sine die. Unless adjourned sine die or concluded by the terminal date set by statute, a term, in general, ends only at the commencement of the next succeeding term held at the same place. See, e.g., Comes v. Comes, 1920, 190 Iowa 547, 178 N.W. 403; Hensley v. State, 1931, 53 Okl.Cr. 22, 3 P.2d 211. Thus, a term may be less than a day in length, or it might be a full year where the court has only one prescribed term annually. 31 (d) There is an inherent uncertainty in the 'term rule.' Consider a court with a prescribed or permitted term of ten months. E.g., Rhode Island Superior Court in Providence, R.I.Gen.Laws 1938, c. 498, § 2. A citizenship obtained by naturalization on the first day of the term might be vacated at any time within 10 months—under the reasoning of the Government; whereas the alien fortunate enough to be naturalized on the last day of the term would have citizenship indefeasibly except by the safe-guarded procedure of § 338. 32 (2) A number of States have statutes similar to that of Alabama reading: 'The circuit courts * * * shall be open for the transaction of any and all business, or judicial proceedings of every kind, at all times.' Ala.Code 1940, Tit. 13, § 114. In those States wide disparity in the time within which a judgment may be vacated is introduced by the following circumstances: (a) Some of these States provide by statute that a court has control of its judgments and may vacate them within some fixed time; the times vary greatly: One year: 33 Minnesota—Minn.Stat.1949, § 544.32, M.S.A. 60 days: 34 Kentucky (courts in continuous session)—Ky.Rev.Stat.1946, § 451.130(1). 30 days: 35 Alabama—Ala.Code 1940, Tit. 13, § 119. 36 Illinois—Ill.Rev.Stat.1949, c. 77, § 82. 37 Maryland (Baltimore City Court)—See Harvey v. Slacum, 1942, 181 Md. 206, 29 A.2d 276. 38 New Mexico—N.M.Stat.1941, § 19—901. 39 (b) Other States provide that only the motion for setting aside the judgment need be filed within a fixed period; the length of these periods also varies considerably: 40 'A reasonable time not exceeding six months:' 41 Arizona—Ariz.Code Ann.1939, § 21—1502. 42 California—Deering's Cal.Code Civ.Proc.1949, § 473. 6 months: 43 Nevada—See Lauer v. Eighth Judicial District Court, 1943, 62 Nev. 78, 140 P.2d 953. 44 (c) At any rate either the fixed period or the reasonable time for vacating judgments produces quite different results from the erratic consequences of the 'term rule.' 45 (3) In some States, it appears, a court has no control over its judgments after they are signed and entered. See, e.g., Louisiana Bank v. Hampton, La.1816, 4 Mart., O.S., 94; Nelson & Co. v. Rocquet & Co., 1909, 123 La. 91, 48 So. 756. In Massachusetts a court has no jurisdiction to vacate a judgment 'on mere motion' except for clerical error. Shawmut Commercial Paper Co. v. Cram, 1912, 212 Mass. 108, 98 N.E. 696. But see Mass.Gen. Laws 1932, c. 250, §§ 14—20. 46 Mr. Justice REED, with whom Mr. Justice BURTON joins, dissenting. 47 Upon filing of his petition for naturalization, an order and a certificate of naturalization were issued immediately by the Circuit Court of Frederick County, Maryland, on December 2, 1943, to petitioner Bindczyck, a soldier in the United States Army. Nationality Act of 1940, § 324, 54 Stat. 1149, 8 U.S.C.A. § 724. On the next day he disclaimed loyalty to the United States and stated his desire to leave the country after the war. 48 Seven days after the naturalization and within the same term of the circuit court, the United States filed in the naturalization proceeding a motion to vacate and set aside the order of naturalization on the ground that newly discovered evidence showed Bindczyck swore falsely concerning his loyalty toward the United States and its defense. Bindczyck in open court admitted the charge. Thereupon the Maryland court directed that the order of citizenship be vacated, the certificate of naturalization voided, and the case restored to the pending calendar for immediate hearing. The record shows no further proceedings in Maryland, either by further hearing or by appeal. 49 On June 15, 1948, while he was in custody for deportation, Bindczyck filed a complaint in the District Court for the District of Columbia praying a declaration that he was a citizen of the United States. This was based on the contention that the order vacating his admission to citizenship was void because it had been issued without compliance with § 338 of the Nationality Act of 1940, set out in note 1 of the Court's opinion, 72 S.Ct. 131. 50 The Court upholds Bindczyck's contention. By that judgment the Court in a collateral proceeding determines that the vacation by the Maryland court of its order and the cancellation by that court of the certificate of naturalization are void because the proceedings were not taken in accordance with the above-mentioned § 338. That is, a state court with the alien before it has no power so to act, although it had jurisdiction to hear his application and enter an order for his naturalization. § 301. 51 The Court's judgment, we think, flows from its disregard of a postulate of statutory construction. This important principle is that new legislation is to be construed in the setting of existing law and practice.1 Since sound methods of statutory interpretation are important in the administration of justice, it seems worthwhile to state the reasons for disagreement. A dissent may help to avoid another and further departure from normal statutory interpretation. 52 Even the most comprehensive legislation cannot be considered as though it were the entire body of the law. The continuation of courts and practices is assumed. Congress may give concurrent jurisdiction over federal matters to both state and federal courts. Of course, the jurisdiction of federal courts over federal matters may be made exclusive of all other tribunals by Congress.2 That body may also, we assume, put limits on state court powers concerning federal rights. When Congress grants concurrent jurisdiction over federal matters, however, such a grant of power is to be exercised in accordance with the normal practices and procedure of the respective courts unless specifically or by necessary implication the federal legislation requires such limitation.3 53 We have had provisions for naturalization since March 26, 1790.4 They have grown in complexity through the years. Under the Act of 1906, as shown by the Court's opinion, the Congress sought to remedy the evils of fraudulent naturalization and to protect the new citizen against cancellation of his certificate in an inconvenient forum or without proper notice. This purpose has been carried out in the present 1940 Act practically by the same words, so far as the sections here involved are concerned. Power over naturalization has remained in both state and federal courts of general jurisdiction.5 54 There is not a suggestion in the acts or in the legislative history that, by the enactment of § 15 of the earlier Act or § 338 of the present Act, the Congress intended to affect the power which state and federal courts have to grant new trials or rehearings or to set aside orders during a term or within such other limited time as statute or practice may prescribe. Section 338 in providing a method for 'revoking and setting aside' the order and 'canceling the certificate' of naturalization refers to the method of overturning a judgment of naturalization after the judicial procedure required for the grant is at an end. Section 338, in our view, covers only those new cases where circumstances call for the Government, in the words of the section 'to institute proceedings in any court specified in subsection (a) of section 301 (54 Stat. 1140) in the judicial district in which the naturalized citizen may reside at the time of bringing suit'. Under subsection (b) of § 338 the defendant is to 'make answer to the petition of the United States'. This language is aimed at new litigation, not at steps in a pending case.6 Action on judgments during term time is a step in a pending case.7 55 The certificate of naturalization, as evidence of citizenship, is issued when the judge signs the order. 8 CFR (1949 ed.) § 377.1. A successful appeal by the Government from an order of naturalization would result in cancellation of an issued certificate. It is settled law, however, that appeals are allowable from federal and state courts. Tutun v. United States, 270 U.S. 568, 575, note 3, 580, 46 S.Ct. 425, 426, 428, 70 L.Ed. 738. This conclusion was reached in the face of the arguments there advanced that 'exclusive jurisdiction' was conferred on the trial courts by the Act and that a means of review was granted to the United States by § 15. The reason which led this Court to allow appeals under the Naturalization Act was the same reason that should guide us here, that is, 'A denial of a review in naturalization cases would engraft an exception upon an otherwise universal rule.' 270 U.S. p. 579 (see pp. 578—580), 46 S.Ct. 427, 428. 56 The ruling in the Tutun case compels a distinction sought to be made in today's opinion. The Court now holds that '§ 338 is the exclusive procedure for canceling citizenship on the score of fraudulent or illegal procurement based on evidence outside the record.' Since Tutun sustained review that would on appeal set aside naturalization orders and cancel certificates on facts of record, the judgment today differentiates that case by making the existence of facts dehors the record, at least where they amount to fraud or illegal procurement, the decisive incident to bar state action on rehearing for newly discovered evidence. We think today's decision departs from the reasoning of the Tutun case and engrafts 'an exception upon an otherwise universal rule.' 57 The certainty that naturalization may be revoked by appeal determines another point. There is a suggestion in the Court's opinion, not elaborated, that Congress intended to bar state action for rehearing or vacation during term on facts dehors the record because to do otherwise 'would gratuitously abandon the constitutional mandate to establish 'an uniform Rule of Naturalization." To allow procedure to be determined according to the particular court that the alien might utilize would not violate the principle of uniformity.8 That is the kind of uniformity that the Tutun case approves by impliedly allowing appeals under state procedure. 58 Interpretation of a statute by government officials charged with its administration carries weight.9 A practice under that interpretation increases its importance. Apparently the Government avails itself of the local methods of directly attacking a judgment of naturalization within the term, or within limited periods under appropriate rules.10 The Government, and in this Bindczyck case the Service, thus makes clear its understanding that § 338 does not limit the power of courts over judgments during term time. 59 When we consider that Congress was concerned with preventing fraud and illegal practices in naturalization, the Court's conclusion does not seem justified. It disregards well-established principles of statutory construction, without furthering the congressional purpose, and puts a useless burden on the Government without any ultimate benefit to the naturalized citizen. Such a formalistic approach to legal problems is not helpful to the administration of justice. 60 We think the judgment should be affirmed. 1 54 Stat. 1137, 1158, 8 U.S.C. § 738, 8 U.S.C.A. § 738. The pertinent portions of the section are: '(a) It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court specified in subsection (a) of section 301 in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground of fraud or on the ground that such order and certificate of naturalization were illegally procured. '(b) The party to whom was granted the naturalization alleged to have been fraudulently or illegally procured shall, in any such proceedings under subsection (a) of this section, have sixty days' personal notice in which to make answer to the petition of the United States; and if such naturalized person be absent from the United States or from the judicial district in which such person last had his residence, such notice shall be given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought.' 2 See Eddy v. Summers, 1944, 183 Md. 683, 687, 39 A.2d 812, 814. 3 As early as 1844, a Senate resolution called for an inquiry into these frauds and into the possibility of a judicial procedure for canceling fraudulent naturalization certificates. S.J., 28th Cong., 2d Sess. 40, 44. For a summary of pre-Civil War legislative activity in regard to naturalization see Franklin, The Legislative History of Naturalization in the United States. Annual messages of the Presidents, from Grant onward, urged remedial legislation. Richardson, Messages and Papers of the Presidents: Grant, 1st Annual Message, 1869, 6th Annual Message, 1874, 7th Annual Message, 1875, 8th Annual Message, 1876; Arthur, 4th Annual Message, 1884; Cleveland, 1st Annual Message, 1885, 2d Annual Message, 1886, 4th Annual Message, 1888; Harrison, 1st Annual Message, 1889, 2d Annual Message, 1890; Roosevelt, 3d Annual Message, 1903, 4th Annual Message, 1904, 5th Annual Message, 1905. Grant and Cleveland asserted specifically that there was no way for the Government to obtain a revocation of fraudulently acquired citizenship and asked for correction of this deficiency. Id., Grant, 6th Annual Message 1874; Cleveland, 1st Annual Message, 1885. But Harrison called attention to a 'new application of a familiar equity jurisdiction' whereby over a hundred naturalization orders had been vacated at the instance of the Attorney General by the United States Circuit Courts in original equity suits. As he saw it, the urgent remaining need was for an adequate prenaturalization investigation. Id., Harrison, 2d Annual Message, 1890. In 1903, a federal grand jury investigated and a Special Assistant United States Attorney was charged with prosecution of naturalization frauds in New York City. See Rep.Atty.Gen. v, 392 (1903); H.R.Doc.No.46, 59th Cong., 1st Sess. 76. A special examiner for the Department of Justice made a nationwide investigation, a report of which was transmitted to Congress. See Rep.Atty.Gen. 393 (1903). See Generally Roche, Pre-Statutory Denaturalization, 35 Cornell L.Q. 120. 4 See, e.g., H.R.Doc.No.46, 59th Cong., 1st Sess. 11—15, 20 23, 76—78, 79—92; Hearings before the House Committee on Immigration and Naturalization on the Bills to Establish a Bureau of Naturalization, and to Provide for a Uniform Rule for the Naturalization of Aliens Throughout the United States, 59th Cong., 1st Sess. 3—54; H.R.Rep.No.1789, 59th Cong., 1st Sess. 2; S.Rep.No.4373, 59th Cong., 1st Sess. 2; 40 Cong.Rec. 3640 ff. 5 These provisions were suggested by the special Commission on Naturalization. See H.R.Doc.No.46, 59th Cong., 1st Sess. 17, 99. In his Second Annual Message, President Harrison had recommended a waiting period for investigation. See Richardson, Messages and Papers of the Presidents, Harrison, 2d Annual Message, 1890. See also Rep.Atty.Gen. 397 (1903) for a similar suggestion from the Special Examiner in Relation to Naturalization. No section of the Act was more thoroughly debated than this one. Three separate amendments to reduce the waiting period were rejected. 40 Cong.Rec. 7762—7770. The period was cut to thirty days in the Nationality Act of 1940, 54 Stat. 1137, 1156, 8 U.S.C. § 734(c), 8 U.S.C.A. § 734(c). But the codifiers reiterated that the purpose of the delay was to permit the Government 'to make further inquiry as to the eligibility of the applicant and the competency of his witnesses.' Hearings before the House Committee on Immigration and Naturalization on H.R. 6127 superseded by H.R. 9980, 76th Cong., 1st Sess. 466. The opportunity for investigation provided by these sections was taken full advantage of by the Bureau. See H.R.Rep.No.1328, 69th Cong., 1st Sess. 1. Indeed, in 1926, the investigations were made a formal part of the naturalization process in the federal courts by permitting officers of the Bureau to conduct the examination of the applicant's witnesses prior to final hearing on the petition and authorizing the naturalization judge to forego such examination on final hearings if the recommendation of the Bureau was favorable. 44 Stat. 709. This procedure was extended to state naturalization courts as well in 1940. 54 Stat. 1137, 1156, 8 U.S.C. § 733, 8 U.S.C.A. § 733. 6 See Richardson, Messages and Papers of the Presidents, Harrison, 2d Annual Message, 1890. 1,916 fraudulently obtained naturalization certificates were canceled in civil proceedings in New York City in the two-year period to May 29, 1905. H.R.Doc.No.46, 59th Cong., 1st Sess. 76; H.R.Rep.No.1789, 59th Cong., 1st Sess. 2. 7 In that case, nine citizenship orders were revoked in an ex parte proceeding on oral motion of the United States District Attorney, purporting to be made as in the course of the original proceedings, over three years after the orders admitting to citizenship. This action was, however, reversed on appeal. See also 40 Cong.Rec. 7045 where it is stated that upon the announcement by the United States District Attorney in San Francisco that immunity from prosecution would be given to any holder of a fraudulently acquired certificate who surrendered it for cancellation, 204 certificates were turned in in the first thirty days. 8 Objections were raised, on similar grounds, to the section in the original bill providing for appeal from naturalization orders and requiring a stay of the issuance of the certificate pending appeal. It was argued that a partisan district attorney might influence a close election by judiciously choosing the cases in which to appeal and obtain the stay. 40 Cong.Rec. 7786. 9 It deserves emphasis that we are dealing here with the revocation of naturalization 'on the ground of fraud or on the ground that * * * (the naturalization was) illegally procured,' to be established outside the record. We have not before us, and therefore do not decide, the power of a State court to control its naturalization judgment to the extent of correcting some clerical error. And, of course, the present case does not touch situations where under State law a judgment does not come into being until a defined period or event after a decision is rendered. Compare Commissioner v. Estate of Bedford, 325 U.S. 283, 284—288, 65 S.Ct. 1157, 1158—1159, 89 L.Ed. 1611. 10 54 Stat. 1137, 1156, 8 U.S.C. § 734, 8 U.S.C.A. § 734. 11 The conflicting varieties of State rules for vacating judgments are illustratively summarized in an Appendix 72 S.Ct. 136. 12 That Congress was not inattentive to existing variations in State practice, where it wished to absorb them, is shown by the last portion of § 338(b) which reads: '* * * and if such naturalized person be absent from the United States or from the judicial district in which such person last had his residence, such notice shall be given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought.' (Emphasis added.) 13 Vagaries among the States as to time for appeals are not substantial. The times for appeal fixed by States range principally from thirty days to three months. See Pound, Appellate Procedure in Civil Cases, 340—342. 1 It is hardly necessary to note that the best effort to secure fastidious accuracy and currency in such matters as the local rules here summarized cannot assure them. The interpretation of local law, especially as to practice, is treacherous business for an outsider. The very uncertainty of the local rules makes it all the more unlikely that Congress intended to subject citizenship by naturalization to such attack. Of course only State courts with power to naturalize, that is, 'having a seal, a clerk, and jurisdiction in actions at law or equity, or law and equity, in which the amount in controversy is unlimited', 54 Stat. 1137, 1140, 8 U.S.C. § 701(a), 8 U.S.C.A. § 701(a), are here canvassed. A great many States provide procedures—statutory or common law—for vacating judgments by a separate proceeding in the nature of an equity suit. See, e.g., Kan.Gen.Stat.1949, § 60—3007 et seq. The Government in this case does not argue that these collateral procedures are available in the face of § 338. But it is not obvious why the argument of implied State control over a State judgment is not also relevant as to these State methods for controlling judgments. 2 The medieval idea of dividing the calendar year for judicial purposes into terms and vacations developed from the necessities of sowing and harvesting, and from the demands of the Church for religious peace at certain seasons of the year. See 1 Reeves, History of English Law, 191—192; 3 Holdsworth, A History of English Law, 674—675. 3 The States used as illustration under this division (1) are only those which, as far as investigation discloses, follow the common law 'term rule.' 4 Texas provides striking illustrations of diversity within a single State. The Texas District Courts vary greatly from county to county in the number of terms per year and in the specified length of the terms; many District Courts are in continuous session, others sit 'till finished,' and others have fixed terms of 3, 4, 6, 8 or 10 weeks. The judgments of certain District Courts with terms of 3 months or longer become 'as final * * * 30 days after the date of judgment * * * as if the term of court had expired.' Vernon's Tex.Civ.Stat., Art. 2092 (30); Joy v. Young, Tex.Civ.App.1946, 194 S.W.2d 159. 1 See United States v. Sanges, 144 U.S. 310, 311, 12 S.Ct. 609, 36 L.Ed. 445; Crawford, Statutory Construction, 1940, c. XXII; 1 Bishop on Criminal Law (9th ed., Zane & Zollman, 1923) § 291b. Cf. Stark v. Wickard, 321 U.S. 288, 309, 64 S.Ct. 559, 570, 88 L.Ed. 733; Burnet v. Harmel, 287 U.S. 103, 108, 53 S.Ct. 74, 76, 77 L.Ed. 199. 2 For examples, see 28 U.S.C. §§ 1333, 1334, 1338(a), 1351, 1355, and 1356, 28 U.S.C.A. §§ 1333, 1334, 1338(a), 1351, 1355, 1356. 3 This principle was adverted to in the Second Employers' Liability Cases, Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 56, 32 S.Ct. 169, 178, 56 L.Ed. 327, in these words: 'Because of some general observations in the opinion of the supreme court of errors, and to the end that the remaining ground of decision advanced therein may be more accurately understood, we deem it well to observe that there is not here involved any attempt by Congress to enlarge or regulate the jurisdiction of state courts, or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction, as prescribed by local laws, is appropriate to the occasion, and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress, and susceptible of adjudication according to the prevailing rules of procedure.' 4 Act of March 26, 1790, 1 Stat. 103. See Statutory History of Naturalization in the United States, Report of Secretary of State, January 19, 1904, appended to Report to the President of the Commission on Naturalization, H.R.Doc.No.46, 59th Cong., 1st Sess., p. 58. 5 Act to Establish a Bureau of Immigration and Naturalization, 34 Stat. 596, §§ 3 and 15; Nationality Act of 1940, 54 Stat. 1137, §§ 301 and 338. 6 See Johannessen v. United States, 225 U.S. 227, 236, 32 S.Ct. 613, 614, 615, 56 L.Ed. 1066: 'It does not follow that Congress may not authorize a direct attack upon certificates of citizenship in an independent proceeding such as is authorized by § 15 of the act of 1906.' Compare also United States v. Ness, 245 U.S. 319, 326, 38 S.Ct. 118, 121, 62 L.Ed. 321, where the Court speaks of § 15 as affording a remedy by 'independent suit.' 7 'Knowing that the court had full power during the term to vacate its own decree, he took these leases, subject to the possibility of such vacating of the decree.' Henderson v. Carbondale Coal & Coke Co., 140 U.S. 25, 40, 11 S.Ct. 691, 696, 35 L.Ed. 332; Goddard v. Ordway, 101 U.S. 745, 749—751, 25 L.Ed. 1040; Zimmern v. United States, 298 U.S. 167, 56 S.Ct. 706, 80 L.Ed. 1118. See Eddy v. Summers, 183 Md. 683, 687, 39 A.2d 812, 814. 8 Hanover National Bank v. Moyses, 186 U.S. 181, 189, 22 S.Ct. 857, 861, 46 L.Ed. 1113; Wright v. Vinton Bank, 300 U.S. 440, 463, note 7, 57 S.Ct. 556, 562, 81 L.Ed. 736; Fernandez v. Wiener, 326 U.S. 340, 359, 66 S.Ct. 178, 187, 90 L.Ed. 116. 9 Cf. United States v. American Trucking Ass'ns, 310 U.S. 534, 545, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345. 10 See, e.g., Petition of Weltzien, D.C., 68 F.Supp. 1000; United States ex rel. Volpe v. Jordan, 7 Cir., 161 F.2d 390.

