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348 U.S. 375 75 S.Ct. 392 99 L.Ed. 428 Philip Andrew WITMER, Petitioner,v.UNITED STATES of America. No. 164. Argued Feb. 1, 1955. Decided March 14, 1955. Mr.Hayden C. Covington, Brooklyn, N.Y., for petitioner. Mr. Julius F. Bishop, of Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 Petitioner, a member of the Jehovah's Witnesses, stands convicted of failing to submit to induction into the armed forces in violation of § 12(a) of the Universal Military Training and Service Act, 62 Stat. 622, 50 U.S.C.Appendix, § 462(a), 50 U.S.C.A.Appendix, § 462(a). On trial, he centered his defense on the contention that he was wrongfully denied exemption as a conscientious objector. This Term, we have been asked to review a relatively large number of criminal prosecutions involving various procedural and substantive problems encountered in effectuating the congressional policy of exempting conscientious objectors from military service. We have granted petitions for certiorari in this and the three following cases, 348 U.S. 812, 75 S.Ct. 42, to consider certain of the problems recurring in these prosecutions.1 2 Section 6(j) of the Universal Military Training and Service Act, 62 Stat. 612, as amended, 50 U.S.C.Appendix, § 456(j), 50 U.S.C.A.Appendix, § 456(j), provides that no person who, 'by reason of religious training and belief, is conscientiously opposed to participation in war in any form', shall be required to undergo combatant training or service in the armed forces. The conscientious objector, to prove his claim, fills out a questionnaire in which he makes a short statement of his religious beliefs and cites evidence, such as prior public expression of his views, to demonstrate his sincerity. If, on the basis of this and a personal interview, the local Board decides that the requisite beliefs are sincerely held, the registrant will be classified a conscientious objector. If the local Board denies the claim, the registrant has a right of appeal to the Appeal Board. That Board, before reaching a final decision, refers the registrant's file to the Department of Justice for 'inquiry and hearing.' As the first step in this auxiliary procedure, the Federal Bureau of Investigation investigates the registrant's claim and refers its report to a hearing officer of the Department of Justice. The registrant may then appear before this officer to present evidence and witnesses in his behalf. After this, the hearing officer makes a report to his superiors in the Department of Justice, suggesting a disposition of the case. The Department, after reviewing the registrant's file, the FBI report and the report of the hearing officer, writes a short recommendation, stating its reasons and whether it has concurred in or overruled the suggestion of the hearing officer. This recommendation of the Department of Justice is transmitted to the Appeal Board and placed in the registrant's file. The statute provides that 'the appeal board shall, in making its decision, give consideration to, but shall not be bound to follow, the recommendation of the Department of Justice * * *.' 62 Stat. 613, 50 U.S.C.Appendix, § 456(j), 50 U.S.C.A.Appendix, § 456(j). The Appeal Board, then, on the basis of the registrant's full file before it, comes to its conclusion, which, in the usual case, is the final determination of the Selective Service System. 62 Stat. 620, 50 U.S.C.Appendix, § 460(b)(3), 50 U.S.C.A.Appendix, § 460(b)(3). 3 There is no direct judicial review of the actions of the Appeal Boards. Questions concerning the classification of the registrant may be raised either in a petition for habeas corpus or as a defense to prosecution for failure to submit to induction into the armed forces. All four of the cases decided today have arisen through the latter route. 4 On January 31, 1951, Witmer filed his classification questionnaire, together with an explanatory letter stating that he worked 40 hours a week in a hat factory and also cultivated a portion of his father's farm. In the letter, Witmer stated that he intended to bring more of the farm under cultivation and closed, 'For this reason I am appealing to you to grant me an agricultural classification as I assure you that I will increase production year after year, and contribute a satisfactory amount for the war effort and civilian use.'2 5 In his general questionnaire, Witmer expressly disclaimed any ministerial exemption by writing the phrase, 'Does not apply,' opposite the line inquiring whether he was a 'Minister, or Student Preparing for the Ministry.' He did claim to be a conscientious objector, however, although, on the special form for those claiming such classifications, he failed to fill in the specifications supporting his objections to combatant or noncombatant service. On this special form, witmer wrote 'My training and belief in relation to a Supreme Being involves duties superior to those arising from any human relation. This prevents me from turning aside from those superior duties which I owe to a superior Being.' Therefore, he wrote, he was required to maintain neutrality in the 'combats of this world,' and was permitted the use of force only 'at the command of Almighty God.' Although he inserted a negative answer to the question asking whether he had given public expression to his conscientious objector views, he claimed that he had demonstrated his convictions by studying the Bible and by telling others about God's Kingdom and 'of how He will put a stop to all wars.' 6 On February 21, 1951, the local Board classified Witmer I—A, denying his claims for classification as a farmer and a conscientious objector. Eight days later, he wrote the Board advising them that he intended to appeal from their action and requesting classification as 'a minister of the gospel.' Less than a week after posting this claim, he left his job in the hat factory, and shortly thereafter, at his appearance before the local Board, Witmer presented an affidavit from a local officer of the Jehovah's Witnesses that he had 'on many occasions' engaged in the 'preaching of the good news or gospel to others.' At the same time, he submitted a written statement that he carried Bibles and study aids from door to door, and, further, that one could be ordained as a minister of the Jehovah's Witnesses without attending a seminary or performing funeral or marriage ceremonies. In this statement Witmer wrote, 'The work that I now do is of greatest universal importance therefore I could not take part in a conflict of national or even international importance.' At the conclusion of the hearing, the Board felt the evidence did not warrant classification as a minister and 'informed the registrant his case would be sent up to the Appeal Board following his physical examination.'3 7 The Appeal Board, pursuant to the Act, forwarded the case to the Department of Justice. Apparently, the FBI report contained nothing unfavorable to petitioner and even included statements that he appeared 'very religious and very sincere' and that he had said it was wrong to go to war. 8 At the Department hearing, Witmer asserted that he could not engage in noncombatant service since he felt that 'the boy who makes the snow balls is just as responsible as the boy who throws them.' On the basis of the entire file, including the FBI report and the interview, the hearing officer suggested a conscientious objector classification. The Department of Justice, however, concluded that Witmer's inconsistent statements together with his offer to contribute to the war effort precluded such a classification and recommended to the Appeal Board that Witmer's claim be denied. After consideration, that Board retained petitioner in I—A, and when ordered to report for induction, he refused to submit. This prosecution followed, and Witmer's conviction, 115 F.Supp. 19, was affirmed by the Court of Appeals for the Third Circuit, 213 F.2d 95. We granted certiorari 348 U.S. 812, 75 S.Ct. 42. 9 The primary question here is whether, under the facts of this case, the narrow scope of review given this Court permits us to overturn the Selective Service System's refusal to grant petitioner conscientious objector status. It is well to remember that it is not for the courts to sit as super draft boards, substituting their judgments on the weight of the evidence for those of the designated agencies. Nor should they look for substantial evidence to support such determinations. Dickinson v. United States, 1953, 346 U.S. 389, 396, 74 S.Ct. 152, 157, 98 L.Ed. 132. The classification can be overturned only if it has 'no basis in fact.' Estep v. United States, 1946, 327 U.S. 114, 122, 66 S.Ct. 423, 427, 90 L.Ed. 567. In Dickinson v. United States, 1953, 346 U.S. 389, 74 S.Ct. 152, 155, 98 L.Ed. 132, the most recent case in which this Court has applied this standard to the facts of a particular case, we set aside the conviction, holding that the local Board had wrongfully denied the registrant a ministerial classification. The objective facts on which Dickinson based his claim as a full-time minister were undisputed, and they placed him squarely within the terms of the Act. It was not for the Board to say whether he was motivated by sincere religious principles in becoming a minister, or whether his convictions were deep, but merely, as the Act provides, whether he was a 'regular or duly ordained minister of religion' as therein defined. The Court therefore held that the local Board's decision was without basis in fact, there being no evidence 'incompatible with the registrant's proof of exemption' to rebut his prima facie case. 10 Petitioner argues from this that there was no specific evidence here incompatible with his claimed conscientious objector status. But in Dickinson the registrant made out his prima facie case by means of objective facts—he was a 'regular or duly ordained minister of religion.' Here the registrant cannot make out a prima facie case from objective facts alone, because the ultimate question in conscientious objector cases is the sincerity of the registrant in objecting, on religious grounds, to participation in war in any form. In these cases, objective facts are relevant only insofar as they help in determining the sincerity of the registrant in his claimed belief, purely a subjective question. In conscientious objector cases, therefore, any fact which casts doubt on the veracity of the registrant is relevant. It is 'affirmative evidence * * * that a registrant has not painted a complete or accurate picture * * *.' Dickinson v. United States, supra, 346 U.S. at page 396, 74 S.Ct. at page 157. In short, the nature of a registrant's prima facie case determines the type of evidence needed to rebut his claim. If the issue is the nature of his activities, as in Dickinson, the evidence providing 'basis in fact' must tend to show that his activities are other than as stated. If, as here, the issue is the registrant's sincerity and good faith belief, then there must be some inference of insincerity or bad faith. 11 Since Witmer stated his beliefs with apparent sincerity, and since we find no indication anywhere in the record that his demeanor appeared shifty or evasive or that his appearance was one of unreliability, we must examine the objective facts before the Appeal Board to see whether they cast doubt on the sincerity of his claim. 12 We note that when Witmer asked his Board for classification as a farmer, he knew that the land involved in his request had not been cultivated for 23 years, save for a few acres used for family purposes. At that time, he swore that the ministerial classification did not apply to him. Yet in March—after he knew his claim for exemption as a farmer had been denied—he just as fervently claimed he was a full-time minister.4 Furthermore, although he asserted his conscientious objector belief in his first exemption claim, in the same set of papers he promised to increase his farm production and 'contribute a satisfactory amount for the war effort.' Subsequently, he announced 'the boy who makes the snow balls is just as responsible as the boy who throws them.' These inconsistent statements in themselves cast considerable doubt on the sincerity of petitioner's claim. This is not merely a case of a registrant's claiming three separate classifications; it goes to his sincerity and honesty in claiming conscientious objection to participation in war. It would not be mere suspicion or speculation for the Board to conclude, after denying Witmer's now-abandoned claims of farmer and minister, that he was insincere in his claim of conscientious objection. Even firemen become dubious after two false alarms. Aside from an outright admission of deception—to expect which is pure naivety—there could be no more competent evidence against Witmer's claimed classification than the inference drawn from his own testimony and conduct. There are other indications which, while possibly insignificant standing alone, in this context help support the finding of insincerity. Among these is petitioner's failure to adduce evidence of any prior expression of his allegedly deeply felt religious convictions against participation in war. 13 With due regard for the policy of Congress, which was to make review within the Selective Service System final in all cases where there was conflicting evidence or where two inferences could be drawn from the same testimony, we cannot hold that petitioner was wrongfully denied the conscientious objector classification. In short, there was basis in fact for the Board's decision. 14 Petitioner also complains of the local Board's action in not formally reopening his case at the March 19, 1951, meeting when he filed his application for reclassification as a minister. According to the testimony of the clerk of the Board, the Board chairman had stated that the case was out of their hands because petitioner had taken an appeal. The record of this hearing, however, shows that Witmer did offer his proof, and that the Board did discuss the matter. The chairman then told Witmer that the new evidence he submitted did not entitle him to a ministerial exemption. It is true that § 1624.2(b) and (c) of the Selective Service Regulations, 32 CFR (1949 ed.), required that the case be reopened and the registrant reclassified. However, in view of the concurrent findings of the trial judge and the Court of Appeals that there had, in fact, been a reconsideration of Witmer's claims and that he was then personally advised of his continuance in the I—A classification, we think the command of the regulation to reopen and reclassify was honored, even though the Board's action was not tagged with these words. In this state of the record, the contention of Witmer narrows down to mere cavilling. No prejudice is claimed from this and we find no error. The judgment is affirmed. 15 Affirmed. 16 Mr. Justice BLACK and Mr. Justice DOUGLAS dissent. 17 Mr. Justice MINTON, concurring. 18 Because the Board's order was an allowable one under the law and not arbitrarily taken, I concur in the result in this case. 1 Because of the wide divergencies in the problems presented, we shall consider the cases before us in separate opinions. (See 75 S.Ct. 397, 403, 409.) 2 The record indicates that this farm had not been worked for 23 years, except for a garden tract used for family purposes. 3 The minute of the local Board meeting is as follows: 'March 19, 1951 'Re: Order #36—28—30—71 Philip Andrew Witmer 'The Board met with registrant today. The registrant informed the Board that he left his place of employment on March 3, where he had worked for three years in a hat factory. The Board chairman immediately pointed out that he was classified as 1—A on February 21, which meant he left his position about two weeks later. He then mentioned that his father had a farm which had not been worked as a farm for 23 years but that he felt he was going to start getting this farm in shape. Prior to this time he stated he had gotten a few acres in shape for their own family use so that they would not be dependent upon other people. 'The registrant then pointed out that he was a minister of the Gospel and the only evidence he presented to substantiate this fact was some paraphernalia from the Watchtower Association of the Jehovah Witness (sic). The registrant was asked if he was an ordained minister and he said Jehovah (sic) Witnesses became ordained when they started distributing their literature. The Board felt this was not sufficient evidence to warrant a 4—D Classification and informed the registrant his case would be sent up to the Appeal Board following his physical examination.' R. 33 34, 54—55. 4 Ordinarily the claim of a Jehovah's Witness to exemption as a minister, though unfounded in law, would not reflect adversely on his good faith, since it is the doctrine of the Jehovah's Witnesses that all are ministers.

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348 U.S. 385 75 S.Ct. 403 99 L.Ed. 436 Anthony Tony SICURELLA, Petitioner,v.UNITED STATES of America. No. 250. Argued Feb. 1, 1955. Decided March 14, 1955. Mr.Hayden C. Covington, Brooklyn, N.Y., for petitioner. Mr. John F. Davis, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 Petitioner was born in 1927 and was brought up as a Jehovah's Witness by his parents, both of whom were of that faith. He has been identified with the sect since he was 6 years old, 'was immersed and became a consecrated servant of Jehovah' at 15, and was ordained when 17 years old. He registered with his local Board in 1948, and, although he worked 44 hours a week for the Railway Express Company, he was first classified as a minister. In 1950, however, petitioner was reclassified for general service and, shortly thereafter, he filed his conscientious objector claim. 2 In the special form, petitioner included this statement: 3 'The nature of my claim is that: I am already in the Army of Christ Jesus serving as a soldier of Jehovah's appointed Commander Jesus Christ. (2 Tim. 2:3 & 4). Inasmuch as the war weapons of the soldier of Jesus Christ are not carnal, I am not authorized by his Commander to engage in carnal warfare of this world. (2 Corinthians 10:3 & 4, Ephesians 6:11—18) Furthermore being enlisted in the army of Jesus Christ, I cannot desert the forces of Jehovah to assume the obligations of a soldier in any army of this world without being guilty of desertion and suffering the punishment meted out to deserters by Almighty God. * * *' 4 In answer to the question, 'Under what circumstances, if any, do you believe in the use of force,' he wrote: 5 'Only in the interests of defending Kingdom Interests, our preaching work, our meetings, our fellow brethren and sisters and our property against attack. I (as well as all Jehovah's Witnesses) defend those when they are attacked and are forced to protect such interests and scripturally so. Because in doing so we do not arm ourselves or carry carnal weapons in anticipation of or in preparation for trouble or to meet threats. In doing so I try to ward off blows and attacks only in defense. I do not use weapons of warfare in defense of myself or the Kingdom interests. I do not retreat when attacked in my home or at meeting places, but will retreat on public or other property and shake the dust off my feet; so not giving what is holy to dogs and not throwing my pearls before swine. (Matthew 10:14 & 7:6) So I retreat when I can do so and avoid a fight or trouble. Also following the admonition at Acts 24:16; which states 'In this respect, indeed, I am exercising myself continually to have a consciousness of committing no offense against God and man." 6 Upon a denial of this claim by the local Board, petitioner appealed and his file was referred to the Department of Justice. It appears that the report of the Federal Bureau of Investigation contained nothing unfavorable to petitioner's claim, and the hearing officer concluded that petitioner should be classified as a conscientious objector. In advising the Department of Justice, the hearing officer wrote that he 'was convinced that (petitioner) has sincere objections to military service by reason of his religious training and beliefs.' The Department of Justice, although admitting that the investigation was favorable to petitioner, recommended to the Appeal Board that petitioner's claim be denied on the ground that 7 'While the registrant may be sincere in the beliefs he has expressed, he has, however, failed to establish that he is opposed to war in any form. As indicated by the statements on his SSS Form No. 150, registrant will fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren. He is, therefore, not entitled to exemption within the meaning of the Act.' 8 The Appeal Board retained petitioner in his I-A classification, and thereafter, when duly ordered to report, he refused to submit to induction. This prosecution followed and the Seventh Circuit affirmed petitioner's conviction. 213 F.2d 911. We granted certiorari 348 U.S. 812, 75 S.Ct. 59. 9 In this case, unlike Witmer, 348 U.S. 375, 75 S.Ct. 392, it is admitted that petitioner is sincere; we are therefore relieved of the task of searching the record for basis in fact to support a finding of insincerity. The only question presented in this case is one of law—do the beliefs which petitioner says he holds amount to the conscientious opposition to 'participation in war in any form' demanded by Congress as a prerequisite to the conscientious objector deferment? Stated in the light of the background, the question at issue is whether a registrant under the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq., who is admittedly a sincere Jehovah's Witness and conscientious objector to participation in war, but who believes in the use of force in defending 'his ministry, 'Kingdom Interests,' and * * * his fellow brethren,' is entitled to exemption under § 6(j) of the Act from service in the armed forces. The Government insists that petitioner's statements reveal qualified and varied objection to war—and that 'petitioner's willingness to fight in defense of Kingdom interests, particularly when those words are considered in the light of the teachings of his sect, * * *' is clearly not opposition to war in any form. 10 The Government does not contend that the petitioner's belief in the use of force in self-defense, as well as the defense of his home, family and associates, is so inconsistent with his claim of conscientious objection as to serve as a basis for a denial of his claim.* The question here narrows to whether the willingness to use of force in defense of Kingdom interests and brethren is sufficiently inconsistent with petitioner's claim as to justify the conclusion that he fell short of being a conscientious objector. Throughout his selective service form, petitioner emphasized that the weapons of his warfare were spiritual, not carnal. He asserted that he was a soldier in the Army of Jesus Christ and that 'the war weapons of the soldier of Jesus Christ are not carnal.' With reference to the defense of his ministry, his brethren and Kingdom interests, he asserted that 'we do not arm ourselves or carry carnal weapons * * *. I do not use weapons of warfare in defense * * * of Kingdom interests * * *.' In letters to the local Board he reiterated these beliefs. On their face, these statements make it clear that petitioner's defense of 'Kingdom Interests' has neither the bark nor the bite of war as we unfortunately know it today. It is difficult for us to believe that the Congress had in mind this type of activity when it said the thrust of conscientious objection must go to 'participation in war in any form.' 11 But the Government urges that these statements of petitioner must be taken in the light of the teachings of Jehovah's Witnesses. While each case must of necessity be based on the particular beliefs of the individual registrant, it is true that the Congress, by relating the registrant's conscientious objection to his religious training and belief, has made the belief of his sect relevant. Moreover, the petitioner does parenthetically say that his belief in the use of force was 'as well * * * (the belief of) all Jehovah's Witnesses.' On the other hand, though the Government has appended to its brief a copy of the Watchtower magazine of February 1, 1951, we do not find any such literature in the record. It is not at all clear that we may consider such material outside the record to support an Appeal Board decision, cf. Cox v. United States, 1947, 332 U.S. 442, 453—455, 68 S.Ct. 115, 120—121, 92 L.Ed. 59, but we need not decide that here because in any event there is no substance to the Government's contention. Granting that these articles picture Jehovah's Witnesses as antipacifists, extolling the ancient wars of the Israelites and ready to engage in a 'theocratic war' if Jehovah so commands them, and granting that the Jehovah's Witnesses will fight at Armageddon, we do not feel this is enough. The test is not whether the registrant is opposed to all war, but whether he is opposed, on religious grounds, to participation in war. As to theocratic war, petitioner's willingness to fight on the orders of Jehovah is tempered by the fact that, so far as we know, their history records no such command since Biblical times and their theology does not appear to contemplate one in the future. And although the Jehovah's Witnesses may fight in the Armageddon, we are not able to stretch our imagination to the point of believing that the yardstick of the Congress includes within its measure such spiritual wars between the powers of good and evil where the Jehovah's Witnesses, if they participate, will do so without carnal weapons. 12 We believe that Congress had in mind real shooting wars when it referred to participation in war in any form—actual military conflicts between nations of the earth in our time—wars with bombs and bullets, tanks, planes and rockets. We believe the reasoning of the Government in denying petitioner's claim is so far removed from any possible congressional intent that it is erroneous as a matter of law. 13 The Court of Appeals also rested its decision on the conclusion that petitioner's objection to participation in war was only a facet of his real objection to all government authority. We believe, however, that if the requisite objection to participation in war exists, it makes no difference that a registrant also claims, on religious grounds, other exemptions which are not covered by the Act. Once he comes within § 6(j), he does not forfeit its coverage because of his other beliefs which may extend beyond the exemption granted by Congress. 14 The Government also contends, apparently for the first time, that petitioner objects to 'participation in war in any form,' if in fact he does, not from a feeling that it is wrong to participate in war but because such participation will require time which petitioner feels should be devoted to his religious activities. In its memorandum indicating its lack of opposition to certiorari, the Government gave no hint that it considered such an issue in the case, and it is unnecessary for us to consider it here. The report of the Department of Justice to the Appeal Board clearly bases its recommendation on petitioner's willingness to 'fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren,' and we feel that this error of law by the Department, to which the Appeal Board might naturally look for guidance on such questions, must vitiate the entire proceedings at least where it is not clear that the Board relied on some legitimate ground. Here, where it is impossible to determine on exactly which grounds the Appeal Board decided, the integrity of the Selective Service System demands, at least, that the Government not recommend illegal grounds. There is an impressive body of lower court cases taking this position and we believe that they state the correct rule. Cf. United States ex rel. Levy v. Cain, 2 Cir., 1945, 149 F.2d 338, 342; United States v. Balogh, 2 Cir., 1946, 157 F.2d 939, 943—944, judgment vacated on other grounds, 329 U.S. 692, 67 S.Ct. 625, 91 L.Ed. 605; United States v. Everngam, D.C.S.D.W.Va.1951, 102 F.Supp. 128. 15 The decision below is therefore reversed. 16 Reversed. 17 Mr. Justice REED, dissenting. 18 It is not important to the United State military strength that a few people eligible for military service are excused from combat and noncombatant duties as conscientious objectors. It is important to other American citizens that many without such scruples against war must serve while the few continue their assigned tasks with no exposure to danger greater than that of other civilians. 19 Many, by reason of religious training or moral conviction, may be opposed to certain wars declared by the Nation. But they must serve because they do not meet the test of the statute, 'conscientiously opposed to participation in war in any form.' The Court assumes that Sicurella's conscience permits him to participate in theocratic wars, that is, those approved by Jehovah, such as the blood and flesh wars of the Israelites. Sicurella testified he would use force in defense of 'Kingdom Interests.' Those words also seem to me to include theocratic wars. Under the assumption of the Court and petitioner's statements, he is not covered by the statutory exemption. His position is inconsistent with his claimed opposition to war. I would require him to serve in the military service. 20 Mr. Justice MINTON, dissenting. 21 The findings and classification made by the Selective Service Board and the Appeal Board are final. 50 U.S.C.App. (1952 ed.) § 460(b)(3), 50 U.S.C.A.Appendix, § 460(b)(3). This Court does not sit as a court of review. It is not our province to substitute our judgment of the facts for that of the Board or to correct the Board's errors of law unless they are so wanton, arbitrary and capricious as to destroy the jurisdiction of the Board. 22 This Court said in Estep v. United States, 327 U.S. 114, at pages 122—123, 66 S.Ct. 423, at page 427, 90 L.Ed. 567: 23 'The provision making the decisions of the local boards 'final' means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant.' (Emphasis added.) In that case, Estep had claimed that his classification was made arbitrarily and capriciously. This is always a question of jurisdiction. Was the Board acting in wanton disregard of its legal boundaries? If it was not, but made what we might consider an honest mistake in judgment, this Court should not intervene. 24 In the instant case, the Court does not say that the Board acted capriciously and arbitrarily or that the judgment of the Board was not an allowable judgment of reasonable men. The Court states that a mistake in advice was made by the Department of Justice to the Appeal Board. 25 'The report of the Department of Justice * * * clearly bases its recommendation on petitioner's willingness to 'fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren', and we feel that this error of law by the Department, to which the Appeal Board might naturally look for guidance on such questions, must vitiate the entire proceedings. * * *' 26 It will be noted that the Court says there was error of law not by the Appeal Board but by the Department of Justice, whose recommendation is purely advisory and not binding upon the Appeal Board. 50 U.S.C.App. (1952 ed.) § 456(j), 50 U.S.C.A.Appendix, § 456(j). The Court concludes that the Department of Justice committed an error of law by recommending to the Appeal Board that the petitioner be denied conscientious objector classification because of petitioner's willingness to 'fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren.' The record in this case clearly establishes that this was the position and attitude of the petitioner as a faithful Jehovah's Witness. Petitioner says he is opposed to fighting a secular war but is not opposed to fighting a religious war where the interests of his sect are involved. This does not meet the test of the statute, 50 U.S.C.App. (1952 ed.) § 456(j), 50 U.S.C.A.Appendix, § 456(j), which provides: 27 'Nothing contained in this title (sections 451—454 and 455 471 of this Appendix) shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.' 28 The petitioner is not opposed to 'participation in war in any form.' That is the congressional test. On the contrary, he reserves the right to choose the wars in which he will fight. The petitioner refused even to be inducted for any kind of limited service, combatant or otherwise. 29 The Court's opinion gives the impression that the petitioner and his sect would not use force. In petitioner's own statement to the Board, he contradicts such a position. SSS Form No. 150, filled out by the petitioner and submitted to the Board, contains the following question and answer: 30 '5. Under what circumstances, if any, do you believe in the use of force? 31 'Only in the interests of defending Kingdom Interests, our preaching work, our meetings, our fellow brethren and sisters and our property against attack. I (as well as all Jehovah's Witnesses) defend those when they are attacked and are forced to protect such interests and scripturally so. Because in doing so we do not arm ourselves or carry carnal weapons in anticipation of or in preparation for trouble or to meet threats.' This answer clearly shows that the petitioner and his sect will fight for Kingdom interests, whatever that is, preaching work, their meetings, their fellow brethren and sisters, and their property. They do not, they say, carry carnal weapons in anticipation of attack, but they will use them in case of attack. This evidence clearly supports the District Court's finding of guilt; and the conclusion of the Selective Service Board based on such evidence was an allowable one. 32 I think the Department of Justice might very well have believed petitioner did not meet the test laid down by Congress. By accepting the Department's recommendation, the Board might have been mistaken, but it was an honest mistake. There is not the slightest intimation of arbitrary or capricious conduct on the part of the Board. 33 Because we do not sit to review errors of fact or law unless the latter be so arbitrary and capricious as to destroy the Board's jurisdiction, and because I think the decision of the Appeal Board, even if the Board accepted and relied upon the recommendation of the Department of Justice, was an honest opinion and, therefore, an allowable judgment not arbitrarily and capriciously made, I would affirm. * In United States v. Taffs, in which we denied certiorari 347 U.S. 928, 74 S.Ct. 532, 98 L.Ed. 1081, the Government admitted as much in its petition. Its admission here does not extend to the category 'brethren' which was not used in Taffs.

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348 U.S. 397 75 S.Ct. 397 99 L.Ed. 453 Robert SIMMONS, Petitioner,v.UNITED STATES of America. No. 251. Argued Feb. 2, 1955. Decided March 14, 1955. Mr.Hayden C. Covington, Brooklyn, N.Y., for petitioner. Mr. Robert W. Ginnane, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 This case presents another question concerning the processing of conscientious objector claims under the Universal Military Training and Service Act. Petitioner contends that the failure of the Department of Justice to furnish him with a fair re sume of all adverse information in the Federal Bureau of Investigation report deprived him of the 'hearing' provided by § 6(j) of the Act, 62 Stat. 612, as amended 50 U.S.C.App. § 456(j), 50 U.S.C.A.Appendix, § 456(j), and thereby invalidated his I—A classification. In the circumstances of this case, we conclude that a fair re sume , as contemplated in United States v. Nugent, 1953, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417, was not furnished petitioner, and that this deprived him of a fair hearing within the terms of the Act. 2 Petitioner registered under the selective service laws in 1948. He was then employed as a chauffeur at the Great Lakes Naval Training Center, having had 8 years of grade school and 2 1/2 years of high school. At that time, he did not claim to be a minister or a conscientious objector, but stated that he believed his classification should be I—A. The local Board so classified him. In 1949, petitioner was married and, on June 4, 1951, he was given a dependency deferment, which was terminated on October 22, 1951. Within a week of his restoration to I—A, petitioner filed the special form for conscientious objectors, claiming exemption from combatant and noncombatant service. In this and in subsequent statements to the selective service authorities, petitioner revealed that he had first been contacted by a member of the Jehovah's Witnesses in November 1949; that he had started a Bible study course at that time and had progressed gradually toward the status of minister; that he had become an unordained minister in December 1950, and an ordained minister in October 1951; that he preached from house to house and on the streets, giving public expression to his conscientious objections to war; that the demands of his 'ministry' and the commands of the Bible, admonishing him not to kill and to follow God rather than men, precluded his participation in the military; and that he would not use force '(u)nless it be under the supervision of Jehovah God.' After a personal appearance, in which petitioner sought exemption as a minister rather than as a conscientious objector, the local Board continued him in I—A. Petitioner filed an appeal. The Appeal Board tentatively found against him, and referred the case to the Department of Justice. 3 Following an investigation by the Federal Bureau of Investigation, petitioner was notified to appear for a hearing. No copy of the notice appears in the record, but it appears that the form sent to registrants during the period in question stated that the hearing officer would advise the registrant 'as to the general nature and character' of adverse evidence in the FBI report if he requested such information 'at any time after receipt by him of the notice of hearing and before the date set for the hearing.'1 There is no evidence that petitioner made such a request prior to the hearing. He did, however, make a request at the hearing. According to petitioner's uncontradicted testimony, the hearing officer told him that the FBI report disclosed that he had been hanging around poolrooms, and the hearing officer asked him if he did that now. Petitioner replied that he did not, and asked what else was in the report. The hearing officer changed the subject. He subsequently asked petitioner's wife how she was feeling and how petitioner was treating her. Her reply was 'fine.' The hearing officer reported that petitioner impressed him as sincere, but recommended that he be classified I—A because his religious activities coincided with pressure from the Draft Board. 4 In its report to the Appeals Board, the Department of Justice adopted the hearing officer's recommendation, relying on the timing of petitioner's religious activities and 'his abusiveness and the exercise of physical violence towards his wife.'2 The latter reason rested on data presumably gathered by the FBI. According to the Department's report, police records showed that petitioner was arrested and fined in May 1950 for hitting his wife; that the police were called upon to settle a 'hot argument' in June 1950; and that petitioner's wife claimed in January 1952 that he was 'abusive' towards her. Also narrated in the report, although not specifically relied on in making the recommendation, is the statement of a 'confidential informant' that prior to his recent religious activity petitioner had been 'a rather heavy drinker and crap shooter in and around local taverns and pool halls.'3 Petitioner was continued in I—A by the Appeal Board. He refused to submit to induction and this prosecution followed. On trial, petitioner claimed that he had not been afforded a fair summary of the FBI report and secured the issuance of a subpoena duces tecum requiring production of the original report. On motion of the Government, and over objection of petitioner, the subpoena was quashed. Thereafter petitioner was convicted, and the Court of Appeals for the Seventh Circuit affirmed, 213 F.2d 901. 5 Section 6(j) of the Act provides that '(t)he Department of Justice, after appropriate inquiry, shall hold a hearing with respect to the character and good faith' of the claimed conscientious objections. In United States v. Nugent, supra, we held that this 'hearing' did not entail disclosure of the secret FBI reports. In reaching this conclusion, however, we relied on the availability to the registrant of a fair re sume of these reports: 6 '* * * We think the Department of Justice satisfies its duties under § 6(j) when it accords a fair opportunity to the registrant to speak his piece before an impartial hearing officer; when it permits him to produce all relevant evidence in his own behalf and at the same time supplies him with a fair re sume of any adverse evidence in the investigator's report.' 346 U.S. at page 6, 73 S.Ct. at page 994. 7 We did not view this provision for a fair summary as a matter of grace within the Department's discretion, but rather as an essential element in the processing of conscientious objector claims. United States v. Nugent represented a balancing between the demands of an effective system for mobilizing the Nation's manpower in times of crisis and the demands of fairness toward the individual registrant. We permitted the FBI report to remain secret because we were of the view that other safeguards in the proceeding, particularly the furnishing of a fair re sume , maintained the basic elements of fair play. If the balance struck in Nugent is to be preserved, the registrant must receive the fair summary to which he is entitled. The Department expressly recognizes this and, since Nugent, has furnished each registrant at the time he is notified of the hearing, with a written re sume of the information developed in the FBI report, a copy of which is also placed in his file for use by the Appeal Board.4 8 The Government assumes that the Department of Justice is required to furnish the registrant with a fair re sume upon request. But it contends that petitioner failed to make a timely request for the summary; that the remarks of the hearing officer gave him adequate notice of the unfavorable evidence in the FBI report; and, finally, that the lack of notice, if there was such, was harmless. 9 As to the request for the summary, the Government must rely on a document which is not in the record and which was not open to attack or explanation in the trial court. Indeed, had the Government produced the form notice in the lower courts, petitioner might have been able to show that he had made a request prior to the hearing. But leaving these difficulties aside, the notice reproduced in the Government's brief does not, in our view, convey clearly to the layman the idea that he must make a request for the re sume prior to the hearing or forever waive his rights in this respect.5 There is nothing in either the statute or the regulations authorizing such a waiver. And the discussion of this point in Nugent, 346 U.S., at page 6, 73 S.Ct. at page 994, note 10, was not directed at the time or method of requesting the re sume , but only at its availability. 10 That petitioner never received a fair re sume of the unfavorable evidence gleaned by the FBI seems hardly arguable on this record. As to his alleged gambling and drinking, the hearing officer merely told petitioner that he was reported to have been hanging around pool rooms. And as to the reported incidents of violence and abuse towards his wife, the hearing officer, in an apparent aside, advanced only the general query to petitioner's wife, asking her how petitioner was treating her now. A fair re sume is one which will permit the registrant to defend against the adverse evidence—to explain it, rebut it, or otherwise detract from its damaging force. The remarks of the hearing officer at most amounted to vague hints, and these apparently failed to alert petitioner to the dangers ahead. Certainly they afforded him no fair notice of the adverse charges in the report. The Congress, in providing for a hearing, did not intend for it to be conducted on the level of a game of blindman's buff. The summary was inadequate and the hearing in the Department was therefore lacking in basic fairness. 11 The Government's argument that no prejudice was shown and none resulted can be readily disposed of. Relying on a case concerned with constitutional restrictions on the States in regulating public utilities, Market Street Railway Co. v. Railroad Comm. of California, 324 U.S. 548, 65 S.Ct. 770, 89 L.Ed. 1171, it contends that the petitioner must specifically show prejudice in order to question the fairness of the re sume . The holding of the Market Street Railway case was that the Due Process Clause was 'not to be trivialized by formal objections that have no substantial bearing on the ultimate rights of parties', that the Commission could make 'incidental reference' to the railroad's own reports to verify its judgment, formulated on the basis of the entire record, without introducing the reports in evidence. Id., 324 U.S. 562, 65 S.Ct. 777. We are now now dealing with constitutional limitations. We are endeavoring to apply a procedure, set forth by Congress, in accordance with the statutory plan and the concepts of basic fairness which underlie all our legislation. We have held that to meet its duty under § 6(j) the Department must furnish the registrant with a fair re sume of the FBI report. It is clear in the circumstances of this case that it has failed to do so, and that petitioner has thereby been deprived of an opportunity to answer the charges against him. This is not an incidental infringement of technical rights. Petitioner has been deprived of the fair hearing required by the Act, a fundamental safeguard, and he need not specify the precise manner in which he would have used this right and how such use would have aided his cause—in order to complain of the deprivation. 12 It being evident from the record before the Court that the Department of Justice has failed to provide petitioner with a fair re sume of the FBI report, it is unnecessary for us to pass on petitioner's further contention that the trial court erred in quashing his subpoena duces tecum. 13 Reversed. 14 Mr. Justice BLACK and Mr. Justice DOUGLAS, adhering to their dissent in Nugent v. United States, 346 U.S. 1, 13, 73 S.Ct. 991, 998, 97 L.Ed. 1417, join in this opinion and judgment. 15 Mr. Justice REED would affirm on the ground that, as no summary was requested, it was not necessary to furnish more to the registrant than was given by the hearing officer. See Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409. 16 Mr. Justice MINTON, dissenting. 17 Even if the Board has denied petitioner a fair re sume of all adverse information in the FBI reports, it does not appear to have been done arbitrarily or capriciously, and the judgment of the Board in doing so was allowable 'even if erroneous.' It takes more than disagreement with the Board to destroy jurisdiction, the only condition upon which courts may interfere. I would affirm. 1 The form notice appears as an appendix to the Government's brief, p. 55. The pertinent paragraph follows: '2. Upon request therefor by the registrant at any time after receipt by him of the notice of hearing and before the date set for the hearing, the hearing officer will advise the registrant as to the general nature and character of any evidence in his possession which is unfavorable to, and tends to defeat, the claim of the registrant such request being granted to enable the registrant more fully to prepare to answer and refute at the hearing such unfavorable evidence.' 2 The complete text of the report is as follows: 'Registrant is twenty-five years of age, married, born in Illinois and has completed approximately two years of high school. At the present time he is employed as a chauffeur. He was first contacted by a member of the Jehovah's Witnesses Sect in November 1949, although the exact date of membership is not reflected. 'The registrant believes in a Supreme Being and describes the nature of his belief by citing various parts of the Scriptures, in part, as follows: "Romans 13:1—* * * that Jehovah God and Christ Jesus are the higher powers, and I recognize them as the supreme powers. Peter at Acts 5:29 admonishing all footstep followers of Christ Jesus that 'We must obey God rather than men.' Also Paul at 2 Cor. 4:4. * * * Satan the Devil is the God of this system of things. Showing that we show (sic) obey the Creator rather than the Creation of God. Jehovah God in one of his Ten Commandments at Ex. 20:13 'Thou shall not kill." 'Registrant relates that in November 1949, at the suggestion of one Clarence Howze, he started a Bible book study and as he progressed wanted more and more to become a minister of truth. At the present time he is receiving training from the Watchtower Bible and Tract Society. As to the question regarding use of force he states 'None whatsoever. Unless it be under the supervision of Jehovah God.' He claims to engage in the work of his religion by preaching from house to house and on the streets. 'At his present place of employment he has been seen reading the Bible during lunch hour and discussing same with a few co-workers. References, all of whom are members of the same sect, believe registrant is sincere, as do his neighbors. A confidential informant, of known reliability, reports that during the last seven or eight months registrant was actively engaged in distributing pamphlets; that prior to that time registrant was personally known to him as a rather heavy drinker and crap shooter in and around local taverns and pool halls. This informant believes registrant is now sincere. Registrant states he has changed his ways and now prays many times during the day. His wife also states he has changed. It is to be noted that registrant is reported to have had a very poor home life. 'Police records reflect that registrant was arrested May 29, 1950 on a complaint by his wife that he pulled her out of a car and hit her in the face—fined $13.60; on June 12, 1950 police were called to settle a 'hot argument' and on January 6, 1952, wife claimed registrant was abusive. Police settled last two matters so no charges were filed. 'The file also reflects that registrant was mailed his questionnaire on December 6, 1948 and did not sign that part (series XIC) reserved for a conscientious objection. He was classified I—A on December 23, 1948 and married his present wife on March 5, 1949. 'The Hearing Officer reports registrant impressed him as sincere but notes that his religious activities are coincident with pressing draft activities by officials and, therefore, recomments a I—A classification. 'From the available information it appears that registrant had little, if any, religious training prior to November 1949 and it was not until after his 3—A classification was changed to I—A that he evidenced any conscientious objection. From the time he first attended a Bible study class until approximately October 1951, registrant had a little less than two years of Jehovah's Witness religious training. In addition to the fact that his religious activities coincide with pressing induction possibilities, registrant's absorption and sincerity as to his newly found religion is rendered more questionable by his abusiveness and the exercise of physical violence towards his wife. In this connection police records reflect a complaint by his wife as late as January 6, 1952. 'After consideration of the entire file and record, the Department of Justice finds that the registrant's objections to combatant and noncombatant service are not sustained. It is, therefore, recommended to your Board that registrant's claim for exemption from both combatant and noncombatant training and service be not sustained.' 3 This informant had also stated that petitioner had changed his ways and now seemed sincere. While the statement as a whole may therefore be favorable to petitioner's claim, the disclosure of petitioner's gambling and drinking activities was certainly adverse. 4 This procedure was not in effect at the time petitioner was notified to appear for his hearing. 5 Registrants are not to be treated as though they were engaged in formal litigation assisted by counsel. United States ex rel. Berman v. Craig, 3 Cir., 207 F.2d 888; Smith v. United States, 4 Cir., 157 F.2d 176.

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348 U.S. 426 75 S.Ct. 473 99 L.Ed. 483 COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.GLENSHAW GLASS COMPANY and William Goldman Theatres, Inc. No. 199. Argued Feb. 28, 1955. Decided March 28, 1955. Rehearing Denied May 9, 1955. See 349 U.S. 925, 75 S.Ct. 657. Solicitor General, Simon E. Sobeloff, Washington, D.C., for petitioner. Mr.Max Swiren, Chicago, Ill., for respondent Glenshaw Glass Co. Mr. Samuel H. Levy, Philadelphia, Pa., for respondent Wm. Goldman Theatres, Inc. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 This litigation involves two cases with independent factual backgrounds yet presenting the identical issue. The two cases were consolidated for argument before the Court of Appeals for the Third Circuit and were heard en banc. The common question is whether money received as exemplary damages for fraud or as the punitive two-thirds portion of a treble-damage antitrust recovery must be reported by a taxpayer as gross income under § 22(a) of the Internal Revenue Code of 1939.1 In a single opinion, 211 F.2d 928, the Court of Appeals affirmed the Tax Court's separate rulings in favor of the taxpayers. 18 T.C. 860; 19 T.C. 637. Because of the frequent recurrence of the question and differing interpretations by the lower courts of this Court's decisions bearing upon the problem, we granted the Commissioner of Internal Revenue's ensuing petition for certiorari. 348 U.S. 813, 75 S.Ct. 50. 2 The facts of the cases were largely stipulated and are not in dispute. So far as pertinent they are as follows: 3 Commissioner v. Glenshaw Glass Co.—The Glenshaw Glass Company, a Pennsylvania corporation, manufactures glass bottles and containers. It was engaged in protracted litigation with the Hartford-Empire Company, which manufactures machinery of a character used by Glenshaw. Among the claims advanced by Glenshaw were demands for exemplary damages for fraud2 and treble damages for injury to its business by reason of Hartford's violation of the federal antitrust laws.3 In December, 1947, the parties concluded a settlement of all pending litigation, by which Hartford paid Glenshaw approximately $800,000. Through a method of allocation which was approved by the Tax Court, 18 T.C. 860, 870 872, and which is no longer in issue, it was ultimately determined that, of the total settlement, $324,529.94 represented payment of punitive damages for fraud and antitrust violations. Glenshaw did not report this portion of the settlement as income for the tax year involved. The Commissioner determined a deficiency claiming as taxable the entire sum less only deductible legal fees. As previously noted, the Tax Court and the Court of Appeals upheld the taxpayer. 4 Commissioner v. William Goldman Theatres, Inc.—William Goldman Theatres, Inc., a Delaware corporation operating motion picture houses in Pennsylvania, sued Loew's, Inc., alleging a violation of the federal antitrust laws and seeking treble damages. After a holding that a violation had occurred, William Goldman Theatres, Inc., v. Loew's Inc., 3 Cir., 150 F.2d 738, the case was remanded to the trial court for a determination of damages. It was found that Goldman had suffered a loss of profits equal to $125,000 and was entitled to treble damages in the sum of $375,000. William Goldman Theatres, Inc., v. Loew's, Inc., D.C., 69 F.Supp. 103, affirmed 3 Cir., 164 F.2d 1021, certiorari denied 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742. Goldman reported only $125,000 of the recovery as gross income and claimed that the $250,000 balance constituted punitive damages and as such was not taxable. The Tax Court agreed, 19 T.C. 637, and the Court of Appeals, hearing this with the Glenshaw case, affirmed. 211 F.2d 928. 5 It is conceded by the respondents that there is no constitutional barrier to the imposition of a tax on punitive damages. Our question is one of statutory construction: are these payments comprehended by § 22(a)? 6 The sweeping scope of the controverted statute is readily apparent: 7 's 22. Gross income 8 '(a) General definition. 'Gross income' includes gains, profits, and income derived from salaries, wages, or compensation for personal service * * * of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. * * *' (Emphasis added.)4 9 This Court has frequently stated that this language was used by Congress to exert in this field 'the full measure of its taxing power.' Helvering v. Clifford, 309 U.S. 331, 334, 60 S.Ct. 554, 556, 84 L.Ed. 788; Helvering v. Midland Mutual Life Ins. Co., 300 U.S. 216, 223, 57 S.Ct. 423, 425, 81 L.Ed. 612; Douglas v. Willcuts, 296 U.S. 1, 9, 56 S.Ct. 59, 62, 80 L.Ed. 3; Irwin v. Gavit, 268 U.S. 161, 166, 45 S.Ct. 475, 69 L.Ed. 897. Respondents contend that punitive damages, characterized as 'windfalls' flowing from the culpable conduct of third parties, are not within the scope of the section. But Congress applied no limitations as to the source of taxable receipts, nor restrictive labels as to their nature. And the Court has given a liberal construction to this broad phraseology in recognition of the intention of Congress to tax all gains except those specifically exempted. Commissioner v. Jacobson, 336 U.S. 28, 49, 69 S.Ct. 358, 369, 93 L.Ed. 477; Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87—91, 55 S.Ct. 50, 51—53, 79 L.Ed. 211. Thus, the fortuitous gain accruing to a lessor by reason of the forfeiture of a lessee's improvements on the rented property was taxed in Helvering v. Bruun, 309 U.S. 461, 60 S.Ct. 631, 84 L.Ed. 864. Cf. Robertson v. United States, 343 U.S. 711, 72 S.Ct. 994, 96 L.Ed. 1237; Rutkin v. United States, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833; United States v. Kirby Lumber Co., 284 U.S. 1, 52 S.Ct. 4, 76 L.Ed. 131. Such decisions demonstrate that we cannot but ascribe content to the catchall provision of § 22(a), 'gains or profits and income derived from any source whatever.' The importance of that phrase has been to frequently recognized since its first appearance in the Revenue Act of 19135 to say now that it adds nothing to the meaning of 'gross income.' 10 Nor can we accept respondents' contention that a narrower reading of § 22(a) is required by the Court's characterization of income in Eisner v. Macomber, 252 U.S. 189, 207, 40 S.Ct. 189, 193, 64 L.Ed. 521, as "the gain derived from capital, from labor, or from both combined."6 The Court was there endeavoring to determine whether the distribution of a corporate stock dividend constituted a realized gain to the shareholder, or changed 'only the form, not the essence,' of his capital investment. Id., 252 U.S. at page 210, 40 S.Ct. at page 194. It was held that the taxpayer had 'received nothing out of the company's assets for his separate use and benefit.' Id., 252 U.S. at page 211, 40 S.Ct. at page 194. The distribution, therefore, was held not a taxable event. In that context distinguishing gain from capital—the definition served a useful purpose. But it was not meant to provide a touchstone to all future gross income questions. Helvering v. Bruun, supra, 309 U.S. at pages 468—469, 60 S.Ct. at page 634; United States v. Kirby Lumber Co., supra, 284 U.S. at page 3, 52 S.Ct. 4. 11 Here we have instances of undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion. The mere fact that the payments were extracted from the wrongdoers as punishment for unlawful conduct cannot detract from their character as taxable income to the recipients. Respondents concede, as they must, that the recoveries are taxable to the extent that they compensate for damages actually incurred. It would be an anomaly that could not be justified in the absence of clear congressional intent to say that a recovery for actual damages is taxable but not the additional amount extracted as punishment for the same conduct which caused the injury. And we find no such evidence of intent to exempt these payments. 12 It is urged that re-enactment of § 22(a) without change since the Board of Tax Appeals held punitive damages nontaxable in Highland Farms Corp., 42 B.T.A. 1314, indicates congressional satisfaction with that holding. Re-enactment—particularly without the slightest affirmative indication that Congress ever had the Highland Farms decision before it—is an unreliable indicium at best. Helvering v. Wilshire Oil Co., 308 U.S. 90, 100—101, 60 S.Ct. 18, 24, 84 L.Ed. 101; Koshland v. Helvering, 298 U.S. 441, 447, 56 S.Ct. 767, 770, 80 L.Ed. 1268. Moreover, the Commissioner promptly published his non-acquiescence in this portion of the Highland Farms holding7 and has, before and since, consistently maintained the position that these receipts are taxable.8 It therefore cannot be said with certitude that Congress intended to carve an exception out of § 22(a)'s pervasive coverage. Nor does the 1954 Code's9 legislative history, with its reiteration of the proposition that statutory gross income is 'all-inclusive,'10 give support to respondents' position. The definition of gross income has been simplied, but no effect upon its present broad scope was intended.11 Certainly punitive damages cannot reasonably be classified as gifts, cf. Commissioner v. Jacobson, 336 U.S. 28, 47—52, 69 S.Ct. 358, 368 370, 93 L.Ed. 477, nor do they come under any other exemption provision in the Code. We would do violence to the plain meaning of the statute and restrict a clear legislative attempt to bring the taxing power to bear upon all receipts constitutionally taxable were we to say that the payments in question here are not gross income. See Helvering v. Midland Mutual Life Ins. Co., supra, 300 U.S. at page 223, 57 S.Ct. at page 425, 81 L.Ed. 612. 13 Reversed. 14 Mr. Justice DOUGLAS dissents. 15 Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 53 Stat. 9, 53 Stat. 574, 26 U.S.C. § 22(a), 26 U.S.C.A. § 22(a). 2 For the bases of Glenshaw's claim for damages from fraud, see Shawkee Manufacturing Co. v. Hartford-Empire Co., 322 U.S. 271, 64 S.Ct. 1014, 88 L.Ed. 1269; Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250. 3 See Hartford-Empire Co. v. United States, 323 U.S. 386, 65 S.Ct. 373, 89 L.Ed. 322; Id., 324 U.S. 570, 65 S.Ct. 815, 89 L.Ed. 1198. 4 See note 1, supra. 5 38 Stat. 114, 167. 6 The phrase was derived from Stratton's Independence, Ltd. v. Howbert, 231 U.S. 399, 415, 34 S.Ct. 136, 140, 58 L.Ed. 285, and Doyle v. Mitchell Bros. Co., 247 U.S. 179, 185, 38 S.Ct. 467, 469, 62 L.Ed. 1054, two cases construing the Revenue Act of 1909, 36 Stat. 11, 112. Both taxpayers were 'wasting asset' corporations, one being engaged in mining, the other in lumbering operations. The definition was applied by the Court to demonstrate a distinction between a return on capital and 'a mere conversion of capital assets.' Doyle v. Mitchell Bros. Co., supra, 247 U.S. at page 184, 38 SCt. at page 469. The question raised by the instant case is clearly distinguishable. 7 1941—1 Cum.Bull, 16. 8 The long history of departmental rulings holding personal injury recoveries nontaxable on the theory that they roughly correspond to a return of capital cannot support exemption of punitive damages following injury to property. See 2 Cum.Bull. 71; I—1 Cum.Bull. 92, 93; VII—2 Cum.Bull. 123; 1954—1 Cum.Bull. 179, 180. Dumages for personal injury are by definition compensatory only. Punitive damages, on the other hand, cannot be considered a restoration of capital for taxation purposes. 9 68A Stat. 3 et seq. Section 61(a) of the Internal Revenue Code of 1954, 68A Stat. 17, 26 U.S.C.A., is the successor to § 22(a) of the 1939 Code. 10 H.R.Rep.No.1337, 83d Cong., 2d Sess. A18; S.Rep.No.1622, 83d Cong., 2d Sess. 168. 11 In discussing § 61(a) of the 1954 Code, the House Report states: 'This section corresponds to section 22(a) of the 1939 Code. While the language in existing section 22(a) has been simplified, the all-inclusive nature of statutory gross income has not been affected thereby. Section 61(a) is as broad in scope as section 22(a). 'Section 61(a) provides that gross income includes 'all income from whatever source derived.' This definition is based upon the 16th Amendment and the word 'income' is used in its constitutional sense.' H.R.Rep.No.1337, supra, note 10, at A18. A virtually identical statement appears in S.Rep.No.1622, supra, note 10, at 168.

1112

348 U.S. 434 75 S.Ct. 478 99 L.Ed. 504 GENERAL AMERICAN INVESTORS COMPANY, Inc., Petitioner,v.COMMISSIONER OF INTERNAL REVENUE. No. 114. Argued Feb. 28, 1955. Decided March 28, 1955. Mr. Norris Darrell, New York City, for petitioner. Solicitor General Simon E. Sobeloff, Washington, D.C., for respondent. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 The sole question presented by this case is whether a payment is taxable as gross income when received by a corporation pursuant to the 'insider profits' provisions of the Securities Exchange Act of 19341 and the Investment Company Act of 1940.2 Subject to exceptions not presently relevant, § 16(b) of the Securities Exchange Act provides that the profit realized from certain defined securities transactions undertaken by a director or major stockholder of the issuing corporation 'shall inure to and be recoverable by the issuer.'3 This provision is made applicable to investment companies by § 30(f) of the Investment Company Act of 1940.4 Under these provisions, petitioner, a registered closed-end investment company, received payments totalling $170,308.04. This sum represented the profits accruing to one of petitioner's directors and a stockholder through dealings covered by § 16(b); the money was paid over to petitioner on demand and without litigation. The payments were not reported as income on petitioner's tax returns. The Commissioner of Internal Revenue allowed a $13,000 deduction for legal expenses incurred in recovering the amounts due but asserted a deficiency for the balance on the ground that the receipts constituted taxable gains under § 22(a) of the Internal Revenue Code of 1939.5 The Tax Court, 19 T.C. 581, and the Court of Appeals for the Second Circuit, 211 F.2d 522, sustained the Commissioner's determination. We granted certiorari, 348 U.S. 812, 75 S.Ct. 35, because of an apparent similarity of issues here to those involved in Commissioner v. Glenshaw Glass Co., 3 Cir., 211 F.2d 928, and the possible conflict between that case and this.6 2 We have this day decided that the recovery of punitive damages for fraud or antitrust violation is reportable as gross income within the meaning of § 22(a). Commissioner v. Glenshaw Glass Co., 349 U.S. 426, 75 S.Ct. 473. The reasons which dictated that result are equally compelling here. We see no significant difference in the nature of these receipts which might make that ruling inapplicable. As in Glenshaw, the taxpayer realized the money in question free of any restrictions as to use. The payments in controversy were neither capital contributions nor gifts. Cf. Texas & Pacific R. Co. v. United States, 286 U.S. 285, 52 S.Ct. 528, 76 L.Ed. 1108. There is no indication that Congress intended to exempt them from coverage. In accordance with the legislative design to reach all gain constitutionally taxable unless specifically excluded, we conclude that the petitioner is liable for the tax and the judgment is affirmed. 3 Affirmed. 4 Mr. Justice DOUGLAS concurs in the result. 5 Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 48 Stat. 881, 15 U.S.C. § 78a et seq., 15 U.S.C.A. § 78a et seq. 2 54 Stat. 789, 15 U.S.C. § 80a-1 et seq., 15 U.S.C.A. § 80a-1 et seq. 3 48 Stat. 896, 15 U.S.C. § 78p, 15 U.S.C.A. § 78p. 4 54 Stat. 837, 15 U.S.C. § 80a-29, 15 U.S.C.A. § 80a-29. 5 '§ 22. Gross Income '(a) General definition. 'Gross income' includes gains, profits, and income derived from salaries, wages, or compensation for personal service * * * of whatever kind and in whatever from paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. * * *' (Emphasis added.) 53 Stat. 9, 53 Stat. 574, 26 U.S.C. § 22(a), 26 U.S.C.A. § 22(a). 6 There was, however, no disagreement among lower courts which faced the question of the taxability of a § 16(b) recovery of 'insider profits.' See Park & Tilford Distillers Corp. v. United States, 107 F.Supp. 941, 123 Ct.Cl. 509; Noma Electric Corp., 12 T.C.M. 1 (CCH Tax Ct. Mem. Dec. 1953).

1112

348 U.S. 483 75 S.Ct. 461 99 L.Ed. 563 Mae Q. WILLIAMSON, Attorney General of the State of Oklahoma, et al., Appellants,v.LEE OPTICAL OF OKLAHOMA, Inc., et al. LEE OPTICAL OF OKLAHOMA, Inc., et al., Appellants, v. Mac Q. WILLIAMSON, Attorney General of the State of Oklahoma, et al. Nos. 184 and 185. Argued March 2, 1955. Decided March 28, 1955. Rehearing Denied May 9, 1955. See 349 U.S. 925, 75 S.Ct. 657. Mr. James C. Harkin, Oklahoma City, Okl., for Williamson, et al. Mr.Dick H. Woods, Kansas City, Mo., for Lee Optical, Inc., et al. Mr. Philip B. Perlman, Washington, D.C., for American Optometric Ass'n, Inc., amicus curiae. Mr. Herbert A. Bergson, Washington, D.C., for the Guild of Prescription Opticians of America, Inc., et al. amicus curiae. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This suit was instituted in the District Court to have an Oklahoma law, 59 Okl.Stat.Ann. §§ 941—947, Okl.Laws 1953, c. 13, §§ 1—8, declared unconstitutional and to enjoin state officials from enforcing it, 28 U.S.C. §§ 2201, 2202, 2281, 28 U.S.C.A. §§ 2201, 2202, 2281, for the reason that it allegedly violated various provisions of the Federal Constitution. The matter was heard by a District Court of three judges, as required by 28 U.S.C. § 2281, 28 U.S.C.A. § 2281. That court held certain provisions of the law unconstitutional. 120 F.Supp. 128. The case is here by appeal, 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. 2 The District Court held unconstitutional portions of three sections of the Act. First, it held invalid under the Due Process Clause of the Fourteenth Amendment the portions of § 2 which make it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances, except upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist.1 3 An ophthalmologist is a duly licensed physician who specializes in the care of the eyes. An optometrist examines eyes for refractive error, recognizes (but does not treat) diseases of the eye, and fills prescriptions for eyeglasses. The optician is an artisan qualified to grind lenses, fill prescriptions, and fit frames. 4 The effect of § 2 is to forbid the optician from fitting or duplicating lenses without a prescription from an ophthalmologist or optometrist. In practical effect, it means that no optician can fit old glasses into new frames or supply a lens, whether it be a new lens or one to duplicate a lost or broken lens, without a prescription. The District Court conceded that it was in the competence of the police power of a State to regulate the examination of the eyes. But it rebelled at the notion that a State could require a prescription from an optometrist or ophthalmologist 'to take old lenses and place them in new frames and then fit the completed spectacles to the face of the eyeglass wearer.' 120 F.Supp., at page 135. It held that such a requirement was not 'reasonably and rationally related to the health and welfare of the people.' Id., at 136. The court found that through mechanical devices and ordinary skills the optician could take a broken lens or a fragment thereof, measure its power, and reduce it to prescriptive terms. The court held that 'Although on this precise issue of duplication, the legislature in the instant regulation was dealing with a matter of public interest, the particular means chosen are neither reasonably necessary nor reasonably related to the end sought to be achieved.' Id., at 137. It was, accordingly, the opinion of the court that this provision of the law violated the Due Process Clause by arbitrarily interfering with the optician's right to do business. 5 We think the due process question is answered in principle by Roschen v. Ward, 279 U.S. 337, 49 S.Ct. 336, 73 L.Ed. 722, which upheld a New York statute making it unlawful to sell eyeglasses at retail in any store, unless a duly licensed physician or optometrist were in charge and in personal attendance. The Court said, '* * * wherever the requirements of the act stop, there can be no doubt that the presence and superintendence of the specialist tend to diminish an evil.' Id., 279 U.S. at page 339, 49 S.Ct. at page 336. 6 The Oklahoma law may exact a needless, wasteful requirement in many cases. But it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement. It appears that in many cases the optician can easily supply the new frames or new lenses without reference to the old written prescription. It also appears that many written prescriptions contain no directive data in regard to fitting spectacles to the face. But in some cases the directions contained in the prescription are essential, if the glasses are to be fitted so as to correct the particular defects of vision or alleviate the eye condition. The legislature might have concluded that the frequency of occasions when a prescription is necessary was sufficient to justify this regulation of the fitting of eyeglasses. Likewise, when it is necessary to duplicate a lens, a written prescription may or may not be necessary. But the legislature might have concluded that one was needed often enough to require one in every case. Or the legislature may have concluded that eye examinations were so critical, not only for correction of vision but also for detection of latent ailments or diseases, that every change in frames and every duplication of a lens should be accompanied by a prescription from a medical expert. To be sure, the present law does not require a new examination of the eyes every time the frames are changed or the lenses duplicated. For if the old prescription is on file with the optician, he can go ahead and make the new fitting or duplicate the lenses. But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. 7 The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. See Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 89 A.L.R. 1469; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703; 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 No. 19129, A.F. of L. v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212; Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220, 69 S.Ct. 550, 93 L.Ed. 632; Day-Brite Lighting, Inc., v. State of Missouri, 342 U.S. 421, 72 S.Ct. 405, 96 L.Ed. 469. We emphasize again what Chief Justice Waite said in Munn v. State of Illinois, 94 U.S. 113, 134, 24 L.Ed. 77, 'For protection against abuses by legislatures the people must resort to the polls, not to the courts.' 8 Secondly, the District Court held that it violated the Equal Protection Clause of the Fourteenth Amendment to subject opticians to this regulatory system and to exempt, as § 3 of the Act2 does, all sellers of ready-to-wear glasses. The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086. The legislature may select one phase of one field and apply a remedy there, neglecting the others. A.F. of L. v. American Sash Co., 335 U.S. 538, 69 S.Ct. 258, 93 L.Ed. 222. The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. We cannot say that that point has been reached here. For all this record shows, the ready-to-wear branch of this business may not loom large in Oklahoma or may present problems of regulation distinct from the other branch. 9 Third, the District Court held unconstitutional, as violative of the Due Process Clause of the Fourteenth Amendment, that portion of § 3 which makes it unlawful 'to solicit the sale of * * * frames, mountings * * * or any other optical appliances.'3 The court conceded that state regulation of advertising relating to eye examinations was a matter 'rationally related to the public health and welfare', 120 F.Supp. at 140, and therefore subject to regulation within the principles of Semler v. Oregon State Board of Dental Examiners, supra. But regulation of the advertising of eyeglass frames was said to intrude 'into a mercantile field only casually related to the visual care of the public' and restrict 'an activity which in no way can detrimentally affect the people.' 120 F.Supp. at 140—141.4 10 An eyeglass frame, considered in isolation, is only a piece of merchandise. But an eyeglass frame is not used in isolation, as Judge Murrah said in dissent below; it is used with lenses; and lenses, pertaining as they do to the human eye, enter the field of health. Therefore, the legislature might conclude that to regulate one effectively it would have to regulate the other. Or it might conclude that both the sellers of frames and the sellers of lenses were in a business where advertising should be limited or even abolished in the public interest. Semler v. Oregon State Board of Dental Examiners, supra. The advertiser of frames may be using his ads to bring in customers who will buy lenses. If the advertisement of lenses is to be abolished or controlled, the advertising of frames must come under the same restraints; or so the legislature might think. We see no constitutional reason why a State may not treat all who deal with the human eye as members of a profession was should use no merchandising methods for obtaining customers. 11 Fourth, the District Court held unconstitutional, as violative of the Due Process Clause of the Fourteenth Amendment, the provision of § 4 of the Oklahoma Act which reads as follows: 12 'No person, firm, or corporation engaged in the business of retailing merchandise to the general public shall rent space, sublease departments, or otherwise permit any person purporting to do eye examination or visual care to occupy space in such retail store.' 13 It seems to us that this regulation is on the same constitutional footing as the denial to corporations of the right to practice dentistry. Semler v. Oregon State Board of Dental Examiners, supra, 294 U.S. at 611, 55 S.Ct. 571. It is an attempt to free the profession, to as great an extent as possible, from all taints of commercialism. It certainly might be easy for an optometrist with space in a retail store to be merely a front for the retail establishment. In any case, the opportunity for that nexus may be too great for safety, if the eye doctor is allowed inside the retail store. Moreover, it may be deemed important to effective regulation that the eye doctor be restricted to geographical locations that reduce the temptations of commercialism. Geographical location may be an important consideration in a legislative program which aims to raise the treatment of the human eye to a strictly professional level. We cannot say that the regulation has no rational relation to that objective and therefore is beyond constitutional bounds. 14 What we have said is sufficient to dispose of the appeal in No. 185 from the conclusion of the District Court that that portion of § 3 which makes it unlawful to solicit the sale of spectacles, eyeglasses, lenses, and prisms by the use of advertising media is constitutional. 15 The other contentions urged by appellants in No. 185 are without merit. 16 Affirmed in part and reversed in part. 17 Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 Section 2 reads as follows: 'It shall be unlawful for any person, firm, corporation, company, or partnership not licensed under the provisions of Chapter 11 or Chapter 13 of Title 59, Oklahoma Statutes 1951, to fit, adjust, adapt, or to in any manner apply lenses, frames, prisms, or any other optical appliances to the face of a person, or to duplicate or attempt to duplicate, or to place or replace into the frames, any lenses or other optical appliances which have been prescribed, fitted, or adjusted for visual correction, or which are intended to aid human vision or to give any treatment or training designed to aid human vision, or to represent or hold himself out to the public as being qualified to do any of the acts listed in this Section, except that persons licensed under the provisions of Chapters 11 or 13 of Title 59, Oklahoma Statutes 1951 may in a written prescription, or its duplicate, authorize any optical supplier to interpret such prescription, and who in accordance therewith may measure, adapt, fit, prepare, dispense, or adjust such lenses, spectacles, eye glasses, prisms, tinted lenses, frames or appurtenances thereto, to the human face for the aid or correction of visual or ocular anomalies of the human eye; and may continue to do the said acts on the aforesaid written prescription, or its duplicate, provided however, that the physician or optometrist writing such prescription shall remain responsible for the full effect of the appliances so furnished by such other person. Provided that this Section shall not prevent a qualified person from making repairs to eye glasses.' Chapter 11, Title 59, Okl.Stat. 1951, provides for the licensing of ophthalmologists and other doctors. Chapter 13 provides for the certification of optometrists. 2 Section 3 reads as follows: 'It shall be unlawful for any person, firm, company, corporation or partnership to solicit the sale of spectacles, eye glasses, lenses, frames, mountings, prisms or any other optical appliances or devices, eye examinations or visual services, by radio, window display, television, telephone directory display advertisement, or by any other means of advertisement; or to use any other method or means of baiting, persuading, or enticing the public into buying spectacles, eye glasses, lenses, frames, mountings, prisms, or other optical appliances for visual correction. Provided, however, that the provisions of this Act shall not render any newspaper or other advertising media liable for publishing any advertising furnished them by a vendor of said commodity or material; nor shall anything in this Act prevent ethical education publicity or advertising by legally qualified health groups that does not violate presently existing laws of Oklahoma, nor prevent the proper use of ethical, professional notices. Nothing in this Act shall prohibit the sale of ready-to-wear glasses equipped with convexspherical lenses nor sunglasses equipped with plano lenses nor industrial glasses and goggles with plano lenses used for industrial eye protection when sold as merchandise at any established places of business and where the selection of the glasses is at the discretion of the purchaser.' 3 See note 2, supra. 4 The court also said: 'Advertising directed exclusively at this feature of eye wear can have no deleterious effect on the public, inasmuch as it has no influence on the prospective wearer of eyeglasses, and to the present wearer (a person already examined by a licensed professional) is but a mere piece of merchandise. 'The dispensing optician, a merchant in this particular, cannot arbitrarily be divested of a substantial portion of his business upon the pretext that such a deprivation is rationally related to the public health.' 120 F.Supp. at 142.

78

348 U.S. 468 75 S.Ct. 480 99 L.Ed. 546 Lloyd WEBER et al., Petitioners,v.ANHEUSER-BUSCH, Inc. No. 97. Argued Feb. 2 and 3, 1955. Decided March 28, 1955. Mr.Robert A. Roessel, St. Louis, Mo., for petitioner. Mr. David E. Feller, Washington, D.C., for C.I.O. amicus curiae. Mr. Mark D. Eagleton, St. Louis, Mo., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 This case grew out of a dispute between petitioner, the International Association of Machinists (IAM), affiliated with the American Federation of Labor, and the Millwrights, affiliated with the United Brotherhood of Carpenters and Joiners (Carpenters), which in turn was affiliated with the American Federation of Labor, over millwright work being performed for respondent, each union claiming the work for its own members. 2 Respondent is engaged in the interstate manufacture and sale of beer and other commodities, with its principal place of business in St. Louis, Missouri. Its employees include members of both the IAM and the Carpenters. Respondent has always required a large amount of millwright work to be performed by outside contractors in the expansion of its facilities. After the IAM was certified in 1948 by the National Labor Relations Board as the exclusive bargaining representative of respondent's machinists, respondent executed a collective bargaining contract with the IAM for 1949 which provided in part that when the repair or replacement of machinery was necessary, this work would be given only to those contractors who had collective agreements with the IAM. As a result of protests from the Carpenters, who claimed the same type of work for their own members, the clause was deleted from the 1950 contract between respondent and the IAM, but it was later reinstated in the 1951 contract. The Carpenters again protested, this time threatening that they would sign no contract with respondent covering those employees who were members of the Carpenters until the clause was deleted from the IAM contract. When the 1951 IAM contract expired and negotiations for a 1952 contract began, respondent refused to agree to the insertion of the clause in the new contract. An impasse was reached in the negotiations, and finally the IAM went on strike. 3 At the time the strike was called, only one contractor was actually engaged in respondent's millwright work, and the employees of that one contractor were covered by a contract with the IAM. 4 On April 8, 1952, the day after the strike was called, respondent filed a charge of an unfair labor practice under § 8(b)(4)(D) of the Taft-Hartley Act against the IAM.1 5 On November 18, 1952, the National Labor Relations Board quashed the notice of a hearing, holding that no 'dispute' existed within the meaning of the invoked subsection. The Board reasoned that at the time of the strike, the IAM could not have been requesting the assignment of 'particular' work to IAM members, because the IAM was not complaining about the assignment of work by respondent to its own employees, and as to work assigned by respondent's contractors, (1) the IAM had made no demand on those contractors to give their work to IAM labor, and (2) no millwright work performed by respondent's contractors at that time was in fact being performed by other than IAM labor. District No. 9, International Association of Machinists, 101 N.L.R.B. 346. 6 It must be emphasized that the only unfair labor practice charge filed with the Board, and the only one upon which the Board acted, was that prescribed in Subsection (D) of § 8(b)(4). 7 In the meantime, on April 19, 1952, after it had filed the charge with the Board but before the Board had acted upon it, respondent sought an injunction against the IAM in the State Circuit Court in St. Louis. In its complaint, respondent alleged that the strike constituted 'a secondary boycott under the common law of the State of Missouri,' and also was in violation of Subsections (A), (B) and (D) of § 8(b)(4) of the Taft-Hartley Act2 and of § 303(a)(1), (2) and (4) of that same Act.3 A temporary injunction issued. On April 30, respondent amended its complaint with the additional claim that the IAM's conduct constituted an illegal conspiracy in restraint of trade under Missouri common law and conspiracy statutes. Mo.Rev.Stat.1949, § 416.010, V.A.M.S. The temporary injunction was thereupon made permanent on September 30, 1952, some time before the Board, it will be recalled, held that there was no violation of § 8(b)(4)(D) of the Taft-Hartley Act. This injunction was vacated, but immediately re-entered, on October 3, 1952. 8 The IAM appealed to the Missouri Supreme Court from the Circuit Court's injunction. That court affirmed the permanent injunction on February 8, 1954, more than a year after the Board found no violation of § 8(b)(4)(D). 9 The Missouri Supreme Court held that the IAM's conduct constituted a violation of the State's restraint of trade statute and as such was enjoinable. It referred to the ruling of the Board as a determination that 'no labor dispute existed between these parties and that no unfair labor practices were there involved, and the Board, upon such ruling, quashed the notice of the hearing.' The court then stated: 'The cases relied on by the defendants (the IAM) are largely cases involving existing labor disputes and unfair labor practices. We think those cases are not in point.' The court concluded: 'A jurisdictional quarrel between two rival labor unions is not a labor dispute within the Norris-LaGuarardia Act, * * * the Wagner Act or the Taft-Hartley Act.' Mo.Sup., 265 S.W.2d 325, 332, 333. The State Supreme Court thus treated the Board's holding as a determination that the allegation on which the injunction issued excluded the basis for a charge of an unfair labor practice under the Taft-Hartley Act. 10 The principal question that the case raises, whether the state court had jurisdiction to enjoin the IAM's conduct or whether its jurisdiction had been preempted by the authority vested in the National Labor Relations Board, has an importance in the federal-state relations regarding industrial controversies that led us to grant certiorari. 348 U.S. 808, 75 S.Ct. 32. 11 The Court has had numerous occasions to deal with this delicate problem of the interplay between state and federal jurisdiction touching labor relations. It is helpful to a consideration of this latest phase briefly to summarize where our decisions, under both the Wagner Act and the Taft-Hartley Act, have brought us. 12 1. The Court has ruled that a State may not prohibit the exercise of rights which the federal Acts protect. Thus, in Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 65 S.Ct. 1373, 1375, 89 L.Ed. 1782, the State enjoined a labor union from functioning until it had complied with certain statutory requirements. The injunction was invalidated on the ground that the Wagner Act included a 'federally established right to collective bargaining' with which the injunction conflicted. International Union of United Auto, Aircraft and Agr. Implement Workers of America v. O'Brien, 339 U.S. 454, 70 S.Ct. 781, 94 L.Ed. 978, involved the strike-vote provisions of a state act which prohibited the calling of a strike until a specific statutory procedure had been followed. The state act was held to conflict not only with the procedure and other requirements of the Taft-Hartley strike provisions but also with the protection afforded by § 7 of that Act.4 In Amalgamated Association of St. Elec. Ry. & Motor Coach Emp. of America v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364, the state court issued an injunction under a statute which made it a misdemeanor to interrupt by strike any essential public utility services. It was held that the state statute was invalid in that it denied a right which Congress had guaranteed under § 7 of the Taft-Hartley Act the right to strike peacefully to enforce union demands for wages, hours and working conditions. Last Term the Court noted in Garner v. Teamsters Union, 346 U.S. 485, 499, 74 S.Ct. 161, 170, 98 L.Ed. 228, that 13 'The detailed prescription of a procedure for restraint of specified types of picketing would seem to imply that other picketing is to be free of other methods and sources of restraint. For the policy of the National Labor Management Relations Act is not to condemn all picketing but only that ascertained by its prescribed processes to fall within its prohibitions. Otherwise, it is implicit in the Act that the public interest is served by freedom of labor to use the weapon of picketing. For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits.' 14 2. A State may not enjoin under its own labor statute conduct which has been made an 'unfair labor practice' under the federal statutes. Such was the holding in the Garner case, supra. The Court pointed out that exclusive primary jurisdiction to pass on the union's picketing is delegated by the Taft-Hartley Act to the National Labor Relations Board. See also Plankinton Packing Co. v. Wisconsin Employment Relations Board, 338 U.S. 953, 70 S.Ct. 491, 94 L.Ed. 588, Building Trades Council v. Kinard Construction Co., 346 U.S. 933, 74 S.Ct. 373, 98 L.Ed. 423. And in Capital Service, Inc., v. Labor Board, 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887, a picket line established at retail stores to induce the organization of a manufacturer's employees was enjoined by the State as contrary to its public policy.5 This Court granted a limited certiorari which assumed that exclusive jurisdiction over the subject matter was in the National Labor Relations Board.6 The Board was allowed to obtain an injunction against enforcement of the conflicting state court injunction. 15 3. The federal Board's machinery for dealing with certification problems also carries implications of exclusiveness. Thus, a State may not certify a union as the collective bargaining agent for employees where the federal Board, if called upon, would use its own certification procedure. La Crosse Telephone Corp. v. Wisconsin Employment Relations Board, 336 U.S. 18, 69 S.Ct. 379, 93 L.Ed. 463. The same result is reached even if the federal Board has refused certification, if the employer is subject to the Board's jurisdiction. Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234. 16 4. On the other hand, in the following cases the authority which the State exercised was found not to have been exclusively absorbed by the federal enactments. 17 In Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154, the State was allowed to enjoin mass picketing, threats of bodily injury and property damage to employees, obstruction of streets and public roads, the blocking of entrance to and egress from a factory, and the picketing of employees' homes. The Court held that such conduct was not subject to regulation by the federal Board, either by prohibition or by protection. 18 International Union, etc., v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651, involved recurrent, unannounced work stoppages. The Court upheld the state injunction on the ground that such conduct was neither prohibited nor protected by the Taft-Hartley Act and thus was open to state control. 19 The Court allowed a State to forbid enforcement of a maintenance-of-membership clause in a contract between employer and union in Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U.S. 301, 69 S.Ct. 584, 93 L.Ed. 691. Since nothing in the Wagner or Taft-Hartley Acts sanctioned or forbade these clauses, they were left to regulation by the State. 20 Finally, United Construction Workers v. Laburnum Construction Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025, was an action for damages based on violent conduct, which the state court found to be a common-law tort. While assuming that an unfair labor practice under the Taft-Hartley Act was involved, this Court sustained the state judgment on the theory that there was no compensatory relief under the federal Act and no federal administrative relief with which the state remedy conflicted. 21 We come, then, to the facts in this case. 22 Contrary to the assumption of the Missouri Supreme Court, the Board had not ruled that no unfair labor practice was involved in the conduct by the IAM of which respondent complained. The Board had determined only that there was no violation of Subsection (D) of § 8(b) (4). That was, in fact, the extent of the ruling it was empowered to make, because (D) was the only subsection alleged to have been violated. In its complaint in the state court, however, respondent broadened its allegations to include violations of Subsections (A) and (B). 23 We do not mean to pass on the question whether the Board, by finding that no violation of (D) was involved, inferentially ruled that other subsections were or were not violated. The point is rather that the Board, and not the state court, is empowered to pass upon such issues in the first instance. If a ruling on (D) necessarily encompassed a ruling on the other subsections, we would have a different case. But the ruling on (D) was based on the finding that no 'particular work' was involved—a phrase of (D) that is absent in (A) and (B). Congress has lodged in the Board responsibility for determining in the first instance whether the same considerations apply to (A) or (B) as apply to (D). 24 Nor is it within our competence now to determine whether the conduct in controversy is subject to the authority of Subsections (A) or (B). Under the Board's decisions, for example, it may become pertinent whether this is eventually deemed primary pressure, directed at respondent to force insertion of the disputed clause in its contract with the IAM, rather than secondary pressure, aimed at subcontractors to force them to use IAM labor.7 We are not now ruling on that distinction. However, the point is pertinent to our discussion, because even if it were clear that no unfair labor practices were involved, it would not necessarily follow that the State was free to issue its injunction. If this conduct does not fall within the prohibitions of § 8 of the Taft-Hartley Act, it may fall within the protection of § 7, as concerted activity for the purpose of mutual aid or protection. 25 Respondent itself alleged that the union conduct it was seeking to stop came within the prohibitions of the federal Act, and yet it disregarded the Board and obtained relief from a state court. It is perfectly clear that had respondent gone first to a federal court instead of the state court, the federal court would have declined jurisdiction, at least as to the unfair labor practices, on the ground that exclusive primary jurisdiction was in the Board.8 As pointed out in the Garner case, 346 U.S., at page 491, 74 S.Ct. 161, the same considerations apply to the state courts. 26 The Missouri Supreme Court over-simplified the factual situation when it called this merely a 'jurisdictional quarrel between two rival labor unions.' (265 S.W.2d 333) A jurisdictional dispute and a secondary boycott are not necessarily mutually exclusive, as respondent itself showed by alleging, inter alia, that this was a secondary boycott prohibited by Missouri common law. Even the Board has not always been consistent in its interpretations of the various subsections of § 8(b)(4). 27 Respondent argues that Missouri is not prohibiting the IAM's conduct for any reason having to do with labor relations but rather because that conduct is in contravention of a state law which deals generally with restraint of trade. It distinguishes Garner on the ground that there the State and Congress were both attempting to regulate labor relations as such. 28 We do not think this distinction is decisive. In Garner the emphasis was not on two conflicting labor statutes but rather on two similar remedies, one state and one federal, brought to bear on precisely the same conduct. And in Capital Service, Inc., v. National Labor Relations Board, supra, we did not stop to inquire just what category of 'public policy' the union's conduct allegedly violated. Our approach was emphasized in United Construction Workers v. Laburnum Construction Corp., supra, where the violent conduct was reached by a remedy having no parallel in, and not in conflict with, any remedy afforded by the federal Act. 29 Moreover, we must not forget that this case is not clearly one of 'unfair labor practices.' Certainly if the conduct is eventually found by the National Labor Relations Board to be protected by the Taft-Hartley Act, the State cannot be heard to say that it is enjoining that conduct for reasons other than those having to do with labor relations. In Amalgamated Association v. Wisconsin Employment Relations Board, supra, the statute was directed at the preservation of public utility services and not at maintenance of sound labor relations, but the State's injunction was reversed. Controlling and therefore superseding federal power cannot be curtailed by the State even though the ground of intervention be different than that on which federal supremacy has been exercised. 30 By the Taft-Hartley Act, Congress did not exhaust the full sweep of legislative power over industrial relations given by the Commerce Clause. Congress formulated a code whereby it outlawed some aspects of labor activities and left others free for the operation of economic forces. As to both categories, the areas that have been pre-empted by federal authority and thereby withdrawn from state power are not susceptible of delimitation by fixed metes and bounds. Obvious conflict, actual or potential, leads to easy judicial exclusion of state action. Such was the situation in Garner v. Teamsters Union, supra. But as the opinion in that case recalled, the Labor Management Relations Act 'leaves much to the states, though Congress has refrained from telling us how much.' 346 U.S., at page 488, 74 S.Ct. at page 164. This penumbral area can be rendered progressively clear only by the course of litigation. Regarding the conduct here in controversy, Congress has sufficiently expressed its purpose to bring it within federal oversight and to exlude state prohibition, even though that with which the federal law is concerned as a matter of labor relations be related by the State to the more inclusive area of restraint of trade. 31 We realize that it is not easy for a state court to decide, merely on the basis of a complaint and answer, whether the subject matter is the concern exclusively of the federal Board and withdrawn from the State. This is particularly true in a case like this where the rulings of the Board are not wholly consistent on the meaning of the sections outlawing 'unfair labor practices', and where the area of free 'concerted activities' has not been clearly bounded. But where the moving party itself alleges unfair labor practices, where the facts reasonably bring the controversy within the sections prohibiting these practices, and where the conduct, if not prohibited by the federal Act, may be reasonably deemed to come within the protection afforded by that Act, the state court must decline jurisdiction in deference to the tribunal which Congress has selected for determining such issues in the first instance.9 32 The state decree granting the permanent injunction found that 'Defendants' (IAM's) picket line was so placed and maintained that it prevented the movement of railroad cars into and out of plaintiff's (respondent's) premises by a common carrier without danger of physical injury to the pickets, and movement of the cars was stopped for that reason.' The Missouri Supreme Court stated that 'the transportation into and out of the plant was stopped 'because it endangered their (presumably the pickets') lives and limbs'; * * *.' (265 S.W.2d 330) We do not read this as an unambiguous determination that the IAM's conduct amounted to the kind of mass picketing and overt threats of violence which under the Allen-Bradley Local case give the state court jurisdiction. It does not preclude the conclusion that the transportation was stopped for fear of crossing an otherwise peaceful picket line. In any event, the state injunction enjoined all picketing. 33 Reversed and remanded. 34 Mr. Justice BLACK concurs in the result. 35 Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 61 Stat. 140, 29 U.S.C. § 158(b)(4)(D), 29 U.S.C.A. § 158(b)(4)(D). The subsection is quoted in footnote 2, infra. 2 '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; * * * (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 * * *.' 61 Stat. 140, 29 U.S.C. § 158(b)(4)(B) and (D), 29 U.S.C.A. § 158(b)(4)(A, B, D). 3 '(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; '(2) 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 of the National Labor Relations Act; '(4) 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 National Labor Relations Board determining the bargaining representative for employees performing such work. * * *' 61 Stat. 158, 29 U.S.C. § 187(a)(1), (2) and (4), 29 U.S.C.A. § 187(a)(1, 2, 4). In view of the questions involving unfair labor practices and protected activity which are present in this case, it is not necessary to discuss the possible effect on state jurisdiction of § 303(a)(1), (2) and (4). 4 Section 7 provides: '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 except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).' 61 Stat. 140, 29 U.S.C. § 157, 29 U.S.C.A. § 157. 5 The complaint in the state court charged the defendant unions with engaging in 'an unlawful conspiracy combination and agreement, contrary to the common law of the State of California and contrary to the provisions of the Cartwright Act (Stats.1907, p. 1835, Ch. 530), now constituting Chapter 2 of Part 2, Division 7, of the Business and Professions Code, sections 16720, et seq., to create and carry out restrictions in trade and commerce and to prevent competition in manufacturing, making, transporting, selling and purchasing of bakery products as hereinafter set forth.' The state court, however, reasoned that primary picketing was as much a combination in restraint of trade as secondary picketing, and primary picketing had been held legal by numerous state decisions. The court instead enjoined the conduct on the ground that 'secondary picketing is contrary to the public policy of this state. * * *' Capital Service, Inc. v. Bakery Drivers Local Union, Civil No. 595892, Superior Court of California for the County of Los Angeles. 6 The Court granted certiorari limited to the following question, propounded by the Court: "In view of the fact that exclusive jurisdiction over the subject matter was in the National Labor Relations Board, Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161 (98 L.Ed. 228), could the Federal District Court, on application of the Board, enjoin Petitioners from enforcing an injunction already obtained from the State court?" 346 U.S. 936, 74 S.Ct. 375, 98 L.Ed. 425. 7 Cf., e.g., Reilly Cartage Co., 110 N.L.R.B., No. 233; Oil Workers International Union, 84 N.L.R.B. 315; International Brotherhood of Teamsters, 84 N.L.R.B. 360, reversed sub nom. International Rice Milling Co. v. National Labor Relations Board, 183 F.2d 21, reversed, 341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1277. 8 See, e.g., Amazon Cotton Mill Co. v. Textile Workers Union, 4 Cir., 167 F.2d 183, 188—190; Bakery & Confectionery Workers' International Union v. National Biscuit Co., 3 Cir., 177 F.2d 684; see also Garner v. Teamsters Union, 346 U.S. 485, 491, 74 S.Ct. 161, 166. 9 The Missouri Supreme Court relied upon Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834, for the proposition that a state court retains jurisdiction over this type of suit. But Giboney was concerned solely with whether the State's injunction against picketing violated the Fourteenth Amendment. No question of federal preemption was before the Court; accordingly, it was not dealt with in the opinion.

910

348 U.S. 437 75 S.Ct. 489 99 L.Ed. 510 ASSOCIATION OF WESTINGHOUSE SALARIED EMPLOYEESv.WESTINGHOUSE ELECTRIC CORP. No. 51. Argued Nov. 17 and 18, 1954. Decided March 28, 1955. Rehearing Denied May 9, 1955. See 349 U.S. 925, 75 S.Ct. 657. [Syllabus from 437-438 intentionally omitted] Mr.David E. Feller, Washington, D.C., for petitioner. Mr. Mahlon E. Lewis, Pittsburgh, Pa., for respondent. Mr. Justice FRANKFURTER announced the judgment of the Court and an opinion in which Mr. Justice BURTON and Mr. Justice MINTON join. 1 Respondent is a Pennsylvania corporation engaged in the manufacture and sale of electrical equipment in interstate commerce. Petitioner, an unincorporated labor organization and the collective bargaining representative of some 5,000 salaried employees at two of respondent's plants, filed this suit against respondent in the United States District Court for the Western District of Pennsylvania to enforce collective bargaining agreements then in effect between it and respondent. The suit was brought under § 301 of the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U.S.C. § 185, 29 U.S.C.A. § 185, and the Federal Declaratory Judgment Act, 62 Stat. 964, as amended, 28 U.S.C. §§ 2201, 2202, 28 U.S.C.A. §§ 2201, 2202. 2 More specifically, petitioner alleged that under the contracts respondent was obligated to pay the employees represented by petitioner their full salary during April 1951, regardless of whether they missed a day's work, unless the absence was due to 'furlough' or 'leave of absence,' and that respondent had violated the contracts by deducting from the pay of some 4,000 of those employees their wages for April 3, when they were absent. No reason who given for their absence, but it was alleged that the reason was not furlough or leave of absence. The employees were not named and were not made parties to the suit. Petitioner requested the court to interpret the contracts, declare the rights of the parties, compel respondent to make an accounting (and name the employees involved and the amounts of unpaid salaries), and enter a judgment against respondent and in favor of the individual employees for the unpaid wages. 3 Respondent moved to dismiss the complaint on three grounds: the court lacked jurisdiction over the subject matter, petitioner was the wrong party plaintiff under Fed.Rules Civ.Proc. 17(a), 28 U.S.C.A., and the complaint failed to state a claim upon which relief could be granted. The district court held that it had jurisdiction over the subject matter and that petitioner was a proper plaintiff but dismissed the complaint for failure to state a claim for relief, without prejudice to petitioner's right to amend. It held that, without affirmative averments as to the cause of the absences from work, it must be assumed the absences were voluntary, and that the bargaining contracts did not obligate respondent to pay wages during voluntary absences. 107 F.Supp. 692. 4 The Court of Appeals for the Third Circuit, sitting en banc, three judges dissenting, vacated the district court's order dismissing the complaint on the merits, and directed a dismissal for lack of jurisdiction. After stating that § 301 'is a grant of federal-question jurisdiction and thus creates a federal, substantive right' (210 F.2d 625) and reviewing various theories explaining the relationship between union, employer and employees under a collective bargaining agreement, the court adopted an 'eclectic theory,' based primarily upon language in J.I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762. The bargaining contract, said the Court, obligates the employer to include in the contracts of hire with each employee the terms and conditions which had been settled between the union and the employer, but the collective contract itself is not a contract of hire. Not until an employee enters into an individual contract of hire and performs services does the employer become bound to pay the particular employee the specified wages. It follows, said the Court, that if there was a breach in this case, it was a breach of the employment contracts with the individual employees who were not paid. Section 301, on the other hand, grants jurisdiction to federal courts only over cases involving breaches of the collective bargaining contract between the union and the employer. Therefore, it was concluded, the district court was without jurisdiction of the suit. 210 F.2d 623. 5 The dissenting judges agreed that a failure to pay wages might well constitute a breach of the individual hiring contracts as a basis of common-law suits by the employees. But they deemed the breach, if any, also a breach of the collective bargaining contracts and as such cognizable in the federal court under § 301. They concluded that Rule 17(a) permitted the union to sue alone, without joinder of the employees, to vindicate the rights of these employees as a class, such employees being beneficiaries of the collective contracts. They agreed with the district court, however, that, on this complaint, the bargaining contracts did not make respondent liable, since the cause of the absences from work was not alleged. 210 F.2d at page 630. 6 The case was brought here for construction of a section of the Taft-Hartley Act which has proved a fertile source of difficulty for the lower courts. 347 U.S. 1010, 74 S.Ct. 868, 98 L.Ed. 1134. 7 1. In dealing with an enactment such as § 301 of the Labor Management Relations Act,1 it is necessary first to ascertain its jurisdictional scope, more particularly, whether it extends to the suit at hand. Here, as may not infrequently be the case, this question turns in large measure on what sources a federal court would be required to draw upon in determining the underlying substantive rights of the parties—in this case, in deciding whether the union has the contract right which it asserts. If Congress has itself defined the law or authorized the federal courts to fashion the judicial rules governing this question, it would be self-defeating to limit the scope of the power of the federal courts to less than is necessary to accomplish this congressional aim. If, on the other hand, Congress merely furnished a federal forum for enforcing the body of contract law which the States provide, a serious constitutional problem would lie at the threshold of jurisdiction. Moreover, if the function of § 301 is merely that of providing a federal forum for state law, there are good reasons for finding that, despite the broad wording of § 301, Congress did not intend to confer jurisdiction over this type of suit. 8 If the section is given the meaning its language spontaneously yields, it would seem clear that all it does is to give procedural directions to the federal courts. 'When an unincorporated association that happens to be a labor union appears before you as a litigant in a case involving breach of a collective agreement,' Congress in effect told the district judges, 'treat is as though it were a natural or corporate legal person and do so regardless of the amount in controversy and do not require diversity of citizenship.' 9 Since a statute like the Taft-Hartley Act is an organism, § 301 must be placed in the context of the legislation as a whole. So viewed, however, the meaning which the section by itself affords is not affected. While some sections of the Act in certain instances may be relevant in actions for breach of contract and as such binding also on the States,2 no provision suggests general application of defined or theretofore available federal substantive law in actions arising under § 301. 10 This examination would conclude the construction of the section by English courts, that is, by any court reading legislation as it is written without drawing on parliamentary debates. And considering that the construction we have found seems plain, the so-called 'plain meaning rule,' on which construction is from time to time rested also in this Court, likewise makes further inquiry needless and indeed improper. But that rule has not dominated our decisions. The contrary doctrine has prevailed. See Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 53, 54, 73 L.Ed. 170; United States v. Dickerson, 310 U.S. 554, 561, 60 S.Ct. 1034, 1038, 84 L.Ed. 1356. And so we proceed to an examination of the legislative history to see whether that raises such doubts that the search for meaning should not be limited to the statute itself. 11 Congressional concern with obstacles surrounding union litigation began to manifest itself as early as 1943. In the first session of the 78th Congress and thereafter numerous bills were introduced proposing various solutions, including federal incorporation,3 denial of rights under the Wagner Act to contract violators,4 creation of a cause of action for strikes and other acts in violation of the collective bargaining contract,5 and grants of federal jurisdiction similar to the present § 301.6 Only one of these, the so-called 'Case bill,' was acted upon. This bill, which passed both Houses in 1946, only to fail through President Truman's veto, included as § 10 a provision somewhat similar to the present section. That section passed the House in the following form: 12 'Sec. 10. Binding effect of collective—bargaining contracts. All collective-bargaining contracts shall be mutually and equally binding and enforceable against each of the parties thereto, any other law to the contrary notwithstanding. In the event of a breach of any such contract or of any agreement contained in such contract by either party thereto, then, in addition to any other remedy or remedies existing, a suit for damages for such breach may be maintained by the other party or parties in any State or United States district court having jurisdiction of the parties.' H.R. 4908, 79th Cong., 2d Sess. 13 Discussion in that chamber was not enlightening, due perhaps to the fact that the Case bill had been substituted on the House floor for the text of a very different bill and thus had never been considered in committee. Section 10 was presented as necessary to achievement of 'mutuality' of obligation between employer and union, but there was no guiding explanation of the nature of the obstacle to mutuality. The language of the section, however, gave support to the view that a federal cause of action was to be created. 14 After the bill passed the House, hearings were held on it by the Senate Committee on Education and Labor, during which Senator Taft pointed out to Representative Case that, in his view, the section as written failed to deal with the real problem, which was not substantive enforceability but procedural difficulty in obtaining jurisdiction over unincorporated labor organizations. Mr. Case agreed that the section should be redrafted to reach that problem.7 The Committee reported the bill without § 10, asserting that as it passed the House the section was 'based upon a misapprehension as to the legal responsibility of the parties under such contracts,' that such contracts 'are at present legally enforceable in the courts,' and that to promote litigation concerning them would be undesirable.8 Senators Ball, Taft and H. Alexander Smith filed a minority report conceding that collective agreements 'theoretically are legally enforceable contracts' but contending that action was necessary to overcome practical obstacles to enforcement arising from the status of unions as unincorporated associations. They proposed a differently worded section later adopted in substance by both Houses, which closely approximated the wording of the present § 301.9 15 In introducing this proposed amendment, Senator Taft stated: 16 '* * * All we provide in the amendment is that voluntary associations shall in effect be suable as if they were corporations, and suable in the Federal courts if the contract involves interstate commerce and therefore involves a Federal question. * * *' 92 Cong.Rec. 5705. 17 This rather casual non sequitur seems to suggest reliance not on the existence or establishment of any substantive federal law governing collective bargaining contracts to create a 'federal question' in the technical sense relevant to jurisdiction of district courts, but on the mere power of Congress to enact such law.10 While some statements on the Senate floor by opponents of the amendment are ambiguous,11 all authoritative materials indicate the strictly procedural aim of the section. The aim was to open the federal courts to suits on agreements solely because they were between labor organizations and employers without providing federal law for such suits. 18 In the first session of the 80th Congress, bills introduced independently in both Houses contained sections strikingly similar to the final version of § 10 of the Case bill.12 Discussion was more analytical. While generalities in praise of mutuality and enforceability reappear, it was evident that the specific desire was to remove procedural obstacles to suit by and against the union. Senator Pepper and Secretary of Labor Schwellenbach deemed the measure one 'to provide a Federal forum' for suits on contracts based on local law.13 It was assumed that this would result in mutual enforceability, which in turn would further labor harmony. The testimony of Secretary Schwellenbach (who together with the labor unions opposed § 301), minority reports in both Houses,14 and opposition statements on the floor of the Senate15 directed attention to the fact that state law would govern actions under § 301 and that this, diversity jurisdiction apart, would raise a substantial constitutional question. No denial of the first of these assertions appears. Senator Taft did not justify § 301 as dependent on federal substantive law governing interpretation of collective bargaining contracts: 19 'Mr. President, title III of the bill * * * makes unions suable in the Federal courts for violation of contract. As a matter of law unions, of course, are liable in theory on their contracts today, but as a practical matter it is difficult to sue them. They are not incorporated; they have many members; in some States all the members must be served; it is difficult to know who is to be served. But the pending bill provides they can be sued as if they were corporations and if a judgment is found against the labor organization, even though it is an unincorporated association, the liability is on the labor union and the labor-union funds, and it is not on the individual members of the union, where it has fallen in some famous cases to the great financial distress of the individual members of labor unions.' 93 Cong.Rec. 3839. 20 Legislative history, in its relevant aspects, thus reinforces the meaning conveyed by the statute itself as a mere procedural provision. 21 2. From this conclusion inevitably emerge questions regarding the constitutionality of a grant of jurisdiction to federal courts over a contract governed entirely by state substantive law, a jurisdiction not based on diversity of citizenship yet one in which a federal court would, as in diversity cases, administer the law of the State in which it sits. The scope of allowable federal judicial power that this grant must satisfy is constitutionally defined as 'Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.' Art. III, § 2. 22 Almost without exception, decisions under the general statutory grants of jurisdiction strikingly similar to the constitutional wording, have tested jurisdiction in terms of the presence, as an integral part of plaintiff's cause of action, of an issue calling for interpretation or application of federal law.16 Although it has sometimes been suggested that the 'cause of action' must derive from federal law,17 it has been found sufficient that some aspect of federal law is essential to plaintiff's success.18 The litigation-provoking problem has been the degree to which federal law must be in the forefront of the case and not be remote, collateral or peripheral. 23 It has generally been assumed that the full constitutional power has not been exhausted by these general jurisdictional statutes.19 And in two lines of decision, under special jurisdictional grants for actions by or against federally incorporated organizations20 and trustees in bankruptcy,21 federal jurisdiction has been sustained despite the fact that the traditional 'federal question' theory of jurisdiction has considerable latitude if satisfied by the contingent likelihood of presentation of a federal question. Analysis of these cases in terms of that theory reveals analogies to § 301. For federal law is, in certain respects, in the background of any action on a collective bargaining agreement affecting commerce: § 301 vests rights and liabilities, which under state law are distributed among the union members, in a legal 'entity' recognized by federal law for purposes of actions on collective bargaining agreements in the federal courts; in such actions, the validity of the agreement may be challenged on federal grounds—that the labor organization negotiating it was not the representative of the employees involved, or that subsequent changes in the representative status of the union have affected the continued validity of the agreement.22 24 Federal jurisdiction based solely on the fact of federal incorporation has, however, been severely restricted by Congress,23 and this Court has cast doubt on its continued vitality.24 Whether the precedent might be extended to meet the substantial difficulties encountered under § 301 would pose a serious constitutional problem. 25 Recognition of jurisdiction in the bankruptcy cases, despite the fact that the actions might be governed solely by state law, draws on the reach of the bankruptcy power, which may reasonably be deemed to sweep within its scope interests sufficiently related to the main purpose of bankruptcy to call for organic treatment. To attempt to reason from these cases to § 301 raises the equally if not more serious question of what, if anything, is encompassed in jurisdiction over cases 'arising under the laws of the United States' beyond that which traditional 'federal question' theory recognizes.25 26 3. In an effort to avoid these problems, lower federal courts have given discordant answers. Most have ascribed to § 301 the creation of 'substantive federal rights' or the subjection of collective agreements to a body of federal common law.26 We must, of course, defer to the strong presumption—even as to such technical matters as federal jurisdiction—that Congress legislated in accordance with the Constitution. Legislation must, if possible, be given a meaning that will enable it to survive. This rule of constitutional adjudication is normally invoked to narrow what would otherwise be the natural but constitutionally dubious scope of the language. E.g., United States v. Delaware & Hudson Co., 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836; United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770. Here the endeavor of lower courts has resulted in adding to the section substantive congressional regulation even though Congress saw fit not to exercise such power nor to give the courts any concrete guidance for defining such regulation. 27 To be sure, the full scope of a substantive regulation is frequently in dispute and must await authoritative determination by courts. Congress declares its purpose imperfectly or partially and the judiciary rounds it out compatibly. But in this case we start with a provision which is wholly jurisdictional and as such bristles with constitutional problems under Article III. To avoid them, interpolation of substantive regulation has been proposed. From what materials are we to draw a determination that § 301 is something other than what it clearly appears to be? The problem is particularly vexing in view of the very difficult choice of policy that the alternatives of state or federal law present and the uncertainty as to the consequences of the choice. Is the Court justified in creating all these difficult problems of choice in matters of delicate legislative policy without any direction from Congress and merely for the sake of giving effect to a provision which seems to deal with a different subject? How far are courts to go in reshaping or transforming the obvious design of Congress in order to achieve validity for something Congress has not fashioned? In the words of Mr. Justice Cardozo, speaking for the whole Court: 'We think the light is so strong as to flood whatever places in the statute might otherwise be dark. Courts have striven mightily at times to canalize construction along the path of safety. * * * When a statute is reasonably susceptible of two interpretations, they have preferred the meaning that preserves to the meaning that destroys. * * * 'But avoidance of a difficulty will not be pressed to the point of disingenuous evasion.' * * * 'Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power." Hopkins Federal Savings & Loan Ass'n v. Cleary, 296 U.S. 315, 334 335, 56 S.Ct. 235, 240, 80 L.Ed. 251. 28 But assuming that we would be justified in proceeding further the suggestion that the section permits the federal courts to work out without more a federal code governing collective bargaining contracts does not free us from difficulties. 29 Such a task would involve the federal courts in multiplying problems which could not be solved without disclosing that Congress never intended to raise them. Application of a body of federal common law would inevitably lead to one of the following incongruities: (1) conflict in federal and state court interpretations of collective bargaining agreements; (2) displacement of state law by federal law in state courts, not only in actions between union and employer but in all actions regarding collective bargaining agreements; or (3) exclusion of state court jurisdiction over these matters. It would also be necessary to work out a federal code governing the interrelationship between the employee's rights and whatever rights were found to exist in the union. Moreover, if the general unfolding of such broad application of federal law were designed, the procedural objectives of Congress would have been accomplished without the need of any special jurisdictional statute. Federal rights would be in issue, and, under 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, and Federal Rule 17(b), the suit could be brought in any district court by or against the union as an entity. The only effect of § 301 would then be to dispense with the requirement of amount in controversy and to adopt certain other minor procedural rules. 30 It has been suggested that a more modest role might be assigned to federal law. The suggestion is that, in view of the difficulties which originally plagued the courts called upon to identify the nature of the legal relations created by a collective contract27 and in view of the generalized statements in the legislative history of § 301 in favor of enforceability of collective agreements, § 301 may be viewed as a congressional authorization to the federal courts to work out a concept of the nature of the collective bargaining contract, leaving detailed questions of interpretation to state law. 31 This is an excessively sophisticated attribution to Congress. Evidence is wolly wanting that Congress was aware of the diverse views taken of the collective bargaining agreement or, in any event, that they were interfering with any federal objective. Moreover, once the right of the union to enter into contracts is granted by state law, these problems are really questions of interpretation of the language of ambiguously drawn contracts. If federal law undertook to resolve these ambiguities, it would become inextricably involved in questions of interpretation of the language of contracts. Discrepancies between federal and state court treatment, while not so inevitable as where federal law undertook the entire task of interpretation, would result. And any difference between state and federal theories of enforceability would present opportunities for forum-shopping. 32 To turn § 301 into an agency for working out a viable theory of the nature of a collective bargaining agreement smacks of unreality. Nor does it seem reasonable to view that section as a delivery into the discretionary hands of the federal judiciary, finally of this Court, of such an important, complicated and subtle field. These difficulties may be illustrated by a discussion of the holding of the Court of Appeals in the present case. Its 'eclectic theory' of the nature of a collective agreement has no support in the statute, and, on the contrary, it is in some ways repugnant to it. (1) For example, the National Labor Relations Act seeks in § 9(a) to preserve the 'right' of an individual employee to take up grievances with his employer; but no one has ever suggested that these grievances may not be taken up by the union. (2) It excludes from the court stage the party that is recognized in the required preliminary stages. The union that is empowered to negotiate and settle the controversy before suit is barred from bringing suit when settlement is not reached. (3) This would tend to impair the union's power to negotiate a mutually satisfactory settlement. As a practical matter, the employees expect their union not just to secure a collective agreement but more particularly to procure for the individual employees the benefits promised. If the union can secure only the promise and is impotent to procure for the individual employees the promised benefits, then it is bound to lose their support. And if the union cannot ultimately resort to suit, it is encouraged to resort to strike action. 33 Perhaps the prime example of an individual cause of action, as distinguished from a union cause, under the Court of Appeals' 'eclectic theory,' would be the case of the discharge of a single employee. To make the situation vivid, assume that there is no dispute whatever as to the propriety of the alleged ground for the discharge and that the only matter in controversy is the question of fact whether the employee did or did not commit the offense alleged. Yet precisely such incidents often pull the trigger of work stoppages. When stoppages do occur, they most frequently involve a grievance with respect to one employee or a few employees much smaller in number than those involved in the stoppage. That such stoppages are wildcat and officially unauthorized merely emphasizes the fact of group interest in the incident. It is a matter of industrial history that stoppages of work because of disciplinary penalties against individuals, or because of failure to pay the rates claimed, or because of the promotion or layoff of one employee rather than another, or for similar reasons, have been frequent occurrences. A legal rule denying standing to the union to protect individual rights under what is to be deemed a contract with individuals would encourage such indiscipline. And this is true even though the ultimately desirable social policy is to make it a matter of industrial habit to rely for a remedy for such grievances not on stoppage of work or on lawsuits but on the grievance procedure within an industry. There is in fact a strong group interest in procuring for the employee the benefit promised as well as the promise in the collective agreement. If the union can represent and press that group interest, the stoppage may be avoided; if it cannot, the group resorts to wildcat self-help. The holding below cannot eliminate this group interest; it can stimulate its manifestation by way of a strike. 34 Is the line which the Court of Appeals has drawn the result of interpretation of the particular contract or of a rule of law beyond the power of the parties to alter? If it is the former, then the line can be obliterated by express language in the contract; and the unions can be trusted to find suitable language. They were quick to secure amendment to their constitutions or statutes in order to avoid the decision of this Court in Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886; Id., 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928.28 If it is the latter, what is the basis for the rule? It is not to be found in fear that the employee may not be able to sue. To hold that the union may sue, it is not necessary to hold that the employee may not sue in any forum, and vice versa. At least when the union and the employee are in agreement, there is no reason why either or both should not be permitted to sue. Such is the situation under § 9(a) of the National Labor Relations Act with respect to the adjustment of grievances without suit. When the employee and the union are in disagreement, the question is not which may sue, but rather the extent to which the one may conclude the other. 35 Speculative reflection reveals other possible substantive additions which might be made to § 301. When tested against the limitations which must restrict judicial elaboration of legislation, however, all meritorious possibilities are either too specialized to reach this case or too insignificant an addition to dissipate the constitutional doubts which have revealed themselves. 36 4. In the present case, however, serious constitutional problems may be avoided, and indeed must be, through the orthodox process of limiting the scope of doubtful legislation. We cannot adopt the reasoning of the Court of Appeals in reaching our conclusion that § 301 does not extend jurisdiction to the present case. That court relied upon an assumed federal concept of the nature of a collective bargaining agreement which is not justified either in terms of discoverable congressional intent or considerations relevant to the function of the collective agreement in the field of labor relations. The same objections do not, however, prevail against the view that whether or not the applicable substantive law—in our view state law—would recognize a right in the union, Congress did not intent to burden the federal courts with suits of this type. 37 Considering the nature of a collective bargaining contract, which involves the correlative rights of employer, employee and union, we might be disposed to read § 301 as allowing the union to sue in this case. With due regard to the constitutional difficulties which would be raised, and in view of the fact that such an interpretation would bring to the federal courts an extensive range of litigation heretofore entertained by the States, we conclude that Congress did not will this result. There was no suggestion that Congress, at a time when its attention was directed to congestion in the federal courts, particularly in the heavy industrial areas, intended to open the doors of the federal courts to a potential flood of grievances based upon an employer's failure to comply with terms of a collective agreement relating to compensation, terms peculiar in the individual benefit which is their subject matter and which, when violated, give a cause of action to the individual employee. The employees have always been able to enforce their individual rights in the state courts.29 They have not been hampered by the rules governing unincorporated associations. To this extent, the collective bargaining contract has always been 'enforceable.' 38 Nowhere in the legislative history did Congress discuss or show any recognition of the type of suit involved here, in which the union is suing on behalf of employees for accrued wages. Therefore, we conclude that Congress did not confer on the federal courts jurisdiction over a suit such as this one. 39 Affirmed. 40 Mr. Justice HARLAN took no part in the consideration or decision of this case. 41 Mr. Chief Justice WARREN, with whom Mr. Justice CLARK joins, concurring. 42 We agree with the decision but not with all that is said in the opinion. The only question we see here is one of statutory interpretation. For us the language of § 301 is not sufficiently explicit nor its legislative history sufficiently clear to indicate that Congress intended to authorize a union to enforce in a federal court the uniquely personal right of an employee for whom it had bargained to receive compensation for services rendered his employer. Thus viewed, it becomes unnecessary for us either to make labor policy or to raise constitutional issues. 43 Mr. Justice REED, concurring. 44 My analysis of this case leads me to concur on grounds stated later without the extensive comment and broad treatment given by the opinion of Mr. Justice FRANKFURTER. 45 What is there said as to the substantive law to be applied in § 301 actions will be pertinent in cases which are deemed to have been properly brought under that section—that is, where there is set forth the violation of a collective bargaining agreement based on the failure of either the employer or the union to carry out its undertakings with the other. It is appropriate therefore for me to state my views as to the law which will be applied in those actions and in so doing to express my disagreement with the constitutional doubts raised by the opinion of Mr. Justice FRANKFURTER. 46 Assuming that the purpose of § 301 was to make unions suable as if corporations, with provisions for venue and service, it also gave jurisdiction to federal district courts over certain matters related to interstate commerce and thus within the legislative powers of Congress. Labor Board Cases (National Labor Relations Board v. Jones & Laughlin Steel Corp.), 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893. The Labor Management Relations Act, 1947, is directed primarily to federal regulation of labor relations affecting commerce through the means of collective bargaining. While all contract questions that may arise in § 301 actions are not covered by the federal statute, the Act furnishes some substantive law which will be applied in those cases. It sets forth guiding principles which will bear on contracts made under it, and it also controls the machinery for reaching those agreements. It points out many things the parties may or may not do in commerce, just as other Acts, such as the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., do. Thus the contracts sued upon in § 301 actions will have been entered into in accordance with federal law; and although federal law does not set forth explicitly just what constitutes a breach, § 301, by granting federal jurisdiction over actions between employers and unions on collective bargaining contracts, does make breaches of them by either of those parties actionable. The fact that unions may make contracts under state law does not bar the Federal Government from legislation in its field. In case of conflict, federal law prevails. It is as true in federal laws as it is in state laws that the power to enact gives power to interpret. Jones v. Prairie Oil & Gas Co., 273 U.S. 195, at page 200, 47 S.Ct. 338, at page 339, 71 L.Ed. 602. 47 It may be that in proper litigation under § 301 it will be necessary for federal courts to draw largely on state law for the solution of issues. In such instances state law is relied upon because its application is not contrary to federal policy, but supplements and fulfills it. Board of Com'rs of Jackson County v. United States, 308 U.S. 343, 351, 60 S.Ct. 285, 288, 84 L.Ed. 313. It has been held that a suit in equity on a federal right in a federal court does not necessarily follow a state statute of limitation. Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743. The general rule is that federal interpretation controls a federal act. Jerome v. United States, 318 U.S. 101, 104, 63 S.Ct. 483, 485, 87 L.Ed. 640. 48 The fact that a considerable amount of state law may be applied in suits under § 301 should not affect the validity of the statute. This Court sustained the jurisdictional grant of § 23, sub. a of the Bankruptcy Act, 44 Stat. 664, 11 U.S.C.A. § 46, sub. a, despite the fact that causes of action brought thereunder were created and governed solely by state law. Schumacher v. Beeler, 293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433; Williams v. Austrian, 331 U.S. 642, 67 S.Ct. 1443, 91 L.Ed. 1718. See also Osborn v. President, Directors and Company of the Bank of the United States, 9 Wheat. 738, 6 L. Ed. 204; and Pacific Railroad Removal Cases (Union Pac. R. Co. v. Myers), 115 U.S. 1, 11, 5 S.Ct. 1113, 1117, 29 L.Ed. 319. Cf. The Federal Tort Claims Act. Since Congress has legislative power over labor matters affecting interstate commerce, it may grant jurisdiction to the federal courts to try incidents of that activity that raise legal issues, and dictate what law should be applied. The application of federal law raises no constitutional problem. If state law is to be applied, it is state law operating at the direction of and by the permission of Congress. State law is, in effect, incorporated by reference. Since the contract entered into through provisions of the Labor Act creates rights over which Congress has legislative authority, a breach of the contract is likewise within its power. Congress by § 301 has manifested its purpose to vest jurisdiction over breaches, to a certain extent, in the federal courts. Whether the rules of substantive law applied by the federal courts are derived from federal or state sources is immaterial. The rules are truly federal, not state. The cause of action for breach of contract is thus a cause of action arising under federal law, the source of federal judicial power under Art. III of the Constitution. 49 From the recognition of the power of Congress to regulate matters affecting commerce in Houston, East & West Texas Ry. Co. v. United States (The Shreveport Doctrine), 1914, 234 U.S. 342, 351, 34 S.Ct. 833, 836, 58 L.Ed. 1341, to Labor Board Cases, 1937, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, questions as to the power of Congress over local incidents of national commerce plagued advocates of legal changes with doubts as to the constitutional power of Congress to regulate labor relations effectually. With the full recognition of the integration of the local with the national, the power to use national authority in commerce, when needed, was established. I see no occasion, at this late date, to allow the fog of another day to obscure the national interest in these problems—this time by reason of Article III of the Constitution. Cf. subdivison 2 of Mr. Justice FRANKFURTER's opinion. 50 The reason, I think, that this union cannot recover from the employer in this suit under § 301 is that the claim for wages for the employees arises from separate hiring contracts between the employer and each employee. The union does not undertake to do work for the employer or even to furnish workers. The duty, if any there be, to pay wages to an employee arises from the individual contract between the employer and employee, not from the collective bargaining agreement. Therefore there is set out no violation of a contract between an employer and a labor organization as is required to confer jurisdiction under § 301. The facts show an alleged violation of a contract between an employer and an employee—a situation that is not covered by the statute. 51 The interpretation contained in the preceding paragraph conforms to the words of the section and avoids suggesting constitutional limitations that would cripple the creation of a national system for the enforcement of statutes concerning labor relations. 52 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 53 I agree with Mr. Justice REED that Congress in the Taft-Hartley Act created federal sanctions for collective bargaining agreements, made the cases and controversies concerning them justiciable questions for the federal courts, and permitted those courts to fashion from the federal statute, from state law, or from other germane sources, federal rules for the construction and interpretation of those collective bargaining agreements. 54 My dissent is from the refusal of the majority to allow the union standing to bring this suit. The complaint alleged that by reason of a collective bargaining agreement the employer was obligated to pay each employee, whom the union represents, his full salary during April 1951, regardless of whether he missed a day's work, unless the employee's absence was due to 'furlough' or 'leave of absence.' The complaint further alleged that the employer had violated the collective bargaining contract by deducting from the pay of some 4,000 employees their wages for April 3 on account of their absence, that absence not being a 'furlough' or 'leave of absence' within the meaning of the collective bargaining agreement. The union requested a declaration of rights under the collective bargaining agreement. Though the employees affected were not parties to the suit, the complaint prayed for an accounting of the amount owed each employee and a judgment in favor of the individual employees for the unpaid wages. 55 We make mountains out of molehills in not allowing the union to be the suing as well as the bargaining agency for its members as respects matters involving the construction and enforcement of the collective bargaining agreement. Individual contracts of employment result from each collective bargaining agreement. But those contracts are the resultant of the collective bargaining system, a system that continues to function and operate after the contracts and made. The concept of collective bargaining contained in the statute, 29 U.S.C. § 159(a), 29 U.S.C.A. § 159(a), includes of course, the negotiation of the collective agreement and the settling of the terms of the individual contracts. But the collective bargaining relationship does not end there. To be sure, the Taft-Hartley Act provides that there shall be no changes in the provisions of the agreement during its terms, 29 U.S.C. § 158(d), 29 U.S.C.A. § 158(d). But that does not mean that the collective bargaining agent drops out of the picture once the agreement is made. We know enough of trade-union practices to know that the advent of collective bargaining has produced a permanent, organized relationship between the union and the employer, involving a day-to-day administration of the collective agreement. The Act in deed extends the right of collective bargaining that far. For it specifically provides that '* * * to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder * * *,' 61 Stat. 142, 29 U.S.C. § 158(d), 29 U.S.C.A. § 158(d) (italtics added). 56 The processing of grievances is recognized by the Act as a function which the labor organization performs or may perform. For 29 U.S.C. § 152(5), 29 U.S.C.A. § 152(5) defines 'labor organization' as an agency which deals with employers, inter alia, 'concerning grievances.' As the National Labor Relations Board stated in Hughes Tool Co., 104 N.L.R.B. 318, 326, 'The adjustment of grievances, viewed in the larger aspect, constitutes, to a great degree, the actual administration of a collective-bargaining contract.' 57 The administration of the collective agreement is its life and meaning. The adjustment and settlement of grievances, the development of an administrative practice concerning the collective agreement give it force and authority 58 The right of individual employees to present their own grievances is recognized by the Act. 29 U.S.C. § 159(a), 29 U.S.C.A. § 159(a). But even when they desire to speak for themselves, rather than through the union, Congress attached two important conditions. First, any adjustment of the individual grievance must not be 'inconsistent with the terms of a collective-bargaining contract or agreement then in effect.' Second, the union must be given 'opportunity to be present at such adjustment.' Id. 59 It is plain, I think, that the grievance procedure is a part of the collective bargaining process. And a lawsuit is one of the ultimates of a grievance. A lawsuit, like negotiation or arbitration, resolves the dispute and settles it. 60 In short, the union represents the interests of the community of employees in the collective bargaining agreement. The wide range of its interests are envisaged by the Act, which gives the collective bargaining agency exclusive authority to bargain 'in respect to rates of pay, wages, hours of employment, or other conditions of employment.' 29 U.S.C. § 159(a), 29 U.S.C.A. § 159(a). The range of its authority is the range of its interests. What the union obtains in the collective agreement it should be entitled to enforce or defend in the forums which have been provided. When we disallow it that standing, we fail to keep the law abreast of the industrial developments of this age. 1 Section 301 provides: 'Sec. 301. (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. '(b) Any labor organization which represents employees in an industry affecting commerce as defined in this Act and any employer whose activities affect commerce as defined in this Act shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets. '(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members. '(d) The service of summons, subpena, or other legal process of any court of the United States upon an officer or agent of a labor organization, in his capacity as such, shall constitute service upon the labor organization. '(e) For the purposes of this section, in determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.' 2 Section 1 of the Act states the congressional aim to be the enumeration of 'legitimate rights' of employers and employees and the definition of practices to be outlawed in the interest of furthering industrial peace. No inference pertinent to the jurisdictional content of § 301 can be drawn from this introductory generalization. No other provision of the Act indicates that substantive federal law was to guide the determination of the contractual rights and liabilities that are to flow from a collective-bargaining contract. Section 302 contains a highly specialized restriction on the legality of employers' agreements to make payments to employee representatives. Section 303 provides a federal right to recover damages suffered as a result of improper boycotts. Section 8 enumerates unfair labor practices; these may in some instances become relevant to the validity or interpretation of a collective agreement. Certain procedural safeguards are placed about the collective bargaining agreement: an obligation to confer in good faith on questions arising under it; a duty to follow certain steps prior to terminating or modifying the agreement unilaterally. §§ 8(d), 204(a)(2). And a limited number of substantive rights conferred under the Act may incidentally involve the interpretation of the collective agreement. E.g., § 9(a). It is significant, however, that breach of contract is not an 'unfair labor practice.' A proposal to that end was contained in the Senate bill, but was deleted in conference with the observation: 'Once parties have made a collective bargaining contract the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board.' H.R.Conf.Rep.No.510, 80th Cong., 1st Sess. 42. The Act expressly defers to state law on the question of legality of the union shop provision. §§ 8(a)(3), 14(b). 3 H.R. 1781, 78th Cong., 1st Sess.; H.R. 4960, 79th Cong., 1st Sess.; S. 2488, S.J.Res. 133; H.J.Res. 318, 79th Cong., 2d Sess.; S.J.Res. 8; H.J.Res. 43, 80th Cong., 1st Sess. 4 S. 1641, 79th Cong., 1st Sess. 5 S. 1656, 79th Cong., 1st Sess.; S. 123; H.R. 267, 1430, 80th Cong., 1st Sess. 6 S. 55, 404; H.R. 725, 80th Cong., 1st Sess. Under S. 937, 80th Cong., 1st Sess., a system of federal labor courts to hear all cases arising out of collective bargaining contracts would have been established. 7 Hearings before a Subcommittee of the Senate Committee on Education and Labor on H.R. 4908, 79th Cong., 2d Sess. 11. 8 S.Rep.No.1177, 79th Cong., 2d Sess. 8. 9 Id., Part 2, at 3—4, 10—14. The section which they proposed was as follows: 'Sec. —-. (a) Suits for violation of a contract concluded as the result of collective bargaining between an employer and a labor organization if such contract affects commerce as defined in this Act may be brought in any district court of the United States having jurisdiction of the parties. '(b) Any labor organization whose activities affect commerce as defined in this Act shall be bound by the acts of its duly authorized agents acting within the scope of their authority from the said labor organization and may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States: Provided, That any money judgment against such labor organization shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.' 10 During the hearings on the Taft-Hartley bill, Senator Taft suggested that the fact that the collective bargaining agreement was the product of the exercise of federally created rights and duties was an adequate justification for federal jurisdiction. Hearings before Senate Committee on Labor and Public Welfare, on S. 55 and S.J.Res. 22, 80th Cong., 1st Sess. 57. 11 See the statements of Senators Murray and Magnuson which seemed to suggest that § 10 would create 'Federal rights.' 92 Cong.Rec. 5708, 5720, 5411—5415. Senator Murray, however, appears to have been thinking only of the procedural and jurisdictional rights admittedly conferred by § 10. Senator Magnuson spoke before Senator Taft introduced the amendment containing § 10, and may not have understood that it differed considerably from the House version. 12 H.R. 3020, 80th Cong., 1st Sess. § 302; S. 1126, 80th Cong., 1st Sess. § 301. 13 Hearings before Senate Committee on Labor and Public Welfare on S. 55 and S.J.Res. 22, 80th Cong., 1st Sess. 58. During these hearings Secretary Schwellenbach stated: 'Since the field of necessary legislative action is so narrow, I see no reason why the gates of the Federal courts should be opened so wide as to invite litigation, as is done by this proposed section. Speaking as a lawyer and former member of the Federal judiciary, I have an objection to the abandonment in this field of the requirement of the $3,000 amount in controversay as a prerequisite to Federal jurisdiction. This is a right which has been jealously guarded by the Congress and by the Federal courts. To have them cluttered up with a great mass of petty litigation involving amounts less than $3,000 would bring them back to the position which they occupied during prohibition days when they became just a little bit above the level of the average police court insofar as criminal work was concerned. 'I do not see why it is necessary in this field to abandon the diversity of citizenship requirement. In fact I doubt that it can be abandoned constitutionally. The Constitution, as you know, limits suits in the Federal courts to cases arising under the Constitution and the laws of the United States or involving diversity of citizenship.' Id., at 56. 14 H.Rep.No.245, 80th Cong., 1st Sess. 108—110; S.Rep.No.105, 80th Cong., 1st Sess., Part 2, 13—15. 15 93 Cong.Rec. 4033, 4906 (Senator Murray); id., at 4768 (Senator Thomas). 16 E.g., Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70. 17 See American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987. 18 Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577. 19 See, e.g., Mishkin, The Federal 'Question' in the District Courts, 53 Col.L.Rev. 157, 160; Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L.J. 393, 405, n. 47; Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp.Prob. 216, 225. 20 Osborn v. President, Directors and Company of the Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204; Pacific Railroad Removal Cases (Union Pac. R. Co. v. Myers), 115 U.S. 1, 5 S.Ct. 1113, 29 L.Ed. 319. 21 Schumacher v. Beeler, 293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433; Williams v. Austrian, 331 U.S. 642, 67 S.Ct. 1443, 91 L.Ed. 1718. 22 Cf. LaCross Telephone Corp. v. Wisconsin Employment Relations Board, 336 U.S. 18, 69 S.Ct. 379, 93 L.Ed. 463. 23 62 Stat. 934, 28 U.S.C. § 1349, 28 U.S.C.A. § 1349: 'The district courts shall not have jurisdiction of any civil action by or against any corporation upon the ground that it was incorporated by or under an Act of Congress, unless the United States is the owner of more than one-half of its capital stock.' 24 See Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 113, 57 S.Ct. 96, 97, 98, 81 L.Ed. 70. 25 For some of the views advanced concerning the power of Congress to confer jurisdiction despite the absence of any 'federal question' in the traditional sense, see National Mutual Ins. Co. of District of Columbia v. Tidewater Transfer Co., 337 U.S. 582, 600, 69 S.Ct. 1173, 1182, 93 L.Ed. 1556; Textile Workers Union of America v. American Thread Co., D.C., 113 F.Supp. 137; Hart and Wechsler, The Federal Courts and the Federal System, 744 747; Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contempt.Prob. 216, 224; Mishkin, The Federal 'Question' in the District Courts, 53 Col.L.Rev. 157, 184. 26 At least one federal court has held that state law is to be applied, perhaps on the theory of federal incorporation of state law as federal law. Insurance Agents' International Union, A.F. of L. v. Prudential Ins. Co., D.C., 122 F.Supp. 869; see Textile Workers Union of America v. American Thread Co., D.C., 113 F.Supp. 137, 140 (suggestion of such a possibility). Cf. International Woodworkers of America, Local 6—64, C.I.O. v. McCloud River Lumber Co., D.C., 119 F.Supp. 475 (state law applied where jurisdiction was based on diversity as well as § 301); Isbrandtsen Co. v. Local 1291 of International Longshoremen's Ass'n, D.C., 107 F.Supp. 72, affirmed 3 Cir., 204 F.2d 495 (diversity again present; on appeal, federal and state law found to be the same and question of applicable law avoided); John Hancock Mutual Life Ins. Co. v. United Office & Professional Workers of America, D.C., 93 F.Supp. 296 (removal to federal court denied on ground that even if § 301 gives federal rights, the complaints were framed with reference solely to state law). Most federal courts, however, hold that § 301 created federal substantive rights and, when called upon to choose between state and federal law, apply the latter. E.g., United Electrical, Radio & Machine Workers of America v. Oliver Corp., 8 Cir., 205 F.2d 376; Milk and Ice Cream Drivers and Dairy Employees Union, Local No. 98 v. Gillespie Milk Products Corp., 6 Cir., 203 F.2d 650; Shirley-Herman Co. v. International Hod Carriers Union of America, Local Union No. 210, 2 Cir., 182 F.2d 806, 17 A.L.R.2d 609; International Plainfield Motor Co. v. Local No. 343, International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, C.I.O., D.C., 123 F.Supp. 683; Waialua Agr. Co. v. United Sugar Workers, I L W U Local 142, D.C., 114 F.Supp. 243; Ludlow Mfg. & Sales Co. v. Textile Workers Union of America (CIO), D.C., 108 F.Supp. 45; Pepper & Potter, Inc., v. Local 977, United Auto Workers, C.I.O., D.C., 103 F.Supp. 684; Fay v. American Cytoscope Makers, Inc., D.C., 98 F.Supp. 278; Textile Workers Union of America, C.I.O. v. Aleo Mfg. Co., D.C., 94 F.Supp. 626; Wilson & Co. v. United Packinghouse Workers of America, D.C., 83 F.Supp. 162; Colonial Hardwood Flooring Co. v. International Union United Furniture Workers of America, D.C., 76 F.Supp. 493, affirmed 4 Cir., 168 F.2d 33; International Union of Operating Engineers Local No. 181 v. Dahlem Const. Co., 6 Cir., 193 F.2d 470 (semble); see Rock Drilling, Blasting, Roads, Sewers, Viaducts, Bridges, Foundations, Excavations and Concrete Work, etc., Local Union No. 17 v. Mason & Hanger Co., 2 Cir., 217 F.2d 687, 691; Schatte v. International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of United States and Canada, 9 Cir., 182 F.2d 158, 164. Cf. Textile Workers Union of America, C.I.O. v. Arista Mills Co., 4 Cir., 193 F.2d 529 (refusal to pass on whether substantive federal rights created; federal law apparently viewed as applicable to issue raised in any event). At least two courts have drawn a distinction between the law to be applied to matters of 'substantive right' and 'remedy.' Hamilton Foundry & Machine Co. v. International Molders & Foundry Workers Union of North America, 6 Cir., 193 F.2d 209 (federal rights created but state statute of frauds applied); Textile Workers Union of America v. American Thread Co., D.C., 113 F.Supp. 137 (whether or not federal law applies to other matters, federal law regarding enforcement of arbitration clauses applies). 27 The collective agreement was variously viewed as: (1) the mere formulation of usage or custom relevant to the interpretation of the individual employment contract; (2) a contract between the employer and the individual member-employees, negotiated by the union as the employees' agent; (3) a contract between the union and employer for the benefit of the individual employees; and (4) as held by the court below, a contract between the union and employer giving the union certain rights, including the right to insist that the employer contract with his employees consistently with the terms of the agreement, but giving the union no right to enforce obligations running to individuals under their contracts of hire. 28 The Brotherhood of Locomotive Engineers amended their Standing Rules to provide for automatic consent of all members to the Brotherhood's prosecution of grievances at their Tenth Triennial Convention in March and April 1947. The Brotherhood of Locomotive Firemen and Enginemen added a similar provision to their Constitution at their 35th Convention in 1947. The Order of Railway Conductors and Brakemen amended their 'statute' in a similar fashion in 1946. The Brotherhood of Railroad Trainmen at their 1946 Convention adopted a new General Rule which empowered the Brotherhood to prosecute grievances 'Except in individual cases where the member or members involved serve seasonable written notice on the Brotherhood to the contrary.' 29 For examples of such suits by employees in state courts prior to 1947, when the Taft-Hartley Act was passed, see Gulla v. Barton, 164 App.Div. 293, 149 N.Y.S. 952; H. Blum & Co. v. Landau, 23 Ohio App. 426, 155 N.E. 154; Mastell v. Salo, 140 Ark. 408, 215 S.W. 583; McGregor v. Louisville & N.R. Co., 244 Ky. 696, 51 S.W.2d 953; O'Jay Spread Co. v. Hicks, 185 Ga. 507, 195 S.E. 564 (class suit); Rentschler v. Missouri Pac. R. Co., 126 Neb. 493, 253 N.W. 694, 95 A.L.R. 1; volquardsen v. Southern Amusement Co., La.App., 156 So. 678; Yazoo & M.V.R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669; Cross Mountain Coal Co. v. Ault, 157 Tenn. 461, 9 S.W.2d 692; and Hall v. St. Louis-San Francisco R. Co., 224 Mo.App. 431, 28 S.W.2d 687. See also Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089; J. I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 336, 64 S.Ct. 576, 579, 88 L.Ed. 762; I Teller, Labor Disputes and Collective Bargaining (1940, 1947 Cum.Supp.) §§ 166—168; II Williston, Contracts (rev. ed. 1936), § 379A. And such suits are still being entertained. E.g., Dufour v. Continental Southern Lines, Inc., Miss., 68 So.2d 489; Donahoo v. Thompson, Mo.App., 270 S.W.2d 104; Marranzano v. Riggs Nat. Bank of Washington, D.C., 87 U.S.App.D.C. 195, 184 F.2d 349; MacKay v. Loew's, Inc., 9 Cir., 182 F.2d 170, 18 A.L.R.2d 348 (diversity case); II Williston, Contracts, § 379A (1954 Cum.Supp.).

89

348 U.S. 492 75 S.Ct. 467 99 L.Ed. 583 FEDERAL POWER COMMISSION, Petitioner,v.COLORADO INTERSTATE GAS COMPANY. No. 45. Argued Jan. 31, 1955. Decided March 28, 1955. Mr. Warren E.Burger, Asst. Atty. Gen., for petitioner. Mr. James Lawrence White, New York City, for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 The principal question before us is whether, on a petition to review a natural gas rate reduction order of the Federal Power Commission, a Court of Appeals may consider, sua sponte, an objection which has not been urged before the Commission in the application for rehearing prescribed by § 19 of the Natural Gas Act.1 Alternatively, a question also is raised whether, in such a rate proceeding, a Court of Appeals may invalidate, sua sponte, an existing order of the Commission, which prohibits the inclusion of certain operating expenses of the natural gas company in its cost of service, where such order not only has been proposed and acquiesced in by the company, but has been imposed on it by the Commission as a condition of a merger under which the company is operating. For the reasons hereafter stated, we answer each of these questions in the negative. 2 In 1948, the Federal Power Commission, petitioner herein, instituted a rate investigation against respondent, the Colorado Interstate Gas Company, under § 5(a) of the Natural Gas Act, 52 Stat. 823—824, 15 U.S.C. § 717d(a), 15 U.S.C.A. § 717(a). While this was pending, respondent and the Canadian River Gas Company filed a joint application under § 7 of the same Act, 52 Stat. 824 825, as amended, 15 U.S.C. § 717f, 15 U.S.C.A. § 717f. That application sought a certificate of public convenience and necessity permitting respondent to merge with the latter company, acquire and operate its properties, and construct additional facilities. Objection was made that consumers, receiving natural gas from respondent, might be forced by this merger to share respondent's loss if the costs of certain gasoline operations to be undertaken by it exceeded its revenues from them. To meet this objection, respondent proposed that the Commission, in any natural gas rate proceeding, exclude such loss from the company's cost of service.2 3 March 1, 1951, the Commission wrote in the above proposal as a condition of its certification of the merger. 10 F.P.C. 105, 778.3 No review was sought. The merger was consummated and respondent has enjoyed its benefits since December 31, 1951. 4 The rate investigation was resumed in 1951 and the year 1952 became the test year. The usual intermediate decision was omitted and, on August 8, 1952, the Commission issued its findings and rate order. 95 P.U.R.(N.S.) 97. In that proceeding, respondent had argued for a 'volumetric' allocation of gasoline costs which, in 1952, would result in a showing of no loss suffered by it from the gasoline operations in question. The Commission, however, had declined to adopt that method and had applied a 'relative market value method' of allocating costs. This showed a loss of $421,537 from such operations and, pursuant to its merger order, the Commission held that such loss 'shall not be considered as a part of the cost of service which we have heretofore determined.' On that basis, the Commission found respondent's total cost of service, in 1952, to be $14,952,567, including federal taxes of $185,599 and the proceeds of a 5.75% rate of return ($3,280,317 on a rate base of $57,048,988). Deducting that cost from its gas service revenues of $17,962,532 left respondent with excess revenues of over $3,000,000. The Commission accordingly ordered a rate reduction eliminating that excess. Id., at 127. 5 Respondent applied for a rehearing pursuant to § 19(a) of the Natural Gas Act. The application stated respondent's objections to the Commission's allocation of the expense of the gasoline operations and a claim that, if the costs were properly allocated, there would be no resulting loss. Respondent complained further that the Commission's computation, in effect, reduced the company's rate of return from 5.75% to 5.01%. At no point did respondent contend that the Commission's order excluding respondent's loss from gasoline operations from its cost of service was invalid. Upon consideration of the application, the Commission denied the rehearing and modified the new rates only to a slight degree not material here. 6 On respondent's petition for review by the Court of Appeals for the Tenth Circuit, that court generally upheld the Commission's findings and order. It accepted the Commission's method of allocating respondent's gasoline costs and the computation which fixed the resulting loss at $421,537. However, the court held, sua sponte, that, despite the action taken in the merger proceeding, this loss must be added to respondent's cost of service. The court therefore reversed the Commission's order and remanded the cause for further proceedings. 209 F.2d 717. After reargument, the court reaffirmed its position. 209 F.2d 732. Recognizing the importance of such a result in relation to the judicial review of administrative orders, we granted the Commission's petition for certiorari but denied respondent's cross-petition. 347 U.S. 1009, 74 S.Ct. 866, 98 L.Ed. 1133; 348 U.S. 818, 75 S.Ct. 30; 348 U.S. 884, 75 S.Ct. 122. 28 U.S.C. § 1254(1), 28 U.S.C.A. § 1254(1); 52 Stat. 831—832, 15 U.S.C. § 717r(b), 15 U.S.C.A. § 717r(b). 7 The Natural Gas Act prescribes explicitly the procedure to be followed by any person seeking judicial review of an order of the Federal Power Commission, and limits the scope of that review as follows: 8 'Sec. 19. (a) Any person * * * aggrieved by an order issued by the (Federal Power) Commission in a proceeding under this Act to which such person * * * is a party may apply for a rehearing within thirty days after the issuance of such order. The application for rehearing shall set forth specifically the ground or grounds upon which such application is based. * * * No proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Commission for a rehearing thereon. 9 '(b) * * * No objection to the order of the Commission shall be considered by the Court (of Appeals) unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do. * * *' (Emphasis supplied.) 52 Stat. 831—832, 15 U.S.C. § 717r(a) and (b), 15 U.S.C.A. § 717r(a, b). 10 Respondent first contends that its application for a rehearing by the Commission did, in substance, object to the validity of the merger condition and thus did meet the requirements of § 19(b). We find, however, that in such application, respondent objected to the exclusion of the loss of $421,537 from gasoline operations merely on the ground that the Commission's certificate approving the merger required a 'proper allocation' of the costs, and that the method of allocation chosen by the Commission was not 'proper.' Respondent also unsuccessfully proposed an alternative method of allocation, which would eliminate the loss. In passing upon these contentions, the Commission assumed, as did respondent, that any properly computed loss resulting from the gasoline operations was to be excluded from the cost of service. Respondent's objection thus gave no notice that respondent was attacking the validity of the merger condition. The same is true of respondent's objection to the Commission's treatment of its income taxes, and of respondent's claim that the ultimate effect of the Commission's order was to reduce its net share of the proceeds of the rate of return from one of 5.75% to one of 5.01%. These were bids for a higher rate of return or for a recomputation of the loss from the gasoline operations, not claims that the merger condition was invalid. 11 Respondent's second and principal contention is that although its application did not meet the requirements of § 19(b) and it therefore is barred from attacking the validity of the merger, condition in the Court of Appeals, nothing precludes that court itself from raising, considering and sustaining the same objection, sua sponte. Respondent's error appears on the face of the statute. Section 19(a) first precludes the bringing of any proceeding in a Court of Appeals to review an order of the Commission, unless the person bringing it previously has applied to the Commission for a rehearing on that order. Section 19(b) then expressly precludes the consideration by the court of any objection to an order of the Commission, unless the objection shall have been urged before the Commission in the application for rehearing. As the court is thus expressly precluded from considering an objection when, without prior application to the Commission, that objection is presented to the court by the party directly aggrieved,4 it cannot be assumed that Congress intended to permit the same court to consider the same objection, under the same circumstances, sua sponte, merely because the objection was not presented to the court by the party aggrieved. Section 19(b) reflects the policy that a party must exhaust its administrative remedies before seeking judicial review. To allow a Court of Appeals to intervene here on its own motion would seriously undermine the purpose of the explicit requirements of § 19(b) that objections must first come before the Commission. 12 Section 10(e) of the Administrative Procedure Act does not require a different result.5 That Act purports to strengthen, rather than to weaken, the principle requiring the exhaustion of administrative remedies before permitting court review. The Senate Committee, recommending the bill for that Act, said: 13 'A party cannot wilfully fail to exhaust his administrative remedies and then, after the agency action has become operative, either secure a suspension of the agency action by a belated appeal to the agency, or resort to court without having given the agency an opportunity to determine the questions raised. If he so fails he is precluded from judicial review by the application of the time-honored doctrine of exhaustion of administrative remedies. * * *' (Emphasis supplied.) S.Doc. No. 248, 79th Cong., 2d Sess. 289, n. 21. 14 Furthermore, § 10, by its own terms, is made inapplicable in 'so far as (1) statutes (as here) preclude judicial review', and § 10(e) applies only to situations where the question at issue has been properly 'presented,' as has not been done here. It is not a reasonable interpretation of the general terms of that Act to hold that they repeal the administrative procedures specifically set forth in the Natural Gas Act. 15 'We have recognized in more than a few decisions, and Congress has recognized in more than a few statutes, that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts.' United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 35—37, 73 S.Ct. 67, 68 69, 97 L.Ed. 54. See also, Riss & Co. v. United States, 341 U.S. 907, 71 S.Ct. 620, 95 L.Ed. 1345; Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616; United States v. Capital Transit Co., 338 U.S. 286, 291, 70 S.Ct. 115, 117, 94 L.Ed. 93; Unemployment Compensation Commission of Territory of Alaska v. Aragan, 329 U.S. 143, 155, 67 S.Ct. 245, 251, 91 L.Ed. 136. 16 The necessity for prior administrative consideration of an issue is apparent where, as here, its decision calls for the application of technical knowledge and experience not usually possessed by judges. The Federal Power Commission is an administrative agency the decisions of which involve those difficult problems of policy, accounting, economics and special knowledge that go into public utility rate making. For reviewing a rate made by the Federal Power Commission, the Court of Appeals has no inherent suitability comparable to that which it has for reviewing the judicial decisions made by a United States District Court. 17 Respondent further suggests that to limit the judicial review of the Court of Appeals to those objections which have been urged specifically before the Commission prevents that court from reviewing effectively the 'end result' of the rate order. See Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333. To accept that argument would wipe out at a single stroke the expressly prescribed policy of § 19(b). Not only would such acceptance be contrary to the terms of the statute, but it would fail to recognize the fundamental consideration that it is not the function of a court itself to engage in rate making. 18 Returning to the language of § 19, we hold that the Court of Appeals does not here have authority, either under § 19 or sua sponte, to reverse the Commission by overruling its exclusion of $421,537 of gasoline production expense from respondent's cost of service for rate purposes. 19 As an alternative ground for reversal, the Commission also contends that the Court of Appeals is here precluded from redetermining the validity of the merger condition because of respondent's and the Commission's previous conduct in approving it. Cf. United States v. Hancock Truck Lines, 324 U.S. 774, 778 780, 65 S.Ct. 1003, 1005—1006, 89 L.Ed. 1357. In 1950, respondent proposed this condition in its merger proceeding. That merger had many facets and a difference of opinion existed within the Commission on its merits. 10 F.P.C. 105, 119. In 1951, the condition before us became an important factor in securing the Commission's finding that the merger would be in the public interest. Id., 324 U.S. at page 780, 65 S.Ct. at page 1006. After the merger was approved on that condition, respondent sought no review of it. On the other hand, respondent consummated the merger and has enjoyed its benefits ever since. It cannot now be allowed to attack an officially approved condition of the merger while retaining at the same time all of its benefits. The impropriety of the attack is rendered twofold because it is not made in the merger proceeding but is attempted in a separate rate proceeding. While respondent also charges that, under the Commission's allocation of gasoline costs and the condition requiring the company to absorb them, the rate of return is reduced from 5.75% to 5.01% and is therefore unreasonable and confiscatory, we do not sustain that charge. 20 The judgment of the Court of Appeals accordingly is reversed. 21 Reversed. 22 Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 52 Stat. 831—832, as amended, 15 U.S.C. § 717r, 15 U.S.C.A. § 717r. The material provisions of § 19(a) and (b) are set forth in the body of this opinion at page 470 of 75 S.Ct., infra. For related litigation not material to the issues now presented, see Colorado Interstate Gas Co. v. Federal Power Commission (Canadian River Gas Co. v. Federal Power Commission), 324 U.S. 581, 65 S.Ct. 829, 89 L.Ed. 1206; and Colorado-Wyoming Gas Co. v. Federal Power Commission, 324 U.S. 626, 65 S.Ct. 850, 89 L.Ed. 1235. 2 The proposal in respondent's letter of June 8, 1950, to the Commission, was that 'in order to keep a rate payer from meeting this deficiency the Commission could condition the certificate of public convenience and necessity so as in effect to provide that such deficit would not be considered in determining reasonable rates. In other words, the stockholders of Colorado Interstate Gas Company would take the risk as to whether or not gasoline prices will go down.' 3 '(i) The authorization herein granted for effectuating the acquisition and operation of Canadian's properties and facilities is upon the express understanding and condition that if, as a result of carrying out the terms and conditions in the transaction proposed as a part of the acquisition and merger of Canadian into Colorado whereby rights to liquid hydrocarbons in place are granted to Southwestern Development Co. and whereby Colorado is to receive 50 percent of the gross proceeds from the sale of certain liquid hydrocarbons and 15 percent of the net revenue to be received by Colorado from the hydrocarbons resulting from the operation of Fritsch Natural Gasoline Plant of Texoma Natural Gas Co., the costs properly allocable to such hydrocarbons exceed the amounts payable to Colorado pursuant to such transaction, then and in that case in any proceeding in which the effective or proposed rates of Colorado are under inquiry such excess shall not be considered as a cost of service to Colorado's natural gas customers and consumers.' (Emphasis supplied.) 10 F.P.C., at 780. 4 '* * * Petitioner, moreover, failed to object in its application for rehearing before the Commission to the inclusion of its producing properties and gathering facilities in the rate base. It is accordingly precluded by § 19(b) of the Act from attacking the order of the Commission on the ground that they are included.' Panhandle Eastern Pipe Line Co. v. Federal Power Commission, 324 U.S. 635, 649, and see 650—651, 65 S.Ct. 821, 828, 829, 89 L.Ed. 1241. See also, National Labor Relations Board v. Cheney Cal. Lumber Co., 327 U.S. 385, 388—389, 66 S.Ct. 553, 554, 90 L.Ed. 739; and National Labor Relations Board v. Seven-Up Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377, where failure to preserve the issue by objection before the agency was treated as a bar to the judicial consideration of it. 5 '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 unreasonably 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.' (Emphasis supplied.) 60 Stat. 243—244, 5 U.S.C. § 1009(e), 5 U.S.C.A. § 1009(e).

78

348 U.S. 511 75 S.Ct. 452 99 L.Ed. 600 AMALGAMATED CLOTHING WORKERS OF AMERICA, et al., Petitioners,v.The RICHMAN BROTHERS. No. 173. Argued March 4 and 7, 1955. Decided April 4, 1955. Mr.William J. Isaacson, for petitioners. Mr. Luther Day, Cleveland, Ohio, for respondent. Mr. Philip Elman, Washington, D.C., for N.L.R.B. amicus curiae by special leave of Court. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 In Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, decided last Monday on writ of certiorari to the Missouri Supreme Court, we considered the jurisdiction of a state court to enjoin conduct which in one aspect brought it within exclusive federal authority under the Taft-Hartley Act and in another constituted a violation of a state statute against restraint of trade. In this case we have to decide the question whether, under similar circumstances, a union has open to it, without resorting to the appellate procedures of the State and eventually of this Court, jurisdiction of a federal district court to enjoin the employer from pursuing his action in the state court. 2 Petitioner, an unincorporated association of clothing workers, was responsible for peaceful picketing of a number of respondent's retail stores, presumably to compel its factory employees to join the union. Respondent, an Ohio corporation engaged in the manufacture and sale of men's clothing in interstate commerce, filed suit in the Court of Common Pleas for Cuyahoga County, Ohio, alleging that the union's conduct constituted a common-law conspiracy as well as a statutory and common-law restraint of trade. It prayed for temporary and permanent injunctions. The union brought proceedings to remove the case to the United States District Court for the Northern District of Ohio, claiming that the employer's petition alleged facts bringing the case within the original jurisdiction of the District Court as a civil action arising under the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq. 28 U.S.C. § 1337, 28 U.S.C.A. § 1337. That court remanded the action to the state court on the ground that if, as the union contended, the complaint in effect alleged a violation of § 8(b)(1)(A) of the Taft-Hartley Act, under the decision in Garner v. Teamsters, Chauffeurs and Helpers Local Union, No. 776 (A.F.L.), 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, only the National Labor Relations Board had jurisdiction of its subject matter. Richman Brothers Co. v. Amalgamated Clothing Workers of America, D.C., 114 F.Supp. 185, rehearing denied, D.C., 116 F.Supp. 800. 3 Upon remand, the union invoked the ground taken by the District Court in denying its jurisdiction in a motion to dismiss the action in the state court. This motion was denied without opinion. The union then filed this complaint in the same District Court seeking an injunction which would require the employer to withdraw the action commenced in the state court. Jurisdiction was based on 28 U.S.C. § 1337, 28 U.S.C.A. § 1337. This provision confers jurisdiction on federal courts over any civil action arising under any Act of Congress regulating interstate commerce. The union also relied on 28 U.S.C. § 1651, 28 U.S.C.A. § 1651, the all-writs section. The District Court held that under 28 U.S.C. § 2283, 28 U.S.C.A. § 2283, which prohibits federal injunctions against state court proceedings, it was without power to grant the requested relief, inasmuch as the action did not come within any of the exceptions to that general prohibition. The Court of Appeals for the Sixth Circuit unanimously affirmed, 211 F.2d 449. The jurisdictional question is plainly important in this area of federal-state relations and we granted certiorari, 348 U.S. 813, 75 S.Ct. 43. 4 Subsequent to the affirmance by the Court of Appeals, the Ohio Court of Common Pleas ruled favorably on the employer's motion for a temporary injunction. Richman Brothers Co. v. Amalgamated Clothing Workers of America, Ohio Com.Pl., 116 N.E.2d 60. 5 1. Under the decision in Weber v. Anheuser-Busch, Inc., we may assume that the conduct in controversy is subject to whatever relief the Taft-Hartley Act may afford, and therefore is outside state authority. The question is whether a federal court may, before complaint has been entertained by the Board and at the request of one of the private parties, enjoin the attempt to secure relief through state proceedings. 6 We need not re-examine the series of decisions, prior to the enactment of Title 28 of the United States Code in 1948, which appeared to recognize implied exceptions to the historic prohibition against federal interference with state judicial proceedings. See Toucey v. New York Life Ins. Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100. By that enactment, Congress made clear beyond cavil that the prohibition is not to be whittled away by judicial improvisation. Former § 265 of the Judicial Code provided: 7 'The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.' 36 Stat. 1162. 8 The 1948 enactment revised as well as codified. The old section was thus embodied in the new § 2283: 9 'A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.' 10 In lieu of the bankruptcy exception of § 265, Congress substituted a generalized phrase covering all exceptions, such as that of the Interpleader Act, 28 U.S.C. § 2361, 28 U.S.C.A. § 2361, to be found in federal statutes. Two newly formulated exceptions to the general prohibition deal with problems of judicial administration which had earlier been the subject of the series of decisions dealt with in the Toucey case. If confirmation of the comprehensive scope thus revealed on the face of the enactment were necessary, it is to be found in the Reviser's Notes, which state: 11 'An exception as to Acts of Congress relating to bankruptcy was omitted and the general exception substituted to cover all exceptions.'1 12 In the face of this carefully considered enactment, we cannot accept the argument of petitioner and the Board, as amicus curiae, that § 2283 does not apply whenever the moving party in the District Court alleges that the state court is 'wholly without jurisdiction over the subject matter, having invaded a field pre-empted by Congress.' No such exception had been established by judicial decision under former § 265.2 In any event, Congress has left no justification for its recognition now. This is not a statute conveying a broad general policy for appropriate ad hoc application. Legislative policy is here expressed in a clear-cut prohibition qualified only by specifically defined exceptions. 13 We are further admonished against taking the liberty of interpolation when Congress clearly left no room for it, by the inadmissibility of the assumption that ascertainment of pre-emption under the Taft-Hartley Act is self-determining or even easy. As we have noted in the Weber case, 'the areas that have been pre-empted by federal authority and thereby withdrawn from state power are not susceptible of delimitation by fixed metes and bounds.' 348 U.S. at page 480, 75 S.Ct. at page 487. What is within exclusive federal authority may first have to be determined by this Court to be so. 14 2. We turn, therefore, to the specific exemptions contained in § 2283. The first of these permits an injunction to issue 'as expressly authorized by Act of Congress'. In the present case we are directed to no 'express' authorization within even the most attenuated meaning of the term. Of course no prescribed formula is required; an authorization need not expressly refer to § 2283. But the only 'express' authorization, in the freest use of the word, to be found in the Taft-Hartley Act does not help petitioner. Congress has provided an administrative agency to pass on claims that rights granted by the Act are denied or that restrictions imposed by the Act are disregarded. Only after the Board has found such claims to be well-founded and has formulated remedies for their vindication does the jurisdiction for review by the Court of Appeals come into being. However, injunctive relief or a temporary restraining order may be obtained by the Board from the appropriate District Court, pending final adjudication by the Board, 'upon issuance of a complaint' by the Board or when there is 'reasonable cause to believe' in the truth of a charge that a party 'has engaged in an unfair labor practice within the meaning of paragraph (4)(A), (B), or (C) of section 8(b).' Congress explicitly gave such jurisdiction to the district courts only on behalf of the Board on a petition by it or 'the officer or regional attorney to whom the matter may be referred'. § 10(j), (l), 61 Stat. 149, 29 U.S.C. § 160(j, l), 29 U.S.C.A. § 160(j, l). To hold that the Taft-Hartley Act also authorizes a private litigant to secure interim relief would be to ignore the closely circumscribed jurisdiction given to the District Court and to generalize where Congress has chosen to specify. To find exclusive authority for relief vested in the Board and not in private parties accords with other aspects of the Act. See Amalgamated Utility Workers v. Consolidated Edison Co. of New York, 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738. Such was the authority recognized in Capital Service, Inc. v. National Labor Relations Board, 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887. 15 But the argument is made that to permit the state courts to proceed unchecked in their incursion upon a federally pre-empted domain dislocates the federal scheme as a whole. This argument is only a rephrasing of the suggestion that whenever Congress is found to have preempted a field by legislation § 2283 must yield. But its thrust is deeper in the particular circumstances of this case. If the employer's use of the judicial process of the State does not amount to an unfair labor practice, and if the Board is without power to seek an injunction before a complaint is filed with it, the federal mechanism will not be invoked and federally protected rights may be denied until the injunction is lifted. The employer, who might have brought a charge of an unfair labor practice before the Board, has chosen to ignore his remedy under the Taft-Hartley Act. The temporary injunction which has been issued is not, under Ohio law, appealable,3 and the appellate procedures which will be available if a permanent injunction is issued are necessarily time-consuming. Thus, so the argument runs, unless the federal court can intervene, delay will not only undercut the legislative scheme, but opportunity for effective union activity may be diminished if not lost. 16 The assumption upon which the argument proceeds is that federal rights will not be adequately protected in the state courts, and the 'gap' complained of is impatience with the appellate process if state courts go wrong. But during more than half of our history Congress, in establishing the jurisdiction of the lower federal courts, in the main relied on the adequacy of the state judicial systems to enforce federal rights, subject to review by this Court. With limited exceptions, it was not until 1875 that the lower federal courts were given general jurisdiction over federal questions.4 During that entire period, the vindication of federal rights depended upon the procedure which petitioner attacks as so grossly inadequate that it could not have been contemplated by Congress. The prohibition of § 2283 is but continuing evidence of confidence in the state courts, reinforced by a desire to avoid direct conflicts between state and federal courts. 17 We cannot assume that this confidence has been misplaced. Neither the course of this case, nor the history of state court actions since the decision in Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776 (A.F.L.), 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, demonstrates recalcitrance on the part of state courts to recognize the rather subtle line of demarcation between exclusive federal and allowable state jurisdiction over labor problems. In its effort to define what has been withdrawn from the States and what has been left them, the opinion in Garner, decided just last Term, was hedged with qualifications, even in a case which dealt only with state court enforcement of a state labor policy as such. 18 Misapplication of this Court's opinions is not confined to the state courts, nor are delays in litigation peculiar to them. To permit the federal courts to interfere, as a matter of judicial notions of policy, may add to the number of courts which pass on a controversy before the rightful forum for its settlement is established. A district court's assertion of equity power or its denial may in turn give rise to appellate review on this collateral issue. There may also be added an element of federal-state competition and conflict which may be trusted to be exploited and to complicate, not simplify, existing difficulties. 19 3. The exception to § 2283 which permits the District Court to issue injunctions 'where necessary in aid of its jurisdiction' remains to be considered. In no lawyer-like sense can the present proceeding be thought to be in aid of the District Court's jurisdiction. Under no circumstances has the District Court jurisdiction to enforce rights and duties which call for recognition by the Board. Such nonexistent jurisdiction therefore cannot be aided.5 20 Insofar as protection is needed for the Board's exercise of its jurisdiction, Congress has, as we have seen, specifically provided for resort, but only by the Board, to the District Court's equity powers. Since the very presupposition of this proceeding is that jurisdiction of the subject matter of which the employer complained was in the Board and not in the state court, any aid that is needed to protect jurisdiction is the aid which the Board may need for the safeguarding of its authority. Such aid only the Board could seek, and only if, in a case pending before it, it has satisfied itself as to the adequacy of the complaint. 21 It is urged that an employer may deliberately prevent Board action by going into a state court. For one thing, it has not yet been determined that, if an employer resorts to a state court in relation to conduct that is obviously taken over by the Taft-Hartley Act and outside the bounds of state relief, it may not under appropriate circumstances give ground for a finding of an unfair labor practice.6 In any event, if resort to a state court may not be circumvented by the power of the Board to entertain such a complaint, we are bound to repeat that, insofar as a penumbral region must remain between state and federal authority touching industrial relations until finally clarified by definitive rulings here or further legislation by Congress, state litigation must, in view of § 2283, be allowed to run its course, including the ultimate reviewing power in this Court. 22 Affirmed. 23 Mr. Justice HARLAN took no part in the consideration or decision of this case. 24 Mr. Chief Justice WARREN, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS concur, dissenting. 25 There can be no doubt, apart from the limitations of 28 U.S.C. § 2283, 28 U.S.C.A. § 2283,1 that the District Court had jurisdiction under 28 U.S.C. § 1337, 28 U.S.C.A. § 13372 to issue the injunction sought by the union in this case. This Court so held in Capital Service, Inc., v. National Labor Relations Board, 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887. It is true that the plaintiff in Capital Service was the National Labor Relations Board, but § 1337 is general in terms and makes no distinction between public and private plaintiffs. 26 Thus, as in Capital Service, the question is whether § 2283, on the facts of this case, precludes the exercise of jurisdiction under § 1337. In Capital Service, the Court stated, 347 U.S. at page 505, 74 S.Ct. at page 702, note 2: 27 'In view of our ruling, we find it unnecessary to consider whether, apart from the specific exceptions contained in § 2283, the District Court was justified in enjoining this intrusion on an exclusive federal jurisdiction. Cf. Bowles v. Willingham, 321 U.S. 503, 510—511, 64 S.Ct. 641, 645, 88 L.Ed. 892.' 28 That question is now here. 29 In the Willingham case, a landlord had obtained a state court injunction restraining the Price Administrator from issuing certain rent orders under the Emergency Price Control Act. The Price Administrator brought an action in a federal district court to enjoin enforcement of the state court injunction. Exclusive jurisdiction to determine the validity of rent orders, the Administrator argued, was vested by Congress in the Emergency Court of Appeals. This Court upheld the Administrator's position. As one ground for its decision that § 265 of the Judicial Code3 the predecessor of § 2283—was no bar to the injunction sought by the Administrator, the Court stated, 321 U.S. at page 511, 64 S.Ct. at page 645: 30 'Congress thus preempted jurisdiction in favor of the Emergency Court to the exclusion of state courts. The rule expressed in § 265 which is designed to avoid collisions between state and federal authorities (Toucey v. New York Life Ins. Co., supra) thus does not come into play.' Thus stood the law in 1948 when § 265 was succeeded by the present § 2283.4 31 Contrary to the suggestion of the majority opinion, § 2283 is not broader in scope than its predecessor, § 265. Indeed, the express purpose of § 2283 was to contract—not expand—the prohibition of § 265. The Revisers stated that 'An exception as to Acts of Congress relating to bankruptcy was omitted and the general exception substituted to cover all exceptions.'5 (Italics added.) The only substantive change noted by the Revisers was an overruling of this Court's decision in Toucey v. New York Life Ins. Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100. The Toucey decision held that § 265 barred a federal court from enjoining a state court in personam proceeding involving a claim previously adjudicated by the federal court. The Revisers, expressly approving the Toucey dissent, stated that 'the revised section restores the basic law as generally understood and interpreted prior to the Toucey decision. Changes were made in phraseology.'6 By enacting § 2283, Congress thus rejected the Toucey decision and its philosophy of judicial inflexibility.7 However imprecise may be the language of § 2283, its legislative history makes it abundantly clear that the provision was not intended to repeal pre-existing exceptions to § 265. 32 To read § 2283 literally—as the majority opinion does—ignores not only this legislative history but also over a century of judicial history.8 In addition, for the reasons pointed out by Mr. Justice DOUGLAS in his dissenting opinion, such a literal interpretation seriously frustrates a comprehensive regulatory scheme established by Congress for the resolution of the kind of labor dispute involved here. The Board, although clearly having exclusive jurisdiction of the subject matter, cannot adjudicate the dispute as long as the employer does not file an unfair labor practice charge; and the employer has no incentive to do so as long as the state court injunction is outstanding. I would reverse. 33 Mr. Justice DOUGLAS, with whom the CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting. 34 'A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.' So reads 28 U.S.C. § 2283, 28 U.S.C.A. § 2283. So read, apart from exceptions not relevant here, former § 265 of the Judicial Code. 35 The purpose of the law, as explained in Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4, 9, 60 S.Ct. 215, 218, 84 L.Ed. 537, was 'to prevent needless friction between state and federal courts.' It is, however, construed and applied today in a way which can only defeat a federal regulatory scheme. For today's decision allows state courts to intrude in a domain where the federal agencies, i.e., the National Labor Relations Board and the District Court, have been granted primary and exclusive jurisdiction, without leaving the aggrieved party any effective relief. 36 This is not a case where the state court has concurrent jurisdiction with the federal agencies. The matter on which the state court takes hold has been pre-empted by the Congress and placed as firmly and completely in the federal domain as if Congress by express words had forbidden state courts to intrude. The addition of an express exception to § 2283 would not make the congressional purpose any clearer. 37 Where Congress has made clear that federal agencies have exclusive jurisdiction of a controversy, that legislation should be taken to qualify § 2283 pro tanto. That has been the view up to this time. The Removal Acts, starting with 1 Stat. 73, 79, allowed cases to be removed from state to federal courts, and provided that a case once removed passed beyond the jurisdiction of the state courts. Those Acts were construed to qualify the predecessor of § 2283. Dietzsch v. Huidekoper, 103 U.S. 494, 26 L.Ed. 497; Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 245, 25 S.Ct. 251, 253, 49 L.Ed. 462. The same construction was given an Act of 1851 which limited the liability of shipowners and provided that, after a shipowner transfers his interest in the vessel to a trustee for the benefit of the claimants, 'all claims and proceedings against the owner or owners shall cease.' 9 Stat. 635, 636. The Court held in Providence & N.Y.S.S. Co. v. Hill Mfg. Co., 109 U.S. 578, 600, 3 S.Ct. 379, 393, 617, 27 L.Ed. 1038, that, despite the predecessor to § 2283, the Limited Liability Act ousted the state courts, since otherwise the Act would be thwarted. 38 Those cases showed no clearer need for the qualification of § 2283 pro tanto than does the Taft-Hartley Act. 39 The Court has been ready to imply other exceptions to § 2283, where the common sense of the situation required it. Thus, if the federal court first takes possession of a res, it may protect its control over it, even to the extent of enjoining a state court from interfering with the property. That result flies in the face of the literal words of § 2283. Yet the injunction is allowed to issue as the preferable way of avoiding unseemly clashes between state and federal authorities. See Hagan v. Lucas, 10 Pet. 400, 403, 9 L.Ed. 470; Kline v. Burke Const. Co., 260 U.S. 226, 229, 235, 43 S.Ct. 79, 81, 83, 67 L.Ed. 226. Another illustration, as The Chief Justice points out, is Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892, where the case for exclusive jurisdiction of the federal authorities was no stronger than the one now presented. 40 A like exception is needed here, if the state suit is not to dislocate severely the federal regulatory scheme. Under the present decision, an employer can move in the state courts for an injunction against the strike. The injunction, if granted, may for all practical purposes settle the matter. There is no way for the union to transfer the dispute to the federal Board, for it seems to be assumed by both parties that the employer has committed no unfair labor practice. By today's decision the federal court is powerless to enjoin the state action. The case lingers on in the state court. There can be no appeal to this Court from the temporary injunction. Montgomery Building & Construction Trades Council Union v. Ledbetter Erection Co., 344 U.S. 178, 73 S.Ct. 196, 97 L.Ed. 204. It may take substantial time in the trial court to prepare a record to support a permanent injunction. Once one is granted, the long, drawn-out appeal through the state hierarchy and on to this Court commences. Yet by the time this Court decides that from the very beginning the state court had no jurisdiction, as it must under the principle of Garner v. Teamsters, Chauffeurs and Helpers Local Union, No. 776 (A.F.L.), 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, a year or more has passed; and time alone has probably defeated the claim. 41 That course undermines the federal regulation; it emasculates the federal remedy; it allows one party to a labormanagement controversy to circumvent the law which Congress enacted to resolve these disputes. 42 The federal regulatory scheme cries out for protection against these tactics of evasion. No one is in a position to seek the protection of the federal court, except the federal Board or a party to the dispute who is aggrieved. Either should be allowed standing under the principle of Capital Service, Inc., v. National Labor Relations Board, 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887, to invoke the jurisdiction of the federal court. Certainly a suit to protect the exclusive jurisdiction of federal agencies under the Taft-Hartley Act is a suit 'arising under any Act of Congress regulating commerce' within the meaning of 28 U.S.C. § 1337, 28 U.S.C.A. § 1337. See Capital Service, Inc., v. National Labor Relations Board, supra, 347 U.S. at page 504, 74 S.Ct. 701. 1 H.R.Rep. No. 308, 80th Cong., 1st Sess. A181. Petitioner and the Board, as amicus curiae, emphasize the statement in the Reviser's Notes that 'the revised section restores the basic law as generally understood and interpreted prior to the Toucy (sic) decision.' Even if taken to mean that, despite the revised wording, the section is to derive its content from decisions prior to 1948, these contain no precedent for the present proceeding. See note 2, infra. Moreover, in context it is clear that the quoted phrase refers only to the particular problem which was before the Court in the Toucey case. 2 The statement in Bowles v. Willingham, 321 U.S. 503, 511, 64 S.Ct. 641, 645, 88 L.Ed. 892, that 'Congress thus preempted jurisdiction in favor of the Emergency Court to the exclusion of state courts. The rule expressed in § 265 which is designed to avoid collisions between state and federal authorities * * * thus does not come into play', must be read in the context of the scheme of the Emergency Price Control Act of 1942, 56 Stat. 23, and particularly the authority in that Act for resort by the Administrator of the Office of Price Administration to injunctive relief under the circumstances there presented. § 205(a), 56 Stat. 33. It is also to be noted that this observation was made prior to the revision of 1948. 3 A temporary injunction which merely serves to preserve the status quo pending the hearing on a request for a permanent injunction is not a final order appealable under §§ 2505.02, 2505.03 of Page's Ohio Rev.Code 1954. May Co. v. Bailey Co., 81 Ohio St. 471, 91 N.E. 183; Tipling v. Randall Park Holding Co., 94 Ohio App. 505, 114 N.E.2d 279. 4 With the exception of the short-lived 'Midnight Judges' Act of February 13, 1801, 2 Stat. 89, repealed on March 8, 1802, 2 Stat. 132, the so-called federal specialties, and specific ad hoc grants of jurisdiction, enforcement of federal rights was confined to the state courts prior to the Act of March 3, 1875, 18 Stat. 470. See 13 Cornell L.Q. 499, 507—509. 5 We have been referred by petitioner to decisions in the lower federal courts under 28 U.S.C. § 1651, 28 U.S.C.A. § 1651, and its antecedents holding that the Court of Appeals may resort to writ of mandamus or prohibition 'in aid of its jurisdiction' to prevent a district court from acting in a manner which would defeat the Court of Appeals' power of review. These decisions might be more relevant had the injunction been sought from the Court of Appeals. Only that court has power to review decisions of the Board. In any event, it has never been authoritatively suggested that this example of injunctive aid to a potential jurisdiction, which finds roots iin traditional concepts of the relationship between inferior and superior courts of the same judicial system, has any relevance where the offending action sought to be enjoined is insulated by two intervening and essentially unrelated systems, one of an administrative rather than judicial nature, the other the manifestation of a distinct sovereign authority. 6 In W. T. Carter and Brother, 90 N.L.R.B. 2020, the Board has held that an employer's action in procuring a state court injunction prohibiting federally protected employee activities constitutes a violation of § 8(a)(1) of the Act which designates as an unfair labor practice an employer's restraint of employees in the exercise of rights guaranteed under § 7. The Board now argues that this case is limited to situations in which the employer's resort to the state court is part of a bad faith scheme to defeat union organization and the underlying union conduct which has been enjoined is protected under the Taft-Hartley Act. 1 Section 2283 provides: 'A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.' 2 Section 1337 provides: 'The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.' 3 Section 265 provided: 'The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.' 36 Stat. 1162. 4 See also Hale v. Bimco Trading, Inc., 306 U.S. 375, 378, 59 S.Ct. 526, 527, 83 L.Ed. 771; Wells Fargo & Co. v. Taylor, 254 U.S. 175, 183, 41 S.Ct. 93, 96, 65 L.Ed 205. 5 H.R.Rep. No. 308, 80th Cong., 1st Sess., p. A181. 6 Id., p. A182. 7 See Moore's Commentary on the U.S. Judicial Code (1949), 407, 410; Note, 48 Nw.U.L.Rev. (1953) 383. 8 See Hart and Wechsler, The Federal Courts and The Federal System, 1075—1076 (1953); Moore's Commentary on the U.S. Judicial Code 395—407, 410 (1949).

89

348 U.S. 503 75 S.Ct. 504 99 L.Ed. 594 UNITED STATES of America, Appellant,v.Ernest King BRAMBLETT. No. 159. Argued Feb. 7, 1955. Decided April 4, 1955. Mr. Charles F. Barber, Washington, D.C., for appellant. Mr. Edward Bennett Williams, Washington, D.C., for appellee. Mr. Justice REED delivered the opinion of the Court. 1 On November 10, 1953, an 18-count indictment was returned in the United States District Court for the District of Columbia, charging the appellee, a former member of Congress, with violations of 18 U.S.C. § 1001, 18 U.S.C.A. § 1001.1 During the course of the trial a judgment of acquittal was ordered on counts 8 through 18 of the indictment. The jury returned a verdict of guilty on the remaining 7 counts which charged the appellee with having falsely and fraudulently represented to the Disbursing Office of the House of Representatives that a named woman was entitled to compensation as his official clerk. The District Court granted appellee's motion in arrest of judgment, holding that he had not falsified a material fact "within the jurisdiction of any department or agency of the United States" since the Disbursing Office was not a department or agency within the meaning of the statute. The District Court was of the opinion that the statute does not afford protection to the legislative and judicial branches of the Government. The Government brought this case here on direct appeal pursuant to 18 U.S.C. § 3731, 18 U.S.C.A. § 3731. Reference to the evolution of § 1001 will assist in determining the correctness of the decision below. A detailed analysis appears in the opinion of the trial court. 120 F.Supp. 857, 858. 2 Section 1001 had its origin in a statute passed almost 100 years ago in the wake of a spate of frauds upon the Government. The Act of March 2, 1863, 12 Stat. 696, 'An Act to prevent and punish Frauds upon the Government of the United States', made it a criminal offense for 3 'any person in the land or naval forces of the United States * * * (to) make or cause to be made, or present or cause to be presented for payment or approval to or by any person or officer in the civil or military service of the United States, any claim upon or against the Government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent * * *.' 4 This provision clearly covers the presentation of false claims against any component of the Government to any officer of the Government. The prohibition of the statute is broad, although its application was limited to military personnel. 5 False statements were proscribed in the following clause of the same section in these terms: 6 'any person in such forces or service who shall, for the purpose of obtaining, or aiding in obtaining, the approval or payment of such claim, make, use, or cause to be made or used, any false bill, receipt, voucher, entry, roll, account, claim, statement, certificate, affidavit, or deposition, knowing the same to contain any false or fraudulent statement or entry'. 7 It will be noted that there is here no specification as to the group to whom the false statements had to be made. The provision in the false claims section which made the presentation of false claims to 'any person or officer in the civil or military service of the United States' punishable might reasonably have been applied here. There would be no justification for giving the false statements section a narrower scope, for, so long as the false statement was made with the indicated purpose, the statute made it punishable. 8 From 1863 to 1934 the coverage of the statute was at various times extended, but no change was made which could be or is taken by the appellee as restricting the scope of the false statements provision to the executive branch.2 9 The words urged as crucial in this case first appeared in the revision of 1934. 48 Stat. 996. No change was made in the false claims portion of the statute, but the false statements section was amended to read: 10 'or whoever shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or device a material fact, or make or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, in any matter within the jurisdiction of any department or agency of the United States or of any corporation in which the United States of America is a stockholder; * * *.' (Italics supplied.) 11 The amendment deleted all words as to purpose and inserted the italicized phrase. Under the prior statutes there had been no possibility of a restrictive interpretation which would read out falsifications made to officers of the legislative or judicial branches. Did the insertion of the new phrase exclude those branches? We think not. 12 The 1934 revision was largely the product of the urging of the Secretary of the Interior.3 The Senate Report, S. Rep. No. 1202, 73d Cong., 2d Sess., indicates that its purpose was to broaden the statute so as to reach not only false papers presented in connection with a claim against the Government, but also nonmonetary frauds such as those involved in the 'hot-oil' shipments. A greater variety of false statements were meant to be included.4 There is no indication in either the committee reports5 or in the congressional debates6 that the scope of the statute was to be in any way restricted. There was certainly no suggestion that the new phrase was to be interpreted so that only falsifications made to executive agencies would be reached.7 Apparently the italicized phrase was inserted simply to compensate for the deleted language as to purpose—to indicate that not all falsifications but only those made to government organs were reached. 13 The 1948 revision put the statute into its present form.8 62 Stat. 683. The false claims provision became § 287 of Title 18 and retained its prior form without significant change. Section 1001 is the 'false statements' section. Except for housekeeping changes in language which are of no particular significance, the deletion of the reference to corporations, and the transposition of the 'in any matter' clause to the beginning of the section, there has been no change since the 1934 statute. There is no indication that the revision was intended to work any substantive change. It would thus be supposed that the statute retained its broad scope, a scope at least as broad as the false claims section, and could not be limited to falsifications made to executive agencies. 14 The appellee and the District Court rely on § 6 of Title 18 to restrict the scope of § 1001. Section 6 provides: 15 'As used in this title: 16 'The term 'department' means one of the executive departments enumerated in section 1 of Title 5, unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government. 17 'The term 'agency' includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense.' The falsification here involved was held to within the jurisdiction of the Disbursing Office of the House which it was thought could not meet the definitions in § 6. It seemed significant to the trial court 'that Title 18, § 287 (formerly the first part of old Section 35) provides penalties against any one who 'makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim * * * knowing such claim to be false", whereas § 1001 does not contain such language. 120 F.Supp. at page 861. 18 It might be argued that the matter here involved was within the jurisdiction of the Treasury Department, as the appellee's misstatements would require the payment of funds from the United States Treasury. Or, viewing this as a matter within the jurisdiction of the Disbursing Office, it might be argued, as the Government does, that that body is an 'authority' within the § 6 definition of 'agency.' We do not rest our decision on either of those interpretations. The context in which this language is used calls for an unrestricted interpretation. This is enforced by its legislative history. It would do violence to the purpose of Congress to limit the section to falsifications made to the executive departments. Congress could not have intended to leave frauds such as this without penalty. The development, scope and purpose of the section shows that 'department,' as used in this context, was meant to describe the executive, legislative and judicial branches of the Government. The difference between the language of § 287 and that of § 1001 can only be understood in the light of legislative history. That history dispels the possibility of attaching any significance to the difference. 19 That criminal statutes are to be construed strictly is a proposition which calls for the citation of no authority. But this does not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature.9 20 The judgment below is accordingly reversed. 21 Reversed. 22 The CHIEF JUSTICE, Mr. Justice BURTON and Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 'Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.' 2 Under the codification of December 1, 1873, approved June 22, 1874, R.S. § 5438, the statute was extended to cover 'every person'—not merely military personnel. The Act of May 30, 1908, 35 Stat. 555, simply changed the penalties, and in the codification of 1909, 35 Stat. 1088, § 5438 was redesignated § 35. Section 35 was in turn revised in 1918, 40 Stat. 1015. The false claims provision was extended to cover corporations in which the United States held stock; and false statements were proscribed if made 'for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States' as well as if made for the purpose of obtaining payment of a false claim. 3 For a discussion of the legislative history of the Act, see United States v. Gilliland, 312 U.S. 86, 93—95, 61 S.Ct. 518, 522—523, 85 L.Ed. 598. 4 In United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616, the Court held that the 1918 Act did not proscribe false statements made to a customs collector where the purpose was not to defraud the Government of either its money or property. After the 1934 amendment, however, the Court sustained an indictment charging the defendants with willfully falsifying reports required to be filed under the 'Hot-Oil' Act of February 22, 1935, 15 U.S.C.A. § 715 et seq. The Court stated that the purpose of the 1934 amendment was to remove the prior 'restriction to cases involving pecuniary or property loss to the government.' United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522. 5 S.Rep. No. 1202; H.R.Rep. No. 1463, 73d Cong., 2d Sess. 6 78 Cong.Rec. 8136, 11270, 11513. 7 In Romney v. United States, 83 U.S.App.D.C. 150, 167 F.2d 521, the Sergeant at Arms of the House of Representatives of the United States was convicted of presenting false statements of his accounts and of concealing shortages in reporting to the General Accounting Office, which was created as an establishment 'independent of the executive departments and under the control and direction of the Comptroller General of the United States.' 42 Stat. 23, 31 U.S.C. § 41, 31 U.S.C.A. § 41. 8 In 1938, § 35 was divided into subsections, but the part of the statute with which we are here concerned was left unchanged. 52 Stat. 197. 9 Cf. United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443; Spivey v. United States, 5 Cir., 109 F.2d 181.

01

348 U.S. 528 75 S.Ct. 513 99 L.Ed. 615 UNITED STATES of America, Petitioner,v.Richard Isaac MENASCHE. No. 104. Argued March 1, 1955. Decided April 4, 1955. Mr. Gray Thoron, Washington, D.C., for petitioner. Mr. Peyton Ford, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 This case and Shomberg v. United States, 348 U.S. 540, 75 S.Ct. 509, present questions concerning the proper interpretation of the general savings clause of the Immigration and Nationality Act of 1952, 66 Stat. 280, 8 U.S.C. § 1101 note, 8 U.S.C.A. § 1101 note. This clause, § 405 of the Act, provides as follows: 2 '(a) Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization, certificate of citizenship, warrant of arrest, order or warrant of deportation, order of exclusion, or other document or proceeding which shall be valid at the time this Act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this Act shall take effect; but as to all such prosecutions, suits, actions, proceedings, statutes (sic), conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect. * * 3 '(b) Except as otherwise specifically provided in title III, any petition for naturalization heretofore filed which may be pending at the time this Act shall take effect shall be heard and determined in accordance with the requirements of law in effect when such petition was filed.' 4 The issue here presented is whether an alien, who filed his declaration of intention to become an American citizen before the effective date of the 1952 Act, and who otherwise complied with the naturalization laws then in effect, has a 'status,' 'condition,' or 'right in process of acquisition' preserved by § 405(a), supra, despite the fact that his petition for naturalization was filed after the effective date of the new Act. The Government contends that petitions for naturalization are to be governed exclusively by § 405(b), and that since respondent does not come within the terms of that subsection—his petition not having been filed before the effective date of the new Act—the savings clause is inapplicable and the substantive provisions of the 1952 Act apply. 5 The facts are not in dispute. Respondent was admitted for permanent residence in the United States on March 7, 1948, and the following month he filed his declaration of intention to become a citizen. During the next five years, respondent was absent from the United States on business for several periods of less than a year each. Although the aggregate of these absences was some forty-four months, it is conceded that respondent had not at any time abandoned his American residence. Accordingly, all other prerequisites to citizenship having been satisfied, respondent was entitled to be naturalized under the Nationality Act of 1940 upon completing five years of residence. 54 Stat. 1142, 8 U.S.C. (1946 ed.) § 707. But before this period had run, the Immigration and Nationality Act became effective on December 24, 1952. Section 316(a) of this Act, 66 Stat. 242, 8 U.S.C. § 1427(a), 8 U.S.C.A. § 1427(a), imposed a new requirement of physical presence: to be eligible for citizenship, an alien must be physically present in the United States for at least one-half the period constituting his five-year residence. When, on April 24, 1953, Menasche filed his petition for naturalization, he lacked 14 months of fulfilling this new requirement. Thus, if the 1952 Act applies to respondent's case, it is clear he may not be naturalized, while under the 1940 Act he is admittedly eligible for citizenship. 6 The district judge admitted Menasche to citizenship, holding that the 1940 Act governs because respondent enjoyed a status, condition, and right in process of acquisition preserved by § 405(a) of the new Act. 115 F.Supp. 434. The Court of Appeals affirmed. 210 F.2d 809. We granted certiorari because of the importance of the questions presented in this and the companion case of Shomberg v. United States, 348 U.S. 540, 75 S.Ct. 509, in the administration of our nationality laws. 348 U.S. 811, 75 S.Ct. 33. 7 In interpreting § 405 of the Immigration and Nationality Act in relation to the facts of this case, we must consider the historical background of the savings clause and of the procedure for filing declarations of intention. The declaration of intention was introduced into our law by the second Act of Congress on the subject of naturalization, 1 Stat. 414 (1795), and remained an integral part of our naturalization procedure until the Act of 1952 dispensed with it as a prerequisite to citizenship. 66 Stat. 254, 8 U.S.C. § 1445(f), 8 U.S.C.A. § 1445(f). For the more than 150 years between these enactments, Congress considered it appropriate to require aliens to declare their intention to become United States citizens several years before they petitioned for naturalization. Exceptions were made from time to time to avoid hardship or to expedite the naturalization of a favored group, but until the 1952 enactment the declaration constituted the 'first papers' toward American citizenship in the usual naturalization procedure. See Joint Hearings before the Subcommittees of the Committees on the Judiciary, 82d Cong., 1st Sess., on S. 716, H.R. 2379, and H.R. 2816, pp. 79—80, 723—725; S. Rep. No. 1515, 81st Cong., 2d, Sess., pp. 732—734. 8 Savings clauses of the type here involved—broad, inclusive provisions—date back to the general statutes on immigration and naturalization enacted in the early part of this century. The Naturalization Act of 1906, 34 Stat. 596, the first real codification of our nationality laws, did not contain a general savings clause, but sought to protect certain prior rights by means of specific provisions. 34 Stat. 597, 599, 603. Nor was there an over-all savings provision in the first of the general immigration laws following the turn of the century. 32 Stat. 1213 (1903). The germ was there, however, in a clause stating that 'nothing contained in this Act shall be construed to affect any prosecution or other proceeding, criminal or civil,' begun under a prior Act. 32 Stat. 1220. In subsequent immigration laws, the predecessors of the instant provision could be more clearly discerned. The Immigration Act of 1907 provided that nothing in the Act 'shall be construed to affect any prosecution, suit, action, or proceedings brought, or any act, thing, or matter, civil or criminal, done or existing at the time of the taking effect of this Act.' 34 Stat. 907. To the same effect is the savings clause of the Immigration Act of 1917. 39 Stat. 897. In the years that followed, amendments to the immigration and naturalization laws were enacted with more limited savings clauses, tailored to the special changes made by the new legislation. 40 Stat. 545, 547, 548; 40 Stat. 559, amended, 55 Stat. 252; 42 Stat. 1022; 43 Stat. 169; 46 Stat. 854.1 These provisions, though differing in their terms, manifested an intention on the part of Congress to save rights which had accrued under prior laws. 9 The direct antecedent of the savings clause here involved appeared as § 347 of the Nationality Act of 1940, 54 Stat. 1168, 8 U.S.C. (1946 ed.) § 747, the last legislation prior to 1952 to deal with our general system of naturalization. Like the present § 405, the provision in the 1940 Act was divided into two subsections. The first of these, subsection (a), expanded upon the multiplicity of legal subjects preserved by the 1907 and 1917 immigration laws.2 Subsection (b), on the other hand, introduced an entirely new wrinkle by providing that pending naturalization petitions 'shall be heard and determined within two years thereafter in accordance with the requirements of law in effect when such petition was filed.'3 the litigation under this section, involving, first, the scope of subsection (a) and, secondly, the relation between the two subsections, throws considerable light on the parallel problems under § 405 presented in the instant case. 10 The 1952 Act made the enumeration of matters preserved by subsection (a) more complete and all-inclusive by adding: 'status,' 'condition,' 'right in process of acquisition,' 'liability,' and 'obligation.' The change was undoubtedly prompted by several sets of inconsistent decisions dealing with the vague terminology in § 347(a) of the 1940 Act preserving 'any act, thing, or matter, civil or criminal.' The first of these concerned the question whether the withdrawal of a declaration of intention to avoid service in the armed forces constituted an 'act' existing under the prior law which continued to debar the alien from citizenship. Compare Petition of Otness, D.C., 49 F.Supp. 220, with In re Urmeneta, D.C., 42 F.Supp. 138, and In re Samowich, D.C., 70 F.Supp. 273. A second and more significant conflict concerned inchoate rights to derivative citizenship, which, when proper conditions were met, required only the passage of time to ripen into full citizenship. When the 1940 Act changed certain of the conditions in this process, the question arose whether those whose time had begun to run before the 1940 Act took effect were to be governed by the old law or the new. The Second Circuit held that the new law applied, because § 347(a) of the 1940 Act did not extend to 'a mere condition, unattended by any affirmative action.' United States ex rel. Aberasturi v. Cain, 147 F.2d 449, 452. The Court of Appeal for the District of Columbia disagreed, construing the broad language of § 347(a) as covering 'rights partly accrued' and 'rights in process of acquisition.' Bertoldi v. McGrath, 86 U.S.App.D.C. 1, 2, 3, 178 F.2d 977, 978, 979. This latter conflict must have been paramount in the minds of Congress when the first subsection of the savings clause was broadened. See Analysis of S. 3455, 81st Cong. 2d Sess., pp. 361—1 and 361—2 (prepared by the Immigration and Naturalization Service for the committees of Congress considering this legislation). We conclude that Congress intended to adopt the principle of the Bertoldi case that 'the new act should take effect prospectively.' 86 U.S.App.D.C. 2, 178 F.2d at page 978. This is, after all, no more than a reaffirmation of the principle underlying the less sweeping 1940 provision. In a report to the congressional committees considering this earlier section, it was said that the provision 'contains the customary clauses by which the status quo is maintained in relation to naturalization proceedings and other related matters.' Report of the Joint Departmental Committee, reproduced in Hearings before House Committee on Immigration and Naturalization, 76th Cong., 1st Sess., on H.R. 6127, superseded by H.R. 9980, 411, 484. 11 The Government would have us limit the 1952 extension of subsection (a) to situations concerning derivative citizenship, arguing that this problem was entirely responsible for the new language on status, condition, and right in process of acquisition. With this we cannot agree. The change in the section was designed to extend a savings clause already broadly drawn, and embodies, we believe, congressional acceptance of the principle that the statutory status quo was to continue even as to rights not fully matured. It should be noted, further, that the conflict between Aberasturi and Bertoldi involved a situation where the alien had failed to take any affirmative action to assert his claim to citizenship. Even the more restrictive Aberasturi opinion recognized that affirmative action by the alien might alter the result there reached. 147 F.2d at page 452. If Congress was willing to preserve a 'mere condition, unattended by any affirmative action,' we think its savings clause also reaches instances, such as this, where affirmative action is present. The whole development of this general savings clause, its predecessors accompanying each of the recent codifications in the field of immigration and naturalization, manifests a well-established congressional policy not to strip aliens of advantages gained under prior laws. The consistent broadening of the savings provision, particularly in its general terminology, indicates that this policy of preservation was intended to apply to matters both within and without the specific contemplation of Congress. 12 The Government argues against hinging statutes, conditions and rights in process of acquisition on the filing of a declaration of intention because, it contends, the 1952 Act has rendered such declarations totally meaningless as far as naturalization proceedings are concerned. They are no longer a prerequisite to naturalization and they confer no special advantage on the alien-declarant.4 But all this is immaterial. First, the congressional resolution of the Bertoldi-Aberasturi conflict indicates a willingness, at least in some situations, to preserve rights in process of acquisition without requiring affirmative action on the part of the alien. It could be argued in the present case that it was Menasche's residence, rather than his filing of the declaration, which gave rise to his rights under § 405(a). And this approach would have the virtue of eliminating the inequitable treatment envisaged by the Government as regards those special groups of aliens who did not have to file declarations as a prerequisite to citizenship. But while our decision could be rested on this ground, it is sufficient here merely to refer to the provision in § 405(a), derived verbatim from § 347(a) of the 1940 Act, preserving the 'validity' of declarations of intention 'valid at the time the Act shall take effect.' 13 The Government contends, however, that even if § 405(a), considered alone, covers this case, § 405(b) deals specifically with naturalization petitions and by necessary implication excludes their coverage in § 405(a). As we read the statute, subsection (b) merely implements and emphasizes the operation of its forerunner. It is clear, first, that subsection (b) is not a specific exception to § 405(a), since both subsections state that prior law should apply in certain circumstances. The slight negative implication derived from the fact that § 405(b) applies to pending petitions for naturalization, and not to those filed after the effective date of the new Act, is overcome by the broad sweep of § 405(a) and its direction that prior law applies unless the Act 'otherwise specifically provide(s).'5 (Emphasis supplied.) 14 This view is strengthened by the relation between the predecessors of § 405(a) and (b). The Report of the Joint Departmental Committee, supra, at 484, stated that under § 347(b) of the 1940 Act 'a period of 2 years would be granted during which any petition for naturalization filed prior to the enactment of the new measure might be heard under the law in effect when the proceeding was begun.' The approach of the courts, in dealing with pending naturalization petitions alleged to be governed by the 1940 savings clause, was generally to see whether petitioner's rights were saved by § 347(a), and then, if applicable, apply the two-year limitation of § 347(b). See In re Shaver, 7 Cir., 140 F.2d 180; Petition of La Bella, D.C., 52 F.Supp. 980; Petition of Hirsch, D.C., 50 F.Supp. 638; In re McInnis, D.C., 50 F.Supp. 303. But cf. Petition of Ferrara, Sup., 43 N.Y.S.2d 244. Thus § 347(a) was considered the source of rights under the savings clause, and § 347(b) merely a special limitation on these rights. Indeed, there were two cases in which petitions for naturalization filed after the effective date of the 1940 Act were considered solely in relation to § 347(a). In re Samowich, D.C., 70 F.Supp. 273; Petition of Rothschild, D.C., 57 F.Supp. 814. These decisions ignored the supposedly obvious negative implications of § 347(b), and cast considerable doubt on the Government's present view that § 347(b) automatically removed from the coverage of prior law petitions filed after the effective date of the 1940 Act. Thus the construction advanced by the Government concerning the relation between § 405(a) and § 405(b) would not continue the relation between the predecessor provisions, but would actually be a marked departure. The only significant change made in subsection (b) by the 1952 Act was the deletion of the two-year time limit, and there is nothing to indicate that Congress, in making this change, intended to alter the entire structure of the savings clause by making § 405(b) the exclusive provision for naturalization petitions. See Analysis of S. 3455, supra. The few decisions considering this problem under the 1952 Act accord with the decisions of the District Court and Court of Appeals in the instant case, holding that § 405(a) preserves rights accruing in the pre-petition stages of the naturalization process. United States v. Pringle, 4 Cir., 212 F.2d 878, affirming Petition of Pringle, D.C., 122 F.Supp. 90; In re Jocson, D.C., 117 F.Supp. 528. We believe that Congress so intended. 15 The Government's contention that § 405(a) does not apply to any phase in the processing of naturalization petitions would defeat and destroy the plain meaning of that section. 'The cardinal principle of statutory construction is to save and not to destroy.' National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 621, 81 L.Ed. 893. It is our duty 'to give effect, if possible, to every clause and word of a statute,' Inhabitants of Montclair Tp. v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 395, 27 L.Ed. 431, rather than to enasculate an entire section, as the Government's interpretation requires. Accordingly, we hold that respondent's inchoate right to citizenship is protected by § 405(a) and is not defeated by any implication stemming from § 405(b). All that remains, therefore, is to look to § 316(a), which imposes the new requirement of physical presence, to determine whether it 'otherwise specifically provide(s)' that the new Act is to apply to respondent's situation. It is clear that it does not. Section 316(a) merely says that, 'except as otherwise provided', the stated degree of physical presence shall be required, and this may be viewed as a reference, inter alia, to § 405(a), strengthening our conclusion that prior law applies. The District Court and the Court of Appeals were correct in concluding that § 405(a) preserved respondent's inchoate rights under the prior law, and their decisions are accordingly affirmed. 16 Affirmed. 17 Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 See also 54 Stat. 1150, 8 U.S.C. (1946 ed.) § 726; 64 Stat. 1015, 8 U.S.C. (1946 ed., Supp. V) § 725(b) (now 8 U.S.C.A. §§ 1442(a—c, e), 1441(a)(1)). 2 'Sec. 347. (a) Nothing contained in either chapter III or in chapter V of this Act, unless otherwise provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization or of citizenship, or other docuent or proceeding which shall be valid at the time this Act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any act, thing, or matter, civil or criminal, done or existing, at the time this Act shall take effect; but as to all such prosecutions, suits, actions, proceedings, acts, things, or matters, the statutes or parts of statutes repealed by this Act, are hereby continued in force and effect.' 3 '(b) Any petition for naturalization heretofore filed which may be pending at the time this Act shall take effect shall be heard and determined within two years thereafter in accordance with the requirements of law in effect when such petition was filed.' 4 The alien may, if he wishes, file a declaration of intention with the Immigration and Naturalization Service. 66 Stat. 254, 8 U.S.C. § 1445(f), 8 U.S.C.A. § 1445(f). The apparent object of this optional provision is to preserve the rights of aliens under state laws, where, for example, there may be a requirement that a legally resident alien shall have filed his declaration of intention before he can obtain work. See Joint Hearings on S. 716, H.R. 2379 and H.R. 2816, supra, p. 80; S.Rep. No. 1515, supra, p. 738. 5 It is possible, although we do not pass on the point in this opinion, that § 405(b) serves a function which carries with it a negative implication different from that advanced by the Government. Section 405(b) provides that pending petitions for naturalization shall be governed by the 'law in effect when such petition was filed.' (Emphasis supplied.) Section 405(a), on the other hand, provides that nothing in the new Act shall 'affect' any of the enumerated subjects, preserving the law as it existed immediately prior to the effective date of the Act. Thus § 405(b) may 'otherwise specifically provid(e)' for a law applicable to pending petitions different from the law preserved by § 405(a) for other protected interests. We have not fully considered, in passing on the question before us, the consonance of such an interpretation with the over-all statutory scheme, but advance it merely as another illustration of the meaning which can be given § 405(b) to avoid both the result pressed by the Government in this case and the objection that § 405(b) is rendered redundant by holding that petitioner has rights protected by § 405(a).

12

348 U.S. 540 75 S.Ct. 509 99 L.Ed. 624 Louis SHOMBERG, Petitioner,v.UNITED STATES of America. No. 48. Argued March 1, 1955. Decided April 4, 1955. Mr. Alan Y. Cole, Washington, D.C., for petitioner. Mr. Gray Thoron, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 The precise issue in this proceeding is whether petitioner, who filed his petition for naturalization two days before the effective date of the Immigration and Nationality Act of 1952, 66 Stat. 163, 8 U.S.C. § 1101 et seq., 8 U.S.C.A. § 1101 et seq., may compel a final hearing on the same before the determination of deportation proceedings instituted after the effective date of the Act and based solely on grounds initiated by that Act. The 'priority provision' of the Act, § 318, states 'no petition for naturalization shall be finally heard * * * if there is pending against the petitioner a deportation proceeding.' 66 Stat. 244, 8 U.S.C. § 1429, 8 U.S.C.A. § 1429.1 But petitioner claims that the savings clause of the Act, § 405, 66 Stat. 280, 8 U.S.C. § 1101, note, 8 U.S.C.A. § 1101 note, which we considered in United States v. Menasche, 348 U.S. 528, 75 S.Ct. 513, preserves his eligibility for citizenship under prior law, and that final hearing thereon cannot be delayed by reason of the pendency of the subsequently instituted deportation action. Both the trial court, 115 F.Supp. 336, and the Court of Appeals, 210 F.2d 82, decided against the petitioner. We granted certiorari, 348 U.S. 811, 75 S.Ct. 24, in order to determine the relationship between § 318 and § 405 of the 1952 Act. 2 On October 1, 1952, petitioner submitted to the Immigration and Naturalization Service a preliminary application to file a petition for naturalization, Form N—400. Following a preliminary examination, he filed his petition for naturalization on December 22, 1952, two days before the effective date of the Immigration and Nationality Act of 1952. The prenaturalization investigation disclosed that petitioner had a criminal record; he had been convicted of grand larceny in 1913 and of manslaughter in 1915. Section 241(a) of the 1952 Act subjects aliens to deportation if they are convicted 'at any time after entry * * * of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.' 66 Stat. 204, 8 U.S.C. § 1251(a)(4), 8 U.S.C.A. § 1251(a)(4). On June 22, 1953, a warrant of arrest was issued against petitioner, based on his 1913 and 1915 convictions, charging as grounds for deportation petitioner's presence in the country in violation of § 241(a)(4). The deportation proceedings were in progress when on July 28, 1953, petitioner, through an order to show cause filed in this case, moved to compel a final hearing on his petition for naturalization, and, in the interim, to stay the deportation proceedings. Relying on § 318, supra, the district judge denied the motion and the Court of Appeals affirmed. 3 Petitioner's main argument is that under § 405(a) nothing contained in the new Act, 'unless otherwise specifically provided therein, shall be construed to affect * * * any status, condition, right in process of acquisition * * * done or existing, at the time this Act shall take effect.' Petitioner was eligible for citizenship under the prior law and remains eligible under the new Act. But under the prior law petitioner was not deportable. Petitioner argues that the deportation proceeding, based solely on § 241(a) of the new Act,2 is adversely affecting a right protected by § 405(a), to wit, his inchoate right to citizenship. This, he claims, is in direct contravention of the terms of § 405(a) unless some other section in the Act 'otherwise specifically provide(s).' Section 318, advanced as just such an exception, says 'Notwithstanding the provisions of section 405(b) * * *,' and makes no mention of § 405(a). Thus, petitioner concludes, § 318 is not a specific exception to the protection afforded his rights by § 405(a), and if he is to vindicate his rights under that section he must prevail in the present proceedings. 4 We agree with petitioner that, absent a specific provision to the contrary, he has rights protected by § 405(a). These stem from the filing of his Form N—400, from his petition for naturalization, and, perhaps, from his fulfillment of the five-year residence requirement. United States v. Menasche, 348 U.S. 528, 75 S.Ct. 513. But we hold that § 318 specifically excepts rights under the prior law from the protection of § 405 when these rights stem from a petition for naturalization or from some other step in the naturalization process.3 5 The practice previous to the enactment of a priority provision in the immigration and nationality laws was for both the deportation and naturalization processes to proceed along together until either petitioner's deportation or naturalization ipso facto terminated the possibility of the other occurring. See United States v. Waskowski, 7 Cir., 158 F.2d 962. And in the few instances where deportations were stayed in order to permit aliens to obtain a hearing under a recently enacted naturalization provision, the remedy was by habeas corpus after the termination of the deportation proceedings and after a stay had been denied in those proceedings. United States ex rel. Walther v. District Director of Immigration and Naturalization, 2 Cir., 175 F.2d 693; Petition of Kavadias, 7 Cir., 177 F.2d 497. But as a general rule stays were not utilized, cf. Klig v. Watkins, D.C., 84 F.Supp. 486, and there ensued a race between the alien to gain citizenship and the Attorney General to deport him. If the alien was successful in forcing a final hearing and the granting of his naturalization petition, the deportation proceedings were completely nullified. To remedy this situation, the Congress incorporated § 27 in the Subversive Activities Control Act of 1950, 64 Stat. 1015, 8 U.S.C. (1946 ed., Supp. V) § 729(c). This section prohibited naturalization or the holding of final hearings on naturalization petitions where deportation proceedings were instituted 'under the provisions of this or any other Act.' The 1950 Act took effect immediately and contained no savings clause, although it introduced new grounds for deportation which were to be retroactively applied. See Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911. And in United States ex rel. Jankowski v. Shaughnessy, 2 Cir., 186 F.2d 580, the priority provision—s 27—was held to apply to naturalization petitions filed before the effective date of the Act, even though the deportation proceedings were commenced, as here, under the new statute. 6 Section 318 of the Immigration and Nationality Act of 1952 re-enacted § 27 in substantially the same form, retaining the language of its predecessor in suspending final hearings on naturalization where deportation proceedings were instituted under this or any other Act. But petitioner contends that this plain language does not apply to his case because Congress did not specifically exempt § 318 from the operation of the savings clause embodied in § 405(a), under which his inchoate right to citizenship is preserved. 7 It is true that § 318 begins with the phrase 'Notwithstanding the provisions of section 405(b),' which at first glance might indicate that it was intended not to apply to § 405(a). But further analysis renders this position untenable. The same priority section had been inserted as an emergency provision in the Subversive Activities Control Act of 1950, and had been given immediate prospective and retroactive effect. It was carried forward almost verbatim as § 318 in the 1952 Act. And to make certain that it would apply to rights existing under petitions for naturalization, the Congress added to § 318 the phrase 'Notwithstanding the provisions of section 405(b),' referring to the only part of the savings clause which deals explicitly with the law applicable to naturalization petitions. The congressional purpose must have been to have § 318 supersede rights stemming from such petitions, for under any other interpretation its previous approach under the 1950 law is unexplainedly reversed and the 'notwithstanding' clause is rendered meaningless. It may be that the draftsmen could have been more exact in their language, since § 405(a), as well as § 405(b), embraces rights under pending petitions, see United States v. Menasche, supra. But we think their intent is plain enough. 8 Petitioner contends that this application of § 318 will have the result of affording more protection to pre-petition rights of the Menasche-type than to inchoate rights under a petition for naturalization itself, since the former are not embraced within § 405(b). But we do not believe § 318 differentiates between these steps in the process of naturalization. Each is but part of the whole process leading to citizenship and each is subject to the provisions of § 318. 9 Nor can we accept petitioner's argument that Congress intended § 318 to apply only to deportation proceedings based on grounds existing under the prior law. In making this contention, petitioner gives away nothing and gains nothing. If the groups for deportation are the same under the prior law as under the new Act, then nothing in the new Act affects petitioner; it is clear that rights under the savings clause have not been infringed even if there is no specific exception. Only where something in the new law introduces a change, thereby affecting one's status under the old law, is the savings clause called into play. Only then is a specific exception to § 405 required. Thus, if petitioner's construction were to prevail, the 'notwithstanding' language in § 318 would be as meaningless as under the interpretation previously advanced and rejected. The 'notwithstanding' clause takes on meaning only when we assume that the new Act has made some change in the law to which the 'notwithstanding' statement is noting a specific exception. That is this case.4 10 The role thus played by § 405(b) is in substantial accord with the operation of its predecessor, § 347(b) of the Nationality Act of 1940, 54 Stat. 1168, 8 U.S.C. (1946 ed.) § 747. It was pointed out in Menasche, supra, that § 347(b), with its two-year limitation, was considered to be a special limitation on the rights preserved by subsection (a) of that savings clause. The two-year period has been deleted in § 405(b), but the subsection remains a special limitation on the broad savings provision, bringing to bear the specific exceptions found in § 318 and other provisions of the new Act whenever the protection of § 405(a) is sought for rights connected with the naturalization process.5 11 In our view, § 405[b] is the vehicle for applying each of these exceptions to the rights and liabilities emerging from naturalization proceedings under prior law and otherwise preserved by § 405(a). In using the 'notwithstanding' language in these sections, Congress clearly manifested its intent that certain policies should override the otherwise broad and pervasive principle of the savings clause. In United States v. Menasche, supra, we recognized the wide scope to be given the savings clause. We would be lax in our duty if we did not give recognition also to the congressional purpose to override the savings clause when other considerations were thought more compelling than the preservation of the status quo. If we are not to nullify this clear legislative purpose and render meaningless the 'notwithstanding' language of § 318 and the other sections, we must find for the Government and hold that § 318 bars petitioner's attempt to compel a hearing on his naturalization petition while the deportation preceeding is pending. 12 Affirmed. 13 Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 The text of this provision, in material part, is as follows: 'Sec. 318. * * * Notwithstanding the provisions of section 405(b), and except as provided in sections 327 and 328 no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this or any other Act; and no petition for naturalization shall be finally heard by a naturalization court if there is pending against the petitioner a deportation proceeding pursuant to a warrant of arrest issued under the provisions of this or any other Act: * * *.' 2 It is assumed for the purposes of this proceeding that petitioner is deportable under § 241(a). See note 3, infra. 3 This is not to say that petitioner cannot challenge the authority of the Attorney General to deport him under § 241(a) of the 1952 Act. We express no opinion as to whether such a challenge, grounded on the savings clause or otherwise, might succeed if made in the deportation proceedings. Whether the question of deportability could be raised in a naturalization proceeding was expressly waived by the petitioner. See Petitioner's Brief, p. 7. 4 Petitioner's further argument, that a change in the punctuation of § 318 resulted in the application of the 'notwithstanding' clause to final findings of deportability but not to pending proceedings, must be rejected. When viewed against the purpose of the clause, the circumstances surrounding the controverted change, and the usual rules of proper punctuation, the contention is shown to be without substance. 5 Section 311 provides that the right to naturalization shall not be abridged because of race, sex or marriage, and, '(n)otwithstanding section 405(b), this section shall apply to any person where petition for naturalization shall hereafter be filed, or shall have been pending on the effective date of this Act.' 66 Stat. 239, 8 U.S.C. § 1422, 8 U.S.C.A. § 1422. Section 313(a) states: 'Notwithstanding the provisions of section 405(b), no person shall hereafter be naturalized' who engages in specified subversive activities or who is a member of described subversive organizations. 66 Stat. 240, 8 U.S.C. § 1424(a), 8 U.S.C.A. § 1424(a). Section 315(a) provides: 'Notwithstanding the provisions of section 405(b),' one who claims or has claimed his alienage and 'is or was' thereby relieved of service in the armed forces, 'shall be permanently ineligible to become a citizen.' 66 Stat. 242, 8 U.S.C. § 1426(a), 8 U.S.C.A. § 1426(a). Section 331(d) provides for the ending of enemy alien status and states: 'Notwithstanding the provisions of section 405(b), this subsection shall also apply to the case of any such alien whose petition for naturalization was filed prior to the effective date of this Act and which is still pending on that date.' 66 Stat. 252, 8 U.S.C. § 1442(d), 8 U.S.C.A. § 1442(d).

