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246.US.263

Whether, in view of the limitations of Art. IV, § 3, and the Ninth and Tenth Amendments of the Constitution, Congress has power to exempt from state taxation laud purchased for a tribal Indian which when acquired was part of the mass of private property subject to the state taxing power and jurisdiction, is a substantial constitutional question, affording ground, if properly raised, for direct appeal from a decree of the District Court. Upon a direct appeal from the District Court, based upon a constitutional question, all questions involved are open for review and there is no occasion to consider the constitutional question if the case may be disposed of on other grounds. The Acts of June 28, 1906, c. 3572, 34 Stat. 539, and April 18, 1912, c. 83, 37 Stat. 86, respecting the Osage Indians, do not authorize the Secretary of the Interior to impose restrictions upon private land purchased for a non-competent Osage allottee with his trust money; previously released under § 5 of the latter act, and thus exempt it as a governmental instrumentality, during such restraint, from the power of the State of Oklahoma to tax it and to sell it for the collection of such taxes. United States v. Ricker, 188,U. S. 432, distinguished. The land was originally part of the Osage Reservation but had been sold under the Osage Townsite Act, and for some years had been part of the private land in the State and had been taxed as such. The taxes in question were imposed after the purchase for the allottee and attempted imposition of restrictions. Section 5 of the Act of April 18, 1912, supra, authorizing the Secretary of the Interior in his discretion and under rules and regulations to be prescribed by him to pay to any Osage allottee all or any part of the funds held for his benefit when satisfied that the allottee is competent or that the payment would be t6 his manifest best interests and welfare, and the regulations issued thereunder dated June 26, 1912, both contemplate supervision of the expenditure of the money but not control of property for which the money may be expended. In this case, moreover, where the land purchased was first conveyed to a trustee for the allottee and another, the terms of the trust not here appearing, and later was deeded by the _rustee to the allottee with an expressed restriction on alienation, non consa that the restriction was a continuation of control reserved by the Secretary rather than an assumption of control of part of the Indian's estate theretofore freed. leversed.

The Osage Tribe of Indians consisted in 1906 of 2,000 persons. Their reservation, located in Oklahoma Territory between the Arkansas river and the Kansas state line, contained about a million and a half acres of fertile well-watered prairie land and of heavily timbered hill lands, largely underlaid with petroleum, natural gas, coal and other minerals. At that time the United States held for the tribe a trust fund of $8,373,658.54 received under various treaties as compensation for relinquishing other lands. The annual income of the tribe from interest on this trust fund and from rentals of grazing, oil, and gas lands was nearly $1,000,000; that is, $500 for every man, woman and child, in addition to the earnings of individuals.1 Congress, concluding apparently that the enjoyment of wealth without responsibility was demoralizing to the Osages, decided upon the policy of gradual emancipation. By Act of June 28, 1906 (34 Stat. 539, c. 3572), it provided for an equal division among them of the trust fund and the lands. The trust fund was to be divided by placing to the credit of each member of the tribe his pro rata share which should thereafter be held for the benefit of himself and his heirs for the period of twenty-five years and then paid over to them respectively (sections 4 and 5).2 The lands were to be divided by giving to each member the right to make, from the tribal lands, three selections of 160 acres each and to designate which of these should constitute his homestead. A commission was appointed to divide among the members also, the remaining lands, after setting aside enough for county use, school sites and other small reservations. The oil, gas, coal and other mineral rights were reserved to the tribe for the period of twenty-five years with provision for leasing the same. The homesteads were made inalienable and nontaxable for twenty-five years or until otherwise provided by Congress. All other allotted lands—which were known as 'surplus lands,' were made inalienable for twenty-five years and nontaxable for three years, except that power was vested with the Secretary of the Interior to issue to any adult member, upon his petition, a certificate of competency, authorizing him to sell all of his surplus lands; and upon its issue all his surplus lands became immediately taxable. By Act of April 18, 1912, § 53 (37 Stat. 86, 87, c. 83), Congress authorized the Secretary of the Interior to pay to any Osage allottee 'in his discretion' 'under rules and regulations to be prescribed by him and upon application therefor' all or part of the funds held for his benefit, provided the Secretary is satisfied either that the allottee is competent or that such payment would be to 'the manifest best interest and welfare of the allottee.' In 1913 (apparently in March) the Secretary paid from the principal of the trust funds held for Robert Panther, a noncompetent4 allottee the sum of $1,750, which was applied in payment for a lot of land in the city of Pawhuska. The land when purchased was conveyed to one Brenner as trustee for Robert and Emma Panther, but soon after was conveyed by Brenner to Robert individually. The deed to Robert contained the following clause: 'This conveyance is made and accepted with the understanding, and under the condition that the above described property is to be and remain inalienable and not subject to transfer, sale or incumbrance, for a period of eighteen years from the 1st day of July, 1913, except by and with the express consent and approval of the Secretary of the Interior, or his successor in office.' The land as originally a part of the Osage Reservation and became part of Pawhuska when that town was established under the Osage Township Act (March 3, 1905, c. 1479, 33 Stat. 1061). When Oklahoma was admitted into the Union in 1907, the town became the city of Pawhuska and a part of Osage county. The land had passed into private ownership before 1908, became taxable then under the laws of Oklahoma and taxes were assessed thereon and were paid until about the time of the conveyance to Brenner in trust for the Panthers. Then default was made and the land was sold by the county treasurer for failure to pay taxes for the second half of 1912. In January, 1917, the United States tendered to the holder of the tax certificate and to the county treasurer, the amount of the 1912 and 1913 taxes and penalties and demanded a redemption receipt. The tender was refused, because it did not include the taxes and penalties for 1914, 1915 and 1916; and the county treasurer gave notice of intention to issue the tax deed. Thereupon the United States filed, in the federal District Court for the Western District of Oklahoma, this suit against the county treasurer for an injunction to restrain the issue of the tax deed. The government contended, that as the land had been bought for Panther and was by deed made inalienable without the consent of the Secretary of Interior, it was while so held, an instrumentality lawfully employed by the government for the protection of an Indian and as such exempt from taxation by the state or any subdivision thereof. On the other hand the county treasurer and the city (which was permitted to intervene) contended that Congress had not authorized the Secretary of the Interior to invest the trust fund for the Indians' benefit or to impose restriction on alienation of property purchased with money from that source; that the insertion in the deed of the provision against alienation, did not have the effect of exempting the land from taxation by the state; and that it was not the intention of Congress to do so. It was also contended that such exemption was not within the powers of Congress as limited by article 4, § 3, and the Ninth and Tenth Amendments of the Constitution; since before imposing the restriction by deed, the land had become a part of the private property subject to the jurisdiction of the state. A decree was entered granting, in effect, an injunction against taxation during the period of restriction of alienation; and the case is brought here on direct appeal under section 238 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. 1916, § 1215]), on the ground that constitutional questions are involved. The jurisdiction of this court was questioned; but the case is properly here. The constitutional question is substantial, was properly raised below, and was passed upon there. We have, however, no occasion to consider it; since all questions involved in the case are before us (Northwestern Laundry v. Des Moines, 239 U. S. 486, 491, 36 Sup. Ct. 206, 60 L. Ed. 396) and there are other grounds on which the decree must be reversed. Under the Act of Judge 28, 1906, the Secretary of the Interior had no authority to release or to invest any part of the principal of the trust fund held for Panther. His authority to release rests wholly upon section 5 of the Act of April 18, 1912. That section confers upon him, if application is made therefor, discretion whether to release or to withhold. If the release 'would be to the manifest best interests of the allottee' it may be made although the allottee is not competent, as that term is defined in section 9 of the act. The Secretary is authorized to prescribe the rules and regulations under which such releases shall be made; but he is not given authority to exercise control of any property in which the funds released may thereafter be invested, or otherwise to create with the released funds a governmental instrumentality for the protection of the Osages. Congress apparently b lieved that in order to prepare the Indian for complete independence, he must be educated in self-control, and that this could best be done by committing to him gradually the care of his property. That course necessarily involved the risk of some property being lost through improvidence. But in the case of the Osages the risk was not attended by serious danger. Even if the whole trust fund should be released and, despite supervision, improvidently spent, the legally competent allottee would still have his homestead and his share in valuable undivided oil, gas and coal rights; and the legally incompetent, his surplus lands in addition. There is nothing in the act or in the facts to which it applies that indicates a purpose to extend governmental control to property in which released funds may be invested. And there are in both the Act of 1906 and in that of 1912, provisions which show that Congress intended to restrict the tax exemption. By section 2 of the Act of 1906 the surplus lands became taxable after three years, even if they remained inalienable. By section 7 of the Act of 1912 both the lands and funds of allottees or their heirs are protected against claims arising prior to competency, inheritance or removal of restrictions; but it is expressly provided 'that nothing herein shall be construed so as to exempt any such property from liability for taxes.' The regulations issued under date of June 26, 1912, afford no support to the government's contention. They provide, among other things, that: (a) 'One who has not received a certificate of competency, but who has made good use of all moneys paid him and has properly used the lands and rentals under his control belonging to his minor children may be considered competent to handle his trust funds.' (b) In case of adults neither aged, physically disabled, nor incompetent to a degree reguiring legal guardianship, the applicant must agree 'to abide by a stipulation in the claim that the money is to be deposited in bank to his credit and expended under the supervision of the superintendent, subject to instructions from the Indian Office, if the Secretary of the Interior so directs.' Like the act under which they are framed, these regulations contemplate supervision of the expenditure of money, not control of the property, if any, for which the money is expended. They tend to confirm the contention of the appellant, that after the money is paid out of the bank it and property in which it may be invested are to be freed from any restriction. Under the Act of 1906, the Secretary of the Interior when applied to for a certificate of competency was confronted with serious alternatives. If he issued the certificate, all the allottee's surplus lands—about 495 acres5—would at one time be freed from restrictions on alienation and become subject to disposition by him without governmental If the Secretary refused to issue the certificate, the allottee would (unless the certificate were granted later) remain, until the end of the twenty-five year period, in the enjoyment of the income merely; and at the end of that period, he or his heirs though unaccustomed to the control of property, would get absolute dominion at one time over the (a) homestead, (b) surplus lands, (c) the trust fund ($3,928.50),6 and (d) his share of the interest in the oil, gas, coal and mineral rights. The Act of 1912 made possible the release of parts of the trust fund from time to time. The risks to be incurred at any one time could be made quantitatively as small as the Secretary of the Interior might deem advisable; and by the regulations, the risk was reduced in degree, by virtue of the requirement, that the money must be 'deposited in bank and expended under supervision of the superintendent, subject to instructions from the Indian Office, if the Secretary of the Interior so directs.' The policy of education and development through the bank account had been tried and found promising.7 The regulations greatly exte ded the field of operation by providing that one legally incompetent might get such release where he had made good use of the moneys theretofore paid him or of the lands under his control. It is education through the responsibility for spending, not the property purchased with released moneys, which constitutes the instrumentality employed by the government in fitting the individual Osage Indian to take his full part as a citizen of the United States. Furthermore, in the case at bar it is not shown that the money released from the trust was invested directly in property restricted as to alienation. Apparently Panther's money had been released six months before the deed to him was executed and was used to pay for a conveyance of the land to Brenner, as trustee for Robert and Emma Panther. What the terms of the trust were does not appear. But there is nothing in the record to indicate that a restriction upon the alienation of the land was among them or that the Secretary of the Interior expressly reserved control over the property or its proceeds. It may well be that the Commissioner of Indian Affairs then believed that an ordinary trust of the property for a short period would best advance the interests of Panther. It is consistent with the facts shown that the restriction upon alienation inserted in the deed was not a continuation of control reserved by the Secretary of the Interior, but a bringing under his control of a part of Panther's estate theretofore freed. In this respect and others the present case differs from United States v. Thurston County, 143 Fed. 287, 74 C. C. A. 425, much relied upon by the government. There is also a clear distinction between the present case and those like United States v. Rickert, 188 U. S. 432, 23 Sup. Ct. 478, 47 L. Ed. 532, where it was sought to tax property, the legal title of which was in the United States and which was held by it for the benefit of Indians.8 While an Indian is still a ward of the nation, there is power in Congress even to reimpose restrictions on property already freed (Brader v. James, 246 U. S. 88, 38 Sup. Ct. 285, 62 L. Ed. , decided this day); but Congress did not confer upon the Secretary of the Interior authority to exercise such power under the circumstances of this case or to give to property purchased with released funds immunity from state taxation. The decree is reversed with directions to dismiss the bill. Reversed.

246.US.1

A law of Virginia (Acts 1915, c. 148, p. 233) imposes a license tax on merchants doing business in the State based on the amount of purchases during the license period, including as purchases all goods, wares and merchandise manufactured by the licensee and sold or offered for sale in the State; but excludes from its operation manufacturers taxed on capital by the State, who offer for sale at the place of manufacture the goods, wares and merchandise manufactured by them. The Court of Appeals of the State having interpreted this exclusion as open to all, including non-citizens and nonresidents, who manufacture in Virginia, and the license as extending as well to those who manufacture in Virginia and sell the goods at places other than the place of manufacture, as to those who manufacture without and sell within the State. Held, that the license tax, as applied to a New Jersey corporation, and as computed on the basis of merchandise manufactured by it in other States and shipped into Virginia for sale at its agencies there, does not offend the equal protection clause of the Fourteenth Amendment, or abridge the privileges and immunities of the corporation guaranteed (1) by that Amendment and by Art. IV of the Constitution, or constitute, either inherently or by neceisary operation and effect, an unconstitutional burden on interstate commerce. 118 Virginia, 242, affirmed.

This suit concerns section 45 of the Virginia general taxing statute (Acts Extra Sess. 1902-04, c. 148) as amended in 1915, which is in the margin.1 It will be observed that the section imposes an annual license tax upon all persons or corporations carrying on a merchandise business at any place in the state, the amount being determined by the sum of the purchases during the year. It will be further seen that the amount of the purchases includes 'all goods, wares and merchandise manufactured by such merchant and sold or offered for sale, in this state, as merchandise,' and that the section also contains a provision excluding from the operation of the license 'manufacturers taxed on capital by this state, who offer for sale at the place of manufacture, goods, wares and merchandise manufactured by them.' Armour & Co., a New Jersey corporation engaged in the packing house business, and having various establishments in several states, carried on in Virginia the merchandise business of selling packing house products at the respective agencies which they had established. For the purposes of the merchant's license in question the company was called upon to return the sum of its purchases including the amount shipped into the state for sale at its agencies whether or not manufactured by it. The corporation declined to comply and commenced this suit to enjoin the enforcement of the statute in so far as it required the inclusion in the amount of purchases of merchandise manufactured by the corporation in other states and shipped into Virginia for sale. It was charged that to the extent stated the statute was in conflict with the Constitution of the United States because of the provision excluding from liability for license persons who manufactured merchandise in Virginia and sold the same at the place of manufacture for the following reasons: (a) Because as the result of such exclusion the statute discriminated against the company to the extent that it shipped goods manufactured by it into Virginia to be sold and therefore was a direct burden on interstate commerce; (b) because the statute deprived manufacturers in other states of the benefit of section 2 of article 4 guaranteeing to the citizens of each state 'all privileges and immunities of citizens in the several states'; and (c) because the statute in the respects stated was repugnant to the equal protection and privilege and immunities clauses of the Fourteenth Amendment. The trial court enjoined the enforcement of the statute to the extent complained of and its action on appeal was reversed by the court below. It was held that the statute was inherently within the state legislative power and that the difference between a manufacturer selling goods by him made at the place where they were manufactured and one engaged in a mercantile business even if his business consisted in whole or in part of the selling of goods by him manufactured at a place other than the place of manufacture was such as to afford adequate ground for their distinct classification and hence justified the provision of the statute including one in the merchant's license and excluding the other. In addition, construing the statute, it was decided that it was not discriminatory since the exclusion from the license tax of manufacturers selling at their place of manufacture was open to all whether noncitizens or even nonresidents who manufactured in Virginia and because the liability for the merchant's license embraced even those who manufactured in Virginia if they sold as merchants the goods by them manufactured at a place other than the place of manufacture. From this latter conclusion it was decided that if any disadvantage resulted to the person selling as a merchant in Virginia goods manufactured by him in another state by subjecting him to a license when such license did not include the manufacturer selling in Virginia at the place of manufacture, the disadvantage was a mere indirect consequence of a lawful and nondiscriminatory exercise of state authority and afforded no basis for holding the statute to be repugnant to the clauses of the Constitution of the United States as contended. 118 Va. 242, 87 S. E. 610. All the constitutional grounds which were thus held to be without merit are within the errors assigned and relied upon although predominance in argument is given to the asserted repugnancy of the statute to the commerce clause of the Constitution (article 1, § 8, cl. 3); and we come briefly to consider them all. In the first place we are of opinion that the distinction upon which the classification in the statute rests between a manufacturer selling goods by him made at their place of manufacture and one engaged as a merchant in whole or in part in selling goods of his manufacture at a place of business other than where they were made is so obvious as to require nothing but a mere statement of the two classes. All question concerning the equal protection clause of the Fourteenth Amendment may therefore be put out of view. In the second place, we are also of opinion that the interpretation given by the court below to the statute excludes all basis for the content on that the provision of the statute imposing the license tax upon the one class and not upon the other gave rise to such discrimination as resulted in a direct burden upon interstate commerce. And this whether the statute be considered from the point of view of the power of the state to enact it inherently considered, or of the power as tested by the necessary operation and effect of the statute, if any, upon interstate commerce and the plenary and exclusive power of Congress to regulate the same. In the third place we also conclude that as the subject-matter of the statute was plainly within the legislative authority of the state and as the previous conclusions exclude the conception of the repugnancy of the statute to the provisions of the Constitution just considered, it necessarily follows that there is no ground for the assertion that the statute conflicted with the privileges and immunities clause of article 4 of the Constitution or of the clause in the Fourteenth Amendment providing that:'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' But, it is urged, the statute should be held to be a burden on interstate commerce and repugnant to the Constitution because of the disadvantage to which, it is insisted, it necessarily by way of a license tax subjected goods manufactured in another state when sold in Virginia by a merchant manufacturing the same, while no such tax was by the statute imposed on a manufacturer in Virginia selling his goods so manufactured at the place of their manufacture. But we have already tested the statute by its necessary operation and effect and found it not to be repugnant to the commerce clause. Hence this argument but repeats in a different form a contention already disposed of. It follows therefore that if the asserted disadvantage be real and not imaginary, it would be one not direct because not arising from the operation and effect of the statute, but indirect as a mere consequence of the situation of the persons and property affected and of the nondiscriminating exercise by the state of power which it had a right to exert without violating the Constitution—which is indeed but to say that the disadvantage relied upon, if any, is but the indirect result of our dual system of government. In other words, to resume, the error of the argument results from confounding the direct burden necessarily arising from a statute which is unconstitutional because it exercises a power concerning interstate commerce not possessed or because of the unlawful discriminations which its provisions express or by operation necessarily bring about and the indirect and wholly negligible influence on interstate commerce, even if in some aspects detrimental, arising from a statute which there was power to enact and in which there was an absence of all discrimination, whether express or implied as the result of the necessary operation and effect of its provisions. The distinction between the two has been enforced from the beginning as vital to the perpetuation of our constitutional system. Indeed, as correctly pointed out by the court below, that principle as applied in adjudged cases is here directly applicable and authoritatively controlling. New York v. Roberts, 171 U. S. 658, 19 Sup. Ct. 58, 43 L. Ed. 323; Reymann Brewing Co. v. Brister, 179 U. S. 445, 21 Sup. Ct. 201, 45 L. Ed. 269. In saying this we have not overlooked or failed to consider the many cases cited in the argument at bar on the theory that they are to the contrary, when in fact they all rest upon the conclusion that a direct burden on interstate commerce arose from statutes inherently void for want of power or if within the power possessed were intrinsically repugnant to the commerce clause because of discriminations against interstate commerce which they contained. Affirmed.

244.US.31

A case involving rights arising from through bills of lading issued under the Carmack Amendment is reviewable by this court upon writ of error to a state court. St. Louis, Iron Mountain & Southern By. Co. v. Starbird, 243 U. S. 592. -By request of the shipper and by action of the carriers in dealing with the freight accordingly, a shipment governed by the Carmack Amendment and. bills of lading thereunder may be diverted from the original destination and the original bills of lading be continued in force as applicable to the new destination. When the bill of lading provides that the liability of any carrier for damage to goods shall be computed on the basis of the value of the goods-the bona fide invoice price to the consigne-at place and time of shipment, the difference between that value and the value of the goods when deliveied at a new destination, to which they have been diverted under such bill of lading by consent of the parties, is a proper measure of damages suffered in transit. So held when the goods were damaged when they reached the original destination and were sold, in bad condition, by the shipper at the new destination. In such case the shipper discharges his duty to the carrier when he sells the goods at the new destination for the best price obtainable. Under the Carmack Amendment an initial carrier sued for negligent damage to goods is not entitled to recover over against a connecting carrier which did not contribute to such damage. 172 S. W. Rep. 195, affirmed.