12

342 U.S. 55 72 S.Ct. 141 96 L.Ed. 86 GALLEGOSv.STATE OF NEBRASKA. No. 94. Argued Oct. 8, 1951. Decided Nov. 26, 1951. Mr. Robert G. Simmons, Jr., Scottsbluff, Neb., for petitioner. Messrs. Walter E. Nolte, Homer L. Kyle, Lincoln, Neb., for the State of Nebraska. Mr. Justice REED announced the judgment of the Court and an opinion in which The CHIEF JUSTICE, Mr. Justice BURTON and Mr. Justice CLARK join. 1 Petitioner, Agapita Gallegos, was convicted in a District Court of Nebraska of manslaughter and sentenced to ten years' imprisonment, the maximum penalty. The charge was the slaying of his paramour without deliberation or premeditation. This judgment of conviction was sustained by the Supreme Court of Nebraska over the objection that introduction at the trial of petitioner's prior statements admitting the homicide violated the Fourteenth Amendment of the Constitution. 152 Neb. 831, 43 N.W.2d 1. In view of certain undenied incidents giving color to petitioner's allegation of unfairness in the prosecution, certiorari was granted to determine whether the due process requirements of the Fourteenth Amendment were violated by the admission of the statements. 341 U.S. 947, 71 S.Ct. 1003, 95 L.Ed. 1371. 2 On September 19, 1949, at the request of the United States Immigration and Naturalization Service, petitioner, a thirty-eight-year-old Mexican farm hand who can neither speak nor write English, was arrested, together with his brother, by police officers of El Paso County, at the southwest corner of Texas, and there booked on a charge of vagrancy. Gallegos had been an itinerant farm worker in this country before his arrest and had recently returned here for such work. 3 We gather from the abbreviated record that information was sought by the Texas authorities as to petitioner's acts in Nebraska, where he had worked the preceding year. After arrest, petitioner was questioned regarding his identity. He at once gave a false name. Thereafter, he was jailed in a small room for the next twenty-one hours. Further questioning to establish identity was had on September 20, 1949, without result. Following his second interrogation, petitioner was left alone for forty-eight hours. On September 22, 1949, petitioner was removed from his cell and interrogated. After he gave his name and an admission that he had been in Nebraska, he was reconfined; this time confinement ran for a period of twenty-four hours. 4 On September 23, 1949, petitioner disclosed details of this Nebraska crime. A statement in respect of the crime was immediately prepared in English. This was read to the petitioner in Spanish, and he thereafter signed it. His Texas detention continued until September 27, 1949. During the entire time no charge was filed against him in any state or federal court nor was he brought before a magistrate. 5 We have Gallegos' evidence as to his Texas confinement, the rooms he was placed in, their condition as to furnishings, and the food provided. His testimony on these points is met only in part by the testimony of the Chief Deputy Sheriff of El Paso, his interrogator. There were times when Gallegos was not under his direct observation. Nebraska had no other witness for the trial familiar with conditions of the Texas restraint. Gallegos' testimony through the interpreter concerning these matters is vague. From it one gathers that Gallegos sought to convey the impression that the rooms were cells, that the one he occupied for twenty-one hours was without a bed, that one he occupied was without light or poorly lighted, and that the food was sparse, perhaps not more than a meal a day. 6 During the questioning in the four-day period from September 19th through the 23d, the state says petitioner was not treated or threatened with violence. His questioning did not last longer than an hour or two on any day and according to the record was conducted almost entirely by the state's witness, the Chief Deputy Sheriff. However, Gallegos testifies that he was told that he might be turned over to the Mexican authorities for more severe questioning and that a lie detector might be used upon him. The record shows no flat denial of Gallegos' assertions contained in the last sentence, but it does show, by testimony of the Deputy Sheriff, that no threats or promises were made and that reference to the Mexican authorities, if made, was that Gallegos would be turned over to the United States Immigration Service who, in turn, would deliver him to the Mexican Immigration Service. Gallegos also spoke of threatened violence.1 7 On September 27, 1949, a Nebraska sheriff reached Texas and took petitioner to the Scotts Bluff County, Nebraska, jail, arriving Thursday, September 29, at 1 a.m. Gallegos was questioned on Saturday, October 1, at which time he was interviewed through an interpreter by three county police officers. He described the crime for which he was convicted. A transcript in English of the interpreter's translations of the interview was made and some days later read back to petitioner in a Spanish retranslation. The evidence is that Gallegos confirmed this record. The record shows no claim of mistreatment by Nebraska authorities. 8 By § 29—406, Neb.Rev.Stat., 1943, a police officer is commanded to take an accused before a magistrate. This was not done until October 13, 1949, when petitioner was brought before the county judge of Scotts Bluff County for a preliminary hearing on a complaint charging murder in the second degree. This was the first time petitioner was brought before any magistrate or court. As an incident to the hearing, petitioner was asked to plead. He pleaded guilty. These two confessions and the plea were introduced at petitioner's trial by the state. On October 15, 1949, before trial, the District Court of Scotts Bluff County found petitioner to be entitled to counsel appointed by the court, and counsel was then for the first time appointed. 9 Petitioner presents in his brief only the following question: 'Are confessions and a plea obtained from a prisoner during a period of twenty-five days illegal detention by federal and state officers before being brought before a magistrate and before counsel is appointed to assist the prisoner admissible in evidence?' 10 An answer requires an examination into the circumstances of record surrounding the statements. 11 Before the Supreme Court of Nebraska, on the basis of facts in the record of the trial, it was urged that the confessions and plea were inadmissible because they were the result of 'physical torture and threats of torture, mental duress, illegal transportation and illegal detention,' in violation of the federal and state constitutions. As conviction without acceptance of the voluntary character of the confessions would logically have been impossible, we assume that the jury, under applicable instructions, found the statements voluntary. 152 Neb. 831, 837 840, 43 N.W.2d 1, 4—6. Evidently, neither judge nor jury accepted the testimony of Gallegos on disputed facts as to coercion. Where direct contradiction of petitioner's assertions as to conditions of his detention in Texas was unavailable or unobtainable, the jury disregarded or minimized or disbelieved Gallegos to such an extent that his confessions were accepted as voluntary. The Deputy Sheriff, the prosecution witness in the best position to know, denied any coercion by promise, threat or violence. A criminal prosecution approved by the state should not be set aside as violative of due process without clear proof that such drastic action is required to protect federal constitutional rights. While our conclusion on due process does not necessarily follow the ultimate determinations of judges or juries as to the voluntary character of a defendant's statements prior to trial, the better opportunity afforded those state agencies to appraise the weight of the evidence, because the witnesses gave it personally before them, leads us to accept their judgment insofar as facts upon which conclusions must be reached are in dispute. The state's ultimate conclusion on guilt is examined from the due process standpoint in the light of facts undisputed by the state.2 That means not only admitted facts but also those that can be classified from the record as without substantial challenge. 12 As this Court has been entrusted with power to interpret and apply our Constitution to the protection of the right of an accused to federal due process in state criminal trials, the proper performance of that duty requires us to examine, in cases before us, such undisputed facts as form the basis of a state court's denial of that right. Kansas City Southern R. Co. v. C. H. Albers Comm'n Co., 223 U.S. 573, 591, 32 S.Ct. 316, 320, 56 L.Ed. 556; Norris v. State of Alabama, 294 U.S. 587, 594, 55 S.Ct. 579, 582, 79 L.Ed. 1074; Watts v. State of Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801. A contrary rule would deny to the Federal Government ultimate authority to redress a violation of constitutional rights. As state courts also are charged with applying constitutional standards of due process, in recognition of their superior opportunity to appraise conflicting testimony, we give deference to their conclusions on disputed and essential issues of what actually happened. See note 2, infra. Its duty compels this Court, however, to decide for itself, on the facts that are undisputed, the constitutional validity of a judgment that denies claimed constitutional rights. 13 Controversies as to facts take various forms. The jury may reach a verdict of guilty although they resolved some subsidiary fact in favor of the accused. In Gallegos' case we do not know whether his assertions not directly contradicted as to questionable conditions of his Texas detention and examination were accepted as true by the jury. It is quite possible that the jury thought the confession voluntary even though it believed all of Gallegos' testimony. As we cannot accept the verdict as a finding solely on disputed facts, we must weigh Gallegos' uncontradicted testimony along with the undisputed facts. We are not free, as Nebraska was, to leave to the jury determinations of facts upon which the admissibility of the statements is based.3 14 The issue of federal due process now tendered is to be considered only on uncontroverted facts. The answer to the question presented depends upon whether there is a violation of the Due Process Clause of the Fourteenth Amendment from the admitted circumstances that the two confessions of September 23 and October 1 were given no police officers after arrest in Texas on September 19, 1949, while no magistrate with supervisory power over the examinations was present and while the accused was without counsel. Circumstances surrounding the Texas, as well as the Nebraska, confession must be appraised because Nebraska introduced the Texas confession in evidence in the trial. The use of any confession obtained in violation of due process requires the reversal of a conviction even though unchallenged evidence, adequate to convict, remains. Malinski v. People of State of New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029. Both states require fugitives from justice to be promptly taken before a magistrate on arrest for extradition. Texas, Vernon's Code of Criminal Procedure, Arts. 998, 999, 217. Neb.Rev.Stat., 1943, §§ 29—713, 29—715. The question must be weighed in the light of the uncontradicted portion of Gallegos' own testimony of harsh treatment and the answers of the prosecution and the judge and the jury. The plea of guilty at the preliminary hearing on October 13 is also a factor. We therefore limit our examination to an inquiry as to whether use at trial of these admissions of guilt theretofore made by an accused violates the Fourteenth Amendment. 15 The decision and judgment below determine for us that under the law of Nebraska such detention and examination, without appearance or arraignment, do not require exclusion of the confessions or plea as involuntary.4 The rule of the McNabb case, considered recently in United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, is not a limitation imposed by the Due Process Clause. McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 612, 87 L.Ed. 819; Lyons v. State of Oklahoma, 322 U.S. 596, 597, note 2, 64 S.Ct. 1208, 1210, 88 L.Ed. 1481. Compliance with the McNabb rule is required in federal courts by this Court through its power of supervision over the procedure and practices of federal courts in the trial of criminal cases. That power over state criminal trials is not vested in this Court. A confession can be declared inadmissible in a state criminal trial by this Court only when the circumstances under which it is received violate those 'fundamental principles of liberty and justice' protected by the Fourteenth Amendment against infraction by any state.5 16 The Federal Constitution does not command a state to furnish defendants counsel as a matter of course, as is required by the Sixth Amendment in federal prosecutions.6 Lack of counsel at state noncapital trials denies federal constitutional protection only when the absence results in a denial to accused of the essentials of justice.7 Lack of counsel prior to trial certainly has no greater effect. Lyons v. State of Oklahoma, supra, 322 U.S. at page 599, 64 S.Ct. at page 1211, 88 L.Ed. 1481. 'The mere fact that a confession was made while in the custody of the police does not render it inadmissible.' McNabb v. United States, 318 U.S. 332, 346, 63 S.Ct. 608, 615, 87 L.Ed. 819; cf. United States v. Carnignan, 342 U.S. 36, 39, 72 S.Ct. 97, 99. 17 Prolonged detention without a charge of crime or without preliminary appearance before a magistrate, the lack of counsel before, during, or after arraignment, and confession to the police in private, are, however, elements that should be considered in determining whether a confession, permitted to be introduced and relied upon at a trial, has been obtained under such circumstances that its use violates due process. Watts v. State of Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801. Of course, the plea of guilty at the preliminary hearing should be treated in the same way as the confessions. 18 So far as due process affects admissions before trial of the defendant, the accepted test is their voluntariness.8 This requires appraisal of the facts of each particular case open to consideration by this Court. In recent cases, where undisputed facts existed far more likely to produce involuntary confessions than those in this case, there was disagreement as to whether due process was violated.9 The facts here to support a claim of denial of due process are not so convincing. 19 Certiorari was granted in this case because the record disclosed a serious charge under the Due Process Clause against Nebraska procedure in a criminal case. We have carefully weighed the circumstances of the petitioner's lack of education and familiarity with our law, his experience and condition in life, his need for advice of counsel as to the law of homicide and the probable effect on such a man of interrogation during confinement. We have also taken into consideration Gallegos' uncontradicted testimony about his accommodations, his limited amount of food and certain threats made by a Texas assistant sheriff not present at the trial. The uncertain character of this uncontradicted testimony, its lack of definiteness, and the action of the trial judge and jury lead us to place little weight upon it. Our position is confirmed by Gallegos' reiteration of his confession while in custody in Nebraska, when he charges no coercion except detention. See Lyons v. State of Oklahoma, 322 U.S. 596, 603, 64 S.Ct. 1208, 1212, 88 L.Ed. 1481. 20 We cannot say that Nebraska has here violated standards of decency or justice in this conviction. 21 Affirmed. 22 Mr. Justice MINTON took no part in the consideration or decision of this case. 23 Mr. Justice JACKSON, whom Mr. Justice FRANKFURTER joins, concurring. 24 The State of Nebraska is the party that we have summoned to answer for state action claimed to violate the Fourteenth Amendment. I begin, therefore, by considering just what Nebraska itself has done that may be said to violate rights of the petitioner. 25 Nebraska authorities were not pursuing Gallegos. They did not know that murder had been done in that State and were under no pressure to pin guilt on someone. Gallegos, a Mexican illegally in this country, had been a transient worker in Nebraska beet fields and had with him a woman and two children. The whence and whither of their comings and goings made no impression on the community, and when they disappeared no one asked how or why. 26 From Texas authorities, however, came word that a Mexican, held there at request of the United States Immigration and Naturalization Service, had confessed to murdering his woman in Nebraska and had told where the body was buried. Nebraska does not charge murder on the basis of a confession without proof of the corpus delicti, so the Nebraska officers—from information given by Gallegos in Texas—found a grave and a decomposed body ultimately identified as that of the woman who had been living there with Gallegos without benefit of clergy. Only after this discovery and identification were they in a position to make a murder charge. 27 Gallegos was brought from Texas to Scotts Bluff County, Nebraska. That was the first time he was in the custody of Nebraska. There is not the slightest proof or suggestion by the defendant or his counsel that Nebraska officials abused, threatened, or unduly questioned him. On the contrary, he willingly told how he beat his paramour to death in a fit of jealousy. The only complaint against Nebraska is that it detained Gallegos an unduly long time before arraignment. Even if it did, the delay was after confession and therefore could not have been for any sinister purpose of coercing one, nor could the detention have been the cause of confession. There is not, from any state action by Nebraska, the slightest ground for inference that the confession to its officials was not given voluntarily. 28 Upon the trial, however, the prosecution proved not only the Nebraska confession but also an earlier one made in Texas. In connection with the latter, vague allegations are made against the Texas officials. Perhaps the prosecution would have been well advised not to have proved how the murder originally came to light. But the prosecution chose to lay the whole matter before the jury, and had it failed to do so it would no doubt have been charged with some sinister purpose in its suppression. 29 Even if we should assume that Texas officials coerced this confession, they were not acting at the request of Nebraska nor in any sense as her agent. Before we could reverse the conviction, we would have to decide a question not heretofore answered in any decision that I recall, namely, whether Nebraska merely by admitting a coerced foreign confession in evidence would deny due process. Insofar as the reason for exclusion is to prevent convictions on coerced confessions, which are shown by legal experience to be intrinsically unreliable, I should suppose that any defect in its origin would inhere in the confession wherever offered. Insofar, however, as the reason for exclusion is to deter states from attempting coercion in order to bring about convictions, the reason would hardly apply to a case where a state of confession sought no conviction and the state of conviction did not seek the confession. But here there is no need to resolve such difficult questions in affirming the conviction, for I find no coercion such as would require exclusion of this confession, even if Nebraska be held to answer for the conduct of every official involved. 30 Gallegos was taken into custody by the Texas authorities at the request of the United States immigration service. They had probable cause to believe he was illegally in the country, as indeed he was, and I should not suppose his detention was illegal. The defendant himself does not claim that he was beaten, unduly questioned, or threatened, except that he was told he might be shipped back to Mexico and turned over to the Mexican authorities—a statement which, if made, was patently true. 31 It should be borne in mind that the detaining officers did not know of this murder except that the immigration officials apparently had some information that the woman in the case had disappeared. The Texas authorities were not under pressure to solve a local murder. It is not even clear that they accused Gallegos of murder and certainly they had no theory of a crime which they were trying to support by obtaining a confession. 32 But 'The guilty flee when no man pursueth.' For three days, Gallegos refused to tell his name. But when he finally revealed his identity, he went on and told all. He may have been of the impression that the authorities who were holding him knew more than they did. Only the fact that he was in custody, the fear that his deeds were known, and the weight of the crime on his conscience can be said to have coerced this confession. 33 This defendant's trial appears to have been scrupulously fair and dispassionate. The jury and the Nebraska courts appear to have weighed all of the claims of Gallegos fairly and found, what I do not see how they could avoid finding, that the confessions were voluntary within the meaning of the law. These are not confessions obtained to fit the facts known to the officials. It is a case where the officials were directed to facts that fitted details of the confession. Nor is it a case where the confession was altered or embellished in a prolonged process of examination. The story first given to the authorities in Texas is substantially identical with that recited to the Nebraska authorities in greater detail. 34 Indeed no contention is brought to this Court that the confessions were in fact coerced or involuntary. The reason no such contention is made is that capable and zealous counsel cannot support them on this record. But the contention is that both confessions should be made inadmissible in evidence because we should convert the so-called McNabb rule, a rule of evidence for federal courts, into a constitutional limitation upon the States. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. The claim, and the only claim, is that because Gallegos was not arraigned by Texas immediately after arrest and again by Nebraska immediately after arrival in that State, each detention was illegal and the confessions, even if made without abuse or threat of it, but as a result of questioning during this detention, are inadmissible in evidence. The only 'question presented' by the petition to this Court reads: 'Are confessions of an accused obtained from him during a prolonged period of unlawful detention before he was brought before a magistrate and before a counsel was appointed to assist him, admissible in evidence?' Every one of the three specifications of error urged in petitioner's brief is based on 'twenty-five days of unlawful detention' and on that alone. 35 Let us see what this would mean as applied to Texas. Texas made the arrest at the request of the immigration authorities and it is not denied that they had probable cause to believe he was an alien who had entered the country illegally. But, for three days he would not tell his name. I should not suppose the authorities were obliged to release an obvious alien so charged before they could learn his identity. Then he disclosed the murder. But the murder did not take place in Texas. That State obviously could not arraign him for it. Was it obliged to turn loose a confessed murderer because the murder occurred outside of their jurisdiction? It does not seem to me that to hold such a person without arraignment under these circumstances denies due process, unless due process prohibits society from taking common-sense steps to solve a murder. 36 But it is complained that Nebraska held him too long (just how long is too long we never are told) without arraignment. As I have pointed out, Nebraska knew nothing of the murder and had to conduct an investigation before it could make a properly supported charge of murder. Certainly due process does not require that charges be placed hurriedly and recklessly. Scotts Bluff County is a rural county with less than forty thousand inhabitants, more than half of whom are concentrated in two towns, the largest of which has a population of only twelve thousand. The small prosecuting staff that such a county would maintain cannot be expected to move with the speed of the Federal Government, with its many thousand agents and countless attorneys, or with the speed of big city police forces. What was there to hurry about? Gallegos had already confessed and he was not prejudiced by the delay. The authorities took their time drawing papers and getting proof of the corpus delicti in order. There seems to have been no passion or revenge at work in the case. A small prosecuting office in a town where life is leisurely made a simple effort to go about its duty with convenient speed. 37 Even if, as some members of the Court ardently desire, the McNabb rule were ever to be converted into a constitutional limitation upon the States, the facts in this case would afford a poor foundation for it. I concur in the affirmance. 38 Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting. 39 Americans justly complain when their fellow citizens in certain European countries are pounced upon at will by state police, held in jail incommunicado, and later convicted of crime on confessions obtained during such incarceration. Yet in part1 upon just such a confession, this Court today affirms Nebraska's conviction of a citizen of Mexico who can neither read nor understand English. 40 The record shows the following facts without any dispute at all: While working in a field in El Paso County, Texas, on September 19, 1949, the petitioner was arrested by a local deputy sheriff without a warrant. The excuse given for the arrest was that immigration officers had requested it. No charge was ever filed against petitioner in any Texas state court nor was any warrant sworn out against him during the eight days he was kept in the Texas jail. His detention was incommunicado except for repeated questioning by the deputies. Part of the time petitioner was kept in an 8 8 cell with no windows, a cell which a Texas deputy testifying in this case referred to as the 'dark room' or the 'punishment room,' although petitioner was a 'docile prisoner' and did all he was told to do by the officers. It was during this incarceration of eight days that the petitioner gave a confession used to convict him in this case. As is usual in this type of case the deputies say that the confession was wholly 'voluntary'; petitioner says that it was due to fear engendered by his incarceration and the actions of the deputies. Even if the officers' story should happen to be correct, I believe the Constitution forbids the use of confessions obtained by the kind of secret inquisition these deputies conducted. 41 There are countries where arbitrary arrests like this, followed by secret imprisonment and systematic questioning until confessions are obtained, are still recognized and permissible legal procedures. See 'The Trap Closes' by Robert A. Vogeler with Leigh White, The Saturday Evening Post, November 3, 1951, p. 36 et seq. My own belief is that only by departure from the Constitution as properly interpreted can America tolerate such practices. See Ashcraft v. State of Tennessee, 322 U.S. 143, 154 155, 64 S.Ct. 921, 926—927, 88 L.Ed. 1192; Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Bram v. United States, 168 U.S. 532, 556, 562—563, 18 S.Ct. 183, 192, 194, 42 L.Ed. 568. I would reverse this judgment. 1 'Q. At any time when anybody was talking to you at the jail in El Paso, Texas, did they act like they were trying to scare you? 'A. Yes, sir. 'Q. Tell us when that was? A. When they started to investigate me. 'Q. Was that the first day you were in jail or the second day or the third day? A. The first day. 'Q. Tell us what happened. A. They tried to get words out of my forcibly by another sheriff that is there. 'Q. Do you know who that other sheriff was? A. I don't know what his name is. 'Q. Have you seen him here in this court room? A. No, sir. 'Q. What did he do? A. He would not take his eyes away from me and he seemed like he wanted to hit me and I was frightened and I didn't know what to do. (R. 84—85.) 'Q. But you say no one struck you? A. No. 'Q. And no one ever raised their arm as if they were going to strike you? A. The other fellow. 'Q. What other fellow? A. The other one that investigated me. 'Q. Where did he do that? A. In one room that he had there where he was investigating me. 'Q. How did he threaten to strike you? A. With his hand. 'Q. Did he strike you at that time? A. He just raised his hand. 'Q. Did he say he was going to strike you? A. He said he was going to hit me because I would not tell him the truth. 'Q. But he still did not hit you? A. No, he did not hit me.' (R. 90—91.) 2 Lyons v. State of Oklahoma, 322 U.S. 596, 603, 64 S.Ct. 1208, 1212, 88 L.Ed. 1481; Malinski v. People of State of New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029; Haley v. State of Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224; Watts v. State of Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801. Cf. Lisenba v. People of State of California, 314 U.S. 219, 238—241, 62 S.Ct. 280, 290—292, 86 L.Ed. 166. 3 152 Neb. 839, 43 N.W.2d 1, 5: 'While there is testimony given by the defendant from which the jury could have found that the confessions made were involuntary due to the manner in which defendant was held in confinement, the treatment received while so held, and the threats made; however, the testimony of the authorities in charge, both at El Paso and Scottsbluff, deny these facts and when their testimony is taken together with certain testimony of the defendant, it presents a factual situation from which the jury could properly find that the confessions were freely and voluntarily made. This includes the issue presented by the evidence offered as to whether or not the complaint was properly translated at the preliminary hearing so it was understood by the defendant in making his plea thereto. It also includes the question of whether or not he understood the nature or degree of the crime with which he was charged. These issues both relate themselves directly to the question of whether or not he understood what he was doing when he made his admission of guilt and consequently relate directly to whether it was voluntarily or involuntarily made.' 4 Gallegos v. State, 152 Neb. 831, 839—840, 43 N.W.2d 1, 6: 'In regard to how soon after a person is arrested he must be given a preliminary hearing we said in Maher v. State, 144 Neb. 463, 13 N.W.2d 641, 650: 'The question as to the time in which the defendant should be given a preliminary hearing is a question for the court. There can be no precise length of time, after the arrest of a person, in which he must be given a hearing. The theory of the law is that he must be given a hearing as soon as possible. A person charged should be given a preliminary hearing just as soon as the nature and circumstances of the case will permit.' '* * * Here the court, in the first instance, heard all of the evidence relating thereto and determined that sufficient foundation had been laid for their admission. The evidence was then presented to the jury and the question as to their character, whether voluntary or involuntary, was submitted to it by the court's instructions Nos. 12, 13, and 14. We find the facts and circumstances relating to the giving of the two confessions and the admission of guilt at the preliminary hearing justified the trial court in admitting them in evidence in the first instance and submitting their character, whether voluntary or involuntary, to the jury. See Kitts v. State, (151 Neb. 679, 39 N.W.2d 283).' 5 Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270; Adamson v. People of State of California, 332 U.S. 46, 54, 67 S.Ct. 1672, 1676, 91 L.Ed. 1903. 6 Quicksall v. People of State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188; Bute v. People of State of Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986; Foster v. People of State of Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955. 7 Uveges v. Com. of Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 185, 93 L.Ed. 127; Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595; compare Hawk v. Olson, 326 U.S. 271, 278, 66 S.Ct. 116, 120, 90 L.Ed. 61. 8 Brown v. State of Mississippi, 297 U.S. 278, 285—286, 56 S.Ct. 461, 464, 465, 80 L.Ed. 682; Chambers v. State of Florida, 309 U.S. 227, 236, 238, 60 S.Ct. 472, 476, 477, 84 L.Ed. 716; Lisenba v. People of State of California, 314 U.S. 219, 238, 62 S.Ct. 280, 290, 86 L.Ed. 166. 9 Watts v. State of Indiana, 338 U.S. 49, 51, 52, 69 S.Ct. 1347, 1349, 93 L.Ed. 1801: 'On November 12, 1947, a Wednesday, petitioner was arrested and held as the suspected perpetrator of an alleged criminal assault earlier in the day. Later the same day, in the vicinity of this occurrence, a woman was found dead under conditions suggesting murder in the course of an attempted criminal assault. Suspicion of murder quickly turned towards petitioner and the police began to question him. They took him from the county jail to State Police Headquarters, where he was questioned by officers in relays from about eleven thirty that night until sometime between 2:30 and 3 o'clock the following morning. The same procedure of persistent interrogation from about 5:30 in the afternoon until about 3 o'clock the following morning, by a relay of six to eight officers, was pursued on Thursday the 13th, Friday the 14th, Saturday the 15th, Monday the 17th. Sunday was a day of rest from interrogation. About 3 o'clock on Tuesday morning, November 18, the petitioner made an incriminating statement after continuous questioning since 6 o'clock of the preceding evening. The statement did not satisfy the prosecutor who had been called in and he then took petitioner in hand. Petitioner, questioned by an interrogator of twenty years' experience as lawyer, judge and prosecutor, yielded a more incriminating document. 'Until his inculpatory statements were secured, the petitioner was a prisoner in the exclusive control of the prosecuting authorities. He was kept for the first two days in solitary confinement in a cell aptly enough called 'the hole' in view of its physical conditions as described by the State's witnesses. Apart from the five night sessions, the police intermittently interrogated Watts during the day and on three days drove him around town, hours at a time, with a view to eliciting identifications and other disclosures. Although the law of Indiana required that petitioner be given a prompt preliminary hearing before a magistrate, with all the protection a hearing was intended to give him, the petitioner was not only given no hearing during the entire period of interrogation but was without friendly or professional aid and without advice as to his constitutional rights. Disregard of rudimentary needs of life—opportunities for sleep and a decent allowance of food—are also relevant, not as aggravating elements of petitioner's treatment, but as part of the total situation our of which his confessions came and which stamped their character.' Turner v. Com. of Pennsylvania, 338 U.S. 62, 63—64, 69 S.Ct. 1352, 93 L.Ed. 1810: 'The officers making the arrest had no warrant and did not tell the petitioner why he was being arrested. These officers began to question the petitioner as soon as they reached the City Hall police station. One of them examined the petitioner for three hours on that afternoon and again that night from eight to eleven o'clock. From time to time other officers joined in the interrogation. Petitioner persistently denied any knowledge of the murder. 'The next morning, June 4, the petitioner was booked on the police records as being held for questioning. Later that day he was questioned for about four hours more. On June 5 he was interrogated for another four hours and on the 6th for day and night sessions totaling six hours. The questioning was conducted sometimes by one officer and at other times by several working together; it appears, in fact, that whenever one of the police officers interested in the investigation had any free time he would have the petitioner brought from his cell for questioning. 'On June 7, the day when a confession was finally obtained, questioning began in the afternoon and continued for three hours. Later that day the officers who had been present during the afternoon returned with others to resume the examination of petitioner. Despite the fact that he was falsely told that other suspects had 'opened up' on him, petitioner repeatedly denied guilt. But finally, at about eleven o'clock, petitioner stated that he had killed the person for whose murder he was later arraigned.' Harris v. State of South Carolina, 338 U.S. 68, 69—70, 69 S.Ct. 1354, 1355, 93 L.Ed. 1815: 'On Monday night questioning began in earnest. At least five officers worked in relays, relieving each other from time to time to permit respite from the stifling heat of the cubicle in which the interrogation was conducted. Throughout the evening petitioner denied that he had killed the Bennetts. On Tuesday the questioning continued under the same conditions from 1:30 in the afternoon until past one the following morning with only an hour's interval at 5:30. On Wednesday afternoon the Chief of the State Constabulary, with half a dozen of his men, questioned petitioner for about an hour, and the local authorities carried on the interrogation for three and a half hours longer. At 6:30 that evening the examination resumed. Petitioner continued to deny implication in the killings. The sheriff then threatened to arrest petitioner's mother for handling stolen property. Petitioner replied, 'Don't get my mother mixed up in it and I will tell you the truth.' Petitioner then stated in substance what appears in the confession introduced at the trial. The session ended at midnight. 'Petitioner was not informed of his rights under South Carelina law, such as the right to secure a lawyer, the right to request a preliminary hearing, or the right to remain silent. No preliminary hearing was ever given and his confession does not even contain the usual statement that he was told that what he said might be used against him. During the whole period of interrogation he was denied the benefit of consultation with family and friends and was surrounded by as many as a dozen members of a dominant group in positions of authority. It is relevant to note that Harris was an illiterate.' 1 During petitioner's trial an alleged confession made in Texas, an alleged confession made in Nebraska and a plea of guilty entered in a Nebraska court were introduced in evidence against him. His conviction should be reversed if any one of these three items of evidence were secured in violation of due process of law which the Federal Constitution guarantees. For this reason I consider the Texas confession only.