12

349 U.S. 1 75 S.Ct. 553 99 L.Ed. 773 Elizabeth R. GRANVILLE-SMITH, Petitioner,v.Edward GRANVILLE-SMITH. No. 261. Argued Feb. 3 and 4, 1955. Decided April 11, 1955. Mr. Abe Fortas, Washington, D.C., for petitioner. Mr. Erwin N. Griswold, Cambridge, Mass., amicus curiae by invitation of the Court. No brief filed for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 This case concerns § 9(a) of the divorce law of the Virgin Islands: 2 'Notwithstanding the provisions of sections 8 and 9 hereof,1 if the plaintiff is within the district at the time of the filing of the complaint and has been continuously for six weeks immediately prior thereto, this shall be prima facie evidence of domicile, and where the defendant has been personally served within the district or enters a general appearance in the action, then the Court shall have jurisdiction of the action and of the parties thereto without further reference to domicile or to the place where the marriage was solemnized or the cause of action arose.' 3 The circumstances of the case and the course of the litigation are briefly stated. Petitioner filed suit for divorce because of 'irreconcilable incompatibility'2 in the District Court of the Virgin Islands on March 16, 1953. The complaint alleged that she had been a 'resident and inhabitant' of the Islands for more than six weeks prior to the commencement of the action, that respondent was not a resident of the Islands, and that the couple had no children under 21. Through Virgin Islands counsel authorized by a power of attorney executed in New York—respondent entered an appearance, waived personal service, denied petitioner's allegations, and filed a 'Waiver and Consent' to 'hearing of this cause as if by default' and to 'such findings of fact and conclusions of law and decree as to the Court may seem just and reasonable.' 4 Solely on the basis of petitioner's testimony that she had resided in the Virgin Islands continuously for 43 days before bringing suit, the Commissioner who heard the case found that she was a resident and inhabitant of the Islands and had been so for more than six weeks prior to the action. Having also found that the claimed ground for divorce was substantiated, he recommended that she be granted a divorce. On petitioner's motion to confirm the Commissioner's recommendation, the District Court inquired of petitioner's counsel whether he had 'any more evidence to offer on the question of domicile.' Since no further evidence was proffered, the court, relying on its earlier opinion in Alton v. Alton, 121 F.Supp. 878, dismissed the complaint for want of jurisdiction over petitioner. 5 The Court of Appeals for the Third Circuit, sitting en banc, affirmed, 214 F.2d 820, on the basis of its decision in the Alton case, 207 F.2d 667. In that case, the Court of Appeals, likewise sitting en banc and three judges dissenting, held § 9(a) in violation of 'due process' guaranteed by the Fifth Amendment and the Virgin Islands Organic Act, 48 U.S.CA. § 1405 et seq. This Court had granted certiorari in the Alton case, 347 U.S. 911, 74 S.Ct. 478, 98 L.Ed. 1068, but intervening mootness aborted disposition on the merits. 347 U.S. 610, 74 S.Ct. 736, 98 L.Ed. 987. The obvious importance of the issue which brought the Alton case here led us to grant certiorari in this case. 348 U.S. 810, 75 S.Ct. 60. In view of the lack of genuine adversary proceedings at any stage in this litigation, the outcome of which could have far-reaching consequences on domestic relations throughout the United States, the Court invited specially qualified counsel 'to appear and present oral argument as amicus curiae in support of the judgment below.' 348 U.S. 885, 75 S.Ct. 205. 6 We need not consider any of the substantive questions passed on below and we intimate nothing about them. For we find that Congress did not give the Virgin Islands Legislative Assembly power to enact a law with the radiations of § 9(a). 7 Article IV, § 3 of the Constitution gives the Congress authority to 'make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States * * *.' Accordingly, Congress has from time to time established governments in the various territories that have come under federal control. Territorial government in the continental United States was customarily viewed as a transition step to statehood, and statehood in fact resulted. The Spanish-American War opened a new chapter. Beginning with the Treaty of Paris, the United States acquired by conquest, treaty or purchase outlying territories for which statehood was not contemplated. The position of these territories in our national scheme gave rise to lively political controversy. Answers to some of the constitutional issues that arose were unfolded in a series of decisions best formulated, perhaps, in opinions by Mr. Chief Justice White3 and Mr. Chief Justice Taft.4 8 A vital distinction was made between 'incorporated' and 'unincorporated' territories.5 The first category had the potentialities of statehood like unto continental territories. The United States Constitution, including the Bill of Rights, fully applied to an 'incorporated' territory. See, e.g., Rassmussen v. United States, 197 U.S. 516, 25 S.Ct. 514, 49 L.Ed. 862. The second category described possessions of the United States not thought of as future States. To these only some essentials, withal undefined, of the Constitution extended. See, e.g., Balzac v. People of Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627. The incidence of the differentiation fell in two areas: (a) the right of the individual to trial by jury and similar protections, e.g., Balzac v. People of Porto Rico, supra; (b) the right of the Federal Government to tax territorial products on a nonuniform basis, e.g., Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088. 9 The legislative power of territories has customarily been expressed as extending to 'all rightful subjects of legislation' not inconsistent with the Constitution or laws of the United States.6 This conventional phrasing was altered to subjects of 'local application,' or 'not locally inapplicable,' in the case of unincorporated territories such as pre-Commonwealth Puerto Rico, the Virgin Islands, and Guam.7 10 The questions that have arisen under grants of legislative powers to territories have fallen into three main classes: (1) those in which the sovereign immunity of the territory was in issue, e.g., People of Porto Rico v. Rosaly y Castillo, 227 U.S. 270, 33 S.Ct. 352, 57 L.Ed. 507; (2) those in which conflict was claimed with the United States Constitution or laws, e.g., People of Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235; Territory of Montana v. Lee, 2 Mont. 124; (3) those in which the 'rightful' nature of particular territorial legislation was assailed, e.g., Chuoco Tiaco v. Forbes, 228 U.S. 549, 33 S.Ct. 585, 57 L.Ed. 960; People v. Daniels, 6 Utah 288, 22 P. 159, 5 L.R.A. 444. It is the third group that is our immediate concern. In determining the rightfulness of territorial legislation the courts have considered whether a territorial legislature has transcended the familiar bounds of legislation. See, e.g., Christianson v. King County, 239 U.S. 356, 36 S.Ct. 114, 60 L.Ed. 327. One of the earlier questions regarding the power of territorial legislatures involved the right to pass laws applicable not generally but to specific individuals or portions of a territory. In Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654, this Court held that a legislative divorce granted without cause by the Oregon Territorial Legislature to a local homesteader was valid though the wife was not in the Territory and had had no notice. The Court relied on the historic practice of individual legislative divorces.8 It is significant, however, that while the litigation was in progress Congress forbade territories to pass 'local' or 'special' divorce laws. 24 Stat. 170, now 48 U.S.C.A. § 1471, 48 U.S.C.A. § 1471. 11 The United States acquired the Virgin Islands by purchase from Denmark in 1917,9 but it was not until the Organic Act of 1936 that Congress provided a complete government—including a Legislative Assembly. The OrganicAct: (1) labeled the Islands an 'insular possession' of the United States, 49 Stat. 1807, 48 U.S.C. § 1405a, 48 U.S.C.A. § 1405a; (2) endowed the Legislative Assembly (consisting of the two pre-existing municipal councils in joint session) with power to enact laws on 'all subjects of local application not inconsistent with * * * this title or the laws of the United States made applicable to said islands, but no law shall be enacted which would impair rights existing or arising by virtue of any treaty entered into by the United States, nor shall the lands or other property of nonresidents be taxed higher than the lands or other property of residents', 49 Stat. 1811, 48 U.S.C. § 1405r, 48 U.S.C.A. § 1405r; (3) enacted a due process clause for the Islands, 49 Stat. 1815, 48 U.S.C. § 1406g, 48 U.S.C.A. § 1406g; and (4) gave the District Court jurisdiction over '(a)ll cases of divorce', 49 Stat. 1814, 48 U.S.C. § 1406(4), 48 U.S.C.A. § 1406(4). 12 The Legislative Assembly was held on a checkrein by a presidentially appointed governor who shared with the President an absolute veto over legislation. Congress had the customary reserved power to annul legislation. 49 Stat. 1810, 48 U.S.C. § 1405o, 48 U.S.C.A. § 1405o. 13 By virtue of the 1936 Organic Act, the Legislative Assembly passed the 1944 divorce law making six weeks' 'residence' by an 'inhabitant' sufficient for divorce jurisdiction.10 In 1952, the Court of Appeals for the Third Circuit construed 'inhabitant' and 'residence' to imply 'domiciliary' and 'domicile.' Burch v. Burch, 195 F.2d 799. The legislature thereupon provided that six weeks' 'physical presence' was adequate as a basis for divorce. The Governor vetoed this amendment.11 To overcome the veto, § 9(a) was enacted. Bill No. 55, 17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953. 14 Congress passed a revised Organic Act in 1954. Act of July 22, 1954, 68 Stat. 497, 48 U.S.C.A. § 1541 et seq. Previous to the legislation, this Court on June 1, had dismissed Alton v. Alton, supra, for mootness. Though the judgment below was vacated, the Court of Appeals had expressed its views on the constitutionality of § 9(a). Certainly no inference favorable to its validity can be drawn from the revised Organic Act.12 15 In giving content to the power to pass legislation having 'local application,' two considerations at once obtrude. The phrase most liberally interpreted can be no broader than 'all rightful subjects of legislation.'13 Yet in the Organic Acts of the 'incorporated' territories, Alaska and Hawaii, there is specific limitation on divorce jurisdiction to cases where the plaintiff has resided in such territory for at least two years.14 37 Stat. 514, 48 U.S.C. § 45, 48 U.S.C.A. § 45 (Alaska); 31 Stat. 150, 48 U.S.C. § 519, 48 U.S.C.A. § 519 (Hawaii). It is hardly reasonable to believe that Congress was less concerned with the scope of divorce jurisdiction in the 'unincorporated' possession of the Virgin Islands, so temptingly near the mainland, and that it intended to give them unrestricted freedom in this sensitive field of legislation. The Virgin Islands divorce law, with the exception of substantive grounds drawn from Danish law, copied that of Alaska. See Compiled Laws of the Territory of Alaska (1913) §§ 1293—1306; cf. Terrill v. Terrill, 2 Alaska 475; Wilson v. Wilson, 10 Alaska 616. Secondly, 'local application' obviously implies limitation to subjects having relevant ties within the territory,15 to laws growing out of the needs of the Islands and governing relations within them. An example is provided by People of Puerto Rico v. Shell Co., supra, which involved the validity of a territorial antitrust law. 'It requires no argument to demonstrate that a conspiracy in restraint of trade within the borders of Puerto Rico is clearly a local matter, and that it falls within the precise terms of the power granted * * *.' 302 U.S. at page 261, 58 S.Ct. at page 171. And in upholding the power of the Philippine Legislature to deport dangerous aliens, Mr. Justice Holmes, for the Court, observed that 'the local government has all civil and judicial power necessary to govern the Islands. * * * It would be strange if a government so remote should be held bound to wait for the action of Congress in a matter that might touch its life unless dealt with at once and on the sopt.' Chuoco Tiaco v. Forbes, 228 U.S. at page 557, 33 S.Ct. at page 586. 16 In such light the decisive question is: was § 9(a) concerned with the needs and interests of the local population or was it, as amicus pressed upon us, designed for export?16 For the purpose of regulating divorce of Virgin Islanders, it may be abstractly relevant but practically it has no point.17 The Virgin Islanders could of course bring themselves within the 1944 law as interpreted in Burch v. Burch, 195 F.2d 799. They would have no difficulty in making the appropriate showing of connection with the forum. Virgin Islanders seeking divorce are not sojourners, mere transients in the Islands. Cf. Berger v. Berger, 3 Cir., 210 F.2d 403. It hardly needs proof to read this statute as one designed for people outside the Virgin Islands. The Virgin Islands Legislative Assembly stated the purpose of § 9(a) with disarming frankness.18 It is inadmissible to assume that Congress authorized the Assembly to traffic in easy divorces for citizens of the States as a stimulus to money-making by the Islanders. What Mr. Chief Justice Taft for the Court said in another connection is strikingly applicable here: 'All others can see and understand this. How can we properly shut our minds to it?' Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20, 37, 42 S.Ct. 449, 450, 66 L.Ed. 817. But it sometimes helps to prove, as well as to see, the obvious.19 17 In 1950 the Virgin Islands had 26,665 inhabitants in its 133 square miles; for at least 20 years the population had remained relatively static, and the 1952 census estimates indicate a slight decline. In 1940, 34 divorces were granted in the Islands (1.4 per 1,000 population). In 1951 the figure had reached 312 (12.5 per 1,000). This, per capita, represented the second highest figure for any State or Territory of the United States. Moreever, the Virgin Islands far exceeded its leader, Nevada, in ratio of divorces to marriages. Nevada in 1951 had 55.7 divorces per 1,000 population but at the same time had 289.5 marriage licenses per 1,000. Thus while Nevada granted 5 marriage licenses for every divorce, the Virgin Islands was granting 4 divorces for every 3 marriages. Lest this year be considered unrepresentative, we may look to 1950 and 1952, during which the Islands granted 2 for 1 and 7 for 5 divorces over marriages respectively. Only in the Virgin Islands did divorces exceed marriages during any of the years under consideration. The national average in 1940 was 2.0 divorces and 12.1 marriages per 1,000 population. Apart from some wartime fluctuations, the ratios have been quite stable. In 1951 the average was 2.5 divorces and 10.4 marriages. Thus, while the Virgin Islands was somewhat below the national average for marriages in 1951, it was 5 times the national average for divorce. 18 In 1952 the Virgin Islands hit its peak of divorces. Three hundred and forty-three were granted (14.3 per 1,000) as opposed to only 237 marriages. But the decisions in Alton v. Alton reduced the divorce figure to 236 in 1953, and only 111 divorces were granted between January and November of 1954. 19 The extraordinary rate of divorce and the disproportion between marriages and divorces raise controlling doubts of the 'local' application of § 9(a), especially in the context of its legislative history. Such doubts are confirmed by further inquiry. The 1950 Census reveals that only 416 widowed or divorced men and 1,105 widowed or divorced women resided in the Islands.20 Thus the number of divorces in 1951 nearly equalled the total widowed or divorced male population of the Islands. Remarriage can serve only as a partial explanation. Petitioner's brief reveals a second surprising disproportion. Although the two components of the Islands (the Municipality of St. Croix and the Municipality of St. Thomas and St. John) are nearly equal in population, and although in 1940 St. Croix granted 18 divorces and St. Thomas and St. John 16, by 1952 St. Croix had increased only to 33, whereas St. Thomas and St. John had gone up nearly 2,000% to 310.21 It is not inappropriate to take judicial notice of the considerably greater tourist facilities on the Islands of St. Thomas and St. John.22 20 We have no information as to the duration of residence of divorcees under the questioned law. But we are advised that contest of jurisdiction occurred in only 1% of the 310 cases concluded in St. Thomas and St. John in 1952 and that contest of the merits was no more frequent. A general appearance—which strips the court of its power to inquire further into domicile—but no contest as to any issue, was the practice in most cases. The clear impact of the legislation, even if we disregard the candid explanations of local political, commercial and legal sources23 and the rapid drop in divorces following the initial decision of unconstitutionality, is to provide a convenient forum for prosperous persons with substantial connections to the mainland, who desire to sever their marital ties while vacationing. The Commissioner in the case at bar did not even ask petitioner where she lived in the Virgin Islands. 21 The Legislative Assembly is much less liberal toward would-be voters.24 One-year domicile is required. Further, a personal property or income tax on persons physically present for six weeks but with no stronger link to the Islands would no doubt be strongly challenged and of questionable validity. 22 In the circumstances, we cannot conclude that if Congress had consciously been asked to give the Virgin Islands Legislative Assembly power to do what no State has ever attempted, it would have done so. 23 Affirmed. 24 Mr. Justice HARLAN took no part in the consideration or decision of this case. 25 Mr. Justice CLARK, with whom Mr. Justice BLACK and Mr. Justice REED join, dissenting. 26 A 'fundamental tenet of judicial review' the late Mr. Justice Jackson said, is that 'not the wisdom or policy of legislation, but only the power of the legislature, is a fit subject for consideration by the courts.' Jackson, The Struggle for Judicial Supremacy (1941), p. 81. Some 10 years later in Harisiades v. Shaughnessy, 342 U.S. 580, 590, 72 S.Ct. 512, 519, 96 L.Ed. 586, he added that 'judicially we must tolerate what personally we may regard as a legislative mistake.' 27 I must dissent here because I feel that the majority, in striking down the Virgin Islands' divorce law, is substituting its wisdom and policy for that of the Congress. I fail to see how the Virgin Islands' failure to require—in form as well as substance jurisdictional requirements for divorce equal to those presently in vogue in the States is any more than a 'legislative mistake.' The Court, however, in the face of an unbroken national history of granting to our territories full authority in legislating on such subjects, declares the Islands' divorce law invalid on the ground that, rather than being 'of local application,'1 it was 'designed for export.' In so doing, the Court does violence to the command of the Congress; it overrides a long line of its own decisions, as well as the unanimous opinion in this case of the seven judges of the Court of Appeals for the Third Circuit, each of whom has had long experience with territorial acts; and, finally, it confounds the fundamental law governing our territories which heretofore has gone unquestioned. 28 The legislative history of the 'subjects of local application' provision, on which the Court grounds its action, shows beyond a doubt that today's construction was never dreamed of by the Congress. 29 The Congress first used closely similar language in 1850. The Organic Act for the Territory of New Mexico provided that 'the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within the said Territory of New Mexico as elsewhere within the United States.' (Emphasis supplied.) 9 Stat. 452. The Act also declared that the legislative power of the Territory covered 'all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this act'. 9 Stat. 449. 30 Fifty years later, the Foraker Act, 31 Stat. 77, establishing a civil government for Puerto Rico, used the same 'not locally inapplicable' provision when extending the laws of the United States to that Island. With reference to the powers of the local legislature, the Act repeated this phrasing, extending the local authority to 'all matters of a legislative character not locally inapplicable * * *,'2 31 Stat. 83, instead of 'rightful subjects of legislation'. After the Foraker Act, the words evolved but little, until now, with the dropping of the double negative, the phrase has become 'subjects of local application'. 31 The majority does not dispute that the legislative power of the Virgin Islands is at least on a par with that of Puerto Rico under the Foraker Act. It does, however, contend that the phrase 'of local application' represents a positive limitation on the powers of the Islands below that of a State. That the Virgin Islands has not the quantum of self-government which a State possesses is beyond question. All local laws are subject to the absolute veto shared by the appointive governor and the President of the United States. There are specific limitations on the Islands' legislative power.3 And Congress has specifically provided that it may annul any local law. 48 U.S.C. § 1574c, 48 U.S.C.A. § 1575. However, the Islands' divorce law has been neither vetoed nor annulled. 32 As the majority points out, 'the phrase (of local application) most liberally interpreted can be no broader than 'all rightful subjects of legislation." Illiberally interpreted, however, it can be no narrower. The Senate Report on the Foraker bill could not possibly be clearer in saying, with reference to the 'not locally inapplicable' phrase, that the 'legislative assembly * * * shall have complete power, subject to the veto of the governor and the supervision of Congress, to legislate upon all rightful subjects of legislation.' (Emphasis supplied.) S.Rep. No. 249, 56th Cong., 1st Sess. 3. 33 What then, has this Court said is the meaning of 'rightful subjects of legislation'? We note that the majority cites People v. Daniels, 6 Utah 288, 22 P. 160, a decision by the territorial court of Utah, that the Territory was 'restricted' to 'rightful subjects of legislation'. In Cope v. Cope, 137 U.S. 682, 684, 11 S.Ct. 222, 34 L.Ed. 832, decided the following year, this Court held 'With the exceptions noted in this section (such as 'no law shall be passed interfering with the primary disposition of the soil'), the power of the territorial legislature was apparently as plenary as that of the legislature of a state.'4 34 Nor were the Caribbean territories placed on a footing different from that of our other possessions. The debates show that Congress was not unaware of the nature of the power it was granting to the local legislators in our Caribbean possessions. Rather than asserting that Puerto Rico had been given less power, one Congressman complained that it had been given more power than had been granted to any territory. 54 Cong.Rec. 3008 3009. Likewise, the debates on the Foraker Act and its successors indicate that the Congress thought that our Caribbean possessions had, within specific restrictions, attained self- government, 54 Cong.Rec. 3074; 53 Cong.Rec. 7478. In one of the debates, at 33 Cong.Rec. 3079, one Senator said, 'Congress, having supreme legislative power over the Territories and not being expressly restricted by the Constitution, can delegate power to local tribunals for self-government, corresponding with the powers of the States of the Union as to legislation. * * * Congress has chosen to leave Puerto Rico (and Hawaii) under the control of their local laws.' In the debates somewhat earlier, the view was expressed that there was no 'radical difference' between Puerto Rico and the other territories, 33 Cong.Rec. 3084, and that Puerto Rico was to receive local self-government, 53 Cong.Rec. 8470. The debates provide further evidence that the phrase 'of local application,' like its ancestral provisions, was not meant as a limitation on the powers of the territories. Again and again in these debates and committee reports, limitations on self-government for the territories are listed. An examination of these listings shows them to be quite complete, but nowhere does the phrase 'of local application' or its equivalent appear among them. 53 Cong.Rec. 7479; H.R.Rep.No.163, 62d Cong., 1st Sess. (with reference to Alaska). In fact, nowhere in the hundreds of pages of legislative history of the acts of Congress using this phrase does it appear that Congress ever contemplated that 'of local application' might be interpreted as a specific limitation. 35 The government of our Caribbean possessions has been modified by Congress on various occasions, always definitely in the direction of more self-government. See H.R.Rep.No.461, 63d Cong., 2d Sess., 53 Cong.Rec. 7469. As is common in such enactments, a compromise is reached between those who want still greater independence and those who feel that the present degree of restriction is warranted. Yet, after exhaustive research, we have found nowhere in the debates or hearings, or in the arguments of those supporting complete self-government for the Islands, even a hint that the phrase 'of local application' represents any type of a restriction upon the local government, above and beyond our usual concepts of legislative jurisdiction. 36 In light of this study, it is difficult for me to follow the reasoning of the majority opinion. Apparently, the Court says a statute is not of local application if it is intended to reach beyond its borders, and, since the Islands' law attracts domiciliaries of other States to the Islands specifically to get divorces, it is ipso facto not 'of local application.' Under this reasoning, other laws would not be 'of local application.' Five States have divorce laws that certainly attract out-of-staters. Puerto Rico has established 'operation bootstrap,' a planned campaign to attract industry to the Island by means of tax benefits and several of the States have similar programs. Probably most clearly analogous to the Virgin Island divorce law is the corporation law of the State of Delaware, which often attracts enterprises doing no business in that State; except for incorporation there may be no contact between these companies and their 'home' State. In view of our relatively abstruse constitutional standards of legislative jurisdiction under the Due Process Clause, see Miller Bros. Co. v. State of Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744, it strikes me as completely unreasonable to assume that 'of local application', without the faintest indication of such in the legislative history, was meant to delegate to the Court a novel standard, equally indefinite, which it might apply on an ad hoc basis. 37 The slenderness of the reed on which the majority depends is further emphasized by the fact that in the 55 years that the 'of local application' provision has been used in describing the power of territorial legislatures it has not, so far as I can find, ever been contended in any court, in any judicial opinion, or in any law review or treatise, that the phrase represented any such limitation as the majority has placed upon it. 38 What Weight Statistics? 39 I assume the majority agrees that the Islands' legislature has the power to pass laws on the subject of divorce. In studying this problem, however, it seems to be impressed by the fact that the effect of this law upon the tourist trade (though I assume this too is a local enterprise) was considered of great importance. I had always thought that the courts were not to concern themselves with the motives of the legislature in exercising its powers. 40 The majority admits that the State of Nevada hands out each year forty times as many divorces per capita as the Virgin Islands.5 The opinion concludes, however, that the Islands are really extending their borders further than Nevada attempts, because their ratio of marriages to divorces is much lower. This approaches the perfect non sequitur. The statistics have no relevance whatever to the question before us. I feel, however, that I should point out some of the reasons for the higher ratio of marriages to divorces in Nevada. First, the Nevada divorce machinery has become so smooth that the husband-to-be often flies out to be present at the divorce, gets married in the church next door, and then accompanies his new wife to their 'new' domicile. Secondly, Nevada does a thriving business not only in divorcing out-of-staters but in marrying them as well; by requiring no waiting period before marriage, Nevada steals a march on nearby California and other States which attempt to force their often impatient residents to wait three days.6 41 The majority's holding that the Islands' law is not 'of local application' can be appreciated more fully by asking the question, 'What type of a divorce law would be of local application?' The majority does not pass on this, but its whole reasoning is founded on the proposition that only domicile will suffice. The law is not of local application because, 'For the purpose of regulating divorce of Virgin Islanders, it may be abstractly relevant but practically it has no point.' 75 S.Ct. at page 559. Why? Because, says the majority, 'Virgin Islanders seeking divorce are not sojourners, mere transients in the Islands.' They are domiciled in the Islands and could of course bring themselves within the 1944 law as interpreted in Burch v. Burch, 3, Cir., 195 F.2d 799, 805. They would have no difficulty in making the 'appropriate showing of connection with the forum.' It is crystal clear that any divorce law not requiring domicile will also 'be abstractly relevant but practically (will have) no point.' In fact, by definition, the only people in the Islands who are not mere 'sojourners' or 'transients' are those domiciled there. Thus the 'appropriate showing of connection with the forum' required before the law can be of other than local application is nothing other than the sacred cow of domicile. Is it any more meaningful to ask whether Congress specifically required the Islands to adhere to domicile as a basis for divorce jurisdiction, come what may, than to ask whether 'Congress authorized the Assembly to traffic in easy divorces for citizens of the States as a stimulus to money-making by the Islanders'? Congress authorized the Islands in this area to have the power of a State and thought no more about it. If the majority is willing to say that a State is restrained by the Constitution from passing such enactments, that is another story. But it has not done so. The language of Mr. Justice Brown in Cope v. Cope, supra, 137 U.S. at page 685, 11 S.Ct. at page 223, is peculiarly appropriate here: '(W)hile it is the duty of the courts to put a construction upon statutes, which shall, so far as possible, be consonant with good morals, we know of no legal principle which would authorize us to pronounce a statute of this kind, which is plain and unambiguous upon its face, void, by reason of its failure to conform to our own standard of social and moral obligations. Legislatures are as competent as courts to deal with these subjects, and, in fixing a standard of their own, are beyond our control.' 42 What Weight Hawaii and Alaska? 43 To rationalize its Procrustean treatment of the Virgin Islands Organic Act, the majority argues that, since Congress has specifically limited the divorce jurisdiction of Alaska and Hawaii to cases where the plaintiff has resided in the Territory for at least two years, it follows that the Congress must have intended similarly to limit the Islands 'so temptingly near the mainland.' This is but another non sequitur. Since 1921 the residence requirement in the Islands has never been longer than six months; the 1936 Organic Act in effect recognized and continued that requirement; three years thereafter in 1939, the residence period was reduced to six weeks; and, in the 1944 law, this new requirement was continued. Then, 10 years later, long after the 'extraordinary rate of divorce' had occurred and the controversy over the Islands' law was brought to the attention of the Congress, it adopted, in 1954, a new Organic Act which re-enacted the identical 'subjects of local application' provision of the 1936 Act. Cf. Alaska Steamship Co. v. United States, 290 U.S. 256, 54 S.Ct. 159, 78 L.Ed. 302.7 44 Moreover, the conclusion of the Court that the two-year limitation placed on Alaska and Hawaii casts its shadow on the Islands is 'hardly reasonable.' If anything, it would be the more logical to assume the opposite—that the Congress, having placed a specific requirement in the Alaskan and Hawaiian Acts and not in the subsequently passed Act for the Islands, had granted the Islands divorce jurisdiction without any such limitation. It is interesting to note the explanation of Government counsel on this point in People of Porto Rico v. Rosaly y Castillo, supra: 45 'That no provision similar to the one here under discussion is contained in the organic act of Hawaii, passed at the same session (of the Congress) is wholly without significance, when due regard is given to the actual conditions of Congressional draftsmanship. The two acts issued from two different committees, and were actually drawn by different sets of legislators. Instances, such as this case discloses, of the lack of uniformity in similar enactments and general want of scientific draftsmanship, are bound to present themselves * * *.' Page 8, Government Brief. 46 What Weight Constitutional Doubts? 47 While the Court's opinion makes no reference to any constitutional doubts, these may have motivated it in striking down the Islands' law on the statutory ground. In my opinion this may be an explanation but it is not an excuse. There are limits to which the Court should not run to escape a constitutional adjudication. Admittedly, the doubt that domicile is not a constitutional requirement is not free from doubters. Even though judge-made, it does involve a peculiarly sensitive area of American life. Nevertheless, the Virgin Islands are entitled to a forthright adjudication on their statute—not one by a phantom escape clause. 48 The constitutional questions presented on brief and at argument involve the Due Process Clause of the Fifth Amendment, the Full Faith and Credit Clause, and the Tenth Amendment. First of all, neither of the Granville-Smiths claims to have been deprived of life, liberty, or property without due process of law. While the State has an interest in the marital relationship, certainly this interest does not come within the protection of the Due Process Clause. Likewise, full faith and credit is not applicable. Mrs. Granville-Smith is not asking that this Court make her divorce, if granted, valid in the States. That issue is not here and may never be. All she asks is that the Islands be permitted to proceed under their own law. In this connection, I find no words in the Constitution which require a Territory to give full faith and credit to the laws of a State. 49 Nor have the Islands invaded the sphere of activities reserved to the States, contrary to the Tenth Amendment. The 'Tenth Amendment 'does not operate as a limitation upon the powers, express or implied, delegated to the national government." Case v. Bowles, 327 U.S. 92, 102, 66 S.Ct. 438, 443, 90 L.Ed. 552. The Congress has the power to deal with the Islands, granting or withholding from them the powers of a State as it sees fit. 50 The only constitutional bugaboo is a judge-made one, domicile.8 It creates strange anomalies. A married couple, both of whom desire a divorce, can obtain one in Nevada merely by having one spouse 'reside' there uninterruptedly for six weeks, and claim an intention to take up permanent residence there. See, e.g., Business Week, July 14, 1945, p. 24. Then, after divorce, though the divorcee immediately leaves Nevada, as was always intended, both sides here concede that regardless of how evident it is there was no domicile in the divorcing State, no other State can question the validity of the divorce so long as both parties appeared in the action. See Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552. We too agree with the language of Mr. Chief Justice Taft: 'All others can see and understand this. How can we properly shut our minds to it?'9 Child Labor Tax Case (Bailey v. Drexel Furniture Co.) 259 U.S. 20, 37, 42 S.Ct. 449, 450, 66 L.Ed. 817. Still the Court strikes down the Islands' law which avoids this judicial fraud. 51 Divorce is an intensely practical matter, and if a husband and wife domiciled in any State want a divorce enough, we all know that they can secure it in several of our States. This being true, I see no sense in striking down the Islands' law. There is no virtue in a state of the law the only practical effect of which would be to make New Yorkers fly 2,400 miles over land to Reno instead of 1,450 miles over water to the Virgin Islands. 52 The only vice of the Virgin Islands' statute, in an uncontested case like this, is that it makes unnecessary a choice between bigamy and perjury. I think the Court should not discourage this and I would reverse. 1 Section 8 deals with annulment and is not here relevant. Section 9 reads as follows: 'In an action for the dissolution of the marriage contract or for a legal separation the plaintiff therein must be an inhabitant of the district at the commencement of the action and for six weeks prior thereto, which residence shall be sufficient to give the Court jurisdiction without regard to the place where the marriage was solemnized or the cause of action arose.' Bill No. 14, 8th Legislative Assembly of the Virgin Islands of the United States, Sess., 1944. Section 9(a) was added by amendment in 1953. Bill No. 55, 17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953. 2 Section 7(8), Bill No. 14, 8th Legislative Assembly of the Virgin Islands of the United States, Sess., 1944. 3 Beginning with Downes v. Bidwell, 182 U.S. 244, 287—344, 21 S.Ct. 770, 787—809, 45 L.Ed. 1088; see Coudert, The Evolution of the Doctrine of Territorial Incorporation, 26 Col.L.Rev. 823. 4 In Balzac v. People of Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627. 5 Both were distinguished from States. 'A state, except as the federal Constition otherwise requires, is supreme and independent. * * * A dependency (here the Philippines) has no government but that of the United States, except in so far as the United States may permit. * * * (O)ver such a dependency the nation possesses the sovereign powers of the general government plus the powers of a local or a state government in all cases where legislation is possible.' Cincinnati Soap Co. v. United States, 301 U.S. 308, 317, 57 S.Ct. 764, 768, 81 L.Ed. 1122. 6 E.g., 37 Stat. 514, 48 U.S.C. § 77, 48 U.S.C.A. § 77 (Alaska). 7 39 Stat. 964, 48 U.S.C. § 821, 48 U.S.C.A. § 821 (Puerto Rico); 68 Stat. 500, 48 U.S.C.A. § 1574(a) (Virgin Islands); 64 Stat. 387, 48 U.S.C. § 1423a, 48 U.S.C.A. § 1423a (Guam). 8 '* * * the granting of divorces was a rightful subject of legislation according to the prevailing judicial opinion of the country, and the understanding of the profession at the time the organic act of Oregon was passed by congress, when either of the parties divorced was at the time a resident within the territorial jurisdiction of the legislature.' 125 U.S. at page 209, 8 S.Ct. at page 728. 9 The local law as it had existed under Danish rule was continued in effect, 39 Stat. 1132, 48 U.S.C. § 1392, 48 U.S.C.A. § 1392, subject to change by the two Colonial Councils, the instruments of municipal government for the two districts of the Islands. Presidential approval of any change in this body of law was required. Ibid. Each Colonial Council subsequently passed a divorce law, verbally drawn from that of Alaska. Burch v. Burch, 3 Cir., 195 F.2d 799, 805—806. 10 See note 1, supra. 11 His objection was that the amendment made physical presence sufficient in both ex parte and contested actions. 12 For the first time, the legislation explicitly characterized the Virgin Islands an 'unincorporated territory.' The Senate Report spoke as follows: 'S. 3378 declares the Virgin Islands to be 'an unincorporated territory of the United States of America.' Thus, their legal status would be distinct and wholly different from that of Hawaii and Alaska, which are Incorporated Territories. * * * (S)tatehood has unvaryingly been the destiny of all Incorporated Territories. * * * On the other hand, there is no precedent * * * for statehood for a political, geographic, and economic unit such as the Virgin Islands would become under S. 3378. * * * A still higher degree of self-government and autonomy is, of course, possible within that framework—such as an elective governor when the people are ready for it.' S.Rep.No.1271, 83d Cong., 2d Sess. 8. Congressman Powell, on the other hand, criticized '* * * the unwarranted failure of the bill to provide for any advance whatsoever toward increased self-government.' 100 Cong.Rec. 8664. 13 See note 12, supra. The Senate Report on the 1936 Organic Act gives some idea of the legislative purpose: '* * * The inhabitants of the Virgin Islands * * * are capable of managing their local affairs. Unfortunately, the islands are not yet economically self-supporting. Hence it has been necessary to provide for an amount of Federal control over local affairs commensurate with continuing expenditures of Federal funds to subsidize the local government. * * * Matters of purely local concern are placed within local legislative power. The levying of local taxes and the expenditure of local revenue are authorized. It has not been deemed wise to give the local government power to incur bonded indebtedness so long as local revenue is insufficient to pay the entire cost of local government. Locally enacted bills may be vetoed by the Governor.' S.Rep.No.1974, 74th Cong., 2d Sess. 2. 14 For the history of the Alaskan provision, see 48 Cong.Rec. 5267—5270, 5293, 5297—5298. 15 Of course a suit for damages brought by a resident of the Virgin Islands for an injury occurring on the mainland, or a suit against a defendant served in the Virgin Islands arising out of a commercial transaction connecting both the Virgin Islands and the mainland, would clearly contain a relevant tie amply affording jurisdiction to the courts of the Virgin Islands. 16 We are dealing here with the bearing of the statute on consensual divorces. So far as these are concerned § 9(a) is an entirety, for in its application the first part of the section accomplishes precisely the same thing as the second. Under our system of law a judge is not charged with the role of an adversary party, and as such called upon to assume responsibility for rebutting a statutory presumption. 17 Cf. People v. Daniels, 6 Utah 288, 293, 22 P. 159, 160, 5 L.R.A. 444 '* * * as to the extent to which the legislature may act on a rightful subject, when the limit is not expressly fixed, the court must ascertain the limit and determine whether the law is within it. To illustrate: * * * Divorce is also a rightful subject of legislation, but a law giving any married person who might apply to the court a right to a divorce without cause would be invalid.' 18 Three members of the Legislative Assembly addressed themselves to the reasons for changing the result of the Court of Appeals in Burch v. Burch, see 75 S.Ct. at page 557, supra. Mr. Rohlsen spoke with authority as member in charge of the bill: 'The divorce business in the Virgin Islands is quite a thriving business. I understand that this business provides quite an income for the municipalities since it is estimated that over $300,000 a year is spent within the Virgin Islands by persons who have been using the facilities of our divorce law to put their homes in order. Unfortunately, because of an error in the draft of original law * * * and because of the Governor's attitude * * * it now becomes necessary for us to consider another amendment which is designed to enhance this u-coming (sic) business in the islands. * * * I am not trying to speak for or against the moral ethics of divorce because, as far as I am concerned, those issues were denied when the statute was enacted (sic) making it possible for people to come here for divorces. * * * I consider this matter as a means of enhancing the economy of our islands. * * *' 'The people of the Virgin Islands have enjoyed great financial benefits by an influx of people to these islands for the purpose of getting divorced. * * * I recommend to my colleagues this piece of legislation for their favorable consideration inasmuch as they can see the disadvantage in which the municipalities have been placed by not having the divorce court functioning at the present time.' Proceedings and Debates, 17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953, pp. 46—47, 66—67. Moving adoption of the earlier version of § 9(a), which the Governor vetoed but which does not, so far as concerns our problem, differ from § 9(a), Mr. Richards stated: '* * * personally I do not see why this Assembly should be deliberating so extensively on this amendment. Only about 2% of the divorces heard and the decisions rendered in the District Courts affect the residents of the Virgin Islands. I should conclude that this law was enacted not to facilitate the bona fide residents of the Virgin Islands but in order to provide as it were source of economic asset to the islands by which people are brought to our shores and contribute to the general economic welfare of the islands. * * * I feel proud to see that only a possible of 2 or three residents of the Virgin Islands are involved in divorce cases a year.' Proceedings and Debates, 17th Legislative Assembly of the Virgin Islands of the United States, 2d Sess., 1953, p. 10. Mr. Heywood, in discussing the earlier amendment, observed: 'This bill No. 54 before us today appears to be in my opinion, a devise (sic) aimed primarily at transients in the islands. * * * I am very well aware of the volume of divorce business being carried on in these islands. * * * I have heard that there is anticipated a half a million dollars-business in this current year which will be distributed among lawyers, hotel bills, taxi cabs and other business ventures in the Community.' Id., at p. 8. 19 The statistics which follow are derived from these sources: United States Bureau of the Census, Statistical Abstract of the United States: 1954, pp. 9, 63, 85, 940, 942; United States Department of Health, Education, and Welfare, Summary of Marriage and Divorce Statistics, United States, 1952, pp. 45, 52—53; United States Department of Health, Education, and Welfare, Monthly Vital Statistics Report, Vol. 3, No. 12, Feb. 15, 1955, p. 7; Brief for Petitioner, p. 53. 20 United States Bureau of the Census, Statistical Abstract of the United States: 1954, p. 939. 21 Brief for Petitioner, p. 53. 22 See Virgin Islands Report, Senate Committee on Interior and Insular Affairs, 83d Cong., 2d Sess. 125—127; VIII Virgin Islands Magazine (Special Edition 1954) 7 et seq.; Murray, The Complete Handbook of the Virgin Islands 1951, 12—100. 23 The St. Croix Chamber of Commerce Newsletter for Feb. 1, 1954, cited the 'change in the divorce situation' as one reason for the tourist slump during the previous season. District Judge Moore, who decided both Alton v. Alton, supra, and this case, wrote the Senate Committee on Interior and Insular Affairs: '* * * the present court is not unsympathetic to the fact that the failure to grant these divorces has affected the economic status of both lawyers and guest house keepers * * *' Virgin Islands Report, Senate Committee on Interior and Insular Affairs, 83d Cong., 2d Sess. 4, 54. 24 '(b) For the purpose of this law 'residents of the Virgin Islands' shall be persons who have maintained legal residence in the Virgin Islands for a period of one year next preceding the date of the election, and in the district in which they desire to vote for a period of sixty days next preceding the election. In all cases of doubt as to legal residence, the Board shall request the registrant to submit substantial and satisfactory proof that the said registrant has fulfilled the legal residence requirement. The domicile, which is the registrant's legal residence, shall be determined in accordance with the following rules: '1) Every person has a domicile. '2) There can be but one domicile. '3) Legal residence or domicile is the place where a person habitually resides when not called elsewhere to work or for some other temporary purpose and to which such person returns in season for rest. '4) Legal domicile or residence may be changed by joinder of act and intent. '5) A domicile cannot be lost until a new one has been acquired. 'This subsection shall be strictly enforced by the Board.' Bill No. 86, 18th Legislative Assembly of the Virgin Islands of the United States, 2d Sess., 1954, c. II, § 1. 1 The words of the Organic Act, however, appear to require that local laws merely be on 'subjects of local application'. Divorce, it seems to me, is such a subject. What is the Legislative History? 2 Rather than interpreting this as a greater restriction, it would seem more reasonable to me to assume that the Congress, in repeating these words, meant that the legislature, within the specific limitations laid down in the Organic Act, was to exercise the same type of power as Congress could for the Territory, subject, of course, to the power of the Congress. This view is supported by the Government's argument in People of Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235, cited by the majority: 'The broad grant to a territorial legislature of 'all local legislative power' in the Territory, to 'extend to all matters of a legislative character not locally inapplicable,' in language such as, or similar to, that used in the Organic Act for Puerto Rico, taken in connection with the other provisions of an organic act establishing, as in Puerto Rico, an organized territorial government in accordance with the American system, with legislative, executive, and judicial powers, confers (with the exceptions specifically stated in the Organic Act) as plenary local legislative power upon the territorial legislature as that habitually exercised by the legislature of a State.' (Emphasis supplied.) Government brief, p. 31. 3 These include the substance of the Bill of Rights, 48 U.S.C. § 1561, 48 U.S.C.A. § 1561, and provisions covering the pay of legislators, 48 U.S.C. § 1572, 48 U.S.C.A. § 1572, the extent of the franchise, 48 U.S.C. § 1542, 48 U.S.C.A. § 1542, and various aspects of legislative procedure, 48 U.S.C. § 1575, 48 U.S.C.A. § 1575. 4 See also Walker v. New Mexico & Southern Pacific R. Co., 1897, 165 U.S. 593, 604, 17 S.Ct. 421, 425, 41 L.Ed. 837 (New Mexico); Clinton v. Englebrecht, 1872, 13 Wall. 434, 441, 20 L.Ed. 659 (Utah); Hornbuckle v. Tombs, 1874, 18 Wall. 648, 655, 21 L.Ed. 966 (Montana); Gromer v. Standard Dredging Co., 1912, 224 U.S. 362, 370, 32 S.Ct. 499, 502, 56 L.Ed. 801 (Puerto Rico); Christianson v. King County, 1915, 239 U.S. 356, 365, 36 S.Ct. 114, 118, 60 L.Ed. 327 (Washington); Maynard v. Hill, 1888, 125 U.S. 190, 204, 8 S.Ct. 723, 726, 31 L.Ed. 654 (Oregon); Chuoco Tiaco v. Forbes, 228 U.S. 549, 33 S.Ct. 585, 57 L.Ed. 960 (Philippine Islands); In re Murphy, 1895, 5 Wyo. 297, 310, 40 P. 398, 402 (Wyoming); Territory v. Long Bell Lumber Co., 1908, 22 Okl. 890, 898, 99 P. 911, 914—915 (Oklahoma); 19 Op.Atty.Gen. 335, 338 (Arizona). 5 Nevada's yearly average is about 9,000; the Islands' highest total is 343, and its 5-year average is about 200. 6 This arrangement has taken so many nuptials to Nevada that the marriage trade has also become a very lucrative business. So good, in fact, that Nevada's legislature has recently found it necessary to settle a squabble between local officials as to who might perform the marriage ceremony. See Reno Evening Gazette, March 21, 1955, p. 11, col. 3; March 23, p. 11, col. 6. What Law Would Be 'Of Local Application'? 7 In addition to all this, I believe the re-enactment by Congress of this provision in 1954 is entitled to extra weight. When the Organic Act came up before Congress, the Third Circuit had construed it to permit the Virgin Islands' divorce law. Nor does the fact that the majority in the Third Circuit held the Virgin Islands' law invalid on other grounds change the weight to be given to the re-enactment. Any lawyer would know that, on the constitutional grounds relied on by the one-judge majority, the Supreme Court was just as likely to disagree as to agree. In the not improbable case that the Court held the Virgin Islands' enactment constitutional, a small change in the Organic Act would be the only way of preventing the operation of this Insular 'Pied Piper.' Yet Congress made no such change. As Chief Justice Stone said dissenting in Girouard v. United States, 328 U.S. 61, 75, 76, 66 S.Ct. 826, 833, 90 L.Ed. 1084, 'In any case it is not lightly to be implied that Congress * * * has delegated to this Court the responsibility of giving new content to language deliberately readopted'. 8 Even this is being fast undone and 'English courts may now grant divorces in many cases where the parties are not domiciled in England.' See 65 Harv.L.Rev. 193, 200. See also Crownover v. Crownover, 1954, 58 N.M. 597, 274 P.2d 127. 9 An article on the Nevada divorce in a popular magazine shows that the people have not closed their minds even if this Court has. 'Nevada's first requirement for a divorce is what lawyers smugly refer to as a 'legal fiction': six weeks' steady residence in Nevada. * * * After this a mild sort of perjury is committed when the applicant mumbles in reply to the judge's mumble, that she does intend to continue residence in Nevada.' Holiday, February 1949, p. 98.

1213

349 U.S. 29 75 S.Ct. 544 99 L.Ed. 789 Alexander NORWOOD, Joseph F. Tunstall, and John E. Smallwood, Petitioners,v.Honorable William H. KIRKPATRICK, etc. No. 337. Argued March 4, 1955. Decided April 11, 1955. Mr. Joseph S. Lord, III, Philadelphia, Pa., for petitioners. Mr. H. Francis De Lone, Philadelphia, Pa., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 The three petitioners, dining car employees, filed separate suits in the United States District Court for the Eastern District of Pennsylvania, against the Atlantic Coast Line Railroad Co. They sued under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for injuries received upon the derailment of one of defendant's trains near Dillon, South Carolina. The defendant filed motions to dismiss or, in the alternative, to transfer the cases to the Florence Division of the Eastern District of South Carolina. The District Court denied the motions to dismiss and granted the motions to transfer under 28 U.S.C. § 1404(a), 28 U.S.C.A. § 1404(a).* 2 Since the Court of Appeals for the Third Circuit had held, in All States Freight v. Modarelli, 196 F.2d 1010, that the order for transfer was not appealable, the petitioners filed applications for mandamus or prohibition to the district judge in order to require him to set aside his orders of transfer. The Court of Appeals denied the applications, and we granted certiorari. 348 U.S. 870, 75 S.Ct. 107. 3 The cases of the three petitioners present identical questions of law, were consolidated for argument here, and will be disposed of in this opinion. 4 The district judge in granting the motions to transfer stated that if he had been free to construe § 1404(a) as he did in the case of Naughton v. Pennsylvania R. Co., 85 F.Supp. 761, he would have denied the transfers because, in his view, it called for an application of the stricter rule of forum non conveniens as recognized in decisions of this Court. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. But since the Naughton case, the Circuit Court of Appeals for the Third Circuit had held, in All States Freight v. Modarelli, supra, that the district judge had a broader discretion in the application of the statute than under the doctrine of forum non conveniens. The district judge, therefore, followed the rule laid down in the All States Freight case, supra. We think the Court of Appeals correctly rejected the narrower doctrine of forum non conveniens and properly construed the statute. As Judge Goodrich, speaking for the court, appropriately pointed out, 196 F.2d at page 1011: 5 'The forum non conveniens doctrine is quite different from Section 1404(a). That doctrine involves the dismissal of a case because the forum chosen by the plaintiff is so completely inappropriate and inconvenient that it is better to stop the litigation in the place where brought and let it start all over again somewhere else. It is quite naturally subject to careful limitation for it not only denies the plaintiff the generally accorded privilege of bringing an action where he chooses, but makes it possible for him to lose out completely, through the running of the statute of limitations in the forum finally deemed appropriate. Section 1404(a) avoids this latter danger. Its words should be considered for what they say, not with preconceived limitations derived from the forum non conveniens doctrine.' 6 Judge Maris, who was Chairman of the Judicial Conference Committee on the revision of the Code and approved the text submitted to Congress, sat on the Court of Appeals en banc when All States Freight was decided. And Judge Parker of the Fourth Circuit, consultant to the Advisory Committee, writing for the court in Jiffy Lubricator Co., Inc., v. Stewart-Warner Corp., 177 F.2d 360, 362, also construed the statute as we understand it: 7 '* * * A dismissal in application of that (forum non conveniens) or any other principle puts an end to the action and hence is final and appealable. An order transferring it to another district does not end but preserves it as against the running of the statute of limitations and for all other purposes. The notion that 28 U.S.C.A. § 1404(a) was a mere codification of existing law relating to forum non conveniens is erroneous. It is perfectly clear that the purpose of this section of the Revised Judicial Code was to grant broadly the power of transfer for the convenience of parties and witnesses, in the interest of justice, whether dismissal under the doctrine of forum non conveniens would have been appropriate or not.' 8 See also Moore, Commentary on the Judicial Code (1949 ed.), p. 208. 9 When Congress adopted § 1404(a), it intended to do more than just codify the existing law on forum non conveniens. As this Court said in Ex parte Collett, 337 U.S. 55—61, 69 S.Ct. 944, 947, 93 L.Ed 1207, Congress, in writing § 1404(a), which was an entirely new section, was revising as well as codifying. The harshest result of the application of the old doctrine of forum non conveniens, dismissal of the action, was eliminated by the provision in § 1404(a) for transfer. When the harshest part of the doctrine is excised by statute, it can hardly be called mere codification. As a consequence, we believe that Congress, by the term 'for the convenience of parties and witnesses, in the interest of justice,' intended to permit courts to grant transfers upon a lesser showing of inconvenience. This is not to say that the relevant factors have changed or that the plaintiff's choice of forum is not to be considered, but only that the discretion to be exercised is broader. 10 It is conceded by the petitioners that if the district judge was correct in exercising his discretion to transfer these cases under § 1404(a) without regard to the stringent requirements of forum non conveniens, then the Court of Appeals properly denied the applications for mandamus and prohibition. Since we agree that the district judge correctly construed the statute in evaluating the evidence, we do not find it necessary to detail the facts considered by him in reaching his judgment. It was correct in law and warranted by the facts. 11 Since we find that the district judge properly construed § 1404(a), it is unnecessary to pass upon the question of whether mandamus or prohibition is a proper remedy. 12 The judgment is affirmed. 13 Affirmed. 14 Mr. Justice HARLAN took no part in the consideration or decision of this case. 15 Mr. Justice CLARK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting. 16 Under this judgment, Alexander Norwood, who lives in Philadelphia where he filed this suit for damages against the railroad, will have to go to South Carolina if he wishes to prosecute it. Joseph Tunstall and John Smallwood, both of whom live in Washington, D.C., will likewise have to go all the way to South Carolina if they hope to recover any damages against the railroad. All three allegedly suffered permanent injuries when a passenger train on which they were employed was derailed. The derailment, with which the plaintiffs had no connection whatever, is sufficient in itself to support a finding of negligence. See Jesionowski v. Boston & Maine R. Co., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416. Despite these circumstances, the district judge deprived Norwood of a trial in his home town, and Tunstall and Smallwood of one within 150 miles of theirs. This Court's decision, sustaining that result, sends the case to South Carolina, perhaps preventing it from ever being prosecuted because of the financial condition of the plaintiffs. 17 This is thought justified by an interpretation of § 1404(a) of the 1948 revision of the Judicial Code, 28 U.S.C. § 1404(a), 28 U.S.C.A. § 1404(a). It provides: 18 'For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.' As words on a page torn from the history of our judicial development, this direction is utterly meaningless. How great must be the inconvenience before a judge could feel justified in ordering a transfer? When would it be 'in the interest of justice' to do so? It is not difficult to imagine the baffled reactions of our judiciary were this mandate not accompanied by some explanation, were it not preceded by some experience in dealing with pleas to decline suits because of inconvenience and injustice. Compare the gropings of this Court and the remainder of the federal judiciary when confronted with the blank pages presented by the celebrated § 301 of Taft-Hartley, 29 U.S.C.A. § 185. See Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 346 U.S. 437, 75 S.Ct. 488. 19 But, fortunately, the command of § 1404(a) is accompanied by both history and explanation. The Reviser's Notes state: 20 'Subsection (a) was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper. As an example of the need of such a provision, see Baltimore & Ohio R. Co. v. Kepner, 1941, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, which was prosecuted under the Federal Employers' Liability Act in New York, although the accident occurred and the employee resided in Ohio. The new subsection requires the court to determine that the transfer is necessary for convenience of the parties and witnesses, and further, that it is in the interest of justice to do so.' 21 The federal courts, in exercising their discretion under this provision, are thus not set adrift on an uncharted sea, to order transfers according to their personal notions of justice. They are explicitly referred to the body of doctrine in Anglo-American law known as forum non conveniens, a doctrine which was certainly well developed at the time of the passage of the new Code. Indeed, shortly before the revision was introduced in Congress, this Court handed down two decisions setting forth the considerations which should govern the exercise of the trial judge's discretion. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055; Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067. These opinions clearly evinced the attitude with which these matters should be approached, the standard to be applied: 22 'It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.' Gulf Oil Corp., 330 U.S. at page 508, 67 S.Ct. at page 843. 23 'Where there are only two parties to a dispute, there is good reason why it should be tried in the plaintiff's home forum if that has been his choice. He should not be deprived of the presumed advantages of his home jurisdiction except upon a clear showing of facts which either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff's convenience, which may be shown to be slight or nonexistent, or (2) make trial in the chosen forum inappropriate because of considerations affecting the court's own administrative and legal problems. In any balancing of conveniences, a real showing of convenience by a plaintiff who has sued in his home forum will normally outweigh the inconvenience the defendant may have shown.' Koster v. Lumbermens Mutual Co., 330 U.S., at page 524, 67 S.Ct. at page 831. 24 There was a direct reference to the Koster decision in hearings before the Senate Committee considering the 1948 Code. Hearings before a Subcommittee of the Senate Committee on the Judiciary on H.R. 3214, 80th Cong., 2d Sess. 73—74. 25 The basic issue in this case is whether the district judge should exercise his discretion in the light of these opinions, and in the light of forum non conveniens doctrine generally (of which these Supreme Court decisions are a particularization), or whether § 1404(a) expands the range of his discretion to an as yet unstated degree, and removes these decisions and other forum non conveniens cases as guiding precedents. The Courts of Appeals have divided on the issue. With the opinions cited by the majority, compare Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329; Nicol v. Koscinski, 6 Cir., 188 F.2d 537; Wiren v. Laws, 90 U.S.App.D.C. 105, 194 F.2d 873. But see Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Emp. of America, etc., v. Southern Bus Lines, 5 Cir., 172 F.2d 946, 948. The section itself is merely a restatement, in very generalized form, of the considerations thought to govern the question of forum non conveniens. The particular words or their equivalents recur in the cases and literature on the subject.1 The Reviser's Notes repeat these factors and refer explicitly to forum non conveniens. Ordinarily, these considerations, standing alone, would afford cogent grounds for finding that the old doctrine was to continue as the prevailing rule. This Court said as much in Ex parte Collett, 337 U.S. 55, 56, 69 S.Ct. 944, 93 L.Ed. 1207, when it posed the issue: 26 'In this case we must decide whether the venue provisions of the Judicial Code render applicable the doctrine of forum non conveniens to actions under the Federal Employers' Liability Act.' (Emphasis supplied.) 27 We held the doctrine was applicable to such cases. 28 But now it is argued that since § 1404(a) has changed the judicial response to the inconvenient forum, providing for transfer rather than dismissal, the trial judge may exercise a broader discretion than was permissible under the old rule. The opinion of the Court, adopting this view, goes far toward assigning to the trial judge the choice of forums, a prerogative which has previously rested with the plaintiff. In so doing, the majority completely ignores the judicial and legislative background of forum non conveniens in cases arising under the Federal Employers' Liability Act. 29 Section 6 of the FRLA was amended in 1910 to permit suits to be brought 'in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing' the action. 36 Stat. 291, as amended, 45 U.S.C. § 56, 45 U.S.C.A. § 56. We held that the congressional purpose manifested by this provision precluded the application of forum non conveniens to suits under the Act. Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 285; Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129. Agitation in Congress to limit venue under the FELA culminated in the attempted passage of the Jennings Bill, H.R. 1639, 80th Cong., 1st Sess.; the bill passed the House by a narrow margin, 93 Cong.Rec. 9193—9194, only to die in the Senate. But the 1948 revision of the Judicial Code, characterized by its legislative leaders as a noncontroversial revision and codification, see Ex parte Collett, supra, 337 U.S. at page 62, 69 S.Ct. 944, was held to overturn the Kepner and Miles decisions and make forum non conveniens applicable to actions under the FELA. In applying § 1404(a) to FELA cases, this Court said in Collett: 30 'The Code, therefore, does not repeal § 6 of the Federal Employers' Liability Act. We agree with petitioner that Congress had no such intention, as demonstrated by its failure to list the section in the meticulously prepared schedule of statutes repealed. We cannot agree that the order before us effectuates an implied repeal. The inapplicability of forum non conveniens to Liability Act suits derives from the Kepner decision. * * * Congress chose to remove its judicial gloss via another statute.' Id., 337 U.S. at pages 60—61, 69 S.Ct. at page 947. 31 Removal of the 'judicial gloss' would merely repeal the Kepner doctrine and thus make FELA suits, along with any civil action, subject to forum non conveniens. This Court asserted just that in Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 383, 73 S.Ct. 749, 751, 97 L.Ed. 1094: 32 'We have heretofore held that § 1404(a) makes the doctrine of forum non conveniens applicable to Federal Employers' Liability Act cases brought in federal courts and provides for the transfer of such actions to a more convenient forum. Ex Parte Collett, 1949, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207.' (Emphasis supplied.) 33 Again in Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 186, 72 S.Ct. 219, 222, 96 L.Ed. 200, we said: 34 '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).' 35 And as late as 1953, Justices JACKSON, BLACK, and MINTON, dissenting in Wells v. Simonds Abrasive Co., 345 U.S. 514, 522, 73 S.Ct. 856, 860, 97 L.Ed. 1211, made this statement: 36 '28 U.S.C. § 1404(a) authorizes certain transfers of any civil action from state to state for the convenience of witnesses or of parties, or in the interests of justice. The purpose was to adopt for federal courts the principles of forum non conveniens. Ex Parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207. These are broad and imprecise and involve such considerations as the state of the court's docket. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055.' (Emphasis supplied.) 37 None of these cases is even mentioned by the majority. In each is implicit the principle that § 1404(a) embodies the doctrine of forum non conveniens; in each there is the uniform understanding of members of this Court that the language of § 1404(a) is merely a paraphrase of that rule. Instead, the majority applies a variation of the old Jennings Bill, which Congress refused to adopt at the same session in which it inserted § 1404(a) into the new Code. There is certainly nothing even remotely connected with the enactment of § 1404(a) to indicate that when the section and the Reviser's Notes referred to forum non conveniens—particularly as articulated in the then-recent Gulf Oil and Koster cases—they meant the Jennings Bill or anything like it. Still the majority adopts a slight modification of that rejected provision. 38 Much is made of the fact that there is no legislative record of opposition to the adoption of § 1404(a). This, if true, is explained by the fact that the Reviser's Notes, as well as Congress' refusal to adopt the Jennings Bill, may well have lulled any opposition into a false feeling of security. The statements in Gulf Oil and Koster that the plaintiff's choice could be disturbed only if 'the balance is strongly in favor of the defendant' and that this 'rarely' is the case, together with the defeat of the Jennings Bill, is certainly sufficient evidence that Congress had no intention of seriously interfering with an FELA plaintiff's choice of forum. In this connection, we note the emphasis in Collett, 337 U.S. at page 64, 69 S.Ct. 949, on the difference between the Jennings Bill and § 1404(a); this is narrowed considerably if we permit a larger discretion in the district judge than was available under forum non conveniens. 39 It is said that we must uphold a clear change in the statute made by the Congress. We certainly agree. But the language of § 1404(a), considered against the background of judicial discussion in this area, could mean nothing but the doctrine of forum non conveniens, and the Reviser's Notes state that the purpose of the change was to apply forum non conveniens rules to the transfer of civil cases in the federal courts. The direction of Congress is clear and unmistakable. Our duty is so to interpret § 1404(a), not to expand and enlarge upon it. Changes of this type should be made by the legislative branch. And the fact that Congress has through codification extended a previously recognized procedure to civil cases generally, with one slight change (i.e., transfer rather than dismissal), does not give this Court a blank check to recast the underlying law to suit its fancy. 40 Concluding that the prior tenets of forum non conveniens apply, embracing the standards laid down in Gulf Oil and Koster, we cannot help but agree with the district judge that his discretion would have been exercised differently in the instant case if he had applied the law of those decisions. Without detailing all the facts here involved, we note that one of the plaintiffs resided in the district where this suit was brought. Under the usual forum non conveniens approach, this would virtually suffice, in and of itself, to preclude a refusal to retain the case for trial. See Barrett, supra, at 413; Braucher, supar, at 916—917, 919; Dainow, supra, at 880. After all, the forum non conveniens situation generally envisaged is one involving a foreign cause of action and nonresident parties. See Blair, supra, at 34; Foster, supra, at 53. Apparently but one jurisdiction stands squarely behind the proposition that a court may decline to hear a personal injury suit, brought by a bona fide resident, in order to spare the defendant inconvenience and expense. Williamson v. North-Eastern R. Co., supra. That is the law in Scotland, a jurisdiction long noted for its distinctive doctrines in this area.2 Forum non conveniens has no such impact in this country, and, in fact, Koster may be regarded as an extreme decision in depriving a plaintiff of his home forum.3 With this the state of the law, both now and in 1948 when the Code was adopted, we certainly should require a more explicit direction from Congress before depriving an injured party of his privilege under the FELA of bringing suit in his own district—at least when the standards of Koster have not been applied. 41 The district judge admitted that he had not exercised his discretion in light of Koster and Gulf Oil, the applicable decisions of this Court; he felt bound by a contrary decision of the Court of Appeals. He indicated very clearly that his decision would have been otherwise if he were free to follow the opinions we consider controlling. We should reverse and give the trial judge an opportunity to exercise his discretion under the proper standards. 42 The question is one of considerable importance in the administration of the lower federal courts, and, considering the inadequacy of appeal, should be settled in this case if it is to be settled at all in the near future. Every appellate court which has passed on § 1404(a) implicitly recognizes the necessity for settling issues of law under the section. Even those courts which have refused relief, expressing the view that mandamus is an inappropriate remedy, have gone on to discuss the merits of the question presented. In re Josephson, 1 Cir., 218 F.2d 174; All States Freight, Inc., v. Modarelli, 3 Cir., 196 F.2d 1010; cf. Jiffy Lubricator Co. v. Stewart-Warner Corp., 4 Cir., 177 F.2d 360. The Court's opinion in this case, by reserving the mandamus issue, follows the same course. We note, further, that the majority of Court of Appeals decisions dealing with § 1404(a) find mandamus appropriate in circumstances less compelling than these. Ford Motor Co. v. Ryan, supra; Atlantic Coast Line R. Co. v. Davis, 5 Cir., 185 F.2d 766; Shapiro v. Bonanza Hotel Co., 9 Cir., 185 F.2d 777; Wiren v. Laws, supra; Chicago, R.I. & P.R. Co. v. Igoe, 7 Cir., 212 F.2d 378; cf. Nicol v. Koscinski, supra. 43 I would reverse and direct that the transfer application be determined under forum non conveniens, and particularly the Gulf Oil and Koster decisions. The answer to the majority's contention that this would unduly curtail a desirable reform is simply that this dispute involves not merely 'forum shopping,' but the whittling away by judicial interpretation of the privileges and benefits of working men under the Federal Employers' Liability Act. The battle over the scope of their rights should be fought out in the Congress—as it was in the case of the Jennings Bill—and not in the courts. 44 The Reviser's Notes say that § 1404(a) goes no further than forum non conveniens. That was what Congress acted upon, not the private opinion of some of the members of the Reviser's Committee. These distinguished participants may have thought their reform went beyond Collett. If so, they should have communicated their thought to the Congress where the final responsibility rests. * 'For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.' 1 See Koster v. Lumbermens Mutual Casualty Co., supra, 330 U.S. at page 527, 67 S.Ct. at page 833 ('convenience of the parties and the ends of justice'); Id., 330 U.S. at page 530, 67 S.Ct. at page 834 ('interests of justice'); Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at page 507, 67 S.Ct. at page 842 ('convenience of witnesses and the ends of justice'); Canada Malting Co. v. Paterson Steamships, 285 U.S. 413, 423, 52 S.Ct. 413, 415, 76 L.Ed. 837 ('decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or nonresidents'); National Shawmut Bank v. City of Waterville, 285 Mass. 252, 189 N.E. 92, 95 ('ends of justice'); Universal Adjustment Corp. v. Midland Bank, 281 Mass. 303, 313, 184 N.E. 152, 158, 87 A.L.R. 1407 ('ends of justice'); Great Western R. Co. v. Miller, 19 Mich. 305, 315 ('inconveniences and the danger of injustice'); Jackson & Sons v. Lumbermen's Mutual Casualty Co., 86 N.H. 341, 343, 168 A. 895, 896 ('ends of justice'); La Societe du Gaz de Paris v. La Societe Anonyme de Navigation 'Les Armateurs Francais,' (1926) Sess.Cas. (H.L.) 13, 16, 18, 22 ('the interests of all the parties, and * * * the ends of justice'); Logan v. Bank of Scotland, (1906) 1 K.B. 141, 149, 150 ('inconvenience' and 'injustice'); Williamson v. North-Eastern R. Co., 11 Sess.Cas. (4th Ser.) 596, 598 ('ends of justice'). These cases and their terminology are covered in Barrett, The Doctrine of Forum Non Conveniens, 35 Cal.L.Rec. 380; Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Col.L.Rev. 1; Braucher, The Inconvenient Federal Forum, 60 Harv.L.Rev. 908; Dainow, The Inappropriate Forum, 29 Ill.L.Rev. 867; Foster, Place of Trial Interstate Application of Intrastate Methods of Adjustment, 44 Harv.L.Rev. 41. 2 Commentators, though endorsing the wider use of forum non conveniens, have been critical of the decision, Dainow, supra, at 884, n. 73, and have pointed up the civil law basis of its reasoning, Blair, supra, at 21, n. 100. The reasoning in Gore v. United States Steel Corp., 1954, 15 N.J. 301, 104 A.2d 670, may be consistent with the Williamson result, but that case, decided after § 1404(a) and relying on litigation under that section, involved nonresidents. And dicta to the same effect in Universal Adjustment Corp. v. Midland Bank, supra, 281 Mass. at page 315, 184 N.E. at page 159, must be read in the context of the litigation before the court: suit by a resident assignee of a foreign claim against a foreign corporation. Compare United States Merchants' & Shippers' Ins. Co. v. A/S Den Norske Afrika Og Australie Line, 2 Cir., 65 F.2d 392. 3 See American Ry. Express Co. v. H. Rouw Co., 173 Ark. 810, 294 S.W. 401; Gamburg v. Ray, 167 La. 865, 120 So. 480; Arizona Commercial Mining Co. v. Iron Cap Copper Co., 119 Me. 213, 110 A. 429; Peters v. Equitable Life Assur. Co., 196 Mass. 143, 81 N.E. 964; Tri-State Transit Co. v. Mondy, 194 Miss. 714, 12 So.2d 920; Gregonis v. Philadelphia & R. Coal & Iron Co., 235 N.Y. 152, 139 N.E. 223, 32 A.L.R. 1; De la Bouillerie v. De Vienne, 300 N.Y. 60, 89 N.E.2d 15; cf. O'Neill v. Cunard White Star, 2 Cir., 160 F.2d 446; The Saudades, D.C., 67 F.Supp. 820. Even in those cases where the objection is that the suit creates an unreasonable burden on interstate commerce, the fact that suit is brought in the plaintiff's home forum, though it may lack the near-conclusiveness it has in forum non conveniens cases, is nevertheless a fact of 'high significance.' International Milling Co. v. Columbia Transportation Co., 292 U.S. 511, 520, 54 S.Ct. 797, 78 L.Ed. 1396.

89

349 U.S. 46 75 S.Ct. 577 99 L.Ed. 867 Anthony J. PARISSI, petitioner,v.TELECHRON, Inc., and General Electric Company. No. 302. Supreme Court of the United States April 11, 1955 On writ of certiorari to the United States Court of Appeals for the Second Circuit. PER CURIAM. 1 The judgment is reversed. The petitioner's notice of appeal to the Court of Appeals from a judgment of the Distrct Court for the Northern District of New York, together with his appeal bond, was received at the office of the Clerk of the District Court within the 30 days prescribed by 28 U.S.C. § 2107, 28 U.S.C.A. § 2107, for filing a notice of appeal. In dispatching these papers the petitioner inadvertently failed to include the $5 fee required by 28 U.S.C. § 1917, 28 U.S.C.A. § 1917, to be paid 'upon the filing' of a notice of appeal. The Clerk notified the petitioner of his omission, and declined to 'file' the notice of appeal until he received the $5 fee three or four days later. By that time the 30-day period for appeal had expired. Upon petitioner's motion the District Court made a nunc pro tunc order according the notice of appeal a filing date as of the date it was originally received by the Clerk. 2 The Court of Appeals, without opinion, dismissed the appeal as untimely. We think that the Clerk's receipt of the notice of appeal within the 30-day period satisfied the requirements of § 2107, and that untimely payment of the § 1917 fee did not vitiate the validity of petitioner's notice of appeal. Anything to the contrary in such cases as Mondakota Gas Co. v. Montana-Dakota Utilities Co., 9 Cir., 1952, 194 F.2d 705, we disapprove. Our conclusion does not leave § 1917 without other sanctions. 3 Reversed.

89

349 U.S. 58 75 S.Ct. 585 99 L.Ed. 883 Michael J. REGAN, Petitioner,v.The PEOPLE OF THE STATE OF NEW YORK. No. 54. Argued Nov. 18, 1954. Decided April 25, 1955. Mr. Emanuel Redfield, New York City, for petitioner. Mr. Aaron E. Koota, New York City, for respondent. Mr. Justice REED delivered the opinion of the Court. 1 Petitioner refused to testify before a New York grand jury which was investigating the alleged association of city policemen with criminals, racketeers, and gamblers in Kings County. He was convicted of criminal contempt and sentenced to one year's imprisonment. We granted certiorari, 347 U.S. 1010, 74 S.Ct. 869, 98 L.Ed. 1134, to determine whether, under the circumstances here presented, petitioner was deprived of his liberty without due process of law in being punished for his refusal to testify. Cf. Adamson v. People of State of California, 332 U.S. 46, 54, 67 S.Ct. 1672, 1676, 91 L.Ed. 1903. 2 The following New York constitutional and statutory provisions are essential to an understanding of the case. Article I, § 6, of the Constitution of the State of New York provides, in part, that no person shall 'be compelled in any criminal case to be a witness against himself'.1 Section 381 of the New York Penal Law, McK.Consol.Laws, c. 40, as it existed at the time of this case, provided that testimony relating to bribery could not be withheld on the ground of self-incrimination, but conferred immunity from prosecution for any criminal activity revealed in such testimony.2 Section 903 of the Charter of the City of New York provides that any city employee who refuses to sign a waiver of his immunity against subsequent prosecution upon any matter of an official nature about which he is asked to testify shall lose his job and be disqualified from future employment with the city. Article I, § 6, of the Constitution of the State of New York contains a provision much to the same effect.3 3 Petitioner was first called to testify before the grand jury on March 7, 1951. He was then a member of the Police Department of the City of New York. Prior to being sworn, he signed a waiver of immunity against prosecution.4 After being sworn, he testified that the waiver had been executed voluntarily and with full understanding as to its meaning. He was given a financial questionnaire and directed to return with it completely filled out on March 28, 1951. On March 27, 1951, his connection with the police department was severed. His next appearance before the grand jury was on October 22, 1952, when he was given another questionnaire and instructed to return it in completed form by November 12, 1952. On November 12 he asked for an extension of time and his request was granted.5 On December 21, 1952, he was once again before the grand jury On that occasion, he was asked the following question: 4 'While you were a plainclothesman in the Police Department of the City of New York did you ever accept or receive any bribes from bookmakers or other gamblers?' 5 Petitioner refused to answer the question on the ground that his answer might tend to incriminate him. He made a statement in which he claimed that his waiver of immunity was invalid since he had not understood its significance when he signed it, and no one had explained it to him. He expressed doubt as to his status as a witness and his privileges and duties as such. 6 Petitioner was taken before the County Court of Kings County to clarify his status. It was there held, after a hearing, that the waiver was valid because petitioner had fully understood its significance when he signed it. Petitioner was directed to answer the question which he had been asked. He returned to the grand jury, but persisted in his refusal to testify. He was thereupon indicted for criminal contempt, tried by a jury, and convicted. His conviction was affirmed by the Appellate Division in a short memorandum opinion, 282 App.Div. 775, 122 N.Y.S.2d 478, and by the New York Court of Appeals without opinion, 306 N.Y. 747, 117 N.E.2d 921. The Court of Appeals did amend its remittitur to show that the question of whether petitioner had been deprived of liberty without due process of law had been raised and passed upon. 306 N.Y. 875, 119 N.E.2d 45. 7 Petitioner contends that this Court must here determine whether the Fourteenth Amendment prevents a State from imprisoning an individual for refusing to give self-incriminatory testimony. In so doing he ignores the crucial significance of the immunity statute in this case. We simply hold that under the circumstances here presented petitioner was not deprived of any constitutional rights in being punished for his refusal to testify. 8 The immunity statute is crucial in this case because it removed any possible justification which petitioner had for not testifying. If petitioner had not executed a waiver of immunity, it is clear beyond dispute that he would have had to testify;6 the statute would have provided him with immunity from prosecution on the matters on which his testimony was sought, and thus his testimony could not possibly have been self-incriminatory.7 The waiver of immunity, although it does affect the possibility of subsequent prosecution, does not alter petitioner's underlying obligation to testify. Much of the argument before this Court has been directed at the question of whether the waiver of immunity was valid or invalid, voluntary or coerced, effectual or ineffectual. That question is irrelevant to the disposition of this case for on either assumption the requirement to testify, imposed by the grant of immunity, remains unimpaired. 9 First, assume that the waiver was valid. Any testimony which the petitioner gave could then have formed the basis for a subsequent prosecution, and the State would here be punishing the petitioner for his refusal to provide such self-incriminatory testimony. But, since we are assuming the validity of the waiver, such a situation would be simply the result of a voluntary choice to waive an immunity provided by the State. 10 The waiver of immunity from prosecution may, on the other hand, be regarded as invalid. Petitioner argues at some length that the waiver was obtained by a 'pattern of duress and lack of understanding.' He points to the circumstances attending the signing of the waiver: the size of the room, the number of policemen who simultaneously executed waivers, the speed with which the waivers were obtained, the lack of counsel, etc.8 He also points to the provisions of the New York Constitution and the City Charter requiring him to sign the waiver or lose his job.9 In addition he claims that the waiver was stale and thus ineffective since over 21 months had elapsed from the date of its execution to his refusal to testify. We fail to see where petitioner's arguments lead. If the waiver is invalid, the immunity from prosecution persists, and in the presence of such immunity petitioner's testimony could not possibly be self-incriminatory. It must be remembered that this conviction is for refusing to testify. The invalidity of the waiver may be made a defense to subsequent prosecution, where it would be a proper matter for disposition; it is no defense to a refusal to testify. 11 Petitioner suggests that his refusal to testify may have been justified by the uncertainty existing at the time he was directed to testify. That uncertainty was only as to whether or not he could be prosecuted for criminal activity which might be revealed in his testimony. As a matter of state law, a defense to the crime of criminal contempt may be provided when such uncertainty reaches a sufficiently high point.10 But the Constitution does not require the definitive resolution of collateral questions as a condition precedent to a valid contempt conviction. Cf. Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 542, 84 L.Ed. 783. The petitioner knew that however the question of the validity of the waiver might be resolved, he was obliged to testify. In persisting in his refusal after being directed to testify he could be punished for contempt. The law strives to provide predictability so that knowing men may wisely order their affairs; it cannot, however, remove all doubts as to the consequence of a course of action. 12 The judgment below is accordingly affirmed. 13 Affirmed. 14 Mr. Justice FRANKFURTER concurs in the result. 15 Mr. Justice HARLAN took no part in the consideration or decision of this case. 16 Mr. Chief Justice WARREN, with whom Mr. Justice CLARK joins, concurring. 17 I concur in the opinion and judgment of the Court, but would add that substantial federal questions may arise if the petitioner is again called upon to testify concerning bribery on the police force while he was an officer and if he is thereafter denied immunity as to any offenses related to the investigation. 18 This Court has never held that a State, in the absence of an adequate immunity statute, can punish a witness for contempt for refusing to answer self-incriminatory questions. A case involving such facts has never been presented here.1 Nor is this such a case, since New York, by § 381 of the Penal Law, has granted immunity. Petitioner was obliged to answer the questions as would by any witness in the State of New York. If he had signed no waiver, he concededly would have been compelled to testify, since under § 381 of the New York Penal Law he would be entitled to immunity. The fact that he signed a waiver, even assuming it to be invalid as he claims, certainly cannot relieve him from the duty of every citizen to testify. His failure to so testify, therefore, placed him in contempt of court and subject to the punishment accorded him in this case. 19 However, because it appears from the record to be the intention of the authorities to punish him both for contempt for refusal to testify and for bribery if he admits such misconduct, we might eventually be faced with the question of what his rights would be if on a subsequent hearing he should incriminate himself after claiming a privilege against self-incrimination. Petitioner might defend against a prosecution stemming from such involuntary testimony by challenging the validity of the waiver, basing his objection on an asserted federal right against self-incrimination. Such a challenge might well embrace the contention made here of coercion in the procurement of the waiver, as well as the claim that its use well beyond the term of petitioner's public employment would be an unreasonable interference with petitioner's claimed federal right.2 20 Moreover, a state immunity statute—like any other state statute—must be applied uniformly unless there is some reasonable ground for classification; otherwise, the Equal Protection Clause of the Fourteenth Amendment is violated.3 After a city employee suffers the primary sanction of the constitutional and charter sections—namely, loss of his position—it may well be that the waiver cannot to used to send him to the penitentiary for bribery when the same sanction would not be imposed on other witnesses giving like testimony. 21 However, as already noted, we do not reach these questions here. 22 Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting. 23 In order to keep his job as a New York City policeman petitioner signed a paper waiving immunity he would otherwise have had from prosecution under state law as to matters he might testify about before a grand jury. Twenty-two months later, long after he had resigned as a policeman, he was brought before a county grand jury. He was asked whether he had ever accepted bribes while he was a policeman. Acceptance of bribes is a New York felony punishable by ten years' imprisonment. Petitioner refused to answer the questions claiming a federal constitutional and state privilege against self-incrimination. For refusal to answer he was sentenced to twelve months in prison. The Court holds that New York can thus imprison petitioner 'for his refusal to provide such self-incriminatory testimony.' I do not agree that New York can do this consistently with the Federal Constitution. 24 For reasons stated on other occasions I believe the Fourteenth Amendment makes the Fifth Amendment applicable to the States. See, e.g., Adamson v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903. And the Fifth Amendment accords an unqualified privilege to persons to be silent when asked questions, answers to which would make those persons witnesses against themselves. See, e.g., Blau v. United States, 340 U.S. 159, 161, 71 S.Ct. 223, 224, 95 L.Ed. 170. Even under the other view of the Fourteenth Amendment, that it does not make the Fifth Amendment applicable to the States and that under some circumstances States may compel persons to testify against themselves, this Court has held many times that a State may not convict a person on testimony it coerced from him. E.g., Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 717, 98 L.Ed. 948; Ashcraft v. State of Tennessee, 322 U.S. 143, 155, 64 S.Ct. 921, 927, 88 L.Ed. 1192; cf. Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. Coercing testimony for that purpose is equally obnoxious to the Fourteenth Amendment. However its action is described, the State is seeking to coerce this petitioner to give testimony to help bring about his conviction for crime. For it is certainly coercion to throw a man into jail unless he agrees to testify against himself. 25 The Court approves the dilemma in which New York places petitioner. He must give evidence which might convict him of a felony or go to jail for refusing to give that evidence. The Court says, however, that petitioner's dilemma is 'simply the result of a voluntary choice to waive an immunity provided by the State.' There of course may be some doubt as to how 'voluntary' this 'choice' was. In any event it is a completely novel idea that a waiver device of this kind can destroy constitutional protections. It is nothing more nor less than a wholesale blanket agreement that a person will not claim a constitutional privilege with reference to anything he has ever done in the past or that he may do in the future in connection with his job. So far as I know it has never been held before that the privilege against self-incrimination or any other Bill of Rights safeguard can be bargained away far in advance of the day when needed as protection against the overreaching power of government. 26 The Court's holding appears to approve a dangerous technique whereby both State and Federal Governments can compel people to convict themselves out of their own mouths. Are we to infer that the Federal Government is now free to compel its millions of employees permanently to waive their privilege against self-incrimination or lose their jobs? Surely private employers are not now free to compel their employees to waive this and other constitutional privileges. This might be highly satisfactory to those who believe that the privilege against compulsory self-incrimination has no proper place in our Bill of Rights. But that provision was designed as a continuing rigid safeguard against ruthless exercise of governmental power.* That it sometimes permits people to escape conviction for offenses is no sufficient reason for reading it out of the Constitution. Those who wrote the provision are bound to have known that it would have the effect of making it harder for the Government to convict people accused of crime. Exactly that effect results from all of the procedural provisions of the Bill of Rights, including the right to be heard, to have a lawyer, to be confronted by witnesses, to be informed of the nature of the offense charged, and to be tried by jury. This holding weakens these and other ancient safeguards which to me represent great landmarks in the never-ceasing struggle of men to be free from despotic governmental powers. See dissent in Feldman v. United States, 322 U.S. 487, 494—503, 64 S.Ct. 1082, 1085—1089, 88 L.Ed. 1408. 1 See also New York Code of Criminal Procedure, § 10. 2 To the same effect were §§ 584 and 996 of the Penal Law which dealt with the crimes of conspiracy and gambling. These statutes have since been amended. New York Laws 1953, c. 891. 3 It states that: '* * * any public officer who, upon being called before a grand jury to testify concerning the conduct of his office or the performance of his official duties, refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years, and shall be removed from office by the appropriate authority or shall forfeit his office at the suit of the attorney-general.' 4 'WAIVER OF IMMUNITY 'I, Michael J. Regan, of No. 3819 Harper Avenue, Bronx, * * * of The City of New York pursuant to the provisions of Section 2446 of the Penal Law of the State of New York, do hereby waive all immunity which I would otherwise obtain from indictment, prosecution, punishment, penalty or forfeiture for or on account of or relating to any transaction, matter or thing concerning which I may testify or produce evidence, documentary or otherwise, before the Grand Jury of the County of Kings, in its investigation above entitled or in any other investigation or other proceeding, before any judge or justice, court or other tribunal, conducting an inquiry for legal proceeding relating to the acts of said John Doe, Michael J. Regan, or of any other person. 'I do hereby further waive any and all privileges which I would otherwise obtain against the use against me of the testimony so given or the evidence so produced upon any criminal investigation, prosecution or proceeding. '(Signed) MICHAEL J. REGAN.' (Witnessed and notarized.) 5 The questionnaires never were completed. 6 See Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; cf. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. 7 Petitioner does not challenge the sufficiency of the immunity provided. 8 There was testimony that the waiver was obtained in a room which measured '10 10, or 12 12, approximately,' containing a desk 'about 60 2' (sic) and a bench upon which 'about five people could sit.' About 35 waivers were obtained in a period of 25 minutes. An assistant district attorney made a single speech explaining the nature of the immunity. Immediately after executing the waiver, petitioner testified that he had signed the waiver voluntarily, that it had been explained to him, and that he understood its meaning. Twenty months thereafter petitioner reaffirmed its execution without raising any objection to its validity. It was some twenty-one months after its execution that petitioner challenged the validity of the waiver for the first time. The trial court left the question of the validity of the waiver to the jury. Its verdict of guilty indicates its finding on this matter. The conviction was affirmed by both appellate courts, but we cannot be sure that the affirmance sustained the finding on this matter for the appellate courts may have viewed the question of the validity of the waiver as irrelevant to their decision as we do to ours. 9 It might be pointed out that, as far as the record shows, this objection was at no point raised below. It appears for the first time in the Petition for Certiorari. 10 People ex rel. Hofsaes v. Warden, 302 N.Y. 403, 98 N.E.2d 579. 1 Compare Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (jury instruction authorizing the jury in a criminal case to draw an unfavorable inference from the accused's failure to take the stand); Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903 (state law permitting prosecutor and trial judge to comment on the accused's failure to take the stand); Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (denial of permission to the accused to accompany jury on visit to scene of crime); Palko v. State of Connecticut, 302 U.S. 319, 325 326, 58 S.Ct. 149, 151—152, 82 L.Ed. 288 (state statute allowing appeal by State in criminal cases). 2 Cf. Terral v. Burke Construction Co., 257 U.S. 529, 42 S.Ct. 188, 66 L.Ed. 352. 3 See, e.g., Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215, and Cochran v. State of Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453. * 'I would like to venture the suggestion that the privilege against self-incrimination is one of the great landmarks in man's struggle to make himself civilized. As I have already pointed out, the establishment of the privilege is closely linked historically with the abolition of torture. Now we look upon torture with abhorrence. But torture was once used by honest and conscientious public servants as a means of obtaining information about crimes which could not otherwise be disclosed. We want none of that today, I am sure. * * * 'If a man has done wrong, he should be punished. But the evidence against him should be produced, and evaluated by a proper court in a fair trial. Neither torture nor an oath nor the threat of punishment such as imprisonment for contempt should be used to compel him to provide the evidence to accuse or to convict himself.' Griswold, The Fifth Amendment Today, 7—8.

01

349 U.S. 48 75 S.Ct. 591 99 L.Ed. 868 Edward J. SHAUGHNESSY, as District Director of Immigration and Naturalization for the District of New York, Petitioner,v.Mampriel Sequeira PEDREIRO. No. 374. Argued March 31, 1955. Decided April 25, 1955. Mr. Oscar H. Davis, Washington, D.C., for petitioner. Mr. Aaron L. Danzig, New York City, for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 After administrative hearings, the respondent Pedreiro, an alien, was ordered deported under the Immigration and Nationality Act of 1952.1 He petitioned the District Court for the Southern District of New York to review the deportation order, declare it void and insue a temporary injunction restraining its execution pending final district court action. In part he contended that there was no legal evidence to support the order and that in violation of due process he had been compelled to incriminate himself in the hearings. Relief was sought only against the District Director of Immigration and Naturalization for the District of New York. The District Court dismissed the petitioner on the ground that either the Attorney General or the Commissioner of Immigration and Naturalization was an indispensable party and should have been joined. This holding made it unnecessary for the District Court to pass on another ground urged for dismissal, that the Immigration and Nationality Act of 1952 precluded judicial review of deportation orders by any method except habeas corpus. The Court of Appeals reversed, rejecting both contentions of the Government. 2 Cir., 213 F.2d 768. In doing so it followed the Court of Appeals for the District of Columbia Circuit which had held that deportation orders entered under the 1952 Immigration Act can be judicially reviewed in actions for declaratory relief under § 10 of the Administrative Procedure Act.2 Rubinstein v. Brownell, 92 U.S.App.D.C. 328, 206 F.2d 449, affirmed by an equally divided Court, 346 U.S. 929, 74 S.Ct. 319, 97 L.Ed. 421. But the Court of Appeals for the First Circuit has held that habeas corpus is the only way such deportation orders can be attacked. Batista v. Nicolls, 1 Cir., 213 F.2d 20. Because of this conflict among the circuits and the contention that allowing judicial review of deportation orders other than by habeas corpus conflicts with Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972, we granted certiorari, 348 U.S. 882, 75 S.Ct. 124. 2 The Heikkila case, unlike this one, dealt with a deportation order under the Immigration Act of 1917. That Act provided that deportation orders of the Attorney General should be 'final'3 and had long been interpreted as precluding any type of judicial review except by habeas corpus. Heikkila contended that this narrow right of review of deportation orders under the 1917 Act had been broadened by § 10 of the 1946 Administrative Procedure Act which authorizes review of agency action by any appropriate method 'except so far as (1) statutes preclude judicial review * * *.' Because this Court had construed the word 'final' in the 1917 Act as precluding any review except by habeas corpus, it held that the Administrative Procedure Act gave no additional remedy since § 10 excepted statutes that precluded judicial review. The Court carefully pointed out, however, that it did not consider whether the same result should be reached under the 1952 Immigration and Nationality Act 'which took effect after Heikkila's complaint was filed.'4 Consequently Heikkila does not control this case and we must consider the effect of the 1952 Immigration and Nationality Act on the right to judicial review under the Administrative Procedure Act. 3 Section 10 of the Administrative Procedure Act provides that 'Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.' And § 12 of the Act provides that 'No subsequent legislation shall be held to supersede or modify the provisions of this act except to the extent that such legislation shall do so expressly.' In the subsequent 1952 Immigration and Nationality Act there is no language which 'expressly' supersedes or modifies the expanded right of review granted by § 10 of the Administrative Procedure Act. But the 1952 Immigration Act does provide, as did the 1917 Act, that deportation orders of the Attorney General shall be 'final.' The Government contends that we should read this as expressing a congressional purpose to give the word 'final' in the 1952 Act precisely the same meaning Heikkila gave 'final' in the 1917 Act and thereby continue to deprive deportees of all right of judicial review except by habeas corpus. We cannot accept this contention. 4 Such a restrictive construction of the finality provision of the present Immigration Act would run counter to § 10 and § 12 of the Administrative Procedure Act. Their purpose was to remove obstacles to judicial review of agency action under subsequently enacted statutes like the 1952 Immigration Act. And as the Court said in the Heikkila case, the Procedure Act is to be given a 'hospitable' interpretation. In that case the Court also referred to ambiguity in the provision making deportation orders of the Attorney General 'final.' It is more in harmony with the generous review provisions of the Administrative Procedure Act to construe the ambiguous word 'final' in the 1952 Immigration Act as referring to finality in administrative procedure rather than as cutting off the right of judicial review in whole or in part. And it would certainly not be in keeping with either of these Acts to require a person ordered deported to go to jail in order to obtain review by a court. 5 The legislative history of both the Administrative Procedure Act and the 1952 Immigration Act supports respondent's rights to full judicial review of this deportation order. The sponsors of the Administrative Procedure Act were Representative Walter in the House and Senator McCarran in the Senate. They were also the sponsors of the 1952 Immigration Act. While the latter Act was under consideration in the House, an amendment was proposed which provided for liberal judicial review of deportation orders. Representative Walter assured the House that the proposed amendment was not needed. He said: 'Now, we come to this question of the finality of the decision of the Attorney General. That language means that it is a final decision as far as the administrative branch of the Government is concerned, but it is not final in that it is not the last remedy that the alien has. Section 10 of the Administrative Procedures Act is applicable.'5 With reference to the same problem Senator McCarran assured the Senate that 'the Administrative Procedure Act is made applicable to the bill.'6 It is argued that these assurances by the chairmen of the committees in charge of the bills were but isolated statements and that other legislative history is sufficient to refute them. We cannot agree. Our holding is that there is a right of judicial review of deportation orders other than by habeas corpus and that the remedy sought here is an appropriate one. 6 We also reject the Government's contention that the Commissioner of Immigration and Naturalization is an indispensable party to an action for declaratory relief of this kind.7 District Directors are authorized by regulation to issue warrants of deportation, to designate the country to which an alien shall be deported, and to determine when his mental or physical condition requires the employment of a person to accompany him. The regulations purport to make these decisions of the District Director final.8 It seems highly appropriate, therefore, that the District Director charged with enforcement of a deportation order should represent the Government's interest. Otherwise in order to try his case an alien might be compelled to go to the District of Columbia to obtain jurisdiction over the Commissioner. To impose this burden on an alien about to be deported would be completely inconsistent with the basic policy of the Administrative Procedure Act to facilitate court review of such administrative action. We know of no necessity for such a harsh rule. Undoubtedly the Government's defense can be adequately presented by the District Director who is under the supervision of the Commissioner. 7 It is argued, however, that the Commissioner should be an indispensable party because a judgment against a District Director alone would not be final and binding in other immigration districts. But we need not decide the effect of such a judgment. We cannot assume that a decision on the merits in a court of appeals on a question of this kind, subject to review by this Court, would be lightly disregarded by the immigration authorities. Nor is it to be assumed that a second effort to have the same issue decided in a habeas corpus proceeding would do any serious harm to the Government. In habeas corpus proceedings district courts would have the duty to consider previous court decisions on the same matter. And even though in extraordinary circumstances new matters not previously adjudicated may arise in habeas corpus proceedings, this is no adequate reason for subjecting an alien to the great burden of having to go with his witnesses to the District of Columbia, which may be far distant from his home, in order to contest his deportation. Our former cases have established a policy under which indispensability of parties is determined on practical considerations. See, e.g., Williams v. Fanning, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95. That policy followed here causes us to conclude that the Commissioner of Immigration and Naturalization is not an indispensable party. 8 Affirmed. 9 Mr. Justice MINTON, with whom Mr. Justice REED and Mr. Justice BURTON join, dissenting. 10 In Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972, this Court held that § 19(a) of the Immigration Act of 1917, making decisions of the Attorney General 'final,' was a statute which precluded judicial review within the meaning of the first exception to § 10 of the Administrative Procedure Act. Now, slightly more than two years later, the Court holds that judicial review of deportation orders is available under § 10 even though § 242(b) of the 1952 Act is a re-enactment, almost verbatim, of the 'final' clause of the 1917 Act. The decision is based on three considerations. First, § 12 of the Administrative Procedure Act provides that, 'No subsequent legislation shall be held to supersede or modify the provisions of this act except to the extent that such legislation shall do so expressly', and, in the opinion of the majority, there is no language in the 1952 Act which 'expressly' establishes a more limited review. Second, it is believed more consistent with the liberal review provisions of the Administrative Procedure Act to construe 'final' as referring to finality in the administrative process. And third, isolated statements in the congressional debates indicate that Congress actually intended to permit review under the Administrative Procedure Act. 11 Section 12 of the Administrative Procedure Act, however, as I read it, applies only where subsequently enacted legislation, in the words of the Court, 'supersedes or modifies the expanded right of review granted by § 10 of the Administrative Procedure Act', and this Court held in the Heikkila case that the rights of aliens subject to deportation were not enlarged by the Administrative Procedure Act. Moreover, notwithstanding significant substantive changes in the immigration laws in the 1952 Act, I hesitate to consider the re-enactment of a provision, with minor changes in language, 'subsequently enacted legislation.' The issue then is much like the one the Court faced in Heikkila: whether, in the context of the liberal review provisions of the Administrative Procedure Act, Congress intended, by § 242(b), to preclude application of § 10 of the Administrative Procedure Act. As this Court pointed out in Heikkila, the word 'final,' though ambiguous in other contexts, as used in immigration legislation since the Immigration Act of 1891, has precluded judicial review except by habeas corpus. In view of this long history and the reenactment of § 242 with only minor textual changes, I hesitate to impute to Congress an intention to change the method of review absent a clear showing. The Court found in examining the legislative history that Representative Walter, one of the sponsors of the 1952 Act as well as of the Administrative Procedure Act, believed that § 10 of the Administrative Procedure Act applied to deportation orders. The statement by Senator McCarran, however, that 'the Administrative Procedure Act is made applicable to the bill,' in context, may merely refer to the administrative procedures aspect of an amendment proposed by Senator Moody. 98 Cong.Rec. 5778, 5779. In any event, the statements of Congressman Walter and Senator McCarran, in the course of debate on the floor, are less persuasive than the more carefully prepared and authoritative committee report and the report of the Senate Committee in charge of the bill would seem to indicate that no change in the law was intended. 12 The Immigration and Nationality Act of 1952 was preceded by extensive studies of the structure and operation of the immigration law. These studies culminated in a report by the Senate Committee on the Judiciary entitled, The Immigration and Naturalization Systems of the United States, S.Rep. No. 1515, 81st Cong., 2d Sess. 28. It contains the following statement, at page 629: 13 'Judicial review 14 'Once the order and warrant of deportation are issued, the administrative process is complete. Under the fifth amendment to the Constitution, the 'due process' provision, the alien may, however, petition for a writ of habeas corpus. In a habeas corpus proceeding, based on a deportation case, the court determines whether or not there has been a fair hearing, whether or not the law has been interpreted correctly, and whether or not there is substantial evidence to support the order of deportation. Habeas corpus is the proper remedy to determine the legality of the detention of an alien in the custody of the Immigration and Naturalization Service. The dismissal of an application for a writ of habeas corpus is not a bar to the filing of another application before another judge.' 15 Although this report was dated April 1950, it serves to clarify any ambiguity in the statement in the Senate report accompanying the bill in final form that judicial review in immigration cases was not expanded 'beyond that under existing law.' S.Rep. No. 1137, 82d Cong., 2d Sess. The Committee, in using the phrase 'existing law,' particularly in light of the long history of exclusive habeas corpus review, was necessarily referring to the law as understood and expressed in its prior report. Moreover, the report also states, at page 30, that 'The bill declares that the prescribed deportation proceedings shall be the sole and exclusive procedure for determining the deportability of any alien, notwithstanding the provisions of any other law.' The legislative history, therefore, would seem to make it unmistakably clear that Congress, aware that the word 'final' as used in immigration legislation was not ambiguous, intended to preserve habeas corpus as the only escape from a deportation order. It was error to give relief under the Administrative Procedure Act. 1 66 Stat. 163, 8 U.S.C. § 1101 et seq., 8 U.S.C.A. § 1101 et seq. 2 60 Stat. 243, 5 U.S.C. § 1009, 5 U.S.C.A. § 1009. 3 39 Stat. 889, as amended, 54 Stat. 1238. 4 Heikkila v. Barber, 345 U.S. 229, 232, 73 S.Ct. 603, 604, note 4, 97 L.Ed. 972. 5 98 Cong.Rec. 4416. 6 98 Cong.Rec. 5778. 7 Compare Paolo v. Garfinkel, 3 Cir., 200 F.2d 280; Rodriguez v. Landon, 9 Cir., 212 F.2d 508. 8 CFR §§ 234.1, 243.2.

12

349 U.S. 81 75 S.Ct. 620 99 L.Ed. 905 Robert Cecil BELL, Petitioner,v.UNITED STATES of America. No. 468. Argued April 21, 1955. Decided May 9, 1955. Mr. James R. Browning, Washington, D.C., for petitioner. Mr. Charles F. Barber, Washington, D.C., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Once more it becomes necessary to determine 'What Congress has made the allowable unit of prosecution,' United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260, under a statute which does not explicitly give the answer. This recurring problem now arises under what is familiarly known as the Mann Act. The relevant provisions of the Act in its present form are: 2 'Whoever knowingly transports in interstate or foreign commerce * * * any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose. * * * 3 'Shall be fined not more than $5,000 or imprisoned not more than five years, or both.' § 2 of the Act of June 25, 1910, 36 Stat. 825, 18 U.S.C. § 2421, 18 U.S.C.A. § 2421. 4 The facts need not detain us long. Petitioner pleaded guilty to violations laid in two counts, each referring to a different woman. Concededly, the petitioner transported the two women on the same trip and in the same vehicle. This was the basis of his claim that he committed only a single offense and could not be subjected to cumulative punishment under the two counts. The District Court rejected this conception of the statute and sentenced the petitioner to consecutive terms of two years and six months on each of the two counts. On appeal from denial of a motion to correct the sentence, the Court of Appeals affirmed the District Court. 'While the act of transportation was a single one,' it ruled, 'the unlawful purpose must of necessity have been selective and personal as to each of the women involved. * * * We therefore believe that two separate offenses were committed in this case.' 213 F.2d 629, 630. This decision was in accord with decisions of other lower federal courts, but a contrary holding by the Court of Appeals for the Tenth Circuit, in Robinson v. United States, 143 F.2d 276, raised a square conflict for settlement by this Court. This led us to bring the case here. 348 U.S. 895, 75 S.Ct. 223. 5 The punishment appropriate for the diverse federal offenses is a matter for the discretion of Congress, subject only to constitutional limitations, more particularly the Eighth Amendment. Congress could no doubt make the simultaneous transportation of more than one woman in violation of the Mann Act liable to cumulative punishment for each woman so transported. The question is: did it do so? It has not done so in words in the provisions defining the crime and fixing its punishment. Nor is guiding light afforded by the statute in its entirety or by any controlling gloss. The constitutional basis of the statute is the withdrawal of 'the facility of interstate transportation', Hoke v. United States, 227 U.S. 308, 322, 33 S.Ct. 281, 284, 57 L.Ed. 523, though, to be sure, the power was exercised in aid of social morality. Again, it will not promote guiding analysis to indulge in what might be called the color-matching of prior decisions concerned with 'the unit of prosecution' in order to determine how near to, or how far from, the problem under this statute the answers are that have been given under other statutes. 6 It is not to be denied that argumentative skill, as was shown at the Bar, could persuasively and not unreasonably reach either of the conflicting constructions. About only one aspect of the problem can one be dogmatic. When Congress has the will it has no difficulty in expressing it—when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or anti-social conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal code before they embark on crime. It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present case furnishes. 7 Reversed. 8 Mr. Justice MINTON, with whom THE CHIEF JUSTICE and Mr. Justice REED join, dissenting. 9 The statute does not seem ambiguous to me. Congress made it clear enough for me to understand that it was trying to help the States as far as it could to stamp out the degradation and debauchery of women by punishing those who engaged in using them for prostitution. The only way Congress could do that was to make it unlawful to use the channels of commerce to transport them. The statute provides that, 10 'Whoever knowingly transports in interstate * * * commerce * * * any woman or girl for the purpose of prostitution. * * * 11 'Shall be fined not more than $5,000 or imprisoned not more than five years, or both.' 12 To me the statute means that to transport one or more women or girls in commerce constitutes a separate offense as to each one. Congress had as its purpose the protection of the individual woman or girl from exploitation, and the transportation of each female was to be punished. It was not concerned with protection of the means of transportation. Surely it did not intend to make it easier if one transported females by the bus load. A construction of the statute that reaches that result does violence to its plain wording. That is what the District Court thought, that is what the Court of Appeals thought, and with that I agree, and would affirm.

01

349 U.S. 70 75 S.Ct. 614 99 L.Ed. 897 Evelyn RICE, Petitioner,v.SIOUX CITY MEMORIAL PARK CEMETERY, Inc., et al. No. 28. Argued Nov. 8, 9, 1954. Decided May 9, 1955. On Petition for Rehearing. Mr. Lowell C. Kindig, Sioux City, Iowa, for petitioner. Mr. Jesse E. Marshall, Sioux City, Iowa, for respondents. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 This is an action for damages brought by plaintiff, petitioner here, in the District Court of Woodbury County, Iowa, to compensate her for mental suffering claimed to flow from defendant cemetery's refusal to bury her husband, a Winnebago Indian, after services had been conducted at the grave site and the burial party had disbanded. Plaintiff founded her action, so far as here relevant, on breach of a contract whereby defendant had undertaken to afford plaintiff 'Right of Sepulture' in a specified lot of its cemetery. The contract of sale of the burial lot also provided that 2 'burial privileges accrue only to members of the Caucasian race.' 60 N.W.2d 112 3 Plaintiff asserted that this provision was void under both the Iowa and the United States Constitutions and that recognition of its validity would violate the Fourteenth Amendment. By an amendment to the complaint, plaintiff also claimed a violation of the United Nations Charter. The defense was anchored in the validity of the clause as a bar to this action. 4 After an abortive attempt to remove the case to the federal courts, D.C., 102 F.Supp. 658, defendants moved to dismiss the amended petition in the state court. This motion was denied, except that insofar as the amendment to the petition had relied on the United Nations Charter, the amendment was dismissed. Following Iowa procedure, the trial court entertained motions by both parties requesting it to adjudicate prior to trial points of law relating to the effect of the restrictive covenant. The Iowa court ruled that the clause was not void but was unenforceable as a violation of the Constitutions and public policy of Iowa and the United States. Nevertheless, it held that the clause 'may be relied upon as a defense' and that 'the action of a state or federal court in permitting a defendant to stand upon the terms of its contract and to defend this action in court would not constitute state or federal action' contrary to the Fifth and Fourteenth Amendments. It again ruled that the United Nations Charter was irrelevant, and the case was finally dismissed. 5 The Supreme Court of Iowa affirmed, reasoning that the decision of this Court in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, when considered in conjunction with the In re Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, did not require a state court to ignore such a provision in a contract when raised as a defense and in effect to reform the contract by enforcing it without regard to the clause. The court further ruled that the provisions of the United Nations Charter 'have no bearing on the case' and that none of the grounds based on local law sustained the action. 245 Iowa, 147, 60 N.W.2d 110, 117. We granted certiorari, 347 U.S. 942, 74 S.Ct. 938, 98 L.Ed. 1091. 6 The basis for petitioner's resort to this Court was primarily the Fourteenth Amendment, through the Due Process and Equal Protection Clauses. Only if a State deprives any person or denies him enforcement of a right guaranteed by the Fourteenth Amendment can its protection be invoked. Such a claim involves the threshold problem whether, in the circumstances of this case, what Iowa, through its courts, did amounted to 'state action.' This is a complicated problem which for long has divided opinion in this Court. See, e.g., Raymond v. Chicago Union Traction Co., 207 U.S. 20, 28 S.Ct. 7, 52 L.Ed. 78; Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497; Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152. See, also, Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586. Were this hurdle cleared, the ultimate substantive question, whether in the circumstances of this case the action complained of was condemned by the Fourteenth Amendment, would in turn present no easy constitutional problem. 7 The case was argued here and the stark fact is that the Court was evently divided. 348 U.S. 880, 75 S.Ct. 122. In accordance with undeviating practice, no indication was given regarding the grounds of this division. 8 In addition to the familiar though vexing problems of constitutional law, there was reference in the opinions of the Iowa courts and in the briefs of counsel to the United Nations Charter. The Iowa courts dismissed summarily the claim that some of the general and hortatory language of this Treaty, which so far as the United States is concerned is itself an exercise of the treaty-making power under the Constitution, constituted a limitation on the rights of the States and of persons otherwise reserved to them under the Constitution. It is a redundancy to add that there is, of course, no basis for any inference that the division of this Court reflected any diversity of opinion on this question. 9 Following our affirmance by necessity of the decision of the Iowa Supreme Court, a petition was filed for a rehearing before a full Court. In our consideration of this petition our attention has now been focused upon an Iowa statute enacted since the commencement of this litigation. Though it was in existence at the time the case first came here, it was then not seen in proper focus because blanketed by the issues of 'state action' and constitutional power for which our interest was enlisted. This Iowa statute bars the ultimate question presented in this case from again arising in that State. In light of this fact and the standards governing the exercise of our discretionary power of review upon writ of certiorari, we have considered anew whether this case is one in which 'there are special and important reasons' for granting the writ of certiorari, as required by Supreme Court Rule 19, 28 U.S.C.A. 10 This Rule, formulated 30 years ago, embodies the criteria, developed ever since the Evarts Act of 1891, by which the Court determines whether a particular case merits consideration, with due regard to the proper functioning of the limited reviewing power to which this Court is confined, decisively restricted through the creation of the intermediate Courts of Appeals and more largely confined by the Judiciary Act of 1925. In illustrating the character of reasons which may be deemed 'special and important', the Rule refers to cases 11 'Where a state court has decided a federal question of substance not theretofore determined by this court, or has decided it in a way probably not in accord with applicable decisions of this court.' 12 A federal question raised by a petitioner may be 'of substance' in the sense that, abstractly considered, it may present an intellectually interesting and solid problem. But this Court does not sit to satisfy a scholarly interest in such issues. Nor does it sit for the benefit of the particular litigants. Magnum Import Co. v. Coty, 262 U.S. 159, 163, 43 S.Ct. 531, 532, 67 L.Ed. 922; see also Address of Mr. Chief Justice Vinson, before the American Bar Association, Sept. 7, 1949, 69 Sup.Ct. v, vi; Address of Mr. Chief Justice Hughes, before the American Law Institute, May 10, 1934, XI Proc.Am.Law Inst. 313. 'Special and important reasons' imply a reach to a problem beyond the academic or the episodic. This is especially true where the issues involved reach constitutional dimensions, for then there comes into play regard for the Court's duty to avoid decision of constitutional issues unless avoidance becomes evasion. Cf. the classic rules for such avoidance stated by Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688. 13 In the present case, certiorari was granted, according to our practice, because at least four members of the Court deemed that despite the rather unique circumstances of this case Iowa's willingness to enforce this restrictive covenant rendered it 'special and important.' We were unmindful at the time of Iowa's corrective legislation and of its implications. While that statute had been cited in the opinion of the Iowa Supreme Court, without quotation, in tangential support of a substantive argument, and while similar passing references appear in respondent's briefs in opposition to the petition and on the merits, it was not even suggested as a ground for opposing the grant. Its importance was not put in identifying perspective, and it did not emerge to significance in the sifting process through which the annual hundreds of petitions for certiorari pass. Argument at the Bar was concerned with other issues and the even division of the Court forestalled that intensive study attendant upon opinion-writing which might well have revealed the crucial relevance of the statute. 14 These oversights should not now be compounded by further disregard of the impact of this enactment when viewed in the light of settled Iowa law, not previously brought to our attention, concerning its effect upon private litigation. The statute provides: 15 'Section 1. Any corporation or other form of organization organized or engaging in the business under the laws of the state of Iowa, or wheresoever organized and engaging in the business in the state of Iowa, of the ownership, maintenance or operation of a cemetery * * * except * * * churches or religious or established fraternal societies, or incorporated cities or towns or other political subdivisions of the state of Iowa * * * shall be subject to the provisions of this chapter. 16 'Sec. 8. It shall be unlawful for any organization subject to the provisions of this chapter to deny the privilege of interment of the remains of any deceased person in any cemetery * * * solely because of the race or color of such deceased person. Any contract, agreement, deed, covenant, restriction or charter provision at any time entered into, or by-law, rule or regulation adopted or put in force, either subsequent or prior to the effective date of this chapter, authorizing, permitting or requiring any organization subject to the provisions of this chapter to deny such privilege of interment because of race or color of such deceased person is hereby declared to be null and void and in conflict with the public policy of this state. * * * 17 'Sec. 9. Any person, firm or corporation violating any of the provisions of this chapter, shall, upon conviction, be punishable by a fine of not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100.00). 18 'Sec. 12. Nothing in this Act contained shall affect the rights of any parties to any pending litigation. 19 'Approved April 21, 1953.' Iowa Laws 1953, c. 84; Iowa Code Ann. §§ 566A.1 to 566A.11. 20 As a result of this Act, in any other case arising under similar circumstances not only would the statutory penalties be applicable, but also, under Iowa law, one in petitioner's position would be entitled to recover damages in a civil action based on a violation of the statute. See Humburd v. Crawford, 128 Iowa 743, 105 N.W. 330; Brown v. J. H. Bell Co., 146 Iowa 89, 123 N.W. 231, 124 N.W. 901, 27 L.R.A.,N.S., 407; Amos v. Prom, Inc., D.C.N.D.Iowa, 117 F.Supp. 615. 21 Had the statute been properly brought to our attention and the case thereby put into proper focus, the case would have assumed such an isolated significance that it would hardly have been rought here in the first instance.1 Any adjudication of the constitutional claims pressed by petitioner would now be an adjudication under circumstances not promotive of the very social considerations which evidently inspired the Iowa Legislature to provide against the kind of discrimination of which complaint is here made. On the one hand, we should hesitate to pass judgment on Iowa for unconstitutional action, were such to be found, when it has already rectified any possible error. On the other hand, we should not unnecessarily discourage such remedial action by possible condonation of this isolated incident. Moreover, the evident difficulties of the case suggest that, in the absence of compelling reason, we should not risk inconclusive and divisive disposition of a case when time may further illumine or completely outmode the issues in dispute. 22 Such factors are among the many which must be weighed in the exercise of that 'sound judicial discretion' which Rule 19 requires. We have taken this opportunity to explain their relevance, when normally, for obvious reasons in view of our volume of business, no opinion accompanies dismissal of a writ as improvidently granted, because of the apt illustration here provided of the kinds of considerations, beyond those listed by Rule 19 as illustrative but not exhaustive, which preclude adjudication on the merits of cases which may have the surface appearance of public importance. 23 We are therefore of the opinion that this Court's order of November 15, 1954, affirming by an equally divided Court the decision of the Iowa Supreme Court, must be vacated and the writ of certiorari dismissed as improvidently granted. There is nothing unique about such dismissal even after full argument. There have been more than sixty such cases and on occasion full opinions have accompanied the dismissal.2 The circumstances of this case may be different and more unusual. But this impressive practice proves that the Court has not hesitated to dismiss a writ even at this advanced stage where it appears on further deliberation, induced by new considerations, that the case is not appropriate for adjudication. In the words of Mr. Chief Justice Taft, speaking for a unanimous Court: 24 'If it be suggested that as much effort and time as we have given to the consideration of the alleged conflict would have enabled us to dispose of the case before us on the merits, the answer is that it is very important that we be consistent in not granting the writ of certiorari except 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, Inc., 261 U.S. 387, 393, 43 S.Ct. 422, 423, 67 L.Ed. 712. 25 Writ of certiorari dismissed. 26 The petition for rehearing is granted. The order of this Court of November 15, 1954, affirming by necessity the judgment of the Supreme Court of Iowa is vacated and the writ of certiorari is dismissed as improvidently granted. 27 It is so ordered. 28 Mr. Justice HARLAN took no part in the consideration or decision of this case. 29 Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting. 30 We think that only very unusual circumstances can justify dismissal of cases on the ground that certiorari was improvidently granted. Our objections to such dismissals are stronger when, as here, a case has already been argued and decided by the Court. We do not agree that the circumstances relied on by the Court justify this dismissal. We granted certiorari because serious questions were raised concerning a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment. Those questions remain undecided. The Court dismisses the case because the Iowa Legislature has provided that every person in Iowa except one who has already filed a suit can prosecute claims like this. Apparently this law leaves everyone in Iowa free to vindicate this kind of right except the petitioner. This raises a new question of denial of equal protection of the laws equally as grave as those which prompted us to take this case originally. We cannot agree that this dismissal is justified merely because this petitioner is the only one whose rights may have been unconstitutionally denied. 1 Cf. District of Columbia v. Sweeney, 310 U.S. 631, 60 S.Ct. 1082, 84 L.Ed. 1402, where certiorari was denied 'in view of the fact that the tax is laid under a statute which has been repealed and the question is therefore not of public importance.' 2 United States v. Rimer, 220 U.S. 547, 31 S.Ct. 596, 55 L.Ed. 578; Furness, Withy & Co. v. Yang-Tsze Ins. Ass'n, 242 U.S. 430, 37 S.Ct. 141, 61 L.Ed. 409; Tyrrell v. District of Columbia, 243 U.S. 1, 37 S.Ct. 361, 61 L.Ed. 557; Houston Oil Co. of Texas v. Goodrich, 245 U.S. 440, 38 S.Ct. 140, 62 L.Ed. 385; Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 43 S.Ct. 422, 67 L.Ed. 712; Southern Power Co. v. North Carolina Public Service Co., 263 U.S. 508, 44 S.Ct. 164, 68 L.Ed. 413; Keller v. Adams-Campbell Co., 264 U.S. 314, 44 S.Ct. 356, 68 L.Ed. 705; Davis v. Currie, 266 U.S. 182, 45 S.Ct. 88, 69 L.Ed. 234; Erie R. Co. v. Kirkendall, 266 U.S. 185, 45 S.Ct. 33, 69 L.Ed. 236; Southern California Edison Co. v. Herminghaus, 275 U.S. 486, 48 S.Ct. 27, 72 L.Ed. 387; Mellon v. McKinley, 275 U.S. 492, 48 S.Ct. 34, 72 L.Ed. 390; Missouri-Kansas-Texas R. Co. v. State of Texas, 275 U.S. 494, 48 S.Ct. 82, 72 L.Ed. 391; Ellison v. Koswig, 276 U.S. 598, 625, 48 S.Ct. 320, 72 L.Ed. 724; Johnson v. Thornburgh, 276 U.S. 601, 48 S.Ct. 322, 72 L.Ed. 725; Carter Oil Co. v. Eli, 277 U.S. 573, 48 S.Ct. 435, 72 L.Ed. 994; Standard Pipe Line Co. v. Commissioners of Index Sulphur Drainage Dist., 278 U.S. 558, 49 S.Ct. 17, 73 L.Ed. 504; Seaboard Air Line R. Co. v. Johnson (New York, Chicago & St. L.R. Co. v. Granfell) 278 U.S. 576, 49 S.Ct. 95, 73 L.Ed. 515; Empire Gas & Fuel Co. v. Saunders, 278 U.S. 581, 49 S.Ct. 184, 73 L.Ed. 518; Virginian R. Co. v. Kirk, 278 U.S. 582, 49 S.Ct. 185, 73 L.Ed. 518; Wallace v. Motor Products Corp., 279 U.S. 589, 49 S.Ct. 21, 73 L.Ed. 522; Sutter v. Midland Valley R. Co., 280 U.S. 521, 50 S.Ct. 65, 74 L.Ed. 590; Anglo & London-Paris Nat. Bank of San Francisco v. Consolidated Nat. Bank of Tucson, 280 U.S. 526, 50 S.Ct. 87, 74 L.Ed. 593; Gulf, Mobile & N.R. Co. v. Williams, 280 U.S. 526, 50 S.Ct. 86, 74 L.Ed. 593; Wisconsin Electric Co. v. Dumore Co., 282 U.S. 813, 51 S.Ct. 214, 75 L.Ed. 728; Adam v. New York Trust Co., 282 U.S. 814, 51 S.Ct. 214, 75 L.Ed. 728; Director of Lands of Philippine Islands v. Villa-Abrille, 283 U.S. 785, 51 S.Ct. 341, 75 L.Ed. 1413; Sanchez v. Borras, 283 U.S. 798, 51 S.Ct. 490, 75 L.Ed. 1421; Elgin, Joliet & E.R. Co. v. Churchill, 284 U.S. 589, 52 S.Ct. 138, 76 L.Ed. 508; Snowden v. Red River and Bayou Des Glaises Levee and Drainage Dist. of Louisiana, 284 U.S. 592, 52 S.Ct. 198, 76 L.Ed. 510; Lang v. United States, 286 U.S. 523, 52 S.Ct. 495, 76 L.Ed. 1267; Franklin-American Trust Co. v. St. Louis Union Trust Co., 286 U.S. 533, 52 S.Ct. 642, 76 L.Ed. 1274; Louisville & Nashville R. Co. v. Parker, 287 U.S. 569, 53 S.Ct. 94, 77 L.Ed. 501; Sevier Commission Co. v. Wallowa Nat. Bank, 287 U.S. 575, 53 S.Ct. 120, 77 L.Ed. 504; Fort Smith Suburban R. Co. v. Kansas City Southern R. Co., 288 U.S. 587, 53 S.Ct. 85, 77 L.Ed. 513; Boynton v. Hutchinson Gas Co., 292 U.S. 601, 54 S.Ct. 639, 78 L.Ed. 1464; Lynch v. People of New York ex rel. Pierson, 293 U.S. 52, 55 S.Ct. 16, 79 L.Ed. 191; Hunt v. Western Casualty Co., 293 U.S. 530, 55 S.Ct. 207, 79 L.Ed. 639; Fox Film Corp. v. Muller, 294 U.S. 696, 55 S.Ct. 444, 79 L.Ed. 1234; State Automobile Ins. Ass'n v. Glick, 294 U.S. 697, 55 S.Ct. 550, 79 L.Ed. 1235; Moor v. Texas & N.O.R. Co., 297 U.S. 101, 56 S.Ct. 372, 80 L.Ed. 509; Texas & N.O.R. Co. v. Neill, 302 U.S. 645, 58 S.Ct. 118, 82 L.Ed. 501; Aetna Ins. Co. v. Illinois Central R. Co., 302 U.S. 652, 58 S.Ct. 269, 82 L.Ed. 505; Tax Commission of Ohio v. Wilbur, 304 U.S. 544, 58 S.Ct. 1036, 82 L.Ed. 1518; Goodman v. United States, 305 U.S. 578, 59 S.Ct. 363, 83 L.Ed. 364; Goins v. United States, 306 U.S. 622, 59 S.Ct. 783, 83 L.Ed. 1027; McGoldrick v. Gulf Oil Corp., 309 U.S. 2, 60 S.Ct. 375, 84 L.Ed. 536; Utilities Ins. Co. v. Potter, 312 U.S. 662, 61 S.Ct. 804, 85 L.Ed. 1109; Harris v. Zion's Savings Bank & Trust Co., 313 U.S. 541, 61 S.Ct. 840, 85 L.Ed. 1509; Jones v. City of Opelika, 315 U.S. 782, 62 S.Ct. 630, 86 L.Ed. 1189; Gorman v. Washington University, 316 U.S. 98, 62 S.Ct. 962, 86 L.Ed. 1300; McCullough v. Kammerer Corp., 323 U.S. 327, 65 S.Ct. 297, 89 L.Ed. 273; McCarthy v. Bruner, 323 U.S. 673, 65 S.Ct. 126, 89 L.Ed. 547; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; Woods v. Nierstheimer, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177; Phyle v. Duffy, 334 U.S. 431, 68 S.Ct. 1131, 92 L.Ed. 1494; Hedgebeth v. State of North Carolina, 334 U.S. 806, 68 S.Ct. 1185, 92 L.Ed. 1739; Superior Court of State of California v. Lillefloren, 335 U.S. 906, 69 S.Ct. 410, 93 L.Ed. 440; Loftus v. People of State of Illinois, 337 U.S. 935, 69 S.Ct. 1511, 93 L.Ed. 1741; Parker v. Los Angeles County, 338 U.S. 327, 70 S.Ct. 161, 94 L.Ed. 144; Hammerstein v. Superior Court of California, 341 U.S. 491, 71 S.Ct. 820, 95 L.Ed. 1135; Stembridge v. State of Georgia, 343 U.S. 541, 72 S.Ct. 834, 96 L.Ed. 1130; Edelman v. People of State of California, 344 U.S. 357, 73 S.Ct. 293, 97 L.Ed. 387; Bentsen v. Blackwell, 347 U.S. 925, 74 S.Ct. 528, 98 L.Ed. 1078; State of California ex rel. Brown v. St. Louis Union Trust Co., 348 U.S. 932, 75 S.Ct. 354. This list is not to be deemed comprehensive. Only in the light of argument on the merits did it become clear in these numerous cases that the petitions for certiorari should not have been granted. In some instances an asserted conflict turned out to be illusory; in others, a federal question was wanting or decision could be rested on a non-federal ground; in a number, it became manifest that the question was of importance merely to the litigants and did not present an issue of immediate public significance.

89

349 U.S. 122 75 S.Ct. 649 99 L.Ed. 933 BOSTON METALS COMPANY, Formerly Named Boston Iron and Metal Company, As Owner of the Canadian Destroyer THE ST. FRANCIS, Petitioner,v.THE S/S WINDING GULF and Massachusetts Trustees of Eastern Gas and FuelAssociates. No. 70. Argued March 1, 1955. Decided May 16, 1955. Mr. John H. Skeen, Jr., Baltimore, Md., for petitioner. Mr. Charles S. Bolster, Boston, Mass., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 The petitioner, Boston Metals Company, brought this suit in admiralty against the steam vessel Winding Gulf and her owners to recover for loss of its obsolete destroyer which sank after colliding with the Winding Gulf. The collision occurred while the destroyer was being towed by the tug Peter Moran; the destroyer itself was without power or crew. The owners of the Winding Gulf filed a cross-libel against petitioner, charging that the collision was due to unseaworthiness of the destroyer. After hearings, the District Court found that the collision was due to negligent navigation by the Winding Gulf, to inadequate lights on the destroyer and absence of a crew on the destroyer to keep its lights brightly burning. This absence of lights and crew the District Court found was the fault of the master of the tug Peter Moran. The tug master's negligence, however, was imputed to the petitioner because of provisions in the towage contract that the master and crew of the tug would become the servants of the petitioner and that the towing company would not be responsible for their negligent towage. On this basis, the District Court entered a decree in favor of the cross-libellant against petitioner which resulted in dividing the damages equally between petitioner and respondents. 72 F.Supp. 50. The Court of Appeals affirmed on the same grounds. 209 F.2d 410. We granted certiorari. 348 U.S. 811, 75 S.Ct. 26. 2 In Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, we held invalid a contract designed to shift responsibility for a towboat's negligence from the towboat to its innocent tow. That holding controls this case. For whatever this contract said, here as in the Bisso case, the persons who conducted these towing operations were in fact acting as employees of the towing company, not as employees of the owner of the tow. Under these circumstances it was error to hold petitioner liable for negligence of the towing company's employees. Cf. The Adriatic, 30 T.L.R. 699. 3 Reversed. 4 Mr. Justice HARLAN took no part in the consideration or decision of this case. 5 Mr. Justice FRANKFURTER, concurring. 6 Release-from-liability clauses generally, and specifically with regard to towage contracts, are not to be applied to alter familiar rules visiting liability upon a tortfeasor for the consequences of his negligence, unless the clarity of the language used expresses such to be the understanding of the contracting parties. Even when such a clause undeniably alters the normal relationship between tug and tow as to some aspects of liability for negligence, it is not to be construed to impose every consequence of the tug's negligence upon the tow unless the clause decisively requires this result. See The Devonshire and St. Winifred, (1913) P. 13; The Richmond, 19 T.L.R. 29 (P.D.). 7 The issue before us in this case is not the bare question whether the tow has contracted away its right to recover damages caused by the negligence of the tug. It is whether in addition the tow has undertaken to become directly liable to all third parties injured as a consequence of the negligence of the tug. 8 These are the relevant clauses governing the towage here: 9 '2. Tug services will be supplied upon the condition that all towing * * * of a vessel or craft of any character by a tug or tugs owned or employed by the Tug Company is done at the sole risk of such vessel or craft and of the owners, charterers or operators thereof, and that the Master and crew of such tug or tugs used in the said services become the servants of and identified with such vessel or craft and their owners, and that the Tug Company only undertakes to provide motive power. 10 '3. The Tug Company will not be responsible for the acts or defaults of the Master, or crew of such tug or tugs, or any of their servants or agents or else whosoever, nor for any damages, injuries, losses or delays from whatsoever cause arising that may occur either to such vessel or craft, or property or persons on board thereof, or to any other ship or vessel or property of any kind whether fixed or movable and the Company shall be held harmless and indemnified by the Hirer against all such damages, injuries, losses and delays, and against all claims in respect thereof. 11 '4. Such exemption from liability shall apply regardless of whether such vessel or craft assists in the services with its own steam or power or in any other way, and irrespective of whether any employee of the Tug Company or the Master, or any of the crew of such tug or tugs is at the time of said services on board of such vessel or craft, or in command thereof. 12 '5. The foregoing conditions shall apply to any damages, injuries or loss from whatsoever cause arising that may occur to the vessel or craft requiring the tug or tugs or to any other vessel or craft, or to any person or property on board thereof, or to any other property whether fixed or movable, while such tug or tugs is or are in attendance upon * * * the vessel or craft * * * provided however that the said conditions shall not apply to loss or damage to the tug or tugs or to property on board the tug or tugs or to damages for personal injuries to or loss of life of members of the crews of the tug or tugs or persons on board thereof, unless such loss or damage or such damages for personal injuries or loss of life shall have been caused or contributed to by the fault or negligence of the vessel or craft requiring the tug or tugs.' 13 Is the significance of these clauses to permit a third party, injured by collision with the tow due to the negligence of the crew of the tug, to proceed directly against the owner of the tow by virtue of this clause? 14 The District Court refused to allow the third party to invoke the indemnity clause, but apparently held that the contract made the faults of the tug attributable to the tow, imposing a vicarious liability upon its owner.1 The Court of Appeals reasoned that since the tow had agreed to indemnify the tug against claims of third parties, the third party could proceed directly against the tow because 'The libel was filed by the owner of the tow who had agreed to take the risk of the enterprise and pay any damages that might be incurred, and as was said by Judge Learned Hand in The Kookaburra, 2 Cir., 69 F.2d 71, 73, 'the admiralty, whose procedure is especially plastic, can skip the by-ways and head direct for the goal." 209 F.2d 410, 414. 15 In the absence of the contractual provisions quoted, the owner of the tow would not be liable to the third party. Sturgis v. Boyer, 24 How. 110, 16 L.Ed. 591; The Eugene F. Moran, 212 U.S. 466, 473, 29 S.Ct. 339, 53 L.Ed. 600. On the other hand, the tow did agree to indemnify the tug against liability in the circumstances here involved. But a promise to indemnify is a promise running to the indemnitee, here the tug, and is not ordinarily construed as a contract for the benefit of third parties. Nor does an agreement to hold another harmless against claims of third parties, if it conveys anything more than the term 'indemnify,' suggest that the contract was intended for the benefit of third parties. 16 It is true that the clause states that the members of the crew are to 'become the servants of and identified with such vessel or craft' and that the tug will 'not be responsible' for their acts. If in fact this were the relationship, the tow would be liable directly to third parties. This was not the fact, however, and any liability of the tow to the Winding Gulf can only be based upon the contractual language.2 But the history of towage and pilotage release-from-negligence clauses suggests that this terminology is merely an attempt to phrase a disclaimer of liability applicable to a towage service in the terms of the pilotage clause successfully invoked in Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311. Like all attempts to describe desired legal consequences through use of inapposite concepts, the momentum of the symbolic concept may induce consequences beyond those which the true nature of the problem justifies.3 Placed in its commercial and judicial context, the phraseology does not sufficiently indicate an agreement to undertake direct liability to third parties.4 There are good reasons why this should not be undertaken, among them the fact that in a suit to which the tug is not a party it may be difficult to obtain the full assistance of the tug in establishing nonliability or avoiding an unfairly larger recovery than might have been or subsequently is had against the tug. 17 The only remaining question then is whether the fact that the tow owner instituted this libel against the third party should permit the third party to assert as a defense, or affirmatively as a cross-libel in this case, the claim against the tug. The quotation cited by the Court of Appeals from The Kookaburra is not in point for there all parties were before the court, and the question was one of contribution. In such a situation circuity of action may be avoided without the danger of injury to any of the parties. But it is no defense to an action for negligence that a claim over against an absent third party exists, and the situation is not different because the absent third party in turn would, if held liable, be entitled to indemnity from the libellant. 18 Mr. Justice DOUGLAS, concurring. 19 I join in the opinion of the Court. I do not think we know enough about the economics and organization of this business1 to change the established rule of The Steamer Syracuse, 12 Wall. 167, 171, 20 L.Ed. 382, and The Wash Gray, 277 U.S. 66, 73, 48 S.Ct. 459, 460, 72 L.Ed. 787, that a tug may not contract against her own negligence. 20 I agree with the Court that Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311, was not a departure from that rule. In that case the vessel which was being assisted by the tugs was under her own power and was manned by her own crew. The negligence was that of a tug captain on board the vessel under tow. The Court enforced the contract, which made his negligence the negligence of the vessel, under the familiar rule that 'when one puts his employee at the disposal and under the direction of another for the performance of service for the latter, such employee while so engaged acts directly for and is to be deemed the employee of the latter and not of the former.' Id., 287 U.S. 295, 53 S.Ct. 136. 21 In the Sun Oil case, the tug was not a common carrier or a contract carrier. It was merely assisting a vessel under her own power. Here we are dealing with dead tows, where the tug and the tug alone is in control, where the tows are without power and without crews. 22 In that situation, the tugboats are common carriers2 when they so hold themselves out, State of Washington ex rel. Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 48 S.Ct. 41, 72 L.Ed. 241, Cornell Steamboat Co. v. United States, 321 U.S. 634, 64 S.Ct. 768, 88 L.Ed. 978, or contract carriers. 23 So far as we know, the tugboats in the present cases are as much common carriers as the tugboats in the Cornell Steamboat case and the Stimson Lumber Co. case. 24 Common carriers may not 'by any form of agreement secure exemption from liability for loss or damage caused by their own negligence.' Sun Oil Co. v. Dalzell Towing Co., supra, 287 U.S. 294, 53 S.Ct. 136. See New York Cent. R. Co. v. Lockwood, 17 Wall. 357, 21 L.Ed. 927; Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788. The reasons are as germane to a tugboat that is a contract carrier as they are to a tugboat that is a common carrier. They were well stated by Judge Coxe, dissenting in The Oceanica, 2 Cir., 170 F. 893, 896: 25 'It ought to be against public policy to permit a vessel to contract against her own fault. To allow her to do so begets recklessness, carelessness and neglect. The same reasons for prohibiting such a contract in the case of common carriers apply, though not, perhaps, to the same extent, in the case of a towage contract. In both cases the design is to prevent those who have the absolute control of another's property from extorting an agreement that they may neglect all reasonable precautions to preserve it.' 26 If the tug is only a contract carrier, it is not liable for injury to the tow in the absence of negligence. See Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699. But though a contract carrier, the tug may as effectively command the market and have as complete control of the tow and cargo as any common carrier. The reasons stated by Judge Coxe seem, therefore, as germane to the contract carrier as to the common carrier. 27 It may be that the rule of The Steamer Syracuse is outmoded and should be changed. It may be that the tugboat industry is less able to carry the risks of those losses than its customers. It may be fairer in the long run to let the tugboat operator free himself from his own negligence and transfer the liability to the shippers who employ his services. But the very statement of the problem raises large questions of policy on which the present records throw no light. We would have to know much more about the economics and organization of the tugboat industry than we are offered here to fashion a new rule.3 Accordingly, I would continue to enforce the established rule of The Steamer Syracuse that has its roots deep in history and experience, until and unless Congress adopts another one. 28 Mr. Justice BURTON, whom Mr. Justice REED joins, dissenting. 29 Recognizing the validity of the agreement that 'the Master and crew of such tug or tugs used in the said (towing) services become the servants of and identified with such (towed) vessel or craft and their owners,' I would give that agreement full effect. To me, the agreement is sufficient to make the tow owners directly liable to third parties for the acts of the Master and crew who thus become their servants. Accordingly, I would affirm the judgment of the Court of Appeals. 1 72 F.Supp. 50. Respondent contends that in fact the District Court held that the owners of the tow were personally negligent in entering into the arrangement without taking steps to insure that the towage would be properly performed. There are some phrases in the opinion which tend to support this view, but on the whole it is not consistent with the course of reasoning of the District Judge. It was not the view taken by the Court of Appeals, and we would not be justified in adopting it. 2 Cf. The Adriatic and The Wellington, 30 T.L.R. 699 (P.D.), in which the third party sued tug and tow, relying on a similar clause of the towage contract declaring the tug's crew to be servants of the tow. The tow was held not liable. In view of the English doctrine regarding contracts for the benefit of third parties, our problem of construction of the contract did not arise. 3 See Guy v. Donald, 203 U.S. 399, 406, 27 S.Ct. 63, 64, 51 L.Ed. 245: 'As long as the matter to be considered is debated in artificial terms there is a danger of being led by a technical definition to apply a certain name, and then to deduce consequences which have no relation to the grounds on which the name was applied.' 4 Note that the clause involved in Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, similar to the present one in most respects, expressly states that it is not to be construed to make the owner of the tow liable to third parties. 1 Aspects of the economics of the tugboat industry in New York Harbor are shown in Harbor Fleet, 27 Fortune 99 (May, 1943); Docking Leviathans in the World's Busiest Harbor, 75 Travel 4 (June, 1940); Friendly Ushers of New Page 128-Continued. York Harbor, Christian Science Monitor Magazine Section, July 14, 1937, p. 8; Tugging in the Big Time, Saturday Evening Post, Mar. 24, 1945, p. 26; Admiral Moran's Private Navy, Collier's, Jan. 15, 1949, p. 9; Earnings on Tugboats and Barges in New York Harbor, Jan. 1945, 61 Monthly Labor Review 1192. For an English historical account see Bowen, A Hundred Years of Towage (1933). 2 If they are common carriers, they may be subject to pervasive regulation by the Interstate Commerce Commission under Part III of the Interstate Commerce Act, 54 Stat. 898, 929, 49 U.S.C. §§ 901, 905 et seq., 49 U.S.C.A. §§ 901, 905, as Cornell Steamboat Co. v. United States, supra, held. If they are contract carriers, certain of their activities may likewise be subject to regulation under that Act. See, for example, 49 U.S.C. §§ 906(e), 907(i), 913—917, 49 U.S.C.A. §§ 906(e), 907(i), 913—917. 3 Available statistics of the tugboat industry do not show the breakdown, port by port, between common carriers and contract carriers. Nor do they show how many of the contract carriers are 'captive' carriers, servicing one company. Nor do they give a picture of the competitive or monopolistic conditions prevailing in the various ports. We would need an economic brief to enlighten us, if we were to undertake to reformulate the established rule.

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349 U.S. 129 75 S.Ct. 654 99 L.Ed. 939 UNITED STATES of America, as Owner of THE S. S. CHRISTOPHER GALE, Petitioner,v.Chris NIELSON et al., Co-Partners Trading Under the Firm Name and Style ofDauntless Towing Line, as Owner of THE Tug DAUNTLESS NO. 6. No. 210. Argued March 1, 1955. Decided May 16, 1955. Mr. Ralph S. Spritzer, Washington, D.C., for petitioner. Mr. Anthony V. Lynch, New York City, for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 The respondent, Dauntless Towing Line, contracted to use two of its tugs in assisting the United States, petitioner here, move its steamship Christopher Gale from Hoboken to a Brooklyn pier. The Gale was to move under its own propelling power under guidance of one of respondent's tugboat captains or some other licensed pilot. The contract further provided that a tugboat captain or pilot going on board would become the 'servant of the owners of the vessel assisted in respect to the giving of orders to any of the tugs furnished to or engaged in the assisting service and in respect to the handling of such vessel, and neither those furnishing the tugs and/or pilot nor the tugs, their owners, agents, or charterers shall be liable for any damage resulting therefrom.' One of the respondent's tug captains went aboard the government vessel to pilot it in connection with the moving operation. The two tugs of respondent were at the time fastened to the Gale by lines to help guide its movements. One of the tugs was crushed between the Gale and a pier while attempting to carry out a maneuver under orders of the tug captain piloting the Gale. 2 The respondent brought this suit in admiralty to recover damages from the United States alleging that damages to the tug were caused by negligent pilotage orders of the tug captain while temporarily acting as 'servant' of the Gale. After hearings the District Court found that the damages were caused by the pilot's negligence 'in persisting in his attempt to enter the slip after he knew or should have known that he could not overcome the force of the wind and tide and keep the Christopher Gale from sagging down on Pier 1.' On this finding the District Court entered a decree requiring the United States to pay respondent for damages brought about by this negligence. This decree was entered over the Government's contention that the contract was invalid if construed as exempting respondent from liability for its own servant's negligence. 112 F.Supp. 730. Agreeing with the District Court's reasoning and decree, the Court of Appeals affirmed. 2 Cir., 209 F.2d 958. We granted certiorari to consider the meaning and validity of the pilotage clause, 348 U.S. 811, 75 S.Ct. 59, and at the same time granted certiorari in two other cases, today decided, which involve validity of contracts exempting towers from liability for negligent towage. Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629; Boston Metals Co. v. The Winding Gulf, 349 U.S. 122, 75 S.Ct. 649. 3 Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311, involved the meaning and validity of a pilotage contract substantially the same as the one here. One of Dalzell's tug captains negligently piloted Sun Oil's vessel causing the boat to ground and suffer damages. Sun Oil sued Dalzell. The contract exempting Dalzell from liability for pilotage was pleaded as a defense. This Court held that the tug company could validly contract against being 'liable for any damage' caused by the negligence of one of its captains in piloting Sun Oil's vessel and construed the contract there as having that effect. The question in this case, however, is whether the agreement of the ship being piloted to release the tug company from being 'liable for any damages resulting' from negligent pilotage not only relieves the tug company from liability for damage, but allows it affirmatively to collect damages for injury to its own tug due to negligent pilotage by one of its tug captains. 4 An agreement that one shall not be liable for negligence of a third person cannot easily be read as an agreement that one is entitled to collect damages for negligence of that third person. And there is no reason to stretch contractual language to force payment of damages under circumstances like these. A person supplying his own employees for use by another in a common undertaking cannot usually collect damages because of negligent work by the employee supplied. Clear contractual language might justify imposition of such liability. But the contractual language here does not meet such a test and we do not construe it as authorizing respondent to recover damages from petitioner. 5 Reversed. 6 Mr. Justice HARLAN took no part in the consideration or decision of this case. 7 Mr. Justice BURTON, whom Mr. Justice REED joins, dissenting. 8 The pilotage clause agreed to by the parties herein states that— 9 'When the captain of any tug furnished to or engaged in the service of assisting a vessel which is making use of her own propelling power goes on board said vessel, or any other licensed pilot goes on board said vessel, it is understood and agreed that said tugboat captain or licensed pilot becomes the servant of the owners of the vessel assisted * * *.' (Italics supplied.) 10 According to the above agreement, petitioner contracted to make the tug captain, while serving in this capacity, its servant. Recognizing the validity of this agreement, I would give full effect to its expressed purpose. Accordingly, I would affirm the judgment of the Court of Appeals.

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349 U.S. 85 75 S.Ct. 629 99 L.Ed. 911 William A. BISSO, Jr., Receiver, New Orleans Coal and Bisso Towboat Co., Petitioner,v.INLAND WATERWAYS CORPORATION. No. 50. Argued Feb. 28, 1955. Decided May 16, 1955. Mr. Eberhard P. Deutsch, New Orleans, La., for petitioner. Mr. Ralph S. Spritzer, Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 The question presented is whether a towboat may validly contract against all liability for its own negligent towage. Since there is no controlling statute the question must be decided as a part of the judicially created admiralty law. Federal courts have disagreed as to whether there is or should be a judicial rule invalidating such contracts. Calling attention to this uncertainty, the District Court, sitting in admiralty, sustained a contractual provision exempting respondent towboat owner from liability for negligence and entered judgment accordingly. 114 F.Supp. 713. The Court of Appeals affirmed. 5 Cir., 211 F.2d 401. We granted certiorari to settle the question. 348 U.S. 811, 75 S.Ct. 24. 2 The record including the findings of fact shows: Petitioner's oil barge Bisso while being towed up the Mississippi River by the respondent's steam towboat Cairo collided with a bridge pier and sank. At the time, the barge had no motive power, steering apparatus, officers or crew, its movements being completely controlled by the Cairo. Negligent towage by those operating the Cairo caused the collision. Consequently, respondent, owner of the Cairo, would have been required to pay petitioner damages unless relieved of liability by certain clauses in the towage contract. One provides that the towing movement should be at the 'sole risk' of the barge, and a second provides that masters, crews and employees of the towboat Cairo should 'in the performance of said service, become and be the servants' of the barge Bisso. The Court of Appeals construed both these clauses as relieving respondent from liability for its negligence and held both valid. 3 A release-from-liability clause in a towage contract was first considered by this Court in 1871 in The Steamer Syracuse, 12 Wall. 167, 20 L.Ed. 382. There negligent towage by the Syracuse damaged a canalboat being towed. To escape liability owners of the towboat relied on a contractual agreement that 'the canalboat was being towed at her own risk.' Notwithstanding the agreement, this Court held that the towboat 'must be visited with the consequences' of its negligence.1 For many years The Steamer Syracuse seems to have been generally accepted as either (1) construing a contract to 'tow at own risk' as not including an exemption from negligence, or (2) holding invalid as against public policy a contract which exempts a tower from his negligence.2 4 In 1909 The Steamer Syracuse was repudiated by the Second Circuit in The Oceanica, 170 F. 893, 894. That court construed a contract requiring a towed vessel to 'assume all risks' as exempting the tower from responsibility for its negligence; it also held, over strong dissent, that the contract was not invalid as against public policy. And on rehearing the court conceded that 'the decision of the majority of the court as to the right of a tug to contract against her own negligence is a departure from previous decisions.' The court went on to express hope that the question would 'be set at rest in this case by the Supreme Court.' Certiorari was denied,3 however, and courts in the Second Circuit continued to follow the newly announced Oceanica doctrine.4 But other circuits continued to refuse to allow towboats by contract to escape liability for their negligent towage.5 5 It was in that state of intercircuit conflict that this Court again, in 1928, considered the effect of a contract claimed to exempt a towboat from its negligence. The Wash Gray, 277 U.S. 66, 48 S.Ct. 459, 460, 72 L.Ed. 787.6 The contract involved provided that the towboat should not be "responsible in any way for loss or damage" to the Wash Gray, the vessel being towed. This Court was urged to follow The Oceanica. But counsel for the Wash Gray, relying on The Steamer Syracuse, insisted that recovery for 'actionable negligence is not barred by release in contract for towage.'7 Without mention of The Oceanica this Court said: 'We do not think that the towing contract has the effect claimed for it by the companies. It did not release the (towboat) from any loss or damage to the Wash Gray due to the negligence of the master or crew of the towing vessel * * *. The rule laid down by the court in The Steamer Syracuse * * * covers the point.' 277 U.S. at page 73, 48 S.Ct. at page 460. The contracts in The Steamer Syracuse and The Wash Gray were worded quite differently, and there is little indication that the 'rule' the Court had in mind was one of mere contractual interpretation. Rather a public policy objection to such contracts was indicated by the Court's quoting from that part of The Steamer Syracuse opinion which pointed out that despite the contract there the towboat had to bear the consequences of its negligence even though the law had not imposed on it the obligations resting on a common carrier.8 6 It is nevertheless argued that The Steamer Syracuse and The Wash Gray did not announce a rule of public policy against release-from-negligence contracts but decided no more than what the towage contracts in those cases meant. Strong arguments can be made in support of this contention but we think stronger arguments can be made against it. The Steamer Syracuse was decided in an era of manifest judicial hostility toward release-from-negligence contracts particularly those made by businesses dealing widely with the public and having potential monopolistic powers.9 That hostility caused this Court two years later to declare that public policy forbade common carriers to make such contracts.10 The next year telegraph company contracts were brought under the same ban, although the Court stated they were not common carriers.11 Largely because of this general judicial attitude and the influence of The Steamer Syracuse no towage release-from-negligence clause appears to have been enforced by any court for 38 years. During that period and later enforcement was refused in two ways—either by giving such contracts a very narrow construction or by holding them to be against public policy. One court even expressly declared it to be 'contrary to public policy to so construe' a contract that a tower could be allowed to go clear of all liability for his own negligence.12 When the Second Circuit belatedly departed from The Steamer Syracuse other courts still refused to enforce towers' stipulations against their negligence. And when this Court was urged in The Wash Gray to repudiate The Steamer Syracuse by following The Oceanica the answer was an emphatic reiteration and approval of the language and holding of The Steamer Syracuse. Viewed in light of this history, we think The Steamer Syracuse, The Wash Gray and intervening lower court cases together strongly point to the existence of a judicial rule, based on public policy, invalidating contracts releasing towers from all liability for their negligence.13 Because of this judicial history and cogent reasons in support of a rule outlawing such contracts we now, despite past uncertainty and difference among the circuits, accept this as the controlling rule. 7 This rule is merely a particular application to the towage business of a general rule long used by courts and legislatures to prevent enforcement of release-from-negligence contracts in many relationships such as bailors and bailees,14 employers and employees,15 public service companies and their customers.16 The two main reasons for the creation and application of the rule have been (1) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains.17 These two reasons are no less applicable today than when The Steamer Syracuse and The Wash Gray were decided. And both reasons apply with equal force whether tugs operate as common carriers or contract carriers.18 The dangers of modern machines make it all the more necessary that negligence be discouraged. And increased maritime traffic of today makes it not less but more important that vessels in American ports be able to obtain towage free of monopolistic compulsions. 8 The practical result of leaving towers wholly free to contract against all liability for their negligence is strikingly illustrated in an English case. The Port of London controlled and operated all tugs in the harbor and by law no ship could enter without the aid of Port Authority tugs. But no shipowner could get a Port tug unless he first signed a contract agreeing to be liable for all damages caused by the negligence of the tug's employees. Under such a contract the court allowed the Port Authority to recover damages from a ship towed for injuries to the Port's tug caused by negligence of the Port's employees running the tug.19 Such a result would be impossible under the rule we accept as controlling. 9 It is contended that the towage contract rule we have accepted was rejected by this Court in Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311.20 We disagree. Unlike the Steamer Syracuse, The Wash Gray and the instant case, Sun Oil did not involve a contract designed to relieve a towboat owner from liability for negligent towage. The contractual clause there involved related only to pilotage. The clause provided that a tug captain who piloted a vessel propelled on its own power should be considered the servant of that vessel and that the tug owners should not be liable for his negligent pilotage.21 Sun Oil construed this contract as relieving the tugboat owners from all liability for negligence of the tug captain while piloting Sun Oil's vessel and held the contract valid as thus construed. But both the Court of Appeals22 and this Court recognized that holding the pilotage contract valid did not conflict with The Steamer Syracuse or The Wash Gray. Indeed, this Court expressly stated that the Sun Oil decree was 'not in conflict with the decisions' in The Steamer Syracuse and The Wash Gray. It is of course possible that the Court found an absence of conflict in the cases because of a different construction given the different contracts involved. We doubt this, but however this may be there are more basic differences upon which we prefer to rest this Court's statement that Sun Oil did not conflict with the two prior cases. 10 There are distinctions between a pilotage and a towage exemption clause which make it entirely reasonable to hold one valid and the other invalid. A pilotage clause exempts for the negligence of pilots only; a towage clause exempts from all negligence of all towage employees. Pilots hold a unique position in the maritime world and have been regulated extensively both by the States and Federal Government.'23 Some state laws make them public officers, chiefly responsible to the State, not to any private employer. Under law and custom they have an independence wholly incompatible with the general obligations of obedience normally owed by an employee to his employer.24 Their fees are fixed by law and their charges must not be discriminatory. As a rule no employer, no person can tell them how to perform their pilotage duties. When the law does not prescribe their duties, pilots are usually free to act on their own best judgment while engaged in piloting a vessel. Because of these differences between pilots and towage employees generally, contracts stipulating against a pilot's negligence cannot be likened to contracts stipulating against towers' negligence. It is one thing to permit a company to exempt itself from liability for the negligence of a licensed pilot navigating another company's vessel on that vessel's own power. That was the Sun Oil case. It is quite a different thing, however, to permit a towing company to exempt itself by contract from all liability for its own employees' negligent towage of a vessel. Thus, holding the pilotage contract valid in the Sun Oil case in no way conflicts with the rule against permitting towers by contract wholly to escape liability for their own negligent towing. 11 That rule renders invalid the first provision of the contract in this case that the towing had to be done at the sole risk of the towed vessel. 12 The second clause in the contract—that the employees of the towboat Cairo should be servants of the barge Bisso—likewise cannot be enforced. For if valid, the only effect of that clause would be to shift all liability for negligent towage from the towboat to the vessel being towed, precisely what the first clause attempted to do. This is true because employees of a towboat do not become employees of a vessel being towed just because a contract says so, when as here the workers are in truth and in fact solely employees of the towboat.25 This towboat belonged to respondent. It was manned by workers hired and paid by respondent. They remained at all times subject to respondent's complete control. In contrast, the owners of the barge being towed never had any relationship of any kind or character with those who controlled and operated the towboat. The rule against contractual exemption of a towboat from responsibility for its own negligence cannot be defeated by the simple expedient of providing in a contract that all employees of a towboat shall be employees of the towed vessel when the latter 'employment' is purely a fiction. 13 Reversed. 14 Mr. Justice HARLAN took no part in the consideration or decision of this case. 15 Mr. Justice DOUGLAS, concurring. 16 I join in the opinion of the Court. I do not think we know enough about the economics and organization of this business1 to change the established rule of The Steamer Syracuse, 12 Wall. 167, 171, 20 L.Ed. 382, and The Wash Gray, 277 U.S. 66, 73, 48 S.Ct. 459, 460, 72 L.Ed. 787, that a tug may not contract against her own negligence. 17 I agree with the Court that Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311, was not a departure from that rule. In that case the vessel which was being assisted by the tugs was under her own power and was manned by her own crew. The negligence was that of a tug captain on board the vessel under tow. The Court enforced the contract, which made his negligence the negligence of the vessel, under the familiar rule that 'when one puts his employee at the disposal and under the direction of another for the performance of service for the latter, such employee while so engaged acts directly for and is to be deemed the employee of the latter and not of the former.' Id., 287 U.S. 295, 53 S.Ct. 136. 18 In the Sun Oil case, the tug was not a common carrier or a contract carrier. It was merely assisting a vessel under her own power. Here we are dealing with dead tows, where the tug and the tug alone is in control, where the tows are without power and without crews. 19 In that situation, the tugboats are common carriers2 when they so hold themselves out, State of Washington ex rel. Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 48 S.Ct. 41, 72 L.Ed. 241; Cornell Steamboat Co. v. United States, 321 U.S. 634, 64 S.Ct. 768, 88 L.Ed. 978, or contract carriers. 20 So far as we know, the tugboats in the present cases are as much common carriers as the tugboats in the Cornell Steamboat case and the Stimson Lumber Co. case. 21 Common carriers may not 'by any form of agreement secure exemption from liability for loss or damage caused by their own negligence.' Sun Oil Co. v. Dalzell Towing Co., supra, 287 U.S. 294, 53 S.Ct. 136. See New York Central Railroad Co. v. Lockwood, 17 Wall. 357, 21 L.Ed. 627; Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788. The reasons are as germane to a tugboat that is a contract carrier as they are to a tugboat that is a common carrier. They were well stated by Judge Coxe, dissenting in The Oceanica, 2 Cir., 170 F. 893, 896: 22 'It ought to be against public policy to permit a vessel to contract against her own fault. To allow her to do so begets recklessness, carelessness and neglect. The same reasons for prohibiting such a contract in the case of common carriers apply, though not, perhaps, to the same extent, in the case of a towage contract. In both cases the design is to prevent those who have the absolute control of another's property from extorting an agreement that they may neglect all reasonable precautions to preserve it.' 23 If the tug is only a contract carrier, it is not liable for injury to the tow in the absence of negligence. See Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699. But though a contract carrier, the tug may as effectively command the market and have as complete control of the tow and cargo as any common carrier. The reasons stated by Judge Coxe seem, therefore, as germane to the contract carrier as to the common carrier. 24 It may be that the rule of The Steamer Syracuse is outmoded and should be changed. It may be that the tugboat industry is less able to carry the risks of those losses than its customers. It may be fairer in the long run to let the tugboat operator free himself from his own negligence and transfer the liability to the shippers who employ his services. But the very statement of the problem raises large questions of policy on which the present records throw no light. We would have to know much more about the economics and organization of the tugboat industry than we are offered here to fashion a new rule.3 Accordingly, I would continue to enforce the established rule of The Steamer Syracuse that has its roots deep in history and experience, until and unless Congress adopts another one. 25 Mr. Justice FRANKFURTER, whom Mr. Justice REED and Mr. Justice BURTON join, dissenting. 26 Drawing on its constitutional powers in matters maritime, Art. III, § 2, this Court has probably made as much substantive admiralty law through adjudication as has Congress by legislation. Indeed, not a little of legislation has displaced or modified the Court's decisions. This creative judicial function of making admiralty law remains unimpaired, so that it is within the Court's jurisdiction now to announce, as new doctrine, that tow and tug may not by agreement relieve the tug of liability for damage to the tow caused by the tug's negligence. Of course, the Court should not restrict the area of full bargaining between tow and tug unless an overriding public interest calls for such restriction. 27 But the Court does not now profess to originate a doctrine of invalidity of such an agreement. Pervading the Court's opinion is the assumption that it is merely making explicit what has been the presupposition and direction, if not the unequivocal pronouncement, of the controlling body of decisions. These decisions, we are told, 'strongly point to the existence of a judicial rule, based on public policy, invalidating contracts releasing towers from all liability for their negligence.' On this assumption, one easily slides to the Court's conclusion. Such an assumption almost implies the conclusion, for a long-established rule, not remotely related to any constitutional question and readily amenable to legislative change, should be adhered to. Especially in the domain of commercial affairs, stare decisis has a strong social justification. In conducting their affairs, men naturally assume that courts will not unsettle a settled rule for the conduct of business, certainly not unless experience has made manifest the need for overturning the law. 28 To assert that a rule has been established by courts necessarily implies authoritative pronouncement of a doctrine, its application to litigation, and its continuing vitality. Such a rule ought to be found in adjudications in this Court or at the very least—in the case of maritime matters—in the weight of authority in lower courts, particularly in the Southern District of New York where admiralty law has to such a large extent developed. The claimed rule cannot avouch the decisions in this Court nor the body of lower court decisions. In their entirety, the decisions reflect the opposite. A critical examination of them yields these conclusions: 29 (1) In The Steamer Syracuse, 12 Wall. 167, 20 L.Ed. 382, this Court did not have before it any claim of exemption from all negligence such as is presented here. The Steamer Syracuse therefore could not have decided, and it did not purport to decide, the validity of such an exemption. The Wash Gray, 277 U.S. 66, 48 S.Ct. 459, 72 L.Ed. 787, purports to be no more than a decision on a question of construction, in which The Steamer Syracuse was cited as precedent for placing a narrow construction on exculpatory clauses. 30 (2) The Circuits other than the Ninth do not disclose decisions that towboats cannot by contract escape liability for negligent towage. In the Ninth there is talk, not decision. 31 (3) In respecting an agreement for exemption in the case of a private carrier, we do not disregard any decision of this Court or any persuasive body of authority in the Courts of Appeals. On the other hand, to recognize the validity of such a provision accords with the decisions and pronouncements of the two Circuits having the most active admiralty business, and with the underlying considerations of policy upon which this Court very recently and unanimously enforced a similar provision for exemption in Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311. 32 The materials on which these conclusions are based are not esoteric. They are to be assessed, of course, according to time-honored rules for reading cases—that cases hold only what they decide, not what slipshod or ignorant headnote writers state them to decide; that decisions are one thing, gratuitous remarks another. A stew may be a delicious dish. But a stew is not to be made in law by throwing together indiscriminately decision and dicta, cases involving common carriers and private carriers, cases involving monopolistic or otherwise patently unequal bargaining power and cases arising under contracts between parties bargaining at arm's length. 33 It is essential in examining these cases to differentiate sharply between construction and validity. Since negligence is the ordinary basis for liability, relief from it should be clearly agreed upon between the parties and ambiguity should not leave the extent of such relief in doubt. Accordingly, provisions for exemption are closely scrutinized by courts and doubts either as to the existence of the provision of exemption or its scope are resolve against relief from responsibility. it is fair to say that a number of the cases relied upon for support against the validity of an exemption are cases in which the existence of such a provision was not established or its meaning was appropriately given limited scope. 34 These conclusions require documentation. 35 Decisions of This Court. 36 1. In The Steamer Syracuse, 12 Wall. 167, 20 L.Ed. 382, the crucial issue in the District Court, on appeal in the Circuit Court, and on appeal here, was whether or not on the particular facts of that case the steamer Syracuse had been 'navigated with ordinary care and skill.' 37 The Syracuse had been engaged in towing canalboats through New York harbor. The tug's owners had given the owners of the tow a receipt stating that the service was to be performed 'at the risk of her owners.' In a libel based on the tug's negligence in permitting the tow to strike an anchored vessel and be sunk, the District Court held that, while the parties were free to vary their responsibilities by contract, the words of the receipt1 'did not operate to relieve or discharge the steamboat and her owners from the exercise of all reasonable skill'. Langley v. The Syracuse, 14 Fed.Cas., page 1115, No. 8,068. This decision was affirmed both by the Circuit Court, The Syracuse, 23 Fed.Cas., page 593, No. 13,717, and this Court with no suggestion that the controlling issue was other than that on which the District Court had based its decision. Neither in the answer to the libel, nor in the proceedings in the District Court, nor in those in the Circuit Court, including the opinion of Mr. Justice Nelson, sitting as Circuit Justice, nor in the briefs in this Court, nor in the opinion here, was there ever tendered the issue which is tendered in this case namely, the enforceability of an agreement whereby a private carrier is relieved from liability for negligence. Nor was there any pronouncement on such an issue. Throughout the litigation there is not the faintest suggestion that the receipt raised any issue other than whether the Syracuse was or was not 'navigated with ordinary care and skill' in the very special circumstances of the particular seamanship. It would seem indeed strange that the brief of E. C. Benedict, probably the leading admiralty lawyer of his day, should not give a hint of reliance on a clause exempting from liability for negligence, but instead bring all its argumentation to bear to prove that the duty to navigate 'with ordinary care and skill' was satisfied. He thus framed his only contention regarding the effect of the contract: 38 'The boat was towed under a contract on the part of the libellant that he would bear the risks of the navigation, provided, the steamboat which furnished the propulsive power, was navigated with ordinary care and skill. 39 'This we submit is the fair intent of the contract to tow the boat 'at the risk of her masters and owners." Brief for Appellant, p. 3; see 12 Wall., at 170 (summary of argument). 40 The language of both Mr. Justice Nelson, in the Circuit Court, and Mr. Justice Davis, for this Court, must be read in the light of the issues that were framed in the District Court, the course of evidence in that court, the contentions of the parties and the explicitness of the briefs in this Court. The claim was not relief from liability for negligence but that the admitted duty of 'ordinary care and skill' in navigation had not been satisfied. There is no suggestion, either in this Court's opinion or that of Mr. Justice Nelson on circuit, that a rule of public policy was being announced barring agreements, fairly entered into, relieving private carriers from liability. The Steamer Syracuse was decided here in 1871. It was not until 1873 that such agreements were invalidated in the case of common carriers. New York Central Railroad Co. v. Lockwood, 17 Wall. 357, 21 L.Ed. 627. And not until 18 years later was this rule applied to common carriers by water. Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788. Surely this Court did not impliedly, in a moment of absent-mindedness, declare such a rule in the case of a private carrier and two years later require 25 pages to justify it in the case of common carriers. 41 Reliance upon any climate of 'manifest judicial hostility toward release-from-negligence contracts' existing at this time is singularly misplaced. In this period American legal thought placed entirely too high a value upon liberty of contract. See Pound, Liberty of Contract, 18 Yale L.J. 454. Had there been such an attitude, it could not have been a factor in a case in which both parties agreed that no such contract was involved. Moreover, this hostility, insofar as it was more than a mode of narrowly construing contracts designed to cut down common-law liability, was limited to situations where inequality of bargaining power in relation to essential services called for judicial intervention. Compare New York Central Railroad Co. v. Lockwood, supra, with Baltimore & Ohio S.R. Co. v. Voigt, 176 U.S. 498, 20 S.Ct. 385, 44 L.Ed. 560; Santa Fe, P. & P.R. Co. v. Grant Bros. Const. Co., 228 U.S. 177, 33 S.Ct. 474, 57 L.Ed. 787. 42 2. The superficial ambiguity of the language of the Court's opinion in The Steamer Syracuse, when read without reference to the issues before it, led some lower courts to speculate as to its meaning. But Compania de Navigacion La Flecha v. Brauer, 168 U.S. 104, 18 S.Ct. 12, 42 L.Ed. 398, left no ground for such confusion. The Brauer case involved a contract for carriage of cattle on the deck of a steamer "at owner's risk; steamer not to be held accountable for accident to or mortality of the animals, from whatever cause arising". The contract specified that it was to be interpreted according to English law. A libel against the shipowner was brought for the loss of the cattle which, during a storm at sea, had been unnecessarily driven overboard by the crew. The Court, noting a conflict between American and English decisions regarding the right of a common carrier to relieve itself of the consequences of negligence, found it unnecessary to determine which of these rules was applicable, stating: 43 'By the laws of both countries, * * * an exception, in the bill of lading, of perils of the sea, or other specified perils, does not * * * exempt him from liability for loss or damage from one of those perils, to which the negligence of himself or his servants has contributed. 44 'This rule of construction was fully established in this court before it had occasion to decide the question whether it was within the power of the carrier by express stipulation to exempt himself from all responsibility for the negligence of himself or his servants. 45 'In the leading case of New Jersey Steam Navigation Co. v. Merchants' Bank (of Boston), 6 How. 344 (12 L.Ed. 465) * * * (the Court stated) 'But we think it would be going further than the intent of the parties * * * were we to regard it as stipulating for * * * want of ordinary care * * *'. 'If it is competent at all for the carrier to stipulate * * * it should be required to be done at least in terms that would leave no doubt as to the meaning of the parties.' 6 How. 383, 384 (12 L.Ed. 465). See, also * * * The (Steamer) Syracuse, 12 Wall. 167 (20 L.Ed. 382)'. 168 U.S., at pages 118—120, 18 S.Ct. at page 15. 46 This citation of The Steamer Syracuse as an example of instances in which a rule of narrow construction of exculpatory clauses had been invoked should have set to rest any misunderstanding concerning the scope of its ruling. 47 3. Compan ia de Navegacion Interior, S.A. v. Fireman's Fund. Ins. Co., 277 U.S. 66, 48 S.Ct. 459, 460, 72 L.Ed. 787 (The Wash Gray), was a consolidation of libels by the owner of The Wash Gray, lost while in tow on the Gulf of Mexico, against eleven insurance companies which had underwritten the voyage. One of the defenses of the insurers was that the contract of towage had contained, unknown to them, the following provision which they alleged to have been material to the risk: 48 "Freeport Sulphur No. 1 (the tug) will furnish hawser. All other risk and expense to be borne by (the Wash Gray). It is understood you will keep sufficient men on board to keep up steam and man the tug's pumps. S.S. Freeport No. 1 is not responsible in any way for loss or damage to the Wash Gray." 49 The District Court had held that the towage clause 'does not pretend to release liability for loss or damage growing out of the tower's negligence. Such an intention would be defeated by the very obscurity of its terms.' 14 F.2d 196, 200. The Court of Appeals reversal rested on grounds not here relevant. 5 Cir., 19 F.2d 493. 50 On writ of certiorari, this Court, reversing the Court of Appeals, dismissed the contention of the insurers in the following terms: 51 'We do not think that the towing contract has the effect claimed for it by the companies. It did not release the Freeport from any loss or damage to the Wash Gray due to the negligence of the master or crew of the towing vessel; and for a loss thus caused the companies would be subrogated to the claim of the owner of the Wash Gray. 52 'The rule laid down by this court in The Steamer Syracuse, 12 Wall. 167, 171 (20 L.Ed. 382), covers the point. * * * 53 'In view of this state of the law, the towing contract here shown was not a fact material to the risk, a concealment of which from the underwriters would injure them or avoid the policy.' 277 U.S. at pages 73—74, 48 S.Ct. at page 460. 54 The wording of the clause differed, to be sure, from that involved in The Steamer Syracuse. But the language relied upon by the insurers, in the context of the rest of the clause and the undertaking involved, was no more suggestive of an attempt to avoid liability for negligence than that construed in The Steamer Syracuse. It is hardly surprising that the Court applied, at the instance of the party to the contract, the narrower meaning which the parties in The Steamer Syracuse had conceded to be proper, and rejected the insurer's attempt to escape liability by attributing the broadest meaning to the clause. 55 4. Any support for the present decision drawn from the language of The Steamer Syracuse and The Wash Gray is decisively repelled by the decision in Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 136, 77 L.Ed. 311. That case involved the following clause of a contract for assistance of a tanker to its berth at Bergen, New Jersey: 56 "When the captain of any tug engaged in the services of towing a vessel * * * goes on board said vessel, it is understood and agreed that said tugboat captain becomes the servant of the owners in respect to the giving of orders to any of the tugs engaged in the towage service and in respect to the handling of such vessel, and neither the tugs nor their owners or agents shall be liable for any damage resulting therefrom." While the captain of one of respondent's tugs was acting as pilot on board the tanker, it went aground and was damaged. In the resulting action against the tug, this Court upheld the validity of the clause, stating: 57 'The validity of its applicable provision cannot reasonably be doubted. So far as concerns the service to be rendered under the agreement, respondent was not a common carrier or bailee or bound to serve or liable as such. Towage does not involve bailment, and the services covered by the contract were less than towage. * * * There is no foundation in this case for the application of the doctrine that common carriers and others under like duty to serve the public according to their capacity and the terms of their undertaking cannot by any form of agreement secure exemption from liability for loss or damage caused by their own negligence. * * * Respondent had no exclusive privilege or monopoly in respect of the services that petitioner desired to have performed for its tanker. And petitioner was under no compulsion to accept the terms of respondent's pilotage clause. There is nothing to suggest that the parties were not on equal footing or that they did not deal at arm's length. 'There is no rule of public policy which denies effect to their expressed intention, but, on the contrary, as the matter lies within the range of permissible agreement, the highest public policy is found in the enforcement of the contract which was actually made.' * * * 58 'Respondent's responsibility is not to be extended beyond the service that it undertook to perform. It did not furnish pilotage. * * * 59 'The decree under consideration is not in conflict with the decisions of this court cited by petitioner, The Steamer Syracuse, 12 Wall. 167, 20 L.Ed. 382, and Compania de Navegacion (Interior, S.A.,) v. (Fireman's Fund) Ins. Co., 277 U.S. 66, 48 S.Ct. 459, 72 L.Ed. 787. Neither involved an agreement similar to the provisions of the pilotage clause on which this case turns.' 287 U.S. at pages 294—295, 53 S.Ct. at page 136.2 60 The opinion distinguishes The Steamer Syracuse and The Wash Gray not on the ground that there is an essential difference between considerations of policy applicable to towage and pilotage, but expressly and only on the ground that the provisions of the contracts differed, thus viewing the earlier cases as involving no more than matters of construction. Of course there are differences between the situation before the Court in Sun Oil and the one now before us. But the analysis which led the Court to its conclusion there is equally applicable here and calls for upholding the validity of this agreement. 61 Decisions in the Lower Courts. 62 1. Concededly, the Second Circuit has ever since the decision in The oceanica, 1909, 170 F. 893,3 upheld the validity of agreements whereby towers avoid liability for their own negligence. Its most recent reiteration of this position is found in Nielson v. United States, 209 F.2d 958, today reversed on other grounds, 349 U.S. 129, 75 S.Ct. 654. To the Second Circuit there must now be added the Courts of Appeals for the Fourth and Fifth Circuits by virtue of their decisions in this case and in Boston Metals Co. v. The Winding Gulf.4 It is not without significance that the Second and Fifth Circuits are first and second in volume of admiralty litigation. 63 2. In a series of three cases, the Sixth Circuit has assiduously avoided the issue of validity of exculpatory clauses, resting instead upon construction of the clause in issue as not reaching the negligence involved. Great Lakes Towing Co. v. Bethlehem Transp. Corp., 65 F.2d 543;5 Great Lakes Towing Co. v. American S.S. Co., 165 F.2d 368;6 Walter G. Hougland, Inc., v. Muscovalley, 184 F.2d 530.7 64 3. The Ninth Circuit is the only Circuit which has indicated but not decided—that it might differ with the Second, Fourth and Fifth Circuit Courts of Appeals were it forced to pass squarely on the issue of validity. The statement in the syllabus to the first of the relevant cases in the Ninth Circuit, Alaska Commercial Co. v. Williams, 128 F. 362, is inaccurate. While it says that a tug 'cannot relieve itself by contract from liability for the failure to exercise reasonable care and skill', the court concluded that the lower court had properly excluded an amendment to the pleadings and testimony which, it was alleged, was designed to show the existence of an exculpatory clause. It then merely added: 65 'But we are of the opinion that if the plaintiff in error had proved the contract to be as in the proposed amendment it was alleged to be, it would not have afforded it exemption from liability in the present case', citing The Steamer Syracuse. 128 F. at page 366. 66 Mylroie v. British Columbia Mills Tug & Barge Co., 9 Cir., 268 F. 449, 450, involved a contract of towage which stated: 67 "That the tug will render to the said barge Bangor reasonable assistance from time to time in any emergency which might arise * * *. The tug company is not to be held liable for any damage which might happen to the said barge Bangor or its cargo while in tow or at anchor." 68 The barge had been lost after a sudden change of course by the tug, made without warning to the barge, caused the towline to snap. The Court of Appeals was ready to hold, and appeared to view the Alaska Commercial case as holding, that the tower could not, for reasons of public policy, avoid liability for negligence. Such a holding also was attributed to The Steamer Syracuse. But, in a rather confused opinion, the court appears to adopt the view that the exculpatory clause presupposed the tug's seaworthiness which in fact was negatived by the absence of a sufficient crew. Thus the clause was inapplicable. 268 F. at page 453. The decision was affirmed in this Court on the ground that, as a matter of construction and in accordance with English decisions, the clause meant only that the tug should not be liable if it had rendered reasonable assistance to the barge. Holding that the tug had not done so, the Court stated: 'This makes it unnecessary for us to consider the contention on behalf of the barge that the exemption clause is void.' British Columbia Mills Tug & Barge Co. v. Mylroie, 259 U.S. 1, 12, 42 S.Ct. 430, 434, 66 L.Ed. 807. 69 Subsequent developments have not made the Ninth Circuit's position any clearer. In Sacramento Navigation Co. v. Salz, 3 F.2d 759, 761, reversed here on other grounds, 273 U.S. 326, 47 S.Ct. 368, 71 L.Ed. 663, that Circuit considered a contract between the owner of a barge and a shipper of merchandise which excused the former from liability for 'dangers of fire and navigation'. The tug, also owned by the bargeowner, negligently caused loss of the barge and its cargo. The court dismissed the contention that the bargeowner might avoid liability under the quoted provision of the contract expressly as a matter of construction, and, in so doing, indicated that The Steamer Syracuse, The Oceanica, and Mylroie merely reflected differing constructions of exculpatory clauses.8 This opinion thus chose to ignore the dicta of Mylroie. But subsequent dicta in Hall-Scott Motor Car Co. v. Universal Ins. Co., 122 F.2d 531, 533, indicate that, at least as of 1941, the Ninth Circuit felt that precedent in this Court and that Circuit's own decisions had established the invalidity of towage release-from-negligence clauses. In that case, the court reviewed the towage cases in considering analogies to the case before it, one in which a pleasure cruiser being repaired in dry dock was lost through fire and the principal defense was based on a clause in the repair contract stating that the repairer "will not be held responsible for any damage to cruiser 'Pacifica' * * * while the engine installation is being made." The court stated: 70 'This court has held that a contract relieving a towing vessel from the results of its negligence is void and has based its decisions upon the decision of the Supreme Court in 1870, in the case of The Steamer Syracuse * * *,' citing Alaska Commercial and Mylroie. 122 F.2d at page 535. 71 After reviewing contra decisions in other circuits: 72 'The Supreme Court has unquestionably settled this difference in Compania de Navegacion v. Phoenix (sic) Ins. Co., 277 U.S. 66, 48 S.Ct. 459, 72 L.Ed. 787 * * *. 73 'If these decisions of the Supreme Court and of this court are applicable to a maritime contract to repair a ship it is clear that such a contract to exculpate the contractor for his negligence is invalid.' 122 F.2d at pages 535—536. 74 The court decided, however, that the principles of the Sun Oil case were instead to be applied, holding the exculpatory clause valid. 75 4. It is safe to say that, aside from temporary intra-circuit conflicts within the Second Circuit,9 never since ordinary towage has been recognized as not amounting to common carriage10 has there been a decision in any district court holding invalid clauses which were clearly designed to relieve a tug from liability in the course of its service as a private carrier. Every decision is either limited to a construction of the clause or, if expressions concerning validity appear, they are the merest dicta.11 Interpretation and Validity of the Exculpatory Towage Clause. 76 We are not presented with a longstanding admiralty rule based on public policy invalidating contracts releasing towers from all liability for their negligence. In fact, we are presented with no rule other than that of the Second Circuit and those following it. Private parties have been free for over a century and a half to contract with reference to the rights and liabilities incident to towage. We cannot assume that they have been misled into a contrary belief. Critical analysis of the authorities, both in this country and in England,12 would not indicate that this freedom had been circumscribed by judicial decision.13 77 If deference to Congress as the arbiter of public policy is called for, see Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368; Halcyon Lines v. Haenn Ship Ceiling and Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318, certainly it should lead us not to upset a practice of the shipping industry sanctioned by the courts most concerned with it. And if inferences are to be drawn from existing legislation, it may be significant that Congress' careful regulation of freedom to limit liability in the case of public carriers of passengers or cargo, 46 U.S.C. §§ 183c, 190—192, 1300—1308, 46 U.S.C.A. §§ 183c, 190—192, 1300—1308, is, either expressly or by virtue of the judicial 'gloss' placed upon these sections, inapplicable to the usual tug-tow relationship. This suggests that, in the view of Congress, there is no overriding public policy requiring similar limitations in the field of private towage. 78 This Court has not, to be sure, in every instance awaited congressional action before imposing views of public policy upon contracting parties. But it has limited its interference in the field of transportation to relationships between common carriers and their customers, concededly not the relationship before us. We have held that the towage relationship is even less than one of marine bailment, Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699, as to which, under the rulings of the lower federal courts, public policy does not invalidate exculpatory clauses. Newport News Shipbuilding & Dry Dock Co. v. United States, 4 Cir., 34 F.2d 100; Hall-Scott Motor Car Co. v. Universal Ins. Co., 9 Cir., 122 F.2d 531. See International Mercantile Marine S.S. Co. v. W. & A. Fletcher Co., 2 Cir., 296 F. 855, 860; Restatement, Contracts, §§ 574, 575. 79 The considerations which have governed this Court's role as arbiter of the public interest in exculpatory contracts were recently enunciated by the unanimous Court in the Sun Oil case. They bear repetition: 80 'So far as concerns the service to be rendered under the agreement, respondent was not a common carrier or bailee or bound to serve or liable as such. Towage does not involve bailment * * *. There is no foundation in this case for the application of the doctrine that common carriers and others under like duty to serve the public * * * cannot by any form of agreement secure exemption from liability for loss or damage caused by their own negligence. * * * Respondent had no exclusive privilege or monopoly * * *. There is nothing to suggest that the parties were not on equal footing or that they did not deal at arm's length.' 287 U.S. at page 294, 53 S.Ct. at page 136. 81 These considerations of policy are equally present here and call for the result reached in Sun Oil. 82 Nothing in the record hints at any inequality of bargaining power between the parties to this contract, nor is there any basis for taking judicial notice that the tug industry as an industry is in concentrated ownership.14 The towing service was here undertaken by a Government corporation. Certainly we cannot assume that the Government is exploiting the maritime services it is rendering in an unreasonable or coercive manner. Nor was it suggested that no tug company available for the services involved would consent to deletion of the exculpatory clause upon payment of a reasonable consideration. Nor are we informed as to whether such clauses were uniformly found in the standard contracts offered by tug companies in the locality. Had such uniformity of practice been shown, it would not necessarily reflect more than universal satisfaction with such an arrangement; it would hardly demonstrate need for judicial wardship. 83 The argument is made that permitting the parties to grant immunity to the tug will stimulate irresponsibility, or, at least, that it is necessary to force the tug to bear losses resulting from its negligence in order to provide an incentive to reasonable care. In the commercial setting of the towage industry this argument has little force, unless we are prepared also to forbid the tug to insure against such losses or liabilities. If not, then the question ultimately is whether public policy requires that the tug, rather than the tow, shall bear the cost of insurance. Indeed, in all likelihood, the economic burden will fall upon the tow in either case. In the absence of anything in the record, or any facts of which this Court may take judicial notice, that the tug has exploited an unfair bargaining position, there is no reason why the parties should not be free to distribute this cast as they see fit. 84 It is suggested that a distinction should be drawn between exemption of pilots from liability and exemption of towers. Reliance is placed on the unique position of pilots in the maritime world and the extensive regulation to which they are subjected: they are assimilated to public officers. If the pilotage involved in Sun Oil took place in the detailed regulatory context thus suggested, decision in this case should follow a fortiori from Sun Oil in allowing the agreement of the parties to stand. For quasi-public status and detailed regulation of the qualifications for, and manner of, doing business, with the limited competition which such regulation constrains, are characteristic of the public carrier. If the result in Sun Oil was reached despite similarities that brought the situation in proximity to decisions denying common carriers the right to contract against liability for negligence, the absence of these factors here emphasizes the applicability of the analysis of that case to the problem before us. 85 There is in each of these cases decided today a question of construction of the exculpatory clause. We have noted that the courts have wisely insisted on clear language to avoid the incidents which the law, apart from the voluntary arrangements of the parties, applies to the towage relationship. In the present case, the clause used seems proof against a construction which would exclude from its operation negligence of the tug. The clause provides that the service is to be done 'at the sole risk' of the tow, that the tug is not to be 'liable for any loss or damage * * * however occurring' and finally that the master and crew of the tug 'shall become and be the servants' of the tow whether or not the tow 'assists in the service in any way and irrespective of whether they be aboard * * * or in command' of the tow.15 86 The District Court held that, while the 'sole risk' clause did not sufficiently spell out an exemption from liability for negligence resulting in injury to the tow, the other clause, termed the 'pilotage clause,' did so. The Court of Appeals held that both reached the liability involved, citing the decision of the Second Circuit in The Oceanica. Whether or not the 'sole risk' phraseology is sufficiently different from that involved in The Steamer Syracuse ('risk') to justify construing it to avoid liability here, the declaration that the tug's personnel are to be considered the servants of the tow, read in context, does manifest an intention that the tug shall not be held liable for injury to the tow. Here the clause makes it clear that the tug's crew are to be regarded as the servants of the tow whether or not there is in fact any direction or control exercised by the tow. 87 I would affirm. 1 'It is unnecessary to consider the evidence relating to the alleged contract of towage, because, if it be true, as the appellant says, that, by special agreement, the canal-boat was being towed at her own risk, nevertheless, the steamer is liable, if, through the negligence of those in charge of her, the canal-boat has suffered loss. Although the policy of the law has not imposed on the towing boat the obligation resting on a common carrier, it does require on the part of the persons engaged in her management, the exercise of reasonable care, caution, and maritime skill, and if these are neglected, and disaster occurs, the towing boat must be visited with the consequences. It is admitted in the argument, and proved by the evidence, that the canal-boat was not to blame, and the inquiry, therefore, is, was the steamer equally without fault?' The Steamer Syracuse, 12 Wall. 167, 171, 20 L.Ed. 382. 2 See, e.g., Alaska Commercial Co. v. Williams, 9 Cir., 1904, 128 F. 362, 366; The Edmund L. Levy, 2 Cir., 1904, 128 F. 683, 684; The M.J. Cummings, D.C. 1883, 18 F. 178; The Jonty Jenks, D.C. 1893, 54 F. 1021, 1023; The Oceanica, D.C.W.D.N.Y.1906, 144 F. 301. See also cases collected in 54 A.L.R. 104, 243—257. 3 215 U.S. 599, 30 S.Ct. 400, 54 L.Ed.343. 4 See, e.g., Ten Eyck v. Director General of Railroads, 2 Cir., 1920, 267 F. 974; The Mercer, D.C.1926, 14 F.2d 488. 5 See Mylroie v. British Columbia Mills Tug & Barge Co., 9 Cir., 268 F. 449; Great Lakes Towing Co. v. American S.S. Co., 6 Cir., 165 F.2d 368; The Somers N. Smith, D.C.Me., 120 F. 569; The Monarch, D.C.N.D.Fla., 235 F. 795, 799; The Sea Lion, D.C.N.D.Cal., 12 F.2d 124; The Vim, D.C.R.I., 40 F.2d 638. See also Walter G. Hougland, Inc., v. Muscovalley, 6 Cir., 184 F.2d 530. Compare The Pacific Maru, D.C.S.D.Ga., 8 F.2d 166. 6 Officially reported as Compan ia de Navegacion Interior, S.A., v Fireman's Fund Ins. Co., 277 U.S. 66, 48 S.Ct. 459, 72 L.Ed. 787. 7 Supplemental Brief for Petitioner, pp. 9, 10, The Wash Gray, 277 U.S. 66, 48 S.Ct. 459, 72 L.Ed. 787. 8 See note 1, supra. 9 The same attitude was manifested by the rulings of those courts which imposed the strict liability of common carriers on tugs. See Smith v. Pierce, 1830, 1 La. 349, 350; Vanderslice v. The Superior, D.C.E.D.Pa.1850, 28 Fed.Cas. page 970, No. 16,843; White v. The Mary Ann, 1856, 6 Cal. 462; Ashmore v. Pennsylvania Steam Towing and Transportation Company, 1860, 28 N.J.L. 180; Wooden v. Austin, 1866, 51 Barb., N.Y., 9. As to liability of steamships generally see Butler v. Commonwealth of Pennsylvania, 10 How. 402, 416, 13 L.Ed. 472. 10 New York Central Railroad Co. v. Lockwood, 17 Wall. 357, 21 L.Ed. 627. See also Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788. 11 Southern Express Co. v. Caldwell, 21 Wall. 264, 269—270, 22 L.Ed. 556; see also Brown v. Postal Tel. Co., 111 N.C. 187, 16 S.E. 179, 17 L.R.A. 648. 12 'Such a bargain doubtless means something; but it is contrary to public policy to so construe a contract of that nature that the tower is allowed to go clear of all liability when it is shown that he has relaxed his faithfulness and duty in performing the service.' Ulrich v. The Sunbeam, 24 Fed.Cas. page 515, No. 14,329. See Note, 175 A.L.R. 8, 18. 13 Writers have differed as to the validity of such towage clauses. Of two leading authors on admiralty one regards the clauses as valid, 1 Benedict, Admiralty (6th ed. 1940), § 100, and the other regards them as invalid, saying 'Thus obliquely it seems to be settled that the contract exempting the tug from its negligence is not valid.' Robinson, Admiralty (1939), 672. 14 See cases collected in 175 A.L.R. 110—141; Willis, The Right of Bailees to Contract Against Liability for Negligence, 20 Harv.L.Rev. 297. 15 Duncan v. Thompson, 315 U.S. 1, 62 S.Ct. 422, 86 L.Ed. 575; Boyd v. Grand Trunk Western R. Co., 33, U.S. 263, 266, 70 S.Ct. 26, 27, 94 L.Ed. 55; see Beers, Contracts Exempting Employers from Liability for Negligence, 7 Yale L.J. 352. 16 See cases collected in 175 A.L.R. 38—74. 17 Id., 175 A.L.R. at pages 8—157. On the question of towage contracts exempting towers from negligence see note 2, supra, and cases collected in 54 A.L.R. 104. 18 Part III of the Interstate Commerce Act regulates tugs as common carriers under some circumstances and as contract carriers under others. 54 Stat. 929—952, 49 U.S.C. §§ 901—923, 49 U.S.C.A. §§ 901—923. See Cornell Steamboat Co. v. United States, 321 U.S. 634, 64 S.Ct. 768, 88 L.Ed. 978. Apart from statutes towboats sometimes operate in such way that they are held to be common carriers. See note 9, supra. And it is a long settled policy that common carriers cannot by contract escape all liability for their own negligence. See, e.g., Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 438—443, 9 S.Ct. 469, 470—473, 32 L.Ed. 788. An examination of the cases, however, discloses the difficulty of determining when a tug is or is not operating as a common carrier. 19 'The President Van Buren, 16 Aspinall's Maritime Cases, N.S., 444. A further illustration of the monopoly potential of the tug business is suggested in Boston Metals Co. v. The Winding Gulf, 349 U.S. 122, 75 S.Ct. 649. Petitioner in that case insisted before the Court of Appeals that if given an opportunity it could present evidence showing that when it executed the contract containing the proscribed clause with the Foundation Maritime of Canada that company had a virtual monopoly in all eastern Canadian seaports and that the petitioner's boat could not have been moved at all unless it agreed to the conditions forced on it in that contract. 20 The Second Circuit has taken this position. North River Barge Line v. Chile S.S. Co., 1954, 213 F.2d 882, 884. The Oceanica was adhered to, but apparently on slightly different grounds from those originally relied on. Holding a towage agreement for exemption from negligence valid, the court said, 'A contrary dictum in The (Steamer) Syracuse * * * was approved in (The Wash Gray). But we think that Sun Oil * * * is to be taken as, in effect, accepting the doctrine of The Oceanica.' 21 "When the captain of any tug engaged in the services of towing a vessel which is making use of her own propelling power goes on board said vessel, it is understood and agreed that said tugboat captain becomes the servant of the owners in respect to the giving of orders to any of the tugs engaged in the towage service and in respect to the handling of such vessel, and neither the tugs nor their owners or agents shall be liable for any damage resulting thereform." 287 U.S., at pages 292—293, 53 S.Ct. 136. 22 2 Cir., 55 F.2d 63. 23 See, e.g., R.S. §§ 4235—4237, 4442, 4444, 46 U.S.C. §§ 211—215, 46 U.S.C.A. §§ 211—215; 40 Stat. 549, 46 U.S.C. § 223, 46 U.S.C.A. § 223; R.S. § 4439, 46 U.S.C. § 226, 46 U.S.C.A. § 226; R.S. §§ 4449, 4450, as amended, 46 U.S.C. §§ 239, 240, 46 U.S.C.A. §§ 239, 240; McKinney's N.Y.Consol.Laws, Navigation Law, c. 37, §§ 41, 64, 87—98, Penal Law, c. 40, §§ 1501, 1913, 1961, Lien Law, c. 33, § 80; Kotch v. Board of River Port Pilot Com'rs for Port of New Orleans, 330 U.S. 552, 557—564, 67 S.Ct. 910, 912—916, 91 L.Ed. 1093; Cooley v. Board of Wardens of Port of Philadelphia, to Use of Soc. for Relief of Distressed Pilots, Their Widows and Children, 12 How. 299, 13 L.Ed. 996. 24 Ibid. See also The China, 7 Wall. 53, 19 L.Ed. 67; The Eugene F. Moran, 212 U.S. 466, 29 S.Ct. 339, 53 L.Ed. 600; Smith v. Pierce, 1830, 1 La. 349, 350, 357—358. 25 See The Adriatic, 30 T.L.R. 699; compare The President Van Buren, 16 Aspinall's Maritime Cases, N.S., 444. 1 Aspects of the economics of the tugboat industry in New York Harbor are shown in Harbor Fleet, 27 Fortune 99 (May, 1943); Docking Leviathans in the World's Busiest Harbor, 75 Travel 4 (June, 1940); Friendly Ushers of New York Harbor, Christian Science Monitor Magazine Section, July 14, 1937, p. 8; Tugging in the Big Time, Saturday Evening Post, Mar. 24, 1945, p. 26; Admiral Moran's Private Navy, Collier's, Jan. 15, 1949, p. 9; Earnings on Tugboats and Barges in New York Harbor, Jan. 1945, 61 Monthly Labor Review 1192. For an English historical account see Bowen, A Hundred Years of Towage (1933). 2 If they are common carriers, they may be subject to pervasive regulation by the Interstate Commerce Commission under Part III of the Interstate Commerce Act, 54 Stat. 898, 929, 49 U.S.C. §§ 901, 905, et seq., 49 U.S.C.A. §§ 901, 905 et seq., as Cornell Steamboat Co. v. United States, supra, held. If they are contract carriers, certain of their activities may likewise be subject to regulation under that Act. See, for example, 49 U.S.C. §§ 906(e), 907 (i), 913—917, 49 U.S.C.A. §§ 906(e), 907 (i), 913 917. 3 Available statistics of the tugboat industry do not show the breakdown, port by port, between common carriers and contract carriers. Nor do they show how many of the contract carriers are 'captive' carriers, servicing one company. Nor do they give a picture of the competitive or monopolistic conditions prevailing in the various ports. We would need an economic brief to enlighten us, if we were to undertake to reformulate the established rule. 1 It is significant that the only contractual dispute in the case related to whether or not this receipt formed a part of the contract between the parties. See 12 Wall. at page 169, 20 L.Ed. 382. It is to this dispute that the Court directed itself in its opening statement that it was 'unnecessary to consider the evidence relating to the alleged contract of towage.' Apparently this clause was designed to prevent a tug from being held to a standard stricter than that of ordinary care, which libellant argued should be imposed if the receipt was not a part of the contract. Cf. Note 3, infra. 2 See also New York Central R. Co. v. The Talisman, 288 U.S. 239, 242, 53 S.Ct. 328, 329, 77 L.Ed. 721, stating the determinative facts of the Sun Oil case to be that 'the towage company was not bound to render the service there involved and was not a common carrier or liable as such. That case, and the cases cited which arose under contracts for towage, plainly have no application * * *.' 3 The Court of Appeals did not there purport to differ with any decision of this Court on the question of validity of exculpatory towage clauses. It said of The Steamer Syracuse: 'The learned judge must have meant that an agreement by the tow to tow at her own risk should not be construed to cover the tug's negligence.' 170 F. at page 895. The Court of Appeals felt justified in reaching a different construction of a similar agreement because it had become clear that a tug is not in relation to the tow a common carrier and thus, the court reasoned, no risk could now be referred to by such clauses except the tug's negligence. The discussion of the majority related entirely to construction, not to validity. The later statement on rehearing 'We do appreciate keenly that the decision of the majority of the court as to the right of a tug to contract against her own negligence is a departure from previous decisions. The question should, and we hope will, be set at rest in this case by the Supreme Court', 170 F. at page 900—must either inaccurately express the meaning of the court or refer to the fact that at that time the cautions constructional approach of the lower federal courts had produced no affirmance of the validity of such clauses and one decision which, upon an analogy since discredited, had declared them invalid. See note 11, infra. 4 209 F.2d 410, reversed 349 U.S. 122, 75 S.Ct. 649. In the course of its opinion, the Court of Appeals stated: 'We are not called upon to decide whether the owner of a tug or the tug itself, which is operating under a contract containing the standard towing conditions, may ever escape liability to a third party for injuries caused by its negligence.' 209 F.2d at page 414. In context, however, it is clear that this merely amounts to a reservation of the question whether the third party's right to sue the tug was affected by the pilotage clause. In permitting the third party to recover directly from the tow owner by virtue of the clause, the Fourth Circuit necessarily affirmed the right of the tug to shift the burden of liability to the tow. 5 The clause involved stated: 'When a vessel is towed or pushed stern first by one tug, the service will be under the control and direction of the master of the vessel so assisted, and the tug will not be liable for any damages that may be sustained or caused * * *.' The tug in this case had been engaged in pushing a steamer stern first away from its pier when the bow of the steamer struck the dock. The Court of Appeals held the quoted clause inapplicable because in fact the tug had not been operating under the control and direction of the master of the steamer. No question of the validity of an exculpatory clause was involved. 6 A clause substantially similar to that involved in the earlier Great Lakes case, supra, note 5, was likewise construed to be inapplicable on the ground that the tug had been operating independently of any direction from the tow at the time of the accident. In the course of the opinion the court stated: 'Were we therefore compelled to decide the case upon the validity of paragraph 17, it might seem to us that decision must be controlled by the doctrine of The (Steamer) Syracuse, whatever might be our own views of the principle or its applicability to the present case. A narrower ground for decision, however, appears.' 165 F.2d at page 371. 7 This case involved, apparently, towage under a clause similar to that considered in The Steamer Syracuse, stating that the service was to be performed 'at the owner's risk.' It was contended that this clause relieved the tug from liability for loss of one of the towed vessels which sank in the wake of a larger vessel. The court merely stated: 'This contention cannot be sustained under the authorities,' 184 F.2d at page 531, citing The Steamer Syracuse and The Wash Gray without indicating that they involved more than construction of similar clauses. 8 '* * * The exceptions therein expressed extend only to dangers of fire and navigation * * * and they apply only to the barge, and not to the tug * * *. No tug was referred to in connection with the contract of transportation. The exemption clause, therefore, does not excuse negligent towage. The Steamer Syracuse, 12 Wall. 167, 20 L.Ed. 382 * * * Alaska Commercial Co. v. Williams * * * Mylroie v. British Columbia Mills Tug & Barge Co. * * *. 'The appellant cites The Oceanica * * * (there the Second Circuit), while accepting the rule that a contract will not be construed to cover the carrier's negligence, unless the intention to do so is expressly stated, held, one judge dissenting, that a tug, being only liable for negligence, if the tow agrees to assume all risks, no risks can be meant, except * * * the consequences of her own negligence. * * * We think that it is a departure from the principles announced in the decisions of the Supreme Court which we have cited. It may be said, by way of distinguishing * * * The Oceanica * * * that the court found in the terms thereof an intention of the contracting parties to absolve the tug from the consequences of its own negligence, whereas, in the case at bar, the contract is wholly between a shipper of cargo and the owner of the barge * * *.' 3 F.2d at page 761. 9 Compare Petterson Lighterage & Towing Corp. v. The J. Raymond Russell, D.C., 87 F.Supp. 467 (viewing The Oceanica as having been overruled by The Wash Gray), with The Primrose, D.C., 3 F.Supp. 267, and The John J. Feeney, D.C., 3 F.Supp. 270 (viewing exculpatory clauses as valid). The Court of Appeals has, however, consistently held to the views enunciated in The Oceanica and has resolved all such conflicts in favor of the validity of exculpatory towage clauses. That decision was a departure from its earlier narrow construction of exculpatory towage clauses, see The Edmund L. Levy, 2 Cir., 128 F. 683; The Syracuse, 23 Fed.Cas. page 593, No. 13,717, affirmed 12 Wall. 167, 20 L.Ed. 382, but now from any decision turning upon validity. 10 Of course there may be instances where, because of the mode and circumstances of operation, or for purposes of regulatory statutes, towage may be held to involve common carriage. See Cornell Steamboat Co. v. United States, 321 U.S. 634, 64 S.Ct. 768, 88 L.Ed. 978. 11 Among the cases cited for the proposition that such clauses are invalid, one, The Rescue, D.C.W.D.Pa., 24 F. 190, may so hold, but if so on the theory that towage is equivalent to common carriage, a view not now tenable. Two others, The Monarch, D.C.N.D.Fla., 235 F. 795, 799, and The Sea Lion, D.C.N.D.Cal., 12 F.2d 124, 126, contain dicta to the effect that such clauses are invalid. In both cases, however, it was held that the tug was not negligent and the libels were dismissed. Contrary dicta are found in four other cases. The Pacific Maru, D.C.S.D.Ga., 8 F.2d 166, 170—173; Compania de Navegacion, Interior, S.A., v. Fireman's Fund Ins. Co., D.C., 14 F.2d 196, 200, affirmed 277 U.S. 66, 48 S.Ct. 459, 72 L.Ed. 787; Mengel Co. v. Inland Waterways Corp., 34 F.Supp. 685, 690—692; Compania de Navegacion Cristobal, S.A. v. The Lisa R., 116 F.Supp. 560, 561 (all D.C.E.D.La.). All other cases do not expressly go further than to determine that the clause involved did not, as a matter of construction, operate to relieve the tug from liability for the particular negligence involved. These include The Somers N. Smith, D.C.Me., 120 F. 569; The Vim, D.C.R.I., 40 F.2d 638; The M. J. Cummings, D.C.N.D.N.Y., 18 F. 178; The Jonty Jenks, D.C.N.D.N.Y., 54 F. 1021; The Oceanica, D.C.W.D.N.Y., 144 F. 301, reversed 2 Cir., 170 F. 893; Ulrich v. The Sunbeam, D.C.N.J., 24 Fed.Cas., page 515, No. 14,329; Vanderslice v. The Superior, D.C.E.D.Pa., 28 Fed.Cas., page 970, No. 16,843; The Skagway, D.C.W.D.Wash., 1925 Am.Mar.Cas. 1133. 12 English law recognizes the validity of tug-tow contracts releasing the tug from liability for its own negligence. E.g., The Albion, (1953) 2 All Eng. 679 (C.A.); The Ramsden, (1943) P.D. 46; The Tasmania, 13 P.D. 110; The United Service, 9 P.D. 3; The President Van Buren, 16 Aspinall's Rep. (N.S.) 444; see Marsden, Collisions at Sea, 10th ed. 1953, p. 216. Just as has been true of decisions in this country, however, specific language directed at liability for negligence must be used. Thus, where the contract merely stated 'all transporting to be at owners' risk,' the tower was held liable. The phrase was interpreted merely to mean that if the tug exercised reasonable care and skill the tow would incur the risks incidental to navigation. The Forfarshire, (1908) P.D. 339; see also, The West Cock, (1911) P.D. 208 (C.A.). The parallel to The Steamer Syracuse and The Wash Gray requires no elaboration. 13 1 Benedict on Admiralty (5th ed. 1925), p. 167, asserts that a 'towage contractor * * * may by contract limit or disclaim liability for negligence.' Griffin, American Law of Collision (1949), pp. 462—466, after detailed examination of the cases, concludes that the apparent conflict is over construction rather than validity. Robinson on Admiralty (1939), pp. 670—673, suggests that The Wash Gray seems 'obliquely' to indicate a contrary rule, but juxtaposes the Sun Oil case without resolution of its inconsistency with such a view of The Wash Gray. The leading encyclopedias of American case law note an apparent conflict among the circuits on the question of validity of the tug-tow exculpatory contracts. They do not suggest that there is controlling authority in this Court, and tend to support the validity of such exemption. 86 C.J.S., Towage, § 75, page 1038 (1954) ('It has been judicially noted that the apparent conflict in authority may arise from failure to use sufficiently unequivocal language in the release clause.'); 63 Corpus Juris (1933) 60, § 136 ('it has been said that such question has not yet been authoritatively determined.'); 48 American Jurisprudence (1943) 346, § 508. ('Although there are some holdings to the contrary, the weight of judicial opinion seems to favor the view that it is competent for a tower, by a stipulation assented to by the tow, to exempt itself from liability for loss or injury caused by its own negligence.'). 14 There exists no comprehensive study of the towing industry directed to the considerations important in determining whether or not it is characterized by monopolistic tendencies or inequalities of bargaining power. However, a study of transportation lines in the United States prepared by the Corps of Engineers, United States Army, lists more than 950 concerns which are described as engaging in towing operations of general or specialized character throughout the United States. See Transportation Lines on the Great Lakes System, 1955 (Transportation Series 3); Transportation Lines on the Mississippi River System and the Gulf Intracoastal Waterway, 1954 (Transportation Series 4); Transportation Lines on the Atlantic, Gulf, and Pacific Coasts, 1954 (Transportation Series 5). In addition, there are numerous towing concerns which operate within a single port not listed in these studies but shown in individual studies of specific ports. Port Series Reports, prepared by the Board of Engineers for Rivers and Harbors. These sources reveal that more than 140 concerns were engaged in towing petroleum products on the Mississippi and Illinois Rivers, or general towage operations on these rivers, which is the service involved in this case. It is impossible to tell how many of these concerns would have been available to petitioner for the services which the Federal Barge Lines rendered. But these rough figures carry no suggestion of the factors which have in the past led us to invalidate clauses relieving from liability for negligence, for they certainly do not warrant an assumption that towage enjoys a monopolistic or comparable economically coercive position. 15 The clause states in full: '(4) The movement contemplated will be done at the sole risk of the 'craft to be towed' and its cargo and neither the boats and/or any other equipment used in said service nor the owner, charterer, or hirer thereof shall be liable for any loss or damage to the 'craft to be towed' or its cargo nor for any damage done by the 'craft to be towed,' however occurring. The masters and crews and employees of all boats and/or other equipment assisting the 'craft to be towed' shall, in the performance of said service, become and be the servants of the 'craft to be towed,' regardless of whether the 'craft to be towed' assists in the service in any way and irrespective of whether they be aboard the 'craft to be towed' or in command thereof. Nothing herein contained, however, shall be construed as making the 'craft to be towed,' its owners, charterers or operators liable or responsible for loss of or damage to the property of Federal Barge Lines or third parties or for loss of life or personal injury for which the 'craft to be towed' its owners, charterers or operators would not otherwise be liable or responsible. '(5) 'Owner' agrees to indemnify and hold harmless Federal Barge Lines from any liability to or for account of the crew of the 'craft to be towed' because of any accident, damage, injury or loss of life to the said crew, or any loss of personal property or effects of the said crew, however arising, and the 'owner' agrees to defend any and all suits or other actions which may be brought against Federal Barge Lines by or for account of the members of such crews for the reasons aforesaid, and to pay, satisfy, or discharge any and all judgments that may be rendered therein, to the full acquittance and discharge of Federal Barge Lines.'