Defendant in error, Texas Packing Company, brought its action in the district court of Bell county, Texas, against the Gulf, Colorado, & Santa Fe Railway Company, plaintiff in error, to recover damages growing out of a series of shipments of dressed poultry from Temple, Texas, to St. Louis, Missouri, but which were re-routed over the line of the Wabash Railroad Company from St. Louis to Chicago. The shipments were on bills of lading, among the terms of which was the following: 'Iced to full capacity at Temple with crushed ice adding 12 per cent salt. Re-ice at all regular icing stations with crushed ice using 12 per cent salt.' The Packing Company in its petition, after averring the necessity of proper icing and the contract to that effect between it and the carrier, alleged negligence on the part of the carriers in failing to re-ice the poultry properly and regularly, as a result of which plaintiff claimed damages in the sum of $12,202.87. The Santa Fe Company answered, denying the allegations of the petition, and alleging the absence of a contract of carriage from Temple to Chicago, and averred by way of cross petition that, under the terms of the bills of lading, its obligation was to carry the shipments and deliver them within a reasonable length of time to its connecting line, en route to destination, and that it did within a reasonable time carry and safely deliver the shipments in good and proper condition, or in such condition as they were received by it, to its connecting line, the Wabash Railroad Company; that under the terms of the bills of lading, the liability of each carrier was distinctly limited to all such loss and injury as occurred while the shipments were in its possession, and that there was no loss or injury to the shipments while the same were in its possession; that any loss or injury thereto was the result of the negligence of the plaintiff or the Wabash Railroad Company, and that it is not responsible herein for any of the losses or injuries complained of in plaintiff's petition; that the Santa Fe Company, being the initial carrier, was made responsible under the act of Congress for all loss or injur occurring en route, but that, under said act, it is entitled to vouch in the Wabash Railroad Company and recover over and against it for any loss or injury occasioned to the shipments in question through its negligence, and that if there was any negligence of any carrier which resulted in loss to plaintiffs, the same was the negligence of the Wabash Railroad Company. Accordingly, the Wabash Railroad Company was made a defendant and filed an answer, asserting that it was not a proper party to the suit, and denying that it was guilty of the negligence complained of. It further averred that the shipments were delivered at Chicago in the same condition as when it (the Wabash Company) had received them, and that it received and transported the shipments by virtue of a contract with the plaintiff to which the Gulf, Colorado, & Santa Fe Railway Company was not a party or in any way interested, and prayed a dismissal with its costs. In appears from the record that the shipments were separately billed from Temple, Texas, to St. Louis, Missouri, at dates varying from December 24th to December 30th, 1910; that upon January 4th, 1911, the shipper requested the carrier's agent, at Temple, by telephone, to divert the five cars from St. Louis to Chicago; that the agent said he would, asked where the bills of lading were, and upon being told that they were in St. Louis, said that the carrier's representative in St. Louis would perhaps see that the notations of the diversion were made upon the bills; that no new bills were issued, and that thereupon the shipments were continued to Chicago. Concerning the stipulation as to icing in transit at 'all regular icing stations,' there is testimony tending to show the cars were in fact re-iced en route to St. Louis at all but one regular station,—Shawnee, Oklahoma; but the failure to re-ice at this point resulted in a lapse of from twenty-eight to fifty-four hours without ice and salt. Upon the issues made the jury found for the Packing Company against the Santa Fe Railway Company, and upon the issue between the Santa Fe and Wabash Companies the verdict was in favor of the Wabash Company. The district court rendered judgment accordingly, and the case was taken to the court of civil appeals, where the judgment of the district court was affirmed. 172 S. W. 195. As the case involves rights set up and denied which arose upon through bills of lading issued under the Carmack Amendment, it is properly reviewable here. St. Louis I. M. & S. R. Co. v. Starbird, decided April 30, 1917 [243 U. S. 592, 61 L. ed. 917, 37 Sup. Ct. Rep. 462]. Indeed, both parties admit that the Federal statute controls, and the case must be decided under its provisions. As required by the Texas statute (Rev. Stat. [Tex.] 1911, art. 1639), the court of civil appeals made findings of fact, in which it said: 'The verdict of the jury is amply supported by testimony, and we therefore make findings of fact to the effect that appellant breached its contract of shipment, as alleged in appellee's petition, and that, as a result of that breach, the property which was shipped was injured and damaged to the extent found by the jury; and that the proof failed to show that any of the damage referred to was caused by the Wabash Railroad Company.' The plaintiff in error, in urging certain grounds for the reversal of the judgment of the court of civil appeals, contends that the district court erred in charging the jury as to the measure of damages. On that subject the district court charged the jury as follows: '(4) If you find for the plaintiff you will assess the damages at the difference between the invoice price of said poultry, to wit, the sum of Twenty-Two Thousand Two Hundred Thirty-Eight and 56/100 ($22,238.56) Dollars, and the value of said property at the time the same was delivered to plaintiff or its agents, the Western Cold Storage Company in Chicago, by the carrier, with 6 per cent interest per annum from January 15th, 1911.' This interstate shipment was governed by the terms of the Carmack Amendment [34 Stat. at L. 593, chap. 3591, § 7, Comp. Stat. 1913, § 8592], requiring the initial carrier to issue a receipt or bill of lading, and as this court frequently has held, with the effect of making such contract the measure of liability between the parties. It is insisted that, inasmuch as the bill of lading made St. Louis the point of destination, it is immaterial what the value of the property was in Chicago, to which point the goods were shipped, having been sold in transit to a company in that city. On this point the record shows that the bills of lading covered the shipment of five cars of dressed poultry from Temple, Texas, to St. Louis, where they were consigned to the 'order of the Texas Packing Company, notify St. Louis Refrigerating & Cold Storage Company.' There is testimony to show that the poultry while in transit was sold in Chicago, and that while the cars were in St. Louis on the sidetrack of the St. Louis Refrigerating & Cold Storage Company the shipper called upon the agent of the Santa Fe Company at Temple, to divert the cars to Chicago. The testimony also shows that the agent promised to do so; said that he would wire a representative of the railway company in St. Louis to divert the cars; that no new bills of lading were issued; that the agent asked for the original bills of lading and was told that they were in St. Louis, and said that the representative of the carrier there would perhaps call at the bank and make the proper notations thereon. It is fairly inferable from the evidence that the bills of lading originally issued were continued in force by the action of the parties, simply changing the place of destination, and remained binding contracts when the Santa Fe Company accepted the diversion of the shipment from St. Louis to Chicago. The bills of lading contained this stipulation: 'The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges if prepaid) at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper, or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such computation, whether or not such loss or damage occurs from negligence.' The testimony showed that the invoice price of the poultry at Temple to the Packing Company was $22,238.56, and that the poultry was worth at least that sum at Temple at the time of shipment. We think that, in taking this sum as the basis of computing damages, the trial court did but enforce the stipulation in the bills of lading. That sum was the bona fide invoice price to the consignee, which the bills provided was to be the basis of recovery in case of loss or damage. We think the court properly charged the jury to take the difference between this invoice price and the value of the poultry at the time the same was delivered in Chicago in arriving at the amount of damages. No question is raised in this case as to the right of the plaintiff to recover also the freight paid. See Pennsylvania R. Co. v. Olivit Bros. Decided April 30, 1917 [243 U. S. 574, 61 L. ed. 908, 37 Sup. Ct. Rep. 468]. The testimony shows that the poultry reached St. Louis in poor condition, and that the cars were there re-iced and forwarded to Chicago, where the poultry was delivered, still in bad condition, and really unfit for market. It was nevertheless sold for the best price which could be obtained. When the poultry reached Chicago in that condition, the consignee discharged its duty to the railway company when it sold the damaged goods for what could be obtained for them. The testimony shows that the poultry was taken to a storage company at Chicago, where it was kept until it could be sold, and ultimately realized the sum of $10,035.69. The jury returned a verdict, under the instruction of the court to deduct the value of the property at Chicago from the invoice price, in the sum of $9,000 and interest. Evidently, in this state of the record, no harm was done to the rights of the plaintiff in error in assessing the sum which the jury awarded against it. We cannot agree with the contention of the plaintiff in error that the value of the deteriorated poultry at Temple or St. Louis should have been taken as the sum to be deducted from the invoice basis of value. Apart from the stipulation of these bills of lading, the ordinary measure of damages in cases of this sort is the difference between the market value of the property in the condition in which it should have arrived at the place of destination and its market value in the condition in which, by reason of the fault of the carrier, it did arrive. New York, L. E. & W. R. Co. v. Estill, 147 U. S. 591, 616, 37 L. ed. 292, 304, 13 Sup. Ct. Rep. 444. The stipulations of these bills of lading changed this rule in the requirement that the invoice price at the place of shipment should be the basis for assessing the damages. The poultry in fact had no market price at Temple or elsewhere. It was badly deteriorated, and when the shipper sold it at the point of destination for the best price it would bring he did all that could be fairly required of him to save the carrier from resulting loss. The trial court charged that the Santa Fe Company was entitled to a recovery against the Wabash Railroad Company if the jury found that the Santa Fe Company and Wabash Railroad Company were both guilty of negligence in the handling of the poultry, in which event the jury were told that the Santa Fe Company would be entitled to a verdict against the Wabash Railroad Company for that part of the sum to which the Wabash Company had contributed by its negligence to plaintiff's injury. It is urged by the plaintiff in error that the Santa Fe Company, as the initial carrier, regardless of its own negligence, was entitled to recover against the Wabash Company in proportion as the negligence of that company contributed to the loss; and it is contended that the testimony tends to show that the Wabash Railroad Company did not properly re-ice and otherwise care for the poultry in transit. The record shows no proper exception reserved upon which to base this criticism; and the question becomes immaterial in view of the verdict of the jury in favor of the Wabash Railroad Company, and the express finding of the Court of Civil Appeals that the proof failed to show that any of the damages had been caused by the Wabash Railroad Company. We find no error in the judgment of the court below, and it is affirmed.

243.US.90

A person domiciled in Texas left the State intending to make his home elsewhere, his family residing there meanwhile. During his absence an action for money was begun against him in a Texas court. After returning and remaining for a short time, he departed finally and established a domicile in another State. The only service in the action was by publication in a newspaper after his final departure. Based on this service, a personal judgment for money was rendered against him which was sustained under the laws of Texas by the Supreme Court of the State. Held, that the judgment was absolutely void under the Fourteenth Amendment. Quaere: Whether the judgment would have been good if a summons had been left at his last and usual place of abode in Texas while the -family was in that State and before the new domicile was acquired? An ordinary personal judgment for money, invalid for want of service amounting to due process of law, is as ineffective in the State of its rendition as it is elsewhere. Since judgments are of reciprocal obligation, a judgment void if sued on by the plaintiff is void also when interposed by the defendant as a bar to the original cause of action. 175 S. W. Rep. 676, reversed.

This is a suit upon a promissory note. The only defense now material is that the plaintiff had recovered a judgment upon the same note in a previous suit in Texas which purported to bind the defendant personally as well as to foreclose a lien by which the note was secured. When the former suit was begun, the defendant, Mabee, was domiciled in Texas, but had left the state with intent to establish a home elsewhere, his family, however, still residing there. He subsequently returned to Texas for a short time and later established his domicil in Missouri. The only service upon him was by publication in a newspaper once a week for four successive weeks after his final departure from the state, and he did not appear in the suit. The supreme court of the state held that this satisfied the Texas statutes, and that the judgment was a good personal judgment, overruling the plaintiff's contention that to give it that effect was to deny the constitutional right to due process of law. ——Tex. ——, 175 S. W. 676. The foundation of jurisdiction is physical power, although in civilized times it is not necessary to maintain that power throughout proceedings properly begun, and although submission to the jurisdiction by appearance may take the place of service upon the person. Michigan Trust Co. v. Ferry, 228 U. S. 346, 353, 57 L. ed. 867, 874, 33 Sup. Ct. Rep. 550; Pennsylvania F. Ins. Co. v. Gold Issue Min. & Mill. Co. decided to-day [243 U. S. 93, 61 L. ed. 610, 37 Sup. Ct. Rep. 344]. No doubt there may be some extension of the means of acquiring jurisdiction beyond service or appearance, but the foundation should be borne in mind. Subject to its conception of sovereignty even the common law required a judgment not to be contrary to natural justice. Douglas v. Forrest, 4 Bing. 686, 700, 701, 130 Eng. Reprint, 933, 1 Moore & P. 663, 6 L. J. C. P. 157, 29 Revised Rep. 695; Becquet v. MacCarthy, 2 Barn. & Ad. 951, 959, 109 Eng. Reprint, 1396; Maubourquet v. Wyse, Ir. Rep. 1 C. L. 471, 481. And in states bound together by a Constitution and subject to the 14th Amendment, great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact. Baker v. Baker, E. & Co. Jan. 8, 1917 [242 U. S. 394, 61 L. ed. 386, 37 Sup. Ct. Rep. 152]. There is no dispute that service by publication does not warrant a personal judgment against a nonresident. Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565. Riverside & D. River Cotton Mills v. Menefee, 237 U. S. 189, 59 L. ed. 910, 35 Sup. Ct. Rep. 579. Some language of Pennoyer v. Neff would justify the extension of the same principle to absent parties, but we shall go no farther than the precise facts of this case require. When the former suit was begun, Mabee, although technically domiciled in Texas, had left the state, intending to establish his home elsewhere. Perhaps in view of his technical position and the actual presence of his family in the state, a summons left at his last and usual place of abode would have been enough. But it appears to us that an advertisement in a local newspaper is not sufficient notice to bind a person who has left a state, intending not to return. To dispense with personal service the substitute that is most likely to reach the defendant is the least that ought to be required if substantial justice is to be done. We repeat, also, that the ground for giving subsequent effect to a judgment is that the court rendering it had acquired power to carry it out; and that it is going to the extreme to hold such power gained even by service at the last and usual place of abode. Whatever may be the rule with regard to decrees concerning status or its incidents (Haddock v. Haddock, 201 U. S. 562, 569, 632, 50 L. ed. 867, 869, 895, 26 Sup. Ct. Rep. 525, 5 Ann. Cas. 1), an ordinary personal judgment for money, invalid for want of service amounting to due process of law, is as ineffective in the state as it is outside of it (201 U. S. 567, 568). If the former judgment had been sued upon in another state by the plaintiff, we think that the better opinion would justify a denial of its effect. If so, it was no more effective in Texas. De la Montanya v. De la Montanya, 112 Cal. 101, 32 L.R.A. 82, 53 Am. St. Rep. 165, 44 Pac. 345; Boring v. Penniman, 134 Cal. 514, 66 Pac. 739. The usual occasion for testing the principle to be applied would be such as we have supposed, where the defendant was denying the validity of the judgment against him. But the obligations of the judgment are reciprocal, and the fact that here the defendant is asserting and the plaintiff denying its personal effect does not alter the case. Whittier v. Wendell, 7 N. H. 257; Rangely v. Webster, 11 N. H. 299; Middlesex Bank v. Butman, 29 Me. 19. The personal judgment was not merely voidable, as was assumed in the slightly different case of Henderson v. Staniford, 105 Mass. 504, 7 Am. Rep. 551, but was void. See Needham v. Thayer, 147 Mass. 536, 18 N. E. 429. In Henderson v. Staniford the absent defendant intended to return to his state. Judgment reversed.

244.US.170

The duty of interstate railroad carriers to make compensation for injury or death of their employees in interstate commerce is regulated uniformly and exclusively by the Federal Employers' Liability Act and is thereby confined to cases of causal negligence. New York CentralR . R. Co. v. Winfield, ante, 147. It is beyond the power of any State to interfere with the operation of the federal act, either by putting carriers and their employees to an election between its provisions and those of a state statute or by imputing such an election to them through a statutory presumption. So held in the case of a New Jersey law containing provisions for compensation without regard to negligence, to be applicable when employer and employee elect to accept them, and presuming acceptance in the absence of a declaration to the contrary. In leaving the yard after his day's work in switching inter- and intra.state commerce, the employee is "engaged in interstate commerce." 88 N. J. L. 619, reversed.

This was a proceeding under a New Jersey statute, chap. 95, Laws 1911, against a common carrier by railroad, engaged in both interstate and intrastate commerce, to obtain compensation for the death of one of its employees. The employee was in charge of a switch engine in the carrier's extensive yard at Croxton, New Jersey, and was switching freight cars about in the yard, especially to and from a transfer station. The cars usually contained package freight and many were moved in the course of a day's work. In some the freight was interstate, in others intrastate, and in still others it was of both classes. This was true of the cars moved on the day in question. In concluding his work for that day the employee took his engine to the place where it was to remain for the night and started to leave the yard. His route lay across some of the tracks, and while passing over one he was struck by an engine and received injuries from which he soon died. No causal negligence was alleged or proved, and both parties assumed there was none. In these circumstances the trial judge, while not doubting that the fatal injury occurred in the course of the deceased's employment, held that he was not then employed in interstate commerce, and that compensation should be made under the state statute to the widow. A judgment in her favor was entered, but was reversed by the supreme court of the state, which concluded that the deceased's employment at the time of the injury was in interstate commerce, and that the case was controlled by the Employers' Liability Act of Congress, which makes negligence the test of the carrier's liability or obligation. That judgment was in turn reversed by the court of errors and appeals, which, although assuming 'that the conclusion of the supreme court as to the character' of the deceased's employment at the time of the injury 'was justified by the facts proved,' regarded the Federal act as without bearing, because affording no remedy and imposing no liability in the absence of causal negligence. 88 N. J. L. 619, 96 Atl. 394. The questions presented for decision are these: First, whether the Federal act is regulative of the carrier's liability or obligation in every instance of the injury or death of one of its employees in interstate commerce, or only in those instances where there is causal negligence for which the carrier is responsible. Second, whether the facts proved sustain the conclusion that the deceased was employed in interstate commerce at the time of the injury. Third, whether, by reason of the state statute, the carrier became bound contractually to make compensation in this instance, even though it came within the Federal act. The first question is fully considered in New York C. R. Co. v. Winfield, the opinion in which has been just announced, 244 U. S. 147, 61 L. ed. ——, 37 Sup. Ct. Rep. 546, and it suffices here to say that, for the reasons there given, we are of opinion that the Federal act proceeds upon the principle which regards negligence as the basis of the duty to make compensation, and excludes the existence of such a duty in the absence of negligence, and that Congress intended the act to be as comprehensive of those instances in which it excludes liability as of those in which liability is imposed. It establishes a rule or regulation which is intended to operate uniformly in all the states, as respects interstate commerce, and in that field it is both paramount and exclusive. The second question must be given an affirmative answer. In leaving the carrier's yard at the close of his day's work the deceased was but discharging a duty of his employment. See North Carolina R. Co. v. Zachary, 232 U. S. 248, 260, 58 L. ed. 591, 596, 34 Sup. Ct. Rep. 305, 9 N. C. C. A. 109, Ann. Cas. 1914C, 159. Like his trip through the yard to his engine in the morning, it was a necessary incident of his day's work, and partook of the character of that work as a whole, for it was no more an incident of one part than of another. His day's work was in both interstate and intrastate commerce, and so, when he was leaving the yard at the time of the injury, his employment was in both. That he was employed in interstate commerce is therefore plain, and that his employment also extended to intrastate commerce is, for present purposes, of no importance. The third question requires some notice of the New Jersey statute. It consists of two parts. One conforms to the principle which regards negligence as the basis of liability, and excludes liability in the absence of negligence. In its details, however, that part differs materially from the Federal act. The other conforms to a different principle which rejects negligence as a basis of liability and requires compensation to be made by the employer wherever the injury or death of the employee is an incident of the service in which he is employed. This part is described as 'elective,' and is not to be applied unless the employer and the employee shall have agreed, expressly or impliedly, to be bound thereby and to surrender 'their rights to any other method, form, or amount of compensation or determination thereof.' Respecting the mode of manifesting such an agreement or the contrary, it is provided that every contract of hiring 'shall be presumed to have been made' with reference to this part of the statute, and, unless the contract or a notice from one party to the other contain 'an express statement in writing' to the contrary, it 'shall be presumed' that the parties 'have agreed to be bound' by this part of the statute. There was no express agreement in this instance and there is no basis for regarding the carrier as in any way bound by this part of the statute, save as it provides that an agreement to be bound by it shall be presumed in the absence of a declaration to the contrary. But such a presumption cannot be indulged here, and this for the reason that by the Federal act the entire subject, as respects carriers by railroad and their employees in interstate commerce, was taken without the reach of state laws. It is beyond the power of any state to interfere with the operation of that act, either by putting the carrier and their employees to an election between its provisions and those of a state statute, or by imputing such an election to them by means of a statutory presumption. The third question, therefore, must be answered in the negative. It follows that the Court of Errors and Appeals erred in failing to give controlling effect to the Federal act. Judgment reversed. Mr. Justice Brandeis and Mr. Justice Clarke dissent.

246.US.8

Certificates of the facts constituting the basis for questions propounded to this court by the Circuit Court of Appeals should be prepared with care and precision. Where the bill in the District Court claimed protection for a pricefixing contract under the patent laws, and the want of merit in the claim was not so conclusively settled by decision when the bill was filed as to make the claim frivolous, the court had jurisdiction to pass upon the case as made by the bill, that is, to determine whether the suit arose under those laws. Where a patent owner delivers patented articles to a dealer by a transaction which, essentially considered, is a completed sale, stipulations in the contract that the articles may not be resold at prices other or lower than those fixed presently and from time to time by the patent owner are v6id under the general law, and are not within the monopoly conferred, or the remedies afforded, by the patent law. Recent decisions of this court denying the right of patent owners, in selling patented articles, to reserve control over the resale or use were not rested upon any mere question of the form of notice attached to the articles or the right to contract solely by reference to such notice, but upon the fundamental ground that the control of the patent owner over the articles in question ended with the passing of title. The courts must needs apply the patent law as they find it; if this result in damage to the holders of patent rights, or if the law afford insufficient protection to the inventor, the remedy must come from Congress.