01

342 U.S. 104 72 S.Ct. 123 96 L.Ed. 119 JENNINGSv.STATE OF ILLINOIS. LA FRANA v. STATE OF ILLINOIS. SHERMAN v. STATE OF ILLINOIS. Nos. 95, 96 and 375. Argued Nov. 5, 6, 1951. Decided Dec. 3, 1951. Mr. Nathaniel L. Nathanson, Chicago, Ill., for petitioners. Mr. Calvin Sawyier, Chicago, Ill., for petitioner Talbot Jennings. Mr. William C. Wines, Chicago, Ill., for respondents. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 Each of the three petitioners is confined in an Illinois penitentiary following conviction of serious crimes. Petitioners' factual allegations need not be described, except to note petitioners' specific claims that confessions introduced at their trials were wrung from them by force and violence. Although such allegations set forth a prima facie violation of federal constitutional rights,1 there has been no determination, either by review of the trial record or by hearing of evidence, as to whether petitioners, in fact, are being imprisoned in violation of their rights under the Constitution. 2 Prior to the case of United States ex rel. Bongiorno v. Ragen, D.C.N.D.Ill.1944, 54 F.Supp. 973, 975—976, inmates of Illinois penitentiaries were denied the right of sending papers to the courts. Since that decision, many Illinois prisoners have presented claims of denial of constitutional rights and courts have sought to determine what, if any, is the post-conviction remedy available in Illinois to raise such claims. The problem has been here before. White v. Ragen, 1945, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; Woods v. Nierstheimer, 1946, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177; Carter v. People of State of Illinois, 1946, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172; Foster v. People of State of Illinois, 1947, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955; Marino v. Ragen, 1947, 332 U.S. 561, 68 S,.ct. 240, 92 L.Ed. 170; Loftus v. People of State of Illinois, 1948, 334 U.S. 804, 68 S.Ct. 1212, 92 L.Ed. 1737; Id., 1949, 337 U.S. 935, 69 S.Ct. 1511, 93 L.Ed. 1741. Finally, in Young v. Ragen, 1949, 337 U.S. 235, 69 S.Ct. 1073, 93 L.Ed. 1333, it became apparent that unless habeas corpus was available, the Illinois courts afforded no remedy for the eight prisoners then before the Court, including petitioner Sherman, now here in No. 375. On remand to the Criminal Court of Cook County, that court held that habeas corpus was not an appropriate remedy, a holding that could not be reviewed by the Illinois Supreme Court under state practice. 3 Meanwhile, the Illinois General Assembly passed the Illinois Post-Conviction Hearing Act2 to provide a remedy for—'(a)ny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both * * *.' Under this Act, the court in which conviction took place is authorized to grant relief in a proceeding initiated by the filing of a petition setting forth the respects in which a prisoner's constitutional rights were violated. The State may then answer or move to dismiss the petition and the trial court is authorized to receive oral testimony or documentary proof. A final judgment on a petition filed under the Act is made reviewable in the Illinois Supreme Court on writ of error.3 4 In People v. Dale, 1950, 406 Ill. 238, 92 N.E.2d 761, the Illinois Supreme Court sustained the Post-Conviction Hearing Act against attack on Illinois constitutional grounds. The Act was described as providing a new proceeding to afford the required inquiry into the constitutional integrity of a conviction. In the Dale case, the court also stated that the Act does not afford a rehearing of issues that had already been finally adjudicated, referring to cases where the Illinois Supreme Court had made such an adjudication. 5 In the three cases now before the Court, petitioners presented their factual allegations to the trial court in petitions filed under the Post-Conviction Hearing Act. The State's Attorney filed motions to dismiss on grounds of res judicata and failure to state a cause of action and the trial court dismissed each petition without conducting a hearing or otherwise determining the factual issues presented. The Illinois Supreme Court dismissed writ of error in each case without argument and without opinion, entering form orders providing that—'after having examined and reviewed the petition and record in the post conviction hearing the same is found to disclose no violation or denial of any substantial constitutional rights of the petitioner under the constitution of the United States or of the constitution of the State of Illinois.' We granted certiorari, 341 U.S. 947, 71 S.Ct. 1005, 95 L.Ed. 1371; Id., 1951, 342 U.S. 805, 72 S.Ct. 35. 6 The form order entered in these three cases has been entered in each of the twenty-five cases arising under the Post-Conviction Hearing Act that have reached this Court. Certiorari has been denied in many of these cases where petitioners alleged facts which, if true, presented no federal question. In several other cases, the trial court refused to grant the State's motion to dismiss the post-conviction petition. Instead, the trial court obtained a transcript of the petitioner's trial, reviewed the entire record and found that there had been no denial of substantial constitutional rights.4 However, in the cases now before the Court, the petitions filed in the trial court raised substantial federal claims, petitioners' factual allegations were not denied by the State's Attorney and the courts below have denied relief without inquiring into the verity of the allegations or whether petitioners had waived their claims. 7 Again in these cases, as in Young v. Ragen, supra, the Attorney General of Illinois concedes that petitioners have alleged facts showing an infringement of federal rights. Again he agrees that petitioners are or were entitled to a resolution of the factual issues raised. But, again, the Attorney General explains the action of the state court as resting upon an adequate ground of state procedure. Citing certain language in People v. Dale, supra, he urges that the judgments below mean that the Post-Conviction Hearing Act does not provide an appropriate remedy for consideration of claims which were, or could have been, adjudicated at petitioners' trials. 8 Petitioners claim that they are held in custody in violation of the Federal Constitution in that coerced confessions were used to obtain their convictions. Where, as here, a federal claim can be raised at the trial, it may be forfeited by failure to make a timely assertion of the claim.5 And, if a state provides a post-conviction corrective process, that process must be invoked and relief denied before a claim of denial of substantial federal rights may be entertained by a federal court.6 In inquiring whether any such corrective process was available to petitioners following their conviction, we note that under Illinois practice, writ of error can be used to bring the trial record, including a transcript of the proceedings, before the Illinois Supreme Court for review. However, petitioners could obtain review by writ of error only if a bill of exceptions or the report of proceedings at the trial had been submitted to the trial court within a limited period after conviction.7 While Illinois provides a transcript without cost to indigent defendants who have been sentenced to death, in the absence of some Illinois procedure to permit other indigent defendants to secure an adequate record petitioners could utilize the writ of error procedure only by purchasing the transcript within the limited period following conviction.8 Since petitioners in these cases have taken paupers' oaths, the Attorney General of Illinois concedes that writ of error has not been available to review their claims, and we find nothing in this record to justify a different position.9 We do not consider here any independent question that might be raised by a state's failure to provide to an indigent defendant the transcript of his trial. It is sufficient for the purpose of this case that, if writ of error was not available to petitioners and if the Attorney General is correct in stating that the Post-Conviction Hearing Act does not provide an appropriate remedy in this type of case, there never has been, and is not now, any state post-conviction remedy available for determination of petitioners' claims that their federal rights have been infringed. 9 if their allegations are true and if their claims have not been waived at or after trial, petitioners are held in custody in violation of federal constitutional rights. Petitioners are entitled to their day in court fore resolution of these issues. Where the state does not afford a remedy, a state prisoner may apply for a writ of habeas corpus in the United States District Court to secure protection of his federal rights.10 10 The Attorney General of Illinois asks us to affirm the judgments below as resting upon an independent state ground even though he acknowledges that such action would permit petitioners to proceed in the District Court without more. But we do not lightly assume that a state has failed to provide any post-conviction remedy if a defendant is imprisoned in violation of constitutional rights.11 Accordingly, we consider it appropriate that the Illinois Supreme Court be permitted to provide definite answers to the questions of state law raised by these cases. 11 Unlike our action in Loftus v. People of State of Illinois, supra, however, we do not continue these cases on our docket pending further consideration by the Illinois Supreme Court. Instead, we vacate the judgments below and remand the cases to the Illinois Supreme Court for further proceedings. See State of Minnesota v. National Tea Co., 1940, 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920. On remand, petitioners should be advised whether their claims that constitutional rights were infringed at their trials may be determined under the Post-Conviction Hearing Act, or whether that Act does not provide an appropriate state remedy in these cases. If petitioners' claims may be resolved in a proceeding under the Act, either by an inquiry into the verity of their factual allegations or a finding that federal rights were waived during or after their trials, such resolution may proceed without further action by this Court. If Illinois does not provide an appropriate remedy for such a determination, petitioners may proceed without more in the United States District Court. 12 It is so ordered. 13 Judgments vacated and cases remanded with directions. 14 Mr. Justice MINTON, dissenting. 15 I dissent as I am of the opinion the Illinois Supreme Court based its judgment and opinion upon an adequate state ground. 16 Mr. Justice FRANKFURTER, dissenting. 17 We all agree, I assume, that we ought not to impute an obstinate flouting of this Court's repeated adjudications to the highest court of a State unless its action precludes any other fair inference. This is more than a mere gesture of courtesy. It does to the very conception of the relationship of the State courts to this Court in our federal system. Accordingly, just as reasonable legal ground must be attributed to our dispositions without opinion, so explanations rationally consonant with legality must be attributed to the Illinois orders. 18 One difficulty with the remand of the cases to Illinois is that the explanatory opinion leaves uncertainty regarding the issue on which this Court is asking the Illinois Supreme Court for clarification. The orders under review may rest on one of two legally entertainable grounds: that (a) the Illinois proceedings disclose no infraction of the Fourteenth Amendment, or (b) as a matter of local procedural law, the claim of such infraction was not properly presented. 19 If we think that a substantial federal claim is raised in these cases, for which a hearing was required but denied, and the denial could only be justified because allowable local procedure was disregarded in the manner in which this federal right was pursued, it would be appropriate, of course, for us to ask the Illinois Supreme Court to tell us explicitly whether these cases went off on such a non-federal ground, and if no what it is. See State of Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920. If this is what the Court means to do, it ought not to be too difficult for the opinion to say so very simply. But to adopt this course, we must be convinced that a federal claim of substance is presented by the record which, but for the legitimate State procedural requirement, is entitled to be heard. We should, then, at least suggest what that claim is. 20 Alternatively, these Illinois orders may rest, not on a procedurally justifiable refusal to entertain a substantial federal claim, but on the view of the Illinois court that no such substantial federal claim is in issue. If the Court disagrees, it is certainly proper to remand the case to the State court with instructions to accord a hearing to the claim of federal right presented. 21 But in either case, is it not incumbent on this Court to state without any roundaboutness what the substantial federal question is and how it is properly before us? It seems to me that the formulation of the substantial federal claim, to which the Illinois Supreme Court is said to have been deaf, is the crucial issue in these cases. We would be exactly where we now are if the Illinois Supreme Court were most respectfully to reply to our request for clarification by saying: 'Why of course a hearing is required under Illinois law of a substantial claim under the United States Constitution. But in these cases we found no such substantial federal claim.'1 22 What is the substantial federal question? Certainly whether a claim which could have been raised by the method of direct review of the trial proceedings but was not, must be allowed to be raised in some collateral attack, is not a substantial federal question. Such a requirement cannot be made of the States under the Fourteenth Amendment. It is not enforceable even as to federal prosecutions. Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982. 23 Is then the federal claim the denial by Illinois of stenographic minutes of a trial to an indigent defendant? I appreciate that such a denial might be found to be in violation of the Fourteenth Amendment, and more particularly of its Equal Protection Clause, in a State which has a system of criminal appeals. Is this being decided now? And is so far-reaching a general claim decided inferentially, without argument or consideration of all the relevant subsidiary questions that the general proposition would raise?2 24 Or does the Court hold that, in the circumstances of this case, the petitioners are entitled, as a matter of federal right, to an independent inquiry into the constitutional validity of their convictions even though the questions raised were, or could have been, determined at the trials? And if so what are the circumstances which provide a basis for that conclusion? 25 A reading of the Court's opinion with the care and deference that should be accorded it by a doubter has not revealed which if any of these possible federal claims has been denied so as to provide the necessary basis for a remand to the State court. 26 My difficulty, however, is not merely with ambiguity or, perhaps, obscurity in defining the federal right which was, or may have been, denied by the Illinois proceedings here for review. The fatal weakness, as I see it, is that the question of a denial of one or more putative federal rights is nowhere properly raised on the record before us. 27 It is true that petitioners allege they were convicted on the basis of coerced confessions and perjured testimony admitted in evidence in violation of the Fourteenth Amendment. But so far as appears from the record, these issues were fully litigated and determined at the trials. Until the cases came to this Court, no showing was made, or sought to be made, that circumstances were such as to warrant a new and independent inquiry into those determinations as a matter of federal right. 28 Whether these petitioners could have appealed from their convictions but did not, what procedures were available for perfecting an appeal, whether the circumstances were such as effectively to deny to these petitioners the opportunity for direct review of their convictions—answers to all these questions are indispensable to a judgment on the nature and scope of the federal right, if any, which Illinois may have denied these prisoners in this proceeding. But they are questions entangled in the procedural law of Illinois and in the facts and circumstances surrounding the conviction of these petitioners. The Illinois courts have never passed on them because they were never raised. And neither they nor we can pass on them unless they are raised in some appropriate way. Whitney v. People of State of California, 274 U.S. 357, 379—380, 47 S.Ct. 641, 649—650, 71 L.Ed. 1095, Mr. Justice Brandeis, concurring. 29 Of course, we read the self-composed claims of an indigent defendant with generous inferences and do not require elegance of pleading. We do not make such an exaction even of lawyers' pleadings. We ought to dig out of a complaint what is in it, and State courts surely feel themselves under a similar obligation when questions of constitutional right are involved. But this is entirely different from constructing a new case not even vaguely adumbrated in the complaint which moves a court to action. Still less ought this Court to originate litigation in this way when to do so is to disrespect the judgment of a State court and to decide, at least implicitly, difficult constitutional questions without the foundation of fact and circumstance needed to illumine their consideration. 30 In light of these views, I cannot join the Court's position of these cases. I think the writs should be dismissed for want of a properly presented federal question. Such a dismissal would not, of course, bar a new proceeding, differently conceived, tendering one or more of the federal questions here discussed. Certainly if, for whatever reason, the Illinois courts fail to afford corrective relief for the denial of a right guaranteed by the United States Constitution, the road to the federal court is open. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215. At the core of the problem remains the precise definition of the basis for invoking the Fourteenth Amendment. 1 Brown v. State of Mississippi, 1936, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682. 2 Ill.Rev.Stat.1951, c. 38, §§ 826—832. 3 In a number of recent cases in which other Illinois procedures were invoked, this Court has denied certiorari with the express statement that denial was without prejudice to petitioners' proceeding under the new Act. E.g., Walker v. Ragen, 1949, 338 U.S. 833, 70 S.Ct. 37, 94 L.Ed. 507. 4 E.G., People v. Supero, No. 1169, and People v. Gehant, No. 1146, both cases decided by the Illinois Supreme Court on May 24, 1951.* Certiorari was also denied in these cases. 1951, 342 U.S. 836, 72 S.Ct. 60; 1951, 342 U.S. 840, 72 S.Ct. 68. * Petitions dismissed. 5 See Yakus v. United States, 1944, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834, and cases cited therein. As a result of the fact that the transcripts of petitioners' trials are not included in the records in these post-conviction proceedings, note 8, infra, it cannot be known at this stage of the proceedings that petitioners waived all of their federal claims at their trials. 6 See Frank v. Mangum, 1915, 237 U.S. 309, 327, 35 S.Ct. 582, 587, 59 L.Ed. 969. Petitioners do not allege that any coercion was used to bar objection to the use of the confessions or from having their convictions set aside on review. 7 Ill.Rev.Stat.1951, c. 110, § 259.70A. At the time of petitioners' convictions, the period was 50 days, subject to extension on motion filed within that period. Recently, the period was extended to 100 days. Compare Ill.Rev.Stat.1949, c. 110, § 259.70A. 8 Ill.Rev.Stat.1951, c. 37, § 163b; id., c. 38, § 769a. Compare 28 U.S.C. (Supp. IV) §§ 1915, 2245, 2250, 28 U.S.C.A. §§ 1915, 2245, 2250. The transcripts of petitioners' trials have not been made part of the record in their post-conviction proceedings. Incomplete excerpts have been purchased, according to petitioners, out of their meager earnings while in prison. Those excerpts were attached as exhibits to the petitions filed in the trial court. 9 This does not, of course, foreclose the State from showing that any of the petitioners, in fact, could have obtained review of their claims by writ of error and from determining what, if any, effect such a showing would have on the availability of any other remedy under Illinois law. The State is also free to require more particularity in the allegations and assertions of these petitioners who have filed their papers pro se throughout these proceedings. Pyle v. State of Kansas, 1942, 317 U.S. 213, 216, 63 S.Ct. 177, 178, 87 L.Ed. 214. In rejecting the suggestion that these writs of certiorari be dismissed, we note that it is at least highly questionable whether, if the judgments below are permitted to stand, petitioners would be permitted to raise again in new proceedings may claims that were or could have been raised in these proceedings. Ill.Rev.Stat.1951, c. 38, §§ 828, 832. See Jenner, The Illinois Post-Conviction Hearing Act, 1949, 9 F.R.D. 347, 358, 360. 10 28 U.S.C. (Supp. IV) §§ 2241(c)(3), 2254, 28 U.S.C.A. §§ 2241(c)(3), 2254; Hawk v. Olson, 1945, 326 U.S. 271, 276, 66 S.Ct. 116, 119, 90 L.Ed. 61; House v. Mayo, 1945, 324 U.S. 42, 46, 65 S.Ct. 517, 520, 89 L.Ed. 739; Ex parte Hawk, 1944, 321 U.S. 114, 118, 64 S.Ct. 448, 450, 88 L.Ed. 572; Moore v. Dempsey, 1923, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. 11 Young v. Ragen, supra; Smith v. O'Grady, 1941, 312 U.S. 329, 331, 61 S.Ct. 572, 85 L.Ed. 859. 1 Indeed, it is difficult to interpret the orders before us for review as saying anything else: 'It is further considered by the Court that after having examined and reviewed the petition and record in the post conviction hearing the same is found to disclose no violation or denial of any substantial constitutional rights of the petitioner under the constitution of the United States * * *.' 2 It is at least relevant to remind that under existing federal habeas corpus procedure, the judge who presided at the trial resulting in conviction may prepare a certificate 'setting forth the facts occurring at the trial' for use in the habeas corpus court. 28 U.S.C. § 2245, 28 U.S.C.A. § 2245 (I am not unmindful of § 2250 enacted in 1948). And the 'judge's notes' is the historic basis for appellate review in England, which, I take it, is a mode not unlike that of the 'bystander's record' in some of the States. I do not now mean to argue the main question nor its subsidiary problems nor to intimate any considered view upon them. But as an indication of the kind of issues that are raised before reaching a conclusion on the general and abstract proposition that failure to provide stenographic minutes without cost to an indigent defendant in a violation of a guaranty of the Fourteenth Amendment, it is useful to recall something of the history touching the means by which errors at nisi are brought to the attention of an appellate court.

89

342 U.S. 126 72 S.Ct. 157 96 L.Ed. 146 COOKv.COOK. No. 30. Argued Nov. 7, 1951. Decided Dec. 3, 1951. Mr. Henry Lincoln Johnson, Jr., Washington, D.C., for petitioner. Mr. H. Mason Welch, Washington, D.C., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Shortly after petitioner and respondent were married on February 5, 1943, respondent discovered that petitioner was the lawful wife of one Mann. At that time petitioner and respondent were living in Virginia and agreed that petitioner would go to Florida and obtain there a divorce from Mann, so that they could be remarried. That course was followed, respondent paying a part of the expenses of the trip to Florida and of the divorce action. Petitioner received a Florida decree and a few weeks later, December 18, 1943, again married respondent. Marital difficulties developed and petitioner secured in Hawaii a decree of separation and maintenance. Thereafter respondent brought the present action in the Vermont courts to have the marriages declared null and void. Petitioner was served by publication and appeared. There was a trial, after which the Windsor County Court granted a judgment of annulment. It found that under Florida law it was necessary for petitioner to have had an intention to live and remain in Florida, which she did not have; that she testified falsely in the Florida proceedings respecting her domicile in Florida; and that she secured the Florida decree by deceiving the Florida court as to her domicile. The Windsor County Court annulled the marriage of February 5, 1943, and dismissed the petition as respects the second marriage. The Supreme Court of Vermont affirmed the judgment annulling the first marriage but reversed the dismissal as to the second marriage and held it also null and void. 116 Vt. 374, 76 A.2d 593. The case is here on certiorari. 341 U.S. 914, 71 S.Ct. 732, 95 L.Ed. 1350. 2 On this record we do not know what happened in the Florida divorce proceedings except that the Florida court entered a divorce decree in favor of petitioner and against Mann. So far as we know, Mann was a party to the proceedings. So far as we know, the issue of domicile was contested, litigated and resolved in petitioner's favor. If the defendant spouse appeared in the Florida proceedings and contested the issue of the wife's domicile, Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, or appeared and admitted her Florida domicile, Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, or was personally served in the divorce state, Johnson v. Muelberger, 340 U.S. 581, 587, 71 S.Ct. 474, 477, 95 L.Ed. 552, he would be barred from attacking the decree collaterally; and so would a stranger to the Florida proceedings, such as respondent, unless Florida applies a less strict rule of res judicata to the second husband than it does to the first. See Johnson v. Muelberger, supra. On the other hand, if the defendant spouse had neither appeared nor been served in Florida, the Vermont court, under the ruling in Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, could reopen the issue of domicile. 3 But the burden of undermining the decree of a sister state 'rests heavily upon the assailant.' Williams v. State of North Carolina, supra, 325 U.S. at page 234, 65 S.Ct. at page 1097; Esenwein v. Commonwealth of Pa. ex rel. Esenwein, 325 U.S. 279, 280—281, 65 S.Ct. 1118, 1119, 89 L.Ed. 1608. A judgment presumes jurisdiction over the subject matter and over the persons. See Titus v. Wallick, 306 U.S. 282, 287, 59 S.Ct. 557, 560, 83 L.Ed. 653. As stated for the Court by Justice Stone in Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 456, 82 L.Ed. 649, 'If it appears on its face to be a record of a court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself.' 4 The Florida decree is entitled to that presumption. That presumption may of course be overcome by showing, for example, that Mann never was served in Florida nor made an appearance in the case either generally or specially to contest the jurisdictional issues. The Vermont Supreme Court recognized that there were no findings on those issues in the present record. The Court in referring to the case of Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, said, 'It was there held that the question of bona fide domicile was open to attack, notwithstanding the full faith and credit clause when the other spouse neither had appeared nor been served with process in the state. The findings here do not show either of these criteria.' 116 Vt. 374, 378, 76 A.2d 593, 595. Yet it is essential that the court know what transpired in Florida before this collateral attack on the Florida decree can be resolved. For until Florida's jurisdiction is shown to be vulnerable, Vermont may not relitigate the issue of domicile on which the Florida decree rests. It was said on argument that the first husband appeared in the Florida proceeding. But the record does not contain the Florida decree nor any stipulation concerning it. 5 We deal only with the presumption, not with the issues on which the Vermont court made its findings. We also reverse the question, discussed on argument, whether respondent would now be in a position to attack the Florida decree collaterally if it were found to be collusive and he participated in the fraud. 6 The judgment is reversed and the cause is remanded to the Supreme Court of Vermont for proceedings not inconsistent with this opinion. 7 Reversed. 8 Mr. Justice BURTON concurs in the result. 9 Mr. Justice FRANKFURTER, dissenting. 10 Concededly, when a Florida court, on September 10, 1943, purported to grant a decree of divorce to the petitioner, then Mrs. Albert Mann, she secured the decree 'by deceiving the Florida Court as to the facts of her domicile' in that she 'went to Florida for the express purpose of getting a divorce' and without any 'intention to live and remain in Florida,' whence she departed immediately on securing her decree. Therefore, the Full Faith and Credit Clause, art. 4, § 1, does not require Vermont to respect this Florida decree, unless Mr. Mann has been served in Florida or had personally participated in the Florida divorce proceeding. If there were fair doubt that Mrs. Mann's husband had subjected himself to the jurisdiction of the Florida decree, the things which it imports would not have been undermined and Vermont would have to respect it. 11 It is the view of my Brethren that the Vermont Supreme Court held the Florida decree to be a nullity, although it 'recognized that there were no findings on those issues in the present record'—the issues being, whether petitioner's husband 'was served in Florida (or) made an appearance in the case.' If this were what the Vermont Supreme Court 'recognized' I would join my Brethren. But so to read what the Vermont Supreme Court wrote is to misread. In its own Vermont way, the Vermont Supreme Court wrote just the opposite. Referring to the second Williams case, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, the Vermont Supreme Court went on: 'It was there held that the question of bona fide domicile was open to attack, notwithstanding the full faith and credit clause when the other spouse neither had appeared nor been served with process in the state. The findings here do not show either of these criteria.' Cook v. Cook, 116 Vt. 374, 378, 76 A.2d 593, 595. 12 In the light of the whole record, is not the meaning of this, however obliquely expressed, that the circumstance was wanting which alone would have given the Florida court jurisdiction over Mrs. Mann's suit, namely, Mr. Mann's submission to it? A fair reading of this record implies that the Florida decree was neither consented to nor contested by Mann. In such circumstances, it would be formalism of the most arid kind if a State in a third-party proceeding may deny full faith and credit to an ex parte divorce fraudulently secured by a spouse in a sister State only if it makes formal findings that such an ex parte fraudulent decree was obtained without the jurisdictional participation of the husband. 13 If Mrs. Mann did not have a Florida domicile and her husband did not submit, under the Sherrer doctrine, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, to the State's jurisdiction, Florida had no power to terminate the marriage. If there was no jurisdiction to grant a divorce, there was no divorce. The sham divorce was a nullity, no more binding on the Vermont courts than would have been a private letter to the lady by the local Florida judge. And while Vermont could, if that State chose, deny relief to Cook because of his 'unclean hands,' the Constitution of the United States has nothing to do with that defense. 14 It is important to remember that throughout this proceeding the petitioner here appeared personally and was represented by counsel. The findings of the Windsor County Court were based on 'a consideration of the statements of counsel, oral testimony and the exhibits in the case.' The findings are inescapable that the Florida decree was a cooked-up affair not between Mr. and Mrs. Mann but between Mrs. Mann and Cook. 'Florida was chosen as the place where the divorce was to be obtained because Florida would be the nearest and best place to secure a divorce.' All this took place two months after Mrs. Mann and Cook had supposedly been married, when he discovered she was the wife of Mann. The present proceedings, begun in December, 1949, did not come to issue until March, 1950, the findings of fact were made in May, 1950, and the case disposed of by the Supreme Court of Vermont in November 1950. The Florida decree was urged as a defense against the prayer for a declaration of annulment on two grounds, as one reads the record, and two grounds only: unclean hands and condonation—unclean hands in that Cook cooperated with Mrs. Mann in deceiving the Florida court as to the falsity of her domiciliary claim; condonation by conduct on Cook's part subsequent to, and with knowledge of, Mrs. Mann's fraudulently obtained divorce decree. 15 It is important to remember that the judgments of the Windsor County Court and of the Supreme Court of Vermont came two years after this Court's decisions in Sherrer v. Sherrer, supra, and Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451. These were not puss-in-the-corner adjudications. It is inconceivable that the Vermont courts did not know that the fraudulent claim of domicile by a divorcing spouse is irrelevant to the enforceability in sister States of a decree of divorce if the other spouse contests or consents to the proceeding leading to the decree. When the Supreme Court of Vermont in 1950 finds a decree of divorce to have been fraudulently obtained by a spouse and says that there are no findings that the other spouse had either appeared or been served with process, and rejects the claim that the divorce decree must be respected by reason of unclean hands or condonation, plainly part of the case is the assumption that this was not a Sherrer v. Sherrer or Coe v. Coe situation. An issue which is established by the assumptions in a litigation is as truly established as though put into words. 16 In view of what this record discloses—the explicit findings as to the fraudulently prearranged divorce from the husband between a wife and her putative husband, the issues that were tendered in the personally contested proceeding for annulment of marriage by the disillusioned third party, the charges of unclean hands and condonation as grounds on which the wife sought to rely on the divorce, the only issues thus tendered to the Vermont courts and their disposition two years after Sherrer v. Sherrer and Coe v. Coe—to hold that there must be a finding in explicit words that Mann did not appear in the Florida proceedings is to go back to the days antedating Baron Parke, when certain words in the law were indispensable. Not to use them was fatal. The Florida decree is not set forth in the record before us. For all we know, the decree may recite the non-appearance of Mann. And yet the Vermont Supreme Court is reversed on the unwarranted presumption that Mann appeared in the Florida suit. 17 The case now goes back to Vermont. It would not be surprising if, in the proceedings to follow, it will be formally established that inasmuch as Mann was neither served nor appeared in Florida the decree was a nullity, to which the Constitution of the United States does not require obedience from Vermont. I am not one of those who think that procedure is just folderol or noxious moss. Procedure—the fair, orderly and deliberative method by which claims are to be litigated—goes to the very substance of law. But to deny the meaning of what lies on the surface of a record simply because it is ineptly conveyed is to revert to archaisms and not to respect essentials.

1011

342 U.S. 117 72 S.Ct. 118 96 L.Ed. 138 STEFANELLI et al.v.MINARD et al. No. 2. Argued Oct. 16, 1951. Decided Dec. 3, 1951, Mr. Mordecai M. Merker, New York City, for petitioners. Messrs. Richard J. Congleton, Charles Handler, Newark, N.J., for respondents. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Petitioners asked equitable relief from the Federal District Court to prevent the fruit of an unlawful search by New Jersey police from being used in evidence in a State criminal trial. The suit was brought under R.S. § 1979, 8 U.S.C. § 43, 8 U.S.C.A. § 43, providing for redress against 'Every person who, under color of any statute, ordinance, regulation, custom, or usage, or 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 * * *.'1 Upon respondents' motion, the District Court dismissed the complaints, 'it appearing that the plaintiffs have not exhausted their remedies under state law.' The Court of Appeals affirmed. 184 F.2d 575. Since it raises important questions touching the Civil Rights Act in the context of our federal system we brought the case here. 341 U.S. 930, 71 S.Ct. 802, 95 L.Ed. 1360. 2 Two suits arising out of separate series of events, were consolidated in the Court of Appeals and are before us as one case. The facts do not differ materially. Newark police officers entered petitioners' homes without legal authority. There they seized property of petitioners useful in bookmaking, a misdemeanor under N.J.Rev. Stat. 2:135—3, N.J.S.A. It is not disputed that these searches, if made by federal officers, would have violated the Fourth Amendment. Stefanelli was arrested, arraigned and subsequently indicted for bookmaking. He pleaded not guilty. The other petitioners, after hearing, were held on the same charge to await the action of the Essex County grand jury. All allege that the seized property is destined for evidence against them in the New Jersey criminal proceedings. Petitioners have made no move in the State courts to suppress the evidence, justifying their failure to do so on the ground that under existing New Jersey law the seized property is admissible without regard to the illegality of its procurement. 3 Petitioners invoke our decision in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. The precise holding in that case was 'that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.' Id., 338 U.S. at page 33, 69 S.Ct. at page 1364, 93 L.Ed. 1782. Although our holding was thus narrowly confined, in the course of the opinion it was said: 'The security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause. * * * Accordingly, we have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment.' Id., 338 U.S. at pages 27—28, 69 S.Ct. at page 1361, 93 L.Ed. 1782. There was disagreement as to the legal consequences of this view, but none as to its validity. We adhere to it. Upon it is founded the argument of petitioners. 4 If the Fourteenth Amendment forbids unreasonable searches and seizures by the States, they contend, such a search and seizure by State police officers subjects its victims to the deprivation, under color of State law, of a right, privilege or immunity secured by the Constitution for which redress is afforded by R.S. § 1979. Appropriate redress, they urge, is a suit in equity to suppress the evidence in order to bar its further use in State criminal proceedings. 5 There is no occasion to consider such constitutional questions unless their answers are indispensable to the disposition of the cause before us. In the view we take, we need not decide whether the complaint states a cause of action under R.S. § 1979. For even if the power to grant the relief here sought may fairly and constitutionally be derived from the generality of language of the Civil Rights Act, to sustain the claim would disregard the power of courts of equity to exercise discretion when, in a matter of equity jurisdiction, the balance is against the wisdom of using their power. Here the considerations governing that discretion touch perhaps the most sensitive source of friction between States and Nation, namely, the active intrusion of the federal courts in the administration of the criminal law for the prosecution of crimes solely within the power of the States. 6 We hold that the federal courts should refuse to intervene in State criminal proceedings to suppress the use of evidence even when claimed to have been secured by unlawful search and seizure. The maxim that equity will not enjoin a criminal prosecution summarizes centuries of weighty experience in Anglo-American law. It is impressively reinforced when not merely the relations between coordinate courts but between coordinate political authorities are in issue. The special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law, has been an historic concern of congressional enactment, see, e.g., 28 U.S.C. §§ 1341, 1342, 2283, 2284(5), 28 U.S.C.A. §§ 1341, 1342, 2283, 2284(5). This concern has been reflected in decisions of this Court, not governed by explicit congressional requirement, bearing on a State's enforcement of its criminal law. E.g., Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416; Beal v. Missouri Pacific R. Co., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577; Spielman Motor Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322; Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927. It has received striking confirmation even where an important countervailing federal interest was involved. State of Maryland v. Soper (No. 1), 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449; State of Maryland v. Soper (No. 2), 270 U.S. 36, 46 S.Ct. 192, 70 L.Ed. 459; State of Maryland v. Soper (No. 3), 270 U.S. 44, 46 S.Ct. 194, 70 L.Ed. 462.2 7 These considerations have informed our construction of the Civil Rights Act. This Act has given rise to differences of application here. Such differences inhere in the attempt to construe the remaining fragments of a comprehensive enactment, dismembered by partial repeal and invalidity, loosely and blindly drafted in the first instance,3 and drawing on the whole Constitution itself for its scope and meaning. Regardless of differences in particular cases, however, the Court's lodestar of adjudication has been that the statute 'should be construed so as to respect the proper balance between the States and the federal government in law enforcement.' Screws v. United States, 325 U.S. 91, 108, 65 S.Ct. 1031, 1039, 89 L.Ed. 1495. Only last term we reiterated our conviction that the Civil Rights Act 'was not to be used to centralize power so as to upset the federal system.' Collins v. Hardyman, 341 U.S. 651, 658, 71 S.Ct. 937, 940, 95 L.Ed. 1253. Discretionary refusal to exercise equitable power under the Act to interfere with State criminal prosecution is one of the devices we have sanctioned for preserving this balance. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324. And under the very section now invoked, we have withheld relief in equity even when recognizing that comparable facts would create a cause of action for damages. Compare Giles v. Harris, 189 U.S. 475, 23 S.Ct. 639, 47 L.Ed. 909, with Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281. 8 In Douglas v. City of Jeannette, supra, the Court, speaking through Chief Justice Stone, said: 'Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. Hence, courts of equity in the exercise of their discretionary powers should conform to this policy by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent; * * *.' Id., 319 U.S. at page 163, 63 S.Ct. at page 881, 87 L.Ed. 1324.4 No such irreparable injury, clear and imminent, is threatened here. At worst, the evidence sought to be suppressed may provide the basis for conviction of the petitioners in the New Jersey courts. Such a conviction, we have held, would not deprive them of due process of law. Wolf v. People of State of Colorado, supra. 9 If these considerations limit federal courts in restraining State prosecutions merely threatened, how much more cogent are they to prevent federal interference with proceedings once begun. If the federal equity power must refrain from staying State prosecutions outright to try the central question of the validity of the statute on which the prosecution is based, how much more reluctant must it be to intervene piecemeal to try collateral issues.5 10 The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law—with its far-flung and undefined range—would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand6 and petit7 juries, in the failure to appoint counsel,8 in the admission of a confession,9 in the creation of an unfair trial atmosphere,10 in the misconduct of the trial court11—all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution.12 11 Mr. Justice Holmes dealt with this problem in a situation especially appealing: 'The relation of the United States and the Courts of the United States to the States and the Courts of the States is a very delicate matter that has occupied the thoughts of statesmen and judges for a hundred years and can not be disposed of by a summary statement that justice requires me to cut red tape and to intervene.' Memorandum of Mr. Justice Holmes in 5 The Sacco-Vanzetti Case, Transcript of the Record (Henry Holt & Co., 1929) 5516. A proper respect for those relations requires that the judgment below be affirmed. 12 Affirmed. 13 Mr. Justice BLACK and Mr. Justice CLARK concur in the result. 14 Mr. Justice MINTON took no part in the consideration or decision of this case. 15 Mr. Justice DOUGLAS, dissenting. 16 Mr. Justice Murphy, Mr. Justice Rutledge, and I voted in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, that evidence obtained as a result of an unreasonable search and seizure should be excluded from state as well as federal trials. In retrospect the views expressed by Mr. Justice Murphy and Mr. Justice Rutledge grow in power and persuasiveness. I adhere to them. I therefore think that any court may with propriety step in to prevent the use of this illegal evidence. To hold first that the evidence may be admitted and second that its use may not be enjoined is to make the Fourth Amendment an empty and hollow guarantee so far as state prosecutions are concerned. 1 '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 proceeding for redress.' Jurisdiction was founded, without regard to citizenship of the parties of amount in controversy, on 28 U.S.C. § 1343(3), 28 U.S.C.A. § 1343(3): 'The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: '(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.' Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423. 2 In those cases, despite the obvious concern of Congress for enforcement of revenue laws unimpeded by local opposition, the Court duly respected State criminal justice by carefully limiting the power of removing to the federal courts State criminal prosecutions involving federal revenue officers who claimed that such prosecutions were 'on account of any act done under color of (their) office.' R.S. § 643, now 28 U.S.C. § 1442, 28 U.S.C.A. § 1442. 3 We recently commented on the circumstances surrounding the enactment of this legislation in United States v. Williams, 341 U.S. 70, 74, 71 S.Ct. 581, 583, 95 L.Ed. 758, and Collins v. Hardyman, 341 U.S. 651, 657, 71 S.Ct. 937, 939, 95 L.Ed. 1253. 4 Hague v. C.I.O., supra, was distinguished in the Jeannette case: 'In these respects the case differs from Hague v. C.I.O., supra, 307 U.S. at pages 501, 502, 59 S.Ct. at pages 957, 958, 83 L.Ed. 1423, where local officials forcibly broke up meetings of the complainants and in many instances forcibly deported them from the state without trial.' Douglas v. City of Jeannette, supra, 319 U.S. at 164, 63 S.Ct. at page 881, 87 L.Ed. 1324. 5 Congress has consistently demonstrated concern that the orderly course of judicial proceedings should not, in the absence of compelling circumstances defined by statute, be broken up for the piecemeal determination of the issues involved. See, e.g., 28 U.S.C. § 1291, 28 U.S.C.A. § 1291; Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (appeals from 'final decisions' of the district courts); 28 U.S.C. § 1441(c), 28 U.S.C.A. § 1441(c) (removal of 'separable controversies'); and cf. Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. 6 See Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84. 7 See Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664; Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757. 8 See Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. 9 See Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801. 10 See Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. 11 See Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690. 12 Although this is the first such case to reach us, instances are not wanting where the fairness of State court proceedings has been attacked in the lower federal courts under R.S. § 1979 and related sections. We refer to them by way of illustration. An action for damages was sustained against a motion to dismiss where plaintiff alleged that she was arrested without warrant, that defendants, a justice of the peace and a constable, maliciously secured the appointment of a biased jury and subjected her to a fraudulent trial resulting in a conviction reversed on appeal. McShane v. Moldovan, 6 Cir., 172 F.2d 1016; cf. Picking v. Pennsylvania R. Co., 3 Cir., 151 F.2d 240 (complaint seeking damages for false arrest and detention in violation of the Uniform Extradition Act sustained against motion to dismiss). But see Campo v. Niemeyer, 7 Cir., 182 F.2d 115; Lyons v. Baker, 5 Cir., 180 F.2d 893; Bottone v. Lindsley, 10 Cir., 170 F.2d 705; Mitchell v. Greenough, 9 Cir., 100 F.2d 184; Llano Del Rio Co. v. Anderson-Post Hardwood Lumber Co., D.C., 79 F.Supp. 382, affirmed per curiam, 5 Cir., 187 F.2d 235. Closer to the case before us are suits for injunctions grounded on the contention that particular phases of criminal proceedings are unfair. The lower courts have refused to intervene. Cooper v. Hutchinson, 3 Cir., 184 F.2d 119 (refusal of State court to allow criminal defendant counsel of his own choosing; case remanded for district court to retain jurisdiction pending exhaustion of State remedies); Ackerman v. International Longshoremen's & Warehousemen's Union, 9 Cir., 187 F.2d 860, reversing, D.C., 82 F.Supp. 65, which had enjoined prosecutions in part on the ground of discrimination in selection of grand jury panel; McGuire v. Amrein, 101 F.Supp. 414 (refusal to suppress wire tap evidence; alternate ground); Erickson v. Hogan, D.C., 94 F.Supp. 459 (suppression of evidence obtained through unlawful search and seizure); Refoule v. Ellis, D.C., 74 F.Supp. 336 (court would not enjoin use of allegedly coerced confession in State prosecution although enjoining future unlawful arrest, detention and interrogation of plaintiff); cf. Eastus v. Bradshaw, 5 Cir., 94 F.2d 788. And see Hoffman v. O'Brien, D.C., 88 F.Supp. 490, where an action under R.S. § 1979 to enjoin the enforcement of the New York wire tap law was dismissed for want of a justiciable controversy.