78

349 U.S. 143 75 S.Ct. 607 99 L.Ed. 950 SOCIETY FOR SAVINGS IN THE CITY OF CLEVELAND, OHIO, Petitioner,v.Stanley J. BOWERS, Tax Commissioner of Ohio. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF WARREN, OHIO, Petitioner, v. Stanley J. BOWERS, Tax Commissioner of Ohio. Nos. 204, 220. Argued March 28, 1955. Decided May 16, 1955. Mr. Robert F. Maskey, Cleveland, Ohio, for appellant Society for Savings in City of Cleveland. Mr. Robert G. Day, Warren, Ohio, for appellant First Fed. Savings and Loan Assn. Mr. Joseph S. Gill, Columbus, Ohio, for appellee. Mr. Justice HARLAN delivered the opinion of the Court. 1 In 1829 this Court decided in Weston v. City Council of Charleston, 2 Pet. 449, 7 L.Ed. 481, that obligations of the Federal Government are immune from state taxation. This rule, aimed at protecting the borrowing power of the United States from state encroachment, was derived from the 'Borrowing' and 'Supremacy' Clauses of the Constitution,1 and the constitutional doctrines announced in McCulloch v. State of Maryland, 1819, 4 Wheat. 316, 4 L.Ed. 579. It was subsequently embodied in a succession of federal statutes, the existing statute being R.S. § 3701, 31 U.S.C. § 742, 31 U.S.C.A. § 742.2 The rule has been carried forward to embrace indirect taxation of such obligations through their inclusion in a tax imposed on all the property of a taxpayer. It is quite immaterial that the state tax does not discriminate against the federal obligations. People of State of New York ex rel. Bank of Commerce v. Commissioners of Taxes of New York City, 1863, 2 Black 620, 17 L.Ed. 451; In re Bank Tax Case, 1865, 2 Wall. 200, 17 L.Ed. 793; Farmers and Mechanics Savings Bank of Minneapolis v. State of Minnesota, 1914, 232 U.S. 516, 34 S.Ct. 354, 58 L.Ed. 706; New Jersey Realty Title Ins. Co. v. Division of Tax Appeals, 1950, 338 U.S. 665, 70 S.Ct. 413, 94 L.Ed. 439. 2 The two cases now before us involve the application of that rule, in a somewhat novel situation. Society for Savings in the City of Cleveland and First Federal Savings and Loan Association of Warren,3 two mutual savings banks having no capital stock or shareholders, and located in Ohio, attack the validity of an Ohio property tax, as assessed against them, on the ground that they were required to include in the property values upon which the tax was computed United States bonds held in their security portfolios. Had these bonds been excluded, the entire tax would have been wiped out in both instances.4 The Ohio Tax Commissioner thought these government bonds were not excludable. The Ohio Board of Tax Appeals reversed. The Supreme Court of Ohio sustained the Commissioner in each instance. The two banks are here by appeal from the judgment of the Ohio Supreme Court in each case.5 The cases were argued together, and are so treated in this opinion. 3 The tax in question was assessed in the names of these banks under §§ 5408, 5412 and 5638—1 of the Ohio General Code,6 upon the book value of their 'capital employed, or the property representing it', § 5408, 'at the aggregate amount of the capital, the surplus or reserve fund and the undivided profits', § 5412. The tax was at the rate of two mills on the dollar, § 5638—1. No claim is made that the taxes constituted a franchise tax or some other kind of privilege tax. Cf. Educational Films Corp. of America v. Ward, 1931, 282 U.S. 379, 51 S.Ct. 170, 75 L.Ed. 400. 4 The Supreme Court of Ohio recognized that this tax, based as it was upon the inclusion of federal obligations, would have to fall if directed against the banks. New York ex rel. Bank of Commerce v. Commissioners of Texas, supra; Bank Tax Case, supra. This tax, though, was not considered to be against the banks. Holding that the depositors of a mutual savings bank have an interest similar to that of shareholders of other banks, the Ohio court found instead that the tax was imposed upon the 'intangible property interests' (161 Ohio St. 122, 118 N.E.2d 661) of the depositors as the owners of each bank. The banks' capital, surplus fund and undivided profits, which we will refer to as their surplus, were regarded as not themselves the subject matter of the tax, but as simply the measure of the tax against the depositors, and the banks were treated as tax-collecting agents rather than as taxpayers. 5 In so deciding the Ohio court relied upon a gloss on the rule of immunity stated above. It has been held that a state may impose a tax upon the stockholders' interests in a corporation, measured by corporate asset values, without making any deduction on account of United States securities held by the corporation. This doctrine had its origin in cases involving national bank stock. There, congressional consent to state taxation of the stock of national banks, upon certain conditions, was held, over strong dissent, to permit such taxes to be assessed without the exclusion of federal obligations owned by the banks. Van Allen v. Assessors, 1866, 3 Wall. 573, 18 L.Ed. 229; National Bank v. Commonwealth of Kentucky, 1870, 9 Wall. 353, 19 L.Ed. 701; Des Moines National Bank v. Fairweather, 1923, 263 U.S. 103, 44 S.Ct. 23, 68 L.Ed. 191. This result was reached in part on the theory that the stockholders' interests in a corporation represent a separate property interest from the corporation's ownership of its assets, so that a tax on the stockholders' interests is not a tax on the federal obligations which are included in the corporate property. This rationale has been carried over to cases involving stock of state-created banks, and thus a tax on their shareholders, though measured by corporate assets which include federal obligations, is held not to offend the rule immunizing such obligations from state taxation. Cleveland Trust Co. v. Lander, 1902, 184 U.S. 111, 22 S.Ct. 394, 46 L.Ed. 456. Further, in levying a tax on shareholders, a state may require its payment by the corporation, as a collecting agent. Corry v. Baltimore, 1905, 196 U.S. 466, 25 S.Ct. 297, 49 L.Ed. 556. The result is that when, as is usually the case, the shareholder tax is measured solely by corporate asset values, such a tax is difficult to distinguish from a tax imposed upon the corporation itself, so far as the practical impact of the two types of taxes upon corporate-owned federal obligations is concerned. Nevertheless, this exception to the general rule of immunity is firmly embedded in the law. 6 The focal point of these appeals is thus whether we are to regard this tax as imposed on the banks or, as the Ohio court held the legislature intended, on their depositors. Were we free to construe Ohio's statute de novo we might have difficulty in reaching the conclusion which the Ohio court did. Suffice it to say at this point: The statute is barren of any language expressly imposing this tax on the depositors, and contains no provision giving the bank any right to recover the tax from the depositors, as might be expected if the bank had been regarded as a mere tax-collecting agent. By contrast, the taxes laid by the Ohio General Code on (a) the shares of incorporated financial institutions whose capital is divided into shares, (b) the shares of unincorporated institutions whose capital is divided into shares, and (c) deposits, are imposed on the shares 'of the stockholders', § 5408, and on the deposits 'as taxable property of its depositors'. § 5673—2.7 In the case of those taxes, not here involved, the bank is given full rights of reimbursement from the stockholders or depositors, as the case may be, and it is clear that the institution in paying such taxes is acting only as a collection agent. Ohio Gen.Code §§ 5672, 5673, 5673—1, 5673—2.8 7 And beyond these considerations, one might not have expected the legislature to tax the ownership interests of the depositors of these banks on the same basis as stockholders are taxed. The asserted interest of the depositors is in the surplus of the bank, which is primarily a reserve against losses and secondarily a repository of undivided earnings. So long as the bank remains solvent, depositors receive a return on this fund only as an element of the interest paid on their deposits. To maintain their intangible ownership interest, they must maintain their deposits. If a depositor withdraws from the bank, he receives only his deposits and interest. If he continues, his only chance of getting anything more would be in the unlikely event of a solvent liquidation, a possibility that hardly rises to the level of an expectancy. It stretches the imagination very far to attribute any real value to such a remote contingency, and when coupled with the fact that it represents nothing which the depositor can readily transfer, any theoretical value reduces almost to the vanishing point. Cf. Collett v. Springfield Savings Society, 13 Ohio Cir.Ct.Rep. 131, affirmed, 1897, 56 Ohio St. 776, 49 N.E. 1109. 8 The Ohio court, however, has held that this tax is imposed on the depositors.9 But that does not end the matter for us. We must judge the true nature of this tax in terms of the rights and liabilities which the statute, as construed, creates. In assessing the validity of the tax under federal law, we are not bound by the state's conclusion that the tax is imposed on the depositors, even though we would be bound by the state court's decision as to what rights and liabilities this statute establishes under state law. The court's mere conclusion that the tax is imposed on the depositors is no more than a characterization of the tax. 'Where a federal right is concerned we are not bound by the characterization given to a state tax by state courts or Legislatures, or relieved by it from the duty of considering the real nature of the tax and its effect upon the federal right asserted. Carpenter v. Shaw, 1930, 280 U.S. 363, 367, 50 S.Ct. 121, 123, 74 L.Ed. 478. See also New Jersey Realty Title Ins. Co. v. Division of Tax Appeals, supra, 338 U.S. at page 674, 70 S.Ct. at page 418; Educational Films Corp. v. Ward, supra, 282 U.S. at page 387, 51 S.Ct. at page 171. 'Neither ingenuity in calculation nor form of words in state enactments can deprive the owner of the tax exemption established for the benefit of the United States.' Missouri ex rel. Missouri Ins. Co. v. Gehner, 1930, 281 U.S. 313, 321, 50 S.Ct. 326, 328, 74 L.Ed. 870. Therefore, we proceed to examine what rights and liabilities the statute creates. 9 We note, first, that should the bank be unable to pay the tax, after it has been assessed, there is no provision entitling the State of Ohio to collect it from the depositors. A tax against the depositors which is recoverable only from the bank looks like a tax against the bank. And if the tax is in fact against the bank, it does not matter whether the ultimate economic impact is passed on to the depositors. Home Savings Bank v. City of Des Moines, 1907, 205 U.S. 503, 519, 27 S.Ct. 571, 576, 51 L.Ed. 901. 10 Next, it appears that the statute does not relieve the bank from having to pay the tax on the 'intangible property interest' of a depositor who had an account with the bank on the assessment date of the tax, but has withdrawn his account before the collection date. And if the bank is required to pay on the former depositor's account, there is no provision entitling the bank to reimbursement from him. It should be observed that in the case of the deposit tax the statute does contain provisions protecting the bank in such a situation. §§ 5412, 5673—1, 5673—2.10 11 Finally, and perhaps most important, if this tax is on the depositors, we must find somewhere a right in the bank to make itself whole from the depositors for the taxes paid on their account. In all the cases upholding state taxes against shareholders, without the exclusion of federal obligations owned by the corporation, an express or implied right of reimbursement was presupposed. See Van Allen and other cases 75 S.Ct. at page 610, supra. As already observed, in the case of the Ohio taxes on shares and deposits the statute contains such a right, §§ 5673, 5673—2.11 In the present cases we can find no such right. It may be true that where the tax paid by the bank is less than the interest which the bank contemplates paying the depositors, no such right of reimbursement is necessary. If, for example, a bank has $100,000 of undivided profits, intends to pay its depositors $75,000 interest on their deposits, and has an obligation for this tax of $10,000, it perhaps makes no difference whether the bank pays $65,000 to its depositors, without recovering anything back from them, or pays them $75,000, but later recovers back the $10,000 tax paid for their account. Under either method the bank comes out whole, and the depositors receive the same net interest payment.12 But if the bank has declared the $75,000 interest payment before the tax is due, we can find nothing in the statute which would give the bank the right either to deduct the $10,000 tax from the interest payment, or to recover it back from the depositors. And conceivably the tax might exceed the interest payable to the depositors, in which event the bank would be left short, absent a right to recover the excess from the depositors. 12 The Ohio court thought that in charging the tax to surplus, the bank in reality would be reducing the depositors' interest in the surplus, which it described as being 'owned' by them, and that therefore in no circumstance was a right of reimbursement necessary. But there are difficulties with this proposition. If this means that the corporate fiction should be disregarded, the result would be that the government bonds would have to be excluded, since on this hypothesis such securities should then be treated as the property of the depositors. On the other hand, if the Ohio court was referring to the depositors' equitable interest in the surplus, as seems more likely, then without a right of recoupment the bank as well as the depositors bears the impact of the tax. 13 Without provisions protecting the bank against the burdens of the tax, we cannot assume that the statute's operation will not infringe on the immunity of the federal obligations held by the banks. It is not adequate merely to suggest that a bank may be entitled to make itself whole from the depositors under Ohio common law. For no such common-law right has been called to our attention. Rather, the Ohio court's opinion indicates that the bank may be left without any right of reimbursement.13 14 We conclude that this tax is on the depositors in name only, and that for federal purposes it must be held to be on the banks themselves. Accordingly, the judgments in both cases are reversed. 15 Reversed. 16 Mr. Justice BURTON took no part in the consideration or decision of these cases. 1 Art. I, § 8, cl. 2; Art. VI, cl. 2. 2 'Except as otherwise provided by law, all stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local authority.' 3 Society for Savings was incorporated under Ohio law, and First Federal under the Home Owners' Loan Act of 1933, as amended, 48 Stat. 128, 12 U.S.C. § 1461 et seq., 12 U.S.C.A. § 1461 et seq. Nothing turns here on the difference in their origins. 4 In the view we take of this case, it is unnecessary to consider the taxable status of certain Federal Home Loan Bank stock owned by First Federal, which is also claimed to be exempt. 5 1954, 161 Ohio St. 122, 118 N.E.2d 651; 161 Ohio St. 149, 118 N.E.2d 667. We noted probable jurisdiction, 348 U.S. 807, 75 S.Ct. 49. 6 'Sec. 5408. * * * All the shares of the stockholders in a financial institution, located in this state, incorporated or organized under the laws of the state or of the United States, the capital stock of which is divided into shares, excepting such as are defined as 'deposits' in section 5324 of the General Code, and all the shares of the stockholders in an unincorporated financial institution, located in this state, the capital stock of which is divided into shares held by the owners of such financial institution, and the capital employed, or the property representing it, in a financial institution the capital of which is not divided into shares, or which has no capital stock, located in this state, shall be listed and assessed at the book value thereof, and taxed in the manner provided in this chapter.' 'Sec. 5412. * * * Upon receiving such report the tax commissioner shall ascertain and assess all the taxable shares of such financial institution, or the value of the property representing the capital employed by such financial institution, not divided into shares, at the aggregate amount of the capital, the surplus or reserve fund and the undivided profits as shown in such report, and the amount of taxable deposits of such institution in each county in which the institution maintained an office or offices for the receipt of deposits. Such amounts shall be assessed in the name of such financial institution excepting that the amounts of the taxable deposits wholly withdrawn from each such institution within the times mentioned in section 5411—2 of the General Code and separately set forth in such report shall be subtracted from the amount of taxable deposits so assessed and separately assessed in the names of such respective depositors. In the case of an incorporated financial institution all of whose shares constitute deposits as defined in section 5324 of the General Code such assessment of shares shall exclude the capital stock thereof as so shown but shall include the surplus or reserve and undivided profits so shown.' 'Sec. 5638—1. Annual taxes are hereby levied on the kinds and classes of intangible property, hereinafter enumerated, on the intangible property tax list in the office of the auditor of state and duplicate thereof in the office of treasurer of state at the following rates, to wit: * * * deposits, two mills on the dollar; shares in and capital employed by financial institutions, two mills on the dollar; * * *.' 7 See note 8, 75 S.Ct. at pages 610, 611, infra. 8 'Sec. 5672. * * * Taxes assessed on nonwithdrawable shares of stock, of a financial institution, shall be a lien on such shares from the first day of January in each year until they are paid. 'It shall be the duty of every financial institution to collect the taxes due upon its shares of stock from the several owners of such shares, and to pay the same to the treasurer of state and any financial institution failing to pay the said taxes as herein provided, shall be liable by way of penalty for the gross amount of the taxes due from all the owners of the shares of stock, and for an additional amount of one hundred dollars for every day of delay in the payment of said taxes.' 'Sec. 5673. * * * Such financial institution paying to the treasurer of state the taxes assessed upon its shares, in the hands of its shareholders respectively, as provided in the next preceding section, may deduct the amount thereof from dividends that are due or thereafter become due on such shares, and shall have a lien upon the shares of stock and on all funds in its possession belonging to such shareholders, or which may at any time come into its possession, for reimbursement of the taxes so paid on account of the several shareholders, with legal interest; and such lien may be enforced in any appropriate manner.' 'Sec. 5673—1. * * * Taxes assessed on deposits in a financial institution in this state shall be a lien on the deposit of each person as of the day fixed by the tax commission of Ohio for the listing of such deposits. Taxes assessed on the shares of stock of such an institution, all of whose shares are withdrawable and defined as deposits in chapter four of this title, shall be a lien on such shares so defined as deposits as of the day so fixed. It shall be the duty of every financial institution to pay the taxes on the amount of such deposits and/or withdrawable shares assessed in its name to the treasurer of state and any such institution failing to pay such taxes as herein provided shall be liable by way of penalty for the gross amount of the taxes due on and with respect to all its deposits and withdrawable shares assessed in its name and for an additional amount of one hundred dollars for every day of delay in the payment of such taxes.' 'Sec. 5673—2. * * * A financial institution so required to pay to the treasurer of state the taxes assessed upon its deposit accounts, as taxable property of its depositors, and/or upon its withdrawable shares as taxable property of its shareholders respectively, as provided in the next preceding section, may, upon receipt of notice of the day fixed for the listing of such deposits, charge the amount thereof to and deduct the same from the deposit of each depositor, or from the interest that is due or thereafter becomes due thereon, or from the dividends that are due or thereafter become due thereon, as the case may be, and shall have a lien upon such deposit, interest and/or dividends and on all funds in its possession belonging to such depositor or shareholder, or which may at any time come into its possession, for reimbursement of the taxes so payable, with legal interest. Such lien may be enforced in any appropriate manner at any time within six months after the payment of the taxes to the treasurer.' 9 As construed by the state court, the 'intangible property tax' on depositors applied to different property than did the 'deposit' tax also imposed on them, involving, as we see it, no question of duplication or overlapping between the two taxes. 10 Section 5412 provides in part: 'Upon receiving such report the tax commissioner shall ascertain and assess * * * the amount of taxable deposits of such institution in each county in which the institution maintained an office or offices for the receipt of deposits. Such amounts shall be assessed in the name of such financial institution excepting that the amounts of the taxable deposits wholly withdrawn from each such institution within the times mentioned in section 5411—2 of the General Code (That is, between the date of assessment and the bank's receipt of the notice of such date, or if no notice is received, the next January 1.) and separately set forth in such report shall be subtracted from the amount of taxable deposits so assessed and separately assessed in the names of such respective depositors.' For §§ 5673—1 and 5673—2, see note 8, 75 S.Ct. at pages 610, 611, supra. 11 See note 8, 75 S.Ct. at pages 610, 611, supra. 12 Even so, if a comparable situation arose in connection with the tax on shareholders, the bank would have a right of reimbursement under the provisions of the Ohio statute. See note 8, 75 S.Ct. at pages 610, 611, supra. 13 The Ohio court stated: 'In our opinion, such a provision (an express right of reimbursement) is not necessary to enable such a financial institution to secure such reimbursement.' 161 Ohio St. at page 136, 118 N.E.2d at page 659. It is clear that by this statement the court did not mean that an implied right of reimbursement existed under Ohio law, for it then went on to hold that 'the financial institution, which pays the tax on (the depositors') property interests in the corporation, will always be able to reimburse itself by reducing the ultimate value of the property interests of those who are the only ones who can have any claim to benefit from the ownership interests taxed.' Id., 161 Ohio St. at page 137, 118 N.E.2d at pages 659—660. This is of course not reimbursement in any proper sense of the term.

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349 U.S. 133 75 S.Ct. 623 99 L.Ed. 942 In the Matters of Lee Roy MURCHISON and John White, Petitioners. No. 405. Argued April 20, 1955. Decided May 16, 1955. Mr. William L. Colden, Detroit, Mich., for petitioner. Mr. Edmund E. Shepherd, Lansing, Mich., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 Michigan law authorizes any judge of its courts of record to act as a so-called 'one-man grand jury.'1 He can compel witnesses to appear before him in secret to testify about suspected crimes. We have previously held that such a Michigan 'judge-grand jury' cannot consistently with the Due Process Clause of the Fourteenth Amendment summarily convict a witness of contempt for conduct in the secret hearings. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682. We held that before such a conviction could stand, due process requires as a minimum that an accused be given a public trial after reasonable notice of the charges, have a right to examine witnesses against him, call witnesses on his own behalf, and be represented by counsel. The question now before us is whether a contempt proceeding conducted in accordance with these standards complies with the due process requirement of an impartial tribunal where the same judge presiding at the contempt hearing had also served as the 'one-man grand jury' out of which the contempt charges arose. This does not involve, of course, the longexercised power of courts summarily to punish certain conduct occurring in open court.2 2 The petitioners, Murchison and White, were called as witnesses before a 'one-man judge-grand jury.' Murchison, a Detroit policeman, was interrogated at length in the judge's secret hearings where questions were asked him about suspected gambling in Detroit and bribery of policemen. His answers left the judge persuaded that he had committed perjury, particularly in view of other evidence before the 'judge-grand jury.' The judge then charged Murchison with perjury and ordered him to appear and show cause why he should not be punished for criminal contempt.3 White, the other petitioner, was also summoned to appear as a witness in the same 'one-man grand jury' hearing. Asked numerous questions about gambling and bribery, he refused to answer on the ground that he was entitled under Michigan law to have counsel present with him. The 'judge-grand jury' charged White with contempt and ordered him to appear and show cause. The judge who had been the 'grand jury' then tried both petitioners in open court, convicted and sentenced them for contempt. Petitioners objected to being tried for contempt by this particular judge for a number of reasons including: (1) Michigan law expressly provides that a judge conducting a 'one-man grand jury' inquiry will be disqualified from hearing or trying any case arising from his inquiry or from hearing any motion to dismiss or quash any complaint or indictment growing out of it, or from hearing any charge of contempt 'except alleged contempt for neglect or refusal to appear in response to a summons or subpoena'; (2) trial before the judge who was at the same time the complainant, indicter and prosecutor, constituted a denial of the fair and impartial trial required by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. The trial judge answered the first challenge by holding that the state statute barring him from trying the contempt cases violated the Michigan Constitution on the ground that it would deprive a judge of inherent power to punish contempt. This interpretation of the Michigan Constitution is binding here. As to the second challenge the trial judge held that due process did not forbid him to try the contempt charges. He also rejected other constitutional contentions made by petitioners. The State Supreme Court sustained all the trial judge's holdings and affirmed.4 Importance of the federal constitutional questions raised caused us to grant certiorari.5 The view we take makes it unnecessary for us to consider or decide any of those questions except the due process challenge to trial by the judge who had conducted the secret 'one-man grand jury' proceedings.6 3 A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that 'Every procedure which would offer a possible temptation to the average man as a judge * * * not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law.' Tumey v. State of Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way 'justice must satisfy the appearance of justice.' Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13. 4 It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations. Perhaps no State has ever forced a defendant to accept grand jurors as proper trial jurors to pass on charges growing out of their hearings.7 A single 'judge-grand jury' is even more a part of the accusatory process than an ordinary lay grand juror. Having been a part of that process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused. While he would not likely have all the zeal of a prosecutor, it can certainly not be said that he would have none of that zeal.8 Fair trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer.9 It is true that contempt committed in a trial courtroom can under some circumstances be punished summarily by the trial judge. See Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 395, 396, 69 L.Ed. 767. But adjudication by a trial judge of a contempt committed in his immediate presence in open court cannot be likened to the proceedings here. For we held in the Oliver case (333 U.S. 257, 68 S.Ct. 501) that a person charged with contempt before a 'one-man grand jury' could not be summarily tried. 5 As a practical matter it is difficult if not impossible for a judge to free himself from the influence of what took place in his 'grand-jury' secret session. His recollection of that is likely to weigh far more heavily with him than any testimony given in the open hearings. That it sometimes does is illustrated by an incident which occurred in White's case. In finding White guilty of contempt the trial judge said, 'there is one thing the record does not show, and that was Mr. White's attitude, and I must say that his attitude was almost insolent in the manner in which he answered questions and his attitude upon the witness stand. * * * Not only was the personal attitude insolent, but it was defiant, and I want to put that on the record.' In answer to defense counsel's motion to strike these statements because they were not part of the original record the judge said, 'That is something * * * that wouldn't appear on the record, but it would be very evident to the court.' Thus the judge whom due process requires to be impartial in weighing the evidence presented before him, called on his own personal knowledge and impression of what had occurred in the grand jury room and his judgment was based in part on this impression, the accuracy of which could not be tested by adequate cross-examination. 6 This incident also shows that the judge was doubtless more familiar with the facts and circumstances in which the charges were rooted than was any other witness. There were no public witnesses upon whom petitioners could call to give disinterested testimony concerning what took place in the secret chambers of the judge. If there had been they might have been able to refute the judge's statement about White's insolence. Moreover, as shown by the judge's statement here a 'judge-grand jury' might himself many times be a very material witness in a later trial for contempt. If the Charge should be heard before that judge, the result would be either that the defendant must be deprived of examining or cross-examining him or else there would be the spectacle of the trial judge presenting testimony upon which he must finally pass in determining the guilt or innocence of the defendant.10 In either event the State would have the benefit of the judge's personal knowledge while the accused would be denied an effective opportunity to cross-examine. The right of a defendant to examine and cross-examine witnesses is too essential to a fair trial to have that right jeopardized in such way. 7 We hold that it was a violation of due process for the 'judge-grand jury' to try these petitioners, and it was therefore error for the Supreme Court of Michigan to uphold the convictions. The judgments are reversed and the causes are remanded for proceedings not inconsistent with this opinion. 8 Reversed. 9 Mr. Justice REED and Mr. Justice MINTON, dissenting, with whom Mr. Justice BURTON joins. 10 The Court holds that it is unconstitutional for a state judge to punish a contempt, previously committed before him while acting as a so-called one-man grand jury, after a full hearing in open court. It holds that White, in being so punished for his blanket refusal to answer any questions before the grand jury, and Murchison, in being so punished for perjury before the same body, were deprived of their liberty without due process of law. 11 This conclusion is not rested on any irregularity in the proceedings before either the grand jury or the court. Under Michigan procedure a single state judge makes the grand jury investigation, not in secret, but with other public officials to aid him, and a transcript is made of the testimony. There is certainly nothing unconstitutional about this. A State may reduce the customary number of grand jurors to one, and impart the investigatory duty to a member of its judiciary if it so desires. Further, the accused is afforded a full hearing in open court, with a statement of charges, benefit of counsel, and a full opportunity to explain his conduct before the grand jury, before being held in contempt. Thus all the requirements set down in In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, are met. 12 The Court's determination is rested on the sole fact that the same judge first cited petitioners for contempt committed in his presence, and then presided over the proceedings leading to the final adjudication. It is neither shown nor alleged that the state judge was in any way biased. Nor is this required by the Court, for it holds, as a matter of law, that the judge's 'interest' in a conviction makes the proceedings inherently prejudicial and thus constitutionally invalid. The fact that the 'interest' of the state judge in this procedure is no different from that of other judges who have traditionally punished for contempt leads us to dissent. 13 In Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 454, 96 L.Ed. 71, we upheld the power of a federal district judge to summarily punish a contempt previously committed in his presence. In that case, after a trial which had extended for some nine months, the trial judge issued a certificate summarily holding defense counsel in contempt for their actions during the trial. There were no formalities, no hearings, no taking of evidence, no arguments and no briefs. We held that such a procedure was permitted by Rule 42 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which codified the "prevailing usages at law." The Court specifically rejected the contention that the judge who heard the contempt was disqualified from punishing it and should be required to assume the role of accuser or complaining witness before another judge. In Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, the Court simply stated an exception: when the trial judge becomes personally embroiled with the contemnor, he must step aside in favor of another judge. That decision was rested upon our supervisory authority over the administration of criminal justice in the federal courts. The Court now holds, even though there is no showing or contention that the state judge became enbroiled or personally exercised, or was in any way biased, that as a matter of constitutional law—of procedural due process—a state judge may not punish a contempt previously committed in his presence. This seems inconsistent with all that has gone before. 14 The Court, presumably referring to the situation in the federal courts, states that the 'adjudication by a trial judge of a contempt committed in his immediate presence in open court cannot be likened to the proceedings here.' The reason that it cannot, we are told, is because 'we held in the Oliver case that a person charged with contempt before a 'one-man grand jury' could not be summarily tried.' This is hardly explanatory, for the question of whether the hearing is to be summary or plenary has no bearing on the attitude or 'interest' of the judges in the two situations, which is indistinguishable. The simple fact is that in the federal courts we allow the same judge who hears the contempt and issues the certificate to punish it subsequently and summarily, but in this case we do not allow such punishment even after a full court trial. The only factual difference between Sacher and this case is that the contempt in Sacher was committed at a public trial. When the contempt is not committed in open court, we require that the criminal conviction be in public and that he individual be given a full hearing, with an opportunity to defend himself against the charges proffered and to make a record from which to appeal. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682. Petitioners had all this. They are not entitled to more. 15 We do not see how it can be held that it violates fundamental concepts of fair play and justice for a state judge after a full court trial to punish a contempt previously observed when acting as a grand jury, when it has been held that it is perfectly proper for a federal judge to summarily punish a contempt previously observed in open court. It seems to us that the Court has imposed a more stringent requirement on state judges as a matter of due process than we have imposed on federal judges over whom we exercise supervisory power. 16 The Court relies heavily on Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. There we held that it deprives a defendant of due process to 'subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.' Id., 273 U.S. at page 523, 47 S.Ct. at page 441. It is one thing to hold that a judge has too great an interest in a case to permit the rendition of a fair verdict when his compensation is determined by the result he reaches. It is quite another thing to disqualify a state judge as having too great an interest to render a due process judgment when his sole interest, as shown by this record, is the maintenance of order and decorum in the investigation of crime—an interest which he shares in common with all judges who punish for contempt. 17 The State of Michigan has decided that in the administration of its criminal law it is wise to have the investigating power in the hands of a judge. It has also decided that the judge who observes the contempt is to preside at the trial of the contemnor. It does not seem that there is here such a violation of accepted judicial standards as to justify this Court's determination of unconstitutionality. 18 We would affirm. 1 Mich.Stat.Ann.1954, §§ 28.943, 28.944, Comp.Laws 1948, §§ 767.3, 767.4. 2 Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717; Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 395, 396, 69 L.Ed. 767; Ex parte Savin, 131 U.S. 267, 277, 9 S.Ct. 699, 701, 702, 33 L.Ed. 150. See also In re Oliver, 333 U.S. 257, 273—278, 68 S.Ct. 499, 507—510, 92 L.Ed. 682. 3 The contempt charge signed by the judge reads in part as follows: 'It therefore appearing * * * that the said Patrolman Lee Roy Murchinson (sic) has been guilty of wilfull and corrupt perjury, which perjury has an obstructive effect upon the judicial inquiry being conducted by this court and the said Patrolman Lee Roy Murchinson (sic) obstructed the judicial function of the court by wilfully giving false answers as aforesaid, and did also tend to impair the respect for the authority of the court, all of which perjury and false answers given by the said witness aforesaid was committed during the sitting of, in the presence and view of this court and constitutes criminal contempt; 'It is therefore ordered that the said Patrolman Lee Roy Murchinson (sic) appear before this court on the tenth day of May, 1954, at 10:00 o'clock in the forenoon and show cause why he should not be punished for criminal contempt of this court because of his aforesaid acts.' 4 In re White, 340 Mich. 140, 65 N.W.2d 296; In re Murchison, 340 Mich. 151, 65 N.W.2d 301. 5 348 U.S. 894, 75 S.Ct. 216. 6 That we lay aside certain other federal constitutional challenges by petitioners is not to be taken as any intimation that we have passed on them one way or another. 7 See, e.g., Note, 50 L.R.A.,N.S., 933, 953-954, 970-971. 8 Apparently the trial judge here did consider himself a part of the prosecution. In passing on a request by Murchison's counsel for a two-day postponement of the contempt trial the judge said, 'There are two points that suggest themselves to me. 'One is that if the respondent is going to claim that he was in Shrewsberry, Ontario, Canada, on March 9, 1954, that we ought to be furnished with information so that we could between now and two days from now, which I am going to give you, we could do some checking and investigating ourselves.' (Emphasis supplied.) Because of the judge's dual position the view he took of his function is not at all surprising. 9 See, e.g., Queen v. London County Council, (1892) 1 Q.B. 190; State ex rel. Getchel v. Bradish, 95 Wis. 205, 70 N.W. 172, 37 L.R.A. 289. 10 See Hale v. Wyatt, 78 N.H. 214, 98 A. 379. See also, Witnesses—Competency—Competency of a Presiding Judge as Witness, 28 Harv.L.Rev. 115.

34

349 U.S. 254 75 S.Ct. 719 99 L.Ed. 1040 Ciraco MANEJA, Antone Vierra, Tadao Watanabe, et al., Petitioners,v.WAIALUA AGRICULTURAL COMPANY, LIMITED. WAIALUA AGRICULTURAL COMPANY, Limited, Petitioner, v. Ciraco MANEJA et al. Nos. 357, 358. Argued March 30, 1955. Decided May 23, 1955. [Syllabus from pages 254-255 intentionally omitted] Mr. Richard Gladstein, San Francisco, Cal., for Maneja et al. Bessie Margolin, Washington, D.C., for Secretary of Labor as Amicus curiae by invitation of the Court. Mr. Rufus G. Poole, Washington, D.C., for Waialua Agricultural Co. Mr. Justice CLARK delivered the opinion of the Court. 1 This case involves, primarily, the coverage of the agriculture exemption1 of the Fair Labor Standards Act of 1938, 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq., 29 U.S.C.A. § 201 et seq. The petitioners are 31 employees of respondent corporation,2 which is engaged in the growing, harvesting and processing of sugar cane at its plantation in the Territory of Hawaii. Respondent seeks a declaratory judgment that its operations are exempt from the overtime provisions of the Act, while the petitioners, through a counterclaim under § 16(b) of the Act, seek to recover unpaid overtime compensation. The action pertains only to work performed between November 20, 1946, and September 14, 1947. 2 Waialua owns and operates what might be called the agricultural analogue of the modern industrial assembly line. On its plantation, consisting of some ten thousand acres of land, it cultivates sugar cane which it processes into raw sugar and molasses. It utilizes the year-round growing season to produce a steady supply of cane and employs in its operations over a thousand persons, many at specialized tasks. Some move from field to field preparing the soil, fertilizing, planting seed or cultivating. Others attend to the irrigation of the fields. As the cane crop matures, crews of employees move in with mechanical cane harvesters that cut and throw the cane into railroad cars. The cane is then taken over portable tracks laid into the growing fields to Waialua's mainline railroad, which runs throughout the plantation, and from there skilled railroad workers transport the cane to the processing plant. Freshly cut sugar cane is extremely perishable and must be processed within a few days of harvesting or serious spoilage will result. The processing plant is typical of such modern industrial facilities and is manned by employees specially trained in its operation. It has all of the equipment needed to receive the freshly cut cane from the railroad cars and process it into raw sugar and molasses. Adjacent to the processing plant are warehouses where the raw sugar and molasses are stored preparatory to shipment to the United States. 3 A tremendous variety of work must be done to keep this enterprise going, and Waialua employs persons versed in each operation. In addition to those employed as indicated above, about a hundred more work in repair shops as mechanics, electricians, welders, carpenters, plumbers and painters. They keep Waialua's highly mechanized enterprise operating, making not only emergency repairs but complete overhauls of the railroad, milling, harvesting and other equipment. Waialua also maintains a plant for the manufacture of concrete products (paving blocks and flumes for irrigation ditches), an electric generating plant in the same building as the mill, and a laboratory for the testing of its soil, water, cane and raw sugar. 4 In addition to all this, Waialua owns a village where the great majority of its employees live. Known as Waialua Village, it was originally built when housing for the employees was inadequate, and is located on plantation property within the limits of the City of Honolulu. Within the town are several hundred houses and business establishments, all occupied on a rental basis, together with recreational areas and other town facilities. The respondent furnishes all the maintenance work for its village, employing street cleaners, road graders and janitors. Proceedings Below 5 The trial judge found that all the employees were outside of the agriculture exemption save those engaged directly in agricultural work in the fields, in loading the freshly cut cane into cane cars, and in hauling the loaded cars to the mainline railroad. Those employees working in the sugar mill were found to be under the special processing provisions of § 7(c) of the Act. As to the other employees, the court entered judgment for overtime as well as liquidated damages and attorney's fees. 97 F.Supp. 198. The Court of Appeals reversed, believing that 'the entire cause was tainted by apparent collusion' because stipulations covered the commerce features of the case. It thought that 'agriculture is not commerce, interstate or foreign,' and that '(f)ederal regulation of agriculture invades the reserved rights of the states. United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477. But cf., Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122.' It indicated, further, that even if the suit were not collusive, the workers would not be entitled to the relief claimed because all of them came within the agriculture exemption of the Act. 1954, 216 F.2d 466, 479. Despite this reasoning, the Court of Appeals refused to dismiss petitioners' counterclaim but remanded it to the trial court 'for proceedings in accordance with this opinion.' We granted certiorari, believing that the proper administration of the Act requires a resolution of the questions presented. 348 U.S. 870, 75 S.Ct. 111. 6 We are in full agreement with the parties that the first ground relied upon by the Court of Appeals is incorrect. It is not necessary now to consider the vitality of United States v. Butler, supra, for that decision expressly reserved the question of whether the regulation of agriculture was within the commerce power,3 and Wickard v. Filburn, supra, decided the question in favor of the congressional power. In view of the fact that Waialua exports virtually its entire output for sale throughout the United States, we find ourselves unable to say that the stipulation with respect to the power of Congress was collusive. 7 Congress exempted agriculture from the terms of the FLSA in broad, inclusive terms: 8 Sec. 3. '(f) 'Agriculture' includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 15(g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.' The exemption was meant to embrace the whole field of agriculture, and sponsors of the legislation so stated, 81 Cong.Rec. 7648, 7658. This Court also has had occasion to comment on its broad coverage. See Addison v. Holly Hill Fruit Products Co., 1944, 322 U.S. 607, 612, 64 S.Ct. 1215, 1218, 88 L.Ed. 1488. Nevertheless, no matter how broad the exemption, it was meant to apply only to agriculture and we are left with the problem of what is and what is not properly included within that term. 9 From the very beginning of the legislative consideration of the Act, a comprehensive exemption of agricultural labor was a primary consideration of the Congress. Nevertheless, before its final language developed, the agriculture exemption ran the gamut of extensive debates and amendments, each of the latter invariably broadening its scope. Exempting 'any person employed in agriculture,' its first comprehensive definition declared 'farming in all its branches' to be exempt, including 'any practices ordinarily performed by a farmer as an incident to such farming operations.' S. 2475, Calendar No. 905, 75th Cong., 1st Sess. 51. Although this language was described by those in charge of the bill in the Senate as 'perhaps, the most comprehensive definition of agriculture which has been included in any one legislative proposal,' 81 Cong.Rec. 7648, its coverage was broadened until it became coterminous with the sum of those activities necessary in the cultivation of crops, their harvesting, and their 'preparation for market, delivery to storage or to market or to carriers for transportation to market.' Our main problem is to determine which activities of Waialua come within this definition, thus exempting the persons so employed from the provisions of the Act. 10 The Railroad Workers. 11 Waialua's railroad workers not only haul cane from the fields to the processing plant but also transport farming implements and field laborers on the narrow-gauge railway extending throughout the plantation. For numerous reasons, we feel that these employees fall within the comprehensive wording of the agriculture exemption. Nowhere in the Act was any attempt made to draw a distinction between large and small farms or between mechanized and nonmechanized agriculture. In fact, the very opposite appears, since Congress in 1949 specifically refused to draw a distinction between large and small farms similar to the distinctions drawn in the size of newspapers or telephone companies. See H.R. Rep. No. 267, 81st Cong., 1st Sess., p. 24. Compare FLSA, as amended, §§ 13(a)(8), 13(a)(11), 13(a)(15). 12 In view of this, we cannot hold that merely because Waialua uses a method ordinarily not associated with agriculture—a railroad—to transport the cane from the fields to the mill, it has forfeited its agriculture exemption. Where a farmer thus uses extraordinary methods, we must look to the function performed. Certainly no one would argue that the agriculture exemption did not apply to farm laborers who took the cane to the plant in wheelbarrows. There is no reason to construe the FLSA so as to discourage modernization in performing this same function. 13 Furthermore, had Waialua not owned a mill, its transportation activities from field to mill would come squarely within the agriculture exemptions covering 'delivery to storage or to market or to carriers for transportation to market.' We do not believe the Congress intended to deprive farmers having their own mills of the exemption it afforded farmers who do not. In the debate on the amendment extending exemption to 'delivery to market,' its sponsor made clear that auxiliary activity of the kind here involved would be included within that term. 81 Cong.Rec. 7888. 14 Similarly, the exemption clearly covers the transportation of farm implements, supplies and field workers to and from the fields. Being performed 'on a farm as an incident to or in conjunction with such farming operations,' this activity is a necessary part of the agricultural enterprise. 15 Although the original administrative interpretation squarely supports our conclusion in regard to such hauling activity,4 it is insisted that the administrative practice has been to the contrary since Bowie v. Gonzalez, 1 Cir., 1941, 117 F.2d 11. We have examined the press release relied on and find that it stated only that the exemption 'does not apply to sugar mill employees, even if the only cane ground in such a mill is cane grown by the sugar mill owner in his own fields,' and made no reference to employees engaged in transporting the cane to the mill.5 Subsequent statements by the Administrator merely make the coverage of this activity a question of fact to be determined on an ad hoc basis.6 We see no basis for the assertion, therefore, that the administrative practice since 1941 has been to exclude from the exemption the transportation of cane from field to mill. Moreover, Bowie itself established no such rule, save with regard to the transportation of sugar cane of independent growers. The judgment left all employees transporting sugar cane grown by the mill company in the exempt status. In the subsequent case of Calaf v. Gonzalez, 1 Cir., 1942, 127 F.2d 934, the same Court of Appeals warned that a different problem would be present if the heart of the transportation system and the situs of the employment of workers were located at the plantation. We do not believe that either Bowie or Calaf is apposite. The factual situation here is that Waialua's transportation system is all either in or contiguous to its fields, save the necessary trackage at the mill to accommodate cane cars arriving from various sections of the plantation. The railroad is used exclusively for the effectuation of the agricultural function of transporting exempt agricultural workers to the fields, together with their equipment and supplies, and hauling freshly cut cane to the processing plant. Without it or some other 'haul,' the land could not be cultivated and the cane, after harvest, would spoil in the fields and be lost. We believe that under the facts here presented the administrative practice also requires that the railroad employees be classified as within the agriculture exemption. 16 By a parity of reasoning, those employees who repair the mechanical implements used in farming are also included within the agriculture exemption. Every farmer, big or little, must keep his farming equipment in proper repair, and the fact that Waialua's size has permitted it to achieve an extraordinary degree of specialization should not deprive it of this exemption. Here, the relatively small number of employees assigned to the repair activities—working only on Waialua's machinery and equipment indicates that, far from being a farmer who conducts a repair business on the side, Waialua is merely performing a subordinate and necessary task incident to its agricultural operations. Indeed, the very necessity of integrating thse tasks with Waialua's main operation—without which the entire farming operation would soon become hopelessly stalled—is strong reason to consider the repairmen within the exemption. This reasoning, of course, applies only to those employees engaged in the repair of equipment used in performing agricultural functions: tractors, cane loaders, cane cars, and so forth. The repair work on mill equipment is considered under the processing exemption, infra. 17 The Employees in Waialua's Sugar Processing Plant. 18 The legislative history of the FLSA indicates that the mill employees present a borderline case. Indeed, this very question, i.e., whether the grinding of one's own sugar cane comes within the exemption, was posed and left unresolved in the debates, 81 Cong.Rec. 7657—7658. The sponsors of the Act made clear, however, that 'a farmer erecting on his farm a factory and manufacturing anything you please, whether something he grows or not, who employs many people to manufacture it, and then ships it in interstate commerce * * * would not make the manufacturing * * * a farming operation.' 81 Cong.Rec. 7658. From this and from discussions of other borderline cases, it is clear that we must look to all the facts surrounding a given process or operation to determine whether it is incident to or in conjunction with farming. 19 In making such a particularized determination, we may consider first the criteria set forth by the Wage-Hour Administrator in 1949, 35 WHM 371, 373. He proposed the following as relevant factors: 20 (a) The size of the ordinary farming operations. There can be no question here that such operations are substantial, and that Waialua's sugar-raising activities are no mere facade for an otherwise industrial venture. 21 (b) The type of product resulting from the operation in question. Here the products are raw sugar and molasses. There is some ground for considering these as strictly agricultural commodities, since the unmilled sugar cane is highly perishable and unmarketable as such. On the other hand, the milling operation transforms sugar cane from its raw and natural state, and there is support in the Senate debates for the view that a process resulting in such a change is more akin to manufacturing than to agriculture. See 81 Cong.Rec. 7659—7660, 7877—7878. 22 (c) The investment in the processing operation as opposed to the ordinary farming activities. Here the mill accounts for 29% of Waialua's total investment in the plantation. 23 (d) The time spent in processing and in ordinary farming. Waialua's mill operations account for 23% of the manhours worked during the year. 24 (e) The extent to which ordinary farmworkers do processing. There is but slight interchange of workmen. The over-all picture discloses essentially separate working forces for mill operations and for farming. 25 (f) The degree of separation by the employer between the various operations. The plantation organization calls for separate departments to handle the processing activities and field work. 26 (g) The degree of industrialization. The mill workers here, as observed in the Bowie case, are typical factory workers, and from its external characteristics the milling operation is certainly an industrial venture. 27 But in making the factual determination, we must keep in mind that the question here presented is a limited one: is the milling operation part of the agricultural venture? If it is agriculture, albeit industrialized and involving highly specialized mechanical tasks, we must hold it to be within the agriculture exemption. Thus we must add to the factors above some consideration of what is ordinarily done by farmers with regard to this type of operation. It is true that the word 'ordinarily' appeared in an earlier version of the exemption and was subsequently stricken, but the inquiry is nonetheless a pertinent one. It has a very direct bearing in determining whether the milling operation is really incident to farming. 28 Our major domestic sugar-producing areas are in Louisiana, Puerto Rico and Hawaii. Statistics for 1948 reveal that the 5,957 sugar farms in Louisiana have their sugar processed in 47 independent mills and in 12 co-operatives. Marketing Sugarcane in Louisiana (U.S. Dept. Agric. 1949) 1, 23; Agricultural, Manufacturing and Income Statistics for the Domestic Sugar Areas (U.S. Dept. Agric. 1954) 84. While the independent mills own 40% of the cane-producing acreage, there is no indication that these customarily process only the sugar cane grown on their own lands. For the same year, Puerto Rican sugar from 14,772 farms was processed in 35 'centrals.' The Marketing of Sugar-cane in Puerto Rico (U.S. Dept. Agric. 1950) 2; Agricultural, Manufacturing and Income Statistics for the Domestic Sugar Areas, supra, at 121. Again the practice is not for the individual farmer to grind his own sugar. The statistics for Hawaii disclose only 34 and 30 farms for 1947 and 1948 respectively. But these low figures resulted from a classification which counted only the 'plantations.' When smaller independent farms were included in the 1951 figures, the number of Hawaiian sugar farms jumped to 786. Agricultural, Manufacturing and Income Statistics for the Domestic Sugar Areas, supra, at 137. In addition, there are some 1,500 or 1,800 small 'adherent planters' producing sugar cane in Hawaii. See Hearings before the House Committee on Education and Labor on H.R. 2033, 81st Cong., 1st Sess., p. 1173. According to information furnished by the Sugar Division of the United States Department of Agriculture, there are about twenty-six sugar mills in Hawaii processing cane produced by all these farmers. Ten of these, like Waialua, are engaged exclusively in the processing of their own cane; the remaining sixteen process cane grown by others as well as their own.7 The pertinent ratio, however, is not the proportion of millers who grow their own cane but the percentage of farmers who engage in milling. Thus, while sugar milling by farmers is more prevalent in Hawaii than in the other sugar-producing areas, it is very doubtful that these milling operations can be considered a normal incident to the cultivation of sugar cane, even in the context of the Hawaiian sugar industry. 29 From a consideration of all the relevant factors, the question would be an extremely close one in gauging whether this milling operation is farming or manufacturing. But we do not stop here. The status under the FLSA of farmers milling their own sugar is influenced by a number of extraneous legislative factors—their position vis-a -vis the agriculture exemption may well be sui generis. Some time after the inconclusive floor debate on sugar processing, there was included in § 7(c) a total exemption of this activity from the overtime provisions of the Act. This may well have been considered a satisfactory answer to the difficult problems posed in determining whether sugar processing came within the agriculture exemption. But we cannot be sure of this, because § 7(c) includes similar exemptions for operations like cotton ginning, which also come within the agriculture exemption if performed by the farmer on his own crops. More significant is the omission of sugar milling from the exemption provided by § 13(a)(10) for various processing operations performed within the area of production. 30 This exemption was designed to meet the protests of many legislators who argued that the broad agriculture exemption permitted large farming units to process their own products without subjecting themselves to the terms of the Act, while the small farmer, who did not have the equipment necessary for such processing, had to bear the cost of operations covered by the Act. Section 13(a)(10) exempted employees 'within the area of production * * * engaged in handling, packing, storing, ginning, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market'. Thus, for example, the cotton farmer without a gin was placed on an equal footing with farmers who ginned their own cotton, since each could have their cotton ginned by employees who were covered by neither the wage nor the hour provisions of the Act. But sugar milling is not included within the 'area of production' exemption, since in the course of this processing the sugar cane is changed from its 'raw or natural state'. See 35 WHM 365. Senator Schwellenbach, one of the most ardent advocates of equalization in the status of large and small farmers, considered this change in the product as marking the dividing line between processing as an agricultural function and processing as a manufacturing operation. See 81 Cong.Rec. 7659 7660, 7877—7879. The 'area of production' exemption reflects this dichotomy. Thus all other forms of quasi-industrial processing ginning, canning, packing, etc.—which might be used as analogies for including sugar milling within the agriculture exemption are repeated in § 13(a)(10). Congress would not have omitted sugar milling from the 'area of production' exemption if it had not concluded that it also fell outside the agriculture exemption. We think that adherence to the congressional scheme requires us to hold that sugar milling is outside the agriculture exemption and that its exemption from the hours provision by virtue of § 7(c) marks the outer limit of congressional concession to this type of processing. By so holding, we not only equalize the status of all sugar farmers with regard to FLSA coverage of milling operations on their product, but we equalize the impact of the Act on all sugar mills, those which grind their own cane and those grinding their neighbor's as well. 31 We note, further, that such an interpretation closes a gap that would otherwise exist in the federal wage regulation of persons engaged in producing sugar for interstate commerce. The FLSA clearly reaches those engaged in refining sugar, cf. FLSA § 7(c), and the Sugar Act provides for reasonable wages for those engaged in the 'production, cultivation, or harvesting' of sugar cane. 50 Stat. 909, 61 Stat. 930, 71 U.S.C. § 1131, 7 U.S.C.A. § 1131. The latter terminology has been construed to extend to the mainline railroad workers, e.g., 7 CFR, 1941 Supp., § 802.34d, leaving unregulated only the wages of sugar-mill employees—unless, as we hold here, these factory workers are beyond the terms of the agriculture exemption. 32 Waialua makes much of the fact that the Administrator originally construed the agriculture exemption as covering the grinding of the farmer's own sugar cane. Interpretative Bulletin No. 14, supra. The Administrator revised his construction in 1941 to accord with his interpretation of several cases in the First Circuit dealing with the Puerto Rican sugar industry, and from that time he has maintained that sugar milling is not exempt, even if the farmer is engaged exclusively in the milling of his own cane. See Press Release, supra, at note 5. The revised construction of the Administrator—and the fact that farmers milling their own sugar cane were covered only by § 7(c)—were reported to the congressional committees considering amendments to the FLSA. See Hearings before a Subcommittee of the Senate Committee on Education and Labor on S. 1349, 79th Cong., 1st Sess., pp. 1049 1050; Hearings before a Subcommittee of the Senate Committee on Labor and Public Welfare on S. 49 et al., 80th Cong., 2d Sess., p. 318; Hearings before a Subcommittee of the Senate Committee on Labor and Public Welfare on S. 58 et al., 81st Cong., 1st Sess., pp. 973—974; Hearings before the House Committee on Education and Labor on H.R. 2033, 81st Cong., 1st Sess., p. 1166. But when the Act was amended in 1949 Congress did not overrule this interpretation. It provided instead that any 'order, regulation, or interpretation of the Administrator' in effect on the effective date of the 1949 amendments 'shall remain in effect * * * except to the extent that any such order, regulation, interpretation * * * may be inconsistent with the provisions of this Act * * *.' 63 Stat. 920. We relied on this section in Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745, in upholding a regulation of the Administrator which similarly had been changed, reported to Congress in its revised form, and left unaltered by the 1949 Act. We come to the same conclusion in this case, and hold the Administrator's interpretation unimpaired by the 1949 Amendments. It therefore follows that the employees working in the processing plant are not within the agriculture exemption. 33 The Processing Exemption. 34 Although the mill workers are not within the agriculture exemption, they are nevertheless exempt from the overtime provisions of the Act. Section 7(c) specifically provides that the overtime provisions of the Act shall not apply to 'an employer engaged in the * * * processing of * * * sugar-cane * * * into sugar (but not refined sugar)', and this exemption extends to 'employees in any place of employment (where the processing is carried on).' This, we feel, covers the workmen during the processing season while making emergency repairs in the mill, cleaning the equipment during the week-end shut-down, and performing other tasks closely and intimately connected with the processing operation. Repair work on the mill equipment in Waialua's shops in the mill area is also within the exemption. See 35 WHM 360—361. During the three-month off-season, however, a complete overhaul and reconditioning is given the entire mill equipment and no processing work is performed. Since § 7(c) on its face covers only those employees who work in the place of employment where the processor is so engaged, we cannot extend its coverage so to include within the overtime exemption permanent repairs, overhaul and reconditioning during this three-month off-season. See Heaburg v. Independent Oil Mill, D.C., 46 F.Supp. 751; Abram v. San Joaquin Cotton Oil Co., D.C., 49 F.Supp. 393. Cf. Mitchell v. Stinson, 1 Cir., 217 F.2d 210, 217. 35 The Waialua Village Workers. 36 We now come to those workers employed in the maintenance of Waialua Village. This village seems to be an ordinary town, except for the fact that Waialua performs the usual civic functions. It rents its dwelling houses to employees and others on a purely voluntary basis. In fact, the adjacent Haleiwa Village, not owned by Waialua, houses some of the employees. Under the 1949 Amendments to the Act, the work of the employees in maintaining the town clearly is not covered. 63 Stat. 911, 29 U.S.C. § 203(j), 29 U.S.C.A. § 203(j). The question presented in this case, therefore, is of small import in itself. Even so, to come within the coverage of the Act prior to this amendment, the activity of such employees must have a 'close and immediate tie with the process of production'. Kirschbaum Co. v. Walling, 316 U.S. 517, 525, 62 S.Ct. 1116, 1121, 86 L.Ed. 1638. We do not believe such a tenuous relation as here established is sufficient. This activity is sufficiently regulated by the requirements of Hawaiian law. Revised Laws of Hawaii, 1945, Title 9, Ch. 75, §§ 4351—4366. Congress made it clear that it intended to 'leave local business to the protection of the states,' Walling v. Jacksonville Paper Co., 317 U.S. 564, 570, 63 S.Ct. 332, 336, 87 L.Ed. 460, and 'did not see fit * * * to exhaust its constitutional power over commerce,' 10 East 40th St. Bldg. v. Callus, 325 U.S. 578, 579, 65 S.Ct. 1227, 1228, 89 L.Ed. 1806. For these reasons, we believe that the employees working in the maintenance of the village and the repair of the respondent's dwelling houses are not covered by the provisions of the Act. 37 In view of the state of the record, we are unable to determine the rights of the remaining employees involved in this litigation. We do not have sufficient data to decide whether the employees in the laboratory, the cement products plant and the power plant are within the agriculture or sugar-processing exemption. On remand, the problems arising in those operations small though they be in the over-all picture—may be decided in the light of the considerations set down in this opinion. Likewise, the trial court may make any necessary reassessment in overtime compensation due employees. The judgment of the Court of Appeals, accordingly, is reversed and the cause is remanded to the District Court for proceedings consistent with this opinion. 38 Reversed and remanded. 39 Mr. Justice BURTON, whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN join, concurring in part and dissenting in part. 40 The Waialua Agricultural Company performs the closely integrated function not merely of growing, harvesting and gathering sugar cane from its fields, but of promptly processing that cumbersome, perishable crop into transportable, marketable raw sugar and molasses. If not so processed, the cane spoils. The processing, therefore, is as essential to the success of the sugar cane plantation as the growing and harvesting of the cane itself. The question before us is the extent to which the employees of Waialua are exempt from the Fair Labor Standards Act of 1938. 41 Congress, in so many words, has excluded from the coverage of the Act 'any employee employed in agriculture'.1 (Italics supplied.) It has clarified this exemption by adding that— 42 "Agriculture' includes farming in all its branches and among other things includes the cultivation and tillage of the soil * * * the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities * * * and any practices * * * performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.'2 (Italics supplied.) 43 In my view, the above definition includes all of the operations of the Waialua Agricultural Company.3 It is difficult to conceive of terms covering them more adequately. Concededly, the company is a 'farmer,' and each of the practices involved here readily can be conceived of as being performed by it on its farm as an incident to or in conjunction with growing, harvesting and preparing its sugar cane for market or for delivery to carriers for transportation to market. 44 The Court goes far toward adopting the above view. By applying the agricultural exemption to Waialua's employees who grow or harvest the sugar cane, and to those who deliver the cane to the processing mill, the Court completely relieves Waialua of the wage and hour requirements of the Act in relation to those employees. On the other hand, the Court declines to apply the agricultural exemption to Waialua's processing employees. The consequence of this is minimized by two factors. First, the resulting subjection of Waialua to the minimum wage requirements of the Act adds no burden because Waialua, of its own accord, pays its processing employees more than the required minimum. Secondly, any burden due to the resulting subjection of Waialua to the statutory 40-hour week, with increased pay for overtime, is not great, because § 7(c)4 specifically grants exemption from such regulation to 'employees in any place of employment where' the employer is engaged in processing sugar cane into raw sugar or syrup. 45 However, the processing exemption, under § 7(c), is not the full equivalent of the agricultural exemption under §§ 13(a)(6) and 3(f). The exemption under § 7(c) is limited to the overtime provisions of the Act and does not extend to the minimum wage provisions. It is construed to cover only tasks that are 'closely and intimately connected' with the actual processing of sugar cane in a mill, whereas the agricultural exemption is not so restricted. The Court makes this clear. Section 7(c) is held by it not to reach services performed by Waialua's processing employees in the mill during the 'off season' when no cane is actually being processed there. Still other areas of uncertainty appear where the Court requires further findings as to the work done in the laboratory, the concrete products plant and the power plant before determining the status of employees engaged in those operations.5 46 If the agricultural exemption be given the broad application to which I believe it entitled, no line need be drawn between processing and other agricultural activities. Each of the above activities would be exempt because each is 'incident to or (is performed) in conjunction with' the agricultural operation of growing, harvesting, preparing and delivering the cane to market. 47 The Court recognizes that the large size of Waialua's plantation makes necessary the specialization of labor incidental to its sugar cane production and marketing. Mere size and mechanization of Waialua's farming operations are not, in themselves, grounds for excluding any of its employees from the agricultural exemption. As I see it, the statutory definition of agriculture describes a major activity which lies beyond the outer limits of the Fair Labor Standards Act. 'Agriculture' is not an exception carved out of the jurisdiction of the Act. Congress never proposed to apply the Act to agriculture. To any extent that the Act impinges upon agricultural activities, those impingements are themselves exceptions to the general freedom that characterizes agricultural employment. 48 The legislative history supports an all-inclusive, rather than a restrictive, interpretation of the word 'agriculture' as used here. When Senate Bill 2475, which became the Fair Labor Standards Act, was reported favorably by the Senate Committee on Education and Labor, it exempted 'any person employed in agriculture.' It provided that as 'used in this Act, the term 'agriculture' includes farming in all its branches and * * * any practices ordinarily performed by a farmer as an incident to such farming operations.' (Italics supplied.) Id., Calendar No. 905, 75th Cong., 1st Sess. 51. Congress proposed thereby to exempt 'persons engaged in agriculture and such processing of agricultural commodities as is ordinarily performed by farmers as an incident of farm operations.' (Italics supplied.) S.Rep. No. 884, 75th Cong., 1st Sess. 6. The exemption was thus expressly made applicable at least to the ordinary processing of agricultural commodities while converting them from their natural state to a marketable form. 49 In the ensuing debate, attention was directed specifically to sugar cane. In answer to whether syrup mills, operated on sugar cane plantations, would be exempt, the Chairman of the Senate Committee on Education and Labor stated that 'If * * * it is a practice not ordinarily performed by a farmer as incident to his farming operations * * * (it) would not come under the definition.' (Italics supplied.) 81 Cong.Rec. 7657. However, this restriction of the agricultural exemption significantly disappeared when the word 'ordinarily' was intentionally stricken out of the definition of agriculture. H.R. Rep. No. 1452, 75th Cong., 1st Sess. 11. In its final stage, 'agriculture' became substantially all-inclusive. It covered 'any practices performed by a farmer or on a farm as an incident to such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.' S. 2475, Union Calendar No. 804, 75th Cong., 3d Sess. 50. 50 Emphasis thus was shifted from ordinary practices incident to farming operations to all practices incident to farming operations, including those incident to the preparation or delivery of agricultural products to storage or to market. Operations, such as those of a shirt factory on a cotton farm, are said to be excluded from the agricultural exemption, not because they are not ordinarily operated by farmers, but because they are neither incident to farming operations nor appropriate to the preparation of a farm product for its initial market. Accordingly, the essential inquiry in the instant case is whether Waialua's processing of sugar cane is incident to farming operations, including those necessary or appropriate to prepare the cane product for storage or for its market. The answer should be that harvested sugar cane is so highly perishable that it must be processed promptly in order to be either stored or marketed. It naturally follows, therefore, that such processing, done by a farmer on a farm, should be recognized as 'agriculture' equally with the growing and harvesting of the crop. 51 Emphasizing this view, in 1939, the Department of Labor issued Interpretative Bulletin No. 14. It then said unequivocally that the words 'preparation for market' included the processing of sugar cane into raw sugar and molasses. It classified that operation with cotton ginning and the packing or canning of other agricultural commodities. Id., § 10(b), 35 Wage and Hour Man. 351, 355.6 Being substantially contemporaneous with the Fair Labor Standards Act of 1938, such an initial interpretation of the statute is entitled to special weight. United States v. American Trucking Ass'ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 1067, 84 L.Ed. 1345. 52 While the Court suggests that § 7(c) lends support to its conclusion that the agricultural exemption does not apply to processing operations, I believe that the presence of § 7(c) supports the opposite conclusion. Section 7(c) was inserted in the bill largely in answer to the argument that the agricultural exemption (in §§ 13(a)(6) and 3(f)) would relieve the large processing farmers from the restrictions of the Fair Labor Standards Act and thus help them market their raw sugar or molasses more cheaply than the smaller farmers who would be compelled to employ nonexempt independent processors. Section 7(c), accordingly, was added to relieve such independent processors from the overtime requirements of the Fair Labor Standards Act in tacit recognition of the existing exemption of the processing farmers under the agricultural exemption. 53 In § 13(a)(10),7 Congress similarly exempted from the wage and hour provisions of the Act all employees 'within the area of production * * * engaged in handling, packing, storing, ginning, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market * * *.' (Italics supplied.) It is argued that, by failing to list sugar cane processing specifically in § 13(a)(10), Congress implies that the general agricultural exemption is not applicable to sugar cane processing. No such conclusion is justified. Section 13(a)(10) was added late in the legislative development of the bill, not to restrict existing exemptions, but to create further exemptions. It was added in order to exempt the activities of packers, ginners and others providing service anywhere 'within the area of production'. If § 13(a)(10) had listed sugar cane processing, it would have extended the minimum wage exemption to independent processors throughout surrounding areas of production. To do so was entirely optional with Congress and its mere failure to do so implies no purpose, sub silentio, to reduce the scope of the agricultural exemption already extended, in positive and sweeping terms, in response to an insistent demand for the exemption of all farming operations. 54 Accordingly, while I concur in reversing the judgment of the Court of Appeals and in the application of the agricultural exemption to the extent that it is applied by this Court, I would remand the entire cause to the District Court with a direction to enter judgment in favor of the Waialua Agricultural Company in accordance with this opinion. 1 'Sec. 13(a). The provisions * * * shall not apply with respect to * * * (6) any employee employed in agriculture'. 2 Forty-two employees were originally involved, but 11 sustained adverse decisions in the District Court and did not appeal. 3 '* * * the government does not attempt to uphold the validity of the act on the basis of the commerce clause, which, for the purpose of the present case, may be put aside as irrelevant.' 297 U.S. at page 64, 56 S.Ct. at page 318. The Scope of the Agriculture Exemption. 4 'If a company has sugar cane fields and also a mill, the transportation of its own sugar cane to the mill seems an incidental practice which is included (within the exemption).' U.S. Dept. of Labor, Wage and Hour Division, Interpretative Bulletin No. 14, p. 9, 35 WHM 351, 356. 5 Press Release, Wage and Hour Division, Sept. 15, 1941, reported at 35 WHM 355. 6 Findings and Opinion of Administrator, May 20, 1943, Waialua's brief, pp. 51—52, in proceedings incident to Wage Order, Part 635, for the Sugar and Related Products Industry, 8 Fed.Reg. 7098. The Workers Employed in the Repair Shops. 7 See letter of April 28, 1955, to Stuart Rothman, Solicitor, Department of Labor, from Lawrence Myers, Director, Sugar Division of the Department of Agriculture, as corrected by letter of May 13, 1955, to Stuart Rothman, Solicitor, Department of Labor, from Thomas H. Allen, Acting Director, Sugar Division of the Department of Agriculture. See also Supplemental Brief of the Secretary of Labor, p. 11, n. 4. 1 § 13(a)(6), 52 Stat. 1067, 29 U.S.C. 213(a)(6); 29 U.S.C.A. § 213(a)(6). 2 § 3(f), 52 Stat. 1060, 29 U.S.C. § 203(f), 29 U.S.C.A. § 203(f). 3 Except the maintenance of Waialua Village, which, for other reasons, as the Court explains, does not come under the coverage of the Act. 4 52 Stat. 1063, 29 U.S.C. § 207(c), 29 U.S.C.A. § 207(c). 5 In the laboratory, Waialua employs, in a separate building, 14 chemists, testers and samplers who analyze cane leaf, juice, fiber and ash, raw sugar and molasses, water used in all operations, etc., so as to have all operations controlled by scientific methods. In the concrete products plant, it employs, in a separate building, four to ten men primarily making irrigation flumes and water supply pipe. Other products include concrete blocks, footings and sidewalk slabs required on the plantation. Cement and other materials used in making these products are purchased off the plantation. For the power plant, the 'bagasse,' or cane fiber remaining after the extraction of its juice, supplies fuel. Waialua burns it to produce steam which drives mill machinery, heats sugar juice and generates electric power. The electric power, in turn, serves various operations on the plantation. The integrated nature of these operations emphasizes the propriety and practicality of the blanket agricultural exemption in relation to them. It demonstrates also the difficulty of drawing lines between such naturally related operations. 6 It appears that the Administrator of the Wage and Hour Division later withdrew from that position in deference to a decision in 1941 by the Court of Appeals for the First Circuit in Bowie v. Gonzalez, 117 F.2d 11. That court there held that certain processors who processed sugar cane, other than their own, did not come within the agricultural exemption. The Administrator, in concluding that the processing of sugar cane by a farmer on his own farm, in his own plant, also was to be excluded from the agricultural exemption, extended the decision beyond the point at issue. See Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 766—767, note 15, 69 S.Ct. 1274, 1280, 93 L.Ed. 1672. I do not attach significance to the failure of Congress to make specific reference to this point in its 1949 amendments. By its savings clause, Congress reserved the issue of the validity of the Administrator's interpretation of the Act. It did this by providing generally that existing interpretations of the Administrator remain in effect but expressly excepting 'the extent that any such * * * interpretation * * * may be inconsistent with the provisions of this Act * * *.' 63 Stat. 920. The pendency of the instant litigation at that time was called to the attention of the appropriate Committee of Congress and it was shown that the Administrator had not instituted that suit, or any other, in reliance upon the interpretation now claimed. Hearings before House Committee on Education and Labor on H.R. 2033, 81st Cong., 1st Sess. 1165—1169. To use the 1949 savings clause as confirming the consistency, with the statute, of the Administrator's interpretation is to assume that very consistency in order to establish it. 7 52 Stat. 1067, 29 U.S.C. § 213(a)(10), 29 U.S.C.A. § 213(a)(10).

67

349 U.S. 280 75 S.Ct. 746 99 L.Ed. 1074 Edward J. SHAUGHNESSY, District Director of Immigration and Naturalization Service, New York District, Department of Justice, Petitioner,v.UNITED STATES ex rel. Joseph ACCARDI. No. 616. Argued April 22, 1955. Decided May 23, 1955. Mr. Marvin E. Frankel, Washington, D.C., for petitioner. Mr. Jack Wasserman, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 We are called upon in this case to remove ambiguities from a previous opinion which, while clear enough to the trial court, appears to have conveyed a triplicity of meaning to the Court of Appeals. A year ago Accardi was here contestng the dismissal of his habeas corpus petition in which he attacked the refusal of the Board of Immigration Appeals to grant his application for suspension of deportation. United States ex rel. Accardi v. Shaughnessy, 1954, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681. The sole foundation of his claim was that 'the Attorney General (is doing) precisely what the regulations forbid him to do: dictating the Board's decision.'* 347 U.S. 260, at page 267, 74 S.Ct. 499, at page 503. We remanded the petition to the trial court for a hearing on the question of 'the Board's alleged failure to exercise its own discretion, contrary to existing valid regulations.' It was alleged on information and belief that the Attorney General had prepared prior to the Board's decision 'a list of one hundred individuals whose deportation he sought * * *' as 'unsavory characters'; that Accardi's name was among the group; and that the 'list * * * was circulated by the Department of Justice among all of its employees connected with the Immigration Service and the Board of Immigration Appeals' with the result that 'since that time it has been impossible for (Accardi) to secure fair consideration of his case.' We concludd that, if Accardi could prove that the Board had not exercised its own discretion in the matter, he should receive 'a new hearing before the Board without the burden of previous proscription by the list.' 2 On the remand, the District Court, after a full hearing, found that the Board members 'reached their individual and collective decision on the merits, free from any dictation or suggestion * * *' and again dismissed the writ. The Court of Appeals reversed, one judge dissenting, 219 F.2d 77, 80. The opinion of the court based its conclusion on the ground that the 'Attorney General's statements (had) unconsciously influence(d) the Board members so that they felt obliged not to exercise their discretion and, without doing so, to decide against Accardi.' The chief judge concurring in the result, thought that our prior opinion merely required Accardi to prove 'that there was a list as alleged, that he was on it, and that this fact was known to the Board.' The dissenting judge, on the other hand, read our opinion as meaning 'no more * * * than that (Accardi's) allegations sufficiently charged 'dictation' by the Attorney General,' entitling Accardi to a hearing on the question of 'whether the Board's denial of discretionary relief represented its own untrammelled decision or one dictated by the Attorney General.' Page 90. He concluded that the finding of the trial judge was not clearly erroneous. We agree with the dissenting judge both as to the interpretation of our prior opinion and its application to the facts of this case. 3 The opinion of the court recognized that, before Accardi was entitled to another Board hearing, he had to prove that a majority of the Board not only knew of the 'list' but were affected by it. However, the opinion concluded that the Board's position that its judgment had not been affected the 'the list' was incredible. We find nothing incredible in the uncontradicted testimony produced before the trial judge through a number of witnesses including the Board members. The record shows that in fact there was no list, as such, and hence that one could not have been circulated among the members of the Board; that the fanfare of publicity complained of was in connection with the Attorney General's 'deportation program'; that this program was never publicly related to Accardi until after the Board's decision; that only one Board member knew Accardi was covered by the program, while two others and the Chairman never had such knowledge until after their decision; that the fifth member asserted that he 'may have known (of Accardi's inclusion in the program) but * * * couldn't say'; and that no person in the Department of Justice ever directly or indirectly approached any Board member as to the matter. It seems to us that the record fully supports the District Court's conclusion that the Board's decisions represented the free and undictated decision of each member. Among the eight witnesses who gave testimony concerning the matter, was the Attorney General. He testified that there was no list; that his investigation 'indicated that (Accardi) was a racketeer and that is the reason (he) moved to deport him'; that he 'never at any time discussed this matter with any member of the (Board).' In the face of such evidence, we do not believe that speculation on the effect of subconscious psychological pressures provides sufficient justification for rejecting the District Court's finding as clearly erroneous. 4 Accardi emphasizes the trial court's finding that the Board had notice of the program and of his inclusion therein. This 'notice,' at most, was given only to the calendar clerk of the Board so that the hearing of certain cases might be expedited. The testimony that it was not furnished to members of the Board or the Chairman is undisputed. 5 We believe that Accardi has had the hearing required by our previous opinion and that he has failed to prove his case. 6 Accordingly, the judgment of the Court of Appeals is reversed and that of the District Court affirmed. 7 Reversed and remanded. 8 Mr. Justice HARLAN took no part in the consideration or decision of this case. 9 Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER joins, dissenting. 10 There is disagreement here as there was in the Court of Appeals as to precisely what was meant by our former opinion and holding in this case. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681. This is not surprising in view of ambiguity of language at its best. The Court gives our former opinion a different and in some respects a narrower meaning than I would. I think the Court's interpretation deprives Accardi of a right which I thought our first opinion guaranteed him as far as possible under existing law—an opportunity to have his rights determined by a tribunal which had not already made up its mind based on anonymous information. Consideration of this basic issue requires a more extensive reference to the record in this and the prior case than the Court has found it necessary to give. Accardi's rights cannot be fairly determined on broad legal generalizations or by merely interpreting our former opinion. If that opinion means no more than the Court indicates then Accardi's right to have suspension of his deportation determined without prejudgment by the Attorney General has never been passed on. 11 Accardi, born in Italy, came to this country in 1932, when the was 21 years old. He entered the United States from Canada, intending to remain here permanently. But he had no immigration visa. Under the law this made him a deportable alien. Proceedings to deport him were begun in 1947. He married in 1949 and has one child. His wife and child depend on him for support. Because of his original illegal entry, Accardi was ordered deported. 12 The basis of this controversy is not the original order of deportation but is Accardi's application for suspension of that order under § 19(c) of the Immigration Act of 1917.1 That section provides that under certain circumstances the Attorney General 'may' suspend deportation of an alien upon proof that he has had good moral character for the preceding five years. The Act does not require the Attorney General to hold hearings, or make findings in suspension cases. But regulations properly promulgated by the Attorney General do provide for hearings, and as we held in the prior Accardi case those regulations have the effect of law. In other words, our holding was that the Attorney General can no more deny the suspension without hearings prescribed by the regulations than he could if such hearings had been prescribed by Congress itself. And as we explained in our prior opinion, the law through the regulations now provides for aliens like Accardi to obtain 'decisions at three separate administrative levels below the Attorney General—hearing officer, commissioner, and the Board of Immigration Appeals.' 347 U.S. at page 266, 74 S.Ct. at page 502. The Board is appointed by the Attorney General and can be removed by him whenever he pleases. 13 The habeas corpus petition considered in this case and the prior one alleged that the deportation order and the order denying favorable discretionary relief were both null and void, violated due process and should be set aside. The two chief grounds alleged were: (1) The decision to deny favorable discretionary relief to Accardi 'was pre-judged by the Attorney General on October 2, 1952,' which was six months before the Board of Immigration Appeals finally acted on Accardi's application for suspension; (2) The Attorney General had so widely publicized and circulated statements about his plan to deport Accardi that it was impossible for the Attorney General's subordinates to grant fair consideration to Accardi's application for suspension of deportation. An exhibit attached to the petition showed that the Attorney General on October 2, 1952, publicized that 'the Justice Department hopes to strip citizenship rights from 100 foreign-born racketeers and deport them' and that Accardi was one of these alleged racketeers. Other exhibits showed that after the Board of Immigration Appeals decision against Accardi in April, 1953, it was announced by the Department of Justice that the Board's action was taken 'under the current denaturalization and deportation program of Attorney General Brownell against top racketeers and subversives.' The District Court in the original proceedings refused to permit Accardi to offer evidence to prove that the Attorney General had prejudged his case and that the circumstances were such that the Attorney General's subordinates could not give a fair trial. The District Court then summarily dismissed the case and the Court of Appeals, one judge dissenting, affirmed. 2 Cir., 206 F.2d 897. It was that case we reversed in our prior opinion the meaning of which is now in controversy. 14 When the case reached us we said in part as follows: 15 'The petition alleges that the Attorney General included the name of petitioner in a confidential list of 'unsavory characters' whom he wanted deported; public announcements clearly revealed that the Attorney General did not regard the listing as a mere preliminary to investigation and deportation; to the contrary, those listed were persons whom the Attorney General 'planned to deport.' And, it is alleged, this intention was made quite clear to the Board when the list was circulated among its members. In fact, the Assistant District Attorney characterized it as the 'Attorney General's proscribed list of alien deportees.' To be sure, the petition does not allege that the 'Attorney General ordered the Board to deny discretionary relief to the listed aliens.' It would be naive to expect such a heavy-handed way of doing things.' 347 U.S. at 267, 74 S.Ct. 503. 16 Pointing out that 'the allegations are quite sufficient' we went on to say that 17 'If petitioner can prove the allegation he should receive a new hearing before the Board without the burden of previous proscription by the list. After the recall or cancellation of the list the Board must rule out any consideration thereof and in arriving at its decision exercise its own independent discretion, after a fair hearing, which is nothing more than what the regulations accord petitioner as a right. Of course he may be unable to prove his allegation before the District Court; but he is entitled to the opportunity to try.' 347 U.S. at 268, 74 S.Ct. 504. 18 I think that petitioner proved beyond all peradventure that the Attorney General did 'prejudge' Accardi's case as alleged. Under our former opinion this was enough to justify relief. But this crucial question was not passed on at all by the District Court in this case. It went on the theory that we held that petitioner was entitled to relief only if he could establish that the Board of Immigration Appeals felt itself 'dictated to' by the Attorney General so that it could not give a recommendation based on its own discretion. In my view this was an unwarranted narrowing of the issues raised. But the Court today seems to accept this as the full scope of our prior holding. Given that narrow scope, our holding fell far short of deciding the issues which were actually presented and were due to be decided if, as we said, Accardi was entitled to 'a fair hearing, which is nothing more than what the regulations accord petitioner as a right.' 19 In the final analysis, under both statute and regulations the discretion to be exercised is that of the Attorney General. Due to the regulations, however, that discretion can no longer be exercised arbitrarily or without hearings. A fair hearing by an impartial board has been established as a prerequisite to final exercise of discretion by the Attorney General. Failure to await these required hearings and findings before deciding to deport is therefore a violation of the very regulations the Attorney General has prescribed under authority of law. That the suspension of deportation of Accardi was prejudged long before the Board of Immigration Appeals made its decision is established by the undisputed testimony of Hon. James P. McGranery who was the Attorney General on October 2, 1952. He testified that he did have a planned program at that time for the deportation of selected aliens. Shortly thereafter he gave out a statement that the arrest of a certain named alien 'was another step in his denaturalization and deportation program aimed at ridding the Nation of undesirable aliens engaged in racketeering and other criminal activities.' The Attorney General testified that this statement accurately reflected his program. He also testified that 'Joseph Accardi's case was one of the earliest cases submitted, and his case was already on appeal at the time * * *. But my investigation and the record of Accardi proved him, to my satisfaction, to be a racketeer. That is why I put him on there.' In testifying about the beginning of his deportation program, the Attorney General said, 'I had a conference very early in my administration with John Edgar Hoover. I asked him to prepare for me, after combing his records, names of persons who were engaged in subversive activities and subject to deportation, * * * racketeers and undesirables who were here in the country and subject to deportation * * *.' To carry out his program the Attorney General required a 'progress report' to be submitted to him every day concerning the activities of the previous day. Accardi, he said, had been defined by him as a racketeer because of information received from the FBI, and that was the reason he 'moved to deport him.' The record shows that Attorney General Brownell continued to carry out the particular deportation program Attorney General McGranery had begun. On April 3, the day the Board of Immigration Appeals decided against Accardi, Attorney General Brownell issued a press release announcing that 'Accardi, known as a New Jersey racketeer, is a native of Sicily, Italy, and brother of Samuel Accardi against whom denaturalization proceedings are pending in the Federal court at Newark.' Later the Attorney General in a speech referred to Accardi as an 'undesirable,' and an Assistant Attorney General in a speech listed Accardi among a number of so-called 'nationally known hoodlums who are the objects of the program.' 20 It is significant that on the very day Attorney General Brownell referred to Accardi as a 'racketeer,' the Board of Immigration Appeals found as a fact from evidence that he was 'considered a person of good moral character.' Moreover, there was no evidence before the Board to show that Accardi was or ever had been a 'racketeer.' The record therefore establishes that the Attorney General not only prejudged Accardi's case against him but evidently did so on the basis of anonymous information that he was a racketeer. It may be as Judge Frank suggested that in so characterizing Accardi the Attorney General confused him with someone else. However this may be, the record leaves no doubt that the Attorney General's office decided to deport Accardi on the ground that he was a 'racketeer' and that this characterization was continued by the Attorney General long after the Board had refused to suspend Accardi's deportation although finding that he had a good moral character. The Attorney General's prejudgment deprived Accardi of the benefit of the Attorney General's discretion fairly exercised after a hearing as the law prescribes. For this reason the case should be affirmed. 21 There are also other reasons why I think this judgment should be affirmed and the case sent back to the Board of Immigration Appeals to carry out the directions of the Court of Appeals. Whatever this Court's prior opinion may have meant, the case should not go off on the District Court's finding of fact that the Board of Immigration Appeals actually exercised its own untrammeled discretion despite what the Attorney General said or did. That finding rests almost entirely on testimony given by the Board members themselves denying that they were influenced by the Attorney General's planned program to deport certain named aliens. I deem it bad practice to subject administrative officers, acting in a quasi-judicial capacity, to a probe of the mental processes which led them to decide as they did. That is what the Court sanctions here. We have already decided that this practice is no more desirable than that of probing the minds of judges to try to fathom the reasons which prompt their decisions. United States v. Morgan, 313 U.S. 409, 421—422, 61 S.Ct. 999, 1004, 85 L.Ed. 1429. 22 Whatever the Board members' state of mind may have been, I think the Attorney General's publications placed the Board of Immigration Appeals, the members of which hold office completely at his will, in a position that no judicial agency should be. Copies of newspaper interviews and speeches made by two Attorneys General and an assistant, which appear in the record, proclaim a strong desire and purpose to carry out a program under which Accardi and a large group of others named from time to time were to be stripped of citizenship and deported from this country. The District Court found that notice of this program was given to the Board. This Court, however, distinguishes between information given to the Secretary of the Board and to the Board itself. But a program of this kind, so well-publicized that it went to every part of the United States and to various political gatherings, could hardly be expected not to permeate the Board of Immigration Appeals working in the Department of Justice in Washington. Orders and proclamations of the Attorney General, head of that Department, cannot be thought to have so little influence or effect in his Department. It is true that the statements and program of the Attorney General are now referred to as intended to do no more than 'expedite' action by the Attorney General's subordinates, including the Board of Immigration Appeals. But this program according to the evidence occupied the most prominent place in the Department's activities. Daily reports had to be made to the Department by those men who carried on the program. They were selected because of their outstanding ability and aggressiveness. So what we have is not merely a finding by the District Court that the Attorney General's program was sent to the Board. We have in addition a showing of departmental emphasis on that program which makes it impossible to believe that the subordinates were oblivious to the Attorney General's great interest in deporting the particular men whose names appeared on his 'proscribed list' or 'program' or 'statistical data' as it was variously termed by government witnesses. The requirement for fair administration of justice is not satisfied by a mere finding based on Board members' testimony that this particular Board at this particular time was strong enough to resist the plain implications of the Attorney General's strong program for deportation. 23 The inevitablity of what was to happen to Accardi after his name was put on the 'Attorney General's proscribed list on alien deportees' is rather strongly indicated by the fact that not one of these aliens has ever been granted final discretionary relief allowing him to remain in this country. In an effort to show that aliens on the list are not barred from discretionary relief, the Government refers to four specific cases. In two of those cases, however, the aliens were not deportable under existing law and thus the Board did not reach the question of discretionary relief. In the third case the alien was allowed to leave voluntarily instead of being forcibly deported as he otherwise would have been. In the fourth case the Board did actually recommend that deportation be suspended. But that is not the full picture. The hearing officer who had recommended the alien's immediate deportation was investigated after the Board's recommendation of suspension. The Department of Justice concluded that he had been derelict in not fully developing 'important derogatory information' concerning the alien and announced that he had been relieved of duty and that disciplinary action would be taken against him.2 At the instance of the Department, as the Government's brief points out, the Board granted a rehearing on the alien's right to suspension which appears to be still pending. Thus the Attorney General cannot point to a single case in which one of the proscribed aliens has been finally granted a discretionary suspension. 24 It is my opinion that petitioner proved that the Attorney General's publicized program made it impossible to expect his subordinates to give Accardi's application that fair consideration which the law requires. The use of administrative bodies as agencies of justice under law is seriously weakened by proceedings such as these. We should adhere to the spirit of our first opinion and require that the Board hold a fair hearing in Accardi's case after 'the recall or cancellation' of this 'list' as the Court of Appeals ordered.3 The implications of the Attorney General's program and statements must be repudiated before this Board can be considered the kind of free and impartial tribunal which our system of justice demands. * Mr. Justice Jackson, dissenting, joined issue thus: 'We do not think (that the) validity (of the Board's order) can be impeached by showing that (the Attorney General) overinfluenced members of his own staff whose opinion in any event would be only advisory.' 347 U.S., at 270, 74 S.Ct. 504. 1 62 Stat. 1206, 8 U.S.C. § 155(c), now 8 U.S.C.A. § 1254(a)(1, 2). 2 This information is contained in a Department of Justice press release dated April 6, 1955, which appears in Accardi's supplemental brief. The Department has not denied this press release. 3 The Court of Appeals said: '10. The Attorney General, on April 23, 1954, a few days after the Supreme Court's decision came down, issued instructions that the Board should not be influenced in its decisions by his 'program' but, in each case, should exercise independent judgment. '11. Accardi must be released from custody unless, within a reasonable time, the Board, under those new instructions, holds a new hearing and renders a new decision on his application for discretionary relief. Although the Board has already found that he has a good moral character, he should have the opportunity at the new hearing to offer evidence that he is not and never has been a racketeer. For it may be that, in so characterizing Accardi, the Attorney General has confused him with someone else of the same name.' 219 F.2d 77, 83.

12

349 U.S. 237 75 S.Ct. 736 99 L.Ed. 1029 LEWYT CORPORATION (Now Known as Lewyt Manufacturing Corporation), Petitioner,v.COMMISSIONER OF INTERNAL REVENUE. No. 417. Argued April 19, 1955. Decided May 23, 1955. Mr. Seymour Sheriff, Washington, D.C., for petitioner. Asst. Atty. Gen. H. Brian Holland, for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This case is a companion case to United States v. Olympic Radio & Television, Inc., 349 U.S. 232, 75 S.Ct. 733. The main point in the two cases is the same—whether a taxpayer on the accrual basis can, in computing its net operating loss for one year, deduct the amount of excess profits taxes which were paid in that year but had accrued in an earlier year. 2 The years 1944 and 1945 were years of profit for the taxpayer. For the years 1946 and 1947, the taxpayer incurred net operating losses which were allowed by the Commissioner as carry-back deductions to the years 1944 and 1945. The taxpayer sought to augment its net operating loss for 1946 by the amount of excess profits taxes which it paid in 1946 on account of its 1945 excess profits tax liability. The Commissioner disallowed the deduction and the Tax Court sustained the Commissioner. 18 T.C. 1245. The Court of Appeals affirmed. 215 F.2d 518. The case is here on a petition for certiorari which we granted, 348 U.S. 895, 75 S.Ct. 217, to resolve the conflict with the Olympic Radio case. Our views, as expressed in the latter case, coincide with those of the Court of Appeals. Accordingly, we affirm that part of the judgment. 3 There is present in this case a point not involved in the Olympic Radio case. The question is whether the excess profits tax that may be offset against 1944 net income is the amount of excess profits tax reported for the year in question or the amount ultimately found to be due. The taxpayer claims it is the former; the Commissioner, the latter. 4 The question centers on § 122(b)(1) and § 122(d)(6). As we have seen in the Olympic Radio case, § 122(b)(1) directs that the net operating loss for a given year be carried back to the two preceding taxable years.* And § 122(d)(6) allows as a deduction 'the amount of tax imposed by Subchapter E of Chapter 2 (i.e., the excess profits tax) paid or accrued within the taxable year * * *.' (Italics added.) 5 The taxpayer's net income for 1944, as shown by its return, was $827,852.99; and, as finally determined, was $584,866.81. The excess profits tax due according to its 1944 return was $625,561.59. The Commissioner, after allowing as a deduction a net operating loss carry-back of $164,326.38 arising in 1946, and making other adjustments, ultimately determined the taxpayer's excess profits tax liability for 1944 to be $280,540.33. The Commissioner computed the net income for 1944 at $304,326.48, that is, $584,866.81 minus $280,540.33. Since the net operating loss of $164,326.38 was less than $304,326.48, there was no loss to be carried back to 1945, as § 122(b)(1) provides '* * * that the carry-back in the case of the first preceding taxable year shall be the excess, if any, of the amount of such net operating loss over the net income for the second preceding taxable year * * *.' 6 The taxpayer, however, contends that the excess profits tax 'accrued' in 1944 is the tax shown on its return for that year, viz., $625,561.59. If this larger amount is the correct figure, then the deduction allowed against 1944 income will be so great as to leave a carry-back which can be deducted against 1945 income. 7 The controversy turns on the meaning of the clause in § 122(d)(6) which reads, 'the amount of tax imposed by Subchapter E of Chapter 2 * * * accrued within the taxable year * * *.' The Commissioner contends that the tax 'imposed' is the tax ultimately determined to be due. The argument is that the taxpayer having once got back, through credit or refund, the difference between the amount of the tax 'accrued'in 1944 and the amount finally determined to be due, no double benefit should be inferred. The double benefit, it is argued, should certainly be denied when the figure upon which it is based has no economic reality. 8 But the rule that general equitable considerations do not control the measure of deductions or tax benefits cuts both ways. It is as applicable to the Government as to the taxpayer. Congress may be strit or lavish in its allowance of deductions or tax benefits. The formula it writes may be arbitrary and harsh in its applications. But where the benefit claimed by the taxpayer is fairly within the statutory language and the construction sought is in harmony with the statute as an organic whole, the benefits will not be withheld from the taxpayer though they represent an unexpected windfall. See Bullen v. State of Wisconsin, 240 U.S. 625, 630, 36 S.Ct. 473, 474, 60 L.Ed. 830. 9 When Congress wrote the word 'imposed' into § 122(d)(6), it might have used it in one of two different senses—either to identify the tax or to define the amount of the tax that is to be levied and collected. We think that Congress used 'imposed' in the former sense. 10 In the first place, the deduction allowed by § 122(d)(6) is not the tax 'imposed' by Subchapter E of Chapter 2. It is 'the amount of tax imposed by Subchapter E of Chapter 2 * * * accrued within the taxable year.' The word 'imposed' when used in conjunction with 'accrued' makes tolerably clear that 'imposed' merely identifies or describes the tax that 'accrued.' That is to say, the sentence as a whole indicates that 'imposed' is used merely by way of reference. It seems clear that Congress had that understanding. The Senate Finance Committee reported: 11 'Section 122 of the Code, relating to computation of the net operating loss deduction allowed by section 23(s) of the Code, is amended so as to allow the excess profits tax paid or accrued within taxable years (subject to certain rules) as a deduction in computing net operating loss for, and net operating loss carry-over and carry-back from, such taxable years.' S.Rep. No. 1631, 77th Cong., 2d Sess., p. 67. And see H.R.Rep. No. 2333, 77th Cong., 2d Sess., p. 65. 12 That indicates that the test of deductibility under § 122(d)(6) is whether the tax 'accrued' within the taxable year. 13 Secondly, the general section dealing with deductions, § 23, allows deductions for taxes paid or accrued during the taxable year, with certain specified exceptions. § 23(c). Some of the excepted taxes are identified by well-known names, e.g., federal income taxes, estate, inheritance, legacy, succession, and gift taxes. See § 23(c)(1)(A), (D). Other taxes excepted are identified by reference to the taxes 'imposed' by certain provisions of the law. Thus § 23(c)(1)(B) excepts 'war-profits and excess-profits taxes imposed by * * * Subchapter E of Chapter 2.' The applicable Treasury Regulation indicates that the word 'imposed' identifies the tax. It provides: 'Subject to the exception stated in this section * * * taxes imposed by the United States * * * are deductible from gross income for the year in which paid or accrued.' 26 CFR § 39.23(c)—1. 14 Section 23 is especially relevant here, since the language of § 122(d)(6) was taken almost verbatim from § 23. That section as amended by the Revenue Act of 1941 had provided that, in computing net income, a deduction for taxes 'paid or accrued within the taxable year' should be allowed. 15 As respects the excess profits tax, § 23(c)(2) provided: 16 'For the purposes of this subsection, in the case of the excessprofits tax imposed by Subchapter E of Chapter 2— 17 '(A) The deduction shall be limited to the tax imposed for the taxable year * * *.' 55 Stat. 700. (Italics added.) It would seem that (A) would have limited the § 122(d)(6) adjustment to the tax finally paid. But (A) was omitted from § 122(d)(6). The word 'imposed' as used in the quantitative sense was dropped, while the word 'imposed' as used to identify the tax was retained. 18 Finally, the tax that 'accrued' within a given year is not the tax finally determined to be due but the tax before ultimate adjustments are made. That is elementary in tax law. See Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 284, 64 S.Ct. 596, 597, 88 L.Ed. 725. It would seem therefore that the concept 'accrued' embodies the annual accounting principle. If, in case of a taxpayer on the accrual basis, events after the taxable year are taken into account, the word 'accrued' would be effectively read out of § 122(d)(6) or given a varied meaning, contrary to our ruling in the Olympic Radio case. 19 It is true that the computations under § 122 are designed to spread losses over a five-year period. But we are concerned with a technical concept that is being used as the basis of the formula for that reallocation. We find no justification for taking 'accrued ' as used in § 122(d)(6) to mean one thing in the setting of the Olympic Radio case and another in this situation. 20 Our conclusion is in accord with a line of related decisions. The whole tax scheme has been posited on the basis that the duty to pay is without regard to the deduction made available by the carry-back. See Manning v. Selley Tube & Box Co., 338 U.S. 561, 567, 70 S.Ct. 386, 389, 94 L.Ed. 346. Only recently we applied that principle to the excess profits tax. In United States v. Koppers Co., 348 U.S. 254, 75 S.Ct. 268, we held that these taxes were payable in full the year when they were due and that interest was payable on the amounts so due, even though ultimately portions of the taxes were abated. 21 In short, the amount of tax accrued within the taxable year under § 122(d)(6) is to be determined in accord with the normal accounting concepts relevant to the accrual basis. That amount is not, of course, to be ascertained solely by reference to the figure set forth in the taxpayer's return, for that figure may be erroneously computed on the accrual basis. But when an amount is arrived at by proper application of recognized accounting principles on the accrual basis, the test of § 122(d)(6) has been met. Events and transactions of later years, irrelevant to a determination of income on the accrual basis, do not warrant alteration of the figure computed under § 122(d)(6) for the year in question. Affirmed in part and reversed in part: 22 Mr. Justice HARLAN took no part in the consideration or decision of this case. 23 Mr. Justice FRANKFURTER, whom Mr. Justice REED and Mr. Justice BURTON join, dissenting. 24 This case involves construction of a rather opaquely worded provision of the Internal Revenue Code of 1939, § 122. But the problem to which this section is directed, its objectives and the general plan by which they are pursued, ought not to elude clarity. 25 Our system of income taxation operates on an annual basis. Each taxpayer is required to determine, on the basis of knowledge available to him at the end of the taxable year, the amount of income or loss for that year. In its original strict form, this system did not permit readjustment of the annual income figure to reflect unanticipated events occurring in subsequent years—for instance, repayment in a later year of money received from sale of goods or services and reported as income in the earlier year—even though logically and practically these facts operated to reduce the income as originally reported. More important, the system required that a taxpayer with profit in one year and an equal loss in the next year pay taxes in the year of profit without regard to the loss in the next year, even though from a business and human point of view the taxpayer, over the broader period of two years, had no income. 26 Here we are dealing with certain ameliorations of the unduly drastic consequences of such a system in its rigid form. Primarily we have to consider § 122 of the Internal Revenue Code, which, to a limited degree, permits reflection of the fact that income in one year may, in the not uncommon fluctuation of business affairs, have been offset by losses incurred in subsequent or preceding years. At the time here relevant, § 122 provided that if a 'net operating loss' in business operations occurred in one year, and net income had been or was later received in any of the two preceding or succeeding years, this net income could be cancelled against the loss by 'carry-back or 'carry-over' of the loss to the year in which income was received. If the loss were carried back, reducing the income already reported, taxes already paid on the amount of income cancelled were to be refunded. 27 Stripped of details, the scheme appears simple. However, with a view to dealing comprehensively with the multifarious manifestations of business activities, the scheme as embodied in intricate statutory form raises difficulties. They are accentuated in this case because of the relevance of other peculiarities of tax accounting. 28 Thus, the first question raised in this case, one already dealt with in United States v. Olympic Radio & Television, Inc., 349 U.S. 232, 75 S.Ct. 733, brings into focus the differences between two tax accounting systems, one in which the year's transactions are recorded on a cash receipts and disbursements basis, and the other utilizing the accrual system. We agree that this taxpayer, whose taxes for all other purposes are calculated on the accrual system, must determine the amount of the loss which may be carried forward or back on the same basis The other question, however, brings into play the more complex provisions of § 122 as well as a second statutory modification of the strict annual concept. This modification grows out of the 'renegotiation' system devised by Congress to deal with potentialities of unconscionable profits to war contractors providing supplies to the Government. Under it, the contract price originally agreed upon between the contractor and the Government is subject to 'renegotiation' as a later date to determine whether what originally had been thought to have been a fair price in fact proved overly generous. If so, the Government was entitled to a reduction in the price or, if payment had already been made, a refund of the disallowed profit. Naturally enough, the taxpayer was permitted to reflect the fact that he had been required to repay amounts on the basis of which he originally paid income taxes by reopening the earlier tax return, reducing the income reported and the tax due. 26 U.S.C. § 3806(b), 26 U.S.C.A. § 3806(b). 29 We are concerned here with a taxpayer on the accrual basis which in 1946 suffered a net operating loss ($164,326.38), but in 1944 and 1945 had a considerable net income ($827,852.991 and $1,215,320.25 respectively). In 1944 and 1945 petitioner was therefore required to pay both corporate income and excess profits taxes. Much of the income accrued by petitioner in the year 1944 was derived from war contracts. Renegotiation in subsequent years reduced the amounts actually received or retained by petitioner below the figures reported for 1944 by $397,970.00. Petitioner, therefore, received a refund of excess profits taxes reflecting this fact. 30 On the basis of petitioner's operating loss in 1946, it is entitled to carry back this loss under § 122. Where, as here, the taxpayer has had net income in both of the two years preceding the loss year, that section directs that the carry-back be first applied to the earlier taxable year, 1944, and the remainder, if any, be applied to reduce income for 1945. It is not in dispute that petitioner could carry back to 1944 the full amount of the net operating loss which it incurred in 1946, and petitioner's income and excess profits taxes for that year have been reduced to the full extent of this loss. Does anything remain to be applied in reduction of 1945 income? 31 Congress has provided a detailed formula for determining how much loss remains for application in 1945. The difficulty arises in applying the formula, because Congress has not made explicit, and so left in doubt, what set of figures may fairly be used in translating the generality of the formula into amounts. The difficulty is enhanced because the relevance of some of the factors used in the formula to any discernible congressional purpose is unclear. Logically one would expect that the statutory formula would be designed merely to permit application to 1945 of so much of the 1946 loss as was not used to concel 1944 taxes. But Congress, for its own good reasons, felt that certain other factors should be reflected in this calculation. One factor, which it is not for us to explain, was the amount of the taxpayer's excess profits tax for 1944. 32 To vivity this problem, one must reduce to technical concreteness the statutory formula. It states, insofar as here relevant, that the amount of carry-back lift for application in 1945 is the amount of the 1946 loss, less the figure arrived at by subtracting from 'the net income for the second preceding taxable year (1944),' 'the amount of tax imposed by Subchapter E of Chapter 2 paid or accrued within the taxable year (1944).' The latter is a dry statutory description of the excess profits tax. 33 Thus in addition to petitioner's 1944 net income, the formula makes the 1944 excess profits tax figure crucial. The question here is: what 1944 excess profits tax figure? The amount of the tax due on the basis of the taxpayer's knowledge at the close of the 1944 taxable year, that is, what its truthful balance sheet for that year indicated to be the tax ($625,561.59)? Or the amount of the tax which petitioner eventually and definitively had to pay after subsequent events had resulted in a downward revision of the originally reported 1944 tax ($318,577.67 tax reduction due to renegotiation, plus approximately $150,000.00 due to the carry-back of the 1946 loss)? 34 If it is the former figure, petitioner's excess profits tax reported in 1944 ($625,561.59) was larger (because it did not take into account the then unknown reduction due to renegotiation and carry-back) than the figure for 1944 net income ($584,866.81), which, for reasons later to be explained, all parties concede should be the figure used in the formula, one reflecting the fact of later renegotiation, but not reflecting the 1946 loss carry-back. Applying the formula on the basis of the larger excess profits figure, there is nothing to subtract from the 1946 loss, and the full amount of this loss is therefore available to offset 1945 net income and bring about a further refund no taxes for that year. But the full amount of the 1946 loss has already been applied in 1944 to offset the 1944 income and to bring about a refund for that year. Thus the Court's decision permits the loss in 1946 to offset twice as much income in 1944 and 1945. 35 If, one the other hand, the 1944 excess profits tax figure is adjusted to reflect the reduction in the tax occasioned by renegotiation and the 1946 carry-back to 1944, the formula will not permit such double use of the 1946 loss; the difference between the 1944 net income figure ($584,866.81) and the adjusted 1944 excess profits tax ($280,540.33) is greater than the amount of the 1946 loss ($164,326.38). 36 Either of these positions can be supported by arguments based solely upon the literal language of the statute. Here we are not compelled in our choice by austere regard for what Congress has written, undistorted or unmitigated by judicial rewriting, no matter what the consequences in a specific case. Where the taxing measure is clear, of course, there is no place for loose conceptions about the 'equity of the statute.' Revenue laws are notoriously not expressions of an ordered system of reason and fairness. There has probably never been a revenue statute which, by design or oversight, has not favored some groups and laid the basis for a claim of unfairness to other similarly situated. But while one should sail close to the shore of literalness in dealing with the technical problems which are the subject matter of revenue laws, literalness of meaning affixed merely to a particular word or phrase may itself distort what the provision as an entirety and in context conveys and therefore commands. And where ambiguous language is used, the mode of construction applied in Olympic Radio, supra, should not be ignored—that deductions and credits are matters of legislative grace and the taxpayer must bring himself clearly within the relief he claims. 37 Nor does the decision in Olympic Radio shed any light on our present problem. In that case we merely decided that an accrual taxpayer must be consistent in his choice of tax accounting systems—that in calculating his loss for a given year he must use figures relevant to that year's operations, accrued figures, rather than figures based on cash payments related to transactions in a different year. We had no occasion to determine in that case whether the accrued figure to be used was to be the figure originally reported or the figure reflecting later adjustments to the original figure. That is the issue here. 38 The crucial phrases in determining whether the original or the adjusted figure for 1944 excess profits tax is to be used are: (1) 'tax imposed by Subchapter E of Chapter 2', and (2) 'paid or accrued within the taxable year.' We agree that the first phrase serves merely to identify the nature of the tax referred to and vouchsafes nothing on the question in issue. We need not add to what the Court has said on this. We do not agree, however, that the second phrase compels the reading which the Court gives it. 39 For purposes of payment of current annual taxes, the phrase 'accrued within the taxable year' has come to mean the figure arrived at by taking into account only knowledge available at the end of the taxable year. This reflects the fact that our tax system is operated on an annual basis and that it would be difficult to permit continual reopening and readjustment of old returns in light of later developments. See Burnet v. Sanford & Brooks Co., 282 U.S. 359, 51 S.Ct. 150, 75 L.Ed. 383; Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 286, 64 S.Ct. 596, 598, 88 L.Ed. 725; Dixie Pine Products Co. v. Commissioner, 320 U.S. 516, 519, 64 S.Ct. 364, 365, 88 L.Ed. 420. Were we presented with a question whether the taxpayer owed the Government interest on a deficiency, existing at the time his return was filed, in payment of 'accrued' taxes, we would agree that the tax 'accrued' was the tax calculated on the basis of the situation at the end of the taxable year without regard to any later adjustment in the amount of tax due which eliminated the deficiency. Cf. Manning v. Seeley Tube & Box Co., 338 U.S. 561, 70 S.Ct. 386, 94 L.Ed. 346; United States v. Koppers Co., 348 U.S. 254, 75 S.Ct. 268. 40 But if 'accrued' has this meaning generally in our taxing system, it has acquired this sense not because it inevitably, lexicographically speaking, has this meaning, but because of the interences which have grown up about it through use in the context of annual payment of taxes. In short, usage, the ultimate glossator, has made it a term of art in this context. 41 In the present case, we deal with sections of the code, which express exactly the opposite philosophy from that which gave rise to this use of 'accrued' as a technical term looking only to events occurring within a single year. We deal with sections which direct re-examination of returns for past years in an effort to ameliorate the shortsightedness of the annual system which fostered a restrictive, closed meaning of 'accrued.' The very purpose and direction of these sections require adjustments to earlier returns on the basis of subsequent facts. Surely in this context there is no rational reason for refusing to recognize the state of affairs as unfolded in the years which § 122 directs you to re-examine—the current year and two preceding years. Where the subsequent events are recognized by the Code as proper occasions for adjusting old returns, the arguments of administrative convenience which underlie closing the tax affairs of the year within the taxing year are empty because they have nothing to which they can apply. 42 Section 122 was designed to relieve the taxpayer from an unrealistic concept which taxed income which really was not there. Surely we should not conclude that Congress intended to go to the other extreme and refund taxes on the basis of losses which are really not there. There is confirmation within § 122 itself which should preclude such result. It lies in subsection 122(b)(1)(B),2 which alone justifies the assumption, made by the Court and both parties, that the figure for 1944 net income to be used in the formula is the lower figure reflecting the adjustment for renegotiation ($584,866.81) rather than the one originally reported ($827,852.99). All the argument used to demonstrate that the 1944 excess profits figure should be the unadjusted figure proves with equal force that the 1944 net income figure should be the unadjusted figure. For 'net income' for any given year is, generally speaking, arrived at by an accrual taxpayer by determining accrued gross income and accrued deductions for that year. §§ 21(a), 22, 23, 41, 42(a), 43, 48(c). Inherent, therefore, in § 122's phrase 'net income' is the same concept of 'accrued' as is explicitly used in that section's reference to the excess profits tax. If 'accrued' does not permit taking into account later adjustments to the tax, it does not permit reflection of adjustments to net income. 43 But subsection 122(b)(1)(B) shows clearly that Congress assumed that the formula we have been discussing would reflect subsequent adjustments to 1944 net income. That subsection states in effect that the figure for net income of 1944 used in the formula is not to reflect the fact that the 1946 net operating loss has already been carried back and applied to reduce 1944 net income. If Congress thought it necessary specifically to direct that a certain adjustment to 1944 net income arising from facts developed in later years should not be made, this can only be because Congress assumed that in applying the formula the figures used would reflect such adjustments. We recognize this assumption by taking as the 1944 net income figure the originally reported figure less the amount by which it was reduced as a consequence of renegotiation. There is no basis for differentiation, in recognizing this assumption, between net income and excess profits tax. 44 I would affirm. * Section 122(b)(1) provides: 'If for any taxable year beginning after December 31, 1941, the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-back for each of the two preceding taxable years, except that the carry-back in the case of the first preceding taxable year shall be the excess, if any, of the amount of such net operating loss over the net income for the second preceding taxable year computed (A) with the exceptions, additions, and limitations provided in subsection (d)(1), (2), (4), and (6), and (B) by determining the net operating loss deduction for such second preceding taxable year without regard to such net operating loss.' 26 U.S.C.A. § 122(b)(1). 1 For convenience of reference and because in most instances it makes no difference in the ultimate result, the figures here used for petitioner's 1944 net income and excess profits tax are those which have been used throughout this litigation in the briefs, arguments and opinions. The fact of the matter is that there are in the record three conflicting sets of figures which purport to represent petitioner's net income and excess profits tax in 1944. In one contingency, to be noted below, it becomes important to distinguish between these figures. Petitioner filed two returns for 1944, an original return and an amended return. The Commissioner objected to several deductions which were claimed on the amended return and also permitted several deductions not claimed by petitioner on the amended return, thus arriving at a corrected return for 1944 substantially different from either the original or amended return. Throughout the litigation the figure cited for petitioner's 1944 net income, unadjusted to reflect subsequent events, has been $827,852.99. This is in fact the figure which petitioner reported on its original return as its exces profits net income. The net income figure on the original return was $817,680.90. Petitioner's amended return showed a net income for 1944 of $747,236.60, while correction of petitioner's amended return to reflect errors found by the Commissioner resulted in a figure of $982,836.81. Similarly the accrued excess profits tax for 1944, unadjusted to reflect subsequent events, has been given as $625,561.59. This is the raw figure which petitioner's original return showed as his tax before certain credits and adjustments which he claimed. That return showed as the excess profits tax due for 1944, $605,561.59. The amended return showed $549,206.15 as the tax due. Because of the fact that at the time the Commissioner corrected the errors in petitioner's amended return he was aware of and took cognizance of the later renegotiation and 1946 carry-back, he did not arrive at what would have been the correct figure for the tax which petitioner should have originally reported as due for 1944 on the basis of facts known at the time the 1944 return was filed. The figure would, however, approximate $770,000.00. When, however, the figures for either the 1944 net income adjusted to reflect renegotiation, or the 1944 excess profits tax after adjustment to reflect renegotiation and loss carry-back, have been given, they are the figures arrived at by the Commissioner ($584,866.81 and $280,540.33 respectively). Since these figures are based not only upon a different return by petitioner, but reflect substantial corrections by the Commissioner of the taxpayer's errors, they are not comparable to the figures which are quoted for unadjusted 1944 net income or excess profits tax. Fortunately for most purposes use of these figures does not affect the conclusion reached on the only question involved here—whether any loss is left to carry back to 1945. There is one point at which use of comparable figures does become important. If the figures which have been in general use were comparable, then in our disagreement it would be necessary only to conclude that the unadjusted excess profits tax figure for 1944 ($625,561.59) should be reduced by the amount of tax refunded because of the renegotiation ($318,577.67). Upon application of the formula, subtraction of the resultant excess profits tax figure ($306,983.92) from 1944 net income adjusted to reflect renegotiation ($584,866.81) would give a figure in excess of the 1946 loss carry-back and thus preclude any carry-back to 1945. But if comparable figures are used in applying the formula—it does not matter which of the three sets of figures is used—the reduction in 1944 excess profits tax due merely to renegotiation does not preclude a carry-back to 1945 and thus it is necessary to conclude that the excess profits tax figure for 1944 must also be reduced to reflect the refund resulting from the carry-back to 1944 (approximately $150,000). So reduced, there is no carry-back to 1945. 2 This subsection provides that in applying the formula, the figure for net income of 1944 is to be 'computed * * * (B) by determining the net operating loss deduction for such second preceding taxable year (1944) without regard to such (the 1946) net operating loss.'

1112

349 U.S. 219 75 S.Ct. 712 99 L.Ed. 1016 Philip BART, Petitioner,v.UNITED STATES of America. No. 117. Argued April 5, 1955. Decided May 23, 1955. Messrs. James T. Wright, Washington, D.C., A. L. Wirin, Los Angeles, Cal., for petitioner. Mr. Robert W. Ginnane, Washington, D.C., for respondent. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 On November 20, 1950, the petitioner was indicted under 2 U.S.C. § 192, 2 U.S.C.A. § 192, for refusing to answer thirty-two questions put to him by a subcommittee of the Committee on Un-American Activities of the House of Representatives. During the trial in the District Court for the District of Columbia, the Government abandoned twenty-four of these counts. The District Judge, sitting without a jury, found Bart guilty of the remaining eight charges.1 On appeal, the Court of Appeals for the District of Columbia Circuit reversed the judgment upon three of the counts and, one judge dissenting, affirmed as to the others.2 From that decision, we granted certiorari3 and set the case down for argument along with the two companion cases. Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, and Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687. 2 In response to a subpoena, petitioner appeared before the subcommittee on June 21, 1950. He was then general manager both of Freedom of the Press Co., Inc., which publishes the Daily Worker, and of the Daily Worker itself. During the course of the interrogation, members of the committee and the committee counsel posed various questions dealing with Bart's background, his activities, and alleged associates. Among these were the five questions which, because of petitioner's refusal to answer, led to the convictions now under scrutiny. The particular inquiries involve petitioner's name when he came to this country as a child, his name before it was changed years ago to Philip Bart pursuant to a New York court order,4 his father's name, and the identity of officials of the Ohio section of the Communist Party in 1936.5 To the questions concerning name or family background, he raised objections of pertinency; to the other, he unequivocally pleaded the privilege against self-incrimination. 3 In finding petitioner guilty, the trial court rejected these defenses as without merit. Before the Court of Appeals, petitioner abandoned his defense as to lack of pertinency. The majority thought that this abandonment in effect erased petitioner's objections from the committee record and that they were thus faced with 'naked refusals to answer'6 which did not require affirmative rulings from the committee. We cannot agree. The objections were in fact made before the committee and the witness was entitled to a clear-cut ruling at that time, even though the claims were later abandoned or found to be invalid. Quinn v. United States, supra. Without such a ruling, evidence of the requisite criminal intent to violate § 192 is lacking. An abandonment made two and one-half years after the objections were raised cannot serve retroactively to eliminate the need for a ruling. If the requirement of criminal intent is not satisfied at the time of the hearing, it cannot be satisfied nunc pro tunc by a later abandonment of petitioner's objection.7 Therefore, the issue before us is, upon the record as it stood at the completion of the hearing, whether petitioner was apprised of the committee's disposition of his objections. 4 At no time did the committee directly overrule petitioner's claims of self-incrimination or lack of pertinency. Nor was petitioner indirectly informed of the committee's position through a specific direction to answer. At one juncture, Congressman Case made the suggestion to the chairman that the witness 'be advised of the possibilities of contempt'8 for failure to respond, but the suggestion was rejected. The chairman stated: 5 'No. He has counsel. Counsel knows that is the law. Proceed, Mr. Tavenner.'9 6 A few moments later, when committee counsel inquired as to certain details of petitioner's marriage, the following colloquy took place: 7 'Mr. Unger (Counsel for petitioner). Mr. Chairman, what concern is it of anybody here— 8 'Mr. Walter. We permit you to appear with your client for the purpose of advising your client. You apparently are old enough to have had some experience in court. 9 'Mr. Unger. Yes, indeed. 10 'Mr. Walter. Of course, you know there are many preliminary questions asked witnesses, leading up to some point. As they are propounded you will readily learn what the purpose is. Just advise your client and don't argue with the committee, because we don't rule on objections.'10 11 The questioning proceeded on this basis. 12 Because of the consistent failure to advise the witness of the committee's position as to his objections, petitioner was left to speculate about the risk of possible prosecution for contempt; he was not given a clear choice between standing on his objection and compliance with a committee ruling.11 Because of this defect in laying the necessary foundation for a prosecution under § 192, petitioner's conviction cannot stand under the criteria set forth more fully in Quinn v. United States, supra. 13 Our disposition of the case makes it unnecessary to consider petitioner's other contentions. The judgment below is reversed and the case remanded to the District Court with directions to enter a judgment of acquittal. 14 Reversed. 15 Mr. Justice REED, with whom Mr. Justice MINTON joins, dissenting. 16 This case is controlled entirely by the rule enunciated by the majority in the second ground for the decision in Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668. We shall not here repeat our comments made regarding that rule and its application which are set out in our dissent in the Quinn and Emspak cases. But we cannot agree that under the Quinn rule the petitioner here was not sufficiently apprised of the disposition of his Fifth Amendment and pertinency objections for him to be held guilty of violating § 192. For us the record establishes, as it did for the two courts below, that the petitioner knew that the grounds for his objections were not accepted by the committee; that the committee required him to answer; that he willfully refused to answer. As the majority stated the rule in Quinn, 75 S.Ct. p. 677, 'the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection. So long as the witness is not forced to guess the committee's ruling, he has no cause to complain.' Under this rule we think that the extract from the record set out below places this petitioner in the status of one who 'has no cause to complain.' 17 'Mr. Walter: Did you ever hold any positions other than positions with newspapers? 18 'Mr. Bart: I did. 19 'Mr. Walter: What were they? 20 'Mr. Bart: I was organizer and head of the Communist Party at different times, in different years. 21 'Mr. Walter: Where? 22 'Mr. Bart: In Illinois and Pennsylvania, among many. 23 'Mr. Tavenner: The Daily Worker of March 28, 1936, shows you to have been a section organizer for the Communist Party in Ohio. That is correct, is it not? 24 'Mr. Bart: Most likely. 25 'Mr. Tavenner: Well, you know whether you were a section organizer for the Communist Party in Ohio, do you not? 26 'Mr. Bart: I do not know the exact period of time you mentioned. It is 14 years ago. 27 'Mr. Tavenner: Who were the other officials of the Ohio section of the Communist Party during the period of time you were organizer there? (Count 8, emphasis supplied.) 28 'Mr. Bart: I object to this question. I will not answer it, standing on my rights in accordance with Article V of the Constitution, and furthermore I protest because this committee has asked this question of numerous people and has infringed upon their rights as American citizens. 29 'Mr. Tavenner: I think, Mr. Bart, I should point out that your testimony relating to other people who were associated with you at that time could not in any way incriminate you under the Fifth Amendment. 30 'Mr. Unger: I should like to correct you, Mr. Tavenner. 31 'Mr. Walter: You advise your client. 32 'Mr. Tavenner: You have told us you were a section organizer for the Communist Party in Ohio, and my question now is, who were the officials who worked with you in that work, that is, officials of the Ohio section of the Communist Party? 33 'Mr. Unger: Permit me to advise my client that Mr. Tavenner, counsel, is in error in his interpretation of the Constitution so far as the Fifth Amendment is concerned, and that Mr. Bart, the witness, is entirely correct in his interpretation of the Constitution, and has a right to assert that this committee has no right—no right, let me make it plain— 34 'Mr. Walter: Under our procedure the attorney is permitted to advise his client and then the client, the witness, answers the question. You may advise your client. 35 'Mr. Unger: As he has stated in his previous answer, he is not required to testify against himself. 36 'Mr. Bart: I stand on the advice of my counsel. I am not required to testify against myself, and in accordance with Article V of the Constitution I will not answer the question. 37 'Mr. Tavenner: I was not asking you to testify against yourself. I was asking you to state the names of other persons associated with you. 38 'Mr. Bart: I consider this an attempt on the part of the committee to use this against myself as well as against others, as it has on many previous occasions. 39 'Mr. Walter: And therefore you refuse to answer? 40 'Mr. Bart: I refuse to answer.' 41 The colloquy set out above pertains only to count 8.* We think the record also shows that the committee rejected the pertinency objections on the other four questions which constitute the other four counts and therefore petitioner willfully refused to answer these as well. However, since conviction on any one count is sufficient to sustain the judgment, enough of the record is set out above to show what we consider to be the error of the majority. Since in our view the committee apprised the petitioner that his Fifth Amendment objection was rejected, it is necessary to state our agreement with the courts below that, as the record shows, petitioner had waived the privilege by his answers to prior questions concerning his Communist Party affiliation and activities. We agree with the Court of Appeals that this is controlled by Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; Bart v. United States, 91 U.S.App.D.C. 370, 203 F.2d 45, 51. 42 It might be better practice for congressional committees to follow a procedure of specifically overruling objections of witnesses and directing the witnesses to answer in the manner commonly followed in the courts. We feel, however, that in this case, where the petitioner was apprised that his objection was rejected and he still refused to answer, it should be held that he is guilty of a violation of § 192. We would affirm the judgment below. 43 Mr. Justice HARLAN, dissenting. 44 I would affirm the judgment of conviction in this case, on the reasoning stated in part II of my dissenting opinion in the Emspak case, 75 S.Ct. 704, at page 709. To what is said there I should add what follows. 45 Even under the Court's standard of 'apprisal', the record in this case is convincing that Bart must have understood that the Subcommittee was insisting on his answers to the questions involved in the indictment. I need only refer to the fact that four of the counts of the indictment charge Bart with refusing to answer what was in substance the same question, namely, what Bart's name had been before he changed it. As to these questions the record shows the following: 46 'Mr. Case (Committee Member). What was your name at the time you came to the United States? 47 'Mr. Bart. I have already answered this question. 48 'Mr. Walter (Committee Chairman). What was it? 49 'Mr. Unger (Bart's Counsel). Mr. Chairman, I think we are spending a good deal of time, with all due respect to the Chair, on a point that has absolutely no bearing on any issue here. 50 'Mr. Walter. That is only your opinion. 51 'Mr. Unger. I said that was my opinion. 52 'Mr. Case. Mr. Chairman, I don't know what the question will lead up to, but it certainly has been customary, when we have been interrogating witnesses who have come to the United States from other countries, to know when they came to the United States, and to know under what name they came, and to know the name shown on the passport. There is nothing improper or out of the way in asking such a question. I think we should have an answer to the question of the name he had when he came to the United States. 53 'Mr. Unger. Are you suggesting the inquiry has to do with what this man did when he was 10 years old? You are talking about a 10-year-old boy. 54 'Mr. Walter. Just a moment. I think Mr. Tavenner should be able to proceed, and after his questions, Mr. Case, you may ask such questions as you may desire. May I suggest, Mr. Tavenner, that you refresh the witness' recollection by telling him what his name was before he assumed his present name? Proceed. 55 'Mr. Tavenner (Committee Counsel). You are a naturalized American citizen? 56 'Mr. Bart. Yes. 57 'Mr. Tavenner. How did you become naturalized? 58 'Mr. Bart. Through process of my father. 59 'Mr. Tavenner. What was your father's name? 60 'Mr. Bart. I have already dealt with this question. 61 'Mr. Tavenner. When was your father naturalized? 62 'Mr. Bart. I do not remember. 63 'Mr. Unger. Just a minute. 64 '(Witness confers with his counsel.) 65 'Mr. Bart. About 30 years ago. 66 'Mr. Tavenner. Do you refuse to tell the committee your father's name? 67 'Mr. Unger. Mr. Tavenner, he doesn't refuse to tell the committee. He is trying to tell the committee that this line of inquiry is a highly improper one. 68 'Mr. Walter. That is not within his province. The committee determines what is proper and what is not proper, and it is not up to you to determine that. 69 'Mr. Unger. That is true. 70 'Mr. Case. Mr. Chairman, it seems to me the counsel should advise his client and not the committee. 71 'Mr. Unger. I am not trying to advise the committee. I tried to advise the committee. I tried to respectfully point out why it is an improper question. He is not ashamed of his father's name or his mother's name. What difference can it possibly make what his name was when he came here? 72 'Mr. Walter. We are not going to have you arguing with the committee or giving us your legal opinion, which may or may not be worth anything. 73 'Mr. Unger. I have no further comment on the question. 74 'Mr. Walter. All right. 75 'Mr. Bart, you claim citizenship by virtue of your father's citizenship; is that right? 76 'Mr. Bart. That is right. 77 'Mr. Walter. Under what name did your father become a citizen of the United States? 78 'Mr. Bart. Under his own name. 79 'Mr. Walter. What was that name? 80 'Mr. Bart. I have already stated my reply to this question as far as I am concerned. 81 'Mr. Walter. How can you claim citizenship by virtue of your father's citizenship if you don't know what name you father used when he became a citizen? 82 'Mr. Unger. Mr. Chairman— 'Mr. Walter. Let the witness answer the question. You may advise your client. 83 'Mr. Bart. I have answered I am a citizen by virtue of that fact, and that this is my legal name by which I vote and am registered and am known. 84 'Mr. Walter. When did you legally change your name? 85 'Mr. Bart. Many years ago. 86 'Mr. Walter. Where? 87 'Mr. Bart. In the city of New York. 88 'Mr. Walter. Did you have your name changed in court? 89 'Mr. Bart. Yes; about 15 years ago. 90 'Mr. Unger. His answer is about 15 years ago. 91 'Mr. Walter. I understand. What name did you change your name from? 92 'Mr. Bart. I have already stated my reply to this question. 93 'Mr. Harrison (Committee Member). I understand you refuse to answer the chairman's question? 94 'Mr. Bart. My answer is that I have answered what my name is here, which is the only question pertaining to the inquiry, it seems to me. 95 'Mr. Walter. Of course all of this is a matter of public record? 96 'Mr. Bart. Correct. 97 'Mr. Walter. And then I suppose you know that under the law a question innocent on its face can't be arbitrarily ignored. You can't refuse to answer such a question without running the risk of the consequences. 98 'Mr. Unger. I think, again, Mr. Chairman, Mr. Bart has indicated very plainly he has not been contumacious in any regard. He states his name has been Philip Bart for a large number of years. 99 'Mr. Walter. Don't argue with the committee. You advise your client as you see fit. 100 'Mr. Case. Mr. Chairman, it seems to me the witness should be advised of the possibilities of contempt when he fails to answer a question as simple and as proper as your question as to what his name was before it was changed. 101 'Mr. Walter. No. He has counsel. Counsel knows that is the law. Proceed, Mr. Tavenner.'* 102 The very fact that the same answer was sought in four different ways must have impressed upon a man of Bart's intelligence that the Committee considered his objections unfounded, and wished him to answer. 103 For the reasons stated in my Emspak dissent, I do not deal with any of the petitioner's other contentions, save to say that on this record I consider them all untenable. 104 I would affirm the judgment of conviction. 1 United States v. Bart, unreported, Criminal No. 1746—50 (D.D.C.). The opinions of the District Court, denying petitioner's motions to dismiss the indictment, appear sub nom. United States v. Emspak, D.C., 95 F.Supp. 1010, Id., D.C., 95 F.Supp. 1012. 2 91 U.S.App.D.C. 370, 203 F.2d 45. 3 347 U.S. 1011, 74 S.Ct. 872, 98 L.Ed. 1134. 4 Hearings before House Committee on Un-American Activities Regarding Communist Infiltration in Labor Unions, 81st Cong., 2d Sess. Part III, 2636. 5 As phrased in the indictment, these questions were as follows: 'Count Three 'What was the name of the defendant when he came to the United States. 'Count Four 'What was the defendant's father's name. 'Count Five 'Under what name did the defendant's father become a citizen of the United States. 'Count Six 'What name did the defendant change his name from. 'Count Eight 'Who were the other officials of the Ohio section of the Communist Party during the period when the defendant was organizer there (sometime in 1936).' Transcript of Record, p. 109, Bart v. United States, 91 U.S.App.D.C. 370, 203 F.2d 45. 6 91 U.S.App.D.C., at page 372, 203 F.2d at page 47. 7 Cf. United States v. Rumely, 345 U.S. 41, 48, 73 S.Ct. 543, 547, 97 L.Ed. 770: 'In any event, Rumely's duty to answer must be judged as of the time of his refusal.' 8 Hearings, supra, note 4, at p. 2636. 9 Ibid. 10 Id., at 2637 (Italics added.) 11 In one instance, committee counsel observed that in his opinion the question asked was not incriminating, but this was disputed by counsel for petitioner and not ruled upon by the chair. When petitioner repeated the objection, stating that he felt the question to be of an incriminating nature and that he therefore refused to answer, the question was immediately abandoned. See id., at 2638—2639. * 'Count Eight—Who were the other officials of the Ohio section of the Communist Party during the period when the defendant was organizer there (sometime in 1936).' R. 109, Bart v. United States, 91 U.S.App.D.C. 370, 203 F.2d 45. * The Court attaches importance to the colloquy between Mr. Case and Mr. Walter shown in the last two paragraphs quoted above, and to Mr. Walter's later rejoinder to Mr. Unger: 'Of course, you know there are many preliminary questions asked witnesses, leading up to some point. As they are propounded you will readily learn what the purpose is. Just advise your client and don't argue with the committee, because we don't rule on objections.' (Italics supplied by the Court.) Read in context, these excerpts indicate to me nothing more than that the committee was expressing its impatience with interruptions by counsel. I am unable to read the record, as the Court seems to have done, as indicating that the Subcommittee was avoiding taking a position on Bart's objections.

01

349 U.S. 155 75 S.Ct. 668 99 L.Ed. 964 Thomas QUINN, Petitioner,v.UNITED STATES of America. No. 8. Reargued April 4, 5, 1955. Decided May 23, 1955. Messrs. David Scribner, Frank J. Donner, New York City, for petitioners. Mr. Robert W. Ginnane, Washington, D.C., for respondent. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 Petitioner was convicted for contempt of Congress under 2 U.S.C. § 192, 2 U.S.C.A. § 192, in the District Court of the District of Columbia. Section 192 provides for the punishment of any witness before a congressional committee 'who * * * refuses to answer any question pertinent to the question under inquiry * * *.'1 On appeal, the Court of Appeals for the District of Columbia Circuit reversed the conviction and remanded the case for a new trial.2 Claiming that the Court of Appeals should have directed an acquittal, petitioner applied to this Court for certiorari. We granted the writ because of the fundamental and recurrent character of the questions presented.3 2 Pursuant to subpoena, petitioner appeared on August 10, 1949, before a subcommittee of the Committee on Un-American Activities of the House of Representatives. Petitioner was then a member and field representative of the United Electrical, Radio and Machine Workers of America. Also subpoenaed to appear on that day were Thomas J. Fitzpatrick and Frank Panzino, two officers of the same union. At the outset of the hearings, counsel for the committee announced that the purpose of the investigation was to inquire into 'the question of Communist affiliation or association of certain members' of the union and 'the advisability of tightening present security requirements in industrial plants working on certain Government contracts.'4 All three witnesses were asked questions concerning alleged membership in the Communist Party. All three declined to answer. 3 Fitzpatrick was the first to be called to testify. He based his refusal to answer on 'the first and fifth Amendments' as well as 'the first amendment to the Constitution, supplemented by the fifth amendment.'5 Immediately following Fitzpatrick's testimony, Panzino was called to the stand. In response to the identical questions put to Fitzpatrick, Panzino specifically adopted as his own the grounds relied upon by Fitzpatrick.6 In addition, at one point in his testimony, Panzino stated that 'I think again, Mr. Chairman, under the fifth amendment, that is my own personal belief.'7 On the following day, petitioner, unaccompanied by counsel, was called to the stand and was also asked whether he had ever been a member of the Communist Party. Like Panzino before him, he declined to answer, specifically adopting as his own the grounds relied upon by Fitzpatrick.8 4 On November 20, 1950, all three witnesses were indicted under § 192 for their refusals to answer.9 The three cases were tried before different judges, each sitting without a jury. Fitzpatrick and Panzino were acquitted. In Fitzpatrick's case, it was held that his references to 'the first and fifth amendments' and 'the first amendment to the Constitution, supplemented by the fifth amendment' constituted an adequate means of invoking the Self-Incrimination Clause of the Fifth Amendment.10 Similarly, in Panzino's case, it was held that his reference to 'the fifth amendment' was sufficient to plead the privilege.11 In petitioner's case, however, the District Court held that a witness may not incorporate the position of another witness and rejected petitioner's defense based on the Self-Incrimination Clause.12 Petitioner was accordingly convicted and sentenced to a term of six months in jail and a fine of $500. 5 In reversing this conviction, the Court of Appeals, sitting en banc, held that 'No formula or specific term or expression is required' in order to plead the privilege and that a witness may adopt as his own a plea made by a previous witness.13 Thus the Court of Appeals viewed the principal issue in the case as 'whether Fitzpatrick did or did not claim the privilege.'14 On this issue, a majority of the Court of Appeals expressed no view. They agreed that a reversal without more would be in order if they 'were of clear opinion that Fitzpatrick, and therefore Quinn, did claim the privilege'. But they were 'not of that clear opinion.'15 The Court of Appeals therefore ordered a new trial for determination of the issue by the District Court.16 The Court of Appeals also directed the District Court on retrial to determine whether petitioner 'was aware of the intention of his inquirer that answers were required despite his objections.'17 In that regard, however, it rejected petitioner's contention that a witness cannot be convicted under § 192 for a refusal to answer unless the committee overruled his objections and specifically directed him to answer.18 6 It is from that decision that this Court granted certiorari. I. 7 There can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation. This power, deeply rooted in American and English institutions, is indeed co-extensive with the power to legislate. Without the power to investigate—including of course the authority to compel testimony, either through its own processes19 or through judicial trial20—Congress could be seriously handicapped in its efforts to exercise its constitutional function wisely and effectively.21 8 But the power to investigate, broad as it may be, is also subject to recognized limitations. It cannot be used to inquire into private affairs unrelated to a valid legislative purpose.22 Nor does it extend to an area in which Congress is forbidden to legislate.23 Similarly, the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.24 Still further limitations on the power to investigate are found in the specific individual guarantees of the Bill of Rights, such as the Fifth Amendment's privilege against self-incrimination which is in issue here.25 9 The privilege against self-incrimination is a right that was hardearned by our forefathers. The reasons for its inclusion in the Constitution—and the necessities for its preservation—are to be found in the lessons of history.26 As early as 1650, remembrance of the horror of Star Chamber procedings a decade before had firmly established the privilege in the common law of England. Transplanted to this country as part of our legal heritage, it soon made its way into various state constitutions and ultimately in 1791 into the federal Bill of Rights. The privilege, this Court has stated, 'was generally regarded then, as now, as a privilege of great value, a proection to the innocent though a shelter to the guilty, and a safeguard against heedless, unfounded, or tyrannical prosecutions.'27 Coequally with our other constitutional guarantees, the Self-Incrimination Clause 'must be accorded liberal construction in favor of the right it was intended to secure.'28 Such liberal construction is particularly warranted in a prosecution of a witness for a refusal to answer, since the respect normally accorded the privilege is then buttressed by the presumption of innocence accorded a defendant in a criminal trial. To apply the privilege narrowly or begrudgingly to treat it as an historical relic, at most merely to be tolerated is to ignore its development and purpose. 10 In the instant case petitioner was convicted for refusing to answer the committee's question as to his alleged membership in the Communist Party. Clearly an answer to the question might have tended to incriminate him.29 As a consequence, petitioner was entitled to claim the privilege. The principal issue here is whether or not he did. 11 It is agreed by all that a claim of the privilege does not require any special combination of words.30 Plainly a witness need not have the skill of a lawyer to invoke the protection of the Self-Incrimination Clause. If an objection to a question is made in any language that a committee may reasonably be expected to understand as an attempt to invoke the privilege, it must be respected both by the committee and by a court in a prosecution under § 192. 12 Here petitioner, by adopting the grounds relied upon by Fitzpatrick, based his refusal to answer on 'the first and fifth Amendments' and 'the first amendment to the Constitution, supplemented by the fifth amendment.' The Government concedes—as we think it must—that a witness may invoke the privilege by stating 'I refuse to testify on the ground of the Fifth Amendment.' Surely, in popular parlance and even in legal literature, the term 'Fifth Amendment' in the context of our time is commonly regarded as being synonymous with the privilege against self-incrimination. The Government argues, however, that the references to the Fifth Amendment in the instant case were inadequate to invoke the privilege because Fitzpatrick's statements are more reasonably understood as invoking rights under the First Amendment. We find the Government's argument untenable. The mere fact that Fitzpatrick and petitioner also relied on the First Amendment does not preclude their reliance on the Fifth Amendment as well.31 If a witness urges two constitutional objections to a committee's line of questioning, he is not bound at his peril to choose between them. By pressing both objections, he does not lose a privilege which would have been valid if he had only relied on one. 13 The Government, moreover, apparently concedes that petitioner intended to invoke the privilege. In its brief the Government points out 'the probability that petitioner's ambiguous references to the Fifth Amendment * * * were phrased deliberately in such vague terms so as to enable petitioner * * * to obtain the benefit of the privilege without incurring the popular opprobrium which often attaches to its exercise.'32 But the fact that a witness expresses his intention in vague terms is immaterial so long as the claim is sufficiently definite to apprise the committee of his intention. As everyone agrees, no ritualistic formula is necessary in order to invoke the privilege. In the instant case, Quinn's references to the Fifth Amendment were clearly sufficient to put the committee on notice of an apparent claim of the privilege. It then became incumbent on the committee either to accept the claim or to ask petitioner whether he was in fact invoking the privilege. Particularly is this so if it is true, as the Government contends, that petitioner feared the stigma that might result from a forthright claim of his constitutional right to refuse to testify. It is precisely at such times—when the privilege is under attack by those who wrongly conceive of it as merely a shield for the guilty—that governmental bodies must be most scrupulous in protecting its exercise. 14 This ruling by no means leaves a congressional committee defenseless at the hands of a scheming witness intent on deception. When a witness declines to answer a question because of constitutional objections and the language used is not free from doubt, the way is always open for the committee to inquire into the nature of the claim before making a ruling. If the witness unequivocally and intelligently waives any objection based on the Self-Incrimination Clause, or if the witness refuses a committee request to state whether he relies on the Self-Incrimination Clause, he cannot later invoke its protection in a prosecution for contempt for refusing to answer that question. Here the committee made no attempt to have petitioner particularize his objection. Under these circumstances, we must hold that petitioner's references to the Fifth Amendment were sufficient to invoke the privilege and that the court below erred in failing to direct a judgment of acquittal. II. 15 There is yet a second ground for our decision. 16 Section 192, like the ordinary federal criminal statute, requires a criminal intent—in this instance, a deliberate, intentional refusal to answer.33 This element of the offense, like any other, must be proved beyond a reasonable doubt. Petitioner contends that such proof was not, and cannot be, made in this case. 17 Clearly not every refusal to answer a question propounded by a congressional committee subjects a witness to prosecution under § 192. Thus if he raises an objection to a certain question —for example, lack of pertinency or the privilege against self-incrimination—the committee may sustain the objection and abandon the question, even though the objection might actually be without merit. In such an instance, the witness' refusal to answer is not contumacious, for there is lacking the requisite criminal intent. Or the committee may disallow the objection and thus give the witness the choice of answering or not. Given such a choice, the witness may recede from his position and answer the question. And if he does not then answer, it may fairly be said that the foundation has been laid for a finding of criminal intent to violate § 192. In short, unless the witness is clearly apprised that the committee demands his answer notwithstanding his objections, there can be no conviction under § 192 for refusal to answer that question.34 18 Was petitioner so apprised here? At no time did the committee specifically overrule his objection based on the Fifth Amendment; nor did the committee indicate its overruling of the objection by specifically directing petitioner to answer. In the absence of such committee action, petitioner was never confronted with a clear-cut choice between compliance and noncompliance, between answering the question and risking prosecution for contempt. At best he was left to guess whether or not the committee had accepted his objection. 19 This ambiguity in the committee's position is apparent from the transcript of the hearing.35 Immediately after petitioner stated that he was adopting Fitzpatrick's objection, the committee chairman asked petitioner: '* * * will you now answer the question whether you are now or ever have been a member of the Communist Party, or do you decline to answer?' In response to this, petitioner stated for the first time that he would not answer. He said: 'I decline to discuss with the committee questions of that nature.' Committee counsel thereupon stated that further questioning 'relating to those matters' was 'not necessary' and proceeded upon a new line of inquiry. There is nothing in this colloquy from which petitioner could have determined with a reasonable degree of certainty that the committee demanded his answer despie his objection. Rather, the colloquy is wholly consistent with the hypothesis that the committee had in fact acquiesced in his objection. 20 Our view that a clear disposition of the witness' objection is a prerequisite to prosecution for contempt is supported by long-standing tradition here and in other English-speaking nations.36 In this country the tradition has been uniformly recognized in the procedure of both state and federal courts.37 It is further reflected in the practice of congressional committees prior to the enactment of § 192 in 1857; a specific direction to answer was the means then used to apprise a witness of the overruling of his objection.38 Against this background § 192 became law.39 No relaxation of the safeguards afforded a witness was contemplated by its sponsors. In explaining the bill in the House, Congressman Davis expressly stated that committee powers were not increased, that no added burden was placed upon the witness and that a 'mere substitution' of a judicial proceeding for punishment at the bar of Congress was intended.40 The reason for enacting § 192 went to the punishment and not the offense. It was recognized that the power of Congress to deal with a contemnor by its own processes did not extend beyond the life of any session.41 By making contempt of Congress a crime, a fixed term of imprisonment was substituted for variable periods of congressional custody dependent upon the fortuity of whether the contemnor had been called to testify near the beginning or the end of a session.42 But there is nothing to indicate that this change in the mode of punishment affected in any way the well-established elements of contempt of Congress. Since the enactment of § 192, the practice of specifically directing a recalcitrant witness to answer has continued to prevail.43 In fact, the very committee involved here, the House Un-American Activities Committee, originally followed this practice44 and recently resumed it.45 21 Giving a witness a fair apprisal of the committee's ruling on an objection recognizes the legitimate interests of both the witness and the committee. Just as the witness need not use any particular form of words to present his objection, so also the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection. So long as the witness is not forced to guess the committee's ruling, he has no cause to complain. And adherence to this traditional practice can neither inflict hardship upon the committee nor abridge the proper scope of legislative investigation. III. 22 Petitioner also attacks his conviction on grounds involving novel constitutional issues. He contends that the House Resolution authorizing the committee's operations is invalid under the First Amendment. In addition, petitioner contends that the trial court erred in denying a hearing on the alleged bias of the indicting grand jury. Our disposition of the case makes it unnecessary to pass on these issues. 23 The judgment below is reversed and the case remanded to the District Court with directions to enter a judgment of acquittal. 24 Reversed. 25 Mr. Justice HARLAN, concurring. 26 I agree with the result reached by the Court in this case. But I must dissent from the holding made in part II of the majority opinion. The reasons for my position are stated in part II of my dissenting opinion in the Emspak case, 349 U.S. 190, 75 S.Ct. 687. I consider those reasons equally applicable to what is shown by the record in this case. 27 Mr. Justice REED, dissenting. 28 The Court in these two cases refuses to punish petitioners, witnesses before the Committee on Un-American Activities of the House of Representatives, for refusal to answer certain pertinent questions. Such refusal is declared to be a misdemeanor by 2 U.S.C. § 192, 2 U.S.C.A. § 192. 29 The separate opinions are based on the conclusion that the petitioners each properly claimed for himself the privilege against self-incrimination guaranteed by the Fifth Amendment. The Court holds that questions concerning association with known communists or membership in the Party asked witnesses holding prominent positions in a local union, under investigation for communist infiltration directed at national security, might reasonably be feared as incriminatory by the witnesses.1 For these cases I make that assumption, too. In both the cases, the Court directs remand to the trial court with directions to acquit. This disposition of the charges excludes any factual issues for decision by the trial court as to whether the witnesses did or did not claim their privilege. It decides that, as a matter of law, the petitioners claimed their privilege by the words used by them in answer to the questions propounded by the Committee. Since the indictments contained numerous counts covering many questions asked and the evidence showed varying reasons for not answering, the conclusion that privilege was claimed blankets all questions. Since the sentences were less than the maximum penalty for one count, if the Court's determination is wrong as to any one question, its present judgments are wrong.2 Normally the issue as to whether a claim of privilege was made would be a matter of fact for the trial court if reasonable men might reach either conclusion. See the discussion below in the opinion of Judge Prettyman in Quinn v. United States, 91 U.S.App.D.C. 344, 203 F.2d 20, 24, and of Judge Bazelon at pages 26 and 38. None of the judges of the Court of Appeals suggested approval of such action as this Court now takes in directing acquittal. See also Emspak v. United States, 91 U.S.App.D.C. 378, 203 F.2d 54, dissent 60. This Court at least should have followed that course here. 30 These sweeping decisions affect the conduct of all congressional inquiries and all courts, for from the opinions there emerges a legally enforceable rule for handling hearings or prosecutions when questions raise for the witness a problem of self-incrimination. The Court, Quinn opinion, 75 S.Ct. 674, requires the interrogator, once the witness' claim though 'vague * * * is sufficiently definite to apprise the committee of his intention' to claim his privilege, 'either to accept the claim or to ask petitioner whether he was in fact invoking the privilege.' Although this phrasing, particularly the last clause, carries for me probabilities of uncertainties in future applications that former decisions avoided,3 it is accepted for this case as the governing rule. My conclusion is that neither petitioner here apprised the Committee that he was claiming his privilege. As shown by the cases just cited, the privilege is personal to the witness. The reach of questions into matters that might lead to his prosecution for crime may be known only to him. Therefore the witness has the burden of doing something more than suggesting a question might incriminate him. At least, in the words of the Court, he must 'apprise the committee of his intention' to claim his privilege. 31 The purpose of having witnesses is to furnish to proper interrogators, subject to objections for materiality or the use of coercion, the actual facts they seek. Legislation can best be drafted and cases tried most fairly only when all pertinent facts are made available to those charged with legislation or maintenance of the peace. However, the Congress in the first series of Amendments to the Constitution wrote an exception to this duty in the instance where an answer would compel a person to be a witness against himself in a criminal case. In that situation, on a valid claim of privilege against self-incrimination, the witness may be excused from answering.4 That exception should neither be shriveled nor bloated. It is designed to excuse the guilty and the innocent alike from testifying when prosecution may reasonably be feared from compelled disclosures. The importance of preserving the right to require evidence, except when a witness definitely apprises the interrogating body of a valid claim of privilege, leads us to dissent. I. Claim of Privilege. 32 The Court finds from the record before the Committee an apprisal by petitioners which the Committee should have understood as a claim of privilege against self-incrimination. In examining the record for this purpose, all the pertinent testimony must be considered and evaluated in the light of the purpose and abilities of the petitioners. 33 During an active period of national rearmament this Committee was investigating subversive and security situations in the sensitive electronic industry with a view to possible legislation.5 The recalcitrant witnesses held important positions in the field. Mr. Quinn was a field organizer of the International Union of the United Electrical, Radio and Machine Workers. Mr. Emspak was its General Secretary. The third witness, who is not a petitioner but whose testimony is hereafter referred to, was Mr. Fitzpatrick, chief steward of the Westinghouse Corporation local. There is nothing to indicate that the witnesses had mentalities of a quality less than one would expect from experienced officials holding such responsible positions. 34 It will be observed from their testimony, however, that in avoiding direct answers to specific questions each one engaged in exercises in dialectics that always fell short of advising the Committee of any intention to claim his privilege. In view of the ease with which a claim can be made by any layman, the availability of personal lawyers for these witnesses and the careful avoidance of any such statement as, 'I decline to answer on the ground of possible self-incrimination,' I cannot hold that these witnesses evidenced by their testimony an intention to claim privilege. The fact that a claim of privilege would subject the witnesses to criticism in some quarters, of course, has no bearing upon the necessity to assert one's rights. This is emphasized by the fact that long ago this Court declared that no moral turpitude is involved in refusing to answer under the protection of the privilege.6 35 While the trial and appellate courts each had only a printed record of the testimony, one group, the subcommittees themselves, had the best opportunity to appraise disinterestedly the fact of whether Messrs. Quinn and Emspak claimed the privilege. The questions and answers were both asked by the counsel and answered by the witnesses in the hearing of the Committee. In citations of Quinn and Emspak to the House for contempt, the Committee certified that the refusal of each 'to answer the aforesaid questions deprived your committee of necessary and pertinent testimony * * *.'7 It can hardly be contended that the Committee did not know a claim of privilege against answering incriminating questions would have excused the witnesses from answering. 36 In view of the basis of the Court's decision made on its own examination and appraisal of the record, we must necessarily set out for discussion much of the testimony to determine whether the witnesses claimed the privilege.8 The pertinent evidence follows. 37 After testifying at some length, the petitioner was asked: 'Mr. Emspak, are you acquainted with Joseph Persily?' Petitioner did not answer the question but made the following statement: 38 'Mr. Emspak. Mr. Chairman, I would like to say something at this point. 39 'Mr. Moulder. You mean in response to the question? 40 'Mr. Emspak. I will answer the question; yes, in response to the question and as a statement of position. 41 'What I say revolves around two points, one organizationally and another as an individual. Organizationally, my job as an officer of this union is to represent the interest of the membership as they determine it at the annual conventions and at other means they have of getting together and expressing themselves. My job is to administer that aspect to the best of my ability, using one very simple measuring stick, and that is: Does a given policy or action contribute to the well-being of the membership, individually and collectively? 42 'As an individual I would like to say one thing, and that is this: The line of questioning that counsel is developing now is a line that has been used on numerous occasions by this committee and other congressional committees in an attempt to harass the union, its leadership, and its members. It is a line of questioning that goes against my grain as an American. I was born in this country. Everything I am— 43 'Mr. Moulder. How long will this statement take, Mr. Emspak? 44 'Mr. Emspak. About two or three more minutes. 45 'Mr. Moulder. Proceed. 46 'Mr. Emspak. Everything I am, I owe to the rich heritage and tradition of this country. I do not believe that a committee of this kind, especially in view of the recent record of this committee where it stooped to interfere in the partisan affairs of a local union, or any congressional committee, because of the rich tradition of this country which, if not perverted, will lead to a greater and better country—I don't think a committee like this or any subcommittee has a right to go into any question of my beliefs, my associations, or anything else. I have a couple of kids. They have a stake in this country, too. 47 'Mr. Moulder. I want to give you full opportunity to express yourself in answer to the question, but you are making an oration now. 48 'Mr. Emspak. It is not an oration. It happens to be a very profound personal feeling. 49 'Mr. Moulder. What is the question? 50 'Mr. Tavenner. The question is: Are you acquainted with Joseph Persily. 51 'Mr. Moulder. How do you spell that? 52 'Mr. Tavenner. P-e-r-s-i-l-y. 53 'Mr. Emspak. Because I have a stake in this country— 54 'Mr. Moulder. You are not answering the question. He asked you if you are acquainted with this man. 55 'Mr. Emspak. I will answer it. 56 'Mr. Moulder. Are you or not? 57 'Mr. Emspak. I was on the verge of answering it. 58 'Mr. Moulder. If you have any explanation to make you will be permitted to do so after you answer the question. 59 'Mr. Emspak. Because of my interest in what is going on these days, because of the activities of this committee— 60 'Mr. Moulder. Are you going to answer the question? 'Mr. Emspak. Because of the hysteria, I think it is my duty to endeavor to protect the rights guaranteed under the Constitution, primarily the first amendment, supplemented by the fifth. This committee will corrupt those rights. 61 'Mr. Moulder. Do you think it corrupts you to answer the question? 62 'Mr. Emspak. I certainly do. 63 'Mr. Moulder. Why does it corrupt you? 64 'Mr. Emspak. Your activities are designed to harm the working people of this country. Every action this committee has ever taken has done that. You interfered last summer in the election of a local union at the request of a priest. You know that. You dragged down the prestige of this country. 65 'Mr. Moulder. You are not going to take over this committee. 66 'Mr. Emspak. I don't want to. 67 'Mr. Moulder. And your statements are preposterous. The purpose of this committee is to expose communism as it exists in this country. What is the question? 68 'Mr. Tavenner. Are you acquainted with Joseph Persily? 69 'Mr. Emspak. For the reasons I stated before, I answered it. 70 'Mr. Moulder. Then you refuse to answer the question? 71 'Mr. Emspak. No. I answered it. 72 'Mr. Tavenner. Are you or are you not acquainted with Joseph Persily? 73 'Mr. Emspak. I answered the question. 74 'Mr. Tavenner. Your replies are a refusal to comply with the request to answer it? 75 '(Witness confers with his counsel.) 'Mr. Moulder. The record will reveal that you have not answered the question. 76 'Mr. Emspak. I have answered it to the best of my ability under the circumstances.' 77 In answer to subsequent questions, the petitioner simply referred to his prior answer. Later on, the following statements were made: 78 'Mr. Emspak. Mr. Chairman, on these questions, which are all essentially the same, of course, when this hearing was announced according to the press reports, at least, it was announced because this committee presumably was interested in finding out things with reference to individuals in our organization by using whatever means it has at its disposal, and for the purpose of trying to perhaps frame people for possible criminal prosecution. 79 'I don't see how or why any individual should be subjected to that kind of questioning here if he is going to maintain, you know, his feelings on these questions, and I tried to express the feeling before when you interrupted me. I just don't intend, as I said then, to be a party to any kangaroo court proceedings of this committee or any other congressional committee. I think I have the right to reserve whatever rights I have in that respect to whatever appropriate bodies may be set up to deal with questions that come up. 80 'Mr. Moulder. Do you mean to say you have people in your organization who have information that would subject you to criminal prosecution? 81 'Mr. Emspak. No; I don't, Mr. Chairman. As a basic proposition—and it has worked over the years and over the last few months as far as this committee is concerned—a slick job— 'Mr. Moulder. Do you know them or not? 82 'Mr. Emspak. That does not concern this committee at all. 83 'Mr. Moulder. Is it your feeling that to reveal your knowledge of them would subject you to criminal prosecution? 84 'Mr. Emspak. No. I don't think this committee has a right to pry into my associations. That is my own position.' 85 No more of the record is printed, as the excerpt shows the exchange between the Committee and petitioner upon which Count I of the indictment and the constitutional issues arising thereunder are based. This related to his acquaintanceship with Joseph Persily, a man who had been listed, according to a stipulation, as a person named as an official 'of the UERMWA with Communist or Communist Front Affiliations.' Nothing more favorable to petitioner's position appears on the questions examined or any other question. 86 As the Emspak case offers for me a clear example of failure to claim his privilege, I think it better not to encumber this opinion unnecessarily with quotations from the Quinn case. 87 In the Quinn case, the witness adopted in its entirety the testimony of a former witness, Mr. Thomas J. Fitzpatrick, chief steward of Local No. 601, United Electrical, Radio and Machine Workers of America. Mr. Quinn's testimony establishing his reliance on Mr. Fitzpatrick's evidence will be found in this Court's opinion in the Quinn case, supra, note 8, 75 S.Ct. 671. The hearing opened with a declaration by Mr. Fitzpatrick of minority rights to secrecy as follows: 88 'The Constitution of this country provides certain protection for minorities and gives the privilege for people to speak and think as they feel that they should and want to. It also gives the privilege that people can have opinions or beliefs that may be unpopular. In my opinion, it gives them the right to hold those opinions secret if they so desire. This is a protection of the first amendment to the Constitution, supplemented by the fifth amendment. 89 'Mr. Wood. What is? 90 'Mr. Fitzpatrick. The right of the people guaranteed by the Constitution.' 91 This certainly indicated no claim of the privilege against self-incrimination. Mr. Fitzpatrick was then asked: 'Are you now or have you ever been a member of the Communist Party?' After fencing with the Committee about prying into his mind, he said: 92 'Mr. Fitzpatrick. I will answer the question. The Constitution guarantees the right to me and every other citizen to have beliefs, whether they are popular or unpopular, and to keep them to themselves if they see fit, and I have no intention of being a party to weakening or destroying that protection in the Constitution. I feel when I take this position that I am one of the real Americans, and not like some of the phonies who appear here.' 93 Later on he was asked whether he had asked a Mr. Copeland to sign an application for membership in a Communist organization. In answer to that question this occurred. 94 'Mr. Fitzpatrick. Mr. Chairman, do I have to give you my answer again? 95 'Mr. Wood. I just want to know whether you did that one thing. 96 'Mr. Fitzpatrick. I say if I did or if I did not, regardless of what I did, it is not the affair of this committee to pry into this kind of action. 97 'Mr. Wood. And for that reason do you decline to answer the question? 98 'Mr. Fitzpatrick. I stand on the protection of the Constitution, the first and fifth Amendments. 99 'Mr. Wood. And for those reasons decline to answer the question further? 100 'Mr. Fitzpatrick. I have answered the question. 101 'Mr. Wood. I say, do you decline to answer it further? 102 'Mr. Fitzpatrick. I have no further comment on it.' 103 The two references to the First and Fifth Amendments are the only phrases in the whole examination that could be thought to refer to a claim of immunity against self-incrimination. 104 From these vague statements of Messrs. Quinn and Emspak the Court draws the conclusion that they were sufficient to apprise the Committee of the witnesses' intention to claim the privilege against self-incrimination. The Court finds support for its theory of 'intention' to claim privilege from a statement in the Government's brief in the Quinn case set out below.9 With all respect, I fail to see any concession by the Government of evidence that should apprise the Committee of a claim of privilege against self-incrimination. The first sentence of the quotation from the brief emphatically denies the Court's assumption. 105 What the records show to me is a calculated effort by Messrs. Quinn, Emspak and Fitzpatrick to hinder and delay a congressional committee in its effort to bring out facts in order to determine whether or not to undertake legislation. Such quibbling evades the basis for an understanding of the attitude of the witness as to privilege. It does not apprise the Committee of the claim of privilege and should not be held permissible. Factual testimony is the means for the ascertainment of truth in legally organized inquiries. Silence brings the proceedings to a dead end. The burden is on the witness to advise his interrogators of a claim to privilege in understandable terms.10 In the context of this testimony, the adoption by Mr. Quinn of Mr. Fitzpatrick's reference to the First and Fifth Amendments smacks strongly of a 'due process' Fifth Amendment claim. Mr. Fitzpatrick had been speaking of his right of privacy, speech and association, not of the privilege against self-incrimination. He then added: 106 'Mr. Chairman, if you want to ask me questions about my actions of loyalty, question my loyalty, you have a right to do so and I will answer them. So far as my political opinions, I have stated my position on that. You are asking the same question in a different way. But if my memory is right, there was no such thing as a Communist Party when that affidavit is supposed to have been.' The same attitude shows through Mr. Emspak's testimony. In addition there was a direct refusal by Mr. Emspak to claim privilege. See 75 S.Ct. 681, 682, supra. 107 The Court suggests that this should not be construed as a waiver of the claim and cites Smith v. United States, 337 U.S. 137, 151, 69 S.Ct. 1000, 1007, 93 L.Ed. 1264. I do not think the Smith case apposite. In that case there had been a clear claim of privilege for immunity. We held that required a definite, unambiguous waiver. Here there was, in my view, no claim of privilege. 108 The opinion of the trial court, printed only in the record, pp. 224—227, holds 'The defendant failed to assert (the privilege).' Six of the nine members of the Court of Appeals held that Emspak had not claimed. Three did not reach that issue. 109 I concur with the Court in its assertions of the value of the self-incrimination clause—that it may be used as a shield by guilty and innocent alike—and that it should be construed liberally as it has been to cover more than the literal reading of the phrase 'No person * * * shall be compelled in any criminal case to be a witness against himself' would suggest.11 This sympathetic attitude toward the clause should not lead us to intrude our ideas of propriety into the conduct of congressional hearings. The rule laid down by the Court today merely adds another means for interference and delay in investigations and trials, without adding to the protecton of the constitutional right of freedom from self-incrimination. This is contrary to the policy of Congress to get information from witnesses even with a claim of immunity, through the Compulsory Testimony Act of August 20, 1954, 68 Stat. 745, 18 U.S.C.A. § 3486 and note preceding § 3481. 110 II. Direction to Answer. 111 The Court advances a second ground in the Quinn and Emspak cases for its direction that the District Court enter a judgment of acquittal. This is that a deliberate intent to refuse to answer the Committee's questions is required for the judgment of contempt. The Court explains, Quinn case, 75 S.Ct. 675, that intent may be implied only when the witness is 'clearly apprised that the Committee demands his answer notwithstanding his objections,' and, Emspak case, 75 S.Ct. 694 'without such apprisal, there is lacking the element of deliberateness necessary for a conviction under § 192 for a refusal to answer.' The Court concludes that the witness was not 'specifically' directed to answer, or otherwise informed as to the disposition of his objections. 112 The Court must admit, as it does, Quinn Opinion, 75 S.Ct. 673, that no particular form of words is required. On the other hand, I must admit that a witness must be clearly apprised that his claim of the freedom from an obligation to answer is not accepted by the interrogator.12 I agree that the offense punishable under the statute is a deliberate, intentional refusal not an inadvertence, accident or misunderstanding.13 Good faith in refusing to answer, however, is no defense so long as the refusal is intentional, deliberate. Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 274, 73 L.Ed. 692, points out that: 113 'The gist of the offense is refusal to answer pertinent questions. * * * Intentional violation is sufficient to constitute guilt.' 114 United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, involved a statute very similar to the one here involved. In that case, Murdock had been called to testify before an Internal Revenue Agent and refused to answer certain questions on the ground that he might be incriminated under state law. We said in that case: 115 'While undoubtedly the right of a witness to refuse to answer lest he incriminate himself may be tested in proceedings to compel answer, there is no support for the contention that there must be such a determination of that question before prosecution for the willful failure so denounced. By the very terms of the definition the offense is complete at the time of such failure.' 284 U.S., at page 148, 52 S.Ct., at page 64. 116 There was no direction to answer in either case. While the point was not raised, their holding as to what establishes the offense does not include a specific direction to answer as one of the elements. 117 While the Court held in Sinclair that deliberate refusal was all that was required to consummate the offense under 2 U.S.C. § 192, 2 U.S.C.A. § 192, at the same time we were at pains to point out 'There was no misapprehension' on the part of the witness 'as to what was called for.' 279 U.S. at page 299, 49 S.Ct. at page 274. It is because the refusal must be intentional, that the witness must know that his excuses for not answering have not been accepted by the Committee. When a witness interposes objections to testifying which are not frivolous, it is difficult to say he intentionally refused to answer when the interrogation continues without pause to some other question. I agree that the Committee cannot, in fairness to the witness, lull him into thinking that his refusal to answer is acceptable and then cite him for contempt. Refusal under such circumstances would not be deliberate. However, specific direction to answer is not necessary; only intentional refusal is. 118 The Court suggests, note 36, Quinn case, 75 S.Ct. 676, that congressional committees follow the practice of other legislative bodies and determine first the validity of the witness' reason for failure to answer and then direct him to answer. The defect in that analogy is that the Court seems to assume in its note a formal vote and a specific direction to answer. I think such a specific direction is inconsistent with its admission that no ritualistic formula is required. 75 S.Ct. 677. No provision of the statute, nor of any rule of Congress is cited by the Court to support a requirement of specific direction. The Court of Appeals held direction to answer unnecessary so long as the witness knew that the Committee had not acceded to his refusal.14 As I stated above, in my view it is sufficient if the witness knows his excuses are not acceptable to the Committee and that he is required to answer. Whether or not the witnesses knew this in these two cases is the question on this second point. 119 The Court holds that the witnesses did plead the privilege and were not advised that the Committee refused to accept their pleas. I disagree. After Mr. Quinn had adopted Mr. Fitzpatrick's words as his own method of refusing to answer the question as heretofore discussed, it will be seen that Mr. Wood, a Committee member, said to Mr. Quinn: 120 'Mr. Wood. You have stated your position. Having enunciated your sentiments and your position, will you now answer the question whether you are now or ever have been a member of the Communist Party, or do you decline to answer? 121 'Mr. Quinn. I decline to discuss with the committee questions of that nature.' 122 This, I think advised Mr. Quinn that the Committee refused to accept his reply as a satisfactory excuse and required him to proceed. 123 I think, too, that Mr. Emspak was advised his answer was not accepted and that he was required to proceed. When he was asked repeatedly as to whether he was acquainted with Joseph Persily, he said again: 124 'Mr. Emspak. For the reasons I stated before, I answered it. 125 'Mr. Moulder. Then you refuse to answer the question? 126 'Mr. Emspak. No. I answered it. 127 'Mr. Tavenner. Are you or are you not acquainted with Joseph Persily? 128 'Mr. Emspak. I answered the question. 129 'Mr. Tavenner. Your replies are a refusal to comply with the request to answer it? 130 '(Witness confers with his counsel.) 131 'Mr. Moulder. The record will reveal that you have not answered the question. 132 'Mr. Emspak. I have answered it to the best of my ability under the circumstances.' 133 On continued questioning as to Mr. Persily, he continued, 'I will give the same answer.' I cannot but conclude, as did the lower courts, that the witness Emspak was adequately informed that his objections were refused and that he must answer. 134 The Court directs acquittal of both petitioners on the grounds of claim of privilege and failure to specifically overrule their objections or direct them to answer. I disagree with both grounds. Confining expression of my views to those issues, I dissent. 135 Mr. Justice MINTON joins in so much of this opinion as applies to Emspak v. United States. 1 The section provides in full: 'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.' 2 91 U.S.App.D.C. 344, 203 F.2d 20. 3 347 U.S. 1008, 74 S.Ct. 861, 98 L.Ed. 1133. 4 Hearings before House Committee on Un-American Activities Regarding Communist Infiltration of Labor Unions, 81st Cong., 1st Sess. Part 1, 541—542. 5 Id., at 602, 604. 6 Id., at 608. 7 Id., at 609. 8 Id., at 634—635: 'Mr. Quinn. I would like to make a statement along the lines that Mr. Fitzpatrick made yesterday in regard to a question of that nature. I feel that the political beliefs, opinions, and associations of the American people can be held secret if they so desire. 'Mr. Wood. And for those reasons do you decline to answer that question? 'Mr. Quinn. I didn't say I was declining to answer the question. Before I do answer the question I should like to say that I support the position taken by Brother Fitzpatrick yesterday. 'Mr. Wood. Did you hear his statement yesterday? 'Mr. Quinn. Yes; I did. 'Mr. Wood. Do you support it in its entirety? 'Mr. Quinn. In its entirety. 'Mr. Wood. Is there anything else you want to add to it? 'Mr. Quinn. No; I don't. 'Mr. Wood. Will you accept it as the expression of your views, then? 'Mr. Quinn. You may. I may add I feel I have no other choice in this matter, because the defense of the Constitution, I hold sacred. I don't feel I am hiding behind the Constitution, but in this case I am standing before it, defending it, as small as I am. 'Mr. Wood. Having made that statement and subscribed to the sentiments expressed by the witness yesterday to whom you referred, will you now answer the question whether you are now or have ever been a member of the Communist Party? 'Mr. Quinn. I hold that the Constitution holds sacred the rights of people— 'Mr. Wood. You have stated your position. Having enunciated your sentiments and your position, will you now answer the question whether you are now or ever have been a member of the Communist Party, or do you decline to answer? 'Mr. Quinn. I decline to discuss with the committee questions of that nature. 'Mr. Wood. Proceed, Mr. Tavenner. 'Mr. Tavenner. I believe in the light of that answer it is not necessary to ask you any further questions relating to those matters, so I will ask you this: Do you know Mr. James J. Matles? 'Mr. Quinn. Yes.' 9 Petitioner's motions to dismiss the indictment were denied sub nom. United States v. Emspak, D.C.D.C., 95 F.Supp. 1010, 1012. 10 United States v. Fitzpatrick, D.C.D.C., 96 F.Supp. 491, 493. 11 United States v. Panzino, unreported, Criminal No. 1747 50 (D.D.C.). 12 United States v. Quinn, unreported, Criminal No. 1744—50 (D.D.C.). 13 91 U.S.App.D.C. 344, 347, 203 F.2d 20, 23. 14 Id., 91 U.S.App.D.C., at page 347, 203 F.2d at page 23. 15 Id., 91 U.S.App.D.C., at page 348, 203 F.2d at page 24. 16 Ibid. 17 Id., 91 U.S.App.D.C., at page 349, 203 F.2d, at page 25. 18 Ibid. 19 Cf. Anderson v. Dunn, 6 Wheat. 204, 5 L.Ed. 242. 20 In re Chapman, 166 U.S. 661, 17 S.Ct. 677, 41 L.Ed. 1154. 21 See McGrain v. Daugherty, 273 U.S. 135, 175, 47 S.Ct. 319, 329, 71 L.Ed. 580. 22 Id., 273 U.S. at pages 173—174, 47 S.Ct. at page 328; Kilbourn v. Thompson, 103 U.S. 168, 190, 26 L.Ed. 377. 23 Compare United States v. Rumely, 345 U.S. 41, 46, 73 S.Ct. 543, 546, 97 L.Ed. 770. 24 Kilbourn v. Thompson, 103 U.S. 168, 192—193, 26 L.Ed. 377. 25 The Amendment provides in pertinent part that 'No person * * * shall be compelled in any criminal case to be a witness against himself * * *.' 26 See Griswold, The Fifth Amendment Today, 2—7. 27 Twining v. State of New Jersey, 211 U.S. 78, 91, 29 S.Ct. 14, 16, 53 L.Ed. 97. See also Boyd v. United States, 116 U.S. 616, 631—632, 6 S.Ct. 524, 532—533, 29 L.Ed. 746. 28 Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118. Cf. Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110. 29 Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170, specifically holding that such a question is protected by the privilege; Brunner v. United States, 343 U.S. 918, 72 S.Ct. 674, 96 L.Ed. 1332, reversing, 9 Cir., 190 F.2d 167. See also Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118. 30 Compare Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264, where the Court characterized a witness' statement "I want to claim privilege as to anything that I say", 337 U.S. at page 142, 69 S.Ct. at page 1003, as a 'definite claim of general privilege against self-incrimination.' 337 U.S. at page 151, 69 S.Ct. at page 1007. 31 As to the close relationship between the First Amendment and the privilege against self-incrimination, see Griswold, supra, note 26, at 8—9. 32 Brief for United States, p. 33. The Government makes the same contention as to the petitioner in Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687. 33 Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692. See also In re Chapman, 166 U.S. 661, 672, 17 S.Ct. 677, 681, 41 L.Ed. 1154, in which the Court, while upholding the constitutionality of the statute, recognized deliberateness as an element of the offense. 34 See United States v. Kamp, D.C.D.C., 102 F.Supp. 757, 759: 'Committees of Congress must conduct examinations in such a manner that it is clear to the witness that the Committee recognizes him as being in default, and anything short of a clear cut default on the part of the witness will not sustain a conviction for contempt of Congress. The transcript of the defendant Kamp's testimony fails to disclose such a clear cut default. The witness is not required to enter into a guessing game when called upon to appear before a committee. The burden is upon the presiding member to make clear the directions of the committee, to consider any reasonable explanations given by the witness, and then to rule on the witness' response.' The defendant was accordingly acquitted. On similar grounds, an acquittal was directed in United States v. Browder, unreported, Criminal No. 1784—50 (D.D.C.). 35 See note 8, supra. 36 While of course not binding on Congress or its committees, the practice in the States and other English-speaking jurisdictions is at least worthy of note. For examples relating to recalcitrant witnesses before state legislative committees, see Ex parte McCarthy, 29 Cal. 395, 398; People v. Keeler, 99 N.Y. 463, 471, 2 N.E. 615, 617; Lowe v. Summers, 69 Mo.App. 637, 645. Recalcitrant witnesses before investigating committees of the British House of Commons have traditionally been apprised of the disposition of their objections and given subsequent opportunity to respond before being subjected to the contempt power of the legislature. The practice has been as follows: The committee reports the failure to answer to the House. The witness is questioned about the cause of the refusal to answer before the Bar of the House. The House then votes on the validity of the objection. If the claim is rejected, the witness is specifically directed to answer. Only after a subsequent refusal is punishment imposed. See 88 Journals of the House of Commons 212, 218 (Case of Elizabeth Robinson before Select Committee on Liverpool Bribery, 1833); 90 Journals of the House of Commons 501, 504, and 29 Hans.Deb., 3d Ser. 1249, 1279—1288 (Case of William Prentice before Select Committee on Great Yarmouth Bribery, 1835); 90 Journals of the House of Commons 564, 571, 575 (Case of Lieutenant Colonel Fairman before Select Committee on the Orange Lodges, 1835); 152 Journals of the House of Commons 661, 365 (Case of John Kirkwood before Select Committee on Money Lending, 1897). For Canadian practice, see the case of W. T. R. Preston before the Committee on Public Accounts, the Committee on Agriculture and Colonization, and the House of Commons. 41 Journals of the House of Commons, Canada, 298, 316, 323; 41 id., Appendix No. 2, 324—327; 41 id., Appendix No. 3, 250—251; 76 Debates, House of Commons, Canada, Session 1906, Vol. III, 4451 4535. 37 See Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118: 'It is for the court to say whether his silence is justified * * * and to require him to answer if 'it clearly appears to the court that he is mistaken." See also Chief Justice Marshall in United States v. Burr, 25 Fed.Cas. pages 38, 40, No. 14,692e: 'When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness.' The cases, both federal and state, are collected in Wigmore, Evidence, § 2271. See, e.g., Carlson v. United States, 1 Cir., 209 F.2d 209, 214, and Gendron v. Burnham, 146 Me. 387, 405—406, 82 A.2d 773, 784—785, 38 A.L.R.2d 210. 38 See, e.g., the resolution introduced by Congressman Orr proposing that one J. W. Simonton be haled before the bar of the House of Representatives for refusing to answer a question put to him by a duly-authorized committee of that body. Cong. Globe, 34th Cong., 3d Sess. 403—404 (1857). The resolution states in part: 'The committee were impressed with the materiality of the testimony withheld by the witness, as it embraced the letter and spirit of the inquiry directed by the House to be made, but were anxious to avoid any controversy with the witness. They consequently waived the interrogatory that day, to give the witness time for reflection on the consequences of his refusal, and to afford him an opportunity to look into the law and the practice of the House in such cases, notifying him that he would, om some subsequent day, be recalled. This was the 15th of January instant. On Tuesday, the 20th instant, the said J. W. Simonton was recalled, and the identical question first referred to was again propounded, after due notice to him that if he declined the committee would feel constrained to report his declination to the House, and ask that body to enforce all its powers in the premises to compel a full and complete response.' Id., at 403. See also id., 31st Cong., 1st Sess. 1716 (1850). 39 Act of Jan. 24, 1857, c. 19, § 1, 11 Stat. 155. 40 Cong. Globe, 34th Cong., 3d Sess. 427. 41 Anderson v. Dunn, 6 Wheat. 204, 230—231, 5 L.Ed. 242. 42 Cong. Globe, supra, note 40, at 405 et seq. 43 See, e.g., Cong. Globe, 40th Cong., 3d Sess. 771—772 (1869); id., 42d Cong., 3d Sess. 952 (1873); 4 Cong.Rec. 1705 et seq. (1876) (citation of Hallet Kilbourn, involved in Kilbourn v. Thompson, supra, note 22); 26 Cong.Rec. 6143 et seq. (1894) (citation of Elverton R. Chapman, involved in In re Chapman, supra, note 20); 65 Cong.Rec. 4785 et seq. (1924) (citation of Harry F. Sinclair involved in Sinclair v. United States, supra, note 33); 69 Cong.Rec. 2439, 5286, 5353, 7239 (1928); 78 Cong.Rec. 1902, 1911—1914 (1934); 86 Cong.Rec. 3856 (1940); 90 Cong.Rec. 8163 (1944); 97 Cong.Rec. 499 et seq. (1951). 44 See, e.g., the contempt citation of George Powers at 86 Cong.Rec. 3856—3857. See also the citation of James H. Dolsen, id., at 3694—3695. 45 See contempt citation of Saul Grossman, 98 Cong.Rec. 8634 8637. 1 Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170; Emspak v. United States, supra, 75 S.Ct. 693, see the Court's opinion in Quinn v. United States, supra, 75 S.Ct. 673. 2 Sinclair v. United States, 279 U.S. 263, 299(7), 49 S.Ct. 268, 274, 73 L.Ed. 692. 3 United States ex rel. Vajtauer v. Commissioner, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560; United States v. Monia, 317 U.S. 424, 427, dissent 439, 63 S.Ct. 409, 410, at page 416, 87 L.Ed. 376; Rogers v. United Staes, 340 U.S. 367, 371, 71 S.Ct. 438, 440, 95 L.Ed. 344; cf. Adams v. State of Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608. 4 See McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158; Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. 5 Hearings before House Committee on Un-American Activities Regarding Communist Infiltration of Labor Unions, Part 1, 81st Cong., 1st Sess. 541. 6 Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692. 7 Proceedings against Julius Emspak, H.R.Rep.No.2847, 81st Cong., 2d Sess., p. 10; same against Thomas Quinn, H.R.Rep.No.2857, p. 3. 8 Any person who desires to see the complete essential testimony may consult the Proceedings, cited in the preceding note. See also H.R.Rep.No.2856. 9 'Under these circumstances, we contend that petitioner did not adequately inform the Committee that he was claiming the protection of the privilege. 'Moreover, we feel bound to point out the probability that petitioner's ambiguous references to the Fifth Amendment (and those of the petitioner Emspak in No. 9 (75 S.Ct. 687)), which he now contends constituted a claim of privilege, were phrased deliberately in such vague terms so as to enable petitioner (and Emspak) to obtain the benefit of the privilege without incurring the popular opprobrium which often attaches to its exercise. This suggestion is not based merely upon the obvious fact that it would have been extremely easy for petitioner to have informed the Committee that answers to its questions might incriminate or endanger him. It is also based upon facts of record, and matters appropriate for judicial notice, which reveal that petitioner (and Fitzpatrick and Emspak) had compelling and immediate reasons to refrain from making any public statements from which it might be inferred, properly or not, that they were Communists or Communist sympathizers.' Govt. br., 33—34. 10 See note 3, supra. 11 See, for example, Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 35 L.Ed. 1110; Blau v. United States (two cases), 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 and 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (privilege available at grand jury proceedings); McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158, 'The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant' (proceedings in bankruptcy); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, and see also Graham v. United States, 9 Cir., 99 F.2d 746 (administrative proceedings); see also Wood v. United States, 75 U.S.App.D.C. 274, 128 F.2d 265, 141 A.L.R. 1318 (preliminary hearings). 12 Fields v. United States, 82 U.S.App.D.C. 354, 164 F.2d 97, 100; Bart v. United States, 91 U.S.App.D.C. 370, 203 F.2d 45, 48; Emspak v. United States, 91 U.S.App.D.C. 378, 203 F.2d 54, 56. 13 Townsend v. United States, 68 App.D.C. 223, 229, 95 F.2d 352, 358; Fields v. United States, 82 U.S.App.D.C. 354, 357, 164 F.2d 97, 100. 14 The instant case and the Emspak and Bart cases, 349 U.S. 190, 219, 75 S.Ct. 687, 712, all deal at length with his question. Emspak v. United States, 91 U.S.App.D.C. 378, 203 F.2d 54, 56; Bart v. United States, 91 U.S.App.D.C. 370, 203 F.2d 45, 50. See also, comments, 40 Geo.L.J. 137; 41 Geo.L.J. 433.

01

349 U.S. 232 75 S.Ct. 733 99 L.Ed. 1024 The UNITED STATES, Petitioner,v.OLYMPIC RADIO AND TELEVISION Inc. No. 10. Argued April 18, 19, 1955. Decided May 23, 1955. Asst. Atty. Gen. H. Brian Holland, for petitioner. Mr. Frederick R. Tansill, Washington, D.C., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This suit was brought in the Court of Claims for a tax refund. The taxpayer, a New York corporation, kept its books and accounts on the accrual basis and filed its federal income tax returns on the same basis, using the calendar year. The taxpayer had a net operating loss of $310,872.60 for 1946. This loss was carried back and set off against the taxpayer's excess profits net income for 1944 and its excess profits tax for 1944, was adjusted accordingly. That carryback was authorized by the Internal Revenue Code of 1939, § 122, 26 U.S.C.A. § 122; and it is not in controversy here. 2 The taxpayer reported an excess profits tax liability of $346,643.22 for 1945. In 1946 the taxpayer paid $263,272.80 in excess profits taxes for 1945. It contends that that amount, paid in 1946, should have been added to the net operating loss of $310,872.60 for that year and that the sum of those figures, instead of $310,872.60, should have been carried back to 1944 as a net operating loss. If that, should have been done, the United States would now owe the taxpayer the refund claimed. 3 The Court of Claims, by a divided vote, sustained the taxpayer's contention and held that in computing its net operating loss for 1946, the taxpayer was entitled to include the amount of excess profits tax paid in 1946 on account of its 1945 return. Judgment was accordingly entered for the taxpayer. 108 F.Supp. 109, 110 F.Supp. 600, 124 Ct.Cl. 33, 39. The case is here on a petition for a writ of certiorari which we granted, 348 U.S. 808, 75 S.Ct. 23 because of a conflict between the decision below and Lewyt Corp. v. Commissioner, 215 F.2d 518, decided by the Court of Appeals for the Second Circuit. 4 Section 23(s) of the Internal Revenue Code, 26 U.S.C.A. § 23(s), provides that, in computing net income, 'the net operating loss deduction computed under section 122' shall be allowed as a deduction. Section 122, as applicable here, provides a complicated formula for carrying net operating losses back for two preceding taxable years and over into the two succeeding taxable years, thus taking for the limited purpose of § 122 a five-year period as the accounting unit. The part of § 122 of which the taxpayer seeks to take advantage is (b) (1) relating to the carry-back.* By the express terms of § 122(b)(1) the carry-back provisions are subject to the limitations contained in § 122(d)(6), which provides in part, 'There shall be allowed as a deduction the amount of tax imposed by Subchapter E of Chapter 2 paid or accrued within the taxable year * * *.' Subchapter E of Chapter 2, 26 U.S.C.A. § 710 et seq., identifies the tax which may be used as a deduction as the Excess Profits Tax. But if it is to be used as a deduction, the tax must have been 'paid or accrued' within the taxable year. 5 The controversy here revolves around the meaning of 'paid or accrued.' The years 1944 and 1945 were years of profit for the taxpayer. The years 1946 and 1947 were years of loss. The taxpayer kept its books and filed its returns on the accrual basis of accounting. Its 1945 excess profits tax therefore accrued in 1945, though it was paid in 1946. Yet the argument which prevailed below is that the tax paid in 1946 on account of the liability for 1945 could be used under § 122(d)(6) as a net operating loss for 1946. We take the other view and conclude that § 122(d)(6) does not grant a taxpayer an option to take deductions on a basis that is inconsistent with the method of accounting which it employs. 6 Section 41 states the general rule that net income shall be computed 'in accordance with the method of accounting regularly employed in keeping the books' of the taxpayer. 26 U.S.C.A. § 41. 7 Section 43 provides that deductions and credits may be taken 'for the taxable year in which 'paid or accrued' or 'paid or incurred', dependent upon the method of accounting upon the basis of which the net income is computed, unless in order to clearly reflect the income the deductions or credits should be taken as of a different period.' 26 U.S.C.A. § 43. 8 Section 48 provides, 'When used in this chapter * * * (c) The terms * * * 'paid or accrued' shall be construed according to the method of accounting upon the basis of which the net income is computed under this Part.' 26 U.S.C.A. § 48. This provision of § 48 would itself seem to be conclusive of the question, since § 122 is 'in this chapter', to use the language of § 48. And § 48, together with § 41 and § 43, seem to indicate that the words 'paid or accrued' have only one meaning throughout the chapter, not the changeable meaning which the taxpayer seeks to give them. 9 We deal here with a deduction which one obtains not as of right, but as of grace. Deputy v. du Pont, 308 U.S. 488, 493, 60 S.Ct. 363, 366, 84 L.Ed. 416. The taxpayer has the burden to show that it is within the provision allowing the deduction. But the effort here made, if successful, would cause 'paid or accrued,' as used in § 122(d)(6), to mean something different than it does in other sections of the same chapter; and that would fly in the face of the express command of § 48. 10 The Court of Claims recognized the force of this analysis, but concluded that Congress could not have meant what it said because, if so, this particular carry-back provision would have little application. First, most corporations are on the accrual not the cash basis. Second, if an accrual taxpayer is limited in its deductions to excess profits taxes accrued within the taxable year, the provision has little value since there is 'rarely a case when a taxpayer would be liable for any excess profits tax in a year in which it has sustained a net operating loss * * *.' 108 F.Supp. at 111, 124 Ct.Cl. at 37. This taxpayer argues the inequity of the results which would follow from our construction of the Code. But as we have said before, 'general equitable considerations' do not control the question of what deductions are permissible. Deputy v. de Pont, supra, 308 U.S. at 493, 60 S.Ct. 366. It may be that Congress granted less than some thought or less than was originally intended. We can only take the Code as we find it and give it as great an internal symmetry and consistency as its words permit. We would not be faithful to the statutory scheme, as revealed by the words employed, if we gave 'paid or accrued' a different meaning for the purposes of § 122(d)(6) than it has in the other parts of the same chapter. 11 Our construction is in harmony with the general rule that a taxpayer on an accrual basis must take deductions in the year of accrual. See Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 64 S.Ct. 596, 88 L.Ed. 725. 12 The fact that the construction we feel compelled to make favors the taxpayer on the cash basis and discriminates against the taxpayer on the accrual basis may suggest that changes in the law are desirable. But if they are to be made, Congress must make them. 13 Reversed. 14 Mr. Justice HARLAN took no part in the consideration or decision of this case. * Section 122(b)(1) is entitled 'Net operating loss carry-back' and reads as follows: 'If for any taxable year beginning after December 31, 1941, the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-back for each of the two preceding taxable years, except that the carry-back in the case of the first preceding taxable year shall be the excess, if any, of the amount of such net operating loss over the net income for the second preceding taxable year computed (A) with the exceptions, additions, and limitations provided in subsection (d)(1), (2), (4), and (6), and (B) by determining the net operating loss deduction for such second preceding taxable year without regard to such net operating loss.'

1112

349 U.S. 190 75 S.Ct. 687 99 L.Ed. 997 Julius EMSPAK, Petitioner,v.UNITED STATES of America. No. 9. Reargued April 4, 5, 1955. Decided May 23, 1955. Messrs. David Scribner and Frank J. Donner, New York City, for petitioner. Mr. Robert W. Ginnane, Washington, D.C., for respondent. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 This is a companion case to Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668. Challenged in each proceeding is a conviction under 2 U.S.C. § 192, 2 U.S.C.A. § 192, in the District Court for the District of Columbia.1 The two cases arose out of the same investigation by the Committee on Un-American Activities of the House of Representatives. Because of the similarity of the legal issues presented, the cases were consolidated for argument in this Court. 2 Pursuant to subpoena, petitioner appeared on December 5, 1949, before a subcommittee of the Committee on Un-American Activities. The subcommittee consisted of a single member, Rep. Morgan M. Moulder. Petitioner was then the General Secretary-Treasurer of the United Electrical, Radio & Machine Workers of America as well as Editor of the UE News, the union's official publication. The subcommittee's hearings had previously been announced as concerning 'the question of Communist affiliation or association of certain members' of the union and 'the advisability of tightening present security requirements in industrial plants working on certain Government contracts.'2 3 Petitioner was asked a total of 239 questions. Most dealt with the structure of the union, the duties of its officers, the scope of its membership and bargaining commitments, the alleged similarity in policies of the UE News and the Communist Party, the non-Communist affidavit that petitioner had filed with the National Labor Relations Board, and related matters. Petitioner answered all of these questions. He declined, however, to answer 68 of the 239 questions. These 68 questions dealt exclusively with petitioner's associations and affiliations. He based his refusal on 'primarily the first amendment, supplemented by the fifth.'3 Of the 68 questions, 58 asked in substance that he state whether or not he was acquainted with certain named individuals and whether or not those individuals had ever held official positions in the union. Two of the questions concerned petitioner's alleged membership in the National Federation for Constitutional Liberties and the Civil Rights Congress. Eight questions concerned petitioner's alleged membership and activity in the Communist Party. 4 On November 20, 1950, petitioner was indicted under § 192 for his refusal to answer the 68 questions.4 Sitting without a jury, the District Court held that petitioner's references to 'primarily the first amendment, supplemented by the fifth' were insufficient to invoke the Fifth Amendment's privilege against self-incrimination.5 The District Court accordingly found petitioner guilty on all 68 counts and sentenced him to a term of six months and a fine of $500. The Court of Appeals for the District of Columbia Circuit, three judges dissenting, affirmed en banc.6 From that decision this Court granted certiorari.7 I. 5 As pointed out in Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, no ritualistic formula or talismanic phrase is essential in order to invoke the privilege against self-incrimination. All that is necessary is an objection stated in language that a committee may reasonably be expected to understand as an attempt to invoke the privilege. In the Quinn case we hold that Quinn's references to "the First and Fifth Amendments" and "the First Amendment to the Constitution, supplemented by the Fifth Amendment" were sufficient to meet this standard. It would be unwarranted, we think, to reach a different conclusion here as to petitioner's plea based on 'primarily the first amendment, supplemented by the fifth.' 6 The Government does not even attempt to distinguish between the two cases in this respect. Apparently conceding that petitioner as well as Quinn intended to invoke the privilege, the Government points out 'the probability' that his references to the Fifth Amendment were likewise deliberately phrased in muffled terms 'to obtain the benefit of the privilege without incurring the popular opprobrium which often attaches to its exercise.'8 On this basis the Government contends that petitioner's plea was not adequate. The answer to this contention is threefold. First, an objection that is sufficiently clear to reveal a probable intention to invoke the privilege cannot be ignored merely because it is not phrased in an orthodox manner. Second, if it is true that in these times a stigma may somehow result from a witness' reliance on the Self-Incrimination Clause, a committee should be all the more ready to recognize a veiled claim of the privilege. Otherwise, the great right which the Clause was intended to secure might be effectively frustrated by private pressures. Third, it should be noted that a committee is not obliged to either accept or reject an ambiguous constitutional claim the very moment it is first presented. The way is always open for the committee to inquire into the nature of the claim before making a ruling. If the witness intelligently and unequivocally waives any objection based on the Self-Incrimination Clause, or if the witness refuses a committee request to state whether he relies on the Self-Incrimination Clause, he cannot later invoke its protection in a prosecution for contempt for refusing to answer that question. 7 The Government argues that petitioner did in fact waive the privilege, at least as to one count of the indictment, and that the conviction can be sustained on that count alone.9 In response to a question concerning his associations, petitioner expressed apprehension that the committee was 'trying to perhaps frame people for possible criminal prosecution' and added that 'I think I have the right to reserve whatever rights I have. * * *'10 The following colloquy then took place:11 8 'Mr. Moulder. Is it your feeling that to reveal your knowledge of them would subject you to criminal prosecution? 'Mr. Emspak. No. I don't think this committee has a right to pry into my associations. That is my own position.' 9 Petitioner's reply, it is contended, constituted an effective disclaimer of the privilege. We find this contention without merit. As this Court declared in Smith v. United States, 337 U.S. 137, 150, 69 S.Ct. 1000, 1007, 93 L.Ed. 1264: 'Although the privilege against self-incrimination must be claimed, when claimed it is guaranteed by the Constitution. * * * Waiver of constitutional rights * * * is not lightly to be inferred. A witness cannot properly be held after claim to have waived his privilege * * * upon vague and uncertain evidence.' 10 The Smith case, we believe, is controlling here. The witness in that case, at the outset of questioning by an OPA examiner, stated "I want to claim privilege as to anything that I say." The examiner accepted this statement as a plea of possible self-incrimination and a request for the immunity afforded to involuntary witnesses by the Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq. The questioning proceeded on that basis. In response to one question, however, the witness made a statement that appeared to the examiner to be voluntary. This colloquy then ensued: 11 'Question. This is a voluntary statement. You do not claim immunity with respect to that statement? Answer. No.' 12 In a subsequent prosecution of the witness for violation of the Price Control Act, it was held that his 'No' answer waived his immunity at least as to the one statement.12 This Court unanimously reversed, stating, 337 U.S. at page 151, 69 S.Ct. at page 1007: 'Without any effort to clarify the 'No', the examiner went ahead and had the witness restate the substance of the long answer * * * without any further intimation that the subsequent answers were considered by the examiner to be voluntary. We do not think under these circumstances this equivocal 'No' is a waiver of the previous definite claim of general privilege against self-incrimination.' Similarly, in the instant case, we do not think that petitioner's 'No' answer can be treated as a waiver of his previous express claim under the Fifth Amendment. At most, as in the Smith case, petitioner's 'No' is equivocal.13 It may have merely represented a justifiable refusal to discuss the reasons underlying petitioner's assertion of the privilege; the privilege would be of little avail if a witness invoking it were required to disclose the precise hazard which he fears.14 And even if petitioner's 'No' answer were taken as responsive to the question, the answer would still be consistent with a claim of the privilege. The protection of the Self-Incrimination Clause is not limited to admissions that 'would subject (a witness) to criminal prosecution'; for this Court has repeatedly held that 'Whether such admissions by themselves would support a conviction under a criminal statute is immaterial'15 and that the privilege also extends to admissions that may only tend to incriminate.16 In any event, we cannot say that the colloquy between the committee and petitioner was sufficiently unambiguous to warrant finding a waiver here. To conclude otherwise would be to violate this Court's own oft-repeated admonition that the courts must 'indulge every reasonable presumption against waiver of fundamental constitutional rights.'17 13 Throughout this entire proceeding—in the trial in the District Court, on appeal in the Court of Appeals, and here on certiorari-the Government has never denied that petitioner would be entitled to the protection of the privilege if he did in fact invoke it. And during argument in this Court the Government expressly conceded that all 68 questions were of an incriminatory character. In addition, neither the District Court nor the Court of Appeals saw fit to introduce the issue into the case. We are therefore reluctant to do so now. But doubts on the issue by some members of the Court make its consideration necessary. 14 'To sustain the privilege,' this Court has recently held, '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.'18 And nearly 150 years ago Chief Justice Marshal enunciated a similar test: 'Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself.'19 Applying this test to the instant case, we have no doubt that the eight questions concerning petitioner's alleged membership in the Communist Party fell within the scope of the privilege.20 The same is true of the two questions concerning petitioner's alleged membership in the National Federation for Constitutional Liberties and the Civil Rights Congress; both organizations had previously been cited by the committee as Communist-front organizations. There remains for consideration the 58 questions concerning petitioner's associations. This Court has already made abundantly clear that such questions, when asked in a setting of possible incrimination, may fall within the scope of the privilege.21 15 What was the setting—as revealed by the record—in which these questions were asked? Each of the named individuals had previously been charged with having Communist affiliations. On October 14, 1949, less than two months prior to petitioner's appearance before the committee, eleven principal leaders of the Communist Party in this country had been convicted under the Smith Act for conspiring to teach and advocate the violent overthrow of the United States.22 Petitioner was identified at their trial as a Communist and an associate of the defendants. It was reported that Smith Act indictments against other Communist leaders were being prepared. On November 23, 1949, two weeks prior to petitioner's appearance, newspapers carried the story that the Department of Justice 'within thirty days' would take 'an important step' toward the criminal prosecution of petitioner in connection with his non-Communist affidavit filed with the National Labor Relations Board.23 16 Under these circumstances, it seems clear that answers to the 58 questions concerning petitioner's associations 'might be dangerous because injurious disclosure could result.' To reveal knowledge about the named individuals—all of them having been previously charged with Communist affiliations—could well have furnished 'a link in the chain' of evidence needed to prosecute petitioner for a federal crime, ranging from conspiracy to violate the Smith Act to the filing of a false non-Communist affidavit under the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq. That being so, it is immaterial that some of the questions sought information about associations that petitioner might have been able to explain away on some innocent basis unrelated to Communism. If an answer to a question may tend to be incriminatory, a witness is not deprived of the protection of the privilege merely because the witness if subsequently prosecuted could perhaps refute any inference of guilt arising from the answer.24 II. 17 There is here, as in the Quinn case, a second ground for our decision. At no time did the committee specifically overrule petitioner's objection based on the Fifth Amendment, nor did the committee indicate its overruling of the objection by specifically directing petitioner to answer. In the absence of such committee action, petitioner was never confronted with a clear-cut choice between compliance and noncompliance, between answering the question and risking prosecution for contempt. For the reasons set out in the Quinn opinion, we believe the committee—by failing to meet these minimal procedural standards, originally recognized by the committee and recently re-adopted—did not adequately apprise petitioner that an answer was required notwithstanding his objections. And without such apprisal, there is lacking the element of deliberateness necessary for a conviction under § 192 for a refusal to answer. III. 18 Our disposition of the case makes it unnecessary to pass on petitioner's other contentions as to the First Amendment and the grand jury. The judgment below is reversed and the case remanded to the District Court with directions to enter a judgment of acquittal. 19 Reversed. 20 Mr. Justice REED, dissenting. 21 Mr. Justice HARLAN, dissenting. 22 A valid claim of privilege against self-incrimination under the Fifth Amendment has two requisites: (1) the privilege must be adequately invoked, and (2) a possible answer to the question against which the privilege is asserted must have some tendency to incriminate the person to whom the question is addressed. Although Emspak's invocation of the privilege left much to be desired, I agree with the majority's view that it was adequate, and that Emspak at no time abandoned his claim. But I must dissent from the Court's holding that all of the questions involved in the indictment called for possibly incriminatory answers. 23 The Court also holds, as an alternative ground for reversing Emspak's conviction for contempt of the House Subcommittee, that Emspak was not sufficiently apprised of the fact that the Subcommittee, notwithstanding the claim of privilege, was insisting upon answers to the questions put to him. From this holding I must also dissent. 24 My disagreement with the Court on both scores goes to the first 58 counts of the indictment.1 As the Court's opinion recognizes, the upholding of Emspak's conviction on any one count of the indictment would require affirmance of the judgment below, because the general sentence imposed on all counts was less than the maximum allowable on any single count. See Sinclair v. United States, 1929, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692. I. 25 As to the Incriminatory Character of the 58 Questions. 26 It is quite true, as the majority observes, that this issue was not dealt with by either of the courts below. The District Court and the Court of Appeals did not have to reach the problem because of their conclusion that Emspak's claim of privilege was inadequate. And for some reason the Government has not pressed the point. This, however, does not foreclose this Court from considering it. See Swift & Co. v. Hocking Valley R. Co., 1917, 243 U.S. 281, 289, 37 S.Ct. 287, 289, 61 L.Ed. 722. And perhaps it is due that I should explain why I think we should deal with it. My reason is twofold: first, because to hold, as the Court does, that the questions involved in Counts 1 to 58 of the indictment were of an incriminatory character seems to me to verge on an abandonment of the rule that a valid claim of privilege exists only as to incriminatory questions; and second, because the more recent decisions of this Court appear to me to leave the standard for determining whether a question is incriminatory in great confusion. For example, the Court of Appeals for the Third Circuit had occasion not so long ago to manifest its bewilderment as to where this aspect of the privilege against self-incrimination now stands in light of recent decisions of this Court. See United States v. Coffey, 1952, 198 F.2d 438. In short, I think the standard for judging the character of a question against which the Fifth Amendment privilege is asserted needs both rehabilitation and restatement. 27 (1) The standard. 28 The concept of an incriminating answer includes not only those answers which constitute an admission of guilt, but also those which may furnish evidence of guilt or merely supply a lead to obtaining such evidence. Counselman v. Hitchcock, 1892, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. 29 The answer to almost any question a witness is asked could be regarded as being useful as evidence, or as furnishing a lead to evidence, in support of some conceivable criminal charge against the person to whom the question is addressed. But unlike a defendant in a criminal case, a witness in a grand jury or other judicial or legislative proceeding has never been allowed, by claiming his privilege, to refuse to answer any questions at all. That would completely subordinate the public interest in the conduct of such proceedings. Accordingly, lest claims of the Fifth Amendment privilege be used as a cover for a person refusing to perform his duty to co-operate in such proceedings, reasonable bounds have been put upon the exercise of the privilege. Those bounds were stated as long ago as 1861 by the English Court of Queen's Bench in The Queen v. Boyes, 1 B. & S. 311, 330—331, in language which this Court has adopted as the basis for the rule in this country. See Brown v. Walker, 1896, 161 U.S. 591, 599—600, 16 S.Ct. 644, 647—648, 40 L.Ed. 819; Mason v. United States, 1917, 244 U.S. 362, 365—366, 37 S.Ct. 621, 622—623, 61 L.Ed. 1198. In the Boyes case, Cockburn, C.J., said: 30 'Further than this, we are of opinion that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things—not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility, out of the ordinary course of the law and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice. 31 The object of the law is to afford to a party, called upon to give evidence in a proceeding inter alios, evidence in a proceeding inter alios, protection against being brought by means of his own evidence within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice.' 32 Throughout the course of its decisions this Court has consistently stated that the 'real danger imaginary possibility' test is the proper standard to be applied in deciding whether particular questions are subject to a valid Fifth Amendment claim. See Brown v. Walker, supra; Heike v. United States, 1913, 227 U.S. 131, 144, 33 S.Ct. 226, 228, 57 L.Ed. 450; Mason v. United States, supra; Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; Blau v. United States, 1950, 340, U.S. 159, 161, 71 S.Ct. 223, 224, 95 L.Ed. 170; Hoffman v. United States, 1951, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118. But in recent per curiam reversals of contempt convictions this Court seems to have indicated a tendency to stray from the application of this traditional standard.2 And I shall presently show that it has departed from that standard in this case. 33 The next question requiring consideration is: How should this standard be applied in a case where the questions appear on their face to call only for innocent answers? In United States v. Weisman, 1940, 111 F.2d 260, the Court of Appeals for the Second Circuit had before it a claim of the Fifth Amendment privilege to a question in substantially the following form: 'Did you know anyone who visited or lived in Shanghai between 1934 and 1939?' On the surface of things—had nothing more appeared—the possible answers to this question—' Yes,' 'No' or 'I don't know'—would all appear innocent. A situation could be imagined in which one of these answers would have tended to incriminate, but this possibility by itself would not be enough to justify the claim of privilege. Additional facts appeared, however, which showed the question to be part of an incriminatory pattern: the witness was a New York night club proprietor, unlikely to be acquainted with Shanghai residents or visitors, and he had engaged in transactions looking suspiciously like importations of narcotics from China. Because of these and other facts, a real danger of incrimination from answering the question was held to exist by the court, through Judge Learned Hand. It may be argued that the admission sought was not sufficiently implicating to justify the invocation of the privilege, see Wigmore, Evidence, §§ 2260—2261; but for present purposes we may assume that the result is a correct one. 34 Of course, in some cases the background facts making an apparently innocent question dangerous may not be known to the court. Then the choice must be made between requiring the court to accept the witness' word that facts exist which would make his answer incriminating, and requiring the witness to explain the circumstances which justify his claim of privilege. To be sure, the second alternative involves the danger that the witness will have to reveal some incriminatory evidence in order to show why he should not be required to answer. Nevertheless, traditionally the witness has not been allowed to be sole judge of the character of the questions objected to; he is required to open the door wide enough for the court to see that there is substance to his claim. United States v. Weisman, supra. If the background facts are known or suspected to exist, this problem disappears, for all the witness has to do is point to such facts or suspicions. 35 (3) Application of the standard to dangerous questions. 36 It seems to me that the 'real danger imaginary possibility' standard ought to be applied in the same fashion to dangerous questions. Such questions include those which call for an admission of a crime or a necessary element of a crime, or a fact which, while innocent on its face, is dangerous in the light of other facts already developed. 37 In all such cases other facts may appear which serve to cast an innocent aspect upon the question. Suppose two men are suspected of having conspired to steal cash from a bank one day during business hours. Each is asked whether he saw the other on the day of the theft, and each pleads his privilege. But facts already developed in the investigation show that both men are tellers in this bank and have worked in the same cage for ten years. Certainly, in these circumstances, the fact of each having seen the other cannot rationally be said to have any tendency to establish their guilt, or, in any realistic sense, to aid the prosecution in discovering evidence against them, since the prosecution already would be expected to have independent evidence of their presence in the bank on that day. In other words, if background facts can make an innocent question dangerous, they can also make a dangerous question innocent. And in deciding whether the privilege is available, we must take into account all the facts—not just those tending to make the question dangerous. 38 I do not suggest that in a trial for contempt a Fifth Amendment defense should be set at naught whenever the prosecution is able to offer an exculpatory explanation for an otherwise incriminating answer. What I do submit is that the privilege should not be available when the facts have been sufficiently developed at the time the claim of privilege is made so that it is plain that no possible answer to the question put to the witness could rationally tend to prove his guilt or supply the prosecution with leads to evidence against him. In such circumstances there is no real danger of harm to the witness to be apprehended from his answering the question. 39 (4) Application of the standard to this case. 40 I come finally to the issue as to how the 'real danger imaginary possibility' standard should be applied to the questions involved in the first 58 counts of the indictment.3 Typical of these questions were the following: 'Are you acquainted with Joseph Persily?'; 'Is Max Helford at the present time a field organizer for the UE?' 41 On their face, and without more, these questions were certainly innocent enough. And therefore the first issue confronting us is whether other existing background facts and circumstances made the questions incriminatory. We start from these premises: From the announced purposes of the Subcommittee and the pattern of its questioning of witnesses, it is a fair inference that one of the Subcommittee's objectives was to show that communists held positions of responsibility in this Union. This in turn might be the starting point for prosecutions for filing false noncommunist affidavits under the Taft-Hartley Act4 or for violations of the Smith Act.5 The conclusion also seems justified that most, if not all, of the persons referred to in the 58 questions put to Emspak, and Emspak himself, were suspected of being communists or of having communist affiliations. Indeed, the Government on the oral argument conceded as much. Had Emspak admitted knowing any of these people, this might tend to show association with communists. While the decisions of this Court do not establish that these factors would have sufficed to make those questions incriminatory, lower courts have gone far in this direction. See Kasinowitz v. United States, 9 Cir., 1950, 181 F.2d 632; United States v. Raley, D.C.1951, 96 F.Supp. 495; see also Falknor, Self-Crimination Privilege: 'Links in the Chain,' 5 Vand.L.Rev. 479, 485—489 (1952). 42 But there were also other background facts and circumstances. Emspak had told the Subcommittee that he was Secretary of the Union. He was asked if other named individuals held positions in the same Union, and with respect to some of them, whether he knew them personally. These things being so, it is difficult to see how the fact that Emspak knew some of these people or what position each held in the Union can rationally be said to support even an inference that he knew of their alleged communist affiliations, much less tend to prove that he himself had taken part in a conspiracy to advocate the forcible overthrow of the Government or had falsely sworn that he was not a communist. Nor could the answers to the questions have been of material assistance in providing leads to evidence to be used against him. Investigators presumably would already know that the Secretary of the Union knew other Union officials. Thus, in light of Emspak's admitted position, the questions appear proper. 43 This conclusion is not affected by the additional possibility that Emspak's answers might have been admissible against him in a later criminal trial. If the answers were admissible, this fact should not of itself make the questions incriminatory, even though the answers might have been utilized by the prosecutor to show Emspak's acquaintance with these other persons as a first step in proving conspiracy, and the prosecutor would thus have been spared the necessity of proving this acquaintance by independent evidence. But in fact Emspak's answers would not have been admissible against him in such a trial. For at the time Emspak testified before the Subcommittee, a federal statute prevented the use of any of his testimony before that body as evidence against him in any later criminal proceedings, except a prosecution for perjury in the giving of the testimony.6 Thus, to the extent that the incriminatory character of these questions depends solely upon the admissibility of Emspak's answers in evidence against him in a later criminal trial, there could hardly be a valid objection to them on this score. 44 In the last analysis, the Court's holding seems to rest on the premise that the questions put to Emspak became automatically incriminatory once it was shown that he and those about whom he was interrogated were under suspicion of communism. This is painting with too broad a brush. 45 It is true that under the rule as it exists a witness may sometimes have to walk a tightrope between waiver of his privilege, if he answers a question later held to be incriminatory, and contempt, if he refuses to answer a question later held to be nonincriminatory. And it may be that in some circumstances the privilege should be held to extend to questions which are not in themselves incriminatory, but which seem likely to lead to other questions which are. But in my view any such doctrine should be regarded as an exception to the general rule and should be confined to cases where special circumstances exist which make it unfair to apply the ordinary rule, such as where the witness is without counsel, is ignorant or confused, and the like. Some of the decisions of lower courts seem to suggest that in proceedings obviously designed to develop a case against a particular witness, the witness may be allowed to invoke the privilege as to all questions, as may a defendant in a criminal case. See Marcello v. United States, 5 Cir., 1952, 196 F.2d 437; Maffie v. United States, 1 Cir., 1954, 209 F.2d 225. I think, however, that such a view is too sweeping, and also that where there is room for the application of an exception to the ordinary rule, it should be done openly, and not under the guise of holding nonincriminatory questions incriminatory. No circumstances are shown here which would call for the application of any such exception. Emspak was represented by counsel and was obviously an intelligent and shrewd witness. The inference most readily drawn from the record is that Emspak did not want to 'stool pigeon' against his associates. While such a motive would not, in my opinion, vitiate an otherwise valid claim of the privilege, it certainly furnishes no legal excuse for refusing to answer nonincriminatory questions. II. 46 As to Emspak's Knowledge That the Subcommittee Wanted Its Questions Answered. 47 The majority holds that whenever a witness objects to a question there is no violation of 2 U.S.C. § 192, 2 U.S.C.A. § 192, until he is clearly apprised that the Committee demands his answer, notwithstanding his objection. Until then, so the Court holds, the witness has not evidenced the requisite criminal intent, that is, a deliberate refusal to answer. The Court elaborates this thesis in the Quinn case, 349 U.S. 155, 75 S.Ct. 668, decided today, and applies it in this case and in the Bart case, 349 U.S. 219, 75 S.Ct. 712, also decided today. 48 I am unable to accept the Court's holding on this score, and agree with Mr. Justice REED'S criticism of it in his two dissenting opinions in these three cases. I consider it desirable, however, to elaborate somewhat upon what Mr. Justice REED has said. 49 Section 192 speaks only of refusal to answer. 'Refusal' implies simply recognition of what the Committee is after and failure either to supply it or to explain an inability to supply it. It only confuses the matter to say that the 'refusal' must be 'intentional' or 'deliberate' or that it must manifest a 'criminal intent.' Indeed, Sinclair v. United States, 1929, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692, upon which the Court relies, was later discussed in United States v. Murdock, 1933, 290 U.S. 389, 396, 397, 54 S.Ct. 223, 226, 78 L.Ed. 381, and the Court there pointed out that § 192 does not make a bad purpose or evil intent an ingredient of the crime of refusing to answer a question pertinent to the matter under inquiry. 50 Beyond this, I see no reason for thinking that when a witness couples an objection with a refusal to answer, his refusal becomes any the less 'deliberate' or 'intentional.' The Court holds that if the objection were accepted by the Committee, the requirement of 'deliberateness' would not have been met. For my part, the proper analysis of such a situation is rather that there has been a 'refusal to answer,' and thus at least a prima facie violation of the statute, but the Committee has chosen not to press the matter further. What the Committee does after the witness makes his objection should not be held to have any bearing on the question whether there was a refusal, or on the question whether it was 'deliberate,' if that connotes anything more. Those questions must be determined as of the time the witness speaks. 51 Thus I do not see how the Court's result can be hinged to any language in the statute. Perhaps a privilege to object could be derived, however, from what must be taken to be the statute's overall purpose: to enable committees to obtain the information they wish without at the same time treating witnesses unfairly. Thus, a witness might be held privileged to refuse to answer a question, for the purpose of presenting, at reasonable length, a colorable objection to the propriety of the question. But this privilege would terminate when it became reasonably apparent to the witness that the objection was not acceptable to the Committee. Then the witness would have to choose between answering and standing on the validity of his objection. 52 If this is the standard which the Court's construction establishes, I would quarrel only with its application here. But in requiring that a witness who objects be 'clearly apprised' that his objection is unsatisfactory and that the Committee wishes his answer, the Court may have meant to go further. If that is so, then I would question the standard itself. Moreover, I think that even this more lenient standard would have been met in this case. For surely the record shows that Emspak was clearly apprised that, despite his objections, the Committee wanted answers to the 58 questions, so that there is a violation of the statute under either standard. After Emspak had answered a number of preliminary questions concerning the organization of his Union, the following discussion took place between him, Congressman Moulder, and Mr. Tavenner, the Committee Counsel: 53 'Mr. Tavenner. Mr. Emspak, are you acquainted with Joseph Persily? 54 'Mr. Emspak. Mr. Chairman, I would like to say something at this point. 55 'Mr. Moulder. You mean in response to the question? 56 'Mr. Emspak. I will answer the question; yes, in response to the question and as a statement of position. 57 'What I say revolves around two points, one organizationally and another as an individual. Organizationally, my job as an officer of this union is to represent the interest of the membership as they determine it at the annual conventions and at other means they have of getting together and expressing themselves. My job is to administer that aspect to the best of my ability, using one very simple measuring stick, and that is: Does a given policy or action contribute to the well-being of the membership, individually and collectively? 58 'As an individual I would like to say one thing, and that is this: The line of questioning that counsel is developing now is a line that has been used on numerous occasions by this committee and other congressional committees in an attempt to harass the union, its leadership, and its members. It is a line of questioning that goes against my grain as an American. I was born in this country. Everything I am— 'Mr. Moulder. How long will this statement take, Mr. Emspak? 59 'Mr. Emspak. About two or three more minutes. 60 'Mr. Moulder. Proceed. 61 'Mr. Emspak. Everything I am, I owe to the rich heritage and tradition of this country. I do not believe that a committee of this kind, especially in view of the recent record of this committee where it stooped to interfere in the partisan affairs of a local union, or any congressional committee, because of the rich tradition of this country which, if not perverted, will lead to a greater and better country—I don't think a committee like this or any subcommittee has a right to go into any question of my beliefs, my associations, or anything else. I have a couple of kids. They have a stake in this country, too. 62 'Mr. Moulder. I want to give you full opportunity to express yourself in answer to the question, but you are making an oration now. 63 'Mr. Emspak. It is not an oration. It happens to be a very profound personal feeling. 64 'Mr. Moulder. What is the question? 65 'Mr. Tavenner. The question is: Are you acquainted with Joseph Persily. 66 'Mr. Moulder. How do you spell that? 67 'Mr. Tavenner. P-e-r-s-i-l-y. 68 'Mr. Emspak. Because I have a stake in this country— 69 'Mr. Moulder. You are not answering the question. He asked you if you are acquainted with this man. 70 'Mr. Emspak. I will answer it. 71 'Mr. Moulder. Are you or not? 72 'Mr. Emspak. I was on the verge of answering it. 73 'Mr. Moulder. If you have any explanation to make you will be permitted to do so after you answer the question. 74 'Mr. Emspak. Because of my interest in what is going on these days, because of the activities of this committee— 75 'Mr. Moulder. Are you going to answer the question? 76 'Mr. Emspak. Because of the hysteria, I think it is my duty to endeavor to protect the rights guaranteed under the Constitution, primarily the first amendment, supplemented by the fifth. This committee will corrupt those rights. 77 'Mr. Moulder. Do you think it corrupts you to answer the question? 78 'Mr. Emspak. I certainly do. 79 'Mr. Moulder. Why does it corrupt you? 80 'Mr. Emspak. Your activities are designed to harm the working people of this country. Every action this committee has ever taken has done that. You interfered last summer in the election of a local union at the request of a priest. You know that. You dragged down the prestige of this country. 81 'Mr. Moulder. You are not going to take over this committee. 82 'Mr. Emspak. I don't want to. 83 'Mr. Moulder. And your statements are preposterous. The purpose of this committee is to expose communism as it exists in this country. What is the question? 84 'Mr. Tavenner. Are you acquainted with Joseph Persily? 85 'Mr. Emspak. For the reasons I stated before, I answered it. 86 'Mr. Moulder. Then you refuse to answer the question? 87 'Mr. Emspak. No. I answered it. 88 'Mr. Tavenner. Are you or are you not acquainted with Joseph Persily? 'Mr. Emspak. I answered the question. 89 'Mr. Tavenner. Your replies are a refusal to comply with the request to answer it? 90 '(Witness confers with his counsel.) 91 'Mr. Moulder. The record will reveal that you have not answered the question. 92 'Mr. Emspak. I have answered it to the best of my ability under the circumstances. 93 'Mr. Moulder. Any further questions? 94 'Mr. Tavenner. Yes. In what capacity is Joseph Persily associated with the UE at this time? 95 'Mr. Emspak. It is the same question over again. I will give the same answer. 96 'Mr. Tavenner. Is he an organizer in the UE? 97 'Mr. Emspak. Mr. Chairman, it is the same question. 98 'Mr. Tavenner. You refuse to answer that? 99 'Mr. Emspak. I answered it.' 100 Following this, Emspak was asked 55 questions of exactly the same character as those relating to Persily, to each of which he reiterated, with minor variations: 'Same answer.' This was obviously, on this record, nothing other than a formula for refusing to answer without appearing to do so. In the face of such a record, I find it impossible to understand how the Court can conclude that Emspak was not clearly apprised of the fact that the Subcommittee wanted his answers. 101 Were this opinion being written for the Court, it would be necessary, before affirming this conviction, to deal with the other points Emspak urges for reversal. Since the Court, under its view of the case, did not reach any of them, I think it would not be appropriate for me to discuss them. I am therefore content to say that I find none of those points tenable on this record. 102 I would affirm the judgment of conviction. 1 Section 192 provides: 'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.' 2 Hearings before House Committee on Un-American Activities Regarding Communist Infiltration of Labor Unions, 81st Cong., 1st Sess. Part 1, 541—542. 3 At the very outset of this line of questioning, the following colloquy took place: 'Mr. Moulder. Are you going to answer the question? 'Mr. Emspak. Because of the hysteria, I think it is my duty to endeavor to protect the rights guaranteed under the Constitution, primarily the first amendment, supplemented by the fifth. This committee will corrupt those rights.' (Italics added.) Hearings, supra, note 2, Part II, at 839. 4 Petitioner's motions to dismiss the indictment were denied. United States v. Emspak, D.C., 95 F.Supp. 1010, 1012. 5 United States v. Emspak, unreported, Criminal No. 1742—50 (D.D.C.). In a companion case under § 192, United States v. Matles, unreported, Criminal No. 1745—50 (D.D.C.), the same district judge directed an acquittal of James J. Matles, a UE official who testified before the committee on the same day as Emspak and who similarly relied on 'the First and Fifth Amendments.' Hearings, supra, note 2, Part II, at 856. The court held that Matles' plea was sufficient to invoke the Self-Incrimination Clause because it appeared that Rep. Moulder so understood it. 6 91 U.S.App.D.C. 378, 203 F.2d 54. 7 346 U.S. 809, 74 S.Ct. 23, 98 L.Ed. 338. After argument, the case was restored to the docket for reargument. 347 U.S. 1006, 74 S.Ct. 861, 98 L.Ed. 1132. 8 Brief for United States, p. 33, in Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668. 9 Petitioner's general sentence on all 68 counts was less than the maximum permissible on any count. See Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692. 10 Hearings, supra, note 2, Part II, at 840. 11 Id., at 841. 12 United States v. Daisart Sportswear, Inc., 2 Cir., 169 F.2d 856, 862—863. 13 See also United States v. St. Pierre, 2 Cir., 128 F.2d 979, 980, from which this Court's Smith opinion approvingly quotes the following: "Nor is it material that appellant stated at several points that he had committed no federal crime; such a contradiction, especially by a nervous or excitable witness would not overcome a clear claim of privilege if he was otherwise entitled to the privilege." Cf. United States v. Weisman, 2 Cir., 111 F.2d 260, 261. 14 See Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118; United States v. Burr, 25 Fed.Cas. 38, 40, No. 14,692e. 15 Blau v. United States, 340 U.S. 159, 161, 71 S.Ct. 223, 224, 95 L.Ed. 170. 16 See Hoffman v. United States, 341 U.S. 479, at pages 486 487, 71 S.Ct. at page 818; United States v. Burr, 25 Fed.Cas. pp. 38, 40—41, No. 14,692e. And see note 18, infra. 17 Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. See also, e.g., Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680, and Smith v. United States, 337 U.S. 137, 150, 69 S.Ct. 1000, 1007, 93 L.Ed. 1264. 18 Hoffman v. United States, 341 U.S. 479, 486—487, 71 S.Ct. 814, 818, 95 L.Ed. 1118. Compare the test laid down in Arndstein v. McCarthy, 254 U.S. 71, 72, 41 S.Ct. 26, 65 L.Ed. 138: 'It is impossible to say from mere consideration of the questions propounded, in the light of the circumstances disclosed, that they could have been answered with entire impunity.' And see United States v. Coffey, 3 Cir., 198 F.2d 438, 440: 'It is enough (1) that the trial court be shown by argument how conceivably a prosecutor, building on the seemingly harmless answer, might proceed step by step to link the witness with some crime against the United States, and (2) that this suggested course and scheme of linkage not seem incredible in the circumstances of the particular case. It is in this latter connection, the credibility of the suggested connecting chain, that the reputation and known history of the witness may be significant. 'Finally, in determining whether the witness really apprehends danger in answering a question, the judge cannot permit himself to be skeptical; rather must he be acutely aware that in the deviousness of crime and its detection incrimination may be approached and achieved by obscure and unlikely lines of inquiry.' 19 United States v. Burr, 25 Fed.Cas. pp. 38, 40, No. 14,692e. 20 Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170. See also Brunner v. United States, 343 U.S. 918, 72 S.Ct. 674, 96 L.Ed. 1332, reversing, 9 Cir., 190 F.2d 167. 21 In United States v. Singleton, 3 Cir., 193 F.2d 464, 465, the defendant was convicted of contempt for refusing to answer the question "What business is he in?" with respect to three named individuals. This Court summarily reversed, 343 U.S. 944, 72 S.Ct. 1041, 96 L.Ed. 1349, citing Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118, and Greenberg v. United States, 343 U.S. 918, 72 S.Ct. 674, 96 L.Ed. 1332. The Hoffman decision, in reversing, 3 Cir., 185 F.2d 617, upheld an assertion of the privilege in response to questions concerning the whereabouts of an acquaintance of the defendant. The Greenberg decision, in reversing, 3 Cir., 192 F.2d 201, upheld an assertion of the privilege in response to a question, among others, asking the defendant to identify certain 'men who were in the numbers business.' 187 F.2d 40. See note 24, infra. 22 18 U.S.C. § 2385, 18 U.S.C. § 371, 18 U.S.C.A. §§ 2385, 371. 23 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h); 18 U.S.C. § 1001, 18 U.S.C.A. § 1001. 24 At the present time the Court of Appeals are apparently uniform in holding that the privilege may extend to questions of the sort involved here. See, e.g., Judge Learned Hand in United States v. Weisman, 2 Cir., 111 F.2d 260, 261, upholding privilege in response to question of whether the witness knew anyone who visited, lived in, or stayed at, Shanghai in the years 1934 to 1939; Judge Augustus Hand in United States v. Zwillman, 2 Cir., 108 F.2d 802, upholding privilege in response to question of who the witness' business associates were in the years 1928 to 1932; Chief Judge Denman v. Kasinowitz v. United States, 9 Cir., 181 F.2d 632, upholding privilege in response to questions of whether the witness knew Dorothy Healy and whether the witness knew Dorothy Healy's occupation; Chief Judge Denman in Kasinowitz v. United States, 1 Cir., 209 F.2d 225, 231, upholding privilege in response to question, among others, whether witness knew 'Specs' O'Keefe and Stanley Gusciora; Judge Holmes in Estes v. Potter, 5 Cir., 183 F.2d 865, upholding privilege in response to question whether the witness personally knew a certain alien; Judge Rives in Marcello v. United States, 5 Cir., 196 F.2d 437, 442, upholding privilege in response to question "Do you know Salvatore Vittali?"; Judge Martin in Aiuppa v. United States, 6 Cir., 201 F.2d 287, upholding privilege in response to questions whether the witness knew R. L. O'Donnell and Anthony Accardo; Judge Maris in In re Neff, 3 Cir., 206 F.2d 149, 36 A.L.R.2d 1398, upholding privilege in response to questions whether the witness knew Julius Zinman and Lou Malinow. See also Alexander v. United States, 9 Cir., 181 F.2d 480; Doran v. United States, 9 Cir., 181 F.2d 489; Healey v. United States, 9 Cir., 186 F.2d 164; Poretto v. United States, 5 Cir., 196 F.2d 392, 396; United States v. Girgenti, 3 Cir., 197 F.2d 218; United States v. Coffey, 3 Cir., 198 F.2d 438; Daly v. United States, 1 Cir., 209 F.2d 232, 233. Cf. Kiewel v. United States, 8 Cir., 204 F.2d 1; United States v. Doto, 2 Cir., 205 F.2d 416. 1 However, I do agree with the Court that the privilege was available as to the questions involved in Counts 59 through 68 of the indictment, since, under the circumstances shown by the record, each of those questions did call for a possibly incriminatory answer. Because this would in any event require reversal of the conviction on those counts, as to them I need not reach the issue of whether Emspak was adequately apprised that the Subcommittee was insisting upon his answers, despite the claim of privilege. 2 See Greenberg v. United States, 1951, 341 U.S. 944, 71 S.Ct. 1013, 95 L.Ed. 1369; Id., 1952, 343 U.S. 918, 72 S.Ct. 674, 96 L.Ed. 1332; Singleton v. United States, 1952, 343 U.S. 944, 72 S.Ct. 1041, 96 L.Ed. 1349, and the discussion of the Court of Appeals for the Third Circuit in United States v. Coffey, supra. (2) Application of the standard to questions innocent on their face. 3 I consider that the 10 questions involved in Counts 59—68 of the indictment qualified, in the circumstances of this case, as incriminatory questions under the 'real danger imaginary possibility' standard. 4 61 Stat. 146, 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h). 5 18 U.S.C. § 2385, 18 U.S.C.A. § 2385. 6 R.S. § 859, 18 U.S.C. (1952 ed.) § 3486, 18 U.S.C.A. § 3486: 'No testimony given by a witness before either House, or before any committee of either House, or before any joint committee established by a joint or concurrent resolution of the two Houses of Congress, shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. But an official paper or record produced by him is not within the said privilege.' The statute, falling short of a complete grant of immunity to the witness from prosecution on account of testimony given by him, would not have been effective to compel testimony over a valid claim of privilege, but it was effective to prevent the use of such testimony against the witness in a subsequent criminal prosecution. See Adams v. State of Maryland, 1954, 347 U.S. 179, 182—183, 74 S.Ct. 442, 98 L.Ed. 608. This statute was in effect until August 20, 1954, when it was superseded by 68 Stat. 745. The supersession would not affect the inadmissibility of testimony given while the old statute was in effect. See Cameron v. United States, 1914, 231 U.S. 710, 34 S.Ct. 244, 58 L.Ed. 448. The possibility that a witness might commit perjury in answering a question has never been regarded as justification for invoking the privilege to the question. See Noonan, Inferences from the Invocation of the Privilege Against Self-Incrimination, 41 Va.L.Rev. 311, 321—322 (1955).