The court below, before whom this case is pending, desiring instruction to the end that the duty of deciding the cause may be performed, has certified certain facts and propounded questions for solution arising therefrom. The certificate as to some matters of procedure is deficient in specification and looked at from the point of view of the questions which it asks is somewhat wanting in precision. As, however, the matters not specified are not in dispute and the want of precision referred to is not so fundamental as to mislead or confuse, we are of opinion the duty rests upon us to answer the questions and we come to discharge it, making the statements, however, which we have made as an admonition concerning the duty not to be negligent and ambiguous but to be careful and* precise in preparing certificates as the basis for questions propounded to obtain our instruction. Without in any degree changing, we rearrange and somewhat condense the case as stated in the certificate. The American Graphophone Company, a West Virginia corporation, as assignee of certain letters patent of the United States was the sole manufacturer of Columbia graphophones, grafonolas, records and blanks, and the Columbia Graphophone Company, also a West Virginia corporation, was the general agent of the American Company for the purpose of marketing the devices above stated. 'The American Company, acting through its agent, the Columbia Company, employs in the marketing of its phonographic records and its other products a system of price maintenance, by which system it has been its uniform practice to cause its agent, the Columbia Company, to enter into * * * contracts * * * in the name of the Columbia Company, with dealers in phonographic records, located in the United States and its territorial possessions, to whom the American Company delivers its product, through the Columbia Company, by which it is provided, in part, that in consideration of the prices at which prescribed quantities of the various said products of the American Company are agreed to be delivered to such dealer, the dealer, in turn, obligates himself or itself in selling such products to adhere strictly to and to be bound by and not to depart from the official list prices promulgated from time to time by the Columbia Company for said products, and further expressly covenants not in any way to dispos of any such products at less than such list prices. The American Company fixes and prescribes the prices of its said products, and said contracts when entered into cover all such products of the American Company which may thereafter from time to time be acquired by such dealers from the Columbia Company, without any new express price restriction contract being entered into at the time when each order for goods subsequent to the entering into of said contract is placed or filled by said dealers. 'In pursuance of said price maintenance system the Columbia Company, acting under said instructions and as the agent of the American Company, entered into [such] contracts with over five thousand dealers in phonographic records located in the United States and its territorial possessions.' The Boston Store, an Illinois corporation established at Chicago, dealt with the American Company through its agent, the Columbia Company, conformably to the system of business which was carried out as above stated. The contract evidencing these dealings, which was typical of those by which the business system was carried on was entered into in October, 1912, and contained the following clauses: 'No Jobbing Privileges Extended under This Contract. 'Notice to Purchasers of 'Columbia' Graphophones, Grafonolas, Records, and Blanks. 'All 'Columbia' Graphophones, Grafonolas, Records and blanks are manufactured by the American Graphophone Company under certain patents and licensed and sold through its sole sales agent the Columbia Phonograph Company (General), subject to conditions and restrictions as to the persons to whom and the price at which they may be resold by any person into whose hands they come. Any violation of such conditions or restrictions make the seller or user liable as an infringer of said patents. 'After reading the foregoing notice and in consideration of current dealers' discounts given to me/us by the Columbia Phonograph Company (General) I/we hereby agree to take any Columbia product received by me/us from said company, either directly or though any intermediary, under the conditions and restrictions referred to in said notice and to adhere strictly and be bound by the official list prices established from time to time by said company and that I/we will neither give away, sell, offer for sale, nor in any way dispose of such goods, either directly or through any intermediary, at less than such list prices, nor induce the sale of such goods by giving away or reducing the price of other goods, nor sell or otherwise dispose of any of said goods, directly or indirectly, outside of the United States, and I/we understand that a breach of this agreement will amount to an infringement of said patents and subject me/us to a suit and damages therefor. I/We admit the validity of all patents under which said product is manufactured and hereby covenant and agree not to question or contest the same in any manner whatsoever. I/We further understand and agree that this license extends the right to market said Columbia product from the below mentioned address only, and that a separate contract is required to market said product from a branch store or stores, or through an agent or agencies at any other point. 'I/We acknowledge the receipt of a duplicate of the foregoing notice and contract and that no representations or guarantees have been made by the salesman on behalf of said company which are not herein expressed. I/We also acknowledge receipt of the official list prices on all Columbia product in force at the date hereof.' This contract contained a note specifying large rates of discount from the list prices for purchases made under its terms, and contained a reference to other lists of net prices covering particular transactions and to the 'current Columbia catalogues for list prices on machines, records and supplies.' Under this contract at the time and also subsequent to its making the Columbia Company delivered to t e Boston Store at Chicago a number of graphophones and appliances made by the American Company at the sums fixed in the contract as above stated. This suit arose from a disregard by the Boston Store of the rule as to maintenance of price fixed in its contract, that is, from selling the articles at a less price than that which the contract stipulated should be maintained and the bill was filed against the Boston Store by the American and Columbia Companies to enjoin the alleged violations of the contract. While the certificate is silent as to the averments of the bill, in the argument it is stated and not disputed that it was based on a right to make the contract for the maintenance of prices in and by virtue of the patent laws of the United States and the resulting right under such laws to enforce the agreement as to price maintenance as part of the remedy given by the patent law to protect the patent rights of the American Company. The court enjoined the Boston Store as prayed from disregarding the terms of the contract as to price maintenance. (D. C.) 225 Fed. 785. On appeal the court below made the certificate previously stated and propounded four questions for our decision. In a general sense the questions involve determining whether the right to make the price maintenance stipulation in the contract stated and the right to enforce it were secured by the patent law, and if not, whether it was valid under the general law, and was within the jurisdiction of the court on the one hand because of its authority to entertain suits under the patent law or its power on the other to exercise jurisdiction because of diversity of citizenship. We at once say, despite insistence in the argument to the contrary that we are of opinion that there is no room for controversy concerning the subjects to which the questions relate, as every doctrine which is required to be decided in answering the questions is now no longer open to dispute as the result of prior decisions of this court, some of which were announced subsequent to the making of the certificate in this case. Under this situation our duty is limited to stating the results of the previous cases, to briefly noticing the contentions made in argument concerning the nonapplicability of those results to the case in hand, and then to applying to the questions the indisputable principles controlling the subjects which the questions concern. As, however, the discharge of these duties as to each and all of the questions will require a consideration of the cases to be applied, it must result that if the questions be primarily considered separately, reiteration concerning the decided cases will inevitably take place. To avoid this redundancy of statement we therefore at once as briefly as we may, state the adjudged cases which are applicable in order that in the light afforded by one statement concerning them the questions may be considered and answered. In Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 28 Sup. Ct. 722, 52 L. Ed. 1086, it was settled that the exclusive right to vend a copyrighted book given by the copyright law did not give to the owner of the copyright and book the right to sell for a price satisfactory to him and by a notice placed in the book fix a price below which it should not be sold by all those who might subsequently acquire it; and that as such a right was not secured by the copyright law or the remedies which it afforded, a court of the United States had no jurisdiction to afford relief on the contrary theory. In Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, 31 Sup. Ct. 376, 55 L. Ed. 502, it was decided that under the general law the owner of movables (in that case, proprietary medicines compounded by a secret formula) could not sell the movables and lawfully by contract fix a price at which the product should afterwards be sold, because to do so would be at one and the same time to sell and retain, to part with and yet to hold, to project the will of the seller so as to cause it to control the mo able parted with when it was not subject to his will because owned by another, and thus to make the will of the seller unwarrantedly take the place of the law of the land as to such movables. It was decided that the power to make the limitation as to price for the future could not be exerted consistently with the prohibitions against restraint of trade and monopoly contained in the Anti-Trust Law. In Henry v. A. B. Dick Co., 224 U. S. 1, 32 Sup. Ct. 364, 56 L. Ed. 645, Ann. Cas. 1913D, 880, it was held that the owner of a patented machine (a rotary mimeograph) and the patents which covered it had in selling the same a right to contract with the purchaser not to use materials essential for working it unless bought from the seller of the machine and to qualify the condition as a license of the use; that this right included the further right by notice on the machine of the contract to affect a third person who might deal with the purchaser with knowledge of the contract and notice so as to make him liable as a contributory infringer if he dealt with the buyer in violation of the terms of the notice. It was further decided that the right to make such contract arose from the right conferred by the patent law and that jurisdiction to enforce it as against the contributory infringer existed under that law. At the time this case was decided there was one vacancy on the bench and one member of the court was absent. There was division, four members concurring in the ruling which the court made and three dissenting. Bauer v. O'Donnell, 229 U. S. 1, 33 Sup. Ct. 616, 57 L. Ed. 1041, L. R. A. (N. S.) 1185, Ann. Cas. 1915A, 150, again involved the right of a seller to impose a restraint on the price of future sales. It arose on a certificate from the Court of Appeals of the District of Columbia asking whether the right asserted was within the monopoly conferred by the patent law and whether therefore the duty to enforce it under that law obtained and the power to give the remedy sought as a means of preventing an infringement of the patent existed. Pointing out that although the restriction on future price which the certificate stated was indisputably void and unenforceable under the general law as the result of the ruling in the Miles Medical Case, supra, it was held that that ruling was not necessarily apposite because the certificate and the question presented restricted the case to determining whether the right to limit the price existed because within the monopoly granted by the patent law and whether the relief asked was within the remedy which that law afforded. Considering the case in that limited aspect, it was decided: (a) That the exclusive right to vend given by the patent law had the same significance which had been affixed to that word in the copyright law in the Bobbs-Merrill Case, supra. (b) That hence when the holder of a patented article had sold it, the article so sold passed out of the monopoly and the right to make future sales by one who bought it was not embraced by the patent law and consequently that law could not be extended so as to perpetuate its control beyond the limits to which by the operation of law it reached. In other words, the decision was that a patentee could not use and exhaust the right to sell as to which a monopoly was given him by the patent law and yet by conditions and stipulations continue that law in effect so as to make it govern things which by his voluntary act were beyond its scope. And (c) that as a result, where an article had been sold and passed beyond the monopoly given by the patent law, remedies on the theory of infringement were not applicable to acts done which could not have that character. It was hence answered that the controversy and the remedies invoked were not within the patent law. As the case dealt with the right to vend under the patent law, the court reserved any express statement concerning the scope of the right to use conferred by that law. In Straus v. Victor Talking Machine Co., 243 U. S. 490, 37 Sup. Ct. 412, 61 L. Ed. 866, L. R. A. 1917E, 1196, the right to fix a permanent marketing price at which phonographs should be resold after they had been sold by the patentee was considered. Basing its action upon the substance of things, and disregarding mere forms of expression as to license, etc., the court held that the contract was obviously in substance like the one considered in the Miles Medical Co. Case and not different from the one which had come under review in Bauer v. O'Donnell. Thus brushing away disguises resulting from forms of expression in the contract and considering it in the light of the patent law, it was held that the attempt to regulate the future price or the future marketing of the patented article was not within the monopoly granted by the patent law in accordance with the rule laid down in Bauer v. O'Donnell. The general doctrines, although presented in a different aspect, were considered in Motion Picture Patents Co. v. Universal Film Manufacturing Co., 243 U. S. 502, 37 Sup. Ct. 416, 61 L. Ed. 871, L. R. A. 1917E, 1187. The scope of the case will be at once made manifest by the two questions which were certified for solution: 'First. May a patentee or his assignee license another to manufacture and sell a patented machine and by a mere notice attached to it limit its use by the purchaser or by the purchaser's lessee, to films which are no part of the patented machine, and which are not patented? Second. May the assignee of a patent, which has licensed another to make and sell the machine covered by it, by a mere notice attached to such machine, limit the use of it by the purchaser or by the purchaser's lessee to terms not stated in the notice but which are to be fixed, after sale, by such assignee in its discretion?' The case therefore directly involved the general question of the power of the patentee to sell and yet under the guise of license or otherwise to put restrictions which in substance were repugnant to the rights which necessarily arose from the sale which was made. In other words, it required once again a consideration of the doctrine which had been previously announced in Henry v. Dick and of the significance of the monopoly of the right to use conferred by the patent law which had been reserved in Bauer v. O'Donnell. Comprehensively reviewing the subject, it was decided that the rulings in Bauer v. O'Donnell and Straus v. Victor Talking Machine Co. conflicted with the doctrine announced and the rights sustained in Henry v. Dick, and that case was consequently overruled. Reiterating the ruling in the two last cases it was again decided that as by virtue of the patent law one who had sold a patented machine and received the price and had thus placed the machine so sold beyond the confines of the patent law, could not by qualifying restrictions as to use keep under the patent monopoly a subject to which the monopoly no longer applied. Applying the cases thus reviewed there can be no doubt that the alleged price-fixing contract disclosed in the certificate was contrary to the general law and void. There can be equally no doubt that the power to make it in derogation of the general law was not within the monopoly conferred by the patent law and that the attempt to enforce its apparent obligations under the guise of a patent infringement was not embraced within the remedies given for the protection of the rights which the patent law conferred. Thus concluding, it becomes we think unnecessary to do more than say that we are of opinion that the attempt in argument to distinguish the cases by the assumption that they rested upon a mere question of the form of notice on the patented article or the right to contract solely by reference to such notice is devoid of merit since the argument disregards the fundamental ground upon which, as we have seen, the decided cases must rest. Moreover, so far as the argument proceeds upon the assumption of the grave disaster which must come to the holders of patent rights and articles made under them from the future application of the doctrine which the cases establish, it must be apparent that if the forebodings are real the remedy for them is to be found not in an attempt judicially to correct doctrines which by reiterated decisions have become conclusively fixed, but in invoking the curative power of legislation. In addition, through perhaps an abundance of precaution we direct attention to the fact that nothing in the decided cases to which we have referred, having regard either to the application of the general law or of the patent law, deprives an inventor of any right coming within the patent monopoly, since the cases alone concerned whether the monopoly of the patent law can be extended beyond the scope of that law or, in other words, applied to articles after they have gone beyond its reach. The proposition so earnestly insisted upon that while this may be true, it does not fairly consider the refiex detriment to come to the rights of property of the inventor within the patent law as a result of not recognizing the right to continue to apply the patent law as to objects which have passed beyond its scope, is obviously not one susceptible of judicial cognizance. This must be since whether for the preservation of the rights which are within a law, its provisions should be extended to embrace things which it does not include typically illustrates that which is exclusive of judicial power and within the scope of legislative action. It remains, then, only to apply the principles established by the authorities which we have stated to the answers to the questions. 'Does jurisdiction attach under the patent laws of the United States?' As we assume under the admissions of counsel that the bill asserted the existence of rights under the patent law, and as at the time it was filed the want of merit in such assertion had not been so conclusively settled as to cause it to be frivolous, we are of opinion that the court had jurisdiction to pass upon the case as made by the bill, that is, to determine whether or not the suit arose under the patent law and hence as thus understood the question should be answered, Yes. Considering the second and third questions as virtually involving one consideration we state them together. '2. If so, do the recited facts disclose that some right or privilege granted by the patent laws has been violated? '3. Can a patentee, in connection with the act of delivering his patented article to another for a gross consideration then received, lawfully reserve by contract a part of his monopoly right to sell?' Correcting their ambiguity of expression by treating the questions, as they must be treated, as resting upon and deducible from the facts stated in the certificate and therefore as embracing inquiries concerning the contract of sale containing the price maintenance stipulation, it follows from what we have said that the questions must be answered in the negative. '4. If jurisdiction attaches solely by reason of diversity of citizenship, do the recited facts constitute a cause of action?' Upon the hypothesis which this question assumes there also can be no doubt that it must be answered in the negative. The first question will be certified as answered, Yes; and the second, third and fourth as answered, No. And it is so ordered. Mr. Justice HOLMES and Mr. Justice VAN DEVANTER are of opinion that each of the questions should be answered in the affirmative.

243.US.490

The monopoly of use granted by the patent law can not be made a means of controlling the prices of the patented articles after they have been, in reality even though not in form, sold and paid for. An attempt by means of "license contracts" with dealers and "license notices" attached to patented machines to retain title in the manufacturer and patent owner until the expiration of the latest patent referred to in such notice, and to limit until the expiration of such period the right of the public to a mere license to use dependent upon observance of conditions in the "license notices," -including conditions as to price, will not be regarded as a legitimate exercise of the patent owner's control over the use where, plainly, from the terms of the "license notices" and from the relations established between the patent owner and the dealers through whom the machines are distributed, the object of such reservations and restrictions is to enable the patent owner to fix and maintain the prices at which the machines may be disposed of after they have passed from its possession into the possession of the dealers and the ptblic and after it has received from the dealers the full price which it asks or expects for the machines. In such case, as to purchasers not in privity with the patent owner, the restrictions of the "license notices" are to be treated as void attempts to control prices after sale, and in buying from the dealers and reselling to the public at prices lower than the notices prescribe such purchasers do not violate the rights secured to the patent owner by the patent law. 230 Fed. Rep. 449, reversed.

It will contribute to brevity to designate the parties to this proceeding as they were in the trial court,—the respondent as plaintiff and the petitioners as defendants. The plaintiff in its bill alleges: that it is a corporation of New Jersey; that for many years it has been manufacturing sound-reproducing machines embodying various features covered by patents of which it is the owner, and that, for the purpose of marketing these machines to the best advantage, about August 1st, 1913, it adopted a form of contract which it calls a 'License Contract' and a form of notice called a 'License Notice,' under which it alleges all of its machines have, since that date, been furnished to dealers and to the public. This 'License Notice,' which is attached to each machine and is set out in full in the bill, declares that the machine to which it is attached is manufactured under patents, is licensed for the term of the patent under which it is licensed having the longest time to run, and may be used only with sound records, sound boxes, and needles manufactured by the plaintiff; that only the right to use the machine 'for demonstrating purposes' is granted to 'distributors' (wholesale dealers), but that these 'distributors' may assign a like right 'to the public' or to 'regularly licensed Victor dealers' (retailers) 'at the dealer's regular discount royalty;' that the 'dealers' may convey the 'license to use the machine' only when a 'royalty' of not less than $200 shall have been paid, and upon the 'consideration' that all of the conditions of the 'licanse' shall have been observed; that the title to the machine shall remain in the plaintiff, which shall have the right to repossess it upon breach of any of the conditions of the notice, by paying to the user the amount paid by him, less 5 per cent for each year that the machine has been used. The notice in terms reserves the right to the plaintiff to inspect, test, and repair the machine at all times and to instruct the user in its use, 'but it assumes no obligation to do so;' it provides that 'any excessive use or violation of the conditions shall be an infringement of plaintiff's patent,' and that any erasure or removal of the notice will be considered as a violation of the license. Finally, it provides that at the expiration of the patent 'under which it is licensed' having the longest time to run the machine shall become the property of the licensee provided all the conditions recited in the notice shall have been complied with, and the acceptance of the machine is declared to be 'an acceptance of these conditions.' The contract between the plaintiff and its dealers is not set out in full in the bill, but it is alleged that since August 1st, 1913, the plaintiff has had with each of its 7,000 licensed dealers a written contract in which all the terms of the 'License Notice' are in substance repeated, and in addition it is alleged that each dealer, 'if he has signed the assent thereto,' is authorized to dispose of any machines received from 'the plaintiff directly or through a paramount distributing dealer,' but subject to all of the conditions expressed in the 'License Notice.' It is alleged that this contract contains the provision that 'a breach of any of the conditions on the part of a distributor will render him liable, not only for an infringement of the patent, but to an action on the contract or other proper remedy.' As to the defendants, the bill alleges that they conduct a large mercantile business in New York city; that with full knowledge of the terms of the contract, as described, between the plaintiff and its distributors, and of the 'License Notice' attached to each machine, the defendants, 'being members of the general unlicensed public,' and having no contract relation with the plaintiff or with any of its licensed distributors or licensed dealers, induced 'covertly and on various pretenses,' one or more of plaintiff's licensed distributors or dealers to violate his or their contracts with the plaintiff, providing that no machines should be delivered to any unlicensed member of the general public until 'the full license price' stated in the 'License Notice' affixed to each machine was paid, and thereby obtained possession of a large number of such machines at much less than the prices stated in the 'License Notice;' that under the terms of the said license agreement and notice, they have no title to the same, and that they have sold large numbers thereof to the public, and are proposing and threatening to dispose of the remainder of those which they have acquired to 'the unlicensed general public,' at much less than the price stated in the notice affixed to each machine. The prayer is for an injunction restraining the defendants from selling any of the machines, possession of which they have acquired, from other and further violation of plaintiff's rights under its letters patent, and for the usual accounting and for damages. The district court regarded the transaction described in the 'License Notice' as in substance a sale which exhausted the interest of the plaintiff in the machine, except as to the right to have it used with records and needles as provided for therein, and this right not being involved in this case, it dismissed the bill. 222 Fed. 524. On appeal, the circuit court of appeals affirmed this judgment and remanded the case, but with instructions to allow the plaintiff to amend its bill 'if it be so advised.' 140 C. C. A. 519, 225 Fed. 535. The bill was thereafter so amended as to allege that the defendants had in their possession a large number of machines which they had obtained from plaintiff's distributors and dealers at much less in each case than the price stated in the 'License Notice,' and that they were proposing to dispose of these machines to the 'unlicensed general public' at less than the prices stated in the 'License Notice,' in disregard of plaintiff's rights. Again, the district court, on the same ground as before, sustained a motion to dismiss the bill, but the circuit court of appeals reversed this holding (144 C. C. A. 591, 230 Fed. 449) and the case is here for review on certiorari. The abstract of the bill which we have given makes it plain: That whatever rights the plaintiff has against the defendants must be derived from the 'License Notice' attached to each machine, for no contract rights existed between them, the defendants being only 'members of the unlicensed general public;' and that the sole act of infringement charged against the defendants is that they exceeded the terms of the license notice by obtaining machines from the plaintiff's wholesale or retail agents, and by selling them at less than the price fixed by the plaintiff. It is apparent from the foregoing statement that we are called upon to determine whether the system adopted by the plaintiff was selected as a means of securing to the owner of the patent that exclusive right to use its invention which is granted through the patent law, or whether, under color of such a purpose, it is a device unlawfully resorted to in an effort to profitably extend the scope of its patent at the expense of the general public. Is it the fact, as is claimed, that this 'License Notice' of the plaintiff is a means or agency designed in candor and good faith to enable the plaintiff to make only that full, reasonable, and exclusive use of its invention which is contemplated by the patent law, or is it a disguised attempt to control the prices of its machines after they have been sold and paid for? First of all, it is plainly apparent that this plan of marketing, adopted by the plaintiff, is, in substance, the one dealt with by this court in Dr. Miles Medical Co. v. John D. Park & Sons Co. 220 U. S. 373, 55 L. ed. 502, 31 Sup. Ct. Rep. 376, and in Bauer v. O'Donnell, 229 U. S. 1, 57 L. ed. 1041, 50 L.R.A.(N.S.) 1185, 33 Sup. Ct. Rep. 616, Ann. Cas. 1915A, 150, adroitly modified on the one hand to take advantage, if possible, of distinctions suggested by these decisions, and, on the other hand, to evade certain supposed effects of them. If we look through the words and forms with which the plaintiff has most elaborately enveloped its purpose, to the substance and realities of the transaction contemplated, we shall discover several notable and significant features. First, while, as if looking to the future, the notice, in terms, imposes various restrictions as to title and as to the 'use' of the machines by plaintiff's agents, wholesale and retail, and by the 'unlicensed members of the public,' for itself, the plaintiff makes sure that the future shall have no risks, for it requires that all that it asks or expects at any time to receive for each machine must be paid in full before it parts with the possession of it. Second, while in terms the 'use' of each machine is restricted, and forfeiture for failure to strictly comply with the many conditions and requirements of the notice is provided for, this system, elaborate to the extent of confusion, fails utterly to provide for entering any evidence of a qualified title in any public office or in any public record, and no requirement is found in it for reporting by users or licensees, who may remove from one place to another, taking the machine with them, as would very certainly be required if the plaintiff intended to enforce the rights so elaborately asserted in this notice,—if the system were really a genuine provision designed to protect through many years to come the restricted right to 'use' and the seemingly qualified title which it purports to grant to dealers and to the public, from being exceeded or departed from. Third. The fact that under this system 'at different times' 'large numbers' of machines, as is alleged in the plaintiff's bill, have been 'covertly' sold to the defendants by the plaintiff's wholesale and retail agents at less than the price fixed for them, is persuasive evidence that the transaction is not what it purports on its face to be. If it were a reasonably guarded plan, really intended to keep the plaintiff in touch with each of its machines until the expiration of the patent of latest date, for the purpose of insisting upon its being used in the manner provided for in the 'License Notice,' the plaintiff's prompt and sufficient remedy for such an invasion of its right as is claimed in this case would be found in its sales department, or rather in its 'license' department, and not in the courts. That the plaintiff comes into court with a bill to enjoin the defendants from reselling machines secretly sold to them in large numbers by the plaintiff's agents indicates very clearly that at least until the exigency out of which this case grew arose, the scheme was ragarded by the plaintiff itself and by its agents simply as one for maintaining prices by holding a patent infringement suit in terrorem over the ignorant and the timid. And finally, while the notice permits the use of the machines, which have been fully paid for, by the 'unlicensed members of the general public,' significantly called in the bill 'the ultimate users,' until 'the expiration of the patent having the longest term to run' (which, under the copy of the notice set out in the bill, would be July 22d, 1930), it provides that if the licensee shall not have failed to observe the conditions of the license, and the Victor Company shall not have previously taken possession of the machine, as in the notice provided, then, perhaps sixteen years or more after he has paid for it, and in all probability long after it has been worn out or become obsolete and worthless, 'it shall become the property of the licensee.' It thus becomes clear that this 'License Notice' is not intended as a security for any further payment upon the machine, for the full price, called a 'royalty,' was paid before the plaintiff parted with the possession of it; that it is not to be used as a basis for tracing and keeping the plaintiff informed as to the condition or use of the machine, for no report of any character is required from the 'ultimate user' after he has paid the stipulated price; that, notwithstanding its apparently studied avoidance of the use of the word 'sale,' and its frequent reference to the word 'use,' the most obvious requirements for securing a bona fide enforcement of the restrictions of the notice as to 'use' are omitted; and that, even by its own terms, the title to the machines ultimately vests in the 'ultimate users,' without further payment or action on their part, except patiently waiting for patents to expire on inventions which, so far as this notice shows, may or may not be incorporated in the machine. There remains for this 'License Notice,' so far as we can discover, the function only of fixing and maintaining the price of plaintiff's machines to its agents and to the public, and this, we cannot doubt, is the purpose for which it really was designed. Courts would be perversely blind if they failed to look through such an attempt as this 'License Notice' thus plainly is to sell property for a full price, and yet to place restraints upon its further alienation, such as have been hateful to the law from Lord Coke's day to ours, because obnoxious to the public interest. The scheme of distribution is not a system designed to secure to the plaintiff and to the public a reasonable use of its machines, within the grant of the patent laws, but is in substance and in fact a mere price-fixing enterprise, which, if given effect, would work great and widespread injustice to innocent purchasers, for it must be recognized that not one purchaser in many would read such a notice, and that not one in a much greater number, if he did read it, could understand its involved and intricate phraseology, which bears many evidences of being framed to conceal rather than to make clear its real meaning and purpose. It would be a perversion of terms to call the transaction intended to be embodied in this system of marketing plaintiff's machines a 'license to use the invention.' Bauer v. O'Donnell, 229 U. S. 1, 16, 57 L. ed. 1041, 1046, 50 L.R.A.(N.S.) 1185, 33 Sup. Ct. Rep. 616, Ann. Cas. 1915A, 150. Convinced, as we are, that the purpose and effect of this 'License Notice' of plaintiff, considered as a part of its scheme for marketing its product, is not to secure to the plaintiff any use of its machines, and as is conemplated by the patent statutes, but that its real and poorly-concealed purpose is to restrict the price of them, after the plaintiff had been paid for them and after they have passed into the possession of dealers and of the public, we conclude that it falls within the principles of Adams v. Burke, 17 Wall. 453, 456, 21 L. ed. 700, 703; and of Bauer v. O'Donnell, 229 U. S. 1, 57 L. ed. 1041, 50 L.R.A.(N.S.) 1185, 33 Sup. Ct. Rep. 616, Ann. Cas. 1915A, 150; that it is, therefore, invalid, and that the district court properly held that the bill must fail for want of equity. It results that the decree of the Circuit Court of Appeals will be reversed and that of the District Court affirmed. Reversed. Dissenting: Mr. Justice McKenna, Mr. Justice Holmes, Mr. Justice Van Devanter.

245.US.312

A New York testator bequeathed a fund in trust to pay the income to his son during life, with remainder over to others, subject to the condition that the principal also be paid to the son whenever he became able to pay his just debts and liabilities from other resources-a condition recognized as valid by the law of New York. The son secured his discharge in bankruptcy, whereupon the principal was paid over to him by order of the Surrogate Court. Held, that no right to the principal passed to his trustee in bankruptcy under the Bankruptcy Act, § 70a (5). 155 App. Div. 636; 213 N. Y. 315, affirmed.

Charles Palmer, of New York City, by will executed shortly before his death, bequeathed to the Farmers' Loan & Trust Company the sum of $50,000, in trust, to pay the income to his son Francis, during his life, with a remainder over to others, subject to the 'wish * * * that my son shall have the principal of said trust fund, whenever he shall become financially solvent and able to pay all his just debts and liabilities from resources other than the principal of the trust fund.' Promptly after probate of the will, Francis filed a voluntary petition in bankruptcy, and in due time received his discharge. Then the trust company instituted proceedings in the Surrogate Court for a judicial settlement of the estate; and, the court adjudging that Francis had become entitled to the principal of the trust fund (65 Misc. Rep. 418, 121 N. Y. Supp. 1099), it was paid over to him. Later the trustee in bankruptcy who had not been a party to proceedings in the Surrogate Court brought suit in the Supreme Court of New York against the trust company and Francis to recover the principal. He claimed that the right to it had passed to him under section 70a (5) of the Bankruptcy Act of 1898 (chapter 541, 30 Stat. 544), and that the whole fund was required to satisfy the balance due on debts proved against the bankrupt estate and the expenses of administration. No claim was asserted against the income of the trust fund. A complaint setting forth these facts was dismissed on demurrer; and the judgment entered by the trial court was affirmed both by the Appellate Division (Hull v. Palmer, 155 App. Div. 636, 140 N. Y. Supp. 811) and by the Court of Appeals (213 N. Y. 315, 107 N. E. 653). The case comes here on writ of error. Plaintiff asserts that the case presents this federal question: Does a contingent interest in the principal of personal property assignable by the bankrupt prior to the filing of the petition necessarily pass to his trustee in bankruptcy? And, to sustain his claim to recovery, he contends that under the law of New York (1) the words used by the testator create a trust; (2) vesting in the beneficiary a contingent interest in personal property; (3) which is an expectant estate; (4) assignable by him; and (5) that, in view of the surrogate's decision and the action thereon, the defendants are estopped from denying that the contingency requiring payment of the principal had arisen. Plaintiff contends also that, under the federal law, (6) this assignable estate in expectancy passed to the trustee when Francis was adjudged bankrupt, and (7) the trustee, as holder of the estate, became entitled to the principal when the discharge rendered Francis solvent. We need not inquire whether the several propositions of state and federal law which underlie this contention are correct. This is not a case where a testator seeks to bequeath property which shall be free from liability for the beneficiary's debts. Ullman v. Cameron, 186 N. Y. 339, 345, 78 N. E. 1074, 116 Am. St. Rep. 553. Here the testator has merely prescribed the condition on which he will make a gift of the principal. Under the law of New York he had the right to provide, in terms, that such payment of the principal should be made, only if any when Francis should have received in bankruptcy a discharge from his debts and that no part of the fund should go to his trustee in bankruptcy. The language used by the testator is broader in scope, but manifests quite as clearly, his intention that the principal shall not be paid over under circumstances which would result in any part of it being applied in satisfying debts previously incurred by Francis. The Bankruptcy Act presents no obstacle to carrying out the testator's intention. Eaton v. Boston Safe Deposit & Trust Co., 240 U. S. 427, 36 Sup. Ct. 391, 60 L. Ed. 723. As the Court of Appeals said: 'The nature of the condition itself determines the controversy.' The judgment is Affirmed.