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342 U.S. 160 72 S.Ct. 189 96 L.Ed. 179 UNITED STATESv.FORTIER et al. No. 14. Argued Oct. 10, 1951. Decided Dec. 11, 1951. Where Veterans' Emergency Housing Act was specifically repealed by Housing and Rent Act of 1947, saving provision of Veterans Act that liability incurred or offenses committed prior to termination of Act would remain in force, could not be relied on to sustain actions by United States against contractor to make restitution to veterans for sums received from sale of houses after repeal in excess of maximum sales prices established before repeal by Federal Housing Administration. Veterans' Emergency Housing Act of 1946, 50 U.S.C.A.Appendix, § 1821 et seq.; Housing and Rent Act of 1947, §§ 4(a), 202(c)(1)(B)(3)(A), 50 U.S.C.A.Appendix, §§ 1884(a), 1892(c)(1)(B)(3)(A); 1 U.S.C.A. § 109. Where Veterans' Emergency Housing Act of 1946 contained detailed authorization for price restrictions on houses and for priorities on building materials and when that act was repealed in 1947, Congress provided for veterans' preferences in sale and rental of housing and for rent ceilings on certain accommodations constructed with assistance of priorities secured under the 1946 Act, Congress having addressed itself to problem of veterans' housing but having refrained from imposing any price restrictions on sale of houses, restrictions could not be imposed by implication. Veterans' Emergency Housing Act of 1946, 50 U.S.C.A.Appendix, § 1821 et seq.; Housing and Rent Act of 1947, § 1(a), 50 U.S.C.A.Appendix, § 1881(a). Mr. Oscar H. Davis, Washington, D.C., for petitioner. Mr. Stanley M. Brown, Manchester, N.H., for respondent. PER CURIAM. 1 The United States brought this action under the Veterans' Emergency Housing Act of 19461 to compel restitution of allegedly excessive prices charged by respondents in the sale of two houses. The District Court entered judgment for respondents, 89 F.Supp. 708, and the Court of Appeals for the First Circuit affirmed, 185 F.2d 608. We granted certiorari, 341 U.S. 925, 71 S.Ct. 796, 95 L.Ed. 1357. 2 Maximum sales prices for the two houses had been stipulated by respondents in securing the permission to build required under Priorities Regulation 33.2 Statutory authority for that regulation had been repealed before the sale of respondents' houses, except for a proviso continuing in full force and effect priorities for building materials issued under the Veterans' Emergency Housing Act of 1946.3 The Government views the maximum prices stipulated by respondents as a condition of construction authorization and priorities assistance that survived repeal under the proviso. We reject this view. 3 The 1946 Act contained detailed authorization for price restrictions on houses and for priorities on building materials. When that Act was repealed in 1947, Congress provided for veterans' preferences in the sale and rental of housing and for rent ceilings on certain accommodations constructed with the assistance of priorities secured under the 1946 Act.4 Congress addressed itself to the problem of veterans' housing, but refrained from imposing any price restrictions on the sale of houses. Congress having indicated a contrary purpose, we will not impose such restrictions by implication. 4 Affirmed. 5 Mr. Justice MINTON took no part in the consideration or decision of this case. 1 50 U.S.C.A.pp. § 1821 et seq., 50 U.S.C.A.Appendix, § 1821 et seq. 2 10 Fed.Reg. 15301, as amended, 11 Fed.Reg. 6598. Respondents were required to comply with this regulation by Veterans' Housing Program Order No. 1, 11 Fed.Reg. 3190. 3 50 U.S.C.App., (Supp. IV) § 1881(a), 50 U.S.C.A.Appendix, § 1881(a), in repealing the 1946 Act, provided: 'That any allocations made or committed, or priorities granted for the delivery, of any housing materials or facilities under any regulation or order issued under the authority contained in said Act (said sections), and before the date of enactment of this Act (June 30, 1947), with respect to veterans of World War II, their immediate families, and others, shall remain in full force and effect.' Respondents' houses were not sold until November and December, 1947, months after repeal of the 1946 Act. As a result, no 'penalty, forfeiture, or liability' had been incurred under the 1946 Act which would survive repeal under the general saving clause, 1 U.S.C. (Supp. IV) § 109, 1 U.S.C.A. § 109. Compare United States v. Carter, 5 Cir., 1948, 171 F.2d 530. 4 50 U.S.C.App. (Supp. IV), § 1884(a); id., § 1892(c)(1)(B)(3)(A), 50 U.S.C.A.Appendix, §§ 1884(a), 1892(c)(1)(B)(3)(A).

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342 U.S. 134 72 S.Ct. 191 96 L.Ed. 154 PALMERv.ASHE, Warden. No. 38. Decided Dec. 11, 1951. Argued Nov. 5, 1951. Opinion Conformed to Jan. 26, 1952. See 86 A.2d 61. Mr. Louis B. Schwartz, Philadelphia, Pa., for petitioner. Mr. Leonard H. Levenson, Pittsburgh, Pa., for respondent. Opinion of the Court by Mr. Justice BLACK, announced by Mr. Justice FRANKFURTER. 1 This Court has repeatedly held that the Due Process Clause of the Fourteenth Amendment requires states to afford defendants assistance of counsel in noncapital criminal cases when there are special circumstances showing that without a lawyer a defendant could not have an adequate and a fair defense.* Petitioner, a prisoner in a Pennsylvania penitentiary, is serving the second of two five-to-fifteen-year sentences simultaneously imposed after pleas of guilty to state offenses. He sought release in these habeas corpus proceedings filed in a Pennsylvania Court of Common Pleas. His petition alleged that his pleas of guilty were entered without benefit of counsel and that other special circumstances existed which deprived him of opportunity and capacity fairly to defend himself. Answers of the warden and district attorney admitted that petitioner had not been represented by counsel, but asserted that the trial record sufficiently refuted petitioner's allegations. On consideration of the petition and answers the court held that petitioner's allegations, in light of the record, failed to show probable cause for his discharge. The case was then dismissed, thereby depriving petitioner of any opportunity to offer evidence to prove his allegations. The Superior Court affirmed, 167 Pa.Super. 88, 74 A.2d 725, and the State Supreme Court refused to allow an appeal. The right to counsel being an important constitutional safeguard, we granted petitioner's motion to proceed in forma pauperis and his petition for certiorari. 341 U.S. 919, 71 S.Ct. 738. 2 We must look to the petition and answers to determine whether the particular circumstances alleged are sufficient to entitle petitioner to a judicial hearing. In summary these allegations are: When petitioner was arrested December 20, 1930, the officers told him that he was charged with 'breaking and entering the Leaders Dry Goods Store.' Later, before a magistrate, he was again told that the charge was 'breaking and entering.' Petitioner never saw the indictments against him nor were they read to him. He never knew he had been charged with robbery and never intended to plead guilty to such a crime. Taken to the courtroom 'the District Attorney informed the Court, that 'the defendant wishes to plead guillty' and in the matter of a minute, more or less, the foregoing sentence was entered after he answered 'Yes' to the Court's query, 'Do you plead guilty to this charge?" Petitioner 'was not represented by counsel, nor offered counsel, or advised of his right to have counsel * * *.' After arrival at the penitentiary, petitioner first learned, according to his petition, that he had been sentenced for robbery and not for the lesser charge of 'breaking and entering.' The petition also alleges that petitioner when arrested was 'a young irresponsible boy, having spent several years in Polk (because he was mentally abnormal), as well as several years in Morganza.' This allegation of mental abnormality is supported by the penitentiary warden's answer showing that petitioner had been confined in Polk (a state institution) from August, 1918, to September, 1920, because he was an 'Imbecile.' The warden's answer also shows that petitioner was born in 1909; was a state orphanage inmate for a year beginning in 1916; and was in reformatories for larceny or 'breaking and entering' for eight of the ten years between the time of his release from the mental institution and the time of the offense for which he is now in prison. 3 All of the foregoing allegations, if proven, would present compelling reasons why petitioner desperately needed legal counsel and services. Incarceration as a boy for imbecility, followed by repeated activities wholly incompatible with normal standards of conduct, indicates no qualities of mind or character calculated to enable petitioner to protect himself in the give-and-take of a courtroom trial. Moreover, if there can be proof of what he charges, he is the victim of inadvertent or intentional deception by officers who, so he alleges, persuaded him to plead guilty to armed robbery by telling him he was only charged with breaking and entering, an offense for which the maximum imprisonment is only ten years as compared to twenty years for armed robbery. 18 Purdon's Pa.Stat.Ann. (1930) §§ 2892, 3041.1 In this aspect of the case the allegations are strikingly like those that we held entitled the petitioner to a hearing in Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859. 4 It is strongly urged here, however, that petitioner's allegations are satisfactorily refuted by the trial record, and that the Court should not now look behind that record, particularly in view of the long time that has elapsed since petitioner pleaded guilty. Of course the trial record may relevantly be considered in the habeas corpus proceeding. In some respects petitioner's allegations are refuted by the record. But that record does not even inferentially deny petitioner's charge that the officers deceived him, nor does the record show an understanding plea of guilty from this petitioner, unless by a resort to speculation and surmise. The right to counsel is too valuable in our system to dilute it by such untrustworthy reasoning. Cf. Hawk v. Olson, 326 U.S. 271, 278, 66 S.Ct. 116, 120, 90 L.Ed. 61. The judgment dismissing the petition is reversed and the cause is remanded to the State Supreme Court for further action not inconsistent with this opinion. 5 It is so ordered. 6 Judgment reversed and cause remanded for further action. 7 Mr. Justice MINTON, with whom The CHIEF JUSTICE, Mr. Justice REED and Mr. Justice JACKSON join, dissenting. 8 Petitioner's contention is that because of the special circumstances of his case the failure to provide him counsel was a denial of due process of law. 9 The following facts of record were before the Pennsylvania courts: Most of petitioner's life had been spent in Pennsylvania mental and correctional institutions. At the age of eight he was placed in Polk State School, a mental institution, from which he was discharged in less than two years. About a year after his discharge from Polk, he was sent at the age of eleven to Thorn Hill School on a charge of larceny. He was paroled in less than three years, returned in less than three months for delinquency and larceny, and finally discharged two years later. Approximately fourteen months after his discharge from Thorn Hill, he was sent to the Pennsylvania Training School at Morganza for breaking and entering. In two and one-half years he was paroled and in less than one year returned as a parole violator. He was discharged finally about four months later, December 18, 1930, his twenty-first birthday. On that day, the robbery and attempted robbery were committed for which petitioner was indicted, pleaded guilty and was sentenced to the penitentiary on February 18, 1931, for a term of five to fifteen years for each offense, the sentences to run consecutively. These are the sentences attacked by petitioner. He was paroled on the first sentence, attempted armed robbery, on August 26, 1942, to enable him to begin serving the armed robbery sentence. He was paroled on his second sentence September 19, 1947, returned as a parole violator April 1, 1949, and has since been incarcerated in the penitentiary. 10 In this record and petitioner's allegations in his petition for habeas corpus to the state courts must be found the 'special circumstances' which would warrant this Court to hold that he had shown sufficient probable cause why his conviction and sentencing, on February 18, 1931, were violative of the Due Process Clause. 11 Petitioner did not allege that at the time of sentencing he was mentally incompetent. His only allegation concerning mental incompetency is a recital in Paragraph 2 of his petition as follows: 'Your petitioner, a young irresponsible boy, having spent several years in Polk (because he was mentally abnormal) * * *.' Yet his discharge from Polk was more than ten years before he entered the plea of guilty now before us. 12 Petitioner did allege that when he pleaded guilty to the robbery indictments he thought he was pleading guilty to an offense of breaking and entering, as the police had told him when he was arrested that that was the charge. However, at the argument before this Court it was contended by the state, and not denied, that the record showed that at the time he pleaded guilty to the robbery indictments, petitioner also pleaded guilty to breaking and entering Leaders' Dry Goods Store, for which he received a suspended sentence. Petitioner also alleged that he discovered his mistake for the first time when he was being examined by the penitentiary's psychology department upon his admission. With that knowledge, he remained silent for eighteen years, a year and a half of which time he was on parole. 13 A continuous life of crime, extending throughout his entire youth, was the experience of this unhappy boy. One would think that such a propensity for crime would or should alert a court to his mental condition. He did not allege that he was mentally incompetent at the time he was serving almost nine years in Thorn Hill and Morganza, from 1921 until 1930. If he had shown any such infirmity, surely the officials in charge of these two institutions would have had the fact called to their attention and would have had him sent to a mental institution. The officials of Pennsylvania correctional institutions had such duty imposed by statute in 1927, so that the Morganza officials, where he was confined from 1927 to 1930, clearly had such duty as to petitioner. Pa.Laws 1927, p. 431, No. 281, Purdon's Pa.Stat.Ann., 1931, Tit. 50, § 51. This duty was imposed also upon the court that sentenced him. I cannot believe that the trial court which accepted his plea in open court would have done so if it had known or had any intimation that he was mentally defective. I think the courts of Pennsylvania had a right to assume under all the circumstances of record, which under Pennsylvania practice was before them at the time of sentencing and at the disposition of the rule to show cause in the habeas corpus proceedings, that petitioner was a mentally competent man of twenty-one years at the time he was sentenced.* It was not alleged otherwise. 14 When petitioner entered his plea of guilty to the robbery indictments on February 18, 1931, did he know he was doing so? He alleged he did not; that he thought he was pleading guilty to breaking and entering Leaders' Dry Goods Store, as the police had told him that was why he was being arrested. Aside from the fact that he pleaded guilty also to the breaking and entering of Leaders' and received a suspended sentence thereon and that he first made known his error more than eighteen years after he discovered it, the courts of Pennsylvania in seeking to determine from the petition and the answers of the warden and district attorney whether there was probable cause for discharging him, took into consideration these further facts of record: 15 The record revealed that after petitioner was arrested, he was presented before a magistrate on an information filed by a police officer which charged petitioner and two others, separately, with armed robbery of David Brinn, a grocery store owner, and attempted armed robbery of Peter Rosella, also a grocery store owner. The victims appeared at the hearing and testified, together with two other witnesses. The three defendants were charged in two indictments with the armed robbery of Brinn and attempted armed robbery of Rosella, who were in court with several other witnesses, prepared to testify. Their names were endorsed upon the indictments as witnesses against the defendants. Petitioner's plea of guilty in open court to these indictments was also so endorsed. 16 I think it an allowable judgment for the Pennsylvania courts to conclude that petitioner's allegations, made eighteen years after trial, were improbable in the light of the matters of record, that probable cause did not exist for his discharge, and that the necessity of a hearing was not indicated. The courts had a right to assume, in the absence of allegations or record to the contrary, that petitioner was a mentally competent young man of twentyone years, and that his contention, made eighteen years late, that he had pleaded guilty to crimes other than he thought he was pleading to was a bit hard to believe, especially in the absence of an allegation that he did not commit the offenses charged in the indictments to which he pleaded guilty. For aught that appears in his petition, he did commit the offenses—he alleged only that he did not plead guilty to them. To me it appears plain that the record on the whole is against petitioner. Under the practice of Pennsylvania, petitioner is entitled to the writ of habeas corpus only when the court is satisfied there is probable cause for it to issue. Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 47—48, 24 A.2d 1, 4—5. On this record it was permissible for the courts of Pennsylvania to conclude that there was no probable cause shown why the writ should issue, and that a hearing was not necessary. * Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Bute v. Illinois, 333 U.S. 640, 677, 68 S.Ct. 763, 782, 92 L.Ed. 986, and cases cited. It was pointed out in the Uveges opinion that a minority of the Court believed the Fourteenth and Sixth Amendments require both state and federal courts to afford defendants in all criminal prosecutions the assistance of counsel for their defense. 1 Now Penal Code 1939, 18 P.S. §§ 4705, 4901. * The majority states that petitioner's allegation of mental abnormality is 'supported by the penitentiary warden's answer showing that petitioner had been confined in Polk (a state institution) from August, 1918, to September, 1920, because he was an 'Imbecile." If he were an imbecile, it would seem probable that in his many encounters with the courts they would have observed such low grade of mentality. An imbecile has next to the lowest grade of intelligence among mental defectives, 'with an intelligence quotient of from 25 to 49, or a mental age for an adult equivalent to that of a child of from 3 to 7 years.' Fairchild, Dictionary of Sociology (1944), 149. Petitioner's brief in the Pennsylvania Superior Court stated that when he was examined at the penitentiary upon his admission he had an IQ of 74.

01

342 U.S. 163 72 S.Ct. 196 96 L.Ed. 181 Ex parte COGDELL et al. No. 71 Misc. Distributed Sept. 10, 1951. Decided Dec. 11, 1951. PER CURIAM. 1 Petitioners brought suit in the District Court for the District of Columbia to restrain on constitutional grounds the enforcement of certain legislation passed by Congress for the administration of the District of Columbia school system. Petitioners' request that a court of three judges be convened under Section 2282 of the Judicial Code1 was denied. Subsequently, the motion of defendant school officials to dismiss the suit for failure to state a cause of action was granted. 2 Petitioners filed a motion in this Court for leave to file a petition for a writ of mandamus directing that a court of three judges be convened to hear and determine their constitutional claims. As substantial jurisdictional questions were raised, we granted the motion and issued a rule to show cause why mandamus should not be granted. Cogdell v. McGuire, 342 U.S. 805, 72 S.Ct. 66. In addition to this mandamus action, appeals were taken by petitioners to the Court of Appeals for the District of Columbia Circuit and are now pending in that court. 3 One of the jurisdictional questions raised by this case is whether a court of three judges is required by Section 2282 in a suit to enjoin enforcement of congressional enactments affecting only the District of Columbia. The Section uses the words 'any Act of Congress.' As against petitioners' contention that all legislation passed by Congress is embraced within that language, it is urged that a proper interpretation of Section 2282 confines the phrase 'Act of Congress' to laws having general application throughout the United States. Resolution of this issue determines whether this Court has exclusive appellate jurisdiction in this class of case,2 or whether the Court of Appeals has jurisdiction. As a result, the same question is necessarily before the Court of Appeals for the District of Columbia Circuit in its consideration of petitioners' appeals now pending in that court.3 Because the question is one of general importance to judicial administration within the District of Columbia, we continue this case on our docket to await the views of the Court of Appeals. 4 Cause continued. 5 Mr. Justice DOUGLAS dissents. 1 28 U.S.C. (Supp. IV) § 2282, 28 U.S.C.A. § 2282: 'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.' 2 28 U.S.C.(Supp. IV) § 1253, 28 U.S.C.A. § 1253. 3 Stratton v. St. Louis Southwestern R. Co., 1930, 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135.