01

349 U.S. 294 75 S.Ct. 753 99 L.Ed. 1083 Oliver BROWN, et al., Appellants,v.BOARD OF EDUCATION OF TOPEKA, Shawnee County, KANSAS, et al. Harry BRIGGS, Jr., et al., Appellants, v. R. W. ELLIOTT, et al. Dorothy E. DAVIS, et al., Appellants, v. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VIRGINIA, et al. Spottswood Thomas BOLLING, et al., Petitioners, v. C. Melvin SHARPE, et al. Francis B. GEBHART, et al., Petitioners, v. Ethel Louise BELTON, et al. Nos. 1 to 5. Argued April 11, 12, 13 and 14, 1955. Decided May 31, 1955. [Syllabus from pages 294-295 intentionally omitted] Mr. Robert L. Carter, New York City, for appellants in No. 1. Mr. Harold R. Fatzer, Topeka, Kan., for appellees in No. 1. Messrs. Thurgood Marshall, New York City, and Spottswood W. Robinson, III, Richmond, Va., for appellants in Nos. 2 and 3. Messrs. S. E. Rogers, Summerton, S.C., and Robert McC. Figg, Jr., Charleston, S.C., for appellees in No. 2. Messrs. Archibald G. Robertson, Richmond, Va., and J. Lindsay Almond, Jr., Atty. Gen., for appellees in No. 3. Messrs. George E. C. Hayes and James M. Nabrit, Jr., Washington, D.C., for petitioners in No. 4. Mr. Milton D. Korman, Washington, D.C., for respondents in No. 4. Mr. Joseph Donald Craven, Wilmington, Del., for petitioners in No. 5. Mr. Louis L. Redding, Wilmington, Del., for respondents in No. 5. Messrs. Richard W. Ervin and Ralph E. Odum, Tallahassee, Fla., for State of Florida, I. Beverly Lake, Raleigh, N.C., for State of North Carolina, Thomas J. Gentry, Little Rock, Ark., for State of Arkansas, Mac Q. Williamson, Oklahoma, City, Okl., for State of Oklahoma, C. Ferdinand Sybert, Ellicott City, Md., for State of Maryland, John Ben Shepperd and Burnell Waldrep, Austin, Tex., for State of Texas, Sol. Gen. Simon E. Sobeloff, Washington, D.C., for the United States, amici curiae. [Amicus Curiae Information from page 297 intentionally omitted] Mr. Chief Justice WARREN delivered the opinion of the Court. 1 These cases were decided on May 17, 1954. The opinions of that date,1 declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded. 2 Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief.2 In view of the nationwide importance of the decision, we invited the Attorney General of the United States and the Attorneys General of all states requiring or permitting racial discrimination in public education to present their views on that question. The parties, the United States, and the States of Florida, North Carolina, Arkansas, Oklahoma, Maryland, and Texas filed briefs and participated in the oral argument. 3 These presentations were informative and helpful to the Court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as amici curiae, and in other states as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation. The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decision of this Court concerning relief. 4 Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.3 5 In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies4 and by a facility for adjusting and reconciling public and private needs.5 These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them. 6 While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases. 7 The judgments below, except that in the Delaware case, are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case—ordering the immediate admission of the plaintiffs to schools previously attended only by white children—is affirmed on the basis of the principles stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in light of this opinion. 8 It is so ordered. 9 Judgments, except that in case No. 5, reversed and cases remanded with directions; judgment in case No. 5 affirmed and case remanded with directions. 1 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884. 2 Further argument was requested on the following questions, 347 U.S. 483, 495—496, note 13, 74 S.Ct. 686, 692, 98 L.Ed. 873, previously propounded by the Court: '4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment '(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or '(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions? '5. On the assumption on which questions 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b), '(a) should this Court formulate detailed decrees in these cases; '(b) if so, what specific issues should the decrees reach; '(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees; '(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?' 3 The cases coming to us from Kansas, South Carolina, and Virginia were originally heard by three-judge District Courts convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284. These cases will accordingly be remanded to those three-judge courts. See Briggs v. Elliott, 342 U.S. 350, 72 S.Ct. 327, 96 L.Ed. 392. 4 See Alexander v. Hillman, 296 U.S. 222, 239, 56 S.Ct. 204, 209, 80 L.Ed. 192. 5 See Hecht Co. v. Bowles, 321 U.S. 321, 329—330, 64 S.Ct. 587, 591, 592, 88 L.Ed. 754.

12

349 U.S. 302 75 S.Ct. 757 99 L.Ed. 1107 Carlos MARCELLO, Petitioner,v.John M. BONDS, Officer in Charge, United States Immigration and NaturalizationService. No. 145. Argued April 21, 1955. Decided May 31, 1955. Messrs. Jack Wasserman, David Carliner, Washington, D.C., for petitioner. Mr. Robert W. Ginnane, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 Petitioner, a native of Tunis, Africa, was ordered deported after a hearing pursuant to § 242(b) of the Immigration and Nationality Act of 1952, 66 Stat. 209, 8 U.S.C. § 1252(b), 8 U.S.C.A. § 1252(b). It was found that he had been convicted in 1938 of violation of the Marihuana Tax Act, 26 U.S.C. § 2591, 26 U.S.C.A. § 2591, and sentenced to imprisonment for one year. Section 241(a) (11) of the 1952 immigration law1 makes such conviction at any time ground for deportation, and § 241(d)2 provides that the deportation provisions of § 241(a) shall apply even though the facts giving rise to the alien's deportability occurred prior to the date of enactment of the 1952 Act. 2 At the hearing before a special inquiry officer of the Immigration and Naturalization Service, petitioner did not dispute the fact of his conviction. He did, however, object to the proceedings on the ground that they violated due process and the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001, et seq. The hearing officer overruled these objections. Petitioner also contended that the ex post facto cause of the Constitution precluded the retroactive application of the 1952 law to his case. This contention too was rejected by the hearing officer. Petitioner and his counsel were advised of their right to apply to the Attorney General for the discretionary relief of suspension of deportation under § 244(a)(5) of the Act.3 At first they declined to do so, but subsequently they moved to reopen the hearing to apply for such relief. The special inquiry officer denied the motion. On appeal, the Board of Immigration Appeals affirmed the order of deportation. Though no formal application for suspension of deportation under § 244(a)(5) had been filed, the Board considered whether such relief was merited but exercised its discretion against the remission. 3 Petitioner then brought this action for a writ of habeas corpus, challenging the validity of the deportation order on the grounds, inter alia: (1) that the hearing under § 242(b) of the Act failed to comply with the requirements of the Administrative Procedure Act in that the special inquiry officer was under the supervision and control of officials in the Immigration Service who performed investigative and prosecuting functions; (2) that § 242(b) violated the Due Process Clause of the Fifth Amendment because it failed to provide for a fair and impartial hearing; (3) that on the date of petitioner's arrest the Attorney General made a public statement, which 'was bound to have great effect upon the special inquiry officer,' to the effect that petitioner was an undesirable citizen for whose deportation the proceedings were 'specially designed,' and, further, that in 1952 the Attorney General 'prepared a list of 152 persons (including petitioner) whom he desired to deport'; and (4) that the retroactive application of § 241(a)(11) was unconstitutional as an ex post facto law. 4 The Government's return to the writ alleged that petitioner's deportation had been conducted in accordance with the Constitution, laws and regulations of the United States. No evidence was introduced by either side save the official Immigration Service record of petitioner's deportation proceedings. The District Court held the deportation order valid and discharged the writ. United States ex rel. Marcello v. Ahrens, 113 F.Supp. 22. The Court of Appeals affirmed. Marcello v. Ahrens, 5 Cir., 212 F.2d 830. Petitioner pursues his four basic objections in this Court, certiorari having been granted to resolve issues having a significant bearing on the administration of our immigration laws. 348 U.S. 805, 75 S.Ct. 39. 5 Applicability of the Administrative Procedure Act. 6 Petitioner concedes that § 242(b) of the Immigration Act, authorizing the appointment of a 'special inquiry officer' to preside at the deportation proceedings, does not conflict with the Administrative Procedure Act, since § 7(a) of that Act excepts from its terms officers specially provided for or designated pursuant to other statutes.4 He insists, however, that there are several significant discrepancies between the Acts, and claims that in cases of variance the provisions of the Administrative Procedure Act must govern unless those of the Immigration Act 'shall * * * expressly' negate their application. Administrative Procedure Act, § 12. The discrepancies relied on stem from the 'separation of functions' provision of § 5(c), of the Administrative Procedure Act. To the extent her material, this section separates investigative and prosecuting functions from those of adjudication, expressly providing that hearing officers shall not be responsible to or under the supervision of those engaged in investigation and prosecution. The section also prohibits the hearing officer from participating or advising in the decision of a case, or one factually related thereto, in which he has performed investigative or prosecuting functions. Section 242(b) of the Immigration Act, on the other hand, permits the 'special inquiry officer' to take the dual role of prosecutor and hearing officer—presenting evidence and interrogating witnesses and prohibits him only from hearing cases which he has taken some part in investigating or prosecuting (other than in the permitted dual capacity). An alternative method is permitted by § 242(b), however, under which an additional immigration officer presents the evidence while the special inquiry officer presides. See 8 CFR § 242.53. Special inquiry officers are subject to such supervision as the Attorney General prescribes, 66 Stat. 171, 8 U.S.C. § 1101(b)(4), 8 U.S.C.A. § 1101(b)(4), and at present they are subject to the supervision of district directors of the immigration districts to which they are assigned, as well as higher Service officials, all with enforcement responsibilities of the type proscribed by § 5(c) of the Administrative Procedure Act. 7 Under the allegations here made, the single attack of the petitioner pertains to the supervision of the special inquiry officer by the investigative and prosecuting officials of the Immigration Service. The alternative procedure of § 242(b) was employed in this case, so the presiding officer did not undertake the functions of prosecutor; and there is no allegation that he engaged in investigative or prosecuting functions in this or any factually related case. For the sake of clarity, however, we shall consider all of the differences in the hearing provisions of the two Acts in determining whether the Administrative Procedure Act is to govern. 8 The applicability of the Administrative Procedure Act to deportation proceedings under the Immigration Act of 1917 was considered by this Court in Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616. We there held, contrary to the prevailing interpretation and practice of the Department of Justice, that deportation hearings were subject to the Act. Six months later, Congress provided in the Supplemental Appropriation Act of 1951, 64 Stat. 1048, that proceedings directed toward the exclusion or expulsion of aliens should not be governed by §§ 5, 7 and 8 of the Administrative Procedure Act. The issue here presented is whether the Congress reversed itself in the 1952 Immigration Act and in effect reinstated the Sung case by making the hearing provisions of the Administrative Procedure Act directly applicable to deportation proceedings. A comparison of the pertinent provisions of the two statutes is perhaps the strongest indication that the Congress had no such intention. 9 1. Section 242(b) of the Immigration Act begins by enumerating the functions of the special inquiry officer, that he shall administer oaths, receive evidence, etc. A similar though more extensive and detailed provision appears in § 7(b) of the Administrative Procedure Act, but of course this section makes no mention of functions stemming from the special inquiry officer's dual role as prosecutor and judge. 10 2. Section 242(b) then directs that a determination of deportability be made only upon the record of a proceeding at which the alien had a reasonable opportunity to be present. A similar direction as to the record appears in § 7(d) of the Administrative Procedure Act, and as to the party's personal appearance in § 6(a). 11 3. Section 242(b) then deals with matters peculiar to deportation proceedings, which have no direct analogues in the Administrative Procedure Act: safeguards to be established to protect mentally incompetent aliens; the right of the inquiry officer to proceed if the alien deliberately absents himself; the option to pursue the alternative procedure, described above, in which one official prosecutes and another decides. 12 4. Next in § 242(b) is the limitation already noted on the special inquiry officer's sitting in the same case in which he has also engaged in investigative or prosecuting functions. The more restrictive analogue in § 5(c) of the Administrative Procedure Act has also been presented. 13 5. Section 242(b) then sets forth various requirements which are to be included in regulations governing deportation proceedings before the special inquiry officer. The first of these gives the alien the right to reasonable notice of the charges against him and of the time and place at which the proceedings shall be held. A similar requirement appears in § 5(a) of the Administrative Procedure Act. 14 6. The second provision which § 242(b) requires to be included in the regulations is the privilege of the alien to be represented by counsel of his own choosing. Section 6(a) of the Administrative Procedure Act bestows a similar privilege on any person compelled to appear in person before the agency. 15 7. The regulations under § 242(b) must also provide that the alien be given a reasonable opportunity to present and examine evidence and to cross-examine witnesses. The same ground is covered in § 7(c) of the Administrative Procedure Act. 16 8. The regulations promulgated under § 242(b) must require that decisions of deportability be based upon reasonable, substantial and probative evidence. To the same effect is § 7(c) of the Administrative Procedure Act. 17 9. Finally, in addition to the requirements of § 242(b), there is the direction of § 101(b)(4) of the Immigration Act that the special inquiry officer shall be subject to such supervision as the Attorney General shall prescribe. This covers the same question as the portion of § 5(c) of the Administrative Procedure Act dealing with the supervision and control of hearing officers. 18 From the Immigration Act's detailed coverage of the same subject matter dealt with in the hearing provisions of the Administrative Procedure Act, it is clear that Congress was setting up a specialized administrative procedure applicable to deportation hearings, drawing liberally on the analogous provisions of the Administrative Procedure Act and adapting them to the particular needs of the deportation process. The same legislators, Senator McCarran and Congressman Walter, sponsored both the Administrative Procedure Act and the Immigration Act, and the framework of the latter indicates clearly that the Administrative Procedure Act was being used as a model. But it was intended only as a model, and when in this very particularized adaptation there was a departure from the Administrative Procedure Act—based on novel features in the deportation process—surely it was the intention of the Congress to have the deviation apply and not the general model. Were the courts to ignore these provisions and look only to the Administrative Procedure Act, the painstaking efforts detailed above would be completely meaningless. Congress could have accomplished as much simply by stating that there should be a hearing to determine the question of deportability. 19 Section 242(b) expressly states: 'The procedure (herein prescribed) shall be the sole and exclusive procedure for determining the deportability of an alien under this section.' That this clear and categorical direction was meant to exclude the application of the Administrative Procedure Act is amply demonstrated by the legislative history of the Immigration Act. The original bills included statements to the effect that the § 242(b) procedures were to be exclusive, '(n)otwithstanding any other law, including the (Administrative Procedure Act).' S. 3455, 81st Cong., 2d Sess.; S. 716, 82d Cong., 1st Sess.; H.R. 2379, 82d Cong., 1st Sess. The 'notwithstanding' clause was dropped in later versions of the Act and did not appear in the bills reported out of committee or in the statute as finally enacted. S. 2055, 82d Cong.; H.R. 5678, 82d Cong.; S. 2550, 82d Cong. The deletion is nowhere explained, but it is possible that the phrase was considered unnecessary—and perhaps inappropriate as a description as § 242(b) became more detailed, encompassing in its particularization the greater part of the Administrative Procedure Act's hearing provisions. In the Senate Report accompanying the revised bill, it is stated that § 242(b) sets up special procedures for deportation proceedings, that these are made exclusive, and that the exemption from the Administrative Procedure Act in the Supplemental Appropriation Act of 1951 is repealed because it is 'no longer necessary.' S.Rep. No. 1137, 82d Cong., 2d Sess., p. 28. The House Report is to the same effect, stating that the prescribed deportation proceedings shall be the sole and exclusive procedure, 'notwithstanding the provisions of any other law.' H.R.Rep. No. 1365, 82d Cong., 2d Sess., p. 58. Throughout the debates it is made clear that the Administrative Procedure Act does not apply directly, but that its provisions have been specially adapted to meet the needs of the deportation process. See particularly the detailed statement of Senator McCarran, 98 Cong.Rec. 5625—5626, wherein he recognizes a departure from the 'dual-examiner provisions' of the Administrative Procedure Act, the very section here in issue. 20 Exemptions from the terms of the Administrative Procedure Act are not lightly to be presumed in view of the statement in § 12 of the Act that modifications must be express, cf. Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591. But we cannot ignore the background of the 1952 immigration legislation, its laborious adaptation of the Administrative Procedure Act to the deportation process, the specific points at which deviations from the Administrative Procedure Act were made, the recognition in the legislative history of this adaptive technique and of the particular deviations, and the direction in the statute that the methods therein prescribed shall be the sole and exclusive procedure for deportation proceedings. Unless we are to require the Congress to employ magical passwords in order to effectuate an exemption from the Administrative Procedure Act, we must hold that the present statute expressly supersedes the hearing provisions of that Act. The Hearing Procedures and Due Process. 21 As noted above, the only complaint which petitioner can urge concerning the hearing procedures in this case is the objection that the special inquiry officer was subject to the supervision and control of officials in the Immigration Service charged with investigative and prosecuting functions. Petitioner would have us hold that the presence of this relationship so strips the hearing of fairness and impartiality as to make the procedure violative of due process. The contention is without substance when considered against the long-standing practice in deportation proceedings, judicially approved in numerous decisions in the federal courts, and against the special considerations applicable to deportation which the Congress may take into account in exercising its particularly broad discretion in immigration matters. 22 The Claim of Prejudgment. 23 Our opinions in the Accardi cases stand for the proposition that the Attorney General cannot, under present regulations, dictate the actions of the Board of Immigration Appeals. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681; Shaughnessy v. United States ex rel. Accardi, 349 U.S. 280, 75 S.Ct. 746. Petitioner alleges that his case was prejudged within the meaning of these decisions because on the day of his arrest for deportation the Attorney General 'announced in a public statement5 both in Washington and in New Orleans that (petitioner) was an undesirable citizen and had been guilty of many crimes, and that the proceedings were specially designed to deport petitioner,' and that 'such publicity was bound to have great effect upon the special inquiry officer.' He alleged, further, that 'the Attorney General some time in 1952 prepared a list of 152 persons whom he desired to deport, and that (his) name was included on this list.' 24 Considering first the alleged list, it is clear that petitioner has not made out a case of prejudgment. He did not allege that either the inquiry officer or the Board of Immigration Appeals had seen the list, had known of its existence, or had been influenced in their decisions by the inclusion of petitioner's name thereon. In argument before the Board, petitioner stated through counsel that he had 'the feeling—and it's a feeling that's based upon evidence which we will supply—that the real basis for the denial of suspension here was the fact that Marcello was one of these hundred whom the Attorney General had named * * *.' No evidence of this was forthcoming. As to petitioner's charges concerning the Attorney General's 'list,' the record is completely barren. 25 Nor does petitioner fare better in seeking to base prejudgment on the unfavorable publicity accompanying his arrest. He introduced newspaper clippings into evidence to show the adverse local publicity and alleged that this publicity must have had a 'great effect' upon the special inquiry officer. But the record indicates clearly that petitioner's case could not possibly have been prejudiced in the hearing before the inquiry officer. On the question of petitioner's deportability, the sole issue decided by him, the hearing officer merely applied the statute to the undisputed facts. Petitioner admitted that he was deportable under the Immigration Act of 1952 if the Act could constitutionally base deportation on his 1938 marihuana conviction. And the hearing officer could be expected in any event to take the law as Congress enacted it. In view of this Court's decisions on the ex post facto objection, the only ground of attack, he could do nothing else. Petitioner waived the only issue on which prejudgment was possible when he declined to apply for discretionary relief at the proper time. See 8 CFR § 242.54(d). 26 The Board of Immigration Appeals considered the availability of discretionary relief, but as to these officials there was not even an allegation by petitioner that they had known of the unfavorable publicity or had been influenced by it. Indeed, there is every indication that the Board had not prejudged the case, since it considered the question of suspending deportation on the merits although not bound to do so in view of petitioner's waiver below. The Board denied the requested relief, giving reasons. It is not for us in this proceeding to pass on the factors relied on by the Board in reaching its conclusion. It is sufficient to observe that all had basis in the record and that none stemmed from any sort of dictation by the Attorney General. 27 Finally, we note that, even as to his claim relating to adverse publicity, petitioner introduced no evidence other than the newspaper clippings. Surely on this meager showing the district judge was warranted in finding—as he did—that the special inquiry officer, the only official mentioned in petitioner's pleadings, was not controlled in his decision by superiors in the Department of Justice. The decision of the district judge cannot be set aside as clearly erroneous. Accordingly, we hold that under our Accardi decisions petitioner has failed to make out a case for a new hearing. Ex Post Facto. 28 Petitioner's last objection stems from the fact that his conviction under the Marihuana Tax Act was not ground for deportation at the time he committed the offense, and that he was not forewarned of all the consequences of his criminal conduct. It is urged that we depart from our recent decisions holding that the prohibition of the ex post facto clause does not apply to deportation, and strike down as unconstitutional the retroactive application of the new grounds for deportation in § 241(a)(11) of the Immigration and Nationality Act of 1952. We perceive no special reasons, however, for overturning our precedents on this matter, and adhere to our decisions in Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911, and Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586. 29 Affirmed. 30 Mr. Justice HARLAN took no part in the consideration or decision of this case. 31 Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER joins, dissenting. 32 Petitioner was lawfully brought to this country forty-four years ago when he was eight months old and has resided here ever since. He is married and has four children. His wife and children are American citizens. It is settled that he cannot be deported without being accorded a fair hearing in accordance with the Due Process Clause of the Fifth Amendment.1 33 A fair hearing necessarily includes an impartial tribunal. Petitioner claims that the circumstances here deprived him of that kind of tribunal. The officer who conducted the hearings, decided the case and made recommendations for deportation was connected with the Immigration and Naturalization Service. This hearing officer was subject to the supervision, direction and control of the Attorney General and his subordinate supervisory officers of the Immigration Service who perform investigative and prosecutorial functions. Thus the hearing officer adjudicated the very case against petitioner which the hearing officer's superiors initiated and prosecuted. Petitioner's argument is that requiring him to have his cause adjudicated by such a subordinate of the prosecutors deprives him of due process. This due process challenge cannot be lightly dismissed, but I find it unnecessary to rest my dissent on a determination of that question. For Congress in the Administrative Procedure Act2 has barred hearing officers from adjudicating cases under the circumstances here, and I think that Act is applicable to this case. 34 Section 5(c) of the Administrative Procedure Act forbids hearing officers covered by the Act to conduct hearings if they are 'responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency.' In 1950 we held in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, that deportation proceedings must be conducted as required by § 5. Congress, however, later in 1950, put a rider on an appropriation bill providing that 'Proceedings under law relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 5, 7, and 8 of the Administrative Procedure Act.'3 Were this express modification of the Procedure Act still in effect, we would have to reach the constitutional question raised by petitioner. But this appropriation rider was repealed in the 1952 Immigration and Nationality Act.4 The result of this repeal was to leave § 5(c) of the Administrative Procedure Act applicable to immigration cases unless, as the Government contends, other provisions of the 1952 Immigration Act made the Procedure Act inapplicable. I think this contention of the Government should not be sustained. 35 Section 12 of the Administrative Procedure Act provides that 'No subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly.' The 1950 appropriation rider was an express modification of the prior Procedure Act, but unlike the Court I find no such express modification in the 1952 Immigration Act. Indeed that Act's legislative sponsors disclaimed any purpose to bring about even an implied modification. 36 Both the Procedure Act and the 1952 Immigration Act were sponsored by Senator McCarran and Representative Walter. Their original proposals which finally evolved into the 1952 Act did expressly provide that the Procedure Act should not control proceedings under the Immigration Act. The provision was that 'Notwithstanding any other law, including the Act of June 11, 1946 (the Administrative Procedure Act), the proceedings so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien who is in the United States'.5 Hearings on these proposals brought strong protests from some organizations, including the American Bar Association, against the provision making the Administrative Procedure Act inapplicable to deportation proceedings.6 Afterwards the sponsors of the immigration measures introduced new bills which significantly omitted from that provision the words 'Notwithstanding any other law, including the Act of June 11, 1946 (the Administrative Procedure Act).' Consequently when the bill finally passed there was no language which 'expressly' superseded or modified the binding requirement of § 5(c) of the Administrative Procedure Act. 37 Senators who voted for the new version which became the 1952 Immigration Act were assured by the senatorial sponsor: 38 'The Administrative Procedure Act is made applicable to the bill. The Administrative Procedure Act prevails now. * * * The bill provides for administrative procedures and makes the Administrative Procedure Act applicable insofar as the administration of the bill is concerned.'7 39 And House members voting for the 1952 Immigration Act were assured by its House sponsor: 40 'Instead of destroying the Administrative Procedures Act, we undo what the Congress did in a deficiency appropriation bill several years ago when it legislated to overturn a decision of the Supreme Court, which ruled that the Administrative Procedures Act is applicable in deportation proceedings. We undo that. So here, instead of our destroying the Administrative Procedures Act, we actually see that it is reinstated in every instance.'8 41 Reassuring the House again the next day, Representative Walter said: 42 'We have been very zealous to see that the philosophy underlying that act (Administrative Procedure) is embodied in this measure. I am sure that if the gentleman will look at page 163, paragraph 46, he will find that the law as it was before the House adopted this amendment to an appropriation bill, has been reinstated and that the decision of the Supreme Court in the Sung case will be the law of the land when this code is adopted.'9 43 As previously pointed out the Sung case held that § 5(c) of the Administrative Procedure Act did apply to deportation cases. 44 Other statements in the discussions of the 1952 Act may look in a different direction from the statements just quoted. But whatever was said, no language in the 1952 Immigration Act expressly authorizes deportation cases to be heard, contrary to the Administrative Procedure Act, by hearing officers who are the dependent subordinates of the immigration agency's prosecutorial staff. The idea of letting a prosecutor judge the very case he prosecutes or supervise and control the job of the judge before whom his case is presented is wholly inconsistent with our concepts of justice. It was this principle on which Congress presumably acted in passing the Procedure Act. Only the other day we had pointed out to us an instance in which the immigration authorities had relieved an immigration hearing officer from his duties because they believed that the hearing officer had failed adequately to present available derogatory information against an alien.10 It is hard to defend the fairness of a practice that subjects judges to the power and control of prosecutors. Human nature has not put an impassable barrier between subjection and subserviency, particularly when job security is at stake. That Congress was aware of this is shown by the Procedure Act, and we should not construe the Immigration Act on a contrary assumption. 45 I would reverse this case. 46 Mr. Justice DOUGLAS, dissenting. 47 The Constitution places a ban on all ex post facto laws. There are no qualifications or exceptions. Article I, § 9, applicable to the Federal Government, speaks in absolute terms: 'No * * * ex post facto Law shall be passed.'1 The prohibition is the same whether a citizen or an alien is the victim. So far as ex post facto laws are concerned, the prohibition is all-inclusive and complete. 48 There is a school of thought that the Ex Post Facto Clause includes all retroactive legislation, civil as well as criminal. See Crosskey, Politics and the Constitution, Vol. I, c. XI; Vol. II, p. 1053. Mr. Justice Johnson took that view, maintaining that a restriction of the Clause to criminal acts was unwarranted. See Ogden v. Saunders, 12 Wheat. 213, 271, 286, 6 L.Ed. 606; Satterlee v. Matthewson, 2 Pet. 380, 416, 681, 7 L.Ed. 458 (Appendix). The Court, however, has stated over and again since Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648, that the Ex Post Facto Clause applies only in criminal cases. See Carpenter v. Commonwealth, 17 How. 456, 463, 15 L.Ed. 127; Johannessen v. United States, 225 U.S. 227, 242, 32 S.Ct. 613, 617, 56 L.Ed. 1066; Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978; Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 286, 68 L.Ed. 549. 49 At the same time, there was a parallel development in the field of ex post facto legislation. Chief Justice Marshall in Fletcher v. Peck, 6 Cranch 87, 138—139, 3 L.Ed. 162, refused to construe the Ex Post Facto Clause narrowly and restrict it to criminal prosecutions. The Fletcher case held that property rights that had vested could not be displaced by legislative fiat. That liberal view persisted. It was given dramatic application in post-Civil War days. The leading cases are Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356, and Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366, where the right to practice a person's profession was sought to be taken away, in the first case by a State, in the second by the Federal Government, for acts which carried no such penalty when they were committed. The essence of those proceedings was the revocation of a license. Yet the Court held them to be violative of the Ex Post Facto Clauses because they were 'punishment' for acts carrying no such sanctions when done. 50 Deportation may be as severe a punishment as loss of livelihood. See Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 1452, 89 L.Ed. 2103; Delgadillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 12, 92 L.Ed. 17. As Mr. Justice Brandeis stated in Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938, deportation may result 'in loss of both property and life, or of all that makes life worth living.' 51 I find nothing in the Constitution exempting aliens from the operation of ex post facto laws. I would think, therefore, that, if Congress today passed a law making any alien who had ever violated any traffic law in this country deportable, the law would be ex post facto. Congress, of course, has broad powers over the deportation of aliens. See Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586. But the bare fact of a traffic violation would not reasonably be regarded as demonstrating that such a person was presently an undesirable resident. It would relate solely to an historic incident that carried no such punishment when committed. The present Act has the same vice. The alien is not deported after a hearing and on a finding by the authorities that he is undesirable for continued residence here. It is the bare past violation of the narcotic laws that is sufficient and conclusive, however isolated or insignificant such violation may have been. 8 U.S.C. § 1251, 8 U.S.C.A. § 1251. The case is, therefore, different from the earlier deportation cases where the past acts were mere counters in weighing present fitenss.2 52 In the absence of a rational connection between the imposition of the penalty of deportation and the present desirability of the alien as a resident in this country, the conclusion is inescapable that the Act merely adds a new punishment for a past offense. That is the injustice that the Ex Post Facto Clause was designed to prevent. 1 66 Stat. 204, 8 U.S.C. § 1251(a)(11), 8 U.S.C.A. § 1251(a)(11). 2 66 Stat. 208, 8 U.S.C. § 1251(d), 8 U.S.C.A. § 1251(d). 3 66 Stat. 214, 8 U.S.C. § 1254(a)(5), 8 U.S.C.A. § 1254(a)(5). 4 Section 7(a) of the Administrative Procedure Act directs that, in general, administrative hearings shall be held before hearing officers appointed pursuant to § 11 of the Act. 5 Petitioner introduced clippings appearing in New Orleans newspapers relating to the statement. While the press release of the Attorney General was not put in evidence, it read as follows: 'Attorney General James P. McGranery announced today that Carlos Marcello of Miami, Florida, and Jefferson Parish, Louisiana, has been arrested on a deportation warrant by the Immigation and Naturalization Service. 'The arrest in New Orleans was the first major deportation move undertaken since the new Immigration and Nationality Act became effective December 24, 1952. The action was another step in the Attorney General's program of denaturalization and/or deportation of undesirable persons of foreign birth who are engaged in racketeering or other criminal activities. 'Marcello, born February 6, 1910, in Tunis, Africa, entered the United States for permanent residence October 7, 1910, at New Orleans. 'He allegedly is engaged in large-scale slot machine operations and other gambling activities in Louisiana. 'The deportation warrant was based on his conviction in 1938 for violation of the Marijuana Act. Such a conviction is a deportable offense under the new Immigration and Nationality Act. 'The action follows lengthy investigations by both the Federal Bureau of Investigation and the Immigration and Naturalization Service. His conviction under the Marijuana Act was one of only two in his checkered career. The other case in which he was convicted was under Louisiana State law, the conviction being for assault and robbery, and on May 13, 1930, he was sentenced to serve a term of 9 to 14 years in the Louisiana State Penitentiary. The Governor of Louisiana gave him a full pardon for this crime July 16, 1935. 'Marcello served a year and a day after his conviction under the Marijuana Act.' 1 Japanese Immigrant Case, Yamataya v. Fisher, 189 U.S. 86, 100—101, 23 S.Ct. 611, 614, 47 L.Ed. 721; Wong Yang Sung v. McGrath, 339 U.S. 33, 49—51, 70 S.Ct. 445, 453—454, 94 L.Ed. 616. 2 60 Stat. 237, 5 U.S.C. §§ 1001—1011, 5 U.S.C.A. §§ 1001 1011. 3 64 Stat. 1048, 8 U.S.C. (1046 ed.) § 155a. 4 66 Stat. 166, 8 U.S.C. § 1101 et seq., 8 U.S.C.A. § 1101 et seq. 5 Emphasis supplied. 6 Joint hearings before the Subcommittees of the Committees on the Judiciary S. 716, H.R. 2379, H.R. 2816, 82d Cong., 1st Sess. 526—537, 591, 691—692, 739. 7 98 Cong.Rec. 5778, 5779. 8 98 Cong.Rec. 4302. 9 98 Cong.Rec. 4416. 10 Shaughnessy v. U.S. ex rel. Accardi, 349 U.S. 284, 75 S.Ct. 748 (dissenting opinion). 1 The ban against ex post facto state legislation is also absolute: 'No State shall * * * pass any * * * ex post facto Law * * *.' Art. I, § 10. 2 In Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549, the Act in question provided that aliens in certain classes (including those convicted under specified statutes) should be deported if the Secretary of Labor found those aliens to be undesirable residents of the United States. Thus the primary basis for deportation was a finding by the appropriate administrative official that an alien was presently an undesirable resident. In Bugajewitz v. Adams, 228 U.S. 585, 33 S.Ct. 607, 57 L.Ed. 978, the Court stated with regard to the alien to be deported, '* * * we must take it, at least, that she is a prostitute now', and concluded that, with regard to her, it was 'not necessary to construe the statute as having any retrospective effect.' Id., 228 U.S. at pages 590, 591, 33 S.Ct. at page 608. Johannessen v. United States, 225 U.S. 227, 32 S.Ct. 613, 56 L.Ed. 1066, involved an attempt to cancel a certificate of citizenship on the ground it had been fraudulently and illegally procured. The Court pointed out that the Act did not impose a new penalty on the wrongdoer but merely provided a method for depriving him of a privilege 'that was never rightfully his.' Id., 225 U.S. at pages 242—243, 32 S.Ct. at page 617.

12

349 U.S. 366 75 S.Ct. 845 99 L.Ed. 1155 J. W. WHITEHOUSE et al., Petitioners,v.ILLINOIS CENTRAL RAILROAD COMPANY et al. No. 131. Argued Feb. 10, 11, 1955. Decided June 6, 1955. Mr. Milton Kamer, for petitioner. Mr. Walter J. Cummings, Jr., Chicago, Ill., for respondents. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 This suit arose out of a proceeding before the National Railroad Adjustment Board. A dispute had arisen between the Order of Railroad Telegraphers (Telegraphers) and the Illinois Central Railroad Co. (Railroad) regarding the latter's employment of a member of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees (Clerks) in a position which Telegraphers claimed should, under its collective bargaining agreement with Railroad, be assigned to a member of Telegraphers. After attempted settlement by negotiation had failed, Telegraphers submitted the dispute, in accordance with the Railway Labor Act, 44 Stat. 577, as amended, 48 Stat. 926, 45 U.S.C. § 151 et seq., 45 U.S.C.A. § 151 et seq., to the Third Division of the National Railroad Adjustment Board. Notice of the proceeding was served by the Board on Telegraphers and Railroad. Railroad was then advised by letter that Clerks would prosecute a claim in the event that the rights of Clerks under their agreement with Railroad were adversely affected by the disposition of Telegraphers' claim. Railroad filed a 'submission' with the Board asserting that the disputed position involved clerical work of the type customarily performed by clerical forces in the industry and was in fact occupied by a member of Clerks, one Shears. Accordingly, Railroad contended, Telegraphers' claim should be denied, but in any event notice and opportunity to be heard should be afforded Clerks and Shears. 2 The ten members of the Board, five representing labor and five representing the carriers, deadlocked on the merits and a Referee was appointed as a member of the Board, agreeably to § 3, First (l) of the Railway Labor Act. When Telegraphers' claim came on for hearing on May 13, 1953, a carrier member of the Board objected that no notice had been served on Clerks pursuant to the requirement of § 3 First (j) of the Act: 3 'Parties may be heard either in person, by counsel, or by other representatives, as they may respectively elect, and the several divisions of the Adjustment Board shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them.' 4 This objection was considered in camera by the regular members of the Board, the Referee having been excluded, as the District Court found, 'in accordance with the custom and practice of the Third Division.' An even division resulted and the objection did not carry. After the Board reconvened in public, and in the presence of the Referee, who was not requested to and did not vote on this issue, the carrier member recited that the motion had lost and reiterated his objection, but the hearing resumed. 5 On May 22, apparently after the hearing had ended but prior to any announcement of a decision, Railroad filed the present action against the Board as such, its individual members, and the Referee. Railroad alleged that the failure to give notice violated the Act and that an award to Telegraphers would not prevent Clerks from prosecuting a similar claim successfully. The complaint sought temporary and permanent injunctions directing the Board to issue notice to Clerks and Shears, and restraining it from proceeding with any disposition of the claim until such notice had been given. Telegraphers, on intervention, contended, inter alia, that the means of review prescribed by the Railway Labor Act was exclusive and deprived the District Court of jurisdiction, that Railroad had failed to exhaust its administrative remedies, that Railroad showed no injury, and that, in any event, under the Act the Board was not required to notify Shears and Clerks. The Board moved to dismiss on the ground that the action was premature, that other adequate administrative and judicial remedies existed and that Railroad was not threatened with irreparable injury.1 6 The District Court held that Shears and Clerks were 'employees involved' within § 3, First (j), that it was the 'custom and practice' of the Third Division of the Board to deny notice and right to be heard to others than the parties to the specific claim before the Board, and that failure to do so was a denial of due process to the other interested persons and deprived the Board of jurisdiction. It issued a preliminary injunction restraining the Board from proceeding further in the matter unless formal notice was given to Shears and Clerks. On appeal by Telegraphers and the labor members of the Board, the Court of Appeals for the Seventh Circuit held that there could be 'hardly any doubt' that Clerks and Shears were 'involved' and that any award rendered without notice to them would be void and unenforceable. It rejected the contention that this action was premature because the award might be in favor of Railroad or the proceeding might be dismissed upon the deciding vote of the Referee based on failure to give notice. The court found that the Board had already refused to give notice and held that the Referee had no authority to cast a vote on a 'procedural' matter. Since no administrative channel was found available for review of the failure to give notice, the court held that there was no need to await the conclusion of proceedings before the Board. Irreparable injury was found in the fact that Railroad would be required to devote time and money to what it deemed an invalid proceeding and was faced with the threat of a conflicting proceeding by Clerks. Emphasizing that this judicial proceeding did not constitute review of an award, but was 'in the nature of mandamus' to compel the Board to perform its duty, the Court of Appeals affirmed, one judge dissenting. 212 F.2d 22, 30. We granted certiorari because serious questions concerning the administration of the Railway Labor Act are in issue. 348 U.S. 809, 75 S.Ct. 36. 7 We have been urged to resolve the present dispute regarding the requirement of notice to persons not formal parties to a submission to the Board, a dispute which has resulted in numerous conflicting decisions by the Board.2 This remains a perplexing problem despite the substantial agreement among Courts of Appeals which have considered the question in holding that notice is required to other persons in varying situations.3 The wording of the notice provision of § 3 First (j) does not give a clear answer. In the context of other related provisions it is certainly not obvious that in a situation like that now before us notice need be given beyond the parties to the submission. See § 3, First (i), (l), (m). Analogy to the law of parties as developed for judicial proceedings is not compelling and in any event does not approach constitutional magnitude. Both its history and the interests it governs show the Railway Labor Act to be unique. 'The railroad world is like a state within a state. Its population of some three million, if we include the families of workers, has its own customs and its own vocabulary, and lives according to rules of its own making.' Garrison, The National Railroad Adjustment Board: A Unique Administrative Agency, 46 Yale L.J. 567, 568—569. 8 We have also been urged to reverse the holding of the lower court that a Referee may neither be appointed to resolve a deadlock on the question of notice nor, having been appointed to break a deadlock on the merits, vote to dismiss the proceeding because of failure to give the required notice. Again, we have been asked to judge Railroad's present claim to relief on the basis of irreparable injuries which are alleged to flow from the dilemma in which Railroad will find itself if confronted either by an invalid award or a situation in which no valid award may be obtained. Railroad asserts that this dilemma is inevitable and will entail continuing industrial friction, the possibility of conflicting awards to both unions, and accumulating claims to back pay or damages which might have been avoided had notice been given and a valid award been rendered. If the award is against it, Railroad claims that it is at a loss to know whether to comply and be subjected both to suits to enjoin compliance and further Board proceedings by the third party, or to refuse to comply and attempt to defend an enforcement proceeding brought under § 3, First (p). 9 At the lowest it is doubtful whether these hypothetical injuries are fairly to be deemed irreparable and without other adequate administrative or judicial remedy. Assuming that the Act permits the Board to consider the claim of one union in the light of competing agreements between Railroad and other unions, see Order of Railway Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318, does it permit 'final and binding' awards to be rendered interpreting both contracts and resolving the independent claims of both unions in a single proceeding? See § 3, First (m). What, beyond proceedings under the Act, may third parties do to challenge an award in which they were improperly not permitted to participate? Compare Elgin, Joliet & Eastern R. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, with General Committee v. Missouri-K.-T.R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76. To what extent may defects in an award be cured in an enforcement action under § 3, First (p), and are the detriments which are asserted to flow from refusal to comply and reliance upon an enforcement action sufficient to justify judicial intervention? Cf. Federal Trade Commission v. Claire Furnace Co., 274 U.S. 160, 47 S.Ct. 553, 71 L.Ed. 978. One thing is unquestioned. Were notice given to Clerks they could be indifferent to it; they would be within their legal rights to refuse to participate in the present proceeding. Clerks here have not attempted to intervene. They have merely stated an intention to bring a separate proceeding in case they are affected by an award in this case. Indeed the Railroad refers to an understanding between Clerks and Telegraphers whereby the one will not intervene in proceedings initiated before the Board by the other, but will press its claims independently. And Clerks have joined in a brief of amicus curiae which asserts that third parties are not entitled to notice. We would thus have to consider whether those potential injuries alleged to flow solely from failure of Clerks to participate may be the basis for judicial intervention where there is neither a legal right of the complaining party to be free from such injuries nor any assurance that judicial action will afford relief. 10 These are perplexing questions. Their difficulty admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case. Here relief is sought prior to any decision on the merits by the Board. Apart from some lower court's dicta, there is no reason for holding, in the abstract, that any possible award would be rendered void by failure to give notice to an outsider even if related interest that cannot be compulsorily joined as a party to the proceeding. The Board has jurisdiction over the only necessary parties to the proceeding and over the subject matter. If failure to give notice be treated as an error, in an award in favor of Railroad it would constitute at best harmless error which could not be made the basis of challenge by Railroad, Telegraphers or Clerks. Railroad's resort to the courts has preceded any award, and one may be rendered which could occasion no possible injury to it. The inevitable result is to disrupt the proceedings of the Board. Its decision has already been delayed for more than two years. 11 It may be true, as the Court of Appeals observed, that this action must be viewed as 'in the nature of mandamus' because mere injunctive relief would not prevent most of the injuries which Railroad seeks to avoid. But mandamus is itself governed by equitable considerations and is to be granted only in the exercise of sound discretion. We hold, in conformity with past decisions, that the injuries are too speculative to warrant resort to extraordinary remedies. See Eccles v. People's Bank, 333 U.S. 426, 88 S.Ct. 641, 92 L.Ed. 784; Public Service Comm. v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291; United States ex rel. Chicago G.W.R. Co. v. Interstate Commerce Commission, 294 U.S. 50, 55 S.Ct. 326, 79 L.Ed. 752. Moreover, among the injuries asserted by Railroad, only the possibility that it is being put to needless expense incident to the pending Board proceeding will necessarily be involved if judicial relief is denied at this stage of the administrative process. Such expense is inadequate basis for intervention whether by mandamus or injunction. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638; Utah Fuel Co. v. National Bituminous Coal Comm., 306 U.S. 56, 59 S.Ct. 409, 83 L.Ed. 483. 12 Reversed. 13 Mr. Justice REED, Mr. Justice DOUGLAS and Mr. Justice MINTON dissent. 14 Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 The individual members of the Board also filed two diametrically opposite answers to the complaint. The five labor members objected to the grant of a preliminary injunction on grounds similar to those put forth by Telegraphers; the five carrier members generally agreed with the position of Railroad and supported the request for relief. 2 E.g., compare Award No. 2253 (3d Div., Aug. 10, 1943, H. Nathan Swaim, Referee) with Award No. 5432 (3d Div., Sept. 6, 1951, Jay S. Parker, Referee). 3 See, e.g., Nord v. Griffin, 7 Cir., 1936, 86 F.2d 481; Estes v. Union Terminal Co., 5 Cir., 1937, 89 F.2d 768; Brotherhood of Railroad Trainmen v. Templeton, 8 Cir., 1950, 181 F.2d 527; Kirby v. Pennsylvania R. Co., 3 Cir., 1951, 188 F.2d 793; but cf. Order of Railroad Telegraphers v. New Orleans, T. & M.R. Co., 8 Cir., 1946, 156 F.2d 1.

89

349 U.S. 322 75 S.Ct. 865 99 L.Ed. 1122 Charles LAWLOR and Mitchell Pantzer, Co-Partners Trading as Independent Poster Exchange, Petitioners,v.NATIONAL SCREEN SERVICE CORPORATION et al. No. 163. Argued Feb. 9, 10, 1955. Decided June 6, 1955. Mr. Francis T. Anderson, Philadelphia, Pa., for petitioners. Mr. Louis Nizer, New York City, for respondent National Screen Service Corp. Mr. Earl G. Harrison, Philadelphia, Pa., for respondents Columbia Pictures Corp. et al. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 This is an action to recover treble damages for alleged violation of the federal antitrust laws. The only question presented is whether the action is barred, in the circumstances of the case, under the doctrine of res judicata. 2 Petitioners are engaged in the business of leasing advertising posters to motion picture exhibitors in the Philadelphia area. Such posters, known in the trade as standard accessories, embody copy-righted matter from the motion pictures being advertised. Until recent years, standard accessories could be purchased directly from the motion picture companies themselves. Beginning with Paramount in 1939, however, the eight major producers granted to National Screen Service Corporation the exclusive right to manufacture and distribute various advertising materials, including standard accessories as well as specialty accessories and film trailers, for their motion pictures. RKO followed in 1940, Loew's in 1942, Universal in 1944, Columbia in 1945, United Artists and Warner Brothers in 1946, and 20th Century Fox in 1947. 3 In 1942, together with a number of others in similar businesses, petitioners commenced a treble-damage anti-trust action against National Screen and the three producers who had already granted exclusive licenses to National Screen. The complaint alleged that the defendants had conspired to establish a monopoly in the distribution of standard accessories by means of the exclusive licenses and that the plaintiffs' businesses had been injured as a consequence. The complaint also alleged that National Screen was then negotiating with the other major producers to procure similar licenses. In addition to damages, an injunction was sought against the defendants' 'illegal acts and practices.' 4 In 1943, prior to any trial, the suit was settled. The basis of the settlement was an agreement by National Screen to furnish the plaintiffs with all standard accessories distributed by National Screen pursuant to its exclusive license agreements with producers, including exclusive license agreements which might be executed in the future. In exchange, the plaintiffs agreed that they would withdraw the suit and that they would pay National Screen for the materials at specified prices. Pursuant to the settlement, the suit was dismissed 'with prejudice' by court order. No findings of fact or law were made. 5 The sublicense was to run three years. In 1946 it was renewed for another five-year term. In 1949, while the sublicense was still in force, petitioners brought the instant action, again seeking treble damages and injunctive relief. Named as defendants respondents here—were National Screen, the three producers who were parties to the 1942 suit, and the five producers who licensed National Screen subsequent to the dismissal of the 1942 suit. 6 In their present complaint, petitioners allege that the settlement of the 1942 suit was merely a device used by the defendants in that case to perpetuate their conspiracy and monopoly. They also allege: that five other producers have joined the conspiracy since 1943; that National Screen has deliberately made slow and erratic deliveries of advertising materials under the sublicense in an effort to destroy petitioners' business; and that for the same purpose National Screen has used tie-in sales and other means of exploiting its monopoly power.1 Petitioners seek damages for resulting injuries suffered from August 16, 1943 in other words, for a period beginning several months after the dismissal of the 1942 complaint. 7 In 1951, on petitioners' motion for summary judgment, the District Court held that petitioners were entitled to injunctive relief against National Screen because the undisputed facts supported petitioners' claim of unlawful monopoly.2 As to the producers, however, the District Court held that conflicting evidence on the issue of conspiracy made a trial necessary.3 But in 1953, before any trial was held and before a decree against National Screen could be framed, the defendants moved to dismiss the action on the ground that the 1943 judgment was res judicata. The District Court, another judge then sitting, granted the motion and the Court of Appeals for the Third Circuit affirmed.4 We granted certiorari because of the importance of the question thus presented in the enforcement of the federal antitrust laws.5 8 The basic distinction between the doctrines of res judicata and collateral estoppel, as those terms are used in this case, has frequently been emphasized.6 Thus, under the doctrine of res judicata, a judgment 'on the merits' in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, such a judgment precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit. Recognizing this distinction, the court below concluded that 'No question of collateral estoppel by the former judgment is involved because the case was never tried and there was not, therefore, such finding of fact which will preclude the parties to that litigation from questioning the finding thereafter.'7 Turning then to the doctrine of res judicata, the court correctly stated the question before it as 'whether the plaintiffs in the present suit are suing upon the 'same cause of action' as that upon which they sued in 1942 and lost.'8 The court answered the question in the affirmative on the ground that the two suits were based on 'essentially the same course of wrongful conduct.'9 The court acknowledged that 'there are some additional allegations, some new acts which the plaintiffs say the defendants have done since the earlier suit' and that 'Additional defendants were joined in the 1949 suit', but concluded that 'in substance the complaint is the same * * *.'10 9 It is of course true that the 1943 judgment dismissing the previous suit 'with prejudice' bars a later suit on the same cause of action.11 It is likewise true that the judgment was unaccompanied by findings and hence did not bind the parties on any issue—such as the legality of the exclusive license agreements or their effect on petitioners' business—which might arise in connection with another cause of action.12 To this extent we are in accord with the decision below. We believe, however, that the court erred in concluding that the 1942 and 1949 suits were based on the same cause of action. 10 That both suits involved 'essentially the same course of wrongful conduct' is not decisive. Such a course of conduct—for example, an abatable nuisance—may frequently give rise to more than a single cause of action.13 And so it is here. The conduct presently complained of was all subsequent to the 1943 judgment.14 In addition, there are new antitrust violations alleged here—deliberately slow deliveries and tie-in sales, among others—not present in the former action. While the 1943 judgment precludes recovery on claims arising prior to its entry, it cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case. In the interim, moreover, there was a substantial change in the scope of the defendants' alleged monopoly; five other producers had granted exclusive licenses to National Screen, with the result that the defendants' control over the market for standard accessories had increased to nearly 100%.15 Under these circumstances, whether the defendants' conduct be regarded as a series of individual torts or as one continuing tort, the 1943 judgment does not constitute a bar to the instant suit. 11 This conclusion is unaffected by the circumstance that the 1942 complaint sought, in addition to treble damages, injunctive relief which, if granted, would have prevented the illegal acts now complained of. A combination of facts constituting two or more causes of action on the law side of a court does not congeal into a single cause of action merely because equitable relief is also sought. And, as already noted, a prior judgment is res judicata only as to suits involving the same cause of action.16 There is no merit, therefore, in the respondents' contention that petitioners are precluded by their failure in the 1942 suit to press their demand for injunctive relief. Particularly is this so in view of the public interest in vigilant enforcement of the antitrust laws through the instrumentality of the private treble-damage action. Acceptance of the respondents' novel contention would in effect confer on them a partial immunity from civil liability for future violations. Such a result is consistent with neither the antitrust laws nor the doctrine of res judicata. 12 With respect to the five defendants who were not parties to the 1942 suit, there is yet a second ground for our decision. The court below held that their relationship to the other defendants was "close enough to bring them all within the scope of the doctrine of res judicata."17 With this conclusion, we cannot agree. We need not stop to consider the outer bounds of the rule of privity and allied concepts.18 It is sufficient here to point out that the five defendants do not fall within the orthodox categories of privies;19 that they could not have been joined in the 1942 case since they did not even enter the alleged conspiracy until after the judgment on which they now rely;20 that in any event there was no obligation to join them in the 1942 case since as joint tort-feasors they were not indispensable parties;21 and that their liability was not 'altogether dependent upon the culpability' of the defendants in the 1942 suit.22 13 The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings in conformity with this opinion. 14 Reversed. 15 Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 'Defendant NATIONAL, illegally and with intent to destroy plaintiff's business, deliberately reduces the rental price of said motion picture talking trailers to exhibitors if said exhibitors, including plaintiff's customers, agree beforehand to purchase or lease for the exploitation of all of their films exhibited, standard accessories and advertising materials directly from the defendant NATIONAL.' 2 99 F.Supp. 180, 188. 3 Ibid. 4 211 F.2d 934. 5 348 U.S. 810, 75 S.Ct. 42. 6 E.g., Cromwell v. County of Sac, 94 U.S. 351, 352—353, 24 L.Ed. 195; United States v. Moser, 266 U.S. 236, 241, 45 S.Ct. 66, 67, 69 L.Ed. 262. See also Restatement, Judgments, §§ 47, 48, 68. The term res judicata is used broadly in the Restatement to cover merger, bar, collateral estoppel, and direct estoppel. Id., c. 3, Introductory Note. 7 211 F.2d 934, 935. 8 Ibid. 9 Id., 211 F.2d at page 936. 10 Id., 211 F.2d at pages 936—937. 11 United States v. Parker, 120 U.S. 89, 95, 7 S.Ct. 454, 458, 30 L.Ed. 601; United States v. International Building Co., 345 U.S. 502, 506, 73 S.Ct. 807, 809, 97 L.Ed. 1182. 12 See United States v. International Building Co., supra, 345 U.S. at page 505, 73 S.Ct. 807, at page 808, 809. 'We conclude that the decisions entered by the Tax Court for the years 1933, 1938, and 1939 were only a pro forma acceptance by the Tax Court of an agreement between the parties to settle their controversy for reasons undisclosed. There is no showing either in the record or by extrinsic evidence, see Russell v. Place, 94 U.S. 606, 608, 24 L.Ed. 214, that the issues raised by the pleadings were submitted to the Tax Court for determination or determined by that court. They may or may not have been agreed upon by the parties. Perhaps, as the Court of Appeals inferred, the parties did agree on the basis for depreciation. Perhaps, the settlement was made for a different reason, for some exigency arising out of the bankruptcy proceeding. As the case reaches us, we are unable to tell whether the agreement of the parties was based on the merits or on some collateral consideration.' 13 Restatement, Judgments, § 62, Comment g. Antitrust violations are expressly made abatable. 15 U.S.C. § 26, 15 U.S.C.A. § 26. 14 Restatement, Judgments, § 62, Comment g. Compare Federal Trade Commission v. Raladam Co., 316 U.S. 149, 150—151, 62 S.Ct. 966, 967, 968, 86 L.Ed. 1336. 15 99 F.Supp. 180, 183—184. The complaint in the 1942 suit alleged that 40% of National Screen's business in standard accessories consisted of standard accessories for the motion pictures of two (Paramount and RKO) of the three defendant producers. The complaint also alleged that 20% to 33% of the plaintiffs' business consisted of standard accessories for the motion pictures of the third defendant producer (Loew's). As to the pertinence of 'the percentage of business controlled,' see United States v. Columbia Steel Co., 334 U.S. 495, 527—528, 68 S.Ct. 1107, 1124, 92 L.Ed. 1533. 16 That the same rule is applicable in equity, see Restatement, Judgments, § 46, Comment b; id., § 53, Comment c. 17 211 F.2d 934, 937. 18 See Restatement, Judgments, c. 4. 19 Restatement, Judgments, § 83, Comment a: 'those who control an action although not parties to it * * *; those whose interests are represented by a party to the action * * *; successors in interest. * * *' 20 Compare Bruszewski v. United States, 3 Cir., 181 F.2d 419, on which both courts below relied. It should also be noted that the Bruszewski decision was an application of collateral estoppel and not res judicata as that term is used here. 21 Restatement, Judgments, § 94. See Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 132, 32 S.Ct. 641, 644, 56 L.Ed. 1009. 22 Id., 225 U.S. at page 127, 32 S.Ct. at page 642.

78

349 U.S. 435 75 S.Ct. 832 99 L.Ed. 1215 FEDERAL POWER COMMISSION, Petitioner,v.The STATE OF OREGON, The Fish Commission of Oregon, The Oregon State GameCommission. No. 367. Argued March 2, 3, 1955. Decided June 6, 1955. [Syllabus from pages 435-437 intentionally omitted] Mr. Willard W. Gatchell, Washington, D.C., for petitioner. Mr. Arthur G. Higgs, Portland, Or., for respondent. Mr. Rollin E. Bowles, Portland, Or., for the Oregon Division of the Izaak Walton League of America, as amicus curiae. Mr. Justice BURTON delivered the opinion of the Court. 1 As in First Iowa Hydro-Electric Coop. v. Federal Power Commission, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143, this case illustrates the integration of the federal and state jurisdictions in licensing water power projects under the Federal Power Act.1 In the First Iowa case we sustained the authority of the Commission to license a power project to use navigable waters of the United States located in Iowa. Here, without finding that the waters are navigable, the Commission has issued a comparable license for a power project to use waters on lands constituting reservations of the United States located in Oregon. The State of Oregon questions the authority of the Commission to do this and the adequacy of the provisions approved by the Commission for the conservation of anadromous fish.2 For the reasons hereafter stated, we sustain the Commission. 2 In 1949, the Northwest Power Supply Company of Portland, Oregon, applied to the Federal Power Commission for a license to construct, operate and maintain a hydroelectric plant, constituting Pelton Project No. 2030, on reserved lands of the United States on the Deschutes River in Oregon,3 and, in 1951, the Portland General Electric Company of Portland, Oregon, succeeded to a supplementary application for that license. 3 The Pelton Project is designed to include a concrete dam 205 feet high and a powerhouse containing three 36,000-kilowatt generators. It is to be built across the Deschutes River on reserved lands of the United States located below the junction of its Metolius and Crooked River tributaries.4 The western terminus of the dam is to occupy lands, within the Warm Springs Indian Reservation, which have been reserved by the United States for power purposes since 1910 and 1913.5 The eastern terminus of the dam is to be on lands of the United States which, at least since 1909, have been withdrawn from entry under the public land laws and reserved for power purposes.6 The project calls for no permanent diversion of water as the entire flow of the river will run through or over the dam into the natural bed of the stream. This dam will make available the head and volume of water required for the project and the water impounded by it will create a narrow reservoir, submerging lands the title to which is or will be in the United States. Variations and interruptions in the flow of the stream, caused by temporary storage or use of water for power purposes, are to be controlled by a 'reregulating dam' approved by the Commission and located on private property, to be acquired, about three miles below the power dam. No objection is made to the reregulating dam. To the extent that access to existing spawning grounds for anadromous fish is cut off by the power dam, other facilities on private property, to be acquired, are to be constructed and maintained on terms approved by the Commission and designed to develop an equal or greater fish population. Opportunities for recreational uses of the area are to be enhanced and no issue as to water pollution is before us. 4 The State of Oregon, the Fish Commission of Oregon, the Oregon State Game Commission and the Oregon Division of the Izaak Walton League intervened before the Commission and each filed objections to the granting of the license. Some of their objections related to the authority of the Commission to grant the license and others to the suitability of the proposed fish conservation facilities. 5 Following extended hearings, the Commission's presiding examiner recommended the license. After exceptions to that recommendation the Commission issued its opinion and an order granting the license. 10 F.P.C. 445, 450, 92 P.U.R. (N.S.) 247. The Commission found that a public need exists for the early completion of the project to meet a severe power shortage in the Pacific Northwest. It found also that the project is in the public interest, will provide for comprehensive development of the affected stretch of the Deschutes River, and will be consistent with further comprehensive development of that stream and of the Columbia Basin. It held that the improvements will contribute valuable public benefits which will not be available if the river is maintained in its present natural condition.7 The Commission stated that the project will be subject to all existing rights to the use of the waters of the river, whether perfected or not. It prescribed temporary measures to be taken to meet the needs of the anadromous fish during the construction of the project and approved certain permanent facilities, practices and expenditures in relation to such fish. The opinion stated 'that no substantial evidence has been brought forward to show that the facilities proposed for conserving the fish will not maintain existing runs. Moreover, there are indications that the runs can be increaed.' 10 F.P.C., at 450, 92 P.U.R. (N.S.), at 252. 6 A rehearing being denied, the State and its agencies sought a review by the Court of Appeals for the Ninth Circuit and the Portland General Electric Company intervened. That court, with one judge dissenting, set aside the Commission's order. 211 F.2d 347. It recognized the necessity of a license from the Federal Power Commission but held that Congress, by its public lands legislation, long ago had transferred to the State of Oregon such control over the use of nonnavigable waters that the sponsor of the Pelton Project must secure also the permission prescribed by the State. We granted certiorari because of the public significance of the issues but denied leave to the Portland General Electric Company to intervene here. 348 U.S. 868, 75 S.Ct. 112. 28 U.S.C. § 1254(1); 49 Stat. 860—861, 16 U.S.C. § 825l(b), 16 U.S.C.A. § 825l(b). Several States filed briefs as amici curiae, usually adopting as their own the brief filed by respondents. 7 We divide our consideration of the issues into three parts. I. Applicability of The Federal Power Act 8 On its face, the Federal Power Act applies to this license as specifically as it did to the license in the First Iowa case. There the jurisdiction of the Commission turned almost entirely upon the navigability of the waters of the United States to which the license applied. Here the jurisdiction turns upon the ownership or control by the United States of the reserved lands on which the licensed project is to be located.8 The authority to issue licenses in relation to navigable waters of the United States springs from the Commerce Clause of the Constitution. The authority to do so in relation to public lands and reservations of the United States springs from the Property Clause—'The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States * * *.' Art. IV, § 3.9 9 In the instant case the project is to occupy lands which come within the term 'reservations,' as distinguished from 'public lands.' In the Federal Power Act, each has its established meaning. 'Public lands' are lands subject to private appropriation and disposal under public land laws. 'Reservations' are not so subject.10 The title to the lands upon which the eastern terminus of the dam is to rest has been in the United States since the cession by Great Britain of the area now comprising the State of Oregon. Even if formerly they may have been open to private appropriation as 'public lands,' they were withdrawn from such availability before any vested interests conflicting with the Pelton Project were acquired.11 Title to the bed of the Deschutes River is also in the United States.12 Since the Indian Treaty of 1855, the lands within the Indian reservation, upon which the western end of the dam will rest, have been reserved for the use of the Indians. More recently they were reserved for power purposes13 and the Indians have given their consent to the project before us. Accordingly, there is no issue here as to whether or not the title to the tribal lands is in the United States.14 10 There thus remains no question as to the constitutional and statutory authority of the Federal Power Commission to grant a valid license for a power project on reserved lands of the United States, provided that, as required by the Act, the use of the water does not conflict with vested rights of others.15 To allow Oregon to veto such use, by requiring the State's additional permission, would result in the very duplication of regulatory control precluded by the First Iowa decision. 328 U.S. 152, 177 179, 66 S.Ct. 906, 918. No such duplication of authority is called for by the Act.16 The Court of Appeals in the instant case agrees. 211 F.2d at page 351. And see State of Washington Department of Game v. Federal Power Commission, 9 Cir., 207 F.2d 391, 395—396. Authorization of this project, therefore, is within the exclusive jurisdiction of the Federal Power Commission, unless that jurisdiction is modified by other federal legislation. See United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 703, 19 S.Ct. 770, 775, 43 L.Ed. 1136; Gutierres v. Albuquerque Land & Irrigation Co., 188 U.S. 545, 554, 23 S.Ct. 338, 341, 47 L.Ed. 588. 11 II. Inapplicability of the Desert Land Act of 1877 and Related Acts 12 The State of Oregon argues that the Acts of July 26, 1866,17 July 9, 1870,18 and the Desert Land Act of 187719 constitute an express congressional delegation or conveyance to the State of the power to regulate the use of these waters. The argument is that these Acts preclude or restrict the scope of the jurisdiction, otherwise apparent on the face of the Federal Power Act, and require the consent of the State to a project such as the one before us. 13 The nature and effect of these Acts have been discussed previously by this Court. The purpose of the Acts of 1866 and 1870 was governmental recognition and sanction of possessory rights on public lands asserted under local laws and customs. Jennison v. Kirk, 98 U.S. 453, 25 L.Ed. 240. The Desert Land Act severed, for purposes of private acquisition, soil and water rights on public lands, and provided that such water rights were to be acquired in the manner provided by the law of the State of location. California-Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 55 S.Ct. 725, 79 L.Ed. 1356. See also, State of Nebraska v. State of Wyoming, 325 U.S. 589, 611—616, 65 S.Ct. 1332, 1347—1350, 89 L.Ed. 1815. 14 It is not necessary for us, in the instant case, to pass upon the question whether this legislation constitutes the express delegation or conveyance of power that is claimed by the State, because these Acts are not applicable to the reserved lands and waters here involved. The Desert Land Act covers 'sources of water supply upon the public lands * * *.' The lands before us in this case are not 'public lands' but 'reservations.' Even without that express restriction of the Desert Land Act to sources of water supply on public lands, these Acts would not apply to reserved lands. 'It is a familiar principle of public land law that statutes providing generally for disposal of the public domain are inapplicable to lands which are not unqualifiedly subject to sale and disposition because they have been appropriated to some other purpose.' United States v. O'Donnell, 303 U.S. 501, 510, 58 S.Ct. 708, 714, 82 L.Ed. 980. See also, United States v. State of Minnesota, 270 U.S. 181, 206, 46 S.Ct. 298, 305, 70 L.Ed. 539. The instant lands certainly 'are not unqualifiedly subject to sale and disposition * * *.' Accordingly, it is enough, for the instant case, to recognize that these Acts do not apply to this license, which relates only to the use of waters on reservations of the United States. 15 III. Application of the Federal Power Act to This Project 16 Finally, respondents question the discretion used by the Commission in granting the license. They point to the consequences which the project will have beyond the limits of the reserved lands on which it will be located. 17 The first consequence is the inevitable variation in, or the temporary interruption of, the flow of the stream. The Commission is satisfied that it has overcome this objection by its provision for a reregulating dam. It has approved the technical features involved and the site for that dam will be acquired in accordance with the property laws of Oregon.20 In this reregulation of the flow of the stream, the Commission acts on behalf of the people of Oregon, as well as all others, in seeing to it that the interests of all concerned are acequately protected. 18 There remains the effect of the project upon anadromous fish which use these waters as spawning grounds. All agree that the 205-foot dam will cut off access of some fish to their natural spawning grounds above the dam and that such interruption cannot be overcome by fish ladders.21 However, the State does not flatly prohibit the construction of dams that cut off anadromous fish from their spawning or breeding grounds.22 One alternative, thus recognized, is the supplying of new breeding pools to which the fish can be removed at appropriate times.23 The Fish Commission of Oregon has denied a permit to the Portland General Electric Company to carry out its present proposal but there appears to be no disagreement as to the underlying principle involved.24 19 The applicant has agreed to provide facilities for conserving the runs of anadromous fish in accordance with plans approved by the Federal Power Commission. The capital cost of these facilities and of the reregulating dam, to be borne by the applicant, is estimated at $4,430,000. The total annual cost due to these facilities is estimated at $795,000. The Commission has found each of these estimates to be reasonable. Of the $795,000 annual cost, the applicant will bear $410,000 (cost of borrowed money, depreciation and taxes on the capital investment), and the $10,000 maintenance cost of the reregulating dam. In addition, it has offered to contribute $100,000 annually toward the estimated $375,000 cost of operation and maintenance of the fish conservation facilities, and the Commission has retained the power to fix the amount of the applicant's contribution if a sum is not agreed upon. 20 The care given to the preparation of this conservation program and the large investment to be made in it are impressive. It also is of interest that the Fish Commission of Oregon already is operating somewhat comparable but smaller facilities of this kind on the Metolius River. 21 One argument against the project goes beyond the need to conserve the existing fish population. It is argued that the project will preclude the carrying out of certain plans for the Columbia River Basin which contemplate greatly enlarging the fish population in the Deschutes River area, by concentrating there other runs of fish not now using that river. While such an argument may properly be directed to the Federal Power Commission or to Congress, it is not one for us to answer upon the basis of existing legal rights. 22 We conclude, therefore, that, on the facts here presented, the Federal Power Act is applicable in accordance with its terms, and that the Federal Power Commission has acted within its powers and its discretion in granting the license now before us. 23 The judgment of the Court of Appeals, accordingly, is reversed. 24 Reversed. 25 Mr. Justice HARLAN took no part in the consideration or decision of this case. 26 Mr. Justice DOUGLAS, dissenting. 27 I would not suppose the United States could erect a dam on this nonnavigable river without obtaining its water rights in accordance with state law. If I am right in that assumption, then this dam cannot be built without satisfying Oregon's water-rights law. For the federal licensee who will build this dam acquires all its rights from the United States. And the United States cannot give what it does not have.1 28 The argument pressed on us by the United States is akin to the one urged in State of Nebraska v. State of Wyoming, 325 U.S. 589, 611 et seq., 65 S.Ct. 1332, 1347, 89 L.Ed. 1815. In that case, the United States struggled to be rid of the rule of law that made its water rights on nonnavigable streams of the West dependent on state law. It claimed that it owned all the unappropriated water in the basin of the North Platte River. The argument was made not only under the Reclamation Act of 1902, 32 Stat. 388, but also under the Desert Land Act of 1877, 19 Stat. 377, the Act involved here. We reserved decision as to whether under some circumstances the United States might be the owner of unappropriated water rights. But we held that under those Acts the United States took its water rights like other landowners, viz., pursuant to state law governing appropriation. 29 Unless we are to depart from that ruling, we must accept Oregon's claim here. 30 Oregon's position has for its support two other decisions of this Court, both construing the Desert Land Act. The first of these is California-Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 55 S.Ct. 725, 728, 79 L.Ed. 1356, which construed the provision of the Desert Land Act, crucial here, which reads: 31 'all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights.' 32 The Court interpreted that provision as follows: 33 'The fair construction of the provision now under review is that Congress intended to establish the rule that for the future the land should be patented separately; and that all non-navigable waters thereon should be reserved for the use of the public under the laws of the states and territories named.' 295 U.S. 142, 162, 55 S.Ct. 725, 731. 34 That case, to be sure, involved a contest between private owners. But the principle announced was shortly applied to the United States as a property owner on a nonnavigable stream.2 In Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525, the Court held that by the Desert Land Act, 'if not before, Congress had severed the land and waters constituting the public domain and established the rule that for the future the lands should be patented separately. Acquisition of the government title to a parcel of land was not to carry with it a water right; but all nonnavigable waters were reserved for the use of the public under the laws of the various arid-land states.' Id., 300 U.S. at page 95, 57 S.Ct. 417. 35 The Fox case involved water rights of farmers under a federal irrigation project, the claim being that the United States, owner of the irrigation system, owned the water rights. The Court rejected that claim and looked to state law to determine who had the water rights; and finding that the farmers owned them, the Court held that the United States was not an indispensable party in litigation concerning them. 36 Those cases should control here. The Desert Land Act applies to 'public lands'; and the Federal Power Act, 41 Stat. 1063, as amended, 16 U.S.C. § 791a et seq., 16 U.S.C.A. § 791a et seq., grants the Commission authority to issue licenses for power development 'upon any part of the public lands and reservations of the United States.' § 4(e). The definition of those terms in the Act says nothing about water rights.3 And, as I have pointed out, it has been the long-term policy of Congress to separate wastern land from water rights. 37 The final resort of the Commission is to the Act of June 25, 1910, 36 Stat. 847, providing: 38 'That the President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress.' 39 It was under this Act that some of the lands here involved were reserved for a power site. But the Act of June 25, 1910, by its very terms, did no more than withdraw these public lands 'from settlement, location, sale, or entry.' The Act did not purport to touch or change in any way the provision of the Desert Land Act that pertains to water rights. If the words of the 1910 Act are to control, water rights remained undisturbed. The lands remained 'public lands,' save only that settlers could not locate on them. I assume that the United States could have recalled its grant of jurisdiction over water rights, saving, of course, all vested rights. But the United States has not expressly done so; and we should not construe any law as achieving that result unless the purpose of Congress is clear. 40 The reason is that the rule adopted by the Court profoundly affects the economy of many States, ten of whom are here in protest. In the West, the United States owns a vast amount of land in some States, over 50 percent of all the land. If by mere Executive action the federal lands may be reserved and all the water rights appurtenant to them returned to the United States, vast dislocations in the economies of the Western States may follow. For the right of withdrawal of public lands granted by the 1910 Act is not only for 'water-power sites' but for a host of public projects—'irrigation, classification of lands, or other public purposes.' Federal officials have long sought that authority. It has been consistently denied them. We should deny it again. Certainly the United States could not appropriate the water rights in definance of Oregon law, if it built the dam. It should have no greater authority when it makes a grant to a private power group. 1 41 Stat. 1063, as amended, 49 Stat. 838, 16 U.S.C. §§ 791a 825r, 16 U.S.C.A. §§ 791a—825r. 2 Fish ascending rivers from the sea for breeding purposes. In this instance, especially salmon and steelhead trout. For an outline of the general problem presented, see Schwartz, Federalism and Anadromous Fish, 23 Geo. Wash.L.Rev. 535. 3 In 1924, the Columbia Valley Power Company, Inc., had applied to the Federal Power Commission for a license to develop Pelton Project No. 57 at substantially the same site. That license was issued but, due to the licensee's failure to proceed with construction as required by the Commission, it was canceled in 1936. 4 The Deschutes River is entirely within the State of Oregon. It drains the eastern slope of the Cascade Range and flows northward, across the lands of the United States here involved, to the Columbia River, which it meets about 15 miles above The Dalles. The Commission has made no findings as to its navigability or as to the relation between its flow and the navigability of other streams. Throughout its lower 130 miles, which include the project site, it flows in a narrow canyon with an average fall of 17.6 feet per mile and, apparently, it is generally recognized as incapable of sustaining navigation. Accordingly, throughout this litigation, the river has been treated by all concerned as not constituting 'navigable waters' of the United States as defined in § 3(8) of the Federal Power Act, 49 Stat. 838, 16 U.S.C. § 796(8), 16 U.S.C.A. § 796(8). We do not pass either upon that question or upon the relationship to interstate commerce of the proposed use of the waters of the river. 5 The Warm Springs Indian Reservation was established by the Treaty of June 25, 1855, with the Indians in Middle Oregon. Ratified by the Senate March 8, 1859, and proclaimed by the President April 18, 1859, it secured to the Indians 'the exclusive right of taking fish in the streams running through and bordering said reservation * * *.' 12 Stat. 963, 964. Oregon has recognized that it is bound by this Treaty. Anthony v. Veatch, 189 Or. 462, 483—485, 220 P.2d 493, 502—503, 221 P.2d 575. See also, United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089. Indian Power Site Reserve No. 2 was created November 1, 1910, and Indian Power Site Reserve No. 294 was created October 8, 1913, both by the Secretary of the Interior under an Act of June 25, 1910, 36 Stat. 855, 858. 6 Power Site Reserve No. 66 was created December 30, 1909, by the Secretary of the Interior and made permanent by an Executive Order of July 2, 1910, under an Act of June 25, 1910, 36 Stat. 847. In addition, a reservation occurred in connection with the application made to the Federal Power Commission, in 1924, for a license for Pelton Project No. 57. Comparable withdrawals were made in 1949 and 1951 in connection with the present application. See § 24 of the Federal Power Act, 41 Stat. 1075—1076, and amendments, 16 U.S.C. § 818, 16 U.S.C.A. § 818. 7 '(44) Under present circumstances and conditions, and upon the terms and conditions hereinafter provided in the license, the project is best adapted to a comprehensive plan for the improvement and utilization of water-power development, for the conservation and preservation of the fish and wildlife resources, and for other beneficial public uses including recreational purposes. '(45) The Portland General Electric Co. is a corporation organized under the laws of the State of Oregon and has submitted satisfactory evidence of compliance with the requirements of all applicable state laws insofar as necessary to effect the purposes of a license for the project.' 10 F.P.C., at 456. And see §§ 9(b) and 10(a) of the Federal Power Act, 41 Stat. 1068, 16 U.S.C. § 802(b), 16 U.S.C.A. § 802(b), and 49 Stat. 842, 16 U.S.C. § 803(a), 16 U.S.C.A. § 803(a). 8 'Sec. 4. The commission is hereby authorized and empowered '(e) To issue licenses * * * to any corporation organized under the laws of the United States or any State thereof * * * for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States * * *: Provided, That licenses shall be issued within any reservation only after a finding by the commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired, and shall be subject to and contain such conditions as the Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservation: * * *. 'Sec. 23. * * * '(b) It shall be unlawful for any person, State, or municipality, for the purpose of developing electric power, to construct, operate, or maintain any dam, water conduit, reservoir, power house, or other works incidental thereto across, along, or in any of the navigable waters of the United States, or upon any part of the public lands or reservations of the United States (including the Territories), or utilize the surplus water or water power from any Government dam, except under and in accordance with the terms of a permit or valid existing right-of-way granted prior to June 10, 1920, or a license granted pursuant to this Act. Any person, association, corporation, State, or municipality intending to construct a dam or other project works across, along, over, or in any stream or part thereof, other than those defined herein as navigable waters, and over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States shall before such construction file declaration of such intention with the Commission, whereupon the Commission shall cause immediate investigation of such proposed construction to be made, and if upon investigation it shall find that the interests of interstate or foreign commerce would be affected by such proposed construction, such person, association, corporation, State, or municipality shall not construct, maintain, or operate such dam or other project works until it shall have applied for and shall have received a license under the provisions of this Act. If the Commission shall not so find, and if no public lands or reservations are affected, permission is hereby granted to construct such dam or other project works in such stream upon compliance with State laws.' (Italics supplied except for the initial word of the proviso.) 49 Stat. 839, 840, 846, 16 U.S.C. §§ 797(e), 817, 16 U.S.C.A. §§ 797(e), 817. 9 In what is somewhat of a companion case to the one before us, the Court of Appeals for the Ninth Circuit has recognized that, despite contentions as to state control of the use of water and the conservancy of fish within the Columbia River Basin, the Federal Power Commission has the authority to make effective a license and to provide facilities for anadromous fish much as is here proposed, when the waters involved are navigable waters of the United States. State of Washington Department of Game v. Federal Power Commission, 207 F.2d 391. We denied certiorari April 5, 1954. 347 U.S. 936, 74 S.Ct. 626, 98 L.Ed. 1087. 10 'Sec. 3. The words defined in this section shall have the following meanings for purposes of this Act, to wit: '(1) 'public lands' means such lands and interest in lands owned by the United States as are subject to private appropriation and disposal under public land laws. It shall not include 'reservations', as hereinafter defined; '(2) 'reservations' means national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but shall not include national monuments or national parks; * * *.' 49 Stat. 838, 16 U.S.C. § 796(1) and (2), 16 U.S.C.A. § 796(1, 2). 11 See note 6, supra. 12 See United States v. State of Utah, 283 U.S. 64, 75, 51 S.Ct. 438, 440, 75 L.Ed. 844. 13 See note 5, supra. 14 See Hynes v. Grimes Packing Co., 337 U.S. 86, 103—104, 69 S.Ct. 968, 979, 93 L.Ed. 1231; State of Minnesota v. United States, 305 U.S. 382, 386, 59 S.Ct. 292, 294, 83 L.Ed. 235. 15 'Sec. 27. That nothing herein contained shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.' 41 Stat. 1077, 16 U.S.C. § 821, 16 U.S.C.A. § 821. 16 'To require the petitioner to secure the actual grant to it of a State permit * * * as a condition precedent to securing a federal license for the same project under the Federal Power Act would vest in the Executive Council of Iowa a veto power over the federal project. Such a veto power easily could destroy the effectiveness of the federal act. It would subordinate to the control of the State the 'comprehensive' planning which the Act provides shall depend upon the judgment of the Federal Power Commission or other representatives of the Federal Government. 'In the Federal Power Act there is a separation of those subjects which remain under the jurisdiction of the States from those subjects which the Constitution delegates to the United States and over which Congress vests the Federal Power Commission with authority to act. To the extent of this separation, the Act establishes a dual system of control. The duality of control consists merely of the division of the common enterprise between two cooperating agencies of government, each with final authority in its own jurisdiction. The duality does not require two agencies to share in the final decision of the same issue. Where the Federal Government supersedes the state government there is no suggestion that the two agencies both shall have final authority. * * * 'The Act leaves to the States their traditional jurisdiction subject to the admittedly superior right of the Federal Government, through Congress, to regulate interstate and foreign commerce, administer the public lands and reservations of the United States and, in certain cases, exercise authority under the treaties of the United States.' First Iowa Hydro Electric Co-op. v. Federal Power Commission, 328 U.S. 152, 164, 167—168, 171, 66 S.Ct. 906, 911, 90 L.Ed. 1143. 17 'Sec. 9. And be it further enacted, That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.' (Italics supplied except for the initial words of the enacting clause and the proviso.) 14 Stat. 253, see 43 U.S.C. § 661, 43 U.S.C.A. § 661. 18 'Sec. 17. * * * all patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act (14 Stat. 253, supra) of which this act is amendatory. * * *' (Italics supplied.) 16 Stat. 218, see 43 U.S.C. § 661, 43 U.S.C.A. § 661. 19 '* * * it shall be lawful for any citizen of the United States, or any person of requisite age 'who may be entitled to become a citizen, and who has filed his declaration to become such' and upon payment of twenty five cents per acre—to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one section, by conducting water upon the same, within the period of three years thereafter, Provided however that the right to the use of water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres shall depend upon bona fide prior appropriation: and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation: and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights. Said declaration shall describe particularly said section of land if surveyed, and, if unsurveyed, shall describe the same as nearly as possible without a survey. At any time within the period of three years after filing said declaration, upon making satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid, and upon the payment to the receiver of the additional sum of one dollar per acre for a tract of land not exceeding six hundred and forty acres to any one person, a patent for the same shall be issued to him. Provided, that no person shall be permitted to enter more than one tract of land and not to exceed six hundred and forty acres which shall be in compact form.' (Italics supplied except for the initial words of the provisos.) 19 Stat. 377, 43 U.S.C. § 321, 43 U.S.C.A. § 321. 20 While the final approval of the engineering requirements of this feature rests with the Commission, there is no reason why the Commission and the State of Oregon, which also desires appropriate reregulation of the flow of the stream, should not seek a mutually satisfactory solution. In fact, the applicant for the federal license did submit its proposals for reregulation to the state authorities. 21 The Oregon Fish Commission made a rough estimate of the annual runs of spring chinook and salmon passing the Pelton site, en route upstream, at 2,500 and of summer steelhead trout at 5,000. On the basis of this escapement past the project, the Fish Commission estimated the annual value of the Deschutes salmon and steelhead fishery attributable to the river above the Pelton site to be $177,375. 10 F.P.C., at 449, 92 P.U.R.(N.S.), at 252. 22 '* * * In the event that any person desires to construct a dam in any of the streams of this state to a height that will make a fish ladder or fishway thereover impracticable, in the opinion of the (Fish) commission, then such person may make an application to the commission for a permit to construct such dam, and the commission is hereby authorized to grant such permit in its discretion, upon the condition that the person so applying for such permit shall convey to the state of Oregon a site of the size and dimensions satisfactory to the commission, at such place as may be selected by the commission, and erect thereon a hatchery and hatchery residence, according to plans and specifications to be furnished by the commission, and enter into an agreement with the commission, secured by a good and sufficient bond, to furnish all water and light, without expense, to operate said proposed hatchery; and no permit for the construction of any such dam shall be given by the commission until the person applying for such permit shall have actually conveyed said land to the state and erected said hatchery and hatchery residence in accordance with the said plans and specifications. * * *' (Italics supplied.) Ore.Comp.Laws, 1940, § 83—316. 23 The Federal Power Commission here found that: '(29) There is nothing novel, unusual or out of the ordinary with respect to the fishery conservation facilities proposed by applicant. '(30) The applicant proposes to operate or arrange for the operation of the fish conservation facilities in accordance with approved methods. '(31) Construction, or operation and maintenance of the Pelton project will not be detrimental to the fishery resources below the reregulating dam. '(32) There is no substantial evidence in the record to show that the fishery facilities proposed by the applicant in accordance with the plans prepared by the Fish Commission of Oregon will not maintain existing runs, and there is a possibility that the run can be increased.' 10 F.P.C., at 455. 24 In addition to its application to the Federal Power Commission, the Portland General Electric Company also sought approval of the Pelton Project by the Oregon Hydroelectric Commission. While we hold that such approval is not necessary, there is no reason why the company should not thus seek state as well as federal approval of the project. In its application for the Federal Power Commission license, the company referred to these simultaneous state proceedings, which did not reach a conclusion until shortly before the granting of the federal license. The license from the Hydroelectric Commission was denied because of the applicant's failure to secure the permit from the Fish Commission of Oregon which it had sought. The pertinent Oregon provisions are as follows: 'From and after the taking effect of this act, no water-power project involving the use of the waters of any of the lakes, rivers, streams or other bodies of water within the state of Oregon, including waters over which this state has concurrent jurisdiction, for the generation of electricity, shall be begun or constructed except in conformity with the provisions hereof. 'The (Oregon Hydroelectric) commission shall have power: * * *. '(b) To issue licenses, as hereinafter provided, to citizens of the United States, associations of citizens, private corporations organized under the laws of the United States or any state thereof, to appropriate, initiate, perfect, acquire and hold the right to the use of the waters within the state, including the waters over which the state has concurrent jurisdiction, and to construct, operate and maintain dams, reservoirs, power houses, conduits, transmission lines, and all other works and structures necessary or convenient for the use of such waters in the generation and utilization of electricity.' Ore.Comp.Laws, 1940, §§ 119—103, 119—106. See also, 'The provisions of this act shall not apply to any water-power project or development constructed by the government of the United States.' Id., § 119—101. 1 The Deschutes River is nonnavigable and part of the Columbia River Basin. It is, indeed, a direct tributary of the Columbia. Control of this tributary might be important to an effective flood-control program for the Columbia. If so this dam could find constitutional sanction under the Commerce Clause. See State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 525, 61 S.Ct. 1050, 1059, 85 L.Ed. 1487. That constitutional power over the Deschutes would not be lost through nonuse or through intervening legislation. In case the constitutional power were exercised, private rights would give way. Oregon could demand compensation for the loss of any water-power rights it possessed. See Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, 254—255, 74 S.Ct. 487, 496—497, 98 L.Ed. 686. But Oregon could not assert its regulatory powers to defeat the federal program, for the Supremacy Clause would prevent her. No effort has been made to bring this case under the Commerce Clause. The findings are inadequate for that purpose. The case turns on the authority of the United States as a proprietor. 2 If this were a navigable stream, the authority of the United States in the water power would be complete without reference to state law. United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063; United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064; United States v. Commodore Park, Inc., 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017. In that case, the Act authorizes the Commission to proceed, irrespective of the approval of the State where the dam is located. First Iowa Hydro Electric Co-op. v. Federal Power Commission, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143. But the present project, dealing as it does with nonnavigable waters, is dependent on the state law of water rights for its execution. In the First Iowa Hydro Electric Co-op. case, we recognized the room left for that degree of control by the States in this situation: 'In the Federal Power Act there is a separation of those subjects which remain under the jurisdiction of the States from those subjects which the Constitution delegates to the United States and over which Congress vests the Federal Power Commission with authority to act. To the extent of this separation, the Act establishes a dual system of control. The duality of control consists merely of the division of the common enterprise between two cooperating agencies of government, each with final authority in its own jurisdiction. The duality does not require two agencies to share iin the final decision of the same issue.' Id., 328 U.S. at page 167—168, 66 S.Ct. 913. 3 Those terms are defined as follows in § 3: '(1) 'public lands' means such lands and interest in lands owned by the United States as are subject to private appropriation and disposal under public land laws. It shall not include 'reservations', as hereinafter defined; '(2) 'reservations' means national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but shall not include national monuments or national parks; * * *.'

78

349 U.S. 375 75 S.Ct. 814 99 L.Ed. 1161 Aubry WILLIAMS, Petitioner,v.STATE of GEORGIA. No. 412. Argued April 18, 1955. Decided June 6, 1955. Mr. Carter Hall, for petitioner. Mr. Eugene Gressman, Washington, D.C., as amicus curiae, in support of petitioner by invitation of the Court. Messrs. E. Freeman Leverett, Robert H. Hall, Atlanta, Ga., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 The Court has here under review the decision of a state court rejecting a claim of infirmity in a conviction for murder based on a constitutional ground raised for the first time in an extraordinary proceeding after the conviction had been affirmed on appeal. Respect for the State's administration of criminal justice requires a detailed narrative of the procedural course of this litigation and an adequate consideration of the legal factors relevant to our disposition. 2 Petitioner, a Negro, was convicted in Fulton County, Georgia, of the murder of a white man and sentenced to death. According to the allegations before us, the petit jury which convicted him was selected in the following manner: 3 On February 18, 1953, a judge of the Fulton County Superior Court selected from a box the names of prospective jurors. The names of white persons were on white tickets and the names of Negroes were on yellow tickets. The tickets were handed to a deputy sheriff, who in turn gave them to a deputy clerk for listing. The named jurors were subsequently summoned, some were excused, and the remaining 120 were available for the ten panels of twelve jurors each to serve in the trial of civil and criminal cases in the Fulton County Superior Court for the week of March 9, 1953. Of the 120 jurors, four were Negroes, and all four were assigned to the criminal docket. 4 On March 10, 1953, a panel of 48 of the 120 jurors was 'put upon' Williams at his trial. Thirteen jurors, including three of the four Negroes, were excused for cause. The State peremptorily challenged the fourth Negro, so that no Negroes served on the jury of twelve which was finally selected to try Williams. 5 The trial, which immediately followed the selection of the jury, lasted one day. Twenty-three witnesses appeared against Williams. His only defense was a short unsworn statement to the effect that he had not committed the crime and that he had been 'afraid' when he signed the written confession introduced against him. 6 Williams' court-appointed attorney filed a formal motion for new trial on March 27, 1953, and a more detailed amendment to the motion on June 29, 1953. The motion was overruled, and an appeal to the Georgia Supreme Court followed. On October 14, 1953, that court affirmed the judgment. 210 Ga. 207, 78 S.E.2d 521. 7 On December 1, 1953, Williams' counsel filed in the trial court an extraordinary motion for new trial under Ga. Code Ann., § 70—303.1 In this motion he alleged for the first time that Williams had been denied equal protection of the laws under the Fourteenth Amendment to the United States Constitution by the manner in which the petit jury had been selected, organized, impaneled and challenged. An affidavit by Williams accompanied the motion, stating that at the time of trial he had no knowledge of the methods used to select the jury. A similar affidavit by his counsel stated further that 'the same could not have been discovered by him (the counsel) in the exercise of ordinary diligence.' The law partner of Williams' counsel submitted a third affidavit to the effect that he had taken no part in the trial or in its preparation. 8 On January 18, 1954, the trial court dismissed the extraordinary motion for new trial. An appeal was taken to the Georgia Supreme Court. In the appeal, reliance was placed almost exclusively upon the case of Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244, for the claim that Williams had been denied equal protection of the laws. The pertinence of that case to this turns on the time sequence in the two cases2 as well as on the relevant substantive facts. 9 Avery was convicted of rape on September 20, 1951, in Fulton County, Georgia—the same county in which Williams was tried a year and a half later. Avery's petit jury was drawn with yellow and white tickets precisely in the manner used later in the case of Williams. In Avery's case, no Negroes appeared on the list of 60 jurors put upon him at the trial, whereas here, four Negroes appeared on the list of 120 jurores from which Williams' jury was selected. Avery, however, challenged the array when the jury was put upon him; Williams did not. Avery's challenge was overruled, and after trial he appealed on the ground of discrimination in the selection of the jury. The Georgia Supreme Court disapproved of the use of yellow and white tickets but affirmed the judgment on the ground that no discrimination was actually shown.3 10 Certiorari in the Avery case was filed in this Court on July 28, 1952, nine weeks before the alleged murder in the Williams case. The ground, as here, was that the use of different-colored tickets for whites and Negroes deprived the defendant of equal protection of the laws. Avery's petition for certiorari was granted March 9, 1953, the day before the petit jury was put upon Williams. This Court reversed the Avery case on May 25, 1953, holding that Avery had made out a prima facie case of an unconstitutional discrimination by showing the use of different-colored tickets which the State had not rebutted. 11 While this Court's decision in the Avery case was thus rendered over two months after Williams' trial, it came a month before the amendment to his formal motion for new trial. Yet Williams' counsel did not rely upon the ground raised by the Avery decision until some six months later in his extraordinary motion for new trial. 12 As already stated, the extraordinary motion was dismissed by the trial court, and Williams again appealed to the Georgia Supreme Court. That court affirmed the dismissal of the extraordinary motion. The court concluded that Williams, having failed to challenge the array when put upon him, had waived any objections to the jury's selection. The affidavits of Williams, his counsel, and his counsel's partner were deemed insufficient to excuse Williams' failure to challenge the array at the outset of the trial. 13 The court did not rest on this consideration. It urged that the facts inherent in the case contradicted the affidavits. The court said that its own decision in the Avery case, prior to the Williams trial, had fully set out the practice of using different-colored tickets in the selection of juries. 'Due diligence would certainly have required the defendant and his attorney to make themselves familiar with the opinions of this court on the question now raised. It follows that, for this reason, the motion for new trial was not sufficient as an extraordinary motion for new trial.' 210 Ga. 665, 668, 82 S.E.2d 217, 219. 14 In view of the entanglement of this case with our decision in Avery, we granted certiorari. 348 U.S. 854, 75 S.Ct. 83. Since the attorney appointed by the Georgia court advised the Clerk of this Court that he would not be in a position to present oral argument before this Court,4 we appointed amicus curiae to present argument on Williams' behalf. 348 U.S. 957, 75 S.Ct. 449. 15 In his brief on behalf of the State before the State Supreme Court, the Solicitor General of Fulton County had urged, inter alia, that there was no showing of a denial of equal protection in this case.5 On oral argument here, however, the State, with commendable regard for its responsibility, agreed that the use of yellow and white tickets in this case was, in light of this Court's decision in Avery, a denial of equal protection, so that a new trial would be required but for the failure to challenge the array. We need only add that it was the system of selection and the resulting danger of abuse which was struck down in Avery and not an actual showing of discrimination on the basis of comparative numbers of Negroes and whites on the jury lists. The question now before us, in view of the State's concession, is whether the ruling of the Georgia Supreme Court rests upon an adequate nonfederal ground, so that this Court is without jurisdiction to review the Georgia court. 16 A state procedural rule which forbids the raising of federal questions at late stages in the case, or by any other than a prescribed method, has been recognized as a valid exercise of state power.6 The principle is clear enough. But the unique aspects of the never-ending new cases that arise require its individual application to particular circumstances. Thus, we would have a different question from that before us if the trial court had no power to consider Williams' constitutional objection at the belated time he raised it. But, where a State allows questions of this sort to be raised at a late stage and be determined by its courts as a matter of discretion, we are not concluded from assuming jurisdiction and deciding whether the state court action in the particular circumstances is, in effect, an avoidance of the federal right.7 A state court may not, in the exercise of its discretion, decline to entertain a constitutional claim while passing upon kindred issues raised in the same manner. 17 The Georgia courts have indicated many times that motions for new trial after verdict are not favored, and that extraordinary motions for new trial after final judgment are favored even less.8 But the Georgia statute provides for such motion,9 and it has been granted in 'exceptional' or 'extraordinary cases. The general rule is that the granting or denying of an extraordinary motion for new trial rests primarily in the discretion of the trial court, and the appellate court will not reverse except for a clear abuse of discretion.10 In practice, however, the Georgia appellate courts have not hesitated to reverse and grant a new trial in exceptional cases. For example: 18 In Wright v. Davis, 1937, 184 Ga. 846, 193 S.E. 757, the defendant was sentenced to death, his motion for new trial was overruled, and the judgment was affirmed on appeal by the Georgia Supreme Court. Three months after the affirmance the defendant made an extraordinary motion for new trial on the ground that an ex-convict had obtained a seat on the jury by impersonating his father, whose name was properly on the jury list. The trial court denied the extraordinary motion. The Georgia Supreme Court granted mandamus and made it absolute. It said: 19 'In the instant case we are of the opinion that the extraordinary motion for a new trial and the proffered amendment presented a state of facts which, standing without dispute, required as a matter of law that a new trial should be granted. * * 20 '* * * The verdict itself shows that the defendant was not benefited, as he received the extreme penalty, and it is clear that he was deprived of his right to have a jury composed entirely of upright men. Code, §§ 2—4502, 59—106. It will not do to speculate on whether the accused suffered actual injury, when so vital a right has been violated. There are some conditions from which injury will be presumed. * * *' 184 Ga. at pages 851, 853, 193 S.E., at page 760. 21 The court rejected the State's contention that the defendant had not shown due diligence in discovering the juror's disqualification.11 22 Smith v. Georgia, 1907, 2 Ga.App. 574, 59 S.E. 311, involved a conviction for arson. A motion for new trial was denied, the judgment was affirmed on appeal, and five months later the defendant filed an extraordinary motion for new trial on the ground that one of the jurors was related to the deceased wife of the prosecutor within the ninth degree, and several of the prosecutor's children continued the kinship by affinity. The trial court denied the motion, but the appellate court granted a new trial. It said: 23 '* * * There is no higher purpose to be subserved in the administration of the criminal law than that every defendant shall be accorded a trial by jury, and jury trial is a mockery unless the jury be not only impartial, but also beyond just suspicion of partiality. * * *' 2 Ga.App. at page 578, 59 S.E. at page 313. 24 In answer to the State's contention that the defendant and his attorney had not shown due diligence in discovering the prohibited relationship, the court said that the trial judge had inquired into the question of relationship when the jury was impaneled, and then the court added this quotation from a Georgia Supreme Court opinion: 25 '* * * 'Parties are not required to make searching investigation out of court to determine whether the jurors who are summoned are disqualified in their cases. Not only is such a duty not placed by the law upon parties and their counsel, but the contrary practice is to be encouraged for obvious reasons." 2 Ga.App. at page 582, 59 S.E. at page 315. 26 In Crawley v. Georgia, 1921, 151 Ga. 818, 108 S.E. 238, 18 A.L.R. 368, four defendants were convicted of murder. Two were sentenced to death and two to life imprisonment. A motion for new trial was overruled, the judgment was affirmed on appeal, a motion for rehearing was denied, and a week later the defendants filed an extraordinary motion for new trial, which the trial court overruled. The Georgia Supreme Court reversed. The extraordinary motion showed that the wife of one juror was within the ninth degree of relationship to the wife of the murdered man. A new trial was granted even though the State submitted an affidavit by the juror that he did not know of the relationship at the time of the trial and therefore could not have been prejudiced.12 27 In Doyal v. Georgia, 1884, 73 Ga. 72, the defendant was convicted of murder. His motion for new trial was denied, and the judgment was affirmed on appeal. He filed an extraordinary motion for new trial on the ground that five witnesses were ready to testify that one of the jurors had said in effect before the trial that the defendant ought to be hung and that the juror would see to it if he got on the jury. The defendant and his attorney filed affidavits to the effect that they had been ignorant of the facts at the time of trial. Despite affidavits submitted by the State showing the availability of three of the five witnesses at the time of trial, the Georgia Supreme Court granted a new trial.13 There are other cases of like tenor.14 28 All these cases (barring Harris v. Georgia, note 14) involved objections to individual jurors, as contrasted with the objection to the whole panel in this case. But the two situations cannot be distinguished on this ground. Georgia has a rule, as the State Supreme Court noted in this case, that an objection to the whole panel must be made by way of a challenge to the array at the time the panel is put upon the defendant. Cornelious v. Georgia, 1941, 193 Ga. 25, 17 S.E.2d 156; Wilcoxon v. Aldredge, 1941, 192 Ga. 634, 15 S.E.2d 873, 146 A.L.R. 365; Cumming v. Georgia, 1923, 155 Ga. 346, 117 S.E. 378; Lumpkin v. Georgia, 1921, 152 Ga. 229, 109 S.E. 664.15 But none of these cases declare that an extraordinary motion is not available in a proper case for granting a new trial when the objection is to the panel. On the contrary, several factors indicate that the trial judge and the appellate court have the same degree of discretion in the 'array' cases as in cases involving individual jurors. First: There is also a rule in Georgia that an objection to an individual juror must be made at the trial by a challenge to the poll.16 But as the cases above demonstrate, this rule gives way in an exceptional case to the need for a new trial shown by extraordinary motion. It does not appear rational to deny that the rule as to challenges to the array is likewise not inflexible. Second: The opinion of the Georgia Supreme Court in this case supports this conclusion. If the trial court had no power to entertain the motion, it was immaterial whether the affidavits were faulty. Yet the Supreme Court felt called upon to question the reliability of the affidavits, concluding that Williams' counsel must have failed to use due diligence and 'for this reason' the motion was 'not sufficient.'17 29 We conclude that the trial court and the State Supreme Court declined to grant Williams' motion though possessed of power to do so under state law. Since his motion was based upon a constitutional objection, and one the validity of which has in principle been sustained here, the discretionary decision to deny the motion does not deprive this Court of jurisdiction to find that the substantive issue is properly before us. 30 But the fact that we have jurisdiction does not compel us to exercise it. In Patterson v. Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082, we remanded a case to the highest court of the State, even though that court had affirmed on state procedural grounds, because after that affirmance we had reversed on constitutional grounds a case having identical substantive facts. We said there: 31 'While we must have proper regard to this ruling of the state court in relation to its appellate procedure, we cannot ignore the exceptional features of the present case. An important question under the Federal Constitution was involved, and, from that standpoint, the case did not stand alone. * * * '* * * We are not satisfied that the court would have dealt with the case in the same way if it had determined the constitutional question as we have determined it. * * * 32 'We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered. We may recognize such a change, which may affect the result, by setting aside the judgment and remanding the case so that the state court may be free to act. We have said that to do this is not to review, in any proper sense of the term, the decision of the state court upon a nonfederal question, but only to deal appropriately with a matter arising since its judgment and having a bearing upon the right disposition of the case. * * *' 294 U.S., at pages 605, 606, 607, 55 S.Ct. at pages 577, 578. 33 In the instant case, there is an important factor which has intervened since the affirmance by the Georgia Supreme Court which impels us to remand for that court's further consideration. This is the acknowledgment by the State before this Court that, as a matter of substantive law, Williams has been deprived of his constitutional rights. The Solicitor General of Fulton County, it should be recalled, had urged before the Georgia Supreme Court that no denial of equal protection was involved, and that court may well have been influenced by the contention. Moreover, if there is another remedy open to Williams, as the Attorney General of the State intimated in his brief to the Georgia Supreme Court, that court should have an opportunity to designate the appropriate remedy.18 34 The facts of this case are extraordinary, particularly in view of the use of yellow and white tickets by a judge of the Fulton County Superior Court almost a year after the State's own Supreme Court had condemned the practice in the Avery case. That life is at stake is of course another important factor in creating the extraordinary situation. The difference between capital and noncapital offenses is the basis of differentiation in law in diverse ways in which the distinction becomes relevant.19 We think that orderly procedure requires a remand to the State Supreme Court for reconsideration of the case. Fair regard for the principles which the Georgia courts have enforced in numerous cases and for the constitutional commands binding on all courts compels us to reject the assumption that the courts of Georgia would allow this man to go to his death as the result of a conviction secured from a jury which the State admits was unconstitutionally impaneled. Cf. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791. 35 Remanded. 36 Williams Case Avery Case Sept. 20, 1951—Avery 37 convicted. April 14, 1952—Georgia 38 Supreme Court affirms. July 28, 1952—certiorari 39 filed in this Court. 40 Oct. 4, 1952—alleged murder occurs. 41 Oct. 17, 1952—Williams arrested, 42 placed in a line-up, confesses. 43 Oct. 21, 1952—Williams indicted. Feb. 18, 1953—jury panels chosen for 44 trials during week of March 9th. March 9, 1953—this Court 45 grants certiorari. 46 March 10, 1953—jury put upon Williams, 47 trial held, and verdict of guilty. 48 March 11, 1953—sentenced. March 27, 1953—formal motion for 49 new trial filed. April 30, 1953—case argued 50 in this Court. May 25, 1953—this Court 51 reverses, holding jury 52 selection 53 unconstitutional. June 29, 1953—amendment to motion 54 for new trial filed; motion overruled. 55 July 16, 1953—bill of exceptions filed. Oct. 14, 1953—Georgia Supreme Court 56 affirms. Nov. 23, 1953—Williams again sentenced 57 to death. Dec. 1, 1953—extraordinary motion 58 for new trial filed. Jan. 18, 1954—trial court dismisses 59 extraordinary motion. May 19, 1954—Georgia Supreme Court 60 affirms. Oct. 18, 1954—this Court grants 61 certiorari. 62 Mr. Justice CLARK, with whom Mr. Justice REED and Mr. Justice MINTON join, dissenting. 63 To borrow a phrase from Mr. Justice Holmes, the opinion of the Court 'just won't wash.' While I, too, am not deaf to the pleas of the condemned, I cannot ignore the long-established precedents of this Court. The proper course, as has always been followed here, is to recognize and honor reasonable state procedures as valid exercises of sovereign power. We have done so in hundreds of capital cases since I have been on the Court, and I do not think that even the sympathetic facts of this case should make us lose sight of the limitations on this Court's powers. 64 To see just how far the Court has 'stretched' here, it is only necessary to compare today's majority opinion with Patterson v. Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082, the decision relied on to support the Court's remand. In that case, Patterson and one Norris had been charged in a common indictment. Prior to trial, both interposed constitutional claims of systematic exclusion of Negroes from the jury. Patterson, however, failed to file his bill of exceptions within the time prescribed by state law. The Alabama Supreme Court decided the separate appeals on the same day, denying Norris' claim on the merits Norris v. State, 229 Ala. 226, 156 So. 556, while dismissing Patterson's case as out of time. 229 Ala. 270, 156 So. 567. This Court thereafter reversed Norris' conviction. Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. In Patterson, however, the Court was confronted with an independent and adequate state ground which presented an insuperable obstacle to reversal. Nevertheless, it was quite possible that had the Alabama court realized the validity of the objection it had overruled on the merits in Norris, it might have regarded the whole complexion of the case as different and chosen not to rest on a narrow procedural ground in Patterson. This Court, therefore, remanded the case to the Alabama Supreme Court for reconsideration of its decision in the light of the important intervening factor. 65 Note the magnitude of the 'important intervening factor' here and just how it changes the complexion of the case. The majority relies on the fact that the State '(o)n oral argument here * * * agreed that the use of yellow and white tickets in this case was, in light of this Court's decision in Avery, a denial of equal protection, so that a new trial would be required but for the failure to challenge the array.' The Solicitor General of Fulton County, the Court reasons, 'had urged (by brief) before the Georgia Supreme Court that no denial of equal protection was involved, and that court may well have been influenced by the contention.' 66 The Solicitor General of Fulton County presented no oral argument here. Only the State Attorney General, whose sole contention before the Georgia court was that the 'question (was) not ground for extraordinary motion for new trial,' was represented before this Court. The majority's 'important intervening factor,' therefore, is that an Assistant Attorney General of Georgia has now expressed an opinion on a question his superior did not reach in his brief before the Georgia Supreme Court. Since good advocacy would dictate that the Attorney General argue this point before the Georgia court had he thought it substantial, I do not think his office underwent any great change of mind in the interim between that argument and this. On argument, after questioning on the point—which we note was not one of the questions he raised—the Assistant Attorney General stated only what the Attorney General's brief below had intimated. In any event, I am completely at a loss to understand what difference it makes what was argued in the Georgia Supreme Court or conceded here, since the Georgia Supreme Court clearly stated that, but for the procedural objection, Avery would govern: 67 'Defendant in his motion sets forth a practice which has been condemned by this court and the Supreme Court of the United States. However, any question to be considered by this court must be raised at the time and in the manner required under the rules of law and practice and procedure in effect in this State.' 210 Ga. 665, 669, 82 S.E.2d 217, 219. 68 The majority's other ground for remand is even weaker, relying on a phrase from the Attorney General's brief before the Georgia court—'we do not say that he (Williams) does not have some remedy at law.' The ground asserted is that in the light of this 'intimat(ion)' of the Attorney General, Georgia's court 'should have an opportunity to designate the appropriate remedy.' If Williams has a remedy, he can certainly pursue it as well without this remand; and if he has no other state remedy, it is even clearer that nothing is to be gained by the Court's disposition of the case. 69 Another difference between this case and Patterson is at once evident. In Patterson, the Court, through Chief Justice Hughes, said: 70 'We are not convinced that the court, in the presence of such a determination of constitutional right, confronting the anomalous and grave situation which would be created by a reversal of the judgment against Norris, and an affirmance of the judgment of death in the companion case of Patterson, who had asserted the same right, * * * would have considered itself powerless to entertain the bill of exceptions or otherwise to provide appropriate relief. * * * At least the state court should have an opportunity to examine its powers in the light of the situation which has now developed. We should not foreclose that opportunity.'1 (Italics supplied.) 294 U.S. at pages 606 607, 55 S.Ct. at page 578. 71 In this case, unlike Patterson, the Court determines the state law itself. We have always insisted that, if possible, state courts be permitted to decide difficult and uncertain questions of state law before the federal courts do so, even to the point of having the federal courts decline jurisdiction to await the State's ruling. Cf. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424. To me nothing could be clearer than that a state question arising in a case which is to be remanded to the state court should be left open for resolution by the State without the pressure of a decision by this Court. 72 Furthermore, I agree with Mr. Justice MINTON that the majority has misconstrued Georgia's law. As I read the state law, the decisions indicate that the Georgia courts have no power to hear and determine petitioner's extraordinary motion of the merits. Ever since Jordan v. State, 1857, 22 Ga. 545, the Georgia law has been that the defendant must challenge the array when the panel is 'put upon' him and not thereafter. And since it is too late to raise such a challenge in a motion for new trial, Moon v. State, 1882, 68 Ga. 687, certainly the objection cannot be made in an extraordinary motion coming, as here, seven months after verdict. See also Cumming v. State, 1923, 155 Ga. 346, 117 S.E.2d 378. In fact, as late as 1941, Georgia's highest court rejected a claim of discrimination in the selection of jurors 'for the reason that an objection of this kind should have been presented in a proper way at the trial, and upon failure to do so it is to be considered as waived.' Wilcoxon v. Aldredge, 192 Ga. 634, 637, 15 S.E.2d 873, 876, 146 A.L.R. 365. This was a capital case, and it was conceded that the prisoner's claim had substantive validity. But even in those extreme circumstances the Georgia Supreme Court did not consider the objection available after trial. 73 The Georgia Court of Appeals has consistently taken the same position. In Ivey v. State, 1908, 4 Ga.App. 828, 831, 62 S.E. 565, and Williams v. State, 1923, 31 Ga.App. 173, 174, 120 S.E. 131, 132, it was held that 'If he (defendant) does not challenge the array, no other method of complaint as to the deficiency of the panel is open to him.' 74 In reaching the opposite conclusion, i.e., that the Georgia courts have discretionary authority to consider the petitioner's untimely objection in the circumstances of this case, the majority relies on two factors. First, the Georgia court in the instant case, after holding that petitioner had waived his objection by failing to raise it at the proper time, went on to find that the proffered justification was inadequate as a matter of pleading and as a matter of fact. But it is difficult to see how this separately numbered alternative ground can impair the court's other decision that, excuse or no excuse, petitioner had waived his claim 'once and for all.' Second, it is urged that the Georgia courts frequently exercise their discretion in favor of untimely objections directed at individual jurors 'challenges to the poll' as they are called in Georgia. The majority cites no case, however, where such discretion was exercised on a challenge to the array, and not one of the majority's individual juror cases is mentioned, much less distinguished, in the Georgia court's opinion in this case. Since courts usually distinguish apparent conflicts, it is fair to assume that the Georgia court considered the two types of challenge to be governed by entirely different rules. This conclusion is buttressed both by the distinction drawn between these types under Georgia law and by the differing considerations controlling their allowance. 75 Challenges to the array are 'directed to the whole group collectively for causes in the nature of irregularities in the form, manner and making up of the panel.' Davis and Shulman, Georgia Practice and Procedure, p. 454. Challenges to the poll are 'directed solely for objections which are inherent in the individual jurors,' Georgia Practice and Procedure, supra, at 455. Circumstances require that challenges to the array be made before trial. If permitted thereafter—and upheld—the judgments in many, if not all, other cases tried before juries obtained from the same panel would be subject to like attack. For example, illegality in the array summoned for March 9, 1953, from which the Williams jury was selected, might result in the overturning of all verdicts returned in the county during their tenure. This would be both expensive and timewasting, as well as disruptive of the proper administration of justice. Hence Georgia requires a challenge to be made before trial in order to give the judge an opportunity to correct the irregularity. On the other hand, a challenge to a petit juror or to the poll merely affects the one verdict of that jury of twelve rather than all the verdicts of the panel of one hundred and twenty. 76 The majority dwells on the extreme circumstances of this case, discusses in great detail the Georgia cases affording discretionary relief in less strong cases involving individual jurors, and warns that 'we are not concluded from assuming jurisdiction and deciding whether the state court action in the particular circumstances is, in effect, an avoidance of the federal right.' Although I find it difficult to ascertain exactly what ground the majority could give for striking down the Georgia result, it is clear to me that no theory ever before accepted by this Court could lead to reversal. 77 It is elementary that this Court has no jurisdiction over a case here from a state court where there is an independent and adequate state ground supporting the conclusion reached below.2 A purported state ground is not independent and adequate in two instances. First, where the circumstances give rise to an inference that the state court is guilty of an evasion—an interpretation of state law with the specific intent to deprive a litigant of a federal right.3 Second, where the state law, honestly applied though it may be, and even dictated by the precedents, throws such obstacles in the way of enforcement of federal rights that it must be struck down as unreasonably interfering with the vindication of such rights.4 78 It is obvious that the Georgia court has not been guilty of 'evasion.' Although the Georgia court's interpretation of state law may not be free from doubt, it is not possible to say that the Georgia decision is without 'fair support' in the previous cases.5 I regard it also as noteworthy that Presiding Justice Wyatt wrote this opinion for the Georgia Supreme Court. It was he who, in the Georgia court's decision in Avery, said in dissent: 79 'I cannot agree with the ruling (as to discrimination) for the reason, in my opinion, that this practice is conclusive evidence of discrimination, and for that reason the case should be reversed.' 209 Ga. 116, 131, 70 S.E.2d 716, 726. 80 In this ruling he went further in protecting the integrity of the jury system than we ourselves thought necessary. Compare Avery v. Georgia, 345 U.S. 559, 562—563, 73 S.Ct. 891, 892—893, 97 L.Ed. 1244 (petitioner established 'a prima facie case of discrimination' which the State failed to rebut). One who had so acted would hardly be attempting to evade the very federal right he had previously upheld so strongly. 81 Similarly, the Georgia procedure is not unduly burdensome. The majority concedes that '(a) state procedural rule which forbids the raising of federal questions at late stages in the case, or by any other than a prescribed method, has been recognized as a valid exercise of state power.' Even if the majority could somehow strike down the Georgia court's holding that it lacked discretion, it is not enough to show that Georgia has the power and refuses to exercise it. There is no case to support the implication that the exercise of discretion against a federal right is, without more, an evasion. See Brown v. Allen, 344 U.S. 443, 484—486, 73 S.Ct. 397, 421—422, 97 L.Ed. 469. Indeed, it would seem that there would have to be a withholding of discretion for the purpose of depriving Williams of a federal right. There is nothing even approaching that here. 82 A state court's decision cannot be overturned if any one of the grounds supporting it is independent and adequate. There is one ground here which appears so unassailable that the majority does not even attack it. Georgia law makes a showing of due diligence on the part of the movant a prerequisite to granting extraordinary motions for new trial. The state court in this case found that due diligence had not been properly pleaded, and that the facts of which the Georgia court could take notice conclusively demonstrated that diligence was indeed completely lacking. 83 On the first ground, there is clearly substantial support in the prior state decisions. Petitioner's attorney stated that 'he did not know of the facts (establishing the constitutional claim) before the trial and before the verdict in said case, and that the same could not have been discovered by him in the exercise of ordinary diligence.' It had been held in at least four prior Georgia decisions that such conclusory pleading of diligence was inadequate to support a motion for a new trial or an extraordinary action for the same. Taylor v. State, 132 Ga. 235, 63 S.E. 1116; King v. State, 174 Ga. 432, 163 S.E. 168; Redding v. State, 183 Ga. 704, 189 S.E. 514; Edge v. State, 200 Ga. 257, 36 S.E.2d 673.6 84 On the second ground, the Georgia opinion speaks for itself: 85 'Furthermore, the facts and circumstances contradict the statements made in the affidavits. When the instant case came on for trial in Fulton Superior Court on March 10, 1953, the case of Avery v. State had been tried in the same county and that case had been affirmed by this court on April 14, 1952, and was pending in the United States Supreme Court. * * * The opinion of this court affirming the lower court in the Avery case sets out fully the methods and practices employed in the selection and empaneling of juries in Fulton County, including the practice of putting the names of white jurors on White slips of paper and the names of Colored jurors on yellow slips of paper. Due diligence would certainly have required the defendant and his attorney to make themselves familiar with the opinions of this court on the question now raised.'7 210 Ga. 665, 668, 82 S.E.2d 217, 219. 86 It is evident on this record that, even if the Georgia court is deemed to have discretion in this matter, it could adhere to its present decision and not be reversed in this Court without a major departure from our doctrines requiring respect for state procedural rules affording a 'reasonable opportunity' to present federal questions. Cf. Parker v. Illinois, 333 U.S. 571, 68 S.Ct. 708, 92 L.Ed. 886. 87 Had the state court possessed the power, it might have been desirable to have permitted petitioner to adjudicate his substantial constitutional claim instead of sending him to his death because his attorney failed to take advantage of the usual opportunity afforded by the state law. On the other hand, had the jury acquitted petitioner, he would not have complained about any unconstitutionality in its selection. A State may be influenced by the unfairness of allowing the litigant who remains silent two chances for acquittal while giving the diligent litigant only one. And orderly administration of the laws often imposes hardships upon those who have not properly preserved their rights. In any event, the resolution of these conflicting interests should be a matter wholly for the Georgia courts. See Herndon v. Georgia, 295 U.S. 441, 55 S.Ct. 794, 79 L.Ed. 1530. 88 Mr. Justice MINTON, with whom Mr. Justice REED and Mr. Justice CLARK join, dissenting. 89 Georgia has a rule of law that the jury panel must be challenged at the threshold, that is, as Georgia expresses it, before the panel is 'put upon the defendant.' If the panel is not thus challenged, the issue cannot later be raised and is considered as waived 'once and for all.' Williams v. State, 210 Ga. 665, 669, 82 S.E.2d 217, 220. Ga.Code Ann., § 59—803. See Jordan v. State, 22 Ga. 545. 90 This is a reasonable rule. It gives the State an opportunity to meet the challenge and to justify the array, or, if it is improperly constituted, an opportunity to correct it. 91 In the instant case, the challenge to the array was not presented at the time the panel was put upon the petitioner-defendant. If the defendant thus fails to challenge the array before it is put upon him, he may not raise the question as to its legality for the first time in a motion for a new trial. Lumpkin v. State, 152 Ga. 229, 231, 109 S.E. 664, 665. Such a requirement complies with the Federal Constitution. Brown v. Allen, 344 U.S. 443, 480, 73 S.Ct. 397, 419, 97 L.Ed. 469. 92 Since petitioner did not and could not raise the question on a motion for new trial for the first time, it would seem that he could not raise it on an extraordinary motion for a new trial. The trial court dismissed the motion, and the State Supreme Court affirmed. First, the court held that the petitioner could not challenge the array for the first time by motion for a new trial or extraordinary motion for a new trial. The Georgia Supreme Court on that said: 93 'It is settled law in this State that, when a panel of jurors is put upon the prisoner, he should challenge the array for any cause which would go to show that it was not fairly and properly put upon him, and that if he fails to do so, the objection is waived and can not thereafter be made a ground of a motion for new trial. See Lumpkin v. State, 152 Ga. 229, 109 S.E. 664; Cornelious v. State, 193 Ga. 25, 17 S.E.2d 156; Cumming v. State, 155 Ga. 346, 117 S.E. 378; Moon v. State, 68 Ga. 687; and Williams v. State, 31 Ga.App. 173, 120 S.E. 131. In the instant case, the defendant made no objection to the jury when the panel was put upon him, and made no objection until he filed this extraordinary motion for new trial after a new trial had been denied and that judgment affirmed by this court. See Williams v. State, supra. It follows, therefore, that the judgment of the court below dismissing the extraordinary motion for new trial was not error. 94 'The defendant and his attorney state that they did not know of the facts set out in grounds one and two of the motion for new trial, and 'that the same could not have been discovered by him in the exercise of ordinary diligence.' This is not sufficient to excuse the defendant from the necessity of presenting his written challenge to the array of traverse jurors when the panel was put upon him. See, in this connection, Lumpkin v. State, supra; Cornelious v. State, supra; Redding v. State, 183 Ga. 704, 189 S.E. 514; Edge v. State, 200 Ga. 257, 36 S.E.2d 673. It follows, under the decisions of this court above cited, it was not error to dismiss the extraordinary motion for new trial.' 210 Ga. 665, 667—668, 82 S.E.2d 217, 218—219. 95 After deciding this matter of state law, the Supreme Court of Georgia further held that the extraordinary motion was insufficient. The defendant, in his affidavit supporting the motion, deposed: "The defendant did not at the time of his trial. * * * have any information concerning the selection, drawing, organizing, and empaneling of the jury panel put upon him on his trial, but assumed that the jury was a legal jury." Id., 210 Ga. at page 668, 82 S.E.2d at page 219. Also defendant's attorney deposed in his supporting affidavit that he "did not know of the facts set out in the first and second grounds of the extraordinary motion for new trial * * * before the trial and before the verdict in said case, and that the same could not have been discovered by him in the exercise of ordinary diligence." Ibid. 96 Such allegations, the court held, were 'merely opinion, without sufficient facts being shown by which the court could judge whether due diligence had been exercised, and are not sufficient to support an extraordinary motion for new trial. Edge v. State, supra; Redding v. State, supra.' Ibid. 97 Thus the Georgia Supreme Court held, first, that the challenge to the array must be made when the array is put upon the defendant and cannot be made later by motion for a new trial or extraordinary motion for new trial; and, second, that the grounds for the latter motion were insufficient. 98 This first holding is a well-established rule of law of Georgia and does not seem to have been applied discriminatorily so as to deny petitioner the equal protection of the law. He had the same right and opportunity to raise the question as anyone else. 99 The promulgation of such a rule of law is, as we have pointed out, fair and reasonable and cannot be said to deny due process of law. Georgia has provided a reasonable time and manner in which the question could be raised. Petitioner did not take advantage of it, probably because, as his attorney alleged in his affidavit, he 'devoted his time and efforts to ascertaining the nature of the evidence to be presented by the State of Georgia upon the trial.' 100 This Court cites a number of Georgia cases in which extraordinary motions were granted by the Georgia Supreme Court where an individual juror without knowledge of the facts was permitted to sit even though disqualified. But, in each of these cases, proper motions in due form and sufficient were presented and the question raised at the first opportunity. 101 This Court now says that the Georgia Supreme Court has the power to grant the petitioner's motion. I suppose that it has, but I would not think that it had denied a federal constitutional right if it did not change its rule. In fact, I think it would lead to absurd results if it changed its rule that the challenge to the array must be made at the threshold. The defendant, knowing of an error in the constitution of the array, could lay low and always have a built-in error on which he could rely if he did not like the results at the trial. Georgia is not bound to change its rule on penalty of a violation of the Federal Constitution. Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244, does not decide this case because in that proceeding the challenge was timely made. 102 We do not sit as a legal critic to indicate how we think courts should act. If a federal constitutional right is not presented, we have no duty to perform. There was no denial of equal protection of the law or of due process. This case was disposed of by the Georgia Supreme Court altogether on state grounds. In such circumstances our duty is clear. As we stated in Edelman v. California, 344 U.S. 357, 358—359, 73 S.Ct. 293, 295, 97 L.Ed. 387: 103 'It is clear that this Court is without power to decide whether constitutional rights have been violated when the federal questions are not seasonably raised in accordance with the requirements of state law. Hulbert v. City of Chicago, 1906, 202 U.S. 275, 26 S.Ct. 617, 50 L.Ed. 1026; Mutual Life Ins. Co. v. McGrew, 1903, 188 U.S. 291, 308, 23 S.Ct. 375, 378, 47 L.Ed. 480. Noncompliance with such local law can thus be an adequate state ground for a decision below. * * *' 104 Therefore, I would dismiss the writ of certiorari as improvidently granted. 1 'In case of a motion for a new trial made after the adjournment of the court, some good reason must be shown why the motion was not made during the term, which shall be judged of by the court. In all such cases, 20 days' notice shall be given to the opposite party. Whenever a motion for a new trial shall have been made at the term of trial in any criminal case and overruled, or when a motion for a new trial has not been made at such term, no motion for a new trial from the same verdict shall be made or received, unless the same is an extraordinary motion or case, and but one such extraordinary motion shall be made or allowed.' 2 See Appendix for table comparing the dates in the two cases. 3 The court said: 'And while the statute does not say so, its manifest intention is that the tickets shall be of uniform size and color, so as to make discrimination impossible in the drawing of jurors; and, where not so done, this is prima facie evidence of discrimination, and, if nothing else appeared, would require a reversal. In this case, however, it is not charged or contended that any discrimination was practiced in drawing the challenged jurors; and the judge who drew them, as a witness for the accused, testified there was in fact none. Therefore, the practice of placing the names of white and colored jurors in the jury box on tickets of different colors did no harm in this instance, and consequently furnished no sufficient objection to the jurors challenged by the accused.' 209 Ga. 116, 124, 70 S.E.2d 716, 722. 4 Counsel were informed that this case would be argued in this Court on March 3, 1955. On February 14, 1955, the Assistant Attorney General of Georgia wrote the Clerk of this Court that his office had been informed by Williams' counsel that 'in all probability he would not participate in the oral argument of this case.' The Clerk requested the attorney on February 18 to inform the Court of his plans. Under date of February 22, the attorney wrote to the Clerk as follows: 'Dear Sir: 'At the present time, it does not appear that I will be able to come to Washington to present oral argument in the above case. I have little or nothing to add to the brief. 'It is entirely agreeable, insofar as my agreement has any bearing, that the Attorney General's request in letter of February 14, 1955, (for permission to have two counsel present the State's case) be granted. 'I am assuming that if events take such a turn that I am able to come to Washington, I will be permitted to make a short oral agrument. 'Yours very truly,' 'Under date of February 26, 1955, the Clerk sent the attorney the following letter: 'Dear Sir: 'I have spoken to the Chief Justice about the oral argument in this case and of the probability that you would not be present. 'He asked me to inform you that the Court would appreciate your presenting oral argument if at all possible, particularly in view of the fact that this a capital case. 'Yours truly,' The attorney replied under date of February 28: 'Dear Sir: 'I am in this position about this case: I originally entered the case by appointment, before our General Assembly enacted legislation authorizing the payment of appointed counsel from the Treasury of Fulton County. This petitioner has no money. His family have made contributions which have in part paid actual expenses. At the present time, they have only paid one-half the cost of printing the brief, and in this situation, it appears that any expense connected with a trip to Washington will be out-of-pocket to me. 'In addition, I am sole counsel in a suit in the Superior Court of Polk County, Georgia, on the calendar of that court for trial during the present week where my absence for any cause will have the result that payment of temporary alimony to my client will not be continued, which in turn, will have the result that I will lose the client. 'I have appeared in the Supreme Court of Georgia twice in this case and have pursued it thus far in the Supreme Court of the United States at a considerable sacrifice. It has been my intention to present oral argument if at all possible. In view of the foregoing, however, it simply does not seem that I will be able to. If I can try the case in Polk Superior Court tomorrow (March 1st), there remains a possibility that I will be able to appear before the Supreme Court. I do not, however, believe such will be the case and for that reason, I cannot plan on going to Washington. 'Very truly yours,' Oral argument was subsequently reset for April 18, 1955. 5 The Solicitor General said at the end of his brief: '* * * In the Avery Case no negro jurors were drawn and impanelled. In this case 4 negro jurors were actually impanelled and sworn for the trial of this case. The mere fact that 3 were disqualified for cause and one was stricken peremptorily by the State would not suffice to show a course of systematic exclusion of negroes from the jury such as would amount to discrimination against the defendant in the trial of his case. 'We respectfully submit that the facts alleged in the extraordinary motion for a new trial do not make out a case showing denial of equal protection of the law or due process of law under the 14th Amendment to the Constitution of the United States, and that under the authorities cited above the judgment of the trial judge in dismissing the extraordinary motion should be affirmed.' The Attorney General of the State, who also filed a brief on behalf of the State, did not discuss the constitutional question except in his concluding paragraph: 'If, under the decision in the Avery case, there was in fact a discrimination against the movant in his trial, we do not say that he does not have some remedy at law but we do contend that the question is not ground for extraordinary motion for new trial and that the Court did not err in dismissing the same.' No other remedy was mentioned by the Georgia Supreme Court, and none has been called to our attention by the parties. 6 See, e.g., Parker v. Illinois, 333 U.S. 571, 68 S.Ct. 708, 92 L.Ed. 886; Radio Station WOW, Inc., v. Johnson, 326 U.S. 120, 128, 65 S.Ct. 1475, 1480, 89 L.Ed. 2092; Pennsylvania R. Co. v. Illinois Brick Co., 297 U.S. 447, 462—463, 56 S.Ct. 556, 561, 80 L.Ed. 796; Central Union Telephone Co. v. City of Edwardsville, 269 U.S. 190, 46 S.Ct. 90, 70 L.Ed. 229. 7 Cf. Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Abie State Bank v. Bryan (Weaver), 282 U.S. 765, 772 773, 51 S.Ct. 252, 255, 75 L.Ed. 690; Pierre v. Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 538, 83 L.Ed. 757; Urie v. Thompson, 337 U.S. 163, 172—173, 69 S.Ct. 1018, 1025—1026, 93 L.Ed. 1282; Vandalia R. Co. v. Indiana ex rel. South Bend, 207 U.S. 359, 367, 28 S.Ct. 130, 132, 52 L.Ed. 246. 8 E.g., Parks v. Georgia, 1948, 204 Ga. 41, 48 S.E.2d 837; Brown v. Georgia, 1914, 141 Ga. 783, 82 S.E. 238; Tyre v. Georgia, 1928, 38 Ga.App. 206, 143 S.E. 778. 9 Ga.Code Ann., § 70—303. See note 1, supra. 10 E.g., Patterson v. Georgia, 1952, 208 Ga. 689, 69 S.E.2d 84; Pulliam v. Georgia, 1945, 199 Ga. 709, 35 S.E.2d 250; Rogers v. Georgia, 1907, 129 Ga. 589, 59 S.E. 288; Echols v. Georgia, 1953, 87 Ga.App. 565, 74 S.E.2d 474; Bivins v. McDonald, 1934, 50 Ga.App. 299, 177 S.E. 829. 11 Cf. Williams v. Georgia, 1913, 12 Ga.App. 337, 77 S.E. 189, in which the presence on the jury of a juror previously convicted of an offense involving moral turpitude was deemed to warrant a new trial on a motion after verdict, as compared with an extraordinary motion after final judgment. 12 Cf. the following cases in which new trials were granted on motion after verdict, as compared with an extraordinary motion after final judgment, because of a juror's disqualification. Harris v. Georgia, 1939, 188 Ga. 745, 4 S.E.2d 651; Ethridge v. Georgia, 1927, 164 Ga. 53, 137 S.E. 784; Currie v. Georgia, 1923, 156 Ga. 85, 118 S.E. 724; O'Berry v. Georgia, 1922, 153 Ga. 644, 113 S.E. 2; Merritt v. Georgia, 1921, 152 Ga. 405, 110 S.E. 160; Hubbard v. Georgia, 1909, 5 Ga.App. 599, 63 S.E. 588; Perrett v. Georgia, 1915, 16 Ga.App. 587, 85 S.E. 820; Cray v. Georgia, 1927, 37 Ga.App. 371, 140 S.E. 402. 13 Under Georgia practice, the headnotes to cases are written by the court. The headnote in this case said: 'Held, that conviction for murder and sentence of death on the verdict of a juror so utterly destitute of truth and uprightness of character, would shock the conscience of civilization, and soil the purity of jury trial; and no matter how heinous the crime committed, the preservation of that purity is of more consequence than the speedy punishment of any one man for any one offense, and public policy, as well as individual right, demand a new trial.' In Wallace v. Georgia, 1949, 205 Ga. 751, 55 S.E.2d 145, affidavits similar to those in the Doyal case were presented by the defendant, but the State introduced positive affidavits to the effect that no such statements by the juror had been made. The headnote written by the Georgia Supreme Court stated: 'There was no manifest abuse of discretion by the trial judge in overruling (this) ground of the extraordinary motion for a new trial, based upon conflicting evidence as to the alleged disqualication of the juror therein referred to.' 205 Ga. at page 752, 55 S.E.2d at page 146. 14 In Bloodworth v. Georgia, 1925, 161 Ga. 332, 334, 131 S.E. 80, 81, it was stated that in a prior trial defendant was granted a new trial on an extraordinary motion after final judgment because a juror was disqualified. In Harris v. Georgia, 1920, 150 Ga. 680, 104 S.E. 902, 903, the defendant was sentenced to death for murder, a motion for a new trial was denied, and the judgment was affirmed on appeal. An extraordinary motion for new trial was overruled by the trial court, but the State Supreme Court reversed. The ground of the reversal was that after the jury had informed the judge that they could not agree, a deputy sheriff gave them the judge's message that he could not help them further, and then the deputy added, "the judge would keep them locked up until they did make a verdict", after which a verdict was brought in. 15 Some of these cases are not entirely clear. For example, Lumpkin stated that all objections to the impaneling of the grand jury should be made by challenge to the array before the indictment is found, where the illegality is known, or, if not known, by plea in abatement to the indictment; objections to 'certain jurors' on the trial jury should be raised by a challenge to the juror when put upon the defendant. This rule is cited in Cornelious for the proposition that an objection to both grand and petit juries must be made by a challenge to the array before indictment or by plea in abatement before trial. In Kato v. Georgia, 1925, 33 Ga.App. 342, 126 S.E. 266, the grand jury rule was applied to individual grand jurors rather than to the panel, and the challenge was said to be one to the array. And in Moon v. Georgia, 1882, 68 Ga. 687, it was said that an objection to a single juror should be made by a challenge to the array. Cf. note 16, infra. 16 E.g., Fudge v. Georgia, 1940, 190 Ga. 340, 9 S.E.2d 259; Bryan v. Georgia, 1905, 124 Ga. 79, 52 S.E. 298; Taylor v. Georgia, 1904, 121 Ga. 348, 49 S.E. 303. In Georgia, challenges to the array go to the form and manner of making up the entire panel, whereas challenges to the poll are directed solely to the individual juror. See Humphries v. Georgia, 1897, 100 Ga. 260, 262, 28 S.E. 25, 26; Mitchell v. Georgia, 1943, 69 Ga.App. 771, 776, 26 S.E.2d 663, 667. 17 210 Ga. 665, 668, 82 S.E.2d 217, 219. 18 Even if extraordinary motion is the appropriate remedy, local practice may require Williams to be put to his proof. The State, for purposes of presenting its legal arguments, has not disputed the facts alleged in the extraordinary motion, but there has not been a hearing on those facts or an admission of their truth. 19 Cf. Patterson v. Alabama, supra, with Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. 1 The Court in Patterson was more scrupulous about keeping its opinions on state procedure to itself. Here, the Court says: 'Fair regard * * * for the constitutional commands binding on all courts compels us to reject the assumption that the courts of Georgia would allow this man to go to his death as the result of a conviction secured from a jury which the State admits was unconstitutionally impaneled.' This characterization is especially unfortunate in view of the fact that the state court, with full knowledge of all the facts, has already refused to order a new trial. See infra 75 S.Ct. 830. 2 Cf. The statement of the majority: 'But the fact that we have jurisdiction does not compel us to exercise it.' 3 This charge upon the integrity of a State Supreme Court is so serious that this Court has restricted such findings to cases where the state court decision lacked 'fair support' in the state law. See Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417. Cf. Fox Film Corp. v. Muller, 296 U.S. 207, 209, 56 S.Ct. 183, 80 L.Ed. 158. 4 See Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143; Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239, 247, 52 S.Ct. 133, 136, 76 L.Ed. 265. Cf. State of Missouri ex rel. Missouri Ins. Co. v. Gehner, 1930, 281 U.S. 313, 50 S.Ct. 326, 74 L.Ed. 870. 5 The cases cited by the majority are not helpful here. In Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417, the Alabama court struck a federal claim of discrimination on the ground that the pleading was prolix. The pleading was two pages in length. It goes without saying that the State was evading the issue. In Abie State Bank v. Bryan (Weaver), 282 U.S. 765, 51 S.Ct. 252, 75 L.Ed. 690, the bank's constitutional plea that conditions had so changed as to make a state statute confiscatory was stricken on grounds of estoppel, the bank having acquiesced in the regulation for several years. Chief Justice Hughes held that 'earlier compliance * * * does not forfeit the right of protest * * *.' 282 U.S. at 776, 51 S.Ct. at 257. In view of the changed circumstances, the state ground unreasonably interfered with the vindication of a federal right. In Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757, there was a timely objection, on federal grounds, to the systematic exclusion of Negroes from the grand jury list. This Court first rejected the State's claim that the illegal composition was harmless error, and then affirmed the power of this Court to make an independent investigation of the facts. In Urie v. Thompson, 337 U.S. 163, 172, 69 S.Ct. 1018, 93 L.Ed. 1282, Mr. Justice Rutledge in an FELA case held that, since the final judgment rule had prevented any earlier consideration by this Court, local practice rules could not bar this Court's consideration of 'all substantial federal questions actually determined in earlier stages of the litigation.' And in Vandalia R. Co. v. Indiana ex rel. South Bend, 207 U.S. 359, 367, 28 S.Ct. 130, 132, 52 L.Ed. 246, Mr. Justice Brewer said, 'Even if it be conceded that the conclusion of the supreme court of the state is not free from doubt, there is nothing to justify a suspicion that there was any intent to avoid the Federal questions. * * *' We agree that this is the test here. 6 Smith v. Georgia, 2 Ga.App. 574, 59 S.E. 311, cited by the majority, is not to the contrary. There the court recognized that due diligence is required in making an extraordinary motion for new trial, and held, consistent with the Georgia practice of treating the various objections on an individual basis, that the requirement of ordinary diligence had been satisfied where counsel had interrogated the subsequently disqualified juror concerning his relation with the prosecutor and had obtained a negative answer. 7 On May 26, 1953, on its front page, the Atlanta Constitution ran a complete story of the reversal of Avery's case here. It is interesting to note that an article in the same paper pointed out 'that old cases in which convictions were obtained under the two-color jury selection system could not be reopened because objections must have been made at the time of the trial.' The same day, the Atlanta Journal carried a story that Fulton County was 'moving to ban different colored jury slips.' The subhead on the article said, 'Court ruling against practice draws prediction of action.' This article concluded with a paragraph: 'The change to all-white slips will have no effect on cases already adjudicated but will affect cases now in progress where the point of different colored jury slips has been raised.'

12

349 U.S. 427 75 S.Ct. 860 99 L.Ed. 1196 James P. MITCHELL, Secretary of Labor, United States Department of Labor, Petitioner,v.C. W. VOLLMER & COMPANY, Inc. No. 387. Argued March 3, 1955. Decided June 6, 1955. Mr. Stuart Rothman, Washington, D.C., for petitioner. Mr. Eberhard P. Deutsch, New Orleans, La., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Petitioner brought this suit under § 17 of the Fair Labor Standards Act, 52 Stat. 1060, as amended, 63 Stat. 910, 29 U.S.C. § 201 et seq., 29 U.S.C.A. § 201 et seq., to enjoin respondent from violating § 15(a)(2) and § 15(a)(5) of the Act. Those sections make unlawful violation of § 7 and § 11(c) of the Act. Section 7 requires one and a half times the regular rate of pay for work in excess of 40 hours a week; and § 11(c) requires the keeping of the records that are prescribed by regulations. 29 CFR, 1954 Cum.Supp., § 516.1 et seq. The contention is that respondent's violations of § 7 and § 11(c) relate to work performed in the construction of an earthwork embankment and concrete platform for the Algiers Lock in Orleans Parish, Louisiana, a unit in the Gulf Intracoastal Waterway, extending from Florida to the Mexican border. The Algiers Lock is designed to furnish better passage into and across the Mississippi than is provided by the present Harvey Lock and Canal. 2 Respondent concedes that some of its employees on the Algiers Lock were employed for more than 40 hours per week without payment for overtime. Its defense is that its employees working on the Algiers Lock were not engaged in interstate commerce, and thus were not covered by the Act.1 3 The evidence at the trial was primarily directed to the question whether those working on the Algiers Lock were engaged in commerce within the meaning of § 7 of the Act. As already noted, the Algiers Lock will form part of the Gulf Intracoastal Waterway. It is designed to serve as an alternate route to the Harvey Lock and Canal. Relying on our decision in Raymond v. Chicago, M. & St. P.R. Co., 243 U.S. 43, 37 S.Ct. 268, 61 L.Ed. 583, the District Court held that respondent's employees were not engaged in commerce and denied injunctive relief. 113 F.Supp. 235. The Court of Appears for the Fifth Circuit affirmed per curiam. 214 F.2d 132. To resolve an apparent conflict with Tobin v. Pennington-Winter Const. Co., 10 Cir., 198 F.2d 334, we granted certiorari. Mitchell v. C. W. Vollmer & Co., Inc., 348 U.S. 886, 75 S.Ct. 207. 4 Section 7 of the Act makes the 40-hour week and the overtime provisions applicable to the Algiers Lock and Canal project if the respondent's employees at work on it are 'engaged in commerce.' It is argued that they are not engaged 'in commerce,' since the Algiers Lock is new construction and therefore in the category of the new tunnel that was being constructed in Raymond v. Chicago, M. & St. P.R. Co., supra. In the latter case, the Court held that an employee at work on a new tunnel for an interstate carrier was not subject to the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., even though the tunnel, when completed, would be an interstate facility. 5 We do not think that case should control this one. We are dealing with a different Act of another vintage—one that has been given a liberal construction from Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, to Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745. The question whether an employee is engaged 'in commerce' within the meaning of the present Act is determined by practical considerations, not by technical conceptions. See Walling v. Jacksonville Paper Co., 317 U.S. 564, 570, 63 S.Ct. 332, 336, 87 L.Ed. 460; Overstreet v. North Shore Corp., 318 U.S. 125, 128, 130, 63 S.Ct. 494, 496, 497, 87 L.Ed. 656. The test is whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated local activity. See McLeod v. Threlkeld, 319 U.S. 491, 497, 63 S.Ct. 1248, 1251, 87 L.Ed. 1538. Repair of facilities of interstate commerce is activity 'in commerce' within the meaning of the Act as we held in Fitzgerald Const. Co. v. Pedersen, 324 U.S. 720, 65 S.Ct. 892, 89 L.Ed. 1316. And we think the work of improving existing facilities of interstate commerce, involved in the present case, falls in the same category.2 6 The Gulf Intracoastal Waterway is an existing instrumentality of commerce. Without Algiers Lock, it has proved inadequate where it crosses the Mississippi. Harvey Lock cannot handle the traffic. Use of Harvey Lock entails travel through some five miles of the New Orleans harbor, already heavy with traffic. It is impractical to widen Harvey Lock because it is located in a highly developed industriat section of New Orleans. Algiers Lock is conceived as the practical alternative for relieving the congestion of the Waterway at this point. See S. Doc. No. 188, 78th Cong., 2d Sess., pp. 1—4. The work on Algiers Lock seems to us to have as intimate a relation to improvement of navigation on the Waterway as the dredging of Harvey Lock would have. It is part of the redesigning of an existing facility of interstate commerce. Those working on the Algiers Lock are therefore 'engaged in commerce' within the meaning of § 7 of the Act. 7 Reversed. 8 Mr. Justice HARLAN took no part in the consideration or decision of this case. 9 Mr. Justice MINTON, with whom Mr. Justice FRANKFURTER joins, dissenting. 10 Only injunctive relief is sought here by the Secretary of Labor to prevent the violation of §§ 7 and 15(a)(2) and §§ 11(c) and 15(a)(5) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., 29 U.S.C.A. § 201 et seq., which require the payment by employers of extra pay for overtime work and the keeping of records by them. 29 U.S.C. § 207(a), 29 U.S.C.A. § 207(a), provides: 11 '* * * (N)o employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.' 12 It is contended that the respondent and its employees who were constructing this cutoff canal were 'engaged in commerce.' If they were not so engaged, an injunction will not lie. This presents a question of statutory construction in light of legislative, administrative, and judicial considerations. 13 The Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., 45 U.S.C.A. § 51 et seq., provides that every railway common carrier while engaged in interstate commerce shall be liable in damages to any employee engaged in such commerce who suffers injury resulting from the negligence of the carrier. If the employee was not himself engaged in commerce, there can be no recovery under the Act. 14 In Raymond v. Chicago, M. & St. P.R. Co., 243 U.S. 43, 37 S.Ct. 268, 61 L.Ed. 583, the company was engaged in the operation of a railroad between Chicago and Seattle. Its existing route went around the mountains, and the railroad sought to tunnel through the mountains. While constructing this tunnel Raymond was injured and sued the railroad under the Federal Employers' Liability Act, claiming he was engaged in commerce when injured by the railroad's negligence. This Court held that Raymond was not engaged in commerce while working on the construction of this cutoff tunnel because its use in commerce was only contemplated after completion. That is the exact situation here with reference to this canal. 15 In New York Central R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, a railroad was constructing a new station alongside its interstate line. White was a night watchman employed at the site of this new construction and was killed. His representative sued under the Federal Employers' Liability Act, claiming that he was engaged in commerce, but this Court held that he was not engaged in commerce as he went about his duties at the site of this new construction. 16 In the interpretation and application of the Fair Labor Standards Act, the federal courts have adopted the rule of the Raymond and White cases, which arose under the Federal Employers' Liability Act. A prerequisite to the application of either Act was that the employee be engaged in commerce. This rule came to be known as the 'new construction rule' and was applied by this Court in Murphey v. Reed, 335 U.S. 865, 69 S.Ct. 105, 93 L.Ed. 410. It was also applied by the First Circuit in Nieves v. Standard Dredging Corp., 152 F.2d 719, where the employer was dredging a channel for navigation in a previously nonnavigable stream. The Second Circuit in Scholl v. McWilliams Dredging Co., 169 F.2d 729, applied the rule where the employer was engaged in the construction of a new air base in Greenland that had not yet been used in foreign commerce. The Third Circuit applied the rule in Kelly v. Ford, Bacon & Davis, Inc., 162 F.2d 555, where the employer was engaged in building a new plant for the construction of aircraft engines later to be used in commerce, but which plant was only an additional facility for such work. It was held in this case that the employer was not only not engaged in commerce, but it was not engaged in the production of goods for commerce. The Fifth Circuit, in another case beside the one under consideration, applied the rule of new construction to the building of an expressway which, when completed, would have routed over it several interstate highways. Van Klaveren v. Killian-House Co., 210 F.2d 510. The Sixth Circuit in Koepfle v. Garavaglia, 200 F.2d 191, applied the rule to another case of new construction of an expressway to be later integrated into a highway system. The Eighth Circuit in Crabb v. Welden Bros., 164 F.2d 797, applied the rule in the construction of the Alcan Highway. The Tenth Circuit in Moss v. Gillioz Const. Co., 206 F.2d 819, similarly applied the rule in the construction of a new bridge at 51st Street, south of Tulsa, Oklahoma, over which interstate traffic then using the 11th Street Bridge could be routed. 17 The agencies responsible for the administration of the Act had interpreted it as not applying to new construction not yet used in interstate commerce. Wage and Hour Interpretative Bulletin No. 5, 12, Dec. 2, 1938; BNA, 1944—1945 WH Man. 23: 18 'The question arises whether the employees of builders and contractors are entitled to the benefits of the Act. The employees of local construction contractors generally are not engaged in interstate commerce and do not produce any goods which are shipped or sold across State lines. Thus, it is our opinion that employees engaged in the original construction of buildings are not generally within the scope of the Act, even if the buildings when completed will be used to produce goods for commerce * * *.' 19 In the Wage Hour Manual, Bureau of National Affairs Labor Relations Reporter, Vol. 6, 10:237, the rule is interpreted as follows: 20 'In interpreting the Act's application to employers in the building and construction industry, the Wage and Hour Division and the courts have drawn a distinction between the original construction of buildings or facilities and their repair or reconstruction.' 21 We are not dealing here with improving or repairing existing facilities which are already in commerce, but with new construction that has never been used in commerce. 22 It seems, therefore, that the Secretary of Labor has quite recently changed his mind about the application of the Act to new construction not yet used or not an integral part of interstate commerce. His change of mind should not change the law. This Court, which may change the law, seems to have changed its mind about the same time and without saying why it does so, except that the foregoing cases are of a different vintage. I am unable to distinguish the cases on the vintage test. Without overruling the Raymond, White and Murphey decisions and the number of cases decided by the Circuit Courts, this Court brushes them off as of another vintage. 23 Reliance upon this Court's opinions becomes a hazardous business for lawyers and judges, not to mention contractors, who are not familiar with the vintage test. 1 The only question presented and argued here concerns § 7 of the Act. 2 The construction work held in Murphey v. Reed, 335 U.S. 865, 69 S.Ct. 105, 93 L.Ed. 410, not to be under the Act was the building of a Navy base, not the improvement of a facility or instrumentality of interstate commerce.

67

349 U.S. 358 75 S.Ct. 855 99 L.Ed. 1147 FEDERAL COMMUNICATIONS COMMISSION, Petitioner,v.ALLENTOWN BROADCASTING CORP. No. 451. Argued April 20, 21, 1955. Decided June 6, 1955. Mr. Warren E. Baker, Washington, D.C., for petitioner. Mr. Donald C. Beelar, Washington, D.C., for respondent. Mr. Justice REED delivered the opinion of the Court. 1 This case involves the disposition of two applications for construction permits for standard broadcast stations. One application was filed by the Easton Publishing Co. for Easton, Pennsylvania, and the other by the Allentown Broadcasting Corp. for Allentown, Pennsylvania. Both were for the same frequency, and, despite the fact that neither station would render service to the other community, simultaneous operation of the two stations would cause mutually destructive interference. 2 Hearings were first held in 1946 and resulted in the grant of the Allentown application. The Court of Appeals for the District of Columbia Circuit reversed the Commission and remanded the case for 'findings upon the comparative needs of the two communities for new radio service and the relative abilities of the applicants to serve the greater need.' Easton Pub. Co. v. Federal Communications Commission, 85 U.S.App.D.C. 33, 40, 175 F.2d 344, 351. 3 New hearings were held in 1951 by an examiner whose initial decision recommended that the Allentown application be granted. Easton filed exceptions to that decision with the Commission, and after oral argument the Commission issued its final decision, disagreeing with its examiner and granting the station to Easton. The Commission made detailed findings of fact as to the qualifications of the applicants and the nature of the communities to be served. Most factors provided no basis for choosing between the applicants. Both were found legally, technically and otherwise qualified to become the licensee; both communities were equally in need of the programs proposed to be broadcast by each applicant. One factor, however, was crucial in determining, under § 307(b) of the Communications Act,1 which applicant should receive the license. Allentown had three local stations; Easton only one. The Commission recognized that Allentown was a city almost triple the size of Easton and growing at a greater pace, but held that Easton's need for a choice between locally originated programs was decisive. 4 The Court of Appeals reversed.2 Its examination of the record in detail demonstrated to it that findings of fact of the Commission that overruled findings of the Hearing Examiner were erroneous. Since these Commission findings, it thought, were the basis for that body's ultimate finding of Easton's ability to serve, it directed the Commission to revaluate the 'issue of the relative abilities of the two applicants to serve in the public interest.' It held that there was no substantial evidence in the record to support the determination that 'the ability of the applicants to serve their respective communities was about equal.' It concluded that, without support for this underlying finding, it was improper to apply the "choice of local service" principle. In view of the importance to the administration of the Act, certiorari was granted to review this decision. 348 U.S. 910, 75 S.Ct. 296. 5 The more important question presented by this certiorari, as stated by petitioner, is whether the Federal Communications Commission, in awarding AM licenses between mutually exclusive applicants for different communities, can select one community over another on the basis of the former's need only if it has first found that the applicants are approximately equal in their ability to serve their respective communities. 6 The judgment of the Court of Appeals that such a preliminary finding was necessary was predicated upon the requirement of its earlier decision in this same controversy, which was not appealed, that there must be, as stated above, findings not only on comparative needs of the communities but also as to the 'relative abilities of the applicants to serve the greater need.' Easton Pub. Co. v. Federal Communications Commission, 85 U.S.App.D.C. 40, 175 F.2d 351. The Court of Appeals, as we understand its opinion in the present case, thought that the "choice of local service" principle applied only where community need and applicant ability to serve such need were both approximately equal.3 7 The Commission challenges this position. It asserts that, when mutually exclusive applicants seek authority to serve different communities, the Commission first determines which community has the greater need for additional services and then determines which applicant can best serve that community's need. Otherwise, argues the Commission, the needs of the community would be subordinated to the ability of an applicant for another locality. The position of the Commission was made quite clear in its judgment on Allentown's petition for rehearing.4 8 We agree with the contention of the Commission. Section 307(b), note 1, supra, empowers the Commission to allow licenses so as to provide a fair distribution among communities. Fairness to communities is furthered by a recognition of local needs for a community radio mouthpiece. The distribution of a second license to a community in order to secure local competition for originating and broadcasting programs of local interest appears to us to be likewise within the allowable area of discretion. There are other instances of Commission use of community allocation of licenses to secure local means of expression.5 9 The record of the second hearing shows that the Commission had before it substantial evidence to support its conclusion as to Easton's need and its applicant's superior capacity to serve that need. In appraising the evidence as to the day and night existing radio service of the two communities, their proposed local programs and their staffs, the Commission concluded that there was little room for choice between communities except for the decisive factor of Easton's need for a competitive standard broadcast service that Allentown already had. Since only the Easton applicant proposed to originate programs in and for Easton, the Commission awarded the license to that applicant. 10 In reaching its conclusion to set aside the Commission's order awarding the license to Easton, the Court of Appeals found that the Commission's reversal of its Hearing Examiner was erroneous. That court analyzed the evidence before the Commission as to Easton's uncertainty on affiliating with radio networks to secure their programs for its listeners, the reluctance, evasiveness and lack of candor of Easton's principal witnesses and the concentration of local communications media in the hands of the Easton applicant who was the publisher of the only local newspaper, the licensee of one of two FM radio stations and of the only television station. The court agreed with the Examiner and overruled the Commission. None of the above circumstances are in themselves a bar to the Commission's grant of license. Each involves appraisals of testimony that put into a record facts derived from various witnesses by interrogation. There was substantial evidence considering the whole record that had to be weighed, pro and con, as to types of programs, evasiveness of witnesses, and the desirability of allocating an additional license to an applicant who already controlled other means of communication. 11 The Court of Appeals' conclusion of error as to evasiveness relies largely on its understanding that the Examiner's findings based on demeanor of a witness are not to be overruled by a Board without a "very substantial preponderance in the testimony as recorded", citing National Labor Relations Board v. Universal Camera Corp., 2 Cir., 190 F.2d 429, 430. We think this attitude goes too far. It seems to adopt for examiners of administrative agencies the 'clearly erroneous' rule of the Fed.Rules Civ.Proc. 52(a), 28 U.S.C.A., applicable to courts. In Universal Camera Corp. v. Labor Board, 340 U.S. 474, 492, 71 S.Ct. 456, 467, 95 L.Ed. 456, we said, as to the Labor Management Relations Act hearings: 12 '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.' 13 That comment is here applicable. See also § 8 of the Administrative Procedure Act, 60 Stat. 242, 5 U.S.C.A. § 1007. 14 The Federal Communications Act gives the Commission the power of ruling on facts and policies in the first instance. But its rulings are subject to review by the Courts of Appeals within the scope defined by Universal Camera Corp. v. Labor Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 and National Labor Relations Board v. Pittsburgh Steamship Co., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479. The correction of errors of law by a Court of Appeals on review of administrative agencies is committed to this Court through its certiorari jurisdiction. We have found such errors of law in the decision of the Court of Appeals. Therefore, the decision below cannot stand. But it is not our function to reinstate the determination of the Commission. That would make this Court the reviewing body of the ultimate determination of the Commission. The proper disposition is to remand the case to the Court of Appeals for reconsideration of the record but freed from rulings declared erroneous in this opinion. 15 Reversed. 16 Mr. Justice DOUGLAS dissents. 17 Mr. Justice BLACK took no part in the consideration or decision of this case. 1 'In considering applications for licenses, and modifications and renewals thereof, when and insofar as there is demand for the same, the Commission shall make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same.' 47 U.S.C. § 307(b), 47 U.S.C.A. § 307(b). 2 94 U.S.App.D.C. 353, 222 F.2d 781. 3 The court said: 'This 'choice of local service' principle is a gloss on § 307(b) of the Communications Act of 1934, supra. It was first applied by the Commission in Northwestern Ohio Broadcasting Corp., upon the crucial findings that the choice between the two communities was 'indeed a difficult one,' and that both applicants 'propose(d) to render meritorious program services designed to meet the needs of the respective communities * * *.' Since we affirmed on appeal because there was 'no error in the record,' our approval of the 'choice of local service' principle was limited to its application in circumstances of otherwise approximately equivalent community need and applicant ability to serve such need. Although in the present case the Commission purported to find such equivalence, we think there is no substantial evidence in the record as a whole—including the Hearing Examiner's Initial Decision—to support the essential underlying finding that the ability of the applicants to serve their respective communities was about equal. Hence, we hold the Commission's error is fatal to the order under review and requires that the case be remanded for reconsideration by the Commission.' 4 'This is not a case in which the Commission is called upon to consider the comparative qualifications of two or more applicants proposing to serve the same community; instead, it is a case in which one of the applicants proposes to serve Easton, Pennsylvania, and the other Allentown, Pennsylvania and neither would provide service to the other community. Under such circumstances, the primary determination to be made is that required by Section 307(b) of the Communications Act; namely, how best to distribute licenses among the several states and communities as 'to provide a fair, efficient and equitable distribution of radio service to each of the same.' In the present case, having determined that Easton, Pennsylvania with only one standard broadcast station was in substantially greater need of a second local facility than the Allentown community which already has four standard broadcast stations, we went on to consider, in accordance with the mandate of the Court of Appeals in the first Easton decision, which of the two applicants would best serve the needs of Easton, Pennsylvania and found that the Easton Publishing Company was such applicant.' 9 Pike & Fischer Radio Regulation 889. Not yet officially reported. 5 Newark Broadcasting Corp., 11 F.C.C. 1269, 1271; Northwestern Ohio Broadcasting Corp., 3 Pike & Fischer Radio Regulation 1945, affirmed Sky Way Broadcasting Corp. v. Federal Communications Commission, 85 U.S.App.D.C. 425, 176 F.2d 951; Newnan Broadcasting Co., 11 F.C.C. 1369; Lee-Smith Broadcasting Co., 12 F.C.C. 589; Finger Lakes Broadcasting System, 11 F.C.C. 528; WMAK, Inc., 11 F.C.C. 850; Southern Media Corp., 11 F.C.C. 688; Lake Huron Broadcasting Corp., 6 Pike & Fischer Radio Regulation 1185; and see Vermilion Broadcasting Corp., 7 Pike & Fischer, Radio Regulation 602(b).

78

349 U.S. 408 75 S.Ct. 804 99 L.Ed. 1183 Virgil G. CARROLL, Harry B. Hogan, Doing Business as Harry B. Hogan Painting Company, and Saint Paul-Mercury Indemnity Company, Petitioners,v.M. LANZA, Doing Business as Lake Charles Electric Company. No. 375. Argued March 31, 1955. Decided June 6, 1955. Mr. Shields M. Goodwin, Little Rock, Ark., for petitioners. Mr. Alston Jennings, Little Rock, Ark., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Carroll, the petitioner, was an employee of Hogan, an intervenor, who in turn was a subcontractor doing work for the respondent Lanza, the general contractor. Carroll and Hogan were residents of Missouri; and Carroll's employment contract with Hogan was made in Missouri. The work, however, was done in Arkansas; and it was there that the injury occurred. 2 Carroll, not aware that he had remedies under the Arkansas law, received 34 weekly payments for the injury under the Missouri Compensation Act. The Missouri Act is applicable to injuries received inside or outside the State where the employment contract, as here, is made in the State. Mo.Rev.Stat.1949, § 287.110, V.A.M.S. The Missouri Act also provides that every employer and employee shall be 'conclusively presumed to have elected to accept' its provisions unless 'prior to the accident' he shall have filed with the compensation commission a written notice that he 'elects' to reject the compensation provision. Id., § 287.060. No such notice, however, was filed in this case. Moreover, the Missouri Act provides that the rights and remedies granted by it 'shall exclude all other rights and remedies * * * at common law or otherwise,' on account of the injury or death.1 Id., § 287.120. 3 Arkansas also has provisions for workmen's compensation. Ark.Stat.1947, § 81—1301 et seq. It provides the exclusive remedy of the employee against the employer (id., § 81—1304) but not against a third party. Id., § 81—1340. And the court below, on review of Arkansas authorities, concluded that a general contractor, such as Lanza, the respondent, was a third party within the meaning of the Arkansas Act. And see Baldwin Co. v. Maner, Ark., 273 S.W.2d 28. 4 While Carroll was receiving weekly payments under the Missouri Act, he decided to sue Lanza for common-law damages in the Arkansas courts. Lanza had the case removed to the Federal District Court where judgment was rendered for Carroll.2 116 F.Supp. 491. The Court of Appeals, while agreeing with the District Court that the judgment was sustainable as a matter of Arkansas law, reversed on the ground that the Full Faith and Credit Clause of the Constitution3 (Art. IV, § 1) barred recovery. 216 F.2d 808. The case is here by petition for certiorari which we granted, 348 U.S. 870, 75 S.Ct. 113, because of doubts as to the correctness of the decision raised by Pacific Employers Insurance Co. v. Industrial Accident Commission, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940. 5 The Court of Appeals thought Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149, to be controlling. There the employee having received a final award for compensation in the forum of the injury returned to his home State and sued to recover under its Compensation Act. We held that the latter suit was precluded by the Full Faith and Credit Clause. But here there was no final award under the Missouri Act. Under that Act the statutory payments apparently start automatically on receipt of notice of the injury. Mo.Rev.Stat.1949, §§ 287.380, 287.400, V.A.M.S. While provision is made for an adjudication of disputes between an employee and his employer (id., §§ 287.400, 287.450), no adjudication was sought or obtained here. 6 Nor do we have a case where an employee, knowing of two remedies which purport to be mutually exclusive, chooses one as against the other and therefore is precluded a second choice by the law of the forum. Rather we have the naked question whether the Full Faith and Credit Clause makes Missouri's statute a bar to Arkansas' common-law remedy. 7 A statute is a 'public act' within the meaning of the Full Faith and Credit Clause. See Bradford Electric Light Co. v. Clapper, 286 U.S. 145, 154—155, 52 S.Ct. 571, 573—574, 76 L.Ed. 1026, and cases cited; Alaska Packers Ass'n v. Industrial Accident Commission, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044. It was indeed held in the Clapper case that a Vermont Compensation Act, which purported to give an exclusive remedy, barred a common-law action on the same claim in the New Hampshire courts by a Vermont employee against a Vermont employer, even though the injury occurred in New Hampshire. The Clapper case allowed a State to fix one exclusive remedy for personal injuries involving its residents, and required the other States to refuse to enforce any inconsistent remedy. Thus, as respects persons residing or businesses located in a State, a remedy was provided employees that was 'both expeditious and independent of proof of fault,' and a liability was imposed on employers that was 'limited and determinate.' 286 U.S. at page 159, 52 S.Ct. at page 576. 8 Pacific Employers Insurance Co. v. Industrial Accident Commission, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940, departed, however, from the Clapper decision. There a resident of Massachusetts regularly employed in Massachusetts by a Massachusetts corporation was injured while doing temporary duty in California. The Massachusetts Compensation Act purported to give an exclusive remedy, even for injuries incurred beyond its borders. But California also had a Compensation Act which undertook to fix liability on employers, irrespective of any contract, rule, or regulation, a provision which the California courts strictly enforced. The Court, therefore, held that the exclusive nature of the Massachusetts Act was 'obnoxious' to the policy of California. The Court proceeded on the premise, repeated over and again in the cases, that the Full Faith and Credit Clause does not require a State to substitute for its own statute, applicable to persons and events within it, the statute of another State reflecting a conflicting and opposed policy. Id., 306 U.S. 502, 59 S.Ct. 633. 9 The Pacific Employers Insurance Co. case allowed the Compensation Act of the place of the injury to override the Compensation Act of the home State. Here it is a common-law action that is asserted against the exclusiveness of the remedy of the home State; and that is seized on as marking a difference. That is not in our judgment a material difference. Whatever deprives the remedy of the home State of its exclusive character qualifies or contravenes the policy of that State and denies it full faith and credit, if full faith and credit is due. But the Pacific Employers Insurance Co. case teaches that in these personal injury cases the State where the injury occurs need not be a vassal to the home State and allow only that remedy which the home State has marked as the exclusive one. The State of the forum also has interests to serve and to protect. Here Arkansas has opened its courts to negligence suits against prime contractors, refusing to make relief by way of workmen's compensation the exclusive remedy. Baldwin Co. v. Maner, supra. Her interests are large and considerable and are to be weighed not only in the light of the facts of this case but by the kind of situation presented. For we write not only for this case and this day alone, but for this type of case. The State where the tort occurs certainly has a concern in the problems following in the wake of the injury. The problems of medical care and of possible dependents are among these, as Pacific Employers Insurance Co. v. Industrial Accident Commission, supra, emphasizes. Id., 306 U.S. 501, 59 S.Ct. 632. A State that legislates concerning them is exercising traditional powers of sovereignty. Cf. Watson v. Employers Liability Assur. Corp., 348 U.S. 66, 73, 75 S.Ct. 166, 170. Arkansas therefore has a legitimate interest in opening her courts to suits of this nature, even though in this case Carroll's injury may have cast no burden on her or on her institutions. 10 This is not a case like Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212, where the State of the forum seeks to exclude from its courts actions arising under a foreign statute. In that case, we held that Wisconsin could not refuse to entertain a wrongful death action under an Illinois statute for an injury occurring in Illinois, since we found no sufficient policy considerations to warrant such refusal. And see Broderick v. Rosner, 294 U.S. 629, 55 S.Ct. 589, 79 L.Ed. 1100. The present case is a much weaker one for application of the Full Faith and Credit Clause. Arkansas, the State of the forum, is not adopting any policy of hostility to the public Acts of Missouri. It is choosing to apply its own rule of law to give affirmative relief for an action arising within its borders. 11 Missouri can make her Compensation Act exclusive, if she chooses, and enforce it as she pleases within her borders. Once that policy is extended into other States, different considerations come into play. Arkansas can adopt Missouri's policy if she likes. Or, as the Pacific Employers Insurance Co. case teaches, she may supplement it or displace it with another, insofar as remedies for acts occurring within her boundaries are concerned. Were it otherwise, the State where the injury occurred would be powerless to provide any remedies or safeguards to nonresident employees working within its borders. We do not think the Full Faith and Credit Clause demands that subserviency from the State of the injury. 12 Reversed. 13 Mr. Justice FRANKFURTER, whom Mr. Justice BURTON and Mr. Justice HARLAN join, dissenting. 14 In order to place the problems presented by this case in the proper context for adjudication, it has seemed to me desirable to examine the course of the Court's decisions touching the constitutional requirement for giving full faith and credit to statutes of a sister State. The cases fall into three main groups:1 15 (1) Those in which the forum was called upon to give effect to a sister-state statute and declined to do so. Hancock National Bank v. Farnum, 176 U.S. 640, 20 S.Ct. 506, 44 L.Ed. 619; Atchison, Topeka & Santa Fe R. Co. v. Sowers, 213 U.S. 55, 29 S.Ct. 397, 53 L.Ed. 695; Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 34 S.Ct. 587, 58 L.Ed. 997; Clark v. Williard, 292 U.S. 112, 54 S.Ct. 615, 78 L.Ed. 1160; Broderick v. Rosner, 294 U.S. 629, 55 S.Ct. 589, 79 L.Ed. 1100; Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212; First National Bank of Chicago v. United Air Lines, Inc., 342 U.S. 396, 72 S.Ct. 421, 96 L.Ed. 441; Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211. 16 From these cases it appears that, the forum cannot, by statute or otherwise, refuse to enforce a sister-state statute giving a transitory cause of action, whether in contract or tort. E.g., Broderick v. Rosner, supra; Hughes v. Fetter, supra. Indeed, the forum may permissibly go a step in the other direction and disregard the venue provisions of an out-of-state statute which would have prevented the forum from enforcing the right. Tennessee Coal, Iron & R. Co. v. George, supra. The forum may, however, apply its own more restrictive statute of limitations to an outside wrongful death action, Wells v. Simonds Abrasive Co., supra, and dicta indicate that it may refuse to enforce a penal law, a law found antagonistic to the forum's public policy, or a law which requires specialized proceedings or remedies not available in the forum, see Broderick v. Rosner, 294 U.S. at pages 642—643, 55 S.Ct. at pages 592—593; Hughes v. Fetter, 341 U.S. at page 612, 71 S.Ct. at page 982. 17 (2) Those in which the forum applied its own statute rather than that of a sister State because the latter was not of limiting exclusiveness, or in which the forum applied the sister-state statute because the forum's was not exclusive. Bond v. Hume, 243 U.S. 15, 37 S.Ct. 366, 61 L.Ed. 565; State of Ohio v. Chattanooga Boiler & Tank Co., 289 U.S. 439, 53 S.Ct. 663, 77 L.Ed. 1307; Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140. See also Bonaparte v. Tax Court, 104 U.S. 592, 26 L.Ed. 845; American Fire Insurance Co. v. King Lumber & Mfg. Co., 250 U.S. 2, 39 S.Ct. 431, 63 L.Ed. 810. 18 These cases prove that where the statute of either the forum or the outside State is not found to be exclusive regarding remedies or rights elsewhere, the statute need not be accorded exclusive effect. Further, the Court has stated that, in the area of workmen's compensation, 'unmistakable language' is required before exclusiveness will be attributed. See Industrial Commission of Wisconsin v. McCartin, 330 U.S. at page 628, 67 S.Ct. at page 889. 19 (3) Those in which the forum applied its own substantive law, statutory or judicial, when clearly in conflict with the out-of-state statute. National Mutual Building & Loan Association v. Brahan, 193 U.S. 635, 24 S.Ct. 532, 48 L.Ed. 823; Olmsted v. Olmsted, 216 U.S. 386, 30 S.Ct. 292, 54 L.Ed. 530; Converse v. Hamilton, 224 U.S. 243, 32 S.Ct. 415, 56 L.Ed. 749; New York Life Insurance Co. v. Head, 234 U.S. 149, 34 S.Ct. 879, 58 L.Ed. 1259; Supreme Council of Royal Arcanum v. Green, 237 U.S. 531, 35 S.Ct. 724, 59 L.Ed. 1089; Hood v. McGehee, 237 U.S. 611, 35 S.Ct. 718, 59 L.Ed. 1144; Marin v. Augedahl, 247 U.S. 142, 38 S.Ct. 452, 62 L.Ed. 1038; Aetna Life Insurance Co. v. Dunken, 266 U.S. 389, 45 S.Ct. 129, 69 L.Ed. 342; Modern Woodmen of America v. Mixer, 267 U.S. 544, 45 S.Ct. 389, 69 L.Ed. 783; Bradford Electric Light Co. v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026; Alaska Packers Association v. Industrial Accident Commission, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044; Chandler v. Peketz, 297 U.S. 609, 56 S.Ct. 602, 80 L.Ed. 881; John Hancock Mutual Life Insurance Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106; Sovereign Camp of Woodmen of the World v. Bolin, 305 U.S. 66, 59 S.Ct. 35, 83 L.Ed. 45; Pacific Employers Insurance Co. v. Industrial Accident Commission, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940; Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481; Pink v. A.A.A. Highway Express, Inc., 314 U.S. 201, 62 S.Ct. 241, 86 L.Ed. 152; State Farm Mutual Automobile Insurance Co. v. Duel, 324 U.S. 154, 65 S.Ct. 573, 89 L.Ed. 812; Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028; Order of United Commercial Travelers of America v. Wolfe, 331 U.S. 586, 67 S.Ct. 1355, 91 L.Ed. 1687. 20 These cases have arisen in three principal fields: (a) commercial law; (b) insurance; and (c) workmen's compensation. As a statistical matter, in 21 cases of direct conflict the Court held for the forum 10 times and for the sister State 11 times. 21 (a) In commercial law a number of cases have involved statutory assessment against out-of-state shareholders under the laws of the State of incorporation of an insolvent corporation. The Court's consistent position has been that the law of the incorporating State must be given effect by the forum. E.g., Converse v. Hamilton, supra. That law is deemed to create a transitory cause of action based on the contractual relation between the corporation and the shareholder by which the shareholder is held to have consented to reasonable state regulation. The Court has relied on the fact that in each case a judicial proceeding in the incorporating State had previously passed upon the necessity and amount of the assessment, and that, although shareholders in the forum were not parties to such a proceeding, their interest was adequately represented by other shareholders. Personal defenses, such as the nonexistence of the shareholder relation, may still be asserted. Cf. Pink v. A.A.A. Highway Express, Inc., 31j U.S. at page 208, 62 S.Ct. at page 245. 22 When the commercial context is not that of shareholder-corporation but simple contract, the Court has found less need for uniformity and accordingly has given greater leeway to the forum on a showing of substantial interest in the contract, e.g., that one of the parties is a resident of the forum or that the contract is to be performed within its borders. The Court has spoken of the presumed acceptance of the forum's laws by a corporation doing business in the forum. National Mutual Building & Loan Association v. Brahan, supra. In other cases the argument has been narrower, for instance that the forum can control an incidental item of damages such as interest. Klaxon Co. v. Stentor Elec. Mfg. Co., supra. Occasionally reliance has rested on ordinary conflict of laws doctrine. See Olmsted v. Olmsted, supra (holding that the forum can exclusively control disposition of land within its borders). 23 (b) The insurance cases reflect considerations similar to those in the commercial cases. The Court has found in fraternal benefit societies an 'indivisible unity' among the members and a resultant need for uniform construction of rights and duties in the common fund. E.g., Order of United Commercial Travelers of America v. Wolfe, supra. Hence the law of the society's home State (and bylaws adopted under it) has prevailed. The Court has been able to draw support from decisions of the home State validating either the practice under question or one similar to it. (The cases have involved increase of dues, presumption of death from long absence, ultra vires certificates, and time limitation on bringing suit.) In an analogous situation, the forum has prevailed on the question whether an individual is in fact an assessable member of a mutual insurance company (rather than a mere policy-holder), on the ground that the interpretation and legal effect of the contract is peculiarly within the competence and sphere of interest of the forum. Pink v. A.A.A. Highway Express, Inc., supra. 24 As to ordinary insurance contracts, the forum has had a much wider scope. The Court has balanced the interests of the competing jurisdictions, including factors such as the residence of the insured, where premiums were paid or payable, where the policy was applied for and delivered, where the insured died, what law the policy itself provided should govern, and whether loan agreements and new policies were ancillary to the initial policy. The forum has been permitted to protect its residents against insurance companies, but the Court has required the forum to have more than a casual interest. It has not been sufficient, for example, that the forum was the State of initial issue of the policy on which a defaulted loan was obtained, New York Life Insurance Co. v. Head, supra, or the place of issue of a converted policy and the residence at death of the insured, Aetna Life Insurance Co. v. Dunken, supra, or the place where suit has been brought, John Hancock Mutual Life Insurance Co. v. Yates, supra. On the other hand, the forum would succeed if it asserted a strong local policy requiring an insurable interest, see Griffin v. McCoach, supra, or a reserve requirement more stringent than that of the State of incorporation, State Farm Mutual Automobile Insurance Co. v. Duel, supra. 25 (c) In workmen's compensation cases the Court has likewise adopted an interests-weighing approach. The relevant considerations have been: the place of the employment contract; the residence of the parties; the place of injury; the possibility of the workman becoming a public charge in the State seeking to award compensation, see Alaska Packers Association v. Industrial Accident Commission, supra; the interest of a State in securing prompt payment of medical fees to its residents, see Pacific Employers Insurance Co. v. Industrial Accident Commission, supra; the aspect of exclusiveness of the foreign statute, see Industrial Commission of Wisconsin v. McCartin, supra; the State's interest in the bodily safety and economic protection of workers within it; the difference between a defense (which if rejected results in irremediable liability) and a cause of action (which if not allowed in one State can be pursued in another), see Bradford Electric Light Co. v. Clapper, supra; the amount of work to be performed in a State, see Cardillo v. Liberty Mut. Ins. Co., supra; and the policy of determinate liability and prompt remedy underlying workmen's compensation acts. The Court first enunciated the rule that the forum must permit a defense based on the exclusiveness of the sister-state statute where the only contact of the forum was that it was the place of injury. Bradford Electric Light Co. v. Clapper, supra. Conversely, the Court held that the place of contract could award compensation though the injury occurred elsewhere. Alaska Packers Association v. Industrial Accident Commission, supra. Subsequently, the Court held that the forum could prevail, even though the parties resided and the contract was entered in another State whose statute was exclusive, if the injury occurred in the forum and enforcement of the defense of the outside statute was deemed 'obnoxious' to the forum's policy. Pacific Employers Insurance Co. v. Industrial Accident Commission, supra. 26 In applying to the immediate situation the fair guidance offered by the past decisions of the Court regarding full faith and credit, a number of considerations become apparent:2 (1) Unlike the other workmen's compensation cases—or, for that matter, any of the cases in which the forum has prevailed in a conflict between the forum and the outside law—the interest of the forum here is solely dependent on the occurrence of the injury within its borders. No rights of Arkansas residents are involved, since none of the parties is an Arkansan; the workman was removed immediately to a Missouri hospital and has, so far as appears, remained in Missouri. What might be regarded as the societal interest of Arkansas in the protection of the bodily safety of workers within its borders is an interest equally true of any jurisdiction where a workman is injured and exactly the sort of interest which New Hampshire had in Clapper. (2) Thus, the Court is squarely faced with the Clapper problem.3 To make the interest of Arkansas prevail over the interest of Missouri on the basis of the Full Faith and Credit Clause would require that Clapper be explcitly overruled and that, in the area of workmen's compensation law, the place of injury be decisive. And if Clapper is to be overruled, on which I and those who join me express no opinion, it should be done with reasons making manifest why Mr. Justice Brandeis' long-matured, weighty opinion in that case was ill-founded. It should not be cast aside on the presupposition that full faith and credit need not be given to a sister-state workmen's compensation statute if the law of the forum happens to be more favorable to the claimant. (3) Furthermore, the new provision of 28 U.S.C. § 1738, 28 U.S.C.A. § 1738, cannot be disregarded. In 1948 Congress for the first time dealt with the full faith and credit effect to be given statutes.4 The absence of such a provision was used by Mr. Justice Stone to buttress the Court's opinions both in Alaska Packers, 294 U.S. at page 547, 55 S.Ct. at page 523, and Pacific Employers, 306 U.S. at page 502, 59 S.Ct. at page 633. Hence, if § 1738 has any effect, it would seem to tend toward respecting Missouri's legislation. See Reese, Full Faith and Credit to Statutes: The Defense of Public Policy, 19 U. of Chi.L.Rev. 339, 343 et seq. 27 There is, however, a readily available alternative short of overruling Clapper, which dispenses with the difficulties inherent in applying the Full Faith and Credit Clause. This alternative proceeds along the following lines: 28 Missouri's workmen's compensation statute is in terms applicable and exclusive as to workmen injured outside the State under Missouri employment contracts.5 Hogan (the subcontractor here) was a Missouri employer and had a Missouri employment contract with Carroll (the injured workman). Thus when Carroll sought workmen's compensation in Arkansas (where he was hurt), Hogan and his insurer could have relied on the Missouri statute and the Clapper case as a defense. They did not, presumably since Arkansas workmen's compensation cost them no more than Missouri's and they had an opportunity to recoup from the prime contractor as a third party under Arkansas law.6 29 But Lanza (the prime contractor) was not a Missouri employer, nor does the record disclose that he had a Missouri employment contract either with Hogan or Carroll. The basic contract between Lanza and Hogan was on a Louisiana letterhead and is a contract for work apparently to be performed exclusively in Arkansas. Hogan promised to furnish workmen and 'It is further understood that * * * Hogan * * * will carry the necessary insurance on his men in according (sic) with the rules of the state of Arkansas.' The supplemental contract for the particular work on which Carroll was injured consisted of a letter bid by Hogan to Lanza and a letter reply authorizing Hogan to proceed. From the point of view of choice of law, the various aspects of the contract combine to make it governed either by Arkansas or Louisiana—but not Missouri—law. Cf. Johnson v. Great Lakes Pipe Line Co., 358 Mo. 445, 215 S.W.2d 460. 30 The Missouri workmen's compensation statute provides that 'Where a third person is liable to the employee * * * for the injury or death, the employer shall be subrogated * * * and the recovery by such employer shall not be limited to the amount payable as compensation to such employee * * *.' Mo.Rev.Stat.1949, § 287.150, V.A.M.S. The Missouri Supreme Court has read this provision as allowing a common-law action by a worker against a negligent third party, e.g., Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, on the theory that the worker may secure common-law recovery against anyone "upon whom no liability could be entailed under the act", 360 Mo. at page 1246, 232 S.W.2d at page 918. 31 But the Missouri Supreme Court has held that a prime contractor is not liable as a third party for his negligence to an employee of a subcontractor. Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153; see also New Amsterdam Casualty Co. v. Boaz-Kiel Construction Co., 8 Cir., 115 F.2d 950. And this because prime contractors are subject to liability under the workmen's compensation statute, which states: 'Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer * * *. (T)he immediate contractor * * * shall be liable as an employer of the employees of his subcontractors. * * * No such employer shall be liable * * * if the employee was insured by his immediate or any intermediate employer.' Mo.Rev.Stat.1949, § 287.040, V.A.M.S. 32 The rationale of the Missouri decisions prohibiting a negligence action against a prime contractor is this: a person clearly subject to statutory liability cannot be sued as a third party. Cf. Schumacher v. Leslie, 360 Mo. 1238, 1247, 232 S.W.2d 913. But the Missouri rule has only been applied in cases where three preconditions were present: (a) all parties were subject to the Missouri workmen's compensation act; (b) the prime and subcontractor were doing business in Missouri; and (c) the injury took place on a project in Missouri. 33 Under the circumstances of the case before us, there is no basis for finding that Missouri would deem Lanza to be a Missouri employer and as such subject to liability for Missouri workmen's compensation. His contract had no Missouri ties other than the bare fact that the subcontractor was a Missouri resident.7 And there is no indication that Lanza has ever done business in Missouri. Furthermore, Missouri requires that a defendant in a negligence suit who relies on the exclusiveness of the workmen's compensation statute must plead and prove as an affirmative defense that the parties are subject to it, Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330; a burden which Lanza certainly has not met. See State ex rel. St. Louis Car Co. v. Hostetter, 345 Mo. 102, 131 S.W.2d 558. Thus there is no warrant for believing that the Missouri courts would refuse to allow suit against him as an ordinary third party. Presumably, then, Carroll could sue Lanza under either Missouri or Arkansas law for his negligence. Accordingly, the constitutional question presented should not be passed on. 34 But we ought not to rest on the initial determination of Missouri law here. In a number of the full faith and credit cases this Court has remanded for further consideration of state law. E.g., Klaxon Co. v. Stentor Elec. Mfg. Co., supra; Griffin v. McCoach, supra; Clark v. Williard, supra. Hence, I would remand this case to the Court of Appeals with instructions to determine whether our reading of Missouri law is wrong. 1 The Missouri Supreme Court has construed the Missouri Compensation Act as providing the exclusive remedy, even when, as here, the employee of the subcontractor sues the general contractor for common-law damages. Bunner v. Patti, 343 Mo. 274, 283, 121 S.W.2d 153. The touchstone seems to be the existence of a Missouri employment contract, such as exists in the present case, wherever the injury may have occurred. We can find no suggestion in the Missouri cases that the Missouri Compensation Act is not the exclusive remedy against the prime contractor when his contract with the subcontractor is made outside Missouri. No such suggestion is made by any of the parties to this litigation. 2 Hogan and his Indemnity Company, intervenors, were granted a lien on the judgment in favor of Carroll for the amounts paid to Carroll as compensation. 3 Article IV, § 1 of the Constitution provides: 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.' 1 Two other groups of cases do not here concern us: those holding that a full faith and credit contention must be properly raised in the lower courts, see Chicago & Alton Railroad Co. v. Wiggins Ferry Co., 119 U.S. 615, 7 S.Ct. 398, 30 L.Ed. 519, and those holding that a mere misconstruction by the forum of the laws of a sister State is not a violation of the Full Faith and Credit Clause, see, e.g., Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93, 37 S.Ct. 344, 61 L.Ed. 610. 2 Stated shortly, the facts of this case are: Carroll, a Missourian, entered into a Missouri employment contract with Hogan, who operated a Missouri painting company. Hogan in turn contracted with Lanza, a Louisiana electrical contractor, to do painting on a federal project in Arkansas for which Lanza had a government contract. While on the job in Arkansas, Carroll was injured. Hogan's insurer voluntarily began to pay workmen's compensation to Carroll pursuant to Missouri law, though no formal proceedings or award were had. Thereafter, Carroll brought suit against Lanza in an Arkansas state court, alleging that his injury was caused by the negligence of Lanza's employees. Since there was diversity of citizenship, Lanza removed the case to federal court. He then moved for summary judgment, claiming that the Missouri workmen's compensation law, to which Carroll was subject, afforded an exclusive remedy. The court rejected this contention and rendered an $18,000 judgment for Carroll. 116 F.Supp. 491. The Court of Appeals for the Eighth Circuit, relying on Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149, reversed on the ground that full faith and credit required Arkansas to give effect to what the court treated as a final and exclusive award in the payments received under the Missouri statute. 216 F.2d 808. This dissent agrees with the Court that the Court of Appeals misapplied Magnolia to the facts of this case. 3 Concededly the Pacific Employers case narrowed what was said in Clapper. The Court there found the conjunction of four factors decisive in upholding the California Supreme Court's determination that the Massachusetts statute was 'obnoxious' to the public policy of California: (1) medical services were rendered in California and directly reimbursable from the California award; if California could not make an award, its residents would be remitted to Massachusetts and Massachusetts remedies to recover for their services; (2) bodily safety and economic protection of workers within its boundaries is a relevant interest of the forum; (3) the California statute provided: 'No contract, rule, or regulation shall exempt the employer from liability * * *' Gen.Laws Cal.1931, Act 4749, § 27(a); (4) Congress had not yet passed legislation prescribing the full faith and credit affect to be given to statutes. The distinctions between that case and the one now at bar are to be noted. Of course we are not deciding this case as an isolated instance. But we are passing on the elements of this situation and not of some other situation. The decision here will govern other cases of the same type. The circumstances of this case define the content of the type. That is the essence of the theory of balancing the societal interests of the forum State against those of a sister State. It is that which lies behind the statement that 'the full faith and credit clause is not an inexorable and unqualified command', Pink v. A.A.A. Highway Express, Inc., 314 U.S. 201, 210, 62 S.Ct. 241, 246. But this does not mean that it is no command—that each State is at large to apply its own laws in disregard of greater interests of a sister State. 4 The first two paragraphs of the section deal with the problem of authentication. The third paragraph provides: 'Such Acts, records and judicial proceedings * * * shall have the same full faith and credit in every court within the United States * * * as they have by law or usage in the courts of such State * * * from which they are taken.' (Italics supplied.) Prior to 1948 the quoted sentence did not include 'Such Acts.' Instead, it began: 'And the said records and judicial proceedings, * * *.' (Italics supplied.) 5 'Every employer and every employee, except as in this chapter otherwise provided, shall be conclusively presumed to have elected to accept the provisions of this chapter * * * unless prior to the accident he shall have filed with the commission a written notice that he elects to reject this chapter.' Mo.Laws 1953, p. 535, § 1. 'This chapter shall apply to * * * all injuries received outside of this state under contract of employment made in this state, unless the contract of employment in any case shall otherwise provide.' Mo.Rev.Stat.1949, § 287.110, V.A.M.S. 'The rights and remedies herein granted to an employee, shall exclude all other rights and remedies of such employee * * * at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.' Mo.Rev.Stat.1949, § 287.120, V.A.M.S. 6 Hogan was covered by his insurer both in Missouri and Arkansas. The insurer initially paid Carroll $30 a week, the maximum under the Missouri workmen's compensation law. When Carroll sought to transfer to Arkansas compensation, the insurer began to pay him $25 a week, the maximum under the Arkansas statute. Arkansas law allows an injured workman to sue a prime contractor for negligence, see Baldwin Co. v. Maner, Ark., 273 S.W.2d 28; Anderson v. Sanderson & Porter, 8 Cir., 146 F.2d 58, and his immediate employer and the insurer of his immediate employer have a statutory lien on two-thirds of any recovery, Ark.Stat.Ann. § 81—1340. 7 Nor is there any hint that Lanza was attempting to evade statutory responsibility to Carroll by setting up a financially irresponsible subcontractor, an evasion which has been called the 'prime purpose' of the statutory provision as to prime contractors. Wors v. Tarlton, 234 Mo.App. 1173, 1186, 95 S.W.2d 1199, writ of certiorari quashed State ex rel. Wors v. Hostetter, 343 Mo. 945, 124 S.W.2d 1072.

910

349 U.S. 458 75 S.Ct. 850 99 L.Ed. 1231 James R. ELLIS, as President of the Yonkers Committee for Peace, an Unincorporated Association, Petitioner,v.William DIXON et al., as Members of the Board of Education of the City of Yonkers, etc. No. 20. Reargued April 20, 1955. Decided June 6, 1955. Mr. Emanuel Redfield, New York City, for petitioner. Mr. J. Raymond Hannon, Yonkers, N.Y., for respondent. Mr. Daniel T. Scannell, New York City, for City of New York, amicus curiae. Mr. Justice HARLAN delivered the opinion of the Court. 1 Upon reargument the Court has come to the conclusion that the writ of certiorari1 should be dismissed as improvidently granted. 2 The New York Court of Appeals denied petitioner's motion for leave to appeal without stating any ground for its decision. 306 N.Y. 981, 115 N.E.2d 437. In these circumstances we must ascertain whether that court's decision 'might' have rested on a nonfederal ground, for if it did we must decline to take jurisdiction. Stembridge v. State of Georgia, 1952, 343 U.S. 541, 547, 72 S.Ct. 834, 837, 96 L.Ed. 1130; see also Lynch v. People of New York ex rel. Pierson, 1934, 293 U.S. 52, 54, 55 S.Ct. 16, 17, 79 L.Ed. 191. We approach the matter first by considering what the petitioner has alleged as a basis for the constitutional issues which he asks us to review on the merits. 3 The constitutional questions involved are whether respondents, members of the Yonkers Board of Education, in refusing the use of any of the Yonkers public school buildings to the Yonkers Committee for Peace for a forum on 'peace and war,' discriminated against the Committee, so as to deprive the Committee's members of their rights of freedom of speech, assembly, and equal protection of the laws, under the First and Fourteenth Amendments. 4 Petitioner concedes that a State may withhold its school facilities altogether from use by nonscholastic groups. It is implicit in this concession that petitioner also recognizes that a State may make reasonable classifications in determining the extent to which its schools shall be available for nonscholastic uses, and petitioner has not attacked on this score the classifications made by the applicable New York statute and respondents' regulations.2 The question of whether the regulations are unconstitutionally vague was not raised below, and hence is not open here. Therefore the burden of petitioner's grievance would seem to be that respondents have applied the statute and regulations to similar groups differently than they have to the Committee for Peace. Any yet petitioner has failed to allege in his pleading, which upon respondents' motion was dismissed prior to answer, that other organizations of a similar character to the Committee for Peace have been allowed use of the Yonkers schools. The allegations of that pleading simply are that unnamed and undescribed 'organizations' have been allowed to use Yonkers school buildings in the past 'for the purpose of public assembly and discussion.'3 Whether such organizations are in any way comparable to the Committee for Peace nowhere appears in the pleading.4 And what the practice of the Board of Education has been in permitting the nonscholastic use of school buildings is not shown. 5 What has been alleged is entirely too amorphous to permit adjudication of the constitutional issues asserted. And we think the most reasonable inference from this record is that the Court of Appeals' denial of petitioner's motion for leave to appeal went on that ground, rather than on the ground, suggested on behalf of respondents, that in proceeding by way of leave to appeal rather than by an appeal as of right the petitioner had followed the wrong appellate route.5 This conclusion is fortified by two additional circumstances. If the Court of Appeals had considered the constitutional issues adequately presented, it presumably would have saved petitioner's right to appeal as of right by putting its denial of leave to appeal on the ground that an appeal lay as of right. See N.Y. Civil Practice Act, § 592(5)(a).6 Otherwise we would have to assume that the Court of Appeals desired to thwart review of the constitutional questions, an assumption wholly unjustified by this record. Furthermore, the decision of New York's intermediate appellate court against the petitioner was because of the insufficiency of his pleading.7 6 If the insuficiency of petitioner's pleading was the reason for the Court of Appeals' denial of leave to appeal, the past decisions of this Court still leave room for argument as to whether we should dismiss for lack of jurisdiction because the state court's decision rested on an adequate nonfederal ground. It is established law that this Court is not finally concluded by the state court's determination as to the sufficiency of pleadings asserting a federal right. Some of the cases seem to suggest that the scope of our review is limited to determining whether the state court has by-passed the federal right under forms of local procedure, from which it would seem to follow that if we find that such is not the case we should dismiss for want of jurisdiction. Cf. American Railway Express Co. v. Levee, 1923, 263 U.S. 19, 21, 44 S.Ct. 11, 12, 68 L.Ed. 140; Davis v. Wechsler, 1923, 263 U.S. 22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143. There can be no suggestion of by-passing in this instance. Other cases, however, indicate that we should accept jurisdiction and decide the sufficiency of the pleadings de novo for ourselves. See Boyd v. State of Nebraska ex rel. Thayer, 1892, 143 U.S. 135, 180, 12 S.Ct. 375, 388, 36 L.Ed. 103; Carter v. State of Texas, 1900, 177 U.S. 442, 447, 20 S.Ct. 687, 689, 44 L.Ed. 839; First National Bank of Guthrie Center v. Anderson, 1926, 269 U.S. 341, 346, 46 S.Ct. 135, 137, 70 L.Ed. 295. Brown v. Western Railway of Alabama, 1949, 338 U.S. 294, 296, 70 S.Ct. 105, 106, 94 L.Ed. 100. In the present case, the route which we travel would make no difference in the result. Even if we were to look at the matter ourselves de novo, we could not on this vague and empty record decide the constitutional issues sought to be presented. This Court has often refused to decide constitutional questions on an inadequate record. See, e.g., International Brotherhood of Teamsters v. Denver Milk Producers, Inc., 1948, 334 U.S. 809, 68 S.Ct. 1015, 92 L.Ed. 1741; Rescue Army v. Municipal Court, 1947, 331 U.S. 549, 575—585, 67 S.Ct. 1409, 1423—1427, 91 L.Ed. 1666; Aircraft & Diesel Equipment Corp. v. Hirsch, 1947, 331 U.S. 752, 762—763, 67 S.Ct. 1493, 1498, 91 L.Ed. 1796; Alabama State Federation of Labor v. McAdory, 1945, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725. In the circumstances of this case, we prefer to rest our decision on the ground that we lack jurisdiction. For if we could not ourselves decide on this record the constitutional issues tendered, we consider that by the same token the New York Court of Appeals was entirely justified in refusing to pass on them, and that we should therefore regard its denial of leave to appeal as resting on an adequate nonfederal ground. See Vandalia R. Co. v. State of Indiana ex rel. South Bend, 1907, 207 U.S. 359, 28 S.Ct. 130, 52 L.Ed. 246; Brinkmeier v. Missouri P.R. Co., 1912, 224 U.S. 268, 32 S.Ct. 412, 56 L.Ed. 758. 7 We conclude that the writ of certiorari must be dismissed as improvidently granted. 8 Dismissed. 9 The CHIEF JUSTICE, Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice CLARK dissent, believing that the allegations of the petition are sufficient to state a case of discrimination under the Equal Protection Clause. 1 Certiorari was granted. 347 U.S. 926, 74 S.Ct. 530, 98 L.Ed. 1079. The case was set for reargument both on the merits and as to the jurisdiction of this Court, 348 U.S. 881, 75 S.Ct. 122. 2 The state statute, insofar as applicable here, allows each board of education to adopt reasonable regulations for the use of school property, when not in use for school purposes, for any of the following purposes: 'For holding social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community * * *,' 'For meetings, entertainments and occasions where admission fees are charged, when the proceeds thereof are to be expended for an educational or charitable purpose * * *' and 'For civic forums and community centers. * * *' N.Y. Education Law, McK.Consol.Laws, c. 16, § 414(3), (4), (6). It is not clear whether this last use is restricted by subsequent language in the section so as to permit only such forums as are established by the board of education. The regulations adopted by respondents do not enlarge upon these classifications in the statute. 3 After reciting the respondents' refusal to permit the Committee for Peace to use any of the Yonkers school buildings on two occasions in 1952, the petition goes on to allege: '14. That pursuant to Section 414 of the Education Law of the State of New York, the respondents, and/or their predecessors, as members of the Board of Education of the City of Yonkers, adopted regulations for the use of the schoolhouses, grounds or other property when not in use for school purposes in Yonkers, New York, whereby organizations at all times herein mentioned were and are permitted the use of the school buildings when not in use. '15. That at all times herein mentioned and at all times since the adoption of the aforesaid regulations, the school buildings, grounds and property of and in the City of Yonkers have on numerous occasions (whose number are best known to respondents and at such numerous times and occasions that the practice is an accepted practice) been permitted to be used pursuant of Section 414 of the Education Law by organizations for the purpose of public assembly and discussion. '16. That at no time herein mentioned did the respondents inform petitioner of the reason for the denial of his application, nor did they ask petitioner or his organization of fulfill any further requirements or conditions for permission to use by them of a school building in Yonkers, New York, for purposes of public assembly or discussion. '17. That by reason of the action of the respondents in failing to give a reason for its action whereas permission is freely granted to others applying, it is evident that the respondents are concealing a design to discriminate against petitioner and his said organization, for which discrimination there is no foundation in law or fact, and that the acts of respondents are arbitrary and unreasonable. '18. The action of respondents violates the right of petitioner and the constituent members of his organization of freedom of speech and assembly guaranteed by the Constitution of the United States and denies them the equal protection of the laws in violation of the Constitution of the United States.' 4 It may be noted that in an affidavit in support of the motion for leave to appeal to the Court of Appeals, petitioner's attorney sought to remedy this vital defect by including the assertion, 'that other organizations similar to petitioner's have obtained similar use' of the schools from the Yonkers Board of Education. But it does not appear that petitioner ever sought to amend his pleading in these respects. 5 New York has two methods of appeal to the Court of Appeals an appeal as of right and by leave to appeal. An appeal as to right lies, inter alia, where there is 'directly involved the construction of the constitution of the state or of the United States * * *.' N.Y.Const. Art. VI, § 7(1); N.Y.Civ.Prac.Act, § 588(1)(a). In all cases in which an appeal does not lie as of right, appeal is by leave of the Appellate Division or the Court of Appeals. N.Y.Const. Art. VI, § 7(6); N.Y.Civ.Prac.Act, § 589. Had wrong appellate procedure been the reason for the Court of Appeals' denial of leave to appeal, its decision would have rested on an adequate nonfederal ground, depriving this Court of jurisdiction. Cf. Parker v. People of State of Illinois, 1948, 333 U.S. 571, 68 S.Ct. 708, 92 L.Ed. 886; Central Union Telephone Co. v. City of Edwardsville, 1925, 269 U.S. 190, 46 S.Ct. 90, 70 L.Ed. 229. 6 This section provides that when leave to appeal is denied 'upon the ground that the appeal would lie as of right', the appellant is automatically entitled to an additional 30 days after the denial to file an appeal as of right. The Court of Appeals has thus stated its ground of denial in many instances where leave to appeal was denied because an appeal lay as of right. See, e.g., In re Arbitration between E. Milius & Co. and Regal Shirt Corp., 1953, 305 N.Y. 562, 111 N.E.2d 438; In re Brinn, 1953, 305 N.Y. 626, 111 N.E.2d 738; Wuttke v. O'Connor, 1953, 305 N.Y. 694, 112 N.E.2d 777; Hecht v. Monaghan, 1953, 305 N.Y. 800, 113 N.E.2d 553; Auten v. Auten, 1954, 306 N.Y. 752, 118 N.E.2d 110. 7 In affirming the judgment of the court of first instance, the Appellate Division of the Supreme Court, Second Department, stated: 'The proceeding was properly before the court. However, the petition does not allege facts which establish a clear legal right to the relief sought nor which establishes that respondents failed to perform a duty enjoined by law.' 281 App.Div. 987, 120 N.Y.S.2d 854, 855.