244.US.127

The rule that an order of the District Court remanding a cause is conclusive of the right to remove (Jud. Code, § 28) and cannot be reviewed on writ of error to a subsequent judgment of the state court, applies also when the final judgment of the state court is rendered after the attempted removal and before the order of remand, if when the judgment is rendered the District Court has not assumed jurisdiction and assumes none later beyond enjoining further proceedings until the motion to remand may be decided. Conduct of the plaintiffs in respect of proceedings in the state courts and District Court held not to have estopped them from contesting the jurisdiction of the latter after attempted removal, or to have waived their right to the conclusive effect of the order of remand. Affirmed.

This a writ of error, bringing into review a judgment of the city court of the city of New York and an order of that court denying a motion to set aside this judgment, and an order of the appellate term of the supreme court of the state of New York, which affirmed the order and judgment. The action was brought in the city court by Feltenstein and Rosenstein, hereinafter called the plaintiffs, to recover a contingent counsel fee of $500 from Yankaus, hereinafter called the defendant, and for loans of $200 and $100 respectively,—in all, the sum of $800. Summons and complaint were served on October 11, 1915. On October 16, 1915, the defendant filed in the office of the clerk of the city court petition and bond for the removal of the cause to the United States district court for the southern district of New York. The bond was approved by a judge of the city court. Notice of the intention to file petition and bond was served on the plaintiffs on October 15, 1915. The ground for removal was diversity of citizenship, and it was averred that the petitioner had a counterclaim exceeding the sum of $3,000, exclusive of interest and costs, and that therefore the matter and amount in dispute in the case exceeded that sum. On October 20, 1915, a certified copy of the record was filed in the office of the clerk of the United States district court for the southern district of New York, and an answer was filed setting up the invalidity of the agreements upon which plaintiffs' cause of action was based and asserting a counterclaim. On October 16, 1915, plaintiffs moved in the city court for an order setting aside the bond and the removal of the cause to the United States district court, and directing that the city court retain jurisdiction. This motion came on to be heard before a judge of the city court on October 20, 1915, and resulted in an order setting aside the removal and determining that the action was not entitled to be removed. This decision was made upon the basis that the counterclaim could not be considered in determining the amount in dispute, in so far as to give the Federal court jurisdiction. Judgment was entered on October 26, 1915, for plaintiffs. From this order and judgment appeal was taken to the supreme court, appellate term. Thereupon, the defendant moved in the United States district court for the southern district of New York for an order restraining the plaintiffs from proceeding to the enforcement of the judgment. The matter was heard before Judge I acombe, sitting as district judge, and on November 4, 1915, he issued an order restraining the plaintiffs until further order, made on proper notice and motion to remand, from in any way proceeding with or prosecuting their cause of action in the city court, or from collecting anything under any judgment entered therein. Subsequently plaintiffs moved in the United States district court for the southern district of New York for an order remanding the case to the state court. This motion came on for hearing before Judge Hough, who granted the motion to remand, and an order remanding the cause to the city court was made on the 15th day of November, 1915. The defendant afterward moved in the city court to set aside the judgment rendered while it was alleged the suit was pending in the United States court, which motion was denied. Appeal was thereupon taken to the supreme court, appellate term, and the judgment and the order setting aside the removal and declaring that the case was still in the city court were both affirmed. Motion was made by the plaintiffs to dismiss the appeal upon the ground that the order denying the defendant's motion to vacate the judgment had become academic by the affirmance of the order setting aside the removal. The appeal was dismissed by the appellate term. Defendant thereupon applied to the appellate term for leave to appeal to the appellate division from the order affirming the order of the city court, setting aside the removal of the action, and from the judgment entered by the plaintiffs while the action was in the Federal court, and also from the dismissal of the appeal from the order refusing to vacate this judgment. Both motions were denied. Defendant then applied to a justice of the appellate division, first department, for an order permitting him to take appeals, and these applications were denied. In these applications the defendant set forth that he had been denied rights asserted by him under the Constitution and statutes of the United States. Afterwards a writ of error was allowed to this court. As we view this case, we think the judgment of the court below must be affirmed, as this proceeding is practically an attempt to review an order remanding a cause attempted to be removed to the district court of the United States. Section 28 of the Judicial Code [36 Stat. at L. 1095, chap. 231, Comp. Stat. 1916, § 1010] provides that 'whenever any cause shall be removed from any state court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed.' After the filing of the transcript in the United States district court the matter came on for hearing before Judge Lacombe, and it was ordered that until the further order of the court the plaintiff should be enjoined and restrained from proceeding in the city court, or from collecting in any manner any judgment entered therein. Accompanying this order Judge Lacombe wrote the following memorandum: 'Jurisdiction is too doubtful to warrant this court in retaining the cause. Crane Co. v. Guanica Centrale, 132 Fed. 713. Plaintiff's proper course would have been to make a motion to remand. This he may now do. When such motion is made and granted the cause may proceed there; it is now here. Plaintiffs in the meanwhile may be enjoined (until remand is made) from proceeding further in the state court.' We think the effect of this order, read in the light of the opinion, simply manifested the purpose of the court to prevent proceedings while the question of the jurisdiction of the United States court was pending, and did not amount to a decision that that court had jurisdiction. It is true that an order of injunction was granted; but it is apparent from a reading of Judge Lacombe's memorandum that his purpose was merely to enable the district court to hold the case until it decided the question of its jurisdiction. Afterwards the motion came up in the United States district court, in which an opinion was delivered by Judge Hough, wherein he said: 'When this matter was argued the record on removal was not in court. If it had been the motion would not have been held until now. The opinion of Judge Lacombe in Crane Co. v. Guanica Centrale, 132 Fed. 713, merely states what for many previous years had been the practice of this court,—i. e., doubtful cases were always remanded. 'Rulings of this nature are admittedly unsatisfactory. Counsel and parties are entitled to a clear-cut statement of the law if it is possible to make one; and it would seem as if the removal acts were sufficiently old by this time to enable a court to select what appeared to be the best of conflicting rules. 'Since no case (irrespective of amount involved) can be removed over which the United States court might not have had original jurisdiction, it has always seemed to me illogical to consider a counterclaim in ascertaining the propriety of removal or remand. 'In the state of New York there is no compulsion on a defendant to set up a counterclaim. It is always optional with the party possessing it to reserve his affirmative demand for an independent suit. 'Imagine this action brought originally in this court; the defendant would only have been obliged to appear and move on the pleadings to dismiss the complaint without prejudice. Such a motion would have been granted as of course. 'Thus it appears that an action of the most trifling nature may (under defendant's contention) be removed to this court at the option of defendant if he can assert a counterclaim of sufficient size. That this was never the intent of the statute I am clear. Considering, however, the confusion of decisions, and (so far as I know) the failure of late years to observe the difference between the Act of 1875 [18 Stat. at L. 470, chap. 137] and that of 1888 [25 Stat. at L. 433, chap. 866, Comp. Stat. 1916, § 991(1)], I should have felt impelled to consider and classify decisions were it not for the consideration next to be stated. If it be true that, by a preponderance of rulings, the affirmative claims set up in an answer are to be considered in determining jurisdiction, it is at least necessary that somewhere and in some shape the defendant who sets up conterclaims shall plead them in a manner which enables his opponent to criticize them, modify them, or expunge them, as may be proper under the rules of good pleading. 'In this case, and in any similar case under the Act of 1888, there is no answer. The only knowledge that to this moment plaintiff has regarding defendant's counterclaim is continued in the petition for removal,—the language of which petition sets forth no reason whatever for the recovery by the defendant from the plaintiff of any sum of money at all. The petition says in substance that the defendant has a counterclaim, without stating what it is. Whatever may be the preferred rule, when in a proper and formal manner the amount in controversy between the parties is made to appear and shown to exceed $3,000, exclusive of interest and costs, I feel justified in holding, and do hold, that it is impossible to show that such controversial amount exists in any such manner as this defendant has attempted.' For the reasons stated, the case was remanded to the city court. We think these orders, with the accompanying memoranda and opinion, taken together, show that the district court denied its jurisdiction, and remanded the cause to the city court. In this attitude of the case, the judgment of the state court must stand, as the effect of the orders of the district court was to hold the attempted removal unauthorized. This court has more than once held that such an order is not subject to review, directly or indirectly, but is final and conclusive. Missouri P. R. Co. v. Fitzgerald, 160 U. S. 556, 580-583, 40 L. ed. 536, 542, 543, 16 Sup. Ct. Rep. 389; McLaughlin Bros. v. Hallowell, 228 U. S. 278, 286, 57 L. ed. 835, 839, 33 Sup. Ct. Rep. 465; Pacific Live Stock Co. v. Lewis, 241 U. S. 440, 447, 60 L. ed. 1084, 1096, 36 Sup. Ct. Rep. 637. Nor are we able to find anything in the conduct of the plaintiffs estopping them from contesting the jurisdiction of the Federal court, or amounting to a waiver of their right to the benefit of the judgment remanding the case from the district court. It follows that the judgment of the City Court of the City of New York must be affirmed. Mr. Justice Pitney concurs in the result.

245.US.86

In a proceeding for the registration of land, begun in the Philippine Court of Land Registration and appealed to the Supreme Court of the Islands, where the former court decreed registration of a part of the land to a petitioner claiming all under a mortgage and foreclosure, but refused registration of the rest upon the ground that it was not shown to have been included in the mortgage, and where the latter court, finding as a fact that all was so included, modified the judgment so as to decree that all should be registered: Held, that the last mentioned judgment was properly reviewable by writ of error, and, the case being before this court upon such writ, an appeal which was also taken must be dismissed. Upon writ of error to a judgment of the Supreme Court of the Philippine Islands, in a case which was decided upon issues of fact, this court will not reconsider the conclusions of the court below which find support in the record. Section 4 of the Act of September 6, 1916, c. 448, 39 Stat. 726, does not abolish the distinction between writs of error and appeals, but only requires that the party seeking review shall have it in the appropriate way notwithstanding a mistake in his choice of proceeding. The court is not disposed to disturb the judgment of the Supreme Court of the Philippine Islands in this case denying the right of a mortgagor to redeem after foreclosure and sale, the rule announced by the court below being derived from a construction of laws applicable in the Islands. Affirmed.

In this case, submitted upon motion to dismiss or affirm, the present appellee and defendant in error, herein called the Company, made application in the Philippine Court of Land Registration for registration of certain property under the Torrens System. As described and claimed by the Company the hacienda contained 611 hectares, 33 ares, and 82 centares. The case was twice in the Supreme Court of the Philippines. After its first judgment that court granted a rehearing, and ordered a new trial, and we are concerned now with the writ of error and appeal to this court from the second judgment of the Supreme Court of the Philippines. The Supreme Court states that so far as Romana Gauzon was concerned the hacienda was made up of two portions, one consisting of 465 hectares, 33 ares and 82 centares, by royal grant, while the remaining portion was made up of 146 hectares obtained from other sources. Romana Gauzon had mortgaged the hacienda, and the same was bought by the Company at sheriff's sale; some time thereafter it made the application for registration. On the retrial, after the first judgment of the Supreme Court, Romana Gauzon claimed to be the owner of the 146 hectares, alleging that they were not included in the mortgage. The Court of Land Registration refused registration of the 146 hectares. That court held that while Romana Ganzon had not shown herself to be the owner of the 146 hectares, the Company had not clearly demonstrated that it was the owner thereof. The Supreme Court, in the judgment now under review, held that the Company had, as between itself and Romana Gauzon, shown title to the 146 hectares, and modified the judgment of the Court of Land Registration so as to decree the registration of all the land described in the application. This judgment evidently proceeded upon the determination of questions of fact. The writ of error was the proper method by which to review the judgment of the Supreme Court of the Philippines. Carino v. Insular Government, 212 U. S. 449, 29 Sup. Ct. 334, 53 L. Ed. 594; Tiglao v. Insular Government of Philippine Islands, 215 U. S. 410, 30 Sup. Ct. 129, 54 L. Ed. 257; Jover y Costas v. Insular Government, 221 U. S. 623, 31 Sup. Ct. 664, 55 L. Ed. 884. The case being properly here upon writ of error the appeal must be dismissed. Upon such writ the case having been decided upon issues of fact, this court will not reconsider the conclusions of the lower court, which find support in the record, in reaching its judgment. Whether section 4 of the act of September 6, 1916, 39 Stat. 726, applies to this action in view of the fact that the appeal and writ of error were taken December 5, 1916, it is unnecessary to decide, as the section does not change the result. Section 4 provides that the reviewing court shall not dismiss a writ of error because an appeal should have been taken, or dismiss an appeal because a writ of error should have been sued out, but shall disregard such mistakes and take the action appropriate if the proper appellate procedure had been followed. This section does not abolish the distinction between writs of error and appeals, but only requires that the party seeking review shall have it in the appropriate way notwithstanding a mistake in choosing the mode of review. Upon petition for rehearing in the Supreme Court the plaintiff in error contended that she should have been allowed the right of redemption. Upon that question the court adhered to its first judgment denying the right, and affirmed the doctrine announced in Benedicto v. Yulo, 26 Phil. 160. We are not disposed to disturb this judgment of the Supreme Court construing local laws and announcing a rule applicable in the Islands. The judgment of the Supreme Court of the Philippines is Affirmed.

243.US.570

When the trial court besides holding the indictment defective for not following the language of the statute bases its decision also upon the ground that the statute does not apply to the facts alleged the decision as to the latter grpund is reviewable under the Criminal Appeals Act. A deputy clerk of the District Court of Hawaii who converts to his own use fees deposited by litigants to secure the payment of costs *i n bankruptcy and other cases is punishable under'§ 97 of the Penal Code.

This is an indictment of a deputy clerk of the district court of Hawaii for converting to his own use moneys of persons other than the United States, deposited with the clerk to secure the payment of costs, by parties to proceedings other than proceedings in bankruptcy (counts 1, 3, 4, 7, 8), or by parties to proceedings in bankruptcy (counts 2, 5, 9). The sixth count charges the defendant, as clerk, with a like conversion. A demurrer to the indictment was sustained and the United States brings the case here. The judge assumed that the costs referred to in the several counts were fees of the clerk, and, we presume, in case of proceedings in bankruptcy, fees collected for the referee and trustee, and also that the funds were funds to be accounted for by the clerk as debtor, not as trustee, under the decision in United States v. Mason, 218 U. S. 517, 531, 54 L. ed. 1133, 1138, 31 Sup. Ct. Rep. 28. He therefore was of opinion that the money was not within the purview of § 99 of the Penal Code [35 Stat. at L. 1106, chap. 321, Comp. Stat. 1913, § 10,267], punishing the embezzlement of money belonging in the registry of the court, etc. The same reasoning led him to the conclusion that § 97 did not apply, and it is the latter proposition that the United States seeks to have revised. The judge objected that the charges in the indictment did not follow the language of § 97, but as he went on to consider whether the statute applied to the facts alleged, we shall deal with the latter question. Concerning the sufficiency of the indictment in other aspects, of course, we have nothing to say. By § 97 'any officer of the United States, or any assistant of such officer, who shall embezzle or wrongfully convert to his own use any money or property which may have come into his possession or under his control in the execution of such office or employment, . . . whether the same shall be the money or property of the United States or of some other person or party, shall, where the offense is not otherwise punishable by some statute of the United States,' be fined or imprisoned or both. If, as assumed, the defendant was not punishable under § 99, he was punishable under this. As pointed out by the government, the court below seems to have overlooked the fact that, except in the sixth count, the defendant is alleged to have been an assistant clerk, not the clerk. Whether it belonged to the United States or to the clerk, the money was not his and the case is within the words just quoted from the act. We confine our decision to the point raised by the assignment of error; upon that the decision was wrong. Judgment reversed. Mr. Justice McKenna dissents for the reasons given by Judge Morrow.

246.US.357

A law of a State, governing a life insurance contract made locally between a resident citizen and a locally licensed foreign corporation, and prescribing how the net value of the policy shall be applied to avoid forfeiture if the premium be not paid, cannot be extended so as to prevent the policyholder, while present in such State; and the company from making and carrying out a subsequent, independent agreement in the company's home State, pursuant to its laws, whereby the policy is pledged as security for a loan and afterwards canceled in satisfaction of the indebtedness. Such attempt to engraft the law of the policy upon the subsequent contract, so that the insurance shall remain enforcible in the courts of the State where the policy was issued without regard to its termination in satisfaction of the loan, is an invasion of the citizen's liberty of contract under the Fourteenth Amendment, and cannot be sustained through the license to the foreign corporation. A life insurance policy, issued in Missouri to a resident and citizen of Missouri by a New York corporation with Missouri license, provided that the insured might obtain cash loans on the security of the policy on application at the company's home office, subject to the terms of its loan agreement, and that any indebtedness to the company should be deducted in any settlement of the policy or of any benefit thereunder. Held, that this imposed no obligation on the company to make a loan subject to a Missouri nonforfeiture law governing the policy and devoting three-fourths of its net value to satisfaction of premium indebtedness exclusively and extension of the insurance, in case of default. Upon application, based on such a policy, addressed to the company at New York, accompanied by a loan agreement, both signed by the insured and beneficiary in Missouri, where both were resident citizens, and forwarded, with pledge of the policy as security, through the company's Missouri agent, and all received and accepted at its home office in New York, a loan was made, the amount being remitted by mail to the insured in Missouri in the form of the company's check on a New York bank payable to his order. The agreement declared, in substance, that it was made and to be performed entirely in New York under New York laws. Under it, in accordance with those laws, the pledge was foreclosed and the reserve of the policy extinguished in satisfying the loan. Held, that the agreement was a valid New York contract, independent of the policy, and that the foreclosure was a defense to an action on the policy in the courts of Missouri, notwithstanding a Missouri nonforfeiture statute (Rev. Stats. 1899, § 7897), devoting three-fourths of the net value to payment of premium indebtedness exclusively and in extension of the insurance, was there construed as continuing the insurance in force. 189 S. W. Rep. 609, reversed.