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342 U.S. 143 72 S.Ct. 181 96 L.Ed. 162 LORAIN JOURNAL CO. et al.v.UNITED STATES. No. 26. Argued Oct. 17, 1951. Decided Dec. 11, 1951. Mr. William E. Leahy, Washington, D.C., for appellants. Mr. Philip B. Perlman, Sol. Gen., Washington, D.C., for appellee. Mr. Justice BURTON delivered the opinion of the Court. 1 The principal question here is whether a newspaper publisher's conduct constituted an attempt to monopolize interstate commerce, justifying the injunction issued against it under §§ 2 and 4 of the Sherman. Antitrust Act.1 For the reasons hereafter stated, we hold that the injunction was justified. 2 This is a civil action, instituted by the United States in the District Court for the Northern District of Ohio, against The Lorain Journal Company, an Ohio corporation, publishing, daily except Sunday, in the City of Lorain, Ohio, a newspaper here called the Journal. The complaint alleged that the corporation, together with four of its officials, was engaging in a combination and conspiracy in restraint of interstate commerce in violation of § 1 of the Sherman Antitrust Act, 15 U.S.C.A. § 1, and in a combination and conspiracy to monopolize such commerce in violation of § 2 of the Act, as well as attempting to monopolize such commerce in violation of § 2.2 The District Court declined to issue a temporary injunction but, after trial, found that the parties were engaging in an attempt to monopolize as charged. Confining itself to that issue, the court enjoined them from continuing the attempt. 92 F.Supp. 794. They appealed to this Court under the Expediting Act of 1903, 32 Stat. 823, as amended, 62 Stat. 989, 15 U.S.C. (Supp. IV) § 29, and the issues before us are those arising from that finding and the terms of the injunction. 3 The appellant corporation, here called the publisher, has published the Journal in the City of Lorain since before 1932. In that year it, with others, purchased the Times-Herald which was the only competing daily paper published in that city. Later, without success, it sought a license to establish and operate a radio broadcasting station in Lorain. 92 F.Supp. 794, 796, and see Lorain Journal Co. v. Federal Communications Comm., 86 U.S.App.D.C. 102, 180 F.2d 28. 4 The court below describes the position of the Journal, since 1933, as 'a commanding and an overpowering one. It has a daily circulation in Lorain of over 13,000 copies and it reaches ninety-nine per cent of the families in the city.' 92 F.Supp. at 796. Lorain is an industrial city on Lake Erie with a population of about 52,000 occupying 11,325 dwelling units. The Sunday News, appearing only on Sundays, is the only other newspaper published there3 5 While but 165 out of the Journal's daily circulation of over 20,000 copies are sent out of Ohio, it publishes not only Lorain news but substantial quantities of state, national and international news. It pays substantial sums for such news and for feature material shipped to it from various parts of the United States and the rest of the world. It carries a substantial quantity of national advertising sent to it from throughout the United States. Shipments and payments incidental to the above matters, as well as the publisher's purchases of paper and ink, involve many transactions in interstate or foreign commerce. 6 From 1933 to 1948 the publisher enjoyed a substantial monopoly in Lorain of the mass dissemination of news and advertising, both of a local and national character. However, in 1948 the Elyria-Lorain Broadcasting Company, a corporation independent of the publisher, was licensed by the Federal Communications Commission to establish and operate in Elyria, Ohio, eight miles south of Lorain, a radio station whose call letters, WEOL, stand for Elyria, Oberlin and Lorain.4 Since then it has operated its principal studio in Elyria and a branch studio in Lorain. Lorain has about twice the population of Elyria and is by far the largest community in the station's immediate area. Oberlin is much smaller than Elyria and eight miles south of it. 7 While the station is not affiliated with a national network it disseminates both intrastate and interstate news and advertising. About 65% of its program consists of music broadcast from electrical transcriptions. These are shipped and leased to the station by out-of-state suppliers. Most of them are copyrighted and the station pays royalties to the out-of-state holders of the copyrights. From 10 to 12% of the station's program consists of news, world-wide in coverage, gathered by United Press Associations. The news is received from outside of Ohio and relayed to Elyria through Columbus or Cleveland. From April, 1949, to March, 1950, the station broadcast over 100 sponsored sports events originating in various states. 8 Substantially all of the station's income is derived from its broadcasts of advertisements of goods or services. About 16% of its income comes from national advertising under contracts with advertisers outside of Ohio. This produces a continuous flow of copy, payments and materials moving across state lines.5 9 The court below found that appellants knew that a substantial number of Journal advertisers wished to use the facilities of the radio station as well. For some of them it found that advertising in the Journal was essential for the promotion of their sales in Lorain County. It found that at all times since WEOL commenced broadcasting, appellants had executed a plan conceived to eliminate the threat of competition from the station. Under this plan the publisher refused to accept local advertisements in the Journal from any Lorain County advertiser who advertised or who appellants believed to be about to advertise over WEOL. The court found expressly that the purpose and intent of this procedure was to destroy the broadcasting company. 10 The court characterized all this as 'bold, relentless, and predatory commercial behavior.' 92 F.Supp. at 796. To carry out appellants' plan, the publisher monitored WEOL programs to determine the identity of the station's local Lorain advertisers. Those using the station's facilities had their contracts with the publisher terminated and were able to renew them only after ceasing to advertise through WEOL. The program was effective. Numerous Lorain County merchants testified that, as a result of the publisher's policy, they either ceased or abandoned their plans to advertise over WEOL. 11 'Having the plan and desire to injure the radio station, no more effective and more direct device to impede the operations and to restrain the commerce of WEOL could be found by the Journal than to cut off its bloodstream of existence—the advertising revenues which control its life or demise. 12 '* * * the very existence of WEOL is imperiled by this attack upon one of its principal sources of business and income.' Id., 92 F.Supp. at pages 798, 799. 13 The principal provisions of the injunction issued by the District Court are not set forth in the published report of the case below but are printed in an Appendix, infra, 72 S.Ct. 188, 189. Sections IV and V B of the decree, relating to notices, are stayed pending final disposition of this appeal. 14 1. The conduct complained of was an attempt to monopolize interstate commerce. It consisted of the publisher's practice of refusing to accept local Lorain advertising from parties using WEOL for local advertising. Because of the Journal's complete daily newspaper monopoly of local advertising in Lorain and its practically indispensable coverage of 99% of the Lorain families, this practice forced numerous advertisers to refrain from using WEOL for local advertising. That result not only reduced the number of customers available to WEOL in the field of local Lorain advertising and strengthened the Journal's monopoly in that field, but more significantly tended to destroy and eliminate WEOL altogether. Attainment of that sought-for elimination would automatically restore to the publisher of the Journal its substantial monopoly in Lorain of the mass dissemination of all news and advertising, interstate and national, as well as local. It would deprive not merely Lorain but Elyria and all surrounding communities of their only nearby radio station. 15 There is a suggestion that the out-of-state distribution of some copies of the Journal, coupled with the considerable interstate commerce engaged in by its publisher in the purchase of its operating supplies, provided, in any event, a sufficient basis for classifying the publisher's entire operation as one in interstate commerce. It is pointed out also that the Journal's daily publication of local news and advertising was so inseparably integrated with its publication of interstate news and national advertising that any coercion used by it in securing local advertising inevitably operated to strengthen its entire operation, including its monopoly of interstate news and national advertising. 16 It is not necessary, however, to rely on the above suggestions. The findings go further. They expressly and unequivocally state that the publisher's conduct was aimed at a larger target—the complete destruction and elimination of WEOL. The court found that the publisher, before 1948, enjoyed a substantial monopoly in Lorain of the mass dissemination not only of local news and advertising, but of news of out-of-state events transmitted to Lorain for immediate dissemination, and of advertising of out-of-state products for sale in Lorain. WEOL offered competition by radio in all these fields so that the publisher's attempt to destroy WEOL was in fact an attempt to end the invasion by radio of the Lorain newspaper's monopoly of interstate as well as local commerce.6 17 There can be little doubt today that the immediate dissemination of news gathered from throughout the nation or the world by agencies specially organized for that purpose is a part of interstate commerce. Associated Press v. United States, 326 U.S. 1, 14, 65 S.Ct. 1416, 1421, 89 L.Ed. 2013; Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953. The same is true of national advertising originating throughout the nation and offering products for sale on a national scale. The local dissemination of such news and advertising requires continuous interstate transmission of materials and payments, to say nothing of the interstate commerce involved in the sale and delivery of products sold. The decision in Blumenstock Bros. v. Curtis Pub. Co., 252 U.S. 436, 40 S.Ct. 385, 64 L.Ed. 649, related to the making of contracts for advertising rather than to the preparation and dissemination of advertising. Moreover, the view there stated, that the making of contracts by parties outside of a state for the insertion of advertising material in periodicals of nationwide circulation did not amount to interstate commerce, rested expressly on a line of cases holding 'that policies of insurance are not articles of commerce, and that the making of such contracts is a mere incident of commercial intercourse.' Id., 252 U.S. at 443, 40 S.Ct. at page 387. See Paul v. State of Virginia, 8 Wall. 168, 19 L.Ed. 357, and New York Life Ins. Co. v. Deer Lodge County, 231 U.S. 495, 34 S.Ct. 167, 58 L.Ed. 332. That line of cases no longer stands in the way. United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440. See also, North American Co. v. Securities & Exchange Comm., 327 U.S. 686, 66 S.Ct. 785, 90 L.Ed. 945; Indiana Farmer's Guide Pub. Co. V. Prairie Farmer Pub. Co., 293 U.S. 268, 55 S.Ct. 182, 79 L.Ed. 356. 18 The distribution within Lorain of the news and advertisements transmitted to Lorain in interstate commerce for the sole purpose of immediate and profitable reproduction and distribution to the reading public is an inseparable part of the flow of the interstate commerce involved. See Binderup v. Pathe Exchange, 263 U.S. 291, 309, 44 S.Ct. 96, 99, 68 L.Ed. 308; Stafford v. Wallace, 258 U.S. 495, 516, 42 S.Ct. 397, 66 L.Ed. 735; Illinois Central R. Co. v. De Fuentes, 236 U.S. 157, 163, 35 S.Ct. 275, 276, 59 L.Ed. 517; Swift & Co. v. United States, 196 U.S. 375, 398, 25 S.Ct. 276, 280, 49 L.Ed. 518. Unless protected by law, the consuming public is at the mercy of restraints and monopolizations of interstate commerce at whatever points they occur. Without the protection of competition at the outlets of the flow of interstate commerce, the protection of its earlier stages is of little worth. 19 2. The publisher's attempt to regain its monopoly of interstate commerce by forcing advertisers to boycott a competing radio station violated § 2. The findings and opinion of the trial court describe the conduct of the publisher upon which the Government relies. The surrounding circumstances are important. The most illuminating of these is the substantial monopoly which was enjoyed in Lorain by the publisher from 1933 to 1948, together with a 99% coverage of Lorain families. Those factors made the Journal an indispensable medium of advertising for many Lorain concerns. Accordingly, its publisher's refusals to print Lorain advertising for those using WEOL for like advertising often amounted to an effective prohibition of the use of WEOL for that purpose. Numerous Lorain advertisers wished to supplement their local newspaper advertising with local radio advertising but could not afford to discontinue their newspaper advertising in order to use the radio. 20 WEOL's greatest potential source of income was local Lorain advertising. Loss of that was a major threat to its existence. The court below found unequivocally that appellants' conduct amounted to an attempt by the publisher to destroy WEOL and, at the same time, to regain the publisher's pre-1948 substantial monopoly over the mass dissemination of all news and advertising. 21 To establish this violation of § 2 as charged, it was not necessary to show that success rewarded appellants' attempt to monopolize. The injunctive relief under § 4 sought to forestall that success. While appellants' attempt to monopolize did succeed insofar as it deprived WEOL of income, WEOL has not yet been eliminated. The injunction may save it. '(W)hen that intent (to monopolize) and the consequent dangerous probability exist, this statute (the Sherman Act), like many others, and like the common law in some cases, directs itself against that dangerous probability as well as against the completed result.' Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518. See also, American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575; United States v. Aluminum Co., 2 Cir., 148 F.2d 416, 431. 22 '(T)he 2d section (of the Sherman Act) seeks, if possible, to make the prohibitions of the act all the more complete and perfect by embracing all attempts to reach the end prohibited by the 1st section, that is, restraints of trade, by any attempt to monopolize, or monopolization thereof, even although the acts by which such results are attempted to be brought about or are brought about be not embraced within the general enumeration of the 1st section.' Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 61, 31 S.Ct. 502, 516, 55 L.Ed. 619.7 23 Assuming the interstate character of the commerce involved, it seems clear that if all the newspapers in a city, in order to monopolize the dissemination of news and advertising by eliminating a competing radio station, conspired to accept no advertisements from anyone who advertised over that station, they would violate §§ 1 and 2 of the Sherman Act. Cf. Fashion Originators' Guild v. Federal Trade Comm., 312 U.S. 457, 465, 61 S.Ct. 703, 706, 85 L.Ed. 949; Binderup v. Pathe Exchange, 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308; Federal Trade Comm. v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307; Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488; William Goldman Theatres v. Loew's, Inc., 3 Cir., 150 F.2d 738. It is consistent with that result to hold here that a single newspaper, already enjoying a substantial monopoly in its area, violates the 'attempt to monopolize' clause of § 2 when it uses its monopoly to destroy threatened competition.8 24 The publisher claims a right as a private business concern to select its customers and to refuse to accept advertisement from whomever it pleases. We do not dispute that general right. 'But the word 'right' is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified.' American Bank & Trust Co. v. Federal Reserve Bank, 256 U.S. 350, 358, 41 S.Ct. 499, 500, 65 L.Ed. 983. The right claimed by the publisher is neither absolute nor exempt from regulation. Its exercise a a purposeful means of monopolizing interstate commerce is prohibited by the Sherman Act. The operator of the radio station, equally with the publisher of the newspaper, is entitled to the protection of that Act. 'In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal'. (Emphasis supplied.) United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992. See Associated Press v. United States, 326 U.S. 1, 15, 65 S.Ct. 1416, 1422, 89 L.Ed. 2013; United States v. Bausch & Lomb Co., 321 U.S. 707, 721—723, 64 S.Ct. 805, 812, 813, 88 L.Ed. 1024. 25 3. The injunction does not violate any guaranteed freedom of the press. The publisher suggests that the injunction amounts to a prior restraint upon what it may publish. We find in it no restriction upon any guaranteed freedom of the press. The injunction applies to a publisher what the law applies to others. The publisher may not accept or deny advertisements in an 'attempt to monopolize * * * any part of the trade or commerce among the several States * * *.' 15 U.S.C.A. § 2; Associated Press v. United States, supra, 326 U.S. at pages 6—7, 20, 65 S.Ct. at pages 1418, 1424, 89 L.Ed. 2013; Indiana Farmer's Guide Pub. Co. v. Prairie Farmer Pub. Co., 293 U.S. 268, 55 S.Ct. 182, 79 L.Ed. 356. See also, Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 192, 66 S.Ct. 494, 497, 90 L.Ed. 614; Mabee v. White Plains Pub. Co., 327 U.S. 178, 184, 66 S.Ct. 511, 514, 90 L.Ed. 607; Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953. Injunctive relief under § 4 of the Sherman Act is as appropriate a means of enforcing the Act against newspapers as it is against others. 26 4. The decree is reasonably consistent with the requirements of the case and remains within the control of the court below.9 We have considered the objections made to the form and substance of the decree and do not find obvious error. It is suggested, for example, that the decree covers a broader scope of activities than is required by the evidence and requires unnecessary supervision of future conduct of the publisher, that notice of its terms must be published at least once a week for 25 weeks and that the publisher for five years must maintain records relating to the subject of the judgment and keep them accessible for governmental inspection. 27 While the decree should anticipate probabilities of the future, it is equally important that it do not impose unnecessary restrictions and that the procedure prescribed for supervision, giving notice, keeping records and making inspections be not unduly burdensome. 28 In the instant case the printed record contains neither the entire testimony nor all the exhibits which were before the court below. It omits also material mentioned during the trial as having been considered by the court when denying the Government's motion for a temporary injunction. Under the circumstances we are content to rely upon the trial court's retention of jurisdiction over the cause for whatever modification the decree may require in the light of the entire proceedings and of subsequent events. See Associated Press v. United States, supra, 326 U.S. at pages 22—23, 65 S.Ct. at pages 1425, 1426, 89 L.Ed. 2013; United States v. Bausch & Lomb Co., supra, 321 U.S. at pages 727—729, 64 S.Ct. at pages 815, 816, 88 L.Ed. 1024. 29 The judgment accordingly is affirmed. 30 Affirmed. 31 Mr. Justice CLARK and Mr. Justice MINTON took no part in the consideration or decision of this case. 32 APPENDIX. 33 'FINAL JUDGMENT— 34 'III 35 'Defendant The Lorain Journal Company is enjoined and restrained from: 36 'A. Refusing to accept for publication or refusing to publish any advertisement or advertisements or discriminating as to price, space, arrangement, location, commencement or period of insertion or any other terms or conditions of publication of advertisement or advertisements where the reason for such refusal or discrimination is, in whole or in part, express or implied, that the person, firm or corporation submitting the advertisement or advertisements has advertised, advertises, has proposed or proposes to advertise in or through any other advertising medium. 37 'B. Accepting for publication or publishing any advertisement or making or adhering to any contract for the publication of advertisements on or accompanied by any condition, agreement or understanding, express or implied: 38 '1. That the advertiser shall not use the advertising medium of any person, firm or corporation other than defendant The Lorain Journal Company; 39 '2. That the advertiser use only the advertising medium of defendant The Lorain Journal Company; 40 'C. Cancelling, terminating, refusing to renew or in any manner impairing any contract, agreement or understanding, involving the publication of advertisements, between the defendants, or any of them, and any person, firm or corporation for the reason, in whole or in part, that such person, firm or corporation advertised, advertises or proposes to advertise in or through any advertising medium other than the newspaper published by the corporate defendant. 41 'IV 42 'Commencing fifteen (15) days after the entry of this judgment and at least once a week for a period of twenty-five weeks thereafter the corporate defendant shall insert in the newspaper published by it a notice which shall fairly and fully apprise the readers thereof of the substantive terms of this judgment and which notice shall be placed in a conspicuous location. 43 'V 44 'Defendant The Lorain Journal Company and the individual defendants are ordered and directed to: 45 'A. Maintain for a period of five (5) years from the date of this judgment, all books and records, which shall include all correspondence, memoranda, reports and other writings, relating to the subject matter of this judgment; 46 'B. Advise in writing within ten (10) days from the date of this judgment any officers, agents, employees, and any other persons acting for, through or under defendants or any of them of the terms of this judgment and that each and every such person is subject to the provisions of this judgment. The defendants shall make readily available to such persons a copy of this judgment and shall inform them of such availability. 47 'VII 48 'Jurisdiction of this cause is retained for the purpose of enabling any of the parties to this judgment to apply to the Court at any time for such further orders and directions as may be necessary or appropriate in relation to the construction of, or carrying out of this judgment, for the amendment or modification of any of the provisions thereof, or the enforcement of compliance therewith and for the punishment of violations thereof.' 1 'Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor * * *. 'Sec. 4. The several district courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. * * *' 26 Stat. 209, 36 Stat. 1167, 15 U.S.C. §§ 2 and 4, 15 U.S.C.A. §§ 2, 4. 2 The individual defendants named in the complaint were Samuel A. Horvitz, vice president, secretary and a director of the corporation; Isadore Horvitz, president, treasurer and a director; D. P. Self, business manager; and Frank Maloy, editor. Each participated in the conduct alleged to constitute the attempt to monopolize. Maloy has died pending the appeal. 3 The Sunday News has a weekly circulation of about 3,000 copies, largely in Lorain. The Chronicle-Telegram is a newspaper published daily, except Sunday, eight miles away in Elyria. It has a daily circulation in that city of about 9,000 but none in Lorain. The Cleveland Plain Dealer, News and Press are metropolitan newspapers published daily, except Sunday, in Cleveland, 28 miles east of Lorain. They have a combined daily circulation in Lorain of about 6,000. The Cleveland Sunday Plain Dealer has a Sunday circulation in Lorain of about 11,000. The Cleveland papers carry no Lorain advertising and little Lorain news. No reference has been made in the record or in the argument here to competition from any radio station other than WEOL. 4 The license also covers WEOL—FM but the two stations are here treated as one. WEOL operates on a frequency of 930 kilocycles and WEOL—FM of 107.6 megacycles. The station outlines its primary listening or market area on the basis of a half millivolt daytime pattern and a two millivolt nighttime pattern. Its day pattern reaches an area containing all or part of 20 counties and an estimated population of over 2,250,000. Its night pattern reaches an area containing parts of nine of these counties and an estimated population of about 450,000. Lorain County, which includes the communities of Lorain, Elyria and Oberlin, contains about 120,000 people, 52,000 of whom live in the City of Lorain. 5 Other findings show that the station broadcasts advertisements of goods and services on behalf of suppliers outside of Ohio. These sometimes result in interstate orders and shipments. Orders received by its local advertisers are sometimes filled by out-of-state suppliers. The station's broadcasts inevitably reach across state lines. They are heard with some regularity by many people in southern Michigan. The application which led to WEOL's license was considered by the Federal Communications Commission in conjunction with an application for another license, sought by a Michigan station, involving possible conflicts between its coverage and that of WEOL. 6 The reference in § 2 to an attempt to monopolize 'any part of the trade or commerce among the several States' relates not merely to interstate commerce within any geographical part of the United States but also to any appreciable part of such interstate commerce. 'The provisions of sections 1 and 2 have both a geographical and distributive significance and apply to any part of the United States as distinguished from the whole and to any part of the classes of things forming a part of interstate commerce.' Indiana Farmer's Guide Pub. Co. v. Prairie Farmer Pub. Co., 293 U.S. 268, 279, 55 S.Ct. 182, 185, 79 L.Ed. 356. See also, United States v. Griffith, 334 U.S. 100, 106, 68 S.Ct. 941, 945, 92 L.Ed. 1236; United States v. Yellow Cab Co., 332 U.S. 218, 225, 67 S.Ct. 1560, 1564, 91 L.Ed. 2010; Montague & Co. v. Lowry, 193 U.S. 38, 24 S.Ct. 307, 48 L.Ed. 608. 7 'Section 2 is not restricted to conspiracies or combinations to monopolize but also makes it a crime for any person to monopolize or to attempt to monopolize any part of interstate or foreign trade or commerce. * * * It is indeed 'unreasonable, per se, to foreclose competitors from any substantial market.' * * * The anti-trust laws are as much violated by the prevention of competition as by its destruction. * * * It follows a fortiori that the use of monopoly power, however lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor, is unlawful.' United States v. Griffith, 334 U.S. 100, 106—107, 68 S.Ct. 941, 945, 92 L.Ed. 1236. 8 Appellants have sought to justify their conduct on the ground that it was part of the publisher's program for the protection of the Lorain market from outside competition. The publisher claimed to have refused advertising from Elyria or other out-of-town advertisers for the reason that such advertisers might compete with Lorain concerns. The publisher then classified WEOL as the publisher's own competitor from Elyria and asked its Lorain advertisers to refuse to employ WEOL as an advertising medium in competition with the Journal. We find no principle of law which required Lorain advertisers thus to boycott an Elyria advertising medium merely because the publisher of a Lorain advertising medium had chosen to boycott some Elyria advertisers who might compete for business in the Lorain market. Nor do we find any principle of law which permitted this publisher to dictate to prospective advertisers that they might advertise either by newspaper or by radio but that they might not use both facilities. 9 A substantial part of the decree is printed in the Appendix, infra, 72 S.Ct. 188, 189.

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342 U.S. 197 72 S.Ct. 223 96 L.Ed. 225 PILLSBURY et al.v.UNITED ENGINEERING CO. et al. No. 229. Argued Dec. 6, 1951. Decided Jan. 2, 1952. Mr. Samuel D. Slade, Wasington D.C., for petitioner. Mr. Edward R. Kay, San Francisco, Cal., for respondents. Mr. Justice MINTON delivered the opinion of the Court. 1 These four cases present the same question, namely, the construction and application of the statute of limitations provision of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, § 13(a), 33 U.S.C. § 913(a), 33 U.S.C.A. § 913(a), which provides in pertinent part as follows: 'The right to compensation for disability under this Act shall be barred unless a claim therefor is filed within one year after the injury * * *.' The claims here involved were filed from eighteen to twenty-four months from the dates the employees were injured. The Deputy Commissioner held that the claims were nevertheless timely, since they had been filed within one year after the claimants had become disabled because of their injuries. The District Court vacated the awards, 92 F.Supp. 898, and the Court of Appeals affirmed on the ground that the claims were barred because not 'filed within one year after the injury', 9 Cir., 187 F.2d 987, 990. We granted certiorari, 342 U.S. 847, 72 S.Ct. 78, because of a conflict between circuits,1 identical to the present conflict between the holdings of the Deputy Commissioner and the Court of Appeals, as to the construction to be given the limitations provision. This same question was before us in 1940 in Kobilkin v. Pillsbury, 9 Cir., 103 F.2d 667, affirmed by an equally divided Court, 309 U.S. 619, 60 S.Ct. 465, 84 L.Ed. 983. 2 Petitioners contend that the word 'injury' as used in the statute should be construed to mean 'disability.' This contention is premised on petitioners' conclusion that § 6(a) of the Act, which provides that 'No compensation shall be allowed for the first seven days of the disability,'2 ('disability' is elsewhere defined in the Act as 'incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment')3 and § 19(a), which provides that 'a claim * * * may be filed * * * at any time after the first seven days of disability following any injury,'4 operate to prevent the filing of a claim before seven days of disability have occurred. Since, as was the case of each of the claimants here, an injured employee may fail to accrue seven days' 'disability' within a year after his injury, petitioners argue that such an employee will be barred from filing his claim before his right to file it arises, if 'injury' is construed to mean 'injury.' Thus, petitioners conclude that the limitation should not be made to run until the injury becomes compensable, i.e., after seven days' 'disability.' 3 But the right to recover for disability is one thing, and the right to file a claim is another. It has long been the practice of the Deputy Commissioner to permit filing to avoid the running of the one-year limitation period here involved. A proper interpretation of §§ 6(a) and 19(a) does not prohibit the filing of a claim before the accrual of seven days' disability. Each of the claimants here was immediately aware of his injury, received medical treatment, and suffered continuous pain. We are not here dealing with a latent injury or an occupational disease. 4 We are not free, under the guise of construction, to amend the statute by inserting therein before the word 'injury' the word 'compensable' so as to make 'injury' read as if it were 'disability.' Congress knew the difference between 'disability' and 'injury' and used the words advisedly. This view is especially compelling when it is noted that the two words are used in the same sentence of the limitations provision; therein 'disability' is related to the right to compensation, while 'injury' is related to the period within which the claim must be filed. Furthermore, Congress defined both 'disability' and 'injury' in the Act,5 and its awareness of the difference is apparent throughout. Thus, we think that when Congress used 'disability' and 'injury' in the same sentence, making each word applicable to a different thing, it did not intend the carefully distinguished and separately defined words to mean the same thing. Congress meant what it said when it limited recovery to one year from date of injury, and 'injury' does not mean 'disability.' 5 We are aware that this is a humanitarian act, and that it should be construed liberally to effectuate its purposes; but that does not give us the power to rewrite the statute of limitations at will, and make what was intended to be a limitation no limitation at all. Petitioners' construction would have the effect of extending the limitation indefinitely if a claim for disability had not been filed; the provision would then be one of extension rather than limitation. While it might be desirable for the statute to provide as petitioners contend, the power to change the statute is with Congress, not us. 6 The judgments are affirmed. 7 Affirmed. 8 Mr. Justice BURTON, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS concur, dissenting. 9 The Court's computation of the period allowed for filing claims under the Longshoremen's and Harbor Workers' Compensation Act is so opposed to the beneficial purpose of the Act that it is not justified in the absence of a more express basis for it. The purpose of the Act is to provide compensation for the disability or death of employees in certain maritime employments when caused by injuries arising out of and in the course of their employment. The Court now restricts the beneficial effect of the Act by its computation of the period allowed an employee for filing his claim under the Act. The Court computes it from the date of the employee's accident rather than from that of his right to compensation. One year after his accident the employee is thus barred from claiming compensation for any disability later resulting from it unless, within that year, he has filed a claim for compensation—although during the year he has suffered no disability and has acquired no right to compensation under the Act. 10 The Act does not call for or justify such a frustrating interpretation. Section 13(a) does not say that an employee's claim must be filed within one year after the 'accident.' It says that his claim must be filed 'within one year after the injury'. 44 Stat. 1432, 33 U.S.C. § 913(a), 33 U.S.C.A. § 913(a). The Act deals only with disabling injuries and provides compensation only for the loss of earning power or death resulting from them. If it is recognized that the word 'injury' in § 13(a) means a disabling or compensable injury, a natural result flows from it. So interpreted, the section requires only that a claim for compensation must be filed within one year after a right to compensation first arises. 11 That the Act is concerned solely with compensation for disability or death appears on its face. Compensation is not payable to an employee merely because he has been in an accident in the course of his employment, nor even because he has suffered physical damage from that accident. The Act allows compensation only when the employee also has suffered a resulting loss of earning power. 12 The Act expressly limits 'injuries' to those of a certain origin by stating that they must arise out of and in the course of the employee's employment.1 It allows compensation only for resulting disability or death.2 It defines the required disability as a diminution of earning power.3 13 Section 13(a), which limits the period for filing claims under the Act, has a reasonable effect if it is read as concerned only with compensable injuries.4 On the other hand, to interpret § 13(a) as cutting off the period for filing claims one year after the date of the accident is to measure the period from a date bearing no certain relation to the time when a right to compensation arises. If an employee's injury causes him no diminution of earning power within one year after the accident, he is entitled to no compensation within that year. Yet, under the Court's interpretation of § 13(a), he will be barred also from claiming compensation for subsequently resulting disabilities unless, within that first year following his accident, he has filed a claim for compensation. The instant cases show how readily such situations may arise. 14 The legislative history of § 13(a) is consistent with the petitioners' interpretation.5 Their interpretation also has had judicial support from the appellate courts of the District of Columbia Circuit and of the Third Circuit. See Great American Indemnity Co. v. Britton, 86 U.S.App.D.C. 44, 179 F.2d 60; Potomac Electric Power Co. v. Cardillo, 71 App.D.C. 163, 107 F.2d 962; Di Giorgio Fruit Corp. v. Norton, 3 Cir., 93 F.2d 119. 15 Before the enactment of this Compensation Act by Congress, several states had interpreted 'injury' in comparable provisions of their Compensation Acts to mean 'compensable injury' rather than 'accident.' Esposito v. Marlin-Rockwell Corp., 96 Conn. 414, 114 A. 92; Guderian v. Sterling S. & R. Co., 151 La. 59, 91 So. 546; Hustus' Case, 123 Me. 428, 123 A. 514. Cf. Hornbrook-Price Co. v. Stewart, 66 Ind.App. 400, 118 N.E. 315; In re McCaskey, 65 Ind.App. 349, 117 N.E. 268. Contra: Cooke v. Holland Furnace Co., 200 Mich. 192, 166 N.W. 1013, L.R.A.1918E, 552. 16 To determine when the one-year period for filing claims begins it is necessary to determine the date when the employee's injury resulted in a diminution of his earning power. That date is not necessarily coincident with that of the first physical damage to the employee or the first reduction in the rate of wages actually paid him. In the instant cases the respective Deputy Commissioners expressly found that each claim was filed within one year after the employee's disability occurred, although none of the claims were filed within one year after the accident in question. These findings are supported by substantial evidence in the record taken as a whole. See O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483. Accordingly, I would hold each of the claims timely and would reverse the judgment of the Court of Appeals with directions to remand the cases to the District Court for dismissal of the several complaints. 1 The conflict is between the instant decision of the Court of Appeals for the Ninth Circuit and the decision of the Court of Appeals for the District of Columbia Circuit in Great American Indemnity Co. v. Britton, 86 U.S.App.D.C. 44, 179 F.2d 60. 2 44 Stat. 1426, 33 U.S.C. § 906(a), 33 U.S.C.A. § 906(a). 3 44 Stat. 1425, 33 U.S.C. § 902(10), 33 U.S.C.A. § 902(10). 4 44 Stat. 1435, 33 U.S.C. § 919(a), 33 U.S.C.A. § 919(a). 5 'Sec. 2. When used in this Act— '(2) The term 'injury' means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment. '(10) 'Disability' means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.' 44 Stat. 1424—1425, 33 U.S.C. § 902(2, 10), 33 U.S.C.A. § 902(2, 10). 1 'Sec. 2. When used in this Act— '(2) The term 'injury' means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.' 44 Stat. 1424—1425, 33 U.S.C. § 902(2), 33 U.S.C.A. § 902(2). 2 'Sec. 3. (a) Compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law. * * *' 44 Stat. 1426, 33 U.S.C. § 903(a), 33 U.S.C.A. § 903(a). 3 'Sec. 2. When used in this Act— '(10) 'Disability' means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.' 44 Stat. 1424—1425, 33 U.S.C. § 902(10), 33 U.S.C.A. § 902(10). 4 'Sec. 13. (a) The right to compensation for disability under this Act shall be barred unless a claim therefor is filed within one year after the injury, and the right to compensation for death shall be barred unless a claim therefor is filed within one year after the death, except that if payment of compensation has been made without an award on account of such injury or death a claim may be filed within one year after the date of the last payment. * * *' 44 Stat. 1432, 33 U.S.C. § 913(a), 33 U.S.C.A. § 913(a). 5 The provisions in the bill which became § 13 of the Compensation Act (S. 3170, 69th Cong., 1st Sess.; 67 Cong.Rec. 4119) were amended so as to reduce the time limit for filing claims from two years to one year and so as to substitute the word 'injury' in place of the word 'accident' as the starting point of the period. A like substitution of 'injury' for 'accident' was made in several other places and a provision for compensation for disability or death resulting from occupational disease was added. These changes emphasize the impropriety of now reading 'injury' as meaning 'accident.' In the case of an occupational disease, it is especially restrictive of an employee's rights to limit his filing period to one year from some date of early contact constituting the 'accident,' rather than from the date of his first compensable diminution of earning power due to the disease.

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342 U.S. 193 72 S.Ct. 213 96 L.Ed. 222 UNITED STATESv.KELLY et al. No. 209. Argued Nov. 30, 1951. Decided Jan. 2, 1952. Mr. Saul R. Gamer, Washington, D.C., for the United States. Mr. Henry J. Fox, Detroit, Mich., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 The Court of Claims awarded judgment to respondent, a per diem employee of the Government Printing Office, for premium pay and gratuity pay for work performed by him on certain holidays during World War II. 96 F.Supp. 611, 119 Ct.Cl. 197. Thus, respondent was held entitled to the aggregate of: 2 1. His regular compensation for the days worked; 3 2. Fifty per cent of his regular compensation as premium pay; 4 3. A full day's compensation as gratuity pay. 5 The Government sought review of that part of the judgment which awarded gratuity pay to respondent and others like him,1 and we granted certiorari, 342 U.S. 808, 72 S.Ct. 52. 6 Respondent's compensation was fixed by a wage agreement which provides in pertinent part: 7 'Holiday Rate. Employees required to work on a legal holiday or a special holiday declared by Executive Order shall be paid at the day rate plus 50 per cent for all the time actually employed in addition to their gratuity pay for the holiday as provided by law * * *.' 8 By a 1938 Resolution, the applicable law during the period in question, Congress provided that whenever per diem employees were 'relieved or prevented from working solely because of the occurrence of' holidays declared by statute or executive order, 'they shall receive the same pay for such days as for other days on which an ordinary day's work is performed.'2 The question thus presented is whether the Resolution somehow precludes the awarding of the gratuity pay which the agreement seems to grant. 9 The 1938 Resolution amended the Act of 18953 which had been consistently administered as providing for gratuity pay in addition to regular compensation if the employee worked on a holiday.4 The Government contends that Congress intended to repeal the earlier statute in this respect, and that the Resolution provided gratuity pay only for holidays on which an employee is 'relieved or prevented from working'. 10 We think this argument misses the point. The 1938 Resolution established the holidays for which gratuity pay was to be allowed. It was silent on the subject of gratuity pay for holidays on which work was performed, and we may even assume that it did not provide gratuity pay for those days. But the wage agreement is not silent on the subject. It provides that when an employee works on a holiday he is to receive regular compensation, premium pay, and gratuity pay 'for the holiday as provided by law.' The holidays 'as provided by law' are the days provided for in the 1938 Resolution. Nothing in the Resolution prohibits such a wage agreement, and, indeed, the Government concedes this fact. Merely because the Resolution itself may not award gratuity pay for holidays worked is no ground for vitiating a wage agreement which does. 11 The Government points to the 1943 Presidential Directive to federal agencies, under which all holidays except Christmas were to be considered as regular work days for the duration of the war,5 and urges that the Directive indicated a policy against the payment of gratuity pay for holidays worked. Clearly, the Presidential Directive was not intended to abrogate the wage agreement. 12 We need not stop to consider the anomalous results which would stem from the Government's position.6 Since the agreement provided for gratuity pay for holidays worked, respondent was entitled to such pay. Accordingly, the judgment below is affirmed. 13 Affirmed. 14 Mr. Justice REED, with whom The CHIEF JUSTICE and Mr. Justice BLACK join, dissenting. 15 The 1938 Resolution refers only to holidays that 'relieved or prevented' work. It requires a gratuity payment to them equal to the regular daily wage. Where work is done, as by these per diem employees, no gratuity is 'provided by law.' Under the wage agreement, however, an employee working should be paid time and a half for holiday work—a premium of fifty per cent more than the gratuity paid to an employee who does not work. 16 The Government concedes that the wage agreement entitles the employees to this premium pay for work on holidays. In our opinion respondents are not entitled to any gratuity pay, and this has been the consistent administrative interpretation of the Comptroller General. 18 Comp.Gen. 191. It is significant that the journeymen printers acquiesced in this interpretation for eight years after 1938. 17 We would reverse. 1 The parties have stipulated that the disposition of the claim of respondent Kelly will be determinative of claims filed by 613 other employees of the Printing Office. 2 52 Stat. 1246, 5 U.S.C. § 86a, 5 U.S.C.A. § 86a. 3 28 Stat. 601, 607, §§ 46, 44 U.S.C.A. § 44. 4 8 Comp.Dec. 322 (1901); 13 Comp.Dec. 40 (1906); 3 Comp.Gen. 411 (1924). 5 See Digest of Provisions of Law Fixing Pay for Employees in the Executive Branch of the Federal Government (U.S. Civil Service Commission, 1945) at page 94, note 2; H.R.Rep.No.514, 79th Cong., 1st Sess., Appendix, p. 94, note 2. 6 Thus, under the Government's view an employees who worked five hours on a holiday would receive his regular compensation plus premium pay, or seven and one-half hours' pay; if he stayed home all day, he would receive eight hours' pay.