89

349 U.S. 331 75 S.Ct. 790 99 L.Ed. 1129 John P. PETERS, Petitioner,v.Oveta Culp HOBBY et al. No. 376. Argued April 19, 1955. [DLQ!]] Decided June 6, 1955. [Syllabus from pages 331-332 intentionally omitted] Messrs. Thurman Arnold, Paul A. Porter, Washington, D.C., for petitioner. Mr. Warren E. Burger, Asst. Atty. Gen., for respondent. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 This action was instituted by petitioner in the District Court for the District of Columbia. The principal relief sought is a declaration that petitioner's removal and debarment from federal employment were invalid. Prior to trial, the District Court granted the respondents' motion for judgment on the pleadings. The judgment was affirmed, one judge dissenting, by the Court of Appeals for the District of Columbia Circuit, relying on its decision in Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, sustained here by an equally divided vote, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352. We granted certiorari, 348 U.S. 882, 75 S.Ct. 124, because the case appeared to present the same constitutional question left unresolved by this Court's action in Bailey v. Richardson, supra. I. 2 The basic facts are undisputed. Petitioner is a professor of medicine, specializing in the study of metabolism, at Yale University. For several years prior to 1953, because of his eminence in the field of medical science, he was employed as a Special Consultant in the United States Public Health Service of the Federal Security Agency. On April 10, 1953, the functions of the Federal Security Agency were transferred to the Department of Health, Education, and Welfare, headed by respondent Hobby. Petitioner's duties required his presence in Washington from four to ten days each year, when called upon by the Surgeon General, to render advice concerning proposals to grant federal assistance to various medical research institutions. This work was not of a confidential or sensitive character and did not entail access to classified material. Petitioner was compensated at a specified per diem rate for days actually worked. At the time of his removal, petitioner was employed under an appointment expiring on December 31, 1953. 3 On March 21, 1947, Executive Order 9835 was issued by the President.1 It provided that the head of each department and agency in the Executive Branch of the Government 'shall be personally responsible for an effective program to assure that disloyal civilian officers or employees are not retained in employment in his department or agency.' Toward that end, the Order directed the establishment within each department or agency of one or more loyalty boards 'for the purpose of hearing loyalty cases arising within such department or agency and making recommendations with respect to the removal of any officer or employee * * * on grounds relating to loyalty * * *.' The order also provided for the establishment of a central Loyalty Review Board in the Civil Service Commission. The Board, in addition to various supervisory functions, was authorized 'to review cases involving persons recommended for dismissal * * * by the loyalty board of any department or agency * * *.' The standard for removal prescribed by the Order was whether, 'on all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States.' This standard was amended on April 28, 1951.2 As amended, the standard to be applied was whether, "on all the evidence, there is a reasonable doubt as to the loyalty of the person involved to the Government of the United States." 4 In January 1949, Joseph E. McElvain, Chairman of the Board of Inquiry on Employee Loyalty of the Federal Security Agency, notified petitioner that derogatory information relating to his loyalty had been received. Accompanying McElvain's letter was a detailed interrogatory relating to petitioner's associations and affiliations. Petitioner promptly completed the form and returned it. Shortly thereafter, McElvain advised petitioner that the Agency Board had determined that no reasonable grounds existed for belief that petitioner was disloyal. 5 In May 1951, following the amendment of the removal standard prescribed by Executive Order 9835, the Executive Seccretary of the Loyalty Review Board advised McElvain that petitioner's case should be reopened and readjudicated pursuant to the amended standard. Three months later, the Acting Chairman of the Loyalty Review Board informed McElvain that a panel of the Loyalty Review Board had considered petitioner's case and had recommended that it be remanded to the Agency Board for a hearing. Acting on the Loyalty Review Board's recommendation, McElvain sent petitioner a letter of charges. Sixteen charges were specified, relating to alleged membership in the Communist Party, sponsorship of certain petitions, affiliation with various organizations, and alleged association with Communists and Communist sympathizers. In his reply, made under oath, petitioner denied that he had ever been a member of the Communist Party and set forth information concerning the other charges. 6 On April 1 and 2, 1952, the Agency Board conducted a hearing on petitioner's case in New Haven, Connecticut. The sources of the information as to the facts bearing on the charges were not identified or made available to petitioner's counsel for cross-examination. The identity of one or more of the informants furnishing such information, but not of all the informants, was known to the Board. The only evidence adduced at the hearing was presented by petitioner. He testified under oath that he had never been a member of the Communist Party and also testified concerning the other charges against him. He did not refuse to answer any question directed to him. Petitioner's testimony was supported by the testimony of eighteen other witnesses and the affidavits and statements of some forty additional persons. On May 23, 1952, McElvain notified petitioner that the Agency Board had determined that, on all the evidence, there was no reasonable doubt as to petitioner's loyalty. 7 Thereafter, on April 6, 1953, petitioner was advised by the Loyalty Review Board that it had determined to conduct a 'post-audit' of the Agency Board's determination and, to this end, 'hold a hearing and reach its own decision.'3 The hearing was held on May 12, 1953, in New Haven, before a panel of the Board consisting of respondents Hessey, Amen, and King. Once again, as at the previous hearing, the only evidence adduced was presented by petitioner. In his own testimony, petitioner denied membership in the Communist Party, discussed his political beliefs and his motives for engaging in the activities and associations which were the subject of the charges, and answered all questions put to him by the Board. In support of petitioner's testimony, five witnesses stated their long acquaintance with petitioner and their firm conviction of petitioner's loyalty.4 In addition to this evidence, the record before the Board contained information supplied by informants whose identity was not disclosed to petitioner. The identity of one or more, but not all, of these informants was known to the Board. The information given by such informants had not been given under oath. The record also contained the evidence adduced by petitioner at the previous hearing. On this record, the Board determined that 'on all the evidence, there is a reasonable doubt as to Dr. Peters' loyalty to the Government of the United States.' 8 By letter of May 22, 1953, the Chairman of the Board advised petitioner of the Board's finding. The letter further stated that respondent Hobby had been notified of the decision and that petitioner had 'been barred from the Federal service for a period of three years from May 18, 1953, and any and all pending applications or existing eligibilities are cancelled.' The order of debarment was made by the Board on behalf of the Civil Service Commission, composed of respondents Young, Moore, and Lawton.5 Following his removal and after an unsuccessful attempt to obtain a rehearing, petitioner brought the instant suit, naming each of the respondents as a defendant. II. 9 In his complaint, petitioner contends that the action taken against him was 'in violation of Executive Order 9835 and the Constitution of the United States * * *.' In support of his contention that the action violated the Executive Order, he makes the allegation, among others, that the Loyalty Review Board 'exercised power beyond its power 'to make advisory recommendations * * * to the head of the * * * agency', as defined by Executive Order 9835, Part III, § 1a * * *.' On the constitutional level, petitioner complains chiefly of the denial of any opportunity to confront and cross-examine his secret accusers. He alleges that his removal and debarment deprived him 'of liberty and property without due process of law in that they branded him as a person disloyal to his country, arbitrarily, without basis in fact, and without a fair procedure and hearing.' In addition, he alleges that 'The imposition of the penalty of ineligibility for government service constituted a violation of the prohibition against bills of attainder and ex post facto laws by punishing the plaintiff by declaring him ineligible to serve the Government without a judicial trial or a fair administrative hearing * * *.' Finally, petitioner alleges that his removal and debarment, solely on the basis of his political opinions, violated his right to freedom of speech. 10 In this Court, petitioner urges us to decide the case on the constitutional issues. These issues, if reached by the Court, would obviously present serious and far-reaching problems in reconciling fundamental constitutional guarantees with the procedures used to determine the loyalty of government personnel. Compare Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. And note this Court's division in Bailey v. Richardson, supra. We find, however, that the case can be decided without reaching the constitutional issues. 11 From a very early date, this Court has declined to anticipate a question of constitutional law in advance of the necessity of deciding it. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420, 553, 9 L.Ed. 773. See Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136, 67 S.Ct. 231, 233, 91 L.Ed. 128. Applying this rule to the instant case, we must at the outset determine whether petitioner's removal and debarment were effected in accord with Executive Order 9835. On consideration of this question, we conclude that the Loyalty Review Board's action was so patently in violation of the Executive Order—in fact, beyond the Board's delegated jurisdiction under the Order—that the constitutionality of the Order itself does not come into issue.6 III. 12 The power of the Loyalty Review Board to adjudicate individual cases is set forth specifically in § 1a of Part III of the Order: 13 'The Board shall have authority to review cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency and to make advisory recommendations thereon to the head of the employing department or agency. Such cases may be referred to the Board either by the employing department or agency, or by the officer or employee concerned.' 14 Similarly, § 3 of Part II, which prescribes the procedures to be followed in loyalty cases under the Order, provides: 15 'A recommendation of removal by a loyalty board shall be subject to appeal by the officer or employee affected, prior to his removal, to the head of the employing department or agency * * * and the decision of the department or agency concerned shall be subject to appeal to the Civil Service Commission's Loyalty Review Board, hereinafter provided for, for an advisory recommendation.' 16 The authority thus conferred on the Loyalty Review Board was limited to 'cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency * * *.' And, even as to these cases, the Loyalty Review Board was denied any power to undertake review on its own motion; only the employee recommended for dismissal, or his department or agency, could refer such a case to the Loyalty Review Board. 17 In petitioner's case, the Board failed to respect either of these limitations. Petitioner had been twice cleared by the Agency Board and hence did not fall in the category of 'persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency.' Moreover, petitioner's case was never referred to the Loyalty Review Board by petitioner or the Agency. Instead, the Loyalty Review Board, acting solely on its own motion, undertook to 'hold a hearing and reach its own decision.' On both grounds, the Board's action was plainly beyond its jurisdiction unless such action was authorized by some other provision in the Order. Section 1 of Part III also provides: 18 'b. The Board shall make rules and regulations, not inconsistent with the provisions of this order, deemed necessary to implement statutes and Executive orders relating to employee loyalty. 19 'c. The Loyalty Review Board shall also: 20 '(1) Advise all departments and agencies on all problems relating to employee loyalty. 21 '(2) Disseminate information pertinent to employee loyalty programs. 22 '(3) Coordinate the employee loyalty policies and procedures of the several departments and agencies. 23 '(4) Make reports and submit recommendations to the Civil Service Commission for transmission to the President from time to time as may be necessary to the maintenance of the employee loyalty program.' 24 Acting under subsection (b), the Board promulgated detailed regulations, effective December 14, 1947, elaborating its powers under the Order.7 The regulations distinguished between two types of proceedings in individual cases. The first dealt with appeals from adverse decisions.8 The second, described in Regulation 14, claimed for the Board a very different function.9 As amended on January 22, 1952, Regulation 14 provided:10 25 'Post-audit and review of files. (a) The Board, or an executive committee of the Board, shall, as deemed necessary from time to time, cause post-audits to be made of the files on loyalty cases decided by the employing department or agency, or by a regional loyalty board. 26 '(b) The Board or an executive committee of the Board, or a duly constituted panel of the Board, shall have the right, in its discretion to call up for review any case decided by any department or agency board, or by any head of an employing loyalty board or regional loyalty department or agency, even though no appeal has been taken. Any such review shall be made by a panel of the Board, and the panel, whether or not a hearing has been held in the case, may affirm the procedural method followed and the action taken, or remand the case with appropriate instructions to the agency or regional loyalty board concerned for hearing or for such further action or procedure as the panel may determine. 27 '(c) If a panel reviews a record on post-audit and reaches the conclusion that the determination made below does not fully recognize that it is of 'vital importance' as set forth in Executive Order 9835 'that persons employed in the Federal service be of complete and unswerving Loyalty to the United States,' then the panel may call up the case for a hearing, and after such hearing may affirm or reverse the original determination or decision. Nevertheless, it must always be remembered that while it is important that maximum protection be afforded the United States against infiltration of disloyal persons into the ranks of its employees, equal protection must be afforded loyal employees from unfounded accusations of disloyalty.' 28 In undertaking to 'hold a hearing and reach its own decision' in petitioner's case, the Board relied on Regulation 14 as the source of its authority. 29 This regulation, however, is valid only if it is 'not inconsistent with the provisions of this order.' The Board's 'post-audit' function, when used to survey the operation of the loyalty program and to insure a uniformity of procedures in the various loyalty boards, might well be justified under the Board's powers to 'Advise all departments and agencies on all problems relating to employee loyalty' and 'Coordinate the employee loyalty policies and procedures of the several departments and agencies.' But the regulation did not restrict the 'post-audit' function to advice and coordination. Rather, it purported to allow the Board 'to call up for review any case * * * even though no appeal has been taken' and to hold a new hearing and 'after such hearing (to) affirm or reverse the original determination or decision.' The Board thus sought to do by regulation precisely what it was not permitted to do under the Order. Although the Order limited the Board's jurisdiction to appeals from adverse rulings, the regulation asserted authority over appeals from favorable rulings as well; and although the Order limited the Board's jurisdiction to appeals referred to the Board by the employee or his department or agency, the regulation asserted authority in the Board to adjudicate individual cases on its own motion. To this extent the regulation must fall. See, e.g., Addison v. Holly Hill Fruit Products, 322 U.S. 607, 616—618, 64 S.Ct. 1215, 1220—1222, 88 L.Ed. 1488, and Federal Communications Commission v. American Broadcasting Co., 347 U.S. 284, 296—297, 74 S.Ct. 593, 600—601, 98 L.Ed. 699. 30 Our interpretation of the language of the Order is confirmed by The Report of the President's Temporary Commission on Employee Loyalty, released by the President on March 22, 1947, simultaneously with the Order. Four months before, the Commission had been established 'to inquire into the standards, procedures, and organizational provisions for (a) the investigation of persons who are employed by the United States Government or are applicants for such employment, and (b) the removal or disqualification from employment of any disloyal or subversive person.'11 In conducting its investigation, the Commission sought suggestions from 50 selected government agencies. The replies revealed general agreement 'that the employing agency be responsible for the removal of its own employees.'12 But a substantial number of the replies indicated:13 31 '(1) that there should be established an independent over-all centralized authority acting solely for and on behalf of the President in the matter of the removal of disloyal employees; or (2) that the original hearing in loyalty cases should be within the employing agency, subject to a right of appeal to a centralized agency established with a power to review de novo; or (3) that the over-all agency be established with advisory powers only.' 32 Of these three proposals, the first was flatly rejected by the Commission, which instead urged the establishment of a centralized agency combining elements of the second and third. The Commission thought it 'imperative that the head of each department or agency be solely responsible for his own loyalty program.'14 On the other hand, 'so that the loyalty procedures operative in each of the departments and agencies may be properly coordinated * * *,' the Commission recognized 'that a central review board should be created with definite advisory responsibilities in connection with the loyalty program.'15 These 'advisory responsibilities' were envisaged as 'similar to those of a clearing house.'16 But, in addition, the board was to be authorized to review decisions adverse to employees, when referred to the Board by the employee or the employing agency.17 Nowhere in the report was it even remotely suggested that the board was to have general jurisdiction to adjudicate individual cases; on the contrary, as already noted, the Commission expressly disapproved such a proposal. The Commission's recommendations, with only slight changes in language, were adopted in the provisions of the Order designating the functions of the Loyalty Review Board.18 33 While loyalty proceedings may not involve the imposition of criminal sanctions, the limitation on the Board's review power to adverse determinations was in keeping with the deeply rooted principle of criminal law that a verdict of guilty is appealable while a verdict of acquittal is not.19 This safeguard was one of the few, and perhaps one of the most important, afforded an accused employee under the Order. Its effect was to leave the initial determination of his loyalty to his co-workers in the department—to his peers, as it were—who knew most about his character and his actions and his duties. He was thus assured that his fate would not be decided by political appointees who perhaps might be more vulnerable to the pressures of heated public opinion. To sanction the abrogation of this safeguard through Regulation 14, in the face of the Order's language and the Commission's report, would be to sanction administrative law-lessness. Agencies, whether created by statute or Executive Order, must of course be free to give reasonable scope to the terms conferring their authority. But they are not free to ignore plain limitations on that authority. Compare United States v. Wickersham, 201 U.S. 390, 398, 26 S.Ct. 469, 472, 50 L.Ed. 798. 34 It is urged, however, that the President's failure to express his disapproval of Regulation 14 must be deemed to constitute acquiescence in it. From this, it is contended that the President thus impliedly expanded the Loyalty Review Board's powers under the Order. We cannot indulge in such fanciful speculation. Nothing short of explicit Presidential action could justify a conclusion that the limitations on the Board's powers had been eliminated. No such action by the President has been brought to our attention. There is, in fact, no evidence that the President even knew of the Board's practice prior to April 27, 1953, three weeks after the Board had notified petitioner of its intention to 'hold a hearing and reach its own decision.' And knowledge of the practice can hardly be imputed to him in view of the relatively small number of cases only 20—in which the Board reversed favorable determinations over its 6-year life.20 On April 27, 1953, the President issued Executive Order 10450, revoking Executive Order 9835 and establishing a new loyalty program.21 Executive Order 10450 by its own terms did not take effect until 30 days later on May 27, 1953. Although petitioner's case was heard and determined by the Loyalty Review Board during this 30-day period and hence was not subject to Executive Order 10450, the Government contends that § 11 evidences knowledge and approval of Regulation 14.22 Section 11, however, did no more than recognize that cases under Regulation 14 might be pending on the effective date and authorize their determination thereafter. And, even as to these cases, § 11 did not authorize the Board to recommend dismissal; at most the Board could remand the cases to the departments or agencies for reconsideration. With respect to cases determined prior to the effective date—such as petitioner's—s 11 surely affords no basis for divining a Presidential intention to authorize the Board to disregard its previously defined jurisdictional boundaries. Particularly is this so where, as here, substantial rights affecting the lives and property of citizens are at stake. This Court has recognized that 'a badge of infamy' attaches to a public employee found disloyal. Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 218, 97 L.Ed. 216. The power asserted by the Board to impose such a badge on petitioner cannot be supported on so tenuous a theory as that pressed upon us. 35 Nor was the adjudication of petitioner's case, on its own motion and despite a favorable determination by the Agency Board, the only unwarranted assumption of power by the Loyalty Review Board. In cancelling petitioner's eligibility from 'the Federal service' for a period of three years, the Board purported to act under Civil Service Rule V, § 5.101(a), which bars an employee from 'the competitive service within 3 years after a final determination that he is disqualified for Federal employment because of a reasonable doubt as to his loyalty * * *.'23 The Board's order of debarment, however, was not limited to 'the competitive service' but extended to all federal employment.24 And although such a 'final determination' could be made only by the employing agency, the Board did not wait for respondent Hobby to act on its recommendation. Petitioner's debarment was made effective on May 18, 1953, four days before the Chairman of the Board wrote petitioner of the Board's determination and nearly four weeks before the Department took action to remove petitioner from his position. The Board's haste can be understood only in terms of its announced intention to deprive agencies of all discretion to determine whether the Board's recommendations should be accepted.25 IV. 36 There only remains for consideration the question of relief. Initially petitioner is entitled to a declaratory judgment that his removal and debarment were invalid. He is further entitled to an order directing the respondent members of the Civil Service Commission to expunge from its records the Loyalty Review Board's finding that there is a reasonable doubt as to petitioner's loyalty and to expunge from its records any ruling that petitioner is barred from federal employment by reason of that finding. His prayer for reinstatement, however, cannot be granted, since it appears that the term of petitioner's appointment would have expired on December 31, 1953, wholly apart from his removal on loyalty grounds. 37 The judgment below is reversed and the cause is remanded to the District Court for entry of a decree in conformity with this opinion. 38 Reversed. 39 Mr. Justice BLACK, concurring. 40 I would prefer to decide this case on the constitutional questions discussed by Mr. Justice Douglas or on some of the other constitutional questions necessarily involved. See United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252. See my dissents in Dennis v. United States, 341 U.S. 494, 579—581, 71 S.Ct. 857, 902—903, 95 L.Ed. 1137; American Communications Ass'n v. Douds, 339 U.S. 382, 445—453, 70 S.Ct. 674, 707—711, 94 L.Ed. 925. See also my concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 142—149, 71 S.Ct. 624, 633 637, 95 L.Ed. 817. I agree that it is generally better for this Court not to decide constitutional questions in cases which can be adequately disposed of on non-constitutional grounds. See Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420, 553, 9 L.Ed. 773. But this generally accepted practice should not be treated as though it were an inflexible rule to be inexorably followed under all circumstances. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584—585, 72 S.Ct. 863, 865—866, 96 L.Ed. 1153. Here, as in the Youngstown case, I think it would be better judicial practice to reach and decide the constitutional issues, although I agree with the Court that the Presidential Order can justifiably be construed as denying the Loyalty Review Board the power exercised in this case. For this reason I join the opinion of the Court. But I wish it distinctly understood that I have grave doubt as to whether the Presidential Order has been authorized by any Act of Congress. That order and others associated with it embody a broad, far-reaching espionage program over government employees. These orders look more like legislation to me than properly authorized regulations to carry out a clear and explicit command of Congress. I also doubt that the Congress could delegate power to do what the President has attempted to do in the Executive Order under consideration here. And of course the Constitution does not confer lawmaking power on the President. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153. 41 I have thought it necessary to add these statements to the Court's opinion in order that the President's power to issue the order might not be considered as having been decided sub silentio. 42 Mr. Justice DOUGLAS, concurring. 43 With all deference, I do not think we can avoid the constitutional issue in this case. 44 The most that can be said is that the terms of the Executive Order are ambiguous. The construction urged by the Attorney General is buttressed by a history of administrative practice, with case after case being reviewed by the Board in the precise manner of this one. The question of construction of the Executive Order was so well settled that neither the Government nor Dr. Peters suggested the absence of authority in the Review Board to take jurisdiction of this case on its own motion. I agree that it had such authority. It, therefore, becomes necessary for me to reach the constitutional issue. 45 Dr. Peters was condemned by faceless informers, some of whom were not known even to the Board that condemned him. Some of these informers were not even under oath. None of them had to submit to cross-examination. None had to face Dr. Peters. So far as we or the Board know, they may be psychopaths or venal people, like Titus Oates, who revel in being informers. They may bear old grudges. Under cross-examination their stories might disappear like bubbles. Their whispered confidences might turn out to be yarns conceived by twisted minds or by people who, though sincere, have poor faculties of observation and memory. 46 Confrontation and cross-examination under oath are essential, if the American ideal of due process is to remain a vital force in our public life. We deal here with the reputation of men and their right to work—things more precious than property itself. We have here a system where government with all its power and authority condemns a man to a suspect class and the outer darkness, without the rudiments of a fair trial. The practice of using faceless informers has apparently spread through a vast domain. It is used not only to get rid of employees in the Government, but also employees who work for private firms having contracts with the Government.1 It has touched countless hundreds of men and women and ruined many. It is an un-American practice which we should condemn. It deprives men of 'liberty' within the meaning of the Fifth Amendment, for one of man's most precious liberties is his right to work. When a man is deprived of that 'liberty' without a fair trial, he is denied due process. If he were condemned by Congress and made ineligible for government employment, he would suffer a bill of attainder, outlawed by the Constitution. See United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252. An administrative agency—the creature of Congress—certainly cannot exercise powers that Congress itself is barred from asserting. See the opinion of Mr. Justice Black in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 144—146, 71 S.Ct. 624, 634 635, 95 L.Ed. 817.2 47 Those who see the force of this position counter by saying that the Government's sources of information must be protected, if the campaign against subversives is to be successful. The answer is plain. If the sources of information need protection, they should be kept secret. But once they are used to destroy a man's reputation and deprive him of his 'liberty,' they must be put to the test of due process of law. The use of faceless informers is wholly at war with that concept. When we relax our standards to accommodate the faceless informer, we violate our basic constitutional guarantees and ape the tactics of those whom we despise. 48 Mr. Justice REED, with whom Mr. Justice BURTON joins, dissenting. 49 I agree with Mr. Justice DOUGLAS that the Court's reason for annulling Dr. Peters' discharge is not sound. In addition to the reasons stated by him, I find other factors that, to me, strengthen the view that the action of the Loyalty Review Board was not invalid. However, I do not express any opinion on the constitutional problems which might ultimately be faced if the Court had found that the Review Board's action and all other non-constitutional aspects of the case were proper. 50 Executive Order No. 9835 was issued by the President on March 21, 1947. By this order he established the Loyalty Review Board and granted to it certain rule-making powers. Part III, § 1, subd. b, Exec. Order No. 9835. The Review Board's first promulgation of regulations pursuant to this power included the original of Regulation 14, which provided that the Board had the right 'on its own motion' to review the decisions of the department or agency loyalty boards 'even though no appeal has been taken.' 13 Fed.Reg. 255 (adopted December 17, 1947). Thus, from the very outset, the procedure followed by the Review Board in reviewing these cases was part of the loyalty program. Furthermore, from 1948 through 1952, in each of the Annual Reports of the Civil Service Commission, the results of the Review Board's post-audit actions under Regulation 14 were unmistakably recorded.1 These reports were submitted to the President pursuant to statutory requirement.2 In addition to stating annual data on general post-audit reviews (more than 5,000 in 1952), the reports clearly indicated that the Board was rehearing cases on its own motion, such as the present, where the decision of the agency loyalty board had been favorable to the employee.3 The Court places emphasis on the number of cases so handled, but this hardly seems relevant in view of the fact that the reports indisputably conveyed to any reader the fact of what the Board was doing, whether in 1 case or 100. 51 The Court in this case is reviewing a Presidential Order and rules made thereunder. I do not find it as easy as does the majority to analogize such review to judicial review of congressional Acts and administrative interpretation of such Acts. Certain differences are immediately apparent. The Executive Branch is traditionally free to handle its internal problems of administration in its own way. The legality of judicial review of such intra-executive operations as this is, for me, not completely free from doubt. However, construing the Loyalty Order as the Court does, like a statute, the contemporaneous construction of the Order by the Review Board in promulgating Regulation 14, and the action of the President in allowing the regulation and practices thereunder to continue after having notice from the Civil Service Commission reports, lead me to conclude that the Board by Regulation 14 correctly interpreted the Presidential intention conveyed by Executive Order 9835. Such reasonable interpretation promptly adopted and long-continued by the President and the Board should be respected by the courts. That has been judicial practice heretofore.4 52 Nor does comparison of Regulation 14 with the Order show, in my opinion, that the Regulation is 'inconsistent with' any of the provisions of the Order. Rather the power of the Review Board to review under Regulation 14 appears to be supplemental to the other procedures which the Order itself prescribes. Therefore Regulation 14 constituted merely an implementation of the Order which the Review Board is specifically authorized to make under Part III, § 1, subd. b, set out in the Court's opinion, 349 U.S. 340, 75 S.Ct. 795. Neither of the parties has contended otherwise before this Court. They also agree that the Board's action was valid. 53 Undoubtedly the President had knowledge and approved of the Regulation. This is shown by his specific recognition of such cases in his own 1953 Order.5 That Order, while not controlling Dr. Peters' case directly, since it did not become effective until after the Review Board had heard his case, recognized that the Review Board had been and could review decisions which had been favorable to an employee. This action by the President amounts to approval of the practice of the Review Board under Regulation 14. I am therefore compelled to conclude that the action of the Review Board in rendering its advisory recommendation in this case was not invalid. 54 The Court seems to imply, however, that the Review Board's decision was more than merely a recommendation to the head of the department employing Dr. Peters and that the Board, in another 'unwarranted assumption of power,' by its letter of May 22, 1953, erroneously separated Dr. Peters from the government service. Nowhere in the majority opinion does it appear that Secretary Hobby or the Department she heads, and for whom Dr. Peters worked, ever took any action in regard to the Review Board's recommendation. The reference to this May 22 letter is apt to mislead, as it has nothing to do with the Department's discharge of Dr. Peters, the validity of which is the issue in this case. 55 I agree that the Review Board's letter of May 22, 1953, may have been erroneous. Under Civil Service Rule V, § 5.101(a),6 federal employees found disqualified for federal employment because of a reasonable doubt as to their loyalty are barred from the federal competitive service for three years. This 'final determination' as to loyalty is and can be made only by the head of a department or agency on recommendation of a loyalty board.7 When the head of a department acts on the Review Board's recommendation, § 5.101(a) becomes effective. The Review Board, acting as an agency of the Civil Service Commission, then notifies the employee of his disqualification. Assuming that the Review Board was not notified of any 'final determination' prior to the letter of May 22, it was sent erroneously. However, it amounted to no more than a nullity and Dr. Peters lost nothing. It is undisputed that on June 12, 1953, the Surgeon General of the Public Health Service, a subordinate of Secretary Hobby, 'notified plaintiff of his separation from his position as Special Consultant.'8 This was the notification which effectively separated him from government service and which is the basis for his complaint for wrongful discharge. 56 Limiting myself to issues decided by the majority, I dissent. 1 12 Fed.Reg.1935, 5 U.S.C.A. § 631 note. 2 Executive Order 10241, 16 Fed.Reg. 3690, U.S.Code Cong. and Adm. Service 1951, p. 1028. 3 Authority for such action was purportedly based on Regulation 14 of the regulations of the Loyalty Review Board. 17 Fed.Reg. 631. 4 Three of the five—a former President of Yale University, a former dean of the Yale Medical School, and a federal circuit judge—had given similar testimony at the previous hearing. 5 Authority for the order of debarment was purportedly based on Civil Service Rule V, § 5.101(a), 5 CFR (1954 Supp.) § 5.101(a). 6 The question of the Board's jurisdiction was, on request of the Court, argued and briefed. Compare Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 132, 67 S.Ct. 231, 232, 91 L.Ed. 128. 7 13 Fed.Reg. 253 et seq. 8 Id., at 255, 5 CFR § 210.9. 9 13 Fed.Reg. 255. 10 17 Fed.Reg. 631. Regulation 14 had previously been amended on December 17, 1948. 13 Fed.Reg. 9366, 5 CFR § 210.14. 11 Executive Order 9806, 11 Fed.Reg. 13863, U.S.Code Cong.Service 1946, p. 1874. The Commission was composed of officials of the Civil Service Commission and the Departments of Justice, State, Treasury, War, and Navy. 12 The Report of the President's Temporary Commission on Employee Loyalty (1947) 14. 13 Id., at 15. 14 Id., at 26. 15 Id., at 27. 16 Id., at 26. 17 Id., at 35—36. 18 See Bontecou, The Federal Loyalty-Security Program (1953), 29. 19 See the Commission's report, supra, note 12, at 30: 'The standards must be specific enough to assure that innocent employees will not fall within the purview of the disloyalty criteria. Every mature consideration was invoked by the Commission to afford maximum protection to the government from disloyal employees while safeguarding the individual employee with a maximum protection from ill-advised accusations of disloyalty.' 20 As of June 30, 1953, the Board had undertaken in only 58 cases to 'hold a hearing and reach its own decision' despite a favorable determination below. Annual Reports of the Civil Service Commission: 1948 (p. 18), 1949 (p. 37), 1950 (pp. 33—34), 1951 (p. 36), 1952 (p. 56), 1953 (p. 31). Of these 58 cases, 20 resulted in reversal of the favorable determination. 1953 Report, p. 31, n. 1. Of these 20 cases, 12—including petitioner's—arose in the fiscal year immediately preceding June 30, 1953. Id., at 31. In the remaining 38 cases—those in which the Board did not reverse the favorable determination—either the Board affirmed the favorable determination or the employee resigned prior to the scheduled hearing. Thus in the 1953 fiscal year, of the 22 hearings scheduled, 8 resulted in affirmance and 2 were cancelled because of resignation. Ibid. 21 18 Fed.Reg. 2489, 5 U.S.C.A. § 631 note. 22 Section 11 provides in pertinent part: 'On and after the effective date of this order the Loyalty Review Board established by Executive Order No. 9835 of March 21, 1947, shall not accept agency findings for review, upon appeal or otherwise. Appeals pending before the Loyalty Review Board on such date shall be heard to final determination in accordance with the provisions of the said Executive Order No. 9835, as amended. Agency determinations favorable to the officer or employee concerned pending before the Loyalty Review Board on such date shall be acted upon by such Board, and whenever the Board is not in agreement with such favorable determination the case shall be remanded to the department or agency concerned for determination in accordance with the standards and procedures established pursuant to this order.' 23 Italics added. 5 CFR (1954 Supp.) § 5.101(a). 24 Approximately 15% of all federal employees are excepted from 'the competitive service.' 1954 Annual Report, United States Civil Service Commission, p. 10. Petitioner himself was not employed in 'the competitive service.' His position was classified in 'Schedule A,' an exempt category. 5 CFR § 6.101(n); 5 CFR § 6.1(d). 25 On December 17, 1948, the Board issued the following directive, entitled 'Legal effect of advisory recommendations,' to the departments and agencies covered by the Order: 'The President expects that loyalty policies, procedures, and standards will be uniformly applied in the adjudication of loyalty cases by the several agencies, and the responsibility for coordinating the program and assuring uniformity has been placed in the Loyalty Review Board. The recommendations of the Civil Service Commission in cases of employees covered by section 14 of the Veterans' Preference Act of 1944 (5 U.S.C.A. § 863) are mandatory, and the loyalty of persons not covered by section 14 should be judged by the same standards. Therefore, if uniformity is to be attained it is necessary that the head of an agency follow the the recommendation of the Loyalty Review Board in all cases.' (Italics added.) 13 Fed.Reg. 9372, 5 CFR § 220.4(d). See Bontecou, The Federal Loyalty-Security Program (1953), 54—55. Compare Kutcher v. Gray, 91 U.S.App.D.C. 266, 199 F.2d 783. 1 Berle, The 20th Century Capitalist Revolution (1954), pp. 92—93, traces the impact of the loyalty program on employees of corporations having contracts with the Government: 'To begin, let us deal with a situation in which a powerful corporation is under a contract duty to the United States government, or some agency of it, to fire or decline to hire individuals designated to them as possible security risks. In practice they mean that a man who may have been employed for years, being suspect for some reason, is designated to the appropriate authorities (of the corporation). Things then happen to him rapidly. All he knows is that he is called into the office one day and told that he is discharged—or at best transferred to some far less desirable job. If the ban is complete, and he lives in any of the cities in which the corporation is a preponderant employer, the consequences are extreme. The main avenue of employment is closed to him. He must move into some other city and find some other job if he can. Since the same ban will probably follow him into any other plant engaged in defense orders, the going is rough. If he is a young man, he winds up in some recognizably marginal job, such as dishwashing or unskilled labor. If he is a man in middle life, he may end on the industrial scrap heap. Probably he never discovers exactly what hit him. The personnel people of the corporations do not confide to him their reasons for action.' 2 See Berle, op. cit. supra, p. 98. 1 Annual Reports of the Civil Service Commission: 1948 (p. 18); 1949 (pp. 37—38); 1950 (pp. 33—34); 1951 (p. 36); 1952 (p. 56). 2 5 U.S.C. § 633(5), 5 U.S.C.A. § 633(5). 3 During the fiscal year 1952, the Loyalty Review Board post-audited 5,335 cases which had been decided favorably by agencies and regional loyalty boards. The Board authorized the closing of 5,259 of these cases upon finding that proper procedures had been followed. In 66 other cases, however, further processing was necessary to ensure compliance with standard procedures, and so the cases were remanded to boards in the agencies or in civil-service regions. 'The Board scheduled review of the other 10 cases on their merits and offered to hear the individuals concerned before rendering its decision on their cases. One case was closed as incomplete when the individual resigned. Action on the other 9 cases was completed; since this type of review of a case under Regulation 14 is similar to the consideration given an appeal, the cases of these individuals are included in the following section, which shows action on appeals received by the Loyalty Review Board.' 69th Annual Report (1952), Civil Service Commission, p. 56. 4 Cf. United States v. American Trucking Ass'ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 1067, 84 L.Ed. 1345; Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413—414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700; Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 313, 315, 53 S.Ct. 350, 357, 358, 77 L.Ed 796; Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 46, 83 L.Ed. 52. 5 Exec.Order No. 10450, § 11, promulgated April 27, 1953, to become effective May 27, 1953. Set out in the Court's opinion, 75 S.Ct. 798, note 22. 6 'Persons disqualified for appointment. * * * Provided, That no person shall be admitted to competitive examination, nor shall he be employed in any position in the competitive service within 3 years after a final determination that he is disqualified for Federal employment because of a reasonable doubt as to his loyalty to the Government of the United States.' 5 CFR, 1949 ed. (1954 Cum.Supp.) § 5.101(a). 7 Exec.Order No. 9835, Part II: '1. The head of each department and agency in the executive branch of the Government shall be personally responsible for an effective program to assure that disloyal civilian officers or employees are not retained in employment in his department or agency. '2. The head of each department and agency shall appoint one or more loyalty boards, * * * for the purpose of hearing loyalty cases arising within such department or agency and making recommendations with respect to the removal of any officer or employee of such department or agency on grounds relating to loyalty, and he shall prescribe regulations for the conduct of the proceedings before such boards. '3. A recommendation of removal by a loyalty board shall be subject to appeal by the officer or employee affected, prior to his removal, to the head of the employing department or agency or to such person or persons as may be designated by such head, under such regulations as may be prescribed by him, and the decision of the department or agency concerned shall be subject to appeal to the Civil Service Commission's Loyalty Review Board, herinafter provided for, for an advisory recommendation.' Id., Part III, § 1: 'a. The (Review) Board shall have authority to review cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency and to make advisory recommendations thereon to the head of the employing department or agency. * * *' 8 petitioner's complaint, 27.

23

350 U.S. 1 76 S.Ct. 33 100 L.Ed. 3 Autherine J. LUCY and Polly Anne Myers, Petitioners,v.William F. ADAMS, Dean of Admissions, University of Alabama, Respondent. No. 294 Misc. Decided Oct. 10, 1955. PER CURIAM. 1 Petitioners, Autherine J. Lucy and Polly Anne Myers, citizens of Alabama, have been seeking admission to the University of Alabama since September 1952. Respondent William F. Adams is Dean of Admissions of the University. After hearings, United States District Judge Grooms of the Northern District of Alabama found that petitioners had been denied admission to the University 'solely on account of their race and color.' Holding this denied petitioners equal protection of state laws, the court permanently enjoined respondent Adams, his agent, employees and other acting in concert with respondent'from denying the plaintiffs and others similarly situated the right to enroll in the University of Alabama and pursue courses of study thereat, solely on account of their race and color.' 134 F.Supp. 235, 239. Respondent's motion to suspend the injunction pending appeal to the United States Court of Appeals for the Fifth Circuit was granted by the District Judge. A judge of that court denied a motion to vacate the suspension and reinstate the injunction. A similar motion is now before us. 2 The motion is granted and the injunction is reinstated to the extent that it enjoins and restrains the respondent and others designated from denying these petitioners, Autherine Lucy and Polly Anne Myers, the right to enroll in the University o Alabama and pursue courses of study there. Sipuel v. Board of Regents of the University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. In other respects, the motion is denied. 3 Motion granted in part.

12

350 U.S. 3 76 S.Ct. 34 100 L.Ed. 4 Caryl CHESSMAN, Petitioner,v.Harley O. TEETS, Warden, California State Prison, San Quentin, California. No. 196. Decided Oct. 17, 1955. PER CURIAM. 1 Petitioner applied to the United States District Court, Northern District of California, Southern Division, for a writ of hebeas corpus, claiming that his automatic appeal to the California Supreme Court from a conviction for a capital offense had been heard upon a fraudulently prepared transcript of the trial proceedings. The official court reporter had died before completing the transcription of his stenographic notes of the trial, and petitioner alleges that the prosecuting attorney and the substitute reporter selected by him had, by corrupt arrangement, prepared the fraudulent transcript. On the record before us, there is no denial of petitioner's allegations. The District Court, without issuing the writ or an order to show cause, dismissed the application as not stating a cause of action. 128 F.Supp. 600. The Court of Appeals affirmed the order of the District Court. 9 Cir., 221 F.2d 276. The charges of fraud as such set forth a denial of due process of law in violation of the Fourteenth Amendment. See Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791. Without intimating any opinion regarding the validity of the claim, we hold that in the circumstances disclosed by the record before us the application should not have been summarily dismissed. Accordingly, the petition for a writ of certiorari is granted, the judgment of the Court of Appeals is reversed and the case is remanded to the District Court for a hearing. 2 Mr. Justice REED, Mr. Justice BURTON, and Mr. Justice CLARK dissent. 3 The CHIEF JUSTICE took no part in the consideration or decision of this case.

01

350 U.S. 5 76 S.Ct. 29 100 L.Ed. 6 STATE OF MISSISSIPPI, Plaintiff,v.STATE OF LOUISIANA. No. 11, Original. Argued Oct. 10, 1955. Decided Oct. 17, 1955. 1 Messrs. Girard H. Brandon, Natchez, Miss., James D. Thames, Vicksburg, Miss., for plaintiff. 2 Mr. Ashton L. Stewart, Baton Rouge, La., for defendant. 3 D. K. McKamy served as Special Master by appointment of the Court, 346 U.S. 862, 74 S.Ct. 102, 98 L.Ed. 374. DECREE 4 This cause having been submitted upon the pleadings, evidence and exhibits after arguments by counsel upon the exceptions of the State of Louisiana to the Report of the Special Master, the Court, having duly considered the same and being fully advised in the premises, now enters the following order: 5 The exceptions to the Report of the Special Master are overruled. The Report of the Special Master is adopted and his proposed decree is approved and 6 It is Ordered, Adjudged and Decreed that the true boundaries between the States of Mississippi and Louisiana at the places involved in this case be and they hereby are found and concluded to be as follows: Description by geodetic positions (North American Datum) of the line that forms the Mississippi-Louisiana state boundary between Latitude 32 15 and 32 09 and Longitude 90 58 to 91 07 , that is, in the area commonly known as Reed-Bedford, Oak Bend, Diamond Island and Diamond Point. 7 Beginning at a point where the live thalweg of the Mississippi River crosses the line 32 15 North Latitude; 8 Thence Southward along the live thalweg of the Mississippi River to a point where the live thalweg crosses the line that runs South 60 East from the point that is at Lat. 32 11 34 —Long. 90 59 47 . 9 Thence leaving the thalweg of the Mississippi River and running North 60 West to the point being at Lat. 32 11 34 —Long. 90 59 47 ; 10 Thence running Westward along the deal thalweg of the abandoned channel of the Mississippi River (lower Oak Bend) to a point that is at Lat. 32 11 29 —Long. 91 00 (S—5 Smith Exhibit 5). 11 Thence leaving the dead thalweg of the abandoned channel of lower Oak Bend and running Northward (along the Suter line, Smith Exhibit 5) to a point that is at Lat. 32 11 46 —Long. 90 00 09 (S 4, Smith Exhibit 5); 12 Thence Northward to a point that is at Lat. 32 11 51 —Long. 91 00 11 (S—3, Smith Exhibit 5); 13 Thence Northward to a point that is at Lat. 32 12 44 —Long. 91 00 20 (S—2, Smith Exhibit 5); 14 Thence Northward to a point that is at Lat. 32 13 09 —Long. 91 00 14 (S—1, Smith Exhibit 5); 15 Thence Northward to a point that is at Lat. 32 13 21 —Long. 91 00 10 (S, Smith Exhibit 5). 16 Thence running Westward along the dead thalweg of the abandoned channel of the Mississippi River that loops around the Northern side of Diamond Island (Diamond Island Towhead) to a point that is at Lat. 32 13 22 —Long. 91 00 13 ; Thence Westward to a point that is at Lat. 32 13 26 —Long. 91 00 22 ; 17 Thence Westward to a point that is at Lat. 32 13 31 —Long. 91 00 30 ; 18 Thence Westward to a point that is at Lat. 32 13 36 —Long. 91 00 37 ; 19 Thence Westward to a point that is at Lat. 32 13 44 —Long. 91 00 47 ; 20 Thence Westward to a point that is at Lat. 32 13 49 —Long. 91 00 53 ; 21 Thence Westward to a point that is at Lat. 32 13 55 —Long. 91 01 ; 22 Thence Westward to a point that is at Lat. 32 14 —Long. 91 01 05 ; 23 Thence Westward to a point that is at Lat. 32 14 09 —Long. 91 01 15 ; 24 Thence Westward to a point that is at Lat. 32 14 17 —Long. 91 01 29 ; 25 Thence Westward to a point that is at Lat. 32 14 23 —Long. 91 01 43 ; 26 Thence Westward to a point that is at Lat. 32 14 29 —Long. 91 02 ; 27 Thence Westward to a point that is at Lat. 32 14 32 —Long. 91 02 16 ; 28 Thence Southward to a point that is at Lat. 32 14 31 —Long. 91 02 33 ; 29 Thence Southward to a point that is at Lat. 32 14 26 —Long. 91 02 48 ; 30 Thence Southward to a point that is at Lat. 32 14 16 —Long. 91 03 ; 31 Thence Southward to a point that is at Lat. 32 14 00 —Long. 91 03 06 ; 32 Thence Southward to a point that is at Lat. 32 13 54 —Long. 91 03 08 ('C' Smith Exhibit 5). 33 Thence running Southward (along Smith line 'C' Exhibit 5) to the point that is Lat. 32 13 41 —Long. 91 03 10' (C—1 Smith Exhibit 5); Thence Southward to the point that is at Lat. 32 13 31 —Long. 91 03 16 (C—2 Smith Exhibit 5); 34 Thence Southward to the point that is at Lat. 32 13 07 —Long. 91 03 40 (C—3 Smith Exhibit 5). 35 Thence running Westwardly along the dead thalweg of the abandoned channel of the Mississippi River (lower Oak Bend) to the point that is at Lat. 32 13 23 —Long. 91 04 ; 36 Thence Westwardly to a point, Lat. 32 13 37 —Long. 91 04 30 ; 37 Thence Westwardly to a point, Lat. 32 13 35 —Long. 91 05 ; 38 Thence Westwardly to a point, Lat. 32 13 26 —Long. 91 05 30 ; 39 Thence Westwardly to a point, Lat. 32 13 04 —Long. 91 06 ; 40 Thence Westwardly to a point, Lat. 32 12 30 —Long. 91 06 28 ; 41 Thence Westwardly to a point at the head of Palmyra Lake and Kellogg Lake (where the Northern and Western boundary of Diamond Point ends and which is point of beginning of the Southern boundary of Diamond Point), Lat. 32 12 24 —Long. 91 06 44 ; 42 Thence Westwardly along the thalweg of Palmyra Lake to a point, Lat. 32 12 26 —Long. 91 07 . 43 That portion of the Southern boundary of Diamond Point that also forms the Mississippi-Louisiana state boundary is described as follows: 44 Beginning at the thalweg of the Mississippi River at the lower end of Diamond Point Cut-off at a point, being at Lat. 32 09 46 —Long. 91 00 (Smith Exhibit 5); 45 Thence Westwardly along the dead thalweg of the abandoned channel of the Mississippi River and so-called Kellogg Lake to a point, Lat. 32 09 43 —Long. 91 00 30 ; 46 Thence Westwardly to a point, Lat. 32 09 40 —Long. 91 01 ; Thence Westwardly to a point, Lat. 32 09 45 —Long. 91 01 30 ; 47 Thence Westwardly to a point, Lat. 32 10 —Long. 91 01 52 ; 48 Thence Westwardly to a point, Lat. 32 10 07 —Long. 91 02 ; 49 Thence Westwardly to a point, Lat. 32 10 27 —Long. 91 02 29 ; 50 Thence Westwardly to a point, Lat. 32 10 41 —Long. 91 03 ; 51 Thence Westwardly to a point, Lat. 32 10 50 —Long. 91 03 30 . 52 The following portion of this description is inserted here to complete the Southern boundary of Diamond Point and to join the two portions of the Mississippi-Louisiana state boundary: 53 Thence continuing Westwardly along the dead thalweg in the abandoned channel of the Mississippi River and so-called Kellogg Lake to a point, Lat. 32 10 54 —Long. 91 04 ; 54 Thence Westwardly to a point, Lat. 32 11 —Long. 91 04 18 ; 55 Thence Westwardly to a point, Lat. 32 11 03 —Long. 91 04 30 ; 56 Thence Westwardly to a point, Lat. 32 11 11 —Long. 91 05 ; 57 Thence Westwardly to a point, Lat. 32 11 25 —Long. 91 05 30 ; 58 Thence Westwardly to a point, Lat. 32 11 44 —Long. 91 06 ; 59 Thence Westwardly to a point, Lat. 32 12 —Long. 91 06 10 ; 60 Thence Westwardly to a point, Lat. 32 12 07 —Long. 91 06 15 ; 61 Thence Westwardly to a point, Lat. 32 12 20 —Long. 91 06 30 ; Thence Westwardly to a point, Lat. 32 12 24 —Long. 91 06 44 (being the point at the head of Palmyra Lake and Kellogg Lake where the Northern and Western boundary of Diamond Point ends and joins with the Southern boundary of Diamond Point). 62 The costs of this suit are equally divided between the two States, plaintiff and defendant.

1011

350 U.S. 46 76 S.Ct. 20 100 L.Ed. 29 CORN PRODUCTS REFINING COMPANY, Petitioner,v.COMMISSIONER OF INTERNAL REVENUE. No. 20. Argued Oct. 18, 1955. Decided Nov. 7, 1955. Rehearing Denied Jan. 9, 1956. See 350 U.S. 943, 76 S.Ct. 297. Messrs. Jay O. Kramer, and Samuel A. McCain, New York City, for petitioner. Mr. Charles K. Rice, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 This case concerns the tax treatment to be accorded certain transactions in commodity futures.1 In the Tax Court, petitioner Corn Products Refining Company contended that its purchases and sales of corn futures in 1940 and 1942 were capital-asset transactions under § 117(a) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 117(a). It further contended that its futures transactions came within the 'wash sales' provisions of § 118. The 1940 claim was disposed of on the ground that § 118 did not apply, but for the year 1942 both the Tax Court and the Court of Appeals for the Second Circuit, 215 F.2d 513, held that the futures were not capital assets under § 117. We granted certiorari, 348 U.S. 911, 75 S.Ct. 298,2 because of an asserted conflict with holdings in the Courts of Appeals for the Third, Fifth, and Sixth Circuits.3 Since we hold that these futures do not constitute capital assets in petitioner's hands, we do not reach the issue of whether the transactions were 'wash sales.' Petitioner is a nationally known manufacturer of products made from grain corn. It manufactures starch, syrup, sugar, and their byproducts, feeds and oil. Its average yearly grind of raw corn during the period 1937 through 1942 varied from thirty-five to sixty million bushels. Most of its products were sold under contracts requiring shipment in thirty days at a set price or at market price on the date of delivery, whichever was lower. It permitted cancellation of such contracts, but from experience it could calculate with some accuracy future orders that would remain firm. While it also sold to a few customers on long-term contracts involving substantial orders, these had little effect on the transactons here involved.4 2 In 1934 and again in 1936 droughts in the corn belt caused a sharp increase in the price of spot corn. With a storage capacity of only 2,300,000 bushels of corn, a bare three weeks' supply, Corn Products found itself unable to buy at a price which would permit its refined corn sugar, cerealose, to compete successfully with cane and beet sugar. To avoid a recurrence of this situation, petitioner, in 1937, began to establish a long position in corn futures 'as a part of its corn buying program' and 'as the most economical method of obtaining an adequate supply of raw corn' without entailing the expenditure of large sums for additional storage facilities. At harvest time each year it would buy futures when the price appeared favorable. It would take delivery on such contracts as it found necessary to its manufacturing operations and sell the remainder in early summer if no shortage was imminent. If shortages appeared, however, it sold futures only as it bought spot corn for grinding.5 In this manner it reached a balanced position with reference to any increase in spot corn prices. It made no effort to protect itself against a decline in prices. 3 In 1940 it netted a profit of $680,587.39 in corn futures, but in 1942 it suffered a loss of $109,969.38. In computing its tax liability Corn Products reported these figures as ordinary profit and loss from its manufacturing operations for the respective years. It now contends that its futures were 'capital assets' under § 117 and that gains and losses therefrom should have been treated as arising from the sale of a capital asset.6 In support of this position it claims that its futures trading was separate and apart from its manufacturing operations and that in its futures transactions it was acting as a 'legitimate capitalist'. United States v. New York Coffee & Sugar Exchange, 263 U.S. 611, 619, 44 S.Ct. 225, 227, 68 L.Ed. 475. It denies that its futures transactions were 'hedges' or 'speculative' dealings as covered by the ruling of General Counsel's Memorandum 17322, XV—2 Cum.Bull. 151, and claims that it is in truth 'the forgotten man' of that administrative interpretation. 4 Both the Tax Court and the Court of Appeals found petitioner's futures transactions to be an integral part of its business designed to protect its manufacturing operations against a price increase in its principal raw material and to assure a ready supply for future manufacturing requirements. Corn Products does not level a direct attack on these two-court findings but insists that its futures were 'property' entitled to capital-asset treatment under § 117 and as such were distinct from its manufacturing business. We cannot agree. 5 We find nothing in this record to support the contention that Corn Products' futures activity was separate and apart from its manufacturing operation. On the contrary, it apears that the transactions were vitally important to the company's business as a form of insurance against increases in the price of raw corn. Not only were the purchases initiated for just this reason, but the petitioner's sales policy, selling in the future at a fixed price or less, continued to leave it exceedingly vulnerable to rises in the price of corn. Further, the purchase of corn futures assured the company a source of supply which was admittedly cheaper than constructing additional storage facilities for raw corn. Under these facts it is difficult to imagine a program more closely geared to a company's manufacturing enterprise or more important to its successful operation. 6 Likewise the claim of Corn Products that it was dealing in the market as a 'legitimate capitalist' lacks support in the record. There can be no quarrel with a manufacturer's desire to protect itself against increasing costs of raw materials. Transactions which provide such protection are considered a legitimate form of insurance. United States v. New York Coffee & Sugar Exchange, 263 U.S. at page 619, 44 S.Ct. at page 227; Browne v. Thorn, 260 U.S. 137, 139—140, 43 S.Ct. 36, 37, 67 L.Ed. 171. However, in labeling its activity as that of a 'legitimate capitalist' exercising 'good judgment' in the futures market, petitioner ignores the testimony of its own officers that in entering that market the company was 'trying to protect a part of (its) manufacturing costs'; that its entry was not for the purpose of 'speculating and buying and selling corn futures' but to fill an actual 'need for the quantity of corn (bought) * * * in order to cover * * * what (products) we expected to market over a period of fifteen or eighteen months.' It matters not whether the label be that of 'legitimate capitalist' or 'speculator'; this is not the talk of the capital investor but of the far-sighted manufacturer. For tax purposes petitioner's purchases have been found to 'constitute an integral part of its manufacturing business' by both the Tax Court and the Court of Appeals, and on essentially factual questions the findings of two courts should not ordinarily be disturbed. Comstock v. Group of Institutional Investors, 335 U.S. 211, 214, 68 S.T. 1454, 1456, 92 L.Ed. 1911. 7 Petitioner also makes much of the conclusion by both the Tax Court and the Court of Appeals that its transactions did not constitute 'true hedging.' It is true that Corn Products did not secure complete protection from its market operations. Under its sales policy petitioner could not guard against a fall in prices. It is clear, however, that petitioner feared the possibility of a price rise more than that of a price decline. It therefore purchased partial insurance against its principal risk, and hoped to retain sufficient flexibility to avoid serious losses on a declining market. 8 Nor can we find support for petitioner's contention that hedging is not within the exclusions of § 117(a). Admittedly, petitioner's corn futures do not come within the literal language of the exclusions set out in that section. They were not stock in trade, actual inventory, property held for sale to customers or depreciable property used in a trade or business. But the capital-asset provision of § 117 must not be so broadly applied as to defeat rather than further the purpose of Congress. Burnet v. Harmel, 287 U.S. 103, 108, 53 S.Ct. 74, 76, 77 L.Ed. 199. Congress intended that profits and losses arising from the everyday operation of a business be considered as ordinary income or loss rather than capital gain or loss. The preferential treatment provided by § 117 applies to transactions in property which are not the normal source of business income. It was intended 'to relieve the taxpayer from * * * excessive tax burdens on gains resulting from a conversion of capital investments, and to remove the deterrent effect of those burdens on such conversions.' Burnet v. Harmel, 287 U.S. at page 106, 53 S.Ct. at page 75. Since this section is an exception from the normal tax requirements of the Internal Revenue Code, the definition of a capital asset must be narrowly applied and its exclusions interpreted broadly. This is necessary to effectuate the basic congressional purpose. This Court has always construed narrowly the term 'capital assets' in § 117. See Hort v. Commissioner, 313 U.S. 28, 31, 61 S.Ct. 757, 758, 85 L.Ed. 1168; Kieselbach v. Commissioner, 317 U.S. 399, 403, 63 S.Ct. 303, 305, 87 L.Ed. 358. 9 The problem of the appropriate tax treatment of hedging transactions first arose under the 1934 Tax Code revision.7 Thereafter the Treasury issued G.C.M. 17322, supra, distinguishing speculative transactions in commodity futures from hedging transactions. It held that hedging transactions were essentially to be regarded as insurance rather than a dealing in capital assets and that gains and losses therefrom were ordinary business gains and losses. The interpretation outlined in this memorandum has been consistently followed by the courts as well as by the Commissioner.8 While it is true that this Court has not passed on its validity, it has been well recognized for 20 years; and Congress has made no change in it though the Code has been re-enacted on three subsequent occasions. This bespeaks congressional approval. Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 46, 83 L.Ed. 52. Furthermore, Congress has since specifically recognized the hedging exception here under consideration in the short-sale rule of § 1233(a) of the 1954 Code, 26 U.S.C.A. § 1233(a).9 10 We believe that the statute clearly refutes the contention of Corn Products. Moreover, it is significant to note that practical considerations lead to the same conclusion. To hold otherwise would permit those engaged in hedging transactions to transmute ordinary income into capital gain at will. The hedger may either sell the future and purchase in the spot market or take delivery under the future contract itself. But if a sale of the future created a capital transaction while delivery of the commodity under the same future did not, a loophole in the statute would be created and the purpose of Congress frustrated. 11 The judgment is affirmed. 12 Affirmed. 13 Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 A commodity future is a contract to purchase some fixed amount of a commodity at a future date for a fixed price. Corn futures, involved in the present case, are in terms of some multiple of five thousand bushels to be delivered eleven months or less after the contract. Cf. Hoffman, Future Trading (1932), 118. 2 The grant was limited to the following two questions: '1. Are transactions in commodity futures which are not 'true hedges' capital asset transactions and thus subject to the limitations of Section 117 of the Internal Revenue Code of 1939, or do the resulting gains and losses from such transactions give rise to ordinary income and ordinary deductions? '2. Are commodity futures contracts 'securities' and thus subject to the 'wash sales' provisions of Section 118 of the Internal Revenue Code of 1939?' 3 Makransky's Estate v. Commissioner, 3 Cir., 154 F.2d 59; Commissioner of Internal Revenue v. Farmers & Ginners Cotton Oil Co., 5 Cir., 120 F.2d 772; Trenton Cotton Oil Co. v. Commissioner, 6 Cir., 147 F.2d 33. 4 Petitioner had contracts with three consumers to furnish, for a period of ten years or more, large quantities of starch or feed. In January 1940, petitioner had sold 2,000,000 bags of corp sugar, delivery to be made several months in the future. Also, members of the canning industry in the Pacific Coast had contracts to purchase corn sugar for delivery in more than thirty days. 5 The dispositions of the corn futures during the period in dispute were as follows: Sales of Delivery under futures thousand futures thousand bushels bushels 1938........... 17,400. 4,975 1939........... 14,180. 2,865 1940........... 14,595. 250 1941........... 2,545. 2,175 1942........... 5,695. 4,460 6 '(1) Capital assets. The term 'capital assets' means proprty held by the taxpayer (whether or not connected with his trade or business), but does not include stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business, or property, used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 23(1), * * *.' 7 Section 208(8) of the Revenue Act of 1924, 26 U.S.C.A.Int.Rev.Acts, page 13, limited 'capital assets' to property held more than two years. This definition was retained until the Act of 1934, 26 U.S.C.A.Int.Rev.Acts, page 659 et seq. Since the rules of the various commodity exchanges required that futures contracts be closed out in periods shorter than two years, these contracts could not qualify as capital assets. 8 Stewart Silk Corp. v. Commissioner, 9 T.C. 174; Battelle v. Commissioner, 47 B.T.A. 117; Grote v. Commissioner, 41 B.T.A. 247. See Estate of Makransky v. Commissioner, 5 T.C. 397, 412, affirmed per curiam, 3 Cir., 154 F.2d 59; Trenton Cotton Oil Co. v. Commissioner, 6 Cir., 147 F.2d 33, 35; Commissioner of Internal Revenue v. Farmers & Ginners Cotton Oil Co., 5 Cir., 120 F.2d 772, 774; Tennessee Egg Co. v. Commissioner, 47 B.T.A. 558, 560; G.C.M. 18383, 1937—2 Cum.Bull. 244, 245; I.T. 3137, 1937—2 Cum.Bull. 164, 166. Cf. Commissioner of Internal Revenue v. Banfield, 9 Cir., 122 F.2d 1017, 1019—1020; G.C.M. 18658, 1937—2 Cum.Bull. 77. 9 Section 1233(a) provides that gain or loss from 'the short sale of property, other than a hedging transaction in commodity futures,' shall be treated as gain or loss from the sale of a capital asset to the extent 'that the property, including a commodity future, used to close the short sale constitutes a capital asset in the hands of a taxpayer.' The legislative history recognizes explicitly the hedging exception. H.R.Rep. No. 1337, 83d Cong., 2d Sess., p. A278; S.Rep. No. 1622, 83d Cong., 2d Sess., p. 437: 'Under existing law bona fide hedging transactions do not result in capital gains or losses. This result is based upon case law and regulations. To continue this result hedging transactions in commodity futures have been specifically excepted from the operation of this subsection.'

1112

350 U.S. 11 76 S.Ct. 1 100 L.Ed. 8 UNITED STATES of America, ex rel. Audrey M. TOTH, Petitioner,v.Donald A. QUARLES, Secretary of the United States Air Force. No. 3. Argued Feb. 8, 9, 1955. Restored to Docket for Reargument June 6, 1955. See 349 U.S. 949, 75 S.Ct. 879. Reargued Oct. 13, 1955. Decided Nov. 7, 1955. [Syllabus from pages 12-13 intentionally omitted] Mr. William A. Kehoe, Jr., Washington, D.C., for petitioner. Mr. Simon E. Sobeloff, Sol.Gen., Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 After serving with the United States Air Force in Korea, Robert W. Toth was honorably discharged. He returned to his home in Pittsburgh and went to work in a steel plant. Five months later he was arrested by military authorities on charges of murder and conspiracy to commit murder while an airman in Korea.1 At the time of arrest he had no relationship of any kind with the military. He was taken to Korea to stand trial before a court-martial under authority of a 1950 Act of Congress.2 The Court of Appeals, 94 U.S.App.D.C. 28, 215 F.2d 22, sustained the Act, rejecting the contention that civilian ex-servicemen like Toth could not constitutionally be subjected to trial by court-martial. We granted certiorari to pass upon this important constitutional question. United States ex rel. Toth v. Talbott, 348 U.S. 809, 75 S.Ct. 39.3 2 The 1950 Act cannot be sustained on the constitutional power of Congress 'To raise and support Armies', 'To declare War', or to punish 'Offenses against the Law of Nations.' Art. 1, § 8.4 And this assertion of military authority over civilians cannot rest on the President's power as commander-in-chief, or on any theory of martial law. See Ex parte Milligan, 4 Wall. 2, 124—127, 18 L.Ed. 281. The Government's contention is that the Act is a valid exercise of the power granted Congress in Article I of the Constitution 'To make Rules for the Government and Regulation of the land and naval Forces', as supplemented by the Necessary and Proper Clause.5 3 This Court has held that the Article I clause just quoted authorizes Congress to subject persons actually in the armed service to trial by court-martial for military and naval offenses.6 Later it was held that court-martial jurisdiction could be exerted over a dishonorably discharged soldier then a military prisoner serving a sentence imposed by a prior court-martial.7 It has never been intimated by this Court, however, that Article I military jurisdiction could be extended to civilian ex-soldiers who had severed all relationship with the military and its institutions.8 To allow this extension of military authority would require an extremely broad construction of the language used in the constitutional provision relied on. For given its natural meaning, the power granted Congress 'To make Rules' to regulate 'the land and naval Forces' would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces. There is a compelling reason for construing the clause this way: any expansion of court-martial jurisdiction like that in the 1950 Act necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution where persons on trial are surrounded with more constitutional safeguards than in military tribunals. 4 Article III provides for the establishment of a court system as one of the separate but coordinate branches of the National Government. It is the primary, indeed the sole business of these courts to try cases and controversies between individuals and between individuals and the Government. This includes trial of criminal cases. These courts are presided over by judges appointed for life, subject only to removal by impeachment. Their compensation cannot be diminished during their continuance in office. The provisions of Article III were designed to give judges maximum freedom from possible coercion or influence by the executive or legislative branches of the Government. But the Constitution and the Amendments in the Bill of Rights show that the Founders were not satisfied with leaving determination of guilt or innocence to judges, even though wholly independent. They further provided that no person should be held to answer in those courts for capital or other infamous crimes unless on the presentment or indictment of a grand jury drawn from the body of the people. Other safeguards designed to protect defendants against oppressive governmental practices were included. One of these was considered so important to liberty of the individual that it appears in two parts of the Constitution. Article III, § 2, commands that the 'Trial of all Crimes, except in Cases of Impeachment, shall be by Jury * * *.' And the Sixth Amendment provides that 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * *.' This right of trial by jury ranks very high in our catalogue of constitutional safeguards.9 5 We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. For instance, the Constitution does not provide life tenure for those performing judicial functions in military trials. They are appointed by military commanders and may be removed at will. Nor does the Constitution protect their salaries as it does judicial salaries. Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals. 6 Moreover, there is a great difference between trial by jury and trial by selected members of the military forces. 7 It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. But whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is inherent in the institution of trial by jury. 8 Juries fairly chosen from different walks of life bring into the jury box a variety of different experiences, feelings, intuitions and habits.10 Such juries may reach completely different conclusions than would be reached by specialists in any single field, including specialists in the military field.11 On many occasions, fully known to the Founders of this country, jurors—plain people—have manfully stood up in defense of liberty against the importunities of judges and despite prevailing hysteria and prejudices.12 The acquittal of William Penn is an illustrious example.13 Unfortunately, instances could also be cited where jurors have themselves betrayed the cause of justice by verdicts based on prejudice or pressures. In such circumstances independent trial judges and independent appellate judges have a most important place under our constitutional plan since they have power to set aside convictions.14 9 The 1950 Act here considered deprives of jury trial and sweeps under military jurisdiction over 3,000,000 persons who have become veterans since the Act became effective. That number is bound to grow from year to year; there are now more than 3,000,000 men and women in uniform.15 These figures point up what would be the enormous scope of a holding that Congress could subject every ex-serviceman and woman in the land to trial by court-martial for any alleged offense committed while he or she had been a member of the armed forces. Every veteran discharged since passage of the 1950 Act is subject to military trial for any offense punishable by as much as five years' imprisonment unless the offense is now punishable in a civilian court. And one need only glance at the Military Code to see what a vast number and variety of offenses are thus brought under military jurisdiction.16 Included within these are crimes such as murder, conspiracy, absence without leave, contempt toward officials, disrespect toward superior officers, willful or neglectful loss, damage, or destruction of government property, making false official statements, dueling, breach of the peace, forgery, fraud, assault, and many others.17 It is true that with reference to some of these offenses, very minor ones, veterans cannot now be tried because of a presidential order fixing the punishment for such offenses at less than five years.18 But that amelioration of the Military Code may be temporary, since punishment can be raised or lowered at the will of the President. It is also true that under the present law courts-martial have jurisdiction only if no civilian court does. But that might also be changed by Congress. Thus there is no justification for treating the Act as a mere minor increase of congressional power to expand military jurisdiction. It is a great change, both actually and potentially. 10 Fear has been expressed that if this law is not sustained discharged soldiers may escape punishment altogether for crimes they commit while in the service. But that fear is not warranted and was not shared by the Judge Advocate General of the Army who made a strong statement against passage of the law.19 He asked Congress to 'confer jurisdiction upon Federal courts to try any person for an offense denounced by the (military) code if he is no longer subject thereto. This would be consistent with the fifth amendment of the Constitution.' The Judge Advocate General went on to tell Congress that 'If you expressly confer jurisdiction on the Federal courts to try such cases, you preserve the constitutional separation of military and civil courts, you save the military from a lot of unmerited grief, and you provide for a clean, constitutional method for disposing of such cases.' It is conceded that it was wholly within the constitutional power of Congress to follow this suggestion and provide for federal district court trials of discharged soldiers accused of offenses committed while in the armed services. This concession is justified. U.S.Const. Art. III, § 2; and see, e.g., Jones v. United States, 137 U.S. 202, 211—212, 11 S.Ct. 80, 83, 34 L.Ed. 691; United States v. Bowman, 260 U.S. 94, 97—98, 43 S.Ct. 39, 40—41, 67 L.Ed. 149; Skiriotes v. Florida, 313 U.S. 69, 73—74, 61 S.Ct. 924, 927—928, 85 L.Ed. 1193. There can be no valid argument, therefore, that civilian ex-servicemen must be tried by court-martial or not tried at all. If that is so it is only because Congress has not seen fit to subject them to trial in federal district courts. 11 None of the other reasons suggested by the Government are sufficient to justify a broad construction of the constitutional grant of power to Congress to regulate the armed forces. That provision itself does not empower Congress to deprive people of trials under Bill of Rights safeguards, and we are not willing to hold that power to circumvent those safeguards should be inferred through the Necessary and Proper Clause. It is impossible to think that the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed, by giving exservicemen the benefit of a civilian court trial when they are actually civilians. And we are not impressed by the fact that some other countries which do not have our Bill of Rights indulge in the practice of subjecting civilians who were once soldiers to trials by courts-martial instead of trials by civilian courts.20 12 There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. Even as late as the Seventeenth Century standing armies and courts-martial were not established institutions in England.21 Court-martial jurisdiction sprang from the belief that within the military ranks there is need for a prompt, ready-at-hand means of compelling obedience and order. But Army discipline will not be improved by court-martialing rather than trying by jury some civilian ex-soldier who has been wholly separated from the service for months, years or perhaps decades. Consequently considerations of discipline provide no excuse for new expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury.22 13 Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to 'the least possible power adequate to the end proposed.'23 We hold that Congress cannot subject civilians like Toth to trial by court-martial. They, like other civilians, are entitled to have the benefit of safeguards afforded those tried in the regular courts authorized by Article III of the Constitution. 14 Reversed. 15 Mr. Justice REED, with whom Mr. Justice BURTON and Mr. Justice MINTON join, dissenting. 16 This case presents the question whether or not an honorably discharged exserviceman may be apprehended by military authorities to stand trial by court-martial for a crime alleged to have been committed by him while he was a member of the armed forces of the United States. The answer turns upon the constitutionality and construction of the applicable provisions of the Uniform Code of Military Justice, 64 Stat. 108, 50 U.S.C. § 551 et seq., 50 U.S.C.A. § 551 et seq. under which the United States Air Force acted in this case. 17 Whenever an enactment of Congress to cure weaknesses in criminal procedure is declared unconstitutional by this Court on the ground of lack of legislative power, the door is closed for all practical purposes forever on the method that Congress deems effective for correcting crime. Only an overruling of this case can change today's constitutional determination. 18 The judgment just announced turns loose, without trial or possibility of trial, a man accused of murder. In future similar cases among the military, if Congress enacts the substitute law as the Court suggests, 350 U.S. 21, 76 S.Ct. 7, the accused must face a jury far removed from the scene of the alleged crime and before jurors without the understanding of the quality and character of a military crime possessed by those accustomed to administer the Uniform Code of Military Justice. Or perhaps those accused will be extradited and tried by foreign law. 19 A dissent is justified, I think, if its argument may limit, in some degree, further interpreting limitations by the judiciary on the power granted by the Constitution to Congress: 'To make Rules for the Government and Regulation of the land and naval Forces' without the jury and venue requirements of the Fifth and Sixth Amendments. These requirements are appropriate for civil trials but, by custom, our precedents and express language are inapplicable to 'cases arising in the land or naval forces.' 20 Robert W. Toth, after service in the United States Air Force, was honorably discharged on December 8, 1952. On April 8, 1953, formal charges were signed under the procedures required by the Uniform Code of Military Justice charging Toth with premeditated murder and conspiracy to commit murder.1 The specifications under the charges alleged that the offenses were committed by Toth while an Airman First Class, United States Air Force, on September 27, 1952, at an air base in Korea, and the victim was a named Korean national. It was further alleged that Toth was a civilian subject to the Uniform Code of Military Justice under Article 3(a) thereof which provides: 21 'Subject to the provisions of article 43, any person charged with having committed, while in a status in which he was subject to this code, an offense against this code, punishable by confinement of five years or more and for which the person cannot be tried in the courts of the United States or any State or Territory thereof or of the District of Columbia, shall not be relieved from amenability to trial by courts-martial by reason of the termination of said status.' 64 Stat. 109, 50 U.S.C. § 553(a), 50 U.S.C.A. § 553(a).2 22 On May 13, 1953, pursuant to orders originally issued by the Acting Secretary of the Air Force on April 30, 1953, and further supplemental orders through appropriate Air Force command channels, Toth was apprehended by Air Force police at his place of employment in Pittsburgh, Pennsylvania. On May 15, 1953, he was flown to Korea where he arrived on May 18, 1953. 23 This was the situation when the petition for habeas corpus was filed by the relator. The Government did not question jurisdiction in the District Court and after argument that court ordered the writ to issue.3 Toth was returned to the United States and produced in court, whereupon the District Court ordered his discharge on the ground that even if the Air Force police had authority to apprehend Toth, they had no legal power to transport him to a distant point for trial or at least to do so without a hearing. The court therefore found it unnecessary to pass on the constitutional objections raised by the petitioner as to the invalidity of Article 3(a). Toth v. Talbott, D.C., 114 F.Supp. 468. 24 On appeal, the Court of Appeals for the District of Columbia Circuit reversed the District Court, discharged the writ and ordered Toth returned to the military authorities. Talbott v. United States ex rel. Toth, 94 U.S.App.D.C. 28, 215 F.2d 22. The Court of Appeals held that Article 3(a) of the Code was constitutionally valid and that the Code provided the necessary authorization and machinery to apprehend and transport for trial, in the manner here followed, persons in civilian status who were amenable to courtsmartial by reason of the provisions of Article 3(a). 25 The Code was enacted May 5, 1950, after careful military and congressional study to assure that the military justice of the unified services would be in accordance with the present-day standards of fairness.4 Article 3(a) was adopted in view of the decision of this Court in United States ex rel. Hirshberg v. Cooke, 1949, 336 U.S. 210, 69 S.Ct. 530, 93 L.Ed. 621, holding the Articles for the Government of the Navy, then in force, did not allow trial on charges filed subsequent to honorable discharge 'without a grant of congressional authority,' id., 336 U.S. at page 215, 69 S.Ct. at page 533, although the charges arose from acts committed while the defendant was in military service. The near escape from military justice of Army personnel accused of the theft in Germany of the Hesse crown jewels was also in mind.5 It was thought that a serviceman's discharge should not bar his prosecution in a military court for crimes committed when subject to military discipline.6 26 The enactment of Article 3(a) was chosen instead of the alternative of federal district court jurisdiction, although thorough presentations of objections not only on constitutional but also on policy grounds appear in the committee report and the Congressional Record.7 The military were well aware, as was Congress, of possible unfavorable public reaction to extension of the jurisdiction of military courts to discharged veterans for alleged misdeeds during service. The language of Article 3(a) was drawn to cover only the most serious offenses and restricted to those instances in which the guilty would otherwise escape trial or punishment in any American courts. Although Congress, under Art. I, § 8, cl. 14,8 and the Necessary and Proper Clause, doubtless might have authorized the civil courts to try charges arising from violations of the Military Code during former service, even though committed on foreign soil,9 it chose the method of Article 3(a). 27 No question of accommodating the liberty of the citizen to requirements of the military through the interpretation of an ambiguous Act arises. Compare Ex parte Endo, 323 U.S. 283, 300, 65 S.Ct. 208, 217, 89 L.Ed. 243. It is not for courts to question the wisdom of the legislation. Its obvious purpose was to assure, insofar as discipline may do so, the proper conduct of our far-flung and numerous military personnel in foreign lands. One need not stress the necessity of orderly conduct by the military on foreign posts for the maintenance of good relations in friendly or vanquished countries. It also seems a reasonable choice that uniform treatment by courts-martial trial of all accused of crimes punishable by the Military Code is preferred for morale and disciplinary purposes to courts-martial trial only for those who remain in the service. This case itself would make a good example of the difficulty of a federal district court trial. We address ourselves to the constitutionality of Article 3(a). 28 (a) The congressional power under Article I of the Constitution to regulate the armed forces is conceded by the Court to embrace the power to provide for trial by court-martial and military punishment for violations of the Military Code. But the Court holds that that power ceases when the serviceman becomes a civilian. Nothing, we think, in the words of Article I or in the history of that congressional power justifies limiting trial and punishment by the military, for crimes committed by members of the armed services, to the period of service. Certainly the power of Congress to provide for a military trial and punishment for a breach of the Military Code on charges brought before the end of enlistment or discharge may continue thereafter.10 The crime charged against Toth was one covered by the Code. The circumstance that he was discharged from the service prior to the detection of the alleged crime and prior to being charged with its commission should make no constitutional difference. 29 Courts-martial are deeply rooted in history. War is a grim business, requiring sacrifice of ease, opportunity, freedom from restraint, and liberty of action. Experience has demonstrated that the law of the military must be capable of prompt punishment to maintain discipline. The power to regulate the armed forces must have been granted to Congress so that it would have the authority over its armed forces that other nations have long exercised, subject only to limitations of the Constitution. Dynes v. Hoover, 20 How. 65, 78—79, 15 L.Ed. 838; Ex parte Reed, 100 U.S. 13, 21, 25 L.Ed. 538. The Government calls our attention to the current provisions for military trial after discharge of other nations with legal background similar to ours. Each of them allows such trials under varying conditions.11 Whether English courts-martial before 1789 exercised jurisdiction over charges preferred after separation from service cannot be categorically asserted in view of the paucity of cases. It would seem, however, that the language of Article I itself properly should be interpreted to empower Congress to authorize courts-martial after separation from the services. The crime charged was committed during service and violated the Military Code. Surely when read with the Necessary and Proper Clause, the conclusion must follow. Article 3(a) bears a reasonable relation to the 'Government and Regulation' of the armed forces; it is appropriate and plainly adapted to that end. McCulloch v. Maryland, 4 Wheat. 316, 419 et seq., 4 L.Ed. 579. That has been the test of congressional power. 30 This is not an effort to make a civilian subject to military law, in distinction to martial law, as in Ex parte Milligan, 4 Wall. 2, 121, 123, 127, 18 L.Ed. 281. Such an effort would meet condemnation as an invasion of the liberty of the citizen. See Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688; Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243. Congress was granted authority to regulate the armed forces in order to enforce obedience by members of the military establishment to military regulation during their service to the end that order may be ensured. Disobedience may occur in nationally critical times. What reason can there be for refusing courts-martial jurisdiction over crimes so committed by a serviceman merely because they passed undiscovered during the service period?12 Could there now be doubt as to the power of Congress under Art. I to make a draftee subject to courts-martial before actual induction into the armed forces? This Court had none in 1944. Then we said, when considering a habeas corpus for release from military imprisonment after trial by court-martial of a person claiming civilian status: 31 'We have no doubt of the power of Congress to enlist the manpower of the nation for prosecution of the war and to subject to military jurisdiction those who are unwilling, as well as those who are eager, to come to the defense of their nation in its hour of peril. Arver v. United States, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (Selective Draft Law Cases).' Billings v. Truesdell, 321 U.S. 542, 556, 64 S.Ct. 737, 745, 88 L.Ed. 917. 32 Toth may be a civilian but his crime was a violation of military regulations. 33 Judicial history lends its weight to the conclusion that congressional power to institute criminal proceedings against a military person continues after the accused's discharge. In 1863, the Congress enacted an Act to prevent and punish frauds upon the Government of the United States. It provided that any person in the military forces shall be punished for fraud under military regulation 'as the court-martial may adjudge, save the punishment of death.' 12 Stat. 696—697, § 1. Under § 2, jurisdiction of the court-martial was extended to dischargees.13 The provision for charge and court-martial after discharge was ruled constitutional in 1866 by Attorney General Stanbery.14 The section was held constitutional in 1873. In re Bogart, 3 Fed.Cas.No.1,596, p. 796. See other cases, note 22, infra. It was apparently held unconstitutional in 1946 under Article I in the District Court for the Southern District of New York, although the problem under the Fifth Amendment was also considered. United States ex rel. Flannery v. Commanding General, D.C., 69 F.Supp. 661, 664.15 34 It is also to be noted that the present Uniform Code, Art. 4, 50 U.S.C. § 554, 50 U.S.C.A. § 554, provides that an officer dismissed by the President may request trial by court-martial after such dismissal. A similar provision was first enacted by Congress in 1865, § 12, 13 Stat. 487, 489; see Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 64, 65. 35 The Court finds a 'compelling reason' for construing the clause for Army regulation more narrowly than has been done by the Congress and the Executive for many years. This is that trial by Article III judges and juries offers safeguards to military offenders superior to those offered by courts-martial. Under our judicial system the use of juries has been found satisfactory in civil life. The argument for the adoption of civil trials for the military might appeal to Congress, if presented there. But, with due respect to the premise of the majority, the assumed superiority of the civil courts in the trial of service crimes should have no force in the construction of the constitutional power of Congress to enact Article 3(a) of the Code. Belief that an accused has better opportunities to escape conviction in a civil court should not influence a conclusion as to constitutional power. As later appears in this opinion, the Fifth and Sixth Amendments except the land and naval forces from their commands. The advantages and disadvantages of indictment, venue and jury trial for the military have been weighed and determined adversely to the Court's conclusion by the Constitution and the Congress. Certainly the number of former members of the armed services now living is immaterial to the constitutional issue, as are the 'dangers' suggested to be 'lurking in military trials.' The military is in position to give its personnel a fair trial. The only logical ground for declaring Article 3(a) unconstitutional is that military crimes cannot be so punished because such procedure is beyond the reach of the congressional authority to make rules for government of military personnel. Subsequent punishment by military procedures will help discipline during service. Such a conclusion by Congress is not strained or unreasonable but a natural use of its power to make regulations for the armed services. The choice is for Congress, not the Court. 36 (b) Another constitutional problem arises, i.e., that Article 3(a) is unlawful by reason of the limitations on prosecutions of the Fifth and Sixth Amendments to the Constitution.16 37 The argument upon the Sixth Amendment requires only summary treatment. The rights to a speedy and public trial, impartiality of the triers, information as to the charge, confrontation, compulsory process for witnesses and assistance of counsel are not in issue. This accused will not have for his trial a jury of the State and district of the crime, previously ascertained by our law. That is an impossibility in the circumstances of this case. Nor can it be that the Sixth Amendment requirements as to jury and place were intended to apply to the 'cases arising in the land or naval forces' which were excepted from the protection of the grand jury by the Fifth. That would abrogate the authority of Congress to govern the military by courts-martial. It was so announced by this Court, unanimously, in Ex parte Milligan, 4 Wall. 2, 122, 18 L.Ed. 281.17 Defendants in cases arising in the armed forces, we think, are not entitled to demand trial by jury, whether the crime was committed on foreign soil or at a place within a State or previously ascertained district. 38 Turning to the Fifth Amendment the critical words are obviously 'cases arising in the land or naval forces.' The events leading to the taking of Toth into custody occurred while he was enlisted. They constituted then and now a violation of the Uniform Code. Relator would limit the quoted words to cases where charges had been filed during service. She stresses the phrase 'when in actual service', but this Court has held and all the history of our courts-martial shows that such phrase has reference only to 'cases arising * * * in the Militia.' Johnson v. Sayre, 158 U.S. 109, 114, 15 S.Ct. 773, 775, 39 L.Ed. 914. 39 The Fifth, like the other early amendments, arose from the determination to protect the rights of citizens. As the Articles of Confederation, Article 9, granted authority to the central government to make rules for the government and regulation of the armed forces, the Nation was conversant with the problem. In the state conventions for ratification of the Constitution, Massachusetts, New Hampshire, New York and Rhode Island suggested words for regulation of the armed forces quite similar to the ones adopted by Congress.18 It will be observed that two employ 'arise.' Three speak of 'cases.' Since the state suggestions were made as the result of consideration of the proposed Constitution, it is quite natural that the language of Article III concerning the judicial power would find an echo in the suggestions, Article III, § 2, reads, 'The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *.' When the Congress considered the Act against military fraud in 1863, note 13, supra, no one suggested that a 'case,' the prosecution for which under the Act did not begin until after discharge of a serviceman, would not be a 'case arising in the land or naval forces.' The concern of Congress was with the liability of contractors, as party of military personnel, under § 1 of the Act, when they had no true military service status.19 Because not service-connected, the contractors' clause has been held unconstitutional. Ex parte Henderson, 11 Fed.Cas.No.6,349, pp. 1067, 1071. 40 The word 'case,' of course, might refer to litigation—a charge or complaint brought in court, here a prosecution. But it seems to us that its meaning, as used in the constitutional clauses under consideration, is a state of facts for judicial action, i.e., the series of events that creates an enforceable right or obligation. The context in which it is used bears on the final definition. Here 'cases arising' is more specific than the word 'case' alone. The Government gives us several citations to cases applying the meaning for which it contends.20 Relator does the same.21 Article III uses 'cases arising' under federal law to indicate the extent of possible federal jurisdiction over legal rights or duties created by the laws of the United States. The meaning of 'cases arising' in Article III and the Fifth Amendment must be determined by their purpose. That purpose is similar—to mark the source of the cause of action that ripens into a civil complaint or criminal charge. However restricted the word 'case' may be, its use with 'arising' points to the source of the litigation. If a case is claimed to exist only after institution of legal proceedings, nevertheless that case has its roots, it arises, in the events that give life to the cause of action. When a case so arises was stated thus in Gully v. First Nat. Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70, in an opinion concerning the removal statute, where removal was asked because the state suit was alleged to have arisen under federal law: 41 'To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. * * * The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. * * *' 42 One of the purposes of the Fifth Amendment by this exception was to preserve the separation of military law from the requirements of civil law. The regulation of the armed forces by Congress under cl. 14 of § 8, Art. I, was to be left for legislative judgment that discipline might be maintained by speedy trial and punishment in accordance with military law. The reasons, set out in our discussion of Article I power to regulate the armed forces, need not be repeated here. We ask ourselves, 'What law is the basis of this prosecution?' The answer is the Military Code. If so, the case arises 'in the land or naval forces.' 43 That conclusion has the support of the weight of the precedents dealing with this phase of the Fifth Amendment. To meet the argument of defendant that jurisdiction must attach before discharge, it was said in the Bogart case, 3 Fed.Cas.No. 1,596, pp. 796, 799: 44 'Among the ordinary and most common definitions of the word 'arise,' are 'to proceed, to issue, to spring,' and a case arising in the land or naval forces upon a fair and reasonable construction of the whole article, appears to us to be a case proceeding, issuing or springing from acts in violation of the naval laws and regulations committed while in the naval forces or service.' This statement has been strengthened by the accord given the argument by other courts.22 45 (c) The Court, of course, does not gainsay the constitutional suthority of Congress to adopt a military code for regulation of members of the armed forces without regard to the generally applicable requirements of the Fifth and Sixth Amendments. It holds that where the constitutional safeguards of the Fifth and Sixth Amendments for a citizen's freedom from tyranny are at stake, they should not be withdrawn except through absolute necessity. There is no such necessity here for it would have been possible to have provided a proper civil trial with the full protection of the applicable clauses of the Amendments. But here we are considering an exception to the safeguards offered by the Fifth and Sixth Amendments. That exception has been written into the Constitution from the experience of history to protect the discipline of the armed forces. Of course, that exception from the protections of these Amendments should be strictly construed to hold those excluded to the minimum as was done in Ex parte Henderson, supra, 76 S.Ct. 17. Construction of the Constitution, however, should not be allowed to emasculate the natural meaning of language designed to protect the Nation in the regulation of its armed forces. 46 What we have argued in the foregoing pages of this opinion supports our conclusion on this tendered rule of construction. Granting that there are possible means of affording civil trials to persons discharged from the Army for military crimes committed during their service, we think that Congress has power to provide for punishment of these military crimes under the constitutional exceptions discussed. Such punishment, if our analysis of Article I and the Fifth and Sixth Amendments is correct, will be for military crimes of servicemen, not of civilians, and for the maintenance of discipline in the armed forces. 47 The relator phrases strongly her argument against Toth's prosecution by courts-martial. To her the issue is 'military dictatorship.' Though she concedes that Congress may have merely desired to bar absolution from crime by discharge from service, such purpose, she argues, should not override the Constitution or be allowed to foreshadow a 'military dictatorship.' She forebodes that every petty crime may be included and limitation of prosecution be extended until all discharged servicemen shall live their lives under fear of the Military. The law still has degrees of harshness and courts and legislatures must act in reason. The possibility of individual abuse of power is ever present even under our Constitution but the probability of obliteration of any such tendency through judicial, executive or legislative action is the citizen's protection under the Constitution. A fear that punishment by courts-martial of servicemen after discharge may bear a threat to the rights and security of citizens is extravagant. It is true today, as it was in the time of the Founding Fathers, that the methods for maintenance of Army discipline should be subject to public opinion as expressed through Congress. If trial of discharged servicemen by courts-martial under the carefully defined provisions of Article 3(a) seems harsh or hurtful to liberty, the door of Congress remains open for amelioration. This decision that a veteran, let out of the military forces before charges, must, by the Constitution, be tried by the civil courts for his military crimes impairs congressional power. Now only another Constitutional Amendment or a reversal of today's judgment will enable Congress to deal consistently with those violating the Uniform Code of Military Justice. We cannot agree that those who adopted the constitutional provisions for the protection of military discipline intended such a result. Toth's alleged accomplices have been convicted by military courts and we see no reason why he should not be tried as proposed. 48 The decision below should be affirmed. 49 Mr. Justice MINTON, whom Mr. Justice BURTON joins, dissenting. 50 I agree with the opinion of Mr. Justice REED, and I would add another reason why I think the judgment should be affirmed. 51 A civilian not under the jurisdiction of the Military Code has a right to be tried in a civil court for an alleged crime as a civilian. My trouble is that I don't think Toth was a full-fledged civilian. By 50 U.S.C. § 553, 50 U.S.C.A. § 553, Congress had retained jurisdiction to try Toth for a crime he had committed while a soldier and for which admittedly he could have been tried by court-martial if the United States had discovered his crime one minute before discharge. 52 He was not a full-fledged civilian under his discharge. He was still a soldier to answer in court-martial for the crime he had committed while a soldier. He had a conditional discharge only. The United States clearly reserved the right to charge and try him by court-martial for a crime committed while in the status of a soldier. This is the way Congress had provided for his trial. No other way was provided. That it may have provided another way is not to say the way provided is invalid. 53 I know of no reason why Congress could not pass this statute, 50 U.S.C. § 553, 50 U.S.C.A. § 553, retaining court-martial jurisdiction over Toth to answer for a crime he allegedly committed when he was clearly subject to court-martial. Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469, holds that, even though discharged from service, one convicted and serving sentence for a military offense could still be tried by courtmartial for murder, and conspiracy to commit murder even though the crime was alleged to have been committed within the limits of a state. Congress had made no provision for retention of status in that case as it had in this case, yet the Court implied the continuing military status to warrant the jurisdiction. No implied status is necessary here. It is expressly reserved by statute. Toth remained in that status by virtue of the statute. 1 The charges were violations of Articles 118 and 81 of the Uniform Code of Military Justice, 64 Stat. 140, 134, 50 U.S.C. §§ 712 and 675, 50 U.S.C.A. §§ 712, 675. 2 Art. 3(a), Uniform Code of Military Justice, 64 Stat. 109, 50 U.S.C. § 553, 50 U.S.C.A. § 553, provides: 'Subject to the provisions of article 43, any person charged with having committed, while in a status in which he was subject to this code, an offense against this code, punishable by confinement of five years or more and for which the person cannot be tried in the courts of the United States or any State or Territory thereof or of the District of Columbia, shall not be relieved from amenability to trial by courts-martial by reason of the termination of said status.' 3 This habeas corpus proceeding was brought in the District Court for the District of Columbia by Toth's sister while he was held in Korea. Without passing on any constitutional question the District Court ordered Toth discharged on the ground that he should not have been carried to Korea for trial without a hearing. Toth v. Talbott, D.C., 113 F.Supp. 330, Id., D.C., 114 F.Supp. 468. 4 See Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3; In re Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499. 5 The Fifth Amendment provides that 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger * * *.' This provision does not grant court-martial power to Congress; it merely makes clear that there need be no indictment for such military offenses as Congress can authorize military tribunals to try under its Article I power to make rules to govern the armed forces. 6 Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838. 7 Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469. 8 In 1863 Congress passed a statute authorizing trial of ex-soldiers for commission of fraud against the Government while in the service; this law also authorized court-martial trial of contractors not part of the military forces. 12 Stat. 696. The latter provision of the 1863 law appears never to have been sustained by any court. Lower courts have disagreed as to the constitutional validity of the provision authorizing ex-soldiers to be tried. See, e.g., In re Bogart, 3 Fed.Cas.No.1,596, p. 796. Compare Ex parte Henderson, 11 Fed.Cas.No.6,349, p. 1067; United States ex rel. Flannery v. Commanding General, D.C., 69 F.Supp. 661, reversed by stipulation in order of the Second Circuit, No. 20235, April 18, 1946. See United States ex rel. Hirshberg v. Cooke, 336 U.S. 210, 69 S.Ct. 530, 93 L.Ed. 621. A statute authorizing court-martial trial of inmates of the Soldiers' Home has been ruled unconstitutional by the Judge Advocate General of the Army. Dig.Op.J.A.G. (1912), pp. 1010, 1012. It was declared that 'such inmates are not a part of the Army of the United States, but are civilians.' Id., at 1012. Col. Winthrop, concededly a leading authority on military law, expressed the view that 'this class of statutes, which in terms or inferentially subject persons formerly in the army, but become finally and legally separated from it, to trial by court-martial, are all necessarily and alike unconstitutional. * * *' 1 Winthrop, Military Law and Precedents 2d ed. (1896), 146. The War Department reprinted this classic volume for the guidance of the Army in 1920. Winthrop, Military Law and Precedents (2d ed., Reprint 1920). 9 A declaration of rights adopted by nine colonies in 1765 contained this statement: 'That trial by jury, is the inherent and invaluable right of every British subject in these colonies.' Harvard Classics, Volume 43, p. 148. The Declaration of Independence stated as one of the grievances of the colonies that the King of Great Britain had deprived the colonists of the benefits of trial by jury in many cases and that he had 'affected to render the Military independent of and superior to the Civil power.' Another charge was that he had transported colonials 'beyond Seas to be tried for pretended offences.' 10 Chief Justice Cooley said: 'The trial of criminal cases is by a jury of the country, and not by the court. The jurors, and they alone, are to judge of the facts, and weigh the evidence. The law has established this tribunal because it is believed that, from its numbers, the mode of their selection, and the fact that the jurors come from all casses of society, they are better calculated to judge of motives, weigh probabilities, and take what may be called a common sense view of a set of circumstances, involving both act and intent, than any single man, however pure, wise and eminent he may be. This is the theory of the law; and as applied to criminal accusations, it is eminently wise, and favorable alike to liberty and to justice.' People v. Garbutt, 17 Mich. 9, 27. 11 'Juries undoubtedly may make mistakes: they may commit errors: they may commit gross ones. But changed as they constantly are, their errors and mistakes can never grow into a dangerous system. The native uprightness of their sentiments will not be bent under the weight of precedent and authority. The esprit du corps will not be introduced among them; nor will society experience from them those mischiefs, of which the esprit du corps, unchecked, is sometimes productive.' II Wilson's Works (Andrews ed. 1896) 222. 12 An outstanding instance is the Dean of St. Asaph's Case, 21 How.St.Tr. 847, discussed in Stryker, For the Defense, 119—136. 13 Penn and Mead's Case, 6 Howell's State Trials 951. After trial the jurors were fined for acquitting Penn contrary to the court's instructions. One was imprisoned for not paying the fine, but the Court of Common Pleas released him in habeas corpus proceeding, upholding the freedom of the jury to decide the case. Bushell's Case, 6 How.St.Tr. 999. 14 See II Wilson's Works (Andrews ed. 1896) 222. 15 Bureau of the Census, Current Population Reports, Series P—25, No. 101 (U.S. Dept. Commerce 1954). 16 Arts. 77—134, Uniform Code of Military Justice, 64 Stat. 133—143, 50 U.S.C. §§ 671—728, 50 U.S.C.A. §§ 671—728. 17 A particularly sweeping offense, punishable by death and not subject to any statute of limitations, is found in Article 94, which provides in part that anyone '(2) who with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person or persons, revolt, violence, or other distubance against such authority is guilty of sedition; (3) who fails to do his utmost to prevent and suppress an offense of mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior or commanding officer of an offense of mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.' (Emphasis supplied.) 18 See Table of Maximum Punishments, 127 c, MCM, 1951, 16 Fed.Reg. 1364—1368. 19 Hearings before Subcommittee of Senate Committee on Armed Services on S. 857 and H.R. 4080, 81st Cong., 1st Sess. 256—257. The Assistant General Counsel of the Office of Secretary of Defense, who was chairman of a committee that helped draft the Uniform Code of Military Justice, expressed doubts as to the constitutionality of Article 3(a). Hearings before Subcommittee of House Committee on Armed Services on H.R. 2498, 81st Cong., 1st Sess. 881. 20 The historical background of this country's preference for civilian over military trials was impressively presented in the arguments of counsel and opinion of this Court in Ex parte Milligan, 4 Wall. 2, 121, 18 L.Ed. 281. And see Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688. 21 3 Macaulay, History of England from the Accession of James the Second (London, 1855), 45. 22 Mr. Justice Sutherland writing for the Court in Dimick v. Schiedt, 293 U.S. 474, 485—486, 55 S.Ct. 296, 300—301, 79 L.Ed. 603, said, 'The right of trial by jury is of ancient origin, characterized by Blackstone as 'the glory of the English law' and 'the most transcendent privilege which any subject can enjoy' (Bk. 3, p. 379); and, as Justice Story said (2 Story on the Constitution, § 1779), '* * * the Constitution would have been justly obnoxious to the most conclusive objection if it had not recognized and confirmed it in the most solemn terms.' With, perhaps, some exceptions, trial by jury has always been, and still is, generally regarded as the normal and preferable mode of disposing of issues of fact in civil cases at law as well as in criminal cases. Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care. Compare Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253 (263), 74 L.Ed. 854.' 23 Anderson v. Dunn, 6 Wheat. 204, 230—231, 5 L.Ed. 242. 1 The charges were violations of Articles 118 and 81 respectively of the Uniform Code of Military Justice, 50 U.S.C. §§ 712, 675, 50 U.S.C.A. §§ 712, 675. 2 Article 43 is the statute of limitations applicable to offenses punishable under the Code, 50 U.S.C. § 618, 50 U.S.C.A. § 618. 3 Toth v. Talbott, D.C, 113 F.Supp. 330. 4 S.Rep. No. 486, 81st Cong., 1st Sess., p. 3; H.R.Rep. No. 491, 81st Cong., 1st Sess., p. 2. 5 Hearings before a Subcommittee of the House Committee on Armed Services H.R. 2498, 81st Cong., 1st Sess., pp. 879—885. See Durant v. Hiatt, D.C., 81 F.Supp. 948. 6 Both the House and Senate Committee Reports stated that the need for Article 3(a) was to remedy the undesirable situation pointed out by the Hirshberg decision. Both reports contain the following sentence: 'In the opinion of the committee, the present provisions (Article 3(a)) of this subdivision provide a desirable degree of continuing jurisdiction and at the same time place sufficient limitations on the continuing jurisdiction to prevent capricious actions on the part of military authorities.' H.R.Rep. No. 491, 81st Cong., 1st Sess. 11; S.Rep. No. 486, 81st Cong., 1st Sess. 8. The same view was expressed by the managers of the bill in the House and Senate. Representative Brooks at 95 Cong.Rec. 5721 and Senator Kefauver, at 96 Cong.Rec. 1358. Views against the adoption of Article 3(a) were urged in committee and on the floor but did not prevail. Hearings before a Subcommittee of the Senate Committee on Armed Services on S. 857 and H.R. 4080, 81st Cong., 1st Sess. 256—257; 96 Cong.Rec. 1294, 1366, 1414—1417. 7 96 Cong.Rec. 1294 et seq. The proposed substitute for Article 3(a) was: 'Subject to the provisions of article 43, jurisdiction is hereby conferred upon the several district courts of the United States to try and punish according to the applicable provisions and limitations of this code and the regulations made thereunder— '(1) any person charged with having committed an offense against this code while in a status in which he was subject to this code which status has been terminated; * * *.' 8 'To make Rules for the Government and Regulation of the land and naval Forces; * * *.' 9 'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.' Art. III, § 2, cl. 3. Skiriotes v. Florida, 313 U.S. 69, 73, 61 S.Ct. 924, 927, 85 L.Ed. 1193, and cases cited; Chandler v. United States, 1 Cir., 171 F.2d 921. 10 Carter v. McClaughry, 183 U.S. 365, 382, 22 S.Ct. 181, 188, 46 L.Ed. 236; Mosher v. Hunter, 10 Cir., 143 F.2d 745. Cf. Kahn v. Anderson, 255 U.S. 1, 7, 41 S.Ct. 224, 225, 64 L.Ed. 469; Walker v. Morris, 3 American Jurist and Law Magazine 281. 11 Section 158 of the British Army Act (Gt. Brit., Stats.Rev., 3d ed., Vol. X, 457, 563—564; War Office, Manual of Military Law (P.I., 1951, 376—377) provides: '(I) Where an offence under this Act has been committed by any person while subject to military law, such person may be taken into and kept in military custody, and tried and punished for such offence, although he, or the corps or battalion to which he belongs, has ceased to be subject to military law in like manner as he might have been taken into and kept in military custody, tried or punished, if he or such corps or battalion had continued so subject: 'Provided that where a person has since the commission of an offence ceased to be subject to military law, he shall not be tried for such offence, except in the case of the offence of mutiny, desertion, or fraudulent enlistment, unless his trial commences within three months after he had ceased to be subject to military law, or unless the offence was committed outside the United Kingdom and is an offence which when committed in England is punishable by the law of England, and the Attorney-General consents to the trial * * *.' The British Army Act, including the provision in § 158 for court-martial after termination of military service, dates from 1881. 17 Law Reports (Statutes) 44 and 45 Vict. 260, 331. See also the Defence Act of Australia, § 103(3), Commonwealth Acts, vol. II (1901—1950), 1560, 1596; National Defence Act of Canada, 1950, §§ 56(2) and (3), and 68(f), Revised Statutes of Canada, 1952, Vol. III, 3814 and 3821. New Zealand has a similar statute (Army Act, § 127(1), New Zealand Statutes, 1950, 283, 370 371). At the time of our Constitutional Convention, there had already been held the well-known court-martial of Lord George Sackville for disobedience of orders of his Chief, Prince Ferdinand of Brunswick, at the battle of Minden. The trial took place after his dismissal from his command and the service. The King, George II, submitted the question of jurisdiction of the court-martial to the twelve judges composing the Courts of King's Bench, Common Pleas and Exchequer, headed by Lord Mansfield, and received the following advisory answer: 'In obedience to your Majesty's commands, signified to us by a letter * * *, referring to us the following question, 'Whether an officer of the army having been dismissed from his Majesty's service, and having no military employment, is triable by a Court Martial for a military offence lately committed by him while in actual service and pay as an officer?' 'We have taken the same into consideration, and see no ground to doubt of the legality of the jurisdiction of a Court Martial in the case put by the above question.' The judges ended with a reservation of the privilege of changing their minds if the matter were judicially presented, apparently in accordance with the practice in such advisory opinions. See note, 28 Eng.Rep. 941. II Eden's Chancery Reports, App., p. 371. See Trials, Courts Martial—Sackville, 1760. On conviction the King directed the sentence be recorded in the order book of every regiment, British and American. In view of the prominence of the parties and the subsequent distinguished career of Lord George Sackville, who died in 1785 after having been advanced in 1782 to the peerage as Viscount Sackville for his services in Parliament, the Irish Administration, and as Secretary of State for the Colonies, the case could hardly have escaped the notice of the members of the Constitutional Convention. See VII Dictionary of Nat. Biography 1110; 4 Smollett, History of England, 337; Tytler, Military Law (2d ed.), 113. 8 Op.Attys.Gen. 328. But see, 31 Op.Attys.Gen. 521; Clode, Martial and Military Law, 92. 12 It must be noted, however, that a leading military authority is against that view. See Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 105, although he admits the weight of the precedents is against him. See, however, a comparable authority, Edmund M. Morgan, Court Martial Jurisdiction, 4 Minn.Law Rev. 79, 83 (1920). For further discussion of the problem, see Myers and Kaplan, Crime Without Punishment, 35 Geo.L.J. 303 (1947); Note, Military Jurisdiction over Discharged Servicemen: Constitutionality and Judicial Protection, 67 Harv.L.Rev. 479 (1954); Note, The Amenability of the Veteran to Military Law, 46 Col.L.Rev. 977 (1946). 13 'That any person heretofore called or hereafter to be called into or employed in such forces or service, who shall commit any violation of this act and shall afterwards receive his discharge, or be dismissed from the service, shall, notwithstanding such discharge or dismissal, continue to be liable to be arrested and held for trial and sentence by a court-martial, in the same manner and to the same extent as if he had not received such discharge or been dismissed.' This was carried into the Articles of War. Rev.Stat. (1878) Art. 60, p. 235, 10 U.S.C. (1946 Ed.) § 1566, Art. 94, 10 U.S.C.A. § 1566, amended 62 Stat. 641, and in the Articles for the Government of the Navy, 34 U.S.C. (1946 Ed.) § 1200, Art. 14, Eleventh, 34 U.S.C.A. § 1200, Art. 14, subd. 11, until the enactment of the present Uniform Code, Art. 3. 14 12 Op.Attys.Gen. 4, 5: 'It is simply a regulation which is to follow a dismissal, providing, in certain contingencies, for the restoration of the officer to the service, and leaving the dismissal in full force if those contingencies do not happen.' In 1848 Attorney General Toucey, in the absence of any applicable rule for the government of the Army, had ruled that a charge of murder could not be brought against an officer already mustered out. 5 Op.Attys.Gen. 55, 58. A similar conclusion was stated by Attorney General Palmer (1919), 31 Op.Attys.Gen. 521, 529. See 8 Op.Attys.Gen. 328, 332. 15 We are advised by the Government that this case was reversed by stipulation. See Kronberg v. Hale, 9 Cir., 180 F.2d 128, 130. 16 Fifth Amendment: 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.' Sixth Amendment: 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.' 17 'Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country have differed on the correct interpretation to be given to various provisions of the Federal Constitution; and judicial decision has been often invoked to settle their true meaning; but until recently no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed; but if ideas can be expressed in words, and language has any meaning, this right—one of the most valuable in a free country—is preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service. The sixth amendment affirms that 'in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury,' language broad enough to embrace all persons and cases; but the fifth, recognizing the necessity of an indictment, or presentment, before any one can be held to answer for high crimes, 'excepts cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger;' and the framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who were subject to indictment or presentment in the fifth.' The four who concurred agreed with the majority on this point: 'The Constitution itself provides for military government as well as for civil government. And we do not understand it to be claimed that the civil safeguards of the Constitution have application in cases within the proper sphere of the former. 'What, then, is that proper sphere? Congress has power to raise and support armies; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; and to provide for governing such part of the militia as may be in the service of the United States. 'It is not denied that the power to make rules for the government of the army and navy is a power to provide for trial and punishment by military courts without a jury. It has been so understood and exercised from the adoption of the Constitution to the present time. 'Nor, in our judgment, does the fifth, or any other amendment, abridge that power. 'Cases arising in the land and naval forces, or in the militia in actual service in time of war or public danger,' are expressly excepted from the fifth amendment, 'that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,' and it is admitted that the exception applies to the other amendments as well as to the fifth. 'We think, therefore, that the power of Congress, in the government of the land and naval forces and of the militia, is not at all affected by the fifth or any other amendment.' 4 Wall., at pages 137—138. It was so held as to Haupt, treated as an American citizen in Ex parte Quirin, 317 U.S. 1, 20, 24, 40, 44, 63 S.Ct. 2, 7, 9, 16 -19, 87 L.Ed. 3. 'We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury.' Id., 317 U.S. at page 45, 63 S.Ct. at page 19. 18 Massachusetts: 'That no person shall be tried for any crime by which he may incur an infamous punishment, or loss of life, until he be first indicted by a grand jury, except in such cases as may arise in the government and regulation of the land and naval forces.' New Hampshire: 'That no person shall be tried for any crime by which he may incur an infamous punishment, or loss of life, until he first be indicted by a grand jury, except in such cases as may arise in the government and regulation of the land and naval forces.' New York: 'That (except in the government of the land and naval forces, and of the militia when in actual service, and in cases of impeachment) a presentment or indictment by a grand jury ought to be observed as a necessary preliminary to the trial of all crimes cognizable by the judiciary of the United States; * * *.' Rhode Island: 'That, in all capital and criminal prosecutions, a man hath the right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence, and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury in his vicinage, without whose unanimous consent he cannot be found guilty, (except in the government of the land and naval forces,) nor can he be compelled to give evidence against himself.' 1 Elliot's Debates, (2d ed.), 323, 326, 328, 334. 19 As to that, senator Howard, in charge of the bill said: 'The question arises, what is a 'case arising in the land or naval forces of the United States?' There is not any doubt that a soldier or officer who has enlisted in the service of the United States is or may be made subject to martial law. Why is he made subject to martial law? Because, being in the service of the United States, the act committed by him is a case arising in that service. * * * An officer or soldier enters the Army under contract, under an agreement to render this service; and how, I beg to inquire, does the case of a contractor who engages to furnish arms, equipments, or munitions of war to the United States for the same purpose, differ from the case of an officer or soldier who is simply to bear arms and use the materials which the contractor is to furnish?' Cong.Globe, 37th Cong., 3d Sess. 953 (1863). 20 United States v. Bevans, 3 Wheat. 336, 388, 4 L.Ed. 404, 'the waters on which * * * cases may arise'; Waring v. Clarke, 5 How. 441, 466, 12 L.Ed. 226, 'case of collision taking place on the Mississippi river'; and 'cause of action arisen on the ocean.' Id., 5 How. at page 467. De Lovio v. Boit, 7 Fed.Cas. No. 3,776, pp. 418, 432, 434—435. 21 'This clause enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the constitution declares, that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States.' Osborn v. Bank of United States, 9 Wheat. 738, at page 819, 6 L.Ed. 204. 'By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the constitution, laws, or treaties of the United States take such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.' In re Pacific R. Commission, C.C., 32 F. 241, 255. 'These definitions have been adhered to by this Court in Muskrat v. United States, 219 U.S. 346, 356 (31 S.Ct. 250, 253, 55 L.Ed. 246), and Aetna Life Insurance Company v. Haworth, 300 U.S. 227 (57 S.Ct. 461, 81 L.Ed. 617).' 22 Ex parte Joly, D.C., 290 F. 858; Terry v. United States, D.C., 2 F.Supp. 962; Kronberg v. Hale, 9 Cir., 180 F.2d 128.

12

350 U.S. 55 76 S.Ct. 25 100 L.Ed. 43 UNITED STATES of America, Petitioner,v.ANDERSON, CLAYTON & CO. No. 26. Argued Oct. 20, 1955. Decided Nov. 7, 1955. Mr. H. Brian Holland, Asst. Atty. Gen., for petitioner. Mr. John C. White, Washington, D.C., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 Anderson, Clayton & Co., a Delaware corporation, was organized in 1929. Its capital structure consisted of preferred stock and 100,000 shares of common stock, the capital value of which was fixed at one dollar per share. By April 21, 1930, all of the common stock had been issued, in varying amounts, to the corporation's managing officials, in consideration of their worth and responsibility to the company, which is engaged in the highly technical and skilled business of cotton merchandising. 2 In 1931 a written agreement was entered into between the corporation and the common stockholders, the purpose of which was to restrict the ownership of the common stock to the management group and to adjust the respective interests in the common stock among that group as responsibility changed. Accordingly, the agreement provided that the stock could not be disposed of except by written consent of the owners of 75% of the common stock. Upon the death of any party to the agreement, the corporation agreed to purchase the common stock of the deceased at its book value as of July 31 preceding the stockholder's death. 3 One M. D. Anderson, one of the chief officers of the company, was originally issued 31,000 shares. During the development of the corporation, Mr. Anderson had transferred shares of his stock, pursuant to the agreement, to junior officials as they assumed more duties and responsibilities, until at the time of his death in 1939 he owned 18,574 shares. These shares the corporation purchased at their book value of $50.79 per share. This stock was not retired, but was retained as treasury stock. While in the treasury, it could not be voted nor were dividends paid on it. 4 The company in 1944 sold 6,500 of these shares to junior officials at the then book value of $112.68 per share. The difference between the price paid Anderson's estate and that received from the sale of the shares to the junior officials was $402,285, on which the United States imposed a long-term capital-gains tax of $100,571.25. Respondent paid the tax and sued in the Court of Claims to recover the amount. The respondent took the position that no long-term capital gain resulted because it was not dealing in its stock 'as it might in the shares of another corporation,' as contemplated in Treasury Regulations 111, § 29.22(a)—15.1 The Court of Claims, 122 F.Supp. 837, 129 Ct.Cl. 295, agreed with respondent and entered judgment for recovery of the tax paid, with interest. We granted certiorari, 348 U.S. 936, 75 S.Ct. 356, because of the claim of conflict with decisions of the Courts of Appeals.2 5 The sole question therefore is whether, in the circumstances of this case, Treasury Regulations 111, § 29.22(a)—15 makes the sale of this treasury stock of the corporation a taxable transaction under § 22(a) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 22(a).3 6 Article 66 of Treasury Regulations 74, promulgated under the Revenue Act of 1928, provided that a corporation which purchases its own stock, holds it as treasury stock, and later sells it 'realizes no gain or loss' from such transactions. This Court upheld that regulation as a proper one interpretive of the general terms of § 22(a) of the Internal Revenue Code. Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 114, 59 S.Ct. 423, 425, 83 L.Ed. 536. The present regulation was promulgated in 1934. Its effect was to remove the categorical exclusion of taxable gains or losses arising out of the purchase and sale by a corporation of its own stock accorded such transactions by Article 66 of Treasury Regulations 74. The amended regulation specifically excludes from tax consequences a corporation's sale of its stock upon original issue whether sold for more or less than par or stated value. On the other hand, the regulation specifically provides that tax consequences flow from the receipt by the corporation of its own stock as consideration for sales of its property or in satisfaction of indebtedness to it. With regard to all other dealings by a corporation in its own stock, whether or not tax consequences result depends generally upon the 'real nature of the transaction, which is to be ascertained from all its facts and circumstances.' The regulation provides further that 'if a corporation deals in its own shares as it might in the shares of another corporation,' such dealings are considered, for tax purposes, as though the corporation were in fact dealing in the other corporation's stock. Thus, whether the transaction here in question is taxable depends, in the final analysis, on whether respondent corporation dealt with its shares of treasury stock 'as it might' have dealt with another corporation's stock. 7 The Court of Claims ruled, after a thorough examination of all of the facts and circumstances surrounding the transaction, that the corporation was not dealing in its shares as it might in the shares of another corporation. This conclusion is abundantly supported by the subsidiary findings, which are all supported by the evidence in this case. 8 We agree with the Court of Claims. Here the purchase and sale were made pursuant to a contract entered into without any shown purpose of advantageous investment. Instead the purpose of the agreement was found to be to maintain the distribution of the stock among responsible and active members of the organization in a manner designed to reflect their worth to the corporation. Indicative of this singleness of purpose is the fact that some of the stock purchased from Mr. Anderson's estate was sold to the corporation's other executives at a price below that for which it was acquired. No consideration was given to the opportune time for purchase or sale. The purchase of Mr. Anderson's stock by the corporation was dictated by the terms of the contract upon the fortuitous circumstance of his death. Moreover, when purchased, the stock was lodged in the treasury. It could not be taken into account in any payment of dividends, nor voted in shareholder meetings, nor counted for the purpose of establishing a quorum. These unrecognized rights are all incident to the ownership of common stock of other corporations. It is thus clear that respondent was not dealing in its shares as it might in the shares of others. 9 The Government urges that the crucial inquiry as to whether the transaction is taxable under the regulation depends for its answer upon whether the reacquired shares are resold or retired and new shares issued; since the shares were not retired, the resale at a price greater than cost results in a taxable gain under § 22(a) of the Code and the applicable regulation. The Government receives comfort for its position in the language of C.I.R. v. Batten, Barton, Durstine & Osborn, Inc., 2 Cir., 171 F.2d 474, 476, and C.I.R. v. Landers Corp., 6 Cir., 210 F.2d 188, 191. But we do not think formalities should be raised to such an important position. Moreover, the applicable regulation provides that tax consequences depend upon 'the real nature of the transaction, which is to be ascertained from all its facts and circumstances,' and not upon the sole circumstance that the stock is not retired. When viewed in its entirety, the instant transaction, limited to a wholly intracorporate purpose with no element of speculation or gain envisioned from dealing in its shares, does not constitute dealing by the corporation in its own shares as it might deal in the shares of another corporation within the meaning of the regulation. 10 The judgment is affirmed. 11 Affirmed. 12 Mr. Justice DOUGLAS and Mr. Justice BURTON dissent. 1 'Sec. 29.22(a)—15. Acquisition or Disposition by a Corporation of its Own Capital Stock. (a) Whether the acquisition or disposition by a corporation of shares of its own capital stock gives rise to taxable gain or deductible loss depends upon the real nature of the transaction, which is to be ascertained from all its facts and circumstances. The receipt by a corporation of the subscription price of shares of its capital stock upon their original issuance gives rise to neither taxable gain nor deductible loss, whether the subscription or issue price be in excess of, or less than, the par or stated value of such stock. '(b) But if a corporation deals in its own shares as it might in the shares of another corporation, the resulting gain or loss is to be computed in the same manner as though the corporation were dealing in the shares of another. So also if the corporation receives its own stocks as consideration upon the sale of property by it, or in satisfaction of indebtedness to it, the gain or loss resulting is to be computed in the same manner as though the payment had been made in any other property. Any gain derived from such transactions is subject to tax, and any loss sustained is allowable as a deduction where permitted by the provisions of the Internal Revenue Code.' 2 C.I.R. v. Landers Corp., 6 Cir., 210 F.2d 188, C.I.R. & H. W. Porter & Co., 3 Cir., 187 F.2d 939; C.I.R. v. Rollins Burdick Hunter Co., 7 Cir., 174 F.2d 698; C.I.R. v. Batten, Barton, Durstine & Osborn, Inc., 2 Cir., 171 F.2d 474. 3 '§ 22. Gross income '(a) General definition. 'Gross income' includes gains, profits, and income derived from salaries, wages, or compensation for personal service (including personal service as an officer or employee of a State, or any political subdivision thereof, or any agency or instrumentality of any one or more of the foregoing), of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, commerce, or sales, or growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. * * *' For tax years after 1953, transactions such as the one here involved carry no tax consequences by virtue of congressional enactment of § 1032 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 1032, which provides: 'No gain or loss shall be recognized to a corporation on the receipt of money or other property in exchange for stock (including treasury stock) of such corporation.'

1112

350 U.S. 77 76 S.Ct. 131 100 L.Ed. 60 W. W. NEESE, Administrator of the Estate of William Neese, Deceased, Petitioner,v.SOUTHERN RAILWAY COMPANY. No. 28. Argued Nov. 7, 1955. Decided Nov. 21, 1955. Mr. Henry Hammer, Columbia, S.C., for petitioner. Mr. Sidney S. Alderman, Washington, D.C., for respondent. PER CURIAM. 1 We reverse the judgment of the Court of Appeals, 216 F.2d 772, without reaching the constitutional challenge to that court's jurisdiction to review the denial by the trial court of a motion for a new trial on the ground that the verdict was excessive. Even assuming such appellate power to exist under the Seventh Amendment, we find that the Court of Appeals was not justified, on this record, in regarding the denial of a new trial, upon a remittitur of part of the verdict, as an abuse of discretion. For apart from that question, as we view the evidence we think that the action of the trial court was not without support in the record, and accordingly that its action should not have been disturbed by the Court of Appeals. 2 We need not consider respondent's contention that only the jurisdictional question was presented by the petition for certiorari, for in reversing on the above ground we follow the traditional practice of this Court of refusing to decide constitutional questions when the record discloses other grounds of decision, whether or not they have been properly raised before us by the parties. See Peters v. Hobby, 349 U.S. 331, 338, 75 S.Ct. 790, 793; Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 132, 136, 142, 67 S.Ct. 231, 232, 233, 236, 91 L.Ed. 128. 3 Reversed.

78

350 U.S. 61 76 S.Ct. 122 100 L.Ed. 48 INDIAN TOWING COMPANY, Inc., et al., Petitioners,v.UNITED STATES of America. No. 8. Re-Argued Oct. 13, 1955. Decided Nov. 21, 1955. Mr. Richard B. Montgomery, New Orleans, La., Mr. Cicero C. Sessions, New Orleans, La., on the brief, for petitioners. Mr. Lester S. Jayson, Washington, D.C., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Petitioners brought suit in the United States District Court for the Southern District of Mississippi, seeking recovery under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b), for damages alleged to have been caused by the negligence of the Coast Guard in the operation of a lighthouse light. They alleged that on October 1, 1951, the tug Navajo, owned by petitioner Indian Towing Company, was towing Barge AS—16, chartered by petitioner Upper Mississippi Towing Corporation; that the barge was loaded with a cargo of triple super phosphate, consigned to petitioner Minnesota Farm Bureau Service Company and insured by petitioner United Firemen's Insurance Company; that the tug Navajo went aground on Chandeleur Island and as a result thereof sea water wetted and damaged the cargo to the extent of $62,659.70; that the consignee refused to accept the cargo; that petitioners Indian Towing Company and Upper Mississippi Towing Corporation therefore became responsible for the loss of the cargo; and that the loss was paid by petitioner United Firemen's Insurance Company under loan receipts. The complaint further stated that the grounding of the Navajo was due solely to the failure of the light on Chandeleur Island which in turn was caused by the negligence of the Coast Guard. The specific acts of negligence relied on were the failure of the responsible Coast Guard personnel to check the battery and sun relay system which operated the light; the failure of the Chief Petty Officer who checked the lighthouse on September 7, 1951, to make a proper examination of the connections which were 'out in the weather'; the failure to check the light between September 7 and October 1, 1951; and the failure to repair the light or give warning that the light was not operating. Petitioners also alleged that there was a loose connection which could have been discovered upon proper inspection. 2 On motion of the respondent the case was transferred to the United States District Court for the Eastern District of Louisiana, New Orleans Division. Respondent then moved to dismiss on the ground that it has not consented to be sued 'in the manner in which this suit is brought' in that petitioners' only relief was under the Suits in Admiralty Act, 41 Stat. 525, 46 U.S.C.A. § 741 et seq., or the Public Vessels Act, 43 Stat. 1112, 46 U.S.C.A. § 781 et seq. This motion was granted and the Court of Appeals for the Fifth Circuit affirmed per curiam. 211 F.2d 886. Because the case presented an important aspect of the still undetermined extent of the Government's liability under the Federal Tort Claims Act, we granted certiorari, 348 U.S. 810, 75 S.Ct. 60. The judgment of the Court of Appeals was affirmed by an equally divided Court, 349 U.S. 902, 75 S.Ct. 575, but a petition for rehearing was granted, the earlier judgment in this Court vacated, and the case restored to the docket for reargument before the full Bench. 349 U.S. 926, 75 S.Ct. 769. 3 The relevant provisions of the Federal Tort Claims Act are 28 U.S.C. §§ 1346(b), 2674, and 2680(a), 28 U.S.C.A. §§ 1346(b), 2674, 2680(a): 4 s 1346(b). '* * * the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' 5 s 2674. 'The United States shall be liable * * * in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.' s 2680. 'The provisions of this chapter and section 1346(b) of this title shall not apply to— 6 '(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, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.' 7 The question is one of liability for negligence at what this Court has characterized the 'operational level' of governmental activity. Dalehite v. United States, 346 U.S. 15, 42, 73 S.Ct. 956, 971, 97 L.Ed. 1427. The Government concedes that the exception of § 2680 relieving from liability for negligent 'exercise of judgment' (which is the way the Government paraphrases a 'discretionary function' in § 2680(a)) is not involved here, and it does not deny that the Federal Tort Claims Act does provide for liability in some situations on the 'operational level' of its activity. But the Government contends that the language of § 2674 (and the implications of § 2680) imposing liability 'in the same manner and to the same extent as a private individual under like circumstances * * *' must be read as excluding liability in the performance of activities which private persons do not perform. Thus, there would be no liability for negligent performance of 'uniquely governmental functions.' The Government reads that statute as if it imposed liability to the same extent as would be imposed on a private individual 'under the same circumstances.' But the statutory language is 'under like circumstances,' and it is hornbook tort law that one who undertakes to warn the public of danger and thereby induces reliance must perform his 'good Samaritan' task in a careful manner. 8 Furthermore the Government in effect reads the statute as imposing liability in the same manner as if it were a municipal corporation and not as if it were a private person, and it would thus push the courts into the 'non-governmental'—'governmental' quagmire that has long plagued the law of municipal corporations. A comparative study of the cases in the forty-eight States will disclose an irreconcilable conflict. More than that, the decisions in each of the States are disharmonious and disclose the inevitable chaos when courts try to apply a rule of law that is inherently unsound. The fact of the matter is that the theory whereby municipalities are made amenable to liability is an endeavor, however awkward and contradictory, to escape from the basic historical doctrine of sovereign immunity. The Federal Tort Claims Act cuts the ground from under that doctrine; it is not self-defeating by covertly embedding the casuistries of municipal liability for torts.1 9 While the Government disavows a blanket exemption from liability for all official conduct furthering the 'uniquely governmental' activity in any way, it does claim that there can be no recovery based on the negligent performance of the activity itself, the so-called 'end-objective' of the particular governmental activity. Let us suppose that the Chief Petty Officer going in a Coast Guard car to inspect the light on Chandeleur Island first negligently ran over a pedestrian; later, while he was inspecting the light, he negligently tripped over a wire and injured someone else; he then forgot to inspect an outside connection and that night the patently defective connection broke and the light failed, causing a ship to go aground and its cargo of triple super phosphate to get wet; finally the Chief Petty Officer on his way out of the lighthouse touched a key to an uninsulated wire to see that it was carrying current, and the spark he produced caused a fire which sank a nearby barge carrying triple super phosphate. Under the Government's theory, some of these acts of negligence would be actionable, and some would not. But is there a rational ground, one that would carry conviction to minds not in the grip of technical obscurities, why there should be any difference in result? The acts were different in time and place but all were done in furtherance of the officer's task of inspecting the lighthouse and in furtherance of the Coast Guard's task in operating a light on Chandeleur Island. Moreover, if the United States were to permit the operation of private lighthouses not at all inconceivable—the Government's basis of differentiation would be gone and the negligence charged in this case would be actionable. Yet there would be no change in the character of the Government's activity in the places where it operated a lighthouse, and we would be attributing bizarre motives to Congress were we to hold that it was predicating liability on such a completely fortuitous circumstance—the presence of identical private activity.2 10 While the area of liability is circumscribed by certain provisions of the Federal Tort Claims Act, see 28 U.S.C. § 2680, 28 U.S.C.A. § 2680, all Government activity is inescapably 'uniquely governmental' in that it is performed by the Government. In a case in which the Federal Crop Insurance Corporation, a wholly Government-owned enterprise, was sought to be held liable on a cropinsurance policy on the theory that a private insurance company would be liable in the same situation, this Court stated: 'Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it.' Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 383—384, 68 S.Ct. 1, 3, 92 L.Ed. 10. On the other hand, it is hard to think of any governmental activity on the 'operational level,' our present concern, which is 'uniquely governmental,' in the sense that its kind has not at one time or another been, or could not conceivably be, privately performed. 11 There is nothing in the Tort Claims Act which shows that Congress intended to draw distinctions so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation. The statute was the product of nearly thirty years of congressional consideration and was drawn with numerous substantive limitations and administrative safeguards. (For substantive limitations, see § 2680(a)—(m).3 For administrative safeguards, see § 2401(b) (statute of limitations); § 2402 (denial of trial by jury); § 2672 (administrative adjudgment of claims of $1,000 or less); § 2673 (reports to Congress); § 2674 (no liability for punitive damages or for interest prior to judgment); § 2675 (disposition by federal agency as prerequisite to suit when claim is filed); § 2677 (compromise); § 2679 (exclusiveness of remedy).) The language of the statute does not support the Government's argument. Loose general statements in the legislative history to which the Government points seem directed mainly toward the 'discretionary function' exemption of § 2680 and are not persuasive. The broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of governmental activities in circumstances like unto those in which a private person would be liable and not to leave just treatment to the caprice and legislative burden of individual private laws. Of course, when dealing with a statute subjecting the Government to liability for potentially great sums of money, this Court must not promote profligacy by careless construction. Neither should it as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it. 12 The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning. If the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act. 13 The Court of Appeals for the Fifth Circuit considered Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, and Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, controlling. Neither case is applicable. Feres held only that 'the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. Without exception, the relationship of military personnel to the Government has been governed exclusively by federal law.' 340 U.S. at page 146, 71 S.Ct. at page 159. And see Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200. The differences between this case and Dalehite need not be labored. The governing factors in Dalehite sufficiently emerge from the opinion in that case.4 14 The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings. 15 Reversed and remanded. 16 Mr. Justice REED, with whom Mr. Justice BURTON, Mr. Justice CLARK, and Mr. Justice MINTON join, dissenting. 17 The Court reverses the judgment on the ground that the United States is liable under the Federal Tort Claims Act for damages caused by the negligence of the Coast Guard in maintaining a lighthouse light near the mouth of the Mississippi. The alleged negligence was the failure of the Coast Guard personnel to check the electrical system which operated the light, the failure to make a proper examination of the connections and other apparatus connected with the light, and the failure to repair the light or give notice to vessels that the light was not functioning. Although navigators were warned this was an 'unwatched light,'1 it is assumed at this point in the litigation that this negligence occurred and that it was the proximate cause of the loss. Government operation of the lighthouse was authorized by 14 U.S.C. § 81, 14 U.S.C.A. § 81. It is forbidden to others except by authority of the Coast Guard.2 18 The question of the liability of the United States for this negligence depends on the scope and meaning of the Federal Tort Claims Act. The history of the adoption of that Act has heretofore been thoroughly explained.3 Before its enactment, the immunity of the Government from such tort actions was absolute. The Act authorized suits against the Government under certain conditions. The Government was made liable for injury to persons or property 19 'caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b). 20 There was a further condition, 28 U.S.C. § 2674, 28 U.S.C.A. § 2674, that the United States should be liable 'in the same manner and to the same extent as a private individual under like circumstances'.4 21 In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, we passed upon the applicability of the Act to claims by members of the armed services injured through the negligence of other military personnel.5 We said: 22 'One obvious shortcoming in these claims is that plaintiffs can point to no liability of a 'private individual' even remotely analogous to that which they are asserting against the United States. We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving. Nor is there any liability 'under like circumstances,' for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command. * * * In the usual civilian doctor and patient relationship, there is of course a liability for malpractice. And a landlord would undoubtedly be held liable if an injury occurred to a tenant as the result of a negligently maintained heating plant. But the liability assumed by the Government here is that created by 'all the circumstances,' not that which a few of the circumstances might create. We find no parallel liability before, and we think no new one has been created by, this Act. Its effect is to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities.' Id., 340 U.S. at page 141, 142, 71 S.Ct. at page 157. 23 Thus, in Feres the Court was of the view that the Act does not create new causes of action theretofore beyond the applicable law of torts. So, in determining whether an action for negligence in maintaining public lights is permissible, we must consider whether similar actions were allowed by the law of the place where the negligence occurred, prior to the Tort Claims Act, against public bodies otherwise subject to suit. 24 Dalehite v. United States, 346 U.S. 15, 42, 73 S.Ct. 956, 971, 97 L.Ed. 1427, followed the reasoning of Feres. That case involved, among other issues, the liability of the United States for negligence of the Coast Guard in fighting fire. The Coast Guard had been found negligent in its fire-fighting duties by the trial court. These duties were outside the discretionary function exception of § 2680(a) of the Act. Resting our decision on the Act itself, we said the Tort Claims Act 25 'did not change the normal rule that an alleged failure or carelessness of public firemen does not create private actionable rights. Our analysis of the question is determined by what was said in the Feres case. See 28 U.S.C. §§ 1346 and 2674, 28 U.S.C.A. §§ 1346, 2674. The Act, as was there stated, limited United States liability to 'the same manner and to the same extent as a private individual under like circumstances'. 28 U.S.C. § 2674, 28 U.S.C.A. § 2674. Here, as there, there is no analogous liability; in fact, if anything is doctrinally sanctified in the law of torts it is the immunity of communities and other public bodies for injuries due to fighting fire.' Id., 346 U.S. at pages 43—44, 73 S.Ct. at page 972. 26 These two interpretive decisions have not caused Congress to amend the Federal Tort Claims Act. As a matter of fact, the catastrophe that gave rise to the Dalehite case was subsequently presented to Congress for legislative relief by way of compensation for the losses which resulted, as found by the trial court, partly from the negligence of the Coast Guard. Throughout the reports, discussion and enactment of the relief act, there was no effort to modify the Tort Claims Act so as to change the law, in any respect, as interpreted by this Court in Feres and Dalehite.6 Although its discussion was restricted solely to the discretionary function exception to the Act, Congress must have accepted the rulings relating to the issues here involved as in accord with its understanding of the Tort Claims Act. One cannot say that when a statute is interpreted by this Court we must follow that interpretation in subsequent cases unless Congress has amended the statute. On this our cases conflict.7 However, we should continue to hold, as a matter of stare decisis and as the normal rule, that inaction of Congress, after a well-known and important decision of common knowledge, is 'an aid in statutory construction * * * useful at times in resolving statutory ambiguities'. Helvering v. Reynolds, 313 U.S. 428, 432, 61 S.Ct. 971, 973, 85 L.Ed. 1438. The nonaction of Congress should decide this controversy in the light of the previous rulings. The reasons which led to the conclusions against creating new and novel liabilities in the Feres and Dalehite cases retain their persuasiveness. 27 This enactment, like any other, should be construed so as to accomplish its purpose, but not with extravagant generosity so as to make the Government liable in instances where no liability was intended by Congress. It is certainly not necessary that every word in a statute receive the broadest possible interpretation. If Congress intended to create liability for all incidents not theretofore actionable against suable public agencies, that intention should be made plain. The courts are not the legislative branch of the Government. 28 The Act made the Government liable in instances where it would be suable 'if a private person'. The meaning of 'private person' is not discussed in the legislative history. In Feres we talked of private liability and came to a conclusion which is contrary to that reached by the Court today. See 76 S.Ct. 128, supra. We held that because surgeons in private practice or private landlords were liable for negligence did not mean the United States was. Liability of governments for the failure of lighthouse warning lights is as unknown to tort law as, for example, liability for negligence in fire fighting excluded by the Dalehite ruling. Lighthouse keeping is as uniquely a governmental function as fire fighting. There is at least some uncertainty and ambiguity as to what Congress meant by making the United States liable in circumstances where it would be liable 'if a private person'. That uncertainty should not lead us to accept liability for the United States in this case. In dealing with this enlarged concept of federal liability for torts, wisdom should dictate a cautious approach along the lines of Feres and Dalehite. 29 The Act says that the United States shall be liable in accordance with the law of the place where the act or omission occurred. § 1346(b). This alleged tort occurred in Louisiana. Under the Louisiana law a municipal corporation is not responsible for injury sustained as a result of negligence on the part of the employees of a city in the maintenance of traffic lights.8 Street traffic lights are a close analogy to navigation lights. We can see no reason to doubt that under Louisiana law the maintenance of navigation lights, if permissible, by municipalities would likewise be free of liability. The Court warns us against the morass of decisions that involve municipal tort liability. It calls that law a 'quagmire' and avoids it by a complete surrender of sovereign immunity without regard to the law of municipal liability of the respective States. 30 The over-all impression from the majority opinion is that it makes the Government liable under the Act for negligence in the conduct of 'any governmental activity on the 'operational level." It seems broad enough to cover all so-called 'uniquely governmental activities.' Logically it may cover negligence in fire fighting, although the Dalehite holding on that point is not overruled.9 Perhaps liability arises even for injuries from negligence in pursuing criminals. 31 The Court's literal interpretation of this Act brings about an application of the Federal Tort Claims Act analogous to that condemned by Congress in the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 251 et seq. after Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515, see 61 Stat. 84, § 1(a), and in the Fair Labor Standards Amendments of 1949, 63 Stat. 910, 29 U.S.C.A. § 201 et seq., after Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 68 S.Ct. 1186, 92 L.Ed. 1502, see 2 U.S.Code Cong.Serv.1949, p. 1617. Compare United States v. American Trucking Assns., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345. The judgment should be affirmed. 1 A good illustration of the effort of a conscientious court to reconcile the irreconcilable is Haley v. City of Boston, 191 Mass. 291, 77 N.E. 888, 5 L.R.A.,N.S., 1005. For an example of the confusion prevailing in one jurisdiction, compare District of Columbia v. Woodbury, 136 U.S. 450, 10 S.Ct. 990, 34 L.Ed. 472 (municipal corporation liable for injuries caused by negligent failure to keep sidewalk in repair) with Harris v. District of Columbia, 256 U.S. 650, 41 S.Ct. 610, 65 L.Ed. 1146 (municipal corporation not liable for injuries caused by negligent sprinkling of streets). But even in the law of municipal corporation and state liability, one State at least has sought to emerge from the quagmire. See the more recent New York cases: Foley v. State of New York, 294 N.Y. 275, 62 N.E.2d 69 (State liable when negligent failure to replace burned-out bulb in traffic light caused accident); Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604, 161 A.L.R. 364 (city liable in negligence action for damages caused by runaway police horse). When the confused law of municipal corporations is applied to the Tort Claims Act, the same unsatisfactory results occur. Compare the holding of the Court of Appeals for the Fifth Circuit in the instant case, 211 F.2d 886, with its holding in United States v. Lawter, 5 Cir., 219 F.2d 559 (United States liable under Tort Claims Act for negligence of Coast Guard during helicopter rescue operation). 2 Although the argument is more elaborately presented here, this is not the first statute which the Government has attempted to construe in this manner. The Suits in Admiralty Act, 41 Stat. 525, provided that a libel in personam could be brought against the United States for damage caused by a Government-owned merchant vessel or tug in cases 'where if such vessel were privately owned or operated * * * a proceeding in admiralty could be maintained * * *' and stated that 'such suits shall proceed and shall be heard and determined according to the principles of law and to the rules of practice obtaining in like cases between private parties.' In Eastern Transportation Co. v. United States, 272 U.S. 675, 47 S.Ct. 289, 71 L.Ed. 472, an action was brought under the Act to recover damages for the loss of a ship and cargo by collision with an unmarked wreck of a sunken Government-owned merchant vessel. The Government moved to dismiss the action on the ground, inter alia, the 'The said alleged cause of action set out in the said libel relates to an alleged failure on the part of the officers and/or agents of the United States to perform a purely governmental function or to alleged negligence of such officers and/or agents in the performance of a purely governmental function; and gives rise to no liability on the part of the United States of America for which they are suable in the United States Court or elsewhere.' The motion to dismiss was granted on another ground but on appeal the Supreme Court rejected all arguments that the district court lacked jurisdiction and reversed the judgment of the district court. 3 Congress significantly withheld liability for claims relating, inter alia, to the postal service, tax collection, quarantine establishment, fiscal operations, combatant activities of the Coast Guard during time of war, and the activities of the TVA. 4 The Court in Dalehite disposed of a claim of liability for negligence in connection with fire fighting by finding that 'there is no analogous liability * * *' in the law of torts. 346 U.S. at page 44, 73 S.Ct. at page 972. But see Workman v. New York City, 179 U.S. 552, 21 S.Ct. 212, 45 L.Ed. 314. 1 United States Coast Guard, Light List, Atlantic and Gulf Coasts of the United States, corrected to January 1, 1951 (C.G. 158), pp. 5, 498. 2 14 U.S.C. § 83, 14 U.S.C.A. § 83: 'No person, or public body, or instrumentality, excluding the armed services, shall establish, erect, or maintain any aid to maritime navigation without first obtaining authority to do so from the Coast Guard in accordance with applicable regulations. Whoever violates the provisions of this section or any of the regulations issued by the Secretary in accordance herewith shall be guilty of a misdemeanor and shall be fined not more than $100 for each offense. Each day during which such violation continues shall be considered as a new offense.' The Government advises that as of June 30, 1953, government aids to navigation numbered 38,169; authorized private aids 3,301. U.S. Coast Guard Aids to Navigation Operated and Maintained by the United States Coast Guard (June 30, 1953) pp. 1, 4. We are further advised: 'The Coast Guard in its manual on aids to navigation gives these examples to typical aids considered in the category of private aids (U.S. Coast Guard, Aids to Navigation (C.G. 127, 1945) p. 1201): '(1) Standard buoy and lighting equipment employed by the United States Engineers to mark dredging areas. '(2) Buoys, ranges and sound signals in channels dredged by private corporations to their property, which channels are used exclusively by the corporation's, or its contractor's, vessels. '(3) Aids established by the Army and Navy for their own use in connection with the approaches to loading piers, etc. 'See also, U.S. Coast Guard, Aids to Navigation Manual (CG 222, Jan. 1953), pp. 4—1, 4—3. 'Coast Guard regulations require all persons owning, occupying, or operating bridges over the navigable waters of the United States to maintain at their own expense such lights required for the safety of marine navigation as may be prescribed by the Commandant. 33 C.F.R. (1949 ed.) § 68.01—1. In addition, there is a non-delegable duty imposed upon the owner of a sunken wreck to mark it. 33 U.S.C. 409 (33 U.S.C.A. § 409); 33 C.F.R. (1949 ed.) 64.01—1.' 3 Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152; Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427. 4 There were further limitations and certain specific exceptions not pertinent here. 5 E.g., the negligence of an Army surgeon during an operation in sewing up a towel in the abdomen of a soldier; and negligence in quartering a soldier in barracks known to be unsafe because of a defective heating plant. 6 69 Stat. 707; H.R.Rep. No. 2024, 83d Cong., 2d Sess.; S.Rep. No. 2363, 83d Cong., 2d Sess.; H.R.Rep. No. 1305, 84th Cong., 1st Sess.; H.R.Rep. No. 1623, 84th Cong., 1st Sess.; S.Rep. No. 684, 84th Cong., 1st Sess. 7 Compare United States v. Elgin, J. & E.R. Co., 298 U.S. 492, 500, 56 S.Ct. 841, 843, 80 L.Ed. 1300; United States v. South Buffalo R. Co., 333 U.S. 771, 775, 68 S.Ct. 868, 870, 92 L.Ed. 1077; Toolson v. New York Yankees, 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64, with Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604; Commissioner of Internal Revenue v. Church's Estate, 335 U.S. 632, 69 S.Ct. 322, 337, 93 L.Ed. 288. 8 Edwards v. City of Shreveport, La.App., 66 So.2d 373; cf. Howard v. City of New Orleans, 159 La. 443, 105 So. 443. 9 But see footnote 4 of the majority opinion, in which Workman v. New York City is cited.

78

350 U.S. 85 76 S.Ct. 167 100 L.Ed. 77 Amos REECE, Petitioner,v.STATE OF GEORGIA. No. 112. Argued and Submitted Nov. 9, 1955. Decided Dec. 5, 1955. Rehearing Denied Jan. 9, 1956. See 350 U.S. 943, 76 S.Ct. 297. Mr. Daniel Duke, Atlanta, Ga., for petitioner. Messrs. Eugene Cook, Robert H. Hall, E. Freeman Leverett, Atlanta, Ga., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 Petitioner, Amos Reece, a Negro, was convicted of the rape of a white woman in Cobb County, Georgia. He contends here that Georgia's rule of practice requiring him to challenge the composition of the grand jury before indictment violates the Due Process Clause of the Fourteenth Amendment. The Georgia Supreme Court affirmed his conviction, 211 Ga. 339, 85 S.E.2d 773, and we granted certiorari because of the important issues involved, 349 U.S. 944, 75 S.Ct. 877. 2 Reece was arrested on October 20, 1953, and was held in the county jail until his indictment three days later. On October 24, the day after his indictment, two local attorneys were appointed by the trial court to defend him. On October 30, before his arraignment, Reece moved to quash the indictment on the ground that Negroes had been systematically excluded from service on the grand jury. This motion was overruled after a hearing. On the same day, petitioner was tried, convicted and sentenced to be electrocuted. The Supreme Court of Georgia held that the motion to quash was properly denied because, by Georgia practice, objections to a grand jury must be made before the indictment is returned, 210 Ga. 578, 82 S.E.2d 10, but reversed the case on another ground, not pertinent here, and remanded it for a new trial. 3 Before his second trial Reece filed a special plea in abatement which alleged systematic exclusion of Negroes from the jury commission, the grand jury which indicted him and the petit jury about to be put upon him. This plea also stated that petitioner had neither knowledge of the grand jury nor the benefit of counsel before his indictment. The State's demurrer to this plea was sustained, and petitioner was again tried, convicted and sentenced to be electrocuted. It is this judgment which is here for review. 4 At the outset the State contends that the case is not properly before us because petitioner did not apply for a writ of certiorari within 90 days after the first judgment of the Supreme Court of Georgia. This contention is clearly without substance. A timely application for certiorari to review the second judgment was made, and the case is properly here. 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. We have jurisdiction to consider all of the substantial federal questions determined in the earlier stages of the litigation, Urie v. Thompson, 337 U.S. 163, 172—173, 69 S.Ct. 1018, 1025—1026, 93 L.Ed. 1282, and our right to re-examine such questions is not affected by a ruling that the first decision of the state court became the law of the case, Davis v. O'Hara, 266 U.S. 314, 45 S.Ct. 104, 105, 69 L.Ed. 303. 5 This Court over the past 50 years has adhered to the view that valid grand jury selection is a constitutionally protected right. The indictment of a defendant by a grand-jury from which members of his race have been systematically excluded is a denial of his right to equal protection of the laws. Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Carter v. State of Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839. Where no opportunity to challenge the grand-jury selection has been afforded a defendant, his right may be asserted by a plea in abatement or a motion to quash before arraignment, United States v. Gale, 109 U.S. 65, 72, 3 S.Ct. 1, 6, 27 L.Ed. 857. Of course, if such a motion is controverted it must be supported by evidence, Patton v. State of Mississippi, supra; Martin v. State of Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497. 6 We mention these principles since the State contests the merits of Reece's claim of systematic exclusion. In the hearing on his motion to quash before the first trial, he presented uncontradicted evidence to support the following facts: no Negro had served on the grand jury in Cobb County for the previous 18 years; the 1950 census showed that the county had a white population of 55,606 and a Negro population of 6,224; the same census showed a population of 16,201 male white citizens over 21 years of age, and 1,710 male Negro citizens over 21 years of age. Petitioner's motion alleged, and this was not contradicted, that there were 534 names on the grand-jury list and of this number only six were Negroes. Of the six Negroes, one did not reside in the county and the other five testified in this proceeding. Two were over 80 years of age: one was partially deaf and the other in poor health. The remaining three were 62 years of age. Each of the witnesses had lived in the county for at least 30 years. None had ever served on a grand jury nor heard of any other Negro serving on a grand jury in the county. The Clerk and Deputy Clerk of the court testified that the jury boxes had been revised in 1952, that there was no discrimination or systematic exclusion of Negroes from the grand-jury list, that six Negroes were on the list, and that neither had ever known a Negro to serve on a grand jury in Cobb County. 7 This evidence, without more, is sufficient to make a strong showing of systematic exclusion. The sizeable Negro population in the county, the fact that all-white juries had been serving for as long as witnesses could remember, and the selection on the jury list of a relatively few Negroes who would probably be disqualified for actual jury service all point to a discrimination 'ingenious or ingenuous,' Smith v. State of Texas, 311 U.S. 128, 132, 61 S.Ct. 164, 85 L.Ed. 84. This evidence placed the burden on the State to refute it, Patton v. State of Mississippi, supra, and mere assertions of public officials that there has not been discrimination will not suffice. See Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866. However, we do not decide this issue. It is sufficient to say that petitioner's motion stated and his evidence supported a prima facie constitutional claim. 8 Georgia's rule of practice provides that when an 'accused has been arrested for the commission of a penal offense and is committed to jail, he is apprised of the fact that his case or the charge against him will undergo grand-jury investigation, and it is incumbent upon him to raise objections to the competency of the grand jurors before they find an indictment against him.' Reece v. State, 210 Ga. 578, 82 S.E.2d 10. This rule goes back to 1882, Williams v. State, 69 Ga. 11, and has been consistently followed in that State. A similar requirement was considered by this Court in Carter v. State of Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839. In that case the Texas Code of Criminal Procedure provided that a challenge to the array must be made before the grand jury was impaneled and that anyone confined in the jail at the time would, at his request, be brought into court to make such challenge. The defendant in Carter moved to quash the indictment after the grand jury had been impaneled but before his arraignment. Since the grand jury had been impaneled before the commission of the offense for which the defendant was indicted, this Court held that he 'never had any opportunity to challenge the array of the grand jury, and was entitled to present the objection on which he relied by motion to quash.' 177 U.S., at page 447, 20 S.Ct. at page 689. In the present case, as in Carter, the right to object to a grand jury presupposes an opportunity to exercise that right. United States v. Gale, 109 U.S. 65, 72, 3 S.Ct. 1, 6, 27 L.Ed. 857. Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158. 9 We may now turn to the present case to see if Reece was afforded such opportunity. He was indicted by a grand jury that was impaneled and sworn eight days before his arrest. It adjourned the day before his arrest and was reconvened two days later by an order which did not list him as one against whom a case would be presented. Reece is a semi-illiterate Negro of low mentality. We need not decide whether, with the assistance of counsel, he would have had an opportunity to raise his objection during the two days he was in jail before indictment. But it is utterly unrealistic to say that he had such opportunity when counsel was not provided for him until the day after he was indicted. In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, this Court held that the assignment of counsel in a state prosecution at such time and under such circumstances as to preclude the giving of effective aid in the preparation and trial of a capital case is a denial of due process of law. The effective assistance of counsel in such a case is a constitutional requirement of due process which no member of the Union may disregard. Georgia should have considered Reece's motion to quash on its merits. 10 In view of this disposition, it is not necessary that we consider other issues first raised by Reece in his plea in abatement at the second trial. 11 The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. 12 Reversed.

12

350 U.S. 91 76 S.Ct. 158 100 L.Ed. 83 John MICHEL, Petitioner,v.STATE OF LOUISIANA. Clifton Alton PORET and Edgar Labat, Petitioners, v. STATE OF LOUISIANA. Nos. 32, 36. Argued Nov. 8, 9, 1955. Decided Dec. 5, 1955. Rehearing Denied Jan. 23, 1956. See 350 U.S. 955, 76 S.Ct. 340. On Writs of Certiorari to the Supreme Court of Louisiana. Messrs. Gerard H. Schrieber, and George H. Fust, New Orleans, La., for petitioner Michel. Mr. Leon D. Hubert, Jr., New Orleans, La., for respondent. Messrs. Felicien Y. Lozes, Rudolph F. Becker, Jr., New Orleans, La., for petitioners Poret and another. Mr. Adrian G. Duplantier, New Orleans, La., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 Louisiana requires that objections to a grand jury be raised before the expiration of the third judicial day following the end of the grand jury's term or before trial, whichever is earlier.1 In these cases we are asked to decide whether this statute as applied violates the Fourteenth Amendment. The three petitioners, all Negroes sentenced to death for aggravated rape, make no attack on the composition of the petit jury nor on the fairness of their trials but challenge the composition of the grand juries which indicted them on the ground that there was a systematic exclusion of Negroes from the panels. No hearing was held on these allegations because the lower courts found that the question had been waived. In each case the Supreme Court of Louisiana affirmed, 225 La. 1040, 74 So.2d 207 and 226 La. 201, 75 So.2d 333, and we granted certiorari, 348 U.S. 936, 75 S.Ct. 361 and 348 U.S. 950, 75 S.Ct. 444, because of the importance of the issues involved. 2 Grand juries in Orleans Parish are impaneled in September and March to serve for six months. Since § 202 of the Louisiana Criminal Code, as interpreted, requires a defendant to object to the grand jury before three judicial days after its term, the time to raise such objections may vary from a minimum of three days—if the defendant is indicted on the last day of the term—to a much longer period if he is indicted during the term. Section 284 of the Louisiana Code of Criminal Procedure, LSA—R.S. 15:284, provides that in any case such objections must be made before arraignment. 3 We do not find that this requirement on its face raises an insuperable barrier to one making claim to federal rights. The test is whether the defendant has had "a reasonable opportunity to have the issue as to the claimed right heard and determined' by the State court.' Parker v. People of State of Illinois, 333 U.S. 571, 574, 68 S.Ct. 708, 710, 92 L.Ed. 886; Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143; Central Union Tel. Co. v. City of Edwardsville, 269 U.S. 190, 46 S.Ct. 90, 70 L.Ed. 229; Paterno v. Lyons, 334 U.S. 314, 68 S.Ct. 1044, 92 L.Ed. 1409. See Carter v. State of Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839. In Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377, this Court held that a lapse of three days between the appointment of counsel and the date of trial was not of itself a denial of due process. In Louisiana a motion to quash is a short, simple document, easily prepared in a single afternoon.2 In the light of Avery, a three-day minimum for such a motion is not unreasonable. Wilson v. State of Louisiana, 320 U.S. 714, 64 S.Ct. 202, 88 L.Ed. 419.3 But in the circumstances of a particular case, the application of such a rule may not give a reasonable opportunity to raise the federal question. See Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167. Accordingly we pass to a consideration of the facts in each of these cases. 4 No. 32. John Michel.—Michel was indicted by the grand jury on February 19, 1953, and was presented to the court for arraignment on February 23. He appeared without counsel and the arraignment was continued for one week. During that week, the trial judge talked with Mr. Schreiber, a former assistant district attorney with wide experience in local criminal practice. He asked Mr. Schreiber whether he would take the case if private counsel was not retained. The judge indicated that if Mr. Schreiber accepted, additional counsel would be appointed. 5 The term of the grand jury which indicted Michel expired March 2, 1953. On that same date Michel appeared again for arraignment without counsel. Mr. Schreiber was also present in court on other business and the trial judge then appointed him counsel for Michel. Whereupon Mr. Schreiber asked the court to give him an opportunity to look it over and continue the matter for one week. No mention of co-counsel was made, and the continuance was granted. 6 Thereafter, on March 5, Mr. Schreiber received a formal notice of his appointment which, though not required by Louisiana law, appears at times to have been served in appointment cases. On March 6, Mr. Fust was appointed co-counsel. The motion to quash the indictment was filed on March 9—four days after Mr. Schreiber received the formal notice of appointment, and five judicial days (7 calendar days) after the expiration of the term of the grand jury. The State demurred on the ground that it came too late. 7 The determination of a single question of fact is decisive in this case: the precise date of appointment of counsel for Michel. It is contended that Mr. Schreiber was not appointed as counsel until March 5, the date of his formal notice; that he was not aware that he was to be chief counsel until after Mr. Fust told him on the 7th of his appointment to 'assist' Mr. Schreiber; and that even if he assumed that he was appointed on March 2, he was unfamiliar with the case and thought the week's continuance held open for that period all of petitioner's rights. The record, however, shows without contradiction that Mr. Schreiber was appointed in open court, in the presence of petitioner, on March 2. The trial judge so found and the Supreme Court of Louisiana explicitly upheld this finding. While such findings are not conclusive on this Court, Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417, they are entitled to great weight, Fay v. People of State of New York, 332 U.S. 261, 272, 67 S.Ct. 1613, 1619, 91 L.Ed. 2043. On a question of state practice with which we are unfamiliar, we will not ordinarily overturn the findings of two courts on the mere assertion of counsel that he did not consider himself appointed on the date of record. Since we find that counsel, a lawyer experienced in state criminal practice, had adequate time to file the motion after his appointment, we hold that the application of § 202 in this case was not unreasonable. 8 No. 36. Poret and Labat.—These co-defendants were also convicted of rape and sentenced to death. Neither made any attack on the composition of the petit jury, but both filed motions to quash their indictments claiming discrimination in the selection of the grand-jury panel. The facts in each case will be considered separately. 9 Poret.—Shortly after the crime was committed, Poret eluded police officers and fled the State of Louisiana. He was indicted on December 11, 1950, but he was not arrested and nothing was known of his whereabouts until late 1951 when Louisiana authorities discovered that he was in prison in Tennessee. That State refused to release him until he had served his term. Louisiana filed a detainer against him, and he was returned to New Orleans on October 3, 1952. At his arraignment on October 27, 1952, he was assisted by counsel of his own selection. He pleaded not guilty to the indictment and was granted additional time to file a motion for severance. On November 7, after denial of his motion for severance, he moved—for the first time—to quash the indictment because of systematic exclusion of Negroes from the grand jury. After a hearing at which it was determined that Poret was a fugitive from justice, this motion was denied by the trial court on the ground that it was filed more than a year and a half too late. Under § 202, the time for filing had expired in March 1951, and the trial court held that the provisions of § 202 would not be 'suspended or nullified for the benefit of a fugitive from justice who, by his own conduct' was unable to assert his right. The holding was affirmed on this ground by the Supreme Court of Louisiana. 10 It is beyond question that under the Due Process Clause of the Fourteenth Amendment Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights.4 More particularly, the State may require prompt assertion of the right to challenge discriminatory practices in the make-up of a grand jury. The problem here is whether such a limitation may be avoided by Poret simply on the showing that he was a fugitive from prosecution throughout the entire period provided him. 11 Petitioner argues that he has had no opportunity to make his challenge to the grand jury, since the time allowed him by § 202 had expired before he was returned to Louisiana. But the record shows that he was not sentenced in Tennessee until five months after that period had expired, and nothing appears to have intervened during this period except his own voluntary flight. Thus Poret's claim is, in effect, that a flight which itself is a violation of federal law, 18 U.S.C. § 1073, 18 U.S.C.A. § 1073, is converted into a federal immunity from the operation of a valid state rule. We do not believe that the mere fugitive status existing here excuses a failure to resort to Louisiana's established statutory procedure available to all who wish to assert claimed constitutional rights. This is not to say that the act of fleeing and becoming a fugitive deprives one of federal rights. We hold only that due regard for the fair as well as effective administration of criminal justice gives the State a legitimate interest in requiring reasonable attacks on its inquisitorial process5 and that the present case is not one in which this interest must bow to essential considerations of fairness to individual defendants. 12 But it is said that Poret had no lawyer, either before he fled the State or during the 87-day period from his indictment to the expiration of his time to file under § 202. However, during all of this time he remained a fugitive, and there is no showing that he could not have filed in time had he not elected to flee. In fact, in each of the other cases before us, the court appointed counsel in ample time for those petitioners to raise their claims. We cannot assume that Poret would not have received like treatment if he had been unable to select counsel of his own choice. We, therefore, conclude that Poret, by his own action, failed to avail himself of Louisiana's adequate remedies. 'No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right * * *.' Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834. Even in federal felony cases where, unlike state prosecutions, indictment by a grand jury is a matter of right, this Court has strictly circumscribed the time within which motions addressed to the composition of the grand jury may be made. Fed.Rules Crim.Proc., 12(b) (3), 18 U.S.C.A. Likewise the Congress has denied the benefit of such important federal procedural rules as the Statute of Limitations to 'any person fleeing from justice.' 18 U.S.C. § 3290, 18 U.S.C.A. § 3290. 13 Poret's case affords a perfect illustration of the necessity for prompt determination of claims such as he raises here. Five years have now elapsed since the crime was committed, and the delay has been largely caused by Poret's own actions. Even if available, and memory permitted, the victim and chief witness would be reluctant to retell the sordid story of her unfortunate experience. Poret's conviction by a petit jury whose composition he did not attack has been affirmed by Louisiana's highest court and no constitutional challenge is made here to the fairness of that trial. 14 Furthermore, it may be added that after being returned to Louisiana on October 3, and employing his personal lawyer on October 26, Poret still did not file his motion to quash until November 7. At this time he had already been arraigned and had filed other motions which implied a waiver of his objections to the grand jury. Rather than asserting his federal claim at the first opportunity,6 he delayed the filing of his motion until 12 days after his selection of counsel. This is four times the period we upheld in Michel. We, therefore, find no violation of due process in denying this motion as out of time. 15 Labat.—Edgar Labat was Poret's codefendant. He was apprehended the evening of the crime, and implicated Poret. Labat was indicted December 11, 1950, and arraigned on January 3, 1951, and he pleaded not guilty. On January 5 the court appointed Mr. E. I. Mahoney as counsel for petitioner. Thereafter the status of the case remained unchanged for more than a year. The next entry is dated January 29, 1952, when Mr. Mahoney asked leave to withdraw. Mr. Gill was thereafter employed, and on June 12, 1952, moved for a continuance. After a hearing, the motion was granted and the case was again continued. In October the codefendant Poret was returned to the State. Labat filed his motion to quash the indictment on November 7. The term of the grand jury that indicted Labat had expired in March 1951. 16 Petitioner now contends that he was denied effective representation of counsel. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. Mr. Mahoney had a reasonable time in which to file his motion to quash, but did not do so. It was stated on oral argument that he was 76 or 77 years old when he took the case, and was ill in bed during several months of the year. The trial court and the Supreme Court of Louisiana held that the facts did not show a lack of effective counsel. As in No. 32, Michel's case, we accept these findings. There is little support for the opposite conclusion in the record. Mr. Mahoney was a well-known criminal lawyer with nearly fifty years' experience at the bar. There is no evidence of incompetence.7 The mere fact that a timely motion to quash was not filed does not overcome the presumption of effectivess. United States ex rel. Feeley v. Ragen, 7 Cir., 166 F.2d 976. The delay might be considered sound trial strategy, particularly since the codefendant could not be found. We cannot infer lack of effective counsel from this circumstance alone. Such an inference would vitiate state rules of procedure designed to require preliminary objections to be disposed of before trial. 17 At argument, petitioners for the first time raised the contention that the requirements of § 202 had been applied by the district attorney only when Negro defendants attempted to attack the composition of the grand jury. They cited two cases in which the district attorney has failed to file demurrers to such motions and the indictments were quashed after the time set out in the statute. The present district attorney, who had been in office some eighteen months but was not serving at the time of these prosecutions, stated that it was his policy to apply § 202 whenever possible. Petitioners' contention was not raised below, and we do not believe it has been properly put in issue, Pennsylvania R. Co. v. Illinois Brick Co., 297 U.S. 447, 463, 56 S.Ct. 556, 561, 80 L.Ed. 796. If such an allegation had been presented and preserved, and found support in the record, we might have a very different case here. See Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417. 18 For the reasons stated the judgments of the Supreme Court of Louisiana are affirmed. 19 Affirmed. 20 Mr. Justice BLACK with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting. 21 Petitioners, who are colored, were indicted, convicted and sentenced to death in a Louisiana state court. The grand jury indicting the petitioners was drawn from the parish of Orleans where 32% of the population is colored. Only once within the memory of people living in that parish had a colored person been selected as a grand juror. That juror, who happened to look like a white man, was selected under the mistaken idea that he was one. The foregoing facts are not disputed here. 22 Each of the petitioners challenges the validity of the indictment against him on the ground that the failure to have colored people on the grand jury was the result of systematic and deliberate exclusion on account of race. In 1875 Congress made it a crime for state or federal officers to disqualify citizens from grand or petit jury service on account of race or color. 18 Stat. 336, as amended, 18 U.S.C. § 243, 18 U.S.C.A. § 243. And since the adoption of the Fourteenth Amendment this Court has consistently held that systematic exclusion of Negroes from grand-jury service violates the Federal Constitution. See Patton v. State of Mississippi, 332 U.S. 463, 465—466, 68 S.Ct. 184, 185—186, 92 L.Ed. 76, and cases there cited. The Court holds, however, that these petitioners had a reasonable opportunity to challenge the composition of the grand jury indicting them but failed to do so, thereby waiving their constitutional and statutory rights to have the charges against them considered by a fair and legal grand jury. Without going into the facts of each particular case, I think that the record shows that there was no such reasonable opportunity afforded to petitioners Michel and Poret or their counsel. I shall add a few words, however, about the supposed opportunity of petitioner Poret to challenge the validity of the indicting grand jury. 23 The state courts have found that Poret fled from Louisiana after allegedly committing the crime for which he was indicted. But the time allowed Poret by state law to challenge the validity of this grand jury expired long before he was arrested and brought back to Louisiana. It is apparent therefore that after his arrest Poret never had any opportunity at all to challenge the grand jury. It is true that if Poret had not fled and had been arrested and had the benefit of counsel early enough he could have challenged the grand jury's composition. For this reason the Court holds that he forfeited his federally guaranteed right to have his case considered by an unpacked grand jury. I cannot agree that the right to the kind of fair trial guaranteed by the Federal Constitution and congressional enactment can be thus denied by a State. If Poret can be denied this constitutional right, why not others? Could a state statute of limitations like this one declare that anyone under indictment who flees the State has thereby waived his right to counsel or his right to be tried by an unbiased judge? Cf. In re Murchison, 349 U.S. 133, 75 S.Ct. 623. 24 Poret could have been charged with a federal crime under 62 Stat. 755, 18 U.S.C. § 1073, 18 U.S.C.A. § 1073, for fleeing from one State to another to avoid prosecution. But he could not have been convicted until after adequate notice and a fair trial on an indictment returned by a fair grand jury selected without regard to race or color. And certainly Congress did not by this statute authorize state courts to forfeit the federally protected rights of an accused because he had violated the federal law against fleeing. I suppose Congress would have no power to do such a thing. Under our system even a bad man is entitled to have his case considered at every stage by a fair tribunal. 25 No sound reasons have been advanced supporting the power of a State to use the device here contrived to justify trial of defendants on indictments returned by grand juries in flagrant violation of the Federal Constitution. The arguments advanced by the Court find no substantial support in any of our prior decisions. On the contrary, this Court has strongly asserted the right of defendants to raise defenses permitted others despite their guilt or innocence of charges that are separate and distinct from those upon which they are tried. See Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215. Cf. majority and dissenting opinions in National Union of Marine Cooks & Stewards v. Arnold, 348 U.S. 37, 75 S.Ct. 92. The Court's opinion here appears to me to give far too little weight to the constitutional and statutory rights of an accused to be indicted and tried by juries selected without racial discrimination. 26 I would reverse the convictions of Poret and Michel. Since Labat and Poret were jointly indicted by the same unconstitutionally selected grand jury, I would vacate the conviction of Poret's codefendant Labat. See Ashcraft v. State of Tennessee, 322 U.S. 143, 155—156, 64 S.Ct. 921, 927, 88 L.Ed. 1192, and 327 U.S. 274, 279, 66 S.Ct. 544, 546, 90 L.Ed. 667. Cf. Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029. 27 Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting. 28 I do not think that petitioners were accorded the opportunity, guaranteed by due process of law, to challenge the constitutionality of the composition of the grand juries that indicted them. 29 As to Michel, the trial judge found that counsel was appointed on March 2, 1953, three days before the deadline for filing a motion to quash. From the record it is clear that the trial judge believed that he appointed counsel on March 2. But the record contains a sworn statement by Michel's counsel that he did not consider himself appointed until he received official notice from the court on March 5; and that is what he tells us with great seriousness on oral argument. 30 The crucial question in this case is not what the trial judge thought, but what the effect of the misunderstanding between him and counsel had upon the constitutional rights of Michel. If counsel on March 2 believed that he was not yet appointed and rendered no service to the petitioner during this critical three-day period, the appointment was not an effective appointment. On this record and on the representations made to us on oral argument, it is clear that Michel had no real opportunity to raise the important constitutional question that might well have saved him from execution. Without counsel, of course, he had no effective opportunity to raise the constitutional question. See Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167. I would not allow any man to got his death because a misunderstanding between the judge and his lawyer prevented him from getting a hearing on a constitutional question. 31 Petitioner Poret apparently fled Louisiana shortly after the crime was committed. He was apprehended in Tennessee, but long after the indictment had been returned and the statutory period for filing a motion to quash had expired. The opportunity to raise the constitutional objection, therefore, was foreclosed before he was arraigned and, as far as the record shows, before he had any knowledge that the indictment was pending against him. It's as if the grand jury had been impaneled before the commission of the offense, and the time for raising objections to it expired with the impaneling, as was the case of Carter v. State v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 689, 44 L.Ed. 839. Under these circumstances, Poret had no real opportunity to challenge the constitutionality of the composition of the grand jury. His flight was a wrong that could be punished. But is is dangerous doctrine to deprive a man of his constitutional rights in one case for his wrongful conduct in another. That is a doctrine that currently is gaining momentum. I disavow it. I would give every accused, regardless of his record, conduct, reputation or beliefs, the full benefit of the constitutional guarantees of due process. Every accused should have the right on his arrest and arraignment to invoke them. Poret goes to his death without ever having had an opportunity to show that the grand jury which indicted him was not drawn in accordance with the mandate of the Fourteenth Amendment. 32 I would reverse both convictions* and give the defendants an opportunity to come forward with their evidence that the grand juries which indicated them were unconstitutional because of the systematic exclusion of Negroes from the panels. 1 Section 202 of the Louisiana Code of Criminal Procedure, LRS—R.S. § 15:202, provides that: 'All objections to the manner of selecting or drawing any juror or jury or to any defect or irregularity that can be pleaded against any array or venire must be filed, pleaded, heard or urged before the expiration of the third judicial day of the term for which said jury shall have been drawn, or before entering upon the trial of the case if it be begun sooner; otherwise, all such objections shall be considered as waived and shall not afterwards be urged or heard.' In State v. Wilson, 204 La. 24, 14 So.2d 873, 875, appeal dismissed, 320 U.S. 714, 64 S.Ct. 202, 88 L.Ed. 419, the Supreme Court of Louisiana interpreted the phrase 'the third judicial day of the term' to mean 'the third judicial day following the term.' Such a construction has been adhered to, State v. Chianelli, 226 La. 552, 76 So.2d 727, and is not open to attack here. 2 The motion to quash filed in Michel's case is as follows: 'Motion to Quash 'Now into this Honorable Court comes John Michel, defendant herein, and having heard the Indictment read and protesting that he is not guilty of the offense set out therein, moves to quash to said Indictment in its entirety, and to quash and set aside the general venire involved herein and to quash and set aside the Grand Jury Panel herein for the reason that in the proceedings prior to and attending the presentment of said Indictment, mover was deprived of due process of law and equal protection of law as guaranteed by the Constitution of the United States and the State of Louisiana as follows: '1. Defendant is a member of the colored race. '2. That considering the negro population of the Parish of Orleans and the number of negroes qualified for jury service, there has been systematic, unlawful and unconstitutional exclusion of negroes from the general venire and Grand Jury Panel and Grand Jury involved in the returning of the Indictment herein; that said systematic, unlawful and unconstitutional exclusion of negroes from said units has existed continuously prior hereto for a number of years in the Parish of Orleans; that said exclusion has existed because of race or color; that a negro has never served on a Grand Jury in the Parish of Orleans; that in those instances where negroes have been included in the general venire and Grand Jury Panels referred to herein, negroes have been discriminated against by an arbitrary and inapportionate (sic) limiting of their number by State officials who have not sufficiently acquainted themselves with the qualifications of all potential jurors. 'Wherefore, the siad John Michel prays that this Motion to Quash be maintained and that the said Indictment, general venire and Grand Jury Panel be declared null and void and that he be discharged from said Indictment.' 3 In dismissing the appeal from State v. Wilson, supra, note 1, the Court stated: 'The motion to dismiss is granted and the appeal is dismissed it appearing that the decision is based upon a nonfederal ground adequate to support it.' 320 U.S. 714, 64 S.Ct. 202, 88 L.Ed. 419. 4 'A state procedural rule which forbids the raising of federal questions at late stages in the case, or by any other than a prescribed method, has been recognized as a valid exercise of state power. The principle is clear enough.' Williams v. State of Georgia, 349 U.S. 375, 382—383, 76 S.Ct. 814, 819, and cases cited at note 6. See also Brown v. Allen, 344 U.S. 443, 486, 73 S.Ct. 397, 422, 97 L.Ed. 469. 5 Not only may the prompt determination of such preliminary matters avoid the necessity of a second trial, but a long delay in its determination, such as here, makes it extremely difficult in this class of case for the State to overcome the prima facie claim which may be established by a defendant. Material witnesses and grand jurors may die or leave the jurisdiction, and memories as to intent or specific practices relating to the selection of a particular grand jury may lose their sharpness. Furthermore, a successful attack on a grand jury that sat several years earlier may affect other convictions based on indictments returned by the same grand jury. 6 Cf. Agnew v. United States, 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624. 7 On the contrary, Mr. Mahoney, since deceased, was recognized as an exceptionally qualified counsel. On June 1, 1955, the legal profession in New Orleans honored him with a plaque which cited him as 'an astute and honored criminal lawyer who has ever been mindful of the oath administered him 52 years ago to uphold the law and to guarantee to each accused his day in court.' As pointed out in the State's brief, whether or not to make an immediate attack on the grand jury was entirely within the discretion of Mr. Mahoney and there were valid reasons for not doing so at the time. * The conviction of Labat should be vacated because he was jointly indicted with Poret by the same grand jury whose composition is challenged on constitutional grounds. Cf. Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192.

12

350 U.S. 79 76 S.Ct. 171 100 L.Ed. 62 Lonnie AFFRONTI, Petitioner,v.UNITED STATES of America. No. 71. Argued Nov. 15, 1955. Decided Dec. 5, 1955. Mr. Harry F. Murphy, Kansas City, Mo., for petitioner. Mr. John V. Lindsay, New York City, for respondent. Mr. Justice REED delivered the opinion of the Court. 1 Affronti was tried in the United States District Court for the Western District of Missouri on a ten-count indictment charging him with illegal sales of narcotics. A jury found him guilty on counts two through ten, and a five-year sentence was imposed on each count to be served consecutively. At the time of sentencing, execution of the sentences on counts six through ten was suspended and probation granted, the probation to commence at the expiration of the sentences on counts two through five. While serving his sentence on count two, petitioner filed a motion in the District Court seeking suspension of sentence and probation on counts three, four and five. The motion was denied upon the controlling authority of Phillips v. United States, 8 Cir., 1954, 212 F.2d 327, which held that the district courts have no power to suspend sentence after a prisoner has begun to serve a cumulative sentence composed of two or more consecutive sentences. The Court of Appeals affirmed,1 and we granted certiorari2 because of the existence of a conflict between the decision below and the decision of the Ninth Circuit in Kirk v. United States, 185 F.2d 185.3 2 Prior to 1925 the district courts had no power at all to suspend sentences and release a convict on probation. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129. This situation was remedied by Congress when it passed the Probation Act in 1925.4 That Act gave power to the federal courts, 'after conviction or after a plea of guilty or nolo contendere', to suspend sentence and place the defendant on probation.5 The purpose of the Act, as revealed by its legislative history, was discussed by this Court in United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309. That case also presented a question concerning the time within which a district court can suspend a sentence and grant probation. 3 In Murray this Court observed that, in view of the existence of provisions for parole and executive clemency, it would seem unlikely that Congress would have intended to make the probation provisions applicable during the same period of time. Id., 275 U.S. at page 356, 48 S.Ct. at page 148. It was concluded that it would be more reasonable to construe the Probation Act so as to reconcile the three methods of mitigation of criminal sentences, thereby 'making them as little of a repetition as we can.' Id., 275 U.S. at page 357, 48 S.Ct. at page 149. This and other considerations led the Court to hold that a disctrict judge had no power under the Act to place a convict on probation after he had begun the execution of his sentence. 4 The decision in the Murray case does not, however, completely dispose of the question now before the Court. Since the Murray decision there has been a language change in the statutory provisions for probation. In Murray the Court was considering the question of power of the district courts to place a convict on probation after he had commenced to serve a single general sentence.6 Here we are concerned with the power to grant suspension of sentences which are, technically, wholly unexecuted because they constitute the unserved terms of a series of consecutive sentences. 5 In 1948, in connection with the revision and codification of Title 18 of the United States Code, the language of the Probation Act with which we are concerned was changed. The statute now provides for suspension of sentence and probation 'Upon entering a judgment of conviction.'7 The substitution of the quoted words for 'after conviction or after a plea of guilty or nolo contendere', the phrase which appeared in the Probation Act prior to the 1948 codification of Title 18, does not appear to have resulted in any substantive change in the law. The Reviser's Notes which accompanied the 1948 codification merely stated the following with respect to this amendment: 'Words 'after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment' were omitted from first sentence as unnecessary.'8 The Reviser's Notes were used by Congress as a full explanation of all changes made in the text of the existing law.9 It is unlikely, therefore, that Congress intended the phrase as it appears in the present section to have a different meaning than the phrase had prior to the revision.10 6 The more significant difference between the Murray case and the present one is the fact that here we are dealing with a cumulative sentence composed of a number of distinct sentences which are to run consecutively.11 Petitioner notes that while he has begun the execution of the first of the series of sentences, he has not commenced the execution of the sentences which he is now seeking to have suspended. He reasons from this fact that the District Court still has probationary power over the latter sentences. Of course the words of the statute do not themselves require adoption of petitioner's argument. In fact the language of the present probation provision, and of the original provision as interpreted by Murray, suggests a contrary result. 7 In the final analysis, this case must be governed by the meaning of the statute. Are we to read the statute to mean that the courts should be able to suspend the uncommenced terms of a cumulative sentence after the prisoner has been imprisoned and entered upon the execution of a prior term? We think not. The Murray opinion points out that it is unlikely that Congress would have found it wise to make probation apply in such a way as to unnecessarily overlap the parole and executive-clemency provisions of the law. Federal judicial power to permit probation springs solely from legislative action. Ex parte United States, supra. The authority to put a convict on probation for an uncommenced term, after service of an earlier term has begun, has not been clearly given. Therefore, in construing the provisions for probation, we adhere to the Murray interpretation to avoid interference with the parole and clemency powers vested in the Executive Branch.12 We conclude that the probationary power ceases with respect to all of the sentences composing a single cumulative sentence immediately upon imprisonment for any part of the cumulative sentence.13 8 We note the argument that since Congress has authorized the sentencing court to limit probation to less than all of the terms of a cumulative sentence,14 it should follow that the probation powers for each term exist until that term is begun. But the power to limit a grant of probation to less than an entire cumulative sentence does not compel a conclusion that the power to grant probation as to each of the separate sentences exists until the convict begins to serve each. We think, moreover, this argument is met by our conclusion that the provisions for probation should be interpreted to avoid, so far as possible, duplicating other existing provisions for the mitigation of criminal sentences. See note 12, supra. 9 Congress has done nothing since this Court's decision in United States v. Murray, supra, to indicate that probation power should be applied after the beginning of any term of a sentence. 10 Affirmed. 1 221 F.2d 150. 2 349 U.S. 951, 75 S.Ct. 884. 3 The Fourth Circuit appears to be in accord with the Eighth Circuit on this question. Mann v. United States, 218 F.2d 936. Th Tenth Circuit, obiter dictum, in White v. Steigleder, 37 F.2d 858, 859, is in accord with the Ninth Circuit. See also Kelley v. United States, 10 Cir., 209 F.2d 638. 4 43 Stat. 1259. 5 The power extended to sentences for convictions of any offense not punishable by death or life imprisonment, and the exercise of the power was discretionary and conditioned upon the ends of justice and the best interests of the public and the defendant. 6 The Murray decision embraced two cases consolidated for argument. In one of the cases the District Court had suspended a three-month prison sentence and placed the convict (Murray) on probation one day after he had commenced serving the sentence. In the other case, the prisoner (Cook) had been sentenced to 'a total of fourteen years and nine months' imprisonment, and the District Court suspended the remainder of his sentence and placed him on probation after he had served approximately two years of the sentence. Whether Cook's sentence was in fact a cumulative sentence of a number of consecutive sentences (see Phillips v. United States, 8 Cir., 212 F.2d 327, 332) is unimportant at this time. His sentence was treated as if it had been a single general sentence. 7 62 Stat. 842, 18 U.S.C. § 3651, 18 U.S.C.A. § 3651. 8 H.R.Rep. No. 304, 80th Cong., 1st Sess., App.A.173. 9 Id., at 9. 10 See Kirk v. United States, 9 Cir., 185 F.2d 185, 188. 11 See note 6, supra. 12 That a contrary construction would result in an unnecessary overlap between probation and parole provisions is made clear by a reference to 18 U.S.C. § 4202, 18 U.S.C.A. § 4202. That section provides that a federal prisoner may be paroled after he has served one-third of the 'term or terms' for which he is confined. Thus, if serving a cumulative sentence composed of two or more consecutive sentences, a prisoner is eligible for parole when he has served one-third of the total sentence. See also 18 U.S.C. § 4161, 18 U.S.C.A. § 4161, which provides that 'When two or more consecutive sentences are to be served, the aggregate of the several sentences shall be the basis' for computing time off for good behavior. 13 This conclusion as to the meaning of the statute is further supported by a recognition of some of the practicalities of sentencing. At the time of entering a judgment of conviction, the district judge is in the best position to fix the terms of a convict's sentence. Thereafter, however, the judge becomes progressively less familiar with the considerations material to the adjustment of the punishment to fit the criminal. At the same time, the officials of the Executive Branch responsible for these matters become progressively better qualified to make the proper adjustments. Cf. United States v. Soeder, D.C., 120 F.Supp. 594, 597; United States v. Bernett, D.C., 123 F.Supp. 841, 846. These considerations apply as much to a series of consecutive sentences as to a simple general sentence. But see Note, Application of Federal Probation to Convicts Serving Consecutive Sentences, 64 Yale L.J. 260, 265—268 (1954). 14 18 U.S.C. § 3651, 18 U.S.C.A. § 3651. The provision for probation 'limited to one or more counts or indictments' was added by the 1948 codification of Title 18. The Reviser's Notes indicate that this provision was added because it 'reflects exactly the practice followed by Federal courts.' H.R.Rep. No. 304, 80th Cong., 1st Sess., App.A.173. Thus, this addition did not result in a substantive change in the Probation Act and does not of itself reveal any extension thereof.

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350 U.S. 114 76 S.Ct. 188 100 L.Ed. 125 STATE OF ARIZONAv.STATE OF CALIFORNIA. No. 10, Original. Supreme Court of the United States Argued Dec. 8, 1955. December 12, 1955 Rehearing Denied Jan. 23, 1956. See 350 U.S. 955, 76 S.Ct. 340. See also 350 U.S. 880, 76 S.Ct. 133. Mr. Northcutt Ely, Washington, D.C., for State of California. Messrs. John P. Frank, Phoenix, Ariz., Ernest W. McFarland, Florence, Ariz., for State of Arizona. Mr. W. T. Mathews, Reno, Nev., for State of Nevada. Mr. Hatfield Chilson, Loveland, Colo., for State of Colorado et al. PER CURIAM. 1 The motion of California to join the States of Colorado and Wyoming as parties to this cause is denied. The motion to join Utah and New Mexico as parties is granted only to the extent of their interest in Lower Basin waters. 2 Mr. Justice FRANKFURTER, Mr. Justice BURTON, and Mr. Justice HARLAN would grant the motion. 3 THE CHIEF JUSTICE did not participate in this proceeding.

1011

350 U.S. 107 76 S.Ct. 185 100 L.Ed. 96 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.The WARREN COMPANY, INCORPORATED. No. 27. Argued Oct. 20, 1955. Decided Dec. 12, 1955. Mr. David P. Findling, Washington, D.C., for petitioner. Mr. John Wesley Weekes, Decatur, Ga., for respondent. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 On August 7, 1952, the United States Court of Appeals for the Fifth Circuit entered its decree enforcing in full an order of the National Labor Relations Board issued on June 30, 1950, against respondent herein directing it (1) to cease and desist from refusing to bargain collectively with District Lodge No. 46, International Association of Machinists, a labor union, as the exclusive bargaining agent of all its tool and die makers, machinists, etc., and from discouraging membership in the union; (2) to take affirmative action upon request to bargain collectively with the union as the exclusive representative of respondent's said employees and, if an understanding should be reached, to embody such understanding in a signed agreement; and (3) to post at its plant a notice to be furnished by the Regional Director of the National Labor Relations Board and signed by the officers of respondent agreeing to desist from certain unfair labor practices, and to bargain collectively with the union upon request as required in the order. 197 F.2d 814. 2 Respondent had posted the notice and restored certain employees to their jobs as required by the order, but declined to bargain collectively with the union, although requested by the latter to do so on numerous occasions over a period of seven months, basing its refusal to do so on the ground that the union had lost its alleged majority status by reason of a turnover in personnel. It demanded proof from the union that it represented a majority of the employees then employed in the bargaining unit. The union replied that its majority status had been determined by the Board and by the Court of Appeals in its decree of enforcement. Respondent never bargained collectively with the union, either before or after the decree, contending at all times that the latter did not have majority status, although in 1948 the employees had designated the union as their bargaining agent and the Board had found that respondent had avoided collective bargaining through its lack of good faith and because of its own unfair labor practices. This finding was not challenged by respondent and was adopted by the Court of Appeals in its enforcement decree of August 7, 1952. Respondent then filed a petition with the Board on January 27, 1953, requesting an election in the bargaining unit. Because of respondent's failure to remedy its unfair labor practice by good-faith bargaining with the union for a reasonable period, the Board sustained its Regional Director's dismissal of the petition. 3 On September 22, 1953, the Board filed its petition in the Court of Appeals, specifically setting forth the conduct of respondent showing its failure and refusal to comply with the court's decree enforcing the Board's order, and asking that respondent be required to show cause why it should not be adjudged in civil contempt. The Board also asked the court to institute a prosecution for criminal contempt against respondent. Respondent answered, claiming compliance with the decree except that since the decree of the court it had refused to bargain collectively with the union as the bargaining agent of its employees because for a long time the union had not represented its employees as such bargaining agent. 4 The Court of Appeals concluded that no case for a civil contempt order had been made out and dismissed the proceeding. The court held that, notwithstanding the prior entry of a decree directing respondent to bargain collectively with the union, respondent's compliance with other provisions of the decree entitled it to refuse to bargain collectively since it had ascertained that even before the decree, because of a turnover in personnel, the union had lost majority status. The court stated that to hold respondent liable in contempt under these circumstances would do violence to its decree and to the Act rather than to vindicate them. 5 Because of the importance of the question in the administration of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., we granted certiorari, 348 U.S. 958, 75 S.Ct. 449. Petitioner does not press here its prayer in the court below for an adjudication of criminal contempt. 6 In arriving at its decision purging respondent of contempt, the Court of Appeals stated (214 F.2d 485) that respondent had 'complied fully with all the provisions' of its enforcement order; that it had 'made an offer to bargain with the union'; that the union's alleged loss of majority status was 'without fault' on the respondent's part; and that the Board took the position that respondent was required 'to bargain indefinitely' notwithstanding the union's loss of majority status. 7 If we had so understood the record, certiorari would not have been granted, but we do not so understand it. We believe the facts are to the contrary in each instance. 8 The original order of the Board found not only that respondent for a period of four years after notification by the union of its majority status had refused to bargain with it, but had also used deliberate and flagrant unfair labor practices to deprive the union of its majority status. In its opinion enforcing this cease and desist order, the Court of Appeals stated: 9 'With commendable candor respondent's counsel has stated its position as follows: 10 "We have controverted the findings of fact of the Board in our Response, but in all fairness to this Court we are constrained to admit that there is sufficient evidence, even though disputed, upon which to base the Board's order." 5 Cir., 197 F.2d 814. 11 The findings of both the Board and the Court of Appeals are, therefore, clear that there had been no willingness on respondent's part up to that date, August 7, 1952, to bargain with the union. 12 In its 'Answer of the Respondent to the petition of the Board for adjudication in Civil Contempt and other Civil Relief,' filed November 12, 1953, respondent alleged: 13 'As shown hereinbefore and hereinafter Respondent has refused to bargain collectively with the Union because it did not represent a majority of the employees.' 14 There is nothing in the record to indicate that this situation has ever changed in the slightest respect, and this in face of the fact that the union has at all times been willing to bargain. 15 Neither does the record indicate that the Board insisted upon respondent's bargaining with the union indefinitely; on the contrary, it demonstrates that the Board has urged here and in the court below that respondent should bargain in good faith only for a reasonable length of time after designation of the union as the bargaining agency. 16 It cannot be said that respondent is 'without fault,' because the record is clear that at no time has respondent bargained in good faith with the union. It has met with the union but twice since 1948 and on neither of those occasions did it bargain.1 It has avoided other meetings by evasion and refusal or failure to respond to a request therefor. 17 The sole question necessary for determination here is whether an employer who has been found guilty by the Board of unfair labor practices in refusing to bargain with a union designated as the exclusive representative of its employees and who has been directed to so bargain, is, after a decree enforcing the order and without remedying its unfair labor practices, legally justified in refusing to bargain with the union because it contends the union does not in fact have majority status in its plant, or must such employer bargain fairly for a reasonable length of time in accordance with the order to avoid an adjudication in civil contempt. 18 We believe that an employer in such circumstances cannot lawfully refuse to bargain; that he must do so for a reasonable time; and that for a failure to Court of Appeals on petition of the Board to adjudge him in contempt of its enforcement decree. To conclude otherwise would greatly weaken the administration of the National Labor Relations Act. 19 That Act contemplates cooperation between the Board and the Courts of Appeals both at the enforcement and the contempt stages in order to effectuate its purposes. It consigns certain statutory functions to each,2 and where the Board has acted properly within its designated sphere, the court is required to grant enforcement of the Board's order.3 The decree, like the order it enforces, is aimed at the prevention of unfair labor practices, an objective of the Act, and so long as compliance is not forthcoming that objective is frustrated. It is for this reason that Congress gave the judicial remedy of contempt as the ultimate sanction to secure compliance with Board orders.4 The granting or withholding of such remedial action is not wholly discretionary with the court.5 This is true not only under the National Labor Relations Act but also under general principles of equity jurisprudence.6 20 It seems clear to us that in the light of these principles and the facts of this case, the court below exceeded the allowable limits of its discretion in denying relief to the Board and that its judgment must be reversed and remanded for proceedings in conformity with this opinion. 21 Reversed and remanded. 1 There was only one meeting after entry of the enforcement decree. At this meeting, on January 19, 1953, respondent stated that it was in doubt as to the majority status of the union and for that reason 'hesitated' to bargain with the union on the matter of a contract. This position was confirmed in a letter dated January 20, 1953, in which respondent advised the union of its intention to petition the Board for a decertification election. 2 United States v. Morgan, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211. 3 National Labor Relations Board v. Bradford Dyeing Ass'n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226. 4 National Labor Relations Board v. Mexia Textile Mills, 339 U.S. 563, 70 S.Ct. 826, 833, 94 L.Ed. 1067. 5 McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599. 6 International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; Union Tool Co. v. Wilson, 259 U.S. 107, 42 S.Ct. 427, 66 L.Ed. 848; Penfield Co. of California v. Securities and Exchange Commission, 330 U.S. 585, 67 S.Ct. 918, 91 L.Ed. 1117.

89

350 U.S. 198 76 S.Ct. 273 100 L.Ed. 199 Norman C. BERNHARDT, Petitioner,v.POLYGRAPHIC COMPANY OF AMERICA, Inc. No. 49. Argued Dec. 5, 1955. Decided Jan. 16, 1956. Messrs. Manfred W. Ehrich, Jr., New York City, Eugene V. Clark, Bennington, Vt., for petitioner. Messrs. Joseph A. McNamara, Guy M. Page, Jr., Burlington, Vt., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This suit, removed from a Vermont court to the District Court on grounds of diversity of citizenship, was brought for damages for the discharge of petitioner under an employment contract. At the time the contract was made petitioner was a resident of New York. Respondent is a New York corporation. The contract was made in New York. Petitioner later became a resident of Vermont, where he was to perform his duties under the contract, and asserts his rights there. 2 The contract contains a provision that in case of any dispute the parties will submit the matter to arbitration under New York law by the American Arbitration Association, whose determination 'shall be final and absolute.' After the case had been removed to the District Court, respondent moved for a stay of the proceedings so that the controversy could go to arbitration in New York. The motion alleged that the law of New York governs the question whether the arbitration provision of the contract is binding. 3 The District Court ruled that under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, the arbitration provision of the contract was governed by Vermont law and that the law of Vermont makes revocable an agreement to arbitrate at any time before an award is actually made. The District Court therefore denied the stay, 122 F.Supp. 733. The Court of Appeals reversed, 2 Cir., 218 F.2d 948. The case is here on a petition for certiorari which we granted, 349 U.S. 943, 75 S.Ct. 873, because of the doubtful application by the Court of Appeals of Erie R. Co. v. Tompkins, supra. 4 A question under the United States Arbitration Act, 43 Stat. 883, as amended, 61 Stat. 669, 9 U.S.C. §§ 1—3, 9 U.S.C.A. §§ 1—3, lies at the threshold of the case. Section 2 of that Act makes 'valid, irrevocable, and enforceable' provisions for arbitration in certain classes of contracts;1 and § 3 provides for a stay of actions in the federal courts of issues referable to arbitration under those contracts.2 Section 2 makes 'valid, irrevocable, and enforceable' only two types of contracts: those relating to a maritime transaction and those involving commerce. No maritime transaction is involved here. Nor does this contract evidence 'a transaction involving commerce' within the meaning of § 2 of the Act. There is no showing that petitioner while performing his duties under the employment contract was working 'in' commerce, was producing goods for commerce, or was engaging in activity that affected commerce, within the meaning of our decisions.3 5 The Court of Appeals went on to hold that in any event § 3 of the Act stands on its own footing. It concluded that while § 2 makes enforceable arbitration agreements in maritime transactions and in transactions involving commerce, § 3 covers all arbitration agreements even though they do not involve maritime transactions or transactions in commerce. We disagree with that reading of the Act. Sections 1, 2, and 3 are integral parts of a whole. To be sure, § 3 does not repeat the words 'maritime transaction' or 'transaction involving commerce', used in §§ 1 and 2. But §§ 1 and 2 define the field in which Congress was legislating. Since § 3 is a part of the regulatory scheme, we can only assume that the 'agreement in writing' for arbitration referred to in § 3 is the kind of agreement which §§ 1 and 2 have brought under federal regulation. There is no intimation or suggestion in the Committee Reports that §§ 1 and 2 cover a narrower field than § 3. On the contrary, S.Rep. No. 536, 68th Cong., 1st Sess., p. 2, states that § 1 defines the contracts to which 'the bill will be applicable.' And H.R. Rep. No. 96, 68th Cong., 1st Sess., p. 1, states that one foundation of the new regulating measure is 'the Federal control over interstate commerce and over admiralty.' If respondent's contention is correct, a constitutional question might be presented. Erie R. Co. v. Tompkins indicated that Congress does not have the constitutional authority to make the law that is applicable to controversies in diversity of citizenship cases. Shanferoke Coal & Supply Corp. of Delaware v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583, applied the Federal Act in a diversity case. But that decision antedated Erie R. Co. v. Tompkins; and the Court did not consider the larger question presented here—that is, whether arbitration touched on substantive rights, which Erie R. Co. v. Tompkins held were governed by local law, or was a mere form of procedure within the power of the federal courts or Congress to prescribe. Our view, as will be developed, is that § 3, so read, would invade the local law field. We therefore read § 3 narrowly to avoid that issue. Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 307, 44 S.Ct. 336, 337, 68 L.Ed. 696. We conclude that the stay provided in § 3 reaches only those contracts covered by §§ 1 and 2. 6 The question remains whether, apart from the Federal Act, a provision of a contract providing for arbitration is enforceable in a diversity case. 7 The Court of Appeals, in disagreeing with the District Court as to the effect of an arbitration agreement under Erie R. Co. v. Tompkins, followed its earlier decision of Murray Oil Products Co. v. Mitsui & Co., 2 Cir., 146 F.2d 381, 383, which held that, 'Arbitration is merely a form of trial, to be adopted in the action itself, in place of the trial at common law: it is like a reference to a master, or an 'advisory trial' under Federal Rules of Civil Procedure * * *.' 8 We disagree with that conclusion. We deal were with a right to recover that owes its existence to one of the States, not to the United States. The federal court enforces the state-created right by rules of procedure which it has acquired from the Federal Government and which therefore are not identical with those of the state courts. Yet, in spite of that difference in procedure, the federal court enforcing a state-created right in a diversity case is, as we said in Guaranty Trust Co. of New York v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079, in substance 'only another court of the State.' The federal court therefore may not 'substantially affect the enforcement of the right as given by the State.' Id., 326 U.S. 109, 65 S.Ct. 1470. If the federal court allows arbitration where the state court would disallow it, the outcome of litigation might depend on the court-house where suit is brought. For the remedy by arbitration, whatever its merits or shortcomings, substantially affects the cause of action created by the State. The nature of the tribunal where suits are tried is an important part of the parcel of rights behind a cause of action. The change from a court of law to an arbitration panel may make a radical difference in ultimate result. Arbitration carries no right to trial by jury that is guaranteed both by the Seventh Amendment and by Ch. 1, Art. 12th, of the Vermont Constitution. Arbitrators do not have the benefit of judicial instruction on the law; they need not give their reasons for their results; the record of their proceedings is not as complete as it is in a court trial; and judicial review of an award is more limited than judicial review of a trial—all as discussed in Wilko v. Swan, 346 U.S. 427, 435—438, 74 S.Ct. 182, 186, 188, 98 L.Ed. 168.4 We said in the York case that 'The nub of the policy that underlies Erie R. Co. v. Tompkins is that for the same transaction the accident of a suit by a non-resident litigant in a federal court instead of in a State court a block away, should not lead to a substantially different result.' 326 U.S. at 109, 65 S.Ct. 1470. There would in our judgment be a resultant discrimination if the parties suing on a Vermont cause of action in the federal court were remitted to arbitration, while those suing in the Vermont court could not be. 9 The District Court found that if the parties were in a Vermont court, the agreement to submit to arbitration would not be binding and could be revoked at any time before an award was made. He gave as his authority Mead's Adm'x v. Owen, 83 Vt. 132, 135, 74 A. 1058, and Sartwell v. Sowles, 72 Vt. 270, 277, 48 A. 11, decided by the Supreme Court of Vermont. In the Owen case the court, in speaking of an agreement to arbitrate, held that '* * * either party may revoke the submission at any time before the publication of an award.' 83 Vt. at page 135, 74 A. at page 1059. That case was decided in 1910. But it was agreed on oral argument that there is no later authority from the Vermont courts, that no fracture in the rules announced in those cases has appeared in subsequent rulings or dicta, and that no legislative movement is under way in Vermont to change the result of those cases. Since the federal judge making those findings is from the Vermont bar, we give special weight to his statement of what the Vermont law is. See MacGregor v. State Mutual Life Assur. Co., 315 U.S. 280, 62 S.Ct. 607, 86 L.Ed. 846; Township of Hillsborough, Somerset County, New Jersey v. Cromwell, 326 U.S. 620, 630, 66 S.Ct. 445, 451, 90 L.Ed. 358; Steele v. General Mills, 329 U.S. 433, 439, 67 S.Ct. 439, 442, 91 L.Ed. 402. We agree with him that if arbitration could not be compelled in the Vermont courts, it should not be compelled in the Federal District Court. Were the question in doubt or deserving further canvass, we would of course remand the case to the Court of Appeals to pass on this question of Vermont law. But, as we have indicated, there appears to be no confusion in the Vermont decisions, no developing line of authorities that casts a shadow over the established ones, no dicta, doubts or ambiguities in the opinions of Vermont judges on the question, no legislative development that promises to undermine the judicial rule. We see no reason, therefore, to remand the case to the Court of Appeals to pass on this question of local law. 10 Respondent argues that since the contract was made in New York and the parties contracted for arbitration under New York law, New York arbitration law should be applied to the enforcement of the contract. A question of conflict of laws is tendered, a question that is also governed by Vermont law. See Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. It is not clear to some of us that the District Court ruled on that question. We mention it explicitly so that it will be open for consideration on remand of the cause to the District Court. 11 The judgment of the Court of Appeals is reversed and the cause is remanded to the District Court for proceedings in conformity with this opinion. 12 Reversed and remanded. 13 Mr. Justice FRANKFURTER, concurring. 14 It is my view that the judgment of the Court of Appeals should be reversed and the case remanded to that court and not to the District Court. 15 This action was brought in the Bennington County Court of the State of Vermont by petitioner, a citizen of Vermont, against respondent, a corporation of the State of New York. Respondent removed the case to the United States District Court for the District of Vermont. The subject matter of the litigation is a contract made between the parties in New York, and the sole basis of the jurisdiction of the District Court is diversity of citizenship. Not only was the contract made in New York, but the parties agreed to the following provision in it: 16 'Fourteenth: The parties hereto do hereby stipulate and agree that it is their intention and covenant that this agreement and performance hereunder and all suits and special proceedings hereunder be construed in accordance with and under and pursuant to the laws of the State of New York and that in any action special proceeding or other proceeding that may be brought arising out of, in connection with or by reason of this agreement, the laws of the State of New York shall be applicable and shall govern to the exclusion of the law of any other forum, without regard to the jurisdiction in which any action or special proceeding may be instituted.' 17 Respondent invoked another provision of the contract whereby disputes under the agreement were to be submitted to arbitration subject to the regulations of the American Arbitration Association and the pertinent provisions of the New York Arbitration Act, Civil Practice Act, § 1468 et seq. It did so by a motion to stay the proceeding in the District Court pending arbitration. 18 The District Court denied the stay because, on its reading of the Vermont cases, Vermont law, while recognizing the binding force of such an agreement by way of a suit for damages, does not allow specific performance or a stay pending arbitration. It rested on a decision rendered by the Supreme Court of Vermont in a bill for an accounting evidently between two Vermonters and relating wholly to a Vermont transaction, i.e., a controversy about personal property on a Vermont farm. Mead's Adm'x v. Owen, 83 Vt. 132, 74 A. 1058.1 This case was decided in 1910 and, in turn, relied on Aspinwall v. Tousey, 2 Tyler, Vt., 328, decided in 1803, authorizing revocation of a submission to arbitration at any time before the publication of an award. 19 The Court of Appeals found it unnecessary to consider what the Vermont law was today, for it held that the arbitration provision did not concern a matter of 'substantive' law, for which, in this diversity case, Vermont law would be controlling on the United States District Court sitting in Vermont. It held that the arbitration provision fell within the law of 'procedure' governing an action in the federal court, whatever the source of the jurisdiction. So holding, the Court of Appeals found § 3 of the United States Arbitration Act, 9 U.S.C. § 3, 9 U.S.C.A. § 3, applicable and, accordingly, directed the District Court to heed that Act and allow the matter to go to arbitration. 2 Cir., 218 F.2d 948. 20 This Court explained in Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, why the categories of 'substance' and 'procedure' are, in relation to the application of the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, less than self-defining. They are delusive. The intrinsic content of what is thought to be conveyed by those terms in the particular context of a particular litigation becomes the essential inquiry. This mode of approaching the problem has had several applications since the York decision. I agree with the Court's opinion that the differences between arbitral and judicial determination of a controversy under a contract sufficiently go to the merits of the outcome, and not merely because of the contingencies of different individuals passing on the same question, to make the matter one of 'substance' in the sense relevant for Erie R. Co. v. Tompkins. In view of the ground that was taken in that case for its decision, it would raise a serious question of constitutional law whether Congress could subject to arbitration litigation in the federal courts which is there solely because it is 'between Citizens of different States', U.S.Const. Art. III, § 2, in disregard of the law of the State in which a federal court is sitting. Since the United States Arbitration Act of 1925 does not obviously apply to diversity cases, in the light of its terms and the relevant interpretive materials, avoidance of the constitutional question is for me sufficiently compelling to lead to a construction of the Act as not applicable to diversity cases.2 Of course this implies no opinion on the constitutional question that would be presented were Congress specifically to make the Arbitration Act applicable in such cases. Furthermore, because the Act is not here applicable, I abstain from any consideration of the scope of its provisions in cases which are in federal courts on a jurisdictional basis other than diversity of citizenship. 21 Vermont law regarding such an arbitration agreement as the one before us, therefore, becomes decisive of the litigation. But what is Vermont law? One of the difficulties, of course, resulting from Erie R. Co. v. Tompkins, is that it is not always easy and sometimes difficult to ascertain what the governing state law is. The essence of the doctrine of that case is that the difficulties of ascertaining state law are fraught with less mischief than disregard of the basic nature of diversity jurisdiction, namely, the enforcement of state-created rights and state policies going to the heart of those rights. If Judge Gibson's statement of what is the contemporary Vermont law relevant to the arbitration provision now before him were determinative, that would be that. But the defendant is entitled to have the view of the Court of Appeals on Vermont law and cannot, under the Act of Congress, be foreclosed by the District Court's interpretation. 22 As long as there is diversity jurisdiction, 'estimates' are necessarily often all that federal courts can make in ascertaining what the state court would rule to be its law.3 See Pomerantz v. Clark, 101 F.Supp. 341. This Court ought not to by-pass the Court of Appeals on an issue which, if the Court of Appeals had made a different estimate from the District Court's, of contemporaneous Vermont law regarding such a contract as the one before us, this Court, one can confidently say, would not have set its view of Vermont law against that of the Court of Appeals. For the mere fact that Vermont in 1910 restated its old law against denying equitable relief for breach of a promise to arbitrate a contract made under such Vermont law, is hardly a conclusive ground for attributing to the Vermont Supreme Court application of this equitable doctrine in 1956 to a contract made in New York with explicit agreement by the parties that the law of New York which allows such a stay as was here sought, New York Civil Practice Act, § 1451, should govern. Cf. Brown v. Perry, 104 Vt. 66, 156 A. 910, 77 A.L.R. 1294. Law does change with times and circumstances, and not merely through legislative reforms.4 It is also to be noted that law is not restricted to what is found in Law Reports, or otherwise written. See Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 84 L.Ed. 1254. The Supreme Court of Vermont last spoke on this matter in 1910. The doctrine that it referred to was not a peculiar indigenous Vermont rule. The attitude reflected by that decision nearly half a century ago was the current traditional judicial hostility against ousting courts, as the phrase ran, of their jurisdiction. See the adverse comments of Judge Hough in United States Asphalt Refining Co. v. Trinidad Lake Petroleum Co., D.C., 222 F. 1006, against what he assumed to be the law in the federal courts, and compare with the shift in judicial attitude reflected by the reservation of this question in Mr. Justice Brandeis' opinion for the Court in Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582.5 To be sure, a vigorous legislative movement got under way in the 1920's expressive of a broadened outlook of view on this subject. But courts do not always wait for legislation to find a judicial doctrine outmoded. Only last Term, although we had no statute governing an adjudication, we found significance in a relevant body of enactments elsewhere: 'A steady legislative trend, presumably manifesting a strong social policy, properly makes demands on the judicial process.' National City Bank of New York v. Republic of China, 348 U.S. 356, 360, 75 S.Ct. 423, 427. 23 Surely in the light of all that has happened since 1910 in the general field of the law of arbitration, it is not for us to assume that the Court of Appeals, if it had that question for consideration, could not have found that the law of Vermont today does not require disregard of a provision of a contract made in New York, with a purposeful desire to have the law of New York govern, to accomplish a result that today may be deemed to be a general doctrine of the law. Of course, if the Court of Appeals, versed in the general jurisprudence of Vermont and having among its members a Vermont lawyer, should find that the Vermont court would, despite the New York incidents of the contract, apply Vermont law and that it is the habit of the Vermont court to adhere to its precedents and to leave changes to the legislature, it would not be for the federal court to gainsay that policy. I am not suggesting what the Court of Appeals' answer to these questions would be, still less what it should be. I do maintain that the defendant does have the right to have the judgment of the Court of Appeals on that question and that it is not for us to deny him that right. 24 I would remand the case to the Court of Appeals for its determination of Vermont law on matters which the basis of its decision heretofore rendered it needless to consider. 25 Mr. Justice HARLAN, concurring. 26 I concur in the opinion of the Court except insofar as it undertakes to review and affirm the District Court's interpretation of Vermont law. I agree with Mr. Justice FRANKFURTER that the review of questions of state law should ordinarily be left to the Courts of Appeals and would remand the case to the Court of Appeals for that purpose. 27 Mr. Justice BURTON, dissenting. 28 Whether or not § 3 of the Federal Arbitration Act is applicable to this contract, the judgment of the Court of Appeals should be affirmed. 29 Assuming the validity of the arbitration clause in the New York contract here involved, I regard the procedure which it prescribes as a permissible 'form of trial.' See Murray Oil Products Co. v. Mitsui & Co., 2 Cir., 146 F.2d 381. Accordingly, the United States District Court for the District of Vermont may stay its own proceedings to await completion of the arbitration proceedings, although a state court of Vermont would not do likewise. I do not interpret Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, or Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, as requiring the contrary. 1 Section 2 provides: 'A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.' 2 Section 3 provides: 'If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.' 3 Section 1 defines 'commerce' as: '* * * commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation, but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.' Since no transaction involving commerce appears to be involved here, we do not reach the further question whether in any event petitioner would be included in 'any other class of workers' within the exceptions of § 1 of the Act. 4 Whether the arbitrators misconstrued a contract is not open to judicial review. The Hartbridge, 2 Cir., 62 F.2d 72; Mutual Benefit Health & Accident Ass'n v. United Cas. Co., 1 Cir., 142 F.2d 390. Questions of fault or neglect are solely for the arbitrators' consideration. James Richardson & Sons v. W. E. Hedger Transportation Corp., 2 Cir., 98 F.2d 55. Arbitrators are not bound by the rules of evidence. Burchell v. Marsh, 17 How. 344, 15 L.Ed. 96; Springs Cotton Mills v. Buster Boy Suit Co., 275 App.Div. 196, 200, 88 N.Y.S.2d 295, 298, affirmed 300 N.Y. 586, 89 N.E.2d 877. They may draw on their personal knowledge in making an award. American Almond Products Co. v. Consolidated Pecan Sales Co., 2 Cir., 144 F.2d 448, 154 A.L.R. 1205; The Guldborg, D.C., 1 F.Supp. 380; Springs Cotton Mills v. Buster Boy Suit Co., supra. Absent agreement of the parties, a written transcript of the proceedings is unnecessary. A. O. Andersen Trading Co. v. Brimberg, 119 Misc. 784, 197 N.Y.S. 289; Application of Shapiro, 197 Misc. 241, 97 N.Y.S.2d 644, modified Shapiro v. Gordon, 277 App.Div. 927, 98 N.Y.S.2d 451. Swearing of witnesses may not be required. Application of Shapiro, supra. And the arbitrators need not disclose the facts or reasons behind their award. Shirley Silk Co. v. American Silk Mills, Inc., 257 App.Div. 375, 377, 13 N.Y.S.2d 309, 311. 1 The court also cited Sartwell v. Sowles, 72 Vt. 270, 48 A. 11. 2 Shanferoke Coal & Supply Corp. of Delaware v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583, was a diversity case wherein § 3 of the Arbitration Act was applied. But the case was pre-Erie, and the Court's attention was not directed toward the question. 3 It is peculiarly true of the problem before us, that law is a prophecy 'of what the courts will do in fact.' Holmes, The Path of the Law, in Collected Legal Papers, p. 173. 4 That the Vermont Supreme Court does not obstinately adhere to its past decisions, that for it too law is living, is illustrated by the following instances: Capello's Administrator v. Aero Mayflower Transit Co., 116 Vt. 64, 68 A.2d 913, overruling Ronan v. J. G. Turnbull Co., 99 Vt. 280, 287—288, 131 A. 788, 791—792 (proof that an automobile involved in an accident was owned by the defendant at the time of the accident does not make a prima facie case that the operator of the automobile was engaged in the defendant's service); Bartlett v. Bonazzi, 91 Vt. 192, 99 A. 886, overruling Fisher v. Brown, 1 Tyler, Vt., 387 (action for deceit will not lie for seller's fraudulent misrepresentations concerning his financial position which induced buyer to extend credit); State v. Pianfetti, 79 Vt. 236, 65 A. 84, overruling State v. Kittle, 2 Tyler, Vt., 471 (jury verdict of guilty on one of four counts in an indictment operated as an acquittal on the other three counts); Perry v. Shumway, 73 Vt. 191, 50 A. 1069, overruling Town of Hartland v. Hackett, 57 Vt. 92 (the issuing of an extent against a delinquent tax collector constitutes an election of remedies which bars an action on the collector's bond); State v. Burpee, 65 Vt. 1, 25 A. 964, 19 L.R.A. 145, overruling State v. Croteau, 23 Vt. 14 (in a criminal trial all questions of law as well as fact are for the jury); Woodrow v. O'Conner, 28 Vt. 776, and Bagley v. Wiswall, Brayton, Vt., 23, overruling Drake v. Collins, 1 Tyler, Vt., 79 (an arbitration note is void for want of consideration). See also Grenier v. Alta Crest Farms, Inc., 115 Vt. 324, 58 A.2d 884, deciding that the character of the employee right created by the Vermont Workmen's Compensation Act is not the same as the character of the right which existed at common law. The opinion draws upon the recorded attitude of other jurisdictions to justify its departure from the contrary theory which it had set forth in Kelley v. Hoosac Lumber Co., 96 Vt. 153, 118 A. 520. 5 Judge Hough, in 1915, stated: 'It has never been denied that the hostility of English-speaking courts to arbitration contracts probably originated (as Lord Campbell said in Scott v. Avery, 4 H.L.Cas. 811)—'in the contests of the courts of ancient times for extension of jurisdiction—all of them being opposed to anything that would altogether deprive every one of them of jurisdiction.' 'A more unworthy genesis cannot be imagined. Since (at the latest) the time of Lord Kenyon, it has been customary to stand rather upon the antiquity of the rule than upon its excellence or reason * * *.' 222 F. at page 1007. 'I think the decisions cited show beyond question that the Supreme Court has laid down the rule that such a complete ouster of jurisdiction as is shown by the clause quoted (the arbitration clause) * * * is void in a federal forum.' 222 F. at page 1012. On the other hand, in 1924 this Court observed in Red Cross Line: 'we have no occasion to consider whether the unwillingness of the federal courts to give full effect to executory agreements for arbitration can be justified.' 264 U.S. at page 125, 44 S.Ct. at page 278.