Defendant in error brought suit January 27, 1915, in circuit court, Phelps county, Missouri, upon a policy dated October 20, 1900, on life of her husband Josiah B Dodge, who died February 12, 1912. She alleged: That plaintiff in error, a New York corporation, had long maintained local offices and carried on the business of life insurance in Missouri, where she and her husband resided; that in 1900, at St. Louis, he applied for and received the policy, she being named as beneficiary; that premiums were paid to October 20, 1907, when the policy lapsed, having then a net value, three-fourths of which, less 'indebtedness to the company given on account of past premium payments' applied as required by the Missouri nonforfeiture statute (section 7897), sufficed to extend it beyond assured's death. Further, that upon application by assured and herself presented at St. Louis the company there made him loans amounting, October 20, 1907, to $1,350, but of this only $599.65 had been applied to premiums. She asked judgment for full amount of policy less loan, unpaid premiums, interest, etc. Answering, the company admitted issuance of policy, but denied liability because assured borrowed of it, November 1906, at its home office, New York City, $1,350, hypothecating the policy there as security, and then failed to pay premium due October 20, 1907, whereupon in strict compliance with New York law and agreements made there the entire reserve was appropriated to satisfy the loan, and all obligation ceased. The assured being duly notified offered no objection. It further set up that as the loan, pledge and foreclosure were within New York the federal Constitution protected them against inhibition or modification by a Missouri statute, and, if intended to produce such result, section 7897, Rev. Stats. Mo. 1899, lacked validity. In reply, defendant in error denied assent to alleged settlement, maintained all transactions in question took place in Missouri, and asserted validity of its applicable statutes. The Springfield Court of Appeals affirmed a judgment for $2,233.45—amount due after deducting loan, unpaid premiums, etc. 189 S. W. 609. It declared former opinions of the state Supreme Court conclusively settled the constitutionality of section 7897, and that the reserve, after paying advances for premiums was thereby appropriated to purchasing term insurance, notwithstanding any contrary agreement. Burridge v. Insurance Co., 211 Mo. 158, 109 S. W. 560; Smith v. Mut. Ben. Life Ins. Co., 173 Mo. 329, 72 S. W. 935. Effort to secure a review by the Supreme Court failed. Section 7897, Rev. Stats. of Mo. 1899, in effect until amended in 1903, provides: 'No policies of insurance on life hereafter issued by any life insurance company authorized to do business in this state, * * * shall, after payment upon it of three annual payments, be forfeited or become void, by reason of nonpayment of premiums thereof but it shall be subject to the following rules of commutation, to wit: The net value of the policy, when the premium becomes due, and is not paid, shall be computed * * * and after deducting from three-fourths of such net value, any notes or other evidence of indebtedness to the company, given on account of past premium payments on said policies, issued to the insured, which indebtedness shall be then canceled, the balance shall be taken as a net single premium for temporary insurance for the full amount written in the policy. * * *' This section and number 7899 are in the margin.1 Both defendant in error and her husband, the assured, at all times here material resided in Missouri. Being duly licensed by that state, plaintiff in error, responding to an application signed by Josiah B. Dodge at St. Louis, issued and delivered to him there a five thousand dollar twenty-year endowment policy upon his life, dated October 20, 1900, naming his wife beneficiary but reserving the right to designate another. Among other things, it stipulated: 'Cash loans can be obtained by the insured on the sole security of this policy on demand at any time after this policy has been in force two full years, if premiums have been duly paid to the anniversary of the insurance next succeeding the date when the loan is made. Application for any loan must be made in writing to the home office of the company, and the loan will be subject to the terms of the company's loan agreement. The amount of loan available at any time is stated below, and includes any previous loan then unpaid. Interest will be at the rate of five per cent. per annum in advance.' Continuation after failure to pay premium was gu ranteed, also reinstatement within five years. It further provided: 'Premiums are due and payable at the home office, unless otherwise agreed in writing, but may be paid to an agent producing receipts signed by one of the above-named officers and countersigned by the agent. If any premium is not paid on or before the day when due, or within the month of grace the liability of the company shall be only as hereinbefore provided for such case.' 'Any indebtedness to the company, including any balance of the premium for the insurance year remaining unpaid will be deducted in any settlement of this policy or of any benefit thereunder.' By an application addressed to the company at New York accompanied by a loan agreement, both signed at St. Louis and 'forwarded from Missouri Clearing House branch office, August 29, 1903,' together with pledge of the policy—all received and accepted at the home office in New York City—the assured obtained from the company a loan of $490. Its check for the proceeds drawn on a New York bank and payable to his order was sent to him at St. Louis by mail. Annually thereafter the outstanding loan was settled and a larger one negotiated—all in substantial accord with plan just described. The avails were applied partly to premiums; the balance went directly to assured by the company's check on a New York bank. Copies of last application, loan agreement and instruction which follow indicate the details of the transaction: Application. Nov. 9, 1906. New York Life Insurance Company, 346 & 348 Broadway, New York: Re Policy No. 2054961. Application is hereby made for a cash loan of $1,350.00 on the security of the above policy, issued by the New York Life Insurance Company on the life of Josiah B. Dodge, subject to the terms of said company's loan agreement. Said policy is forwarded herewith for deposit with said company as collateral security, together with said company's loan agreement duly signed in duplicate. Josiah B. Dodge. Leo F. Dodge. Forwarded from Missouri Clearing House, Branch Office Nov. 9, 1906. M. F. Bayard, Cashier. Policy Loan Agreement. Pursuant to the provisions of policy No. 2054961 issued by the New York Life Insurance Company on the life of Josiah B. Dodge, the undersigned has this day obtained a cash loan from said company of the sum of thirteen hundred fifty dollars ($1,350.00), the receipt of which is hereby acknowledged, conditioned upon pledging as collateral said policy with said company as sole security for said loan and giving assent to the terms of this policy loan agreement; therefore: In consideration of the premises, the undersigned hereby agree as follows: 1. To pay said company interest on said loan at the rate of five per cent. per annum, payable in advance from this date to the next anniversary of said policy, and annually in advance on said anniversary and thereafter. 2. To pledge, and do hereby pledge, said policy as sole security for the payment of said loan and interest and herewith deposit said policy with said company at its home office. 3. To pay said company said sum when due with interest, reserving, however, the right to reclaim said policy by repayment of said loan with interest at any time before due, said repayment to cancel this agreement without further action. 4. That said loan shall become due and payable—— (a) Either if any premium on said policy or any interest on said loan is not paid on the date when due, in which event said pledge shall, without demand or notice of any kind, every demand and notice being hereby waived, be foreclosed by satisfying said loan in the manner provided in said policy; (b) Or (1) on the maturity of the policy as a death claim or an endowment; (2) on the surrender of the policy for a cash value; (3) on the selection of a discontinuing option at the end of any dividend period. In any such event the amount due on said loan shall be deducted from the sum to be paid or allowed u der said policy. 5. That the application for said loan was made to said company at its home office in the city of New York, was accepted, the money paid by it, and this agreement made and delivered there; that said principal and interest are payable at said home office; and that this contract is made under and pursuant to the laws of the state of New York, the place of said contract being said home office of said company. In witness whereof, the said parties hereto have hereunto set their hands and affixed their seals this eighth day of November, 1906. Josiah B. Dodge. [L. S.] Leo F. Dodge. [L. S.] Signed and sealed in presence of Geo. T. Lewis. Forwarded from Missouri Clearing House, Branch Office, Nov. 9, 1906. M. F. Bayard, Cashier. Instruction. Nov. 9, 1906. New York Life Insurance Company, 346 & 348 Broadway, New York. Re Policy No. 2054961. Please deduct from the cash loan of $1,350.00 applied for on Nov., 1906, on the security of the above policy, an amount sufficient to pay present loan and prem. and int. to Oct., '07. Josiah B. Dodge. Leo F. Dodge. Witness: Geo. T. Lewis. Forwarded from Missouri Clearing House, Branch Office, Nov. 9, 1906. M. F. Bayard, Cashier. The premium due October 20, 1907, not being paid, the company applied entire reserve in discharge of insured's indebtedness as provided by laws of New York and sent him by mail the following letter: New York, December 17th, 1907. Mr. Josiah B. Dodge, 4952 Maryland Ave., St. Louis, Mo. Re Policy No. 2054961. Dear Sir: By a loan agreement executed on the 8th day of November, 1906, the above policy on the life of Josiah B. Dodge was pledged to and deposited with the New York Life Insurance Company as collateral security for a cash loan of $1,350.00. The premium and interest due on said policy on the 20th day of October, 1907, not having been paid, the principal of said loan became due and has been settled according to the terms of the policy, and the policy has no further value. Yours truly, John C. McCall, Secretary, by E. M. C. This was received by assured December 19, 1907, and neither he nor the beneficiary, during his life, offered objection to the action taken. That the policy when issued to Dodge became a Missouri contract, subject to its statutes, so far as valid and applicable, is undisputed and clear. The controlling doctrine in that regard was announced and applied in Equitable Life Assurance Society v. Clements, 140 U. S. 226, 11 Sup. Ct. 822, 35 L. Ed. 497, New York Life Ins. Co. v. Cravens, 178 U. S. 389, 20 Sup. Ct. 962, 44 L. Ed. 1116, and Northwestern Life Insurance Co. v. Riggs, 203 U. S. 243, 27 Sup. Ct. 126, 51 L. Ed. 168, 7 Ann. Cas. 1104. In each of those cases the controversy related to the interpretation and effect of an original policy—not a later good faith agreement between the parties. We held that to the extent there stated the state had power to control insurance contracts made within its borders. With those conclusions we are now entirely content; but they do not rule the question presently presented. Here the controversy concerns effect of the state statute upon agreements between the parties made long after date of the policy and action taken thereunder; their essential fairness and accordance with New York laws are not challenged. Considering the circumstances recited above, we think competent parties consummated the loan contract now relied upon in New York where it was to be performed. And, moreover, that it is one of a kind which ordinarily no state by direct action may prohibit a citizen within her borders from making outside of them. It should be noted that the clause in the policy providing 'cash loans can be obtained by the insured on the sole security of this policy on demand, etc.,' certainly imposed no obligation upon the company to make such a loan if the Missouri statute applied and inhibited valid hypothecation of the reserve as security therefor as defendant in error maintains. She canno , therefore, claim anything upon the theory that the loan contract actually consummated was one which the company had legally obligated itself to make upon demand. In Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832, we held a Louisiana statute invalid which undertook to restrict the right of a citizen while within that state to place insurance upon property located there by contract made and to be performed beyond its borders. We said, 'The mere fact that a citizen may be within the limits of a particular state does not prevent his making a contract outside its limits while he himself remains within it,' and ruled that under the Fourteenth Amendment the right to contract outside for insurance on property within a state is one which cannot be taken away by state legislation. So to contract is a part of the liberty guaranteed to every citizen. The doctrine of this case has been often reaffirmed and must be accepted as established. Nutting v. Mass., 183 U. S. 553, 557, 22 Sup. Ct. 238, 46 L. Ed. 324; Delamater v. South Dakota, 205 U. S. 93, 102, 27 Sup. Ct. 447, 51 L. Ed. 724, 10 Ann. Cas. 733; Provident Savings Ass'n v. Kentucky, 239 U. S. 103, 114, 36 Sup. Ct. 34, 60 L. Ed. 167, L. R. A. 1916C, 572; Adams v. Tanner, 244 U. S. 590, 595, 37 Sup. Ct. 662, 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973. The court below rested its judgment denying full effect to the loan agreement upon Smith v. Mut. Ben. Life Ins. Co., supra, and Burridge v. Insurance Co., supra. In them the Supreme Court distinctly held section 7897 controlling and the insurer liable upon policies actually issued in Missouri notwithstanding any subsequent stipulation directing different disposition of reserve after default. In the latter it expressly approved the doctrine of the first and, among other things (211 Mo. 171, 109 S. W. 564), said: 'Attending to that section [No. 7897] as it read when the policy issued and when the insured died, it will be observed that the net value of the policy is to be computed. Then from three-fourths of such net value there is to be taken away what? All indebtedness? Not at all. There shall be taken away 'any motes or other evidence of indebtedness to the company, given on account of past premium payments on said policies.' The residue, if any, then goes automatically to the purchase of temporary or extended insurance. * * * In that [the Smith] case, therefore, the scope and meaning of that clause of our non-forfeiting insurance statute was held in judgment in the stiffest sense and this court decided that the statute was mandatory; that the character of the indebtedness to be deducted from the net value before applying the residue to the purchase of temporary or extended insurance must be looked to and was limited by the clear words of the statute 'to notes or other evidences of indebtedness to the company, given on account of past premium payments' on the policy issued to the insured; and did not include notes and evidences of indebtedness arising in other ways. It is not apparent, assuming the statute be constitutional, how, giving heed to the hornbook maxim, expressio unius, etc., any other conclusion could have been arrived at in reason. It was held furthermore, in effect, that such provisions of law evidenced a sound and just governmental policy, and wrote into every policy of life insurance, coming within its purview, a mandate not to be abrogated in whole, or hedged about or lopped off in detail, by policy provisions, nor to be contracted away otherwise than as prescribed by statute.' Treating the loan to Dodge as made under a New York agreement which Missouri lacked power directly to control, the question presented becomes similar in principle to the one decided in New York Life Insurance Co. v. Head, 234 U. S. 149, 34 Sup. Ct. 879, 58 L. Ed. 1259. There suit was instituted in Missouri upon a policy personally applied for and received while in that state by a citizen of New Mexico. Nine years afterwar s, having duly acquired the policy in New Mexico, the transferee wrote from there to the insurer in New York and effected a loan under an agreement like the one now before us. The state courts held the policy a Missouri contract and the loan agreement controlled by its non-forfeiture statute. Assuming the policy to be a Missouri contract, we declared that state without power to extend its authority over citizens of New Mexico and into New York and forbid the later agreement there made simply because it modified the first one. We said: 'It would be impossible to permit the statutes of Missouri to operate beyond the jurisdiction of that state and in the state of New York and there destroy freedom of contract without throwing down the constitutional barriers by which all the states are restricted within the orbits of their lawful authority and upon the preservation of which the government under the Constitution depends.' The reasoning advanced by the Missouri Supreme Court to support its ruling was thus summarized: 'As foreign insurance companies have no right to come into the state and there do business except as the result of a license from the state and as the state exacts as a condition of a license that all foreign insurance companies shall be subject to the laws of the state as if they were domestic corporations, it follows that the limitations of the state law resting upon domestic corporations also rest upon foreign companies and therefore deprive them of any power which a domestic company could not enjoy, thus rendering void or inoperative any provision of their charter or condition in policies issued by them or contracts made by them inconsistent with the Missouri law.' And this argument we declared unsound since the—— 'proposition cannot be maintained without holding that because a state has power to license a foreign insurance company to do business within its borders and the authority to regulate such business, therefore a state has power to regulate the business of such company outside its borders and which would otherwise be beyond the state's authority—a distinction which brings the contention right back to the primordial conception upon which alone it would be possible to sanction the doctrine contended for, that is, that because a state has power to regulate its domestic concerns, therefore it has the right to control the domestic concerns of other states.' Under the laws of New York, where the parties made the loan agreement now before us, it was valid; also it was one which the Missouri Legislature could not destroy or prevent a citizen within its borders from making beyond them by direct inhibition; and applying the principles accepted and enforced in Insurance Co. v. Head, we think the necessary conclusion is that such a contract could not be indirectly brought into subjection to statutes of the state and rendered ineffective through a license authorizing the insurance company there to do business. As construed and applied by the Springfield Court of Appeals, section 7897 transcends the power of the state. To hold otherwise would permit destruction of the right often of great value—freely to borrow money upon a policy from the issuing company at its home office and would, moreover, sanction the impairment of that liberty of contract guaranteed to all by the Fourteenth Amendment. Reversed.

244.US.388

While the power of the States over the railways within their borders is very great and comprehensive, the property of the railways is nevertheless protected by the fundamental guaranties of the Constitution, is entitled to as full protection as any other private property devoted to a public use, and can not be taken from its owners without'just compensation or without due process of law. An attempt upon the part of a state commission to exercise the power of regulation in such an arbitrary and unreasonable manner as to prevent a railroad company from obtaining a fair return upon its property invested in the public service is repugnant to due process of law and. void under the Fourteenth Amendment. Upon the facts of this case, Held that an order of the Mississippi Railroad Commission; requiring the appellee company to restore certain passenger trains to service on its line within that State, was arbitrary, unreasonable, in excess of the lawful powers of the commission, and void under the due process clause of the Fourteenth Amendment. The reasonableness of requiring a carrier to operate specified trains can not be made to depend upon the relation of the money return to the "out-of-pocket" cost, i. e., immediate outlay for wages and fuel, involved in their operation. Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585. The action of the Railroad Commission in this case, though expressed in a separate order as to each train directed to be restored, was based upon one citation and was intended by the commission, and treated by the court below, as in effect but one order for the restoration of all the trains; this-court therefore treats it as a unity, without determining whether some improvement of the train service might not properly have been required. Affirmed.

This is a direct appeal from an order of the district court for the southern district of Mississippi, three judges sitting, granting an interlocutory injunction restraining the Mississippi Railroad Commission and the attorney general of that state from enforcing six separate orders entered by the Commission on one citation in one case on October 7, 1914, requiring the appellee to restore to service six passenger trains,—two each way daily between Meridian and Waynesboro, a town 52 miles to the south, and one train each way daily between Meridian and Okolona, a town 127 miles to the north,—all in the state of Mississippi. The trains between Meridian and Okolona which were discontinued were interstate trains; the others were local to the state. The appellee averred several grounds for the injunction prayed for, but the conclusion which we have reached calls upon us to consider only one of them, viz.: That the depression of business incident to the European war had so reduced the income of the railroad company that, at the time the order was entered, it was less than its current expenses; that a large loss would be incurred in operating each of the six trains; that without these trains there remained reasonably adequate service, having regard to the population of the territory involved, and that the general financial condition of the company was such that the order, if enforced, would deprive the company of its property without due process of law and of the equal protection of the laws, in violation of the 14th Amendment to the Constitution of the United States. The principles of law applicable to the decision of such a case as this record presents are few, and they have become so settled and so familiar by repeated decisions of this court that extended discussion of them would be superfluous. They are these: A state may regulate the conduct of railways within its borders, either directly or through a body charged with the duty and invested with powers requisite to accomplish such regulations. Mississippi R. Commission v. Illinois C. R. Co. 203 U. S. 335, 51 L. ed. 209, 27 Sup. Ct. Rep. 90; Prentis v. Atlantic Coast Line R. Co. 211 U. S. 210, 53 L. ed. 150, 29 Sup. Ct. Rep. 67; Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 58 L. ed. 229, 34 Sup. Ct. Rep. 48. Under this power of regulation a state may require carriers to provide reasonable and adequate facilities to serve not only the local necessities, but the local convenience, of the communities to which they are directly tributary. Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. ed. 702, 19 Sup. Ct. Rep. 465; Clevelant, C. C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 44 L. ed. 868, 20 Sup. Ct. Rep. 722; Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 51 L. ed. 933, 27 Sup. Ct. Rep. 585; Missouri P. R. Co. v. Kansas, 216 U. S. 262, 54 L. ed. 472, 30 Sup. Ct. Rep. 330; Chicago, B. & Q. R. Co. v. Railroad Commission, 237 U. S. 220, 59 L. ed. 926, P.U.R.1915C, 309, 35 Sup. Ct. Rep. 560; and such regulation may extend in a proper case to requiring the running of trains in addition to those provided by the carrier, even where this may involve some pecuniary loss. Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 51 L. ed. 933, 27 Sup. Ct. Rep. 585; and Missouri P. R. Co. v. Kansas, 216 U. S. 262, 54 L. ed. 472, 30 Sup. Ct. Rep. 330. But, while the scope of this power of regulation over carriers is very great and comprehensive, the property which is invested in the railways of the country is nevertheless under the protection of the fundamental guaranties of the Constitution and is entitled to as full protection of the law as any other private property devoted to a public use, and it cannot be taken from its owners without just compensation, or without due process of law. Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 45 L. ed. 194, 21 Sup. Ct. Rep. 115; Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, supra; Northern P. R. Co. v. North Dakota, 236 U. S. 585, 59 L. ed. 735, L.R.A.——, ——, P.U.R.1915C, 277, 35 Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1; Chicago, M. & St. P. R. Co. v. Wisconsin, 238 U. S. 491, 59 L. ed. 1423, L.R.A.1916A, 1133, P.U.R.1915D, 706, 35 Sup. Ct. Rep. 869. This power of regulation, if it is exercised in such an arbitrary or unreasonable manner as to prevent the company from obtaining a fair return upon the property invested in the public service, passes beyond lawful bounds and is void, because repugnant to the due process of law provision of the 14th Amendment to the Constitution of the United States. Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, supra; Missouri P. R. Co. v. Nebraska, 217 U. S. 196, 54 L. ed. 727, 30 Sup. Ct. Rep. 461, 18 Ann. Cas. 989; Missouri P. R. Co. v. Tucker, 230 U. S. 340, 57 L. ed. 1507, 35 Sup. Ct. Rep. 961; Northern P. R. Co. v. North Dakota, 236 U. S. 585, 59 L. ed. 735, L.R.A.——, ——, P.U.R.1915C, 277, 35 Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1. Whether a statute enacted by the legislature of a state, or an order passed by a railroad commission, exceeds the bounds which the law thus sets to such authority, is a question of law arising on the facts of each case (Mississippi R. Commission v. Illinois C. R. Co. 203 U. S. 335, 51 L. ed. 209, 27 Sup. Ct. Rep. 90), and the appropriate remedy for determining that question is a bill in equity such as was filed in this case to enjoin its enforcement (Ibid.; Chicago, M. & St. P. R. Co. v. Wisconsin, 238 U. S. 491, 59 L. ed. 1423, L.R.A.1916A, 1133, P.U.R.1915D, 706, 35 Sup. Ct. Rep. 869). With these principles in mind we pass to a consideration of the question of law which the facts of this particular case present for our decision. The case was heard on bill, answer, and testimony which are all before us, and the facts appearing may be summarized as follows: The Mobile & Ohio Railroad Company is an interstate carrier operating a line of railway from Mobile, Alabama, to St. Louis, Missouri. This evidence is uncontradicted; that the company is not overcapitalized, that it has been wisely and economically managed, and that, nevertheless, its net earnings above the cost of operation, fixed charges, and taxes, and before making any allowance for betterments or for dividends, were only $85,000 for the year ending June 30, 1914. It never paid a greater dividend than 5 per cent, and this for only a few years in its history; in the month of July, 1914, on its entire system the company earned a surplus over fixed charges and taxes of $11,000; in the month of August it showed a deficit of $56,641, and in September the deficit became $113,627,—this without making any deduction for betterments or improvements or dividends. The trains ordered restored were numbered 7, 8, 9, 10, 11, and 12, and they were all put into operation by the defendant railroad company as experiments from time to time within a few years prior to 1914 without any order of the Commission, in the hope of building up passenger business; but the record shows that not one of them at any time paid the cost of operation. The territory under consideration is sparsely settled and the chief traffic of the company is lumber and cotton, and the resulting general freight due to a marketing of these commodities. The depression in these staples was very great prior to and at the time the case was heard. The uncontradicted testimony of the auditor of the company shows that the passenger revenue per train mile, of the trains ordered restored, for the three months next before the passing of the order, was: for July, 65 cents; for August, 64 cents; and for September, 56 cents; that the average passenger revenue per train mile of trains 7, 8, 9, and 10 from October 1st to October 5th (the next day but one before the order was passed), was 36 cents, and that of trains 11 and 12 for the same six days was 25 cents. The auditor also testifies that as near an approximation as could be arrived at showed the total revenue of the company derived from passenger traffic for the two months ending August 31, 1914, was $331,102.25, and that the total expenses and taxes allotted to this service amounted to $339,247.60, making the passenger revenue per train mile .9708, and that the expenses and taxes per train mile amounted to .9944, or a net loss per passenger train mile of .0236. The secretary of the company testified that on September 30, 1914, the company had a working balance of $74,885.79, and that there were unpaid vouchers amounting to $1,027,319, some of which dated as far back as November of the preceding year; that these vouchers did not represent any fixed charges or any interest, and that the normal amount of approved unpaid vouchers was between $400,000 and $500,000. The evidence further shows that, in order to avoid insolvency, the company had reduced expenses in many ways, including even the expense of repairs to locomotives and cars of every description; that the president and vice president had voluntarily submitted to a reduction of 20 per cent in their salaries, and that the salaries of all the other officers had been reduced on a sliding scale up to 10 per cent. The falling off in earnings for the first seventeen days in October, as compared with the preceding year, was $165,742, or approximately $10,000 a day, and the estimated saving to the company of taking off of the six trains involved in this controversy was $10,000 a month. The company introduced in evidence sixty-one affidavits from what is claimed to be substantially all of the important business men in the towns which would be most affected by the taking off of the trains, who agree in saying, that while these trains were a convenience to the traveling public, that owing to business conditions then prevailing there was not much travel and would not be until the trade depression was over; that the taking off of the trains would not materially injure the business of the various towns in which they lived, and that if the trains were losing money and the total business of the company was not profitable, in their judgment the company should be allowed to discontinue them. The territory between Meridian and Waynesboro is not a productive agricultural section, and in the 52 miles between the two towns there are five 'fair sized towns' and five small villages, which, according to the 1910 census, had a population of only 5,456, and there is no evidence that the population had increased up to the time of trial. The service which remained between Meridian and Waynesboro to the south, after these trains were taken off, consisted of two trains each way each twenty-four hours, and between Meridian and Okolona there remained three trains each way every twenty-four hours. All of the trains which were continued were through interstate trains, which, while the local trains were being run, made very few stops, but when the local trains were taken off, each of these trains made all the stops between Waynesboro, Meridian, and Okolona, with the result that, whereas formerly train No. 4, for example, made seven stops between Meridian and Okolona, under the new schedule it made twenty-two. The evidence on which the Railroad Commission acted is summarized in the record and it is impressively meager in extent and inadequate in character. It consists of the testimony of two men, wholly without qualifying training or experience, as to the cost of operating such trains, and of a number of men as to the inconvenience which would be caused by the taking off of the trains, chiefly to commercial travelers living in Meridian, desiring to visit the small villages and hamlets on the line. The testimony of the one member of the Commission who appeared as a witness shows that the reasonableness of the order was made to turn on what the Commission estimated was the 'out-of-pocket' cost, the immediate cash outlay in wages and fuel, of operating the six trains. But this cannot be accepted as a proper basis for determining such cost. Northern P. R. Co. v. North Dakota, 236 U. S. 585, 594, 596, 59 L. ed. 735, 741, 742, L.R.A.——, ——, P.U.R.1915C, 277, 35 Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1. Thus summarized this evidence shows that the plaintiff railroad company, an important interstate carrier, was operating before the business depression incident to the war on a margin so narrow that the $85,000 of profit for the entire preceding year would have been more than swallowed up in nine days by the shrinkage of business of the company as it was when this controversy arose; that, without being able to meet its growing deficit, the company had resorted to rigid economies of every sort before it discontinued these six trains the continued operation of which would have involved a loss of $10,000 a month; that the three daily trains each way to the north of Meridian which remained after the taking off of the trains which gave rise to the controversy cannot be said to be inadequate to the needs of the comparatively small population to be served, and that while the service to the south of Meridian—with but two trains each way in twenty-four hours, and these running at hours inconvenient for the transaction of business—cannot be thought a liberal service, yet these orders were intended by the Commission to be in effect one order for the restoration of the six trains; they were thus treated in the court below and must be so treated here. Looking to the extent and productiveness of the business of the company as a whole, the small traveling population to be served, the character and large expense of the service required by this order, and to the serious financial conditions confronting the carrier, with the public loss and inconvenience which its financial failure would entail, we fully agree with the district court in concluding that the order of the Commission at the time and under the circumstances when it was issued was arbitrary and unreasonable and in excess of the lawful powers of the Commission, and that if enforced it would result in such depriving of the railroad company of its property without due process of law as is forbidden by the 14th Amendment to the Constitution of the United States. The order of the District Court granting the injunction must be affirmed.