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342 U.S. 187 72 S.Ct. 216 96 L.Ed. 205 DESPERv.STARVED ROCK FERRY CO. No. 231. Argued Dec. 6, 1951. Decided Jan. 2, 1952. Rehearing Denied Feb. 4, 1952. See 342 U.S. 934, 72 S.Ct. 374. Mr. Joseph D. Ryan, Chicago, Ill., for petitioner. Mr. Charles T. Shanner, Chicago, Ill., for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 Petitioner brought suit under the Jones Act1 to recover damages for the death of her intestate son from injuries sustained during the course of his employment by respondent. The Court of Appeals for the Seventh Circuit reversed the judgment of the District Court entered on a jury's verdict in petitioner's favor.2 This Court granted certiorari.3 2 Respondent operates a small fleet of sightseeing motorboats on the Illinois River in the vicinity of Starved Rock. The boats are navigated under Coast Guard regulations by personnel licensed by the Department of Commerce. Operations are necessarily restricted to summer months. Each fall the boats are beached and put up on blocks for the winter. In the spring each is overhauled before being launched for the season. The decedent, Thomas J. Desper, Jr., was first employed by respondent in April, 1947, to help prepare the boats for their seasonal launching. In June of the same year he acquired the necessary operator's license from the Department of Commerce and, for the remainder of that season, he was employed as a boat operator. When the season closed, he helped take the boats out of the water and block them up for the winter. His employment terminated December 19, 1947. 3 Desper was re-employed March 15, 1948. There was testimony that he was then engaged for the season and was to resume his operator's duties when the boats were back in the water. For the time being, however, he was put to cleaning, painting, and waterproofing the boats, preparing them for navigation. On the date of the accident, April 26th, the boats were still blocked up on land. Several men, Desper among them, were on board a moored barge, maintained by respondent as a machine shop, warehouse, waiting room and ticket office, engaged in painting life preservers for use on the boats. One man was working on a fire extinguisher. It exploded, killing him and Desper. 4 The Jones Act confers a cause of action on 'any seaman.'4 In opposition to petitioner's suit under the Act, respondent contended that Desper, at the time of his death, was not a 'seaman' within the meaning of the Act. Whether he was such a 'seaman' is the critical issue in the case which reached this Court. 5 Petitioner contends that the 1939 Amendment to the Federal Employers' Liability Act5 extended the scope of the word 'seaman,' as used in the Jones Act, to include those whose work 'substantially affects' navigation. The Amendment provides that: 'Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall * * * be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.' 6 Petitioner reads with that Amendment the provision of the Jones Act that statutes 'modifying or extending the common-law right or remedy in cases of personal injury to railway employees' shall apply in a seaman's action. We agree with the court below that the Amendment has no effect on the 'right or remedy' of railway employees but merely redefines for the purposes of the Federal Employers' Liability Act the scope of the word 'employee' to include certain persons not theretofore covered, because they were not directly engaged in interstate or foreign commerce. It does not extend the meaning of 'seaman' in the Jones Act to include one who was not a 'seaman' before. Seamen were given the rights of railway employees by the Jones Act, but the definition of 'seaman' was never made dependent on the meaning of 'employee' as used in legislation applicable to railroads. 7 The next question is whether, without reference to this 1939 Amendment, decedent was a 'seaman' at the time of his death. The many cases turning upon the question whether an individual was a 'seaman' demonstrate that the matter depends largely on the facts of the particular case and the activity in which he was engaged at the time of injury. The facts in this case are unique. The work in which the decedent was engaged at the time of his death quite clearly was not that usually done by a 'seaman.' The boats were not afloat and had neither captain nor crew. They were undergoing seasonal repairs, the work being of the kind that, in the case of larger vessels, would customarily be done by exclusively shore-based personnel. For a number of reasons the ships might not be launched, or he might not operate one. To be sure, he was a probable navigator in the near future, but the law does not cover probable or expectant seamen but seamen in being. It is our conclusion that while engaged in such seasonal repair work Desper was not a 'seaman' within the purview of the Jones Act. The distinct nature of the work is emphasized by the fact that there was no vessel engaged in navigation at the time of the decedent's death. All had been 'laid up for the winter'. Hawn v. American S.S. Co., 2 Cir., 107 F.2d 999, 1000; cf. Seneca Washed Gravel Corp. v. McManigal, 2 Cir., 65 F.2d 779, 780. In the words of the court in Antus v. Interocean S.S. Co., 6 Cir., 108 F.2d 185, 187, where it was held that one who had been a member of a ship's crew and was injured while preparing it for winter quarters could not maintain a Jones Act suit for his injuries: 'The fact that he had been, or expected in the future to be, a seaman does not render maritime work which was not maritime in its nature.' 8 Both petitioner and respondent filed applications with the Industrial Commission of Illinois seeking the benefits provided by the Workmen's Compensation Act of that State. S.H.A. ch. 48, § 138 et seq. The Commission rendered an award in petitioner's favor, but she states that she has taken an appeal to the appropriate state court on the ground that the Commission was 'without jurisdiction.' She does not specify why she thinks so, but we surmise that her reason is to avoid conflict with her contention that exclusive jurisdiction in the premises is vested in the federal courts by the Jones Act. We do not understand her to have taken the position that if the Jones Act is not applicable the Longshoremen's and Harbor Workers' Compensation Act6 is, and that the state Commission, therefore, is without jurisdiction in any event. The question of the applicability of the Longshoremen's Act does not appear from the record to have been raised by either party in the courts below.7 Neither has raised it in this Court. We, therefore, find it inappropriate to resolve the conflict, if any, between the Illinois Compensation Act and the Longshoremen's and Harbor Workers' Compensation Act. Cf. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086; Parker v. Motor Boat Sales, 314 U.S. 244, 62 S.Ct. 221. 86 L.Ed. 184; Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246. 9 We think the court below properly disposed of the question presented. Accordingly, its judgment is affirmed. 10 Affirmed. 11 Mr. Justice BLACK and Mr. Justice DOUGLAS dissent, and would affirm the judgment of the District Court. 12 KEROTEST MFG. CO. v. C-O-TWO FIRE EQUIPMENT CO. 1 38 Stat. 1185, 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688. 2 188 F.2d 177. 3 342 U.S. 847, 72 S.Ct. 77. 4 38 Stat. 1185, 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688, entitled 'Recovery for injury to or death of seaman' provides that: 'Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.' 5 53 Stat. 1404, 45 U.S.C. § 51, 45 U.S.C.A. § 51. 6 44 Stat. 1424 as amended, 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq. 7 The Court of Appeals, however, in phrasing the question presented in the case, advanced the proposition that if petitioner was not entitled to recovery under the Jones Act she 'is restricted to the remedy afforded by the Longshoremen's and Harbor Workers' Compensation Act * * *.' (188 F.2d at page 179.) We take that as meaning that petitioner's only federal remedy, if she cannot prevail under the Jones Act, is in the Longshoremen's Act. It was not intended to decide whether she could proceed under the state compensation act.

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342 U.S. 165 72 S.Ct. 205 96 L.Ed. 183 ROCHINv.PEOPLE OF CALIFORNIA. No. 83. Argued Oct. 16, 1951. Decided Jan. 2, 1952. Mrs. Dolly Lee Butler, A. L. Wirin, Los Angeles, Cal., for petitioner. Mr. Howard S. Goldin, Los Angeles, Cal., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Having 'some information that (the petitioner here) was selling narcotics,' three deputy sheriffs of the County of Los Angeles, on the morning of July 1, 1949, made for the two-story dwelling house in which Rochin lived with his mother, common-law wife, brothers and sisters. Finding the outside door open, they entered and then forced open the door to Rochin's room on the second floor. Inside they found petitioner sitting partly dressed on the side of the bed, upon which his wife was lying. On a 'night stand' beside the bed the deputies spied two capsules. When asked 'Whose stuff is this?' Rochin seized the capsules and put them in his mouth. A struggle ensued, in the course of which the three officers 'jumped upon him' and attempted to extract the capsules. The force they applied proved unavailing against Rochin's resistance. He was handcuffed and taken to a hospital. At the direction of one of the officers a doctor forced an emetic solution through a tube into Rochin's stomach against his will. This 'stomach pumping' produced vomiting. In the vomited matter were found two capsules which proved to contain morphine. 2 Rochin was brought to trial before a California Superior Court, sitting without a jury, on the charge of possessing 'a preparation of morphine' in violation of the California Health and Safety Code 1947, § 11500. Rochin was convicted and sentenced to sixty days' imprisonment. The chief evidence against him was the two capsules. They were admitted over petitioner's objection, although the means of obtaining them was frankly set forth in the testimony by one of the deputies, substantially as here narrated. 3 On appeal, the District Court of Appeal affirmed the conviction, despite the finding that the officer 'were guilty of unlawfully breaking into and entering defendant's room and were guilty of unlawfully assaulting and battering defendant while in the room', and 'were guilty of unlawfully assaulting, battering, torturing and falsely imprisoning the defendant at the alleged hospital.' 101 Cal.App.2d 140, 143, 225 P.2d 1, 3. One of the three judges, while finding that 'the record in this case reveals a shocking series of violations of constitutional rights', concurred only because he felt bound by decisions of his Supreme Court. These, he asserted, 'have been looked upon by law enforcement officers as an encouragement, if not an invitation, to the commission of such lawless acts.' Ibid. The Supreme Court of California denied without opinion Rochin's petition for a hearing.1 Two justice dissented from this denial, and in doing so expressed themselves thus: '* * * a conviction which rests upon evidence of incriminating objects obtained from the body of the accused by physical abuse is as invalid as a conviction which rests upon a verbal confession extracted from him by such abuse. * * * Had the evidence forced from defendant's lips consisted of an oral confession that he illegally possessed a drug * * * he would have the protection of the rule of law which excludes coerced confessions from evidence. But because the evidence forced from his lips consisted of real objects the People of this state are permitted to base a conviction upon it. (We) find no valid ground of distinction between a verbal confession extracted by physical abuse and a confession wrested from defendant's body by physical abuse.' 101 Cal.App.2d 143, 149—150, 225 P.2d 913, 917—918. 4 This Court granted certiorari, 341 U.S. 939, 71 S.Ct. 997, 95 L.Ed. 1366, because a serious question is raised as to the limitations which the Due Process Clause of the Fourteenth Amendment imposes on the conduct of criminal proceedings by the States. 5 In our federal system the administration of criminal justice is predominantly committed to the care of the States. The power to define crimes belongs to Congress only as an appropriate means of carrying into execution its limited grant of legislative powers. U.S.Const. Art. I, § 8, cl. 18. Broadly speaking, crimes in the United States are what the laws of the individual States make them, subject to the limitations of Art. I, § 10, cl. 1, in the original Constitution, prohibiting bills of attainder and ex post facto laws, and of the Thirteenth and Fourteenth Amendments. 6 These limitations, in the main, concern not restrictions upon the powers of the States to define crime, except in the restricted area where federal authority has pre-empted the field, but restrictions upon the manner in which the States may enforce their penal codes. Accordingly, in reviewing a State criminal conviction under a claim of right guaranteed by the Due Process Clause of the Fourteenth Amendment, from which is derived the most far reaching and most frequent federal basis of challenging State criminal justice, 'we must be deeply mindful of the responsibilities of the States for the enforcement of criminal laws, and exercise with due humility our merely negative function in subjecting convictions from state courts to the very narrow scrutiny which the Due Process Clause of the Fourteenth Amendment authorizes.' Malinski v. People of State of New York, 324 U.S. 401, 412, 418, 65 S.Ct. 781, 789, 89 L.Ed. 1029. Due process of law, 'itself a historical product,' Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 67 L.Ed. 107, is not to be turned into a destructive dogma against the States in the administration of their systems of criminal justice. 7 However, this Court too has its responsibility. Regard for the requirements of the Due Process Clause 'inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings (resulting in a conviction) in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.' Malinski v. People of State of New York, supra, 324 U.S. at pages 416—417, 65 S.Ct. at page 789. These standards of justice are not authoritatively formulated anywhere as though they were specifics. Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cardozo twice wrote for the Court, are 'so rooted in the traditions and conscience of our people as to be ranked as fundamental', Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, or are 'implicit in the concept of ordered liberty'. Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288.2 8 The Court's function in the observance of this settled conception of the Due Process Clause does not leave us without adequate guides in subjecting State criminal procedures to constitutional judgment. In dealing not with the machinery of government but with human rights, the absence of formal exactitude, or want of fixity of meaning, is not an unusual or even regrettable attribute of constitutional provisions. Words being symbols do not speak without a gloss. On the one hand the gloss may be the deposit of history, whereby a term gains technical content. Thus the requirements of the Sixth and Seventh Amendments for trial by jury in the federal courts have a rigid meaning. No changes or chances can alter the content of the verbal symbol of 'jury'—a body of twelve men who must reach a unanimous conclusion if the verdict is to go against the defendant.3 On the other hand, the gloss of some of the verbal symbols of the Constitution does not give them a fixed technical content. It exacts a continuing process of application. 9 When the gloss has thus not been fixed but is a function of the process of judgment, the judgment is bound to fall differently at different times and differently at the same time through different judges. Even more specific provisions, such as the guaranty of freedom of speech and the detailed protection against unreasonable searches and seizures, have inevitably evoked as sharp divisions in this Court as the least specific and most comprehensive protection of liberties, the Due Process Clause. 10 The vague contours of the Due Process Clause do not leave judges at large.4 We may not draw on our merely personal and private notions and disregard the limits that bind judges in their judicial function. Even though the concept of due process of law is not final and fixed, these limits are derived from considerations that are fused in the whole nature of or judicial process. See Cardozo, The Nature of the Judicial Process; The Growth of the Law; The Paradoxes of Legal Science. These are considerations deeply rooted in reason and in the compelling traditions of the legal profession. The Due Process Clause places upon this Court the duty of exercising a judgment, within the narrow confines of judicial power in reviewing State convictions, upon interests of society pushing in opposite directions. 11 Due process of law thus conceived is not to be derided as resort to a revival of 'natural law.'5 To believe that this judicial exercise of judgment could be avoided by freezing 'due process of law' at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges, for whom the independence safeguarded by Article III of the Constitution was designed and who are presumably guided by established standards of judicial behavior. Even cybernetics has not yet made that haughty claim. To practice the requisite detachment and to achieve sufficient objectivity no doubt demands of judges the habit of self-discipline and self-criticism, incertitude that one's own views are incontestable and alert tolerance toward views not shared. But these are precisely the presuppositions of our judicial process. They are precisely the qualities society has a right to expect from those entrusted with ultimate judicial power. 12 Restraints on our jurisdiction are self-imposed only in the sense that there is from our decisions no immediate appeal short of impeachment or constitutional amendment. But that does not make due process of law a matter of judicial caprice. The faculties of the Due Process Clause may be indefinite and vague, but the mode of their ascertainment is not self-willed. In each case 'due process of law' requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims, see Hudson County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828, on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of change in a progressive society. 13 Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents—this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation. 14 It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained. This was not true even before the series of recent cases enforced the constitutional principle that the States may not base convictions upon confessions, however much verified, obtained by coercion. These decisions are not arbitrary exceptions to the comprehensive right of States to fashion their own rules of evidence for criminal trials. They are not sports in our constitutional law but applications of a general principle. They are only instances of the general requirement that States in their prosecutions respect certain decencies of civilized conduct. Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend 'a sense of justice.' See Mr. Chief Justice Hughes, speaking for a unanimous Court in Brown v. State of Mississippi, 297 U.S. 278, 285—286, 56 S.Ct. 461, 464—465, 80 L.Ed. 682. It would be a stultification of the responsibility which the course of constitutional history has cast upon this Court to hold that in order to convict a man the police cannot extract by force what is in his mind but can extract what is in his stomach.6 15 To attempt in this case to distinguish what lawyers call 'real evidence' from verbal evidence is to ignore the reasons for excluding coerced confessions. Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community's sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society. 16 In deciding this case we do not heedlessly bring into question decisions in many States dealing with essentially different, even if related, problems. We therefore put to one side cases which have arisen in the State courts through use of modern methods and devices for discovering wrongdoers and bringing them to book. It does not fairly represent these decisions to suggest that they legalize force so brutal and so offensive to human dignity in securing evidence from a suspect as is revealed by this record. Indeed the California Supreme Court has not sanctioned this mode of securing a conviction. It merely exercised its discretion to decline a review of the conviction. All the California judges who have expressed themselves in this case have condemned the conduct in the strongest language. 17 We are not unmindful that hypothetical situations can be conjured up, standing imperceptibly from the circumstances of this case and by gradations producing practical differences despite seemingly logical extensions. But the Constitution is 'intended to preserve practical and substantial rights, not to maintain theories.' Davis v. Mills, 194 U.S. 451, 457, 24 S.Ct. 692, 695, 48 L.Ed. 1067. 18 On the facts of this case the conviction of the petitioner has been obtained by methods that offend the Due Process Clause. The judgment below must be reversed. 19 Reversed. 20 Mr. Justice MINTON took no part in the consideration or decision of this case. 21 Mr. Justice BLACK, concurring. 22 Adamson v. People of State of California, 332 U.S. 46, 68 123, 67 S.Ct. 1672, 1683, 1684—1711, 91 L.Ed. 1903, sets out reasons for my belief that state as well as federal courts and law enforcement officers must obey the Fifth Amendment's command that 'No person * * * shall be compelled in any criminal case to be a witness against himself'. I think a person is compelled to be a witness against himself not only when he is compelled to testify, but also when as here, incriminating evidence is forcibly taken from him by a contrivance of modern science. Cf. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110; Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568; Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716. California convicted this petitioner by using against him evidence obtained in this manner, and I agree with Mr. Justice DOUGLAS that the case should be reversed on this ground. 23 In the view of a majority of the Court, however, the Fifth Amendment imposes no restraint of any kind on the states. They nevertheless hold that California's use of this evidence violated the Due Process Clause of the Fourteenth Amendment. Since they hold as I do in this case, I regret my inability to accept their interpretation without protest. But I believe that faithful adherence to the specific guarantees in the Bill of Rights insures a more permanent protection of individual liberty than that which can be afforded by the nebulous standards stated by the majority. 24 What the majority hold is that the Due Process Clause empowers this Court to nullify any state law if its application 'shocks the conscience', offends 'a sense of justice' or runs counter to the 'decencies of civilized conduct.' The majority emphasize that these statements do not refer to their own consciences or to their senses of justice and decency. For we are told that 'we may not draw on our merely personal and private notions'; our judgment must be grounded on 'considerations deeply rooted in reason and in the compelling traditions of the legal profession.' We are further admonished to measure the validity of state practices, not by our reason, or by the traditions of the legal profession, but by 'the community's sense of fair play and decency'; by the 'traditions and conscience of our people'; or by 'those canons of decency and fairness which express the notions of justice of English-speaking peoples'. These canons are made necessary, it is said, because of 'interests of society pushing in opposite directions.' 25 If the Due Process Clause does vest this Court with such unlimited power to invalidate laws, I am still in doubt as to why we should consider only the notions of English-speaking peoples to determine what are immuntable and fundamental principles of justice. Moreover, one may well ask what avenues of investigation are open to discover 'canons' of conduct so universally favored that this Court should write them into the Constitution? All we are told is that the discovery must be made by an 'evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts.' 26 Some constitutional provisions are stated in absolute and unqualified language such, for illustration, as the First Amendment stating that no law shall be passed prohibiting the free exercise of religion or abridging the freedom of speech or press. Other constitutional provisions do require courts to choose between competing policies, such as the Fourth Amendment which, by its terms, necessitates a judicial decision as to what is an 'unreasonable' search or seizure. There is, however, no express constitutional language granting judicial power to invalidate every state law of every kind deemed 'unreasonable' or contrary to the Court's notion of civilized decencies; yet the constitutional philosophy used by the majority has, in the past, been used to deny a state the right to fix the price of gasoline, Williams v. Standard Oil Co. of Louisiana, 278 U.S. 235, 49 S.Ct. 115, 73 L.Ed. 287; and even the right to prevent bakers from palming off smaller for larger loaves of bread, Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813. These cases, and others,1 show the extent to which the evanescent standards of the majority's philosophy have been used to nullity state legislative programs passed to suppress evil economic practices. What paralyzing role this same philosophy will play in the future economic affairs of this country is impossible to predict. Of even graver concern, however, is the use of the philosophy to nullify the Bill of Rights. I long ago concluded that the accordion-like qualities of this philosophy must inevitably imperil all the individual liberty safeguards specifically enumerated in the Bill of Rights.2 Reflection and recent decisions3 of this Court sanctioning abridgment of the freedom of speech and press have strengthened this conclusion. 27 Mr. Justice DOUGLAS, concurring. 28 The evidence obtained from this accused's stomach would be admissible in the majority of states where the question has been raised.1 So far as the reported cases reveal, the only states which would probably exclude the evidence would be Arkansas, Iowa, Michigan, and Missouri.2 Yet the Court now says that the rule which the majority of the states have fashioned violates the 'decencies of civilized conduct.' To that I cannot agree. It is a rule formulated by responsible courts with judges as sensitive as we are to the proper standards for law administration. 29 As an original matter it might be debatable whether the provision in the Fifth Amendment that no person 'shall be compelled in any criminal case to be a witness against himself' serves the ends of justice. Not all civilized legal procedures recognize it.3 But the Choice was made by the Framers, a choice which sets a standard for legal trials in this country. The Framers made it a standard of due process for prosecutions by the Federal Government. If it is a requirement of due process for a trial in the federal courthouse, it is impossible for me to say it is not a requirement of due process for a trial in the state courthouse. That was the issue recently surveyed in Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903. The Court rejected the view that compelled testimony should be excluded and held in substance that the accused in a state trial can be forced to testify against himself. I disagree. Of course an accused can be compelled to be persent at the trial, to stand, to sit, to turn this way or that, and to try on a cap or a coat. See Holt v. United States, 218 U.S. 245, 252—253, 31 S.Ct. 2, 6, 54 L.Ed. 1021. But I think that words taken from his lips, capsules taken from his stomach, blood taken from his veins are all inadmissible provided they are taken from him without his consent. They are inadmissible because of the command of the Fifth Amendment. 30 That is an unequivocal, definite and workable rule of evidence for state and federal courts. But we cannot in fairness free the state courts from that command and yet excoriate them for flouting the 'decencies of civilized conduct' when they admit the evidence. That is to make the rule turn not on the Constitution but on the idiosyncrasies of the judges who sit here. 31 The damage of the view sponsored by the Court in this case may not be conspicuous here. But it is part of the same philosophy that produced Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, denying counsel to an accused in a state trial against the command of the Sixth Amendment, and Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, allowing evidence obtained as a result of a search and seizure that is illegal under the Fourth Amendment to be introduced in a state trial. It is part of the process of erosion of civil rights of the citizen in recent years. 1 The petition for a hearing is addressed to the discretion of the California Supreme Court and a denial has apparently the same significance as the denial of certiorari in this Court. Cal.Const. Art. VI, §§ 4, 4c; 'Rules on Appeal,' Rules 28, 29, 36 Cal.2d 24—25 (1951). See 3 Stan.L.Rev. 243—269 (1951). 2 What is here summarized was deemed by a majority of the Court, in Malinski v. People of State of New York, 324 U.S. 401, 412 and 438, 65 S.Ct. 781, 786, 799, 89 L.Ed. 1029, to be 'the controlling principles upon which this Court reviews on constitutional grounds a state court conviction for crime'. They have been applied by this Court many times, long before and since the Malinski case. 3 This is the federal jury required constitutionally although England and at least half of the States have in some civil cases juries which are composed of less than 12 or whose verdict may be less than unanimous. See County Courts Act, 1934, 24 & 25 Geo. V, c. 53, § 93; Arizona State Legislative Bureau, Legislative Briefs No. 4, Grand and Petit Juries in the United States, v—vi (Feb. 15, 1940); The Council of State Governments, The Book of the States, 1950—1951, 515. 4 Burke's observations on the method of ascertaining law by judges are pertinent: 'Your committee do not find any positive law which binds the judges of the courts in Westminster-hall publicly to give a reasoned opinion from the bench, in support of their judgment upon matters that are stated before them. But the course hath prevailed from the oldest times. It hath been so general and so uniform, that it must be considered as the law of the land.' Report of the Committee of Managers on the Causes of the Duration of Mr. Hastings' Trial, 4 Speeches of Edmund Burke (1816), 200 201. And Burke had an answer for those who argue that the liberty of the citizen cannot be adequately protected by the flexible conception of due process of law: '* * * the English jurisprudence has not any other sure foundation, nor consequently the lives and properties of the subject any sure hold, but in the maxims, rules, and principles, and juridical traditionary line of decisions * * *.' Id., at 201. 5 Morris R. Cohen, 'Jus Naturale Redivivum,' 25 Philosophical Review 761 (1916), and 'Natural Rights and Positive Law,' Reason and Nature 401—426 (1631); F. Pollock, 'The History of the Law of Nature,' Essays in the Law 31—79 (1922). 6 As to the difference between the privilege against self-crimination protected, in federal prosecutions, under the Fifth Amendment, and the limitations which the Due Process Clause of the Fourteenth Amendment imposes upon the States against the use of coerced confessions, see Brown v. State of Mississippi, supra, 297 U.S. at 285, 56 S.Ct. 464, 80 L.Ed. 682. 1 See n. 12 of dissenting opinion, Adamson v. People of State of California, supra, 332 U.S. at page 83, 67 S.Ct. at page 1692. 2 E.g., Adamson v. People of State of California, supra, and cases cited in the dissent. 3 American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 328, 95 L.Ed. 267, 395; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. 1 See People v. One 1941 Mercury Sedan, 74 Cal.App.2d 199, 168 P.2d 443, pumping of accused's stomach to recover swallowed narcotic; Rochin v. People of State of California, 101 Cal.App.2d 140, 225 P.2d 1, pumping of accused's stomach to recover swallowed narcotic; People v. Tucker, 88 Cal.App.2d 333, 198 P.2d 941, Blood test to determine intoxication; State v. Ayres, 70 Idaho 18, 211 P.2d 142, blood test to determine intoxication; Davis v. State, 189 Md. 640, 57 A.2d 289, blood typing to link accused with murder; Skidmore v. State, 59 Nev. 320, 92 P.2d 979, examination of accused for venereal disease; State v. Sturtevant, 96 N.H. 99, 70 A.2d 909, blood test to determine intoxication; State v. Alexander, 7 N.J. 585, 83 A.2d 441, blood typing to establish guilt; State v. Gatton, 60 Ohio App. 192, 20 L.Ed.2d 265, commenting on refusal to submit to blood test or urinalysis to determine intoxication; State v. Nutt, 78 Ohio App. 336, 65 N.E.2d 675, commenting on refusal to submit to urinalysis to determine intoxication; but cf. Booker v. City of Cincinnati, 1 Ohio Supp. 152, examination and urinalysis to determine intoxication; State v. Cram, 176 Or. 577, 160 P.2d 283, 164 A.L.R. 952, 967, blood test to determine intoxication; Commonwealth v. Statti, 166 Pa.Super. 577, 73 A.2d 688, blood typing linking accused to assault. 2 Bethel v. State, 178 Ark. 277, 10 S.W.2d 370, examination for venereal disease; State v. Height, 117 Iowa 650, 91 N.W. 935, 59 L.R.A. 437, examination for venereal disease; State v. Weltha, 228 Iowa 519, 292 N.W. 148, blood test to determine intoxication, limiting rules on search and seizure; but cf. State v. Benson, 230 Iowa 1168, 300 N.W. 275, comment on refusal to submit to blood test to determine intoxication; People v. Corder, 244 Mich. 274, 221 N.W. 309, examination for venereal disease; but see People v. Placido, 310 Mich. 404, 408, 17 N.W.2d 230, 232; State v. Newcomb, 220 Mo. 54, 119 S.W. 405, examination for venereal disease; State v. Matsinger, Mo., 180 S.W. 856, examination for venereal disease. 3 See Ploscowe, The Investigating Magistrate in European Criminal Procedure, 33 Mich.L.Rev. 1010 (1935).

01

342 U.S. 180 72 S.Ct. 219 96 L.Ed. 200 KEROTEST MFG. CO.v.C-O-TWO FIRE EQUIPMENT CO. No. 180. Argued Nov. 30, 1951. Decided Jan. 2, 1952. Mr. Walter J. Blenko, Pittsburgh, Pa., for petitioner. Mr. R. Morton Adams, New York City, for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 The C-O-Two Fire Equipment Company, the respondent here, owns two patents, one issued on November 23, 1948, and the other reissued on August 23, 1949, for squeezegrip values and discharge heads for portable fire extinguishers. C-O-Two, incorporated in Delaware, has offices in Newark, New Jersey. On January 17, 1950, it commenced in the District Court for the Northern District of Illinois an action against the Acme Equipment Company for 'making and causing to be made and selling and using' devices which were charged with infringing C-O-Two's patents. 2 On March 9, 1950, the petitioner Kerotest began in the District Court of Delaware this proceeding against C-O-Two for a declaration that the two patents sued on in the Illinois action are invalid and that the devices which Kerotest manufactures and supplies to Acme, the Illinois defendant, do not infringe the C-O-Two patents. Kerotest, a Pennsylvania corporation, has its offices in Pittsburgh, but was subject to service of process in Illinois. C-O-Two on March 22, 1950, filed an amendment to its complaint joining Kerotest as a defendant in the Illinois action. 3 In Delaware, C-O-Two moved for a stay of the declaratory judgment action and Kerotest sought to enjoin C-O-Two from prosecuting the Illinois suit 'either as against Kerotest alone, or generally, as (the Delaware District Court might) deem just and proper.' The District Court stayed the Delaware proceeding and refused to enjoin that in Illinois, subject to reexamination of the questions after 90 days. 85 U.S.P.Q. 185. On appeal by Kerotest, the Court of Appeals for the Third Circuit affirmed, holding that the District Court had not abused its discretion in staying the Delaware action for 90 days to permit it to get 'more information concerning the controverted status of Kerotest in the Illinois suit.' 182 F.2d 773, 775. 4 During the 90-day period the Illinois District Court allowed the joinder of Kerotest as a defendant, denying a motion by Acme to stay the Illinois proceeding pending disposition of the Delaware suit, and Kerotest made a general appearance. After 90 days both parties renewed their motions in Delaware, with Kerotest this time asking that C-O-Two be enjoined from prosecuting the Illinois suit only as to Kerotest. The District Court, a different judge sitting, enjoined C-O-Two from proceeding in the Illinois suit against Kerotest, and denied the stay of the Delaware action, largely acting on the assumption that rulings by its own and other Courts of Appeals required such a result except in 'exceptional cases,' since the Delaware action between C-O-Two and Kerotest was commenced before Kerotest was made a defendant in the Illinois suit. 92 F.Supp. 943. On appeal, the Court of Appeals for the Third Circuit reversed, saying in part: '* * * the whole of the war and all the parties to it are in the Chicago theatre and there only can it be fought to a finish as the litigations are now cast. On the other hand if the battle is waged in the Delaware arena there is a strong probability that the Chicago suit nonetheless would have to be proceeded with for Acme is not and cannot be made a party to the Delaware litigation. The Chicago suit when adjudicated will bind all the parties in both cases. Why, under the circumstances, should there be two litigations where one will suffice? We can find no adequate reason. We assume, of course, that there will be prompt action in the Chicago theatre.' 189 F.2d 31, 34; 89 U.S.P.Q. 411, 414. 5 A petition for rehearing was granted and the Court of Appeals, the seven circuit judges sitting en banc, in an expanded opinion from which two judges dissented, adhered to the views of the court of three judges. 189 F.2d 31. Inasmuch as a question of importance to the conduct of multiple litigation in the federal judicial system was involved, we granted certiorari. 342 U.S. 810, 72 S.Ct. 48. 6 The Federal Declaratory Judgments Act,1 facilitating as it does the initiation of litigation by different parties to many-sided transactions, has created complicated problems for coordinate courts.2 Wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation, does not counsel rigid mechanical solution of such problems. The factors relevant to wise administration here are equitable in nature. Necessarily, an ample degree of discretion, appropriate for disciplined and experienced judges, must be left to the lower courts. The conclusion which we are asked to upset derives from an extended and careful study of the circumstances of this litigation. Such an estimate has led the Court of Appeals twice to conclude that all interests will be best served by prosecution of the single suit in Illinois. Even if we had more doubts than we do about the analysis made by the Court of Appeals, we would not feel justified in displacing its judgment with ours.3 7 It was strongly pressed upon us that the result below may encourage owners of weak patents to avoid real tests of their patents' validity by successive suits against customers in forums inconvenient for the manufacturers, or selected because of greater hospitality to patents. Such apprehension implies a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure. It reflects an attitude against which we were warned by Mr. Justice Holmes, speaking for the whole Court, likewise in regard to a question of procedure: 'Universal distrust creates universal incompetence.' Graham v. United States, 231 U.S. 474, 480, 34 S.Ct. 148, 151, 58 L.Ed. 319. If in a rare instance a district judge abuses the discretionary authority the want of which precludes an effective, independent judiciary, there is always the opportunity for corrective review by a Court of Appeals and ultimately by this Court. 8 The manufacturer who is charged with infringing a patent cannot stretch the Federal Declaratory Judgments Act to give him a paramount right to choose the forum for trying out questions of infringement and validity. He is given an equal start in the race to the courthouse, not a headstart. If he is forehanded, subsequent suits against him by the patentee can within the trial court's discretion be enjoined pending determination of the declaratory judgment suit,4 and a judgment in his favor bars suits against his customers.5 If he is anticipated, the court's discretion is broad enough to protect him from harassment of his customers. If the patentee's suit against a customer is brought in a district where the manufacturer cannot be joined as a defendant, the manufacturer may be permitted simultaneously to prosecute a declaratory action against the patentee elsewhere. And if the manufacturer is joined as an unwilling defendant in a forum non conveniens, he has available upon an appropriate showing the relief provided by § 1404(a) of the Judicial Code. 62 Stat. 869, 937, 28 U.S.C. § 1404(a), 28 U.S.C.A. § 1404(a).6 9 The judgment below must be affirmed. 10 Affirmed. 11 The CHIEF JUSTICE and Mr. Justice BLACK dissent. 1 48 Stat. 955, 28 U.S.C. §§ 2201—2202, 28 U.S.C.A. §§ 2201 2202. 2 See Developments in the Law—Declaratory Judgments, 1941 1949, 62 Harv.L.Rev. 787, 814—815, 866 (1949). 3 Other cases in Courts of Appeals which present at all comparable situations do not show any rigid rule such as that under which the District Court felt constrained. In view of the basis of our decision it would not be profitable to discuss these cases in detail. It will suffice to indicate the concurrent controversies for which adjustment was sought. Triangle Conduit & Cable Co. v. National Electric Products Corp., 3 Cir., 125 F.2d 1008 (suit 1—declaratory action by manufacturer against patentee; suit 2—patentee sues manufacturer and customer for infringement: suit 2 enjoined as to manufacturer); Cresta Blanca Wine Co. v. Eastern Wine Corp., 2 Cir., 143 F.2d 1012 (suit 1—declaratory action by manufacturer against trademark owner; suit 2—trademark owner sues manufacturer and distributor for infringement; thereafter, distributor seeks to intervene as plaintiff in suit 1: intervention denied and suit 2 enjoined as to manufacturer); Speed Products Co. v. Tinnerman Products, Inc., 83 U.S.App.D.C. 243, 171 F.2d 727 (suit 1—A sues Commissioner of Patents in District of Columbia for registration of trademark; suit 2—suit by A in N.Y. against B alone for registration of trademark and for declaration of non-infringement of B's mark; thereafter, B joins as defendant in suit 1 and files counterclaim for infringement of B's mark: suit 2 not enjoined and suit 1 not advanced for trial); Hammett v. Warner Bros. Pictures, Inc., 2 Cir., 176 F.2d 145 (suit 1—alleged copyright owner sues broadcaster for infringement; suit 2 declaratory action by writer for broadcaster against alleged copyright owner; thereafter, writer joined as defendant in suit 1: suit 2 dismissed); Remington Prod. Corp. v. American Aerovap, Inc., 2 Cir., 1951, 192 F.2d 872 (suit 1—manufacturer and customer A bring declaratory action against patentee; suit 2—patentee sues customers A, B, C, and D for infringement; thereafter, customer B joins as plaintiff in suit 1: suit 2 enjoined). By endorsing what was in effect an exercise of discretion by the Court of Appeals below upon consideration of the specific circumstances here, we neither approve nor throw doubt upon decisions by it or other Courts of Appeals. 4 See, e.g., Crosley Corp. v. Westinghouse Electric & Mfg. Co., 3 Cir., 130 F.2d 474; Carbide & Carbon Chemicals Corp. v. United States Industrial Chemicals, Inc., 4 Cir., 140 F.2d 47; Independent Pneumatic Tool Co. v. Chicago Pneumatic Tool Co., 7 Cir., 167 F.2d 1002. 5 Kessler v. Eldred, 206 U.S. 285, 27 S.Ct. 611, 51 L.Ed. 1065. 6 It is suggested that Rule 15(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., makes the joinder of Kerotest take the date, as it were, of the original action against Acme, which of course preceded the Delaware action. The equities of the situation do not depend on this argument.