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350 U.S. 148 76 S.Ct. 219 100 L.Ed. 149 REX TRAILER COMPANY, Inc., Petitioner,v.UNITED STATES of America. No. 46. Argued Dec. 5, 1955. Decided Jan. 9, 1956. Mr. Gustav H. Dongus, Indianapolis, Ind., for petitioner. Mr. Melvin Richter, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 Petitioner contends that this action brought by the Government to recover $2,000 on each of five counts of a complaint based on § 26(b)(1) of the Surplus Property Act of 19441 places it twice in jeopardy in violation of the Fifth Amendment. In an earlier proceeding it had pleaded nolo contendere to a five-count indictment bottomed on the same five transactions and paid fines in the aggregate amount of $25,000. In the present case the District Court granted the Government's motion for summary judgment, and the Court of Appeals affirmed, 218 F.2d 880. We granted certiorari, 349 U.S. 937, 75 S.Ct. 784, to resolve an asserted conflict between the decisions of the Courts of Appeals.2 2 At the close of World War II the Government was faced with the problem of disposing of vast quantities of surplus war materials. A large part of this property, valued at many billions of dollars, was needed to satisfy the civilian demand caused by wartime shortages in consumer goods. To facilitate and regulate the orderly disposal of this property, Congress passed the Surplus Property Act of 1944, 58 Stat. 765. The stated purposes of this statute included the reestablishment of returning veterans in business, agricultural, or professional life, the discouragement of speculation in surplus property, and the elimination of unusual and excessive profits to speculators. The concern of Congress for returning veterans is emphasized by its 1946 Amendment to the Act, 60 Stat. 168, which gave veterans a priority for the purchase of surplus property, second only to that of the Federal Government, and authorized the Administrator to assign the highest priority to veterans for the purchase of certain items. This legislation thus afforded veterans an opportunity to purchase goods not available elsewhere at a fair price and on good credit terms. The benefits were of great value to the millions of men and women returning to civilian life just after the war. 3 With this background in mind we may turn to the facts of the present case. In June 1947 the Rex Trailer Company purchased five motor vehicles from the War Assets Administration at Tinker Field, Oklahoma. Rex had only a nonpriority right of purchase under the Surplus Property Act; but, by the fraudulent use of the names of five persons possessing veteran priority rights, it was able to purchase the vehicles. Admittedly, the terms of the statute were violated, but the record does not show petitioner's gain from the fraud. The United States limited itself to the recovery of the sum of $2,000 for each of the five overt acts alleged in its complaint. 4 Petitioner's sole contention is that § 26(b)(1) provides a criminal penalty and, having once been convicted and fined for the transactions in question, it cannot again be subjected to punishment. The only question for our decision, then, is whether § 26(b)(1) is civil or penal, for 'Congress may impose both a criminal and a civil sanction in respect to the same act or omission; for the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.' Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917. 5 We conclude that the recovery here is civil in nature. The Government has the right to make contracts and hold and dispose of property, and, for the protection of its property rights, it may resort to the same remedies as a private person. Cotton v. United States, 11 How. 229, 13 L.Ed. 675. Liquidated damages are a well-known remedy, and in fact Congress has utilized this form of recovery in numerous situations. In all building contracts, for example, Congress has required the insertion of a liquidated-damage clause which 'shall be conclusive and binding upon all parties' without proof of 'actual or specific damages sustained * * *.' 32 Stat. 326, 40 U.S.C. § 269*. Liquidated-damage provisions, when reasonable, are not to be regarded as penalties, United States v. United Engineering & Contracting Co., 234 U.S. 236, 241, 34 S.Ct. 843, 845, 58 L.Ed. 1294, and are therefore civil in nature. 6 In § 26 of the Surplus Property Act, Congress has provided three alternative remedies. The first provides a recovery of $2,000 plus double the amount of the damage sustained; the second permits a recovery 'as liquidated damages' of twice the consideration agreed upon; the third permits the Government to recover the property and retain 'as liquidated damages' the consideration it received. These alternative remedies are set out in three consecutively numbered subsections of § 26(b). All three were recognized as civil remedies by Congress before the bill was passed,3 and the conclusion is inescapable that each was of the same nature and designed to serve the same purpose. Further, Congress provided in § 26(d) that: '(t)he civil remedies provided in this section shall be in addition to all other criminal penalties and civil remedies provided by law.' 7 The case of United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, involved a provision of the False Claims Act, R.S. §§ 5438, 3490, 31 U.S.C. § 231, 31 U.S.C.A. § 231, essentially the equivalent of § 26(b)(1).4 In Marcus, as here, the defendant had pleaded nolo contendere in an earlier criminal prosecution based on the same transaction. This Court rejected the petitioner's contention of double jeopardy and held that the statute involved was remedial and not penal, since it was unable to say that the provision for $2,000 plus double damages would 'do more than afford the government complete indemnity for the injuries done it.' 317 U.S. at page 549, 63 S.Ct. at page 387. In concluding, it recognized that '(t)he inherent difficulty of choosing a proper specific sum which would give full restitution was a problem for Congress.' 317 U.S. at page 552, 63 S.Ct. at page 388. 8 It is insisted, however, that the failure of the Government to allege specific damages precludes recovery here. But there is no requirement, statutory or judicial, that specific damages be shown, and this was recognized by the Court in Marcus.5 The Government's recovery here is comparable to the recovery under liquidated-damage provisions which fix compensation for anticipated loss. As this Court recognized in Priebe & Sons v. United States, 332 U.S. 407, 411—412, 68 S.Ct. 123, 126, 92 L.Ed. 32, liquidated damages 'serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts. * * *' And the fact that no damages are shown is not fatal. Section 26(b)(1) merely accomplishes the intended result of Congress by authorizing a separate proceeding for the recovery of a lump sum in damages. 9 It is obvious that injury to the Government resulted from the Rex Trailer Company's fraudulent purchase of trucks. It precluded bona fide sales to veterans, decreased the number of motor vehicles available to Government agencies, and tended to promote undesirable speculation.6 The damages resulting from this injury may be difficult or impossible to ascertain, but it is the function of liquidated damages to provide a measure of recovery in such circumstances. On this record it cannot be said that the measure of recovery fixed by Congress in the Act is so unreasonable or excessive that it transformed what was clearly intended as a civil remedy into a criminal penalty. 10 Affirmed. 11 Mr. Justice FRANKFURTER concurs in the judgment substantially for the reasons given by him in his opinion in support of the Marcus decision. 317 U.S. at page 553, 63 S.Ct. at page 388. 1 Section 26 of the Surplus Property Act of 1944, 58 Stat. 765, 780, 50 U.S.C.Appendix (1946 ed.) § 1635, now 40 U.S.C.A. § 489, provided in pertinent part: '(b) Every person who shall use or engage in or cause to be used or engaged in any fraudulent trick, scheme, or device, for the purpose of securing or obtaining, or aiding to secure or obtain, for any person any payment, property, or other benefits from the United States or any Government agency in connection with the disposition of property under this Act; or who enters into an agreement, combination, or conspiracy to do any of the foregoing— '(1) shall pay to the United States the sum of $2,000 for each such act, and double the amount of any damage which the United States may have sustained by reason thereof, together with the costs of suit; or '(2) shall, if the United States shall so elect, pay to the United States, as liquidated damages, a sum equal to twice the consideration agreed to be given by such person to the United States or any Government agency; or '(3) shall, if the Unied States shall so elect, restore to the United States the property thus secured and obtained and the United States shall retain as liquidated damages any consideration given to the United States or any Government agency for such property. '(d) The civil remedies provided in this section shall be in addition to all other criminal penalties and civil remedies provided by law.' 2 In considering whether the statute of limitations contained in 28 U.S.C. § 2462, 28 U.S.C.A. § 2462, applied to § 26(b)(1) of the Surplus Property Act, the Fifth Circuit held § 26(b)(1) to be a civil remedy in United States v. Weaver, 207 F.2d 796, 797, and the Sixth Circuit held it to be penal in United States v. Witherspoon, 211 F.2d 858. 3 In referring to these provisions, the Senate Committee on Military Affairs described them as providing for 'the civil liability of persons who engaged in false, fraudulent, or fictitious activities, or conceal or misrepresent material facts, or act with intent to defraud the United States * * *. The United States is given the option of electing among three different measures of damages.' S.Rep. No. 1057, 78th Cong., 2d Sess. 13—14. * Now 41 U.S.C.A. § 256a. 4 The False Claims Act provides that the defrauder 'shall forfeit and pay to the United States the sum of 2,000, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such act, together with the costs of suit; and such forfeiture and damages shall be sued for in the same suit.' United States ex rel. Marcus v. Hess, holding this provision to provide a compensatory civil remedy, was decided on January 18, 1943. The Surplus Property Act, which employed virtually identical language in § 26(b)(1), was enacted on October 3, 1944. Under these circumstances it would be very difficult to say that these words which provided a civil remedy in the False Claims Act were not intended to provide the same kind of remedy in the Surplus Property Act. 5 On several of the projects involved in the Marcus case, fraud was discovered by the Government in time for payments to be withheld. At trial in the District Court defendants urged that there could be no recovery of a penalty or forfeiture in these instances where no actual damage could be shown. The District Court held that failure to show actual damage in these instances would not preclude recovery under the statute. United States ex rel. Marcus v. Hess, 41 F.Supp. 197, 218. The judgment of the District Court was affirmed here. See United States v. Rohleder, 3 Cir., 157 F.2d 126, 129. 6 It seems quite probable that there is also an element of unjust enrichment to the Rex Trailer Company from its fraudulent purchases. The record is silent on this point and we have not considered it in arriving at our decision, but the fact that Rex was willing to resort to fraud to purchase the vehicles at the veteran's price strongly suggests at the fair gain from the purchases. The price for sales to priority purchasers was fixed by regulations published in 32 CFR (1946 Supp.) §§ 8302.8(d), 8302.11, which provided: 'Disposal agencies shall fix the fair value at which property shall be acquired by priority claimants. Such a fair value shall not be greater than the lowest price which is offered to any trade level at the time of acquisition by the priority claimant, or where the fair value is fixed after examining competitive bids, it shall not be greater than the lowest acceptable bid.'

01

350 U.S. 155 76 S.Ct. 227 100 L.Ed. 166 LOCAL UNION NO. 25 OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, et al., Petitioners,v.The NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY. No. 33. Argued Nov. 10, 1955. Decided Jan. 9, 1956. Mr. Stephen J. D'Arcy, Jr., Boston, Mass., for petitioner. Mr. Herbert Burstein, New York City, for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 Respondent railroad has, since 1937, engaged in hauling, between Boston, Massachusetts, and other points in New England, loaded trailers of the type ordinarily hauled over the highways by motor carriers. This operation is popularly known as 'piggy-backing.' Trailers to be shipped from Boston are delivered to respondent's freight yard by employees of the motor carriers. There they are detached from the tractors and driven by special devices onto respondent's flatcars by employees of New England Transportation Co., a motor carrier, which is a subsidiary of respondent. The trailers are secured to the flatcars by respondent's employees. 2 Petitioners are the local teamsters union, one of its officers and two of its business agents. The union, by virtue of collective-bargaining agreements, represents a large number of drivers and helpers of certain motor carriers which are engaged in over-the-road hauling of freight between Boston and other points in New England. Respondent's 'piggy-backing' operations have steadily increased over the years, with a resulting loss of work for truck drivers. The union sought, without success, in 1946, and again in 1949, an agreement by the motor carriers to cease shipping trailers by 'piggy-back.' Having failed in these and subsequent negotiations to dissuade the trucking companies from participating in 'piggy-backing,' petitioner union assigned petitioners Norton and McCarthy, business agents of the union, to patrol the entrance to respondent's Yard 5 where trailers are delivered for 'piggy-back' operations. 3 On July 11, 12 and 14, 1952, Norton and McCarthy stopped a number of truck-drawn trailers owned by carriers with whom petitioner union had collective-bargaining agreements and persuaded the drivers to refrain from delivering the trailers to respondent. Employees of New England Transportation Co. were persuaded by Norton and McCarthy not to load previously delivered trailers onto respondent's flatcars. 4 Respondent filed suit in the Superior Court of Suffolk County, Massachusetts, seeking permanently to enjoin petitioner's conduct and, in addition, damages in the sum of $100,000. In its amended complaint respondent alleged, among other things: 5 '* * * the individual respondents and the respondent union prevented the loading of trailers on flat cars and enforced a boycott against petitioner and a withholding of patronage and services by motor truck carriers and shippers. 6 'The petitioner is informed and believes that the object of the acts committed by the respondents on July 11, 12 and 14, 1952, as set forth in paragraphs '8' and '9' of this complaint was to force or require the petitioner to cease handling and transportation the products of various shippers and motor carriers who employ petitioner's flat car service. 7 'The said acts were and are intended to compel shippers and motor truck carriers to assign work to members of the respondent union and to thereby commit an unfair labor practice in violation of the National Labor Relations Act; and 'The said acts were intended to and did, in fact, result in an unlawful secondary boycott in violation of the laws of the Commonwealth of Massachusetts, and of Section 8(b)(4)(A) of the National Labor Relations Act; * * * .'1 8 After hearing, a permanent injunction was granted and, on appeal, the Supreme Judicial Court of Massachusetts affirmed. New York, N.H. & H.R. Co. v. Jenkins, 331 Mass. 720, 122 N.E.2d 759. We granted certiorari to determine whether the state court had jurisdiction to enjoin the petitioners' conduct or whether its jurisdiction had been pre-empted by the authority vested in the National Labor Relations Board. Local Union No. 25 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers v. New York, N.H. & H.R. Co., 348 U.S. 969, 75 S.Ct. 533. 9 Resolution of this question depends upon (1) whether respondent, as a railroad subject to the Railway Labor Act, may avail itself of the processes of the N.L.R.B., and (2) if respondent may do so, was it required, in the circumstances of this case, to seek relief from that tribunal rather than from the state courts. 10 The Massachusetts court, although recognizing the principle that state courts ordinarily lack authority to enjoin alleged unfair labor practices affecting interstate commerce,2 determined that it had jurisdiction in this controversy to restrain petitioners' conduct because the Labor Management Relations Act's definition of 'employer,' as interpreted by the N.L.R.B., cast doubt upon respondent's ability to obtain relief under that Act. 11 The Act, in its definition of an 'employer,' expressly excludes anyone subject to the Railway Labor Act. 61 Stat. 137, 350 U.S. 158, 29 U.S.C. § 152(2), 29 U.S.C.A. § 152(2).3 It is of course true that employer-employee relationships of railroads such as respondent are governed by the Railway Labor Act,4 which was passed before either the National Labor Relations Act or the Labor Management Relations Act. Neither of the latter Acts was intended to tread upon the ground covered by the Railway Labor Act. It is clear that neither railroads nor their employees may carry their grievances with one another to the N.L.R.B. for resolution. But it does not follow from this that a railroad is precluded from seeking the aid of the Board in circumstances unrelated to its employer-employee relations. Respondent itself has maintained throughout the entire course of this litigation that there is no labor dispute with its employees. The Massachusetts court found that petitioner union was in no way concerned with respondent's labor policy, nor was there any claim that the union interfered in any manner whatsoever with the railroad employees. 12 The N.L.R.B. is empowered to issue complaints whenever 'it is charged' that any person subject to the Act is engaged in any proscribed unfair labor practice. § 10(b). Under the Board's Rules and Regulations such a charge may be filed by 'any person.'5 We think it clear that Congress, in excluding 'any person subject to the Railway Labor Act' from the statutory definition of 'employer,' carved out of the Labor Management Relations Act the railroads' employer-employee relationships which were, and are, governed by the Railway Labor Act. But we do not think that by so doing Congress intended to divest the N.L.R.B. of jurisdiction over controversies otherwise within its competence solely because a railroad is the complaining party. Furthermore, since railroads are not excluded from the Act's definition of 'person,' they are entitled to Board protection from the kind of unfair labor practice proscribed by § 8(b)(4)(A). This interpretation permits the harmonious effectuation of three distinct congressional objectives: (1) to provide orderly and peaceful procedures for protecting the rights of employers, employees and the public in labor disputes so as to promote the full, free flow of commerce, as expressed in § 1(b) of the Labor Management Relations Act; (2) to maintain the traditional separate treatment of employer-employee relationships of railroads subject to the Railway Labor Act; and (3) to minimize 'diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.' Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776, 346 U.S. 485, 490, 75 S.Ct. 161, 166. 13 Respondent contends, however, that even if railroads may seek the aid of the N.L.R.B., it was not required to do so in this case because petitioners' conduct was neither protected by § 7 nor prohibited by § 8(b)(4) of the Labor Management Relations Act. As we noted earlier, respondent's amended complaint alleged violations of the Act. Whether the Act was violated or whether, as respondent now claims, it was not, is, of course, a question for the Board to determine. Even if petitioners' conduct is not prohibited by § 8 of the Act, it may come within the protection of § 7, in which case the State was not free to enjoin the conduct. In any event, the Board's jurisdiction in the circumstances of this case is clearly settled by this Court's recent decision in Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 481, 75 S.Ct. 480, 488: 14 'But where the moving party itself alleges unfair labor practices, where the facts reasonably bring the controversy within the sections prohibiting these practices, and where the conduct, if not prohibited by the federal Act, may be reasonably deemed to come within the protection afforded by that Act, the state court must decline jurisdiction in deference to the tribunal which Congress has selected for determining such issues in the first instance.' 15 We therefore hold that the question presented by the facts in this case brings it within the jurisdiction of the N.L.R.B., whose jurisdiction is exclusive, and the respondent railroad may seek any remedy it may have before said Board. 16 The judgment is reversed. 17 Reversed. 1 Section 8(b)(4)(A) provides: '(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. 141, 29 U.S.C.A. § 158(b)(4) (A). 2 Garner v. Teamsters, Chauffeurs, and Helpers Local Union No. 776, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480. 3 Sec. 2. 'When used in this Act— '(2) The term 'employer' includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.' 4 44 Stat. 577, as amended, 45 U.S.C. § 151, 45 U.S.C.A. § 151. 5 29 CFR, 1955 Cum.Supp., § 102.9. The Act defines 'person' as follows: "Sec. 2. When usd in this Act— "(1) The term 'person' includes one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers."

910

350 U.S. 162 76 S.Ct. 244 100 L.Ed. 173 SECRETARY OF AGRICULTURE of the United Statesv.UNITED STATES of America, Interstate Commerce Commission, et al. UTAH POULTRY & FARMERS COOPERATIVE, Armour and Company, and Swift and Company, v. UNITED STATES of America, Interstate Commerce Commission, et al. Nos. 6, 7, 11 and 12. Argued Oct. 12, 1955. Decided Jan. 9, 1956. Mr. Marvin E. Frankel, Washington, D.C., for appellants Secretary of Agriculture and the United States. Mr. Samuel R. Howell, Washington, D.C., for I.C.C. Mr. Wm. F. Zearfaus, Philadelphia, Pa., for the appellees Intervening Railroads. Opinion of the Court by Mr. Justice HARLAN, announed by Mr. Justice CLARK. 1 These cases involve the validity of railroad tariff provisions exonerating the appellee railroads from liability for stated percentages of damage to shell eggs shipped over their lines. The cases come to us by direct appeal1 from a judgment of a three-judge district court in Utah,2 which dismissed an action brought to set aside and enjoin an order of the Interstate Commerce Commission3 approving such tariff provisions. We noted probable jurisdiction on October 14, 1954.4 2 Claims against the railroads for damage to egg shipments steadily and rapidly increased in the years following 1939, particularly on shipments to the eastern seaboard area.5 In 1950 the railroads, believing that because of the difficulties of proof they were being exposed to liability for damage for which they were not responsible, filed with the Commission proposed tariff provisions similar in form to those approved by the order under review. After an investigation and hearing,6 the Commission concluded that egg shipments ordinarily contained substantial amounts of damage for which the railroads were not responsible—namely, (a) damage existing prior to shipment, and (b) damage unavoidably arising in transit because of the inherently fragile nature of eggs. The averently amount of such damage was found to be 3% for eggs packaged at railhead points and 5% for those packaged elsewhere. On the basis of this finding, the Commission, although rejecting the higher-percentage provisions proposed by the railroads,7 found reasonable—and hence authorized the railroads to include in their tariff schedules8—the following tolerance provision: 3 'On eggs placed in packages at rail point of origin of the shipment, no claim shall be allowed where the physical damage to the eggs at destination does not exceed 3% of the contents of the packages containing damaged eggs. Where damage exceeds 3%, claims shall be allowed for all damage in excess of 3%, if investigation develops carrier liability. 4 'Exception.—Where bona fide certificates of Federal or State egg inspection agencies showing extent of physical damage to eggs determined at rail point of origin of the shipment immediately prior to tender for rail transportation indicate the actual shell damage to be other than 2%, the percentage of actual damage as shown on such certificates, plus 1% shall be used in lieu of 3% specified in this Section.' 5 An otherwise identical provision applicable to 'eggs placed in packages at points other than the rail point of origin' was determined to be reasonable with a tolerance of 5%. 6 It is claimed that these tariff provisions violate § 20(11) of the Interstate Commerce Act, 24 Stat. 386, as amended, 49 U.S.C. § 20(11), 49 U.S.C.A. § 20(11), which provides that any common carrier subject to the Act receiving property for interstate transportation 'shall be liable * * * for any loss, damage, or injury to such property caused by it * * *, and no contract, receipt, rule, regulation, or other limitation of any character whatsoever, shall exempt such common carrier * * * from the liability hereby imposed * * *.' 7 The Commission and the court below (one judge dissenting) held that the tolerance provisions did not violate § 20(11) because the pre-shipment and unavoid-ably-caused damage represented by the tolerances was not damage 'caused by' the railroads; hence the tolerance regulations, in providing a means for determining the extent of such damage, did not limit the railroads' proper liability, but operated simply to eliminate from damage claims the damage for which the railroads were not liable. 8 The appellants attack the provisions on six principal grounds: (1) the Commission has no jurisdiction over damage claims and hence no power to prescribe regulations governing their disposition; (2) tolerances based on averages necessarily embrace a forbidden limitation of liability since, by definition, some shipments will contain less than the 'average' damage, resulting in those cases in the carrier being relieved of its full liability; (3) the railroads are liable for in-transit damage even though 'unavoidable';9 (4) the averages found by the Commission are not supported by the evidence; (5) the approval of uniform nation-wide tolerances was unreasonable in light of the wide differences in the egg-damage experience of consignees located in different areas of the country;10 and (6) the conclusion that the tolerances do not limit liability is not supported by the Commission's findings. Our agreement with this last contention makes it unnecessary for us to consider the other arguments, and we may assume, though we do not decide, that the tariff provisions are not invalid for any of the other reasons assigned. 9 The Commission's justification of the tolerance regulations as not limiting liability rests upon two distinct propositions: (1) that there is present in every case of eggs at destination physical damage not 'caused by' the railroads—and hence for which they are not liable under § 20(11)—in the amount of the specified percentages; and (2) that the deduction of those percentages from damage claims operates merely to prevent liability for such damage from being improperly imposed on the railroads. We shall accept for purposes of discussion the validity of the first proposition. The infirmity we find in the Commission's report is rather that the second proposition is simply sassumed and is supported by no findings upon which we can say that the Commission's conclusion was reasonably based. Such a conclusion being essential to remove the tolerance provisions from the prohibition of § 20(11), the lack of findings necessary to justify that conclusion renders invalid the Commission's order approving the tolerance regulations. See Florida v. United States, 282 U.S. 194, 215, 51 S.Ct. 119, 125, 75 L.Ed. 291. Indeed, so far does the report fail to support the Commission's conclusion that it tends affirmatively to support precisely the opposite conclusion—namely, that the tolerances do unlawfully limit liability. We know of no better way to illustrate the inadequacies of the report than by showing the manner in which the inferences raised by it and unanswered by the Commission would, if accepted, lead to that opposing conclusion. 10 In the first place, we are unable to discover in the report any showing that damage claims include—or should reasonably be deemed to include—the exempt damage which is to be deducted from them. At common law, proof that a case of eggs contained a specified amount of damage for which the carrier was not liable would afford no defense to a damage claim not shown to include that damage. To complete the defense, some showing that the damage claimed included the exempt damage would be required, such as evidence that all of the damage had been found and claimed. Similarly, to justify a regulation authorizing the deduction from damage claims of a tolerance representing exempt damage, some basis for inferring that damage claims ordinarily include such damage would seem required, such as a finding that the type of inspection upon which damage claims are based is adequate to reveal substantially all the damage present in a case. 11 Far from making such a finding, however, the Commission report indicates that damage claims normally do not include all the damage present in a case. As described by the Commission, the customary inspection at destination upon which damage claims are based is simply a visual examination of a layer of 36 eggs at a time, continuing only until a layer in the case with no visible damage is found, at which point none of the succeeding layers is even looked at.11 Inasmuch as 'damage' of the sort represented by the tolerances includes even the most minor shell imperfections, the inference seems inevitable that much damage is overlooked. This inference is strengthened by the Commission's statement that much of the damage normally present in a case could be found only 'by candling and clicking, and could not be detected by the kind of inspection performed at' destination.12 And that damage claims do not in practice include all damage is further indicated by the Department of Agriculture studies cited by the Commission in which the damage overlooked by customary inspections at destination was found to range between 3.6% and 7.3%.13 Indeed, if the inferences suggested by these latter studies be accepted, it would appear that there is ordinarily overlooked in the destination inspection—and hence not included in damage claims physical damage nearly equal to or greater than the exempt damage represented by the tolerances. If that be true, a further reduction of the claim by the full amount of the tolerance would necessarily operate to 'limit' liability by approximately the full amount of the tolerance. 12 Nor is it an answer to this that the consignee is entitled to make a more thorough inspection than the prevailing practice entails. By in effect requiring a consignee to prove that his damage claim does not include the exempt damage, the tolerances would impose on the consignee the burden of disproving a defense which at common law it would be the carrier's burden to establish. Whether or not the Commission has power so to alter the burden of proof, there is nothing to indicate that it had any intention of doing so. The Commission seems to have believed that under the prevailing commercial practices the carriers were being exposed to an improper liability and that the tolerances, applied in the same commercial setting, would do no more than remedy that situation. It would pervert the Commission's purpose to deal realistically with a commercial problem now to seek to justify the tolerances on the ground that it is technically possible for consignees, by departing from the normal commercial practices, to avoid the limitation of liability caused by the tolerances. Especially is this true in the absence of any suggestion in the Commission's report that such a complete inspection by consignees would be commercially feasible.14 13 Another inadequacy of the Commission's report arises from its failure to distinguish between different kinds of physical damage in the application of the tolerances. The most favorable evidence supporting the Commission's conclusions as to the extent of the damage not 'caused by' the railroads was a Department of Agriculture study showing that at destination the average case of eggs contains 4.8% 'checked' or 'stained' eggs and 0.3% broken eggs.15 Presumably, therefore, the tolerances approved by the Commission represent physical damage in the same proportions—that is, primarily checked and stained eggs with only a nominal percentage of broken eggs. Checked and stained eggs are salable at a reduced price and therefore, unlike broken eggs, represent only a partial loss. The tariff provisions, however, do not differentiate between these types of damage and apparently authorize the deduction of the full tolerance without regard to the nature of the damage claimed. But to permit the offsetting of checked and stained eggs, representing only a partial loss, against broken eggs, representing a total loss, would seem necessarily to limit the railroads' proper liability under § 20(11). 14 A third major respect in which the Commission's report falls short of establishing that the tolerances will not limit liability results from its failure to consider the relationship between the physical damage represented by the tolerances and the legal loss for which damage claims are asserted. We have thus far assumed that 'physical damage' could properly be equated with 'loss' and have shown that, even on that assumption, the Commission has not shown the existence of a relationship between the damage represented by the tolerances and that included in damage claims which would justify the deduction authorized by the tariff provisions. In fact, however, it would appear that damage claims are based not on physical damage to individual eggs but rather on the loss of commercial acceptability of a case of eggs as a whole. As the Commission observed, the 'commercially sound' case of eggs invariably contains some damage,16 and it is apparently only when the damage is so great as to make a case commercially unacceptable for its grade that it loses value. When a commercially unsound case is received, the consignee, rather than suffer the presumably greater loss that would result from selling it at a lower grade or as salvage, ordinarily 'reconditions' the case by replacing the visibly damaged eggs and, if necessary, the packaging materials. From the character of this process as described by the Commission,17 it is apparent that the purpose is simply to make the case commercially sound and not to discover and remove all the damage present in the case. The damage claim, if liability is asserted against the carrier, then consists simply of the cost of reconditioning the case—that is, the labor and material costs plus the loss on the damaged eggs removed.18 15 Viewed in the above terms, the probable effect of the tolerances on liability becomes even more apparent. Inasmuch as the highest grade specifications prescribed by the Department of Agriculture permit physical damage of 5%,19 a case of eggs received at destination with only the tolerance damage of 3% or 5% would presumably be considered 'commercially sound' and be salabel at the full price. Thus it would seem that presence of the tolerance damage by itself causes the consignee no loss and affords no basis for a damage claim, and that it is only when there is additional damage, making it necessary to recondition the case to make it commercially sound, that there is a loss for which a cliam may be asserted. And if the additional damage is caused by the railroad, it necessarily follows that the cost of the reconditioning made necessary only because of that damage is a loss 'caused by' the railroad within § 20(11).20 Any reduction of the damage claim in such circumstances would thus relieve the carrier of its proper liability. 16 The Commission's report thus leaves us not merely with uncertainty as to the impact of the tolerances, cf. United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 504—505, 510—511, 55 S.Ct. 462, 464—465, 467, 79 L.Ed. 1023, but with the strong impression that they are likely to operate in a forbidden manner. The report contains no answers to the problems we have raised, if indeed the Commission considered them at all. Since the report falls far short of establishing that the tolerances will not operate to limit carrier liability in violation of § 20(11), the order of the Commission approving the tolerances must be set aside, and the judgment below reversed. 17 Reversed. 18 Mr. Justice FRANKFURTER, concurring. 19 It seems desirable to state, summarily, the basis on which I join the court's opinion. 20 The starting-point of the Court's determination of the issue in this case is recognition of the fact that the Cummins Amendment to the Interstate Commerce Act, § 20(11), does not constitute an affirmative congressional formulation of a carrier's liability for damage to goods transported by it. The legal import of that Amendment is to bar the Interstate Commerce Commission from legalizing tariffs limiting the common-law liability of a carrier for such damage. The common law, in imposing liability, dispensed with proof by a shipper of a carrier's negligence in causing the damage. But for breakage unavoidable in the nature of things whether nature be operating within a thing or from without, it is equally an 'inherent vice'—there would be no liability since the common law did not impose a liability unrelated to the carrier's conduct. 21 These are the general principles to be deduced from the cases decided at common law. A situation as complicated as the one before us precludes mechanical or mathematical application of these generalities. At common law, if a shipper sued for damage to eggs, the carrier might be able to introduce evidence demonstrating an established percentage of loss not in any sense caused by it. Such fact of inevitable loss could be established by adequately supported averages and would not require demonstration of the incidence of inevitable preshipment or in-transit damage in a particular shipment. To be sure, the shipper might then reply by proving an inevitable percentage of damage caused by the railroad which was undetected or undetectable at destination. One would have to reason from principle, as it is called, to conclude whether the common law would throw on the carrier the burden of showing that the total amount of such loss was inevitably represented in the shipper's damage claim or whether it would allow the carrier to subtract this inevitable damage from whatever damage claim was made and thus throw on the shipper the burden of finding all the damage if he wanted a full recovery. 22 Likewise, if the common law allowed a carrier to urge that the shipper suffered no loss from the undetected or undetectable damage because he could get full price for the cases containing such damage, it might be equally open to the shipper to urge that the average inevitable loss which was being subtracted from his damage claim was made up in large part of damage which was equally undetectable by ordinary commercial inspection and could therefore not be represented in the damage claims that were being made. A further complicating factor is the fact that the grade specifications prescribed by the Department of Agriculture allow prescribed percentages of damage. See 284 I.C.C., at 401. For example, 5% shell damage is permitted in Grade AA and Grade A eggs, so that the presence of such damage does not prevent a shipper from receiving full price. 23 The Cummins Amendment requires that common-law principles of liability be not impaired. But the difficulties of proof and the presence of numerous complicating factors, some of which have been indicated, do not permit dogmatic views regarding the common law's treatment of such a situation as this. The unsuitability of common-law proceedings for the trial of such complicated issues was one of the main reasons why the Interstate Commerce Commission was established to deal with problems pertaining to railroad tariffs and the conflicting interests they entail. As long as the Commission is guided by the common-law principles governing the carriers' liability and takes due account of all the factors thereby involved, this Court must stay its hands. The order of the Commission in this case, however, is set aside because the Commission has not made clear the basis on which it approved the allowable 'tolerances' in the sanctioned tariffs. Since the basis of the Commission's order is not clear, the foundation for the review of the order is wanting. United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 510—511, 55 S.Ct. 462, 467, 79 L.Ed. 1023. 24 This precondition of clarity for the findings of the Commission as a basis for review does not require us to establish the frailty of particular findings or to examine the correctness of alternative meanings to be attributed to dubious findings. An order of the Commission cannot stand if we cannot tell what it has decided or if it leaves foggy the basis of its conclusions. 25 In joining the opinion of the Court, therefore, I do not read it as implying that, because any proof of tolerances may have infirmities as a matter of mathematical demonstration or may offend theoretical arguments based on laws of probability, it may not satisfy the cruder standards of proof by which adjudications are made in courts of law and which may sustain determinations by the Interstate Commerce Commission. Specifically, I assume that the various inadequacies which generate the uncertainty in which the Commission's report leaves us are not to be deemed controlling rules of law in allowing the Commission to ascertain inevitable preshipment or in-transit damage to eggs, i.e., tolerances, by such substantiality of proof as is appropriate to the subject matter. 26 Mr. Justice MINTON, with whom Mr. Justice REED and Mr. Justice BURTON join, dissenting. 27 The Court's opinion does not meet the issue in this case, as I see it. The principal question, as was freely conceded at the argument, was whether the Interstate Commerce Commission had the power to promulgate the regulation under § 20(11). The Court now accepts for the sake of argument that the Commission had the power and then proceeds to find the regulation unfair and unreasonable, although a similar regulation had been in effect since 1919. See National Poultry, Butter & Egg Ass'n v. New York Central R. Co., 52 I.C.C. 47. 28 In an earlier case in which the Commission had under consideration a tariff which provided certain deductions as an incident to the natural shrinkage of grain, it was claimed that the carrier could not so limit its liability because it violated § 20(11). The Commission said: 29 'There appears to be little or no merit in the contention that the rule violates the inhibition clause of the act against the limitation of liability, for the limitation is not against losses caused by the carrier or its connections, but rather against liability for losses due to the inherent nature of the commodities themselves and attributable to no human agency.' A. B. Crouch Grain Co. v. Atchison, T. & S.F.R. Co., 41 I.C.C. 717—718. See also The Cummins Amendment, 33 I.C.C. 682. 30 For loss in transportation due to the inherent nature of the goods a carrier is not liable. Chesapeake & O.R. Co. v. A. F. Thompson Mfg. Co., 270 U.S. 416, 46 S.Ct. 318, 70 L.Ed. 659. Carrier liability must be limited to damage 'caused by it.' Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 151, 57 L.Ed. 314. A tolerance regulation that fairly takes into consideration the inherent nature of the goods and the damage existing prior to receipt by the carrier, as this regulation does, is not prohibited by § 20(11). Obviously there could not be a search and determination egg by egg as to whether the breakage was due to the fault of the carrier or to the inherent nature of the commodity. I think the Commission had the power to promulgate regulations prescribing, after full hearing, a reasonable deduction for loss due to the inherent defects of the commodity transported. The nature of the commodity and the impossibility of deciding this humpty-dumpty question of who or what broke the egg is a proper subject for regulation. Such a regulation would not be a limit of liability but a yardstick for measuring the damage not caused by the carrier but due to the inherent nature of the commodity. 31 What the Commission did, after long investigation and experience with similar regulations since 1919, was to order that, as to shell eggs packaged at railpoint of origin, no claim should be allowed for damages not in excess of 3%. If in excess of 3% there could be recovery on showing that the damage was caused by the carrier. For eggs packaged off the railhead the tolerance was 5%. 32 As the basis for its action the Commission specifically found: 33 'We find that the present 5 percent tolerance on eggs, other than those rehandled and repacked at the rail point of origin, is not shown to be unreasonable or otherwise unlawful. We further find that the proposed tolerances of 4 percent on eggs packed at the rail point of origin, and 6 percent on eggs packed at points other than the rail point of origin have not been justified, but that tolerances of 3 and 5 percent, respectively, would be reasonable. * * *' 284 I.C.C., at 403. 34 The Commission report embodies basic findings to support this conclusion. For example, the Commission concluded on the basis of certain Department of Agriculture studies, that 3.4% damage is the typical average damage existing in shipments of eggs when loaded into railroad cars at points of origin; and that an average of 1.7% damage was 'incident to the movement in transit.' 284 I.C.C., at 393—394. Further, the Commission found that the commercial destination inspections at New York, the most important terminal for eggs shipped by rail, are 'performed with a view to detecting all damaged eggs.' Id., at 396. The tolerances represent the considered judgment of the Commission, after hearing voluminous evidence as to the nature of shell eggs and the way they are handled at railpoint, off railpoint and during shipment. I cannot say that this is not an allowable judgment for the Commission to make. Certainly the treatment of this case by the majority does not make for clarity and understanding, and it leaves yet undecided the question whether the Commission has the power to make an order establishing such a regulation or tariff. I think the regulation is an adequate commercial approximation of noncarrier damage, and is reasonable and within the power of the Commission to make. 35 For these reasons, and for the reasons set forth at length in the opinion of the District Court, 119 F.Supp. 846, I would affirm the judgment. 1 28 U.S.C. §§ 1253, 2325, 28 U.S.C.A. §§ 1253, 2325. The Secretary of Agriculture's standing in these proceedings derives from 52 Stat. 36, 7 U.S.C. § 1291(a) and (b), 7 U.S.C.A. § 1291(a, b). 2 Utah Poultry & Farmers Cooperative v. United States, D.C., 119 F.Supp. 846. 3 284 I.C.C. 377. 4 348 U.S. 807, 75 S.Ct. 44. 5 The Commission found that on eggs shipped to New York the average claim per car increased more than 1800% from 1940 to 1947, 284 I.C.C. at 386, 390, and that the total claims paid in 1947 exceeded 50% of the gross revenue on such shipments, id., at 387. 6 36 Stat. 552, as amended, 49 U.S.C. § 15(7), 49 U.S.C.A. § 15(7). 7 The tariff provisions as originally filed established 4% and 6% tolerances as opposed to the 3% and 5% tolerances found reasonable by the Commission. See 284 I.C.C. at 407—408. 8 Promptly after the Commission's order, the railroads refiled the tariff provisions with the approved percentages. They were permitted to go into effect on May 2, 1952. 9 It is conceded that § 20(11) codifies the common-law rule making a carrier liable, without proof of negligence, for all damage to the goods transported by it, unless it affirmatively shows that the damage was occasioned by the shipper, acts of God, the public enemy, public authority, or the inherent vice or nature of the commodity. See, e.g., Bills of Lading, 52 I.C.C. 671, 679; Chesapeake & O.R. Co. v. Thompson Mfg. Co., 270 U.S. 416, 421—422, 46 S.Ct. 318, 319, 70 L.Ed. 654; Adams Express Co. v. Croninger, 226 U.S. 491, 506—507, 509, 33 S.Ct. 148, 152, 153, 57 L.Ed. 314. The 'unavoidable' damage to eggs is claimed to be within the 'inherent vice' exception. The appellants contend, however, that the exception does not include damage induced by external force, however slight or unavoidable, but is limited to loss or damage arising solely from the nature of the property without the intervention of human factors, such as loss from decay, fermentation, evaporation or natural shrinkage. See, e.g., Austin v. Seaboard Airline R. Co., 5 Cir., 188 F.2d 239, 240—241; Akerly v. Railway Exp. Agency, 96 N.H. 396, 400—402, 77 A.2d 856, 860 861; Jackson & Perkins Co. v. Mushroom Transp. Co., 351 Pa. 583, 590—591, 41 A.2d 635, 639; Watson Bros. Transp. Co. v. Domenico, 118 Colo. 133, 135—137, 194 P.2d 323, 325. 10 The Commission found that the increase of damage claims to 'substantial amounts' had occurred principally in connection with shipments to certain points in the eastern seaboard territory particularly New York, Baltimore, Philadelphia, Boston and Newark and that 'Generally there has been no increase in the damage claims on shell eggs moved by rail to other territories.' 284 I.C.C. at 385—386, 392. 11 284 I.C.C., at 395. 12 284 I.C.C., at 393—394. In 'candling,' each egg is placed before a light to disclose defects not otherwise detectable; in 'clicking,' two eggs are knocked together, the sound revealing shell imperfections. 13 284 I.C.C. at 396. In answer to the implications of these uncontroverted studies, the Commission simply said: 'The record does not indicate the handling received by those particular shipments after they were delivered to the consignees. It does indicate, however, based on the number and amount of claims, that the inspection of shipments of eggs arriving at New York is being performed with a view to detecting all damaged eggs. Claims in amounts exceeding 50 percent of the revenue on the entire egg traffic to New York in 1947 do not appear to be based on a cursory inspection.' Ibid. But this speculative reasoning hardly overcomes the Commission's own explicit finding of the inadequacy of the destination inspections to discover all the damage. 14 To the contrary, the report notes that despite the efforts of packers by careful inspection to eliminate all damage, 'absolute perfection is commercially impossible' and a substantial amount is overlooked, 284 I.C.C., at 393, and the difficulties would seem even greater under the more adverse conditions prevailing at destination. Nor do the Department of Agriculture test studies upon which the tolerances were based indicate the feasibility of an inspection adequate to uncover all damage. The usual Department of Agriculture grading inspections involve an examination only of 100 eggs from each of 15 cases out of a carload, 284 I.C.C., at 393, and, while the Commission does not clearly say so, apparently the test studies utilized a similar spotcheck inspection, from which the total amount of damage was simply inferred. Damage claims, on the other hand, can be asserted only for the damage that is actually found. 15 284 I.C.C., at 393—394. 'Checked' eggs have slight cracks but the membrane is unbroken: 'stained' eggs are sound eggs which have been stained by leakage from other eggs. Id., at 384, 385. 16 284 I.C.C., at 393. 17 284 I.C.C., at 395. The eggs are simply transferred from the damaged case to a new case a whole layer (36 eggs) at a time, in the course of which any obviously damaged eggs are removed and replaced. 18 284 I.C.C., at 385, 399. 19 284 I.C.C., at 401. Of this 5% (for Grade A or AA eggs), no more than 0.5% may consist of broken eggs. As appears above, however, the proportion of broken eggs represented by the tolerances is well within this limit. 20 It seems immaterial that in a given case the consignee might remove more damage than the minimum necessary to make the case commercially sound. The cost of the extensive inspection that would be necessary to assure that precisely the right amount of damage is removed—a cost the consignee would presumably be entitled to recover—would defeat the mitigation of damages which is the very purpose of the reconditioning. The carrier can ask no more than that the consignee act reasonably in mitigating damages, and there is no suggestion that the commercially accepted method of reconditioning unsound cases is unreasonable.

89

350 U.S. 124 76 S.Ct. 232 100 L.Ed. 133 RYAN STEVEDORING CO., Inc., Petitioner,v.PAN-ATLANTIC STEAMSHIP CORPORATION. No. 4. Reargued Oct. 11, 12, 1955. Decided Jan. 9, 1956. Mr. Sidney A. Schwartz, New York City, for petitioner. Mr. Edward J. Behrens, New York City, for respondent. Mr. Leavenworth Colby, Washington, D.C., for U.S. as amicus curiae by Special Leave of Court. Mr. Justice BURTON delivered the opinion of the Court. 1 This case presents two questions as to the liability of a stevedoring contractor to reimburse a shipowner for damages paid by the latter to one of the contractor's longshoremen on account of injuries received by him in the course of his employment on shipboard. 1. The first question is whether the Longshoremen's and Harbor Workers' Compensation Act1 precludes a shipowner from asserting such a liability. 2. The second is whether the liability exists where a contractor, without entering into an express agreement of indemnity, contracts to perform a shipowner's stevedoring operations and the longshoreman's injuries are caused by the contractor's unsafe stowage of the ship's cargo. For the reasons hereafter stated, we answer the first question in the negative and the second in the affirmative. 2 In 1949, respondent, Pan-Atlantic Steamship Corporation, a Delaware corporation, operated the SS. Canton Victory in the American coastwise trade under a bareboat charter. As evidenced by letters, but without a formal stevedoring contract or an express indemnity agreement, respondent secured, for that year, the agreement of petitioner, Ryan Stevedoring Co., inc., an Alabama corporation, to perform all stevedoring operations required by respondent in its coastwise service. Pursuant to that contract, petitioner loaded the Canton Victory at Georgetown, South Carolina, with mixed cargo. This included pulpboard, such as is used in making corrugated paper and paper bags, shipped in rolls 4 feet wide and 3 to 5 feet long. Petitioner stowed some of these rolls side-by-side on the floor of Hatch No. 3 and 'nested' others above them by placing the upper rolls in the troughs between the lower ones. To immobilize the rolls, it was necessary to secure or 'chock' the bottom tier with wedges or with miscellaneous pieces of wood known as 'dunnage.' There is little evidence as to what took place when the rolls were stowed at Georgetown but it was the uniform practice of petitioner's longshoremen to stow such cargo under the immediate direction of their hatch foreman, while respondent's cargo officers supervised the loading of the entire ship and had authority to reject unsafe stowage. 3 A few days later, on July 20, 1949, in navigable water at a pier in Brooklyn, New York, petitioner engaged in unloading these rolls. While one of petitioner's Brooklyn longshoremen, Frank Palazzolo, was working in Hatch No. 3, one roll, weighing about 3,200 pounds, broke loose from the others, struck him violently and severely injured his left leg. There is no evidence that he was negligent. On the other hand, it appears that the rolls in Hatch No. 3 had been insufficiently secured when stowed by petitioner in Georgetown. This is established by the absence of proper wedges and dunnage holding the rolls in place at the time of the accident. 4 Petitioner's insurance carrier under the Longshoremen's Act paid Palazzolo $2,940 compensation and furnished him medical services costing $9,857.36, all without any formal award by the Deputy Commissioner. As permitted by § 33 of that Act, Palazzolo sued the respondent-shipowner in the Supreme Court of New York.2 He claimed that the unsafe stowage of the cargo, which caused his injuries, established either the unseaworthiness of the ship, or the shipowner's negligence in failing to furnish him with a safe place to work, or both. The shipowner removed the case to the United States District Court for the Eastern District of New York and filed a third-party complaint against petitioner. By stipulation, Palazzolo's case against the shipowner was tried to a jury, which returned a verdict in his favor for $75,000. The District Court entered judgment on the jury verdict. From the above sum, petitioner's insurance carrier was to be reimbursed for the $12,797.36 it had advanced because of Palazzolo's injuries. 5 Also by stipulation, the shipowner's third-party complaint was submitted on the same record to the judge who had presided over Palazzolo's case. He dismissed the complaint. 111 F.Supp. 505. The Court of Appeals affirmed Palazzolo's judgment but reversed the dismissal of the third-party complaint and directed that judgment be entered for the shipowner. 211 F.2d 277. Petitioner, the stevedoring contractor, contends that the order reversing the dismissal of the impleader suit is erroneous. Because of the wide application of the case and the conflicting views that have been expressed on the issues, we granted certiorari. 349 U.S. 813, 75 S.Ct. 41. The United States filed a brief as amicus curiae in support of the shipowner and took part in the oral argument. 348 U.S. 948, 75 S.Ct. 435. The judgment was affirmed by an equally divided Court, 349 U.S. 901, 75 S.Ct. 575, but the case was restored to the docket for reargument before a full Court, 349 U.S. 926, 75 S.Ct. 769. 6 1. The first question is whether the Longshoremen's Compensation Act precludes the assertion by a shipowner of a stevedoring contractor's liability to it, where the contractor is also the employer of the injured longshoreman. 7 Neither court below discussed this question, although petitioner presented it to them. Petitioner's argument is based upon the following provision in the Longshoremen's and Harbor Workers' Compensation Act: 8 'Sec. 5. The liability of an employer prescribed in section 4 (for compensation) shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this Act, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this Act, or to maintain an action at law or in admiralty for damages on account of such injury or death. * * *.' (Emphasis supplied.) 44 Stat. 1426, 33 U.S.C. § 905, 33 U.S.C.A. § 905. 9 The obvious purpose of this provision is to make the statutory liability of an employer to contribute to its employee's compensation the exclusive liability of such employer to its employee, or to anyone claiming under or through such employee, on account of his injury or death arising out of that employment. In return, the employee, and those claiming under or through him, are given a substantial quid pro quo in the form of an assured compensation, regardless of fault, as a substitute for their excluded claims. On the other hand, the Act prescribes no quid pro quo for a shipowner that is compelled to pay a judgment obtained against it for the full amount of a longshoreman's damages.3 10 Section 5 of the Act expressly excludes the liability of the employer 'to the employee,' or others, entitled to recover 'on account of such (employee's) injury or death.' Therefore, in the instant case, it excludes the liability of the stevedoring contractor to its longshoreman, and to his kin, for damages on account of the longshoreman's injuries. At the same time, however, § 5 expressly preserves to each employee a right to recover damages against third persons.4 It thus preserves the right, which Palazzolo has exercised, to recover damages from the shipowner in the present case. The Act nowhere expressly excludes or limits a shipowner's right, as a third person, to insure itself against such a liability either by a bond of indemnity, or the contractor's own agreement to save the shipowner harmless. Petitioner's agreement in the instant case amounts to the latter for, as will be shown, it is a contractual undertaking to stow the cargo 'with reasonable safety' and thus to save the shipowner harmless from petitioner's failure to do so. 11 In the face of a formal bond of indemnity this statute clearly does not cut off a shipowner's right to recover from a bonding company the reimbursement that the indemnitor, for good consideration, has expressly contracted to pay. Such a liability springs from an independent contractual right. It is not an action by or on behalf of the employee and it is not one to recover damages 'on account of' an employee's 'injury or death.' It is a simple action to recover, under a voluntary and self-sufficient contract, a sum measured by foreseeable damages occasioned to the shipowner by the injury or death of a longshoreman on its ship. 12 A like result occurs where a shipowner sues, for breach of warranty, a supplier of defective ship's gear that has caused injury or death to a longshoreman using it in the course of his employment on shipboard. And a like liability for breach of contract accrues to a shipowner against a stevedoring contractor in any instance when the latter's improper stowage of cargo causes an injury on shipboard to some one other than one of its employees. The coincidence that the loading contractor here happens to be the employer of the injured longshoreman makes no difference in principle. While the Compensation Act protects a stevedoring contractor from actions brought against it by its employee on account of the contractor's tortious conduct causing injury to the employee, the contractor has no logical ground for relief from the full consequences of its independent contractual obligation, voluntarily assumed to the shipowner, to load the cargo properly. See American Stevedores v. Porello, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed. 1011; Crawford v. Pope & Talbot, 3 Cir., 206 F.2d 784, 792—793; Brown v. American-Hawaiian S.S. Co., 3 Cir., 211 F.2d 16; Rich v. United States, 2 Cir., 177 F.2d 688; United States v. Arrow Stevedoring Co., 9 Cir., 175 F.2d 329.5 13 The shipowner's action here is not founded upon a tort or upon any duty which the stevedoring contractor owes to its employee. The third-party complaint is grounded upon the contractor's breach of its purely consensual obligation owing to the shipowner to stow the cargo in a reasonably safe manner. Accordingly, the shipowner's action for indemnity on that basis is not barred by the Compensation Act.6 14 The answer to this is found in the precise ground of the shipowner's action. By hypothesis, its action is not based on a bond of indemnity such as it may purchase by way of insurance, or may require of its stevedoring contractor, and which expressly undertakes to save the shipowner harmless. If the shipowner did hold such an express agreement of indemnity here, it is not disputed that it would be enforceable against the indemnitor. On the other hand, the shipowner's action for indemnity here is not based merely on the ground that the shipowner and contractor each is responsible in some related degree for the tortious stowage of cargo that caused injury to Palazzolo. Such an action, brought without reliance upon contractual undertakings, would present the bald question whether the stevedoring contractor or the shipowner, because of their respective responsibilities for the unsafe stowage, should bear the ultimate burden of the injured longshoreman's judgment. That question has been widely discussed elsewhere in terms of the relative responsibility of the parties for the tort, and those discussions have dealt with concepts of primary and secondary or active and passive tortious conduct.7 Because respondent in the instant case relies entirely upon petitioner's contractual obligation, we do not meet the question of a noncontractual right of indemnity or of the relation of the Compensation Act to such a right. 15 The shipowner's claim here also is not a claim for contribution from a joint tortfeasor. Consequently, the considerations which led to the decision in Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318, are not applicable. See American Mutual Liability Ins. Co. v. Matthews, 2 Cir., 182 F.2d 322. 16 The shipowner here holds petitioner's uncontroverted agreement to perform all of the shipowner's stevedoring operations at the time and place where the cargo in question was loaded. That agreement necessarily includes petitioner's obligation not only to stow the pulp rolls, but to stow them properly and safely. Competency and safety of stowage are inescapable elements of the service undertaken. This obligation is not a quasi-contractual obligation implied in law or arising out of a noncontractual relationship. It is of the essence of petitioner's stevedoring contract. It is petitioner's warranty of workmanlike service that is comparable to a manufacturer's warranty of the soundness of its manufactured product. The shipowner's action is not changed from one for a breach of contract to one for a tort simply because recovery may turn upon the standard of the performance of petitioner's stevedoring service.8 17 The Court of Appeals has stated that the liability of petitioner in this case is for the performance of its obligation to stow the rolls on board ship 'in a reasonably safe manner.' 211 F.2d at page 279. That court also has affirmed the decision of the District Court which was based upon the verdict of the jury that petitioner's improper stowage of the rolls produced either the unseaworthiness of the ship, or the hazardous working condition which is the basis for the shipowner's liability to Palazzolo. 18 Petitioner suggests that, because the shipowner had an obligation to supervise the stowage and had a right to reject unsafe stowage of the cargo and did not do so, it now should be barred from recovery from the stevedoring contractor of any damage caused by that contractor's uncorrected failure to stow the rolls 'in a reasonably safe manner.' Accepting the facts and obligations as above stated, the shipowner's present claim against the contractor should not thereby be defeated. Whatever may have been the respective obligations of the stevedoring contractor and of the shipowner to the injured longshoreman for proper stowage of the cargo, it is clear that, as between themselves, the contractor, as the warrantor of its own services, cannot use the shipowner's failure to discover and correct the contractor's own breach of warranty as a defense. Respondent's failure to discover and correct petitioner's own breach of contract cannot here excuse that breach.9 19 The judgment of the Court of Appeals, accordingly, is affirmed. 20 Affirmed. 21 Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS, and Mr. Justice CLARK concur, dissenting. 22 The petitioner, Ryan Stevedoring Company, is an employer subject to the Longshoremen's and Harbor Workers' Compensation Act.1 Section 5 of that Act completely abolished all rights of longshoremen to sue their employers for injuries resulting from negligence of the employer or his employees. The Act substituted for old tort remedies a prescribed schedule of compensation for employees' injuries or death which was declared to be 'exclusive and in place of all other liability of such employer to the employee * * * and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death * * *.' I think the Court's holding today breaks promises the Act made both to employers and employees. My view requires a more detailed statement of the facts and circumstances of this case than appears in the Court's opinion. 23 Palazzolo, an employee of Ryan, the stevedore, was injured while unloading cargo on a ship owned by the respondent, Pan-Atlantic Steamship Corporation. As authorized by § 33 Palazzolo elected to sue the shipowner rather than accept a compensation award. In his complaint he charged that his injury was solely due to the negligent manner in which a number of heavy rolls of paper pulp had been stowed, or to the resulting unseaworthiness of the vessel. One of these rolls weighing about 3,200 pounds had broken loose from its position and seriously injured Palazzolo. The shipowner answered denying the allegations of negligence and unseaworthiness. At the same time the shipowner filed a complaint of its own against Ryan, the stevedore, alleging that any injury Palazzolo had received was solely attributable to the negligent manner in which the stevedore's employees had stowed the rolls of pulp. On this basis the shipowner asked the court to compel the stevedore to reimburse the shipowner for any judgment Palazzolo might obtain against the shipowner. Palazzolo's case against the shipowner was submitted to a jury; the shipowner's claim for reimbursement by the stevedore was tried by the judge largely on the same evidence and issues submitted to the jury. The facts in summary were these: 24 The stevedore's employees loaded the rolls of pulp in Georgetown, South Carolina, and four or five days later different employees of the same stevedore unloaded them in New York. This was pursuant to a general contract under which Ryan had agreed to perform the shipowner's stevedoring services along the Atlantic and Gulf coasts. The terms of the contract were set out in written memorandums prepared by the shipowner and agreed to by the stevedore. These memorandums contained a simple agreement to do the stevedoring for an agreed compensation plus, in some circumstances, cost of the stevedore's insurance. There was nothing further from which it could possibly be inferred that Ryan would be under a duty to indemnify the shipowner for losses resulting from any negligent stowage by Ryan's employees. To prevent injuries to cargo, crew and longshoremen, it is necessary and customary to put some kind of props or supports under or against the heavy pulp rolls to keep them stationary until such time as they are unloaded. Some witnesses testified that a thick, heavy, strong piece of lumber cut into a special wedge shape, called a 'chock,' is a satisfactory kind of support under the rolls. Failure to use 'chocks' may, as testified by one of the ship's officers, permit the rolls to run 'rampant.' Other witnesses testified that in addition to chocking, safety required that wooden floors be placed between the layers of rolls. All agreed, however, that indiscriminate scraps of wood called 'dunnage' are wholly inadequate supports. All but one witness who testified swore that the roll that broke loose and injured Palazzolo in New York had nothing but 'dunnage' under or against it. The lone exception was the ship's officer who swore that he saw wedges under the rolls in New York. No one testified that wooden floors were used or that they were made available by the shipowner. There was testimony that this shipowner never used chocks or wooden flooring and that in New York the longshoremen had looked for chocks but none were to be found on the ship. An officer of the shipowner testified that he was on the ship in Georgetown, South Carolina, while it was being loaded; that it was his primary duty to watch and see that the rolls were properly stowed and chocked; that the did watch; that chocks were available as part of the ship's 'gear'; that he saw chocks, not dunnage, put under the rolls; that had any attempt been made to stow the rolls without using chocks he would have tried to stop the stevedore; that 'the stevedores and the chief officer and the mate on watch generally cooperate and work together in the stowage in the overall stowage of the cargo.' Thus the uncontradicted testimony of the ship's officer was sufficient to support a finding that he as a representative of the ship actively joined in stowing the rolls in the way in which they arrived at New York. And other evidence was sufficient to support a finding that the cargo arrived in New York unprotected by chocks. 25 These issues were properly submitted to the jury by the judge in his charge. He told the jury that it could not find the ship unseaworthy on account of the way in which the goods were unloaded in New York. The issue thus revolved around stowage in South Carolina which was actively supervised by the ship's officers. The court submitted to the jury the questions, among others, as to whether the ship had available for use proper equipment to stow these dangerous rolls and whether the ship's officers were guilty of negligent loading and stowage in South Carolina. The jury gave Palazzolo a verdict for $75,000. The trial judge found in deciding the shipowner's indemnity claim against the stevedore that the ship's officer present at the stowage 'did not properly perform his admitted duty to supervise the safe and careful loading of the vessel', although he had 'authority to remedy the condition or halt the work.' 111 F.Supp. 505, 507. He concluded from this and other findings2 that the ship and the stevedore were 'joint-tortfeasors' and therefore declined to order the stevedore to reimburse the shipowner. 26 The Court of Appeals held that there was adequate evidence to support the jury's finding that the shipowner was negligent and that the ship was unseaworthy because of the defectively stowed rolls. That court nevertheless held that the stevedore had to reimburse the shipowner for its loss despite the findings of the jury and the trial court that the loss occurred because of the shipowner's negligence.3 The Court of Appeals justified imposing payment of the $75,000 verdict on the stevedore on the ground that Palazzolo's injury was due to the 'sole,' 'primary,' or 'active' negligence of the stevedore's employees. But the court's suggestion that the injury could have been due to the 'sole' negligence of the stevedore is answered by the part of the court's opinion holding that there was adequate evidence to support the jury and trial court findings that the shipowner itself was negligent. Use of the words 'primary' and 'active' seems to indicate that the Court of Appeals believed it should look at this cold record and find for itself whether the stevedore's employees or the ship's employees were guilty of this type of negligence. I do not agree that the Court of Appeals should make such findings. And if the Court of Appeals' cryptic statements about 'sole,' 'active' and 'primary' can be considered as upsetting any of the findings of the trial court, I think the Court of Appeals' action should be set aside as clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6. 27 I have set out the evidence in some detail because I think it shows almost beyond doubt that this stevedoring company is being required to pay a $75,000 verdict 'on account of' injuries to an employee received in the line of that employee's duties. This is at least $60,000 more than it would have to pay under the Longshoremen's Act. That Act was revolutionary in its field. It took away from longshoremen the right to sue their employers for negligence and substituted a fixed schedule of compensation for injuries regardless of fault. Many workers and employers opposed the compensation scheme. The workers deplored loss of their chance to get big tort verdicts. But Congress thought it best to give them a more certain and less expensive recovery, even though far less in amount than some tort recoveries might be. Many employers preferred to take their chance on defeating employees' damage suits under the old tort system. The idea of 'liability without fault' was abhorrent to them. Congress weighed the conflicting interests of employers and employees and struck what was considered to be a fair and constitutional balance.4 Injured employees thereby lost their chance to get large tort verdicts against their employers, but gained the right to get a sure though frequently a more modest recovery. However, § 33 did leave employees a chance to recover extra tort damages from third persons who negligently injured them. And while Congress imposed absolute liability on employers, they were also accorded counterbalancing advantages. They were no longer to be subjected to the hazards of large tort verdicts. Under no circumstances were they to be held liable to their own employees for more than the compensation clearly fixed in the Act. Thus employers were given every reason to believe they could buy their insurance and make other business arrangements on the basis of the limited Compensation Act liability. More than that, § 33 of the Act also provides that for compensation paid an employee an employer shall himself be reimbursed or indemnified out of any money collected as a result of an employee's claim for negligent injury by a third person. But the end result here is that this employer is actually mulcted in damages because its employee successfully prosecuted a third-party action. Liability is thus imposed because of the negligence of the employer's other employees. This the Act forbids. Whether called 'common-law indemnity,' ccontribution,' 'subrogation,' or any other name, the result is precisely the same. The employer has to pay more 'on account of' an injury to his employee than Congress said he should 28 I agree, of course, that if the employer here had made a contract, oral or written, agreeing to hold this shipowner harmless or to indemnify the shipowner against liability for injuries to petitioner's employees caused by the shipowner's negligence in whole or in part, the contract would have been valid and indemnity could have been obtained. For the Longshoremen's Act does not forbid employers under it to make independent agreements to indemnify others. But I think there is not the slightest support in this record for a finding that any such contract was made. No such allegation was made in the shipowner's complaint. And the shipowner's counsel was careful to stipulate during the course of the trial that his action was not based on a contract but on common-law indemnity.5 I recognize that common-law indemnity may sometimes arise where two people commit a tort or wrong which hurts the same person. As between wrongdoers the courts will under some circumstances impose the total liability on the 'primary' or 'active' wrongdoer, apparently meaning the wrongdoer the court deems to be the most negligent. But indemnity so imposed is plainly 'on account of' the negligence of the wrongdoer or his employees. The Act expressly forbids such a recovery by 'anyone' from a stevedoring company 'on account' of an injury to one of its longshoremen. Plainly, common-law indemnity should not be used to fasten such a liability on a stevedoring company. I suppose it is for this reason that the Court purports to find an actual contract to indemnify and thus decides the case on an issue neither presented in the complaint nor considered by the trial court. 29 A genuine contract as distinguished from a liability imposed by law, sometimes called a 'quasi-contract,' requires mutual agreement of the parties. It is for this reason that the courts have frequently said that the cardinal rule in the interpretation of contracts is that the intention of the parties should be ascertained and enforced.6 And courts do not ordinarily stretch language in order to find that one person has agreed to indemnify another when the latter negligently hurts someone.7 Special caution should be used in construing contracts so as to impose indemnity liability on companies not engaged in the business of writing indemnity insurance. 30 I think there is not a shred of evidence to support the Court's inference that this stevedore voluntarily agreed to give up the limited liability which the Longshoremen's Act was deliberately designed to afford. The Court finds nothing to support such a conclusion except that the stevedore agreed to do a stevedoring job. From that the Court implies that it was to do a good workmanlike job. From there it takes the next step—which should be more difficult than it appears to be—and says that the stevedoring company also agreed to give up its immunity under the Act and pay any judgments that might be rendered in favor of the stevedore's employees against the shipowner for its negligence. The precise scope of the indemnity which the Court finds the stevedore intended to assume is left in doubt. Are we to assume that the stevedore agreed to an unlimited liability for indemnity without regard to the comparative or qualitative proportions of negligence as between its employees and the employees of the shipowner? Are we even to assume that the stevedore deliberately and intentionally agreed to indemnify the shipowner upon a court's finding that the stevedore's negligence was the 'sole,' 'primary,' or 'active' cause of injury? Findings of fact based on these standards are never easy. And in efforts to formulate a common-law indemnity remedy courts themselves have groped considerably in trying to give meaning to the terms 'primary' and 'active.' Is an understanding of the different nuances of 'sole,' 'primary' and cactive' to be attributed to stevedoring companies in judicial rewriting of work contracts so as to make them indemnity contracts? Surely before this Court determines the existence of a contract and the scope of its coverage the case should be sent back to the trial court so that these issues could be determined after a full hearing on the facts. The issues were not tried in the District Court and not tried in the Court of Appeals. The issues have never been tried. In American Stevedores v. Porello, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed. 1011, we remanded a case to the trial court for a hearing on evidence as to the scope of a contract of indemnity even though it was written. Here there is not even an oral contract to indemnify. Before creating a contract it might be appropriate to follow the course we did in Porello. Or is the Court rejecting this phase of Porello? Cf. Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 284, 72 S.Ct. 277, 279, 96 L.Ed. 318. 31 Finally, the Court's action here not only deprives the employer of his limited liability, it makes the right of employees to recover damages from third parties a barren promise. Section 33 of the Act provides two ways for an injured employee to obtain damages from a negligent third person: (1) The employee may elect to waive statutory compensation from his employer and sue the negligent third person directly for damages. (2) If the employee accepts a compensation award the employer may sue the third person as statutory assignee of the employee's claim, but all the employer recovers in excess of the amount of the compensation award must be paid over to the employee. Palazzolo was able to make an election and bring his own suit because his employer was financially interested in the outcome of his case and therefore advanced money to Palazzolo to sustain him during his injury until his case against the third party could be tried. The Court takes away all incentive for employers to follow this course in the future. Hereafter stevedoring companies under circumstances like this will know that it is decidedly to their advantage that no third-party actions be brought. An employer like Ryan will hereafter know that if he or his employee prosecutes a claim against a third party and obtains a judgment for the employee's benefit, every dime of the judgment will have to be paid by the employer himself. Human nature and habits being what they are, employers will not be eager to finance suits against themselves. Injured longshoremen are not ordinarily wealthy enough to support themselves without work pending the trial of lengthy lawsuits. Yet if an employee accepts a compensation award only his employer can bring suit against the third person, and the employer will not be overly anxious to sue himself. It has been suggested that we can expect the courts to protect employees under such circumstances. In other words, the employee who had accepted compensation must go into court to protect himself against his employer before he goes into court to protect his claim against a third party who has negligently injured him. I cannot believe Congress would have given employers such complete control over these suits if it had thought the employers could be held liable for everything recovered. The actual effect of the Court's holding is this: The employer as an assignee of an employee's claim will know that if he wins a lawsuit, he loses a lawsuit. This knowledge will not give him a yearning anxiety to file suit. Even though he yields to the call of duty and files the lawsuit, he might not be exceedingly anxious to write a good complaint. His other pleadings might not be all that a zealous lawyer would desire. Although the employer must pay the judgment, his will be the opening argument to the jury. And when the last word is said in the closing argument, it will be made by counsel who knows that if he persuades the jury to give his client a verdict his client will have to pay it. Counsel will also know that if he happens to lose the case his client will be the winner. Such is the state of affairs brought about by the Court's holding that this employer intended to make a contract which would subject him to the very liability that Congress had abolished. 32 There has been considerable disagreement in this Court and among other courts about three of our recent holdings, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318, and Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. In each of these cases a worker in the same position as Palazzolo sued a shipowner alleging negligence and unseaworthiness. Judgments were obtained against the shipowners. We held in the Halcyon case that the shipowner could not under the common-law doctrine of 'contribution' force injured employees' employers to pay part of the judgment against the shipowner. The Sieracki and Halcyon cases were reaffirmed in Pope & Talbot. In that case we refused to permit a shipowner to shift part of his loss to the injured person's employer on his argument that the employer, who was under the Longshoremen's Act, negligently contributed to the injury. We rejected the contention on the ground that if accepted it 'would frustrate this (Act's) purpose to protect employers who are subjected to absolute liability by the Act.' 346 U.S. 412, 74 S.Ct. 206. The Court's opinion today provides a way under which by simple change of words and remedial formulas the results reached in our three former cases can be undermined. Employees like Sieracki and Palazzolo will find it practically impossible to get their cases for injuries against third persons tried in a court. And a shipowner who wants to shift liability wholly to a stevedoring company can do so by a very simple method. He can allege that the stevedoring company intentionally made a contract agreeing to indemnify him under circumstances like those in this case; that allegation will be automatically proved by simply establishing the fact that the stevedoring company contracted to do some work on the ship; the result will be that the employer is wholly deprived of the protection of limited liability which the Act was intended to provide. And while this will be accomplished under the name of 'contract,' it will really by achieved because the Court has announced as an absolute principle of law that without regard to whether a stevedoring company intends to agree to indemnify, it has so agreed if it agrees to do a job. Thus by indirection rights of longshoremen and their employers recognized by this Court in Sieracki, Halcyon, and Pope & Talbot are taken away. In effect the Sieracki case is rejected. 33 I would reverse this case. 1 44 Stat. 1424 et seq., as amended, 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq. 2 'Sec. 33. (a) If on account of a disability or death for which compensation is payable under this Act the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the Secretary (of Labor) may provide, to receive such compensation or to recover damages against such third person. '(b) Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person. '(i) Where the employer is insured and the insurance carrier has assumed the payment of the compensation, the insurance carrier shall be subrogated to all the rights of the employer under this section.' 44 Stat. 1440, as amended, 33 U.S.C. § 933(a, b) and (i), 33 U.S.C.A. § 933(a, b, i). For procedure to secure an award of compensation, see § 19, 44 Stat. 1435—1436, as amended, 33 U.S.C. § 919, 33 U.S.C.A. § 919. A longshoreman, after accepting compensation payments from his employer without an award, may sue a third-party tortfeasor for his injuries. American Stevedores v. Porello, 330 U.S. 446, 454—456, 67 S.Ct. 847, 851—852, 91 L.Ed. 1011. If the facts permit, he may recover from the shipowner for unseaworthiness, or for negligence, or both. Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. 3 In the instant case, the stevedoring contractor, however, has received a contractual quid pro quo from the shipowner for assuming responsibility for the proper performance of all of the latter's stevedoring requirements, including the discharge of foreseeable damages resulting to the shipowner from the contractor's improper performance of those requirements. See Restatement, Contracts, §§ 334, 330; Bethlehem Shipbuilding Corp. v. Joseph Gutradt Co., 9 Cir., 10 F.2d 769; Mowbray v. Merryweather, (1895) 2 Q.B. 640 (C.A.). 4 See § 33(a) in note, 2, supra. 5 There is nothing in the legislative history of the Compensation Act calling for a contrary interpretation. Our interpretation of that Act is supported also by that of the New York Workmen's Compensation Law upon which it is modeled. The latter Act provides that the—'liability of an employer (for compensation) prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his personal representatives, husband, parents, dependents or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of such injury or death * * * .' McKinney's Consol. N.Y.Laws, c. 67, Workmen's Compensation Law, § 11. See Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567. Other state courts have reached comparable results as to exclusive liability clauses in their respective Compensation Acts. 2 Larson, Workmen's Compensation Law, §§ 76.00—76.44(a). 6 We do not reach the issue of the exclusionary effect of the Compensation Act upon a right of action of a shipowner under comparable circumstances without reliance upon an indemnity or service agreement of a stevedoring contractor. See Brown v. American-Hawaiian S.S. Co., 3 Cir., 211 F.2d 16, 18; States S.S. Co. v. Rothschild International Stevedoring Co., 9 Cir., 205 F.2d 253; Slattery v. Marra Bros., 2 Cir., 186 F.2d 134 (N.J. statute); United States v. Rothschild International Stevedoring Co., 9 Cir., 183 F.2d 181; American Mutual Liability Ins. Co. v. Matthews, 2 Cir., 182 F.2d 322; American District Telegraph Co. v. Kittleson, 8 Cir., 179 F.2d 946; McFall v. Compagnie Maritime Belge, 304 N.Y. 314, 107 N.E.2d 463. And see generally, Weinstock, The Employer's Duty to Indemnify Shipowners for Damages Recovered by Harbor Workers, 103 U. of Pa.L.Rev. 321 (1954). 2. The other question is whether, in the absence of an express agreement of indemnity, a stevedoring contractor is obligated to reimburse a shipowner for damages caused it by the contractor's improper stowage of cargo. 7 See Brown v. American-Hawaiian S.S. Co., supra; Crawford v. Pope & Talbot, supra; McFall v. Compagnie Maritime Belge, supra; Weinstock, The Employer's Duty to Indemnify Shipowners for Damages Recovered by Harbor Workers, supra. 8 See Union Stock Yards Co. of Omaha v. Chicago, B. & Q.R. Co., 196 U.S. 217, 25 S.Ct. 226, 49 L.Ed. 453; Brown v. American-Hawaiian S.S. Co., supra; Crawford v. Pope & Talbot, supra, 206 F.2d at pages 792—793; American Mutual Liability Ins. Co. v. Matthews, supra, 182 F.2d at pages 323—325; Rich v. United States, supra; Bethlehem Shipbuilding Corp. v. Joseph Gutradt Co., supra; Mowbray v. Merryweather, supra; Dunn v. Uvalde Asphalt Paving Co., 175 N.Y. 214, 67 N.E. 439. 9 See Berti v. Compagnie De Navigation Cyprien Fabre, 2 Cir., 213 F.2d 397; Hastorf Contracting Co. v. Ocean Transportation Corp., D.C. 4 F.2d 583, affirmed 2 Cir., 4 F.2d 584; Mowbray v. Merryweather, supra; Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N.E. 657, 51 L.R.A. 781. 1 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq. 2 The trial court also found that the ship's officer 'in the exercise of reasonable care should have discovered and corrected' the defective stowage conditions. Had this been the only ship's negligence found it might be material in considering the question of common-law indemnity. But this Court relies on contractual indemnity. 3 Even though the question of unseaworthiness was also submitted to the jury, it depended wholly upon whether there was negligent stowage. Under the undisputed testimony of the ship's officer the jury and judge had to find that the shipowner was guilty of negligence if the stevedore was. Moreover, if the shipowner failed to provide the proper gear in the way of chocks or lumber, the shipowner was guilty of negligence whether the stevedore was or not. In this case, therefore, the shipowner's negligence and unseaworthiness were one and the same thing. And if the shipowner failed to supply needed gear in the way of chocks or lumber, it would have been permissible to find that this was the 'sole' cause of Palazzolo's injuries. 4 See Crowell v. Benson, 285 U.S. 22, 37—42, 52 S.Ct. 285, 287—289, 76 L.Ed. 598; New York Central R. Co. v. White, 243 U.S. 188, 201—202, 37 S.Ct. 247, 252, 61 L.Ed. 667. Cf. Ives v. South Buffalo R. Cr., 201 N.Y. 271, 94 N.E. 431, 34 L.R.A.,N.S., 162. 5 'Mr. Behrens (counsel for shipowner): This right of indemnity alleged by Pan-Atlantic is a right of common-law indemnity rather than a contractual provision. My question is how to get such facts before your Honor. 'Your Honor, there was a motion for summary judgment in this case by Ryan, to which was annexed the exchange of correspondence between Ryan and Pan-Atlantic, which is a contract. 'Now, the question is whether those documents should now be put in evidence before your Honor, or whether your Honor will infer from the absence of any proof on the subject that there was no contractual indemnity. 'Mr. Schwartz (counsel for Ryan): I think we can agree and stipulate between us that whatever contractual arrangement was made between Pan-Atlantic and Ryan, did not contain any expressed provision for indemnity, and it is Mr. Behrens' position in this matter that his claim over is based solely upon an implied right of indemnity, as implied in law. 'Mr. Behrens: That is correct. 'Mr. Schwartz: I will stipulate that there is no contractual provision for indemnity. 'Mr. Behrens: And I will so stipulate, if that is satisfactory to your Honor. 'The Court: Very well.' 6 See, e.g., Mauran v. Bullus, 16 Pet. 528, 534, 10 L.Ed. 1056; Canal Co. v. Hill, 15 Wall. 94, 99—100, 21 L.Ed. 64. 7 See, e.g., cases collected in Note, 175 A.L.R. 8, 29—32.

78

350 U.S. 116 76 S.Ct. 223 100 L.Ed. 126 COMMONWEALTH OF PENNSYLVANIA, et rel. Stephen J. HERMAN, Petitioner,v.Dr. John W. CLAUDY, Warden. No. 45. Argued Nov. 14, 1955. Decided Jan. 9, 1956. Mr. Herbert Monte Levy, New York City, Mrs. Marjorie Hanson Matson, Pittsburgh, Pa., for petitioner. Mr. Wray G. Zelt, Jr., Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 In 1945 petitioner Stephen Herman pleaded guilty in a Pennsylvania state court to 8 charges of burglary, 12 of larceny, 8 of forgery, and 2 of false pretense.1 He was sentenced to serve 17 1/2 to 35 years in the penitentiary, 2 1/2 to 5 years on each of the charges, some running consecutively, some concurrently. Eight years later, in 1953, he filed this petition for habeas corpus in the same Pennsylvania court, asking that his conviction be held invalid as in violation of the Due Process Clause of the Fourteenth Amendment. He alleged: (1) that his pleas of guilty were the result of coercion and threats by state officers and (2) that at no stage of the proceedings was he either advised of his right to or given the benefit of counsel. The District Attorney filed an answer challenging the materiality of some of petitioner's allegations denying others, and urging that the writ be refused because of petitioner's tardiness in challenging the judgment. He asked that the petition be summarily dismissed on the ground that 'it would be a waste of time and very expensive for Washington County to have this defendant go into a hearing to prove charges that he could have raised at the time he was sentenced by this Court.' The petition was summarily dismissed without a hearing by the same trial judge who had sentenced petitioner. 2 On appeal, the Superior Court of the Commonwealth of Pennsylvania affirmed the dismissal. 176 Pa.Super. 387, 107 A.2d 595. The Supreme Court of Pennsylvania denied leave to appeal without opinion. We granted certiorari, 349 U.S. 904, 75 S.Ct. 584, because summary dismissal in the face of the petitioner's serious allegations appeared to be out of line with decisions of this Court. 3 Our prior decisions have established that: (1) a conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause;2 (2) where a person convicted in a state court has not intelligently and understandingly waived the benefit of counsel and where the circumstances show that his rights could not have been fairly protected without counsel, the Due Process Clause invalidates his conviction;3 (3) where a denial of these constitutional protections is alleged in an appropriate proceeding by factual allegations not patently frivolous or false on a consideration of the whole record, the proceeding should not be summarily dismissed merely because a state prosecuting officer files an answer denying some or all of the allegations.4 4 In the light of our previous holdings we now consider the allegations of the petition for habeas corpus and the prosecuting officer's answer. The petition alleged: 5 Petitioner, who had been to school only 6 years, was 21 years old when arrested. His only prior experience with criminal procedure was 2 years earlier, when without the benefit of counsel he pleaded guilty to charges of burglary, larceny, and forgery, and was sentenced to 6 to 12 months in jail. After his arrest on the present charges he was held incommunicado for 3 days. During this period a state trooper grabbed him by the neck and threatened to choke him if he did not confess, and there were threats against the safety of his wife and daughter. Petitioner finally confessed after 72 hours of intermittent questioning and was taken to a justice of the peace. He waived indictment and agreed to plead guilty to 3 charges. More than a month later he was taken before the Court of Common Pleas and charged with some 30 offenses. The assistant prosecuting attorney demanded that petitioner sign a plea of guilty to all the charges. When petitioner asked what he was signing, the assistant prosecuting attorney said 'Sign your name and forget it.' Petitioner was not informed of the seriousness of the charges by the prosecutor or the judge; he did not know that his plea of guilty could result in a maximum sentence of some 315 years; he did not know nor was he informed that he could have counsel. Petitioner pleaded guilty to all of the charges against him. He now says he was innocent of all but one. 6 The District Attorney's answer alleged: It was immaterial that petitioner was only 21 years old and of limited educational background. Since petitioner had previous experience in criminal procedure from the former case in which he pleaded guilty, he understood his rights and was barred from alleging that his lack of criminal experience violated due process. It was not necessary that a defendant should have the advice, support, and assistance of relatives or friends even if it be assumed that there was anything in the record to show that such an opportunity was denied to petitioner. Petitioner had no constitutional right to be informed by the court or prosecuting attorney of his right to counsel or of the severity of the sentences which might be imposed upon him. There was no showing that petitioner had been injured by not having counsel. The District Attorney did not deny that petitioner had been told in the courtroom to 'Sign your name and forget it,' but denied only 'that the statements were made by the Assistant District Attorney in order to obtain pleas to the charges involved.' The District Attorney defended the State's right to confine petitioner for a period of 72 hours on the ground that this was not 'an unreasonable length of time to hold a defendant.' The charge that the officers threatened the safety of petitioner's wife and daughter was specifically denied as untrue, as was the charge that petitioner was grabbed by the neck. The answer alleged that petitioner's confession was wholly voluntary. 7 The foregoing narrative of the allegations in the petition and the answer reveals a sharp dispute as to the facts material to a determination of the constitutional questions involved. The allegations as to petitioner's treatment prior to confession and his understanding of the nature and consequences of a guilty plea present the very kind of dispute which should be decided only after a hearing. It is true that the trial record shows that petitioner told the judge that he was guilty and said 'I throw myself at the mercy of the court, Your Honor.' But neither these nor any other statements made before the trial judge at that time5 are in themselves sufficient to refute as frivolous or false the serious charges made by the petitioner concerning matters not shown by the record. See Palmer v. Ashe, 342 U.S. 134, 137, 72 S.Ct. 191, 193, 96 L.Ed. 154. It is entirely possible that petitioner's prior confession caused him, in the absence of counsel, to enter the guilty plea. Moreover, the number and complexity of the charges against petitioner, as well as their seriousness create a strong conviction that no layman could have understood the accusations and that petitioner should, therefore, have been advised of his right to be represented by counsel. We cannot agree with the Pennsylvania Superior Court that the mere fact that petitioner had, without the benefit of counsel, pleaded guilty to an offense 2 years before showed that he had the capacity to defend himself against the 30 charges here. We held in Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686, that in spite of Gibbs' conviction in 6 prior criminal cases the circumstances showed he was entitled to the benefit of counsel. In Uveges v. Pennsylvania, 335 U.S. 437, 9 S.Ct. 184, 93 L.Ed. 127, where the facts were strikingly similar to those presented here, we held that representation by counsel was required by the Due Process Clause. Nor was petitioner barred from presenting his challenge to the conviction because 8 years had passed before this action was commenced. Uveges did not challenge his conviction for 7 years. 335 U.S. 437, 438—439, 69 S.Ct. 184. And in a later case we held that a prisoner could challenge the validity of his conviction 18 years after he had been convicted. Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154. The sound premise upon which these holdings rested is that men incarcerated in flagrant violation of their constitutional rights have a remedy. 8 The chief argument made by the State here in support of the court's summary dismissal of the petition is this: 'Counsel for petitioner argues that since facts are alleged in the petition, a hearing must be held. Since our answer contradicted the allegations in the petition, the lower court was not required to grant a hearing. This contention was sustained by the Superior Court.' We cannot accept this argument. Under the allegations here petitioner is entitled to relief if he can prove his charges. He cannot be denied a hearing merely because the allegations of his petition were contradicted by the prosecuting officers. 9 The judgment is reversed and the cause is remanded for proceedings not inconsistent with this opinion. 10 Reversed and remanded. 1 The courts below so computed the charges. Petitioner counts only 27 charges. The record casts doubt on the accuracy of both computations. 2 E.g., Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Harris v. South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948. 3 E.g., Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686; Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367; Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154; Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. It was pointed out in the Uveges case that a minority of the Court have contended that all persons charged with crimes are entitled to counsel under the Sixth and Fourteenth Amendments. 4 E.g., Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859; Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61; Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154; Chessman v. Teets, 350 U.S. 3, 76 S.Ct. 34; Cf. Moore v. Dempsey, 261 U.S. 86, 92, 43 S.Ct. 265, 267, 67 L.Ed. 543; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830. 5 When petitioner was brought before the trial judge to plead guilty the prosecuting attorney talked at length about the charges against petitioner, but said nothing about sentences which could be imposed. Petitioner's part in these proceedings was very small. The following is the full record of his participation: (Mr. Docktor (the prosecuting attorney):) '* * * How old are you now? 'By the Defendant: Twenty-one. 'By Mr. Docktor: Twenty-one years of age. Is there anything you wish to state to the Court about your case? 'By the Defendant: I throw myself— 'By the Court: You will have to speak louder. 'By the Defendant: I throw myself at the mercy of the court, Your Honor. 'By Mr. Docktor: I wish to state for the record that the informations and prosecutions were made by H. M. Jaynes of the Pennsylvania State Police. 'By the Court (addressing Defendant): Where have you worked since you were paroled? 'By the Defendant: I worked at the Hazel. 'By the Court (addressing Defendant): Have you been working all of the time since you were paroled in 1943? 'By the Defendant: No, sir. 'By the Court: 1944 I believe it was, wasn't it? 'By the Defendant: No, sir; I was working at the hospital, too. 'By the Court: Sir? 'By the Defendant: I was working at the hospital and Hazel. 'By the Court: At the hospital? 'By the Defendant: Yes. 'By the Court: How did you come to be working at the hospital? 'By the Defendant: I worked there. I was paroled for that. 'By the Court: You are the fellow who ran away from there while you were on parole. 'By the Defendant: That is right; yes, sir. 'By the Court: Will you explain to me why the Court should extend any leniency to you? 'By the Defendant: No, sir. 'By the Court: We have trusted you twice before and you have never complied with any of the conditions that you were paroled on. 'By the Defendant: I tried to. 'By the Court: You didn't even try to. You could have continued to work up there and you wouldn't do that. Where did you go to when you ran away from the job at the hospital? 'By the Defendant: I started to work down at Hazel. 'By the Court: You were working around this town— 'By the Defendant: Yes, sir. 'By the Court:—while the officers were searching for you? 'By the Defendant: No. 'By the Court: Where were you? 'By the Defendant: I was here in town but not working. 'By the Court: You secured your parole on promise of good behavior. 'By the Defendant: Yes, sir. 'By the Court: In the meantime, you have committed numerous burglaries and forgeries and various felonies? 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 'By the Court: Now you want the Court to have mercy. There is an end to being merciful. We did that in 1944. * * *'

01

350 U.S. 179 76 S.Ct. 281 100 L.Ed. 185 UNITED STATES of America, Petitioner,v.Abraham MINKER. Salvatore FALCONE and Joseph Falcone, Petitioners, v. Harold E. BARNES, Officer in Charge of Immigration and Naturalization Service. Nos. 35, 47. Argued Nov. 14, 15, 1955. Decided Jan. 16, 1956. No. 35: Mr. Marvin E. Frankel, Washington, D.C., for the United States. Mr. Jacob Kossman, Philadelphia, Pa., for respondent Minker. No. 47: Mr. George Morris Fay, Washington, D.C., for Falcone. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Because of conflicting constructions by the Courts of Appeals for the Second and Third Circuits of § 235(a) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 198, 8 U.S.C.A. §§ 1101 et seq., 1225(a), we brought these cases here. 349 U.S. 904, 75 S.Ct. 582; 349 U.S. 927, 75 S.Ct. 774. They were heard in sequence, and, since minor differences in their facts are irrelevant to the problems now before us, they may be disposed of in one opinion. 2 Section 235(a)1 provides that any immigration officer 'shall have power to require by subpena the attendance and testimony of witnesses before immigration officers * * * relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service, and to that end may invoke the aid of any court of the United States.' The controlling issue presented by these cases is whether this section empowers an immigration officer to subpoena a naturalized citizen who is the subject of an investigation by the Service, where the purpose of the investigation is to determine if good cause exists for the institution of denaturalization proceedings under § 340(a) of the Act.2 3 In No. 35, the District Director of the Immigration and Naturalization Service at Philadelphia, in accordance with § 340.11 of the Service's regulation,3 instituted an investigation of respondent for the aforementioned purpose. In furtherance of this inquiry into the legality of Minker's naturalization the Director subpoenaed him to give testimony at the offices of the Service. Prior to the required date of his appearance, he moved to quash the subpoena in the United States District Court for the Eastern District of Pennsylvania upon the ground, inter alia, that it was unauthorized by the Act. This motion was denied, In re Minker, D.C., 118 F.Supp. 264, and no appeal was taken. When respondent thereafter failed to obey the subpoena, the District Court, on application of the District Director, ordered respondent to appear before the Service and testify. He disregarded this order. After a hearing he was adjudged in contempt for so doing and fined $500. The Court of Appeals for the Third Circuit reversed, holding that while the power to subpoena under § 235(a) was available for investigations directed toward denaturalization proceedings, respondent as a putative defendant in such a proceeding was not a 'witness' within the meaning of the section, and the Service was, therefore, without power to subpoena him.4 217 F.2d 350. 4 In No. 47, each petitioner was served with a subpoena issued by the officer in charge of the Immigration and Naturalization Service at Syracuse, New York. The subpoenas commanded petitioners' appearance and testimony, and required them to produce specified documents. They appeared with documents as ordered, but refused to be sworn or to testify. Thereupon an application for an order of compliance was made by the Service in the United States District Court for the Northern District of New York; but the court, denying the Service's authority, refused to compel petitioners to appear and give testimony. Application of Barnes, D.C., 116 F.Supp. 464. On appeal, to the Court of Appeals for the Second Circuit, this judgment was reversed. 219 F.2d 137. The court held that § 235(a) of the Act permitted the immigration officer to subpoena the petitioners in furtherance of the Service's investigation of them under § 340.11 of the regulations. The decision assumed, although the court did not discuss the question, that each petitioner, even though a subject of investigation, was a 'witness' within the meaning of § 235(a).5 5 This brings us to an examination of the scope of § 235(a). It had its genesis in § 16 of the Immigration Act of 1917, 39 Stat. 874, 885, which dealt with the examination of entering aliens by the Immigration Service. With respect to subpoenas the section provided: 'Any commissioner of immigration or inspector in charge shall also have power to require by subpoena the attendance and testimony of witnesses before said inspectors and the production of books, papers, and documents touching the right of any alien to enter, reenter, reside in, or pass through the United States, and to that end may invoke the aid of any court of the United States * * *.' Obviously, this provision strictly defined the purposes for which officers of the Service could subpoena witnesses. It did not give them power to issue subpoenas as aids in investigating potential naturalization offenses. 6 The 1952 Act in § 235(a) retained the substance of this language in § 16. But the word 'alien' was changed to 'person,' and additional language extended the subpoena power to 'any matter which is material and relevant to the enforcement of this Act and the administration of the Service.' If the additional clause, following the portion 'relating to the privilege of any person to enter, reenter, reside in, or pass through the United States', had merely read 'and any other matter which is material and relevant,' the doctrine of ejusdem generis would appropriately be invoked to limit the subpoena power to an investigation pertaining to questions of admission and deportation. The comprehensive addition of the clause 'or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service', precludes such narrowing reading. 'Act' encompasses the full range of subjects covered by the statute. The Immigration and Nationality Act of 1952 brought together in one statute the previously atomized subjects of immigration, nationality and naturalization. The unqualified use of the word 'Act' in § 235(a), if read as ordinary English, embraces all of these subjects even though § 235(a) is itself in the immigration title of the statute. But 'the title of a statute and the heading of a section cannot limit the plain meaning * * *.' Brotherhood of Railroad Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528 529, 67 S.Ct. 1387, 1391—1392, 91 L.Ed. 1646. Throughout this statute the word 'Act' is given its full significance. The word embraces the entire statute.6 On the other hand, when only a particular title is referred to, it is designated as such, and when the reference is to a section, that word is employed.7 No justification appears for treating 'Act' in § 235(a) as meaning 'section.' Thus far the Second and Third Circuits are in agreement. 7 We come then to the question upon which the two Courts of Appeals part ways in their construction of § 235(a), namely, whether Salvatore and Joseph Falcone in the one case and Abraham Minker in the other, although each the subject of a denaturalization investigation under § 340.11 of the regulations, were 'witnesses' within the meaning of the power given to 'any immigration officer' to require 'by subpoena the attendance and testimony of witnesses' before immigration officers. 8 If the answer to the question merely depended upon whether, as a matter of allowable English usage, the word 'witness' may fairly describe a person in the position of Minker and the Falcones, it could not be denied that the word could as readily be deemed to cover persons in their position as not. In short, the word is patently ambiguous: it can fairly be applied to anyone who gives testimony in a proceeding, although the proceeding immediately or potentially involves him as a party, or it may be restricted to the person who gives testimony in another's case. 9 It is pertinent to note the breadth of § 235(a) not only with respect to the type of investigation in which a subpoena may be issued ('any matter which is material and relevant to the enforcement of this Act'), but also with respect to the member of the Service empowered to issue it. The power is granted 'any immigration officer,' who in turn is defined in § 101(a)(18) of the Act as 'any employee or class of employees of the Service or of the United States designated by the Attorney General, individually or by regulation, to perform the functions of an immigration officer specified by this Act or any section thereof.' This extensive delegated authority reinforces the considerations inherent in the nature of the power sought to be exercised that make for a restrictive reading of the Janus-faced word 'witness.' The subpoena power 'is a power capable of oppressive use, especially when it may be indiscriminately delegated and the subpoena is not returnable before a judicial officer. * * * True, there can be no penalty incurred for contempt before there is a judicial order of enforcement. But the subpoena is in form an official command, and even though improvidently issued it has some coercive tendency, either because of ignorance of their rights on the part of those whom it purports to command or their natural respect for what appears to be an official command, or because of their reluctance to test the subpoena's validity by litigation.' Cudahy Packing Co., Ltd. v. Holland, 315 U.S. 357, 363—364, 62 S.Ct. 651, 654—655, 86 L.Ed. 895. 10 These concerns, relevant to the construction of this ambiguously worded power, are emphatically pertinent to investigations that constitute the first step in proceedings calculated to bring about the denaturalization of citizens. See Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796; Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525. This may result in 'loss of both property and life, or of all that makes life worth living.' Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938. In such a situation where there is doubt it must be resolved in the citizen's favor. Especially must we be sensitive to the citizen's rights where the proceeding is nonjudicial because of '(t)he difference in security of judicial over administrative action * * *.' Ng Fung Ho v. White, supra, 259 U.S. at page 285, 42 S.Ct. at page 495. 11 These considerations of policy, which determined the Court's decisions in requiring judicial as against administrative adjudication of the issue of citizenship in a deportation proceeding and those defining the heavy criterion of proof to be exacted by the lower courts from the Government before decreeing denaturalization, are important guides in reaching decision here. They give coherence to law and are fairly to be assumed as congressional presuppositions, unless by appropriate explicitness the lawmakers make them inapplicable. Cf. Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622. It does not bespeak depreciation of official zeal, nor does it bring into question disinterestedness, to conclude that compulsory ex parte administrative examinations, untrammelled by the safeguards of a public adversary judicial proceeding, afford too ready opportunities for unhappy consequences to prospective defendants in denaturalization suits. 12 These general considerations find specific reinforcement in the language of other provisions of the Act, wherein the person who is the subject of an investigation is referred to with particularity. The most striking example of this is to be found in § 335 and its legislative history which pertains to the investigation of an alien who petitions for naturalization. Section 335(b) provides: 'The Attorney General shall designate employees of the Service to conduct preliminary examinations upon petitions for naturalization * * *. For such purposes any such employee so designated is hereby authorized to take testimony concerning any matter touching or in any way affecting the admissibility of any petitioner for naturalization, to administer oaths, including the oaths of the petitioner for naturalization and the oaths of petitioner's witnesses to the petition for naturalization, and to require by subpena the attendance and testimony of witnesses, including petitioner * * *.' Contrast this with § 335(b)'s predecessor, § 333(a) of the Nationality Act of 1940, 54 Stat. 1137, 1156: '* * * any such designated examiner is hereby authorized to take testimony concerning any matter touching or in any way affecting the admissibility of any petitioner for naturalization, to subpena witnesses, and to administer oaths, including the oath of the petitioner to the petition for naturalization and the oath of petitioner's witnesses.'8 Other examples of Congress' careful differentiation between a witness who is not the subject of an investigation and the person who is, may be found in §§ 236(a),9 242(b)10 and 336(d)11 of the 1952 Act. 13 All these considerations converge to the conclusion that Congress has not provided with sufficient clarity that the subpoena power granted by § 235(a) extends over persons who are the subject of denaturalization investigations; therefore Congress is not to be deemed to have done so impliedly. Since this is so, we are not called upon to consider whether Congress may employer an immigration officer to secure evidence, under the authority of a subpoena, from a citizen who is himself the subject of an investigation directed toward his denaturalization. The judgment in No. 35 is affirmed; in No. 47, the judgment is reversed. 14 Affirmed and reversed respectively. 15 Mr. Justice BLACK, concurring. 16 The respondent Minker is a naturalized citizen of the United States.1 He was subpoenaed by an immigration officer to appear and give testimony as a 'witness.' But Minker was not to be a witness within the traditional meaning of that word, that is, one who testifies in a court proceeding or in a public quasi-judicial hearing of some kind. The immigration officer summoning Minker was not a judge or 'grand jury' of any kind, nor was he at the time acting in any quasi-judicial capacity. Cf. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682. He was acting under his broad power as a law enforcement officer to follow up clues and find information that might be useful in later civil or criminal prosecutions brought against persons suspected of violating the immigration and naturalization laws. See, e.g., § 287, Immigration and Nationality Act, 66 Stat. 233, 8 U.S.C. § 1357, 8 U.S.C.A. § 1357; 8 CFR §§ 287.1—287.5. The object in summoning Minker was to interrogate him in the immigration officer's private chambers to try to elicit information 'relating to the possible institution of proceedings seeking the revocation of * * * (Minker's) naturalization. * * *' Information so obtained might be used under some circumstances in court to take away Minker's American citizenship or convict him of perjury or some other crime.2 Thus the capacity in which this immigration officer was acting was precisely the same as that of a policeman, constable, sheriff, or Federal Bureau of Investigation agent who interrogates a person, perhaps himself a suspect, in connection with murder or some other crime. Apparently Congress has never even attempted to vest FBI agents with such private inquisitorial power. Indeed, this Court has construed congressional enactments as designed to safeguard persons against compulsory questioning by law enforcement officers behind closed doors. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. And we have frequently set aside state criminal convictions as a denial of due process of law because of coercive questioning of suspects by public prosecutors and other law enforcement officers in their official chambers. See, e.g., Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Harris v. South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716. Yet power of the Attorney General and immigration officers to compel persons, including suspects, to appear and subject themselves to questioning by law enforcement officers in their private chambers is precisely what the Department of Justice claims here. This is no less true because a federal judge must be called on to 'aid' the immigration officer in subjecting a summoned person to questioning. § 235(a), 66 Stat. 198, 8 U.S.C. § 1225(a), 8 U.S.C.A. § 1225(a). For after a court order, as before, the person summoned must go to an immigration officer's private chambers for questioning by him, out of which may come a prosecution against the 'witness' for perjury or some other crime. A purpose to subject aliens, much less citizens, to a police practice so dangerous to individual liberty as this should not be read into an Act of Congress in the absence of a clear and unequivocal congressional mandate. I think the Act relied on here by the Department of Justice should not be so read. I would hold that immigration officers are wholly without statutory authority to summon persons, whether suspects or not, to testify in private as 'witnesses' in denaturalization matters. For this reason I concur in the Court's judgment in this case. 17 The Department of Justice finds the sweeping power it claims in § 235 of the Immigration and Nationality Act of 1952, 66 Stat. 163, 198, 8 U.S.C. §§ 1101, 1225, 8 U.S.C.A. §§ 1101, 1225. That Act is a comprehensive codification of laws relating to entry, exclusion, domestic control, deportation and naturalization of aliens; the Act also provides the controlling rules and procedures for denaturalizing naturalized citizens. Primary responsibility for administration and enforcement of the Act is vested in the Attorney General, acting chiefly through his subordinates in the Immigration and Naturalization Service. § 103, 66 Stat. 173, 8 U.S.C. § 1103, 8 U.S.C.A. § 1103. 18 This Court has drawn sharp and highly important distinctions between the constitutional power of Congress to bar and exclude aliens and congressional power to strip citizens of their citizenship. Former cases have held that Congress has full power to bar or exclude aliens from the country. See, e.g., United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040; Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956. But citizenship, whether acquired by birth or by naturalization, cannot be taken away without a judicial trial in which the Government carries a heavy burden. See, e.g., Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938; Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210. Congress, apparently taking note of these basic distinctions, divided the Act into different 'Titles' and 'Chapters.' Section 235, on which the Government relies here, appears in Chapter IV of Title II. Title II as a whole contains provisions relating to 'Immigration' and Chapter IV of that Title contains the 'Provisions Relating to Entry and Exclusion.' It is in the context of Chapter IV that § 235 gives the Attorney General and immigration officers, 'including special inquiry officers', broad power to subpoena and require testimony of 'witnesses' as to 'the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service * * *.' I think that context indicates that § 235 was designed to apply only to the examination of 'witnesses' by immigration officers in relation to 'entry and exclusion' of aliens, and matters material and relevant to entry and exclusion. Such a reading makes the subpoena power given fit into the carefully devised pattern of Title II, which deals with aliens and immigration, not with naturalization or denaturalization. Even if limited to matters pertaining to the entry and exclusion of aliens, compulsory private examination of 'witnesses' might be invalid. The broad powers here claimed by the Attorney General and his immigration officers could be more nearly defended, if they can be defended at all, by confining use of the powers to the field of treatment of aliens, where this Court has said Congress has most power. 19 Limitation of the subpoena and investigatory powers in § 235 to matters relating to entry, control and exclusion of aliens is strengthened by consideration of Title III of the Act which covers 'Nationality and Naturalization.' That Title provides procedures for investigation and trial of naturalization and denaturalization cases, wholly adequate in themselves without reliance on the subpoena and examination powers of immigration officers under § 235. The naturalization and denaturalization procedures of Title III are not merely adequate, but are in a measure inconsistent with § 235 procedure. Looking first at naturalization procedure under §§ 332—336, 66 Stat. 252—258, 8 U.S.C. §§ 1443—1447, 8 U.S.C.A. §§ 1443—1447, it appears that Congress with meticulous care provided a procedure for investigation of naturalization cases. These sections provide their own way for summoning and examining witnesses. Without mentioning immigration officers, the sections provide for investigations, etc., to be carried on by any employee of the Service or of the United States designated by the Attorney General. An examination under this Title is carried on by a public hearing at which an applicant for citizenship can produce his own witnesses.3 The designated hearing examiner is given the power to subpoena witnesses by § 335(b), 66 Stat. 255, 8 U.S.C. § 1446(b), 8 U.S.C.A. § 1446(b), and the naturalization judge is authorized to compel compliance with the subpoena. After the hearing the examiner reports his findings and recommendations to the Attorney General. The views of the designated examiner, and of the Attorney General if in conflict, are then reported to the naturalization court for its consideration. All of this persuades me that reliance on the subpoena and private examination powers of immigration officers under § 235 would actually conflict with the public hearing procedure Congress and the Attorney General have provided for naturalization cases in §§ 332—335, 66 Stat. 252—257, 8 U.S.C. §§ 1443—1446, 8 U.S.C.A. §§ 1443—1446, and 8 CFR §§ 335.11—335.13. 20 It seems even clearer that immigration officers' powers under § 235 are not applicable in denaturalization cases. Section 340 of Title III of the Act, 66 Stat. 260, 8 U.S.C. § 1451, 8 U.S.C.A. § 1451, provides for revocation of naturalization. Responsibility for initiating such cases is placed on district attorneys 'upon affidavit showing good cause therefor * * *.' Many of the grounds for denaturalization are also grounds for felony prosecutions. Under these circumstances it is not surprising that Congress expressly placed responsibility for instituting denaturalization proceedings on district attorneys, leaving them to summon persons to appear as witnesses in the traditional manner before grand juries or courts. It would have been surprising had Congress attempted to authorize the Nation's chief prosecuting officer and his subordinates to compel a citizen to appear in government private offices to answer questions in secret about that citizen's conduct, associations and beliefs. Some countries give such powers to their officials. It is to be hoped that this country never will. 21 Mr. Justice DOUGLAS, concurring. 22 While I agree with the result reached by the Court, I do not think this case is comparable to those controversies that frequently rege over the scope of the investigative power in support of administrative action. Cf. Cudahy Packing Co. v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895 with United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401. Congress has provided a special judicial procedure which must be followed, if a citizen is denaturalized. That procedure is contained in § 340 of the Immigration and Nationality Act of 1952. 66 Stat. 163, 8 U.S.C. § 1451, 8 U.S.C.A. § 1451. It provides for canceling a certificate of naturalization on the ground that it was procured 'by concealment of a material fact or by willful misrepresentation.' § 340(a). Suit may be brought by the United States Attorney in the District Court 'upon affidavit showing good cause.' Id. The citizen whose citizenship is challenged has 60 days 'in which to make answers to the petition of the United States.' § 340(b). There is no pretrial administrative procedure provided in the section governing denaturalization. One can search § 340 in vain for any suggestion that the judicial procedure is supplemented by a pretrial procedure. So to hold would make the 60-day period for answer 'empty words,' as Judge Foley ruled in Application of Barnes, D.C., 116 F.Supp. 464, 469. As Judge Hastie, writing for the court below in the Minker case, said, the administrative pretrial procedure is not consistent with the safeguards which Congress has provided in the judicial proceedings. 3 Cir., 217 F.2d 350, 352. I agree with that view and would, therefore, read s 235(a) to exclude witnesses who are potential defendants in § 340 cases. 23 There is another reason for reading the section narrowly. When we deal with citizenship we tread on sensitive ground. The citizenship of a naturalized person has the same dignity and status as the citizenship of those of us born here, save only for eligibility to the Presidency. He is a member of a community included within the protection of all the guarantees of the Constitution. Those safeguards would be imperiled if prior to the institution of the proceedings the citizen could be compelled to be a witness against himself and furnish out of his own mouth the evidence used to denaturalize him. I would require the Government to proceed with meticulous regard for the basic notions of Due Process which protect every vital right of the American eitizen. 1 Section 235(a) in full provides: 'The inspection, other than the physical and mental examination, of aliens (including alien crewmen) seeking admission or readmission to or the privilege of passing through the United States shall be conducted by immigration officers, except as otherwise provided in regard to special inquiry officers. All aliens arriving at ports of the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe. Immigration officers are hereby authorized and empowered to board and search any vessel, aircraft, railway car, or other conveyance, or vehicle in which they believe aliens are being brought into the United States. The Attorney General and any immigration officer, including special inquiry officers, shall have power to administer oaths and to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, pass through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service, and, where such action may be necessary, to make a written record of such evidence. Any person coming into the United States may be required to state under oath the purpose or purposes for which he comes, the length of time he intends to remain in the United States, whether or not he intends to remain in the United States permanently and, if an alien, whether he intends to become a citizen thereof, and such other items of information as will aid the immigration officer in determining whether he is a national of the United States or an alien and, if the latter, whether he belongs to any of the excluded classes enumerated in section 212. The Attorney General and any immigration officer, including special inquiry officers, shall have power to require by subpena the attendance and testimony of witnesses before immigration officers and special inquiry officers and the production of books, papers, and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service, and to that end may invoke the aid of any court of the United States. Any United States district court within the jurisdiction of which investigations or inquiries are being conducted by an immigration officer or special inquiry officer may, in the event of neglect or refusal to respond to a subpena issued under this subsection or refusal to testify before an immigration officer or special inquiry officer, issue an order requiring such persons to appear before an immigration officer or special inquiry officer, produce books, papers, and documents if demanded, and testify, and any failure to obey such order of the court may be punished by the court as a contempt thereof.' 2 Section 340(a) provides: '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 310 of this title 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 that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively: Provided, That refusal on the part of a naturalized citizen within a period often years following his naturalization to testify as a witness in any proceeding before a congressional committee concerning his subversive activities, in a case where such person has been convicted of contempt for such refusal, shall be held to constitute a ground for revocation of such person's naturalization under this subsection as having been procured by concealment of a material fact or by willful misrepresentation. If the naturalized citizen does not reside in any judicial district in the United States at the time of bringing such suit, the proceeding may be instituted in the United States District Court for the District of Columbia or in the United States district court in the judicial district in which such person last had his residence.' 3 8 CFR § 340.11 provides: 'Investigation and report. Whenever it appears that any grant of naturalization may have been procured by concealment of a material fact or by willful misrepresentation, the facts shall be reported to the district director having jurisdiction over the naturalized person's last known place of residence. If the district director is satisfied that a prima facie showing has been made that grounds for revocation exist, he shall cause an investigation to be made and report the facts in writing to the Commissioner with a recommendation as to whether revocation proceedings should be instituted. If it appears that naturalization was procured in violation of section 1425 of Title 18 of the United States Code, 18 U.S.C.A. § 1425, the facts in regard thereto may be presented by the district director to the appropriate United States Attorney for possible criminal prosecution.' 4 The question whether respondent was required to obey the order of the District Court irrespective of that court's power under § 235(a) has not been raised. See United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884. 5 The Court of Appeals for the Fifth Circuit has taken the same view. Lansky v. Savoretti, 220 F.2d 906. 6 E.g., § 215(g): 'Passports, visas, reentry permits, and other documents required for entry under this Act may be considered as permits to enter for the purposes of this section.' Section 241(a)(2): 'Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who—* * * entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this Act or in violation of any other law of the United States.' Section 290(a): 'There shall be established in the office of the Commissioner, for the use of the security and enforcement agencies of the Government of the United States, a central index, which shall contain the names of all aliens heretofore admitted to the United States, or excluded therefrom, insofar as such information is available from the existing records of the Service, and the names of all aliens hereafter admitted to the United States, or excluded therefrom, the names of their sponsors of record, if any, and such other relevant information as the Attorney General shall require as an aid to the proper enforcement of this Act.' 7 E.g., § 284: 'Nothing contained in this title shall be construed so as to limit, restrict, deny, or affect the coming into or departure from the United States of an alien member of the Armed Forces of the United States who is in the uniform of, or who bears documents identifying him as a member of, such Armed Forces, and who is coming to or departing from the United States under official orders or permit of such Armed Forces: Provided, That nothing contained in this section shall be construed to give to or confer upon any such alien any other privileges, rights, benefits, exemptions, or immunities under this Act, which are not otherwise specifically granted by this Act.' 8 'While the Nationality Act (§ 333(a) of the 1940 Act) provides for subpena of witnesses at a preliminary (naturalization) hearing and for calling of witnesses in any naturalization proceedings in court, specific provision is not made for subpenaing the petitioner. The subcommittee feels that the proposed bill should contain the requirement that the petitioner be required to attend hearings and is so recommending.' S.Rep. No. 1515, 81st Cong., 2d Sess. 739. 9 Section 236(a) provides: 'A special inquiry officer shall conduct proceedings under this section, administer oaths, present and receive evidence, and interrogate, examine, and cross-examine the alien or witnesses.' 10 Section 242(b) provides: 'A special inquiry officer shall conduct proceedings under this section to determine the deportability of any alien, and shall administer oaths, present and receive evidence, interrogate, examine, and cross-examine the alien or witnesses, and, as authorized by the Attorney General, shall make determinations, including orders of deportation.' 11 Section 336(d) provides: 'The Attorney General shall have the right to appear before any court in any naturalization proceedings for the purpose of cross-examining the petitioner and the witnesses produced in support of the petition concerning any matter touching or in any way affecting the petitioner's right to admission to citizenship, and shall have the right to call witnesses, including the petitioner, produce evidence, and be heard in opposition to, or in favor of, the granting of any petition in naturalization proceedings.' 1 Minker is respondent in No. 35. He and the petitioners in No. 47, Salvatore and Joseph Falcone, raise the same questions, and what I say about Minker's case applies also to that of the Falcones. 2 See § 348, 66 Stat. 267, 8 U.S.C. § 1459, 8 U.S.C.A. § 1459; 18 U.S.C. § 1621, 18 U.S.C.A. § 1621. See also Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, reversing 9 Cir., 215 F.2d 955. But see Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; majority and dissenting opinions in Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408; Adams v. Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608. 3 The Attorney General's regulations for the conduct of these examinations, 8 CFR §§ 335.11—335.13, also provide that the petitioner for naturalization may be represented by counsel and that the petitioner may cross-examine government witnesses. If petitioner is not represented by counsel, the hearing examiner must assist him in introducing his evidence. Furthermore the decision of the examiner may not be based on evidence which is not in the record or which would be inadmissible in judicial proceedings. Thus the regulations emphasize the difference between a subpoena to testify before a § 335 naturalization hearing officer and a subpoena to testify before a § 235 immigration officer seeking to obtain evidence for criminal prosecution or deportation. And that show that naturalization procedures are completely independent from entry and exclusion procedures. Cf. §§ 235(c), 236(a), 292, 66 Stat. 199, 200, 235, 8 U.S.C. §§ 1225(c), 1226(a), 1362, 8 U.S.C.A. §§ 1225(c), 1226(a), 1362; 8 CFR §§ 235.15, 236.11—236.16.

12

350 U.S. 214 76 S.Ct. 292 100 L.Ed. 233 Dantan George REA, Petitioner,v.UNITED STATES of America. No. 30. Argued Nov. 10, 1955. Decided Jan. 16, 1956. Mr. Joseph A. Sommer, for petitioner. Mrs. Beatrice Rosenberg, Washington, D.C., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Petitioner was indicted for the unlawful acquisition of marihuana in violation of 26 U.S.C. § 2593(a), 26 U.S.C.A. § 2593(a). The indictment, found in September 1953, was based on evidence obtained by a search warrant issued by a United States Commissioner, as authorized by Rule 41(a) of the Rules of Criminal Procedure, 18 U.S.C.A., in August 1953. Petitioner moved under Rule 41(e) to suppress the evidence on the ground that the search warrant was improperly issued under Rule 41(c) in that it was insufficient on its face, no probable cause existed, and the affidavit was based on unsworn statements.1 The District Court granted the motion to suppress and, on the Government's later motion, dismissed the indictment. No motion for return of the evidence was made. The evidence seized was indeed contraband. Since the crime charged was a violation of a provision of the Internal Revenue Code, 28 U.S.C. § 2463, 28 U.S.C.A. § 2463, was applicable. That section provides against the return of the property in the following words: 2 'All property taken or detained under any revenue law of the United States shall not be repleviable, but shall be deemed to be in the custody of the law and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.' And see 26 U.S.C. § 2598, 26 U.S.C.A. § 2598. 3 After the District Court suppressed the evidence, a federal narcotics agent swore to a complaint before a New Mexico judge and caused a warrant for petitioner's arrest to issue. Petitioner has now been charged with being in possession of marihuana in violation of New Mexico law and awaits trial in the state court. The case against petitioner in the state court will be made by testimony of the federal agent based on the illegal search and on the evidence seized under the illegal federal warrant. That at least is the basis of the motion in the District Court to enjoin the federal narcotics agent from testifying in the state case with respect to the narcotics obtained in the illegal search and, if the evidence seized is out of the custody of the United States, to direct the agent to reacquire the evidence and destroy it or transfer it to other agents. The District Court denied the motion and the Court of Appeals affirmed. 10 Cir., 218 F.2d 237. The case is here on a petition for certiorari which we granted because of the importance in federal law enforcement of the question presented. 348 U.S. 958, 75 S.Ct. 450. 4 The briefs and oral argument have been largely devoted to constitutional questions. It is said, for example, that while the Fourth Amendment, as judicially construed, would bar the use of this evidence in a federal prosecution, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, our decision in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, would permit New Mexico to use the evidence in its prosecution of petitioner. Moreover, it is said that to suppress the use of the evidence in the state criminal proceedings would run counter to our decision in Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138. 5 We put all the constitutional questions to one side. We have here no problem concerning the interplay of the Fourth and the Fourteenth Amendments nor the use which New Mexico might make of the evidence. The District Court is not asked to enjoin state officials nor in any way to interfere with state agencies in enforcement of state law. Cf. Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846. The only relief asked is against a federal agent, who obtained the property as a result of the abuse of proccess issued by a United States Commissioner. The property seized is contraband which Congress has made 'subject only to the orders and decrees of the courts of the United States having jurisdiction thereof,' as provided in 28 U.S.C. § 2463, 28 U.S.C.A. § 2463, already quoted. In this posture we have then a case that raises not a constitutional question but one concerning our supervisory powers over federal law enforcement agencies. Cf. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. 6 A federal agent has violated the federal Rules governing searches and seizures—Rules prescribed by this Court and made effective after submission to the Congress. See 327 U.S. 821 et seq. The power of the federal courts extends to policing those requirements and making certain that they are observed. As stated in Wise v. Henkel, 220 U.S. 556, 558, 31 S.Ct. 599, 600, 55 L.Ed. 581, which involved an order directing the district attorney to return certain books and papers unlawfully seized: 7 '* * * it was within the power of the court to take jurisdiction of the subject of the return, and pass upon it, as the result of its inherent authority to consider and decide questions arising before it concerning an alleged unreasonable exertion of authority in connection with the execution of the process of the court.' 8 No injunction is sought against a state official. The only remedy asked is against a federal agent who, we are told, plans to use his illegal search and seizure as the the basis of testimony in the state court. To enjoin the federal agent from testifying is merely to enforce the federal Rules against those owing obedience to them. 9 The command of the federal Rules is in no way affected by anything that happens in a state court. They are designed as standards for federal agents. The fact that their violation may be condoned by state practice has no relevancy to our problem. Federal courts sit to enforce federal law; and federal law extends to the process issuing from those courts. The obligation of the federal agent is to obey the Rules. They are drawn for innocent and guilty alike. They prescribe standards for law enforcement. They are designed to protect the privacy of the citizen, unless the strict standards set for searches and seizures are satisfied. That policy is defeated if the federal agent can flout them and use the fruits of his unlawful act either in federal or state proceedings. 10 Reversed. 11 Mr. Justice HARLAN, whom Mr. Justice REED, Mr. Justice BURTON, and Mr. Justice MINTON join, dissenting. 12 Without discussion of the competing state and federal interests involved, the Court holds that a federal law enforcement officer should be enjoined from turning over to state authorities for use in a state prosecution evidence which he has obtained in contravention of the Fourth Amendment, and from giving testimony concerning the evidence in the state proceedings. This holding so far departs from the concepts which have hitherto been considered to govern state and federal relationships in this area that I am constrained to dissent. 13 1. The holding that an injuntion should issue against making available to New Mexico the evidence and testimony in question is rested on this Court's 'supervisory powers over federal law enforcement agencies.' So far as I know, this is the first time it has been suggested that the federal courts share with the executive branch of the Government responsibility for supervising law enforcement activities as such. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, cited by the Court, stands for no such proposition. Indeed, in excluding the McNabb evidence in a federal trial, the Court was careful to say: '* * * we confine ourselves to our limited function as the court of ultimate review of the standards, formulated and applied by federal courts in the trial of criminal cases. We are not concerned with law enforcement practices except in so far as courts themselves become instruments of law enforcement.' 318 U.S. at page 347, 63 S.Ct. at page 616. I do not think that this case can be brought within McNabb simply because the enjoined evidence was seized under an invalid court process. Would the Court's decision have been different had there been no search warrant at all? Moreover, the Court has heretofore refused to extend the McNabb rule to state criminal trials. Stein v. New York, 346 U.S. 156, 186—188, 73 S.Ct. 1077, 1093—1094, 97 L.Ed. 1522; Gallegos v. Nebraska, 342 U.S. 55, 63—64, 72 S.Ct. 141, 146 147, 96 L.Ed. 86. 14 2. Nor can this decision be supported under any general equity power. For although the federal courts undeniably have the power to issue an injunction in this case, they also have the discretion to withhold equitable relief when, on the balance, the power should not be exercised. On that basis, I think the decision cannot be reconciled with the rationale of Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138. There, in a case brought under the Civil Rights Act, R.S. § 1979, now 42 U.S.C. § 1983, 42 U.S.C.A. § 1983, claiming violation of petitioner's rights under the Fourteenth Amendment, the Court refused to enjoin the use of state-seized evidence in a state prosecution, saying 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.' Id., 342 U.S. at page 120, 72 S.Ct. at page 120. That holding was based on the 'special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.' The same consideration is applicable here. The Court distinguishes Stefanelli because we are 'not asked to enjoin state officials nor in any way to interfere with state agencies in enforcement of state law.' But this seems to me illusory, for, as the Court recognizes, the State's case against petitioner appears to depend wholly on the evidence in question; the injunction will operate quite as effectively, albeit indirectly, to stultify the state prosecution as if it had been issued directly against New Mexico or its officials. New Mexico's prosecution is at least as far advanced as was the state prosecution in Stefanelli. If New Mexico should now seek to subpoena the federal agent, would the Court permit him to honor the State's process? And if not, how could that properly be said not to impinge directly upon the New Mexico prosecution? Today's decision represents a reversal of the sound policy followed in Stefanelli; I can find no justification for it. It was not an abuse of discretion to withhold the relief here. 15 3. It is said that the federal policies against unlawful searches and seizures will be flouted if a federal agent can 'use the fruits of his unlawful act either in federal or state proceedings.' But this Court has already held that although the substance of the Fourth Amendment is 'implicit in 'the concept of ordered liberty" and hence enforceable against the States through the Fourteenth Amendment, evidence unlawfully seized by a State can nevertheless be used in state prosecutions. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. That being so, I am unable to understand how an exercise of federal equity power designed to deny the State the use of this evidence can be squared with the policies underlying Wolf. The fact that the injunction operates only against evidence still in possession of the federal authorities and against testimony by a federal officer is for me not a sufficient answer, since the only difference I can see between the Wolf decision and Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, excluding in federal criminal trials evidence obtained in contravention of the Fourth Amendment, is the difference between state and federal courts; in each case, the substance of the constitutional command is the same, but the nature of enforcement varies with the forum. So that, had the petitioner here been convicted in the state courts by use of this evidence, I take it that Wolf means we would not have interfered, at least absent any showing of a more aggravated search and seizure than this record discloses. To say that federal interference is nevertheless justified at this point in the proceedings whenever the State has not yet obtained the evidence seems to me to make the matter simply a race between a state prosecution and a federal injunction proceeding. I do not believe that a rule dependent on the fortuitous circumstance of winning that race is a sound one in this important field of federal-state relations. If, on the other hand, the Court is now saying that it is the difference between the Fourth Amendment and the Fourteenth which requires this result—a conclusion disclaimed by the majority—then I would still regard the injunction as improvidently issued, since New Mexico should be given the first opportunity to suppress the evidence with this Court sitting in review if the State improperly refuses to do so. Cf. Douglas v. Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324. 16 In accommodating state and federal interests in criminal law enforcement, this Court has hitherto taken the view that the States should be left free to follow or not the federal exclusionary rule set forth in Weeks v. United States, supra. The present decision seems to me to be a step in the opposite and wrong direction. I think the judgment below should be affirmed. 1 Rule 41(c) provides in relevant part as follows: 'A warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant. If the judge or commissioner is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States. It shall state the grounds or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof.'

01

350 U.S. 222 76 S.Ct. 259 100 L.Ed. 240 UNITED STATES of America, Petitioner,v.TWIN CITY POWER COMPANY and William P. Dauchy, Its Mortgagee. No. 21. Argued Oct. 18, 1955. Decided Jan. 23, 1956. Rehearing Denied April 2, 1956. See 350 U.S. 1009, 76 S.Ct. 648. Mr. Ralph S. Spritzer, Washington, D.C., for petitioner. Mr. David W. Robinson, for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This is a suit for condemnation of land instituted by the United States against respondent power company. A single question of valuation is presented. It is whether the just compensation which the United States must pay by force of the Fifth Amendment includes the value of the land as a site for hydroelectric power operations. The Fourth Circuit Court ofAppeals held that it does. 215 F.2d 592. The Court of Appeals for the Fifth Circuit reached the same result in litigation involving other lands in the same hydroelectric project. United States v. Twin City Power Co., 5 Cir., 221 F.2d 299. We granted the petition for certiorari in the former case because of the importance of the issue presented. 348 U.S. 910, 75 S.Ct. 298. 2 The condemnation proceedings are part of the procedure for completion of the Clark Hill project on the Savannah River, a navigable stream in southeastern United States. The Clark Hill project is the first in a series of steps recommended by the Chief of Army Engineers for the improvement of the basin of that river. H.R.Doc. No. 657, 78th Cong., 2d Sess. That Report conceives of the Clark Hill project as serving multiple purposes—hydroelectric, flood control, and navigation. It states that the Clark Hill project,' 'if suitably constructed and operated primarily for hydroelectric-power development, would incidentally reduce downstream flood damages and improve low-water flows for navigation.' Id., p. 3 3. Congress approved this project as part of 'the comprehensive development of the Savannah River Basin for flood control and other purposes.' Section 10 of the Flood Control Act of 1944, 58 Stat. 887. And see United States ex rel. Chapman v. Federal Power Commission, 345 U.S. 153, 170, 73 S.Ct. 609, 618, 97 L.Ed. 918. 4 The Court of Appeals concluded that the improvement of navigation was not the purpose of the taking but that the Clark Hill project was designed to serve flood control and water-power development. 215 F.2d at 597. It is not for courts, however, to substitute their judgments for congressional decisions on what is or is not necessary for the improvement or protection of navigation. See State of Arizona v. California, 283 U.S. 423, 455 457, 51 S.Ct. 522, 526—527, 75 L.Ed. 1154. The role of the judiciary in reviewing the legislative judgment is a narrow one in any case. See Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 102; United States ex rel. Tennessee Valley Authority v. Welch, 327 U.S. 546, 552, 66 S.Ct. 715, 717, 90 L.Ed. 843. The decision of Congress that this project will serve the interests of navigation involves engineering and policy considerations for Congress and Congress alone to evaluate. Courts should respect that decision until and unless it is shown 'to involve an impossibility', as Mr. Justice Holmes expressed it in Old Dominion Land Co. v. United States, 269 U.S. 55, 66, 46 S.Ct. 39, 40, 70 L.Ed. 162. If the interests of navigation are served, it is constitutionally irrelevant that other purposes may also be advanced. United States v. Appalachian Electric Power Co., 311 U.S. 377, 426, 61 S.Ct. 291, 308, 85 L.Ed. 243; Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508, 525, 533—534, 61 S.Ct. 1050, 1059—1063, 85 L.Ed. 1487. As we said in the Appalachian Power Co. case, 'Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control.' 311 U.S., at page 426, 61 S.Ct. at page 308. 5 The interest of the United States in the flow of a navigable stream originates in the Commerce Clause. That Clause speaks in terms of power, not of property. But the power is a dominant one which can be asserted to the exclusion of any competing or conflicting one. The power is a privilege which we have called 'a dominant servitude' see United States v. Commodore Park, Inc., 324 U.S. 386, 391, 65 S.Ct. 803, 805, 89 L.Ed. 1017; Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, 249, 74 S.Ct. 487, 493, 98 L.Ed. 686, or 'a superior navigation easement.' United States v. Gerlach Live Stock Co., 339 U.S. 725, 736, 70 S.Ct. 955, 961, 94 L.Ed. 1231. The legislative history and construction of particular enactments may lead to the conclusion that Congress exercised less than its constitutional power, fell short of appropriating the flow of the river to the public domain, and provided that private rights existing under state law should be compensable or otherwise recognized. Such were United States v. Gerlach Live Stock Co., supra, and Federal Power Commission v. Niagara Mohawk Power Corp., supra. We have a different situation here, one where the United States displaces all competing interests and appropriates the entire flow of the river for the declared public purpose. 6 We can also put aside such cases as United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277, where assertion of the dominant servitude in the navigable river injured property beyond the bed of the stream. Here we are dealing with the stream itself, for it is in the water power that respondents have been granted a compensable interest. 7 It is argued, however, that the special water-rights value should be awarded the owners of this land since it lies not in the bed of the river nor below high water but above and beyond the ordinary high-water mark. An effort is made by this argument to establish that this private land is not burdened with the Government's servitude. The flaw in that reasoning is that the landowner here seeks a value in the flow of the stream, a value that inheres in the Government's servitude and one that under our decisions the Government can grant or withhold as it chooses. It is no answer to say that payment is sought only for the location value of the fast lands. That special location value is due to the flow of the stream; and if the United States were required to pay the judgments below, it would be compensating the landowner for the increment of value added to the fast lands if the flow of the stream were taken into account. 8 That is illustrated by United States v. Chandler-Dunbar Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063, the case that controls this one. In that case a private company installed a power project in St. Mary's River under a permit from the Government, revocable at will. The permit was revoked, Congress appropriating the entire flow of the stream for navigation purposes. The Court unanimously held that the riparian owner had no compensable interest in the water power of which it had been deprived. Mr. Justice Lurton, speaking for the Court, said, 'Ownership of a private stream wholly upon the lands of an individual is conceivable; but that the running water in a great navigable stream is capable of private ownership is inconceivable.' Id., 229 U.S. at page 69, 33 S.Ct. at page 674. The Court accordingly reversed a judgment that awarded the riparian owner what respondents have obtained in this case, viz., 'the present money value of the rapids and falls to the Chandler-Dunbar Company as riparian owners of the shore and appurtenant submerged land.' Id., 229 U.S. at page 74, 33 S.Ct. at page 676. The Court said, 'The government had dominion over the water power of the rapids and falls, and cannot be required to pay any hypothetical additional value to a riparian owner who had no right to appropriate the current to his own commercial use.'1 Id., 229 U.S. at page 76, 33 S.Ct. at page 677. Some of the land owned by the private company was in the bed of the stream, some above ordinary high water. But the location of the land was not determinative. It was the dominion of the Government over the water power that controlled the decision. Both in Chandler-Dunbar and in this case it is the water power that creates the special value, whether the lands are above or below ordinary high water. The holding in Chandler-Dunbar led us to say in United States v. Appalachian Power Co., supra, 311 U.S. at page 424, 61 S.Ct. at page 307, that the 'exclusion of riparian owners' from the benefits of the power in a navigable stream 'without compensation is entirely within the Government's discretion.' And again, 'If the Government were now to build the dam, it would have to pay the fair value, judicially determined, for the fast land; nothing for the water power.' Id., 311 U.S. at 427, 61 S.Ct. 309. 9 The power company in the present case is certainly in no stronger position than the owner of the hydroelectric site in the Chandler-Dunbar case. While the latter was deprived of a going private power project by the Government, the present private owners never had a power project on the Savannah and as a result of the Government's pre-emption never can have one. 10 It is no answer to say that these private owners had interests in the water that were recognized by state law. We deal here with the federal domain, an area which Congress can completely preempt, leaving no vested private claims that constitute 'private property' within the meaning of the Fifth Amendment. Location of the lands might under some circumstances give them special value, as our cases have illustrated. But to attach a value of water power of the Savannah River due to location and to enforce that value against the United States would go contra to the teaching of Chandler-Dunbar—'that the running water in a great navigable stream is capable of private ownership is inconceivable.' 229 U.S., at page 69, 33 S.Ct. at page 674. 11 The holding of the Chandler-Dunbar case that water power in a navigable stream is not by force of the Fifth Amendment a compensable interest when the United States asserts its easement of navigation is in harmony with another rule of law expressed in United States v. Miller, 317 U.S. 369, 375, 63 S.Ct. 276, 280, 87 L.Ed. 336. 12 'Since the owner is to receive no more than indemnity for his loss, his award cannot be enhanced by any gain to the taker. Thus although the market value of the property is to be fixed with due consideration of all its available uses, its special value to the condemnor as distinguished from others who may or may not possess the power to condemn, must be excluded as an element of market value.' 13 The Court in the Chandler-Dunbar case emphasized that it was only loss to the owner, not gain to the taker, that is compensable. 229 U.S. at page 76, 33 S.Ct. 677. If the owner of the fast lands can demand water-power value as part of his compensation, he gets the value of a right that the Government in the exercise of its dominant servitude can grant or withhold as it chooses. The right has value or is an empty one dependent solely on the Government. What the Government can grant or withhold and exploit for its own benefit has a value that is peculiar to it and that no other user enjoys. Cf. U.S. ex rel. Tennessee Val. Authority v. Powelson, 319 U.S. 266, 273 et seq., 63 S.Ct. 1047, 1051, 87 L.Ed. 1390. To require the United States to pay for this water-power value would be to create private claims in the public domain. 14 Reversed. 15 Mr. Justice BURTON, with whom Mr. Justice FRANKFURTER, Mr. Justice MINTON, and Mr. Justice HARLAN join, dissenting. 16 The issue here is the determination of the compensation which, under the Fifth Amendment, must be paid for privately owned fast land adjoining a navigable stream when such land is taken by the United States for a public use. For the reasons hereafter stated, I agree with the courts below that the proper measure of such compensation is the fair market value of the land at the time it is taken, and that this includes recognition of any fair market value of the land that is due to its riparian character. 17 This issue has confronted the United States ever since it proposed to construct a multipurpose dam across the Savannah River, and found it necessary to acquire privately owned land on which to locate its Clark Hill dam, plant and reservoir. Part of the needed land lay in South Carolina on the north bank of the river and the remainder on its south bank in Georgia. Of the 70,000 or more acres thus required, about 4,700, at the heart of the project, are the ones before us. Those in South Carolina are owned by the Twin City Power Company, a South Carolina corporation. Those in Georgia are owned by the Twin City Power Company of Georgia, a Georgia corporation. The latter is a wholly owned subsidiary of the former and the two will be referred to as Twin City. 18 In 1947, the United States, in seven proceedings, but under a single program, took possession of the 4,700 acres. It filed four actions in the United States District Court for the Western District of South Carolina, and three in the corresponding court for the Southern District of Georgia. Each sought to condemn the title to some of the property taken and to fix the compensation to be paid for it. 19 Because of the necessity for proceeding in two jurisdictions, the compensation issue has been passed upon by two District Courts and two Courts of Appeals, as well as by three Commissioners appointed jointly by the District Courts to recommend the compensation to be paid. All of the opinions rendered have held that the fair market value of the land taken should include recognition of the value of its location, availability and exceptional suitability for use as a dam site, plant site or reservoir basin incidental to a water-power development. By doing so, they have expressly declined to limit their estimates of the fair market value of the Twin City land merely to its market value for agricultural purposes and the supplying of timber as contended by the Government.1 20 For over 50 years, the land in question has been the subject of frequent consideration and negotiation in connection with the proposed construction of some dam to raise the level of the Savannah River from 60 to 100 feet in that vicinity. Twin City was organized for the development of a hydroelectric plant in this area and began acquiring this property for that purpose in 1901. By 1911, it owned practically all of the land necessary for an integrated site for a hydroelectric power project with a 60-foot head at Price's Island.2 Under six Acts of Congress, passed between 1901 and 1919, Twin City was authorized to build power dams in the Savannah River at Price's Island utilizing the land involved here. The Secretary of War and the Chief of Engineers of the United States approved those plans. The land before us included an excellent dam site where the river narrowed to 900 feet. At appropriate points, the land included sound foundation rock and much clay suitable for earth dam purposes. The stream flow at Price's Island exceeded that of most hydro developments in North Carolina, South Carolina or Georgia. At all material times, there has been an ample and growing market for the electrical energy to be produced. The area contained substantially no improvements requiring removal and was suited for a reservoir basin extending 11 or more miles up the river. 21 In 1925, the Federal Power Commission granted Twin City a preliminary permit for a development at Price's Island involving a dam with a 60-foot head of water. In 1926, the Southeastern Power & Light Company negotiated with Twin City for the purchase of its land. Shortly thereafter, the Savannah River Electric Company intervened and obtained a license from the Commission to construct a 90-foot dam for a hydroelectric development which would have absorbed the land now before us. The Savannah River Electric Company also instituted, but later abandoned, proceedings to condemn the Twin City property. After World War II, the Savannah River Electric Company applied to the Commission for a permit to construct a dam for the development of water power at a point almost identical with the Clark Hill site. That proposal called for occupation of the Twin City land and negotiations for its purchase were renewed. By then, however, the United States had made plans for its own comprehensive improvement of the Savannah River for flood control, navigation and power purposes. In 1944, Congress had authorized the Clark Hill project. 58 Stat. 894. In 1947, the efforts of the Savannah River Electric Company came to an end with its unsuccessful petition for a federal license.3 In that year, the Government took possession of the land for its present Clark Hill project, calling for a 130-foot dam about six miles below Price's Island and for the complete absorption of the Twin City land. 22 Included in the 4,707.65 acres to be evaluated are 4,519.15 acres owned in fee, and 188.50 over which Twin City merely has flowage rights.4 The latter are significant because a market for flowage rights is a recognition of a special value of the land for that use. 23 There is no need to discuss here the question whether the Clark Hill project, as authorized by Congress, is primarily in the interest of navigation, rather than of flood control or power development, for, in any event, the United States has the power of eminent domain. By payment of just compensation, it may acquire whatever private property may be necessary and appropriate for the project, including the Twin City fast land and flowage rights. 24 There also is no need to discuss the traditional servitude, generally referred to as the navigation servitude, which the United States enjoys within the banks and bed of the Savannah River. All of the Twin City land and flowage rights involved are located above and beyond the ordinary high-water mark of the river. It is conceded that the United States has a right to exercise its navigation servitude without payment of compensation within the limits of the servitude. There is no claim made here for payment for any value in the flow of the stream, for any part of the bed of the river or for any land below the ordinary high-water mark of the river.5 25 'It is not the broad constitutional power to regulate commerce, but rather the servitude derived from that power and narrower in scope, that frees the Government from liability in these cases (United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 61 S.Ct. 772, 85 L.Ed. 1064, and United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101). When the Government exercises this servitude, it is exercising its paramount power in the interest of navigation, rather than taking the private property of anyone. The owner's use of property riparian to a navigable stream long has been limited by the right of the public to use the stream in the interest of navigation. See Gould on Waters, c. IV, §§ 86—90 (1883); I Farnham, Waters and Water Rights, c. III, § 29 (1904). This has applied to the stream and to the land submerged by the stream. There thus has been ample notice over the years that such property is subject to a dominant public interest. This right of the public has crystallized in terms of a servitude over the bed of the stream. The relevance of the high-water level of the navigable stream is that it marks its bed. Accordingly, it is consistent with the history and reason of the rule to deny compensation where the claimant's private title is burdened with this servitude but to award compensation where his title is not so burdened.' United States v. Kansas City Ins. Co., 339 U.S. 799, 808,6 70 S.Ct. 885, 890, 94 L.Ed. 1277. 26 Similarly, there is no controversy here between the United States, any State, or private landowner as to the paramount right of the United States to take possession of the land in question for the purposes stated. Unlike the situation in Federal Power Commission v. Niagara Mohawk Corp., 347 U.S. 239, 74 S.Ct. 487, 98 L.Ed. 686, there are no vested water rights claimed here under state law. Twin City does not contest the right of the United States to develop the power resources of the river. It asks only that, to the extent that the United States takes private fast land for public use, it shall pay its fair market value, including its fair market value for riparian uses. 27 '* * * The statement in that opinion (Monongahela Navigation Co. v. United States, 148 U.S. 312, p. 326, 13 S.Ct. 622, 626, 37 L.Ed. 463) that 'no private property shall be appropriated to public uses unless a full and exact equivalent for it be returned to the owner' aptly expresses the scope of the constitutional safeguard against the uncompensated taking or use of private property for public purposes. Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 399, 14 S.Ct. 1047 (1055) 38 L.Ed. 1014. 28 'That equivalent is the market value of the property at the time of the taking contemporaneously paid in money. * * * 29 'Just compensation includes all elements of value that inhere in the property, but it does not exceed market value fairly determined. The sum required to be paid the owner does not depend upon the uses to which he has devoted his land but is to be arrived at upon just consideration of all the uses for which it is suitable. The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not necessarily as the measure of value, but to the full extent that the prospect of demand for such use affects the market value while the property is privately held. Mississippi & R. R. Boom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206; Clark's Ferry Bridge Co. v. Public Service Comm., 291 U.S. 227, 54 S.Ct. 427, 78 L.Ed. 767; 2 Lewis, Eminent Domain, 3d ed., § 707, p. 1233. 1 Nichols, Eminent Domain, 2d ed., § 220, p. 671. The fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value.'7 Olson v. United States, 292 U.S. 246, 254 256, 54 S.Ct. 704, 708—709, 78 L.Ed. 1236. 30 In the instant case, the Commissioners, the District Courts and the Court of Appeals have applied the above rule. The Commissioners considered all elements of value which they could ascertain with reasonable accuracy, provided those elements were sufficiently assured to be reflected in the fair market value of the premises.8 In confirming the report of the Commissioners, the District Court said: 31 'Since the award to Twin City of $1,257,033.20 is not the value of its property for any particular purpose but represents its fair market value after considering all of the reasonable uses of the property which were not too remote or speculative, this amount is the 'just compensation' required by the Fifth Amendment and the applicable statutes. * * * This is the amount that in all probability would have been arrived at by fair negotiations between an owner willing to seel and a purchaser desiring to buy.' United States v. 3,928.09, etc., 114 F.Supp. 719, at page 725. 32 The potential use of this land for dam, plant and reservoir purposes is far from speculative in the light of the 50 years of recognition of its availability and suitability for those purposes. The land was accumulated by Twin City for this very purpose and it is now flooded as part of the Clark Hill project. The steam-plant comparison computations made by the Commissioners are substantially uncontroverted. If a purchase price had been sought by negotiation in 1947, it is inevitable that a primary consideration would have been the value of the flowage rights and of the dam and plant locations in relation to water-power development. We cannot realistically imagine that such a negotiation would have been limited to a consideration of the land's timber and its minor value for agricultural uses.9 33 The value recommended by the Commissioners and approved by the courts below includes nothing for strategic or 'hold-up' value. It reflects no inflation due to the 'taking' of the property by the Government and no deflation due to the absence of other bidders after the Government announced that it would take the property. There was nothing condemned or valued that could be described as 'in the flow of the stream.' Only the fast land was taken and valued. It is because of that land's location near, but apart from, the flow of the stream that an additional fair market value, long recognized in this land, was recommended and approved below. The location of land is always a factor, and often a primary factor, in determining its market value. Every public utility exercising the right of eminent domain is required to pay it. 34 Before passage of the Water Power Act, 16 U.S.C.A. § 791a et seq., the paramount, but unexercised, right of the Government to control the water power in the Savannah River did not exclude the development of that river under state control. The Water Power Act imposed additional conditions and provided for federal licensing. See Federal Power Commission v. Niagara Mohawk Corp., 347 U.S. 239, 74 S.Ct. 487, 98 L.Ed. 686, and Grand River Dam Authority v. Grand-Hydro, 335 U.S. 359, 69 S.Ct. 114, 93 L.Ed. 64. But, even though a federal license then became generally necessary, a substantial market for the fast land still existed, because of its importance to any licensee. Up to the time of its 'taking' of the property, the Government was but one of several prospective purchasers. 35 After the Federal Government announced that it would, itself, develop and use the water power, it still had to acquire fast land for its dam and plant site and for its reservior basin. Although its taking of the property cut off further competitive bids for the land, the Government had the same constitutional obligation to pay 'just compensation' for whatever private property it took. 36 A classic comment upon a comparable situation was made by this Court when the Federal Government, after condemning a lock and dam, sought to pay only for the tangible property taken, without recognizing the established value of a franchise issued by a State to exact tolls for the use of the canal and lock. In requiring recognition of the latter value, the Court said: 37 'And here it may be noticed that, after taking this property, the government will have the right to exact the same tolls the navigation company has been receiving. It would seem strange that if, by asserting its right to take the property, the government could strip it largely of its value, destroying all that value which comes from the receipt of tolls, and having taken the property at this reduced valuation, immediately possess and enjoy all the profits from the collection of the same tolls. In other words, by the contention this element of value exists before and after the taking, and disappears only during the very moment and process of taking. Surely, reasoning which leads to such a result must have some vice, at least the vice of injustice.' Monongahela Navigation Co. v. United States, 148 U.S. 312, 337—338, 13 S.Ct. 622, 630—631, 37 L.Ed. 463. 38 While the United States enjoys special rights in relation to navigable streams, such as its navigation servitude, there is no good reason why, when the Government condemns private property for a public use, its condemnee should not receive from the Government the same measure of 'just compensation' as from other condemnors. If the property taken is 'private property,' the constitutional compensation for it should be the same. That measure includes the 'highest and most profitable use for which the property is adaptable * * * to the full extent that the prospect of demand for such use affects the market value while the property is privately held.' Olson v. United States, supra, 292 U.S. at page 255, 54 S.Ct. at page 708. 39 '* * * No precedent has been advanced which suggests that a different measure of compensation should be required where the United States rather than the state is the taker of the property for a public project. Nor has any reason been suggested why as a matter of principle or policy there should be a different measure of compensation in such a case. * * * 40 '* * * The United States no more than a state can be excused from paying just compensation measured by the value of the property at the time of the taking merely because it could destroy that value by appropriate legislation or regulation.' United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 278, 284, 63 S.Ct. 1047, 1054, 1057. See also, United States v. Cress, 243 U.S. 316, 319, 326—327, 329—330, 37 S.Ct. 380, 381, 384, 385—386, 61 L.Ed. 746. 41 The Government contends, however, that since it need not pay for appropriating the water in the stream, it should not be required to pay for any value in the fast lands that is predicated upon the riparian location of such lands, or their special value in relation to the use of that water. In this connection, the issues decided and the statements made by Justice Lurton for a unanimous Court in United States v. Chandler-Dunbar Co., 229 U.S. 53, 33 S.Ct. 667, are helpful. The Chandler case was a condemnation proceeding brought by the United States under a special Act of Congress relating to all the land and other property between the St. Mary's Falls Ship Canal at Sault Sainte Marie, Michigan, and the international boundary to the north. The United States 'took' this land and property so as to improve navigation in these highly navigable waters. It exercised plenary control over the entire river and over everything within its bed up to its ordinary highwater mark. It thus exercised its navigation servitude and eliminated, without compensation, a hydro-electric development which the Chandler-Dunbar Company had constructed on the latter's submerged land within the bed of the river. That elimination was no longer in issue in this Court. The principal questions related to the District Court's awards for water rights claimed by Chandler and for fast land owned by Chandler above and beyond the bed of the river.10 42 1. The District Court allowed Chandler $550,000 for the water rights. Chandler, however, established no vested right to such water under state law and this Court disallowed the entire claim. It said: 43 '* * * Unless * * * the water power rights asserted by the Chandler-Dunbar Company are determined to be private property, the court below was not authorized to award compensation for such rights. 44 '* * * Ownership of a private stream wholly upon the lands of an individual is conceivable; but that the running water in a great navigable stream is capable of private ownership is inconceivable.' Id., 229 U.S. at page 69, 33 S.Ct. at page 674. 45 That conclusion is not questioned. 46 2. In fixing compensation to Chandler for its strip of eight acres of fast land, the District Court allowed for 'use for canal and lock purposes, an additional value of $25,000,' and for a smaller area consisting of two other parcels of fast land for 'its special value for canal and lock purposes an additional sum of $10,000.' Id., 229 U.S. at page 75, 33 S.Ct. at page 676. These allowances of additional value for fast lands, due to their suitability and availability for canal and lock purposes, are significant for our present purposes. The Court explained them as follows: 47 '* * * That this land had a prospective value for the purpose of constructing a canal and lock parallel with those in use had passed beyond the region of the purely conjectural or speculative. That one or more additional parallel canals and locks would be needed to meet the increasing demands of lake traffic was an immediate probability. This land was the only land available for the purpose. It included all the land between the canals in use and the bank of the river. Although it is not proper to estimate land condemned for public purposes by the public necessities or its worth to the public for such purpose, it is proper to consider the fact that the property is so situated that it will probably be desired and available for such a purpose. Lewis, Em.Dom. § 707. Mississippi & R.R. Boom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206, 208; Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170; Young v. Harrison, 17 Ga. 30; Alloway v. Nashville, 88 Tenn. 510, 13 S.W. 123, 8 L.R.A. 123; Sargent v. Merrimac, 196 Mass. 171, 81 N.E. 970, 11 L.R.A., N.S., 996.' (Emphasis supplied.) Id., 229 U.S. at pages 76—77, 33 S.Ct. at page 677. 48 Justice Lurton then reviewed and quoted at length from the opinions in Mississippi & R.R. Boom Co. v. Patterson, supra, and Shoemaker v. United States, supra.11 49 Coupled with the reasoning of the Court and its quotations from earlier cases, these allowances support the position taken by the lower courts in the instant case. They are 'additional values' allowed for the location, special suitability and availability of the riparian land for use in connection with the recognized future public use of the area. In fact, the uses for which the allowances are made are of the very same type as that for which the land has been condemned. There is no allowance for strategic or 'hold-up' value. The Chandler case thus supplies specific authority for the decision of the lower courts in the instant case. 50 3. In fixing the compensation for the same eight acres and the smaller area, the District Court also made a basic allowance of $20,000 for the value of the strip 'for all general purposes, like residences, or hotels, factory sites, disconnected with water power, etc.,' and $10,000 in relation to the smaller area for 'general wharfage, dock, and warehouse purposes.' Id., 229 U.S. at pages 74, 75, 33 S.Ct. at page 676. This Court upheld both, thereby further demonstrating that the location of land is a proper element to be considered in determining 'just compensation.' 51 4. On the other hand, the District Court approved one other element of 'additional value' in relation to these land areas which this Court rejected. In valuing the eight acres, the District Court allowed an 'additional value' of $20,000 for 'use as factory site in connection with the development of 6,500 horse power, either as a single site or for several factories to use the surplus of 6,500 horse power not now used in the city.' Id., 229 U.S. at pages 74—75, 33 S.Ct. at page 676. Likewise, in valuing the smaller area, the District Court allowed an additional value of $5,000 in 'connection with the canal along the rapids, if used as a part of the development of 4,500 (6,500) horse power.' Id., 229 U.S. at page 75, 33 S.Ct. at page 676. It has been suggested that these rejections are in conflict with the Court's simultaneous approval of the additional values of the same land for canal or lock purposes. The Government also claims to find in these rejections some support for its opposition in the instant case to any allowance reflecting the favorable location of the fast land it has taken on the banks of the Savannah River. 52 The Court's reasons for rejecting these particular values in the Chandler case, as expressly stated by Justice Lurton, lend no such support to the Government's position in the instant case. He said: 53 '* * * These 'additional' values were based upon the erroneous hypothesis that that company (Chandler-Dunbar) had a private property interest in the water power of the river, not possibly needed now or in the future for purposes of navigation, and that that excess or surplus water was capable, by some extension of their works already in the river, of producing 6,500 horse power. 54 'Having decided that the Chandler-Dunbar Company, as riparian owners, had no such vested property right in the water power inherent in the falls and rapids of the river, and no right to place in the river the works essential to any practical use of the flow of the river, the government cannot be justly required to pay for an element of value which did not inhere in these parcels as upland.' Id., 229 U.S. at pages 75—76, 33 S.Ct. at page 677. 55 In other words, the rejected values were not part of the fair market value of the land for any assured use. They sought to recognize a value in the fast land for factory sites which were conditioned upon there being excess water in the stream not needed by the Government for navigation, and further conditioned upon the development by Chandler of structures in the bed of the stream to develop 6,500 additional horsepower from this excess water. Not only was there found to be no such excess water but Chandler's potential power development within the bed of the stream was expressly disallowed. The rejection thus was due to the speculative nature of the proposed use and not to the favorable riparian location of the land for assured uses. It was thoroughly consistent with the Court's allowance of established values of the land for canal and lock purposes. 56 To accept the Government's position in the instant case would, in effect, extend its navigation servitude far above and beyond the high-water mark of the Savannah River. In the face of decisions uniformly limiting that servitude to the bed of the stream, the Government would take 4,700 acres of private property for a public use, substantially without compensation therefor. This would enforce the Government's right of condemnation, while repudiating its constitutional obligation to pay for the private property taken. 57 The justice of sustaining the interpretation placed on the Fifth Amendment by the courts below is emphasized in the following statements made by this Court in Monongahela Navigation Co. v. United States, 148 U.S. 312, 324, 325, 13 S.Ct. 622, 625, 37 L.Ed. 463: 58 '* * * The question presented is not whether the United States has the power to condemn and appropriate this property of the Monongahela Company, for that is conceded, but how much it must pay as compensation therefor. Obviously, this question, as all others which run along the line of the extent of the protection the individual has under the constitution against the demands of the government, is of importance, for in any society the fullness and sufficiency of the securities which surround the individual in the use and enjoyment of his property constitute one of the most certain tests of the character and value of the government. The first 10 amendments to the constitution, adopted as they were soon after the adoption of the constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights. 59 '* * * And in this there is a natural equity which commends it to every one. It in no wise detracts from the power of the public to take whatever may be necessary for its uses; while, on the other hand, it prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him.' 60 For the foregoing reasons, the judgment of the Court of Appeals should be affirmed. 1 In the Chandler-Dunbar case, an award of compensation was made for the value of the land for a lock and canal, passing 'around the falls and rapids.' United States v. Chandler-Dunbar Co., 229 U.S., at pages 67, 76—78, 33 S.Ct. at page 673. It may be that the Court was influenced by the fact that, on the special facts of the case, the use of the land for canals and locks was wholly consistent with the dominant navigation servitude of the United States and indeed aided navigation. Whatever may be said for that phase of the case, it affords no support for respondent, since water-power value, held to be compensable by the Court of Appeals, was ruled to be noncompensable in the Chandler-Dunbar case. 1 See opinion of District Judge Wyche speaking, in 1949, for the District Courts for the Western District of South Carolina and the Southern District of Georgia, United States v. 1532.63 Acres of Land, etc., 86 F.Supp. 467; report of Commissioners, in 1953 (R. 14); opinion of District Judge Wyche confirming, in 1953, the Commissioner's report which also was confirmed by District Judge Scarlett for the Southern District of Georgia, United States v. 3,928.00 Acres of Land, etc., D.C., 114 F.Supp. 719; opinion of Judge Judge Wyche, sitting with District Judge Scarlett, overruling, in 1953, motion to amend findings and enter a new judgment (R. 55); opinion of Chief Judge Parker, in 1954, joined by Circuit Judges Soper and Dobie, constituting the Court of Appeals for the Fourth Circuit, 215 F.2d 592; and opinion of Chief Judge Hutcheson, in 1955, joined by Circuit Judge Holmes and District Judge Dawkins, constituting the Court of Appeals for the Fifth Circuit, 221 F.2d 299. See, also, opinion rendered, in 1947, in Savannah River Electric Co. v. Federal Power Commission, 164 F.2d 408, by the Court of Appeals for the Fourth Circuit. 2 Twin City's 4,700 acres would include all except about 170 acres of the land and rights necessary for the location of a dam, plant and reservoir basin with a 60-foot head of water at Price's Island. A 60-foot head at that point with a 5-foot surcharge would require about 400 additional acres instead of 170, a 70-foot head with a 5-foot surcharge, 1,250 acres, and an 80-foot head with a 5-foot surcharge, 2,800 acres. The Twin City land was not only available but essential for such developments in the vicinity of Price's Island. Cf. United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed. 1390; Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236. 3 Savannah River Electric Co. v. Federal Power Commission, supra. 4 These 188.50 acres are those on which the flowage rights have been found by the lower courts to be valid and enforceable, as distinguished from the 745.58 acres of 'options' which have been treated by the lower courts as unenforceable. The flowage rights were acquired by Twin City through deeds of purchase and, for reservoir purposes, they are as valuable as a title in fee. They evidence a control over riparian land without which water rights are useless for the development of a hydroelectric project. 5 The answers filed by the condemnees in this action were so construed by the District Court. The United States, relying on United States v. Chandler-Dunbar Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063, moved to strike portions of the amended answers filed by the condemnees. In denying these motions, the District Court said: '* * * But, I do not understand that the condemnee by its answers claims to have any private property right in the 'water power capacity' or the 'raw water' of the river; neither has it built, nor does it own, any structures in the stream for which it claims compensation. On the contrary, its claim is limited to the fair market value of its fast lands, based upon 'the most profitable use to which the land can probably be put in the reasonably near future." United States v. 1532.63 Acres of Land, D.C., 86 F.Supp. 467, 476. 6 Following the above statement, we illustrated, in a footnote, the limitation of the servitude to the bed of the stream as fixed by its ordinary high-water mark. We showed that in the Chicago case, supra, this Court permitted the overflowing, without compensation, of land within the bed of the stream but denied application of the servitude to nearby land outside of the bed of the stream. The Court also remanded that case for a determination of whether or not certain other lands were within the bed of the stream. 7 Near this point, there also appears the following statement which has significance here in view of the competition between Twin City and others prior to the taking of the land in question by the United States: '* * * It is common knowledge that public service corporations and others having that power (of condemnation) frequently are actual or potential competitors not only for tracts held in single ownership but also for rights of way, locations, sites, and other areas requiring the union of numerous parcels held by different owners. And, to the extent that probable demand by prospective purchasers or condemnors affects market value, it is to be taken into account.' 292 U.S., at page 256, 54 S.Ct. at page 709. See United States ex rel. T.V.A. v. Powelson, supra, 319 U.S. at page 275, 63 S.Ct. 1052, and also Grand River Dam Authority v Grand-Hydro, 335 U.S. 359, 69 S.Ct. 114, 93 L.Ed. 64; United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336; McCandless v. United States, 298 U.S. 342, 56 S.Ct. 764, 80 L.Ed. 1205; City of New York v. Sage, 239 U.S. 57, 36 S.Ct. 25, 60 L.Ed. 143; Mississippi & R. R. Boom Co. v. Patterson, 98 U.S. 403, 407 408, 25 L.Ed. 206. 8 The following are excerpts from the Commisioner's report: '* * * By reason of their geographical location, these lands and other property rights of Twin City had a peculiar value for water power purposes * * *. '* * * all the witnesses, in the main, had taken the steam plant comparison method as one of the principal bases for arriving at the water power value of the property of Twin City * * *. In that connection, we wish to make it clear that the figure arrived at by the so-called 'steam plant comparison method' ($1,600,000), was not taken as an absolute guide, or basis, but was used as one of the principal bases, together with numerous other factors considered by these expert witnesses * * *.' 9 The estimate which the Commissioners made of the value of the land based upon its timber and agricultural value, plus an allowance of $5 per acre for the assembly of the title under a single ownership, was about $37 per acre in South Carolina and $31 per acre in Georgia, producing a total of $150,841.85. This contrasts with the $267.02 per acre, and a total 'just compensation' of $1,257,033.20, approved by the Commissioners and the courts below. 10 The allowances of value are here discussed in the following order: (1) for water rights; (2) for value of land for canal and lock purposes; (3) for value of land for general purposes; and (4) for value of land for factory sites contingent upon availability of surplus privately developed electric power. In the text of the Chandler case, 229 U.S. at pages 74—75, 33 S.Ct. at page 676, the value of canal and lock purposes is treated last. 11 Although erroneously referring to it as having been used in a lower court instruction in the Shoemaker case, Justice Lurton's quotation of the following language lends this Court's approval to it: '* * * 'the market value of the land includes its value for any use to which it may be put, and all the uses to which it is adapted, and not merely the condition in which it is at the present time, and the use to which it is now applied by the owner; * * * that if, by reason of its location, its surroundings, its natural advantages, its artificial improvement, or its intrinsic character, it is peculiarly adapted to some particular use,—e.g., to the use of a public park,—all the circumstances which make up this adaptability may be shown, and the fact of such adaptation may be taken into consideration in estimating the compensation." 229 U.S. at page 78, 33 S.Ct. at page 677.

34

350 U.S. 260 76 S.Ct. 337 100 L.Ed. 282 James P. MITCHELL, Secretary of Labor, United States Department of Labor, Petitioner,v.KING PACKING COMPANY. No. 39. Argued Nov. 16, 17, 1955. Decided Jan. 30, 1956. Bessie Margolin, Washington, D.C., for petitioners. Mr. Willard S. Johnston, San Francisco, Cal., for respondent. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 This case like Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, raises an issue of coverage under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 201 et seq., with respect to work performed before or after the direct or productive labor for which the worker is primarily paid. 2 The District Court denied to the Secretary of Labor an injunction to enforce compliance with the Act, and the Court of Appeals for the Ninth Circuit affirmed. 216 F.2d 618. 3 The court below recognized a conflict with Steiner,1 and, although holding that Section 4 controls the situation here, determined, contrary to the holding in the Steiner case, that 'the terms 'preliminary' or 'postliminary' cannot be interpreted so as to exclude (from the exemptions from the Act) all activity 'indispensable to the performance of productive work.' To do so would deny effect to the intended meaning of the Portal-to-Portal Act.'2 We granted certiorari to resolve this conflict. 349 U.S. 914, 75 S.Ct. 605, 99 L.Ed. 1248. 4 In Steiner, for reasons therein set forth, we concluded that after the enforcement date of the Portal-to-Portal Act activities performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1). 5 The only question to be determined in this case is whether the knife-sharpening activities of the employees of respondent King Packing Co. are within this classification. 6 Respondent is an interstate meat packer engaged in slaughtering, butchering, dressing and distributing meat and meat products. It employs at its packing plant about 75 persons, of whom about one-third are knifemen, whose compensation rights are involved in this litigation. The knifemen perform various butchering operations, 12 or 14 of them working in the killing room and the others in the cutting room. Various knives and three types of electric saws are used in the butchering operations. Some of the knives are furnished by the knifemen under the terms of their employment. These are the boning, the shaving, the legging and the skinning or siding knives. The saws and the more expensive loin pulling, ham skinning, shoulder trimming and sparerib knives are furnished by respondent. All of the knives as well as the saws must be 'razor sharp' for the proper performance of the work. Respondent's production manager and one of the knifemen testified a dull knife would slow down production which is conducted on an assembly line basis, affect the appearance of the meat as well as the quality of the hides, cause waste and make for accidents; 'that a knife to be of any practical value in a knife job has to be * * * sharp.' 7 Though the entire cost of keeping the saws in proper condition is borne by respondent, the knifemen are required to sharpen their own knives outside the scheduled shift of eight hours, and for this activity they are not compensated. The sharpening of these knives is done either before or after the work shift or during the lunch hour in a room equipped by respondent with an emery wheel and grindstone. A knifeman ordinarily sharpens from two to four knives a day. At the time a man is hired for, or promoted to, a knife job, it is understood that he will be required to sharpen knives. He is expected to perform that task as well as other tasks connected with the job. 8 The knifemen are paid by the hour and, excluding the knife-sharpening time in controversy, they work eight hours a day, five days a week. 9 We believe the facts clearly demonstrate that the knife-sharpening activities of these workmen are an integral part of and indispensable to the various butchering activities for which they were principally employed, and that they must be compensated for by respondent in compliance with the Fair Labor Standards Act, as amended by the Portal-to-Portal Act, and as construed by us today in Steiner v. Mitchell.3 Because the decision of the court below, resting solely upon an erroneous reading of Section 4, is not in accordance with our construction, the judgment must be reversed and remanded for proceedings not inconsistent herewith. 10 Reversed and remanded. 1 'The Secretary argues that the sharpening of knives is not 'preliminary' or 'postliminary' but rather 'an integral part of a principal activity', since it is indispensable to the proper performance of the employees' work. He relies on a statement by Senator Cooper, one of the sponsors of the Portal-to-Portal Act, made during Senate debate on the bill that the term 'principal activities' is 'sufficiently broad to embrace within its terms such activities as are indispensable to the performance of productive work.' The case of Steiner v. Mitchell, 6 Cir., 1954, 215 F.2d 171, supports this contention.' 216 F.2d at page 621. 2 216 F.2d at page 621. 3 The discussion between Senator Cooper and Senator Barkley, quoted in an appendix to our opinion in the Steiner case, 350 U.S. 256, 76 S.Ct. 335, is particularly apposite to the facts of the instant case.

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350 U.S. 247 76 S.Ct. 330 100 L.Ed. 267 Morris STEINER, Harry Lightman, Mitchell Magid et al., etc., Petitioners,v.James P. MITCHELL, Secretary of Labor, United States Department of Labor. No. 22. Argued Nov. 16, 1955. Decided Jan. 30, 1956. Mr. Cecil Sims, Nashville, Tenn., for petitioners. Bessie Margolin, Washington, D.C., for respondent. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 This case raises an issue of coverage under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act of 1947, 29 U.S.C.A. §§ 201 et seq., 251 et seq., with respect to work performed before or after the direct or productive labor for which the worker is primarily paid. 2 The precise question is whether workers in a battery plant must be paid as a part of their 'principal' activities for the time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health had hygiene, to change clothes and to shower in facilities which state law requires their employer to provide, or whether these activities are 'preliminary' or 'postliminary' within the meaning of the Portal-to-Portal Act and, therefore, not to be included in measuring the work time for which compensation is required under the Fair Labor Standards Act. 3 The Secretary of Labor, contending that these activities are so covered, brought this action in the United States District Court for the Middle District of Tennessee to enjoin petitioners from violating the overtime and record-keeping requirements of Sections 7 and 11(c) of the Fair Labor Standards Act of 1938, as amended, in the employment of production workers, and from violating Section 15(a)(1) of the Act by making interstate shipments of the goods produced by such workers. 4 The District Court gave judgment for the plaintiff, and the Court of Appeals for the Sixth Circuit affirmed. 215 F.2d 171, 172. Because of the importance of the interpretation of the portal-to-portal provisions in the administration of the Fair Labor Standards Act, and because of a conflict between the circuits on the subject, Mitchell v. King Packing Co., 9 Cir., 216 F.2d 618, we granted certiorari in Both cases, 349 U.S. 914, 75 S.Ct. 605, 99 L.Ed. 1248. 5 There is no question of back pay involved here because the Court limited its judgment to prospective relief. Nor is the question of changing clothes and showering under normal conditions involved because the Government concedes that these activities ordinarily constitute 'preliminary' or 'postliminary' activities excluded from compensable work time as contemplated in the Act. It contends, however, that such activities in the circumstances of this case are an integral and indispensable part of the production of batteries, the 'principal activity' in which these employees were engaged, and are, therefore, compensable under the relevant provisions of the Act. 6 The petitioners own and operate a plant where they are engaged in manufacturing automotive-type wet storage batteries which they sell in interstate commerce. All of the production employees, such as those with whom we are here concerned, customarily work with or near the various chemicals used in the plant. These include lead metal, lead oxide, lead sulphate, lead peroxide, and sulphuric acid. Some of these are in liquid form; some are in powder form, and some are solid. In the manufacturing process, some of the materials go through various changes and give off dangerous fumes. Some are spilled or dropped, and thus become a part of the dust in the air. In general, the chemicals permeate the entire plant and everything and everyone in it. Lead and its compounds are toxic to human beings. Regular exposure to atmosphere containing 1.5 milligrams or more of lead per 10 cubic meters is regarded by the medical profession as hazardous and involving the possibility of lead intoxication or lead poisoning. In battery plants, such as this one, it is 'almost impossible,' it was testified, to keep lead concentration in the air 'within absolutely safe limits,' and in petitioners' plant 'lead oxide was on the floor and in the air and on the plates which employees handled.' Abnormal concentrations of lead were discovered in the bodies of some of petitioners' employees, and petitioners' insurance doctor recommended that such employees be segregated from their customary duties. The primary ways in which lead poisoning is contracted are by inhalation and ingestion; i.g., by taking in particles through the nose or mouth, an open cut or sore, or any other body cavity. The risk is 'very great' and even exists outside the plant because the lead dust and lead fumes which are prevalent in the plant attach themselves to the skin, clothing and hair of the employees. Even the families of battery workers may be placed in some danger if lead particles are brought home in the workers' clothing or shoes. Sulphuric acid in the plant is also a hazard. It is irritating to the skin and can cause severe burns. When the acid contacts clothing, it causes disintegration or rapid deterioration. Moreover, the effects of sulphuric acid make the employee more susceptible than he would otherwise be to contamination by particles of lead and lead compounds. 7 Petitioners, like other manufacturers, try to minimize these hazards by plant ventilation, but industrial and medical experts are in agreement that ventilation alone is not sufficient to avoid the dangers of lead poisoning. Safe operation also requires the removal of clothing and showering at the end of the work period. This has become a recognized part of industrial hygiene programs in the industry, and the state law of Tennessee requires facilities for this purpose. Tenn.Code Ann. (Williams 1934), 1952 Supp., Section 5788.15. In addition, the Tennessee Workmen's Compensation Act, Tenn.Code Ann. (Williams 1934), 1952 Supp., Sections 6851—6901, which covers petitioners, makes lead poisoning a compensable occupational disease, Section 6852(d). In order to comply with this statute, petitioners carry insurance, under Section 6895, to protect against liability, and the insurance carrier would not accept the insurance risk if defendants refused to have showering and clothes-changing facilities for their employees. 8 Accordingly, in order to make their plant as safe a place as is possible under the circumstances and thereby increase the efficiency of its operation, petitioners have equipped it with shower facilities and a locker room with separate lockers for work and street clothing. Also, they furnish without charge old but clean work clothes which the employees wear. The cost of providing their own work clothing would be prohibitive for the employees, since the acid causes such rapid deterioration that the clothes sometimes last only a few days. Employees regularly change into work clothes before the beginning of the productive work period, and shower and change back at the end of that period.1 9 Petitioners issued no written instructions to employees on this subject, but the employees testified and the foreman declared in a signed statement that 'In the afternoon the men are required by the company to take a bath because lead oxide might be absorbed into the blood stream. It protects the company and the employee both.' 10 Petitioners do not record or pay for the time which their employees spend in these activities, which was found to amount to thirty minutes a day, ten minutes in the morning and twenty minutes in the afternoon, for each employees. They do not challenge the concurrent findings of the courts below that the clothes-changing and showering activities of the employees are indispensable to the performance of their productive work and integrally related thereto. They do contend that these activities fall without the concept of 'principal activity' and that, being performed off the production line and before or after regular shift hours, they are beyond the protection of the Fair Labor Standards Act. 11 The trial court held that these activities 'are made necessary by the nature of the work performed'; that they fulfill 'mutual obligations' between petitioners and their employees; that they 'directly benefit' petitioners in the operation of their business, and that they 'are so closely related to other duties performed by (petitioners') employees as to be an integral part thereof and are, therefore, included among the principal activities of said employees.' It concluded that the time thereby consumed is not excluded from coverage by Section 4 of the Portal-to-Portal Act, but constitutes time worked within the meaning of the Fair Labor Standards Act. The Court of Appeals affirmed, likewise holding that the term "principal activity of activities" in Section 42 embraces all activities which are 'an integral and indispensable part of the principal activities,' and that the activities in question fall within this category. 12 With this conclusion, we agree. 13 The Portal-to-Portal Act was designed primarily to meet an 'existing emergency' resulting from claims which, if allowed in accordance with Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515, would have created 'wholly unexpected liabilities, immense in amount and retroactive in operation.'3 This purpose was fulfilled by the enactment of Section 2.4 The trial court specifically limited the effect of this judgment to services rendered after the judgment becomes final. We are not, therefore, concerned with the provisions of Section 2, which is inapplicable to actions relating to activities of employees performed after May 14, 1947. 14 The language of Section 4 is not free from ambiguity and the legislative history of the Portal-to-Portal Act becomes of importance. That Act originated in a House bill, which had no provision comparable to Section 4, but rather gave similar treatment to retroactive and prospective claims; i.e., excluding coverage except by contract or custom in the industry. H.R.Rep. No. 326, 80th Cong., 1st Sess. 12. The Conference Report stated that the language of Section 4 follows the Senate bill. S.Rep. No. 48, 80th Cong., 1st Sess. 48. In the Senate, the colloquy between several Senators and Senator Cooper, a sponsor of the bill and a member of the three-man subcommittee that held hearings for the Committee on the Judiciary which reported it, demonstrates that the Senate intended the activities of changing clothes and showering to be within the protection of the Act if they are an integral part of and are essential to the principal activities of the employees.5 15 There is some conflicting history in the House,6 but the Senate discussion is more clear cut and, because the Section originated in that body, is more persuasive. 16 In 1949, Section 3(o) was added to the Act.7 Both sides apparently take comfort from it, but the position of the Government is strengthened by it since its clear implication is that clothes changing and washing, which are otherwise a part of the principal activity, may be expressly excluded from coverage by agreement. The congressional understanding of the scope of Section 4 is further marked by the fact that the Congress also enacted Section 16(c)8 at the same time, after hearing from the Administrator his outstanding interpretation of the coverage of certain preparatory activities closely related to the principal activity and indispensable to its performance.9 17 On the whole it is clear, we think, that while Congress intended to outlaw claims prior to 1947 for wages based on all employee activities unless provided for by contract or custom of the industry, including, of course, activities performed before or after regular hours of work, it did not intend to deprive employees of the benefits of the Fair Labor Standards Act where they are an integral part of and indispensable to their principal activities. Had Congress intended the result urged by petitioner, the very different provisions of Sections 2 and 4 would have been unnecessary; Section 2 could have been given prospective as well as retroactive effect. 18 We, therefore, conclude that activities performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a) (1). 19 We find no difficulty in fitting the facts of this case to that conclusion because it would be difficult to conjure up an instance where changing clothes and showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees. 20 The judgment is affirmed. 21 Affirmed. APPENDIX TO OPINION OF THE COURT. COLLOQUY BETWEEN SENATOR COOPER AND OTHER SENATORS. 22 'Mr. Cooper. * * * Before the enactment of the Fair Labor Standards Act an employee might have worked upon a lathe under a contract, and his contract may have provided that his pay should commence at a scheduled hour, say at 7 o'clock when the lathe began to run, and he began to apply his energy to a casting or to a block upon the lathe. After the enactment of the Fair Labor Standards Act, by interpretations of the Wage and Hour Administrator, it was held that certain preparatory activities such as sharpening the tools, oiling the machinery, preparing his machinery for work, were so closely related to his productive activity that the employer must compensate the employee for it. We believe that in the use of the words 'principal activity' we have preserved to the employee the rights and the benefits and the privileges which have been given to him under the Fair Labor Standards Act, because it is our opinion that those activities which are so closely related and are an integral part of the principal activity, indispensable to its performance, must be included in the concept of principal activity. And to make our position clear we have given examples in the report. * * * 23 'Mr. McGrath. I think that at this point we might very definitely make contribution to the legislative history of what we are doing here. Am I correct in understanding the Senator to say that what the majority of the committee proposes is that any activity of a worker shall be considered a part of his principal activity if the doing of that act is indispensable to the performance of the rest of his day's work? 24 'Mr. Cooper. I can read the language used in the report, and I think that language should be used in this connection, because the words and phrases it employs were adopted by the committee. On page 48 of the report, in the definition of 'principal activity,' we find these words: 25 "It will be observed that the particular time at which the employee commences his principal activity or activities and ceases his principal activity or activities marked the beginning and the end of his workday. The term 'principal activity or activities' includes all activities which are an integral part thereof as illustrated by the following examples: 26 "1. In connection with the operation of a lathe an employee will frequently at the commencement of his workday oil, grease, or clean his machine, or install a new cutting tool. Such activities are an integral part of the principal activity, and are included within such term. 27 "2. In the case of a garment worker in a textile mill, who is required to report 30 minutes before other employees report to commence their principal activities, and who during such 30 minutes distributes clothing or parts of clothing at the work-benches of other employees and gets machines in readiness for operation by other employees, such activities are among the principal activities of such employee.' 28 'We believe that our bill provides that the employee must receive compensation for such activities. 29 'Mr. McGrath. * * * Then we can clear that point up by reiterating that what the committee means is that any amount of time spent in the performance of the type of activity expressed in examples 1 and 2 is to be hereafter regarded as compensable time. 30 'Mr. Cooper. I should certainly say so, as a part of the principal activity. 31 'Mr. McGrath. There are innumerable instances of operations which have to be performed that are not covered in these two particular examples. I think of one at the moment. In certain of our chemical plants workers are required to put on special clothing and to take off their clothing at the end of the workday, and in some of the plants they are required to take shower baths before they leave. Does the Senator regard such activity as that as coming within the compensable workday? 32 'Mr. Cooper. I am very happy that the Senator has asked the question, because I believe it gives the opportunity of drawing a fine distinction between the type of activity which we consider compensable and the type which should not be compensable. In accordance with our intention as to the definition of 'principal activity,' if the employee could not perform his activity without putting on certain clothes, then the time used in changing into those clothes would be compensable as part of his principal activity. On the other hand, if changing clothes were merely a convenience to the employee and not directly related to the specific work, it would not be considered a part of his principal activity, and it follows that such time would not be compensable.' 93 Cong.Rec. 2297—2298. 33 'Mr. Barkley. * * * Suppose that a man is a machinist or a mechanic of some kind. He is required to go to work at 8 o'clock. Let us assume for a moment that he is not a member of an organization. He is required to enter upon the actual labor, which might be termed his principal employment, at 8 o'clock in the morning and to spend 8 hours at such principal employment. But let us suppose that his employer requires him to be on the grounds and within the shop at 7:30 in the morning in order that he may spend half an hour sharpening and preparing the tools with which he himself or his colleagues in the factory are to work. Can anybody say that under those circumstances the 40-hour work-week has been complied with, as intended by the Fair Labor Standards Act? If he is required to do that every day, instead of working 8 hours a day he will be working 8 1/2 hours a day. If he works 6 days a week, instead of 40 hours a week he will be working more than 50 hours, every moment of which he is under the control of his employer, working with tools which belong to his employer, and he must abide by his orders or run the risk of discharge from his employment. 34 'Is that a part of his principal employment, or is that preliminary; or, if he is required to do it after the close of the shop in the afternoon, is that a part of the 'postliminary' work for which there is to be no compensation unless there is a contract or unless it has been the practice and custom for the employer to pay for the extra work done at his command? 35 'Mr. Cooper. The distinguished Senator has perhaps not had the opportunity to read the report of the committee. Let me say that on page 48 of the report of the committee that exact situation, or one as nearly comparable to it as probably could be cited, is discussed. In the report it is clearly stated that under such circumstances it is the intention of the framers of the bill that such activities shall be compensable, as a part of the principal activity.' 93 Cong.Rec. 2350. 1 The only exception was one injured employee who, because of the danger of infection to his wounded foot in a common shower, bathed at his home which is about five blocks from the plant. 2 'Sec. 4. * * * '(a) Except as provided in subsection (b), no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act— '(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and '(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. '(b) Notwithstanding the provisions of subsection (a) which relieve an employer from liability and punishment with respect to an activity, the employer shall not be so relieved if such activity is compensable by either— '(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or '(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee is employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.' 61 Stat. 86, 29 U.S.C. § 254, 29 U.S.C.A. § 254. 3 § 1(a), 61 Stat. 84, 29 U.S.C. § 251(a), 29 U.S.C.A. § 251(a). 4 'Sec. 2. * * * '(a) No employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act (in any action or proceeding commenced prior to or on or after the date of the enactment of this Act (May 14, 1947)), on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any activity of an employee engaged in prior to the date of the enactment of this Act, except an activity which was compensable by either— '(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or '(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee was employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer. * * *' 61 Stat. 85, 29 U.S.C. § 252, 29 U.S.C.A. § 252. 5 See the colloquy quoted in an appendix to this opinion. 76 S.Ct. 335. 6 See Remarks of Representative Gwynne, 93 Cong.Rec. 4388 4389; Remarks of Representative Walter, id., at 4389; Remarks of Representative Michener, ibid. 7 'Sec. 3(o). Hours Worked.—In determining for the purposes of sections 6 and 7 the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.' 63 Stat. 911, 29 U.S.C. § 203(o), 29 U.S.C.A. § 203(o). 8 'Sec. 16(c). Any order, regulation, or interpretation of the Administrator of the Wage and Hour Division or of the Secretary of Labor, and any agreement entered into by the Administrator or the Secretary, in effect under the provisions of the Fair Labor Standards Act of 1938, as amended, on the effective date of this Act, shall remain in effect as an order, regulation, interpretation, or agreement of the Administrator or the Secretary, as the case may be, pursuant to this Act, except to the extent that any such order, regulation, interpretation, or agreement may be inconsistent with the provisions of this Act, or may from time to time be amended, modified, or rescinded by the Administrator or the Secretary, as the case may be, in accordance with the provisions of this Act.' 63 Stat. 920, 29 U.S.C.A. § 208 note. 9 29 CFR 790.8.

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350 U.S. 318 76 S.Ct. 386 100 L.Ed. 364 W. A. SHIELDS, Petitioner,v.ATLANTIC COAST LINE RAILROAD COMPANY. No. 150. Argued Jan. 19, 1956. Decided Feb. 27, 1956. Mr. Truman M. Hobbs, Montgomery, Ala., for petitioner. Mr. Norman C. Shepard, Wilmington, N.C., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 Petitioner, an independent contractor in the business of unloading gasoline, was instructed by the consignee to unload a tank car of gasoline which had been hauled by respondent Atlantic Coast Line and which was located at the time on a siding in respondent's freight yards. In order to release the gasoline through a hose attached to the bottom of the car, it was necessary to go to the dome on top of the car, remove the dome cap, and open a valve inside the dome. While petitioner and his helper were engaged in opening the valve, the board on which they were standing broke and petitioner fell, sustaining injuries. There is no dispute that the board was defective. It was a wooden board over seven feet long attached to the side of the tank near the top just below the dome by means of two triangular steel braces extending from the side of the tank at either end of the board. 2 The question presented here is whether this device, which for convenience we shall call a dome running board, is a safety appliance within the meaning of §§ 2 and 3 of the Safety Appliance Act of 1910. Act of April 14, 1910, c. 160, §§ 2 and 3, 36 Stat. 298, 45 U.S.C. §§ 11 and 12, 45 U.S.C.A. §§ 11, 12. 3 Petitioner brought suit in the District Court, alleging in one count of his amended complaint absolute liability for a violation of the Act and in a second count common-law negligence. The jury returned a general verdict in his favor. The Court of Appeals reversed and remanded for a new trial on the negligence count alone, holding that the trial court erred in instructing that the dome running board was a safety appliance. 220 F.2d 242.1 We granted certiorari because of the importance of the questions raised as to the proper interpretation of the Safety Appliance Act. 350 U.S. 819, 76 S.Ct. 61. 4 Section 2 of the Safety Appliance Act of 1910 provides in part: 5 '* * * all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards * * *.' Section 3 provides: 6 'That within six months from the passage of this Act the Interstate Commerce Commission, after hearing, shall designate the number, dimensions, location, and manner of application of the appliances provided for by section two * * * and thereafter said number, location, dimensions, and manner of application as designated by said commission shall remain as the standards of equipment to be used on all cars subject to the provisions of this Act, unless changed by an order of said Interstate Commerce Commission * * * and failure to comply with any such requirement of the Interstate Commerce Commission shall be subject to a like penalty as failure to comply with any requirement of this Act * * *.'2 7 Under the authority of § 3, the Commission in 1911 promulgated regulations still in force providing in detail for one running board running around the perimeter, or at least the full length of the sides, of tank cars.3 Such a board enables a trainman to walk the length of a tank car between cars adjoining it on either end. The regulations make no mention whatever by any name of dome running boards. Petitioner nevertheless contends that the dome running board is a required running board affording him protection under § 2. 8 The obvious purpose of a dome running board is to provide a secure flooring for those who must perform operations in connection with the tank car dome. Clearly the dome running board has major importance in loading and unloading operations. But a railroad man of over twenty-five years' experience testified that it also may be used to stand on in order to pass hand signals or repair minor troubles occurring while the train is en route. The dome running board is an integrated part of the exterior equipment of a tank car;4 it functions as a permanently attached outside 'floor' near the dome of the car. The testimony showed that railroad men, including respondent's employees often refer to the dome running board as a running board. We hold that it comes within the meaning of the term 'running boards' as used in § 2. 9 The fact that in Commission in its 1911 regulations under § 3 has not specified uniform standards for dome running boards is not a binding administrative determination that they are not running boards for the purposes of § 2. The reason for the omission is apparently the Commission's view that only appliances affording safety while the train is moving need be standardized. But there is no showing that the regulations purport to exhaust by implication each category of statutory appliances listed in § 2. Omission of dome running boards of itself shows no more than that the Commission has not standardized all possible running boards within § 2. Davis v. Manry, 266 U.S. 401, 45 S.Ct. 163, 69 L.Ed. 350, is consistent with our view. There the Court itself interpreted the language in § 2 requiring grab irons 'on their roofs' of 'cars having ladders' to apply only to cars having roofs. It then pointed to the Commission's failure to standardize a grab iron over a standardized ladder on a tender without a roof only as a supporting 'practical construction' of the section. Moreover, the Commission in that case, having standardized the ladder, had no alternative but to interpret the statutory word 'roofs' by either standardizing a grab iron or not standardizing it. Here no such practical construction is implied by the failure to standardize. 10 Even if the dome running board be properly characterized as a running board, respondent contends that, since § 2 refers to 'cars requiring * * * secure running boards,' the Commission's failure to standardize dome running boards under § 3 constitutes an administrative determination that they are not required within the meaning of § 2. The purpose of § 3 was to provide uniformity in the location and characteristics of those appliances upon which railroad men, working 'always, in haste, and often in darkness and storm,' must 'instinctively' rely in the hazards of their employment. Illinois Central R. Co. v. Williams, 242 U.S. 462, 466, 37 S.Ct. 128, 129, 61 L.Ed. 437.5 Effectuation of such a purpose would require standardization of running boards which extend the length of train cars. But considerations of administrative expertise railroad men, working 'always in haste, applicable to the effectuation of the purpose of § 2. The purpose of the latter section was 'to convert the general legal duty of exercising ordinary care to provide' safety appliances on cars 'requiring (them) for their proper use' into a 'statutory, an absolute and imperative duty, of making them 'secure." Illinois Central R. Co. v. Williams, supra. The purpose of § 3 is to standardize the appliances required by § 2. But it does not follow that appliances necessary and furnished for the safe use of the car, although not standardized under § 3, are not within the sweep of § 2. Clearly, those who work on train cars may necessarily have to rely on the security of a dome running board, although the purposes of that appliance may not require any unhesitating reliance on its uniform characteristics. 11 In the Williams case, supra, this Court held that the Commission's statutory power to postpone the effective date of its standardization regulations under § 3 did not suspend the railroad's duty under § 2 to make appliances secure. There was no question that the appliance in Williams was required, but the teaching of the case is that Commission action under § 3 does not exhaust the commands of § 2. See also Southern Pac. Co. v. Carson, 9 Cir., 169 F.2d 734, holding a railroad liable under § 2 for defects in an independent wooden club used to help turn a brake wheel where the wheel itself complied with the Commission's regulations, which made no mention of the club. We conclude that failure of the Commission to standardize the dome running board need not mean that it was not a required running board under § 2. To hold otherwise would relieve railroads from the absolute duty under § 2 to make safety appliances secure whenever new appliances are adopted which have not yet been standardized by the Commission. 12 Both the respondent and the manufacturer of the tank car considered that the dome running board was required for the proper use of the car. The railroad industry itself has recognized that tank cars require secure dome running boards. The Association of American Railroads safety appliance standards, largely identical to the Interstate Commerce Commission regulations, contain detailed uniform specifications for dome running boards,6 and compliance with those safety standards is required for interchange of cars between lines.7 Petitioner used the dome running board, not simply because it happened to be there, but also because it had to be there for him to perform his duties safely, and performance of his duties was essential to the operation of the tank car. At best, appliances standardized in Commission regulations represent the minimum of safety equipment, and there is no prohibition of additional safety appliances. If a dome running board is provided by the railroad or the makers of the car and used by the railroad as an appliance necessary for the use of the car, it must be a safe board as required by § 2. Cf. Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 37, 36 S.Ct. 482, 483, 60 L.Ed. 874. 13 The Commission, in a brief filed here, contends that only appliances designed to insure safety while the train is in movement are within § 2, and, therefore, a dome running board cannot be a statutory running board. No case is cited to support this construction. Nothing in the language of § 2 itself or in its legislative history indicates that it should be read so narrowly. Whether or not an appliance is designed to afford protection while the train is moving may provide the Commission with an appropriate guide for deciding which appliances should be standardized under § 3. But there is no reason to import such a distinction into § 2 in order to deny the humane benefits of the Act to those who perform dangerous work on train cars that are not moving. Section 2 is not limited to such running boards as are required only in the movement of the train. The dome running board here was required for the use of the car. Section 2 required it to be safe, although regulations pursuant to § 3 had not standardized it. 14 There is no merit in respondent's contention that, since petitioner is not one of its employees, no duty is owed him under § 2 of the Act. Having been upon the dome running board for the purpose of unloading the car, he was a member of one class for whose benefit that device is a safety appliance under the statute. As to him, the violation of the statute must therefore result in absolute liability. Coray v. Southern Pacific Co., 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208; Brady v. Terminal Railroad Ass'n, 303 U.S. 10, 58 S.Ct. 426, 82 L.Ed. 614; Fairport, P. & E.R. Co. v. Meredith, 292 U.S. 589, 54 S.Ct. 826, 78 L.Ed. 1446; Louisville & N.R. Co. v. Layton, 243 U.S. 617, 37 S.Ct. 456, 61 L.Ed. 931. The judgment below must be reversed and the judgment of the District Court reinstated. 15 Reversed. 16 Mr. Justice HARLAN took no part in the consideration or decision of this case. 17 Mr. Justice REED, with whom Mr. Justice FRANKFURTER and Mr. Justice BURTON join, dissenting. 18 The ultimate question presented by this case is whether the defective dome platform1 which caused petitioner's injury is a safety appliance within the meaning of § 2 of the Act of April 14, 1910, c. 160, 36 Stat. 298, 45 U.S.C. § 11, 45 U.S.C.A. § 11. The Court holds that the dome platform is a 'running board' within the meaning of § 2, and that the tank car involved here was a car 'requiring' the platform. 19 First, it can hardly be said that the dome platform is a running board as that term is used in § 2 of the Act. It appears that every device regulated by the Safety Appliance Act is principally designed for use by, and for the protection of, trainmen while railroad cars are in motion. Certainly there is no indication that this legislation was meant to regulate all devices and appliances employed on railroad cars; and there is nothing in the legislative history upon which to base a belief that equipment designed principally for loading and unloading cars, such as a dome platform, was to be covered by the statute. Moreover, while a dome platform might be loosely spoken of as a running board, it does not appear that it falls within the technical definition of that term as used in the trade. A running board is a 'plane surface, made of boards or special metal structure, for trainmen to walk or run on.'2 The platform involved here is used principally to stand on to give convenient access to the top of the dome. 20 However, the principal ground upon which I dissent is aside from the question whether a dome platform is a 'running board' under § 2. Assuming that it is, it does not follow that the respondent violated the Act. Pursuant to such an assumption, I will read § 2 of the statute as though the words 'dome platforms' appear in the place of 'running boards.' But even then not every defective dome platform is prohibited by the statute. So far as pertinent here, § 2 provides that 'all cars requiring * * * secure running boards (viz., dome platforms) shall be equipped with such * * *.' The congressional mandate then is merely that railroad carriers shall provide secure dome platforms on cars 'requiring' them. No other dome platforms would be safety appliances under this Act. Therefore, the inquiry here narrows to whether this tank car 'required' a dome platform. 21 Section 2 does not itself indicate any means for determining which cars require running boards (dome platforms), and thus does not specify which dome platforms, if any, are safety appliances.3 However, § 3 of the Act provides that within six months 'the Interstate Commerce Commission, after hearing, shall designate the number, dimensions, location, and manner of application of the appliances provided for by section two of this Act * * *'4 and that those designations are to remain as railroad equipment standards unless changed by the Commission.5 It seems inescapable, just as a matter of logic, that since § 3 gave to the Commission the duty to determine, among other things, how many of the 'required' § 2 appliances shall be used and where they shall be placed, the Commission was thereby meant to determine which are cars 'requiring' running boards (dome platforms), and therefore which dome platforms, if any, are safety appliances. Moreover, if it be assumed that the statute is ambiguous on this matter, the other alternative is to leave to the courts the determination of which types of cars require dome platforms, or any other § 2 equipment except sill steps and hand-brakes, to be revealed ad hoc. The creation of such uncertainties is not to be favored. But in view of the existence of the Interstate Commerce Commission, an administrative expert in the safety requirements of the railroad industry, coupled with the explicit delegation to the Commission by § 3 of the authority to designate the number and location of the appliances required by § 2, it would seem difficult to conclude anything but that Congress made railroads responsible as insurers only for such running boards as the Commission, not the courts, might determine are required. This purpose of Congress is even more clear from the words of the Act itself than it is from the Code sections, codified long after the regulations were issued. 22 This leads me to examine the regulations promulgated by the Interstate Commerce Commission pursuant to § 3 of the Act. As previously noted, that section required the Commission to prescribe the uniform standards applicable to the safety appliances set forth in § 2. Nowhere in the regulations (49 CFR § 131.1 et seq.) does the Commission prescribe dome platform equipment for tank cars.6 It follows that tank cars are not cars 'requiring' dome platforms. Therefore, the absence of such equipment on tank cars, or the presence of such equipment in a defective condition, should not constitute a violation of the Act. Of course, this would not mean that railroads could with impunity employ insecure dome platforms on their tank cars, or for that matter, any defective equipment not covered by the Safety Appliance Act. That Act does not supplant the basic law of negligence, and this petitioner has preserved his right of recovery for any negligence. 23 The fact that the Association of American Railroads prescribes dome platforms for tank cars in its safety appliance standards7 does not suggest a different result. The Association is not entrusted with the enforcement of this statute or with its reach; and while it is commendable that it has adopted standards in this instance which require equipment beyond that which may be covered by the Safety Appliance Act, if I am correct as to the duties of the Commission, the action of the Association cannot supplant the determinations of the Commission. 24 This Court has never before held that railroad car equipment not specifically required by statute or regulation can be treated as governed by the Safety Appliance Act. That issue has been ruled upon in accordance with this dissent in Central Vermont R. Co. v. Perry, 1 Cir., 10 F.2d 132. There the trial court had instructed the jury affirmatively on the application of the Safety Appliance Act with respect to the absence of a footboard across the rear of a tender. Without deciding whether the footboard was a running board within the meaning of § 2 of the 1910 Act, and evidently upon the assumption that it was, the court said: 25 'As the Safety Appliance Act and its supplements do not require a footboard at the rear end of the tender of a shifting engine and the regulations of the Interstate Commerce Commission do not require one, * * * we are of the opinion that the court erred in its instruction to the jury.' Id., at page 137. 26 The position herein expressed is not contrary to Illinois Central R. Co. v. Williams, 242 U.S. 462, 37 S.Ct. 128, 61 L.Ed. 437. That case involved a defective handhold at the top of a ladder on a boxcar. Section 2 of the Act provides for secure ladders on all cars 'requiring' them, and, on 'all cars having ladders,' it provides for secure handholds at the top of the ladders. The Court commented that 'A box car could not properly be used without a secure ladder and * * * all cars having ladders must be equipped with secure hand holds * * *.' Id., 242 U.S. at page 464, 37 S.Ct. at page 128. But I do not understand this to have been a holding by the Court that, apart from any Interstate Commerce Commission determination, boxcars require secure ladders. At most the comment was a dictum, since it was clearly not necessary to decide whether the car involved required a secure ladder. The car had a ladder, and all cars 'having ladders shall also be equipped with secure hand holds or grab irons on their roofs * * *.' Moreover, as later appears in that case, the Commission had previously issued an order designating the number, dimensions, location, and manner of application of ladders on boxcars. While that order granted an extension of time of five years within which to comply with the standards therein prescribed, it nonetheless constituted a Commission determination that boxcars require secure ladders within the meaning of § 2. For similar reasons Teaxs & Pacific R. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874, is not contrary to this dissent. See Atchison, T. & S.F.R. Co. v. Scarlett, 300 U.S. 471, 57 S.Ct. 541, 81 L.Ed. 748. 27 Finally, continuing to assume that a dome platform is a running board under § 2, and now upon the further assumption that the courts were meant to decide which cars require them, a dissent is still indicated. In these circumstances, consistent with the normal rule, great respect should be given to the interpretation of an act by the administrative agency designated to administer it.8 As has been observed, the regulations of the Interstate Commerce Commission prescribing the uniform standards applicable to § 2 safety appliances omit to mention dome platform equipment for tank cars. Thus the Commission does not understand dome platforms to be 'required' for tank cars under § 2. If it had so understood, it is reasonable to believe it would have provided standards for such equipment in its regulations. Moreover, at the request of the Court, the Commission advised by brief in this case that the dome platform was not even a running board, much less a required running board. Following this Court's ruling in Davis v. Manry, 266 U.S. 401, 45 S.Ct. 163, 69 L.Ed. 350, this 'construction by the Commission—the tribunal to which the application of section 2 was entrusted and which would be solicitous to enforce it—' should be followed. Id., 266 U.S. at pages 404—405, 45 S.Ct. at page 164. 28 For these reasons the judgment should be affirmed. 1 The action against Southern Railway Co., a co-defendant, as delivering carrier of the car was dismissed. 2 Section 3 as it appears in the United States Code omits, presumably as executed, the language containing the statutory command to the Commission to make its original standardization regulations. 45 U.S.C. § 12, 45 U.S.C.A. § 12. 3 49 CFR §§ 131.8(b), 131.9(c), 49 CFR § 131.7 covers 'Tank cars with side platforms' and contains no provision for 'running boards.' The car in question here does not come within § 131.7. 4 See Car Builders' Cyclopedia (18th ed. 1949—1951), 249 254, especially the diagrams, at 252—253, of a tank car with a dome running board, there called a 'dome platform,' similar to the present car. 5 See also H.R.Rep. No. 37, 61st Cong., 2d Sess; S.Rep. No. 250, 61st Cong., 2d Sess. 3. 6 A.A.R. Safety Appliances for Tank Cars Built after May 1, 1917, Car Builders' Cyclopedia (19th ed. 1953), 938, 939—942. 7 A.A.R. Code of Rules for the Interchange of Traffic (1952 ed.), Rules 3(s) (1), 3(r)(7). 1 The device involved in this case is denominated a dome platform in the Car Builders' Cyclopedia (18th ed. 1949—1951) 253. 2 Car Builders' Cyclopedia (19th ed. 1953) 51. Substantially the same definition of the term appears in each of the other eighteen editions of this volume, the first of which was published in 1879 as 'The Car-Builders' Dictionary.' That edition was published so as to alleviate the 'inconvenience, confusion, and delay * * * caused * * * by want of common names for the different parts of (railroad) cars.' Preface, The Car-Builder's Dictionary (1879). See also note 1, supra. 3 Section 2 does, however, specify which cars require sill steps and handbrakes. 'All cars must be equipped with secure sill steps and efficient hand brakes * * *.' (Italics supplied.) Assuming that 'sill steps' and 'hand brakes' include all devices falling within those terms when used generically, it would seem that all such devices are safety appliances and and must meet the statutory standard of 'secure' or 'efficient.' Cf. Southern Pac. Co. v. Carson, 9 Cir., 169 F.2d 734. 4 The quoted phrase does not appear in 45 U.S.C. § 12, 45 U.S.C.A. § 12, the Code section corresponding to § 3 of the Act. The phrase evidently was omitted from the Code as being fully executed at the time the Code was compiled. 5 The Act became law on Paril 14, 1910. Thus, the Commission had until October 13, 1910, within which to adopt its standardizing regulations. Such regulations were adopted on October 13, 1910, by Commission order. Subsequently, on March 13, 1911, the Commission adopted another order superseding the order of October 13, 1910. 49 CFR § 131.1 et seq. However, the effective date of the mandate of § 2 was, by its terms, not until July 1, 1911, over three months after the final promulgation of the Commission regulations. There was thus no time lag, either actual or contemplated, between the effective date of § 2 and the I.C.C. determinations. 6 49 CFR §§ 131.8(b) and 131.9(c) are the only regulations relating to running boards on tank cars, and it is clear, as well as conceded, that those subsections do not require a running board of any sort at or near the dome of these cars. 7 A.A.R. Safety Appliances for Tank Cars Built after May 1, 1917, Car Builders' Cyclopedia (19th ed. 1953) 939—942; A.A.R. Code of Rules for the Interchange of Traffic (1952 ed.), Rules 3(s)(1), 3(r)(7). 8 United States v. American Trucking Ass'ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 1067, 84 L.Ed. 1345.

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350 U.S. 308 76 S.Ct. 395 100 L.Ed. 347 COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.SOUTHWEST EXPLORATION CO. UNITED STATES of America, Petitioner, v. HUNTINGTON BEACH CO. Nos. 286, 287. Argued Jan. 23, 24, 1956. Decided Feb. 27, 1956. Mr. Hilbert P. Zarky, Washington, D.C., for petitioners. Mr. Melvin D. Wilson, Los Angeles, Cal., for respondent Southwest Exploration Co. Mr. Harry R. Horrow, San Francisco, Cal., for respondent Huntington Beach Co. Mr. Justice CLARK delivered the opinion of the Court. 1 The Southwest Exploration Co., respondent in No. 286, contracted to develop certain oil deposits lying off the coast of California by whipstock drilling from sites located on the property of adjacent upland owners. Southwest agreed to pay to such owners 24 1/2% of the net profits for the use of their land. Both Southwest and the upland owners sought to take the statutory depletion allowance of 27 1/2% on this share of the profits. The Tax Court decided that Southwest was entitled to the depletion allowance, 18 T.C. 961, and the Ninth Circuit affirmed, 220 F.2d 58. In the other case, the Court of Claims held that one of the upland owners, Huntington Beach Co., respondent in No. 287, was entitled to the depletion allowance on its share of the net income, 132 F.Supp. 718, 132 Ct.Cl. 427. We granted certiorari in both cases, 350 U.S. 818, 76 S.Ct. 83, because both the drilling company and the upland owners cannot be entitled to depletion on the same income. We agree with the Court of Claims.1 2 The California State Lands Act of 1938 provided that the State's offshore oil might be extracted only from wells drilled on filled lands or slant drilled from upland drill sites to the submerged oil deposits.2 Other provisions of the same statute required that 'derricks, machinery, and any and all other surface structures, equipment and appliances' be located only on filled lands or uplands. It was further provided that the state commission might require each prospective bidder for such a state lease to furnish, as a condition precedent to consideration of his bid, satisfactory evidence of 'present ability to furnish all necessary sites and rights of way for all operations contemplated under the provisions of the proposed leased.'3 3 In 1938 California published notice of its intention to receive bids for the lease of certain oil lands pursuant to this statute. At the time Southwest—a corporation organized in 1933 but completely inactive until the transaction at issue here—did not own, lease, operate or control any of the uplands adjacent to the area of oil deposits. It is agreed that there were no filled lands available. Southwest entered into three agreements with the upland owners, and was granted the right of ingress to and egress from the designated uplands and the right to construct, use and maintain all equipment necessary for drilling on the same lands. The upland owners reserved to themselves the right to give easements or subsurface well crossings in the uplands, except that they would not allow such easements for the purpose of drilling into the off-shore oil deposits while Southwest retained an interest granted to it by state easement. Southwest's rights were expressly subject to all rights previously granted by the upland owners. The agreements defined 'net profits' and provided that Southwest would pay a total of 24 1/2% of its net profits from extraction and sale of oil to the upland owners.4 It was also provided that the upland owners did not acquire a share in the lease or oil deposit by virtue of the last agreement and that it was not the intention of the parties to create a partnership relationship. 4 As a result of these agreements, the upland owners endorsed Southwest's bid for a lease submitted to the State of California. Southwest, as the only bidder, was granted 'Easement No. 392' by the State in consideration of the 'royalty to be paid, the covenants to be performed, and the conditions to be observed by the Grantee.' One such condition was that set out in paragraph (1): 5 'That each well drilled pursuant to the terms of this agreement shall be slant drilled from the uplands to and into the subsurface of the State lands. Derricks, machinery, and any and all other surface structures, equipment and appliances shall be located only upon the uplands and all surface operations shall be conducted therefrom.' 6 The agreement further provided that if Southwest should 'default in the performance or observance of any of the terms, covenants and stipulations hereof', the State might re-enter, cancel the agreement or close down wells not being operated according to the agreement. 7 The wells drilled pursuant to this lease have produced oil continuously since 1939. In No. 286, Southwest Exploration Co., the tax years 1939 through 1945 are involved. If Southwest may claim the depletion allowance on the upland owner's share of the profits during this period, its tax liability is reduced by approximately $175,000. In No. 287, Huntington Beach Co., the upland owner is claiming a tax refund of $135,000 for the year 1948 alone.5 8 An allowance for depletion has been recognized in our revenue laws since 1913. It is based on the theory that the extraction of minerals gradually exhausts the capital investment in the mineral deposit. Presently, the depletion allowance is a fixed percentage of gross income which Congress allows to be excluded; this exclusion is designed to permit a recoupment of the owner's capital investment in the minerals so that when the minerals are exhausted, the owner's capital is unimpaired. The present allowance, however, bears little relationship to the capital investment, and the taxpayer is not limited to a recoupment of his original investment. The allowance continues so long as minerals are extracted, and even though no money was actually invested in the deposit. The depletion allowance in the Internal Revenue Code of 1939 is solely a matter of congressional grace; it is limited to 27 1/2% of gross income from the property after excluding from gross income 'any rents or royalties' paid by the taxpayr with respect to the property.6 9 The complexities of oil operations and risks incident to prospecting have led to intricate, multiparty transactions, so that it is often difficult to determine which parties are entitled to a part of the allowance. The statute merely provides in § 23(m) that in the case of leases the depletion allowance should be 'equitably apportioned between the lessor and lessee.' 10 In determining which parties are entitled to depletion on oil and gas income, this Court has relied on two interrelated concepts which were first formulated in Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489. There, the taxpayer, a lessee of certain oil and gas properties, had transferred his interest in these properties to two oil companies in return for a cash bonus, a future payment to be made 'out of one-half of the first oil produced and saved', and an additional royalty of one-eight of the oil produced and saved. In upholding the taxpayer's right to depletion on all such income, the Court based its decision on the grounds that a taxpayer is entitled to depletion where he has: (1) 'acquired, by investment, any interest in the oil in place,' and (2) secured by legal relationship 'income derived from the extraction of the oil, to which he must look for a return of his capital.' 287 U.S. at page 557, 53 S.Ct. at page 226, 77 L.Ed. 489. 11 These two factors, usually considered together, constitute the requirement of 'an economic interest.' This Court has found the requisite interest in the oil in place to have been retained by the assignor of an oil lease, Thomas v. Perkins, 301 U.S. 655, 57 S.Ct. 911, 81 L.Ed. 1324, the lessor of oil properties for a share of net profits, Kirby Petroleum Co. v. Commissioner, 326 U.S. 599, 66 S.Ct. 409, 90 L.Ed. 343, and the grantor of oil lands considered as an assignor of drilling rights, Burton-Sutton Oil Co. v. Commissioner, 328 U.S. 25, 66 S.Ct. 861, 90 L.Ed. 1062. The Court found no such interest in the case of a processor of natural gas who had only contracted to buy gas after extraction, Helvering v. Bankline Oil Co., 303 U.S. 362, 58 S.Ct. 616, 82 L.Ed. 897, and in the case of a former stockholder who had traded his shares in a corporation which owned oil leases for a share of net income from production of the leased wells, Helvering v. O'Donnell, 303 U.S. 370, 58 S.Ct. 619, 82 L.Ed. 903. 12 The second factor has been interpreted to mean that the taxpayer must look solely to the extraction of oil or gas for a return of his capital, and depletion has been denied where the payments were not dependent on production, Helvering v. Elbe Oil Land Co., 303 U.S. 372, 58 S.Ct. 621, 82 L.Ed. 904, or where payments might have been made from a sale of any part of the fee interest as well as from production. Anderson v. Helvering, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277. It is not seriously disputed here that this requirement has been met. The problem revolves around the requirement of an interest in the oil in place. 13 It is to be noted that in each of the prior cases where the taxpayer has had a sufficient economic interest to entitle him to depletion, he has once had at least a fee or leasehold in the oil-producing properties themselves. No prior depletion case decided by this Court has presented a situation analogous to that here, where a fee owner of adjoining lands necessary to the extraction of oil is claiming a depletion allowance. 14 Southwest contends that there can be no economic interest separate from the right to enter and drill for oil on the land itself. Since the upland owners did not themselves have the right to drill for offshore oil, it is argued that respondent—who has the sole right to drill-has the sole economic interest. It is true that the exclusive right to drill was granted to Southwest, and it is also true that the agreements expressly create no interest in the oil in the upland owners. But the tax law deals in economic realities, not legal abstractions, and upon closer analysis it becomes clear that these factors do not preclude an economic interest in the upland owners. 15 Southwest's right to drill was clearly a conditional rather than an absolute grant. Without the prior agreements with the upland owners, Southwest could not even have qualified as a bidder for a state lease. Permission to use the upland sites was the express condition precedent to the State's consideration of Southwest's bid, and it was one of the express conditions on which 'Easement No. 392' was granted to Southwest. For a default in that condition the State retained the right to re-enter or to cancel the lease. Thus it is seen that the upland owners have played a vital role at each successive stage of the proceedings. Without their participation there could have been no bid, no lease, no wells and no production. 16 But Southwest contends that the upland owners have contributed merely property which was useful but not necessary to the drilling operation. The facts are to the contrary. State law required that the wells be drilled either on the uplands or on filled lands, and there were no filled lands available. By hindsight Southwest now suggests that it might have constructed a drilling island which might have been considered as filled land under the statute. Then, too, perhaps the State itself might have changed the law or condemned the uplands under existing law. But none of these possibilities occurred. The fact is that the drilling arrangement was achieved and oil produced in the only way that it could have been, consistent with state law and the express requirements of the State's lease. 17 Recognizing that the law of depletion requires an economic rather than a legal interest in the oil in place, we may proceed to the question of whether the upland owners had such an economic interest here. We find that they did. Proximity to the offshore oil deposits and effect of the state law combined to make the upland owners essential parties to any drilling operations. This controlling position greatly enhanced the value of their land when extraction of oil from the State's offshore fields became a possibility. The owners might have realized this value by selling their interest for a stated sum and no problem of depletion would have been presented. But instead they chose to contribute the use of their land in return for rental based on a share of net profits. This contribution was an investment in the oil in place sufficient to establish their economic interest. Their income was dependent entirely on production, and the value of their interest decreased with each barrel of oil produced. No more is required by any of the earlier cases. 18 Southwest contends, finally, that if depletion is allowed to the upland owners in this case, it would be difficult to limit the principle in instances of strangers 'disassociated from the lease' who may have contributed an essential facility to the drilling operation in return for a share of the net profits. But those problems are not before us in this case where the upland owners could hardly be said to be 'disassociated from the lease.' We decide only that where, in the circumstances of this case, a party essential to the drilling for and extraction of oil has made an indispensable contribution of the use of real property adjacent to the oil deposits in return for a share in the net profits from the production of oil, that party has an economic interest which entitles him to depletion on the income thus received. 19 For the foregoing reasons the judgment in No. 286, as to Southwest Exploration Company, is reversed and that in No. 287, as to Huntington Beach Company, is affirmed. 20 No. 286, Reversed. 21 No. 287, Affirmed. 22 Mr. Justice DOUGLAS dissents. 23 Mr. Justice HARLAN took no part in the consideration or decision of these cases. 1 In the courts below, the Commissioner took technically inconsistent positions, opposing the depletion allowance in both cases and losing in both. Before this Court the Commissioner urged that depletion be denied the drilling company and allowed to the upland owners on the latter's 24 1/2% of net profits. 2 Cal.Stat. (Extra Session 1938), c. 5, § 87, West's Ann.Public Resources Code, § 6873. 3 Id., § 89, Public Resources Code, § 6874. 4 This share was the total of the following percentages of net profits to be paid to the three upland owners: 17.75% to Huntington Beach Company. 1.576% to Pacific Electric Railway Company. 5.174% to Pacific Electric Land Company. 5 For the tax years 1942 through 1946, Huntington Beach Company claimed and was allowed to deduct depletion on its share of the net profits. The United States is seeking recovery of this money in a suit now pending in the United States District Court for the Northern District of California, Southern Division. The amount at issue there is something over $500,000. 6 Pertinent sections of the Internal Revenue Code of 1939 provide: § 23. Deductions from gross income. 'In computing net income there shall be allowed as deductions: '(m) Depletion. In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. * * * In the case of leases the deductions shall be equitably apportioned between the lessor and lessee. * * * For percentage depletion allowable under this subsection, see section 114(b), (3) and (4).' 53 Stat. 12, 14, 26 U.S.C. § 23, 26 U.S.C.A. § 23. § 114. Basis for depreciation and depletion. '(b) Basis for depletion. '(3) Percentage depletion for oil and gas wells. In the case of oil and gas wells the allowance for depletion under section 23(m) shall be 27 1/2 per centum of the gross income from the property during the taxable year, excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 per centum of the net income of the taxpayer (computed without allowance for depletion) from the property, except that in no case shall the depletion allowance under section 23(m) be less than it would be if computed without reference to this paragraph.' 53 Stat. 45, 26 U.S.C. § 114, 26 U.S.C.A. § 114.