246.US.297

The court notices judicially that the Government of the United States recognized the Government of Carranza as the de facto government of the Republic of Mexico, on October 19, 1915, and as the de jure government on August 31, 1917. Semble, that the Hague Conventions, in view of their terms and international character, do not apply to a civil war, and that the regulations annexed to the Convention of 1907 do not forbid such a military seizure and sale of private property as is involved in this case. The conduct of our foreign relations is committed by the Constitution to the executive and legislative-the political-departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or

These two cases involving the same question, were argued and will be decided together. They are suits in replevin and involve the title to two large consignments of hides, which the plaintiff in error claims to own as assignee of Martinez & Co., a partnership engaged in business in the city of Torreon, Mexico, but which the defendant in error claims to own by purchase from the Finnegan-Brown Company, a Texas corporation which it is alleged purchased the hides in Mexico from General Francisco Villa on January 3, 1914. The cases were commenced in a circuit court of New Jersey in which judgments were rendered for the defendants, which were affirmed by the Court of Errors and Appeals (87 N. J. Law, 552, 94 Atl. 789, L. R. A. 1917A, 276; 87 N. J. Law, 704, 96 Atl. 1102), and they are brought to this court on the theory that the claim of title to the hides by the defendant in error is invalid because based upon a purchase from General Villa, who, it is urged, confiscated them contrary to the provisions of the Hague onvention of 1907 respecting the laws and customs of war on land; that the judgment of the state court denied to the plaintiff in error this right which he 'set up and claimed' under the Hague Convention or treaty; and that this denial gives him the right of review in this court. A somewhat detailed description will be necessary of the political conditions in Mexico prior to and at the time of the seizure of the property in controversy by the military authorities. It appears in the record, and is a matter of general history, that on February 23, 1913, Madero, President of the Republic of Mexico, was assassinated; that immediately thereafter General Huerta declared himself Provisional President of the Republic and took the oath of office as such; that on the 26th day of March following General Carranza, who was then governor of the state of Coahuila, inaugurated a revolution against the claimed authority of Huerta and in a 'Manifesto Addressed to the Mexican Nation' proclaimed the organization of a constitutional government under 'the plan of Guadalupe,' and that civil war was at once entered upon between the followers and forces of the two leaders. When General Carranza assumed the leadership of what were called the Constitutionalist forces he commissioned General Villa his representative, as 'Commander of the North,' and assigned him to an independent command in that part of the country. Such progress was made by the Carranza forces that in the autumn of 1913 they were in military possession, as the record shows, of approximately two-thirds of the area of the entire country, with the exception of a few scattered towns and cities, and after a battle lasting several days the city of Torreon in the state of Coahuila was captured by General Villa on October 1 of that year. Immediately after the capture of Torreon, Villa proposed levying a military contribution on the inhabitants, for the support of his army, and thereupon influential citizens, preferring to provide the required money by an assessment upon the community, to having their property forcibly seized, called together a largely attended meeting and after negotiations with General Villa as to the amount to be paid, an assessment was made on the men of property of the city, which was in large part promptly paid. Martinez, the owner from whom the plaintiff in error claims title to the property involved in this case, was a wealthy resident of Torreon and was a dealer in hides in a large way. Being an adherent of Huerta, when Torreon was captured Martinez fled the city and failed to pay the assessment imposed upon him, and it was to satisfy this assessment that, by order of General Villa, the hides in controversy were seized and on January 3, 1914, were sold in Mexico to the Finnegan-Brown Company. They were paid for in Mexico, and were thereafter shipped into the United States and were replevied, as stated. This court will take judicial notice of the fact that since the transactions thus detailed and since the trial of this case in the lower courts, the government of the United States recognized the government of Carranza as the de facto government of the Republic of Mexico, on October 19, 1915, and as the de jure government on August 31, 1917. Jones v. United States, 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691; Underhill v. Hernandez, 168, U. S. 250, 18 Sup. Ct. 83, 42 L. Ed. 456. On this state of fact the plaintiff in error argues that the 'Regulations' annexed to the Hague Convention of 1907 'Respecting Laws and Customs of War on Land' constitute a treaty between the United States and Mexico; that these 'Regulations' forbid such seizure and sale of property as we are considering in this case; and that, therefore, somewhat vaguely, no title passed by the sale made by General Villa and the property may be recovered by the Mexican owner or his assignees when found in this country. It would, perhaps, be sufficient answer to this contention to say that the Hague Conventions are international in character, des gned and adapted to regulate international warfare, and that they do not, in terms or in purpose, apply to a civil war. Were it otherwise, however, it might be effectively argued that the declaration relied upon that 'private property cannot be confiscated' contained in article 46 of the Regulations does not have the scope claimed for it, since article 49 provides that 'money contributions * * * for the needs of the army' may be levied upon on occupied territory, and article 52 provides that 'requisitions in kind and services may be demanded for the needs of the army of occupation,' and that contributions in kind shall, as far as possible, be paid for in cash, and when not so paid for a receipt shall be given and payment of the amount due shall be made as soon as possible. And also for the reason that the 'Convention' to which the 'Regulations' are annexed, recognizing the incomplete character of the results arrived at, expressly provides that until a more complete code is agreed upon, cases not provided for in the 'Regulations' shall be governed by the principles of the law of nations. But, since claims similar to the one before us are being made in many cases in this and in other courts, we prefer to place our decision upon the application of three clearly settled principles of law to the facts of this case as we have stated them. The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative 'the political'—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision. United States v. Palmer, 3 Wheat. 610, 4 L. Ed. 471; Foster v. Neilson, 2 Pet. 253, 307, 309, 7 L. Ed. 415; Garcia v. Lee, 12 Pet. 511, 517, 520, 9 L. Ed. 1176; Williams v. Suffolk Ins. Co., 13 Pet. 415, 420, 10 L. Ed. 226; In re Cooper, 143 U. S. 472, 499, 12 Sup. Ct. 453, 36 L. Ed. 232. It has been specifically decided that: 'Who is the sovereign, de jure or de facto, of a territory is not a judicial, but is a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances.' Jones v. United States, 137 U. S. 202, 212, 11 Sup. Ct. 80, 83 (34 L. Ed. 691). It is also the result of the interpretation by this court of the principles of international law that when a government which originates in revolution or revolt is recognized by the political department of our government as the de jure government of the country in which it is established, such recognition is retroactive in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence. Williams v. Bruffy, 96 U. S. 176, 186, 24 L. Ed. 716; Underhill v. Hernandez, 168 U. S. 250, 253, 18 Sup. Ct. 83, 42 L. Ed. 456. See s. c., 65 Fed. 577, 13 C. C. A. 51, 38 L. R. A. 405. 'Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be available of by sovereign powers as between themselves.' Underhill v. Hernandez, 168 U. S. 250, 252, 18 Sup. Ct. 83, 84 (42 L. Ed. 456); American Banana Co. v. United Fruit Co., 213 U. S. 347, 29 Sup. Ct. 511, 53 L. Ed. 826, 16 Ann. Cas. 1047. Applying these principles of law to the case at bar, we have a duly commissioned military commander of what must be accepted as the legitimate government of Mexico, in the progress of a revolution, and when conducting active independent operations, seizing and selling in Mexico, as a military contribu ion, the property in controversy, at the time owned and in the possession of a citizen of Mexico, the assignor of the plaintiff in error. Plainly this was the action, in Mexico, of the legitimate Mexican government when dealing with a Mexican citizen, and, as we have seen, for the soundest reasons, and upon repeated decisions of this court such action is not subject to re-examination and modification by the courts of this country. The principle that the conduct of one independent government cannot be successfully questioned in the courts of another is as applicable to a case involving the title to property brought within the custody of a court, such as we have here, as it was held to be to the cases cited, in which claims for damages were based upon acts done in a foreign country, for it rests at last upon the highest considerations of international comity and expediency. To permit the validity of the acts of one sovereign state to be reexamined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations.' It is not necessary to consider, as the New Jersey court did, the validity of the levy of the contribution made by the Mexican commanding general, under rules of international law applicable to the situation, since the subject is not open to re-examination by this or any other American court. The remedy of the former owner, or of the purchaser from him, of the property in controversy, if either has any remedy, must be found in the courts of Mexico or through the diplomatic agencies of the political department of our government. The judgments of the Court of Errors and Appeals of New Jersey must be Affirmed.

242.US.367

The provision in § 9 of Article I of the Constitution guaranteeing the privilege of habeas corpus is not a limitation upon state action. A decision of a state Supreme Court, involving only the construction of the state constitution and statutes respecting thc jurisdiction of state courts, can raise no question under the due process or equal protection clauses of the Fourteenth Amendment. To invoke the full faith and credit clause and the act of Congress passed to carry it into effect, Article IV, § 1; Rev. Stats., § 905, on behalf of a judgment of one State in a court of another, it is necessary by allegation or proof, or in some other recognized mode, to bring to the attention of that court the law or usage which defines the effect of the judgment in the State of its rendition. Assignments of error contrary to the foregoing propositions are frivolous. Writ of error to review 136 Louisiana, 957, dismissed.

In a proceeding against the plaintiff in error, wherein he was fully heard, the civil district court of the parish of his residence and domicil pronounced a judgment of interdiction against him. He appealed to the supreme court of the state, which affirmed the judgment (136 La. 957, 68 So. 89), and thereafter he sued out this writ of error. Our jurisdiction is challenged by a motion to dismiss. There are three assignments of error, and the facts essential to an understanding of two of them are these: After the judgment of interdiction, and before the hearing upon the appeal, the plaintiff in error, who was in custody under an order of the criminal district court of the parish, committing him to an asylum as a dangerous insane person, secured his release from such custody through an original proceeding in habeas corpus in the court of appeal of the parish, which adjudged that he had recovered his sanity. He then called the attention of the supreme court to this judgment and insisted that it was decisive of his sanity at a time subsequent to the judgment of interdiction, and was res judicata of the issue presented on the appeal. But the supreme court held that under the state Constitution and statutes the court of appeal was without jurisdiction, and therefore its judgment was not res judicata. In the assignments of error it is said of this ruling, first, that it practically suspended the privilege of the writ of habeas corpus, contrary to § 9 of article 1 of the Constitution of the United States, and, second, that it denied the plaintiff in error the due process and equal protection guaranteed by the 14th Amendment, in that it did not give proper effect to certain provisions of the Constitution and statutes of the state, bearing upon the jurisdiction of the court of appeal and the supreme court. Both claims, in so far as the Federal Constitution is concerned, are so obviously ill founded and so certainly foreclosed by prior decisions that they afford no basis for invoking our jurisdiction. Section 9 of article 1, as has long been settled, is not restrictive of state, but only of national, action. Munn v. Illinois, 94 U. S. 113, 135, 24 L. ed. 77, 87; Morgan's L. & T. R. & S. S. Co. v. Board of Health, 118 U. S. 455, 467, 30 L. ed. 237, 242, 6 Sup. Ct. Rep. 1114; Johnson v. Chicago & P. Elevator Co. 119 U. S. 388, 400, 30 L. ed. 447, 451, 7 Sup. Ct. Rep. 254. This is also true of the 5th Amendment. Barron v. Baltimore, 7 Pet. 243, 8 L. ed. 672; Booth v. Indiana. 237 U. S. 391, 394, 59 L. ed. 1011, 1016, 35 Sup. Ct. Rep. 617; Hunter v. Pittsburgh, 207 U. S. 161, 176, 52 L. ed. 151, 158, 28 Sup. Ct. Rep. 40. And, as our decisions show, there is nothing in the clauses of the 14th Amendment guarantying due process and equal protection which converts an issue respecting the jurisdiction of a state court under the Constitution and statutes of the state into anything other than a question of state law, the decision of which by the state court of last resort is binding upon this court. Iowa C. R. Co. v. Iowa, 160 U. S. 389, 393, 40 L. ed. 467, 469, 16 Sup. Ct. Rep. 344 Castillo v. McConnico, 168 U. S. 674, 683, 42 L. ed. 622, 625, 18 Sup. Ct. Rep. 229; Rawlins v. Georgia, 201 U. S. 638, 50 L. ed. 899, 26 Sup. Ct. Rep. 560, 5 Ann. Cas. 783; Burt v. Smith, 203 U. S. 129, 135, 51 L. ed. 121, 126, 27 Sup. Ct. Rep. 37; Standard Oil Co. v. Missouri, 224 U. S. 270, 280, 281, 56 L. ed. 760, 767, 768, 32 Sup. Ct. Rep. 406, Ann. Cas. 1913D, 936; De Bearn v. Safe Deposit & T. Co. 233 U. S. 24, 34, 58 L. ed. 833, 837, 34 Sup. Ct. Rep. 584; McBonald v. Oregon R. & Nav. Co. 233 U. S. 665, 669, 670, 58 L. ed. 1145, 1148, 1149, 34 Sup. Ct. Rep. 772; Missouri v. Lewis (Bowman v. Lewis) 101 U. S. 22, 30, 25 L. ed. 989, 992. The facts bearing upon the remaining assignment are as follows: After the judgment of affirmance by the supreme court, and during the pendency of a petition for rehearing, the plaintiff in error, claiming that upon his release from custody by habeas corpus he had removed to, and become a resident and citizen of, Shelby county, Tennessee, petitioned the probate court of that county for an inquisition respecting his sanity. The court entertained the petition and within a day or two rendered a judgment thereon finding that the plaintiff in error had become a resident and citizen of Tennessee, adjudging that he was sane and able to control his person and property, and declaring that any disability arising from the proceedings in Louisiana was thereby removed. He then brought the proceedings in Tennessee—all certified conformably to the law of Congress—to the attention of the Louisiana supreme court by a motion wherein he insisted that, under the Constitution of the United States, art. 4, § 1, and the law passed by Congress to carry it into effect, Rev. Stat. § 905, Comp. Stat. 1913, § 1519, the judgment in Tennessee was conclusive of his residence and citizenship in that state and of his sanity and ability to care for his person and property, and that in consequence the interdiction proceeding should be abated. But the motion was denied, along with the petition for a rehearing, and in the assignments of error it is said that, in denying the motion, the court declined to give the judgment in Tennessee thr full faith and credit required by the Constitution and the law of Congress. There are several reasons why this assignment affords no basis for a review here, but the statement of one will suffice. What the Constitution and the congressional enactment require is that a judgment of a court of one state, if founded upon adequate jurisdiction of the parties and subject matter, shall be given the same faith and credit in a court of another state that it has by law or usage in the courts of the state of its rendition. This presupposes that the law or usage in the latter state will be brought to the attention of the court in the other state by appropriate allegation and proof, or in some other recognized mode; for the courts of one state are not presumed to know, and therefore not bound to take judicial notice of, the laws or usage of another state. Hanley v. Donoghue, 116 U. S. 1, 29 L. ed. 535, 6 Sup. Ct. Rep. 242; Chicago & A. R. Co. v. Wiggins Ferry Co. 119 U. S. 615, 30 L. ed. 519, 7 Sup. Ct. Rep. 398; Lloyd v. Matthews, 155 U. S. 222, 227, 39 L. ed. 128, 130, 15 Sup. Ct. Rep. 70; Western Life Indemnity Co. v. Rupp, 235 U. S. 261, 275, 59 L. ed. 220, 225, 35 Sup. Ct. Rep. 37. Here the law or usage in Tennessee, where the judgment was rendered, was not in any way brought to the attention of the Louisiana court, and therefore an essential step in invoking the full faith and credit clause was omitted. In this situation the claim that the Louisiana court refused to give effect to that clause is so devoid of merit as to be frivolous. Writ of error dismissed.

246.US.523

Having given bond to secure a contract with the Navy Department, claimant paid premiums after alleged compliance with the condition, and sued to recover the amount, contending that the Secretary of the Navy should have canceled the bond and notified the surety. It not appearing that claimant had bound itself to continue paying premiums until the Secretary so acted, held, that the payment was voluntary and gave no cause of action in the Court of Claims. 51 Ct. Clms. 394, affirmed.

The Bethlehem Steel Company entered into a contract, dated September 27, 1909, with the United States to manufacture and deliver for the Navy large quantities of several groups of armor plates, and agreed to replace any accepted armor which should prove defective within six months after it had been fastened on the ship. The contract required the company to furnish a bond with sureties in a sum equal to ten per cent. of the total cost of all groups, and provided that 'at the end of each calendar year the amount of said bond may be reduced to correspond to the estimated cost of armor then undelivered.' The bond was furnished; and delivery of all the armor originally specified was completed May 2, 1911. But on March 26, 1912, plates aggregating at cost prices more than the penalty of the bond were found to be defective, and a part of his was not replaced until November 22, 1912. On January 27, 1912, the company formally requested the Secretary of the Navy to cancel the bond and notify the surety, but he refused to do so except upon certain conditions which were not complied with until May 15, 1912, when the bond was canceled. The company had expended $5,509.62 in payment of premiums on the bond from May 3, 1911, until May 15, 1912, and demanded reimbursement by the government. Payment being refused, suit was brought in the Court of Claims to recover this amount and also a balance of $3,170.69 for plate delivered. Judgment for the latter sum was entered; but the court held that the company was not entitled to recover for the premiums paid. The case comes here under section 242 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. 1916, § 1219]). The lower court held that the bond covered merely the original delivery of the armor plate and not the replacement of defective plates; but it refused recovery of the amount paid for premiums after May 3, 1911, on the ground that the payment thereof was voluntary, because the condition of the bond had then been complied with. The government contends that the bond covered the replacement also; that the contract made reduction of the bond permissive, not mandatory; and that the Secretary was, in any event, under no obligation to cancel the bond prior to the request made January 27, 1912. We have no occasion to consider any of these contentions. It nowhere appears that the company had bound itself to continue to pay premiums until the Secretary canceled the bond and gave the surety notice thereof. So far as disclosed by the record, the payment of premiums was voluntary. Affirmed. Mr. Justice McKENNA dissents.

245.US.178

Neither the right of a State to attach conditions when licensing a sister state corporation to do local business, nor its power to tax the corporation in respect of such business, when licensed, can sustain impositions which, in the guise of permit charges or franchise or excise taxes, result in direct burdens on interstate commerce or in the taxation of property beyond the confines and jurisdiction of the State. These principles, repeatedly affirmed by the court, are in nowise qualified by Baltic Mining Co. v. Massachusetts, 231 U. S. 68, and other recent cases, involving particular state statutes which were not inherently repugnant to the commerce clause or the due process clause of the Fourteenth Amendment, and which, because of their own restrictive provisions, avoided such repugnancy in their necessary operation and effect. Those cases lend no sanction to the proposition that the duty of enforcing the Constitution may depend upon the degree of violation or of resulting wrong. In 1889, Texas exacted of foreign corporations a charge, graduated upon capital stock, but limited to $200, for a permit to do business for 10 years. In 1893, a so-called franchise tax of $10 per annum was exacted of domestic and licensed foreign corporations alike, which was increased in 1897 to a maximum of $50 for domestic corporations, while for foreign corporations the minimum was raised to $25, and the tax was otherwise calculated by fixed percentages upon capital stock without maximum limit. After some intervening modification, it was enacted in 1907, as to both classes of corporations, that, in case the capital stock, issued and outstanding, plus surplus and undivided profits, should exceed the capital stock authorized, the franchise tax should be calculated upon the aggregate of such amounts. In the same year the permit provisions were altered by abolishing the maximum limit ($200) and increasing the percentages on authorized capital stock. An Illinois manufacturing and trading corporation engaged largely in interstate commerce obtained a 10 year permit under the Act of 1889, purchased real estate, erected warehouses and engaged in business in Texas; paid its taxes on its local property, and also those laid under the franchise laws, until its permit (obtained in 1905) was about to expire, when it brought suit against the Secretary of State and the Attorney General to enjoin the enforcement by them of the permit and franchise laws of 1907. Its authorized capital stock was $17,000,000, issued and paid up, and its surplus and undivided profits over $8,000,000. The total assessed value of its property in Texas was about $300,000. Its gross receipts and gross sales in all its business in 1913 were $39,831,000, of which only $1,019,750 had any relation to Texas, and of this nearly one-half had resulted from sales and shipments in interstate commerce. Its franchise tax had increased from $480 in 1904 to $1,948 in 1914, under the franchise Act of 1907. Its permit fee under the permit Act of 1907 would have been $17,040. Held, that the franchise and permit taxes both violated the due process clause of the Fourteenth Amendment and directly burdened interstate commerce. A suit to enjoin state officials from enforcing an unconstitutional tax is not a suit against the State. 218 Fed. Rep. 260, affirmed.