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342 U.S. 246 72 S.Ct. 240 96 L.Ed. 288 MORISSETTEv.UNITED STATES. No. 12. Argued Oct. 9—10, 1951. Decided Jan. 7, 1952. Mr. Andrew J. Transue, Flint, Mich., for petitioner. Mr. Robert W. Ginnane, Washington, D.C., for respondent. Mr. Justice JACKSON delivered the opinion of the Court. 1 This would have remained a profoundly insignificant case to all except its immediate parties had it not been so tried and submitted to the jury as to raise questions both fundamental and far-reaching in federal criminal law, for which reason we granted certiorari.1 2 On a large tract of uninhabited and untilled land in a wooded and sparsely populated area of Michigan, the Government established a practice bombing range over which the Air Force dropped simulated bombs at ground targets. These bombs consisted of a metal cylinder about forty inches long and eight inches across, filled with sand and enough black powder to cause a smoke puff by which the strike could be located. At various places about the range signs read 'Danger—Keep Out—Bombing Range.' Nevertheless, the range was known as good deer country and was extensively hunted. 3 Spent bomb casings were cleared from the targets and thrown into piles 'so that they will be out of the way.' They were not sacked or piled in any order but were dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away. 4 Morissette, in December of 1948, went hunting in this area but did not get a deer. He thought to meet expenses of the trip by salvaging some of these casings. He loaded three tons of them on his truck and took them to a nearby farm, where they were flattened by driving a tractor over them. After expending this labor and trucking them to market in Flint, he realized $84. 5 Morissette, by occupation, is a fruit stand operator in summer and a trucker and scrap iron collector in winter. An honorably discharged veteran of World War II, he enjoys a good name among his neighbors and has had no blemish on his record more disreputable than a conviction for reckless driving. 6 The loading, crushing and transporting of these casings were all in broad daylight, in full view of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing but thought the property was abandoned, unwanted and considered of no value to the Government. He was indicted, however, on the charge that he 'did unlawfully, wilfully and knowingly steal and convert' property of the United States of the value of $84, in violation of 18 U.S.C. § 641, 18 U.S.C.A. § 641, which provides that 'whoever embezzles, steals, purloins, or knowingly converts' government property is punishable by fine and imprisonment.2 Morissette was convicted and sentenced to imprisonment for two months or to pay a fine of $200. The Court of Appeals affirmed, one judge dissenting.3 7 On his trial, Morissette, as he had at all times told investigating officers, testified that from appearances he believed the casings were cast-off and abandoned, that he did not intend to steal the property, and took it with no wrongful or criminal intent. The trial court, however, was unimpressed, and ruled: '(H)e took it because he thought it was abandoned and he knew he was on government property. * * * That is no defense. * * * I don't think anybody can have the defense they thought the property was abandoned on another man's piece of property.' The court stated: 'I will not permit you to show this man thought it was abandoned. * * * I hold in this case that there is no question of abandoned property.' The court refused to submit or to allow counsel to argue to the jury whether Morissette acted with innocent intention. It charged: 'And I instruct you that if you believe the testimony of the government in this case, he intended to take it. * * * He had no right to take this property. * * * (A)nd it is no defense to claim that it was abandoned, because it was on private property. * * * And I instruct you to this effect: That if this young man took this property (and he says he did), without any permission (he says he did), that was on the property of the United States Government (he says it was), that it was of the value of one cent or more (and evidently it was), that he is guilty of the offense charged here. If you believe the government, he is guilty. * * * The question on intent is whether or not he intended to take the property. He says he did. Therefore, if you believe either side, he is guilty.' Petitioner's counsel contended, 'But the taking must have been with a felonious intent.' The court ruled, however: 'That is presumed by his own act.' 8 The Court of Appeals suggested that 'greater restraint in expression should have been exercised', but affirmed the conviction because, 'As we have interpreted the statute, appellant was guilty of its violation beyond a shadow of doubt, as evidenced even by his own admissions.' Its construction of the statute is that it creates several separate and distinct offenses, one being knowing conversion of government property. The court ruled that this particular offense requires no element of criminal intent. This conclusion was thought to be required by the failure of Congress to express such a requisite and this Court's decisions in United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619, and United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604. I. 9 In those cases this Court did construe mere omission from a criminal enactment of any mention of criminal intent as dispensing with it. If they be deemed precedents for principles of construction generally applicable to federal penal statutes, they authorize this conviction. Indeed, such adoption of the literal reasoning announced in those cases would do this and more—it would sweep out of all federal crimes, except when expressly preserved, the ancient requirement of a culpable state of mind. We think a re sume of their historical background is convincing that an effect has been ascribed to them more comprehensive than was contemplated and one inconsistent with our philosophy of criminal law. 10 The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.4 A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory 'But I didn't mean to,' and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.5 Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a 'vicious will.'6 Common-law commentators of the Nineteenth Century early pronounced the same principle,7 although a few exceptions not relevant to our present problem came to be recognized.8 11 Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil.9 As the state codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law.10 The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as 'felonious intent,' 'criminal intent,' 'malice aforethought,' 'guilty knowledge,' 'fraudulent intent,' 'wilfulness,' 'scienter,' to denote guilty knowledge, or 'mens rea,' to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes. 12 However, the Balint and Behrman offenses belong to a category of another character, with very different antecedents and origins. The crimes there involved depend on no mental element but consist only of forbidden acts or omissions. This, while not expressed by the Court, is made clear from examination of a century-old but accelerating tendency, discernible both here11 and in England,12 to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare. 13 While many of these duties are sanctioned by a more strict civil liability,13 lawmakers, whether wisely or not,14 have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called 'public welfare offenses.' These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does not grave damage to an offender's reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving. 14 The pilot of the movement in this country appears to be a holding that a tavernkeeper could be convicted for selling liquor to an habitual drunkard even if he did not know the buyer to be such. Barnes v. State, 1849, 19 Conn. 398. Later came Massachusetts holdings that convictions for selling adulterated milk in violation of statutes forbidding such sales require no allegation or proof that defendant knew of the adulteration. Commonwealth v. Farren, 1864, 9 Allen 489; Commonwealth v. Nichols, 1865, 10 Allen 199; Commonwealth v. Waite, 1865, 11 Allen 264. Departures from the common-law tradition, mainly of these general classes, were reviewed and their rationale appraised by Chief Justice Cooley, as follows: 'I agree that as a rule there can be no crime without a criminal intent, but this is not by any means a universal rule. * * * Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them, the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.' People v. Roby, 1884, 52 Mich. 577, 579, 18 N.W. 365, 366. 15 After the turn of the Century, a new use for crimes without intent appeared when New York enacted numerous and novel regulations of tenement houses, sanctioned by money penalties. Landlords contended that a guilty intent was essential to establish a violation. Judge Cardozo wrote the answer: 'The defendant asks us to test the meaning of this statute by standards applicable to statutes that govern infamous crimes. The analogy, however, is deceptive. The element of conscious wrongdoing, the guilty mind accompanying the guilty act, is associated with the concept of crimes that are punished as infamous. * * * Even there it is not an invariable element. * * * But in the prosecution of minor offenses there is a wider range of practice and of power. Prosecutions for petty penalties have always constituted in our law a class by themselves. * * * That is true, though the prosecution is criminal in form.' Tenement House Department of City of New York v. McDevitt, 1915, 215 N.Y. 160, 168, 109 N.E. 88, 90. 16 Soon, employers advanced the same contention as to violations of regulations prescribed by a new labor law. Judge Cardozo, again for the court, pointed out, as a basis for penalizing violations whether intentional or not, that they were punishable only by fine 'moderate in amount', but cautiously added that in sustaining the power so to fine unintended violations 'we are not to be understood as sustaining to a like length the power to imprison. We leave that question open.' People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 1918, 225 N.Y. 25, 32—33, 121 N.E. 474, 476, 477. 17 Thus, for diverse but reconcilable reasons, state courts converged on the same result, discontinuing inquiry into intent in a limited class of offenses against such statutory regulations. 18 Before long, similar questions growing out of federal legislation reached this Court. Its judgments were in harmony with this consensus of state judicial opinion, the existence of which may have led the Court to overlook the need for full exposition of their rationale in the context of federal law. In overruling a contention that there can be no conviction on an indictment which makes no charge of criminal intent but alleges only making of a sale of a narcotic forbidden by law, Chief Justice Taft, wrote: 'While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it * * *, there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. * * *' United States v. Balint, supra, 258 U.S. 251—252, 42 S.Ct. 302. 19 He referred, however, to 'regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se,' and drew his citation of supporting authority chiefly from state court cases dealing with regulatory offenses. Id., 258 U.S. at page 252, 42 S.Ct. at page 302. 20 On the same day, the Court determined that an offense under the Narcotic Drug Act does not require intent, saying, 'If the offense be a statutory one, and intent or knowledge is not made an element of it, the indictment need not charge such knowledge or intent.' United States v. Behrman, supra, 258 U.S. at page 288, 42 S.Ct. at page 304. 21 Of course, the purpose of every statute would be 'obstructed' by requiring a finding of intent, if we assume that it had a purpose to convict without it. Therefore, the obstruction rationale does not help us to learn the purpose of the omission by Congress. And since no federal crime can exist except by force of statute, the reasoning of the Behrman opinion, if read literally, would work far-reaching changes in the composition of all federal crimes. Had such a result been contemplated, it could hardly have escaped mention by a Court which numbered among its members one especially interested and informed concerning the importance of intent in common-law crimes.15 This might be the more expected since the Behrman holding did call forth his dissent, in which Mr. Justice McReynolds and Mr. Justice Brandeis joined, omitting any such mention. 22 It was not until recently that the Court took occasion more explicitly to relate abandonment of the ingredient of intent, not merely with considerations of expediency in obtaining convictions, nor with the malum prohibitum classification of the crime, but with the peculiar nature and quality of the offense. We referred to '* * * a now familiar type of legislation whereby penalties serve as effective means of regulation', and continued, 'such legislation dispenses with the conventional requirement for criminal conduct awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.' But we warned: 'Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting.' United States v. Dotter-weich, 320 U.S. 277, 280—281, 284, 64 S.Ct. 134, 136, 88 L.Ed. 48.16 23 Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static. The conclusion reached in the Balint and Behrman cases has our approval and adherence for the circumstances to which it was there applied. A quite different question here is whether we will expand the doctrine of crimes without intent to include those charged here. 24 Stealing, larceny, and its variants and equivalents, were among the earliest offenses known to the law that existed before legislation;17 they are invasions of rights of property which stir a sense of insecurity in the whole community and arouse public demand for retribution, the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony, which, says Maitland, is '* * * as bad a word as you can give to man or thing.'18 State courts of last resort, on whom fall the heaviest burden of interpreting criminal law in this country, have consistently retained the requirement of intent in larceny-type offenses.19 If any state has deviated, the exception has neither been called to our attention nor disclosed by our research. 25 Congress, therefore, omitted any express prescription of criminal intent from the enactment before us in the light of an unbroken course of judicial decision in all constituent states of the Union holding intent inherent in this class of offense, even when not expressed in a statute. Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense new to general law, for whose definition the courts have no guidance except the Act. Because the offenses before this Court in the Balint and Behrman cases were of this latter class, we cannot accept them as authority for eliminating intent from offenses incorporated from the common law. Nor do exhaustive studies of state court cases disclose any well-considered decisions applying the doctrine of crime without intent to such enacted common-law offenses,20 although a few deviations are notable as illustrative of the danger inherent in the Government's contentions here.21 26 The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution's path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative. 27 The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly22 admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute. And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them. 28 We hold that mere omission from § 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced. II. 29 It is suggested, however, that the history and purposes of § 641 imply something more affirmative as to elimination of intent from at least one of the offenses charged under it in this case. The argument does not contest that criminal intent is retained in the offenses of embezzlement, stealing and purloining, as incorporated into this section. But it is urged that Congress joined with those, as a new, separate and distinct offense, knowingly to convert government property, under circumstances which imply that it is an offense in which the mental element of intent is not necessary. 30 Congress has been alert to what often is a decisive function of some mental element in crime. It has seen fit to prescribe that an evil state of mind, described variously in one or more such terms as 'intentional,' 'wilful,' 'knowing,' 'fraudulent' or 'malicious,' will make criminal an otherwise indifferent act,23 or increase the degree of the offense or its punishment.24 Also, it has at times required a specific intent or purpose which will require some specialized knowledge or design for some evil beyond the common-law intent to do injury.25 The law under some circumstances recognizes good faith or blameless intent as a defense, partial defense, or as an element to be considered in mitigation of punishment.26 And treason—the one crime deemed grave enough for definition in our Constitution itself—requires not only the duly witnessed overt act of aid and comfort to the enemy but also the mental element of disloyalty or adherence to the enemy.27 In view of the care that has been bestowed upon the subject, it is significant that we have not found, nor has our attention been directed to, any instance in which Congress has expressly eliminated the mental element from a crime taken over from the common law. 31 The section with which we are here concerned was enacted in 1948, as a consolidation of four former sections of Title 18, as adopted in 1940, which in turn were derived from two sections of the Revised Statutes. The pertinent legislative and judicial history of these antecedents, as well as of § 641, is footnoted.28 We find no other purpose in the 1948 re-enactment than to collect from scattered sources crimes so kindred as to belong in one category. Not one of these had been interpreted to be a crime without intention and no purpose to differentiate between them in the matter of intent is disclosed. No inference that some were and some were not crimes of intention can be drawn from any difference in classification or punishment. Not one fits the congressional classification of the petty offense; each is, at its least, a misdemeanor, and if the amount involved is one hundred or more dollars each is a felony.29 If one crime without intent has been smuggled into a section whose dominant offenses do require intent, it was put in ill-fitting and compromising company. The Government apparently did not believe that conversion stood so alone when it drew this one-count indictmemt to charge that Morissette 'did unlawfully, wilfully and knowingly steal and convert to his own use.'30 32 Congress, by the language of this section, has been at pains to incriminate only 'knowing' conversions. But, at common law, there are unwitting acts which constitute conversions. In the civil tort, except for recovery of exemplary damages, the defendant's knowledge, intent, motive, mistake, and good faith are generally irrelevant.31 If one takes property which turns out to belong to another, his innocent intent will not shield him from making restitution or indemnity, for his well-meaning may not be allowed to deprive another of his own. 33 Had the statute applied to conversions without qualification, it would have made crimes of all unwitting, inadvertent and unintended conversions. Knowledge, of course, is not identical with intent and may not have been the most apt words of limitation. But knowing conversion requires more than knowledge that defendant was taking the property into his possession. He must have had knowledge of the facts, though not necessarily the law, that made the taking a conversion. In the case before us, whether the mental element that Congress required be spoken of as knowledge or as intent, would not seem to alter its bearing on guilt. for it is not apparent how Morissette could have knowingly or intentionally converted property that he did not know could be converted, as would be the case if it was in fact abandoned or if he truly believed it to be abandoned and unwanted property. 34 It is said, and at first blush the claim has plausibility, that, if we construe the statute to require a mental element as part of criminal conversion, it becomes a meaningless duplication of the offense of stealing, and that conversion can be given meaning only by interpreting it to disregard itention. But here again a broader view of the evolution of these crimes throws a different light on the legislation. 35 It is not surprising if there is considerable overlapping in the embezzlement, stealing, purloining and knowing conversion grouped in this statute. What has concerned codifiers of the larceny-type offense is that gaps or crevices have separated particular crimes of this general class and guilty men have escaped through the breaches. The books contain a surfeit of cases drawing fine distinctions between slightly different circumstances under which one may obtain wrongful advantages from another's property. The codifiers wanted to reach all such instances. Probably every stealing is a conversion, but certainly not every knowing conversion is a stealing. 'To steal means to take away from one in lawful possession without right with the intention to keep wrongfully.' (Italics added.) Irving Trust Co. v. Leff, 253 N.Y. 359, 364, 171 N.E. 569, 571. Conversion, however, may be consummated without any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one's custody for limited use. Money rightfully taken into one's custody may be converted without any intent to keep or embezzle it merely by commingling it with the custodian's own, if he was under a duty to keep it separate and intact. It is not difficult to think of intentional and knowing abuses and unauthorized uses of government property that might be knowing conversions but which could not be reached as embezzlement, stealing or purloining. Knowing conversion adds significantly to the range of protection of government property without interpreting it to punish unwitting conversions. 36 The purpose which we here attribute to Congress parallels that of codifiers of common law in England32 and in the States33 and demonstrates that the serious problem in drafting such a statute is to avoid gaps and loopholes between offenses. It is significant that the English and State codifiers have tried to cover the same type of conduct that we are suggesting as the purpose of Congress here, without, however, departing from the common-law tradition that these are crimes of intendment. 37 We find no grounds for inferring any affirmative instruction from Congress to eliminate intent from any offense with which this defendant was charged. III. 38 As we read the record, this case was tried on the theory that even if criminal intent were essential its presence (a) should be decided by the court (b) as a presumption of law, apparently conclusive, (c) predicated upon the isolated act of taking rather than upon all of the circumstances. In each of these respects we believe the trial court was in error. 39 Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury. State court authorities cited to the effect that intent is relevant in larcenous crimes are equally emphatic and uniform that it is a jury issue. The settled practice and its reason are well stated by Judge Andrews in People v. Flack, 125 N.Y. 324, 334, 26 N.E. 267, 270, 11 L.R.A. 807: 'It is alike the general rule of law, and the dictate of natural justice, that to constitute guilt there must be not only a wrongful act, but a criminal intention. Under our system, (unless in exceptional cases,) both must be found by the jury to justify a conviction for crime. However clear the proof may be, or however inconstrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to the jury. Jurors may be perverse, the ends of justice may be defeated by unrighteous verdicts; but so long as the functions of the judge and jury are distinct, the one responding to the law, the other to the facts, neither can invade the province of the other without destroying the significance of trial by court and jury. * * *' 40 It follows that the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a 'presumption' a conclusion which a court thinks probable from given facts. The Supreme Court of Florida, for example, in a larceny case, from selected circumstances which are present in this case, has declared a presumption of exactly opposite effect from the one announced by the trial court here: '* * * But where the taking is open and there is no subsequent attempt to conceal the property, and no denial, but an avowal, of the taking, a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a conviction is authorized. * * *' Kemp v. State, 146 Fla. 101, 104, 200 So. 368, 369. 41 We think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect.34 In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime. Such incriminating presumptions are not to be improvised by the judiciary. Even congressional power to facilitate convictions by substituting presumptions for proof is not without limit. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519. 42 Moreover, the conclusion supplied by presumption in this instance was one of intent to steal the casings, and it was based on the mere fact that defendant took them. The court thought the only question was, 'Did he intend to take the property?' That the removal of them was a conscious and intentional act was admitted. But that isolated fact is not an adequate basis on which the jury should find the criminal intent to steal or knowingly convert, that is, wrongfully to deprive another of possession of property. Whether that intent existed, the jury must determine, nor only from the act of taking, but from that together with defendant's testimony and all of the surrounding circumstances. 43 Of course, the jury, considering Morissette's awareness that these casings were on government property, his failure to seek any permission for their removal and his self-interest as a witness, might have disbelieved his profession of innocent intent and concluded that his assertion of a belief that the casings were abandoned was an afterthought. Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges. They might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk, and that lack of any conscious deprivation of property or intentional injury was indicated by Morissette's good character, the openness of the taking, crushing and transporting of the casings, and the candor with which it was all admitted. They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter. 44 Reversed. 45 Mr. Justice DOUGLAS concurs in the result. 46 Mr. Justice MINTON took no part in the consideration or decision of this case. 1 341 U.S. 925, 71 S.Ct. 796, 95 L.Ed. 1356. 2 18 U.S.C. § 641, 18 U.S.C.A. § 641, so far as pertinent, reads: 'Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; 'Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.' 3 Morissette v. United States, 6 Cir., 187 F.2d 427, 431. 4 For a brief history and philosophy of this concept in Biblical, Greek, Roman, Continental and Anglo-American law see Radin, Intent, Criminal, 8 Encyc.Soc.Sci. 126. For more extensive treatment of the development in English Law, see 2 Pollock and Maitland, History of English Law, 448—511. 'Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.' Pound, Introduction to Sayre, Cases on Criminal Law (1927). 5 In Williams v. People of State of New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 1084, 93 L.Ed. 1337, we observed that 'Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.' We also there referred to '* * * a prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.' Id., 337 U.S. at page 247, 69 S.Ct. at page 1083. Such ends would seem illusory if there were no mental element in crime. 6 4 Bl.Comm. 21. 7 Examples of these texts and their alterations in successive editions in consequence of evolution in the law of 'public welfare offenses,' as hereinafter recited, are traced in Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 66. 8 Exceptions came to include sex offenses, such as rape, in which the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached age of consent. Absence of intent also involves such considerations as lack of understanding because of insanity, subnormal mentality, or infancy, lack of volition due to some actual compulsion, or that inferred from doctrines of coverture. Most extensive inroads upon the requirement of intention, however, are offenses of negligence, such as involuntary manslaughter or criminal negligence and the whole range of crimes arising from omission of duty. Cf. Commonwealth v. Welansky, 1944, 316 Mass. 383, 55 N.E.2d 902. 9 Holmes, The Common Law, considers intent in the chapter on The Criminal Law, and earlier makes the pithy observation: 'Even a dog distinguishes between being stumbled over and being kicked.' P. 3. Radin, Intent, Criminal, 8 Encyc.Soc.Sci. 126, 127, points out that in American law 'mens rea is not so readily constituted from any wrongful act' as elsewhere. 10 In the Balint case, Chief Justice Taft recognized this but rather overstated it by making no allowance for exceptions such as those mentioned in n. 8. 11 This trend and its causes, advantages and dangers have been considered by Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55; Hall, Prolegomena to a Science of Criminal Law, 89 U. of Pa.L.Rev. 549; Hall, Interrelations of Criminal Law and Torts, 43 Col.L.Rev. 753, 967. 12 The changes in English law are illustrated by Nineteenth Century English cases. In 1814, it was held that one could not be convicted of selling impure foods unless he was aware of the impurities. Rex v. Dixon, 3 M. & S. 11 (K.B.1814). However, thirty-two years later, in an action to enforce a statutory forfeiture for possession of adulterated tobacco, the respondent was held liable even though he had no knowledge of, or cause to suspect, the adulteration. Countering respondent's arguments, Baron Parke said, 'It is very true that in particular instances it may produce mischief, because an innocent man may suffer from his want of care in not examining the tobacco he has received, and not taking a warranty; but the public inconvenience would be much greater, if in every case the officers were obliged to prove knowledge. They would be very seldom able to do so.' Regina v. Woodrow, 15 M. & W. 404, 417 (Exch. 1846). Convenience of the prosecution thus emerged as a rationale. In 1866, a quarry owner was held liable for the nuisance caused by his workmen dumping refuse into a river, in spite of his plea that he played no active part in the management of the business and knew nothing about the dumping involved. His knowledge or lack of it was deemed irrelevant. Regina v. Stephens, L.R. 1 Q.B. 702 (1866). Bishop, referring to this decision, says, 'The doctrine of this English case may almost be deemed new in the criminal law. * * * And, properly limited, the doctrine is eminently worthy to be followed hereafter.' 1 Bishop, New Criminal Law (8th ed. 1892) § 1076. After these decisions, statutes prohibiting the sale of impure or adulterated food were enacted. Adulteration of Food Act (35 & 36 Vict. c. 74, § 2 (1872)); Sale of Food and Drugs Act of 1875 (38 & 39 Vict. c. 63). A conviction under the former was sustained in a holding that no guilty knowledge or intent need be proved in a prosecution for the sale of adulterated butter, Fizpatrick v. Kelly, L.R. 8 Q.B. 337 (1873), and in Betts v. Armstead, L.R. 20 Q.B.D. 771 (1888), involving the latter statute, it was held that there was no need for a showing that the accused had knowledge that his product did not measure up to the statutory specifications. 13 The development of strict criminal liability regardless of intent has been roughly paralleled by an evolution of a strict civil liability for consequences regardless of fault in certain relationships, as shown by Workmen's Compensation Acts, and by vicarious liability for fault of others as evidenced by various Motor Vehicle Acts. 14 Consequences of a general abolition of intent as an ingredient of serious crimes have aroused the concern of responsible and disinterested students of penology. Of course, they would not justify judicial disregard of a clear command to that effect from Congress, but they do admonish us to caution in assuming that Congress, without clear expression, intends in any instance to do so. Radin, Intent, Criminal, 8 Encye.Soc.Sci. 126, 130, says, '* * * as long as in popular belief intention and the freedom of the will are taken as axiomatic, no penal system that negates the mental element can find general acceptance. It is vital to retain public support of methods of dealing with crime.' Again, 'The question of criminal intent will probably always have something of an academic taint. Nevertheless, the fact remains that the determination of the boundary between intent and negligence spells freedom or condemnation for thousands of individuals. The watchfulness of the jurist justifies itself at present in its insistence upon the examination of the mind of each individual offender.' Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 56, says: 'To inflict substantial punishment upon one who is morally entirely innocent, who caused injury through reasonable mistake or pure accident, would so outrage the feelings of the community as to nullify its own enforcement.' Hall, Prolegomena to a Science of Criminal Law, 89 U. of Pa.L.Rev. 549, 569, appears somewhat less disturbed by the trend, if properly limited, but, as to so-called public welfare crimes, suggests that 'There is no reason to continue to believe that the present mode of dealing with these offenses is the best solution obtainable, or that we must be content with this sacrifice of established principles. The raising of a presumption of knowledge might be an improvement.' (Italics added.) In Felton v. United States, 96 U.S. 699, 703, 24 L.Ed. 875, the Court said, 'But the law at the same time is not so unreasonable as to attach culpability, and consequently to impose punishment, where there is no intention to evade its provisions * * *.' 15 Holmes, The Common Law. 16 For the place of the mental element in offenses against the revenues, see Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418; United States v. Scharton, 285 U.S. 518, 52 S.Ct. 416, 76 L.Ed. 917. 17 2 Russell on Crime (10th ed., Turner, 1950) 1037. 18 2 Pollock & Maitland, History of English Law, 465. 19 Examples of decision in diverse jurisdictions may be culled from any digest. Most nearly in point are Johnson v. State, 36 Tex. 375, holding that to take a horse running at large on the range is not larceny in the absence of an intent to deprive an owner of his property; Jordan v. State, 107 Tex.Cr.R. 414, 296 S.W. 585, that, if at the time of taking parts from an automobile the accused believed that the car had been abandoned by its owner, he should be acquitted; Fetkenhauer v. State, 112 Wis. 491, 88 N.W. 294, that an honest, although mistaken, belief by defendant that he had permission to take property should be considered by the jury; and Devine v. People, 20 Hun, N.Y., 98, holding that a claim that an act was only a practical joke must be weighed against an admitted taking of property. Others of like purport are Farzley v. State, 231 Ala. 60, 163 So. 394; Nickerson v. State, 22 Ala.App. 640, 119 So. 243; People v. Williams, 73 Cal.App.2d 154, 166 P.2d 63; Schiff v. People, 111 Colo. 333, 141 P.2d 892; Kemp v. State, 146 Fla. 101, 200 So. 368; Perdew v. Commonwealth, 260 Ky. 638, 86 S.W.2d 534, holding that appropriation by a finder of lost property cannot constitute larceny in the absence of intent; People v. Shaunding, 268 Mich. 218, 255 N.W. 770; People v. Will, 289 N.Y. 413, 46 N.E.2d 498; Van Vechten v. American Eagle Fire Ins. Co., 239 N.Y. 303, 146 N.E. 432, 38 A.L.R. 1115; Thomas v. Kessler, 334 Pa. 7, 5 A.2d 187; Barnes v. State, 145 Tex.Cr.R. 131, 166 S.W.2d 708; Sandel v. State, 131 Tex.Cr.R. 132, 97 S.W.2d 225; Weeks v. State, 114 Tex.Cr.R. 406, 25 S.W.2d 855; Heskew v. State, 18 Tex.App. 275; Page v. Commonwealth, 148 Va. 733, 138 S.E. 510, holding reversible error to exclude evidence having a tendency to throw light on the question of the bona fides of one accused of larceny; Butts v. Commonwealth, 145 Va. 800, 133 S.E. 764; State v. Levy, 113 Vt. 459, 35 A.2d 853, holding that the taking of another's property in good faith by inadvertence or mistake does not constitute larceny. 20 Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 73, 84, cites and classifies a large number of cases and concludes that they fall roughly into subdivisions of (1) illegal sales of intoxicating liquor, (2) sales of impure or adulterated food or drugs, (3) sales of misbranded articles, (4) violations of antinarcotic Acts, (5) criminal nuisances, (6) violations of traffic regulations, (7) violations of motor-vehicle laws, and (8) violations of general police regulations, passed for the safety, health or well-being of the community. 21 Sayre points out that in criminal syndicalism or sedition cases, where the pressure to convict is strong, it has been accomplished by dispensing with the element of intent, in some instances by analogy with the public welfare offense. Examples are State v. Hennessy, 114 Wash. 351, 195 P. 211; People v. Ruthenberg, 229 Mich. 315, 201 N.W. 358; State v. Kahn, 56 Mont. 108, 182 P. 107; State v. Smith, 57 Mont. 563, 190 P. 107. Compare People v. McClennegen, 195 Cal. 445, 234 P. 91. This although intent is of the very essence of offenses based on disloyalty. Cf. Cramer v. United States, 325 U.S. 1, 65 S.Ct. 918, 89 L.Ed. 1441; Haupt v. United States, 330 U.S. 631, 67 S.Ct. 874, 91 L.Ed. 1145, where innocence of intention will defeat a charge even of treason. 22 United States v. Hudson and Goodwin, 7 Cranch 32, 3 L.Ed. 259; United States v. Gooding, 12 Wheat. 460, 6 L.Ed. 693. 23 18 U.S.C. § 81, 18 U.S.C.A. § 81, Arson: '* * * willfully and maliciously * * *'; 18 U.S.C. § 113, 18 U.S.C.A. § 113, Assault: '(a) * * * with intent to commit murder or rape * * *. (b) * * * with intent to commit any felony, except murder or rape * * *'; 18 U.S.C. § 152, 18 U.S.C.A. § 152, Bank-ruptcy concealment of assets, false oaths and claims, bribery: '* * * knowingly and fraudulently * * *'; 18 U.S.C. § 201, 18 U.S.C.A. § 201, Bribery and Graft: '* * * with intent to influence * * *'; 18 U.S.C. § 471, 18 U.S.C.A. § 471, Counterfeiting and Forgery: '* * * with intent to defraud * * *'; 18 U.S.C. § 594, 18 U.S.C.A. § 594, Intimidation of voters: '* * * for the purpose of * * *'; 18 U.S.C. § 1072, 18 U.S.C.A. § 1072, Concealing escaped prisoner: '* * * willfully * * *'; 61 Stat. 151, 29 U.S.C. § 162, 29 U.S.C.A. § 162, Interference with a member of the National Labor Relations Board or an agent of the Board in his performance of his duties: '* * * willfully * * *'; 52 Stat. 1069, 29 U.S.C. § 216(a), 29 U.S.C.A. § 216(a), Violations of provisions of Fair Labor Standards Act: '* * * willfully * * *'; 37 Stat. 251, 21 U.S.C. § 23, 21 U.S.C.A. § 23, Packing or selling misbranded barrels of apples: '* * * knowingly * * *.' 24 18 U.S.C. § 1112, 18 U.S.C.A. § 1112, Manslaughter, '* * * the unlawful killing of a human being without malice', if voluntary, carries a maximum penalty of imprisonment not to exceed ten years. If the killing is 'with malice aforethought', the crime is murder, 18 U.S.C. § 1111, 18 U.S.C.A. § 1111, and, if of the first degree, punishable by death or life imprisonment, or, if of the second degree, punishable by imprisonment for any term of years or life. 25 18 U.S.C. § 242, 18 U.S.C.A. § 242; Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. 26 I.R.C. §§ 145(a), 145(b), 53 Stat. 62, as amended, 26 U.S.C. §§ 145(a), 145(b), 26 U.S.C.A. § 145(a, b), as construed in Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418; 52 Stat. 1069, 29 U.S.C. § 216(a), 29 U.S.C.A. § 216(a), stating the criminal sanctions for violations of the Fair Labor Standards Act, provides that: 'No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this subsection.' N.Y. Penal Law, McK.Consol.Laws, c. 40, § 1306, provides that, 'Upon an indictment for larceny it is a sufficient defense that the property was appropriated openly and avowedly, under a claim of title preferred in good faith, even though such claim is untenable.' 27 U.S.Const. Art. III, § 3, cl. 1. This provision was to prevent incrimination of mere mental operations such as 'compassing' the death of the King. See Cramer v. United States, 325 U.S. 1, 65 S.Ct. 918, 89 L.Ed. 1441. To hold that a mental element is necessary to a crime is, of course, not to say that it is all that is necessary. 28 The Reviser's Note to 18 U.S.C. § 641 states that it is derived from 18 U.S.C. (1940 ed.) §§ 82, 87, 100, and 101 which, in turn, are from Rev.Stat. §§ 5438 and 5439. We shall consider only the 1940 code sections and their interpretations. 18 U.S.C. (1940 ed.) § 82 reads: 'Whoever shall take and carry away or take for his use, or for the use of another, with intent to steal or purloin * * * any property of the United States * * * shall be punished as follows * * *.' In United States v. Anderson, D.C., 45 F.Supp. 943, a prosecution for conspiracy to violate that section, District Judge Yankwich said: 'It has been before the courts in very few cases. But such courts as have had cases under it, including our own Ninth Circuit Court of Appeals, have held that the object of the section is to introduce the crime of larceny into the Federal Criminal Code. 'In Frach v. Mass, 9 Cir., 1939, 106 F.2d 820, 821, we find these words: 'Larceny of property of the United States is made a crime by 18 U.S.C.A. § 82.' 'This means of course, that in interpreting the statute, we may apply the principles governing the common law crime of larceny, as interpreted by the courts of various states.' 45 F.Supp. at page 945. United States v. Trinder, D.C., 1 F.Supp. 659, was a prosecution of a group of boys, under § 82, for 'stealing' a government automobile. They had taken it for a joy ride without permission, fully intending to return it when they were through. Their plans went awry when the auto came to grief against a telephone pole. In dismissing the complaint, the District Judge said: 'Upon principle and authority there was no stealing but merely trespass; secret borrowing. At common law and likewise by the federal statute (18 U.S.C.A. § 82) adopting common-law terms, stealing in general imports larceny; that is, felonious taking and intent to permanently deprive the owner of his property.' 1 F.Supp. at page 660. 18 U.S.C. (1940 ed.) § 87, entitled 'Embezzling arms and stores', provides: 'Whoever shall steal, embezzle, or knowingly apply to his own use, or unlawfully sell, convey, or dispose of, any ordnance, arms, ammunition, clothing, subsistence, stores, money, or other property of the United States, furnished or to be used for the military or naval service, shall be punished as prescribed in sections 80 and 82 to 86 of this title.' No cases appear to have been decided relating to the element of intent in the acts proscribed in that section. 18 U.S.C. (1940 ed.) § 100, 'Embezzling public moneys or other property', states that: 'Whoever shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be fined not more than $5,000, or imprisoned not more than five years, or both.' The only noted case of consequence is Crabb v. Zerbst, 5 Cir., 99 F.2d 562, to which the dissent below referred at some length. The appellant there was convicted of feloniously taking and carrying away certain personal property of the United States in violation of § 46 of the Criminal Code, 18 U.S.C. (1940 ed.) § 99, and had been sentenced to seven years' imprisonment. He argued that the five-year limitation of sentence in 18 U.S.C. (1940 ed.) § 100 for stealing property of the United States reduced the ten-year limitation in § 99 for feloniously taking and carrying away property of the United States to five years also. The Court of Appeals rejected his argument, holding that the crime of 'stealing' in § 100 was separate and distinct from the offense specified in § 99, on the ground that § 100 was a broadening of the common-law crime of larceny to foreclose any avenue by which one might, in the process of pleading, escape conviction for one offense by proving that he had committed another only a hair's breadth different. In the course of its opinion, it advanced the following pertinent observations: 'That felonious taking and carrying away of property which may be the subject of the offense constitutes the common law offense of larceny cannot be disputed. * * * However, it is doubtful if at common law any fixed definition or formula (as to the meaning of 'larceny') was not strained in its application to some of the cases clearly constituting the offense. Modern criminal codes treat the offense in various ways. Some define the offense by following the old cases and are merely declaratory of the common law, while others have broadened the offense to include offenses previously known as embezzlement, false pretenses, and even felonious breaches of trust. 'As pointed out above, the modern tendency is to broaden the offense of larceny, by whatever name it may be called, to include such related offenses as would tend to complicate prosecutions under strict pleading and practice. In some of these statutes the offense is denominated 'theft' or 'stealing.' No statute offers a clearer example of compromise between the common law and the modern code than the two sections here involved. Section 46 (18 U.S.C. § 99 (1940 ed.)) deals with robbery and larceny, the description of the latter being taken from the common law. Section 47 (18 U.S.C. § 100 (1940 ed.)) denounces the related offenses which might be included with those described in section 46 under a code practice seeking to avoid the pitfalls of technical pleading. In it the offense of embezzlement is included by name, without definition. Then to cover such cases as may shade into larceny, as well as any new situation which may arise under changing modern conditions and not envisioned under the common law, it adds the words steal or purloin. * * * Stealing, having no common law definition to restrict its meaning as an offense, is commonly used to denote any dishonest transaction whereby one person obtains that which rightfully belongs to another, and deprives the owner of the rights and benefits of ownership, but may or may not involve the element of stealth usually attributed to the word purloin. * * * Thus, in any case involving larceny as defined by the common law, section 46 (18 U.S.C. § 99 (1940 ed.)) would apply. Where the offense is embezzlement, or its nature so doubtful as to fall between larceny and embezzlement, it may be prosecuted under section 47 (18 U.S.C. § 100 (1940 ed.)).' 99 F.2d at 564—565. The reference in Crabb v. Zerbst to 18 U.S.C. (1940 ed.) § 99, the robbery and larceny statute then operative, suggests examination of its successor in today's code. For purpose of clarification, that section states that: 'Whoever shall rob another of any kind or description of personal property belonging to the United States, or shall feloniously take and carry away the same, shall be fined not more than $5,000, or imprisoned not more than ten years, or both.' The Reviser's Note to 18 U.S.C. § 641, 18 U.S.C.A. § 641, makes no mention of it as a successor to that section. The present robbery statute is 18 U.S.C. § 2112, 18 U.S.C.A. § 2112, 'Personal property of United States', providing that: 'Whoever robs another of any kind or description of personal property belonging to the United States, shall be imprisoned not more than fifteen years.' The Reviser's Note to that section recites that it is derived from § 99 of the 1940 Code, and 'That portion of said section 99 relating to felonious taking was omitted as covered by section 641 of this title', which makes it clear that, notwithstanding the absence of any reference to 18 U.S.C. (1940 ed.) § 99 in the Note to 18 U.S.C. § 641, 18 U.S.C.A. § 641, the crime of larceny by a felonious taking and carrying away has been transported directly from the former into the latter. 18 U.S.C. (1940 ed.) § 101 is the forerunner of that part of present § 641 dealing with receiving stolen property, and has no application to the problem at hand. The history of § 641 demonstrates that it was to apply to acts which constituted larceny or embezzlement at common law and also acts which shade into those crimes but which, most strictly considered, might not be found to fit their fixed definitions. It is also pertinent to note that it renders one subject to its penalty who 'knowingly converts to his use' property of the United States. The word 'converts' does not appear in any of its predecessors. 18 U.S.C. (1940 ed.) § 82 is applicable to 'Whoever shall take and carry away or take for his use, or for the use of another, with intent to steal or purloin * * * any property of the United States * * * shall be punished as follows * * *.' 18 U.S.C. (1940 ed.) § 87 uses the words 'knowingly apply to his own use'. Neither 18 U.S.C. (1940 ed.) §§ 99, 100, nor 101 has any words resembling 'knowingly converts to his own use.' The 1948 Revision was not intended to crete new crimes but to recodify those then in existence. We find no suggestion that a guilty intent was not a part of each crime now embodied in § 641. 29 18 U.S.C. §§ 1, 641, 18 U.S.C.A. §§ 1, 641. 30 Had the indictment been limited to a charge in the words of the statute, it would have been defective if, in the light of the common law, the statute itself failed to set forth expressly, fully, and clearly all elements necessary to constitute the offense. United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135. 31 Harker v. Dement, 1850, 9 Gill, Md., 7, 52 Am.Dec. 670; Baltimore & O.R. Co. v. O'Donnell, 1892, 49 Ohio St. 489, 32 N.E. 476, 21 L.R.A. 117. The rationale underlying such cases is that when one clearly assumes the rights of ownership over property of another no proof of intent to convert is necessary. It has even been held that one may be held liable in conversion even though he reasonably supposed that he had a legal right to the property in question. Row v. Home Sav. Bank, 1940, 306 Mass. 522, 29 N.E.2d 552, 131 A.L.R. 160. For other cases in the same vein, see those collected in 53 Am.Jur. 852—854. These authorities leave no doubt that Morissette could be held liable for a civil conversion for his taking of the property here involved, and the instructions to the jury might have been appropriate in such a civil action. This assumes of course that actual abandonment was not proven, a matter which petitioner should be allowed to prove if he can. 32 The Larceny Act of 1916, 6 & 7 Geo. V, c. 50, an Act 'to consolidate and simplify the Law relating to Larceny triable on Indictment and Kindred Offences' provides: '1. For the purposes of this Act— '(1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof: 'Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner. * * *' For the growth and development of the crime of larceny in England, see 2 Russell on Crime (10th ed., Turner, 1950), 1037 1222, from which the material above was taken. 33 N.Y.Penal Code, § 1290, defines larceny as follows: 'A person who, with the intent to deprive or defraud another of the use and benefit of property or to appropriate the same to the use of the taker, or of any other person other than the true owner, wrongfully takes, obtains or withholds, by any means whatever, from the possession of the true owner or of any other person any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind, steals such property and is guilty of larceny.' The same section provides further that it shall be no defense to a prosecution that: '2. The accused in the first instance obtained possession of, or title to, such property lawfully, provided he subsequently wrongfully withheld or appropriated such property to his own use or the use of any person not entitled to the use and benefit of such property * * *.' The Historical Note to that section discloses that it represents an attempt to abolish the distinctions between kinds of larcenies. Laws 1942, c. 732, § 1, provided: 'It is hereby declared as the public policy of the state that the best interests of the people of the state will be served, and confusion and injustice avoided, by eliminating and abolishing the distinctions which have hitherto differentiated one sort of theft from another, each of which, under section twelve hundred and ninety of the penal law, was denominated a larceny, to wit: common law larceny by asportation, common law larceny by trick and device, obtaining property by false pretenses, and embezzlement.' 34 Cf. Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 47 Harv.L.Rev. 59; Morgan, Some Observations Concerning Presumption, 44 Harv.L.Rev. 906.