1112

350 U.S. 348 76 S.Ct. 368 100 L.Ed. 388 FEDERAL POWER COMMISSION, Petitioner,v.SIERRA PACIFIC POWER COMPANY. PACIFIC GAS AND ELECTRIC COMPANY, Petitioner, v. SIERRA PACIFIC POWER COMPANY. Nos. 51, 53. Argued Nov. 8, 1955. Decided Feb. 27, 1956. Motion to Amend Denied May 28, 1956. See 351 U.S. 946, 76 S.Ct. 843. Mr. Howard E. Wahrenbrock, Washington, D.C., for petitioner Federal Power Com'n. Mr. F. T. Searls, San Erancisco, Cal., for petitioner Pacific Gas & El. Co. Mr. William C. Chanler, New York City, for respondent. Mr. Justice HARLAN delivered the opinion of the Court. 1 This case presents questions under Title II of the Federal Power Act, 49 Stat. 847, 16 U.S.C. § 824 et seq., 16 U.S.C.A. § 824 et seq., which are in part similar to those we have decided today under the Natural Gas Act, 15 U.S.C.A. § 717 et seq., in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373. The pertinent provisions of the Federal Power Act, set forth in the margin,1 are §§ 205(c), (d), and (e), and 206(a), which are substantially identical to §§ 4(c), (d), and (e), and 5(a), respectively, of the Natural Gas. Act.2 2 Respondent Sierra Pacific Power Company (Sierra) distributes electricity to consumers in northern Nevada and eastern California. For many years, it has purchased the major part of its electric power from petitioner Pacific Gas and Electric Company (PG&E), a 'public utility' subject to regulation under Part II of the Federal Power Act. In 1947 Sierra, faced with increased postwar demands and consumer agitation for cheaper power, began negotiating for power from other sources, including the Federal Bureau of Reclamation, which at the time had unused capacity at Shasta Dam. To forestall the potential competition, PG&E offered Sierra a 15-year contract for power at a special low rate, which offer Sierra finally accepted in June 1948. The contract was duly filed with the Federal Power Commission. 3 Early in 1953, when power from Shasta Dam was no longer available to Sierra, PG&E, without the consent of Sierra, filed with the Commission under § 205(d) of the Federal Power Act a schedule purporting to increase its rate to Sierra by approximately 28%. The Commission, acting under § 205(e), suspended the effective date of the new rate until September 6, 1953, and initiated a proceeding to determine its reasonableness. Sierra was permitted to intervene in the proceeding but its motion to reject the filing on the ground that PG&E could not thus unilaterally change the contract was denied. After completion of the hearings, the Commission, by order dated June 17, 1954, reaffirmed its refusal to reject the filing and held the new rate not to be 'unjust, unreasonable, unduly discriminatory, or preferential.' 7 P.U.R. 3d 256. On Sierra's petition for review, the Court of Appeals for the District of Columbia, holding that the contract rate could be changed only upon a finding by the Commission that it was unreasonable, set aside the Commission's order and remanded the case with instructions to the Commission to dismiss the § 205(e) proceeding, but without prejudice to its instituting a new proceeding under § 206(a) to determine the reasonableness of the contract rate. 96 U.S.App.D.C. 140, 223 F.2d 605. We brought the case here because of the importance of the questions involved in the administration of the Federal Power Act. 349 U.S. 937, 75 S.Ct. 785, 99 L.Ed. 1265. 4 The first question before us is whether PG&E's unilateral filing of the new rate under § 205(d), and the approval of the new rate by the Commission under § 205(e), were effective to supersede PG&E's contract with Sierra. We think not. As the parties concede, the provisions of the Federal Power Act relevant to this question are in all material respects substantially identical to the equivalent provisions of the Natural Gas Act. In United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, decided today, we construed the Natural Gas Act as not authorizing unilateral contract changes, and that interpretation is equally applicable to the Federal Power Act. Accordingly, for the reasons there given, we conclude that neither PG&E's filing of the new rate nor the Commission's finding that the new rate was not unlawful was effective to change PG&E's contract with Sierra. 5 This case, however, raises a further question not present in the Mobile case. The Commission has undoubted power under § 206(a) to prescribe a change in contract rates whenever it determines such rates to be unlawful. While this power is limited to prescribing the rate 'to be thereafter observed' and thus can effect no change prior to the date of the order, the Commission's order here, if based on the necessary findings, could have been effective to prescribe the proposed rate as the rate to be in effect prospectively from the date of the order, June 17, 1954. If the proceedings here satisfied in substance the requirements of § 206(a), it would seem immaterial that the investigation was begun as one into the reasonableness of the proposed rate rather than the existing contract rate. 6 The condition precedent to the Commission's exercise of its power under § 206(a) is a finding that the existing rate is 'unjust, unreasonable, unduly discriminatory or preferential'. Petitioners contend that the Commission did in fact make such a finding. It was stipulated in the proceedings before the Commission that 5.5% was normally a reasonable rate of return for PG&E's operations, that the contract rate would produce a 2.6% rate of return, and that the proposed rate would produce a 4.75% rate of return. The Commission concluded that the proposed rate was not unreasonably high because it provided no more than a fair return and was not unreasonably low because the 0.75% deficiency of its yield from the stipulated reasonable rate of return was not being made up on other sales and was justified in order to retain business the loss of which by PG&E would result in idle facilities. It also concluded that the proposed rate was not unduly discriminatory or preferential, despite substantial differences between it and the rates being charged other customers. While no further findings were necessary in view of the Commission's interpretation of the Act as permitting unilateral contract changes, the Commission went on to say: 7 'However, we may point out that if a finding on the lawfulness of the 1948 contract rate were necessary or appropriate, on the record before us that finding would have to be that the 1948 rate is unreasonably low and therefore unlawful. For none of the evidence in this record warrants a finding that any rate would be reasonable that would produce a return of substantially less than the 4.75% resulting from the proposed rate, which is the minimum PG&E is willing to accept.' 8 It is contended that by this statement the Commission in substance found that the existing contract rate was 'unreasonable' and fixed the proposed rate as 'the just and reasonable rate,' thereby satisfying the requirements of § 206(a). 9 But even accepting this statement as a finding of unreasonableness of the contract rate, the Commission's conclusion appears on its face to be based on an erroneous standard. In short, the Commission holds that the contract rate is unreasonable solely because it yields less than a fair return on the net invested capital. But, while it may be that the Commission may not normally impose upon a public utility a rate which would produce less than a fair return, it does not follow that the public utility may not itself agree by contract to a rate affording less than a fair return or that, if it does so, it is entitled to be relieved of its improvident bargain. Cf. Arkansas Natural Gas Co. v. Arkansas Railroad Comm., 261 U.S. 379, 43 S.Ct. 387, 67 L.Ed. 705. In such circumstances the sole concern of the Commission would seem to be whether the rate is so low as to adversely affect the public interest—as where it might impair the financial ability of the public utility to contunue its service, cast upon other consumers an excessive burden, or be unduly discriminatory. That the purpose of the power given the Commission by § 206(a) is the protection of the public interest, as distinguished from the private interests of the utilities, is evidenced by the recital in § 201 of the Act that the scheme of regulation imposed 'is necessary in the public interest'. When § 206(a) is read in the light of this purpose, it is clear that a contract may not be said to be either 'unjust' or 'unreasonable' simply because it is unprofitable to the public utility. 10 Whether under the facts of this case the contract rate is so low as to have an adverse effect on the public interest is of course a question to be determined in the first instance by the Commission. We shall therefore affirm the order of the Court of Appeals, with instructions to remand the case to the Federal Power Commission for such further proceedings, not inconsistent with this opinion, as the Commission may deem desirable. It is so ordered. 11 Order of Court of Appeals affirmed, with instructions. 1 '§ 205. * * * (c) Under such rules and regulations as the Commission may prescribe, every public utility shall file with the Commission, within such time and in such form as the Commission may designate, and shall keep open in convenient form and place for public inspection schedules showing all rates and charges for any transmission or sale subject to the jurisdiction of the Commission, and the classifications, practices, and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services. "(d) Unless the Commission otherwise orders, no change shall be made by any public utility in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days' notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days' notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published. "(e) Whenever any such new schedule is filed the Commission shall have authority, either upon complaint or upon its own initiative without complaint, at once, and, if it so orders, without answer or formal pleading by the public utility, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the public utility affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect; and after full hearings, either completed before or after the rate, charge, classification, or service goes into effect, the Commission may make such orders with reference thereto as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made at the expiration of such five months, the proposed change of rate, charge, classification, or service shall go into effect at the end of such period, but in case of a proposed increased rate or charge, the Commission may by order require the interested public utility or public utilities to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts are paid, and upon completion of the hearing and decision may by further order require such public utility or public utilities to refund, with interest, to the persons in whose behalf such amounts were paid, such portion of such increased rates or charges as by its decision shall be found not justified. At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable shall be upon the public utility, and the Commission shall give to the hearing and decision of such questions preference over other questions pending before it and decide the same as speedily as posible.' 49 Stat. 851—852, 16 U.S.C. § 824d, 16 U.S.C.A. § 824d. '§ 206. (a) Whenever the Commission, after a hearing had upon its own motion or upon complaint, shall find that any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order." 49 Stat. 852, 16 U.S.C. § 824e, 16 U.S.C.A. § 824e. 2 Set forth as footnote 1 to the opinion in the Mobile case, 350 U.S. 334, 76 S.Ct. 375.

78

350 U.S. 356 76 S.Ct. 366 100 L.Ed. 395 Victor D. GIBSON, Petitioner,v.LOCKHEED AIRCRAFT SERVICE, Inc. No. 42. Argued Dec. 5, 6, 1955. Decided Feb. 27, 1956. Rehearing Denied April 9, 1956. See 350 U.S. 1016, 76 S.Ct. 656. Mr. G. C. Spillers, Jr., Tulsa, Okl., for petitioner. Messrs. Emory A. Cantey, and R. K. Hanger, Fort Worth, Tex., for respondent. PER CURIAM. 1 Petitioner Gibson recovered judgment in a personal injuries action against the lockheed Company in a United States District Court. The Court of Appeals for the Fifth Circuit reversed and remanded for a new trial on the ground that four instructions requested by Lockheed and refused by the trial court should have been given. 217 F.2d 730. We granted certiorari, 349 U.S. 943, 75 S.Ct. 871, 99 L.Ed. 1270, to consider the following questions: 2 (1) Whether Lockheed's objection to the trial court's refusal to give its requested instructions complied with Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A. 3 (2) Whether the refusal of the trial court to charge as requested by respondent Lockheed was prejudicial error requiring reversal. 4 A thorough consideration of the record convinces us that the charge as given by the trial court was both complete and correct. Cf. District of Columbia v. Woodbury, 136 U.S. 450, 466, 10 S.Ct. 990, 996, 34 L.Ed. 472. There was no error in refusing the requested instructions. We consider this to be a case where, in the exercise of our supervisory powers over the lower federal courts, the judgment of the Court of Appeals should be reversed in the interests of justice, and that of the District Court reinstated. Accordingly, we find it unnecessary to consider the question presented as to Rule 51. 5 Reversed. 6 Mr. Justice FRANKFURTER, concurring. 7 The controlling claim on which petitioner sought certiorari was that the decision of the Court of Appeals for the Fifth Circuit disclosed conflict and confusion among the circuits in the application of Rule 51 of the Federal Rules of Civil Procedure. We granted the petition. A critical examination of the 118 decisions on which the petitioner relied in his claim regarding Rule 51 convinces me that there was no such conflict and confusion. Therefore, for the reasons set forth by Mr. Chief Justice Taft on behalf of the Court in Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 43 S.Ct. 422, 67 L.Ed. 712, the writ should be dismissed as improvidently granted even though full argument has been had. But my brethren find that certain rulings of the Court of Appeals involving ordinary questions in the law of negligence, which by themselves never would have warranted the granting of a writ, are so obviously and injuriously erroneous, 'as to call for an exercise of this court's power of supervision.' This is of course one of the considerations within our Rule governing review on certiorari. Rule 19(1)(b), 28 U.S.C.A. I accept their reading of the record and therefore join in the judgment of the Court.

01

350 U.S. 270 76 S.Ct. 349 100 L.Ed. 309 MASTRO PLASTICS CORP. and French-American Reeds Manufacturing Co., Inc., Petitioners,v.NATIONAL LABOR RELATIONS BOARD. No. 19. Argued Oct. 17, 1955. Decided Feb. 27, 1956. Rehearing Denied June 11, 1956. See 351 U.S. 980, 76 S.Ct. 1043. Mr. Bernard H. Fitzpatrick, New York City, for petitioners. Mr. Dominick L. Manoli, Washington, D.C., for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 This case presents two principal questions: (1) whether, in the collective-bargaining contract before us, the union's undertaking 'to refrain from engaging in any strike or work stoppage during the term of this agreement' waives not only the employees' right to strike for economic benefits but also their right to strike solely against unfair labor practices of their employers, and (2) whether § 8(d) of the National Labor Relations Act, as amended,1 deprives individuals of their status as employees if, within the waiting period prescribed by § 8(d)(4), they engage in a strike solely against unfair labor practices of their employers. For the reasons hereafter stated, we answer each in the negative. 2 Mastro Plastics Corp. and French-American Reeds Manufacturing Co., Inc., petitioners herein, are New York corporations which, in 1949 and 1950, were engaged in interstate commerce, manufacturing, selling and distributing plastic articles, including reeds and other accessories for musical instruments. They operated in the City of New York within the same plant, under the same management and with the same employees. For collective bargaining, their employees were represented by Local 22045, American Federation of Labor, or by Local 3127, United Brotherhood of Carpenters and Joiners of America, AFL. These locals occupied the same office and used the services of the same representatives. During the period in question, the right of representation of petitioners' employees was transferred back and forth between them for reasons not material here. Accordingly, they are referred to in this opinion as the 'Carpenters.' 3 In August 1950, Local 65 of the Wholesale and Warehouse Workers Union began a campaign among petitioners' employees in an effort to become their collective-bargaining representative. Petitioners bitterly opposed the movement, believing Local 65 to be Communist-controlled. Feeling that the Carpenters were too weak to cope successfully with Local 65, petitioners asked the Carpenters to transfer their bargaining rights to Local 318, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL. When the Carpenters declined to do so, petitioners selected a committee of employees to visit 318, obtain membership cards and seek members for that union. The cards were distributed during working hours and petitioners paid their employees for time spent in the campaign, including attendance at a meeting of 318. Petitioners' officers and supervisors instructed employees to sign these cards and indicated that those refusing to do so would be 'out.' 4 September 28, Local 65 filed with the National Labor Relations Board its petition for certification as bargaining representative. October 24, Local 318 intervened in the representation proceedings and asked that it be certified. However, many employees revoked their applications for membership in 318 and reaffirmed their adherence to the Carpenters. This was followed on October 31 by the Carpenters' refusal to consent to an election on the ground that petitioners had unlawfully assisted 318 in the campaign.2 5 November 10, 1950, a crisis developed when the president of petitioners summarily discharged Frank Ciccone, an employee of over four years' standing, because of the latter's activity in support of the Carpenters and his opposition to 318. We accept the finding of the National Labor Relations Board that petitioners 'discriminatorily discharged, and thereafter refused to reinstate, Frank Ciccone because of his organizational activities in support of the * * * (Carpenters).'3 This discharge at once precipitated the strike which is before us and which the Board found 'was clearly caused and prolonged by the cumulative effects of the (petitioners') unfair labor practices culminating in the discriminatory discharge of Ciccone.'4 There was no disorder but the plant was virtually shut down until December 11 and it was March 9, 1951, before the Carpenters, on behalf of petitioners' employees, made an unconditional request to return to work. Petitioners ignored that request and neither Ciccone nor any of the other 76 striking employees has been reinstated. 6 While the strike against petitioners' unfair labor practices continued, the collective bargaining contract between petitioners and the Carpenters approached its expiration date of November 30, 1950, and, apart from the above-described organizational controversy, the Carpenters had taken timely steps to secure modification of their agreement. October 10, they had delivered to petitioners a notice (dated September 29, 1950) 'requesting modification' of the contract.5 They thus had started the statutory negotiating period running as prescribed by the above-mentioned § 8(d).6 The Carpenters met several times with petitioners and pressed their demands for changes in the contract but the expiration date passed without any agreement being reached. 7 In January 1951, the Carpenters initiated the present proceedings before the National Labor Relations Board by charging petitioners with unfair labor practices. Acting on those charges, the Board's general counsel filed a complaint alleging petitioners' support of Local 318 and discharge of numerous employees, including Ciccone, as violations of § 8(a)(1), (2) and (3) of the Act.7 8 Petitioners admitted that they had discharged the employees in question and had not rehired them. They denied, however, that in so doing they had committed any unfair labor practices. Their first affirmative defense was that the waiver of the right to strike, expressed by their employees in their collective-bargaining contract, applied to strikes not only for economic benefits but to any and all strikes by such employees, including strikes directed solely against unfair labor practices of the employer. 9 Petitioners' other principal defense was that the existing strike began during the statutory waiting period initiated by the employees' request for modification of the contract and that, by virtue of § 8(d) of the Act,8 the strikers had lost their status as employees. That defense turned upon petitioners' interpretation of § 8(d), applying it not only to strikes for economic benefits but to any and all strikes occurring during the waiting period, including strikes solely against unfair labor practices of the employer. 10 The trial examiner made findings of fact sustaining the complaint and recommended that petitioners be ordered to cease and desist from the interference complained of and be required to offer to Ciccone and the 76 other discharged employees full reinstatement, together with back pay for Ciccone from November 10, 1950, and for the other employees from March 9, 1951. See 103 N.L.R.B. 511, 526—563. With minor modifications, the Board adopted the examiner's findings and conclusions and issued the recommended order. 103 N.L.R.B. 511. The chairman and one member dissented in part. 11 The Court of Appeals, with one judge dissenting in part, accepted the Board's findings of fact and conclusions of law and enforced the Board's order. 214 F.2d 462. Since then, the Court of Appeals for the Seventh Circuit has reached a similar conclusion. National Labor Relations Board v. Wagner Iron Works and Bridge, Structural & Ornamental Iron Workers Shopmen's Local 471 (AFL), 220 F.2d 126. Because of the importance of the issues in industrial relations and in the interpretation of the National Labor Relations Act, as amended, we granted certiorari. 348 U.S. 910, 75 S.Ct. 297, 99 L.Ed. 714. 12 Apart from the issues raised by petitioners' affirmative defenses, the proceedings reflect a flagrant example of interference by the employers with the expressly protected right of their employees to select their own bargaining representative. The findings disclose vigorous efforts by the employers to influence and even to coerce their employees to abandon the Carpenters as their bargaining representatives and to substitute Local 318. Accordingly, unless petitioners sustain at least one of their affirmative defenses, they must suffer the consequences of their unfair labor practices violating § 8(a)(1), (2) or (3) of the Act, as amended. 13 In the absence of some contractual or statutory provision to the contrary, petitioners' unfair labor practices provide adequate ground for the orderly strike that occurred here. Under those circumstances, the striking employees do not lose their status and are entitled to reinstatement with back pay, even if replacements for them have been made.9 Failure of the Board to enjoin petitioners' illegal conduct or failure of the Board to sustain the right to strike against that conduct would seriously undermine the primary objectives of the Labor Act. See National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 673, 71 S.Ct. 961, 965, 95 L.Ed. 1277. While we assume that the employees, by explicit contractual provision, could have waived their right to strike against such unfair labor practices and that Congress, by explicit statutory provision, could have deprived strikers, under the circumstances of this case, of their status as employees, the questions before us are whether or not such a waiver was made by the Carpenters in their 1949—1950 contract and whether or not such a deprivation of status was enacted by Congress in § 8(d) of the Act, as amended in 1947. 14 I. Does the collective-bargaining contract waive the employees' right to strike against the unfair labor practices committed by their employers? The answer turns upon the proper interpretation of the particular contract before us. Like other contracts, it must be read as a whole and in the light of the law relating to it when made. 15 '* * * 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.' Allen Bradley Co. v. Local Union No. 3, International Brotherhood of Electrical Workers, 325 U.S. 797, 806, 65 S.Ct. 1533, 1538, 89 L.Ed. 1939. 16 This contract was made in the light of that declared policy. A similar dual purpose is emphasized as follows in § 1 of the National Labor Relations Act, as amended: 17 "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." 61 Stat. 137, 29 U.S.C. § 151, 29 U.S.C.A. § 151. See also, the declaration of policy in § 1(b) of the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C. § 141(b), 29 U.S.C.A. § 141(b). 18 The two policies are complementary. They depend for their foundation upon assurance of 'full freedom of association'. Only after that is assured can the parties turn to effective negotiation as a means of maintaining 'the normal flow of commerce and * * * the full production of articles and commodities * * *.' 61 Stat. 136, 129 U.S.C. § 141(b), 29 U.S.C.A. § 141(b). 19 On the premise of fair representation, collective-bargaining contracts frequently have included certain waivers of the employees' right to strike and of the employers' right to lockout to enforce their respective economic demands during the term of those contracts. Provided the selection of the bargaining representative remains free, such waivers contribute to the normal flow of commerce and to the maintenance of regular production schedules. Individuals violating such clauses appropriately lose their status as employees.10 20 The waiver in the contract before us, upon which petitioners rely, is as follows: 21 '5. The Union agrees that during the term of this agreement, there shall be no interference of any kind with the operations of the employers, or any interruptions or slackening of production of work by any of its members. The Union further agrees to refrain from engaging in any strike or work stoppage during the term of this agreement.' 22 That clause expresses concern for the continued operation of the plant and has a natural application to strikes and work stoppages involving the subject matter of the contract. 23 Conceding that the words 'in any strike or work stoppage during the (oneyear) term of this agreement,' if read in complete isolation, may include all strikes and work stoppages of every nature, yet the trial examiner, the Board and the Court of Appeals agree that those words do not have that scope when read in their context and in the light of the law under which the contract was made. This unanimity of interpretation is entitled to much weight.11 24 Petitioners argue that the words 'any strike' leave no room for interpretation and necessarily include all strikes, even those against unlawful practices destructive of the foundation on which collective bargaining must rest. We disagree. We believe that the contract, taken as a whole, deals solely with the economic relationship between the employers and their employees.12 It is a typical collective-bargaining contract dealing with terms of employment and the normal operations of the plant. It is for one year and assumes the existence of a lawfully designated bargaining representative. Its strike and lockout clauses are natural adjuncts of an operating policy aimed at avoiding interruptions of production prompted by efforts to change existing economic relationships. The main function of arbitration under the contract is to provide a mechanism for avoiding similar stoppages due to disputes over the meaning and application of the various contractual provisions. 25 To adopt petitioners' all-inclusive interpretation of the clause is quite a different matter. That interpretation would eliminate, for the whole year, the employees' right to strike, even if petitioners, by coercion, ousted the employees' lawful bargaining representative and, by threats of discharge, caused the employees to sign membership cards in a new union. Whatever may be said of the legality of such a waiver when explicitly stated, there is no adequate basis for implying its existence without a more compelling expression of it than appears in § 5 of this contract. 26 There has been no court decision called to our attention which has held that the employees' right to strike against unfair labor practices has been waived by language such as that which is before us. On the other hand, prior to such contract, such language had been held by the Board to apply appropriately to economic strikes with consequent loss of employee status.13 27 It is suggested that § 13 of the Act, as amended, precludes reliance by the Board upon the Act for support of its interpretation of the strike-waiver clause. That section provides that "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.A. § 163, 29 U.S.C.A. § 163. On the basis of the above language, petitioners claim that because the contractwaiver clause prohibits all strikes of every nature, nothing in the Act may be construed to affect the 'limitations or qualifications' which the contract thus places on that right. Such a claim assumes the point at issue. The Board relies upon the context of the contract and upon the language of the clause itself, rather than upon the statute, to define the kind of strike that is waived. 28 As a matter of fact, the initial provision in § 13 that nothing in the Act 'shall be construed so as either to interfere with or impede or diminish in any way the right to strike' adds emphasis to the Board's insistence upon preserving the employees' right to strike to protect their freedom of concerted action. Inasmuch as strikes against unfair labor practices are not anywhere specifically excepted from lawful strikes, § 13 adds emphasis to the congressional recognition of their propriety.14 29 For the reasons stated above and those given by the Board and the court below, we conclude that the contract did not waive the employees' right to strike solely against the unfair labor practices of their employers. 30 II. Does § 8(d) of the National Labor Relations Act, as amended, deprive individuals of their status as employees if, within the waiting period prescribed by § 8(d)(4), they engage in a strike solely against unfair labor practices of their employers? Here again the background is the dual purpose of the Act (1) to protect the right of employees to be free to take concerted action as provided in §§ 7 and 8(a),15 and (2) to substitute collective bargaining for economic warfare in securing satisfactory wages, hours of work and employment conditions. Section 8(d)16 seeks to bring about the termination and modification of collective-bargaining agreements without interrupting the flow of commerce or the production of goods, while §§ 7 and 8(a) seek to insure freedom of concerted action by employees at all times. 31 The language in § 8(d) especially relied upon by petitioners is as follows: "Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as amended * * *" 61 Stat. 143, 29 U.S.C. § 158 (d), 29 U.S.C.A. § 158(d). 32 Petitioners contend that the above words must be so read that employees who engage in any strike, regardless of its purpose, within the 60-day waiting period, thereby lose their status as employees. That interpretation would deprive Ciccone and his fellow strikers of their rights to reinstatement and would require the reversal of the judgment of the Court of Appeals.17 If the above words are read in complete isolation from their context in the Act, such an interpretation is possible. However, 'In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' United States v. Boisdore's Heirs, 8 How. 113, 122, 12 L.Ed. 1009. See also, Peck v. Jenness, 7 How. 612, 622—623, 12 L.Ed. 841; Duparquet Huat & Moneuse Co. v. Evans, 297 U.S. 216, 56 S.Ct. 412, 80 L.Ed. 591, and United States v. American Trucking Ass'ns, 310 U.S. 534, 542—543, 60 S.Ct. 1059, 1063—1064, 84 L.Ed. 1345. 33 Reading the clause in conjunction with the rest of § 8, the Board points out that 'the sixty-day period' referred to is the period meanioned in paragraph (4) of § 8(d). That paragraph requires the party giving notice of a desire to 'terminate or modify' such a contract, as part of its obligation to bargain under § 8(a)(5) or § 8(b)(3), to continue 'in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later'. Section 8(d) thus seeks, during this natural renegotiation period, to relieve the parties from the economic pressure of a strike or lockout in relation to the subjects of negotiation. The final clause of § 8(d) also warns employees that, if they join a proscribed strike, they shall thereby lose their status as employees and, consequently, their right to reinstatement. 34 The Board reasons that the words which provide the key to a proper interpretation of § 8(d) with respect to this problem are 'termination or modification'. Since the Board expressly found that the instant atrike was not to terminate or modify the contract,18 but was designed instead to protest the unfair labor practices of petitioners, the loss-of-status provision of § 8(d) is not applicable. We sustain that interpretation. Petitioners' construction would produce incongruous results. It concedes that prior to the 60-day negotiating period, employees have a right to strike against unfair labor practices designed to oust the employees' bargaining representative, yet petitioners' interpretation of § 8(d) means that if the employees give the 60-day notice of their desire to modify the contract, they are penalized for exercising that right to strike. This would deprive them of their most effective weapon at a time when their need for it is obvious. Although the employees' request to modify the contract would demonstrate their need for the services of their freely chosen representative, petitioners' interpretation would have the incongruous effect of cutting off the employees' freedom to strike against unfair labor practices aimed at that representative. This would relegate the employees to filing charges under a procedure too slow to be effective. The result would unduly favor the employers and handicap the employees during negotiation periods contrary to the purpose of the Act. There also is inherent inequity in any interpretation that penalizes one party to a contract for conduct induced solely by the unlawful conduct of the other, thus giving advantage to the wrongdoer.19 35 Petitioners contend that, unless the loss-of-status clause is applicable to unfair labor practice strukes, as well as to economic strikes, it adds nothing to the existing law relating to loss of status. Assuming that to be so, the clause is justifiable as a clarification of the law and as a warning to employees against engaging in economic strikes during the statutory waiting period. Moreover, in the face of the affirmative emphasis that is placed by the Act upon freedom of concerted action and freedom of choice of representatives, any limitation on the employees' right to strike against violations of §§ 7 and 8(a), protecting those freedoms, must be more explicit and clear than it is here in order to restrict them at the very time they may be most needed. 36 There is sufficient ambiguity here to permit consideration of relevant legislative history. While such history provides no conclusive answer, it is consistent with the view taken by the Board and by the Courts of Appeals for the Second and Seventh Circuits.20 37 Senator Ball, who was a manager for the 1947 amendments in the Senate and one of the conferees on the bill, stated that § 8(d) made mandatory what was already good practice and was aimed at preventing such interruptions of production as the 'quickie strikes' occasionally used to gain economic advantages. 38 'The provision in the National Labor Relations Act defining collective bargaining, and providing bargaining, and providing that where a contract between a union and an employer is in existence, fulfilling the obligation on both sides to protect (bargain) collectively means giving at least 60 days' notice of the termination of the contract, or of the desire for any change in it, is another provision aimed primarily at protecting the public, as well as the employee, who have been the victims of 'quickie' strikes. I do not think that is taking away any rights of labor * * * it is simply saying that they should all follow the sound, fair, and sane procedure which a majority of the good ones now follow.' 93 Cong.Rec. 5014. 39 One minority report suggested a fear that § 8(d) would be applicable to unfair practice strikes. The suggestion, however, was not even made the subject of comment by the majority reports or in the debates.21 An unsuccessful minority cannot put words into the mouths of the majority and thus, indirectly, amend a bill.22 40 The record shows that the supporters of the bill were aware of the established practice which distinguished between the effect on employees of engaging in economic strikes and that of engaging in unfair practice strikes.23 If Congress had wanted to modify that practice, it could readily have done so by specific provision. Congress cannot fairly be held to have made such an intrusion on employees' rights, as petitioners claim, without some more explicit expression of its purpose to do so than appears here.24 41 Finally, petitioners seek support for their interpretation of § 8(d) from the fact that its last clause makes a cross-reference to §§ 8, 9 and 10 of the Act. Such reference does not expand the scope of § 8(d). It merely makes it clear that if § 8(d) is violated by the employees to whom it applies, then they lose their status as employees for the purposes of §§ 8, 9 and 10.25 42 As neither the collective-bargaining contract nor § 8(d) of the National Labor Relations Act, as amended, stands in the way, the judgment of the Court of Appeals is affirmed. 43 Affirmed. 44 Mr. Justice FRANKFURTER, whom Mr. Justice MINTON and Mr. Justice HARLAN join, dissenting. 45 The petitioners are corporations in the plastics manufacturing business in New York and are subject to the Taft-Hartley Act, 61 Stat. 136, 29 U.S.C. § 141, 29 U.S.C.A. § 141. In November 1949 they negotiated a one-year collective bargaining agreement with the Carpenters Union, A.F.L., governing wages, hours and working conditions. The agreement provided for the arbitration of disputes and contained a clause outlawing strikes. During the life of this agreement, the Wholesale and Warehouse Workers Union commenced the solicitation of members among petitioners' employees, and in September 1950 requested the National Labor Relations Board to certify them as exclusive bargaining representative. 46 In an effort to keep the Warehouse Workers out of their plant, the petitioners enlisted the aid of a third union, the Pulp and Mill Workers. This latter organization had bested the Wholesale and Warehouse Workers elsewhere in organizational wars. Petitioners proselytized among their employees on behalf of the Pulp and Mill Workers, which in late October, having gained sufficient adherents, intervened in the representation proceeding initiated before the Board by the Warehouse Workers. 47 Meanwhile the Carpenters had written petitioners on October 10, stating that they wished to negotiate a new contract to take effect upon the expiration of the current agreement. The letter made specific demands, and bargaining over them followed. When the petitioners' organizational activities became manifest, the Carpenters lodged unfair-labor-practice charges with the Board. Some members of the incumbent union tried to counteract the influence of the petitioners upon the employees. Frank Ciccone, a machinist, was one who was active in urging employees to remain loyal to the Carpenters. 48 On November 10 Ciccone was discharged because of this. The discharge, in conjunction with the antecedent employer unfair labor practices, precipitated a plant-wide strike accompanied by peaceful picketing. The strike continued until early February when the participants requested reinstatement. The request was rejected by the petitioners which had earlier notified the strikers of their discharge. 49 The proceedings that followed before the Board resulted in findings against the employers of unfair labor practices under § 8(a)(1), (2) and (3). The Board entered a cease and desist order, and affirmatively directed petitioners to reinstate the discharged strikers with back pay. 103 N.L.R.B. 511. Chairman Herzog and Member Murdock dissented from the latter portion of the Board's order. The Court of Appeals for the Second Circuit (Swan, J., dissenting in part) enforced the Board's order. 214 F.2d 462. We granted certiorari because of the important question of the construction of the Taft-Hartley Act raised by the case. 348 U.S. 910, 75 S.Ct. 297, 99 L.Ed. 714. 50 Petitioners did not contend in the Court of Appeals, nor have they argued here, that the Board erred either in finding them guilty of committing unfair labor practices, or in concluding that the strike was precipitated by these illegal practices. Rather they maintain that the Board lacked the power to order the discharged strikers reinstated. Two reasons are urged. First, the strike is claimed to constitute a breach of the labor agreement between petitioners and the bargaining representative of the strikers, and was therefore unprotected activity. Such is not the case. The Board and the Court of Appeals rightly held that the 'no-strike' clause in the contract does not cover a work stoppage provoked by the petitioners' unfair labor practices. The second reason is that the strikers ceased to be employees within the meaning of the Act, and therefore were not entitled to reinstatement. Petitioners contend that the discharged workers lost their status as employees by reason of the 60-day 'cooling-off' period provided by § 8(d) of the Act. 51 Section 8(d) defines the duty of the employer and the union to bargain collectively. A long proviso in the section treats specifically of the duty during the period of contract renegotiation. The relevant portions of the section follow: 52 "* * * where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification— 53 "(1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; 54 "(4) continues in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: * * *. Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as amended, but such loss of status for such employee shall terminate if and when he is reemployed by such employer." 61 Stat. 142 143, 29 U.S.C. § 158(d), 29 U.S.C.A. § 158(d). 55 The discharged employees struck during the 60-day period, for the notification required by § 8(d)(1) was given on October 10, and the strike began on November 10. The holding of the Board, however, sustained by the Court of Appeals, is that the loss-of-status provision does not apply to an unfair-labor-practice striker. 56 This provision was one of the amendments to the Wagner Act made by the Labor Management Relations Act, 61 Stat. 136. If the provision, couched in ordinary nontechnical language, is to be read as ordinary English words, concededly the striking employees lost their 'status' as employees of petitioners "for the purposes of sections 8, 9, and 10 * * *." Accordingly they were not entitled to re-employment by the petitioners, and the Board was without authority to order their reinstatement. The real problem, then, is to determine whether controlling considerations preclude giving the ordinary meaning to what Congress has written. While literalness of construction does not conclude ascertainment of a statute's meaning, it certainly is the beginning. 57 The so-called canons of construction are not technical rules of law which afford the answer to a problem like this. But they are 'axiom(s) of experience', Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 54, 73 L.Ed. 170, helpful guides in determining when language as plain as ours should be respected and enforced. Relevant guides in construing an amendatory provision like the one in issue are: (1) what was the state of the law before the amendment and (2) what light is shed on the specific provision by placing it in the context of the legislation, i.e., the Taft-Hartley Act, of which it is a part, in order to secure harmony and not discord of result. In a word, enactments like the Wagner Act and the Taft-Hartley Act must be considered as an organic whole. 58 Under the original Wagner Act, employees were given the right in § 7 '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'. Duties were imposed upon the employer under § 8. Among these, he could not interfere with the exercise by employees of their rights under § 7, and he was required to bargain in good faith with the employees' representative. When the Board found that an employer had violated his duty under § 8, it was empowered under § 10 to order the employer to cease and desist from so doing and to take action undoing his violation, including the reinstatement of discharged employees, if such reinstatement would effectuate the policies of the Act. 59 While the employer had numerous obligations to his employees and their bargaining representative, the union and the employees were under no statutory duty to the employer. For example, the union was not required to bargain in good faith, and it was not forbidden to strike in order to achieve its demands during a period of contract renegotiation. 60 If this case had come up under the Wagner Act the results would be clear. The employers violated § 8 and thereby unleashed the strike. Such a strike would not have been in violation of any statutory duty because the union and the employees had no duties under the Wagner Act. Since the employers had committed an unfair labor practice, the Board had jurisdiction and could order the discharged strikers reinstated with back pay. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271. Furthermore, the employers' discharge of their employees because they engaged in a strike was itself an unfair labor practice under § 8 for it interfered with their § 7 right to engage in 'concerted activities.' 61 The Wagner Act did not define 'concerted activities.' All collective action, however, was not concerted activity protected by § 7. We held in National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, that a sit-down strike was not § 7 activity; and in Southern S.S. Co. v. National Labor Relations Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246, we decided that a strike in violation of the laws against mutiny was not protected under § 7. If an employer interferes with collective employee action which is not sanctioned by § 7, he does not violate § 8, and in the absence of a violation of § 8 the Board cannot take action under § 10. Thus if an employer discharges workers because they engaged in a sit-down strike for higher wages, the Board cannot order him to reinstate the strikers. Since § 8, however, did not place any duties upon employees or unions, most peaceful collective action was protected under § 7, because most peaceful activity did not infringe some implicit federal labor policy or some other federal policy, such as that represented by the statute against mutiny. 62 The Taft-Hartley Act changed the situation. Section 8 of the Wagner Act was amended and duties were placed upon unions. Collective action which violates any of these duties is of course activity unprotected by § 7. See Cox, The Right to Engage in Concerted Activities, 26 Ind.L.J. 319, 325—333 (1951). One of these new union duties, and an important one, is contained in § 8(d): unions may not strike to enforce their demands during the 60-day 'cooling-off' period. 63 By reason of this new enactment, participating workers would not be engaged in a protected activity under § 7 by striking for the most legitimate economic reasons during the 60 day period. The strike would be in violation of the provision of that section which says that during the period there shall be no resort to a strike. The employer could discharge such strikers without violating § 8. This would be so if § 8 were without the loss-of-status provision. The Board would be powerless to order reinstatement under § 10. The loss-of-status provision in § 8(d) does not curtail the Board's power, since it did not have power to order reinstatement where a strike is resorted to for economic reasons before the 60-day petiod has expired. In such a situation the striker has no rights under §§ 8 and 10. Yet the Board would have us construe the loss-of-status provision as applicable only to the economic striker and qualifying a power which the Board does not have. 64 It is with respect to the unfair-labor-practice striker that the provision serves a purpose. This becomes clear if we assume that there were no such provision and examine the consequences of its absence. On such an assumption, a strike based on an unfair labor practice by the employer during the 60-day period may or may not be a protected activity under § 7. If it is, obviously discharged strikers would be entitled to reinstatement. The strike would not be a § 7 activity, however, if, for example, it were in breach of a no-strike clause in the contract which extends to a work stoppage provoked by an employer unfair labor practice, cf. National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 344, 59 S.Ct. 508, 514, 83 L.Ed. 682, or if the no-strike clause in § 8(d)(4) (not to be confused with the loss-of-status provision) extends to such a work stoppage. However, even if the strike is not a § 7 activity, the Board in the unfair-labor-practice strike situation as distinguished from the economic strike situation, may in its discretion order the discharged participants reinstated. This is so because of the antecedent employer unfair practice which caused the strike, and which gave employees rights under § 8. If the Board finds that reinstatement of such strikers is a remedy that would effectuate the policies of the Act, it has the power under § 10(c) to issue the necessary order. 65 This would not be the case, however, if the loss-of-status provision were held applicable to unfair-labor-practice strikes, because participating workers would lose their rights as 'employees' for the purposes of §§ 8 and 10. Under the Act only 'employees' are eligible for reinstatement. The unfair-labor-practice strike, then, is the one situation where loss of status for the purposes of §§ 8 and 10 is of significance. At any rate, we have not been advised of any other situation to which the provision would apply. 66 We are therefore confronted with the demonstrable fact that if the provision stripping strikers of their status as employees during the 60-day period is to have any usefulness at all and not be an idle collection of words, the fact that a strike during that period is induced by the employer's unfair labor practice is immaterial.1 Even though this might on first impression seem an undesirable result, it is so only by rejecting the important considerations in promoting peaceful industrial relations which might well have determined the action of Congress. In the first place, the Congress may have set a very high value on peaceful adjustments, i.e., the absence of strikes. One may take judicial notice of the fact that this consideration was at the very forefront of the thinking and feeling of the Eightieth Congress. And there is another consideration not unrelated to this. While in a particular case the cause of a strike may be clear, and in a particular case there may be no controversy regarding the circumstances which prove that an employer committed an unfair labor practice, as a matter of experience that is not always true, indeed often it is not true. One of the sharpest controversies, one of the issues most difficult of determination, is the very question of what precipitated a work stoppage. This is especially true where a new contract is being negotiated. It is not at all unreasonable, therefore, to find a congressional desire to preclude litigation over what all too often is a contentious subject and to deter all strikes during the crucial period of negotiation. 67 We need not agree with a legislative judgment in order to obey a legislative command. It is enough for us that Congress did not legislate idly, but did intend the loss-of-status provision to have an effect. 'We are not at liberty to construe any statute so as to deny effect to any part of its language. It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word. As early as in Bacon's Abridgment, sect. 2, it was said that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.' This rule has been repeated innumerable times. Another rule equally recognized is that every part of a statute must be construed in connection with the whole, so as to make all the parts harmonize, if possible, and give meaning to each.' Washington Market Co. v. Hoffman, 101 U.S. 112, 115—116, 25 L.Ed. 782. Since the loss-of-status provision has an effect only in an unfair-labor-practice strike, the judgment of the Court of Appeals should be reversed. 1 61 Stat. 140, 142—143, 29 U.S.C. § 158(d), 29 U.S.C.A. § 158(d). 2 In December, Locals 318 and 65 withdrew their representation proceedings from before the Board and the Carpenters (through Local 3127) filed its own representation proceeding. January 29, 1951, the Board issued a direction of election in the latter proceeding but, after the Carpenters filed charges of unfair practices, the Board postponed the holding of any election until the regional director might deem it proper. 3 103 N.L.R.B. 511, 512, and see 214 F.2d 462, 464. 4 103 N.L.R.B., at 513. See also, the following findings of the trial examiner: '* * * the purpose of the strike was to protest and seek to remedy the (petitioners') unfair labor practices. The record does not support a finding that the strike also had as an additional objective the termination or modification of the existing contract. It is true that demands for contract changes had previously been presented to the (petitioners), and there had been some discussion at meetings of Local 22045 or Local 3127 of a possible strike if such demands were not met. But no strike vote on that issue had ever been taken, nor was any strike action otherwise determined upon. On the record as a whole, I am fully satisfied, and I find, that the strike which immediately followed Ciccone's discharge was unplanned and began as a spontaneous demonstration by employees of their protest of the (petitioners') unfair labor practices. Nor does the record reflect that its character changed after it began to one where the strikers were seeking to compel changes or modifications in economic terms or conditions of employment. There is no evidence that any negotiations were conducted or overtures made along such lines at any time after the commencement of the strike. The (petitioners) at the hearing made no such claim, and offered no evidence to establish that the strike had any purpose other than, or in addition to, that claimed by the General Counsel.' 103 N.L.R.B., at 560. These were adopted by the Board, id., at 511—512, and confirmed by the Court of Appeals, 214 F.2d at page 465. 5 103 N.L.R.B., at pages 560 and 512, n. 2. 6 "Sec. 8. * * * "(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification— "(1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; "(2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications; "(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and "(4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: The duties imposed upon employers, employees, and labor organization by paragraphs (2), (3), and (4) shall become inapplicable upon an intervening certification of the Board, under which the labor organization or individual, which is a party to the contract, has been superseded as or ceased to be the representative of the employees subject to the provisions of section 9(a), and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as amended, but such loss of status for such employee shall terminate if and when he is reemployed by such employer." (Emphasis supplied except for the word 'Provided.') 61 Stat. 140. 142—143, 29 U.S.C. § 158(d), 29 U.S.C.A. § 158(d). 7 "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 except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3). "Sec. 8. (a) It shall be an unfair labor practice for an employer— "(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; "(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: * * * "(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: * * *." 61 Stat. 140, 29 U.S.C. §§ 157, 158(a)(1), (2) and (3), 29 U.S.C.A. §§ 157, 158(a)(1—3). 8 See note 6, supra. 9 Before the 1947 amendments to the National Labor Relations Act, see National Labor Relations Board v. Poultrymen's Service Corp., 3 Cir., 138 F.2d 204, 210; National Labor Relations Board v. Remington Rand, Inc., 2 Cir., 130 F.2d 919, 927—928; National Labor Relations Board v. Moore-Lowry Flour Mills Co., 10 Cir., 122 F.2d 419, 426; M. H. Ritzwoller Co. v. National Labor Relations Board, 7 Cir., 114 F.2d 432, 437; National Labor Relations Board v. Sunshine Mining Co., 9 Cir., 110 F.2d 780, 792; National Labor Relations Board v. Boss Manufacturing Co., 7 Cir., 107 F.2d 574, 579; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 99 F.2d 533, 535; National Labor Relations Board v. Remington Rand, Inc., 2 Cir., 94 F.2d 862, 871. Since the 1947 amendments, see National Labor Relations Board v. West Coast Casket Co., 9 Cir., 205 F.2d 902, 907—908; National Labor Relations Board v. Kobritz, 1 Cir., 193 F.2d 8, 16—17. 10 See Dyson & Sons, 72 N.L.R.B. 445, 457; Scullin Steel Co., 65 N.L.R.B. 1294, enforced as modified, 8 Cir., 161 F.2d 143. While these cases were decided under the Act before its 1947 amendments, there is nothing in the amendments to suggest their subsequent inapplicability. Both are referred to with approval in the House Conference Report on the 1947 amendments. H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 39. See also, 93 Cong.Rec. 6442. But see National Electric Products Corp., 80 N.L.R.B. 995, distinguished by the Board in the instant case, 103 N.L.R.B., at 514. 11 While two members of the Board and one of the Court of Appeals disagreed with their respective majorities as to petitioners' defense based upon § 8(d), no member of either body has expressed a dissent from the Board's interpretation of the contract. 12 The preamble states that 'the parties hereto desire to enter into an agreement relating to the rates of pay, hours of work and other conditions of employment which will provide methods of harmonious co-operation between the Employers and their employees and to that end accomplish fair and peaceful adjustments which may arise without interruption of the Employers' businesses * * *.' The balance of the contract relates to: (1) Limitation of employment to union members in good standing; definitions of exempt employees and union shop; (2) Availability of arbitration, under § 19, in disputes as to failures to maintain union memberships; (3) Check-off of union dues; (4) Exempt employees and new employees; (5) Strike waiver as quoted in text; (6) Lockout waiver as follows: 'The Employers agree that there shall be no lockout during the term of this agreement.' (7) Arbitration, under § 19, to determine whether a strike, work stoppage or lockout has actually occurred; (8) Probationary periods for new employees; (9) Employers to have control over plant production and business requirements resulting in layoffs, furloughs or intra-plant transfers; (10) Employee seniority; (11) Hours of work; (12) Work weeks and extra shifts; (13) Rest periods; (14) Overtime; (15) Holidays; (16) Rates of pay and wage incentives; (17) Contract not to be interpreted so as to reduce wages, standards or working conditions; (18) Union officers who are active employees and union stewards governed by plant rules; (19)(a) Disputes as to meaning and application of the contract are subject to arbitration; (b) Rights of employees to present grievances to their employers are assured; (20) Notice of work days; (21) Vacations; (22) Employers' rights to manage plant and to discharge employees 'for proper cause' preserved; union to cooperate with employers in interest of employee efficiency; (23) A specific wage increase is prescribed in lieu of an increase recently awarded by arbitration; (24) Effective December 1, 1949—November 30, 1950, with 60-day notice of intention to modify or terminate, and in such event 'negotiations shall be promptly started.' 13 See note 10, supra. 14 See National Labor Relations Board v. International Rice Milling Co., 341 U.S., at page 673, 71 S.Ct. at page 965, 95 L.Ed. 1277. 15 See note 7, supra. 16 See note 7, supra. 17 Although the notice required to put the 60-day waiting period into operation in this case was not delivered until 51 days before the expiration of the contract, it was dated more than 60 days before such expiration date and it has been treated by all concerned as putting the waiting period into effect. 18 See note 4, supra. 19 See Note, 53 Col.L.Rev. 1023, 1025. 20 With the exception of one suggestion in a minority report, which is discussed elsewhere, the relevant committee reports describe the provisions of § 8(d) as being applicable to economic strikes and do not suggest their applicability to strikes against unfair labor practices in violation of §§ 7 and 8(a). S.Rep. No. 105, 80th Cong., 1st Sess. 24; H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 34—35. 21 S.Rep. No. 105, Pt. 2, 80th Cong., 1st Sess. 21—22; 93 Cong.Rec. 6385, 4036, 6503. 22 '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.' Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394—395, 71 S.Ct. 745, 750—751, 95 L.Ed. 1035, and see S. H. Camp & Co. v. National Labor Relations Board, 6 Cir., 160 F.2d 519, 521. 23 '* * * to hold that a worker who because of an unfair labor practice has * * * gone on strike is no longer an employee, would be to give legal sanction to an illegal act and to deny redress to the individual injured thereby.' S.Rep. No. 573, 74th Cong., 1st Sess. 6—7. 24 For example, Senator Ball proposed an amendment, to the definition of 'employee' in § 2(3) of the Act, which unintentionally might have abrogated the distinction which favored the employees' right to engage in unfair practice strikes as against economic strikes, but at once withdrew the amendment as going 'too far,' when this possible effect of it was brought to his attention. 93 Cong.Rec. 1827—1828. 25 See H.R.Rep. No. 245, 80th Cong., 1st Sess. 27; H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 38—39. 1 It may be noted that the opponents of the Taft-Hartley Act objected to the loss-of-status provision for just this reason: '(T)he section is silent as to the Board's authority to accommodate conflicting issues such as provocation on the part of the employer. Under this section an employer desirous of ridding himself either of the employees or their representative can engage in the most provocative conduct without fear of redress except by way of a lengthy hearing before the Board and a subsequent admonition to thereafter 'cease and desist' from such practices. In striking contrast to the relatively delicate treatment provided for such action by an employer, employees unwilling idly to countenance abuse, who resort to self-help under the circumstances are removed from the protection of the statute and lose 'employee' status. An employer is at liberty under such circumstances freely to replace any employee hold enough to insist upon justice. The provision denies to the Board the exercise of any discretion to accommodate the equitable doctrine of 'clean hands.' The provisions of the section are conclusive—the employee is subject to summary dismissal irrespective of the employer's conduct.' S.Rep. No. 105 (Minority), Part 2, 80th Cong., 1st Sess. 21—22 (1947).

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350 U.S. 332 76 S.Ct. 373 100 L.Ed. 373 UNITED GAS PIPE LINE COMPANY, Petitioner,v.MOBILE GAS SERVICE CORPORATION and Federal Power Commission. FEDERAL POWER COMMISSION, Petitioner, v. MOBILE GAS SERVICE CORPORATION. Nos. 17, 31. Argued Nov. 7, 8, 1955. Decided Feb. 27, 1956. [The balance of this page intentionally left of blank] Mr. Howard E. Wahrenbrock, Washington, D.C., for F.P.C. Mr. Thomas Fletcher, Houston, Tex., for United Gas Pipe Line Co. Mr. William C. Chanler, New York City, for respondent Mobile Gas Service Corp. Mr. Justice HARLAN delivered the opinion of the Court. 1 The question presented in this case is whether under the Natural Gas Act, 52 Stat. 821, 15 U.S.C. § 717 et seq., 15 U.S.C.A. § 717 et seq., a regulated natural gas company furnishing gas to a distributing company under a long-term contract may, without the consent of the distributing company, change the rate specified in the contract simply by filing a new rate schedule with the Federal Power Commission. The pertinent provisions of the Act are set forth in the margin.1 2 Respondent Mobile Gas Service Corporation (Mobile), a distributor of natural gas to domestic and industrial users in Mobile, Alabama, acquires its gas from petitioner United Gas Pipe Line Company (United), a 'natural-gas company' subject to regulation under the Act. In 1946 the Ideal Cement Company (Ideal), planning to construct a cement plant in the city provided it could be assured a supply of gas at a sufficiently low rate, obtained from Mobile an agreement to furnish gas for a 10—year term at 12 cents per MCF (thousand cubic feet). Mobile, in turn, before entering into a contract with Ideal, obtained from United a 10—year contract to supply gas for resale to Ideal at the equivalent of 10.7 cents per MCF, a rate substantially lower than that for other gas furnished by United. This contract was filed with the Federal Power Commission as an amendment to the general supply contracts between Mobile and United, and, with the approval of the Commission, became a part of United's filed schedules of rates and contracts. 3 In June 1953 United, without the consent of Mobile, filed new schedules with the Commission which purported to increase the rate on gas for resale to Ideal to 14.5 cents per MCF, a rate more closely approximating that for other gas furnished to Mobile by United. Claiming that United could not thus unilaterally change the contract rate, Mobile petitioned the Commission to reject United's filing. The Commission denied the petition, holding that under § 4(d) of the Act the new rate, being a non-suspendible industrial rate, automatically became effective 30 days after filing and would remain in effect unless and until the Commission should, after investigation under § 4(e), determine the new rate to be unlawful. Mobile paid the new rate until April 15, 1955, when United, with Commission approval, accepted an assignment to it of Mobile's contract with Ideal.2 This assignment made the pending investigation into the lawfulness of the new rate moot, since in the Commission's view its determination on that matter would have no retroactive effect. Thus the only question before us is whether United property collected from Mobile the difference between the old 10.7-cent rate and the new 14.5-cent rate during the period from July 25, 1953 (when the new rate purportedly went into effect), to April 15, 1955 (when United took over the Ideal contract)—a sum aggregating approximately $240,000. On Mobile's petition for review, the Court of Appeals for the Third Circuit (Hastie, J., dissenting) reversed the Commission's order, directed it to reject United's filing of the new schedule insofar as it purported to increase the rate in question, and held Mobile entitled to a return of the amounts paid in excess of the contract rate. 215 F.2d 883. Both the Commission and United, which had intervened in the Court of Appeals, petitioned for certiorari, which we granted because of the importance of this question in the administration of the Natural Gas Act. 348 U.S. 950, 75 S.Ct. 446, 99 L.Ed. 742. For the reasons discussed below, we hold that the Natural Gas Act does not give natural gas companies the right to change their rate contracts by their own unilateral action. 4 The question presented is solely one of the proper interpretation of the Natural Gas Act, there being no claim that the statute, if interpreted to permit a natural gas company unilaterally to change its contracts, would be unconstitutional. Cf. Midland Realty Co. v. Kansas City P. & L. Co., 300 U.S. 109, 57 S.Ct. 345, 81 L.Ed. 540. The Act3 requires natural gas companies to file all rates and contracts with the Commission, § 4(c), and authorizes the Commission to modify any rate or contract which it determines to be 'unjust, unreasonable, unduly discriminatory, or preferential', § 5(a). Changes in previously filed rates or contracts must be filed with the Commission at least 30 days before they are to go into effect, § 4(d), and, except in the case of industrial rates, the Commission may suspend the operation of the new rate pending a determination of its reasonableness, § 4(e). If a decision has not been reached before the period of suspension expires, a maximum of five months, the filed rate must be allowed to go into effect, but the Commission's order may be made retroactive to that date. 5 In construing the Act, we should bear in mind that it evinces no purpose to abrogate private rate contracts as such. To the contrary, by requiring contracts to be filed with the Commission, the Act expressly recognizes that rates to particular customers may be set by individual contracts. In this respect, the Act is in marked contrast to the Interstate Commerce Act, which in effect precludes private rate agreements by its requirement that the rates to all shippers be uniform, a requirement which made unnecessary any provision for filing contracts. See Armour Packing Co. v. United States, 209 U.S. 56, 28 S.Ct. 428, 52 L.Ed. 681. The Commission in its brief recognizes this basic diifference between the two Acts and notes the differing natures of the industries which gave rise to it. The vast number of retail transactions of railroads made policing of individual transactions administratively impossible; effective regulation could be accomplished only by requiring compliance with a single schedule of rates applicable to all shippers. On the other hand, only a relatively few wholesale transactions are regulated by the Natural Gas Act and these typically require substantial investment in capacity and facilities for the service of a particular distributor. Recognizing the need these circumstances create for individualized arrangements between natural gas companies and distributors, the Natural Gas Act permits the relations between the parties to be established initially by contract, the protection of the public interest being afforded by supervision of the individual contracts, which to that end must be filed with the Commission and made public. 6 The provision of the Natural Gas Act directly in issue here is § 4(d), which provides that 'no change shall be made by any natural-gas company in any such (filed) rate * * * or contract * * * except after thirty days' notice to the Commission', which notice is to be given by filing new schedules showing the changes and the time they are to go into effect. It is argued that this provision authorizes a natural gas company to change its rate contracts simply by filing a new schedule of rates, to go into effect in no less than thirty days. On its face, however, § 4(d) is simply a prohibition, not a grant of power. It does not purport to say what is effective to change a contract, any more than § 4(c) purports to define what constitutes a 'contract' that may be filed with the Commission. The section says only that a change cannot be made without the proper notice to the Commission; it does not say under what circumstances a change can be made. Absent the Act, a unilateral announcement of a change to a contract would of course be a nullity, and we find no basis in the language of § 4(d) for inferring that the mere imposition of a filing-and-notice requirement was intended to make effective action which would otherwise be of no effect at all. In short, § 4(d) on its face indicates no more than that otherwise valid changes cannot be put into effect without giving the required notice to the Commission. To find in the section a further purpose to empower natural gas companies to change their contracts unilaterally requires reading into it language that is neither there nor reasonably to be implied. 7 It is argued, however, that a different conclusion is compelled when § 4(d) is read with the other provisions of the Act. Petitioners attempt to characterize the Act as setting up two separate and distinct 'procedures' for changing rates: (1) the 'hearing and order' procedure of § 5(a) under which the Commission may determine existing rates to be unreasonable and order changes to be made; and (2) the 'filed-rate' procedure of § 4(d) and (e) under which the natural gas company may initiate changes, in which event the Commission's only concern is with the reasonableness of the new rate. These are said to be complementary and mutually exclusive procedures, the choice between which—since both expressly relate to changes in 'contracts' as well as other rates depends solely on who is seeking the change and not on whether the rate sought to be changed is embodied in a contract. From this characterization of the procedures, petitioners conclude that when a natural gas company initiates a rate change under § 4(d) the proceedings are governed exclusively by § 4(d) and (e), and hence the Commission's only power is that which it has under § 4(e) to set aside the new rate if that is found to be unlawful. 8 The major defect of this argument is that it assumes the answer to the very question in issue—whether natural gas companies are empowered to 'initiate' unilateral contract changes under § 4(d). That the so-called 'filed-rate' procedure is applicable to changes in contracts as well as other rates proves only that contracts may be changed, not that they may be changed unilaterally. Moreover, the very premise that §§ 4(d) and (e) and 5(a) are alternative rate-changing 'procedures' is itself based on a misconception of the structure of the Act. These sections are simply parts of a single statutory scheme under which all rates are established initially by the natural gas companies, by contract or otherwise, and all rates are subject to being modified by the Commission upon a finding that they are unlawful. The Act merely defines the review powers of the Commission and imposes such duties on natural gas companies as are necessary to effectuate those powers; it purports neither to grant nor to define the initial rate-setting powers of natural gas companies. 9 The powers of the Commission are defined by §§ 4(e) and 5(a). The basic power of the Commission is that given it by § 5(a) to set aside and modify any rate or contract which it determines, after hearing, to be 'unjust, unreasonable, unduly discriminatory, or preferential'. This is neither a 'rate-making' nor a 'rate-changing' procedure. It is simply the power to review rates and contracts made in the first instance by natural gas companies and, if they are determined to be unlawful, to remedy them. Section 5(a) would of its own force apply to all the rates of a natural gas company, whether long-established or newly changed, but in the latter case the power is further implemented by § 4(e). All that § 4(e) does, however, is to add to this basic power, in the case of a newly changed rate or contract (except 'industrial' rates), the further powers (1) to preserve the status quo pending review of the new rate by suspending its operation for a limited period, and (2) thereafter to make its order retroactive, by means of the refund procedure, to the date the change became effective. The scope and purpose of the Commission's review remain the same to determine whether the rate fixed by the natural gas company is lawful. 10 The limitations imposed on natural gas companies are set out in §§ 4(c) and 4(d). The basic duties are the filing requirements: § 4(c) requires schedules showing all retes and contracts in force to be filed with the Commission and § 4(d) requires all changes in such schedules likewise to be filed. In addition, § 4(d) imposes the further requirement that the changes be filed at least thirty days before they are to go into effect. It may readily be seen that these requirements are no more than are necessary to implement §§ 4(e) and 5(a): the filing requirements are obviously necessary to permit the Commission to exercise its review functions, and the requirement of 30-days' advance notice of changes is essential to afford the Commission a reasonable period in which to determine whether to exercise its suspension powers under § 4(e). 11 The relationship of these sections thus affords no support to petitioners' characterization of § 4(d) and (e) as establishing a rate-changing 'procedure'—a 'proceeding' before the Commission 'initiated' by a natural gas company filing a 'proposed' change. Section 4(d) provides not for the filing of 'proposals' but for notice to the Commission of any 'change * * * made by' a natural gas company, and the change is effected, if at all, not by an order of the Commission but solely by virtue of the natural gas company's own action. If the purported change is one the natural gas company has the power to make, the 'change' is completed upon compliance with the notice requirement and the new rate has the same force as any other rate—it can be set aside only upon being found unlawful by the Commission. It is thus no more a 'proposed' rate than any other rate, all of which are equally subject to Commission review. Likewise, no 'proceeding' is 'initiated' by a § 4(d) filing. A proceeding to review the new rate may be initiated under § 4(e), but, if so, it is initiated by the Commission in the same manner as a proceeding under § 5(a) to review any other rate, that is, upon complaint or its own motion. The only difference is the interim suspension power given by § 4(e), but that in no way affects the character of the proceeding, which remains, like a § 5(a) proceeding, simply a review by the Commission of a rate established by the natural gas company. In short, the Act provides no 'procedure' either for making or changing rates; it provides only for notice to the Commission of the rates established by natural gas companies and for review by the Commission of those rates. The initial rate-making and rate-changing powers of natural gas companies remain undefined and unaffected by the Act. 12 All of the relevant provisions of the Act can thus be fully explained as simply defining and implementing the powers of the Commission to review rates set initially by natural gas companies, and there is nothing to indicate that they were intended to do more. Admittedly, the Act presumes a capacity in natural gas companies to make rates and contracts and to change them from time to time, but nowhere in the Act is either power defined. The obvious implication is that, except as specifically limited by the Act, the rate-making powers of natural gas companies were to be no different from those they would possess in the absence of the Act: to establish ex parte, and change at will, the rates offered to prospective customers; or to fix by contract, and change only by mutual agreement, the rate agreed upon with a particular customer. No more is necessary to give full meaning to all the provisions of the Act: consistent with this, § 4(d) means simply that no change neither a unilateral change to an ex parte rate nor an agreed-upon change to a contract—can be made by a natural gas company without the proper notice to the Commission. Hence there is nothing in the structure or purpose of the Act from which we can infer the right, not otherwise possessed and nowhere expressly given by the Act, of natural gas companies unilaterally to change their contracts. 13 Our conclusion that the Natural Gas Act does not empower natural gas companies unilaterally to change their contracts fully promotes the purposes of the Act. By preserving the integrity of contracts, it permits the stability of supply arrangements which all agree is essential to the health of the natural gas industry. Conversion by consumers, particularly industrial users, to the use of natural gas may frequently require substantial investments which the consumer would be unwilling to make without long-term commitments from the distributor, and the distributor can hardly make such commitments if its supply contracts are subject to unilateral change by the natural gas company whenever its interests so dictate. The history of the Ideal contract furnishes a case in point. On the other hand, denying to natural gas companies the power unilaterally to change their contracts in no way impairs the regulatory powers of the Commission, for the contracts remain fully subject to the paramount power of the Commission to modify them when necessary in the public interest. The Act thus affords a reasonable accommodation between the conflicting interests of contract stability on the one hand and public regulation on the other. 14 It may be noted also that this interpretation, while precluding natural gas companies from unilaterally changing their contracts simply because it is in their private interests to do so, does not deprive them of an avenue of relief when their interests coincide with the public interest. Section 5(a) authorizes the Commission to investigate rates not only 'upon complaint of any State, municipality, State commission, or gas distributing company' but also 'upon its own motion'. Thus, while natural gas companies are understandably not given the same explicit standing to complain of their own contracts as are those who represent the public interest or those who might be discriminated against, there is nothing to prevent them from furnishing to the Commission any relevant information and requesting it to initiate an investigation on its own motion.4 And if the Commission, after hearing, determines the contract rate to be so low as to conflict with the public interest, it may under § 5(a) authorize the natural gas company to file a schedule increasing the rate. 15 The prior decisions of this Court cited by petitioners as requiring an opposite result are readily distinguishable. In Armour Packing Co. v. United States, 209 U.S. 56, 28 S.Ct. 428, 52 L.Ed. 681, a rate contract between a railroad and a shipper at the filed rates in effect at the time the contract was made was held not to justify payment at the contract rate for shipments made after the filed rates for shipments of that character had been increased by the railroad. The very basis for that decision, however, was the requirement of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., that rates to all shippers be uniform and comply with the single tariff filed with the Commission, there being no provision under that Act for the filing of individual contracts. That is, the Interstate Commerce Act by its own force precluded contracts for rates different from those applicable to other shippers. The Natural Gas Act, on the other hand, recognizes the need for private contracts of varying terms and expressly provides for the filing of such contracts as a part of the rate schedules. No contention is made here that the fact that the Mobile contract was at a rate different from that to other customers in itself made the contract illegal or that—as held in Armour—United could not lawfully have complied with the contract had it wanted to. In Midland Realty Co. v. Kansas City Power & Light Co., 300 U.S. 109, 57 S.Ct. 345, 81 L.Ed. 540, the Court held only that a statute interpreted by the state court as authorizing unilateral contract changes by a public utility was not unconstitutional. On the other hand, in Wichita Railroad & Light Co. v. Public Utilities Commission of Kansas, 260 U.S. 48, 43 S.Ct. 51, 67 L.Ed. 124, this Court interpreted a Kansas statute, not yet fully construed by the state court, as not giving such a power to a public utility, and to the extent that that decision rested upon an original interpretation of similar statutory language it affords strong support for our interpretation of the Natural Gas Act. 16 The only two Courts of Appeals that have squarely ruled on this question, those for the District of Columbia and Third Circuits, have concluded that neither the Natural Gas Act,5 nor the virtually identical provisions of the Federal Power Act, 16 U.S.C.A. § 824 et seq.,6 authorize unilateral contract changes.7 The Court of Appeals for the Fifth Circuit, however, although distinguishing its decision on a procedural ground, has indicated a contrary conclusion.8 The parties have also referred us to numerous state court decisions construing state statutes of varying degrees of similarity to the Natural Gas Act, some holding that unilateral contract changes were authorized9 and others holding that they were not.10 Taken as a whole, the state decisions prove little more than that the question is an open one and afford little guidance to the proper interpretation of the Federal Act. 17 From our conclusion that the Natural Gas Act gives a natural gas company no power to change its contracts unilaterally, it follows that the new schedule filed by United was a nullity insofar as it purported to change the rate set by its contract with Mobile and that the contract rate remained the only lawful rate. There can be no doubt of the unauthorized filing under its the unuthorized filing under its general powers to issue orders 'necessary or appropriate to carry out the provisions of this Act', § 16, and its failure to do so and its order 'permitting' the new rates to become effective were in error. Any amounts paid by Mobile in excess of the contract rates on the basis of the erroneous order of the Commission were therefore unlawfully collected, and United is obligated to make restitution of the excess payments. Cf. Baltimore & Ohio R. Co. v. United States, 279 U.S. 781, 49 S.Ct. 492, 73 L.Ed. 954. 18 Affirmed. 1 'Sec. 4. * * * (c) Under such rules and regulations as the Commission may prescribe, every natural-gas company shall file with the Commission, within such time (not less than sixty days from the date this Act takes effect (June 21, 1938)), and in such form as the Commission may designate, and shall keep open in convenient form and place for public inspection, schedules showing all rates and charges for any transportation or sale subject to the jurisdiction of the Commission, and the classifications, practices, and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services. '(d) Unless the Commission otherwise orders, no change shall be made by any natural-gas company in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days' notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days' notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published. '(e) Whenever any such new schedule is filed the Commission shall have authority, either upon complaint of any State, municipality, or State commission, or upon its own initiative without complaint, at once, and if it so orders, without answer or formal pleading by the natural-gas company, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the natural-gas company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect: Provided, That the Commission shall not have authority to suspend the rate, charge, classification, or service for the sale of natural gas for resale for industrial use only; and after full hearings, either completed before or after the rate, charge, classification, or service goes into effect, the Commission may make such orders with reference thereto as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made at the expiration of the suspension period, on motion of the natural-gas company making the filing, the proposed change of rate, charge, classification, or service shall go into effect. Where increased rates or charges are thus made effective, the Commission may, by order, require the natural-gas company to furnish a bond, to be approved by the Commission, to refund any amounts ordered by the Commission, to keep accurate accounts in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts were paid, and, upon completion of the hearing and decision, to order such natural-gas company to refund, with interest, the portion of such increased rates or charges by its decision found not justified. At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable shall be upon the natural-gas company, and the Commission shall give to the hearing and decision of such questions preference over other questions pending before it and decide the same as speedily as possible.' 52 Stat. 822—823, 15 U.S.C. § 717c, 15 U.S.C.A. § 717c. § 5. (a) Whenever the Commission, after a hearing had upon its own motion or upon complaint of any State, municipality, State commission, or gas distributing company, shall find that any rate, charge, or classification demanded, observed, charged, or collected by any natural-gas company in connection with any transportation or sale of natural gas, subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory, or preferential, the Commission shall determine the just and reason- able rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order: Provided, however, That the Commission shall have no power to order any increase in any rate contained in the currently effective schedule of such natural gas company on file with the Commission, unless such increase is in accordance with a new schedule filed by such natural gas company; but the Commission may order a decrease where existing rates are unjust, unduly discriminatory, preferential, otherwise unlawful, or are not the lowest reasonable rates.' 52 Stat. 823—824, 15 U.S.C. § 717d, 15 U.S.C.A. § 717d. 2 United agreed to pay Mobile 2 cents per MCF for transporting the gas to Ideal. Since under the assigned contract United received only 12 cents per MCF from Ideal, its net return after the assignment was only 10 cents per MCF, less than the 10.7 cents it had received under its earlier contract with Mobile. 3 See note 1, 76 S.Ct. 375, supra. 4 See § 14(a) of the Act, providing in part: 'The Commission may permit any person to file with it a statement in writing * * * as to any or all facts and circumstances concerning a matter which may be the subject of investigation.' 52 Stat. 828, 15 U.S.C. § 717m, 15 U.S.C.A. § 717m. 5 Mobile Gas Service Corp. v. F.P.C., 3 Cir., 215 F.2d 883, the decision below. 6 Sierra Pacific Power Co. v. F.P.C., 96 U.S.App.D.C. 140, 223 F.2d 605, affirmed 350 U.S. 348, 76 S.Ct. 368. 7 See also Colorado Interstate Gas Co. v. F.P.C., 10 Cir., 142 F.2d 943, 954, affirmed 324 U.S. 581, 65 S.Ct. 829, 89 L.Ed. 1206. 8 Tyler Gas Service Co. v. United Gas Pipe Line Co., 217 F.2d 73. 9 E.g., City of Lamar v. Town of Wiley, 80 Colo. 18, 248 P. 1009; Kansas City Light & Power Co. v. Midland Realty Co., 338 Mo. 1141, 93 S.W.2d 954, affirmed 300 U.S. 109, 57 S.Ct. 345, 81 L.Ed. 540; Suburban Water Co. v. Oakmont Borough, 268 Pa. 243, 110 A. 778; North Coast Power Co. v. Public Service Comm., 114 Wash. 102, 194 P. 587. 10 E.g., Rutland Ry. Light & Power Co. v. Burditt Bros., 94 Vt. 421, 111 A. 582; Commonwealth ex rel. Page Milling Co. v. Shenandoah River L. & P. Corp., 135 Va. 47, 68—73, 115 S.E. 695, 701—703; In re Searsport Water Co., 118 Me. 382, 392—393, 108 A. 452, 457—458; see also Attleboro Steam & Elec. Co. v. Narragansett Elec. Lighting Co., D.C.D.R.I., 295 F. 895.

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350 U.S. 264 76 S.Ct. 383 100 L.Ed. 285 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.COCA-COLA BOTTLING CO. OF LOUISVILLE, Inc. No. 79. Argued Jan. 17, 1956. Decided Feb. 27, 1956. Mr. David P. Findling, Washington, D.C., for petitioner. Mr. John K. Skaggs, Jr., Louisville, Ky., for respondent. [Syllabus intentionally omitted] Mr. Arthur J. Goldberg, Washington, D.C., for A.F.L.—C.I.O. as amicus curiae with consent of petitioner. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Charging respondent with coercion of its employees and discrimination against pro-union employees, Local 20 of the United Brewery Workers, CIO, instituted proceedings before the National Labor Relations Board for violation of §§ 8(a) (1) and 8(a)(3) of the National Labor Relations Act, as amended, 61 Stat. 136, 140, 65 Stat. 601, 602, 29 U.S.C.A. §§ 151 et seq., 158(a)(1, 3), which outlaw such unfair labor practices. Pursuant to this charge, a complaint was issued; at the hearing which followed, respondent challenged the jurisdiction of the Board upon the ground that the union had not satisfied the requirements of § 9(h) of the Act. Section 9(h) provides that 'no complaint shall be issued pursuant to (an unfair labor practice) charge made by a labor organization * * * unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelve-month period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.' Respondent offered to prove, by evidence of his duties and functions, that Taylor, the Regional Director of the CIO for Kentucky, who admittedly had not filed a non-Communist affidavit, was an 'officer' within the meaning of § 9(h). The Board rejected this contention on two grounds: First, 'the compliance status of a union * * * is a matter for administrative determination, and not one to be litigated in complaint or representation proceedings.' 108 N.L.R.B. 490, 491. Second, 'had the Respondent established in a collateral proceeding what it had offered to prove at the hearing herein, we are satisfied, and find, that under the Board's present 'constitutional' test, such proof would fall short of substantiating the Respondent's contention that Taylor was an officer of the CIO.' 108 N.L.R.B. 490, 492—493. 2 On the merits, the Board found that respondent had committed the unfair practices charged. When the Board sought enforcement of its decree, the Court of Appeals for the Sixth Circuit, without passing upon the unfair practices, remanded the case to the Board for determination of the issue tendered by respondent in its claim that Taylor's functions constituted him an 'officer.' 219 F.2d 441. We granted certiorari because of the importance of the questions raised in the administration of the statute. 350 U.S. 819, 76 S.Ct. 49. 3 These questions are two in number: (1) May an employer, during the course of an unfair labor practice hearing, show that a labor organization has not complied with § 9(h) and thereby establish the Board's want of jurisdiction? (2) Assuming the answer to this question is 'yes,' is the Board's construction of 'officer' in § 9(h)—viz., 'any person occupying a position identified as an office in the constitution of the labor organization'—proper? 29 CFR, 1955 Supp., § 102.13.* 4 The Court of Appeals answered the first question in the affirmative upon the authority of National Labor Relations Board v. Highland Park Manufacturing Co., 341 U.S. 322, 71 S.Ct. 758, 95 L.Ed. 969. In that case an employer, defendant in an unfair labor practice suit, challenged the Board's interpretation of 'national or international labor organization' in § 9(h). The agency had read this language as not including labor federations, i.e., the AFL or CIO. Therefore, it had not required affidavits from officers of these federations. Highland Park's challenge was rejected by the Board under its then settled policy that the employer could not raise noncompliance with § 9(h) as a bar to a proceeding on an unfair labor practice. The Court of Appeals held to the contrary, 4 Cir., 184 F.2d 98, and we affirmed its decision. 5 The Board distinguishes Highland Park by suggesting that here the 'employer seeks to question only the fact of compliance, as distinguished from the necessity of compliance.' The genesis of this distinction comes from the following in Highland Park: '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.' 341 U.S. 322, 325, 71 S.Ct. 758, 760. The Board misconceives the significance of the passage. Both Highland Park and this case involve the scope of § 9(h), the meaning to be derived from its language; neither case involves an inquiry into disputed facts, the situation referred to in Highland Park. Acceptance of a differentiation between these cases upon any such theory as that suggested by the Board would make of law too thin a dialectic enterprise. 6 But if the Board's distinction is overly subtle, its reason for attempting a distinction has force, namely, a concern with 'the need to expedite the hearing of cases and the resolution of issues on their merits. * * *' 108 N.L.R.B. 490, 491. Much may be said for the claim that an employer should not be permitted to disrupt or delay complaint or representation cases by raising questions respecting § 9(h). But after Highland Park the argument comes too late. 7 In any event, whether the impediment to the effectiveness of the administrative process in determining the merits of a charge of unfair labor practice may be serious or negligible by injecting into it the subsidiary issue of compliance with § 9(h), depends upon the scope of the inquiry opened up by the latter issue. This brings us to that question. Our concern specifically is with the appropriate construction of 'officers' in § 9(h). The Court of Appeals rejected the Board's 'constitutional' rule for determining who is a union 'officer' in favor of a so-called 'functional' test. Presumably this test would require those members of a union who are effective instruments of its policies to file affidavits as 'officers,' regardless of the fact that they do not fill the offices designated by their organization's constitution. 8 Neither § 9(h) itself nor its legislative history attempts a definition of 'officers.' 'Officers' is a word of familiar usage and '(a)fter all, legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him.' Addison v. Holly Hill Fruit Products, 322 U.S. 607, 618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488. 'Officers' normally means those who hold defined offices. It does not mean the boys in the back room or other agencies of invisible government, whether in politics or in the trade-union movement. A definition of officer as 'any person occupying a position identified as an office in the constitution of the labor organization' accords with this lay understanding. 29 CFR, 1955 Supp., § 102.13. 9 But if the word be deemed to have a peculiar connotation for those intimate with trade-union affairs, it is incumbent upon us to give the word its technical meaning, Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 53, 73 L.Ed. 170, for § 9(h) is an integral part of a statute whose sponsors were familiar with labor organization and labor problems and which was doubtless drawn by specialists in labor relations. If such be the case, then of course the Board's expertness comes into play. We should affirm its definition if that definition does not appear too farfetched, National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 130, 64 S.Ct. 851, 860, 88 L.Ed. 1170. The statute provides some evidence to support the Board, for § 9(f), which requires unions to report specific information to the Secretary of Labor, differentiates between 'officers' and 'agents' of labor organizations. 10 We conclude that the Board's criterion for determining who are officers both accords with the lay definition of the word and is a reasonable, if indeed not a compelling, construction of the statute. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to that court for further proceedings. 11 Reversed and remanded. 12 Mr. Justice HARLAN took no part in the consideration or decision of this case. * The only qualification to this practically automatic definition of who is or is not an officer is the following provision of § 102.13(b)(3) of the Board's Rules and Regulations: '* * * where the Board has reasonable cause to believe that a labor organization has omitted from its constitution the designation of any position as an office for the purpose of evading or circumventing the filing requirements of section 9(h) of the act, the Board may, upon appropriate notice, conduct an investigation to determine the facts in that regard, and where the facts appear to warrant such action the Board may require affidavits from persons other than incumbents of positions identified by the constitution as offices before the labor organization will be recognized as having complied with section 9(h) of the act.' 29 CFR, 1955 Supp., § 102.13(b)(3). We interpret this to mean that the application of this exception is wholly within the Board's control and cannot be litigated in an unfair labor practice proceeding.

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350 U.S. 299 76 S.Ct. 400 100 L.Ed. 335 UNITED STATES of America, Petitioner,v.Joseph P. RYAN. No. 281. Argued Jan. 19, 1956. Decided Feb. 27, 1956. Mr. Oscar H. Davis, Washington, D.C., for petitioner. Mr. Louis Waldman, New York City, for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 The question for decision in this case is whether the president and principal negotiator of a labor union is a 'representative' of employees within the meaning of § 302(b) of the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U.S.C. § 141, 29 U.S.C.A. §§ 141, 186(b). That section makes it unlawful for 'any representative of any employees' to receive money or other thing of value from the employer. The District Court, 128 F.Supp. 128, held that respondent Joseph P. Ryan was a 'representative' within the meaning of § 302(b), but the Court of Appeals for the Second Circuit reversed, Judge Hand dissenting. 225 F.2d 417. Because of the importance of this question in the administration of the Act, we granted certiorari, 350 U.S. 860, 76 S.Ct. 103. 2 Ryan was president of The International Longshoremen's Association (ILA) during the years 1950 and 1951. The ILA and its affiliated groups were the recognized collective-bargaining agents for longshore labor in the Port of New York, and bargained through a wage scale committee of which Ryan was a member. He signed the agreements negotiated during that period. J. Arthur Kennedy & Son, Inc., and Daniels & Kennedy, Inc., were concerns engaged in stevedoring operations; their employees were members of the ILA, and they were bound by the agreements netotiated with that union by the New York Shipping Association. The District Court found that James C. Kennedy, president of both Kennedy companies, had given Ryan $1,000 in December of each year from 1946 through 1951, and $500 in April 1951. These findings are not disputed. Ryan was indicted under § 302(b) for accepting the one 1950 and two 1951 payments.1 He was found guilty and sentenced to six months' imprisonment on each of the three counts, the sentences to run concurrently, and fined $2,500. 3 The Court of Appeals reversed solely on its interpretation of the term 'representative' in § 302(b) of the LMRA. It concluded (225 F.2d 421) that the term had a technical meaning in labor legislation and was limited to 'the exclusive bargaining representative' of the employees, which in this case was the ILA itself. Since the section applied only to the 'representative,' payments to Ryan individually were not covered even though as president of the representative union, he was a member of its wage scale committee and signed all negotiated agreements. We do not decide whether any official of a union is ex officio a representative of employees under § 302. We believe, however, that respondent's relationship brings him within that term. 4 The LMRA provides that the term 'representative' shall have 'the same meaning as when used in the National Labor Relations Act as amended by this Act.' § 501(3), 29 U.S.C.A. § 142(3). The pertinent definition appears in § 2(4) of the NLRA: 'The term 'representatives' includes any individual or labor organization.' 49 Stat. 449, 450, 29 U.S.C. §§ 151, 152(4), 29 U.S.C.A. §§ 151, 152(4). 5 The Board has held that employees may choose to elect an individual as exclusive or sole bargaining representative.2 The Court of Appeals, laying much stress on these holdings, assumes that the possibility of such a one-man exclusive bargaining representative, though extremely rare,3 is the only reason for the inclusion of the word 'individual' in this definition. We cannot accept such an anomalous view. It is obvious that any labor organization, even when serving as an exclusive bargaining representative, can negotiate, speak, and act only through individuals. All collective bargaining is conducted by individuals who represent labor and management. Many limitations or prohibitions upon labor organization action can be effective only if there are corresponding limitations or prohibitions on the individuals who act for the labor organization. Congress, we believe, placed the identical limitations on both individuals and organizations by terming both 'representatives' of employees in § 2(4), 29 U.S.C.A. § 152(4). We agree with Judge Hand that in using the term 'representative' Congress intended that it include any person authorized by the employees to act for them in dealings with their employers. 6 Considering the precise words of the statute—'any representative of any employees'—it is plain that their literal meaning strongly suggests that they were meant to include someone in the position of respondent Ryan who represented employees both as a union president and principal negotiator. And this interpretation is strengthened by a consideration of the full text of § 302.4 Paragraphs (a) and (b) of § 302 make it unlawful for any employer to offer, or any representative to accept, money or other thing of value. Paragraph (c) lists five exceptions to these broad prohibitions. The first exempts payments as compensation for services 'to any representative who is an employee' of the employer. Thus it is clear that § 302 anticipates that a 'representative' may be an individual. Of the remaining four exceptions, one could apply only to unions but each of the other three could apply as readily to individuals.5 7 Further, a narrow reading of the term 'representative' would substantially defeat the congressional purpose. In 1946 Congress was disturbed by the demands of certain unions that the employers contribute to 'welfare funds' which were in the sole control of the union or its officers and could be used as the individual officers saw fit. The United Mine Workers' demand that mine operators create a welfare fund for the union by contributing 10 cents for each ton of coal mined, caused the Congress to act. The Case Bill, N.R.4908, 79th Cong., 2d Sess., which regulated welfare funds in a manner similar to § 302, was enacted in 1949, but was vetoed by the President. The following year the Taft-Hartley Act containing § 302 was passed over another veto. But, if 'representative' means only the 'exclusive bargaining representative', the explicit limitations on welfare funds in § 302(c)(5) may be easily evaded. Payments made directly to union officials, or to other individuals as trustees, would apparently be excluded from § 302. Thus, a narrow construction would frustrate the primary intent of Congress. 8 Nor can it be contended that in this legislation Congress was aiming solely at the welfare fund problem. Such a suggestion is supported neither by the legislative history nor the structure of the section. The arrangement of § 302 is such that the only reference to welfare funds is contained in § 302(c)(5). If Congress intended to deal with that problem alone, it could have done so directly, without writing a broad prohibition in subsections (a) and (b) and five specific exceptions thereto in subsection (c), only the last of which covers welfare funds. As the statute reads, it appears to be a criminal provision, malum prohibitum, which outlaws all payments, with stated exceptions, between employer and representative. 9 The legislative history supports these conclusions. As passed by the House of Representatives, the Hartley Bill forbade employer contributions to union welfare funds, and made it an unfair labor practice to give favors to 'any person in a position of trust in a labor organization * * *.' H.R.3020, 80th Cong., 1st Sess., § 8(a)(2). The scope of this bill was enlarged when it reached the Senate to include, in the words of Senator Taft, a 'case where the union representative is shaking down the employer * * *.' 93 Cong.Rec. 4746. The resulting Senate amendment made it criminal both for the employer and the 'representative' of employees to engage in such practices. 10 It is not disputed that the plain language of the Senate version of the bill brought within its coverage any individual who dealt with an employer on behalf of two or more of the latter's employees concerning employment matters. As passed by the Senate, § 302 contained a special definition of the term 'representative.'6 The Joint Conference Committee substituted for it the definition of that term in the NLRA, as amended. § 501(3). This substitution was among those secribed by the Joint Conference Committee Report as 'minor clarifying changes.' H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., at 67. 11 We cannot read this history as supporting the conclusion that the scope of § 302 was limited by the Joint Conference to include only the 'exclusive bargaining representative' of employees. Such a change would have drastically reduced the scope of the section, and could hardly be described as a 'minor clarifying' change. Certainly, in the face of this legislative history, we should not reduce the legislation to a practical nullity. 12 It is insisted that this interpretation clashes with the use of the term 'representative' in various sections of the NLRA. In the majority of the examples given, the scope of the term is made clear by other words in the provisions themselves.7 But further, the provision in the LMRA that 'representative' shall have its NLRA meaning is no more applicable to § 302 than to any other section of the LMRA, and in several other sections of that Act it is patent that 'representative' cannot be construed to include only the exclusive bargaining representative. For example, § 204(a), 29 U.S.C.A. § 174(a), refers to 'employers and employees and their representatives,' and § 211(a), 29 U.S.C.A. § 181(a), refers to 'interested representatives of employers, employees, and the general public'. There are other examples, but these are sufficient. If the severely restricted construction contended for the word 'representative' is inapplicable to one section of the LMRA, there is no compulsion to apply it to any other section. 13 We conclude, therefore, that § 302 prohibits payments by employers to individuals who represent employees in their relations with the employers. The judgment is reversed and remanded. 14 Reversed and remanded. 15 Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 The previous section, 302(a), makes it unlawful for any employer 'to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce.' The record does not disclose whether the Government has taken any action under this section against the employers involved. 2 See The Robinson-Ransbottom Pottery Co., 27 N.L.R.B. 1093; Louisville Sanitary Wiper Co., 65 N.L.R.B. 88. 3 Statistics supplied by the NLRB for the last two years show that one-man exclusive bargaining representatives constitute less than 0.1% of all representatives certified by the Board. In fiscal year 1955, the Board certified 1 individual in 2,904 elections in which representatives were chosen. There were 10 petitions for certification filed by individuals in 4,372 elections. In fiscal 1954, 5 individuals were certified in 3,108 elections in which representatives were chosen. There were 11 such petitions and a total of 4,813 elections. 4 'Sec. 302 (a) It shall be unlawful for any employer to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce. '(b) It shall be unlawful for any representative of any employees who are employed in an industry affecting commerce to receive or accept, or to agree to receive or accept, from the employer of such employees any money or other thing of value. '(c) The provisions of this section shall not be applicable (1) with respect to any money or other thing of value payable by an employer to any representative who is an employee or former employee of such employer, as compensation for, or by reason of, his services as an employee of such employer; (2) with respect to the payment or delivery of any money or other thing of value in satisfaction of a judgment of any court or a decision or award of an arbitrator or impartial chairman or in compromise, adjustment, settlement or release of any claim, complaint, grievance, or dispute in the absence of fraud or duress; (3) with respect to the sale or purchase of an article or commodity at the prevailing market price in the regular course of business; (4) with respect to money deducted from the wages of employees in payment of membership dues in a labor organization: Provided, That the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner; or (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of the employees may agree upon and in the event the employer and employer groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide such dispute, or in event of their failure to agree within a reasonable length of time, an impartial umpire to decide such dispute shall, on petition of either group, be appointed by the district court of the United States for the district where the trust fund has its principal office, and shall also contain provisions for an annual audit of the trust fund, a statement of the results of which shall be available for inspection by interested persons at the principal office of the trust fund and at such other places as may be designated in such written agreement; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities. '(d) Any person who willfully violates any of the provisions of this section shall, upon conviction thereof, be guilty of a misdemeanor and be subject to a fine of not more than $10,000 or to imprisonment for not more than one year, or both. * * *' 61 Stat. 157, 29 U.S.C. § 186, 29 U.S.C.A. § 186. 5 Subsection (4), relating to check-off payments for union dues, presupposes that the 'representative' is the labor union itself. Subsections (2), relating to payments of judgments or arbitration awards, (3), relating to purchase or sale of goods in the ordinary course of business, and (5), relating to payments to trust or welfare funds, however, are consistent with either interpretation of the term 'representative.' 6 Section 302(g) of the Senate version stated, 'For the purposes of this section, the term 'representative' means any labor organization which, or any individual who, is authorized or purports to be authorized to deal with an employer, on behalf of two or more of his employees, concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work * * *.' 7 Examples are, § 1, 29 U.S.C.A. § 151, 'designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment,' § 7, 29 U.S.C.A. § 157, 'to bargain collectively through representatives of their own choosing,' § 8(b)(4)(B) and (C), 29 U.S.C.A. § 158(b)(4)(B, C), 'a labor organization as the representative of his employees', § 8(b)(4)(D), 'bargaining representative for employees.'

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350 U.S. 366 76 S.Ct. 410 100 L.Ed. 412 Earl P. GREENWOOD, Petitioner,v.UNITED STATES of America. No. 460. Argued Jan. 25, 1956. Decided March 5, 1956. Mr. William J. Burrell, Kansas City, Mo., for petitioner. Sol. Gen. Simon E. Sobeloff, Washington, D.C., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 This case involves the construction and constitutional validity of the Act of September 7, 1949, 63 Stat. 686, now codified in 18 U.S.C. §§ 4244—4248, 18 U.S.C.A. §§ 4244—4248, 'To provide for the care and custody of insane persons charged with or convicted of offenses against the United States, and for other purposes.' 2 Section 4244 provides a procedure for determining mental incompetency during the period 'after arrest and prior to the imposition of sentence or prior to the expiration of any period of probation.'1 Section 4245 sets up a similar procedure for persons in prison believed to have been mentally incompetent at the time of their trial when the issue was not raised or determined before or during trial. Section 4246 states that whenever the trial court shall determine, under §§ 4244 and 4245, that an accused is or was mentally incompetent, the court may commit the accused to the custody of the Attorney General until the accused is mentally competent to stand trial or until the pending charges against him are disposed of according to law. Section 4246 further provides that if the court, after hearing as provided in the preceding §§ 4244 and 4245, finds that the conditions specified in § 4247 exist, the commitment shall be governed by § 4248.2 Section 4247 states that when a prisoner's sentence is about to expire and the prison board of examiners finds him insane and a probable danger to the officers, property, or other interests of the United States, then the court shall hold a hearing and, if it determines that those conditions exist, it may commit the prisoner to the custody of the Attorney General.3 Under § 4248 the commitment shall run until sanity is restored, or until the prisoner's condition is so improved that he will not endanger the officers, property, or other interests of the United States, or until suitable arrangements are made for the care of the prisoner by his State of residence—reserving to the prisoner his right to establish his eligibility to release by writ of habeas corpus.4 3 Petitioner, a resident of Cleveland, Ohio, was indicted on November 20, 1952, by a grand jury of the Western District of Missouri on two counts, for robbery from a United States Post Office in Kansas City, Missouri, and for felonious assault there on a postal employee. Under Rule 20 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., petitioner signed a waiver of trial in the Western District of Missouri and was transferred to the Eastern Division of the Northern District of Ohio. Acting on the suggestion of appointed counsel, the district judge ordered petitioner examined by a psychiatrist. After a hearing in which the examining psychiatrist testified that it was doubtful that petitioner, because of his mental condition, could have fully understood the significance of the waiver he signed, the District Court, on February 2, 1953, remanded the case to the District Court for the Western District of Missouri for disposition. 4 That court ordered the accused delivered to the United States Medical Center for Federal Prisoners at Springfield, Missouri, for the purpose of ascertaining his mental condition. On April 15, 1953, the Chief of the Psychiatric Service at the Medical Center filed his report concluding that the accused was legally insance, in that he was unable to choose between right and wrong and could not, by reason of his mental condition adequately cooperate with counsel in his own defense. 5 Petitioner was then transferred to jail; but, on November 16, 1953, the District Court entered an order returning him to the Medical Center for determination whether he was acutely or chronically insane. The report of the Neuropsychiatric Staff of the Medical Center, filed February 1, 1954, indicated that petitioner was 'psychotic and incompetent,' that 'it is unlikely that this subject will regain his sanity in the near future,' and recommended that 'consideration be given to transferring this subject to a state hospital in his state of residence.' The District Court, on the following day, ordered a further hearing under § 4246 to 'resolve the power to commit defendant as mentally defective under the conditions specified in Section 4247. * * *' and for that purpose requested the Director and Board of Examiners of the Medical Center to certify whether in their judgment the defendant, if released, would 'probably endanger the safety of the officers, the property, or other interests of the United States, and that suitable arrangements for the custody and care of the (defendant) are not otherwise available.' The report of the Board, dated February 4, 1954, concluded that the accused remained 'psychotic and incompetent,' and stated that 'at the present time there appears to be little likelihood of his recovering to the extent that he might be considered competent in the near future.' In reply to the request of the District Court, '(t)he Board agreed that this subject might be considered potentially dangerous to the extent that if released he might conceivably persist in criminal activities of the type with which he is presently charged. In considering this man's mental illness the Board finds that he does not hold any fixed delusions concerning wanting to harm any person or group of persons, either officials of the government or otherwise, so that in this respect he probably would not constitute a danger to the safety of officers, property, or other interests of the United States. * * * The Board further recommends that this subject be considered a suitable candidate for state hospital care if suitable arrangements can be made.' In May 1954 petitioner was transferred to the custody of the State of Ohio where he was again examined by the psychiatrist who had made the examination when petitioner was transferred to the District Court for the Northern District of Ohio in 1952. This time the psychiatrist found that petitioner 'is now in a state of remission equivalent to a recovery. He is not now insane in the legal sense.' Petitioner was then released by the Ohio authorities. 6 Petitioner was rearrested in Ohio under the original indictment, which was still pending, and on June 16, 1954, removed to the Western District of Missouri. On June 18, counsel appointed for petitioner moved the court to appoint at least one qualified psychiatrist to inquire into petitioner's mental competency and to hold a hearing for that purpose. Two psychiatrists were appointed and were directed to report to the court. Petitioner was also recommitted to the United States Medical Center for Federal Prisoners at Springfield, Missouri, for further examination. 7 The hearing on petitioner's sanity was held on July 15. The two psychiatrists appointed by the court testified that in their belief petitioner was sane. The first three reports of the Medical Center were received in evidence, along with a fourth, a report of the Neuropsychiatric Staff of the Medical Center at Springfield, dated July 8, 1954. This latest report concluded 'that the subject remains legally insane by reason of a major mental disorder which would prevent him from having a proper understanding of the proceeding pending against him and which also impairs his ability to properly assist in his own defense.' The staff further concluded 'that this subject's prognosis for recovery appears to be poor and that he will probably require indefinite hospitalization to insure his own safety and that of society. The staff does not consider the subject to be potentially dangerous except to the extent that if released, he might persist in engaging in criminal activities similar to those with which he is presently charged.' The Chief of the Psychiatric Service at the Medical Center testified at this hearing to the same effect. 8 The District Court, in its order of July 30, found that the accused was insane and so mentally incompetent that he could not stand trial, that, if released, he would probably endanger the safety of the officers, property, or other interests of the United States, and that no suitable arrangements for custody and care, other than commitment to the custody of the Attorney General, were available. Petitioner was therefore committed to the custody of the Attorney General until his sanity should be restored, or his mental condition so improved that, if released, he would not endanger the safety of the officers, property, or other interests of the United States, or until suitable arrangements could be made for the custody and care of defendant by Ohio, the State of his residence. 125 F.Supp. 777, 778. Petitioner appealed from this judgment and the Court of Appeals for the Eighth Circuit, its seven circuit judges sitting en banc, affirmed, one judge dissenting. 219 F.2d 376. Because of the important issue of federal power raised by the case and because of conflicting views in the Courts of Appeals, compare Higgins v. United States, 9 Cir., 205 F.2d 650, and Wells v. Attorney General, 10 Cir., 201 F.2d 556, with the decision of the Court of Appeals for the Eighth Circuit in this case, we granted certiorari. 350 U.S. 821, 76 S.Ct. 89. 9 A detailed history of the legislation is set forth in the opinion of the Court of Appeals. 219 F.2d at pages 380—384. It is sufficient to note here that the bill was proposed by the Judicial Conference of the United States after long study by a conspicuously able committee, followed by consultation with federal district and circuit judges. 10 The statute deals comprehensively with those persons charged with federal crime who are insane or mentally incompetent to stand trial. It provides a procedure for determination of such insanity or mental incompetence, and further provides for commitment of those found to be insane or mentally incompetent. Petitioner's assertion that the statute deals only with the problem of temporary mental disorder is not supported by the language of the statute, and the report of the Committee of the Judicial Conference clearly indicates that the statute was designed to deal with mental disability which seems more than temporary: 11 'If the accused's mental disability appears not to be a transitory condition, but in all likelihood he will, because of his insanity, never be brought to trial, it would seem that as a general rule the federal government should not assume responsibility for his hospitalization merely because he has been accused (but not convicted) of a federal crime. Normally such a person should be turned over to the state of his domicile to be confined in a state mental hospital if hospitalization is called for. 12 'But there may be cases where the accused's domicile cannot be satisfactorily established and where no state will assume responsibility for his care. The federal government may then be faced with the practical situation that it has lawful custody of a person whom it is not safe to let at large. In a recent case in the District of Massachusetts, United States v. Torrez (unreported), a Filipino was brought into the district and indicted for murder on the high seas. After notice of hearing at which alienists for the government and for the defendant testified, the judge found that the defendant was at present insance and unable rationally to aid in the conduct of his defense. Obviously in such case there should be authority in the court to cause the confinement of the accused in a mental hospital.' 13 The District Court pursued the appropriate procedure in holding a hearing to determine the existence of the conditions specified in § 4247, once it determined that the accused's mental incompetence seemed more than temporary. Although the language of the statute and the report of the Committee of the Judicial Conference demonstrate that the statute deals generally with the situations both of temporary and more than temporary insanity, one could infer from the reports on the bill by the Committee, by the Judicial Conference itself, and by the committees of both Houses of Congress that the specific commitment under § 4248 was designed only for prisoners whose sentences are about to expire. But this is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute. The second sentence of § 4246 clearly makes commitment under § 4248 applicable to persons found mentally incompetent under § 4244 who meet the conditions specified in § 4247. 14 We reach then the narrow constitutional issue raised by the order of commitment in the circumstances of this case. The petitioner came legally into the custody of the United States. The power that put him into such custody—the power to prosecute for federal offenses—is not exhausted. Its assertion in the form of the pending indictment persists. The District Court has found that the accused is mentally incompetent to stand trial at the present time and that, if released, he would probably endanger the officers, property, or other interests of the United States—and these findings are adequately supported. In these circumstances the District Court has entered an order retaining and restraining petitioner, while in his present condition, with habeas corpus always available when circumstances warrant. This commitment, and therefore the legislation authorizing commitment in the context of this case, involve an assertion of authority, duly guarded, auxiliary to incontestable national power. As such it is plainly within congressional power under the Necessary and Proper Clause. Art. I, § 8, cl. 18. 15 The fact that at present there may be little likelihood of recovery does not defeat federal power to make this initial commitment of the petitioner. We cannot say that federal authority to prosecute has now been irretrievably frustrated. The record shows that two court-appointed psychiatrists found petitioner sane and competent for trial. While the District Court did not accept their conclusion, their testimony illustrates the uncertainty of diagnosis in this field and the tentativeness of professional judgment. The only certain thing that can be said about the present state of knowledge and therapy regarding mental disease is that science has not reached finality of judgment, even about a situation as unpromising as petitioner's, at least as indicated by the report of the United States Medical Center at Springfield. Certainly, denial of constitutional power of commitment to Congress in dealing with a situation like this ought not to rest on dogmatic adherence to one view or another on controversial psychiatric issues. 16 We decide no more than the situation before us presents and equally do not imply an opinion on situations not now before us. The judgment of the Court of Appeals is affirmed. 17 Affirmed. 18 Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 Sec. 4244: 'Whenever after arrest and prior to the imposition of sentence or prior to the expiration of any period of probation the United States Attorney has reasonable cause to believe that a person charged with an offense against the United States may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense, he shall file a motion for a judicial determination of such mental competency of the accused, setting forth the ground for such belief with the trial court in which proceedings are pending. Upon such a motion or upon a similar motion in behalf of the accused, or upon its own motion, the court shall cause the accused * * * to be examined as to his mental condition by at least one qualified psychiatrist, who shall report to the court. For the purpose of the examination the court may order the accused committed for such reasonable period as the court may determine to a suitable hospital or other facility to be designated by the court. If the report of the psychiatrist indicates a state of present insanity or such mental incompetency in the accused, the court shall hold a hearing, upon due notice, at which evidence as to the mental condition of the accused may be submitted, including that of the reporting psychiatrist, and make a finding with respect thereto. * * *' 2 Sec. 4246: 'Whenever the trial court shall determine in accordance with sections 4244 and 4245 * * * that an accused is or was mentally incompetent, the court may commit the accused to the custody of the Attorney General or his authorized representative, until the accused shall be mentally competent to stand trial or until the pending charges against him are disposed of according to law. And if the court after hearing as provided in the preceding sections 4244 and 4245 shall determine that the conditions specified in the following section 4247 exist, the commitment shall be governed by section 4248 as herein provided.' 3 Sec. 4247: 'Whenever the Director of the Bureau of Prisons shall certify that a prisoner whose sentence is about to expire has been examined by the board of examiners referred to in * * * section 4241, and that in the judgment of the Director and the board of examiners the prisoner is insane or mentally incompetent, and that if released he wll probably endanger the safety of the officers, the property, or other interests of the United States, and that suitable arrangements for the custody and care of the prisoner are not otherwise available, the Attorney General shall transmit the certificate to the clerk of the court for the district in which the prisoner is confined. * * * If upon such hearing the court shall determine that the conditions specified above exist, the court may commit the prisoner to the custody of the Attorney General, or his authorized representative.' 4 Sec. 4248: 'Whenever a person shall be committed pursuant to section 4247 * * * his commitment shall run until the sanity or mental competency of the person shall be restored or until the mental condition of the person is so improved that if he be released he will not endanger the safety of the officers, the property, or other interests of the United States, or until suitable arrangements have been made for the custody and care of the prisoner by the State of his residence, whichever event shall first occur. * * * Provided, however, That nothing herein contained shall preclude a prisoner committed under the authority of section 4247 hereof from establishing his eligibility for release under the provisions of this section by a writ of habeas corpus. The Attorney General or his authorized representative shall have authority at any time to transfer a prisoner committed to his custody under the authority of section 4246 or section 4247 hereof to the proper authorities of the State of his residence.'

910

350 U.S. 383 76 S.Ct. 416 100 L.Ed. 441 UNITED STATES of America, Petitioner,v.LESLIE SALT CO. No. 74. Argued Dec. 7, 1955. Decided March 5, 1956. [Syllabus from pages 383-384 intentionally omitted] John F. Davis, Washington, D.C., for petitioner. Bruce M. Casey, Jr., San Francisco, Cal., for respondent. Mr. Justice HARLAN delivered the opinion of the Court. 1 On February 1, 1949, Leslie Salt Company, being in need of funds to meet maturing bank loans and for working capital, borrowed $3,000,000 from the Mutual Life Insurance Company of New York and $1,000,000 from the Pacific Mutual Life Insurance Company. As evidence of the indebtedness Leslie Salt delivered to each insurance company its '3 1/4% Sinking Fund Promissory Note Due February 1, 1964' in these amounts. The question presented is whether these instruments are subject to the documentary stamp taxes laid on 'all bonds, debentures, or certificates of indebtedness issued by any corporation * * *.' under §§ 1800 and 1801 of the Internal Revenue Code of 1939, 26 U.S.C.A. §§ 1800, 1801.1 2 The Commissioner of Internal Revenue held the tax applicable, considering the two instruments to be 'debentures' within the meaning of § 1801. However, in a tax recovery suit instituted by Leslie Salt, following payment of the tax under protest and the Commissioner's denial of a refund, the District Court2 and the Court of Appeals3 held the instruments not to be 'debentures' or otherwise subject to stamp taxes. We brought the case here, 349 U.S. 951, 75 S.Ct. 885, 99 L.Ed. 1276, to resolve the uncertainty left by lower court decisions as to whether § 1801 applies to corporate notes of this type.4 3 Except as to amounts and payees, the two instruments in question were in identical terms, having these principal features: (1) each instrument carried the promissory note description already indicated; (2) each had a maturity of 15 years; (3) each carried interest of 3 1/4% payable August 1 and February 1 of each year on the unpaid balance; and (4) each was subject to the terms of an underlying agreement containing elaborate provisions for the protection of the note holders. Among those provisions was one under which each insurance company could require Leslie Salt to convert its note, which was typewritten on ordinary white paper, into a series of new notes in denominations of $1,000 or multiples thereof, 'either in registered form without coupons or in coupon form, and in printed or in fully engraved form.'5 This option has not been exercised by either note holder. 4 These transactions with the two insurance companies constituted a variety of 'private placement,' a method of corporate financing which, because of its economies and conveniences, has become popular since the enactment of the Securities Act of 1933, 15 U.S.C.A. § 77a et seq. The Government claims that these notes are taxable under § 1801 either as 'debentures' or 'certificates of indebtedness.' The taxpayer, on the other hand, contends that these terms, undefined in the statute, do not include notes of the type here in issue. Taking the statute in light of its legislative and administrative history, we agree with the taxpayer's contention. 5 'Debentures' and 'certificates of indebtedness', along with other kinds of corporate securities, have been subject to stamp taxes since 1898, except for the period between 1902 and 1914.6 'Promissory notes' were also subject to stamp duties from 1898 to 1901 and from 1914 until 1924, when the tax was repealed;7 it has never been re-enacted. The tax on 'promissory notes,' however, was always carried in a section separate from that containing the tax on 'bonds, debentures, or certificates of indebtedness', and was always at a rate lower than the tax on those instruments. Since promissory notes, debentures, and certificates of indebtedness all serve the same basic purpose—that is, as evidence of a debt—this former legislative distinction between promissory notes and the other instruments assumes significance in determining whether the present notes are taxable. For unless the earlier statutes were intended to impose two taxes on the same instrument, which we should not assume, or the present tax on debentures and certificates of indebtedness is broader in scope than that in effect in 1924, of which there is no indication, it would seem to follow that these notes should not now be taxed if they can be said to fall within the class of 'promissory notes' on which the tax was repealed. 6 The Government argues that the repealed promissory note provision related only to ordinary short-term paper customarily used in day-to-day commercial transactions, and that it did not embrace notes, like those here involved, of large amounts, long maturity, and secured by an elaborate underlying agreement. See General Motors Acceptance Corp. v. Higgins, 2 Cir. ,161 F.2d 593, 595. The existence of these features, however, does not render either of the Leslie Salt instruments any the less a promissory note, as each was captioned. Nor do we find anything in the earlier legislation or in its history which satisfies us that this type of note would not have been taxable at the lower rate provided in the promissory note section of the former statute. See Niles-Bement-Pond Co. v. Fitzpatrick, 2 Cir., 213 F.2d 305, 308 310. Moreover, the administrative interpretations of the Treasury, discussed below, affirmatively indicate that they would have been considered taxable under that section. 7 But even assuming that these notes could not fairly be called 'promissory notes,' it does not follow that they must therefore be regarded as 'debentures' or 'certificates of indebtedness.' That depends upon the meaning of those terms in the statute, and upon whether these notes, regardless of their descriptive caption, have the essential characteristics of 'debentures' or 'certificates of indebtedness', as those terms are used in the statute. General Motors Acceptance Corp. v. Higgins, supra; Niles-Bement-Pond Co. v. Fitzpatrick, supra. And in determining the scope of the statute, which has remained substnatially unchanged since its first enactment, the Treasury's interpretations of it are entitled to great weight. White v. Winchester Country Club, 315 U.S. 32, 41, 62 S.Ct. 425, 430, 86 L.Ed. 619. 8 The administrative history of the statute establishes that until 1947, when the General Motors case, supra, was decided, only thse instruments were considered subject to the 'debenture' tax which were issued (1) in series, (2) under a trust indenture, and (3) in registered form or with coupons attached. In other words, that tax was considered to apply only to marketable corporate securities, as that term is generally understood. Conversely, corporate promissory notes lacking any of those features, such as those issued by respondent, were taxed at the lower promissory note rate until that tax was repealed in 1924, and were not taxed thereafter until the Government's success in the General Motors case in 1947. 9 As early as 1918 the Treasury, in distinguishing instruments taxable at the 'bond' and 'debenture' rate from those taxable at the lower 'promissory note' rate, then still in force, drew the line as follows: 10 '(3) Instruments containing the essential features of a promissory note, but issued by corporations in numbers under a trust indenture, either in registered form or with coupons attached, embodying provisions for acceleration of maturity in the event of any default by the obligor, for optional registration in the case of bearer bonds, for authentication by the trustee, and sometimes for redemption before maturity, or similar provisions, are bonds within the meaning of the statute, whether called bonds, debentures, or notes. However, a short-term instrument, although issued by a corporation under a trust indenture, may be regarded as a note if every instrument of such issue both (a) is payable to bearer and incapable of registration and (b) lacks interest coupons and so requires presentation upon each payment of interest.' T.D. 2713, May 14, 1918, 20 Treas.Dec.Int.Rev. 358 (1918).8 11 When Congress in 1918 amended the existing statute by adding the language 'and all instruments, however termed, issued by any corporation with interest coupons or in registered form, known generally as corporate securities * * *,' still found in § 1801, the Treasury recognized that this was in effect an enactment of its prior restrictive interpretation.9 The regulations which followed the repeal in 1924 of the tax on promissory notes did not purport to enlarge the scope of the tax on 'bonds' or 'debentures'; the Treasury adhered to the same interpretation issued under the previous statute.10 The regulations were amended in 1941 to the less specific, but not inconsistent, form under which the present notes were taxed.11 Finally, explicit recognition that the attempt to tax notes not having the features of marketable corporate securities was a departure from prior Treasury practice is found in a ruling by the Commissioner of Internal Revenue that General Motors would not be applied retroactively: 12 'The Bureau has for a considerable period of time held that an instrument termed 'note,' not in registered form and issued without interest coupons, is not subject to the stamp tax upon issuance or transfer. Because of this long and uniform holding of the Bureau and the consequent reliance of corporations on these rulings, it has been concluded that, under the authority contained in section 3791(b) of the Internal Revenue Code (26 U.S.C.A. § 3791(b)), the decision in General Motors Acceptance Corporation v. Higgins, supra, will not be applied retroactively, except that any tax which has been paid on the issuance or transfer of instruments falling within the scope of the decision will not be refunded.' Cum.Bull.1948—2, M.T. 32, p. 160. 13 The term 'certificate of indebtedness' has a similar administrative background. Since 1920 the Treasury has considered certificates of indebtedness as akin to bonds and debentures, including 'only instruments having the general character of investment securities, as distinguished from instruments evidencing debts arising in ordinary transaction between individuals * * *.' Sales Tax Rulings, L.O. 909, December 1920 ST. 1—20—85; Regs. 55 (Art. 14), October 26, 1920, 22 T.D.Int.Rev. 502 (1920).12 The essence of an 'investment security' is, of course, marketability, and this basic feature the Leslie Salt notes did not have. The Treasury itself has acknowledged that promissory notes lacking this quality have never been taxed as 'certificates of indebtedness', Cum.Bull.1948—2, M.T. 32, p. 160 (76 S.Ct. 422), and none of the lower court cases, including General Motors, supra, have regarded instruments such as the Leslie Salt notes as being certificates of indebtedness. Moreover, it may be observed that in the stamp tax sections of the Internal Revenue Code of 1954 the words 'certificates of indebtedness', consistenty with this administrative history, have been eliminated as a separate taxable category of corporate instruments, and are employed simply as a term of art embracing all the instruments taxed, that is, 'bonds,' 'debentures' and other instruments in registered form or with coupons. Internal Revenue Code of 1954, §§ 4311, 4381, 68A Stat. 514, 523, 26 U.S.C. 4311, 4381, 26 U.S.C.A. §§ 4311, 4381. 14 In contrast to the position it had consistently taken throughout the many years preceding the decision in the General Motors case, the Treasury now argues 'that Congress intended in Section 1801 to cover all long-term debt obligations supported by elaborate protective covenants and that this is so regardless of the details of the papers used, the language by which the transaction was consummated or the nature of the purchaser's business.' This contention seems to stem from the belief that had the 'private placement' method of financing been as widely known in 1924 as it is now, Congress would not have repealed the promissory note tax in its entirety, as it did. But if that be so it is nevertheless for Congress, not the courts, to change the statute. We must deal with the statute as we find it, and if these instruments are neither 'debentures' nor 'certificates of indebtedness' they may not be taxed under the present statute. These taxes are based not upon the nature of the transaction involved, but upon the character of the instruments employed. As long ago as 1873, this Court said: 'The liability of an instrument to a stamp duty, as well as the amount of such duty, is determined by the form and face of the instrument, and cannot be affected by proof of facts outside of the instrument itself.' United States v. Isham, 17 Wall. 496, 504, 21 L.Ed. 728. 15 There are persuasive reasons for construing 'debentures' and 'certificates of indebtedness' in accordance with the Treasury's original interpretation of those terms in this statute's altogether comparable predecessors. In Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796, Mr. Justice Cardozo said: 16 'administrative practice, consistent and generally unchallenged, will not be overturned except for very cogent reasons if the scope of the command is indefinite and doubtful. United States v. Moore, 95 U.S. 760, 763, 24 L.Ed. 588; Logan v. Davis, 233 U.S. 613, 627, 34 S.Ct. 685, 58 L.Ed. 1121; Brewster v. Gage, 280 U.S. 327, 336, 50 S.Ct. 115, 74 L.Ed. 457; Fawcus Machine Co. v. United States, 282 U.S. 375, 51 S.Ct. 144, 75 L.Ed. 397; Interstate Commerce Commn. v. New York, N.H. & H.R. Co., 287 U.S. 178, 53 S.Ct. 106, 77 L.Ed. 248 * * *. The practice has peculiar weight when it involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.' 17 Against the Treasury's prior longstanding and consistent administrative interpretation its more recent ad hoc contention as to how the statute should be construed cannot stand. Moreover, that original interpretation has had both express and implied congressional acquiescence, through the 1918 amendment to the statute (76 S.Ct. 421), which has ever since continued in effect, and through Congress having let the administrative interpretation remain undisturbed for so many years. See Corn Products Refining Co. v. Commissioner, 350 U.S. 46, 53, 76 S.Ct. 20, 24; Norwegian Nitrogen Products Co. v. United States, supra, 288 U.S. at page 313, 53 S.Ct. at page 357.13 Still further, it is an interpretation which is in accord with the generally understood meaning of the term 'debentures.' Cf. First Nat. Bank of Cincinnati v. Flershem, 290 U.S. 504, 508, 54 S.Ct. 298, 78 L.Ed. 465.14 'The words of the statute (a stamp tax statute) are to be taken in the sense in which they will be understood by that public in which they are to take effect.' United States v. Isham, supra, 17 Wall. at page 504, 21 L.Ed. 728. 18 Construing the statute as we have, we conclude that the Leslie Salt notes are neither 'debentures' nor 'certificates of indebtedness' within its meaning. The fact that the agreement underlying these notes provides for the substitution of instruments which might qualify as debentures does not render these notes taxable, for until debentures are in existence the 'debenture' tax cannot be imposed. 19 We hold these notes are not subject to stamp taxes under the statute. 20 Affirmed. 1 Sec. 1800. 'There shall be levied, collected, and paid, for and in respect of the several bonds, debentures, or certificates of stock and of indebtedness, and other documents, instruments, matters, and things mentioned and described in sections 1801 to 1807, inclusive, or for or in respect of the vellum, parchment, or paper upon which such instruments, matters, or things, or any of them, are written or printed, the several taxes specified in such sections.' 53 Stat. 195, 26 U.S.C. § 1800, 26 U.S.C.A. § 1800. Sec. 1801. 'On all bonds, debentures, or certificates of indebtedness issued by any corporation, and all instruments, however termed, issued by any corporation with interest coupons or in registered form, known generally as corporate securities, on each $100 of face value or fraction thereof, 11 cents: Provided, That every renewal of the foregoing shall be taxed as a new issue * * *.' 53 Stat. 195—196, 26 U.S.C. 1801, 26 U.S.C.A. § 1801. 2 110 F.Supp. 680. 3 218 F.2d 91. 4 Decisions in the Courts of Appeals pointing toward the taxpayer's view are Curtis Publishing Co. v. Smith, 3 Cir., 220 F.2d 748; Niles-Bement-Pond Co. v. Fitzpatrick, 2 Cir., 213 F.2d 305; United States v. Ely & Walker Dry Goods Co., 8 Cir., 201 F.2d 584, 36 A.L.R.2d 969; Allen v. Atlanta Metallic Casket Co., 5 Cir., 197 F.2d 460; Belden Mfg. Co. v. Jarecki, 7 Cir., 192 F.2d 211, and in the District Courts are Bijou Theatrical Enterprise Co. v. Menninger, D.C.E.D.Mich., 127 F.Supp. 16; Knudsen Creamery Co. of California v. United States, D.C.S.D.Cal., 121 F.Supp. 860; Shamrock Oil & Gas Co. v. Campbell, D.C.N.D.Tex., 107 F.Supp. 764; Follansbee Steel Corp. v. United States, D.C.W.D.Pa., 139 F.Supp. 419; United Air Lines, Inc. v. United States, D.C.N.D.Ill., 139 F.Supp. 653; Motor Finance Corp. v. United States, D.C.D.N.J., 4 P H 1954 Fed.Tax Serv. 72,706. Decisions in the Courts of Appeals pointing the other way are General Motors Acceptance Corp. v. Higgins, 2 Cir., 161 F.2d 593, and Commercial Credit Co. v. Hofferbert, 4 Cir., 188 F.2d 574, and in the District Courts are S.S. Pierce Co. v. United States, D.C.D.Mass., 127 F.Supp. 396; H. Kobacker & Sons Co. v. United States, D.C.N.D.Ohio, 124 F.Supp. 211; General Motors Acceptance Corp. v. Higgins, D.C.S.D.N.Y., 120 F.Supp. 737; United States v. General Shoe Corp., D.C.M.D.Tenn., 117 F.Supp. 668; Gamble-Skogmo, Inc., v. Kelm, D.C.D.Minn., 112 F.Supp. 872; Sharon Steel Corp. v. United States, D.C.W.D.Pa., 139 F.Supp. 414; and Stuyvesant Town Corp. v. United States, 111 F.Supp. 243, 124 Ct.Cl. 686. 5 Other provisions of these agreements may be summarized as follows: (1) The basic terms under which the insurance companies agreed to 'purchase' the Leslie Salt notes. (2) Representations by Leslie Salt that financial statements and lists of property holdings submitted by it were complete and accurate. (3) Various conditions precedent to the purchase of the notes, including: opinion by counsel that the transaction was authorized under the applicable state law; that the balance of the $4,000,000 loan was subscribed; and that the loan documents would be in form satisfactory to counsel. (4) A representation by the lender that it was not acquiring the note for the purpose of sale. (5) A provision for prepayment by Leslie Salt of $285,000 principal amount for each year, without premium, and of an additional $285,000 annually at the option of Leslie Salt, also without premium, as long as the prepayment came from earnings or liquidation of assets. Leslie Salt had the right to make further prepayments, but subject to a premium of 3%, which after the first three years of the note descended in amount at the rate of 1/4% each year. (6) Leslie Salt promised to pay all its taxes, keep its property in repair, keep accurate records, insure its properties, and make regular financial statements to the holders of the notes. (7) Leslie Salt promised not to become indebted, not to pay dividends or retire stock, except as provided in the agreement, and not to change the nature of its business or let its working capital decline beneath a specified amount. 6 Act of June 13, 1898, 30 Stat. 448, 451, 458; Act of March 2, 1901, 31 Stat. 938, 940, 942; repealed by the Act of April 12, 1902, 32 Stat. 96, 97; re-enacted in the Act of October 22, 1914, 38 Stat. 745, 753, 759, and carried forward in subsequent Revenue Acts. 7 Act of June 13, 1898, 30 Stat. 448, 451, 459; repealed by the Act of March 2, 1901, 31 Stat. 942; re-enacted in the Act of October 22, 1914, 38 Stat. 745, 753, 760; carried over in the Revenue Acts of 1917, 1918, and 1921, 40 Stat. 300, 319, 323, 40 Stat. 1057, 1133, 1137, 42 Stat. 227, 301, 305, and repealed by the Revenue Act of 1924, 43 Stat. 253, 352. 8 In this same Treasury Decision 'promissory note' was defined as 'An instrument not under seal containing a simple promise to pay a sum of money at a specified time, such as is common in everyday commercial use, is a promissory note within the meaning of the statute.' It should be noted that the qualification which we have italicized was omitted from the definition of 'promissory note' in the Regulations promulgated one year later. See note 10, infra. 9 The then Solicitor of Internal Revenue, Mr. Robert N. Miller, expressed this view: 'The words 'all instruments, however termed, issued by any corporation with interest coupons or in registered form, known generally as corporate securities,' were clearly added in recognition of the varied forms in which corporate securities are issued, and to defeat any attempt by a corporation to avoid the tax by issuing instruments of the general character of bonds, debentures, or certificates of indebtedness under a different name.' Sales Tax Rulings, L.O. 909, December, 1920 ST. 1—20—85. 10 'Art. 8. Instruments issued in numbers, under a trust indenture, are bonds.—Instruments containing the essential features of a promissory note, but issued in series, secured by a trust indenture, either in registered form or with coupons attached, embodying provisions for acceleration of maturity in the event of any default by the obligor, for optional registration in the case of bearer bonds, for authentication by the trustee, and in some instances for redemption before maturity, or similar provisions, are bonds within the meaning of the statute, whether called bonds, debentures, or notes.' Treasury Regulations 55, September 13, 1924. The regulations preceding the repeal of the tax on promissory notes provided: 'Art. 8. Instruments issued by corporations in numbers, under a trust indenture, are bonds.—Instruments containing the essential features of a promissory note, but issued by corporations in series, secured by a trust indenture, either in registered form or with coupons attached, embodying provisions for acceleration of maturity in the event of any default by the obligor, for optional registration in the case of bearer bonds, for authentication by the trustee, and in some instances for redemption before maturity, or similar provisions, are bonds within the meaning of the statute, whether called bonds, debentures, or notes. 'Art. 48. 'Promissory note' defined.—A promissory note is an unconditional promise in writing made by one person to another signed by the maker engaging to pay on demand or at a fixed or determinable future time, a sum certain in money to such other person or to order or to bearer, free from restrictions as to registration or transfer and usually without coupons.' Treasury Regulations 55, June 11, 1919. The 1920 revision of Regulations 55 was substantially identical, as were the Regulations issued under the Revenue Act of 1921 (Regulations 55, Articles 8 and 35). 11 Sec. 113.50. 'Scope of tax. Section 1801 imposes a tax upon the issue by any corporation of bonds, debentures, certificates of indebtedness, and all instruments, however termed, with interest coupons or in registered form and known generally as corporate securities. Every renewal of the above described instruments is taxable as a new issue.' Sec. 113.55. 'Issues subject to tax. Ordinarily, a corporate instrument styled a bond, debenture, or certificate of indebtedness is subject to the tax. However, the taxability of an instrument is not determined by the name alone but depends upon all the circumstances, such as the name, form, and terms of the instrument, etc. Hence, an instrument, however designated, having all the essential characteristics of a bond, debenture, or certificate of indebtedness is taxable as such. Similarly, an instrument issued with interest coupons, or with provision for registration, and coming within the class known generally as corporate securities will be held subject to the tax regardless of the name by which it may be called.' 26 CFR, 1944 Cum.Supp., §§ 113.50, 113.55. 12 The ruling by the Solicitor of Internal Revenue said: 'The Century Dictionary defines 'debenture' as 'A writing acknowledging a debt; specifically, an instrument, generally under seal, for the repayment of money lent; usually, if not exclusively, used as obligations of corporations or large moneyed copartnerships, issued in a form convenient to be bought and sold as investments.' This definition was adopted by the court in Barton Nat. Bank v. Atkins, 72 Vt. 33, 47 A. 176, 180. The term 'certificates of indebtedness' has also come to have in commercial use a similar meaning. In Board of Com'rs of City and County of Denver v. Home Savings Bank, 236 U.S. 101, 105, 35 S.Ct. 265, 266, 59 L.Ed. 485, the court said: "What is true about bonds is true about certificates of indebtedness. Indeed, it is difficult to see any distinction between the two as they are commonly known to the business world. The essence of each is that they contain a promise under seal of the corporation, to pay a certain sum to order or bearer.' 'If the term 'certificates of indebtedness' standing by itself be susceptible of a broader meaning than that given to it above, its association here with bonds and debentures excludes such broader meaning. The maxim noscitur a sociis applies. 'A consideration of Title XI as a whole supports the conclusion above arrived at. Three classes of paper issued by individuals, partnerships, and corporations are subject thereunder to stamp tax: Bonds of indebtedness (subdivision 1), certificates of stock (subdivision 3), and drafts or checks and promissory notes (subdivision 6); i.e., instruments possessing to a greater or less extent the attributes of commercial paper. 'The premises lead inevitably to the conclusion that it was not the intention of Congress to tax under subdivision 1 of the said Schedule A every evidence of indebtedness other than those included under the heads of shares or certificates of stock, promissory notes, or bills of exchange, but only those evidences of indebtedness which have the general character of in vestment securities and which may properly be included under the term 'bonds of indebtedness.' The definition of 'certificate of indebtedness' as 'primarily any instrument acknowledging liability for the payment of money, not in the recognized form of a promissory note or bill of exchange,' contained in T.D. 2713, is too inclusive and does not sufficiently delimit the instruments included in the term. 'It is therefore held that the term 'certificate of indebtedness' as used in subdivision 1 of Schedule A, Title XI, Revenue Act of 1918, includes only instruments having the general character of investment securities, as distinguished from instruments evidencing debts arising in ordinary transaction between individuals; and that conditional bills of sale are not certificates of indebtedness. 'T.D. 2713 should be modified to conform with this holding. 'Robert N. Miller, 'Solicitor of Internal Revenue.' 13 It should be said that the administrative practice, which we consider as curcial here, was not brought to the attention of the Court of Appeals in Niles-Bement-Pond Co. v. Fitzpatrick, supra. Nor do General Motors Acceptance Corp. v. Higgins, supra, or any of the cases cited in note 4, supra, advert to that practice. 14 As long ago as 1916, no less an authority on corporate finance than the late Mr. F. L. Stetson described debentures in the following terms: 'In the United States, as already mentioned, the term 'debenture' is understood to mean serial obligations of a corporation not secured by a specific mortgage, pledge or assignment of property. Of course a series of debentures may be issued without the execution of any indenture relating thereto. Prior to 1900 the few issues that had been made of such debentures were not accompanied by a trust agreement. In such case the rights and privileges given to bondholders were set forth at length in the obligation, thus making a somewhat lengthy instrument. Since an issue of debentures under trust agreements by the Lake Shore R.R. Co. and by the New York Central, the custom of adopting such agreements has become general. Originally in 1893 the General Electric Company made a large issue of debentures without an agreement, but at the time of the refunding in 1912 a trust agreement was executed.' 'Preparation of Corporate Bonds, Mortgages, Collateral Trusts and Debenture Indentures,' in Some Legal Phases of Corporate Financing, Reorganization and Regulation, p. 66 (Assn. of the Bar of the City of New York, 1917).

1112

350 U.S. 359 76 S.Ct. 406 100 L.Ed. 397 Frank COSTELLO, Petitioner,v.UNITED STATES of America. No. 72. Argued Jan. 16, 17, 1956. Decided March 5, 1956. Rehearing Denied April, 23, 1956. See 351 U.S. 904, 76 S.Ct. 692. Messrs. Osmond K. Fraenkel, Morris Shilensky, New York City, for petitioner. Mr. Marvin E. Frankel, Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 We granted certiorari in this case to consider a single question: "May a defendant be required to stand trial and a conviction be sustained where only hearsay evidence was presented to the grand jury which indicted him?" 350 U.S. 819, 76 S.Ct. 48. 2 Petitioner, Frank Costello, was indicted for wilfully attempting to evade payment of income taxes due the United States for the years 1947, 1948 and 1949.1 The charge was that petitioner falsely and fraudulently reported less income than he and his wife actually received during the taxable years in question. Petitioner promptly filed a motion for inspection of the minutes of the grand jury and for a dismissal of the indictment. His motion was based on an affidavit stating that he was firmly convinced there could have been no legal or competent evidence before the grand jury which indicted him since he had reported all his income and paid all taxes due. The motion was denied. At the trial which followed the Government offered evidence designed to show increases is Costello's net worth in an attempt to prove that he had received more income during the years in question than he had reported.2 To establish its case the Government called and examined 144 witnesses and introduced 368 exhibits. All of the testimony and documents related to business transactions and expenditures by petitioner and his wife. The prosecution concluded its case by calling three government agents. Their investigations had produced the evidence used against petitioner at the trial. They were allowed to summarize the vast amount of evidence already heard and to introduce computations showing, if correct, that petitioner and his wife had received far greater income than they had reported. We have held such summarizations admissible in a 'net worth' case like this. United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546. 3 Counsel for petitioner asked each government witness at the trial whether he had appeared before the grand jury which returned the indictment. This cross-examination developed the fact that the three investigating officers had been the only witnesses before the grand jury. After the Government concluded its case, petitioner again moved to dismiss the indictment on the ground that the only evidence before the grand jury was 'hearsay,' since the three officers had no firsthand knowledge of the transactions upon which their computations were based. Nevertheless the trial court again refused to dismiss the indictment, and petitioner was convicted. The Court of Appeals affirmed,3 holding that the indictment was valid even though the sole evidence before the grand jury was hearsay.4 Petitioner here urges: (1) that an indictment based solely on hearsay evidence violates that part of the Fifth Amendment providinng that 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *' and (2) that if the Fifth Amendment does not invalidate an indictment based solely on hearsay we should now lay down such a rule for the guidance of federal courts. See McNabb v. United States, 318 U.S. 332, 340 341, 63 S.Ct. 608, 612—613, 87 L.Ed. 819. 4 The Fifth Amendment provides that federal prosecutions for capital or otherwise infamous crimes must be instituted by presentments or indictments of grand juries. But neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act. The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings the grand jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. And in this country as in England of old the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor. As late as 1927 an English historian could say that English grand juries were still free to act on their own knowledge if they pleased to do so.5 And in 1852 Mr. Justice Nelson on circuit could say 'No case has been cited, nor have we been able to find any, furnishing an authority for looking into and revising the judgment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof * * *.' United States v. Reed, 27 Fed.Cas. pages 727, 738, No. 16,134.6 5 In Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 4, 54 L.Ed. 1021, this Court had to decide whether an indictment should be quashed because supported in part by incompetent evidence. Aside from the incompetent evidence 'there was very little evidence against the accused.' The Court refused to hold that such an indictment should be quashed, pointing out that 'The abuses of criminal practice would be enhanced if indictments could be upset on such a ground.' 218 U.S. at page 248, 31 S.Ct. at page 4. The same thing is true where as here all the evidence before the grand jury was in the nature of 'hearsay.' If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury,7 like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. 6 Petitioner urges that this Court should exercise its power to supervise the administration of justice in federal courts and establish a rule permitting defendants to challenge indictments on the ground that they are not supported by adequate or competent evidence. No persuasive reasons are advanced for establishing such a rule. It would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules. Netiehr justice nor the concept of a fair trial requires such a change. In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial. 7 Affirmed. 8 Mr. Justice CLARK and Mr. Justice HARLAN tooks no part in the consideration or decision of this case. 9 Mr. Justice BURTON, concurring. 10 I agree with the denial of the motion to quash the indictment. In my view, however, this case does not justify the breadth of the declarations made by the Court. I assume that this Court would not preclude an examination of grand-jury action to ascertain the existence of bias or prejudice in an indictment. Likewise, it seems to me that if it is shown that the grand jury had before it no substantial or rationally persuasive evidence upon which to base its indictment, that indictment should be quashed. To hold a person to answer to such an empty indictment for a capital or otherwise infamous federal crime robs the Fifth Amendment of much of its protective value to the private citizen. 11 Here, as in Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, substantial and rationally persuasive evidence apparently was presented to the grand jury. We may fairly assume that the evidence before that jury included much of the testimony later given at the trial by the three government agents who said that they had testified before the grand jury. At the trial, they summarized financial transactions of the accused about which they were not qualified to testify of their own knowledge. To use Justice Holmes' phrase in the Holt case, such testimony, standing alone, was 'incompetent by circumstances', 218 U.S. supra, at page 248, 31 S.Ct. at page 4, supra, and yet it was rationally persuasive of the crime charged and provided a substantial basis for the indictment. At the trial, with preliminary testimony laying the foundation for it, the same testimony constituted an important part of the competent evidence upon which the conviction was obtained. 12 To sustain this indictment under the above circumstances is well enough, but I agree with Judge Learned Hand that 'if it appeared that no evidence had been offered that rationally established the facts, the indictment ought to be quashed; because then the grand jury would have in substance abdicated.' 2 Cir., 221 F.2d 668, 677. Accordingly, I concur in this judgment, but do so for the reasons stated in the opinion of the Court of Appeals and subject to the limitations there expressed. See also, Notes, 62 Harv.L.Rev. 111; 65 Yale L.J. 390. 1 The indictment was based on § 145(b) of the Internal Revenue Code of 1939, 53 Stat. 63, 26 U.S.C.A. § 145(b). There was also a count in the indictment for the year 1946 but petitioner was found not guilty of this charge. 2 For discussions of the 'net worth method,' see Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150; Friedberg v. United States, 348 U.S. 142, 75 S.Ct. 138, 99 L.Ed. 188; Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192; and United States v. Calderon, 348 U.S. 160, 75 S.Ct. 186, 99 L.Ed. 202. 3 2 Cir., 221 F.2d 668. The Court of Appeals reversed petitioner's conviction on the 1947 count on grounds not material here. 4 Varying views have been expressed concerning whether indictments may be challenged because based in whole or in part on incompetent evidence. See, e.g., Chadwick v. United States, 6 Cir., 141 F. 225; United States v. Violon, C.C., 173 F. 501; Nanfito v. United States, 8 Cir., 20 F.2d 376, 378; Brady v. United States, 10 Cir., 24 F.2d 405; Banks v. United States, 8 Cir., 204 F.2d 666; Zacher v. United States, 8 Cir., 227 F.2d 219. See also cases collected in 62 Harv.L.Rev. 111; 38 Yale L.J. 680; 71 Cent.L.J. 9; Joyce, Indictments (2d ed., Blakemore, 1924), 166 168; Note, 24 A.L.R. 1432. 5 1 Holdsworth, History of English Law (1927), 323. 6 As to the development of the grand jury as an institution here and in England, see Hale v. Henkel, 201 U.S. 43, 59, 26 S.Ct. 370, 372, 50 L.Ed. 652; Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979; McGrain v. Daugherty, 273 U.S. 135, 157, 47 S.Ct. 319, 323, 71 L.Ed. 580; United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546; 4 Blackstone Commentaries 301 et seq.; 1 Pollock and Maitland, History of English Law (1895), 130; 1 Holdsworth, History of English Law (1927), 312—323; Morse, A Survey of the Grand Jury System, 10 Or.L.Rev. 101, 217, 295. 7 See, e.g., Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757.

01

350 U.S. 377 76 S.Ct. 425 100 L.Ed. 435 Elmer F. REMMER, Petitioner,v.UNITED STATES of America. No. 156. Argued Jan. 18, 1956. Decided March 5, 1956. Mr. Leslie C. Gillen, San Francisco, Cal., for petitioner. Mr. John R. Benney, Washington, D.C., for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 This case is here for the third time. Petitioner was convicted on four counts of wilfully attempting to evade and defeat federal income taxes. When this case was first here we knew nothing about the facts concerning the phase of the case now before us. It was alleged in the petitioner's motion and affidavits supporting his motion for a new trial that during the trial one juror, Smith, had been approached by one Satterly, an outsider, with a suggestion that the juror could make some easy money if he would make a deal with petitioner Remmer. It was further alleged by the petitioner that the juror reported the matter to the trial judge, who in turn reported it to the district attorney, who, with the judge's approval, called in the Federal Bureau of Investigation—all of which was unknown to the petitioner until he read about it in the newspaper after the jury had returned its verdict finding him guilty. The Government did not deny these allegations. We sent the case back to the District Court with directions to hold a hearing, with the petitioner and counsel present, to determine from the facts whether or not communication with the juror by the outsider and the events that followed were prejudicial and, therefore, harmful to the petitioner, and, if so, to grant a new trial. 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654. On remand, the District Court held a hearing and found the incidents to be free of harm. 122 F.Supp. 673. Thereafter, this Court remanded the entire record to the Court of Appeals for the Ninth Circuit to consider the whole case in the light of our recent net-worth decisions. 348 U.S. 904, 75 S.Ct. 288, 99 L.Ed. 710. The Court of Appeals reviewed the whole record and affirmed the petitioner's conviction in a per curiam opinion. 222 F.2d 720. 2 The case is here again on certiorari, limited to the question of the effect of the extraneous communications with the juror upon the petitioner's right to a fair trial. 350 U.S. 820, 76 S.Ct. 63. The District Court read our opinion and mandate to mean that "the incident complained of" (122 F.Supp. 675) to be inquired into at the hearing was the purpose and effect of the F.B.I. investigation. The District Court found that the purpose of the F.B.I. investigation was not to examine Smith's conduct, but rather to determine whether Satterly had committed an offense. The court further found that the F.B.I. agent's discussion with Smith had 'no effect whatever upon the judgment, or the integrity or state of mind' of Smith, whom the court found to be a 'forthright and honest man.' On the basis of these two findings, the court concluded: 3 'Consequently, the court finds that 'the incident complained of' was entirely harmless so far as the petitioner was concerned and did not have the slightest bearing upon the integrity of the verdict nor the state of mind of the foreman of the jury, or any of the members of the jury. Thus any presumption of prejudice is conclusively dispelled. * * *' 4 The District Court's limit of our mandate, it seems to us, is hardly warranted by the language of the opinion, even though the language might well have been more explicit. It was our intention that the entire picture should be explored and the incident complained of and to be examined included Satterly's communication with the juror and the impact thereof upon him then, immediately thereafter, and during the trial, taken together with the fact that the F.B.I. was investigating a circumstance involving the juror and the fact that the juror never knew all during the balance of the trial what the outcome of that investigation was. Thus we stated: 'In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court * * * with full knowledge of the parties.' 347 U.S., at page 229, 74 S.Ct. at page 451. We also pointed out that the record we had before us did not reflect what in fact transpired, 'or whether the incidents that may have occurred were harmful or harmless.' Ibid. It was the paucity of information relating to the entire situation coupled with the presumption which attaches to the kind of facts alleged by petitioner which, in our view, made manifest the need for a full hearing. Nevertheless, there is sufficient evidence in the record relating to the total situation, including both the Satterly and the F.B.I. contacts, which makes it unnecessary to remand the case for further consideration. We will consider the evidence free from what we think are the unduly narrow limits of the question as viewed by the District Court. 5 The evidence shows that three weeks after the trial started, juror Smith, who is a real estate and insurance broker, was visited in his home by Satterly and his wife about an insurance policy. Satterly had been employed in a gambling house in Nevada as a dealer of craps. The petitioner was or had been engaged in the operation of gambling houses in Nevada. The Satterlys had met the Smiths socially at a hunting lodge. Smith and Satterly seated themselves in one end of a large room and their wives were seated in the other end of the room, a convenient arrangement if an approach was to be made. Satterly made substantially the following remark: 'I know Bones Remmer very well. He sold Cal-Neva for $850,000 and really got about $300,000 under the table which he daresn't touch. Why don't you make a deal with him?' Smith vigorously reminded Satterly that he was on the jury and that he could not talk about the case. Nothing more was said. Smith was disturbed. As he later testified, 'I always felt, whether Mr. Satterly said it in so many words or not, I always felt that money was involved; otherwise why would any question be put to me.' So disturbed was Smith that he told the trial judge about it. The judge's reaction, at least as he manifested it to Smith, was that the Satterly conversation should be regarded as a joke. But the judge related the incident to the district attorney and they decided to refer the matter to the Federal Bureau of Investigation. Shortly thereafter, during a recess, an F.B.I. agent called on Smith at his place of business. Smith testified that the agent explained the purpose of this visit as follows: 'He told me that he had been instructed to come and interview me relative to this conversation I had with Mr. Satterly. * * * To check and see whether there was anything to this or not.' On direct examination the agent testified: 'I told him I had been requested to conduct an investigation relating to his talk with Mr. Satterly and the possibility of improper approach.' In reply to questions put by the District Court, the agent testified that he had explained to Smith that the purpose of his investigation was to examine Satterly's conduct. Satterly was never interviewed by the F.B.I. during its investigation. It was not until a month after the trial had ended that the Government determined that further investigation or criminal prosecution was unwarranted. 6 Driving home after the trial with two other jurors, Smith mentioned that there was some question as to whether he had been approached during the trial and that he had reported the incident to the trial judge. He thanked one of the jurors on dropping her at her home, 'because I have been under a terrific pressure * * *. Sometime I will discuss it.' 7 We think this evidence, covering the total picture, reveals such a state of facts that neither Mr. Smith nor anyone else could say that he was not affected in his freedom of action as a juror. From Smith's testimony it is quite evident that he was a disturbed and troubled man from the date of the Satterly contact until after the trial. Proper concern for protecting and preserving the integrity of our jury system dictates against our speculating that the F.B.I. agent's interview with Smith, whatever the Government may have understood its purpose to be, dispersed the cloud created by Satterly's communication. As he sat on the jury for the remainder of the long trial and as he cast his ballot, Smith was never aware of the Government's interpretation of the events to which he, however unwillingly, had become a party. He had been subjected to extraneous influences to which no juror should be subjected, for it is the law's objective to guard jealously the sanctity of the jury's right to operate as freely as possible from outside unauthorized intrusions purposefully made. 8 The unduly restrictive interpretation of the question by the District Court had the effect of diluting the force of all the other facts and circumstances in the case that may have influenced and disturbed Smith in the untrammeled exercise of his judgment as a juror. We hold that on a consideration of all the evidence uninfluenced by the District Court's narrow construction of the incident complained of, petitioner is entitled to a new trial. 9 The Court of Appeals' judgment is vacated and the case is remanded to the District Court with directions to grant a new trial. It is so ordered. 10 Court of Appeals' judgment vacated and case remanded to the District Court with directions to grant a new trial. 11 Mr. Chief Justice WARREN and Mr. Justice HARLAN took no part in the consideration or decision of this case.

01

350 U.S. 413 76 S.Ct. 464 100 L.Ed. 486 The STATE of FLORIDA ex rel. Virgil D. HAWKINS, Petitioner,v.The BOARD OF CONTROL et al. No. 624. Decided March 12, 1956. Rehearing Denied April 23, 1956. See 351 U.S. 915, 76 S.Ct. 693. PER CURIAM. 1 The petition for certiorari is denied. 2 On May 24, 1954, we issued a mandate in this case to the Supreme Court of Florida. 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112. We directed that the case be reconsidered in light of our decision in the Segregation Cases decided May 17, 1954, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. In doing so, we did not imply that decrees involving graduate study present the problems of public elementary and secondary schools. We had theretofore, in three cases, ordered the admission of Negro applicants to graduate schools without discrimination because of color. Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; Sipuel v. Board of Regents of University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; cf. McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. Thus, our second decision in the Brown case, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, which implemented the earlier one, had no application to a case involving a Negro applying for admission to a state law school. Accordingly, the mandate of May 24, 1954, is recalled and is vacated. In lieu thereof, the following order is entered: 3 PER CURIAM. 4 The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded on the authority of the Segregation Cases decided May 17, 1954, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. As this case involves the admission of a Negro to a graduate professional school, there is no reason for delay. He is entitled to prompt admission under the rules and regulations applicable to other qualified candidates. Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; Sipuel v. Board of Regents of University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; cf. McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. 5 Certiorari denied.

12

350 U.S. 399 76 S.Ct. 456 100 L.Ed. 474 Harold I. CAMMER, Petitioner,v.UNITED STATES of America. No. 110. Argued Jan. 24, 1956. Decided March 12, 1956. Mr. Charles E. Ford, Washington, D.C., for petitioner. Mr. Gray Thoron, Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 18 U.S.C. § 401(2), 18 U.S.C.A. § 401(2) empowers a court of the United States to punish as contempt 'Misbehavior of any of its officers in their official transactions * * *.'1 Petitioner, a lawyer, sent a questionnaire to a District of Columbia grand jury. For this, the District Court found petitioner guilty of contempt and fined him $100. 122 F.Supp. 388. In so doing the court held that within the meaning of the statute petitioner was one 'of its officers' and that sending the questionnaire was 'misbehavior' in an 'official transaction.' The Court of Appeals affirmed, Circuit Judge Fahy dissenting. 96 U.S.App.D.C. 30, 223 F.2d 322. The construction of the statute raised such important questions that we granted certiorari. 350 U.S. 817, 76 S.Ct. 55. A rather detailed statement of the facts, which are not in dispute, will point up the broad scope given the statute in sustaining this conviction. 2 A District of Columbia grand jury returned an indictment against Ben Gold, charging him with having filed a false non-Communist affidavit in violation of 18 U.S.C. § 1001, 18 U.S.C.A. § 1001. Petitioner promptly appeared as his attorney. Shortly thereafter the same grand jury summoned two of Mr. Gold's associates, commanding them to appear and produce documents. Petitioner appeared for them and moved to quash and vacate the subpoenas. On the same day or the next, petitioner mailed from New York identical letters and questionnaires to all members of the grand jury who were employees of the Federal Government. In the letters petitioner told the grand jurors that as Mr. Gold's attorney he was trying to learn the effect of the Government's loyalty program on federal employee jurors. Explaining that he wanted no information concerning proceedings or deliberations of the grand jury, he asked the jurors to answer his questions on the ground that it was their duty as citizens 'to help enlighten the court on an issue which affects the liberty of a citizen on trial in a criminal case.' All of the questions were directed toward learning whether the government employee jurors might be influenced by bias or fear to indict persons charged with having had some association with the Communist Party. On the basis of these facts, the District Court ordered petitioner to appear and show cause why he should not be adjudged guilty of contempt under 18 U.S.C. § 401(2), 18 U.S.C.A. § 401(2). 3 Petitioner appeared and answered the charges. He admitted the facts just stated but denied that his conduct constituted contempt within the meaning of the statute. His answer set out the following additional facts which are not disputed: 4 Prior to the return of the indictment against Mr. Gold in the District of Columbia, two federal grand juries in New York had investigated this same alleged offense but returned no indictment. Immediately after Mr. Gold was arraigned in the District of Columbia Court, petitioner learned from a roster of the grand jury obtained from the clerk that 13 members of the grand jury—a majority—were government employees. Petitioner decided to make a motion challenging the legal qualifications of the government employee jurors. He concluded that this could be done under Federal Rule 6(b) of the Rules of Criminal Procedure, 18 U.S.C.A., relying in part on this Court's statement in Dennis v. United States, 339 U.S. 162, 171—172, 70 S.Ct. 519, 523, 94 L.Ed. 734, that 'Preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury.' 5 Petitioner was also led to believe that it would be necessary to obtain statements from the grand jurors because of the Government's brief and the court's holding in Emspak v. United States, 91 U.S.App.D.C. 378, 203 F.2d 54. There the Government successfully contested Emspak's efforts to show that federal employee grand jurors were biased and should not have served by arguing that 'there is not the slightest indication in the long motion and offer of proof that an attempt has been made to interview a single one of the persons.' The Government also argued there that it was the defendant's duty to make his own investigation of bias instead of calling on the court to make it for him. The petitioner was also influenced by what had taken place in connection with an investigation of bias of government employees in another case in the District of Columbia. There a district judge had held that the defendant Weinberg was not entitled to a hearing as to bias of government employees as grand jurors unless the defendant had himself first undertaken to contact the jurors to ascertain from them the existence of bias. The district judge had stated that there was 'nothing to prevent counsel, if he sees fit, contacting those 15 members (of the grand jury) and inquiring only of one subject, whether or not they had any personal bias toward' the defendant. After this statement counsel for Weinberg had sent a letter and questionnaire to all the government employee members of the grand jury. Petitioner consulted with Weinberg's lawyers who told him they had sent the letters and questionnaires without the prior knowledge or authority of the district judge, that their action was later made known to him, and that no suggestion of criticism was made either by the judge or by the Government. Petitioner then mailed substantially the same letter and questionnaire sent by Weinberg's counsel to the government employees on the grand jury that had indicted his client, Gold. 6 On the basis of the foregoing undisputed facts the district judge found petitioner guilty of contempt. He concluded that petitioner's act in sending the questionnaires was an impropriety but went on to say: 'There seems to be reason to believe respondent may have misconceived the proprieties. What he did was open. There was no opprobrious personal approach to jurors. There is indication respondent may have believed he had a right to propound the questions at the time he did, notwithstanding this Court is of opinion he had not.' 122 F.Supp. at page 389. 7 The contempt section here relied on derives from the Contempt Act of March 2, 1831. 4 Stat. 487. In Nye v. United States, 313 U.S. 33, 52, 53, 61 S.Ct. 810, 817, 85 L.Ed. 1172, we reviewed the history of the 1831 Act and found that its purpose was greatly to limit the contempt power of federal courts.2 For this reason we gave the provision of the Contempt Act then under consideration a narrow construction. Even though we recognized that Nye was guilty of 'highly reprehensible' conduct, we held that he could not be punished summarily for contempt but must be 'afforded the normal safeguards surrounding criminal prosecutions.' Some time after the Nye case we considered In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30. There a trustee in bankruptcy had been adjudged guilty of contempt. The Government argued that he was guilty of misbehavior as an officer of the court in an official transaction under the same section involved here. Again we pointed out that the 1831 Act 'represented a deliberate Congressional purpose drastically to curtail the range of conduct which Courts could punish as contempt.' We there construed the Act as embodying a congressional plan to limit the contempt power to "the least possible power adequate to the end proposed." See Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242. We added, 'The exercise by federal courts of any broader contempt power than this would permit too great inroads on the procedural safeguards of the Bill of Rights, since contempts are summary in their nature, and leave determination of guilt to a judge rather than a jury. It is in this Constitutional setting that we must resolve the issues here raised.' 326 U.S. at page 227, 66 S.Ct. 79. We consider the judicial power here in that same setting. Cf. United States ex rel. Toth v. Quarles, 350 U.S. 11, 15—16, 76 S.Ct. 1, 4—5. 8 Petitioner contends that his conduct was not 'misbehavior' within the meaning of the Act, but was a good faith attempt to discharge his duties as counsel for a defendant in a criminal case. We find it unnecessary to decide this but it is not out of place to say that no statute or rule of court specifically prohibits conduct such as petitioner's. Petitioner also contends that sending the questionnaire was not an 'official transaction' within the meaning of the Act. However, if we assumed that a lawyer in ordinary practice is an 'official' or 'officer' of the court it would be hard to draw any line between 'official' and 'unofficial' transactions. Indeed there is plausibility in the implication of the Court of Appeals that if lawyers are covered by this section of the Act they are engaged in official transactions whenever engaged in the "practice of the profession." (96 U.S.App.D.C. 30, 223 F.2d 325) But we find it unnecessary to decide when a lawyer is engaged in an 'official transaction' for we hold that a lawyer is not a court 'officer' within the meaning of § 401(2). 9 It has been stated many times that lawyers are "officers' of the court.' One of the most frequently repeated statements to this effect appears in Ex parte Garland, 4 Wall. 333, 378, 18 L.Ed. 366. The Court pointed out there, however, that an attorney was not an 'officer' within the ordinary meaning of that term. Certainly nothing that was said in Ex parte Garland or in any other case decided by this Court places attorneys in the same category as marshals, bailiffs, court clerks or judges. Unlike these officials a lawyer is engaged in a private profession, important though it be to our system of justice. In general he makes his own decisions, follows his own best judgment, collects his own fees and runs his own business. The word 'officer' as it has always been applied to lawyers conveys quite a different meaning from the word 'officer' as applied to people serving as officers within the conventional meaning of that term.3 Cf. National Labor Relations Board v. Coca-Cola Bottling Co., 350 U.S. 264, 76 S.Ct. 383. We see no reason why the category of 'officers' subject to summary jurisdiction of a court under § 401(2) should be expanded beyond the group of persons who serve as conventional court officers and are regularly treated as such in the laws. See 28 U.S.C. §§ 601—963, 28 U.S.C.A. §§ 601—963. 10 There are strong reasons why attorneys should not be considered 'officers' under § 401(2). As we pointed out in the Nye case, the 1831 Act was promptly passed by the Congress after the impeachment proceedings against Judge Peck failed by a senatorial vote of 22 to 21. Judge Peck had sent a lawyer to jail and had taken away his right to practice as punishment for an alleged contempt. The contempt consisted of published criticism of Judge Peck's opinion in a case in which the convicted lawyer had appeared as counsel; he was also counsel in other pending cases involving similar issues. Those directing the impeachment proceedings, who later brought about the passage of the 1831 Act, expressed deep concern lest lawyers continue to be subjected to summary trials by judges without the safeguards of juries and regular court procedure. Congressman James Buchanan who made the last argument against Judge Peck stated: 11 'But what is the process in the case of contempts? Without either an information or an indictment, but merely on a simple rule to show cause, drawn up in any form the judge may think proper, a man is put upon his trial for an infamous offence, involving in its punishment the loss both of liberty and property. He is deprived both of petit jury and grand jury, and is tried by an angry adversary prepared to sacrifice him and his rights on the altar of his own vengeance. 12 'I may be wrong, but I hold it to be the imperative duty of an attorney to protect the interests of his client out of court as well as in court.'4 Again Mr. Buchanan said: 13 'I believe that I have as good a right to the exercise of my profession, as the mechanic has to follow his trade, or the merchant to engage in the pursuits of commerce. * * * The public have almost as deep an interest in the independence of the bar as of the bench.'5 14 Such statements by the same man who reported the 1831 Act to the House of Representatives almost immediately after Judge Peck's acquittal are completely inconsistent with a purpose to treat lawyers as "officers' of the court' subject to summary punishment. We cannot hold that lawyers are subject to the precise kind of summary contempt power that the Act was designedly drawn to bar judges from exercising. Section 2 of that Act made ample provision for punishing corrupt efforts to influence, intimidate or impede juries.6 And Congress expressly provided that prosecution therefor be by indictment. Substantially the same provision has been a part of our law ever since. 18 U.S.C. § 1503, 18 U.S.C.A. § 1503. See also Fed.Rules Crim.Proc. 7(a). Of course it does not cover this case because there is no charge that petitioner attempted improperly to influence the jury or violate § 1503 in any other way. Had there been such a charge petitioner would have been entitled to a trial by jury after indictment by grand jury. We hold that a lawyer is not the kind of 'officer' who can be summarily tried for contempt under 18 U.S.C. § 401(2), 18 U.S.C.A. § 401(2).7 The judgment of the Court of Appeals must therefore be reversed. 15 Reversed. 16 Mr. Justice REED concurs in the judgment solely on the ground that the circumstances leading to the enactment of this statute dictate the Court's otherwise unique reading of the term "officers of the court." 17 Mr. Justice HARLAN took no part in the consideration or decision of this case. 1 Section 401 in its entirety provides: 'A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as— '(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; '(2) Misbehavior of any of its officers in their official transactions; '(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.' 2 For a discussion of the 1831 Act and the narrow limits of the contempt power in general, see Frankfurter and Landis, Power of Congress over Procedure in Criminal Contempts in 'Inferior' Federal Courts—A Study in Separation of Powers, 37 Harv.L.Rev. 1010; Nelles and King, Contempt by Publication in the United States, 28 Col.L.Rev. 401, 525. See also Stansbury, Report of the Trial of James H. Peck (1833). 3 Illustrations of the confusion and difficulty of courts in explaining what is meant when a lawyer is called an officer of the court may be found in the following cases: Langen v. Borkowski, 188 Wis. 277, 301, 206 N.W. 181, 190, 43 A.L.R. 622; In re Galusha, 184 Cal. 697, 698, 195 P. 406; Sowers v. Wells, 150 Kan. 630, 635, 95 P.2d 281, 284—285; In re Bergeron, 220 Mass. 472, 476, 107 N.E. 1007, 1008. 4 Stansbury, Report of the Trial of James H. Peck (1833), 445, 455. 5 Id., at 450. 6 'And be it further enacted, That if any person or persons shall, corruptly, or by threats or force, endeavour to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall, corruptly, or by threats or force, obstruct, or impede, or endeavour to obstruct or impede, the due administration of justice therein, every person or persons, so offending, shall be liable to prosecution therefor, by indictment, and shall, on conviction thereof, be punished, by fine not exceeding five hundred dollars, or by imprisonment, not exceeding three months, or both, according to the nature and aggravation of the offence.' 4 Stat. 488. 7 Ex parte Bradley, 7 Wall. 364, 374, 19 L.Ed. 214, requires no different result. The Court there held that an attorney could not be disbarred solely on a showing of a contempt committed before another court. The Court did use broad language there as to the power of courts to punish attorneys as officers of courts for misbehavior in the practice of the profession. The statements in Ex parte Bradley went so far as to say that lawyers became subject to the summary jurisdiction of courts 'for the commission of any other act of official or personal dishonesty and oppression.' However questionable those statements may be, they were not made, as the Court pointed out, with respect to a court's power to punish contempts. The Court was referring to the generally exercised powers of courts in that day to discipline attorneys. As said by the Court later in Ex parte Robinson, 19 Wall. 505, 512, 22 L.Ed. 205, 'The power to disbar an attorney proceeds upon very different grounds' from those which support a court's power to punish for contempt.

01

350 U.S. 409 76 S.Ct. 461 100 L.Ed. 482 UNITED STATES of America and Interstate Commerce Commission, Appellants,v.CONTRACT STEEL CARRIERS, Inc. No. 102. Argued Feb. 29, 1956. Decided March 12, 1956. Mr. Charles F. Barber, Washington, D.C., for appellants. Mr. Robert N. Burchmore, Chicago, Ill., for appellees. PER CURIAM. 1 The Interstate Commerce Commission brings an appeal from a three-judge district court, 49 U.S.C. § 305(g), 49 U.S.C.A. § 305(g), that reversed an order of the ICC, 62 M.C.C. 413, directing appellee Contract Steel Carriers to cease operations as a common carrier by motor vehicle. D.C., 128 F.Supp. 25. 2 Appellee holds licenses covering different areas surrounding Chicago, Houston, and St. Louis. As these are substantially in the same form, a single illustration will suffice. It covers contract carriage of 'Steel articles, and such materials as are used or useful in highway construction projects, except cement, rock, sand, and gravel, over irregular routes, in connection with said carrier's presently authorized operations, 3 'From points and places in the Chicago, Ill. Commercial Zone, as defined by the Commission in 1 M.C.C. 673, to points and places in Arkansas, Iowa, Kansas, Missouri, Oklahoma, and Texas, and return with no transportation for compensation.' No. MC 96505 SUB 6. 4 The facts are fully set out in the reports referred to above. In essence they show that appellee, by active solicitation from 1951 to 1954 in the areas mentioned, had secured 69 contracts to serve shippers. These had been filed with the Commission and there is no charge of any violation of the restrictions of the license or the requirements of individual contracts except that the appellee has held itself out by its actions to be a common carrier.1 5 The Commission found this holdingout from an advertisement, run without legal advice and since discontinued, offering its transportation service without mentioning whether it was contract or common carriage. It was also charged that 6 '* * * the great increase in the number of contracts held by it are attributable in large degree to aggressive sales activities and affirmative precontract traffic solicitation, which amounts to a public offer or holding out. In this connection, it is also asserted that defendant maintained an employee in Des Moines, Iowa, whose duties included the active solicitation of traffic. * * * There is evidence that business has been lost by interveners after a representative of defendant called upon receivers of steel in Iowa, leaving a copy of defendant's schedule of minimum rates and charges, and a copy of a blank contract to be executed by such shippers.' 62 M.C.C. 413, 414 415. It was concluded by the Commission: 7 'Although the facts here are meager in some respects, they reveal a pattern of extraordinary expansion in a period of approximately 8 months and an easy turnover of contracts thereafter. We believe that there is ample evidence to show that this expansion was brought about, to some extent at least, by indiscriminate solicitation and advertising, among other things.' Id., at 421. 8 In Craig Contract Carrier Application, 31 M.C.C. 705, 712, the ICC stated that the services of a contract carrier must be individual and specialized. A requirement of specialization is supported by respectable legislative history. See, e.g., 79 Cong.Rec. 5651. In this case the ICC found that appellee had not sufficiently specialized its operation. However, we conclude that if specialization is to be read into 49 U.S.C. § 303(a)(15), 49 U.S.C.A. § 303(a) (15) by the legislative history, it is satisfied here since appellee hauls only strictly limited types of steel products under individual and continuing contractual agreements with a comparatively small number of shippers throughout a large area. 9 We hold also that the fact that appellee has actively solicited business within the bounds of his license does not support a finding that it was 'holding itself out to the general public.' A contract carrier is free to aggressively search for new business within the limits of his license.2 Because the ICC's order is not supported by evidence in the record and is contrary to the definitions of contract and common carriers in § 303(14) and (15), we affirm the District Court. 10 Affirmed. 11 Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting. 12 The Motor Carrier Act, 49 Stat. 543, 544, 49 U.S.C. § 303(a)(14), 49 U.S.C.A. § 303(a)(14), gives to the term "common carrier by motor vehicle" the classic meaning that 'common carrier' had acquired and maintained during the course of centuries. In short, the test of what is a 'common carrier' under this Act is what legal history has established as the test, and we do not find that the Interstate Commerce Commission has departed from this test. We cannot believe that if the evidence, as disclosed by the record, which need not be recited, had appeared in a common-law action against the respondent, a court would be justified in taking the case from the jury, and that if the jury had found against the respondent, its verdict would not be allowed to stand. The finding by the Interstate Commerce Commission that the respondent was a 'common carrier,' and therefore subject to the regulatory provisions of the Act, ought not to have less weight than a jury's verdict. Accordingly, other issues raised in the case are not reached, and we would reverse the judgment below. 1 A common carrier is one 'which holds itself out to the general public to engage in the transportation by motor vehicle * * * of passengers or property.' A contract carrier is any 'person which, under individual contracts or agreements, engages in' such transportation. 49 U.S.C. § 303(a)(14, 15), 49 U.S.C.A. § 303(a)(14, 15). 2 'Provided, however, That no terms, conditions, or limitations shall restrict the right of the carrier to substitute or add contracts within the scope of the permit, or to add to his or its equipment and facilities, within the scope of the permit, as the development of the business and the demands of the public may require.' 49 U.S.C. § 309(b), 49 U.S.C.A. § 309(b).

78

350 U.S. 422 76 S.Ct. 497 100 L.Ed. 511 William Ludwig ULLMANN, Petitioner,v.UNITED STATES of America. No. 58. Argued Dec. 6, 1955. Decided March 26, 1956. Mr. Leonard B. Boudin, New York City, for petitioner. Mr. Charles F. Barber, Washington, D.C., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 On November 10, 1954, the United States Attorney for the Southern District of New York filed an application under the Immunity Act of 1954, 68 Stat. 745, 18 U.S.C. (Supp.II) § 3486, 18 U.S.C.A. § 3486, for an order requiring petitioner to testify before a grand jury. The Immunity Act, in its pertinent portions, provides: 2 '(c) Whenever in the judgment of a United States attorney the testimony of any witness, or the production of books, papers, or other evidence by any witness, in any case or proceeding before any grand jury or court of the United States involving any interference with or endangering of, or any plans or attempts to interfere with or endanger, the national security or defense of the United States by treason, sabotage, espionage, sedition, seditious conspiracy, violations of chapter 115 of title 18 of the United States Code, violations of the Internal Security Act of 1950 (64 Stat. 987), violations of the Atomic Energy Act of 1946 (60 Stat. 755), as amended, violations of sections 212(a) (27), (28), (29) or 241(a)(6), (7) or 313(a) of the Immigration and Nationality Act (66 Stat. 182—186; 204—206; 240—241), and conspiracies involving any of the foregoing, is necessary to the public interest, he, upon the approval of the Attorney General, shall make application to the court that the witness shall be instructed to testify or produce evidence subject to the provisions of this section, and upon order of the court such witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. But no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except prosecution described in subsection (d) hereof) against him in any court. 3 '(d) No witness shall be exempt under the provision of this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section.' 4 In his application the United States Attorney alleged the following facts. On November 3, 1954, petitioner, pursuant to subpoena, appeared before a duly constituted grand jury of the Southern District of New York which was investigating matters concerned with attempts to endanger the national security by espionage and conspiracy to commit espionage. The grand jury asked him a series of questions relating to his knowledge of such activities to his and other persons' participation in such activities, and to his and other persons' membership in the Communist Party. Petitioner, invoking the privilege against self-incrimination, refused to answer the questions. The United States Attorney also asserted that he deemed the testimony necessary to the public interest of the United States, and annexed a letter from the Attorney General of the United States approving the application. The United States Attorney, in compliance with a request of the district judge, filed an affidavit asserting his own good faith in filing the application. 5 Petitioner, contesting the application, attacked the constitutionality of the Act and urged that, if the immunity statute be held constitutional, the District Court should, in the exercise of its discretion, deny the application. He filed an affidavit setting forth in detail experiences with agents of the Department of Justice and congressional investigating committees and other information in support of his plea for an exercise of discretion by the District Court. The Government in reply filed affidavits denying some of the allegations set forth in petitioner's affidavit. 6 On January 31, 1955, the District Court sustained the constitutionality of the statute. 128 F.Supp. 617. Its order, dated February 8, 1955, instructed petitioner 'to answer the questions propounded to him before the Grand Jury and to testify and produce evidence with respect to such matters under inquiry before said Grand Jury . . ..' Petitioner appealed from this order, but the Court of Appeals for the Second Circuit dismissed the appeal on the authority of Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783. 7 Petitioner again refused to answer the questions which the District Court had ordered him to answer. He was then brought before the District Court and, on stipulation that he had refused to obey the order of the court of February 8, he was convicted of contempt and sentenced to six months' imprisonment unless he should purge himself of the contempt. Petitioner appealed to the Court of Appeals for the Second Circuit which affirmed the judgment of the District Court. 221 F.2d 760. The importance of the questions at issue, in view of the differences between the legislation sustained in Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, and the Act under review, led us to bring the case here. 349 U.S. 951, 75 S.Ct. 882, 99 L.Ed. 1276. 8 Four major questions are raised by this appeal: Is the immunity provided by the Act sufficiently broad to displace the protection afforded by the privilege against self-incrimination? Assuming that the statutory requirements are met, does the Act give the district judge discretion to deny an application for an order requiring a witness to answer relevant questions put by the grand jury, and, if so, is the court thereby required to exercise a function that is not an exercise of 'judicial Power'? Did Congress provide immunity from state prosecution for crime, and, if so, is it empowered to do so? Does the Fifth Amendment prohibit compulsion of what would otherwise be self-incriminating testimony no matter what the scope of the immunity statute? 9 It is relevant to define explicitly the spirit in which the Fifth Amendment's privilege against self-incrimination should be approached. This command of the Fifth Amendment ('nor shall any person * * * be compelled in any criminal case to be a witness against himself * * *') registers an important advance in the development of our liberty—'one of the great landmarks in man's struggle to make himself civilized.'1 Time has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted. This constitutional protection must not be interpreted in a hostile or niggardly spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.2 Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States. The Founders of the Nation were not naive or disregardful of the interests of justice. The difference between them and those who deem the privilege an obstruction to due inquiry has been appropriately indicated by Chief Judge Magruder: 10 'Our forefathers, when they wrote this provision into the Fifth Amendment of the Constitution, had in mind a lot of history which has been largely forgotten to-day. See VIII Wigmore on Evidence (3d ed. 1940) § 2250 et seq.; Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1 (1949). They made a judgment, and expressed it in our fundamental law, that it were better for an occasional crime to go unpunished than that the prosecution should be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused. The privilege against self-incrimination serves as a protection to the innocent as well as to the guilty, and we have been admonished that it should be given a liberal application. Hoffman v. United States, * * * 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118. If it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion.' Maffie v. United States, 1 Cir., 209 F.2d 225, 227. 11 Nothing new can be put into the Constitution except through the amendatory process. Nothing old can be taken out without the same process. 12 No doubt the constitutional privilege may, on occasion, save a guilty man from his just deserts. It was aimed at a more far-reaching evil—a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses by law-enforcing agencies. 13 As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion. It is appropriate to read the conviction expressed in a memorable address by Senator Albert J. Beveridge to the American Bar Association in 1920, a time when there was also manifested impatience with some of the restrictions of the Constitution in the presumed interest of security. His appeal was to the Constitution—to the whole Constitution, not to a mutilating selection of those parts only which for the moment find favor.3 To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution. 14 It is in this spirit of strict, not lax, observance of the constitutional protection of the individual that we approach the claims made by petitioner in this case. The attack on the Immunity Act as violating the Fifth Amendment is not a new one. Sixty years ago this Court considered, in Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, the constitutionality of a similar Act, the Act of February 11, 1893, 27 Stat. 443.4 In that case, Brown, auditor for a railroad company, had been subpoenaed to testify before a grand jury which was investigating charges that officers and agents of the company had violated the Interstate Commerce Act. Invoking the privilege against self-incrimination, he refused to answer certain questions concerning the operations and the rebate policy of the railroad. On an order to show cause before the United States District Court for the Western District of Pennsylvania, he was adjudged in contempt. His petition for a writ of habeas corpus to the Circuit Court for the Western District of Pennsylvania was dismissed. Petitioner appealed to this Court, urging that the 1893 immunity statute was unconstitutional. 15 The Court considered and rejected petitioner's arguments, holding that a statute which compelled testimony but secured the witness against a criminal prosecution which might be aided directly or indirectly by his disclosures did not violate the Fifth Amendment's privilege against self-incrimination and that the 1893 statute did provide such immunity. 'While the constitutional provision in question is justly regarded as one of the most valuable prerogatives of the citizen, its object is fully accomplished by the statutory immunity, and we are therefore of opinion that the witness was compellable to answer * * *.' 161 U.S. at page 610, 16 S.Ct. at page 652.5 16 Petitioner, however, attempts to distinguish Brown v. Walker. He argues that this case is different from Brown v. Walker because the impact of the disabilities imposed by federal and state authorities and the public in general—such as loss of job, expulsion from labor unions, state registration and investigation statutes, passport eligibility, and general public opprobrium—is so oppressive that the statute does not give him true immunity. This, he alleges, is significantly different from the impact of testifying on the auditor in Brown v. Walker, who could the next day resume his job with reputation unaffected.6 But, as this Court has often held, the immunity granted need only remove those sanctions which generate the fear justifying invocation of the privilege: 'The interdiction of the 5th Amendment operates only where a witness is asked to incriminate himself,—in other words, to give testimony which may possibly expose him to a criminal charge. But if the criminality has already been taken away, the amendment ceases to apply.' Hale v. Henkel, 201 U.S. 43, 67, 26 S.Ct. 370, 376, 50 L.Ed. 652. Here, since the Immunity Act protects a witness who is compelled to answer to the extent of his constitutional immunity, he has of course, when a particular sanction is sought to be imposed against him, the right to claim that it is criminal in nature. 17 Again, the petitioner seeks to distinguish this case from Brown v. Walker by claiming that under the Immunity Act of 1954 the district judge to whom the United States Attorney must apply for an order instructing him to testify has discretion in granting the order and thus has discretion in granting the immunity which automatically follows from the order. Petitioner cites the language of the statute, the legislative history, and miscellaneous other authorities in support of his construction. The Government contends that the court has no discretion to determine whether the public interest would best be served by exchanging immunity from prosecution for testimony, that its only function is to order a witness to testify if it determines that the case is within the framework of the statute. 18 We are concerned here only with § (c) and therefore need not pass on this question with respect to §§ (a) and (b) of the Act.7 A fair reading of § (c) does not indicate that the district judge has any discretion to deny the order on the ground that the public interest does not warrant it. We agree with District Judge Weinfeld's interpretation of this section:8 19 'The most that can be said for the legislative history is that it is on the whole inconclusive. Certainly, it contains nothing that requires the court to reject the construction which the statutory language clearly requires. Especially is this so where the construction contended for purports to raise a serious constitutional question as to the role of the judiciary under the doctrine of separation of powers. The Supreme Court has repeatedly warned 'if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.'9 Indeed, the Court has stated that words may be strained 'in the candid service of avoiding a serious constitutional doubt.'10 Here there is no need to strain words. It requires neither torturing of language nor disregard of a clear legislative policy11 to avoid the constitutional question advanced by the witness. Indeed, to reach the constitutional issue would require straining of language. In such circumstances the court's duty is plainly to avoid the constitutional question.' 128 F.Supp. at pages 627—628. 20 Since the Court's duty under § (c) is only to ascertain whether the statutory requirements are complied with by the grand jury, the United States Attorney, and the Attorney General, we have no difficulty in concluding that the district court is confined within the scope of 'judicial power.' Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047. 21 Petitioner further argues that the immunity is not constitutionally sufficient so long as a witness is subject to the very real possibility of state prosecution. He urges that the statute does not, and constitutionally could not, grant such immunity. The immunity portion of the statute contains two parts. The first prohibits prosecutions and is worded virtually in the terms of the 1893 Act. The second makes explicit that the compelled testimony shall not be used against the witness in any proceeding in any court. Such a clause was construed in Adams v. State of Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608, to apply to state courts. In Brown v. Walker, it was urged that the prohibition against prosecution did not grant protection against prosecution in the state courts. First finding that Congress could constitutionally provide such immunity, the Court then interpreted the statute: 22 'The act in question contains no suggestion that it is to be applied only to the federal courts. It declares, broadly, that 'no person shall be excused from attending and testifying * * * before the interstate commerce commission * * * on the ground * * * that the testimony * * * required of him may tend to criminate him,' etc. 'But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify,' etc. It is not that he shall not be prosecuted for or on account of any crime concerning which he may testify, which might possibly be urged to apply only to crimes under the federal law and not to crimes, such as the passing of counterfeit money, etc., which are also cognizable under state laws; but the immunity extends to any transaction, matter, or thing concerning which he may testify, which clearly indicates that the immunity is intended to be general, and to be applicable whenever and in whatever court such prosecution may be had.' 161 U.S. at pages 607—608, 16 S.Ct. at page 651, 40 L.Ed. 819. 23 The Report of the Committee on the Judiciary of the House of Representatives supports the broad interpretation of the Act before us: 24 'Even though the power of Congress to prohibit a subsequent State prosecution is doubtful, such a constitutional question should not prevent the enactment of the recommended bill. The language of the amendment * * * is sufficiently broad to ban a subsequent State prosecution if it be determined that the Congress has the constitutional power to do so. In addition, the amendment recommended provides the additional protection as set forth in the Adams case, by outlawing the subsequent use of the compelled testimony in any criminal proceeding State or Federal. 25 'By the use of these two distinct concepts, the committee believes that the fullest protection that can be afforded the witness will be achieved.' H.R.Rep. No. 2606, 83d Cong., 2d Sess. 7. 26 Petitioner questions the constitutional power of Congress to grant immunity from state prosecution. Congressional abolition of state power to punish crimes committed in violation of state law presents a more drastic exercise of congressional power than that which we considered in Adams. In that case, only the use of the compelled testimony, not prosecution itself, was prohibited. Here the State is forbidden to prosecute. But it cannot be contested that Congress has power to provide for national defense and the complementary power 'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.' U.S.Const., Art. I, § 8, cl. 18. The Immunity Act is concerned with the national security. It reflects a congressional policy to increase the possibility of more complete and open disclosure by removal of fear of state prosecution. We cannot say that Congress' paramount authority in safeguarding national security does not justify the restriction it has placed on the exercise of state power for the more effective exercise of conceded federal power. We have already, in the name of the Commerce Clause, upheld a similar restriction on state court jurisdiction, Brown v. Walker, 161 U.S. at pages 606—607, 16 S.Ct. at pages 650—651, 40 L.Ed. 819, and we can find no distinction between the reach of congressional power with respect to commerce and its power with respect to national security. See also Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581.12 27 Petitioner also urges that if Brown v. Walker is found nondistinguishable and controlling, then that case should be reconsidered and overruled. He also urges upon us a 'return' to a literal reading of the Fifth Amendment. Brown v. Walker was the second case to deal with an immunity statute. Four years previously, in Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, a unanimous Court had found constitutionally inadequate the predecessor to the 1893 statute because the immunity granted was incomplete, in that it merely forbade the use of the testimony given and failed to protect a witness from future prosecution based on knowledge and sources of information obtained from the compelled testimony. It was with this background that the 1893 statute, providing complete immunity from prosecution, was passed and that Brown v. Walker was argued and decided. As in Counselman, appellant's numerous arguments were presented by James C. Carter, widely acknowledged as the leader of the American bar.13 The Court was closely divided in upholding the statute, and the opinions reflect the thoroughness with which the issues were considered. Since that time the Court's holding in Brown v. Walker has never been challenged; the case and the doctrine it announced have consistently and without question been treated as definitive by this Court, in opinion written, among others, by Holmes and Brandeis, JJ. See, e.g., McCarthy v. Arndstein, 266 U.S. 34, 42, 45 S.Ct. 16, 17, 18, 69 L.Ed. 158; Heike v. United States, 227 U.S. 131, 142, 33 S.Ct. 226, 227, 228, 57 L.Ed. 450. The 1893 statute has become part of our constitutional fabric and has been included 'in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Government.' Shapiro v. United States, 335 U.S. 1, 6, 68 S.Ct. 1375, 1378, 92 L.Ed. 1787. For a partial list of these statutes, see, Id., 335 U.S. at pages 6—7, note 4, 68 S.Ct. at page 1378, 92 L.Ed. 1787. Moreover, the States, with one exception—a a case decided prior to Brown v. Walker—have, under their own constitutions, enunciated the same doctrine, 8 Wigmore, Evidence (3d ed.), § 2281, and have passed numerous statutes compelling testimony in exchange for immunity in the form either of complete amnesty or of prohibition of the use of the compelled testimony. For a list of such statutes, see 8 Wigmore, Evidence (3d ed.), § 2281, n. 11 (pp. 478—501) and Pocket Supplement thereto, § 2281, n. 11 (pp. 147—157). 28 We are not dealing here with one of the vague, undefinable, admonitory provisions of the Constitution whose scope is inevitably addressed to changing circumstances. The privilege against self-incrimination is a specific provision of which it is peculiarly true that 'a page of history is worth a volume of logic.' New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963. For the history of the privilege establishes not only that it is not to be interpreted literally,14 but also that its sole concern is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of 'penalties affixed to the criminal acts * * *.' Boyd v. United States, 116 U.S. 616, 634, 6 S.Ct. 524, 534, 29 L.Ed. 746. We leave Boyd v. United States unqualified, as it was left unqualified in Brown v. Walker. Immunity displaces the danger. Once the reason for the privilege ceases, the privilege ceases. We reaffirm Brown v. Walker, and in so doing we need not repeat the answers given by that case to the other points raised by petitioner.15 29 The judgment of the Court of Appeals is affirmed. 30 Affirmed. 31 Mr. Justice REED concurs in the opinion and judgment of the Court except as to the statement that no constitutional guarantee enjoys preference. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 115, 63 S.Ct. 870, 876, 87 L.Ed. 1292; Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 323, 89 L.Ed. 430; cf., Kovacs v. Cooper, 336 U.S. 77, 88, 69 S.Ct. 448, 454, 93 L.Ed. 513. 32 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 33 I would reverse the judgment of conviction. I would base the reversal on Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, or, in the alternative, I would overrule the five-to-four decision of Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, and adopt the view of the minority in that case that the right of silence created by the Fifth Amendment is beyond the reach of Congress. 34 First, as to the Boyd case. There are numerous disabilities created by federal law that attach to a person who is a Communist. These disabilities include ineligibility for employment in the Federal Government and in defense facilities, disqualification for a passport, the risk of internment, the risk of loss of employment as a longshoreman—to mention only a few.1 These disabilities imposed by federal law are forfeitures within the meaning of our cases and as much protected by the Fifth Amendment as criminal prosecution itself. But there is no indication that the Immunity Act, 68 Stat. 745, 18 U.S.C. (Supp. II) § 3486, 18 U.S.C.A. § 3486, grants protection against those disabilities. The majority will not say that it does. I think, indeed, that it must be read as granting only partial, not complete, immunity for the matter disclosed under compulsion. Yet, as the Court held in Counselman v. Hitchcock, 142 U.S. 547, 586, 12 S.Ct. 195, 206, 35 L.Ed. 1110, an immunity statute to be valid must 'supply a complete protection from all the perils against which the constitutional prohibition was designed to guard * * *.' 35 Boyd v. United States, supra, involved a proceeding to establish a forfeiture of goods alleged to have been fraudulently imported without payment of duties. The claimants resisted an order requiring the production of an invoice to be used against them in the forfeiture proceedings. The Court in an opinion by Mr. Justice Bradley sustained the defense of the Fifth Amendment. The Court said, 'A witness, as well as a party, is protected by the law from being compelled to give evidence that tends to criminate him, or to subject his property to forfeiture.' 116 U.S. at page 638, 6 S.Ct. at page 536, 29 L.Ed. 746. And see Lees v. United States, 150 U.S. 476, 14 S.Ct. 163, 37 L.Ed. 1150. The contrary holding was deemed hostile to the spirit of our institutions: 36 '* * * any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.' 116 U.S. at pages 631—632, 6 S.Ct. at page 533, 29 L.Ed. 746. 37 The forfeiture of property on compelled testimony is no more abhorrent than the forfeiture of rights of citizenship. Any forfeiture of rights as a result of compelled testimony is at war with the Fifth Amendment. 38 The Court apparently distinguishes the Boyd case on the ground that the forfeiture of property was a penalty affixed to a criminal act. The loss of a job and the ineligibility for a passport are also penalties affixed to a criminal act. For the case of Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, makes plain that membership in the Communist Party is a crucial link of evidence for conviction under the Smith Act, 54 Stat. 671, as amended, 62 Stat. 808, 18 U.S.C. § 2385, 18 U.S.C.A. § 2385. And see Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170. When a man loses a job because he is a Communist, there is as much a penalty suffered as when an importer loses property because he is a tax evader. When a man loses his right to a passport because he is a Communist, there is as much a penalty suffered as when property is lost for violation of the revenue laws. If there was a penalty suffered in the Boyd case, there are penalties suffered here. Both are hitched to criminal acts. And the Constitution places the property rights involved in the Boyd case no higher than the rights of citizenship involved here. 39 The Court may mean that if disqualification for government employment or ineligibility for a passport is a forfeiture within the meaning of the Boyd case, Congress has lifted these disabilities in exchange for the witness' testimony. Congress, I think, will be surprised to hear this. There is nothing in the legislative history that would suggest that Congress was willing to pay any such price for the testimony. If the disabilities which attach under existing law are forfeitures, the Court should strike down the Act. If Congress chooses to enact a new Immunity Act broad enough to protect against all forfeitures, it is free to do so. The Court seems to commit Congress to a policy that there is no indication Congress favors. 40 We should apply the principle of the Boyd case to the present one and hold that since there is no protection in the Immunity Act against loss of rights of citizenship, the immunity granted is less than the protection afforded by the Constitution. Certainly personal freedom has at least as much constitutional dignity as property. 41 Second, as to Brown v. Walker. The difficulty I have with that decision and with the majority of the Court in the present case is that they add an important qualification to the Fifth Amendment. The guarantee is that no person 'shall be compelled in any criminal case to be a witness against himself.' The majority does not enforce that guarantee as written but qualifies it; and the qualification apparently reads, 'but only if criminal conviction might result.' Wisely or not, the Fifth Amendment protects against the compulsory self-accusation of crime without exception or qualification. In Counselman v. Hitchcock, supra, 142 U.S. at page 562, 12 S.Ct. at page 198, 35 L.Ed. 1110, Mr. Justice Blatchford said, 'The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.' 42 The 'mischief' to be prevented falls under at least three heads. 43 (1) One 'mischief' is not only the risk of conviction but the risk of prosecution. Mr. Justice Shiras, one of the four dissenters in Brown v. Walker, alluded to this difficulty when he declared that the immunity statute involved in that case was unconstitutional: 44 '* * * all that can be said is, that the witness is not protected, by the provision in question from being prosecuted, but that he has been furnished with a good plea to the indictment, which will secure his acquittal. But is that true? Not unless the plea is sustained by competent evidence. His condition, then, is that he has been prosecuted, been compelled presumably, to furnish bail, and put to the trouble and expense of employing counsel and furnishing the evidence to make good his plea.' 161 U.S. at page 621, 16 S.Ct. at page 660, 40 L.Ed. 819. 45 The risk of prosecution is not a risk which the wise take lightly. As experienced a judge as Learned Hand once said, 'I must say that, as a litigant, I should dread a lawsuit beyond almost anything else short of sickness and of death.' See Frank, Courts on Trial (1949), 40. A part of the dread in a case such as this is the chain of events that may be put in motion once disclosure is made. The truth is, I think, that there is no control left, once the right of secrecy is broken. For the statute protects the accused only on account of the 'transaction, matter, or thing' concerning which he is compelled to testify and bars the use as evidence of the 'testimony so compelled.' The forced disclosure may open up vast new vistas for the prosecutor with leads to numerous accusations not within the purview of the question and answer. What related offenses may be disclosed by leads furnished by the confession? How remote need the offense be before the immunity ceases to protect it? How much litigation will it take to determine it? What will be the reaction of the highest court when the facts of the case reach it? 46 It is, for example, a crime for a person who is a member of a Communist organization registered under the Subversive Activities Control Act, 64 Stat. 987, 50 U.S.C. § 781, 50 U.S.C.A. § 781, to be employed by the United States, to be employed in any defense facility, to hold office or employment with any labor organization, § 5(a)(1), or to apply for a passport or to use a passport. § 6(a). The crime under that Act is the application for a passport, the use of a passport, or employment by one of the named agencies, as the case may be. Are those crimes included within the 'transaction, matter, or thing' protected by the Immunity Act? 47 The Taft-Hartley Act, 61 Stat. 146, 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h), requires officers of labor organizations to file non-Communist affidavits as a condition to the exercise by the National Labor Relations Board of its power to make investigations or to issue complaints. A witness before a grand jury or congressional committee is compelled under the force of the Immunity Act to testify. He testifies that he is not a member of the Communist Part. He then files an affidavit under the Taft-Hartley Act to that effect. May he be prosecuted for filing a false affidavit? 48 These are real and dread uncertainties that the Immunity Act does not remove. They emphasize that one protective function of the Fifth Amendment is at once removed when the guarantee against self-incrimination is qualified in the manner it is today. 49 The Court leaves all those uncertainties to another day, saying that the immunity granted by Congress will extend to its constitutional limits and that those constitutional limits will be determined case by case in future litigation. That means that no one knows what the limits are. The Court will not say. Only litigation on a distant day can determine it. 50 The concession of the Court underlines my point. It shows that the privilege of silence is exchanged for a partial, undefined, vague immunity. It means that Congress has granted far less than it has taken away. 51 (2) The guarantee against self-incrimination contained in the Fifth Amendment is not only a protection against conviction and prosecution but a safeguard of conscience and human dignity and freedom of expression as well. My view is that the Framers put it beyond the power of Congress to compel anyone to confess his crimes. The evil to be guarded against was partly self-accusation under legal compulsion. But that was only a part of the evial. The conscience and dignity of man were also involved. So too was his right to freedom of expression guaranteed by the First Amendment.2 The Framers, therefore, created the federally protected right of silence and decreed that the law could not be used to pry open one's lips and make him a witness against himself. 52 A long history and a deep sentiment lay behind this decision. Some of those who came to these shores were Puritans who had known the hated oath ex officio used both by the Star Chamber and the High Commission. See Maguire, Attack of the Common Lawyers on the Oath Ex Officio as Administered in the Ecclesiastical Courts in England, Essays in History and Political Theory (1936), c. VII. They had known the great rebellion of Lilburn, Cartwright and others against those instruments of oppression. Cartwright had refused to take the oath ex officio before the High Commission on the grounds that 'hee thought he was not bound by the lawes of God so to doe.' Pearson, Thomas Cartwright and Elizabethan Puritanism 1535—1603 (1925), 318. Lilburn marshalled many arguments against the oath ex officio, one of them being the sanctity of conscience and the dignity of man before God: 53 'as for that Oath that was put upon me, I did refuse to take it as a sinful and unlawful oath, and by the strength of my God enabling me, I will never take it, though I be pulled in pieces by wild horses, as the ancient Christians were by the bloody tyrants in the Primitive Church; neither shall I think that man a faithful subject of Christ's kingdom, that shall at any time hereafter take it, seeing the wickedness of it hath been so apparently laid open by so many, for the refusal whereof many do suffer cruel persecution to this day.' The Trial of Lilburn and Wharton, 3 How.St.Tr. 1315, 1332. 54 The literature of the Levellers, of whom Lilburn was a leader, abounds in this attitude. In 1948, there was published a Declaration in the form of a petition, item 12 of which reads: 55 'That all Statutes for all kinds of Oaths, whether in Corporations, Cities, or other, which insnare conscientious people, as also other Statutes, injoyning all to hear the Book of Common Prayer, be forthwith repealed and nulled, and that nothing be imposed upon the consciences of any to compel them to sin against their own consciences.' Haller & Davies, The Leveller Tracts 1647—1653 (1944), 112. 56 In 1653, Lilburn published The Just Defence in which he wrote: 57 'Another fundamental right I then contended for, was, that no mans conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so.' Haller & Davies, id., at 454. 58 These are important declarations, as they throw light on the meaning of 'compelled' as used in the Fifth Amendment. 59 The amending process that brought the Fifth Amendment into the Constitution is of little aid in our problem of interpretation. But there are indications in the debates on the Constitution that the evil to be remedied was the use of torture to exact confessions. See, e.g., Virginia Debates (2d ed. 1805), 221, 320—321; 2 Elliot's Debates (2d ed. 1876), 111. It was, indeed, the condemnation of torture to exact confessions that was written into the early law of the American Colonies. Article 45 of the Massachusetts Body of Liberties of 1641 provided in part, 'No man shall be forced by Torture to confesse any Crime against himself nor any other * * *.' Connecticut adopted a similar provision. Laws of Connecticut Colony (1865 ed.), 65. Virginia soon followed suit: '* * * noe law can compell a man to sweare against himselfe in any matter wherein he is lyable to corporall punishment.' Hening, Statutes at Large, Vol. II, 422. 60 The compulsion outlawed was moral compulsion as well as physical compulsion. An episode in the administration of Governor William Bradford of the Plymouth Plantation illustrates the point. He sought advice from his ministers asking, 'How farr a magistrate may extracte a confession from a delinquente, to acuse him selfe of a capitall crime * * *.' The three ministers—Ralph Partrich, John Reynor, and Charles Chancy—were unanimous in concluding that the oath was against both the laws of God and the laws of man. Partrich's answer is typical: 61 '(The magistrate) may not extracte a confession of a capitall crime from a suspected person by any violent means, whether it be by an oath imposed, or by any punishment inflicted or threatened to be inflicted.' Bradford, History of Plymouth Plantation, Mass. Hist. Soc. Coll. Ser. 4, Vol. III, 390—391. 62 And see Griswold, The Fifth Amendment Today (1955), 4; Morgan, The Privilege Against Self Incrimination, 34 Minn.L.Rev. 1, 22; Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va.L.Rev. 763, 769. 63 The Court, by forgetting that history, robs the Fifth Amendment of one of the great purposes it was designed to serve. To repeat, the Fifth Amendment was written in part to prevent any Congress, any court, and any prosecutor from prying open the lips of an accused to make incriminating statements against his will. The Fifth Amendment protects the conscience and the dignity of the individual, as well as his safety and security, against the compulsion of government.3 64 (3) This right of silence, this right of the accused to stand mute serves another high purpose. Mr. Justice Field, one of the four dissenters in Brown v. Walker, stated that it is the aim of the Fifth Amendment to protect the accused from all compulsory testimony 'which would expose him to infamy and disgrace,' as well as that which might lead to a criminal conviction. 161 U.S. at page 631, 16 S.Ct. at page 653, 40 L.Ed. 819. One of the most powerful opinions in the books maintaining that thesis is by Judge Peter S. Grosscup in United States v. James, 60 F. 257, 26 L.R.A. 418, involving the same Immunity Act as the one involved in Brown v. Walker. Judge Grosscup reviewed the history of the reign of intolerance that once ruled England, the contests between Church and State, and the cruelties of the old legal procedures. Judge Grosscup said concerning the aim of the Framers in drafting the Fifth Amendment (id., at 264): 65 'Did they originate such privilege simply to safeguard themselves against the law-inflicted penalties and forfeitures? Did they take no thought of the pains of practical outlawry? The stated penalties and forfeitures of the law might be set aside; but was there no pain in disfavor and odium among neighbors, in excommunication from church or societies that might be governed by the prevailing views, in the private liabilities that the law might authorize, or in the unfathomable disgrace, not susceptible of formulation in language, which a known violation of law brings upon the offender? Then, too, if the immunity was only against the law-inflicted pains and penalties, the government could probe the secrets of every conversation, or society, by extending compulsory pardon to one of its participants, and thus turn him into an involuntary informer. Did the framers contemplate that this privilege of silence was exchangeable always, at the will of the government, for a remission of the participant's own penalties, upon a condition of disclosure, that would bring those to whom he had plighted his faith and loyalty within the grasp of the prosecutor? I cannot think so.' 66 Mr. Justice Field and Judge Grosscup were on strong historical ground. The Fifth Amendment was designed to protect the accused against infamy as well as against prosecution. A recent analysis by Professor Mitchell Franklin of Tulane illuminates the point. See The Encyclopediste Origin and Meaning of the Fifth Amendment, 15 Lawyers Guild Rev. 41. He shows how the Italian jurist, Beccaria, and his French and English followers, influenced American thought in the critical years following our Revolution. The history of infamy as a punishment was notorious. Luther had inveighed against excommunication. The Massachusetts Body of Liberties of 1641 had provided in Article 60: 'No church censure shall degrad or depose any man from any Civill dignitie, office, or Authoritie he shall have in the Commonwealth.' Loss of office, loss of dignity, loss of face were feudal forms of punishment. Infamy was historically considered to be punishment as effective as fine and imprisonment.4 67 The Beccarian attitude toward infamy was a part of the background of the Fifth Amendment. The concept of infamy was explicitly written into it. We need not guess as to that. For the first Clause of the Fifth Amendment contains the concept in haec verba: 'No person shall be held to answer for a capital, or otherwise infamous crime,5 unless on a presentment or indictment of a Grand Jury * * *.' (Italics added.) And the third Clause, the one we are concerned with here—'No person * * * shall be compelled in any criminal case to be a witness against himself * * *'—also reflects the revulsion of society at infamy imposed by the State. Beccaria, whose works were well known here6 and who was particularly well known to Jefferson,7 was the main voice against the use of infamy as punishment. The curse of infamy, he showed, results from public opinion. Oppression occurs when infamy is imposed on the citizen by the State. The French jurist, Brissot de Warville, wrote in support of Beccaria's position, 'It is in the power of the mores rather than in the hands of the legislator that this terrible weapon of infamy rests, this type of civil excommunication, which deprives the victim of all consideration, which severs all the ties which bind him to his fellow citizens, which isolates him in the midst of society. The purer and more untouched the customs are, the greater the force of infamy.' I Theorie des Loix Criminelles (1781) 188. As de Pastoret said, 'Infamy, being a result of opinion, exists independently of the legislator; but he can employ it adroitly to make of it a salutary punishment.'8 Des Loix Penales (1970), Pt. 2, 121. 68 It was in this tradition that Lord Chief Justice Treby ruled in 1696 that '* * * no man is bound to answer any questions that will subject him to a penalty, or to infamy.' Trial of Freind, 13 How.St.Tr. 1, 17. 69 There is great infamy involved in the present case apart from the loss of rights of citizenship under federal law which I have already mentioned. The disclosure that a person is a Communist practically excommunicates him from society. School boards will not hire him. See Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. A lawyer risks exclusion from the bar (In re Anastaplo, 3 Ill.2d 471, 121 N.E.2d 826); a doctor, the revocation of his license to practice (cf. Barsky v. Board of Regents, 347 U.S. 442, 74 S.Ct. 650, 98 L.Ed. 829). If an actor, he is on a black list. (See Horowitz, Loyalty Tests for Employment in the Motion Picture Industry, 6 Stan.L.Rev. 438.) And he will be able to find no employment in our society except at the lowest level, if at all. These facts make most persuasive the words of Judge Grosscup in United States v. James, supra, 60 F. 264—265, written in 1894: 70 'The battle for personal liberty seems to have been attained, but, in the absence of the din and clash, we cannot comprehend the meaning of all the safeguards employed. When we see the shield held before the briber, the liquor seller, the usury taker, the duelist, and the other violators of accepted law, we are moved to break or cast is aside, unmindful of the splendid purpose that first threw it forward. But, whatever its disadvantages now, it is a fixed privilege, until taken down by the same power that extended it. It is not certain, either, that it may not yet serve some useful purpose. The oppression of crowns and principalities is unquestionably over, but the more frightful oppression of selfish, ruthless, and merciless majorities may yet constitute one of the chapters of future history. In my opinion, the privilege of silence, against a criminal accusation, guarantied by the fifth amendment, was meant to extend to all the consequences of disclosure.' 71 It is no answer to say that a witness who exercises his Fifth Amendment right of silence and stands mute may bring himself into disrepute. If so, that is the price he pays for exercising the right of silence granted by the Fifth Amendment. The critical point is that the Constitution places the right of silence beyond the reach of government. The Fifth Amendment stands between the citizen and his government. When public opinion casts a person into the outer darkness, as happens today when a person is exposed as a Communist, the government brings infamy on the head of the witness when it compels disclosure. This is precisely what the Fifth Amendment prohibits. 72 Finally, it is said that we should not disturb Brown v. Walker because it is an old and established decision. But this Court has always been willing to re-examine and overrule constitutional precedents, even those old and established. In Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, this Court overruled Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, which had been a rule of decision for 95 years. United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440, partly overruled Paul v. State of Virginia, 8 Wall. 168, 19 L.Ed. 357, which had been decided 75 years previously. In Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, the Court rejected some of the grounds of decision in Anderson v. Dunn, 6 Wheat. 204, 5 L.Ed. 242, which had been standing for 59 years. Brown v. Walker, decided by a bare majority of the Court and now 60 years old, has no greater claim to sanctity than the other venerable decisions which history showed had outlived their usefulness or were conceived in error. And a rejection of Brown v. Walker would certainly be far less disruptive of a system of law than was the overruling of Swift v. Tyson, which affected the trial of every diversity case in the federal courts. 1 Griswold, The Fifth Amendment Today (1955), 7. 2 Father John Fearon, O.P., has addressed himself to this misapprehension: 'What is to be said of the opinion that an innocent man has an obligation in conscience not to have recourse to the Fifth Amendment? Since the natural law does not provide explicitly for this circumstance moral obligation has to be determined by civil law. Actually the determination of civil law is quite clear: the innocent and guilty alike have a right of recourse to the Fifth Amendment. And if the innocent man has a clearly defined right to such recourse it is inconceivable that he could simultaneously have a duty not to have recourse, since rights and duties are correlative. Nor can it be urged that non-recourse is a duty of piety rather than justice. If such an opinion were binding and all innocent men waived their rights to the protection of the Fifth Amendment, the purpose of the law would be defeated and the common welfare of the nation would suffer rather than prosper.' Congressional Investigations and Moral Theology, The Commonweal, Feb. 19, 1954, 497, 499. 3 'If liberty is worth keeping and free representative government worth saving, we must stand for all American fundamentals—not some, but all. All are woven into the great fabric of our national well-being. We cannot hold fast to some only, and abandon others that, for the moment, we find inconvenient. If one American fundamental is prostrated, others in the end will surely fall. The success or failure of the American theory of society and government, depends upon our fidelity to every one of those interdependent parts of that immortal charter of orderly freedom, the Constitution of the United States.' Beveridge, The Assault upon American Fundamentals, 45 Reports of American Bar Ass'n., 188, 216 (1920). 4 '* * * no person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the Commission * * * or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the act of Congress, entitled, 'An act to regulate commerce,' * * * on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said Commission, or in obedience to its subpoena * * * or in any such case or proceeding: Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying.' 5 Shiras, J., joined by Gray and White, JJ., and Field, J., dissented. 6 It is true that the Court in Brown v. Walker stated: '* * * it is entirely clear that he was not the chief, or even a substantial, offender against the law, and that his privilege was claimed for the purpose of shielding the railway or its officers from answering a charge of having violated its provisions. To say that, notwithstanding his immunity from punishment, he would incur personal odium and disgrace from answering these questions, seems too much like an abuse of language to be worthy of serious consideration.' 161 U.S. at pages 609—610, 16 S.Ct. at pages 651 652. The Court, however, concluded: 'But, even if this were true, under the authorities above cited, he would still be compelled to answer, if the facts sought to be elucidated were material to the issue.' Id., 161 U.S. at page 610, 16 S.Ct. at page 651. For a fuller exposition, see, Id., 161 U.S. at pages 605—606, 16 S.Ct. at page 650. 7 '(a) In the course of any investigation relating to any interference with or endangering of, or any plans or attempts to interfere with or endanger the national security or defense of the United States by treason, sabotage, espionage, sedition, seditious conspiracy or the overthrow of its Government by force or violence, no witness shall be excused from testifying or from producing books, papers, or other evidence before either House, or before any committee of either House, or before any joint committee of the two Houses of Congress on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture, when the record shows that— '(1) in the case of proceedings before one of the Houses of Congress, that a majority of the members present of that House; or '(2) in the case of proceedings before a committee, that two-thirds of the members of the full committee shall by affirmative vote have authorized such witness to be granted immunity under this section with respect to the transactions, matters, or things concerning which he is compelled, after having claimed his privilege against self-incrimination to testify or produce evidence by direction of the presiding officer and 'that an order of the United States district court for the district wherein the inquiry is being carried on has been entered into the record requiring said person to testify or produce evidence. Such an order may be issued by a United States district court judge upon application by a duly authorized representative of the Congress or of the committee concerned. But no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is so compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except prosecutions described in subsection (d) hereof) against him in any court. '(b) Neither House nor any committee thereof nor any joint committee of the two Houses of Congress shall grant immunity to any witness without first having notified the Attorney General of the United States of such action and thereafter having secured the approval of the United States district court for the district wherein such inquiry is being held. The Attorney General of the United States shall be notified of the time of each proposed application to the United States district court and shall be given the opportunity to be heard with respect thereto prior to the entrance into the record of the order of the district court.' 8 The footnotes in the district judge's opinion have been renumbered. 9 'Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598; United States v. Rumely, 345 U.S. 41, 45, 73 S.Ct. 543, 97 L.Ed. 770; United States v. C.I.O., 335 U.S. 106, 68 S.Ct. 1349, 92 L.Ed. 1849; Brandeis, J. concurring in Ashwander v. T.V.A., 297 U.S. 288, 341, 348, 56 S.Ct. 466, 80 L.Ed. 688, and cases cited.' 10 'United States v. Rumely, 345 U.S. 41, 47, 73 S.Ct. 543, 546, 97 L.Ed. 770.' 11 'Cf. Shapiro v. United States, 335 U.S. 1, 31, 68 S.Ct. 1375, 92 L.Ed. 1787.' 12 We need not consider at this time petitioner's claim that immunity is not complete and the statute unconstitutional because he can be prosecuted later for participation in a continuing conspiracy. Congress has the power to provide, and has provided, that immunity from prosecution which the Constitution requires. See Heike v. United States, 227 U.S. 131, 142, 33 S.Ct. 226, 228, 57 L.Ed. 450. 13 He urged that the statute left the witness in a worse condition because it did not abrogate the crime for which he was given immunity; that the constitutional safeguard goes toward relieving the witness from the danger of an accusation being made against him while the statutory immunity forces him to supply evidence leading to an accusation and provides only a means for defense; that the statute puts a heavy burden on petitioner, if he is indicted, to prove that he had testified concerning the matter for which he was indicted; that a citizen is entitled to the very thing secured to him by the constitutional safeguards and not something which will probably answer the same purpose; that the statute subjects him to the infamy and disgrace from which he was protected by the constitutional safeguard; that the statute did not protect him from prosecution for a state crime; that even if it were so interpreted, Congress had no power to grant such protection; that the immunity granted was too narrow since it only extended to matters concerning which he was called to testify and not to all matters related to the testimony given; that to be able to claim the privilege the witness would virtually have to reveal his crime in order that the court could see that the statute failed to protect him; and finally that the statute was an attempt to exercise the power of pardon which was a power not delegated to Congress. 14 '* * * the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic, living institutions transplanted from English soil. There significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.' Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. 1115. 15 We do not discuss petitioner's argument, relying on the First Amendment, that inquiry into his political membership and associations is unconstitutional. Petitioner contends that some of the questions which he was asked are objectionable because they require testimony that is protected by the implications of the First Amendment. But it is every man's duty to give testimony before a duly constituted tribunal unless he invokes some valid legal exemption in withholding it. Although petitioner made the First Amendment argument when the United States Attorney applied, under the Immunity Act, for an order requiring him to testify, when he was cited for contempt he urged only 'all of the grounds we urged before Judge Weinfeld in opposition to the statute, in support of our contention that the statute was unconstitutional. We will rest on that and proceed on that basis in the Appellate Courts.' Petitioner did not make any objection to the questions other than the assertion of the unconstitutionality of the Immunity Act. It should also be noted that when petitioner—who, the record shows, was an experienced witness, had been advised by counsel especially experienced in this field, and was desirous of making this a test case—refused to answer the questions propounded before the grand jury the second time, he did not claim any privilege under the First Amendment. His counsel, by was of dispensing with the reading of the minutes of what took place before the grand jury, stated that 'the reason given for his refusal was that he feared the answers might incriminate him and he pleaded his privilege under the Fifth Amendment of the Constitution.' 1 See 64 Stat. 992, 50 U.S.C. § 784, as amended, 68 Stat. 777, 50 U.S.C. (Supp. II) § 784, 50 U.S.C.A. § 784 (prohibition of employment in the Federal Government and in defense facilities); 64 Stat. 993, 50 U.S.C. § 785, 50 U.S.C.A. § 785 (ineligibility for a passport); 64 Stat. 1019, 50 U.S.C. §§ 811—826, 50 U.S.C.A. §§ 811—826 (the possibility of internment); 40 Stat. 220, as amended, 64 Stat. 427, 50 U.S.C. § 191, 50 U.S.C.A. § 191; 33 CFR, 1955 Cum.Supp. §§ 125.01, 125.29 (possibility of loss of employment as a longshoreman). And see 68 Stat. 776, 50 U.S.C. (Supp. II) § 843, 50 U.S.C.A. § 843. Moreover, under the Subversive Activities Control Act, 64 Stat. 987, 50 U.S.C. § 781, 50 U.S.C.A. § 781, discussed hereafter, it is a crime for a person who is a member of a Communist organization registered under the Act to engage in certain activity, e.g., to hold office or employment with any labor organization, to work for the Government or have employment in any defense facility, § 5(a)(1), or to apply for or use a passport, § 6(a). 2 The impact of public identification on First Amendment freedoms was acknowledged by Chief Justice Vinson in American Communications Ass'n, C.I.O., v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 686, 94 L.Ed. 925, where he said: 'Under some circumstances, indirect 'discouragements' undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions or taxes. A requirement that adherents of particular religious faiths, or political parties wear identifying arm-bands, for example, is obviously of this nature.' 3 Dean Erwin N. Griswold of Harvard recently wrote: 'Where matters of a man's belief or opinions or political views are essential elements in the charge, it may be most difficult to get evidence from sources other than the suspected or accused person himself. Hence, the significance of the privilege over the years has perhaps been greatest in connection with resistance to prosecution for such offenses as heresy or political crimes. In these areas the privilege against self-incrimination has been a protection for freedom of thought and a hindrance to any government which might wish to prosecute for thoughts and opinions alone.' The Fifth Amendment Today, supra 8—9. 4 Infamy as a sanction in Roman Law is traced in Tatarczuk, Infamy of Law, Canon Law Studies No. 357, The Catholic University of America (1954), 1—13. The penalties that Roman Law attached to infamy are familiar: exclusion from the army, from all public service, and from the exercise of certain public rights. Id., at 10. 5 The cases arising under the first Clause of the Fifth Amendment recognize that what may be considered an 'infamous crime' within the meaning of that Clause may be affected by changes of public opinion from one age to another. See Ex parte Wilson, 114 U.S. 417, 427, 5 S.Ct. 935, 940, 29 L.Ed. 89; Mackin v. United States, 117 U.S. 348, 351, 6 S.Ct. 777, 778, 29 L.Ed. 909; United States v. Moreland, 258 U.S. 433, 441, 451, 42 S.Ct. 368, 371, 374, 66 L.Ed. 700 (dissenting opinion by Brandeis, J.). In opinion by Brandeis, J.). In 5 S.Ct. 35, 38, 28 L.Ed. 673, the Court refused to decide the 'very important' question whether a crime was made 'infamous' when upon conviction the defendant became "ineligible to any office or place of honor, profit, or trust created by the Constitution or laws of the United States." Justice Miller said: 'When we bring this language, which is not the sentence of the court, but an indelible disgrace affixed to the party convicted by the declaration of the law itself, into direct connection with the language of the fifth article of amendment of the constitution * * * there does arise a very serious question whether this crime is not made an infamous one by the language of the statute, and cannot, therefore, be prosecuted by information.' Id., 112 U.S. at page 82, 5 S.Ct. at page 38, 28 L.Ed. 673. The Court did not decide the question because it had not been argued nor presented to the lower courts. And see Ex parte Wilson, supra, 114 U.S. at page 426, 5 S.Ct. at page 939, 29 L.Ed. 89. The Fifth and Sixth Amendments place the grand and petit juries as barriers between the government and the individual. The provisions for those two juries help emphasize the function played by the Bill of Attainder clauses of the Constitution. See Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. The guarantee of jury trial and the prohibition of Bills of Attainder place beyond the pale the imposition of infamy or outlawry by either the Executive or the Congress. The penalties proscribed as Bills of Attainder extend to disqualification for government employment and outlawry from the professions. See 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. 6 Beccaria seems to have been principally introduced to America by Voltaire. See Barr, Voltaire in America (1941), 23—24. Barr states, 'Beccaria's Essay on Crimes and Punishment with its famous commentary by Voltaire was known in America immediately after its first appearance in France and was the first of Voltaire's works to be published in America. It was popular in lending libraries and as a quickly sold item in bookstores, because of general interest in the formation of a new social order. A separate monograph would be necessary to trace the influence of this epoch-making tract.' Id., at 119. 7 See Chinard, The Commonplace Book of Thomas Jefferson (1926), 298 et seq. 8 de Pastoret, supra, 125—126, wrote: 'Penalties which, in France, produce infamy in law are (in addition to corporal or afflictive penalties), la claie,* the iron collar or the pillory, civil death, censure, condemnation of memory, condemnation to be led around on an ass wearing a straw hat, degradation from the order of nobility, fine in a criminal matter when a judgment confirms it * * * public confession and apology, forced alms in civil matters, permanent prohibition to hold office.' * Trainer sue la claie was the means used to drag the condemned to execution. The same thing was done to the bodies of suicides. For a description of this, see Saint-Edme, Dictionnaire De La Penalite Dans Toutes Les Parties Du Monde Connu (1825), Vol. 3, 242—244.