Chartered in 1865 by the Legislature of Illinois, the Crane Company had its domicile and principal establishment at Chicago. It carried on its chartered business of manufacturing and dealing in hardware, railway supplies, building materials, agricultural implements, etc., not only in Illinois but in other states, by the shipment of merchandise on orders obtained through the solicitation of its agents and sent to Chicago for execution, or orders sent to Chicago through the mail. The company, moreover, established agencies in other states to which goods were also shipped from Chicago or from other points where they were bought and shipment directed, from which agencies such goods were sold and delivered either in the original or broken packages as was most convenient. Such agencies also became supply depots from which interstate commerce was carried on by filling orders received from other states. In the state of Texas for the purpose of facilitating the carrying on of its business by all the methods stated, the company acquired real estate at Dallas, and built a depot or warehouse, and also had a warehouse at another place in the state. In 1889 Texas enacted a statute entitled, 'An act to require foreign corporations to file their articles of incorporation with the Secretary of State, and imposing certain conditions upon such corporations transacting business in this state. * * *' Acts of 1889, p. 87. This act not only compelled the filing of the charter with the Secretary of State, but exacted for a permit to do business a minimum charge of $25 based upon $100,000 of capital stock and an increased amount predicated upon capital stock until the exaction amounted to $200, which was the limit, and the permit which was authorized to be issued by the Secretary of State was limited to ten years' duration. The tax imposed therefor, if the permit was enjoyed for the stated period, could not in any event exceed $20 a year, whatever might be the amount of capital stock of the corporation As early as 1893 what was denominated a franchise tax was provided, imposing upon each and every domestic as well as foreign corporation having a permit the duty of paying $10 a year. Acts of 1893, p. 158. In 1897 this described franchise tax was modified. Acts of 1897, p. 168. As to domestic corporations, while retaining the minimum charge of $10, the maximum was raised to $50. And as to foreign corporations the minimum was raised from $10 to $25 and the maximum limit was removed by fixing percentages of charges upon the capital stock increasing without limitation. Without in detail following the legislation as to taxes denominated as franchise from the date stated down to the period when this suit was commenced, it suffices to say that the tax itself was preserved with some increases in the bases upon which it was to be calculated; but in 1907 it was enacted both as to domestic and permitted foreign corporations that in case the capital stock of a corporation 'issued and outstanding, plus its surplus and undivided profits, shall exceed its authorized capital stock,' the franchise tax should be calculated upon the aggregate of such amounts, thereby increasing to that extent the levy. Acts of 1907, p. 503; Revised Statutes (1911) art. 7394. The authorized capital stock of the Crane Company was $17,000,000, which was paid up and issued and just prior to the institution of this suit the surplus and undivided profits of the company amounted to $8,129,000. The total assessed value in Texas of its real estate, money there employed and merchandise there held amounted to $301,179. The company's gross receipts and gross sales in all its business in all the states for the year 1913 amounted to $39,831,000, of which only $1,019,750 had any relation to the state of Texas and nearly one-half of this amount was the result of transactions purely of an interstate commerce character arising from the sale and shipment of goods from other states to purchasers in Texas who ordered them and from the shipment from Texas to other states for the purpose of filling orders sent from such states. The Crane Company was assessed and paid taxes in Texas as other taxpayers on its real estate, its money on hand in Texas and its stock in trade in that state. In 1905, having filed its articles of incorporation with the Secretary of State, it paid the permit tax of $200 for the ten-year period as prescribed by the permit act of 1889. From 1904 down to and including 1914 the company paid the yearly franchise tax, the amount increasing from $480 in 1904 to $1,948 in 1914, the increase presumably resulting from the increase of rate of such tax by the legislation which we have indicated and from the fact that by the amendment of the act of 1907 the surplus and undivided profits of the company became susceptible of being taken into view in addition to its authorized capital stock. In the same year in which the legislation was enacted providing for the taxation on the basis of surplus and undivided profits for the purpose of the franchise tax there was also enacted a law vastly increasing the amount of the permit tax. Acts of 1907, S. S., p. 500; Revised Statutes (1911) art. 3837. We say vastly increasing because, although the standard for the levy of that tax, the authorized capital stock, was retained, the maximum limit which was $200 for ten years under the previous law was removed and the percentages of levy on the authorized capital stock were so augmented that the permit for which the company paid to the Secretary of State $200 for ten years in 1905 under the new law would have required the company to pay in order to do business in the state the sum of $17,040. Shortly before its existing permit for ten years taken in 1905 expired the company commenced the present suit in the court beolw against the Secretary of State and the Attorney General to enjoin the enforcement by them of the statutes embracing the permit tax and the franchise tax on the grounds that both were repugnant (a) to the commerce clause of the Constitution of the United States because imposing a direct burden on interstate commerce; (b) to the due process clause of the Fourteenth Amendment because constituting a taking of property; and (c) to the equal protection clause of the Fourteenth Amendment based upon what were urged to be discriminatory provisions in the acts. The parties having been fully heard on an application for an interlocutory injunction on the pleadings and by affidavits from which the case as we have stated it indisputably results by a court organized under the act of Congress of June 18, 1910 (36 Stat. 557, c. 309, § 17; Judicial Code, § 266 [Comp. St. 1916, § 1243]), the interlocutory injunction was granted and the enforcement of the laws restrained, the matter being now before us on an appeal from such order. (D. C.) 218 Fed. 260. Passing the contention as to the denial of the equal protection of the laws, which as we shall see it is unnecessary to consider, we come to dispose of the two other contentions, that is, the direct burden on interstate commerce and the want of due process. It may not be doubted under the case stated that intrinsically and inherently considered both the permit tax and the tax denominated as a franchise tax were direct burdens on interstate commerce and moreover exerted the taxing authority of the state over property and rights which were wholly beyond the confines of the state and not subject to its jurisdiction and therefore constituted a taking without due process. It is also clear, however, that both the permit tax and the franchise tax exerted a power which the state undoubtedly possessed, that is, the authority to control the doing of business within the state by a foreign corporation and the right to tax the intrastate business of such corporation carried on as the result of permission to come in. The sole contention, then, upon which the acts can be sustained is that although they exerted a power which could not be called into play consistently with the Constitution of the United States, they were yet valid because they also exercised an intrinsically local power. But this view can only be sustained upon the assumption that the limitations of the Constitution of the United States are not paramount but are subordinate to and may be set aside by state authority as the result of the exertion of a local power. In substance, therefore, the proposition must rest upon the theory that our dual system of government has no existence because the exertion of the lawful powers of the one involves the negation or destruction of the rightful authority of the other. But original discussion is unnecessary since to state the proposition is to demonstrate its want of foundation and because the fundamental error upon which it rests has been conclusively established. Indeed the cases referred to were concerned in various forms with the identical questions here involved and authoritatively settled that the states are without power to use their lawful authority to exclude foreign corporations by directly burdening interstate commerce as a condition of permitting them to do business in the state in violation of the Constitution, or because of the right to exclude to exert the power to tax the property of the corporation and its activities, outside of and beyond the jurisdiction of the state in disregard, not only of the commerce clause, but of the due process clause of the Fourteenth Amendment. Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 30 Sup. Ct. 190, 54 L. Ed. 355; Pullman Co. v. Kansas, 216 U. S. 56, 30 Sup. Ct. 232, 54 L. Ed. 378; Ludwig v. Western Union Telegraph Co., 216 U. S. 146, 30 Sup. Ct. 280, 54 L. Ed. 423; International Textbook Co. v. Pigg, 217 U. S. 91, 30 Sup. Ct. 481, 54 L. Ed. 678, 27 L. R. A. (N. S.) 493, 18 Ann. Cas. 1103; Atchison, Topeka & Santa Fe Railway Co. v. C'Connor, 223 U. S. 280, 283, 32 Sup. Ct. 216, 56 L. Ed. 436, Ann. Cas. 1913C, 1050. The dominancy of these adjudications is plainly shown by the fact that as the result of the decision in the leading case (Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 30 Sup. Ct. 190, 54 L. Ed. 355), the Supreme Court of the state of Texas, recognizing the repugnancy of the permit tax law here in question to the Constitution of the United States, enjoined its enforcement (Western Union Telegraph Co. v. State, 103 Tex. 306, 126 S. W. 1197), and following that ruling the Legislature of the state has amended both the permit tax law and the franchise tax law now before us, presumably in an effort to cure the demonstrated repugnancy of the statutes before amendment to the Constitution of the United States. Of course, whether the amendments as adopted accomplished the purpose intended, is a matter which we are not called upon to consider and as to which we express no opinion. But despite the controlling decisions dealing with cases in substance identical in fact and principle with the case here presented and the effect given to them in Texas as to one of the statutes here involved, it is now insisted that the statutes are not repugnant to the Constitution of the United States and that error was committed in deciding to the contrary. This is rested on cases decided since those to which we have referred. Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 34 Sup. Ct. 15, 58 L. Ed. 127; St. Louis, Southwestern Railway Co. v. Arkansas, 235 U. S. 350, 35 Sup. Ct. 99, 59 L. Ed. 265; Kansas City, Fort Scott & Memphis Railway Co. v. Kansas, 240 U. S. 227, 36 Sup. Ct. 261, 60 L. Ed. 617; Kansas City Memphis & Birmingham Railroad Co. v. Stiles, 242 U. S. 111, 37 Sup. Ct. 58, 61 L. Ed. 176. The proposition is, therefore, that these cases overruled the previous decisions. The incongruity of the contention will be manifest when it is observed that not only did the cases relied upon contain nothing expressly purporting to overrule the previous cases, but on the contrary in explicit terms declared that they did not conflict with them and that they proceeded upon conditions peculiar to the particular cases. The demonstration of error in the argument which results from this situation might well cause us to go no further in its consideration. In view, however, of the gravity of the subject to which the argument relates and the misconception and resulting confusion in doctrine which might result from silence, we briefly notice it. In the first place it is apparent in each of the cases that as the statutes under consideration were found not to be on their face inherently repugnant either to the commerce or due process clause of the Constitution, it came to be considered whether by their necessary operation and effect they were repugnant to the Constitution in the particulars stated, and this inquiry it was expressly pointed out was to be governed by the rule long ago announced in Postal Telegraph Cable Co. v. Adams, 155 U. S. 688, 698, 15 Sup. Ct. 268, 270 (39 L. Ed. 311) that 'the substance, and not the shadow, determines the validity of the exercise of the power.' In the second place, in making the inquiry stated in all of the cases, the compatibility of the statutes with the Constitution which was found to exist resulted from particular provisions contained in each of them which so qualified and restricted their operation and necessarily so limited their effect as to lead to such result. These conditions related to the subject-matter upon which the tax was levied, or to the amount of taxes in other respects paid by the corporation, or limitations on the amount of the tax authorized when a much larger amount would have been due upon the basis upon which the tax was apparently levied. It is thus manifest on the face of all of the cases that they in no way sustained the assumption that because a violation of the Constitution was not a large one, it would be sanctioned, or that a mere opinion as to the degree of wrong which would arise if the Constitution were violated was treated as affording a measure of the duty of enforcing the Constitution. It follows, therefore, that the cases which the argument relies upon do not in any manner qualify the general principles expounded in the previous cases upon which we have rested our conclusion since the later cases rested upon particular provisions in each particular case which it was held caused the general and recognized rule not to be applicable. Some suggestion is made in argument of the possibility of treating the franchise tax as not repugnant to the Constitution although that result be necessarily reached as to the permit tax. But we are of opinion that the proposition is without merit as the interdependence of the two provisions obviously results from the character of the subjects with which they deal and the mode in which the statutes deal with them. Indeed that conclusion would seem to necessarily follow from the legislative history of both and the concordant nature of their development. It finds additional and strongly persuasive support from the fact that although the controlling effect of the ruling in Western Union Telegraph Co. v. Kansas, supra, was applied by the state court to only one of the statutes, the permit tax, when the curative power of legislation was exerted it was made applicable to both and both were therefore modified. Aside from this view, however, as from the history which we have given of the franchise tax, its provisions were clearly intended to reach all activities and property of the corporation wherever situated, that statute when separately considered would come directly within the control of the doctrine of the previous cases upon which our conclusion is based. There is a contention to which we have hitherto postponed referring, that the court below was without jurisdiction because the suit against the state officers to enjoin them from enforcing the statutes in the discharge of duties resting upon them was in substance and effect a suit against the state within the meaning of the Eleventh Amendment. But the unsoundness of the contention has been so completely established that we need only refer to the leading authorities. Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764; Western Union Telegraph Co. v. Andrews, 216 U. S. 165, 30 Sup. Ct. 286, 54 L. Ed. 430; Home Telephone & Telegraph Co. v. Los Angeles, 227 U. S. 278, 33 Sup. Ct. 312, 57 L. Ed. 510. It follows from what we have said that the court below was right in awarding an interlocutory injunction to restrain the enforcement of the assailed statutes and its order so doing must be and the same is Affirmed.

244.US.351

The power to establish forest reservations, bestowed upon the President by acts of Congress, includes the power to withdraw lands temporarily from disposition under the public land laws in order that they may be examined, and, if found suitable, may be permanently reserved as forests. An act of the Secretary of the Interior in directing the making of a temporary withdrawal for forest reserve purposes is in legal contemplation the act of the President. Lands reserved for forest purposes, whether by temporary withdrawal or permanent reservation, are "specially reserved from sale" within the meaning of § 5 of the general railroad right of way act of March 3, 1875, c. 152, 18 Stat. 482, and also, like the military, park and Indian reservations therein mentioned, are set apart for a public purpose, and are not subject to the provisions of that act. Under the provision relating to the subject in the Act of March 3, 1899, c. 427, 30 Stat. 1233, a railroad right of way may be obtained over a temporary or permanent forest reservation only if in the judgment of the Secretary of the Interior the public interests will not be injuriously affected thereby, and, in exercising his broad discretion under this provision, the Secretary may condition his approval of an application upon the prior filing of a stipulation, binding upon the applicant, respecting the use and enjoyment of the privilege granted, the prevention of forest fires, and compensation for timber cut or destroyed or for other injuries done to the reservation. 'Where, for the purpose of securing a right of way under the Act of 1899, supra, with immediate permission to proceed with construction work, a railroad company's agent' agreed in writing that it would later execute and abide by a stipulation touching its rights and conduct in the reservation, but the agreement was made subject to ratification by the company, Held, that the company's action in availing itself of the permission and proceeding with the construction work with knowledge of the manner in which the permission had been obtained, and its acceptance of ensuing benefits, amounted to an implied ratification of its agent's agreement, binding the company either to execute the required stipulation or to discontinue the construction and operation of its railroad within the reservation. A suit by the United States to enjoin a railroad company from constructirg)and operating its road through a national forest in default of the execution and filing by it of a stipulation required by the Secretary of the Interior, and to obtain damages for timber cut and destroyed and for injury done in the course of the construction and operation of such railroad, is cognizable in equity, and a bill praying such relief is not multifarious. The damages assessed against the appellant in this case are in part justified by the terms of the stipulation which it agreed to execute, and in other respects are sustained by the concurring decisions 61 the courts below. In the absence of either cross-appeal by the Government or objection by the appellant company, the court will not decide whether the decree, instead of commanding unconditionally that the company execute the stipulation agreed upon, should not have provided, in the alternative, for ousting the company from the reservation if it did not execute such stipulation within a certain time. 218 Fed. Rep. 288, affirmed.

This is a suit by the United States to enjoin a railroad company from constructing or operating its railroad through a national forest reserve in Idaho unless it executes and files with the Secretary of the Interior a stipulation required by that officer, and to obtain damages for timber cut and destroyed and injury done in the course of the construction and operation of such railroad. In the district court (207 Fed. 164) and in the circuit court of appeals (134 C. C. A. 84, 218 Fed. 288), the government prevailed. The railroad company prosecutes this appeal. The forest reserve had its inception in an order by the Commissioner of the General Land Office, made March 21, 1905, temporarily withdrawing a large body of public lands from all disposal, save under the mineral land laws. The order was made by direction of the Secretary of the Interior with a view to the creation of a permanent forest reserve, under § 24 of the Act of March 3, 1891, chap. 561, 26 Stat. at L. 1095, Comp. Stat. 1916, § 5121, if, after further examination, that should receive the President's approval. The permanent reserve was created November 6, 1906, by a proclamation of the President. Between the temporary withdrawal and the President's proclamation the railroad company was incorporated under the laws of Idaho, and filed with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organization. During the same period it also filed in the local land office a map or profile of its proposed railroad through the reserve, and after the President's proclamation it filed in that office a second and then a third map. The line of the proposed road shown upon the second map differed widely from that upon the first, and the line shown upon the third differed materially from those upon the others. The first and second maps, neither of which had been approved, were returned to the company as superseded by the third. It was filed May 10, 1907. At that time, as also before any map was filed, the regulations governing applications for railroad rights of way in forest reserves required the applicant to enter into a stipulation respecting the use and enjoyment of the privilege, the prevention of forest fires, the compensation to be made for timber cut or destroyed, and the duty of the company to pay for any injury otherwise done to the reserve. 32 Land Dec. 481; 34 Land Dec. 583. One provision in the regulations said: 'No construction can be allowed on a reservation until an application for right of way has been regularly filed in accordance with the laws of the United States and has been approved by the Department, or has been considered by this office or the Department, and permission for such construction has been specifically given.' After filing the third map the company sought permission from the Forest Office to proceed with the construction of its railroad in advance of the approval of its map, and to that end its authorized representative, Mr. George R. Peck, in its behalf, signed and filed in the Forest Office the following memorandum: 'Whereas, the Chicago, Milwaukee, & St. Paul Railway Company of Idaho desires immediate permission from the Forest Service to begin construction of the company's railroad in the Coeur d'Alene National Forest, Idaho, I hereby promise and agree on behalf of the company that it will execute and abide by stipulation and conditions to be prescribed by the Forester in respect to said railroad; such stipulation and conditions to be as nearly as practicable like those executed by the company on January 18, 1907, in respect to its railroad within the Helena National Forest, Montana.' The Forester wrote upon the memorandum, and signed, an indorsement, saying: 'Approved and advance permission given to construct, subject to ratification hereof by the company.' At the same time a telegram was sent to the supervisor of the reserve, saying: 'Advance permission given to-day St. Paul Railroad Company to construct railroad through Coeur d'Alene, subject usual stipulations. Supervise clearing and piling and scale all timber cut.' There was no express ratification of the Peck memorandum, but shortly after it was made the company entered upon the reserve and actively proceeded with the construction of its road, which it would not have been permitted to do without the memorandum. Not until the work had proceeded for some months was there any indication that the memorandum was not satisfactory to the company. It then declined to execute the stipulation called for by the memorandum and assigned as a reason that Mr. Peck had acted upon the mistaken belief that the President's proclamation creating the permanent reserve preceded the filing of the first map, when in fact the map was filed before the proclamation was issued, and that the execution of such a stipulation as was called for by the memorandum was indispensable, when, as the company asserted, it was entitled, under the Act of March 3, 1875, infra, to a right of way through the reserve without entering into any stipulation or assenting to any conditions. But the officers of the Forest Service insisted, with the full sanction of the Secretary of the Interior and of the Secretary of Agriculture, that the stipulation be executed, and that without it the company was not entitled to proceed. This resulted in a conference at which the company particularly requested that its construction work be not disturbed, and assented to an arrangement for further negotiations, or, if need be, a 'friendly lawsuit.' Further negotiations failed and the present suit followed. When it was begun the road through the reserve was nearly completed and was in operation, the construction being on the line shown on the third map. Approval had not been given to this map, but had been withheld, awaiting the company's execution of the prescribed stipulation. The district court, after concluding and announcing that the company was bound by the Peck memorandum and that the government was entitled to a decree, gave the parties an opportunity to agree upon the form of stipulation called for by that memorandum, and then postponed the assessment of damages as a matter which might be affected materially by the terms of the stipulation. Afterward the parties brought into court a form of stipulation, which they agreed was what was required by the Peck memorandum, and that form was adopted by the court, with the addition only of a paragraph declaring that the stipulation should be deemed to have been executed as of May 10, 1907, which was the date of the Peck memorandum, of the permission to proceed with the construction, and of the filing of the map according to which the road was constructed. Rights of way for railroads over lands of the United States were granted only by special acts until March 3, 1875, when Congress enacted a general law upon the subject and confided its administration to the Land Department. Chap. 152, 18 Stat. at L. 482, Comp. Stat. 1916, § 4921. But that law, by its 5th section, was declared to be inapplicable to 'any military, park, or Indian reservation, or other lands specially reserved from sale.' Lands in a forest reserve not only are specially reserved from sale, but, like those in the reservations particularly named, are set apart for a public purpose. Act June 4, 1897, chap. 2, 30 Stat. at L. 34-36, Comp. Stat. 1916, §§ 5123-5134. That they come within the excepting provision of the 5th section, as do lands in other public reservations, is plain. Both Congress and the Land Department have so regarded them. House Report No. 1212, 54th Cong. 1st Sess.; House Report No. 1790, 55th Cong. 3d Sess.; Re Brainard & N. M. R. Co. 29 Land Dec. 257. Thus the company neither did nor could acquire a right of way over these lands under the Law of 1875. And this is true notwithstanding the preliminary steps taken, as before recited, in advance of the creation of the permanent reserve. The temporary withdrawal was made several months before any of those steps were taken,—indeed, before the company came into existence,—and remained in force until the permanent reserve was created. While the withdrawal was in force it was as much of an obstacle to the acquisition of a railroad right of way over these lands as was the permanent reserve thereafter. The power to establish the reserve included the power to make the temporary withdrawal, and the act of the Secretary of the Interior in directing the latter was, in legal contemplation, the act of the President. United States v. Morrison, 240 U. S. 192, 212, 60 L. ed. 599, 608, 36 Sup. Ct. Rep. 326; Wilcox v. Jackson, 13 Pet. 498, 512, 513, 10 L. ed. 264, 271, 272; Wolsey v. Chapman, 101 U. S. 755, 769, 770, 25 L. ed. 915, 920, 921. We come, then, to the provision in the Appropriation Act of March 3, 1899, chap. 427, 30 Stat. at L. 1233, Comp. Stat. 1916, § 4945, which says: 'That in the form provided by existing law the Secretary of the Interior may file and approve surveys and plats of any right of way for a wagon road, railroad, or other highway over and across any forest reservation or reservoir site when in his judgment the public interests will not be injuriously affected thereby.' Doubtless if this provision were separately considered, its purpose would seem obscure; but it must be considered in connection with the Law of 1875 and the rulings thereunder, and when this is done its purpose seems reasonably plain. That law, by its 1st section, provides in general terms for rights of way for railroads over public lands. By its 4th section it deals with the identification of the desired right of way by a survey and plat, and provides for filing the plat, and securing its approval by the Secretary of the Interior. By its 5th section, as has been seen, it excepts forest and other reservations from its operation. Because of this exception the Secretary of the Interior was ruling properly so, as we think—that his authority did not extend to receiving and approving surveys and plats of rights of way in forest reserves. And so, to obtain such a right of way it was necessary to go to Congress. The requests for special acts came to be frequent, especially as the reserves were increasing in number. In this situation Congress passed the provision last quoted. It is a general and continuing provision, and says, in substance, that rights of way for railroads through forest reserves may be secured when, and only when, the public interests will not be injuriously affected, and it commits the solution of that question to the Secretary of the Interior. If 'in his judgment' the public interests will not be jeopardized, he 'may file and approve' surveys and plats of any such right of way. In short, he is invested with a large measure of discretion to be exercised for the conservation of the public interests, and only through his approval can the right of way be acquired without further action by Congress. Here the Secretary made it manifest, through the regulations before noticed and otherwise, that, in his judgment, due regard for the public interests required that a stipulation, such as was described in the Peck memorandum, be exacted of the company as a condition to the approval of the survey and map,—that is, to securing the right of way. Rightly understanding that this was so, Mr. Peck, the company's representative, promised on its behalf that it would comply with that condition. The promise was given for the purpose of securing permission to proceed at once with the construction of the road, and on the faith of the promise the permission was given. While this was said to be subject to the company's ratification, it must be held upon this record that there was an implied ratification. The company promptly availed itself of the permission and proceeded with the work of construction. The circumstances were such that it must have known how the permission was obtained. It was largely benefited thereby and to these benefits it ever since has held fast. True, after some months had elapsed it manifested a purpose to disaffirm Mr. Peck's promise, but that was after the implied ratification and after the construction had proceeded so far that restoration of the original situation was not possible. It follows that the company not only is bound by the Peck memorandum, but is in a position where it must execute the required stipulation or discontinue the construction and operation of its railroad in the reserve. It is objected that the case is not one which is cognizable in a court of equity and that the bill is multifarious. Both branches of the objection are without merit,—so plainly so that a discussion of them would serve no purpose. The assessment of the damages is called in question, but without any good reason. The stipulation agreed upon as conforming to the Peck memorandum was rightly regarded as decisive of several of the questions bearing upon the assessment, and no reason is perceived for disturbing the concurring decisions below upon the others. The decree unconditionally commands the execution and filing of the prescribed stipulation without awarding an alternative injunction, and counsel for the government suggest that it should have enjoined the company from the further occupation of the reserve unless, within a prescribed time, the stipulation be executed and filed. The criticism is not without merit, and doubtless is prompted by a careful study of the bill. But, as the government has not appealed and the company is not complaining of the failure to put the matter in the alternative, the point may be passed without further notice. Decree affirmed. Mr. Justice McReynolds took no part in the consideration or decision of this case.

245.US.89

The assignment of land provided for by Article IV of the treaty of March 6, 1865, 14 Stat. 667, with the Omaha Indians, was merely an apportionment of the tribal right of occupancy to the members of the tribe in severalty, leaving the fee in the United States and leaving the United States and the tribe free to take such measures for the ultimate and permanent disposal of the lands, including the fee, as might become appropriate in view of changing conditions, the welfare of the Indians and the public interests. The facts that the treaty does not say that the fee shall pass, that it makes no provision for patents, and does not relieve assignees from federal guardianship or subject them to state laws, or dissolve the tribe, or abridge its power to speak and act for its members, while it does expressly provide that all the lands, assigned and unassigned, shall remain an Indian reservation, subject to the Indian trade and intercourse laws of Congress, and upon which white persons, other than federal employees, shall not be allowed to reside or go without written permission from the Indian agent or a superior officer, confirm this construction of Article IV. This construction also is confirmed by the practical construction placed upon the treaty by the United States and the tribe, as evidenced by the terms of the certificates of assignment, the petition of a number of the assignees, including chiefs who had participated in the treaty, for a better tenure, the passage of the Act of August 7, 1882, c. 434, 22 Stat. 341, to become operative when consented to by the tribe, the acceptance of that act by the tribe, and the execution of the act through the surrender and accounting for outstanding certificates of assignment, and the making and acceptance of allotments under it-a construction of the treaty which has become practically a part of it and could not be now rejected without seriously disturbing the titles of those who not unreasonably relied upon it. Possessory rights based on assignments made under Article IV of the treaty of 1865, supra, were terminated by the Act of 1882, supra. An assignee who failed to exercise his preferred right of selection waived it, and his assigned tract became allottable to any other qualified selector. The provision in § 4 of the Act of August 7, 1882, supra, that "any right in severalty acquired by any Indian under existing treaties shall not be affected by this act" was not intended to qualify the plan of allotment defined in § 5, but only to prevent the sale under the earlier and separable portion of the act of tracts subject to Indian rights in severalty acquired under treaties. A patent for an allotment issued under the Act of August 7, 1882, supra, in the name of an Indian who was dead at the time, inures to the benefit of his heir under § 2448, Rev. Stats.; the fact that the patentee had died before requisite proceedings had been taken upon his selection would not render the patent void but at most voidable in an appropriate proceeding. Such a patent cannot be attacked by a mere occupant of the allotment in an action brought by the United States and the patentee's heir to recover damages for wrongful use and occupation of the premises. 222 Fed. Rep. 593, reversed.