01

342 U.S. 277 72 S.Ct. 275 96 L.Ed. 308 UNITED STATESv.HALSETH. No. 91. Argued Nov. 28, 1951. Decided Jan. 7, 1952. Mr. John R. Benney, Washington, D.C., for the United States. Mr. Horace J. Donnelly, Jr., Washington, D.C., for appellee. Mr. Justice MINTON delivered the opinion of the Court. 1 Appellee was indicted on eight counts in the District Court for the Eastern District of Wisconsin for violation of § 213 of the Criminal Code of 1909, 35 Stat. 1129—1130, 18 U.S.C. § 336.* The District Court granted appellee's motion to dismiss the indictment, and the United States appealed directly to this Court, pursuant to 18 U.S.C. (Supp. IV) § 3731, 18 U.S.C.A. § 3731. The pertinent provisions of the statute upon which the indictment was based were as follows: 'No letter, package, postal card, or circular concerning any lottery * * * or similar scheme offering prizes dependent in whole or in part upon lot or chance * * * shall be deposited in or carried by the mails * * *. Whoever shall knowingly deposit * * * anything to be * * * delivered by mail in violation of * * * this section * * * shall be fined * * * or imprisoned * * *.' 2 The first count of the indictment charged that: 'Perry Halseth, knowingly, wilfully and unlawfully did cause to be delivered by mail to Miss Lucia Brown a circular letter concerning a lottery or scheme offering a prize dependent upon lot or chance * * *.' 3 The other counts were identical except as to the name of the addressee and the point of delivery. 4 For the purpose of the motion to dismiss, the parties stipulated as to particularity that a letter, a circular, an order blank, and a punchboard were sent to the addressee by mail. The letter subtly indicated how the addressee might obtain a radio free by selling the chances on the punchboard and how certain lucky numbers would reward the purchaser with prizes of a radio and three Rolpoint ball pens.1 The punchboard contained an illustration of merchandise to be won. No merchandise was sent with the mailing. If the addressee desired to put the scheme into operation, the merchandise could be obtained by sending the full amount in cash, or by a down payment of $2.00 with the order and the balance payable on delivery, or by a C.O.D. shipment. The punchboard also informed the addressee that merchandise could be 'purchased' from appellee at any time. 5 The District Court held that even if these stipulated facts had been alleged in the indictment and accepted as true for the purpose of the motion to dismiss, still the indictment did not state an offense because the mailing did not concern an existing lottery or scheme to obtain prizes by lot or chance. The question therefore is whether the mailing of gambling paraphernalia that may be used to set up a lottery or similar scheme is a violation of the statute. 6 The statute on which the indictment is based was passed in 1909, and since that time no reported case has been found construing it. However, in cases construing analogous lottery statutes, old in our law, the courts have held that they apply only to existing lotteries or schemes.2 7 In France v. United States, 164 U.S. 676, 17 S.Ct. 219, 41 L.Ed. 595, a lottery had been conducted in Kentucky. After the drawing was over, persons who were interested in the outcome and who had taken money to the operators of the lottery for chances purchased were returning across the state line to Ohio; they had in their possession the official print of the lucky number that had been drawn, slips that corresponded with the lucky number, known as 'hit slips,' and money which was to be given to winners. They were arrested and charged with a conspiracy to violate a statute which prohibited the carrying across state lines of 'any paper, certificate, or instrument purporting to be or represent a ticket, chance, share, or interest in or dependent upon the event of a lottery * * *.' Act March 2, 1895, 28 Stat. 963. In holding that the defendants had not violated the statute this Court said: 8 'The lottery had already been drawn. The papers carried by the messengers were not then dependent upon the event of any lottery. * * * 9 'There is no contradiction in the testimony, and the government admits and assumes that the drawing in regard to which these papers contained any information had already taken place in Kentucky, and it was the result of that drawing only that was on its way in the hands of messengers to the agents of the lottery in Cincinnati. 10 'The statute does not cover the transaction, and, however reprehensible the acts of the plaintiffs in error may be thought to be, we cannot sustain a conviction on that ground. Although the objection is a narrow one, yet, the statute being highly penal, rendering its violator liable to fine and imprisonment, we are compelled to construe it strictly. Full effect is given to the statute by holding that the language applies only to that kind of a paper which depends upon a lottery the drawing of which has not yet taken place, and which paper purports to be a certificate, etc., as described in the act. If it be urged that the act of these plaintiffs in error is within the reason of the statute, the answer must be that it is so far outside of its language that to include it within the statute would be to legislate, and not to construe legislation.' 164 U.S. at pages 682—683, 17 S.Ct. at page 221. 11 In the instant case, too, the statute is penal and must be strictly construed. We hold that the words 'concerning any lottery' mean an existing, going lottery or gambling scheme. The mailing does not purport to concern any existing lottery, and neither the addressee nor the appellee was engaged in the operation of a lottery or similar scheme. The lottery or scheme would come into existence only if the addressee put the paraphernalia into operation. The mere mailing of information concerning such schemes and how they may be set up or the mailing of paraphernalia for such schemes does not violate the statute in question. In fact, the Post Office Department itself did not regard the statute as covering the activity complained of here. Beginning in 1915, the Department has sought to amend the statute without success.3 12 Congress has had before it many times the question of what gambling devices and paraphernalia it would exclude from the mails and interstate commerce,4 and only recently has it passed an act concerning the subject. Act of January 2, 1951, P.L. No. 906, 64 Stat. 1134, 15 U.S.C.A. § 1171. If punchboards are to be added to the category of devices to be excluded, it is for Congress to make the addition. 13 The judgment is affirmed. 14 Affirmed. 15 Mr. Justice DOUGLAS and Mr. Justice BURTON dissent. * 1948 Revised Criminal Code, 18 U.S.C.A. § 1301. 1 Actually, four counts were based on material relating to radios and pens and four to cameras and a telescope; but since the nature of the mailings was the same, we consider only the material relating to radios and pens. 2 France v. United States, 164 U.S. 676, 17 S.Ct. 219, 41 L.Ed. 595; Francis v. United States, 188 U.S. 375, 23 S.Ct. 334, 47 L.Ed. 508; United States v. Irvine, D.C., 156 F. 376. 3 Report of the Postmaster General 72 (1915). 4 Hearings of April, May and June 1950, House Committee on Interstate and Foreign Commerce on S.3357 and H.R. 6736, 81st Cong., 2d Sess., 259—260.

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342 U.S. 225 72 S.Ct. 260 96 L.Ed. 252 UNITED STATESv.SMITH. UNITED STATES v. DAILEY. Nos. 20 and 162. Argued Dec. 4, 1951. Decided Jan. 7, 1952. Mr. Robert S. Erdahl, Washington, D.C., for the United States. Mr. Bernard Margolius, Washington, D.C., for Arnold L. Dailey. No appearance for Louise Virginia Smith. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Appellee Smith (No. 20) was indicted October 2, 1950, for having on or about July 1, 1947, forged the name of the payee on a check drawn on the Treasurer of the United States. 2 Appellee Dailey (No. 162) was indicted September 29, 1950, for having on or about March 14, 1947, knowingly made a false statement in connection with his application for Farmers Home Administration services. 3 In each case the crime charged was committed more than three years before the indictment was returned and therefore would be barred by the three-year statute of limitations, 18 U.S.C. § 3282, 18 U.S.C.A. § 3282, unless that statute has been tolled. The prosecution argued that it was tolled by the Wartime Suspension of Limitations Act of 1942, as amended, 18 U.S.C. (1946 ed.) § 590a. The District Court in each case disagreed with the prosecution and dismissed the indictment. The cases are here on appeal. 18 U.S.C. § 3731, 18 U.S.C.A. § 3731. 4 The Act derives from the Act of August 24, 1942, which suspended the running of the statute of limitations applicable to offenses involving frauds against the United States until June 30, 1945, or until such earlier time as the Congress by concurrent resolution, or the President, may designate. 56 Stat. 747. That Act was amended by the Contract Settlement Act of 1944, 58 Stat. 649, 667, to provide among other things that the term of suspension of the statute of limitations was 'until three years after the termination of hostilities in the present war as proclaimed by the President or by a concurrent resolution of the two Houses of Congress.' Offenses in connection with the negotiation, award, termination, or settlement of contracts were included by that Act. And offenses in connection with the care, handling, and disposal of property were added by the Surplus Property Act of 1944. 58 Stat. 765, 781. At the time of the alleged offenses the Act read in relevant part:1 'The running of any existing statute of limitations applicable to any offense against the laws of the United States (1) involving defrauding or attempts to defraud the United States or any agency thereof whether by conspiracy or not, and in any manner, * * * shall be suspended until three years after the termination of hostilities in the present war as proclaimed by the President or by a concurrent resolution of the two Houses of Congress.' 5 The hostilities of World War II were declared terminated December 31, 1946, by Presidential Proclamation No. 2714, 61 Stat. (Pt. 2) 1048—1049; 12 Fed.Reg. 1, 50 U.S.C.A.Appendix, § 601 note. It is therefore clear that if the designated offenses were committed within the three-year period prior to the date of the Act or between the date of the Act and December 31, 1946, the statute of limitations would be suspended. The question is whether the Act is likewise applicable to offenses committed after December 31, 1946, the date of the proclamation of termination of hostilities. 6 The argument of the prosecution is that the language of the Act makes no distinction between offenses committed before and offenses committed after the termination of hostilities, the emphasis of the Act being on the suspension of the 'running' of the statutes of limitations. It is contended that the extension of the Act to offenses prescribed by the Contract Settlement Act and the Surplus Property Act—offenses of the type likely to be committed during the post-hostilities period—is persuasive indication that Congress made the Act operative after, as well as before, the termination of hostilities. 7 We take the contrary view. We conclude that the Suspension Act is inapplicable to crimes committed after the date of termination of hostilities. The words of the Act are that the 'running' of the statute of limitations 'shall be suspended until three years after the termination of hostilities'. The connotation is that offenses occurring prior to the termination of hostilities shall not be allowed legally to be forgotten in the rush of the war activities. That is the gist of the Reports.2 The fear was that the law-enforcement officers would be so preoccupied with prosecution of the war effort that the crimes of fraud perpetrated against the United States would be forgotten until it was too late. The implicit premise of the legislation is that the frenzied activities, existing at the time the Act became law, would continue until hostilities terminated and that until then the public interest should not be disadvantaged. The prosecution would have us change the function of the date of termination of hostilities. If would be used to provide various periods of suspension for crimes committed within the three-year period commencing with the termination of hostilities. That seems to us to be an alteration in the statutory scheme, one that destroys its symmetry. Since under our construction the three-year period prescribed by the Suspension Act starts to run at the date of termination of hostilities, all crimes to which the Act is applicable are treated uniformity. The time when law-enforcement officers were busy with war activities is not counted; when the pressure was off, the time began to run again. No reasons of policy are suggested for straining the language of the Act to suspend the rumming of the statute beyond the emergency which made the suspension seem advisable. 8 Affirmed. 9 Mr. Justice CLARK, concurring. 10 I join in the opinion and judgment of the Court. Soon after the beginning of World War II, Congress realized that it would be impossible for the Department of Justice currently to investigate and prosecute the large number of offenses arising out of the war effort. Therefore Congress suspended the running of the statute of limitations as to frauds against the Government, first until June 30, 1945, and subsequently until three years after the termination of hostilities. It is clear that Congress intended to give the Department more time to apprehend, investigate, and prosecute offenses occurring 'under the stress of present-day events' of the war 'even after the termination of the present conflict.' H.R.Rep.No. 2051, 77th Cong., 2d Sess. 2; S.Rep.No. 1544, 77th Cong., 2d Sess. 2; see United States v. Gottfried, 2 Cir., 1948, 165 F.2d 360. V-E Day was May 8, 1945, and V-J Day was September 2, 1945. Immediately after V-J Day all war procurement stopped, contracts were canceled, and renegotiation was speeded up. The President did not proclaim the cessation of hostilities until December 31, 1946, sixteen months after the fighting ceased. During this period, the pressing problems of demobilization and reconversion—problems likely to cause the continued perpetration of frauds on the Government—were for the most part brought to an end. 11 The present cases had nothing to do with the war or the reconversion thereafter, Smith being charged with forgery of a Government check for $90 dated June 30, 1947, and Dailey being indicted for having made a false statement on March 14, 1947, to the Department of Agriculture as to value of his farm, cows, poultry, etc., in connection with an application for the services of the Farmers Home Administration. Both of the offenses occurred long after the fighting war was over and after 'the intensive preoccupation of both participants and witnesses with the war effort'* had ceased, if ever those persons were so employed. 12 These cases clearly illustrate that the suspension statute was not intended to and should not embrace offenses committed subsequent to December 31, 1946. It applies only to offenses committed between August 25, 1939, and December 31, 1946. For those offenses which occurred between the date of the 1942 Act and the cessation of hostilities, Congress' intention was to give the Department of Justice six years from the latter date to investigate and prosecute. For those offenses which occurred before the date of the 1942 Act, Congress' intention was to give the Department three years after the cessation of hostilities plus whatever portion of the regular three-year limitations' period had not yet run when the 1942 Act was passed. 13 Mr. Justice MINTON, with whom Mr. Justice REED, Mr. Justice JACKSON and Mr. Justice BURTON join, dissenting. 14 As I read the statute, Congress intended the statute of limitations to be suspended until three years after the termination of hostilities, which would be December 31, 1949. Until that time, there was to be no statute of limitations. On that date the suspension was lifted, and the statute began to run again. The Court's construction that the suspension was lifted at the termination of hostilities gives no effect to the three-year period. I would reverse the judgments in these cases. 1 The Act of June 25, 1948, 62 Stat. 683, which revised the Criminal Code, repealed the Suspension Act (id., 862, 868) and, with a few changes in wording, re-enacted it. Id., 828, 18 U.S.C. § 3287, 18 U.S.C.A. § 3287. Section 21 of the 1948 Act, 18 U.S.C.A. following § 5037, preserved all 'rights or liabilities' under the repealed sections. We assume, without deciding, that this reservation has no effect on the running of a statute of limitations. See United States v. Obermeier, 2 Cir., 186 F.2d 243, 251. The Reviser added at the beginning of the section a new clause reading 'when the United States is at war' to make the section 'permanent instead of temporary legislation, and to obviate the necessity of reenacting such legislation in the future.' See Reviser's note following 18 U.S.C. (Supp. II) § 3287, 18 U.S.C.A. § 3287. 2 S.Rep.No.1544, 77th Cong., 2d Sess., pp. 1—2: 'The purpose of the proposed legislation is to suspend any existing statutes of limitations applicable to offenses involving the defrauding or attempts to defraud the United States or any agency thereof, for the period of the present war. Contracting for the United States is done through its various agencies, including the departments and independent establishments and Government-owned and Government-controlled corporations, and frauds against all of these agencies are intended to be embraced by the bill. 'During normal times the present 3-year statute of limitations may afford the Department of Justice sufficient time to investigate, discover, and gather evidence to prosecute frauds against the Government. The United States, however, is engaged in a gigantic war program. Huge sums of money are being expended for materials and equipment in order to carry on the war successfully. Although steps have been taken to prevent and to prosecute frauds against the Government, it is recognized that in the varied dealings opportunities will no doubt be presented for unscrupulous persons to defraud the Government or some agency. These frauds may be difficult to discover as is often true of this type of offense and many of them may not come to light for some time to come. The law-enforcement branch of the Government is also busily engaged in its many duties, including the enforcement of the espionage, sabotage, and other laws. 'Your committee is of the opinion that action should be taken at this time to extend the limitations statute so that frauds may be discovered and punished even after the termination of the present conflict, and to insure that the limitations statute will not operate, under stress of the present-day events, for the protection of those who would defraud or attempt to defraud the United States.' The history of the 1944 Amendment supports the same view. S.Rep.No.1057, 78th Cong., 2d Sess., p. 14, states: 'As was provided in the Contract Settlement Act of 1944, the statute of limitations with respect to offense against the laws of the United States arising in connection with activities under this act was suspended until 3 years after termination of hostilities in the present war. This provision has been necessitated by the magnitude of the operations involved under this act, and the intensive preoccupation of both participants and witnesses with the war effort. It is clear that the bulk of the offenses cognizable under this statute will not be apprehended or investigated until the end of the war and will then require considerable time before they advance to the stage of litigation.' * S.Rep.No.1057, 78th Cong., 2d Sess. 14.

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