01

350 U.S. 415 76 S.Ct. 522 100 L.Ed. 494 UNITED STATES of America, Appellant,v. Jack GREEN and General Laborers' Local No. 397 of Granite City, Illinois, etc. No. 54. Argued Feb. 27, 1956. Decided March 26, 1956. Mr. Oscar H. Davis, Washington, D.C., for appellant. Mr. A. M. Fitzgerald, Springfield, Ill., for appellees. Mr. Justice REED delivered the opinion of the Court. 1 An indictment was found in the Southern District of Illinois against appellees Green and a local union. The jury adjudged them guilty under counts one and two thereof. The court sustained their separate motions in arrest of judgment, setting out in its order that its action was 'solely' on the following grounds: 2 '2. This court is without jurisdiction of the offense. 3 '(b) The facts alleged in the Indictment failed to set forth an offense against the United States such as to give this Court jurisdiction. 4 '(c) A proper construction of the statute in question clearly indicates that it does not cover the type of activity charged in this indictment; to interpret the Act in question as covering the type of activity charged in this Indictment is to extend the jurisdiction of this Court and the power of Congress beyond their Constitutional limits.' 5 Appeal was taken by the United States directly to this Court under 18 U.S.C. § 3731, 18 U.S.C.A. § 3731.1 We noted probate jurisdiction. 350 U.S. 813, 76 S.Ct. 44. 6 The two counts in question were based upon alleged violations of 18 U.S.C. § 1951, 18 U.S.C.A. § 1951, popularly known as the Hobbs Act. The pertinent statutory provisions are subsections (a) and (b)(2) thereof, reading as follows: 7 '(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. 8 '(b) * * * 9 '(2) The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.' 10 Each of the two counts charged appellees with acts of extortion under § 1951 directed against a different employer. The extortions alleged consisted of attempts to obtain from the particular employer 11 'his money, in the form of wages to be paid for imposed, unwanted, superfluous and fictitious services of laborers commonly known as swampers, in connection with the operation of machinery and equipment then being used and operated by said (employer) in the execution of his said contract for maintenance work on said levee, the attempted obtaining of said property from said (employer) as aforesaid being then intended to be accomplished and accomplished with the consent of said (employer), induced and obtained by the wrongful use, to wit, the use for the purposes aforesaid, of actual and threatened force, violence and fear made to said (employer), and his employees and agents then and there being: in violation of Section 1951 of Title 18, United States Code.' 12 Appellees each filed motions for acquittal or in the alternative for a new trial. These the trial court specifically denied. The opinion of the trial court, 135 F. Supp. 162, says nothing as to failure of evidence to support the allegations of the indictment, or as to trial errors. Instead the court relied upon the absence of criminality in the acts charged, and it was therefore logical for the trial court to deny acquittal and new trial.2 The court thought persuasive our recent cases which held union efforts to secure 'made work' for their members were not unfair labor practices.3 From its view that extortion as defined in the Hobbs Act covers only the taking of property from another for the extortioner's personal advantage, the necessity to arrest the judgment followed. Rule 34, Fed.Rules Crim.Proc., 18 U.S.C.A. 13 We do not agree with that interpretation of the section. The Hobbs Act was passed after this Court had construed § 2 of the Federal Anti-Racketeering Act of 1934, 48 Stat. 979, in United States v. Local 807, 315 U.S. 521, 62 S.Ct. 642, 86 L.Ed. 1004. Subsection (a) of § 2 barred, with respect to interstate commerce, exaction of valuable considerations by force, violence or coercion, 'not including, however, the payment of wages by a bona-fide employer to a bona-fide employee'. We held in Local 807 that this exception covered members of a city truck drivers' union offering superfluous services to drive arriving trucks to their city destination with intent, if the truck owners refused offer, to exact the wages by violence.4 In the Hobbs Act, 60 Stat. 420, carried forward as 18 U.S.C. § 1951, 18 U.S.C.A. § 1951, which amended the Anti-Racketeering Act, the exclusion clause involved in the Local 807 decision was dropped. The legislative history makes clear that the new Act was meant to eliminate any grounds for future judicial conclusions that Congress did not intend to cover the employer-employee relationship.5 The words were defined to avoid any misunderstanding. 14 Title II of the Hobbs Act provides that the provisions of the Act shall not affect the Clayton Act, §§ 6 and 20, 38 Stat. 731, 738, 15 U.S.C.A. § 17, 29 U.S.C.A. § 52; the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C.A. § 101 et seq.; the Railway Labor Act, 44 Stat. 577, 45 U.S.C.A. § 151 et seq.; or the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq.6 There is nothing in any of those Acts, however, that indicates any protection for unions or their officials in attempts to get personal property through threats of force or violence. Those are not legitimate means for improving labor conditions.7 If the trial court intended by its references to the Norris-LaGuardia and Wagner Acts to indicate any such labor exception, which we doubt, it was in error. Apparently what the court meant is more clearly expressed by its statement, set out in the last paragraph of note 2 above, that the charged acts would be criminal only if they were used to obtain property for the personal benefit of the union or its agent, in this case Green. This latter holding is also erroneous. The city truckers in the Local 807 case similarly were trying by force to get jobs and pay from the out-of-state truckers by threats and violence. The Hobbs Act was meant to stop just such conduct. And extortion as defined in the statute in no way depends upon having a direct benefit conferred on the person who obtains the property. 15 It is also stated in the opinion below that to interpret the Act as covering the activity charged would 'extend the jurisdiction of the Court, and the power of Congress beyond their Constitutional limits.' 135 F.Supp. at page 162. The same language is in the order. Since in our view the legislation is directed at the protection of interstate commerce against injury from extortion, the court's holding is clearly wrong. We said in the Local 807 case that racketeering affecting interstate commerce was within federal legislative control. 315 U.S. at page 536, 62 S.Ct. 648. Cf. Cleveland v. United States, 329 U.S. 14, 19, 67 S.Ct. 13, 15, 91 L.Ed. 12; Mitchell v. C. W. Vollmer & Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196. 16 On this appeal the record does not contain the evidence upon which the court acted. The indictment charges interference with commerce by extortion in the words of the Act's definition of that crime. We rule only on the allegations of the indictment and hold that the acts charged against appellees fall within the terms of the Act. The order in arrest of judgment is reversed and the cause remanded to the District Court. 17 It is so ordered. 18 Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting. 19 The Government has no right to a direct appeal to this Court under 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, if the District Court judgment 'was not placed solely upon the invalidity or construction of the statute'. United States v. Wayne Pump Co., 317 U.S. 200, 208, 63 S.Ct. 191, 196, 87 L.Ed. 184. (Italics added.) The presence of any additional and independent ground for the District Court's order is fatal to direct review here. I am convinced that there is such an independent ground for the District Court's judgment in this case. It is evident from the district judge's memorandum opinion, 135 F.Supp. 162, that his order granting the motions in arrest of judgment rested at least in part upon the insufficiency of the evidence to support the conviction. He considered facts not alleged in the indictment, e.g., that contractors in the community had customarily agreed to the employment of labor which allegedly was demanded by appellees, and that the trouble on the particular job was caused by a disagreement between the contractor and labor, not by an attempt to extort. I would therefore dismiss the Government's appeal. 1 'An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: 'From a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded.' 2 The opinion states: 'It is now contended that the Indictment does not state a cause of action within the meaning of the above section. In the usual extortion case, the extorter is obtaining money or property of another for his own benefit. * * * In the case at hand, I conclude that Green's original activity in 'attempting to obtain from Arthur W. Terry, Jr., his money in the form of wages to be paid for imposed, unwanted, superfluous and fictitious services of laborers' which said charge was seriously controverted, was of itself not a violation of this statute, and within his rights and responsibilities as a Union representative, which was not prohibited by this statute. '* * * I conclude that the trouble in this Community and on this particular job was caused by a disagreement between the contractor and labor, and was in no wise an attempt to extort for the use of either the Union or the Defendant Green, any money or property of the contract.' 135 F.Supp. at pages 163, 164. 3 See American Newspaper Publishers Association v. National Labor Relations Board, 345 U.S. 100, 73 S.Ct. 552, 97 L.Ed. 852; National Labor Relations Board v. Gamble Enterprises, 345 U.S. 117, 73 S.Ct. 560, 97 L.Ed. 864. 4 The exception was held also to permeate the entire Act. At page 527, of 315 U.S., 62 S.Ct. at page 644, note 2. 5 Beginning soon after our decision in the Local 807 case, a series of bills was introduced in Congress looking toward an amendment to the Anti-Racketeering Act of 1934. S. 2347, 77th Cong., 2d Sess.; H.R. 6872, 77th Cong., 2d Sess.; H.R. 7067, 77th Cong., 2d Sess.; H.R. 653, 78th Cong., 1st Sess.; H.R. 32, 79th Cong., 1st Sess. The last of these bills, H.R. 32, supra, was enacted and became the Hobbs Act, 62 Stat. 793. The House Committee on the Judiciary, in its report on H.R. 32, stated: 'It is not the intention of the committee that title III (enacted as title II) be interpreted as authorizing any unlawful acts, particularly those amounting to robbery or extortion. The need for the legislation was emphasized by the opinion of the Supreme Court in the case of United States v. Local 807 (315 U.S. 521 (62 S.Ct. 642, 86 L.Ed. 642)).' H.R.Rep. No. 238, 79th Cong., 1st Sess., p. 10. See also S.Rep. No. 1516, 79th Cong., 2d Sess. Each of the prior bills had the same purpose—amending the Anti-Racketeering Act so as to change the terms which brought about the result reached in the Local 807 case. See H.R.Rep. No. 2176, 77th Cong., 2d Sess.; H.R.Rep. No. 66, 78th Cong., 1st Sess. And see 91 Cong.Rec. 11842, 11843, 11909, 11911, 11919, 11920. 6 The Hobbs Act was enacted prior to the Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq. 7 Cf. United States v. Ryan, 350 U.S. 299, 76 S.Ct. 400; United Construction Workers v. Laburnum Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025; Allen-Bradley Local 1111, etc. v. Wisconsin Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154; National Labor Relations Board v. Fansteel Metallurigical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627; United States v. Kemble, 3 Cir., 198 F.2d 889.

01

350 U.S. 488 76 S.Ct. 536 100 L.Ed. 580 MURDOCK ACCEPTANCE CORPORATION, Petitioner,v.UNITED STATES of America. No. 56. Argued Feb. 27, 1956. Decided March 26, 1956. Elizabeth Hulen Grayson, Jackson, Miss., for petitioner. Mr. John F. Davis, Washington, D.C., for respondent. PER CURIAM. 1 The United States filed a libel in the District Court for the Eastern District of Louisiana, under §§ 3116 and 3321 of the Internal Revenue Code of 1939, 53 Stat. 362, 401, 26 U.S.C.A., for the forfeiture of an automobile which had been used to transport nontax-paid whiskey. Petitioner, a finance company which had accepted an assignment of a conditional sales contract when the automobile was purchased, sought remission of the forfeiture to the extent of its interest under 18 U.S.C. § 3617, 18 U.S.C.A. § 3617. That section provides that in a forfeiture proceeding the District Court 'shall have exclusive jurisdiction to remit' the forfeiture, but that the court 'shall not allow' remission unless the finance company (1) acquired its interest in good faith; (2) had no reason to believe that the automobile would be used in violation of the liquor laws; and (3), 2 'was informed in answer to (its) inquiry, at the headquarters of the sheriff, chief of police, principal Federal internal-revenue officer engaged in the enforcement of the liquor laws, or other principal local or Federal law-enforcement officer of the locality * * * that (the purchaser) had no * * * record or reputation (for violating laws of the United States or of any State relating to liquor).' 3 It is conceded that petitioner satisfied the first two requirements. As to the third, petitioner made a timely inquiry regarding the purchaser of the automobile to the state office of the Federal Alcohol and Tobacco Unit, from which it received the following reply: 4 'No record or reputation as a liquor law violator as of (the date of the inquiry). This office does not keep a complete file of State and local arrests or prosecutions, and has no knowledge of the subject's reputation among State and local officers.' 5 It is conceded that the inquiry was made to an appropriate office and that, if the substance of the reply satisfied the statute, no further inquiries were required by the statute. The issue is whether the substance of the reply was adequate. 6 The reply received by petitioner was a form reply designed by the Internal Revenue Service expressly for the purpose of satisfying this statutory requirement. It had for years been accepted as compliance with the statute in administrative remissions and in forfeiture proceedings in other district courts. Nevertheless, the District Court denied remission on the ground that the reply did not satisfy the statute in that it expressly disclaimed any knowledge of the purchaser's record or reputation for state liquor law violations. 121 F.Supp. 265. The Court of Appeals for the Fifth Circuit affirmed, 218 F.2d 702, with one judge dissenting upon rehearing, 220 F.2d 279. We think the courts below misconstrued the reply. The first sentence affirmatively stated that the purchaser had no record or reputation in that office as a 'liquor law violator,' and that statement was not limited to federal violations. The second sentence did not qualify the negative character of the reply but merely made clear that that office's knowledge was not unlimited. 7 The District Court also based its decision on the alternative ground that, even if the requirements of the statute were technically met, remission would be denied in the discretion of the court. The sole basis for that holding was that petitioner was 'put on notice' by the reply that the purchaser might well have a record as a liquor law violator with the state authorities, and its failure to investigate further disclosed 'an indifference on its part which does not commend it to the equitable conscience of this court.' We need not decide the extent of the District Court's discretionary power to deny remissions, since in any event we think there was no occasion for its exercise here. The very purpose of prescribing in detail in the statute the type of inquiry to be made was to avoid uncertainty over the extent of investigation necessary to protect finance companies against forfeitures. That purpose would be frustrated if a duty to investigate further could be grounded solely upon the alleged inadequacy of a reply clearly satisfying the statutory investigation requirements. In limiting the inquiry duty to any one of several offices, Congress must necessarily have contemplated that the records of one office only would be checked. It considered that adequate. 8 The judgment below is reversed and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion. 9 Reversed and remanded. 10 Mr. Justice FRANKFURTHER dissents.

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350 U.S. 492 76 S.Ct. 534 100 L.Ed. 634 WERNER MACHINE COMPANY, Inc., Appellant,v.DIRECTOR OF DIVISION OF TAXATION, DEPARTMENT OF THE TREASURY, STATE OF NEW JERSEY. No. 63. Argued March 5, 6, 1956. Decided March 26, 1956. Mr. Charles Goodwin, Jr., New York City, for appellant. Mr. Harold Kolovsky, Union City, N.J., for appellee. PER CURIAM. 1 The State of New Jersey imposes on each domestic corporation 'an annual franchise tax * * * for the privilege of having or exercising its corporate franchise' in the State.1 This tax, as applied to appellant, is measured by the corporation's 'net worth,' which is defined as the sum of the corporation's issued and outstanding capital stock, paid-in or capital surplus, earned surplus and undivided profits, other surplus accounts which will accrue to the shareholders (not including depreciation reserves), and debts owed to shareholders owning 10 percent or more of the corporation's stock.2 Appellant is a corporation organized under the laws of New Jersey, and is therefore subject to the tax. In assessing appellant's tax for 1952, the Tax Commissioner included in appellant's net worth the value of certain federal bonds held by appellant, thereby increasing the amount due by $320.07. Appellant protested, claiming that under R.S. § 3701, 31 U.S.C. § 742, 31 U.S.C.A. § 742, these bonds were immune from state taxation. The New Jersey courts upheld the Commissioner's assessment, and this appeal contests the validity of the state statute as so applied. 2 Appellant contends that this tax is not in reality a franchise tax, but is rather in the nature of a direct property tax on the immune federal obligations. Corporate franchises granted by a State create a relationship which may legitimately be made the subject of taxation, Home Ins. Co. of New York v. State of New York, 134 U.S. 594, 599—600, 10 S.Ct. 593, 595, 33 L.Ed. 1025; Flint v. Stone Tracy Co., 220 U.S. 107, 162, 31 S.Ct. 342, 353, 55 L.Ed. 389; Educational Films Corp. of America v. Ward, 282 U.S. 379, 388, 51 S.Ct. 170, 171, 75 L.Ed. 400; and the statute expressly declares this to be a franchise tax. Moreover, the Supreme Court of New Jersey has, on independent examination, found this to be 'a bona fide franchise tax.'3 While this is, of course, not conclusive here, Society for Savings in City of Cleveland, Ohio v. Bowers, 349 U.S. 143, 75 S.Ct. 607, 99 L.Ed. 950, we find no basis in this instance for not accepting the state court's conclusion that this tax is not imposed directly on the property held by the corporation. Cf. Pacific Co. v. Johnson, 285 U.S. 480, 495—496, 52 S.Ct. 424, 427, 428, 76 L.Ed. 893. 3 Appellant argues further that even if this is a franchise tax, it must fall because its effect is the same as if it had been imposed directly on the tax-exempt federal securities. Since the tax remains the same whatever the character of the corporate assets may be, no claim can be sustained that this taxing statute discriminates against the federal obligations. And since this is a tax on the corporate franchise, it is valid despite the inclusion of federal bonds in the determination of net worth. This Court has consistently upheld franchise taxes measured by a yardstick which includes tax-exempt income or property, even though a part of the economic impact of the tax may be said to bear indirectly upon such income or property. See, e.g., Society for Savings v. Coite, 6 Wall. 594, 18 L.Ed. 897; Provident Institution for Savings v. Massachusetts, 6 Wall. 611, 18 L.Ed. 907; Hamilton Co. v. State of Massachusetts, 6 Wall. 632, 18 L.Ed. 904; Home Ins. Co. of New York v. State of New York, supra; Educational Films Corp. of America v. Ward, supra; Pacific Co. v. Johnson, supra. We have only recently adhered to this principle in another aspect of this field of taxation. See Society for Savings in City of Cleveland, Ohio v. Bowers, supra, 349 U.S. at pages 147 148, 75 S.Ct. at pages 609, 610; New Jersey Realty Title Ins. Co. v. Division of Tax Appeals, 338 U.S. 665, 70 S.Ct. 413, 94 L.Ed. 439, on which appellant relies, is distinguishable, in that it did not involve a franchise tax, but rather a tax whose legal incidence this Court found to be upon the intangible assets of the corporation. 4 Since as applied here this is a permissible tax on the corporate franchise, the decision below must be affirmed. 5 Affirmed. 1 N.J.Laws 1945, c. 162, N.J.S.A. § 54: 10A—1 et seq. 2 Id., §§ 54:10A—4(d)(5). 3 Werner Machine Co. v. Director of Division of Taxation, 17 N.J. 121, 125, 110 A.2d 89, 91.

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350 U.S. 485 76 S.Ct. 491 100 L.Ed. 577 George W. DOUD et al., Doing Business as Bondified Systems and Eugene Derrick, Appellants,v.Orville HODGE, Auditor of Public Accounts of the State of Illinois, et al. No. 129. Argued Feb. 29, 1956. Decided March 26, 1956. Mr. John J. Yowell, Chicago, Ill., for appellants. Mr. William C. Wines, Chicago, Ill., for appellees. Mr. Justice MINTON delivered the opinion of the Court. 1 The appellants are a partnership and its agent, all residents of Illinois. The partnership was engaged exclusively in the business of selling and issuing money orders in the State of Illinois. This business activity was to be conducted through agents who are principally persons engaged in operating retail drug, hardware and grocery stores. Appellant Derrick, a drug store proprietor, contracted with the partnership to act as its agent for the sale of money orders which it issued. 2 Illinois, by statute,1 has sought to license and regulate community currency exchanges. Section 1 of the Community Currency Exchanges Act defines a community currency exchange as 'any person, firm, association, partnership or corporation, except banks incorporated under the laws of this State and National Banks organized pursuant to the laws of the United States, engaged * * * in the business or service of, and providing facilities for, cashing checks, drafts, money orders or any other evidences of money acceptable to such community currency exchange, for a fee or service charge or other consideration, or engaged in the business of selling or issuing money orders under his or their or its name, or any other money orders (other than United States Post Office money orders, American Express Company money order, Postal Telegraph Company money orders, or Western Union Telegraph Company money orders), or engaged in both such businesses, or engaged in performing any one or more of the foregoing services.'2 Subsequent sections of the Act provide for the licensing and comprehensive regulation of such businesses. 3 Appellants brought this suit in the Northern District of Illinois seeking to enjoin the appellees, who are the Auditor of Public Accounts, the Attorney General of the State of Illinois and the State's Attorney of Cook County, Illinois, from enforcing the Community Currency Exchanges Act against them. Jurisdiction was asserted under 28 U.S.C. § 1331, 28 U.S.C.A. § 1331. Appellants argued that a permanent injunction should be issued on the ground that the Act denied them equal protection of the laws in violation of § 1 of the Fourteenth Amendment to the Federal Constitution in that appellants are required to obtain a license and submit to regulation in the conduct of their money order business in the State while the American Express Company, which is engaged in the identical business activity in Illinois, is excepted from the operation of the Act. Since the complaint attacked the validity of a state statute under the Fourteenth Amendment to the Federal Constitution, the suit was tried before a three-judge District Court pursuant to 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284. 4 The District Court heard the case at length and made findings of fact, the material portions of which we have set forth above. The District Court dismissed the complaint, holding that it lacked jurisdiction to determine the constitutional question presented in the absence of an authoritative determination by the Supreme Court of Illinois as to whether the exemption of the American Express Company from the terms of the Act is unconstitutional as applied to these appellants. D.C., 127 F.Supp. 853. We noted probable jurisdiction. 350 U.S. 814, 76 S.Ct. 57. 5 It is clear that the District Court had jurisdiction to entertain appellants' complaint by virtue of the authority vested in it by 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284. This Court has never held that a district court is without jurisdiction to entertain a prayer for an injunction restraining the enforcement of a state statute on grounds of alleged repugnancy to the Federal Constitution simply because the state courts had not yet rendered a clear or definitive decision as to the meaning or federal constitutionality of the statute. 6 We hold that the District Court has jurisdiction of this cause. It was error to dismiss the complaint for lack of jurisdiction. The judgment of the District Court is vacated and the case is remanded to it. We do not decide what procedures the District Court should follow on remand. 7 It is so ordered. 8 Judgment vacated and case remanded. 1 Ill.Rev.Stat., 1955, c. 16 1/2, §§ 30—56.3. 2 Ill.Rev.Stat., 1955, c. 16 1/2, § 31.

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350 U.S. 456 76 S.Ct. 493 100 L.Ed. 545 MILLINERY CENTER BUILDING CORP., Petitioner,v.COMMISSIONER OF INTERNAL REVENUE. No. 255. Argued March 1, 1956. Decided March 26, 1956. Mr. Bernard Weiss, New York City, for petitioner. Mr. Hilbert P. Zarky, Washington, D.C., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 This case involves an interpretation of § 23(a)(1)(A) of the Internal Revenue Code of 1939, as amended 26 U.S.C.A. § 23(a)(1)(A), providing for the deduction from gross income, in computing net income, of all the 'ordinary and necessary expenses paid or incurred * * * in carrying on any trade or business * * *.' The Commissioner determined a deficiency in petitioner's excess-profits tax for 1945; petitioner sought a redetermination of its liability in the Tax Court, which made the following findings of fact. In April 1924, petitioner leased land in New York City for 21 years, with an option to renew the lease for two further 21-year periods. In accordance with the terms of the lease, it erected a 22-story loft building at a cost of $3,000,000. The lease, as amended in 1935, provided for an annual rental of $118,840. Title to the building was in petitioner, but at the eventual termination of the lease it would vest, without payment, in the lessor, at the lessor's option. The lessor could also require petitioner to remove the building at that time. Petitioner had the obligation, in case of destruction of the building, to rebuild at its own cost. During the first 21-year period of the lease, petitioner fully depreciated the entire $3,000,000 cost of the building. In April 1945, it exercised its option to renew the lease until April 1966. 2 In May 1945, petitioner entered into an agreement with the owner whereby it purchased the fee and obtained release from the obligations of the renewed lease. The price paid was $2,100,000. The Tax Court also found that the value of the land, as unimproved, was $660,000 when purchased by petitioner in 1945. 3 The principal issues raised by petitioner relate to its attempt to deduct $1,440,000—the difference between the purchase price under the May 1945 agreement and the 1945 value of the unimproved land—as an ordinary and necessary expense of doing business. The Tax Court held that the difference could not be so deducted, that the difference could not be amortized over the remaining term of the cancelled lease, and that no annual depreciation could be taken because the cost of the building had already been fully depreciated and the purchase price could not be separated into purchase price for building and purchase price for land. 21 T.C. 817. Six of the judges of the Tax Court dissented on the ground that '(s)ome part of the purchase price should be allocated to the additional rights in the building acquired in the purchase * * *.' 21 T.C. at page 826. 4 On petition for review, the Court of Appeals for the Second Circuit reversed and remanded. It affirmed the refusal to permit a deduction under § 23(a), but reversed the holding that no amount could be added to the asset value of the building for purposes of depreciation. Rejecting petitioner's argument that it should be allowed to amortize the $1,440,000 over the unexpired term of the cancelled lease, it accepted petitioner's alternative argument that depreciation over the remaining useful life of the building should be allowed. Stating that '(o)n the present state of the record we cannot determine how much of the $2,100,000 purchase price is properly to be allocated to the land and how much to the building,' it remanded the case to the Tax Court to fix the respective values. 2 Cir., 221 F.2d 322, 324. Petitioner sought a writ of certiorari to review the disallowance of its claim for a deduction as a business expense or, alternatively, as amortization over the remaining period of the lease. The Government did not seek review of the allowance of depreciation of that portion of the purchase price allocable to the building over its remaining economic life. Because of the apparent conflict between the decision of the Court of Appeals for the Second Circuit in this case and the decision of the Court of Appeals for the Sixth Circuit in Cleveland Allerton Hotel, Inc., v. Commissioner of Internal Revenue, 166 F.2d 805, we granted certiorari, limited to the questions set forth in the margin.1 5 Under the terms of the lease, petitioner had a 21-year lease on the land, with an option to renew, and similar rights in the building which it had constructed. Petitioner introduced evidence to show that the rent it was paying under the lease was greatly in excess of the fair rental value of the land as vacant, unimproved land. Petitioner contends that it already owned the building and that therefore the purchase agreement was entered into for the purpose of avoiding the excessive rentals of the lease. This transaction, it asserts, involved a current business expenditure, and the $1,440,000 in excess of the vacant land value represents what it was willing to pay to avoid this onerous lease. 6 Petitioner's claim that it 'owned' the building is based on a loose and misleading use of 'owned.' The only way petitioner could continue to use the building after termination of the initial period of the lease was by renewing the lease, and the lease also circumscribed its control over the building. It could make use of the building for the remainder of its economic life, but only on payment of the stated rent. Petitioner's evidence with respect to the rental value of the land as unimproved is irrelevant. It was using the land as improved by the building; it was paying rent for the land as improved by the building. Petitioner tendered no evidence that it was paying excessive rent for what it was actually leasing. A complementary feature of the purchase of the lessor's interests in the land and building was the elimination of the obligation to pay rent on the improved land. The purchase price presumably reflected this situation. Whatever possible merit petitioner's contention might have were there proof of excessive purchase price can await such a case. The purchase price paid by petitioner represents the cost of acquiring the complete fee to the land and the building, and no deduction as an ordinary and necessary business expense can be taken.2 7 Petitioner claims that even if it cannot get a deduction as an ordinary and necessary business expense under § 23(a) or as a loss under § 23(f), it should be allowed to amortize the excess of the payment of $2,100,000 above the determined land value of $660,000 over the 21-year remaining term of the extinguished lease. What petitioner acquired in this transaction, however, were both rights with respect to the land and rights with respect to the building. The Tax Court has not yet fixed that amount of the purchase price which is allocable to the acquisition of rights in the land and that which is allocable to the acquisition of rights in the building. These rights are assets with useful lives having no reference to the term of the lease. Successive steps of securing or renewing a lease and then purchasing the reversion should not result in amortization over the term of the lease when the purchase of the whole fee at one time would result in depreciation over the useful life of the asset, if the asset acquired were a wasting asset. 8 Under petitioner's contention, if the purchase had been consummated in 1944 before the first term of the lease had expired, the whole amount of the purchase price not allocable to the land would be amortized in one year. But it should make no difference whether the lease is about to expire or has just been renewed. In the one case, the value of the reversion is enhanced and the value of the right to receive the rent fixed by the lease is depressed because the lease is near an end. In the other case, the value of the reversion is depressed and the value of the right to receive the fixed rent is enhanced because the lease has many years to run. But although there might possibly be some difference in bargaining power between the two situations, the sum total of the rights purchased is the same in each case. Petitioner has acquired two assets—land and a building—whose use it will have for the remainder of their useful lives, and petitioner therefore cannot amortize the cost allocable to the acquisition of the wasting asset over the term of the extinguished lease. 9 Accordingly, we affirm the judgment of the Court of Appeals for the Second Circuit, leaving to the Tax Court the allocation still to be made. 10 Affirmed. 1 "1. Where a lessee, the owner of a valuable building on leased land, acquires the fee to the land to be relieved of what it considers to be the burdensome terms of a lease, may the lessee deduct the excess of the payment over the determined value of the land at the date of purchase as an ordinary expense of doing business under § 23(a) of the United States Internal Revenue Code of 1939 or under § 23(f) as a loss on a transaction entered into for profit and not compensated for by insurance or otherwise. "2. In the alternative, may the lessee-petitioner consider the excess payment over the determined value of the land to be in the nature of a prepayment of rent for the remaining term of the extinguished lease and amortize such amount over 21 years?" 350 U.S. 820, 76 S.Ct. 79. 2 Petitioner asserted, but did not argue, the permissibility of the deduction of the $1,440,000 as a loss under § 23(f). Such an assertion is apparently premised on the assumption that the $1,440,000 represents the sum paid for commutation of the rent payments under an onerous lease, and further discussion of this argument is unnecessary.

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350 U.S. 495 76 S.Ct. 490 100 L.Ed. 639 John M. PETROWSKI, Grace Ringle, a minor, by Ervin Ringle, her guardian ad litem, Francis Gelhar, et al., Petitioners,v.HAWKEYE-SECURITY INSURANCE COMPANY. No. 469. Argued March 7, 1956. Decided March 26, 1956. Mr. Richard P. Tinkham, Jr., Wausaw, Wis., for petitioner. Mr. Victor M. Harding, Milwaukee, Wis., for respondent. PER CURIAM. 1 Respondent, Hawkeye-Security Insurance Company, filed a motion to quash the return of service of summons on the grounds that the District Court acquired no personal jurisdiction over it and that the power of attorney which it had filed with the Commissioner of Motor Vehicles of the State of Wisconsin did not authorize him to accept service of process for it in this case. After this motion was denied, respondent filed its answer to the complaint in which it again pressed its claim that the District Court lacked personal jurisdiction over it. Subsequently, however, respondent filed (1) a motion to amend its answer and to interplead; (2) a counterclaim; (3) a stipulation and order adding a party-plaintiff and amending the complaint and answer; and (4) a stipulation that judgment be entered against the alleged insured in favor of the additional party-plaintiff. The latter stipulation included the following provision, together with others consistent with it and confirmatory of its purpose: 2 '1. That each of the parties to this stipulation voluntarily submits to the jurisdiction of the above entitled Court without service of process herein, the same as if personal service had been obtained by each against the other.' 226 F.2d 135. 3 Following a trial on the merits, judgment was entered against respondent, but the Court of Appeals, with one judge dissenting, reversed on the ground that respondent's motion to quash should have been granted. 4 Upon examination of the record and the law, we conclude that the District Court had jurisdiction of the subject matter and that respondent, by its stipulation, waived any right to assert a lack of personal jurisdiction over it. We, therefore, reverse the judgment of the Court of Appeals and remand the case to it for further proceedings. 5 Reversed and remanded.

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350 U.S. 462 76 S.Ct. 516 100 L.Ed. 550 GENERAL STORES CORPORATION, Petitioner,v.Max SHLENSKY, Securities and Exchange Commission, Creditors' Committee and WageClaimants. No. 170. Argued Jan. 18, 1956. Decided March 26, 1956. Messrs. Aaron Rosen, Frederic P. Houston, New York City, for petitioner. 1 Mr. Max Goldweber, Jamaica, N.Y., for respondent Wage Claimants. 2 Mr. Leon Singer, New York City, for respondent Creditors Committee. 3 Mr. A. Alan Reich, New York City, for respondent Max Shlensky. 4 Mr. William H. Timbers, Washington, D.C., for respondent Securities Exchange Comm. 5 Mr. Justice DOUGLAS delivered the opinion of the Court. 6 Petitioner instituted proceedings under c. XI of the Bankruptcy Act, 52 Stat. 905, as amended, 11 U.S.C. § 701 et seq., 11 U.S.C.A. § 701 et seq., alleging it was unable to pay its debts as they matured. It proposed an arrangement of its general unsecured trade and commercial debts, none of which is evidence by any publicly held security. Petitioner has indeed no debts of any nature by way of bonds, mortgage certificates, notes, debentures, or obligations of like character, publicly held. It does, however, have over 2,000,000 shares of $1 par value common stock listed on the American Stock Exchange and held by over 7,000 shareholders. One of these—an owner of 3,000 shares—and the Securities and Exchange Commission moved that the proceedings be dismissed unless, within a time fixed by the court, the petition by amended to comply with the requirements of c. X of the Bankruptcy Act, 52 Stat. 883, as amended, 11 U.S.C. § 501 et seq., 11 U.S.C.A. § 501 et seq., for a corporate reorganization. The District Court granted the motions. 129 F.Supp. 801. The Court of Appeals affirmed by a divided vote. 222 F.2d 234. The case is here on certiorari. 350 U.S. 809, 76 S.Ct. 65. 7 Petitioner, formerly known as D. A. Schulte, Inc., has operated for some years a chain of stores for the sale of tobacco and accessory products. Petitioner has also had a chain of difficulties. Its financial problems go back at least to 1936 when it filed a petition for reorganization under former § 77B of the Bankruptcy Act. After its reorganization was completed in 1940, it had a few years of prosperity followed by a postwar decline in volume of business, a rise in costs, and substantial losses. During these years $600,000 cash was raised by the sale of stock and a new management installed with a view to converting some existing stores into candy, food, and drink establishments. That idea was abandoned and the proceeds of the stock sale were used for general corporate purposes. It was then decided to liquidate the existing specialty stores and to have petitioner acquire the stock of two existing retail drugstore chains—Stineway Drug Company and Ford Hopkins Company. The Stineway stock was acquired for $1,220,320, petitioner borrowing $870,000 from Stineway for the purpose. Later petitioner borrowed an additional $440,000 from Stineway to help make the down payment on the Ford Hopkins stock, making a total indebtedness to Stineway of $1,310,000, represented by two non-interest-bearing notes. The Ford Hopkins stock was acquired for $2,800,000, the down payment being $735,000, the balance being payable in a yearly amount of $200,000 with 4 per cent interest and secured by the Stineway and Ford Hopkins stock. 8 While the two drug chains were being acquired, petitioner started the liquidation of its own stores, a process that was completed under c. XI of the Bankruptcy Act. The disposition of those stores involved the rejection of numerous leases and the creation of claims of landlords against petitioner. 9 The arrangement proposed by petitioner under c. XI would extend its unsecured obligations and provide for a 20 per cent payment on confirmation of the plan and 20 per cent annually for 4 years thereafter. The claims listed were the $1,310,000 debt to Stineway and $525,000 unsecured claims, exclusive of claims by landlords. We were advised on oral argument that during the course of the c. XI proceedings it was decided that this offer was not feasible and that the unsecured creditors are now offered the equivalent of 40 per cent of their claims in full satisfaction. 10 Much of the argument has been devoted to the meaning of Securities and Exchange Commission v. United States Realty & Improvement Co., 310 U.S. 434, 60 S.Ct. 1044, 84 L.Ed. 1293. In that case we held that relief was not properly sought under c. XI but that c. X offered the appropriate relief. That was a case of a debtor with publicly owned debentures, publicly owned mortgage certificates, and publicly owned stock. An arrangement was proposed that would leave the debentures and stock unaffected and extend the certificates and reduce the interest. It was argued in that case, as it has been in the instant one, that c. X affords the relief for corporations whose securities are publicly owned, while c. XI is available to debtors whose stock is closely held; that c. X is designed for the large corporations, c. XI for the smaller ones; that it is the character of the debtor that determines whether c. X or c. XI affords the appropriate remedy. We did not adopt that distinction in the United States Realty case. Rather we emphasized the need to determine on the facts of the case whether the formulation of a plan under the control of the debtor, as provided by c. XI, or the formulation of a plan under the auspices of disinterested trustees, as assured by c. X and the other protective provisions of that chapter, would better serve 'the public and private interests concerned including those of the debtor.' 310 U.S. at page 455, 60 S.Ct. at page 1053. The United States Realty case presented a rather simple problem. There one class of creditors was being asked to make sacrifices, while the position of the stockholders remained unimpaired, id., 310 U.S. 453—454, 456, 60 S.Ct. 1052, 1053, contrary to the teachings of Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 60 S.Ct. 1, 84 L.Ed. 110. Moreover, the history of the company raised a serious question 'whether any fair and equitable arrangement in the best interest of creditors' could be effected 'without some rearrangement of its capital structure.' Id., 310 U.S. 456, 60 S.Ct. 1053. For those reasons c. X was held to offer the appropriate relief. 11 The character of the debtor is not the controlling consideration in a choice between c. X and c. XI. Nor is the nature of the capital structure. It may well be that in most cases where the debtor's securities are publicly held c. X will afford the more appropriate remedy. But that is not necessarily so. A large company with publicly held securities may have as much need for a simple composition of unsecured debts as a smaller company. And there is no reason we can see why c. XI may not serve that end. The essential difference is not between the small company and the large company but between the needs to be served. 12 Readjustment of all or a part of the debts of an insolvent company without sacrifice by the stockholders may violate the fundamental principle of a fair and equitable plan, see Case v. Los Angeles Lumber Products Co., supra, as the United States Realty Co. case emphasizes. 13 Readjustment of the debt structure of a company, without more, may be inadequate unless there is also an accounting by the management for misdeeds which caused the debacle. 14 Readjustment of the debts may be a minor problem compared with the need for new management. Without a new management today's readjustment may be a temporary moratorium before a major collapse. 15 These are typical instances where c. X affords a more adequate remedy than c. XI. The appointment of a disinterested trustee, § 156, his broad powers of investigation, § 167, the role of the trustee in preparing a plan, § 169, the duty of the Securities and Exchange Commission to render an advisory report on the plan, § 172, the requirement that the plan be 'fair and equitable, and feasible', §§ 174, 221, the power to include the subsidiaries, Stineway and Ford Hopkins, in the reorganization of petitioner, § 129—these are controls which c. X gives to the entire community of interest in the company being reorganized and which are lacking under c. XI. These controls are essential both where a complicated debt structure must be readjusted and where a sound discretion indicates either that there must be an accounting from the management or that a new management is necessary. Those conditions only illustrate the need for c. X. There may be others equally compelling. 16 The history of this debtor indicates not fraud but either an improvident overextension or a business that has been out of step with modern trends. One corporate reorganization has already been suffered. Heavy short-term loans hang ominously over the company; and it has been converted from an operating company to a holding company with the shares of the subsidiaries pledged to creditors. It is argued that only a short moratorium is needed. There are, however, fears that a short moratorium may be merely a prelude to new disasters, that what the company needs is a fundamental reorganization of its capital structure, so that its limited cash resources will not be dissipated in an effort to meet the demands for debt reduction. A question as to what is 'fair and equitable' between creditors and stockholders may eventually be reached in the reorganization. But the paramount issue at present concerns what is 'feasible.' A 'feasible' plan within the meaning of c. X, §§ 174, 221, might mean, first, a merger of the subsidiaries with the holding company, and, second, a funding of the unsecured debt and a realignment of debt and stock so as to give a balanced capital structure. The old business has been liquidated and the new one launched with heavy borrowings on a short-term basis. If the new one is to succeed, it may well need a more thorough going capital readjustment than is possible under c. XI. That was the view of two lower courts. We could reverse them only if their exercise of discretion transcended the allowable bounds. We cannot say that it does. Rather we think that the lower courts took a fair reading of c. X and the functions it serves and reasonably concluded that this business needed a more pervasive reorganization than is available under c. XI. 17 Affirmed. 18 Mr. Justice HARLAN took no part in the consideration or decision of this case. 19 Mr. Justice FRANKFURTER, whom Mr. Justice BURTON joins, dissenting. 20 This is a proceeding for confirmation of an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq., 11 U.S.C.A. § 701 et seq. The controlling facts are these. Petitioner is a corporation with a simple capital structure, with its common stock, which is traded on the American Stock Exchange, held in the hands of 7,000 stockholders. The proposed arrangement exclusively affects the unsecured creditors, including wage earners whom the Bankruptcy Act accords priority of payment. All these creditors strongly support confirmation of the arrangement. The Securities and Exchange Commission, in its capacity of protector of public investors, opposed the resort to Chapter XI and insisted on the reorganization procedure defined by Chapter X. The stockholders themselves have not opposed the arrangement, barring only a single stockholder representing twotenths of one percent of the common stock of the debtor. There is no suggestion of fraud or other improper behavior on the part of the management of the debtor, which has suffered business misadventure apparently attributable to changes in consumer response to the type of business conducted by the original Schulte tobacco stores. The District Court dismissed the petition under Chapter XI, with leave to the debtor to meet the requirements of reorganization under Chapter X.* 129 F.Supp. 801. A divided Court of Appeals sustained the District Court, 222 F.2d 234, and its judgment is here affirmed. 21 The essence of this Court's decision is that the District Court acted as it did in the exercise of allowable discretion. But if the exercise of discretion by the District Court was guided by inappropriate standards, its exercise of discretion is left without a supporting basis and cannot stand. Such, I believe, is the situation here. 22 The District Court was set on its course by what it deemed the guiding ruling of this Court in Securities and Exchange Commission v. United States Realty & Improvement Co., 310 U.S. 434, 60 S.Ct. 1044, 84 L.Ed. 1293. But the usually careful district judge misconceived the demands of that case upon him by relying on some general observation without the qualifying illumination of the literary and factual context of what he quoted from the opinion in that case. The District Court found guidance in the statement that 'the two chapters (X and XI) were specifically devised to afford different procedures, the one adapted to the reorganization of corporations with complicated debt structures and many stockholders, the other to composition of debts of small individual business and corporations with few stockholders * * *.' 310 U.S. 434, 447, 60 S.Ct. 1044, 1049. 23 In the first place, his quotation breaks into a sentence, which plainly enough indicated that what the district judge quoted was not the ratio decidendi of the Realty case but a loose generality. The district judge left unquoted the qualifying introduction, 'While we do not doubt that in general,' with the further cautionary phrase, 'as will presently appear more in detail * * *.' The later details derive significance from the wholly different set of facts in the Realty case. In that case the arrangement for which shelter was sought under Chapter XI involved changes affecting security holders, and those changes, the Court found, easily might adversely affect the creditors. This precluded a finding that the arrangement was 'for the best interests of the creditors,' which is an essential requisite for confirmation. The Court was very careful to say that the application it gave to Chapter XI in the Realty case 'does not mean that there is no scope for application of that chapter in many cases where the debtor's financial business and corporate structure differ from respondent's.' 310 U.S. at page 454, 60 S.Ct. at page 1052. 24 Again, while what was quoted from the Realty case by the district judge seemed to indicate a sharp line between corporations 'with many stockholders' and corporations 'with few stockholders,' assigning Chapter X to the former and restricting Chapter XI to the latter, the opinion in the Realty case went on to say (what was not quoted below), 'we find in neither chapter any definition or classification which would enable us to say that a corporation is small or large, its security holders few or many, or that its securities are 'held by the public', so as to place the corporation exclusively within the jurisdiction of the court under one chapter rather than the other.' 310 U.S. at page 447, 60 S.Ct. at page 1049. 25 The upshot of the matter is that a critical reading of the extended opinion in the Realty case requires the conclusion that all its general observations must be limited to the particular situation which elicited them. And yet, the controlling consideration in the District Court's dismissal of the Chapter XI proceeding is fairly attributable to the fact that the plan of arrangement concerned 'a corporation with 7,000 holders of two and a quarter million shares of stock listed on the American Stock Exchange and recently selling at under two dollars a share.' 129 F.Supp. 801, 805. Such a basis for judgment disregards the informal, efficient, and economical procedure for financial readjustments of a corporation with its creditors where no change in the capital structure is involved, where no charge of impropriety in corporate management is intimated, where all the creditors urge that the proposed arrangement is for their 'best interests', § 366 of the Chandler Act, 52 Stat. 840, 911, 11 U.S.C.A. § 766, and where a refusal to entertain the arrangement would work real hardship to 174 wage claimants. 26 Not only was the District Court's exercise of discretion against entertainment of the Chapter XI proceeding based on a misconception of the holding in the Realty case. It was also in disregard of the amendment to Chapter XI by § 35 of the Act of July 7, 1952, 66 Stat. 420, 433, 11 U.S.C.A. § 766. By that amendment Congress eliminated the requirement that a plan of arrangement had to be 'fair and equitable'. That requirement was in Chapter XI, as it stood at the time of the Realty decision, and by it Congress had written into Chapter XI the absolute rule for equity reorganizations laid down by this Court in Northern Pacific R. Co. v. Boyd, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931, and Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 60 S.Ct. 1, 84 L.Ed. 110. (H.R.Rep. No. 2320, 82d Cong., 2d Sess. 21.) Even if the 'fair and equitable' rule were still in Chapter XI, there is nothing in the facts of this case to show that the arrangement would not satisfy that requirement, for we have noted that the plan of arrangement here, unlike the situation in Realty, leaves untouched the position of the security holders. Since the Realty Decision to no small degree turned on the enforcement of the 'fair and equitable' rule, it is noteworthy that no consideration was given by the lower courts, and none is given by this Court, to the significance of this amendment by Congress. One would suppose that the elimination, in 1952, of this drastic requirement is the clearest possible indication that Chapter XI should be given a more generous scope than even the narrowest reading of Realty might suggest. Chapter XI should not be shriveled in its availability. 27 I would reverse the Court of Appeals. * At the time of the realty decision, if a proceeding was found to have been improperly brought under Chapter XI, it had to be dismissed and a proceeding started anew under Chapter X. Section 20 of the Act of July 7, 1952, amended the law so as to allow a transfer of a Chapter XI proceeding, if improperly filed thereunder, to Chapter X. 66 Stat. 420, 432, 11 U.S.C.A. § 728, and see H.R.Rep. No. 2320, 82d Cong., 2d Sess. 19.

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350 U.S. 473 76 S.Ct. 527 100 L.Ed. 565 James P. MITCHELL, Secretary of Labor, United States Department of Labor, Petitioner,v.Joseph T. BUDD, Jr., and Florence W. Budd, Co-Partners, Doing Business as J. T. Budd, Jr. and Company; King Edward Tobacco Company of Florida, and May Tobacco Company. No. 278. Argued Feb. 29 and March 1, 1956. Decided March 26, 1956. Rehearing Denied May 14, 1956. See 351 U.S. 934, 76 S.Ct. 786. Bessie Margolin, Washington, D.C., for petitioner. Mr. Milton C. Denbo, Washington, D.C., for respondents Budd, and King Edward Tobacco Co. Mr. Mark F. Hughes, New York City, for respondent May Tobacco Co. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 These are actions brought by the Secretary of Labor under § 17 of the Fair Labor Standards Act, 52 Stat. 1060, 63 Stat. 910, 29 U.S.C. § 201 et seq., 29 U.S.C.A. § 201 et seq., to enjoin respondents from violating the minimum wage, § 6, and record-keeping provisions, § 11, of the Act. The employees concerned work in tobacco-bulking plants operated by respondents in Quincy, Florida, which has a population in excess of 2,500. Respondents claim these employees are exempt from the Act. The District Court ruled against the respondents. 114 F.Supp. 865. The Court of Appeals reversed. 221 F.2d 406. We granted certiorari 350 U.S. 859, 76 S.Ct. 103, because of the importance of the problems presented and of the apparent conflicts between the decision below and Tobin v. Traders Compress Co., 10 Cir., 199 F.2d 8, and Maneja v. Waialua Agricultural Co., 349 U.S. 254, 75 S.Ct. 719, 99 L.Ed. 1040. 2 The processing operations involve U.S. Type 62 Sumatra tobacco, a leaf tobacco used exclusively for cigar wrappers. This type of tobacco requires special cultivation. It is grown in fields that are completely enclosed and covered with cheesecloth shade. The leaves of the plant are picked in stages, as each matures. The leaves are taken immediately to a tobacco barn, located on the farm, where they are strung on sticks and dried by heat. Before the drying process is completed, the leaves are allowed to absorb moisture. Then they are dried again. There is some fermentation at this stage. But the treatment in the tobacco barns is essentially a drying operation during which the moisture content is reduced to between 10% and 25%. 3 At the end of the drying operation, the leaves are packed in boxes and taken from the farm to a bulking plant for further processing. At the bulking plant, the leaves are placed in piles, known as 'bulks,' aggregating from 3,500 to 4,500 pounds of tobacco. This is the 'sweating' or fermentation process, which requires carefully controlled regulation of temperature and humidity. Proper heat control includes, among other things, breaking up the bulk, redistributing the tobacco, and adding water. Proper fermentation or aging requires the bulk to be reconstructed several times. The bulking process lasts from four to eight months, after which the tobacco is baled. The bulking process requires a large amount of equipment, including a steam-heated plant, platforms, thermometers, bulk covers, baling boxes and presses, baling mats and packing, sorting and grading tables. The bulking process substantially changes the physical properties and chemical content of the tobacco, improving the color, increasing combustibility, and eliminating the rawness and harshness of the freshly cured leaf. 4 The overwhelming majority of farmers in the region in litigation in this case have their tobacco processed by others. In that region there are 300 farmers who grow this type of tobacco. Of these, only 9 maintain and operate bulking plants; and only 5 maintain and operate bulking plants processing tobacco grown only by themselves. It appears that bulking cannot be economically done by the ordinary small farmer growing less than 100 acres. Of the 300 farmers in the present group, 80% grow less than 25 acres per year, while the majority grow from 1 1/2 to 10 acres a year. 5 Respondent Budd grows no tobacco itself and confines its operations to processing the tobacco grown on 263 acres by 52 farmers. Budd employs about 108 workers for bulking, sorting, grading, and baling tobacco. 6 Respondent King Edward processes in the bulking plant involved in this litigation only tobacco produced on farms operated by it. (It has two other bulking plants that process tobacco purchased from other growers.) The bulking plant involved here is about 13 miles from King Edward's farms. A majority of the 120 employees in the bulking plant also work on King Edward's farms. 7 May has its own bulking plant and processes there only the tobacco which it grows on its own farms. This plant is about 10 miles from the farms. The employees, who work the farms, work in the bulking plant, being transported back and forth by May. Seventy are employed in the bulking plant. 8 Area of Production.—Section 13(a) of the Act creates several exemptions from the minimum wage and maximum hours provisions of the Act. One of those exemptions contained in § 13(a)(10) includes: 9 'any individual employed within the area of production (as defined by the Administrator), engaged in handling, packing, storing, ginning, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market, or in making cheese or butter or other dairy products'. 10 The Administrator's definition of 'area of production' provides that a plant is within the 'area of production' if it is located (1) 'in the open country or in a rural community', which is defined as not including 'any city, town or urban place of 2,500 or greater population', and (2) within a specified mileage distance from the source of 95% of its commodities.1 11 The Court of Appeals, following its earlier decisions in Jenkins v. Durkin, 5 Cir., 208 F.2d 941, and Lovvorn v. Miller, 5 Cir., 215 F.2d 601, held that the regulation was invalid. It concluded that once 'geographic lines of the area of production have been established, the act makes the exemption effective within that area', and that any qualification by reason of size of the town where the establishment is located is invalid. 215 F.2d at page 603. For that conclusion the Court of Appeals found comfort in Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 64 S.Ct. 1215, 88 L.Ed. 1488. 12 Holly Hill involved one of the alternative definitions of 'area of production'. That alternative defined 'area of production' in geographic terms and then added another standard whether the employee was in an establishment having no more than seven employees. We held that '* * * Congress did not leave it to the Administrator to decide whether within geographic bounds defined by him the Act further permits discrimination between establishment and establishment based upon the number of employees.' Id., 322 U.S. 616, 64 S.Ct. 1220. We said that the phrase "area of production" had 'plain geographic implications' with which the size of a plant within the area was not consistent. Id., 322 U.S. 618, 64 S.Ct. 1221. That definition, therefore, was struck down. But its alternative, substantially the one that is involved here, was not passed upon. In fact, we reserved decision in Holly Hill as to whether the population criterion, now presented for decision, was valid. Id., 322 U.S. 610, 64 S.Ct. 1217. 13 We think the present regulation is a valid definition of 'area of production'. We think it valid by the standard we used in Holly Hill. In that case we said that '* * * 'area' calls for delimitation of territory in relation to the complicated economic factors that operate between agricultural labor conditions and the labor market of enterprises concerned with agricultural commodities and more or less near their production.' Id., 322 U.S. 613—614, 64 S.Ct. 1219. The aim of Congress was to exempt employees 'employed in agriculture', § 13(a)(6), and those engaged in agricultural enterprises in the 'area of production', § 13(a)(10). That meant drawing a line between agricultural enterprises operating under ruralagricultural conditions and those subject to urban-industrial conditions. An individual working in an agricultural packing plant on the edge of Los Angeles is in a strikingly different environment from one doing the same work in a small town in the heart of Kansas. Nearness to a large city has relation to the problem of the Administrator in making his definition. For the proximity of the plant to a metropolitan center, like the size of the town where the plant is located, may make the decisive difference between an agricultural and an urban environment.2 Likewise, nearness of the plant to its supplies cannot be considered an irrelevancy. For 'area' is understandable in terms of nearness and farness. Distance is an important factor in any formula which seeks to treat more or less as a unity labor on farms and labor in agricultural enterprises in the 'area of production'.3 14 No definition of 'area of production' could produce complete equality, for the variables are too numerous. The Administrator fulfills his role when he makes a reasoned definition. See Gray v. Powell, 314 U.S. 402, 411, 62 S.Ct. 326, 332, 86 L.Ed. 301. On no phase of this problem can we say that the Administrator proceeded capriciously or by the use of inadmissible standards. Experts might disagree over the desirability of one formula rather than another. It is enough for us that the expert stayed within the allowable limits. We think he did here and that the definition of 'area of production' under § 13(a)(10) is a valid one. 15 Agriculture.—The Court of Appeals held that the employees in the bulking plants of King Edward and May were exempt under § 13(a)(6) which covers 'any employee employed in agriculture'. It relied on the broad definition of 'agriculture' contained in § 3(f) of the Act which provides, in relevant part, that the term 'includes farming in all its branches and among other things includes * * * any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to * * * market or to carriers for transportation to market.' The work in the bulking plants, the court ruled, was 'preparation for market' within the meaning of § 3(f). 16 The exemption of § 13(a)(6) read with § 3(f) covers large operators as well as small ones, as we recently said in Maneja v. Waialua Agricultural Co., supra, 349 U.S. 260, 75 S.Ct. 723, 99 L.Ed. 1040. It also includes 'extraordinary methods' of agriculture as well as the more conventional ones. Id., 349 U.S. 261, 75 S.Ct. 723. The question in the Waialua case was whether sugar milling was included in the agriculture exemption of § 13(a)(6). We said that it was necessary to look to all the facts surrounding the process to determine whether that process was incident to farming. Id., 349 U.S. 264—265, 75 S.Ct. 725. We held that sugar milling was not, even when done by the grower. We think like considerations indicate that in this case the agriculture operation does not extend through the bulking plants but ends, as the District Court ruled, with the delivery of the tobacco at the receiving platform of the bulking plant. That is the 'delivery * * * to market' within the meaning of § 3(f) of the Act. 17 It is true that King Edward and May are farmers and process in their bulking plants only the tobacco they raise. It is also true that many employees who work their farms also work in their bulking plants. These are heavily stressed as indicia that bring the bulking plants into the agriculture exemption. But there are two other factors which in our view tip the scales the other way. 18 First, tobacco farmers do not ordinarily perform the bulking operation. As already mentioned, of the 300 farmers who grow this type of tobacco in this area, only 9 maintain and operate their own bulking plants. The remaining farmers have their crops processed by others. The bulking operation is for the most part divorced from the cultivation of tobacco and from the drying operation in the tobacco barns on the farm. The bulking process for the most part is a separate processing stage. 19 Second, the bulking operation is a process which changes the natural state of the freshly cured tobacco as significantly as milling changes sugar cane. As indicated above, the bulking process changes and improves the leaf in many ways and turns it into an industrial product. What we said in Waialua concerning sugar milling is apt here: a process that results in such important changes is 'more akin to manufacturing than to agriculture.' 349 U.S. at page 265, 75 S.Ct. at page 726. 20 The judgments of the Court of Appeals are reversed and those of the District Court affirmed. 21 It is so ordered. 22 Appendix. 23 The Administrator defined 'area of production', as used in § 13(a)(10) of the Fair Labor Standards Act, as follows (29 CFR, c. V, § 536.2): 24 (a) An individual shall be regarded as employed in the 'area of production' within the meaning of section 13(a)(10) of the Fair Labor Standards Act in handling, packing, storing, ginning, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market, or in making cheese or butter or other dairy products: 25 (1) If the establishment where he is employed is located in the open country or in a rural community and 95 percent of the commodities on which such operations are performed by the establishment come from normal rural sources of supply located not more than the following air line distances from the establishment: 26 (i) With respect to the ginning of cotton—10 miles; 27 (ii) With respect to operations on fresh fruits and vegetables—15 miles; 28 (iii) With respect to the storing of cotton and any operations on commodities not otherwise specified in this subsection—20 miles; 29 (iv) With respect to the compressing and compress-warehousing of cotton, and operations on tobacco, grain, soybeans, poultry or eggs—50 miles. 30 (b) For the purposes of this section: 31 (1) 'open country or rural community' shall not include any city, town or urban place of 2,500 or greater population or any area within: 32 (i) One air-line mile of any city, town, or urban place with a population of 2,500 up to but not including 50,000 or 33 (ii) Three air-line miles of any city, town or urban place with a population of 50,000 up to but not including 500,000, or 34 (iii) Five air-line miles of any city with a population of 500,000 or greater according to the latest available United States Census. 35 (2) The commodities shall be considered to come from 'normal rural sources of supply' within the specified distances from the establishment if they are received 36 (i) from farms within such specified distances, or 37 (ii) from farm assemblers or other establishments through which the commodity customarily moves, which are within such specified distances and located in the open country or in a rural community, or 38 (iii) from farm assemblers or other establishments not located in the open country or in a rural community provided it can be demonstrated that the commodities were produced on farms within such specified distances. 39 (3) The period for determining whether 95 percent of the commodities are received from normal rural sources of supply shall be the last preceding calendar month in which operations were carrier on for two workweeks or more, except that until such time as an establishment has operated for such a calendar month the period shall be the time during which it has been in operation. 40 (4) The percentage of commodities received from normal rural sources of supply within the specified distances shall be determined by weight, volume or other physical unit of measure, except that dollar value shall be used if different commodities received in the establishment are customarily measured in physical units that are not comparable. 1 The entire regulation is set forth in the Appendix to this opinion, 76 S.Ct. 532. 2 On this phase of the problem the Administrator said in his findings dated December 18, 1946: 'Although it is clear that any line attempting to distinguish between 'urbanindustrial' and 'rural-agricultural' communities on the basis of population can at best be only an approximation, it is equally clear that none of the proposals advanced at the hearing would accomplish the objectives of such a test with as much accuracy as the 2,500 population test. As a class, places of 2,500 population or more are predominantly industrial, while places with populations of less than 2,500 are predominantly agricultural. A population limit of 2,500, moreover, has for over 35 years been the official dividing line between 'rural' and 'urban' employed by the Bureau of the Census in its studies. This dividing line has also been accepted and used in studies made by the Bureau of Agricultural Economics, the Federal Emergency Relief Administration, the Works Progress Administration and other government agencies. It has furnished the definition of 'rural' communities which has been the basis of studies of rural and urban communities by many sociologists. It has been incorporated into statute by the Congress of the United States in special legislation for rural communities.* To a very great extent the handling and processing of agricultural and horticultural commodities is carried on in the open country or in towns of less than 2,500. For example, only about 10% of grain elevators are located in towns of 2,500 or more. Only about 11% of cotton gins are located in such populated places. About two-thirds of all fresh fruit and vegetable canning and packing, cheese manufacturing and poultry and egg assembling are carried on in the open country on in towns of 2,500 or less. 'On the basis of all the evidence, it is my conclusion that a population test of 2,500, while not drawing a line between 'urban-industrial' and 'rural-agricultural' conditions with a fine precision, will come as close to accomplishing this objective as it is possible to come in a general rule applicable to many situations.' * The references were to 39 Stat. 356, 40 Stat. 1200. 3 On this phase of the problem the Administrator said: 'The selection of appropriate distances for the different commodities and groups of commodities has been no easy task, and was accomplished only after carefully weighing and synthesizing a large variety of complicated economic factors. Among the many factors taken into consideration were the following: the kind of crop; the distances from which the establishments in each industry receive the agricultural or horticultural commodities upon which they perform the operations specified in the pertinent sections of the Act; the geography and topography of the various sections of the country in which the different commodities are normally produced; the location of the plants within these areas; the concentration of cultivation of the different commodities in various sections of the country; the pattern of concentration of agricultural production with respect to the location of the establishment; differences in practice as between single crop areas and diversified farming areas; the perishability of the commodities received; the extent to which the plants deal with a single commodity rather than a variety of commodities; the nature of the operations performed on the commodities received, including the degree of industrialization of the various operations; the number of hands or operations through which the particular commodity has moved since leaving the farm, including the possibility of passing increased labor costs back to the farmer; the marketing practices of the particular industries; and the wage rates paid, and overtime practices in the various communities concerned with particular commodities.'

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350 U.S. 497 76 S.Ct. 477 100 L.Ed. 640 COMMONWEALTH OF PENNSYLVANIA, Petitioner,v.Steve NELSON. No. 10. Argued Nov. 15, 16, 1955. Decided April 2, 1956. Rehearing Denied May 14, 1956. See 351 U.S. 934, 76 S.Ct. 785. Messrs. Frank F. Truscott, Philadelphia, Pa., Harry F. Stambaugh, Pittsburgh, Pa., for petitioner. Herbert S. Thatcher, Washington, D.C., for respondent. Louis C. Wyman, Manchester, N.H., for the State of New Hampshire, amicus curiae by special leave of Court. Charles F. Barber, Washington, D.C., for the U.S. amicus curiae by special leave of Court. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 The respondent Steve Nelson, an acknowledged member of the Communist Party, was convicted in the Court of Quarter Sessions of Allegheny County, Pennsylvania, of a violation of the Pennsylvania Sedition Act1 and sentenced to imprisonment for twenty years and to a fine of $10,000 and to costs of prosecution in the sum of $13,000. The Superior Court affirmed the conviction. 172 Pa.Super. 125, 92 A.2d 431. The Supreme Court of Pennsylvania, recognizing but not reaching many alleged serious trial errors and conduct of the trial court infringing upon respondent's right to due process of law,2 decided the case on the narrow issue of supersession of the state law by the Federal Smith Act.3 In its opinion, the court stated: 2 'And, while the Pennsylvania statute proscribes sedition against either the Government of the United States or the Government of Pennsylvania, it is only alleged sedition against the United States with which the instant case is concerned. Out of all the voluminous testimony, we have not found, nor has anyone pointed to, a single word indicating a seditious act or even utterance directed against the Government of Pennsylvania.'4 3 The precise holding of the court, and all that is before us for review, is that the Smith Act of 1940,5 as amended in 1948,6 which prohibits the knowing advocacy of the overthrow of the Government of the United States by force and violence, supersedes the enforceability of the Pennsylvania Sedition Act which proscribes the same conduct. 4 Many State Attorneys General and the Solicitor General of the United States appeared as amici curiae for petitioner, and several briefs were filed on behalf of the respondent. Because of the important question of federal-state relationship involved, we granted certiorari. 348 U.S. 814, 75 S.Ct. 58, 99 L.Ed. 642. 5 It should be said at the outset that the decision in this case does not affect the right of States to enforce their sedition laws at times when the Federal Government has not occupied the field and is not protecting the entire country from seditious condut. The distinction between the two situations was clearly recognized by the court below.7 Nor does it limit the jurisdiction of the States where the Constitution and Congress have specifically given them concurrent jurisdiction, as was done under the Eighteenth Amendment and the Volstead Act, 27 U.S.C.A., United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314. Neither does it limit the right of the State to protect itself at any time against sabotage or attempted violence of all kinds.8 Nor does it prevent the State from prosecuting where the same act constitutes both a federal offense and a state offense under the police power, as was done in Fox v. State of Ohio, 5 How. 410, 46 U.S. 410, 12 L.Ed. 213, and Gilbert v. State of Minnesota, 254 U.S. 325, 41 S.Ct. 125, 65 L.Ed. 287, relied upon by petitioner as authority herein. In neither of those cases did the state statute impinge on federal jurisdiction. In the Fox case, the federal offense was counterfeiting. The state offense was defrauding the person to whom the spurious money was passed. In the Gilbert case this Court, in upholding the enforcement of a state statute, proscribing conduct which would "interfere with or discourage the enlistment of men in the military or naval forces of the United States or of the state of Minnesota", treated it not as an act relating to 'the raising of armies for the national defense, nor to rules and regulations for the government of those under arms (a constitutionally exclusive federal power). It (was) simply a local police measure * * *.'9 6 Where, as in the instant case, Congress has not stated specifically whether a federal statute has occupied a field in which the States are otherwise free to legislate,10 different criteria have furnished touchstones for decision. Thus, 7 '(t)his Court, in considering the validity of state laws in the light of * * * federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula.' Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581. 8 And see Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 231, 67 S.Ct. 1146, 1152—1153, 91 L.Ed. 1447. In this case, we think that each of several tests of supersession is met. 9 First, '(t)he scheme of federal regulation (is) so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.' Rice v. Santa Fe Elevator Corp., 331 U.S. at page 230, 67 S.Ct. at page 1152. The Congress determined in 1940 that it was necessary for it to re-enter the field of antisubversive legislation, which had been abandoned by it in 1921. In that year, it enacted the Smith Act which proscribes advocacy of the overthrow of any government—federal, state or local—by force and violence and organization of and knowing membership in a group which so advocates.11 Conspiracy to commit any of these acts is punishable under the general criminal conspiracy provisions in 18 U.S.C. § 371, 18 U.S.C.A. § 371. The Internal Security Act of 1950 is aimed more directly at Communist organizations.12 It distinguishes between 'Communistaction organizations' and 'Communist-front organizations,'13 requiring such organizations to register and to file annual reports with the Attorney General giving complete details as to their officers and funds.14 Members of Communist-action organizations who have not been registered by their organization must register as individuals.15 Failure to register in accordance with the requirements of Sections 786—787 is punishable by a fine of not more than $10,000 for an offending organization and by a fine of not more than $10,000 or imprisonment for not more than five years or both for an individual offender—each day of failure to register constituting a separate offense.16 And the Act imposes certain sanctions upon both 'action' and 'front' organizations and their members.17 The Communist Control Act of 1954 declares 'that the Communist Party of the United States, although purportedly a political party, is in fact an instrumentality of a conspiracy to overthrow the Government of the United States' and that 'its role as the agency of a hostile foreign power renders its existence a clear present and continuing danger to the security of the United States.'18 It also contains a legislative finding that the Communist Party is a "Communist-action' organization' within the meaning of the Internal Security Act of 1950 and provides that 'knowing' members of the Communist Party are 'subject to all the provisions and penalties' of that Act.19 It furthermore sets up a new classification of 'Communist-infiltrated organizations'20 and provides for the imposition of sanctions against them. 10 We examine these Acts only to determine the congressional plan. Looking to all of them in the aggregate, the conclusion is inescapable that Congress has intended to occupy the field of sedition. Taken as a whole, they evince a congressional plan which makes it reasonable to determine that no room has been left for the States to supplement it. Therefore, a state sedition statute is superseded regardless of whether it purports to supplement the federal law. As was said by Mr. Justice Holmes in Charleston & Western Carolina R. Co. v. Varnville Furniture Co., 237 U.S. 597, 604, 35 S.Ct. 715, 717, 59 L.Ed. 1137: 11 'When Congress has taken the particular subject-matter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.' 12 Second, the federal statutes 'touch a field in which the federal interest is so dominant that the federal system (must) be assumed to preclude enforcement of state laws on the same subject.' Rice v. Santa Fe Elevator Corp., 331 U.S. at page 230, 67 S.Ct. at page 1152, citing Hines v. Davidowitz, supra.21 Congress has devised an all-embracing program for resistance to the various forms of totalitarian aggression. Our external defenses have been strengthened, and a plan to protect against internal subversion has been made by it. It has appropriated vast sums, not only for our own protection, but also to strengthen freedom throughout the world. It has charged the Federal Bureau of Investigation and the Central Intelligence Agency with responsibility for intelligence concerning Communist seditious activities against our Government, and has denominated such activities as part of a world conspiracy. It accordingly proscribed sedition against all government in the nation—national, state and local. Congress declared that these steps were taken 'to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guarantee to each State a republican form of government * * *.'22 Congress having thus treated seditious conduct as a matter of vital national concern, it is in no sense a local enforcement problem. As was said in the court below: 13 'Sedition against the United States is not a local offense. It is a crime against the Nation. As such, it should be prosecuted and punished in the Federal courts where this defendant has in fact been prosecuted and convicted and is now under sentence.23 It is not only important but vital that such prosecutions should be exclusively within the control of the Federal Government * * *.'24 14 Third, enforcement of state sedition acts presents a serious danger of conflict with the administration of the federal program. Since 1939, in order to avoid a hampering of uniform enforcement of its program by sporadic local prosecutions, the Federal Government has urged local authorities not to intervene in such matters, but to turn over to the federal authorities immediately and unevaluated all information concerning subversive activities. The President made such a request on September 6, 1939, when he placed the Federal Bureau of Investigation in charge of investigation in this field: 15 'The Attorney General has been requested by me to instruct the Federal Bureau of Investigation of the Department of Justice to take charge of investigative work in matters relating to espionage, sabotage, and violations of the neutrality regulations. 16 'This task must be conducted in a comprehensive and effective manner on a national basis, and all information must be carefully sifted out and correlated in order to avoid confusion and irresponsibility. 17 'To this end I request all police officers, sheriffs, and all other law enforcement officers in the United States promptly to turn over to the nearest representative of the Federal Bureau of Investigation any information obtained by them relating to espionage, counterespionage, sabotage, subversive activities and violations of the neutrality laws.'25 18 And in addressing the Federal-State Conference on Law Enforcement Problems of National Defense, held on August 5 and 6, 1940, only a few weeks after the passage of the Smith Act, the Director of the Federal Bureau of Investigation said: 19 'The fact must not be overlooked that meeting the spy, the saboteur and the subverter is a problem that must be handled on a nation-wide basis. An isolated incident in the middle west may be of little significance, but when fitted into a national pattern of similar incidents, it may lead to an important revelation of subversive activity. It is for this reason that the President requested all of our citizens and law enforcing agencies to report directly to the Federal Bureau of Investigation any complaints or information dealing with espionage, sabotage or subversive activities. In such matters, time is of the essence. It is unfortunate that in a few States efforts have been made by individuals not fully acquainted with the far-flung ramifications of this problem to interject superstructures of agencies between local law enforcement and the FBI to sift what might be vital information, thus delaying its immediate reference to the FBI. This cannot be, if our internal security is to be best served. This is no time for red tape or amateur handling of such vital matters. There must be a direct and free flow of contact between the local law enforcement agencies and the FBI. The job of meeting the spy or saboteur is one for experienced men of law enforcement.'26 20 Moreover, the Pennsylvania Statute presents a peculiar danger of interference with the federal program. For, as the court below observed: 21 'Unlike the Smith Act, which can be administered only by federal officers acting in their official capacities, indictment for sedition under the Pennsylvania statute can be initiated upon an information made by a private individual. The opportunity thus present for the indulgence of personal spite and hatred or for furthering some selfish advantage or ambition need only be mentioned to be appreciated. Defense of the Nation by law, no less than by arms, should be a public and not a private undertaking. It is important that punitive sanctions for sedition against the United States be such as have been promulgated by the central governmental authority and administered under the supervision and review of that authority's judiciary. If that be done, sedition will be detected and punished, no less, wherever it may be found, and the right of the individual to speak freely and without fear, even in criticism of the government, will at the same time be protected.'27 22 In his brief, the Solicitor General states that forty-two States plus Alaska and Hawaii have statutes which in some form prohibit advocacy of the violent overthrow of established government. These statutes are entitled anti-sedition statutes, criminal anarchy laws, criminal syndicalist laws, etc. Although all of them are primarily directed against the overthrow of the United States Government, they are in no sense uniform. And our attention has not been called to any case where the prosecution has been successfully directed against an attempt to destroy state or local government. Some of these Acts are studiously drawn and purport to protect fundamental rights by appropriate definitions, standards of proof and orderly procedures in keeping with the avowed congressional purpose 'to protect freedom from those who would destroy it, without infringing upon the freedom of all our people.' Others are vague and are almost wholly without such safeguards. Some even purport to punish mere membership in subversive organizations which the federal statutes do not punish where federal registration requirements have been fulfilled.28 23 When we were confronted with a like situation in the field of labor-management relations, Mr. Justice Jackson wrote: 24 'A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.'29 25 Should the States be permitted to exercise a concurrent jurisdiction in this area, federal enforcement would encounter not only the difficulties mentioned by Mr. Justice Jackson, but the added conflict engendered by different criteria of substantive offenses. 26 Since we find that Congress has occupied the field to the exclusion of parallel state legislation, that the dominant interest of the Federal Government precludes state intervention, and that administration of state Acts would conflict with the operation of the federal plan, we are convinced that the decision of the Supreme Court of Pennsylvania is unassailable. 27 We are not unmindful of the risk of compounding punishments which would be created by finding concurrent state power. In our view of the case, we do not reach the question whether double or multiple punishment for the same overt acts directed against the United States has constitutional sanction.30 without compelling indication to the contrary, we will not assume that Congress intended to permit the possibility of double punishment. Cf. Houston v. Moore, 5 Wheat. 1, 31, 75, 5 L.Ed. 19; Jerome v. United States, 318 U.S. 101, 105, 63 S.Ct. 483, 486, 87 L.Ed. 640. 28 The judgment of the Supreme Court of Pennsylvania is affirmed. 29 Affirmed. 30 Appendix. 31 Pennsylvania Penal Code § 207, 18 P.S. § 4207. 32 'The word 'sedition,' as used in this section, shall mean: 33 'Any writing, publication, printing, cut, cartoon, utterance, or conduct, either individually or in connection or combination with any other person, the intent of which is: 34 '(a) To make or cause to be made any outbreak or demonstration of violence against this State or against the United States. 35 '(b) To encourage any person to take any measures or engage in any conduct with a view of overthrowing or destroying or attempting to overthrow or destroy, by any force or show or threat of force, the Government of this State or of the United States. 36 '(c) To incite or encourage any person to commit any overt act with a view to bringing the Government of this State or of the United States into hatred or contempt. 37 '(d) To incite any person or persons to do or attempt to do personal injury or harm to any officer of this State or of the United States, or to damage or destroy any public property or the property of any public official because of his official position. 38 'The word 'sedition' shall also include: 39 '(e) The actual damage to, or destruction of, any public property or the property of any public official, perpetrated because the owner or occupant is in official position. 40 '(f) Any writing, publication, printing, cut, cartoon, or utterance which advocates or teaches the duty, necessity, or propriety of engaging in crime, violence, or any form of terrorism, as a means of accomplishing political reform or change in government. 41 '(g) The sale, gift or distribution of any prints, publications, books, papers, documents, or written matter in any form, which advocates, furthers or teaches sedition as hereinbefore defined. 42 '(h) Organizing or helping to organize or becoming a member of any assembly, society, or group, where any of the policies or purposes thereof are seditious as hereinbefore defined. 43 'Sedition shall be a felony. Whoever is guilty of sedition shall, upon conviction thereof, be sentenced to pay a fine not exceeding ten thousand dollars ($10,000), or to undergo imprisonment not exceeding twenty (20) years, or both.' 18 U.S.C. § 2385, 18 U.S.C.A. § 2385. 44 'Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or 45 'Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or 46 'Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof— 47 'Shall be fined not more than $10,000 or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.' 48 Mr. Justice REED, with whom Mr. Justice BURTON and Mr. Justice MINTON join, dissenting. 49 The problems of governmental power may be approached in this case free from the varied viewpoints that focus on the problems of national security. This is a jurisdictional problem of general importance because it involves an asserted limitation on the police power of the States when it is applied to a crime that is punishable also by the Federal Government. As this is a recurring problem, it is appropriate to explain our dissent. 50 Congress has not, in any of its statutes relating to sedition, specifically barred the exercise of state power to punish the same Acts under state law. And, we read the majority opinion to assume for this case that, absent federal legislation, there is no constitutional bar to punishment of sedition against the United States by both a State and the Nation.1 The majority limits to the federal courts the power to try charges of sedition against the Federal Government. 51 First, the Court relies upon the pervasiveness of the antisubversive legislation embodied in the Smith Act of 1940, 18 U.S.C. § 2385, 18 U.S.C.A. § 2385, the Internal Security Act of 1950, 64 Stat. 987, and the Communist Control Act of 1954, 68 Stat. 775. It asserts that these Acts in the aggregate mean that Congress has occupied the 'field of sedition' to the exclusion of the States. The 'occupation of the field' argument has been developed by this Court for the Commerce Clause and legislation thereunder to prevent partitioning of this country by locally erected trade barriers. In those cases this Court has ruled that state legislation is superseded when it conflicts with the comprehensive regulatory scheme and purpose of a federal plan. Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 786, 62 S.Ct. 491, 86 L.Ed. 754. The two cases cited by the Court to support its argument that the broad treatment of any subject within the federal power bars supplemental action by States are of this nature. In our view neither case is apposite to the Smith Act. The Varnville case dealt with general regulation of interstate commerce making the originating carrier liable to the holder of its interstate bill of lading for damage caused by a common carrier of property. This Court held that the section through the federal commerce power superseded a state right of action against a nonoriginating carrier for damages and a penalty for injury occurring on another line. The pertinent section, 34 Stat. 595, § 7, expressed a controlling federal policy for this commerce. The Rice case dealt with regulations of warehouses. We barred state action in that area because the Act declared that the authority it conferred 'shall be exclusive with respect to all persons securing a license' under the Act. 331 U.S. at pages 224 and 233, 67 S.Ct. at pages 1148, 1149, 1153, 91 L.Ed. 1447. 52 But the federal sedition laws are distinct criminal statutes that punish willful advocacy of the use of force against 'the government of the United States or the government of any State.' These criminal laws proscribe certain local activity without creating any statutory or administrative regulation. There is, consequently, no question as to whether some general congressional regulatory scheme might be upset by a coinciding state plan.2 In these circumstances the conflict should be clear and direct before this Court reads a congressional intent to void state legislation into the federal sedition acts.3 Chief Justice Marshall wrote: 53 'To interfere with the penal laws of a State, where they * * * have for their sole object the internal government of the country, is a very serious measure, which Congress cannot be supposed to adopt lightly, or inconsiderately. * * * It would be taken deliberately, and the intention would be clearly and unequivocally expressed.' Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 443, 5 L.Ed. 257. 54 Moreover, it is quite apparent that since 1940 Congress has been keenly aware of the magnitude of existing state legislation proscribing sedition. It may be validly assumed that in these circumstances this Court should not void state legislation without a clear mandate from Congress.4 55 We cannot agree that the federal criminal sanctions against sedition directed at the United States are of such a pervasive character as to indicate an intention to void state action. 56 Secondly, the Court states that the federal sedition statutes touch a field 'in which the federal interest is so dominant' they must preclude state laws on the same subject. This concept is suggested in a comment on Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581, in the Rice case, 331 U.S. at page 230, 67 S.Ct. at page 1152. The Court in Davidowitz ruled that federal statutes compelling alien registration preclude enforcement of state statutes requiring alien registration. We read Davidowitz to teach nothing more than that when the Congress provided a single nation-wide integrated system of regulation so complete as that for aliens' registration (with fingerprinting, a scheduling of activities, and continuous information as to their residence), the Act bore so directly on our foreign relations as to make it evident that Congress intended only one uniform national alien registration system.5 57 We look upon the Smith Act as a provision for controlling incitements to overthrow by force and violence the Nation, or any State, or any political subdivision of either.6 Such an exercise of federal police power carries, we think, no such dominancy over similar state powers as might be attributed to continuing federal regulations concerning foreign affairs or coinage, for example.7 In the responsibility of national and local governments to protect themselves against sedition, there is no 'dominant interest.' We are citizens of the United States and of the State wherein we reside and are dependent upon the strength of both to preserve our rights and liberties. Both may enact criminal statutes for mutual protection unless Congress has otherwise provided. It was so held in Gilbert v. State of Minnesota, 254 U.S. 325, 41 S.Ct. 125, 65 L.Ed. 287. In Gilbert the federal interest in raising armies did not keep this Court from permitting Minnesota to punish persons who interfered with enlistments (id., 254 U.S. at page 326, 41 S.Ct. 125), even though a comprehensive federal criminal law proscribed identical activity. 40 Stat. 553. We do not understand that case as does the majority. In our view this Court treated the Minnesota statute only alternatively as a police measure, 254 U.S. at page 331, 41 S.Ct. at page 127. Minnesota made it unlawful to advocate 'that men should not enlist in the military or naval forces of the United States.' It was contended, 254 U.S. at pages 327—328, 41 S.Ct. at page 126, that the power to punish such advocacy was "conferred upon Congress and withheld from the States." This Court ruled against the contention, saying: 58 'An army, of course, can only be raised and directed by Congress; in neither has the state power, but it has power to regulate the conduct of its citizens and to restrain the exertion of baleful influences against the promptings of patriotic duty to the detriment of the welfare of the nation and state. To do so is not to usurp a national power; it is only to render a service to its people, * * *.' Id., 254 U.S. at pages 330—331, 41 S.Ct. at page 127.8 59 Thirdly, the Court finds ground for abrogating Pennsylvania's antisedition statute because, in the Court's view, the State's administration of the Act may hamper the enforcement of the federal law. Quotations are inserted from statements of President Roosevelt and Mr. Hoover, the Director of the Federal Bureau of Investigation, to support the Court's position. But a reading of the quotations leads us to conclude that their purpose was to gain prompt knowledge of evidence of subversive activities so that the federal agency could be fully advised. We find no suggestion from any official source that state officials should be less alert to ferret out or punish subversion. The Court's attitude as to interference seems to us quite contrary to that of the Legislative and Executive Departments. Congress was advised of the existing state sedition legislation when the Smith Act was enacted and has been kept current with its spread.9 No declaration of exclusiveness followed. In this every case the Executive appears by brief of the Department of Justice, amicus curiae. The brief summarizes this point: 60 'The administration of the various state laws has not, in the course of the fifteen years that the federal and state sedition laws have existed side by side, in fact interfered with, embarrassed, or impeded the enforcement of the Smith Act. The significance of this absence of conflict in administration or enforcement of the federal and state sedition laws will be appreciated when it is realized that this period has included the stress of wartime security requirements and the federal investigation and prosecution under the Smith Act of the principal national and regional Communist leaders.'10 Id., at 30—31. 61 Mere fear by courts of possible difficulties does not seem to us in these circumstances a valid reason for ousting a State from exercise of its police power. Those are matters for legislative determination. 62 Finally, and this one point seems in and of itself decisive, there is an independent reason for reversing the Pennsylvania Supreme Court. The Smith Act appears in Title 18 of the United States Code, 18 U.S.C.A., which Title codifies the federal criminal laws. Section 3231 of that Title provides: 63 '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.' 64 That declaration springs from the federal character of our Nation. It recognizes the fact that maintenance of order and fairness rests primarily with the States. The section was first enacted in 1825 and has appeared successively in the federal criminal laws since that time.11 This Court has interpreted the section to mean that States may provide concurrent legislation in the absence of explicit congressional intent to the contrary. Sexton v. People of State of California, 189 U.S. 319, 324—325, 23 S.Ct. 543, 545, 47 L.Ed. 833. The majority's position in this case cannot be reconciled with that clear authorization of Congress. 65 The law stands against any advocacy of violence to change established governments. Freedom of speech allows full play to the processes of reason. The state and national legislative bodies have legislated within constitutional limits so as to allow the widest participation by the law enforcement officers of the respective governments. The individual States were not told that they are powerless to punish local acts of sedition, nominally directed against the United States. Courts should not interfere. We would reverse the judgment of the Supreme Court of Pennsylvania. 1 Pa.Penal Code § 207, 18 Purdon Pa.Stat.Ann. § 4207. The text of the statute is set out in an Appendix to this opinion, 350 U.S. 510, 76 S.Ct. 484. 2 The Supreme Court also did not have to reach the question of the constitutionality of subdivision (c) of the Pennsylvania Act, the basis of four counts of the twelve-count indictment, which punishes utterances or conduct '(intended to) incite or encourage any person to commit any overt act with a view to bringing the Government of this State or of the United States into hatred or contempt.' Cf. Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. This provision is strangely reminiscent of the Sedition Act of 1798, 1 Stat. 596, which punished utterances made 'with intent to defame the * * * government, or either house of the * * * Congress, or the * * * President, or to bring them * * * into contempt or disrepute; or to excite against them * * * the hatred of the good people of the United States * * *.' 3 377 Pa. 58, 104 A.2d 133. 4 377 Pa. at page 69, 104 A.2d at page 139. 5 54 Stat. 670. 6 18 U.S.C. § 2385, 18 U.S.C.A. § 2385. The text of the statute is set out in an Appendix to this opinion, 350 U.S. 510, 76 S.Ct. 484. (Another part of the Smith Act, punishing the advocacy of mutiny, is now 18 U.S.C. § 2387, 18 U.S.C.A. § 2387.) 7 'No question of federal supersession of a state statute was in issue * * * when the Supreme Court upheld the validity of the state statutes in Gitlow v. People of State of New York, 1925, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, and Whitney v. People of State of California, 1927, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095.' 377 Pa. at pages 73—74, 104 A.2d at page 141. Although the judgments of conviction in both Gitlow and Whitney were rendered in 1920, before repeal of the federal wartime sedition statute of 1918, 41 Stat. 1359, the question of supersession was not raised in either case and, of course, not considered in this Court's opinions. 8 'Nor is a State stripped of its means of self-defense by the suspension of its sedition statute through the entry of the Federal Government upon the field. There are many valid laws on Pennsylvania's statute books adequate for coping effectively with actual or threatened internal civil disturbances. As to the nationwide threat to all citizens, imbedded in the type of conduct interdicted by a sedition act, we are—all of us—protected by the Smith Act and in a manner more efficient and more consistent with the service of our national welfare in all respects.' 377 Pa. at page 70, 104 A.2d at page 139. 9 254 U.S. 331, 41 S.Ct. 127, 65 L.Ed. 287. The Court went on to observe: '* * * the state knew the conditions which existed, and could have a solicitude for the public peace, and this record justifies it. Gilbert's remarks were made in a public meeting. They were resented by his auditors. There were protesting interruptions, also accusations and threats against him, disorder, and intimations of violence. And such is not an uncommon experience. On such occasions feeling usually runs high and is impetuous; there is a prompting to violence, and, when violence is once yielded to, before it can be quelled, tragedies may be enacted. To preclude such result or a danger of it is a proper exercise of the power of the state.' Id., 254 U.S. at pages 331 332, 41 S.Ct. at page 127. 10 Petitioner makes the subsidiary argument that 18 U.S.C. § 3231, 18 U.S.C.A. § 3231, shows a congressional intention not to supersede state criminal statutes by any provision of Title 18. Section 3231 provides: '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.' The office of the second sentence is merely to limit the effect of the jurisdictional grant of the first sentence. There was no intention to resolve particular supersession questions by the Section. 11 See Appendix, 350 U.S. 510, 76 S.Ct. 484. See also the Voorhis Act passed in 1940, now codified as 18 U.S.C. § 2386, 18 U.S.C.A. § 2386, and the Foreign Agents Registration Act passed in 1938, 22 U.S.C. § 611 et seq., 22 U.S.C.A. § 611 et seq. 12 50 U.S.C. § 781 et seq., 50 U.S.C.A. § 781 et seq. 13 Id., § 782(3, 4). 14 Id., § 786. 15 Id., § 787. 16 Id., § 794(a). 17 Id., §§ 784, 785, 789, 790. 18 50 U.S.C. (1955 Supp.) § 841, 50 U.S.C.A. § 841. 19 Id., § 843. 20 Id., § 782 (4A). 21 It is worth observing that in Hines this Court held a Pennsylvania statute providing for alien registration was superseded by Title III of the same Act of which the commonly called Smith Act was Title I. Title II amended certain statutes dealing with the exclusion and deportation of aliens. The provisions of Title I involve a field of no less dominant federal interest than Titles II and III, in which Congress manifestly did not desire concurrent state action. 22 50 U.S.C. § 781(15), 50 U.S.C.A. § 781(15). 23 United States v. Mesarosh (Nelson), D.C., 116 F.Supp. 345, affirmed, 3 Cir., 223 F.2d 449, certiorari granted, 350 U.S. 922, 76 S.Ct. 218. 24 377 Pa., at page 76, 104 A.2d, at page 142. 25 The Public Papers and Addresses of Franklin D. Roosevelt, 1939 Volume, pp. 478—479 (1941). 26 Proceedings, p. 23. 27 377 Pa., at pages 74—75, 104 A.2d, at page 141. 28 E.g., compare Fla.Stat.1953, § 876.02, F.S.A.: 'Any person who—* * * (5) Becomes a member of, associated with or promotes the interest of any criminal anarchistic, communistic, nazi-istic or fascistic organization, * * * (s)hall be guilty of a felony * * *,' with 50 U.S.C. § 783(f), 50 U.S.C.A. § 783(f): 'Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute. The fact of the registration of any person under section 787 or section 788 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute.' 29 Garner v. Teamsters, Chauffeurs and Helpers Local Union, No. 776, 346 U.S. 485, 490—491, 74 S.Ct. 161, 166, 98 L.Ed. 228. 30 But see Grant, The Lanza Rule of Successive Prosecutions, 32 Col.L.Rev. 1309. 1 No problem of double punishment exists in this case. See the Court's opinion, 350 U.S. 500, 76 S.Ct. 479, and its last paragraph, 350 U.S. 509, 510, 76 S.Ct. 484. See United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314; The Federalist, No. 32. Cf. Houston v. Moore, 5 Wheat. 1, statement at page 22 with that at pages 44—45, 5 L.Ed. 19. 2 Hunt, Federal Supremacy and State Anti-Subversive Legislation, 53 Mich.L.Rev. 407, 427—428; Note, 55 Col.L.Rev. 83, 90. 3 Gilbert v. State of Minnesota, 254 U.S. 325, 328—333, 41 S.Ct. 125, 126—128, 65 L.Ed. 287; Reid v. State of Colorado, 187 U.S. 137, 148, 23 S.Ct. 92, 96, 47 L.Ed. 108; Sinnot v. Davenport, 22 How. 227, 243, 16 L.Ed. 243; Fox v. State of Ohio, 5 How. 410, 432—435, 12 L.Ed. 213. 4 Forty-two States, along with Alaska and Hawaii, now have laws which penalize the advocacy of violent overthrow of the federal or state governments. Digest of the Public Record of Communism in the United States (Fund for the Republic, 1955) 266 306. In hearings before the House Judiciary Committee on the proposed Smith Act, both witnesses and members of the Committee made references to existing state sedition laws. Hearings before Subcommittee No. 3, Committee on the Judiciary, House of Representatives, on H.R. 5138, 76th Cong., 1st Sess., pp. 7, 69, 83—85. Similar comment was heard in the congressional debates. 84 Cong.Rec. 10452. In fact, the Smith Act was patterned on the New York Criminal Anarchy Statute, Penal Law, McK.Consol.Laws, c. 40, § 160 et seq. Commonwealth v. Nelson, 377 Pa. 58, 86, 104 A.2d 133, 147. The original text of the Smith Act is set out in the hearings before Subcommittee No. 3, supra, and the New York Act may be read in Gitlow v. People of State of New York, 268 U.S. 652, 654—655, 45 S.Ct. 625, 626, 69 L.Ed. 1138. Further evidence of congressional notice of state legislation may be found since the passage of the Smith Act. S.Rep. No. 1358, 81st Cong., 2d Sess., p. 9; H.R.Rep. No. 2980, 81st Cong., 2d Sess., p. 2; H.R.Rep. No. 1950, 81st Cong., 2d Sess., pp. 25—46 (Un-American Activities Committee). See 67 Harv.L.Rev. 1419, 1420; 40 Cornell L.Rev. 130, 133. 5 In Allen-Bradley Local No. 1111, United Electrical Radio and Machine Workers of America v. Wisconsin Employment Relations Board, 315 U.S. 740, 749, 62 S.Ct. 820, 825, 86 L.Ed. 1154, we said: 'In the Hines case, a federal system of alien registration was held to supersede a state system of registration. But there we were dealing with a problem which had an impact on the general field of foreign relations. The delicacy of the issues which were posed alone raised grave questions as to the propriety of allowing a state system of regulation to function alongside of a federal system. In that field any 'concurrent state power that may exist is restricted to the narrowest of limits'. 312 U.S. at page 68, 61 S.Ct. at page 404, 85 L.Ed. 581. Therefore, we were more ready to conclude that a federal Act in a field that touched international relations superseded state regulation than we were in those cases where a State was exercising its historic powers over such traditionally local matters as public safety and order and the use of streets and highways.' The Davidowitz case is distinguishable on other grounds. Alien registration is not directly related to control of undesirable conduct; consequently there is no imperative problem of local law enforcement. 102 Pa.L.Rev., at 1091. There is also considerable legislative history behind the Alien Registration Act which suggests that Congress was trying to avoid overburdening of aliens; some features of the conflicting state law had been expressly rejected by Congress. 312 U.S. at pages 71—73, 61 S.Ct. at pages 406—407. See 39 Minn.L.Rev. 213. It should be noted also that the coincidence between the state and federal laws in the Davidowitz case was so great that no real purpose was served by the state law. 34 Boston U.L.Rev. 514, 517—518. States are barred by the Constitution from entering into treaties and by 18 U.S.C. § 953, 18 U.S.C.A. § 953 from correspondence or intercourse with foreign governments with relation to their disputes or controversies with this Nation. 6 Such efforts may be punishable crimes. Dennis v. United States, 341 U.S. 494, 508—510, 71 S.Ct. 857, 866—868, 95 L.Ed. 1137. 7 It seems quite reasonable to believe 'that the exclusion principle is to be more strictly applied when the Congress acts in a field wherein the constitutional grant of power to the federal government is exclusive, as in its right to protect interstate commerce and to control international relations.' Albertson v. Millard, D.C., 106 F.Supp. 635, 641. 8 Mr. Justice Brandeis, dissenting, emphasized the ruling here applicable thus: 'Congress has the exclusive power to legislate concerning the army and the navy of the United States, and to determine, among other things, the conditions of enlistment. * * * '* * * The states act only under the express direction of Congress. * * * '* * * As exclusive power over enlistments in the army and the navy of the United States and the responsibility for the conduct of war is vested by the federal Constitution in Congress, legislation by a state on this subject is necessarily void unless authorized by Congress. * * * Here Congress not only had exclusive power to act on the subject; it had exercised that power directly by the Espionage Law before Gilbert spoke the words for which he was sentenced. * * * The states may not punish treason against the United States * * * although indirectly acts of treason may affect them vitally. No more may they arrogate to themselves authority to punish the teaching of pacifism which the legislature of Minnesota appears to have put into that category.' Id., 254 U.S. at pages 336—343, 41 S.Ct. at page 129. 9 See note 4, supra. 10 The brief added, p. 31: '* * * the Attorney General of the United States recently informed the attorneys general of the several states * * * that a full measure of federal-state cooperation would be in the public interest. See New York Times, Sept. 15, 1955, p. 19.' 11 4 Stat. 115, 122—123; 18 U.S.C.A. § 3231 (Historical and Revision Notes).

23

350 U.S. 521 76 S.Ct. 539 100 L.Ed. 666 Application of Eugene BURWELL. Application of James Alonzo ROGERS. Nos. 736, 737. Decided April 2, 1956. PER CURIAM. 1 The Court of Appeals for the Ninth Circuit has certified to this Court the following three questions: 2 '(1) Has Congress created in the Court of Appeals, as a court, the jurisdiction to issue a certificate of probable cause, sought from the court, as a court, by the provisions of 28 U.S.C. § 2253, replacing the repealed 28 U.S.C. § 466? 3 '(2) If the Supreme Court holds that Congress has not given the Courts of Appeal such jurisdiction, did the Supreme Court create that jurisdiction, by its per curiam opinion, rendered without argument, which failed to consider 28 U.S.C. § 2253 and was based on the repealed 28 U.S.C. § 466 and House v. Mayo, 1945, 324 U.S. 42, 48 (65 S.Ct. 517, 521, 89 L.Ed. 739), and its remand to this court 'so that the petitioner's application for a certificate of probable cause may be entertained on its merits'? 4 '(3) If the Supreme Court holds that Congress or the Court creates such jurisdiction by 28 U.S.C. § 2253 and that House v. Mayo applies, does its mandate mean that all the judges, as judges, or some individual judge, or the court as a court shall consider the petition for a certificate of probable cause?' 5 Earlier this Term we were constrained to find that the Court of Appeals for the Ninth Circuit was in error in deeming itself without jurisdiction to entertain applications for certificates of probable cause, under 28 U.S.C. § 2253, 28 U.S.C.A. § 2253, addressed to that court instead of to a judge or judges thereof. Accordingly, we reversed the judgments in these cases. Burwell v. Teets, 350 U.S. 808, 76 S.Ct. 98; Rogers v. Teets, 350 U.S. 809, 76 S.Ct. 98. Each of these cases was reversed 'so that the petitioner's application for a certificate of probable cause may be entertained on its merits.' 6 We did not attempt to lay down a procedure for the Court of Appeals to follow for the entertainment of such applications on their merits. We shall not do so now. It is for the Court of Appeals to determine whether such an application to the court is to be considered by a panel of the Court of Appeals, by one of its judges, or in some other way deemed appropriate by the Court of Appeals within the scope of its powers. Cf. Western Pacific R. Corp. v. Western Pacific R. Co., 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986. It is not for this Court to prescribe how the discretion vested in a Court of Appeals, acting under 28 U.S.C. § 2253, 28 U.S.C.A. § 2253, should be exercised. See United States v. Rosenburgh, 7 Wall. 580, 19 L.Ed. 263. As long as that court keeps within the bounds of judicial discretion, its action is not reviewable. 7 The entire certificate in each of these cases must be dismissed. 8 Dismissed.

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350 U.S. 528 76 S.Ct. 582 100 L.Ed. 672 Joan Greenway COLLINS, Widow, et al., Petitioners,v.AMERICAN BUSLINES, Inc., Respondent Employer, et al. No. 523. Argued March 29, 1956. Decided April 9, 1956. Mr. John P. Frank, Phoenix, Ariz., for petitioner. Mr. John R. Franks, Phoenix, Ariz., for respondent Industrial Comm. of Arizona. No appearance for respondent American Buslines, Inc. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Adolphus Henry Collins was killed in an accident near Ehrenburg, Arizona, on September 30, 1953. The accident resulted from the blowout of a tire on an American Buslines' vehicle which Collins was driving on a regular run from Phoenix to Los Angeles. Collins had been employed as a bus driver for American since 1944. He had done his driving on various routes in the Southwest, and from 1952 until the time of his death he was regularly employed on the Los Angeles to Phoenix and return route. He and his wife and minor child—the petitioners in this proceeding—made their home in Los Angeles, California, in which State Collins was covered by workmen's compensation. 2 Petitioners applied on October 14, 1953, to the Industrial Commission of Arizona for compensation in accordance with the terms of the Arizona Workmen's Compensation Act. In an award dated November 30, 1953, that agency made, inter alia, the following findings: 3 'That the defendant employer maintained workmen's compensation coverage in the State of California and that payroll premium on the said Adolphus Henry Collins was reported to the State of California. That no reporting of such was made at any time to the Industrial Commission of Arizona. 4 'That the said Adolphus Henry Collins, at the time of his death, was not regularly employed in the State of Arizona as said term has been defined by the Supreme Court of Arizona in the case of Industrial Commission v. Watson Brothers Transportation Company, (75 Ariz. 357, 256 P.2d 730).'1 5 'That the Industrial Commission of Arizona does not have jurisdiction in the premises, and that said * * * claim on file herein should be denied for lack of jurisdiction.' 6 On certiorari to the Supreme Court of Arizona, the construction of the Arizona statute on which the Commission based its award was rejected, but its disposition of petitioners' claim was affirmed. After concluding that American Buslines 'operated exclusively in interstate commerce,' the court held that the Commerce Clause of the United States Constitution precluded recovery under the Arizona Workmen's Compensation Act because Collins was covered by the California statute, and to require his interstate employer to insure also in Arizona would place an undue burden on interstate commerce. 79 Ariz. 220, 286, P.2d 214. We granted certiorari because of the important federal question thus presented. 350 U.S. 931, 76 S.Ct. 306. 7 The only respondent here is the Arizona Industrial Commission. It is not at all clear from the record before us what the interest of the state agency is in this litigation. If the employer were actively before the Court, it could claim, we assume, that an award in the circumstances of the present case burdens the interstate commerce in that the consequences of such an award would to be require it in the future to obtain insurance sufficiently comprehensive to cover potential awards in the various States through which it passes. The apparent interest of the Commission is different, namely, that as a result of an award in this case, interstate carriers will seek insurance from a single private insurance carrier capable of giving coverage in all States through which they run. The desire by interstate carriers for such insurance will cause a defection from the state compensation fund, and it is this potential defection which leads to the Commission's claim that the Arizona Act cannot be applicable in an interstate situation. But this asserted burden upon interstate commerce—the disadvantageous effect upon the state compensation fund—is too intangible and elusive to be deemed a constitutionally disallowable burden. 8 We have been advised, however, that American Buslines has been a non-participating defendant throughout this litigation; that it is in receivership in Nebraska; that an order has been issued by the Nebraska court barring claims against it except in that court; and that petitioners' claim is against the state compensation fund, administered by the Industrial Commission, which will in a separate proceeding be put to such recourse as it may have against American Buslines. This is not controverted. The Commission, therefore, appears to have an immediate interest of the same character and extent that American Buslines would have were it here. Thus, the Commission can invoke the employer's claim under the Commerce Clause. But that claim—of an increased insurance burden imposed as a practical matter upon an interstate carrier—while perhaps less tenuous than the defection argument directly pertinent to the Commission's case, is hardly more substantial. Whatever dollars-and-cents burden an eventual judgment for claimants in the position of petitioners may cast either upon a carrier or the State's fund, is insufficient, compared with the interest of the State in affording remedies for injuries committed within its boundaries, see Carroll v. Lanza, 349 U.S. 408, 75 S.Ct. 804, 99 L.Ed. 1183, to dislodge state power. The State's power is not dislodged so long as the Federal Government has not taken over the field of remedies for injuries of employees on interstate buses as it has done in the case of employees of interstate railroad carriers. New York Central R. Co. v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045. 9 The court below and the Commission here rely on Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915. It is too slender a read. Two less similar situations, in which shelter from an exercise of state power is sought under the Commerce Clause, would be difficult to find than that presented by the circumstances of this case, compared with the circumstances of the Southern Pacific case. 10 The judgment of the Supreme Court or Arizona is reversed, and the case is remanded to that court for further proceedings. 11 Reversed and remanded. 1 Section 56—928 of the Arizona Code Annotated, 1939 (Cum.Supp. 1952) (A.R.S. § 23—902), provides: 'Employers subject to the provisions of this article are: * * * 3. Every person who has in his employ three (3) or more workmen or operatives regularly employed * * *. For the purposes of this section 'regularly employed' includes all employments, whether continuous throughout the year, or for only a portion of the year, in the usual trade, business, profession, or occupation of an employer.'

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350 U.S. 523 76 S.Ct. 608 100 L.Ed. 668 Alma SCHULZ, Administratrix of the Estate of August M. Schulz, Petitioner,v.The PENNSYLVANIA RAILROAD COMPANY. No. 282. Argued March 27, 28, 1956. Decided April 9, 1956. Mr. Nathan Baker, New York City, for petitioner. Mr. Joseph P. Allen, New York City, for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 The petitioner brought this suit for damages under the Jones Act,1 alleging that her husband while employed by the respondent railroad as a tug fireman was drowned because of the negligent failure of respondent to provide him with a safe place to work. The District Judge directed the jury to return a verdict for the defendant, stating, 'There is some evidence of negligence, and there is an accidental death. But there is not a shred of evidence connecting the two.' The Court of Appeals affirmed, saying that while the evidence was 'perhaps at most only doubtfully sufficient to present a jury question as to defendant's breach of duty' it failed to show 'where the accident occurred' or 'that it was proximately caused by any default on the part of the defendant.'2 2 The jury trial 'is part and parcel of the remedy afforded railroad workers under the Employers Liability Act', which the Jones Act makes applicable to those working as petitioner's husband was here.3 The Seventh Amendment to the Constitution provides that 'the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.'4 We granted certiorari to consider the failure of the District Court to let this case go to the jury. 350 U.S. 882, 76 S.Ct. 134. 3 While some facts were in dispute there was evidence from which a jury could have found: On Christmas Day 1949, at about 5:15 p.m., the deceased, Schulz, reported for work on his job at Pier H, Jersey City, New Jersey, and was assigned to work on four tugboats docked side by side there. He went immediately to check the boats without waiting to change from his street to his working clothes. Returning to the pier alongside the tugs about seven o'clock, Schulz reported that he had finished his checking and was now going back to the boats to change to his work clothes and proceed with his other duties there. He was last seen alive walking in the direction of the nearest tug. At 1:25 a.m., a supervisor found Schulz was not on the boats. His street clothes were hanging in the upper engine room where the tug attendants usually changed clothes. His lunch package was also there. Three of the tugs were at all times wholly unlighted and dark; one was partially illuminated by spotlights from the pier. The night was cold—10 above zero—and there was some ice on the tugs. Because the company did not have enough workers that night properly to perform the duties that were required Schultz had to try to take care of all four tugs by himself. To do this he had to step from one boat to another in the dark except for such limited illumination as he could obtain from a flashlight. Several weeks after Schulz disappeared from the boats his body was found in the water near an adjacent pier. He was clothed in nothing but shorts and socks. A flashlight was in his hand. He had drowned. It is conceded that the deceased was not under the influence of alcohol when he came to the boat, that he did not commit suicide, that there was no foul play, and that he met his death by accident. The evidence showed that he was a capable and experienced workman who had been employed by the defendant for several years. 4 In considering the scope of the issues entrusted to juries in cases like this, it must be borne in mind that negligence cannot be established by direct, precise evidence such as can be used to show that a piece of ground is or is not an acre. Surveyors can measure an acre. But measuring negligence is different. The definitions of negligence are not definitions at all, strictly speaking. Usually one discussing the subject will say that negligence consists of doing that which a person of reasonable prudence would not have done, or of failing to do that which a person of reasonable prudence would have done under like circumstances. Issues of negligence, therefore, call for the exercise of common sense and sound judgment under the circumstances of particular cases. '(W)e think these are questions for the jury to determine. We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others.' Jones v. East Tennessee, V. & G.R. Co., 1888, 128 U.S. 443, 445, 9 S.Ct. 118, 32 L.Ed. 478. 5 In this case petitioner is entitled to recover if her husband's death resulted 'in whole or in part'5 from defendant's negligence. Fair-minded men could certainly find from the foregoing facts that defendant was negligent in requiring Schulz to work on these dark, icy and undermanned boats. And reasonable men could also find from the discovery of Schulz's half-robed body with a flashlight gripped in his hand that he slipped from an unlighted tug as he groped about in the darkness attempting to perform his duties.6 But the courts below took this case from the jury because of a possibility that Schulz might have fallen on a particular spot where there happened to be no ice, or that he might have fallen from the one boat that was partially illuminated by shore lights. Doubtless the jury could have so found (had the court allowed it to perform its function) but it would not have been compelled to draw such inferences.7 For 'The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.'8 Fact finding does not require mathematical certainty.9 Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn. 6 We think the evidence was sufficient to require submission of the case to the jury, and that it was error not to do so. 7 Reversed. 8 Mr. Justice REED, Mr. Justice BURTON and Mr. Justice MINTON dissent. 9 Mr. Justice FRANKFURTER, dissenting. 10 Considerations that I have heretofore spelled out govern me in the conviction that the writ in this case should be dismissed as improvidently granted. McAllister v. United States, 348 U.S. 19, 23, 75 S.Ct. 6, 9, 99 L.Ed. 20; Carter v. Atlanta & St. A.B. Ry. Co., 338 U.S. 430, 437, 70 S.Ct. 226, 230, 94 L.Ed. 236; Cahill v. New York, N.H. & H.R. Co., 350 U.S. 898, 76 S.Ct. 180; Anderson v. Atlantic Coast Line R. Co., 350 U.S. 807, 76 S.Ct. 60; Swafford v. Atlantic Coast Line R. Co., 350 U.S. 807, 76 S.Ct. 80; Moore v. Chesapeake & O. Ry. Co., 340 U.S. 573, 578, 71 S.Ct. 428, 430, 95 L.Ed. 547; Affolder v. New York, C. & St. L.R. Co., 339 U.S. 96, 101, 70 S.Ct. 509, 511, 94 L.Ed. 683. See Frankfurter and Landis, The Business of the Supreme Court, 206 et seq. 1 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688. 2 2 Cir., 222 F.2d 540, 541. 3 Bailey v. Central Vermont R. Co., 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444. 4 For a discussion of the right to trial by jury under the Seventh Amendment see Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458, and cases there cited. 5 53 Stat. 1404, 45 U.S.C. § 51, 45 U.S.C.A. § 51; 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688. 6 Cf. Sadler v. Pennsylvania R. Co., 4 Cir., 159 F.2d 784. 7 Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468. 8 Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520. Conversely, 'It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences.' Ibid. 9 Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916.

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350 U.S. 568 76 S.Ct. 629 100 L.Ed. 705 Raymond C. ARMSTRONG, Petitioner,v.Mary R. ARMSTRONG, General Motors Corporation, et al. No. 38. Argued Nov. 15, 1955. Decided April 9, 1956. Rehearing Denied May 21, 1956. See 351 U.S. 943, 76 S.Ct. 832. Mr. Robert N. Gorman, Cincinnati, Ohio, for petitioner. Mr. Walter K. Sibbald, Cincinnati, Ohio, for respondent. Mr. Justice MINTON delivered the opinion of the Court. 1 The petitioner, while residing in Dade County, Florida, filed a suit for divorce from his wife, who had separated from him and gone to Ohio, where she had established her residence. The wife was not personally served, nor did she appear in person or by attorney in the Florida suit. Service on her was constructive only. A divorce decree was granted petitioner by the Florida court, and he contends that that court also denied alimony to the respondent. 2 Later, the respondent wife instituted a suit in Ohio for divorce and for alimony. The petitioner appeared and set up the divorce obtained in Florida. The Ohio court found that the respondent had established grounds for divorce in Ohio but denied the divorce because Florida had already decreed a divorce to the petitioner. The Ohio court proceeded to pass on the question of alimony and granted the wife alimony, taking into account the total property owned by the petitioner. The petitioner appealed to the Court of Appeals, 99 Ohio App. 7, 130 N.E.2d 710, and then to the Supreme Court of Ohio, which affirmed the judgments of the lower courts. 162 Ohio St. 406, 123 N.E.2d 267. Petitioner argued and contends here that the Ohio courts have denied full faith and credit to the Florida decree. We granted certiorari. 349 U.S. 915, 75 S.Ct. 604, 99 L.Ed. 1248. 3 The sole question presented by the petition for certiorari was whether the Ohio courts were required to give full faith and credit to the ex parte Florida divorce decree, which petitioner alleges not only granted him a divorce but also decreed that the wife was not entitled to alimony. As we interpret the Florida decree, however, the Florida court did not purport to adjudicate the absent wife's right to alimony. The Ohio courts, therefore, in awarding alimony to the wife, did not in fact fail to give full faith and credit to the Florida decree. Accordingly, we do not reach the constitutional question sought to be presented. But even if there is doubt as to the meaning of the Florida decree, we should construe its action as a refusal to pass on the question of alimony and thus avoid the constitutional question as to its power to do so. 4 The Florida court found that Mrs. Armstrong 'has not come into this court in good faith or made any claim to the equitable conscience of the court and has made no showing of any need on her part for alimony. It is, therefore, specifically decreed that no award of alimony be made to the defendant * * *.' Taken literally, that language means only that, for the reasons it gave, the court would refrain from making an affirmative award of alimony to the wife, not that it adjudicated in favor of the husband that his wife was not entitled to alimony. The husband's bill of complaint did not ask for greater relief. It offered to show that Mrs. Armstrong's interest in jointly held property was 'ample to support the defendant and that she has no further need of alimony.' The purpose of this offer, however, was revealed by the next sentence of the complaint: 'Nevertheless the plaintiff hereby offers to do equity and to abide by such orders or decrees, with reference to the settlement of the property affairs, as to this court may be deemed equitable.' Thus the husband did not seek a decree holding the wife not entitled to alimony but rather merely submitted to the court's jurisdiction to condition its grant of divorce to him upon an award of alimony to his wife. The prayer for relief was fully satisfied by the decision that protection of the absent wife did not require the court to fix alimony before granting the divorce. 5 The Florida master's report is confirmatory of the limited scope of the decree. The master stated that 'the question of the wife's alimony, if any, cannot be determined at this stage of the proceeding,' pointing out that most of the marital property was in the wife's possession in Ohio and was the subject matter of litigation pending there. He accordingly found that 'the defendant is not entitled to receive alimony * * * under the facts and circumstances presented in this case' and recommended 'that no award of alimony be made.' The master's recommendation meant no more than that the question of alimony should not be decided because the wife had in her possession property adequate to meet her immediate needs, and the unresolved litigation made it impossible to determine her future needs. Presumably, the court's decree meant no more when it adopted in terms the master's recommendation that 'no award of alimony be made.' Like the master's report, the decree expressly recognized that the parties' property rights depended upon the outcome of the pending litigation in Ohio and that the wife had not shown any need for alimony. 6 When the Florida court said, 'it is, therefore, specifically decreed that no award of alimony be made to the defendant,' it recognized that no issue of alimony should be decided by it. The court simply said that no award of alimony be made—a purely negative assertion that it would not pass on the question. 7 It is true that the decree 'that no award of alimony be made' was followed in the same sentence by a declaration, based on the court's and master's view of Florida property law, quieting title in the husband to certain Florida real property. At most, however, the fact that both matters were dealt with in a single sentence suggests only that the court might have reserved alimony out of that specific property had it concluded that such action was necessary to protect the wife's interest. That it did not do so is consistent with our conclusion that the Florida court did no more than refrain from awarding alimony at that time. 8 There was a valid decree in Florida dissolving the bonds of matrimony. There was no decree as to alimony. Ohio had personal service on both parties in a suit for divorce and alimony brought there by Mrs. Armstrong. The court denied her a decree of divorce because Florida had already dissolved the bonds of matrimony. The Ohio court found that, but for the decree in Florida, Mrs. Armstrong had established grounds for divorce in the Ohio suit. It considered that the matter before it was not a division of property, but an application for alimony, and it proceeded to hear evidence on that basis and finally entered a personal judgment against the defendant husband for alimony. The Ohio court, which had complete jurisdiction of both parties and the cause of action, entered a decree as to alimony only, which decree seems clearly authorized by the Ohio cases. Slapp v. Slapp, 143 Ohio St. 105, 54 N.E.2d 153; Cox v. Cox, 19 Ohio St. 502. The Florida judgment was given full faith and credit by Ohio as far as the judgment in Florida went, and no other questions are presented here. 9 The judgment is affirmed. 10 Affirmed. 11 Mr. Justice FRANKFURTER, joining the opinion of the Court. 12 It is, of course, desirable to have a Court opinion, if one can be achieved without straining one's conscience. I am sufficiently in agreement with Mr. Justice MINTON's construction of the Florida decree to be able to join him. 13 On my study of the record, I would dismiss the writ as improvidently granted. And for these reasons. After a case has been heard on the merits, it is to be disposed of on the precise issue that full study of the case discloses, and not on the basis of the preliminary examination of the questions that were urged in the petition for certiorari. Due regard for the working of the certiorari system requires this. In view of the fact that about 1,300 applications were made last Term for leave to be heard (and this is a fair average of the volume of the Court's business), determination during this sifting process of the jurisdictional merits in all these 1,300 cases can hardly be expected. Theory and practice alike reject any such notion. The inevitably cursory consideration that is normally given in a case on the preliminary round precludes the assumption that a tentative finding of a federal question will survive the thorough study of the record which consideration of a case on the merits implies. Therefore, it is that cases have again and again been dismissed for want of jurisdiction, i.e., a substantial federal question was found wanting; on the contrary, it became clear that the state court judgment rested on an adequate state ground. 14 The petition for writ of certiorari in this case vigorously argued that 15 'The sole question is whether the courts of Ohio, under Article IV of the Constitution of the United States, are compelled to give full faith and credit to the entire decree, granting a divorce, and denying alimony, rendered by the court in Florida, the matrimonial domicile of the parties, following the decision of Thompson v. Thompson, 226 U.S. 551 (33 S.Ct. 129, 57 L.Ed. 347).' 16 The references to the Florida decree in the opinion of the Ohio Supreme Court—the two documents are hardly to be deemed conspicuously lucid—warranted, without more, a belief that the case did present the question formulated by petitioner. Such a question would, no doubt, raise an important problem in the construction of the Full Faith and Credit Clause. 17 But the course of the oral argument, for such is one of its functions, and an exacting scrutiny of the record, for such is the requirement of plenary consideration of a case, put in a very different light the decree of the Florida court and thereby the significance of the litigation in Ohio. 18 A study of the Florida decree, a portion of which is set out in the margin,1 in conjunction with Florida case law2 demonstrates, I believe, that Florida expressly disavowed any adjudication regarding claims to and in property situated in Ohio, the very properties which are the subject matter of the challenged Ohio decree. 19 Thus, the sole question that survives is the power of Ohio, as a matter of its own policy, to define rights in property situated in Ohio in the circumstances of this case. A question of due process might be raised, though not successfully. Both the real property and securities which had their locus in Ohio were subject to Ohio's control in that both items constituted 'property within the state.' Pennington v. Fourth National Bank, 243 U.S. 269, 271, 37 S.Ct. 282, 61 L.Ed. 713. In any event, it was not raised, and the claim under the Full Faith and Credit Clause has evaporated, because Ohio merely dealt with property within its borders which Florida had not purported to affect. 20 Of course we have to go through all this reasoning to determine whether a substantial federal question was raised by reason of Ohio's disregard of Florida's decree. The Court not infrequently is required to find its way through a tangled or confused record in order to determine whether a state court judgment turned on a state ground or on a federal ground. In short, the Court has jurisdiction to decide whether it has jurisdiction. But when adequate analysis discloses that a state judgment amply rests on a state ground, we are barred from proceeding to the merits of the alleged federal question. The appropriate disposition is to dismiss the case for want of jurisdiction. 21 Mr. Justice BLACK, with whom The CHIEF JUSTICE, Mr. Justice DOUGLAS, and Mr. Justice CLARK join, concurring. 22 The opinion of the Court takes the position that the Florida court did not adjudicate Mrs. Armstrong's right to alimony. We cannot agree. In the husband's Florida complaint he alleged that his wife's property was 'ample to support the defendant and that she has no further need of alimony or property settlement.' The Florida court expressly held that it had jurisdiction over both parties and over the subject matter of the complaint. It then proceeded to find that the wife was at fault in leaving her husband and the 'matrimonial domicile.' The court even suggested that Mrs. Armstrong was guilty of a criminal act in taking some of her husband's money and securities to Ohio. The decree continued: 'This court, therefore, finds the defendant has not come into this court in good faith or made any claim to the equitable conscience of the court and has made no showing of any need on her part for alimony. It is, therefore, specifically decreed that no award of alimony be made to the defendant * * *.' (Emphasis added.) This was plainly a denial of alimony, not on the ground that the court was leaving the matter open but because the judge thought the wife should not have alimony.1 23 We agree with the majority that the Ohio decree was an alimony judgment and not a division of property. Thus in our view there is a direct conflict between that decree and the decree of the Florida court denying alimony to the wife. We therefore reach the constitutional question whether the Ohio court was justified in denying full faith and credit to the Florida decree. 24 We believe that Ohio was not compelled to give full faith and credit to the Florida decree denying alimony to Mrs. Armstrong. Our view is based on the absence of power in the Florida court to render a personal judgment against Mrs. Armstrong depriving her of all right to alimony although she was a nonresident of Florida, had not been personally served with process in that State, and had not appeared as a party. It has been the constitutional rule in this country at least since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, decided in 1878, that nonresidents cannot be subjected to personal judgments without such service or appearance. We held in Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, that an alimony judgment was this kind of 'personal judgment.' See also Kreiger v. Kreiger, 334 U.S. 555, 68 S.Ct. 1221, 92 L.Ed. 1572; Barber v. Barber, 21 How. 582, 588, 16 L.Ed. 226; Barrett v. Failing, 111 U.S. 523, 525, 4 S.Ct. 598, 599, 28 L.Ed. 505. The Estin case was much like this one. There, after the wife had obtained a separation and permanent alimony decree in New York, the husband went to Nevada and obtained a divorce. In accord with our previous holding in Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, we held that the Nevada divorce was valid and must be given full faith and credit by New York even though rendered without personal service on the wife. It was argued that New York also had to recognize Nevada's rule of law that the dissolution of a marriage put an end to a support order. We held, however, that Nevada could not adjudicate rights of the wife under the New York judgment because she had not been personally served with process and did not appear in the Nevada proceedings. 334 U.S. at 547—549, 68 S.Ct. at pages 1217—1218. The considerations supporting that holding are applicable here. The fact that Mrs. Estin's claim to support had been reduced to judgment prior to divorce while Mrs. Armstrong's had not is not a meaningful distinction. Mrs. Armstrong's right to support before judgment, like Mrs. Estin's right to support after judgment, is the kind of personal right which cannot be adjudicated without personal service. Cf. May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221. 25 The husband here seeks to distinguish the Estin case on the ground that there the husband left the 'matrimonial domicile' and established a residence elsewhere, while here the husband kept his domicile in Florida and the wife fled from him. He argues, as the Florida court held, that it was impossible as a matter of law for Mrs. Armstrong to obtain a new domicile separate and apart from that of her husband. He bases this argument on the Florida court's finding on ex parte evidence that Florida, where the couple had resided during a considerable part of their marriage, was the 'matrimonial domicile,' and that the wife had left her home in Florida without cause. On this premise, the Florida court held that she 'did not have the right to separate and claim a separate legal domicile and in truth and in fact, her domicile was that of her husband.' The fiction that a woman cannot have a separate 'domicile' from that of her husband is a relic of the old discredited idea that women must always play a subordinate role in society; it does not justify a departure from settled constitutional principles. The concept of 'matrimonial domicile' was expressly repudiated in both the Williams cases.2 Yet the Court is asked to say here that a State's power over an alimony case is to depend on which spouse is to blame in leaving the other. We adhere to what was said in the first Williams case: 'the question as to where the fault lies has no relevancy to the existence of state power in such circumstances.' 317 U.S. at page 300, 63 S.Ct. at page 214. 26 Relying on Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, the husband further contends that regardless of 'matrimonial domicile' personal service was unnecessary because Mrs. Armstrong was actually domiciled in Florida at the time the Florida action was brought. The Florida court did find she was domiciled there, but that was in an uncontested proceeding. This finding was open to challenge in Ohio. Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577. The issue was tried in Ohio with both parties present, and the trial court expressly found that Mrs. Armstrong had returned to Ohio and was a 'resident' there within the meaning of the Ohio divorce statute at the time the Florida divorce proceedings were instituted. See Page's Ohio Rev.Code Ann.1954, § 3105.03. This statute has been uniformly interpreted by the Ohio courts to require residence accompanied by an intention to make the State of Ohio a permanent home. See, e.g., Saalfeld v. Saalfeld, 86 Ohio App. 225, 89 N.E.2d 165. We would accept the Ohio court's finding that Mrs. Armstrong was such a resident of Ohio when the Florida suit was brought as amply supported by evidence in the record. Consequently the husband's reliance on Milliken v. Meyer is misplaced. 27 There was nothing novel in our holding in Estin v. Estin that a State where one of the parties to a marriage is domiciled can dissolve the marriage without personal service but that it cannot render a personal decree granting or denying alimony. The distinction between a decree which grants a divorce and one which grants a personal money judgment was recognized and the reasons for the distinction were stated by this Court in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.3 The state courts have long recognized the rule that a court lacking personal jurisdiction over a husband cannot render a valid alimony judgment against him.4 We see no reason why a court lacking personal jurisdiction over a wife should be allowed to render a valid judgment denying alimony to her.5 Personal jurisdiction is as necessary to protect a wife's interests as it is to protect a husband's. It is an essential to this kind of determination. Not long after Pennyoyer v. Neff was decided, this Court upheld the validity of a legislative divorce which was granted without notice, service of process or a hearing of any kind, judicial or otherwise. Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654.6 But legislative divorces attempting to create or destroy financial obligations incident to marriage have not been sustained by the courts.7 Thus the different treatment Estin v. Estin accorded to alimony and divorce is well grounded in the judicial and legislative history of our country. 28 It is argued that this case is controlled by Thompson v. Thompson, 226 U.S. 551, 33 S.Ct. 129, 57 L.Ed. 347. That case, however, was decided before the Williams cases, the Estin and Kreiger cases, and May v. Anderson. It relied, moreover, on the case of Atherton v. Atherton, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794, which in holding that an ex parte divorce was entitled to full faith and credit itself quoted extensively from authorities recognizing that such a divorce may be binding "so far as related to the dissolution of the marriage, though not as to other parts of the decree, such as an order for the payment of money by the husband." 181 U.S. at 166, 21 S.Ct. at page 548. The Thompson case stands alone in the United States Reports in supporting the proposition that a valid ex parte divorce in one State cuts off alimony rights in another.8 To the extent that the Thompson decision can be considered as in any way inconsistent with Pennoyer v. Neff and Estin v. Estin, the Thompson case should no longer be considered to be the law. 29 For the foregoing reasons we concur with the Court in affirming the judgment of the Supreme Court of Ohio. 1 'This court takes recognition of the fact that litigation is now pending in the state of Ohio relative to the recovery of * * * stocks and bonds as well as the settlement of other matters concerning property rights between the parties. This court recognizes that the courts of Ohio will have the ultimate determination of the question of property rights where the property itself is in the state of Ohio * * *.' 2 Compare Burkhart v. Circuit Court of Eleventh Judicial Circuit, 146 Fla. 457, 1 So.2d 872, and Lucian v. Southern Ohio Savings Bank & Trust Co., 156 Fla. 370, 23 So.2d 674, with Pawley v. Pawley, Fla., 46 So.2d 464, 28 A.L.R.2d 1358, and Sorrells v. Sorrells, Fla., 82 So.2d 684. 1 Mr. Justice Frankfurter's separate opinion takes the position that 'Ohio merely dealt with property within its borders which Florida had not purported to affect.' 76 S.Ct. 632. But the Florida decree stated that Mrs. Armstrong 'is hereby directed and specifically ordered to return the said stock certificates and bonds to the plaintiff within fifteen (15) days * * *.' These were the very stocks which the Ohio court ordered Mr. Armstrong to transfer to Mrs. Armstrong as alimony. 2 Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; Id., 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577. In the latter case the Court said: 'In view of Williams v. (State of) North Carolina, supra, the jurisdictional requirement of domicil is freed from confusing refinements about 'matrimonial domicil' * * * and the like.' 325 U.S., at page 230, 65 S.Ct. at page 1095. 3 '* * * we do not mean to assert, by any thing we have said, that a State may not authorize proceedings to determine the status of one of its citizens towards a non-resident, which would be binding within the State, though made without service of process or personal notice to the non-resident. * * * The State, for example, has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved. One of the parties guilty of acts for which, by the law of the State, a dissolution may be granted, may have removed to a State where no dissolution is permitted. The complaining party would, therefore, fail if a divorce were sought in the State of the defendant; and if application could not be made to the tribunals of the complainant's domicile in such case, and proceedings be there instituted without personal service of process or personal notice to the offending party, the injured citizen would be without redress.' Pennoyer v. Neff, 95 U.S. at pages 734—735. As early as 1832 the distinction received recognition in a state court. Harding v. Alden, 9 Me. 140. There the court said: 'In giving effect here to the divorce decreed in Rhode Island, we would wish to be understood, that the grounds upon which we place our decision, is limited to the dissolution of the marriage. In the libel, alimony was prayed for; and certain personal property, then in the possession of the wife, was decreed to her. Had the court awarded her a gross sum, or a weekly or an annual allowance, to be paid by the husband, and the courts of this or any other State had been resorted to to enforce it, a different question would be presented * * *.' 9 Me., at page 151. See also 2 Kent's Commentaries (14th ed., Gould, 1896) *110, n. (a). 4 Beard v. Beard, 1863, 21 Ind. 321; Ellison v. Martin, 1873, 53 Mo. 575; Prosser v. Warner, 1875, 47 Vt. 667; Bunnell v. Bunnell, C.C.1885, 25 F. 214; Anderson v. Anderson, 1893, 55 Mo.App. 268; Dillon v. Starin, 1895, 44 Neb. 881, 63 N.W. 12; De la Montanya v. De la Montanya, 1896, 112 Cal. 101, 44 P. 345, 32 L.R.A. 82. See also Barrett v. Failing, 111 U.S. 523, 525, 4 S.Ct. 598, 599, 28 L.Ed. 505. And see 2 Bishop, Marriage & Divorce (6th ed. 1881), § 381a; Cooley, Constitutional Limitations (6th ed., Angell, 1890), 497—498. 5 See, e.g., Turner v. Turner, 1870, 44 Ala. 437, 450; Vanderbilt v. Vanderbilt, 1955, 1 App.Div.2d 3, 147 N.Y.S.2d 125, stayed pending appeal, 1956, 309 N.Y. 971, 132 N.E.2d 333; Hopson v. Hopson, 95 U.S.App.D.C. 285, 221 F.2d 839. 6 In that case the Court said: 'If the act declaring the divorce should attempt to interfere with the rights of property vested in either party, a different question would be presented.' 125 U.S. at page 206, 8 S.Ct. at page 727. 7 Crane v. Meginnis, 1829, 1 Gill & J., Md., 463; Wright v. Wright's Lessee, 1852, 2 Md. 429. See also 1 Bishop, Marriage & Divorce (6th ed. 1881), § 693; 2 id., § 382; 2 Schouler, Marriage, Divorce, Separation and Domestic Relations (6th ed., Blakemore, 1921), §§ 1471—1473. 8 It may be noted that this question was not argued by the wife in the Thompson case. And the District of Columbia Court of Appeals stated 'it was conceded at bar that, if the Virginia decree was not void, this action could not, upon any theory, be maintained.' 35 App.D.C. 14, 26.

1011

350 U.S. 551 76 S.Ct. 637 100 L.Ed. 692 See 351 U.S. 944, 76 S.Ct. 843. Harry SLOCHOWER, Appellant, v.The BOARD OF HIGHER EDUCATION OF The CITY OF NEW YORK. No. 23. Argued Oct. 19, 1955. Decided April 9, 1956. As Modified on Denial of Rehearing May 28, 1956. Mr. Ephraim S. London, New York City, for appellant. Mr. Daniel T. Scannell, Brooklyn, N.Y., for appellee. Mr. Justice CLARK. 1 This appeal brings into question the constitutionality of § 903 of the Charter of the City of New York. That section provides that whenever an employee of the City utilizes the privilege against self-incrimination to avoid answering a question relating to his official conduct, 'his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.'1 Appellant Slochower invoked the privilege against self-incrimination under the Fifth Amendment before an investigating committee of the United States Senate, and was summarily discharged from his position as associate professor at Brooklyn College, an institution maintained by the City of New York. He now claims that the charter provision as applied to him, violates both the Due Process and Privileges and Immunities Clauses of the Fourteenth Amendment. 2 On September 24, 1952, the Internal Security Subcommittee of the Committee on the Judiciary of the United States Senate held open hearings in New York City. The investigation, conducted on a national scale, related to subversive influences in the American educational system. At the beginning of the hearings the Chairman stated that education was primarily a state and local function, and therefore the inquiry would be limited to 'considerations affecting national security, which are directly within the purview and authority of the subcommittee.' Hearings before the Subcommittee to Investigate the Administration of the Internal Security Act and other Internal Security Laws of Senate Committee on the Judiciary, 82d Cong., 2d sess. 1. Professor Slochower, when called to testify, stated that he was not a member of the Communist Party, and indicated complete willingness to answer all questions about his associations or political beliefs since 1941. But he refused to answer questions concerning his membership during 1940 and 1941 on the ground that his answers might tend to incriminate him. The Chairman of the Senate Subcommittee accepted Slochower's claim as a valid assertion of an admitted constitutional right. 3 It had been alleged that Slochower was a Communist in 1941 in the testimony of one Bernard Grebanier before the Rapp-Coudert Committee of the New York Legislature. See Report of the Subcommittee of the Joint Legislative Committee to Investigate Procedures and Methods of Allocating State Moneys for Public School Purposes and Subversive Activities, Legislative Document (1942), No. 49, State of New York, at 318. Slochower testified that he had appeared twice before the Rapp-Coudert Committee, and had subsequently testified before the Board of Faculty relating to this charge. He also testified that he had answered questions at these hearings relating to his Communist affiliations in 1940 and 1941. 4 Shortly after testifying before the Internal Security Subcommittee, Slochower was notified that he was suspended from his position at the College; three days later his position was declared vacant 'pursuant to the provisions of Section 903 of the New York City charter.'* 5 Slochower had 27 years' experience as a college teacher and was entitled to tenure under state law. McKinney's New York Consol.Laws, c. 16, Education Law, § 6206(2). Under this statute, appellant may be discharged only for cause, and after notice, hearing, and appeal. § 6206(10). The Court of Appeals of New York, however, has authoritatively interpreted § 903 to mean that 'The assertion of the privilege against self incrimination is equivalent to a resignation'. Daniman v. Board of Education of City of New York, 306 N.Y. 532, 538, 119 N.E.2d 373, 377. Dismissal under this provision is therefore automatic and there is no right to charges, notice, hearing, or opportunity to explain. 6 The Supreme Court of New York, County of Kings, concluded that appellant's behavior fell within the scope of § 903, and upheld its application here. 202 Misc. 915, 118 N.Y.S.2d 487. The Appellate Division, 282 App.Div. 718, 122 N.Y.S.2d 286, reported sub nom. Shlakman v. Board of Higher Education of City of New York, and the Court of Appeals, reported sub nom. Daniman v. Board of Education of City of New York, supra, each by a divided court, affirmed. We noted probable jurisdiction, 348 U.S. 935, 75 S.Ct. 356, 99 L.Ed. 733, because of the importance of the question presented.2 7 Slochower argues that § 903 abridges a privilege or immunity of a citizen of the United States since it in effect imposes a penalty on the exercise of a federally guaranteed right in a federal proceeding. It also violates due process, he argues, because the mere claim of privilege under the Fifth Amendment does not provide a reasonable basis for the State to terminate his employment. Appellee insists that no question of 'privileges or immunities' was raised or passed on below, and therefore directs its argument solely to the proposition that § 903 does not operate in an arbitrary or capricious manner. We do not decide whether a claim under the 'privileges or immunities' clause was considered below, since we conclude the summary dismissal of appellant in the circumstances of this case violates due process of law. 8 The problem of balancing the State's interest in the loyalty of those in its service with the traditional safeguards of individual rights is a continuing one. To state that a person does not have a constitutional right to government employment is only to say that he must comply with reasonable, lawful, and nondiscriminatory terms laid down by the proper authorities. Adler v. Board of Education of City of New York, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517, upheld the New York Feinberg Law which authorized the public school authorities to dismiss employees who, after notice and hearing, were found to advocate the overthrow of the Government by unlawful means, or who were unable to explain satisfactorily membership in certain organizations found to have that aim.3 Likewise Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 720, 71 S.Ct. 909, 912, 95 L.Ed. 1317, upheld the right of the city to inquire of its employees as to 'matters that may prove relevant to their fitness and suitability for the public service', including their membership, past and present, in the Communist Party or the Communist Political Association. There it was held that the city had power to discharge employees who refused to file an affidavit disclosing such information to the school authorities.4 9 But in each of these cases it was emphasized that the State must conform to the requirements of due process. In Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, we struck down a so-called 'loyalty oath' because it based employability solely on the fact of membership in certian organizations. We pointed out that membership itself may be innocent and held that the classification of innocent and guilty together was arbitrary.5 This case rests squarely on the proposition that 'constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.' 344 U.S. at page 192, 73 S.Ct. at page 219. 10 Here the Board, in support of its position, contends that only two possible inferences flow from appellant's claim of self-incrimination: (1) that the answering of the question would tend to prove him guilty of a crime in some way connected with his official conduct; or (2) that in order to avoid answering the question he falsely invoked the privilege by stating that the answer would tend to incriminate him, and thus committed perjury. Either inference, it insists, is sufficient to justify the termination of his employment. The Court of Appeals, however, accepted the Committee's determination that the privilege had been properly invoked and it further held that no inference of Communist Party membership could be drawn from such a refusal to testify. It found the statute to impose merely a condition on public employment and affirmed the summary action taken in the case. With this conclusion we cannot agree. 11 At the outset we must condemn the practice of imputing a sinister meaning to the exercise of a person's constitutional right under the Fifth Amendment. The right of an accused person to refuse to testify, which had been in England merely a rule of evidence, was so important to our forefathers that they raised it to the dignity of a constitutional enactment, and it has been recognized as 'one of the most valuable prerogatives of the citizen'. Brown v. Walker, 161 U.S. 591, 610, 16 S.Ct. 644, 652, 40 L.Ed. 819. We have reaffirmed our faith in this principle recently in Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964. In Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, we scored the assumption that those who claim this privilege are either criminals or perjurers. The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. As we pointed out in Ullmann, a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances. See Griswold, The Fifth Amendment Today (1955). 12 With this in mind, we consider the application of § 903. As interpreted and applied by the state courts, it operates to discharge every city employee who invokes the Fifth Amendment. In practical effect the questions asked are taken as confessed and made the basis of the discharge. No consideration is given to such factors as the subject matter of the questions, remoteness of the period to which they are directed, or justification for exercise of the privilege. It matters not whether the plea resulted from mistake, inadvertence or legal advice conscientiously given, whether wisely or unwisely. The heavy hand of the statute falls alike on all who exercise their constitutional privilege, the full enjoyment of which every person is entitled to receive. Such action falls squarely within the prohibition of Wieman v. Updegraff, supra. 13 It is one thing for the city authorities themselves to inquire into Slochower's fitness, but quite another for his discharge to be based entirely on events occurring before a federal committee whose inquiry was announced as not directed at 'the property, affairs, or government of the city, or . . . official conduct of city employees.' In this respect the present case differs materially from Garner, where the city was attempting to elicit information necessary to determine the qualifications of its employees. Here, the Board had possessed the pertinent information for 12 years, and the questions which Professor Slochower refused to answer were admittedly asked for a purpose wholly unrelated to his college functions. On such a record the Board cannot claim that its action was part of a bona fide attempt to gain needed and relevant information. 14 Without attacking Professor Slochower's qualification for his position in any manner, and apparently with full knowledge of the testimony he had given some 12 years before at the state committee hearing, the Board seized upon his claim of privilege before the federal committee and converted it through the use of § 903 into a conclusive presumption of guilt. Since no inference of guilt was possible from the claim before the federal committee, the discharge falls of its own weight as wholly without support. There has not been the 'protection of the individual against arbitrary action' which Mr. Justice Cardozo characterized as the very essence of due process. Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 302, 57 S.Ct. 724, 729, 81 L.Ed. 1093. 15 This is not to say that Slochower has a constitutional right to be an associate professor of German at Brooklyn College. The State has broad powers in the selection and discharge of its employees, and it may be that proper inquiry would show Slochower's continued employment to be inconsistent with a real interest of the State. But there has been no such inquiry here. We hold that the summary dismissal of appellant violates due process of law. 16 The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. 17 Reversed and remanded. 18 Mr. Justice BLACK and Mr. Justice DOUGLAS join the Court's judgment and opinion, but also adhere to the views expressed in their dissents in Adler v. Board of Education of City of New York, and Garner v. Board of Public Works of City of Los Angeles, supra, and to their concurrences in Wieman v. Updegraff, supra. 19 Mr. Justice REED, with whom Mr. Justice BURTON and Mr. Justice MINTON join, dissenting. 20 In reliance upon the Due Process Clause of our Constitution, the Court strikes deep into the authority of New York to protect its local governmental institutions from influences of officials whose conduct does not meet the declared state standards for employment. This New York City Charter, § 903, adopted in 1936 to take effect in 1938, was designed to eliminate from public employment individuals who refused to answer legally authorized inquiries as to the 'official conduct of any officer or employee of the city * * * on the ground that his answer would tend to incriminate him'. Its provisions, as applicable to Professor Slochower and others, have been upheld by the Court of Appeals of New York under multipronged state grounds of attack in the instances where he and other city teachers of New York have sought to bar their removal from their positions.1 21 The sole reliance of the Court for reversal of the New York Court of Appeals is that § 903, as here applied, violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. The Court of Appeals amended its remittitur to show that it held federal due process was not violated. 307 N.Y. 806, 121 N.E.2d 629. In view of the conclusions of the Court of Appeals we need deal only with that problem. The Court of Appeals has exclusive power to determine the reach of its own statute. 22 The Court finds it a denial of due process to discharge an employee merely because he relied upon the Fifth Amendment plea of self-incrimination to avoid answering questions which he would be otherwise required to answer. We assert the contrary—the city does have reasonable ground to require its employees either to give evidence regarding facts of official conduct within their knowledge or to give up the positions they hold. Petitioners never contended that error or inadvertence led them to refuse to answer. Their contention is set out in the margin below.2 Discharges under § 903 do not depend upon any conclusion as to the guilt of the employee of some crime that might be disclosed by his testimony or as to his guilt of perjury, if really there was no prosecution to fear. We disagree with the Court's assumption that § 903 as a practical matter takes the questions asked as confessed. Cities, like other employers, may reasonably conclude that a refusal to furnish appropriate information is enough to justify discharge. Legally authorized bodies have a right to demand that citizens furnish facts pertinent to official inquiries. The duty to respond may be refused for personal protection against prosecution only, but such avoidance of public duty to furnish information can properly be considered to stamp the employee as a person unfit to hold certain official positions. Such a conclusion is reinforced when the claimant for protection has the role of instructor to youth. The fact that the witness has a right to plead the privilege against self-incrimination protects him against prosecution but not against the loss of his job.3 23 The Court may intend merely to hold that since the facts of Slochower's alleged Communist affiliations prior to 1941 were known to the Board before the federal claim, and since the inquiries of the Committee were asked for a purpose unrelated to his college functions, therefore it was a denial of due process to vacate his office. If so, its conclusion is likewise, we think, erroneous. We agree that this case is not like Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317, an attempt to elicit information about professional qualifications. But § 903 is directed at the propriety of employing a man who refuses to give needed information to appropriate public bodies. 24 Consideration of the meaning of 'due process' under the Fourteenth Amendment supports our position that § 903 of the City Charter does not violate that concept. For this Court to hold that state action in the field of its unchallenged powers violates the due process of the Federal Constitution requires far more than mere disagreement with the legal conclusions of state courts. To require, as the Court does, that New York stay its hand in discharging a teacher whom the city deems unworthy to occupy a chair in its Brooklyn College, demands that this Court say, if it follows our prior cases, that the action of the Board in declaring Professor Slochower's position vacant was inconsistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.4 A denial of due process is 'a practice repugnant to the conscience of mankind.'5 Surely no such situation exists here. 25 Those charged with educational duties in a State bear heavy responsibilities. Only a few years ago, in Adler v. Board of Education of City of New York, 342 U.S. 485, 72 S.Ct. 380, 385, 96 L.Ed. 517, we upheld against three dissents the Feinberg Law of New York making ineligible for employment as a teacher in any public school a member of any subversive organization, if he knew its purpose. The argument that the 'fact found bears no relation to the fact presumed', i.e., 'disqualification for employment', was rejected. There also the contention was denial of due process. We said: 26 'A teacher works in a sensitive area in a schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. One's associates, past and present, as well as one's conduct, may properly be considered in determining fitness and loyalty.' Id., 342 U.S. at page 493, 72 S.Ct. at page 385. 27 A great American university has declared that members of its faculty who invoked the Fifth Amendment before committees of Congress were guilty of 'misconduct' though not grave enough to justify dismissal.6 Numerous other colleges and universities have treated the plea of the Fifth Amendment as a justification for dismissal of faculty members.7 When educational institutions themselves feel the impropriety of reserving full disclosure of facts from duly authorized official investigations, can we properly say a city cannot protect itself against such conduct by its teachers? 28 The New York rule is not the patently arbitrary and discriminatory statute of Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. There 'A state servant may have joined a proscribed organization unaware of its activities and purposes.' 344 U.S. at page 190, 73 S.Ct. at page 218. This Court unanimously condemned as arbitrary the requirement of an oath that covered both innocent and knowing membership without distinction. A different situation exists here. Section 903 was included in the Seabury Report to help in the elimination of graft and corruption.8 Numerous employees had refused to testify as to criminal acts on the ground of self-incrimination. New York decided it did not want that kind of public employees. We think New York had that right. We would affirm the judgment of the Court of Appeals. 29 Mr. Justice HARLAN, dissenting. 30 I dissent because I think the Court has misconceived the nature of § 903 as construed and applied by the New York Court of Appeals, and has unduly circumscribed the power of the State to ensure the qualifications of its teachers. 31 As I understand Mr. Justice Clark's opinion, the Court regards § 903 as raising some sort of presumption of guilt from Dr. Slochower's claim of privilege. That is not the way the Court of Appeals construed the statute. On the contrary, that Court said: 'we do not presume, of course, that these petitioners (one of whom was Dr. Slochower) by their action have shown cause to be discharged under the Feinberg Law, L.1949, ch. 360 since no inference of membership in the Communist party may be drawn from the assertion of one's privilege against self incrimination.'1 Since § 903 is inoperative if even incriminating answers are given, it is apparent that it is the exercise of the privilege itself which is the basis for the discharge, quite apart from any inference of guilt. Thus the Court of Appeals could say that 'The assertion of the privilege against self incrimination is equivalent to a resignation'.2 It is also clear that the Board of Education's discharge of Dr. Slochower was on this same premise. The question this case presents, therefore, is not whether any inferences can constitutionally be drawn from a claim of privilege, but whether a State violates due process when it makes a claim of privilege grounds for discharge. 32 In effect, what New York has done is to say that it will not employ teachers who refuse to cooperate with public authorities when asked questions relating to official conduct. Does such a statute bear a reasonable relation to New York's interest in ensuring the qualifications of its teachers? The majority seems to decide that it does not. This Court has already held, however, that a State may properly make knowing membership in an organization dedicated to the overthrow of the Government by force a ground for disqualification from public school teaching. Adler v. Board of Education, of City of New York, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. A requirement that public school teachers shall furnish information as to their past or present membership in the Communist Party is a relevant step in the implementation of such a state policy, and a teacher may be discharged for refusing to comply with that requirement. Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317. Moreover, I think that a State may justifiably consider that teachers who refuse to answer questions concerning their official conduct are no longer qualified for public school teaching, on the ground that their refusal to answer jeopardizes the confidence that the public should have in its school system. On either view of the statute, I think Dr. Slochower's discharge did not violate due process. 33 It makes no difference that the question which Dr. Slochower refused to answer was put to him by a federal rather than a state body. The authority of the subcommittee to ask the question is not controverted. While as an original matter I would be doubtful whether § 903 was intended to apply to federal investigations, the Court of Appeals has ruled otherwise, and its interpretation is binding on us. Dr. Slochower cannot discriminate between forums in deciding whether or not to answer a proper and relevant question, if the State requires him to answer before every lawfully constituted body. Here, the information sought to be elicited from Dr. Slochower could have been considered by state authorities in reviewing Dr. Slochower's qualifications, and the effect of his claim of privilege on the public confidence in its school system was at least as great as it would have been had his refusal to answer been before a state legislative committee. 34 There is some evidence that Dr. Slochower had already answered, before a state committee, the same question which he refused to answer before the congressional subcommittee.3 Even assuming that New York already had the information, I cannot see how that would prevent New York from constitutionally applying § 903 to this claim of privilege. Apart from other considerations, who can tell whether Dr. Slochower would have answered the question the same way as he had before? 35 On this record I would affirm the decision of the Court of Appeals. A different question would be presented under the Privileges and Immunities Clause of the Fourteenth Amendment. But that question was not raised below, and is therefore not open here. Dewey v. City of Des Moines, 173 U.S. 193, 19 S.Ct. 379, 43 L.Ed. 665. 1 The full text of § 903 provides: 'If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.' * (Reporter's Note: A sentence which was reported in the Preliminary Print at p. 554, lines 13—18, was deleted by an order of the Court entered May 28, 1956, 351 U.S. 944, 76 S.Ct. 843.) 2 Thirteen other individuals brought suit for reinstatement after their dismissal for pleading the privilege against self-incrimination in the same federal investigation. We dismissed the appeal of these individuals 'for want of a properly presented federal question.' Daniman v. Board of Education of City of New York, 348 U.S. 933, 75 S.Ct. 355, 99 L.Ed. 732. See Daniman v. Board of Education of City of New York, 307 N.Y. 806, 121 N.E.2d 629, where the New York Court of Appeals declined to amend its remittitur to state that a federal question had been presented and passed on as to these appellants but did so amend its remittitur as to Slochower. 3 Mr. Justice Black and Mr. Justice Douglas dissented. Mr. Justice Frankfurter dissented on grounds of standing and ripeness. 4 Mr. Justice Black and Mr. Justice Douglas dissented. Mr. Justice Frankfurter and Mr. Justice Burton concurred in this aspect of the case, but dissented from other portions of the decision in separate opinions. 5 Mr. Justice Black and Mr. Justice Frankfurter concurred in separate opinions in which Mr. Justice Douglas joined. Mr. Justice Burton concurred in the result. 1 Daniman v. Board of Education of City of New York (Shlakman v. Board of Higher Education of City of New York), 306 N.Y. 532, 119 N.E.2d 737. 'In this court we are all agreed that the Communist party is a continuing conspiracy against our Government. * * * We are also all in agreement that an inquiry into the past or present membership in the Communist party is an inquiry regarding the official conduct of an officer or employee of the City of New York. Loyalty to our Government goes to the very heart of official conduct in service rendered in all branches of Government. * * * Communism is opposed to such loyalty. * * * Internal security affects local as well as National Governments.' Id., 306 N.Y. at pages 540—541, 119 N.E.2d at page 379. The majority decided § 903 was applicable to a 'hearing before a Federal legislative committee' and that this appellant was an employee of the city. Id., 306 N.Y. at page 541, 119 N.E.2d at page 379. 2 Appellant's petition to the Supreme Court of the State of New York stated in pertinent part as follows: '9. Petitioners answered some and refused to answer others of the questions referred to in paragraph 8 on various and numerous grounds, including the ground that the Subcommittee had not jurisdiction to inquire into such matters, the ground that the First Amendment to the Constitution of the United States forbade such inquiry, the ground that the procedures of the Subcommittee violated their rights under the Fifth Amendment to the Constitution of the United States and that they could not be required under the Fifth Amendment to answer such questions, and on other grounds. The Subcommittee acquiesced in the refusal of petitioners to answer such questions.' 3 Cf. Ullmann v. United States, 350 U.S. 422 at 438—439, 76 S.Ct. 497: 'For the history of the privilege establishes not only that it is not to be interpreted literally, but also that its sole concern is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of 'penalties affixed to the criminal acts * * *." 4 Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270; Cf. Twining v. State of New Jersey, 211 U.S. 78, 100, 29 S.Ct. 14, 20, 53 L.Ed. 97. 5 Palko v. State of Connecticut, 302 U.S. 319, 323, 325, 326, 58 S.Ct. 149, 151, 152, 83 L.Ed. 288. Cf. State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463, 67 S.Ct. 374, 376, 91 L.Ed. 422; Adamson v. People of State of California, 332 U.S. 46, 53, 67 S.Ct. 1672, 1676, 91 L.Ed. 1903. 6 42 American Association of University Professors Bulletin 96. Compare The Rights and Responsibilities of Universities and their Faculties, Association of American Universities, March 24, 1953, III: 'As in all acts of association, the professor accepts conventions which become morally binding. Above all, he owes his colleagues in the university complete candor and perfect integrity, precluding any kind of clandestine or conspiratorial activities. He owes euqal candor to the public. If he is called upon to answer for his convictions it is his duty as a citizen to speak out. It is even more definitely his duty as a professor. Refusal to do so, on whatever legal grounds, cannot fail to reflect upon a profession that claims for itself the fullest freedom to speak and the maximum protection of that freedom available in our society. In this respect, invocation of the Fifth Amendment places upon a professor a heavy burden of proof of his fitness to hold a teaching position and lays upon his university an obligation to reexamine his qualifications for membership in its society. '* * * When the powers of legislative inquiry are abused, the remedy does not lie in noncooperation or defiance; it is to be sought through the normal channels of informed public opinion.' 7 42 American Ass'n of University Professors Bulletin 61—94. 8 In the Matter of the Investigation of the Departments of the Government of the City of New York, Final Report by Samuel Seabury, December 27, 1932, pp. 9—10. 1 306 N.Y. 532, 538, 119 N.E.2d 373, 377. 2 Ibid. 3 At the Senate subcommittee hearing, in response to Senator Ferguson's inquiry whether or not Dr. Slochower had 'ever' answered a question concerning Communist Party membership in 1940 or 1941, Dr. Slochower replied: 'Yes, I did answer it.'

23

350 U.S. 537 76 S.Ct. 621 100 L.Ed. 681 INTERNATIONAL HARVESTER CREDIT CORPORATION et al., Appellants,v.Allen J. GOODRICH, Edward H. Best and F. Roberts Blair, Constituting the StateTax Commission of the State of New York. No. 82. Argued Jan. 17, 18, 1956. Decided April 9, 1956. Mr. John Lord O'Brian, Washington, D.C., for appellants. Mr. James O. Moore, Jr., Buffalo, N.Y., for appellees. Mr. Justice BURTON delivered the opinion of the Court. 1 The State of New York imposes a highway use tax upon motor carriers operating heavy vehicles on its public highways. Many such vehicles are purchased and operated under conditional sales agreements, and certain conditional vendors here question the extent to which the State may subordinate the vendors' security interests to the State's lien for taxes owed by the carrier. The vendors question the constitutionality of any grant of priority to the State's lien, over their rights in particular trucks, insofar as the lien is made applicable to taxes based upon the carrier's operation of other trucks within the State, whether before, or during, the time that the carrier has operated the particular trucks within the State. The vendors object, likewise, to any priority for the lien as applied to taxes assessed against the carrier after the vendors have repossessed the particular trucks, even though the taxes are based upon the carrier's operations on the State's highways before such repossession.1 For the reeasons hereafter stated, we sustain the State's priority in each instance. 2 International Harvester Credit Corporation, a Delaware corporation, and Brockway Motor Company, Inc., a New York corporation, as plaintiffs (now appellants), with the members of the State Tax Commission of New York as defendants (now appellees), submitted this controversy to the Supreme Court of the State of New York, Appellate Division, Third Department, on stipulated facts, pursuant to § 546 of the Civil Practice Act of New York. Appellants sought a declaratory judgment that the liens asserted by the State were not superior to the conditional vendors' interests in certain trucks and that Article 21 of the Tax Law was unconstitutional, insofar as it prescribed the priorities to which they objected.2 Appellants also asked that the bonds filed by them to secure payment of the taxes be canceled and returned. 3 With one judge not voting, the Appellate Division decided in favor of appellees, sustaining generally the State's liens and priorities.3 284 App.Div. 604, 132 N.Y.S.2d 511. On appeal, taken as a matter of right, that judgment was affirmed by the Court of Appeals of New York, with one judge dissenting. 308 N.Y. 731, 124 N.E.2d 339. On appeal to this Court, under 28 U.S.C. § 1257(2), 28 U.S.C.A. §§ 1257(2), we noted probable jurisdiction. 350 U.S. 813, 76 S.Ct. 50. 4 The stipulated facts may be summarized as follows: From January 1, 1952, through February 1954, Eastern Cartage and Leasing Co., Inc., here called the 'carrier,' was a domestic corporation owning at least 15 motor vehicles. As a motor carrier it operated these vehicles over the public highways of the State of New York subject to the highway use tax imposed by Article 21 of the Tax Law, supra. That tax was imposed upon the 'carrier' or 'owner,' and those terms did not include the conditional vendor of trucks operated by the motor carrier.4 It was payable with the monthly returns.5 5 In recognition of the administrative difficulties involved in enforcing and collecting this tax, in contrast to a flat rate tax, or one measured by gross receipts, the statute prescribed extensive remedies, as well as penalties, civil and criminal (see § 512 of the Tax Law), to protect the interest of the State.6 The provisions for the State's lien covering the points at issue are as follows: 6 's 506. Payment of tax 7 'The fees, taxes, penalties and interest accruing under this article shall constitute a lien upon all motor vehicles and vehicular units of such carrier. The lien shall attach at the time of operation of any motor vehicle or vehicular unit of such carrier within this state and shall remain effective until the fees, taxes, penalties and interest are paid, or the motor vehicle or vehicular unit is sold for the payment thereof. Such liens shall be paramount to all prior liens or encumbrances of any character and to the rights of any holder of the legal title in or to any such motor vehicle or vehicular unit.' McKinney's N.Y.Laws, Tax Law. 8 From January 1, 1952, through February 1954, the carrier incurred, and failed to pay, highway use taxes of $3,158.77, plus penalties and interest of $539.27 through April 21, 1954. The taxes carried interest at 1% per month. While neither appellant knew anything of these delinquencies until the State asserted them in April 1954, it is also true that neither appellant had inquired of the carrier or of the State as to their possible existence.7 9 In February and March 1953, while the carrier was operating under the Highway Use Tax Act, International Harvester Company, a foreign corporation doing business in New York State, sold two tractors to the carrier for $8,253 each.8 In each such transaction, the carrier executed and delivered to the vendor a conditional sales agreement for $6,541. The agreements were assigned by the vendor to the International Harvester Credit Corporation, one of the appellants herein, and were properly filed in the office of the Clerk of the Town of Rotterdam, Schenectady County, New York. Each truck was operated by the carrier on the public highways of New York State and remained in the carrier's possession and control until repossessed January 26, 1954. The carrier was then delinquent under its sales agreements to the extent of $4,578.79 on each truck, and the vendor bought them in at public sale. It resold one to a purchaser in New York and the other to a purchaser in Massachusetts. 10 Comparable facts relate to the truck sold the carrier by appellant Brockway Motor Company. Its sales price was $7,257; the conditional sales agreement was for $6,757. The repossession took place March 26, 1954, when $5,625 was owed to the vendor. The record shows no disposal of the truck. 11 April 21, 1954, the State asserted its lien on each truck for the entire amount of the highway use tax delinquencies of the carrier, totaling $3,698.04.9 12 There is no dispute as to the amount of the tax due to the State nor of the claim that such sum is due from the carrier.10 There also is no controversy as to the validity of the State's lien against the respective trucks for such part of the tax as is measured by the operation of each on the State's highways. 13 The issue, accordingly, has been narrowed by the parties to the validity of the subordination of the rights of the respective conditional vendors of these trucks to the State's lien for any part of the carrier's delinquent taxes that exceeds the sum determined by the operation of the trucks on the State's highways. To the extent of such excess, the vendors claim that the statutory lien deprives them of property without due process of law in violation of the Fourteenth Amendment to the Federal Constitution. 14 Separate factual considerations are presented by the State's lien (1) for the taxes measured by the carrier's operation of trucks other than the three here in question, and (2) for the taxes measured by the carrier's operation of trucks before its first operation of the respective three trucks in question. The principle which supports the State's priority of lien is, however, the same in both instances. That principle supports also the priority of the State's lien as dating from the time of the carrier's first operation of the respective three trucks within the State. This holds good even though no assessment of the tax was made by the State until after the respective trucks had been repossessed by their conditional vendors. The State's claim of priority for its line depends, in each instance, upon its constitutional right to enforce the collection of all taxes due it from the motor carrier for the latter's use of the highways of New York under a statute giving ample notice of the tax and of the provisions for its collection. 15 There is no doubt that the State may impose and enforce a lien covering all taxes owed to it by a carrier for the privilege of using the State's highways, where such lien applies to vehicles owned by the carrier free and clear of encumbrances. The lien for such taxes may be enforced against any or all of such trucks, regardless of whether the taxes accrued from the carrier's operation of one or the other of such trucks, or even whether they accrued from the carrier's use of the highways before its acquisition and operation of any of the particular trucks subjected to the lien. Likewise, the lien unquestionably could attach to the trucks as of the time of their first use by the carrier within the State. See United States v. State of Alabama, 313 U.S. 274, 280—282, 61 S.Ct. 1011, 1013—1014, 85 L.Ed. 1327. Such liens are simple illustrations of the State's exercise of its prerogative right to impose a statutory lien for delinquent taxes upon the taxpayer's property. See Marshall v. People of State of New York, 254 U.S. 380, 382—384, 41 S.Ct. 143, 144—145, 65 L.Ed. 315. A State is entitled to wide discretion in such matters. 16 The controversy arises here because, for the present purposes, the State treats the three trucks now before us in the same manner as it does the carrier's unencumbered trucks. The vendors, relying upon their conditional sales agreements, deny this right. The State does not dispute the validity of those agreements. The State, however, treats them as security interests rather than as absolute interests. The State emphasizes the action of the vendors in yielding control of the trucks to the carrier thus enabling the carrier to operate them on the State's highways. The burden placed on the highways has been precisely the same as though the carrier had held unencumbered title to the trucks. 17 Looking at the situation from another point of view, New York has an unquestionable right to regulate the use of conditional sales agreements within the State. The prescribed priority of its highway tax liens over the rights of conditional vendors may be regarded, therefore, as in the nature of a supplement to the New York Uniform Conditional Sales Act. McKinney's Consol. N.Y.Laws, c. 41, Personal Property Law, Art. 4. 18 New York subjects each carrier to a reasonably computed tax for the use of its highways and, in order to collect that tax, places a statutory lien upon all motor vehicles operated by the carrier within the State. The carrier here was the beneficial owner and operator of the three trucks during the time it had possession of them. The conditional sales agreements provided the vendors with security for payment of the purchase price of the trucks. As long as the carrier kept up its payments, the possession and control of the trucks were in the carrier and its use of them on the highways had the same effect on those highways as though the trucks had been paid for in full.11 19 The enforcement of this lien rests upon principles known to the law in other connections. A landlord's lien for unpaid rent long has been enforceable against personal property found on the premises in the possession of the tenant, even though the legal title to such personal property may be in a third party who has allowed the tenant to have possession and beneficial use of it. Spencer v. M'Gowen, 13 Wend., N.Y., 256.12 20 The highway use tax is not assessed on the conditional vendor or on the vendor's trucks as such. It is a tax assessed on the carrier and the lien for its collection is imposed on the trucks in the carrier's possession which have been operated by it on New York's highways. The State asserts no personal liability on the part of either of the appellants. The State's claim is limited to its lien as set forth in a statute which was in effect more than a year before the respective appellants sold their trucks to the carrier. While it is not a condition of the validity of the State's lien, it is obvious that vendors of trucks, as well as carriers, derive substantial benefits from the State's costly construction and maintenance of its highways for heavy traffic. The reasonableness of the lien is thereby emphasized. Cases condemning attempts by States to compute one person's tax by reference to the income or activities of another are not persuasive here. The tax here is on the carrier and it is computed with reference to the carrier's own use of the highways. This statutory lien does not destroy the efficacy of conditional sales financing. Practically, it suggests that the conditional vendors secure assurance from their carrier-customers that the latters' highway use taxes are not in arrears. 21 While the State would not, at common law, have a lien to the extent here asserted, that is far from saying that the lien, when imposed by statute, is arbitrary or unreasonable and, therefore, lacking in due process. 22 Justice Cardozo said for this Court in Burnet v. Wells, 289 U.S. 670, 677—678, 53 S.Ct. 761, 763—764, 77 L.Ed. 1439: 23 'The controversy is one as to the boundaries of legislative power. It must be dealt with in a large way, as questions of due process always are, not narrowly or pedantically, in slavery to forms or phrases. 'Taxation is not so much concerned with the refinements of title as it is with actual command over the property taxed—the actual benefit for which the tax is paid.' Corliss v. Bowers, supra (281 U.S. 376), page 378, 50 S.Ct. 336 (74 L.Ed. 916). Cf. Burnet v. Guggenheim, supra (288 U.S. 280), page 283, 53 S.Ct. 369 (77 L.Ed. 748). Refinements of title have at times supplied the rule when the question has been one of construction and nothing more, a question as to the meaning of a taxing act to be read in favor of the taxpayer. Refinements of title are without controlling force when a statute, unmistakable in meaning, is assailed by a taxpayer as overpassing the bounds of reason, an exercise by the lawmakers of arbitrary power. In such circumstances the question is no longer whether the concept of ownership reflected in the statute is to be squared with the concept embodied, more or less vaguely, in common-law traditions. The question is whether it is one that an enlightened legislator might act upon without affront to justice. Even administrative convenience, the practical necessities of an efficient system of taxation, will have heed and recognition within reasonable limits.' (Emphasis supplied.) 24 There is little doubt that if this tax on the carrier were required to be computed at a flat rate, or measured by the gross receipts of the carrier from its use of the State's highways, that the liens here asserted on all vehicles in the carrier's fleet of trucks (although subject to conditional sales) would be valid as a reasonable means of enforcing such an unallocable tax. The State has no less a constitutional right to prescribe and enforce its lien where, as here, the tax on the carrier is allocable because computed in close proportion to the actual burden placed on the highways by the respective trucks operated by the carrier. In either case, the tax is owed by the carrier and the need for an effective lien to enforce it is all the more necessary where, as here, the tax cannot be computed or readily collected in advance. 25 The judgment of the Court of Appeals of the State of New York, accordingly, is affirmed. 26 Affirmed. 27 Mr. Justice BLACK concurs in the result. 28 Mr. Justice HARLAN took no part in the consideration or decision of this case. 29 Mr. Justice FRANKFURTER, with whom Mr. Justice DOUGLAS concurs, dissenting. 30 So far as the United States Constitution limits them, the States have the amplest scope in imposing highway taxes and devising relevant means for enforcing them. Within the vast range of its discretionary taxing power, a State may provide that a creditor who adds to the corpus of equipment used by his debtor on the State's highways cannot be heard to complain if his equity in such equipment is subordinated not only to tax liens on that specific equipment, but also, as is true of the New York State legislation, for tax liens incurred by all the debtor's vehicles for the entire period during which the creditor has enabled his debtor to have added vehicles on the road. As a practical matter, the carrier's creditor may well have adequate means of protecting himself regarding the incidence of highway taxes and their default during the whole of the period that such creditor helped to enhance the totality of vehicles used by the carrier. 31 We therefore agree with the Court that taxes incurred by all the vehicles in Eastern's service during the period that the three International Harvester tractors were on the road may be collected by way of enforcing tax liens for such total taxes against the three International tractors. It is immaterial that these three tractors were held under a credit arrangement whereby International Harvester reserved interest in them by way of security for payment of their purchase price. 32 A very different situation is presented for such part of the taxes as are sought to be collected by way of lien out of these International Harvester tractors for the period antedating their conditional sale to Eastern. 33 Property is included within the triad of interests protected by the Due Process Clause of the Fourteenth Amendment—'nor shall any State deprive any person of life, liberty, or property, without due process of law.' When one man's property is taken and given to another or, as in this case, is taken to satisfy the debts of another, a justifying public purpose must meet the requirements of the Due Process Clause. See Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 79—80, 57 S.Ct. 364, 375—376, 81 L.Ed. 510. 34 It is one thing for a creditor, who has enabled his debtor to hold himself out as having dominion over property which the creditor has placed within his debtor's control, to suffer for debts incurred by his debtor to third persons. It is quite another thing to saddle such creditor's property with satisfaction of prior obligation to a third person when the creditor had no means whatever of safeguarding himself against the enforcement of such third-party indebtedness. Nor does it matter that the third party is the State. 35 In the situation before us, International Harvester had no means of protecting itself against highway taxes incurred by Eastern prior to the time that it put its three tractors into Eastern's hands. It is admitted that under New York law in force at the time of the conditional sale of these tractors, International Harvester could not possibly have protected itself against the losses to which it is now subjected except by avoiding such sales. It could not possibly have ascertained the tax liabilities of its conditional vendee prior to the credit arrangement in the sale of these tractors. It could not have informed itself by examining the tax returns of its vendee. New York made it a misdemeanor for any state official to divulge such information. N.Y.Tax Law, Art. 21, § 514. Thus, there is no connection whatever between the undoubted property interest that International Harvester had in the three tractors and the extent of the lien that the State sought to foreclose in them. When one considers the important role played in our economy by credit sales, it will hardly do for the law to deem such transactions extrahazardous and subject such creditors to an insurer's risks. 36 We would therefore remand the case to the New York courts in order to restrict the enforcible lien in appellant's tractors to the highway taxes incurred by Eastern for the period that appellant's vehicles were in Eastern's service. 1 We do not have before us the validity of the attempted subordination of a conditional vendor's security interest in a truck sold to and operated by a carrier where the tax is measured by any use of the highways by the carrier after the truck has been repossessed by its vendor. Such a claim was made in this case but it was abandoned by the State. 2 Article 21 of the Tax Law, effective October 1, 1951, imposed a tax for the privilege of operating on the highways of New York motor vehicles having a gross weight of over 18,000 pounds each. McKinney's Consol.N.Y.Laws, c. 60, §§ 501, subd. 2, and 503. The tax was computed on a graduated scale beginning at six mills per mile for vehicles of between 18,001 and 20,000 pounds. The scale rose to 35 mills for trucks weighing between 74,001 and 76,000 pounds, with an additional two mills per ton and fraction thereof above that weight. The tax was determined by multiplying the number of miles operated over the highways of the State by the rate for the appropriate weight group. Id., § 503. 3 The lien was not upheld as to any taxes which accrued after repossession of the trucks. 4 'Such tax shall be upon the carrier except that where the carrier is not the owner of such vehicular unit, the tax shall be a joint and several liability upon both.' Tax Law, § 503. And see the following interpretation of the above sentence by the Attorney General of New York which we accept: 'In my opinion, the statute does not intend the inclusion of 'a conditional vendor' in the word 'owner.' The joint and several liability imposed upon an owner other than the carrier is designed to cover those who lawfully place the use and control of vehicles in the hands of others for operation upon the highways under circumstances and arrangements which do not look to divestiture of their own proprietary interests. A conditional vendor, on the other hand, retains legal title as a special interest, protecting the unpaid purchase price of the vehicle. The transaction looks to defeasance of all his interest if completed in accordance with its terms. 'I conclude that a conditional vendor is not an 'owner' subjected to personal liability for the highway use tax as such.' Rep.Atty.Gen.N.Y., Op., 219, 220 (1954). "Carrier' shall include any person having the lawful use or control, or the right to the use or control of any motor vehicle.' Tax Law, § 501, subd. 5. 5 Tax Law, §§ 505, 506. 6 The Legislature adopted the weight-distance principle of taxation as a substitute for the State's former system of fuel taxes and license fees. It rejected proposals imposing flat fees or measuring the tax by gross receipts. N.Y.Leg.Doc. No. 67 (1951) 65—80. 'The legislature hereby finds and declares that the operation of heavy motor vehicles upon the highways of this state greatly increases wear and damage on such highways; that there is a direct relationship between the weight of the vehicle using such highways and the damage done to them; that the period of usefulness of such highways is shortened by such use; that the effect of such use is to create and augment hazards to pedestrians and other traffic and to impose on the state a heavier financial burden for highway construction, maintenance and policing than does the operation of smaller vehicles; that the provisions of this article are therefore necessary and are hereby enacted to distribute more equitably this financial burden and to compensate the state in part for the privilege granted to such heavy vehicles of using the highways of the state and for the cost of administering state traffic regulations.' Laws 1951, c. 74, § 1, McKinney's N.Y.Laws, Tax Law, § 501, Historical Note. 7 During the time material here, § 514 of the Tax Law forbade the disclosure by the State of information concerning such tax delinquencies and made it a misdemeanor to divulge information as to the tax returns. Those restrictions have now been relaxed. Tax Law, Laws 1955, c. 165. 8 The 'tractors' were motor vehicles subject to Article 21. They constituted the automotive portion of tractor-trailers and are referred to in this opinion as trucks. 9 The lien sustained against International was for $3,409.78, with interest on $2,884.61 at 1% per month from April 21, 1954. That against Brockway was for $3,698.04, with like interest on $3,158.77 from the same date. The trucks in New York State have been released on bond. As to the truck in Massachusetts, the State has asserted a lien against the proceeds of its resale. 10 The constitutionality of the tax, as distinguished from the constitutionality of the liens prescribed for its collection, is not now contested. Mid-States Freight Lines, Inc., v. Bates, 279 App.Div. 451, 111 N.Y.S.2d 578, affirmed without opinion 304 N.Y. 700, 107 N.E.2d 603, certiorari denied 345 U.S. 908, 73 S.Ct. 648, 97 L.Ed. 1344. See also, Capitol Greyhound Lines v. Brice, 339 U.S. 542, 70 S.Ct. 806, 94 L.Ed. 1053. 11 'The parties to a conditional sale have divided property interests in the goods. The buyer is the beneficial and substantial owner, with such attributes of ownership as possession, use and control, and has his equity of redemption sedulously guarded by the law. The seller, on the other hand, reserves title to the goods solely as security for payment or performance by the buyer. Essentially a conditional sale is only a credit device. Its plain and obvious purpose is the same as a purchase money chattel mortgage despite technical or theoretical differences between the two forms of security.' Schnitzer v. Fruehauf Trailer Co., 283 App.Div. 421, 431, 128 N.Y.S.2d 242, 253, affirmed without opinion, 307 N.Y. 876, 122 N.E.2d 754; 2 Williston on Sales (rev. ed. 1948) § 330 et seq. 12 See also, as to the innkeeper's lien, Waters & Co. v. Gerard, 189 N.Y. 302, 82 N.E. 143, 24 L.R.A.,N.S., 958, and as to the agister's lien, Corning v. Ashley, 51 Hun 483, 4 N.Y.S. 255, affirmed without opinion 121 N.Y. 700, 24 N.E. 1100. And see Hersee v. Porter, 100 N.Y. 403, 3 N.E. 338.

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350 U.S. 532 76 S.Ct. 617 100 L.Ed. 676 R. V. ARCHAWSKI et al., Petitioners,v.Basil HANIOTI, Etc. No. 351. Argued March 5, 1956. Decided April 9, 1956. Mr. Harry D. Graham, New York City, for petitioners. Mr. Israel Convisser, Washington, D.C., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 The sole question in the case is whether the cause of action alleged comes within the admiralty jurisdiction of the District Court. The District Court held that this was an action on a maritime contract, within the admiralty jurisdiction, 129 F.Supp. 410. The Court of Appeals reversed, holding that the suit was in the nature of the old common law indebitatus assumpsit for money had and received, based upon the wrongful withholding of money. 223 F.2d 406. The case is here on a petition for certiorari which we granted, 350 U.S. 872, 76 S.Ct. 120, because of the seeming conflict of that ruling with Krauss Bros. Lumber Co. v. Dimon S.S. Corp., 290 U.S. 117, 1241, 54 S.Ct. 105, 107, 78 L.Ed. 216. 2 The libel alleges that respondent, doing business in his own and in various trade names, owned and controlled a passenger vessel, known as the City of Athens, and held out that vessel as a common carrier of passengers for hire, and that petitioners paid moneys for passage upon the vessel, scheduled for July 15, 1947, to Europe. A contract for the transportation of passengers is a maritime contract within admiralty jurisdiction.2 The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397. The allegations so far mentioned are plainly sufficient to establish such a contract. The libel goes on to allege a breach of that contract through an abandonment of the voyage. If this were all, it would be plain that petitioners stated a claim for breach of a maritime contract. But the libel further alleges that the sums paid by petitioners as passage money were 'wrongfully and deliberately' applied by respondent to his own use and benefit 'in reckless disregard of his obligations to refund the same' and that respondent 'has secreted himself away and manipulated his assets * * * for the purpose of defrauding' petitioners. Then follow allegations of certain fraudulent acts and transactions. 3 The allegations of wrongfulness and fraud do not alter the essential character of the libel. For the ancient admiralty teaching is that, 'The rules of pleading in the admiralty are exceedingly simple and free from technical requirements.' Dupont de Nemours & Co. v. Vance, 19 How. 162, 171—172, 15 L.Ed. 584. And see 2 Benedict, American Admiralty (6th ed. 1940), §§ 223, 237. Though these particular allegations of the libel sound in fraud or in the wrongful withholding of moneys, it is plain in the context that the obligation to pay the moneys arose because of a breach of the contract to transport passengers. Lawyers speak of the obligation in terms of indebitatus assumpsit, a concept whose tortuous development gave expression to 'the ethical character of the law.' See Ames, The History of Assumpsit, 2 Harv.L.Rev. 1, 53, 58 (1888). As Mr. Justice Holmes once put it, 'An obligation to pay money generally is enforced by an action of assumpsit, and to that extent is referred to a contract, even though it be one existing only by fiction of law.' Thomas v. Matthiessen, 232 U.S. 221, 235, 34 S.Ct. 312, 314, 58 L.Ed. 577. 4 The fiction sometimes distorted the law. A line of authorities emerged to the effect that admiralty had no jurisdiction to grant relief in such cases 'because the implied promise to repay the moneys which cannot in good conscience be retained—necessary to support the action for money had and received—is not a maritime contract.'3 United Transportation & Lighterage Co. v. New York & B.T. Line, 2 Cir., 185 F. 386, 391. Yet that duty to pay is often referable, as here, to the breach of a maritime contract. As Mr. Justice Stone said in Krauss Bros. Lumber Co. v. Dimon S.S. Corp., supra, 290 U.S. 124, 54 S.Ct. 107: 5 '* * * Even under the common law form of action for money had and received there could be no recovery without proof of the breach of the contract involved in demanding the payment, and the basis of recovery there, as in admiralty, is the violation of some term of the contract of affreightment, whether by failure to carry or by exaction of freight which the contract did not authorize.' 6 The truth is that in a case such as the present one there is neither an actual promise to repay the passage moneys nor a second contract. The problem is to prevent unjust enrichment from a maritime contract. See Morrison, The Remedial Powers of the Admiralty, 43 Yale L.J. 1, 27 (1933). A court that prevents a maritime contract from being exploited in that way does not reach beyond the domain of maritime affairs. We conclude that, so long as the claim asserted arises out of a maritime contract, the admiralty court has jurisdiction over it. 7 The philosophy of indebitatus assumpsit is, indeed, not wholly foreign to admiralty. Analogous conceptions of rights based on quasi-contract are found in admiralty. One who saves property at sea has the right to an award of salvage, regardless of any agreement between him and the owner. See Mason v. Ship Blaireau, 2 Cranch 240, 266, 2 L.Ed. 266; The Sabine, 101 U.S. 384, 390, 25 L.Ed. 982; 1 Benedict, supra, § 117 et seq. Likewise, where cargo is jettisoned, the owner becomes entitled to a contribution in general average from the owners of other cargo which was saved without the aid of any agreement. See Barnard v. Adams, 10 How. 270, 303—304, 13 L.Ed. 417; Star of Hope, 9 Wall. 203, 228—230, 19 L.Ed. 638; 1 Benedict, supra, § 98. Other examples could be given. See Chandler, Quasi Contractual Relief in Admiralty, 27 Mich.L.Rev. 23 (1928). Rights which admiralty recognizes as serving the ends of justice are often indistinguishable from ordinary quasi-contractual rights created to prevent unjust enrichment. How far the concept of quasi-contracts may be applied in admiralty it is unnecessary to decide. It is sufficient this day to hold that admiralty has jurisdiction, even where the libel reads like indebitatus assumpsit at common law, provided that the unjust enrichment arose as a result of the breach of a maritime contract. Such is the case here. 8 The judgment is reversed and the case is remanded to the Court of Appeals for proceedings in conformity with this opinion. 9 Reversed and remanded. 1 There is also an apparent conflict with Sword Line, Inc., v. United States, 228 F.2d 344, 346, decided, after we granted certiorari, by a different panel of the Second Circuit from the one which sat in the instant case. 2 The Court in New Jersey Steam Navigation Company v. Merchants' Bank, 6 How. 344, 392, 12 L.Ed. 465, stated that in determining admiralty jurisdiction the inquiry is 'into the nature and subject-matter of the contract,—whether it was a maritime contract, and the service a maritime service, to be performed upon the sea, or upon waters within the ebb and flow of the tide. And, again, whether the service was to be substantially performed upon the sea, or tide-waters, although it had commenced and had terminated beyond the reach of the tide; if it was, then jurisdiction has always been maintained.' 3 And see Israel v. Moore & McCormack Co., D.C., 295 F. 919; Home Ins. Co. of New York v. Merchants' Transp. Co., 9 Cir., 16 F.2d 372; Silva v. Bankers Commercial Corp., 2 Cir., 163 F.2d 602.

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100 L.Ed. 941 76 S.Ct. 559 351 U.S. 62 UNITED MINE WORKERS OF AMERICA et al., Petitioners,v.ARKANSAS OAK FLOORING COMPANY. No. 227. Argued Jan. 23, 1956. Decided April 23, 1956. Rehearing Denied June 4, 1956. See 351 U.S. 975, 76 S.Ct. 1024. Messrs.Crampton Harris, Birmingham, Ala., James I. McCain, New Orleans, La., Yelverton Cowherd and Alfred D. Treherne, Washington, D.C., for petitioners. Messrs. John L. Pitts and Grove Stafford, Alexandria, La., Richard C. Keenan, New Orleans, La., for respondent. Mr. Justice BURTON delivered th opinion of the Court. 1 The question before us is whether, in the case of an employer subject to the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq., a state court may enjoin peaceful picketing of the employer's premises, undertaken by its employees and their union for the purpose of obtaining recognition of that union as the employees' bargaining representative, when the union holds cards authorizing such representation concededly signed by a majority of the employees eligible to be represented, but has filed none of the data or affidavits described in § 9(f), (g) and (h) of that Act, as amended.1 For the reasons hereafter stated, our answer is in the negative. 2 In 1953, the respondent, Arkansas Oak Flooring Company, a Delaware corporation with its main office in Pine Bluff, Arkansas, owned and operated a sawmill and flooring plant in Alexandria, Louisiana. The company was there engaged in interstate commerce and subject to the National Labor Relations Act, as amended. At the same time, District 50, United Mine Workers of America, here called the 'union,' was an unincorporated labor organization which undertook to organize the company's eligible employees at its Alexandria plant. The union, however, did not file with the Secretary of Labor any of the financial or organizational data described in § 9(f) and (g) of the National Labor Relations Act, as amended, nor, with the National Labor Relations Board, any of the non-Communist affidavits described in § 9(h) of that Act. It contended that the company, nevertheless, should recognize it as the collective-bargaining representative of the Alenandria plant employees because it was authorized by more than a majority of such employees to represent them. 3 Although for four years there had been no labor organization representing the plant employees, this union, by February 24, 1954, held applications for membership from 174 of the 225 eligible employees. Such applicants had elected officers and stewards and had authorized the union organizer to request the company to recognize the union as their collective-bargaining representative. On February 24, the organizer, accordingly, presented that request to the assistant superintendent of the plant. The latter, in the absence of any higher officer of the company, replied that the union was not recognized either by the National Labor Relations Board or by him, and that, if negotiations were desired, the union organizer should call the company's office at Pine Bluff. 4 On March 1, the petitioning employees struck for recognition of the union and set up a peaceful picket line of three employees. Two were placed in front of the plant and one at the side. They carried signs stating 'This Plant is on Strike' or 'We want Recognition, District 50 UMWA.' 5 On March 2, respondent sought a restraining order and injunction in the Ninth Judicial District for the Parish of Rapides, Louisiana. That court promptly issued an order restraining the above-described picketing by 11 named employees, the union and its organizer. The order was obeyed but the strike continued. On March 12 and 15, evidence was introduced, including, by that date, 179 applications for membership in the union, each of which authorized the union to represent the signer in negotiations and in the making of agreements as to wages, hours and conditions of work. The parties to the proceeding stipulated that each of those applications was signed by an employee of respondent. In the face of that record, the court nevertheless converted its restraining order into a temporary injunction and the defendants, who are the petitioners herein, appealed to the Supreme Court of Louisiana. While that appeal was pending, the trial court, on the same record, made its injunction permanent. Petitioners appealed that decision to the Supreme Court of Louisiana and the two appeals were consolidated. There the permanent injunction was sustained, one judge concurring specially and another dissenting, in part, on an issue not material here. 227 La. 1109, 81 So.2d 413. 6 The State Supreme Court's ground for sustaining the injunction was that the union, which sought to be recognized, had failed to file with the Secretary of Labor the financial and other data required by § 9(f) and (g), and had failed to file with the Labor Board the non-Communist affidavits required by § 9(h). The court held that the union, by failing to comply with § 9(f), (g) and (h), had precluded its certification by the Board, and that, accordingly, neither the employees nor the union had a right to picket the plant to induce the company to recognize the noncomplying union. The court, agreeing with respondent's theory, took the position that such recognition would be illgal and that picketing to secure it, therefore, was subject to restraint by a state court.2 Rehearing was denied. 7 Because of the significance of that decision in relation to the National Labor Relations Act, as amended, we granted certiorari and invited the Solicitor General to file a brief setting forth the views of the National Labor Relations Board. 350 U.S. 860, 76 S.Ct. 102. Such a brief was filed favoring a reversal. 8 There is no doubt that, if the union had filed the data and affidavits required by § 9(f), (g) and (h), the complaint, under the circumstances of this case, would have had to be dismissed by the state court for lack of jurisdiction, and that, if an injunction were sought through the National Labor Relations Board, the request would have had to be denied on the merits. Under those circumstances, the Board would have had jurisdiction of the issue to the exclusion of the state court. Garner v. Teamsters, etc., Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, and see Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546. In the absence of any bona fide dispute as to the existence of the required majority of eligible employees, the employer's denial of recognition of the union would have violated § 8(a)(5) of the Act.3 9 The issue before us thus turns upon the effect of the union's choice not to file the information and affidavits described in § 9(f), (g) and (h). The state court misconceived that effect. The union's failure to file was not a confession of guilt of anything. It was merely a choice not to make public certain information. The Act prescribes no fine or penalty, in the ordinary sense, for failure to file the specified data and affidavits. The Act does not even direct that they be filed. The nearest to such a direction in the Act is the statement, in § 9(g), that it shall be 'the obligation' of all labor organizations to file annual reports 'bringing up to date the information required to be supplied in the initial filing by subsection (f)(A) of this section, and to file with the Secretary of Labor and furnish to its members annually financial reports in the form and manner prescribed in subsection (f) (B).' However, neither subsection (f)(A) nor (f)(B) of § 9 requires any initial filing to be made. Each merely describes what is required to be filed in the event that a labor organization elects to seek the advantages offered by subsection (f). 10 Congress seeks to induce labor organizations to file the described data and affidavits by making various benefits of the Act strictly contingent upon such filing. See New Jersey Carpet Mills, Inc., 92 N.L.R.B. 604, 610. In particular, Congress makes the services of the Labor Board available to labor organizations only upon their filing of the specified data and affidavits.4 By its noncompliance with § 9(f), (g) and (h), a union does not exempt itself from other applicable provisions of the Act.5 11 What, then, is the precise status of a labor organization that elects not to file some or all of the data or affidavits in question? It is significant that the effect of noncompliance is the same whether one or more of the filings are omitted. Accordingly, it simplifies the issue to assume a situation where a union has filed the non-Communist affidavits specified in § 9(h), but has chosen not to disclose the information called for by § 9(f)(A)(2) and (3) as to the salaries of its officers, or the manner in which they have been elected. There is no provision stating that, under those circumstances, the union may not represent an appropriate unit of employees if a majority of those employees give it authority so to do. Likewise, there is no statement precluding their employer from voluntarily recognizing such a noncomplying union as their bargaining representative. Section 8(a)(5)6 declares it to be an unfair labor practice for an employer 'to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).' (Emphasis supplied.) Section 9(a),7 which deals expressly with employee representation, says nothing as to how the employees' representative shall be chosen. See Lebanon Steel Foundry v. National Labor Relations Board, 76 U.S.App.D.C. 100, 103, 130 F.2d 404, 407. It does not make it a condition that the representative shall have complied with § 9(f), (g) or (h), or shall be certified by the Board, or even by eligible for such certification.8 12 Likewise, § 7, which deals with the employees' rights to self-organization and representation, makes no reference to any need that the employees' chosen representative must have complied with § 9(f), (g) or (h).9 Section 7 provides— 13 '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 except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).' 61 Stat. 140, 29 U.S.C. § 157, 29 U.S.C.A. § 157.10 14 Subsections (f), (g) and (h) of § 9 merely describe advantages that may be gained by compliance with their conditions. The very specificity of the advantages to be gained and the express provision for the loss of these advantages imply that no consequences other than those so listed shall result from noncompliance.11 15 The noncompliance of the union with § 9(f), (g) and (h) in the instant case precludes any right of the union to seek certification of its status by the Labor Board.12 Such elimination of the Board does not, however, eliminate the applicability of the National Labor Relations Act, as amended, and does not settle the issue as to the right of the state court to enjoin the employees and their union from peacefully picketing the employer's plant for the purpose of securing recognition. 16 The industrial relations between the company and its employees nonetheless affect interstate commerce and come within the field occupied by the National Labor Relations Act, as amended. The Labor Board is but an agency through which Congress had authorized certain industrial relations to be supervised and enforced. The Act goes further. The instant employer, employees and union are controlled by its applicable provisions and all courts, state as well as federal, are bound by them. 17 Section 7 recognizes the right of the instant employees' to bargain collectively through representatives of their own choosing' and leaves open the manner of choosing such representatives when certification does not apply. The employees have exercised that right through the action of substantially more than a majority of them authorizing the instant union to represent them. 18 Section 9(a) provides that representatives 'designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: * * *.' That fits this situation precisely. It does not require the designated labor organization to disclose the salaries of its officers, or even to file non-Communist affidavits. 19 Under those sections and by virtue of the conceded majority designation of the union, the employer is obligated to recognize the designated union. Upon the employer's refusal to do so, the union, because of its noncompliance with s 9(f), (g) and (h), cannot resort to the Labor Board. It can, however, take other lawful action such as that engaged in here. 20 The company can, if it so wishes, lawfully recognize the union as the employees' representative. That being so, there is no reason why the employees, and their union under their authorization, may not, under § 13, strike,13 and, under § 7, peacefully picket the premises of their employer to induce it thus to recognize their chosen representative. See West Tex. Utilities Co. v. National Labor Relations Board, 87 U.S.App.D.C. 179, 185, 184 F.2d 233, 239, and the other cases cited in note 6, supra.14 21 Such being the case, the state court is governed by the federal law which has been applied to industrial relations, like these, affecting interstate commerce and the state court erred in enjoining the peaceful picketing here practiced. A 'State may not prohibit the exercise of rights which the federal Acts protect.' Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 474, 75 S.Ct. 480, 484, 99 L.Ed. 546, and see Garner v. Teamsters Union, 346 U.S. 485, 494, 74 S.Ct. 161, 167, 168, 98 L.Ed. 228. 22 The judgment of the Supreme Court of Louisiana, accordingly, is reversed and the case is remanded to it for further proceedings not inconsistent with this opinion. 23 Reversed and remanded. 24 Mr. Justice HARLAN took no part in the consideration or decision of this case. 25 Mr. Justice FRANKFURTER (dissenting). 26 Although my doubts are not shared by others, they have not been overcome, and the nature of the problem raised by this case makes it not inappropriate to express them. 27 The problem is the recurring difficulty of determining when a federal enactment bars the exercise of what otherwise would clearly be within the scope of a State's lawmaking power. There is, of course, no difficulty when Congress explicitly displaces state power. The perplexity arises in a situation like the present, where such displacement by the controlling federal power is attributed to implications or radiations of a federal statute. 28 The various aspects in which this problem comes before the Court are seldom easy of solution. Decisions ultimately depend on judgment in balancing overriding considerations making for the requirement of an exclusive nation-wide regime in a particular field of legal control and respect for the allowable area within which the forty-eight States may enforce their diverse notions of policy. The Court has heretofore adverted to the uncertainties in the accommodation of these interests of the Nation and the States in regard to industrial relations affecting interstate commerce uncertainties inevitable in the present state of federal legislation. 29 Proper accommodation is dependent on an empiric process, on case-to-case determinations. Abstract propositions and unquestioned generalities do not furnish answers. 30 In this case, the Court concludes that Louisiana law must yield to the dominance of the National Labor Relations Act. Presumably, what Louisiana has decreed in the judgment now reversed would be within Louisiana's power were it not for the argumentatively derived withdrawal of that power by the National Labor Relations Act, as amended. Over the years, the Court has found such withdrawal of state power from reasonable implications of what Congress wrote in the National Labor Relations Act in some cases and not in others. Withdrawal has been found to exist in at least two types of situations: (1) where state law interferes with federal rights conferred on employees by § 7 of the National Labor Relations Act, e.g., Hill v. State of Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782; (2) where state law makes inroads on the primary jurisdiction with which Congress has invested the National Labor Relations Board, e.g., Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546. Here we are not concerned with the Board's primary jurisdiction. The issue is whether Louisiana, by enjoining, according to its law, a strike calculated to coerce respondent to bargain with a union which has not complied with the non-Communist and other reporting provisions, § 9(f), (g) and (h) of the Taft-Hartley Act, interferes with the protection afforded by § 7 of that Act, where that union may represent a majority of employees. 31 Section 7 grants employees the federal right to engage in concerted activities in furtherance of collective bargaining. A strike accompanied by peaceful picketing is a typical expression of such authorized concerted activity. Instances of special situations that are clearly outside of this protection are (1) where the aspect that the strike action takes constitutes a union unfair labor practice interdicted by the Taft-Hartley Act, or (2) where the strike is in violation of the federal criminal law. See Southern S.S. Co. v. National Labor Relations Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246. It would be self-contradictory for federal law to protect conduct which federal law brands as illegal. That is not this situation. A non-complying union, such as the petitioner, however vigorously it may assert non-compliance as a matter of principle, is not under condemnation of illegality by the Taft-Hartley Act, or any other federal law, if it employs economic pressure to achieve its goal. The explicit consequence which that Act attaches to non-compliance is that such a union is denied the advantages of the National Labor Relations Board—it cannot utilize that Board's machinery to obtain certification as the bargaining representative or to secure redress against unfair labor practices by an employer. 32 The policy of § 9 is that of Congress and the wisdom of the policy is not our concern. But just as all fair implications must be given to § 7, so it is equally incumbent to give to the scope of the non-Communist affidavit and other reporting requirements of § 9 the reasonable direction of their meaning and purpose. So far as its own law-enforcement machinery for protecting the interests of employees is concerned, Congress designed to hamper non-conforming unions and to discriminate against them by denying them rights deemed of the utmost importance to trade unions. This being so, I find it rather difficult to conclude that, while visiting such consequences upon a non-conforming union in the federal domain of law enforcement, the Congress has impliedly withdrawn from the States the power to regulate such a union. In balancing these considerations, the weight of my judgment tips in favor of not finding in § 7 of the Taft-Hartley Act an implied limitation upon power exercised by Louisiana in the circumstances of this case. 1 'Sec. 9. (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: * * *. '(f) No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b), of section 10, unless such labor organization and any national or international labor organization of which such labor organization is an affiliate or constituent unit (A) shall have prior thereto filed with the Secretary of Labor copies of its constitution and bylaws and a report, in such form as the Secretary may prescribe, showing— '(1) the name of such labor organization and the address of its principal place of business; '(2) the names, titles, and compensation and allowances of its three principal officers and of any of its other officers or agents whose aggregate compensation and allowances for the preceding year exceeded $5,000, and the amount of the compensation and allowances paid to each such officer or agent during such year; '(3) the manner in which the officers and agents referred to in clause (2) were elected, appointed, or otherwise selected; '(4) the initiation fee or fees which new members are required to pay on becoming members of such labor organization; '(5) the regular dues or fees which members are required to pay in order to remain members in good standing of such labor organization; '(6) a detailed statement of, or reference to provisions of its constitution and bylaws showing the procedure followed with respect to, (a) qualification for or restrictions on membership, (b) election of officers and stewards, (c) calling of regular and special meetings, (d) levying of assessments, (e) imposition of fines, (f) authorization for bargaining demands, (g) ratification of contract terms, (h) authorization for strikes, (i) authorization for disbursement of union funds, (j) audit of union financial transactions, (k) participation in insurance or other benefit plans, and (l) expulsion of members and the grounds therefor; 'and (B) can show that prior thereto it has— '(1) filed with the Secretary of Labor, in such form as the Secretary may prescribe, a report showing all of (a) its receipts of any kind and the sources of such receipts, (b) its total assets and liabilities as of the end of its last fiscal year, (c) the disbursements made by it during such fiscal year, including the purposes for which made; and '(2) furnished to all of the members of such labor organization copies of the financial report required by paragraph (1) hereof to be filed with the Secretary of Labor. '(g) It shall be the obligation of all labor organizations to file annually with the Secretary of Labor, in such form as the Secretary of Labor may prescribe, reports bringing up to date the information required to be supplied in the initial filing by subsection (f)(A) of this section, and to file with the Secretary of Labor and furnish to its members annually financial reports in the form and manner prescribed in subsection (f)(B). No labor organization shall be eligible for certification under this section as the representative of any employees, and no complaint shall issue under section 10 with respect to a charge filed by a labor organization unless it can show that it and any national or international labor organization of which it is an affiliate or constituent unit has complied with its obligation under this subsection. '(h) No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 10, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelve-month period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods. The provisions of section 35A of the Criminal Code shall be applicable in respect to such affidavits.' 61 Stat. 143, 145—146, 65 Stat. 602, 29 U.S.C. § 159(a), (f), (g) and (h), 29 U.S.C.A. § 159(a, f—h). 2 Respondent also had sought the injunction on the alternative ground that the request for recognition of the union was being made in the absence of a selection of the union by the majority of respondent's employees. The Supreme Court of Louisiana did not pass upon this contention. The record upon which the temporary and the permanent injunctions were granted contained concededly genuine applications for union membership and authorizations of representation from 179 of the 225 eligible employees. Accordingly, we do not now consider the questions that would have been presented if the union or the pickets had represented less than a majority of the eligible employees, or if there had been a bona fide dispute as to the existence of authorization from a majority of the eligible employees. 3 'Sec. 8. (a) It shall be an unfair labor practice for an employer— '(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).' 61 Stat. 140, 141, 29 U.S.C. § 158(a)(5), 29 U.S.C.A. § 158(a)(5). For the material portion of § 9(a), see note 1, supra. 4 Congress seeks 'to stop the use of the Labor Board' by noncomplying unions. National Labor Relations Board v. Dant, 344 U.S. 375, 385, 73 S.Ct. 375, 381, 97 L.Ed. 407. For example, the following benefits are available to labor organizations only upon their voluntary compliance with the conditions prescribed in the statutory provisions listed below: (1) The Board's investigations of questions, raised by labor organizations, concerning representation, on compliance with § 9(f) and (h); (2) labor organizations' eligibility for certification as representatives, on compliance with § 9(g) and (h); (3) the Board's issuance of complaints pursuant to charges by labor organizations, on compliance with § 9(f) and (g); (4) privilege of making a unionshop agreement, see § 8(a)(3); (5) labor organizations' right to obtain redress from Board for unfair labor practices, see § 8; (6) limited right to engage in boycott when seeking recognition, see § 8(b)(4)(B); (7) limited right to strike for assignment of work, see § 8(b)(4)(D); and (8) limited protection for a certified representative against a strike for recognition of a rival organization, see § 8(b)(4)(C). 5 The Board may provide relief in case of a refusal by a noncomplying union to bargain in good faith, as required by § 8(b)(3). See Chicago Typographical Union No. 16, 86 N.L.R.B. 1041, 1048, and note 16; National Maritime Union, 78 N.L.R.B. 971, 987 988. As to decertification of a noncomplying union under § 9(c)(1)(A)(ii), see Harris Foundry & Machine Co., 76 N.L.R.B. 118. For the effect of noncompliance with § 9(h), see generally American Communications Ass'n, C.I.O., v. Douds, 339 U.S. 382, 390, 70 S.Ct. 674, 679, 680, 94 L.Ed. 925. 6 See note 3, supra. When a majority of an employer's eligible employees have authorized a noncomplying union to represent them and such union later has complied with the statutory filing requirements, the union, under appropriate circumstances, has been permitted to invoke the Board's processes to remedy the consequences of the employer's prior refusal to bargain with the union. '* * * Congress has not made compliance with the filing requirements of § 9(f), (g) and (h) a condition precedent to the obligation of an employer under § 8(a)(5) to bargain collectively with the chosen representative of the employees; such compliance is merely made a condition precedent to invoking the machinery of the Act for the investigation of a question concerning representation, or for the issuance of a complaint charging the commission of unfair labor practices.' National Labor Relations Board v. Reed & Prince Mfg. Co., 1 Cir., 205 F.2d 131, 133—134. See also, National Labor Relations Board v. Pecheur Lozenge Co., 2 Cir., 209 F.2d 393, 402—403; National Labor Relations Board v. Tennessee Egg Co., 6 Cir., 201 F.2d 370; West Tex. Utilities Co. v. National Labor Relations Board, 87 U.S.App.D.C. 179, 185, 184 F.2d 233, 239. 7 See note 1, supra. 8 A Board election is not the only method by which an employer may satisfy itself as to the union's majority status. See, e.g., National Labor Relations Board v. Bradford Dyeing Ass'n, 310 U.S. 318, 338—339, 60 S.Ct. 918, 928—929, 84 L.Ed. 1226; National Labor Relations Board v. Knickerbocker Plastic Co., 9 Cir., 218 F.2d 917, 921—922; National Labor Relations Board v. Parma Water Lifter Co., 9 Cir., 211 F.2d 258, 261; National Labor Relations Board v. Indianapolis Newspapers, Inc., 7 Cir., 210 F.2d 501, 503—504; National Labor Relations Board v. Kobritz, 1 Cir., 193 F.2d 8, 14; Brookville v. Glove Co., 114 N.L.R.B. 213, 214, M. 4, 36 L.R.R.M. 1548, 1549, note 4. 9 '* * * The Act does not proscribe bargaining with a noncomplying union; indeed, consonant with public policy, an employer may voluntarily recognize and deal with such a union. If Congress had intended the Act to have the effect urged by the Respondents, it easily could have inserted an express provision in the statute to accomplish such result. This, Congress did not do.' Brookville Glove Co., supra, at 1549. The Board there held that the employer committed an unfair labor practice (§ 8(a)(3)) when it discharged employees who struck to induce their employer to recognize as their bargaining representative the same noncomplying union (United Mine Workers) which is a petitioner here. There also the union had been designated as their chosen representative by a majority of the eligible employees. See also, Rubin Bros. Footwear, Inc., 99 N.L.R.B. 610, 619; National Labor Relations Board v. Coal Creek Coal Co., 10 Cir., 204 F.2d 579, 581; National Labor Relations Board v. Electronics Equipment Co., 2 Cir., 194 F.2d 650, 651, note 1; National Labor Relations Board v. Pratt, Read & Co., 2 Cir., 191 F.2d 1006, 1008. Cf. Ohio Ferro-Alloys Corp. v. National Labor Relations Board, 6 Cir., 213 F.2d 646; Stewart-Warner Corp. v. National Labor Relations Board, 4 Cir., 194 F.2d 207. 10 The cross reference to § 8(a)(3) has to do only with an exception in favor of union shops. 11 For example, § 9(f) prescribes that, unless the labor organization files the required material. 'No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section * * *.' (Emphasis supplied.) Subsection (c) of § 9 so referred to relates to elections of collective-bargaining representatives under supervision of the Board. Section 9(f) also prescribes that , unless the labor organization files the required material, 'no complaint shall be issued (by the Board) pursuant to a charge made by a labor organization under subsection (b) of section 10 * * *.' (Emphasis supplied.) Subsection (b) of § 10 so referred to relates to complaints by the Board, so that here again that which is cut off by noncompliance is only that which the Act has added. Subsections (g) and (h) of § 9 contain like provisions. 12 For the Board's conclusion that an employer may not have recourse to the Board to verify, by certification, the union's status or lack of status as the exclusive representative of the eligible employee, see Herman Loewenstein, Inc., 75 N.L.R.B. 377; Sigmund Cohn Mfg. Co., 75 N.L.R.B. 177, 180, n. 2; National Maritime Union of America v. Herzog, D.C., 78 F.Supp. 146, 156, affirmed 334 U.S. 854, 68 S.Ct. 1529, 92 L.Ed. 1776; Fay v. Douds, 2 Cir., 172 F.2d 720, 724—726. 13 'Sec. 13. 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. § 163, 29 U.S.C.A. § 163. See also, National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 673, 71 S.Ct. 961, 965, 95 L.Ed. 1277, and cases cited in note 6, supra. 14 'Present law in no way limits the primary strike for recognition except in the face of another union's certification.' Report of the Joint Committee on Labor-Management Relations, No. 986, Pt. 3, 80th Cong., 2d Sess. 71; S.Rep. No. 105, 80th Cong., 1st Sess. 22; H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 43.

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