This is an action to recover for the wrongful use and occupancy of 40 acres of land in Nebraska to which two Omaha Indians assert conflicting claims. The land is within the Omaha Indian reservation, was assigned in 1871 under the treaty of March 6, 1865, 14 Stat. 667, to Clarissa Chase, a member of the Omaha tribe, and was allotted in 1899 under the Act of August 7, 1882, c. 434, 22 Stat. 341, to Reuben Setter, another member of the tribe. The defendant, who has been using and occupying the land for some time, claims as the sole heir of Clarissa Chase, and the other claimant—for whom the United States sues as trustee and guardian—claims as the sole heir of Reuben Setter. In the District Court judgment went against the defendant, but he prevailed in the Circuit Court of Appeals. 222 Fed. 593, 138 C. C. A. 117. Whether the assignment to Clarissa Chase under the treaty passed the full title in fee or only the Indian right of occupancy, and whether all right under the assignment was extinguished prior to the allotment to Reuben Setter under the act of 1882, are the controlling questions. The reservation was established and maintained under early treaties as the tribal home. The Indian right of possession was in the tribe and the fee in the United States. The possessory right was enjoyed by all the members in common, none having a several right in any part of the reservation. While this was so the treaty of 1865 was negotiated. By it the tribe ceded a portion of the reservation to the United States and the latter, in consideration of the cession, engaged to make certain payments to the Indians and to take certain measures, not material here, for their benefit. The treaty then proceeded: 'Article IV. The Omaha Indians being desirous of promoting settled habits of industry and enterprise amongst themselves by abolishing the tenure in common by which they now hold their lands, and by assigning limited quantities thereof in severalty to the members of the tribe, including their half or mixed blood relatives now residing with them, to be cultivated and improved for their own individual use and benefit, it is hereby agreed and stipulated that the remaining maining portion of their present reservation shall be set apart for said purposes; and that out of the same there shall be assigned to each head of a family not exceeding one hundred and sixty acres, and to each male person, eighteen years of age and upwards, without family, not exceeding forty acres of land—to include in every case, as far as practicable, a reasonable proportion of timber; six hundred and forty acres of said lands, embracing, and surrounding the present agency improvements, shall also be set apart and appropriated to the occupancy and use of the agency for said Indians. The lands to be so assigned, including those for the use of the agency, shall be in as regular and compact a body as possible, and so as to admit of a distinct and well-defined exterior boundary. The whole of the lands, assigned or unassigned, in severalty, shall constitute and be known as the Omaha reservation, within and over which all laws passed or which may be passed by Congress regulating trade and intercourse with the Indian tribes shall have full force and effect, and no white person, except such as shall be in the employ of the United States, shall be allowed to reside or go upon any portion of said reservation without the written permission of the superintendent of Indian affairs or the agent for the tribe. Said division and assignment of lands to the Omahas in severalty shall be made under the direction of the Secretary of the Interior, and when approved by him, shall be final and conclusive. Certificates shall be issued by the Commissioner of Indian Affairs for the tracts so assigned, specifying the names of the individuals to whom they have been assigned respectively, and that they are for the exclusive use and benefit of themselves, their heirs, and descendants; and said tracts shall not be alienated in fee, leased, or otherwise disposed of except to the United States or to other members of the tribe, under such rules and regulations as may be prescribed by the Secretary of the Interior, and they shall be exempt from taxation, levy, sale, or forfeiture, until otherwise provided for by Congress.' Some of the Omahas sought and received assignments under this article, while others, although having the requisite status, neither sought nor received anything under it. Clarissa Chase was among those who obtained an assignment of 160 acres as the head of a family, and in 1871 a certificate evidencing dencing her assignment was issued to her by the Commissioner of Indian Affairs. The 160 acres included the 40 acres now in question. Without any doubt the fourth article contains provisions which, in other situations, would suggest a purpose to pass the full title in fee. This is true of the provisions that the assignments, when approved by the Secretary of the Interior, 'shall be final and conclusive,' that the certificates to be issued by the Commissioner of Indian Affairs shall specify that the tracts assigned are for the exclusive use and benefit of the assignees, 'their heirs and descendants,' and that the tracts shall not be 'alienated in fee, leased, or otherwise disposed of except to the United States or to other members of the tribe.' But as applied to the situation then in hand these provisions are consistent with a purpose to apportion the Indian possessory right, leaving the fee in the United States as before. The assignments, when approved, could well operate as a final and conclusive apportionment of that right without affecting the fee; and the right of each assignee to occupy and use the tract assigned to him, to the exclusion of other members, could well pass to his heirs and descendants, upon his death, without his being invested with the fee. If not invested with it, he, of course, could not alienate it, and a cautious provision intended to prevent him from attempting to do so hardly would enlarge his right. True, the provision vision says, 'except to the United States or to other members of the tribe,' but, as the restriction is also directed against leasing or other disposal, it is not improbable that the real purpose of the excepting clause is to qualify this part of the restriction. In any event, the implication attributed to the provision is too uncertain to afford a substantial basis for thinking the assignee was to take the fee. Other provisions and considerations suggest that an apportionment of the tribal possessory right is all that was intended. The article directly provides for a change in tenture—an 'assignment or division' in severalty of communal property. Nothing is said about passing the fee held by the United States, and there is no provision for patents. The assignees are neither relieved from federal guardianship nor subjected to state laws. And there is no dissolution of the tribal organization, nor any abridgment of the accustomed customed power of the tribe, as such, to speak and act for its members. But there is express provision that all the lands, assigned and unassigned, shall remain an Indian reservation over which the Indian trade and intercourse laws of Congress shall be in force, and upon which no white person, not in the employ of the United States, shall be allowed to reside or go without written permission from the Indian agent or a superior officer. All this persuasively points to the absence of any purpose to do more than to individualize the existing tribal right of occupancy. A like question was presented and considered in Veale v. Maynes, 23 Kan. 1, a case arising out of the treaties of 1861 (12 Stat. 1191) and 1867 (15 Stat. 531) with the Pottawatomie Indians. The earlier treaty provided in language similar to that now under consideration for the assignment of portions of the tribal reservation to individual members in severalty and for the issue by the Commissioner of Indian Affairs of certificates for the assigned tracts, 'specifying the names of the individuals to whom they have been assigned respectively, and that said tracts are set apart for the perpetual and exclusive use and benefit of such assignees and their heirs.' Assignments were made and certificates issued under that treaty and thereafter the treaty of 1867 was negotiated. Following its provisions a tract assigned under the earlier treaty to one member was conveyed by a patent in fee to another. This was claimed to be violative of the right conferred by the assignment, but the right under the patent was sustained. Speaking for the Supreme Court of Kansas, and particularly referring to the earlier treaty, Mr. Justice Brewer, then a member of that court, said. 'Now what was intended by this division—that the title be thus divided up, or the mere matter of occupancy? Of course either was within the power of the contracting parties. They might provide for a division among the several Indians which should vest an absolute title in each, beyond the power of the tribe or the government to disturb without the personal consent of the individual; or they might provide for an individualizing of the right of occupancy, giving to each person a sole right of occupancy in a particular tract, a right guaranteed against invasion by any individual, but still within the power of the tribe as a tribe to convey by treaty. In other words, while that remained the tribal home each individual desiring it should have separate control of certain lands, yet subject to the ultimate power of the tribe to change their home and to make absolute conveyance of the whole body of lands. The power of the tribe, as a tribe, remained undisturbed over both the allotted lands and those held in common. That this was the intent and effect of the treaty, we are constrained to hold, and this notwithstanding many expressions which, if used in ordinary contracts between individuals, would have marked significance to the contrary. '* * * At present it is enough to notice that the allottee remained a member of the tribe, and if the intention had been to enlarge his title from the ordinary Indian title, one of occupancy, to that of a fee simple, the intention would, it seems, have been expressed in unmistakable terms. If, on the other hand, a difference was to be made in the mere manner in which the various Indians occupied the tribal home, it was enough that that difference was made clear, and language used to indicate that should not be carried to some further meaning.' In Wiggan v. Conolly, 163 U. S. 56, 63, 16 Sup. Ct. 914, 917 (41 L. Ed. 69) where the rights of an allottee, who was still a tribal Indian, were restricted by treaty after the allotment was made, this court said: 'The land and the allottee were both still under the charge and care of the Nation and the tribe, and they could agree for still further protection a protection which no individual was at liberty to challenge.' But if the terms of the treaty of 1865 be regarded as confused or uncertain the question still must be resolved in the same way, for the parties—the United States and the tribe—have in practice placed upon the treaty the construction to which we are inclined. In the certificates issued by the Commissioner of Indian Affairs and accepted by the assignees it was declared that: 'The said [assignee] is entitled to and may take immediate possession of said land and occupy the same, and the United States guarantees such possession, and will hold the title thereto in trust for the exclusive use and benefit of [the assignee] and _____ heirs so long as such occupancy shall continue.' The obvious import of this is that the assignee was to have a right of occupancy, but not the fee. In January, 1882, a considerable number of the assignees, some being chiefs who had participated in the negotiation of the treaty and whose names were signed to it, memorialized Congress as follows (Sen. Mic. Doc., No. 31, 47th Cong., 1st Sess.): 'We, the undersigned, members of the Omaha tribe of Indians, have taken out certificates of allotment of land, or entered upon claims within the limits of the Omaha reserve. We have worked upon our respective lands from three to ten years; each farm has from five to fifty acres under cultivation; many of us have built houses on these lands, and all have endeavored to make permanent homes for ourselves and our children. 'We therefore petition your honorable body to grant to each one a clear and full title to the land on which he has worked. 'We earnestly pray that this petition may receive your favorable consideration, for we now labor with discouragement of heart, knowing that our farms are not our own, and that any day we may be forced to leave the lands on which we have worked. We desire to live and work on these farms where we have made homes, that our children may advance in the life we have adopted. To this end, and that we may go forward with hope and confidence in a better future for our tribe, we ask of you titles to our lands.' Shortly after the presentation of this memorial a bill providing for the sale of the western part of the Omaha reservation passed the Senate. At that time the only provision in the bill having any possible reference to the existing assignments was a saving clause in its fourth section declaring that 'any right in severalty acquired by any Indian under existing treaties shall not be affected by this act.' In the House of Representatives four new sections were added, and in that form the bill became the Act of August 7, 1882, before cited. The new sections, 5 to 8, contain elaborate provisions for making allotments in severalty out of the unsold portion of the reservation, for adjusting the situation to which the Indian memorial invited attention, for the issue of trust patents and patents carrying the fee, for disposing of the surplus lands in the reservation and for ultimately bringing the Indians within the operation of state laws. The fifth section, the one providing for allotments and dealing with the existing assignments, was both comprehensive and easily understood. It was in the nature of a proposal and in terms required 'the consent of the Omaha tribe of Indians, expressed in open council,' to make it operative. Shortly stated, what it proposed was this: All unsold lands, including those theretofore assigned under the treaty of 1865, were to be available for allotments. The right to receive allotments was to be accorded to the members generally, including those holding assignments under the treaty. The allotments were to be on a scale1 of 160 acres to each head of a family, 80 acres to each single person over 18 years of age, 80 acres to each orphan child under 18 years and 40 acres to each other person under 18 years. The Indians were severally to select the lands to be allotted to them, heads of families selecting for their children and the agent selecting for orphan children. These allotments were to be 'deemed and held to be in lieu of' the assignments under the treaty of 1865, but each assignee, when selecting the lands to be allotted to him, was to be accorded 'a preference right' to select the tract embracing his improvements. In short, all rights under the assignments, as such, were to be extinguished, and each assignee was to have the same right to take an allotment as was accorded to other members, but with a preferred right to make his selection in such way that his allotment would include his improvements. The sixth section provided for the issue of trust patents covering a period of 25 years, and for full patents conveying the fee at the end of that period. The tribe, in open council, gave its consent to this plan of allotment and adjustment, and, through the co-operation of the administrative officers and the tribe, the plan was carried to completion. The report of the allotting agent shows that of the 297 outstanding certificates of assignment 230 were produced and surrendered and 67 were accounted for as lost by fire, flood or other accident, and that most of the certificate holders took the assigned tracts for their allotments—others selecting different lands. Thus it is apparent that the parties to the treaty—the United States and the tribe—have in all their dealings relating to the subject proceeded upon the theory that what was intended by article IV and what was accomplished by the assignments under it was merely a distribution or apportionment of the tribal right of occupancy, leaving the fee in the United States and leaving the United States and the tribe free to take such measures for the ultimate and permanent disposal of the lands, including the fee, as might become essential or appropriate in view of changing conditions, the welfare of the Indians and the public interests. This construction of the treaty by those who entered into it and to whom its proper administration and application were of obvious importance has become practically a part of it and could not be rejected now, after the lapse of many years, without seriously disturbing the titles of those who, not unreasonably, relied upon it. Concluding, as we do, that the assignment to Clarissa Chase passed only the Indian or tribal right of occupancy, the remaining question is not difficult of solution. She took that right as it was held by the tribe, without enlargement or diminution. It was merely individualized. Upon her death, in 1875, it passed to the defendant, he being her sole heir. The act of 1882, consented to by the tribe, put into effect a general plan of allotment which completely displaced the Indian right of occupancy and in that sense terminated all right under the assignment. Under that plan the assigned tract was available for allotments and the defendant was entitled to an allotment. He could select the assigned tract for his allotment—indeed, he had a preferred right to do so. He could exercise that right or waive it and select other lands. But he could not select other lands and also hold the assigned tract. He was entitled to one allotment, not two. If not selected by him, the tract in question would be open to selection by another. He does not assert that he selected it, or that he was denied the right to do so, or that he received less than a full allotment without this tract. But he claims that the assignment passed the title in fee and in consequence was an insurmountable obstacle to the allotment of the tract under the act of 1882. This claim, as has been shown, is untenable. tenable. All that passed by the assignment was a possessory right, and this was terminated by the act of 1882. Some reliance is had upon the provision in section 4 that 'any right in severalty acquired by any Indian under existing treaties shall not be affected by this act.' But this, as an examination of the act discloses, is merely a saving clause in that part of the act providing for the sale of a distinct portion of the reservation. If the provision be read in connection with what is said in section 5 in dealing with allotments and with assignments under the treaty it becomes manifest that it was not intended to interfere with or qualify the plan of allotment as defined in that section, but only to prevent the sale under the earlier and separable portion of the act, of any tract to which an Indian had a right in severalty under a treaty. The legislative history of the act also sustains this view. See Cong. Rec., 47th Cong., 1st Sess., pp. 3028-3032, 3077-3079. According to the pleadings, Reuben Setter died at some time after selecting the tract for his allotment and before the issue of the patent in his name, and this is set up as an obstacle to a recovery on behalf of his heir. If there be any merit in this objection, it does not render the patent void but only voidable. A statute in force for many years, and which this court has applied to a patent issued under an Indian treaty for Indian lands, provides that where the person to whom the patent issues is dead at the time the title shall inure to and become vested in his heirs, devisees or assigns, as if the patent had issued in his lifetime. Rev. Stat. § 2448; Crews v. Burcham, 1 Wall. 352, 357, 17 L. Ed. 91. Thus the fact that Reuben Setter was dead when the patent issued is in itself of no moment. If his selection had not advanced before his death to the point where the patent properly could be issued thereafter that is a matter of which only the United States and the tribe can complain—and then only in an appropriate proceeding. Apparently parently both are content to let the patent stand, and certainly it is not open to the defendant to make the objection. It results that the judgment of the Circuit Court of Appeals must be reversed and that of the District Court affirmed. It is so ordered.

243.US.26

The board of directors of a national bank have power under the National Bank Act to clothe the cashier with authority to sell corporate shares which have been acquired by the bank as the result of a loan made upon the shares as security. Whether the rules adopted by the board of directors of a national bank to govern its business do or do not empower the cashier to sell corporate shares which the bank has acquired as the result of loans upon them as collateral is a question involving the interpretation of the rules as applied to the circumstances of the transaction, and not a question concerning the meaning of the National Bank Act upon 'which this court may assume jurisdiction to review a state court's judgment. Writ of error to review 168 California, 263, dismissed.

McBoyle and his wife sued the bank to recover 599 shares of the stock of the Burnham-standeford Company, which it was alleged they had purchased from the bank, and which, after payment of the cash part of the price, had been placed with it as collateral to secure a note evidencing the credit price. It was alleged that, despite a tender of the purchase money due, the bank had refused to deliver the stock. The answer of the bank, while not denying the sale of the stock to McBoyle, charged that the sale had been fraudulently procured by him, and, besides, that the sale was void because it was made by the cashier, who was without authority to do so. It was, moreover, alleged that the sale had been repudiated by the board of directors, and that there had been a tender of the cash price paid and of the note given for the balance. The supreme court of the state, in reviewing and reversing a judgment of the trial court in favor of the bank, held that there was no proof of fraud in the sale from the bank to McBoyle, and that from a consideration of the authority of the cashier, in the light of the power conferred upon that officer by the board of directors, and the nature and character of the transaction, the cashier had authority to make the sale, and it was therefore valid. The case was remanded for a new trial. 162 Cal. 277, 122 Pac. 458. Before that trial the bank amended its answer by asserting that authority in the cashier to sell shares of stock belonging to the bank could not be sustained without a violation of the National Bank Law. The supreme court, to which the case was again taken, in affirming a judgment of the trial court, awarding the stock to McBoyle, pointed out that while the National Bank Law conferred no authority on national banks to buy stock for speculation or investment, yet such law did not prevent them from taking stock as security for loans made in the due course of business, from realizing on the security in default of payment of the loan, and consequently, when needs be, from buying in the security to protect the bank, and from selling the security after it had been bought in, for the purpose of realizing on the same. Thus recognizing the right of the bank, consistently with the National Bank Act, to acquire the stock, and treating the power to sell it as being indisputably vested at least in the board of directors, the court adhered to the opinion which it had previously expressed that the power in the cashier to make the sale in question was susceptible of being deduced by fair implication from the rules adopted by the board of directors for the government of the business of the bank and from the circumstances of the case. 168 Cal. 263, 142 Pac. 837. The case is here in reliance upon the Federal question supposed to have been raised by the amended answer and the ruling just stated; that is, the asserted violation of the National Bank Act which arose from implying from the rules adopted by the board of directors, authority in the cashier to make the sale. We say this because there is no pretense that the case, as presented below or as here made, raised any question concerning the power of a national bank in good faith, in the due course of business, under the law, to loan on capital stock as collateral and realize on the same. But when the issue is thus accurately fixed, it is apparent that while in mere form of expression it may seemingly raise a question under the National Bank Act, in substance it presents no question of that character whatever, since it simply concerns an interpretation, not of the statute, but of the rules adopted by the board for the government of the bank, involving, in whatever view be taken, no exercise of power beyond that which it is conceded the National Bank Act conferred. To illustrate, if in express terms the board of directors had clothed the cashier with power to make the sale, there can be no question that they would have had authority to do so under the statute,—a conclusion which makes it clear that the determination of whether, by a correct interpretation of the rules adopted by the board, power did or did not exist in the cashier, involves not the statute, but the mere significance of the rules. That, coming to this, the contention involves no question under the National Bank Law upon which to base jurisdiction to review, is so conclusively settled as not to be open. Le Sassier v. Kennedy, 123 U. S. 521, 31 L. ed. 262, 8 Sup. Ct. Rep. 244; Chemical Nat. Bank v. City Bank, 160 U. S. 646, 40 L. ed. 568, 16 Sup. Ct. Rep. 417; Union Nat. Bank v. Louisville, N. A. & C. R. Co. 163 U. S. 325, 41 L. ed. 177, 16 Sup. Ct. Rep. 1039; Leyson v. Davis, 170 U. S. 36, 42 L. ed. 939, 18 Sup. Ct. Rep. 500; Capital Nat. Bank v. First Nat. Bank, 172 U. S. 425, 43 L. ed. 502, 19 Sup. Ct. Rep. 202. It follows, therefore, that as there is nothing within our competency to review, the writ of error must be and it is dismissed for want of jurisdiction.

244.US.305

A preliminary homestead entry, made in the Territory of Oklahoma under agreement between the applicant and his mother that he would make the entry, pay rent for the land while the entry was being completed and deed the land to her upon the issuance of patent, is absolutely void under § 24 of the act providing a temporary government for that Territory, etc. (Act of May 2, 1890, c. 182, 26 Stat. 81), and confers no rights upon the applicant or his heirs. When such an entry, because of the illegal agreement, has been provisionally cancelled by the Land Department during the entryman's lifetime, and, after his death, one claiming to be his widow has relinquished her rights therein and made a new entry independently, in her own right, the original entry can afford no basis for the entryman's heirs to contest the widow's entry before the Department upon the ground that her marriage was void, if they do not deny the illegal agreement or seekto have the original entry re-instated on its merits. The first entry, being a nullity, could beget no equity entitling the heirs to affix a trust to the land when patented to the widow. 156 Pac. Rep. 309, affirmed.

It cannot be seriously disputed that if the agreement was made by Fearnow, the original applicant, that he would make the homestead entry not for himself, but for the benefit of another, would, during the time that he was apparently taking the steps to complete the entry, pay rent for the land to such other person, and when the patent was issued deed the land to such person, such agreement caused that entry to be absolutely void for repugnancy to § 24 of the Act of Congress of May 2, 1890 (26 Stat. at L. 81, chap. 182, Comp. Stat. 1916, § 5025). But as it was expressly stipulated that the facts as to such agreement were true, it must follow necessarily that the entryman derived no right from his entry and transmitted none to his heirs, and vested them with no right after his death to complete that which was not susceptible of being completed. Moreover, as it is not disputable that the Land Department in its final ruling against the contestants placed its action upon the prior cancelation of the homestead entry because of the particular agreement referred to which was the basis of the Barnes contest, it must necessarily result that there is an absence of the essential foundation upon which alone the asserted rights of the plaintiffs in error could possibly rest. But, putting this latter view aside, we are of opinion that the court below was clearly right in holding that, as the facts were admitted which absolutely destroyed the effect of the original Fearnow homestead entry, and therefore caused it to be impossible for that entry to be the generating source of rights in favor of the plaintiffs in error, no equitable rights arose in their favor growing out of the cancelation of that entry and the issue of the patent to the defendant in error. It seems superfluous to reason to demonstrate that no equitable right to hold the patentee as a trustee could possibly arise in favor of the plaintiffs in error since the application to enter upon which they rely was in legal contemplation nonexistent, and hence could afford no basis for equitable rights of any character. Affirmed.

245.US.229

The District Court has no power to decree an injunction against parties who were not served with process and who appeared only to object to the jurisdiction over them. In order that the declarations and conduct of third parties may be admissible against persons sued with respect to acts done to carry out an alleged conspiracy, a combination between them and the defendants must be shown by independent evidence; but the criminal or otherwise unlawful character of the combination may be shown by the declarations themselves. The same liberty which enables men to form unions, and through the unions to enter into agreements with employers willing to agree, entitles other men to remain independent of the union and other employers to agree with them to employ no man who owes any allegiance or obligation to the union. In the latter case as in the former the parties are entitled to be protected by the law in the enjoyment of the benefits of any lawful agreement they may make. The right of action for persuading an employee to leave his employer, universally recognized, rests upon fundamental principles of general application. The right of workingmen to form unions and to enlarge their membership by inviting other workingmen to join is conceded, provided the objects of the union be proper and legitimate. The right of workingmen to enlarge the membership of unions by inviting other workingmen to join, like other civil rights, must be exercised with reasonable regard for the conflicting rights of others; and the members of a union having notice that the employees of an establishment are under contract with their employer not to remain in his employ after joining the union, may not lawfully, for the purpose of unionizing the establishment through an actual or threatened strike, induce or seek to induce such employees to violate their contract by joining the union, or (what in equity is the same) by secretly agreeing to join, and thereafter remaining at work until sufficient new members can be obtained so as to bring about a strike, thus uniting with the union in a plan to subvert the system of employment to which they voluntarily have agreed and upon which their employer and their fellow-employees are relying. An employer is entitled to the good-will of his employees, irrespective of the fact that they are employed at will and that the relation is terminable by either party at any time; he is entitled to the benefit of the reasonable probability that by properly treating them he will be able to retain them in his employ and to fill vacancies occurring from time to time by the employment of other men on the same terms. It is unlawful for a third party, having notice of this relation, to interfere with it without just cause or excuse. Intentionally to do that which is calculated in the ordinary course of events to damage and which does in fact damage another person in his property or trade, is malicious in law and actionable if done without just cause or excuse. A proffered excuse can not be deemed a just cause or excuse where it is based upon an assertion of conflicting rights that are sought to be attained by unfair methods and for the very purpose of interfering with plaintiff's rights of which defendants have notice. Any violation of plaintiff's legal rights, contrived by defendants for the purpose of inflicting damage, or having that as its necessary effectfor example, a combination to procure concerted breaches of contract by plaintiff's employees-is as plainly unlawful as if it involved a breach of the peace. The purpose entertained by defendants to bring about a strike at plaintiff's mine in order to compel plaintiff, through fear of financial loss, to consent to the unionization of the mine as the lesser evil, was an unlawful purpose; and the methods resorted to by defendants-the inducing of employees to unite with the union in an effort to subvert the system of employment at the mine by concerted breaches of the contracts of employment known to be in force there-were unlawful and malicious methods, not to be justified as a fair exercise of the right to increase the membership of the union. Convinced by costly strikes of the futility of attempting to operate under a closed-shop agreement with a certain union, plaintiff established its mine on a non-union basis, with the unanimous approval of its employees and under a mutual agreement, assented to by them all, that plaintiff would continue to run its mine non-union and not recognize the union; that if any man wanted to become a member of the union he was at liberty to do so, but he could not be a member and remain in plaintiff's employ. Under that agreement plaintiff ran its mine for a year and more, and, so far as appears, without the slightest disagreement between it and its men, and without any grievance on their part. Thereupon, defendants, having full notice of the agreement, and acting without any agency for the men, but as representatives of an organization of mine workers in other States, and in order to subject plaintiff to such participation by the union in the management of the mine as necessarily results from the making of a closed-shop agreement, sent their agent to the mine, who, with full notice of, and for the very purpose of subverting, the status arising from plaintiff's agreement and subjecting the mine to the union control, proceeded, without physical violence, indeed, but by persuasion accompanied with threats of a reduction of wages and deceptive statements as to the attitude of the mine management, to induce plaintiff's employees to join the union and at the same time to break their agreement with plaintiff by remaining in its employ after joining; and this for the purpose not of enlarging the membership of the union, but of coercing plaintiff, through a strike or the threat of one, into recognition of the union. Held, that plaintiff was clearly entitled to an injunction. 214 Fed. Rep. 685, reversed.

This was a suit in equity, commenced October 24, 1907, in the United States Circuit (afterwards District) Court for the Northern District of West Virginia, by the Hitchman Coal & Coke Company, a corporation organized under the laws of the state of West Virginia, against certain citizens of the state of Ohio, sued individually and also as officers of the United Mine Workers of America. Other non-citizens of plaintiff's state were named as defendants but not served with process. Those who were served and who answered the bill were T. L. Lewis, vice president of the U. M. W. A. and of the International Union U. M. W. A.; William Green, D. H. Sullivan, and 'George' W. Savage (his correct Christian name is Gwilym), respectively president, vice president, and secretary-treasurer of district No. 6, U. M. W. A.; and A. R. Watkins, John Zelenka, and Lee Rankin, respectively president, vice president, and secretary-treasurer of subdistrict No. 5 of district No. 6. Plaintiff owns about 5,000 acres of coal lands situate at or near Benwood, in Marshall county, West Virginia, and within what is known as the 'Pan Handle District' of that state, and operates a coal mine thereon, employing between 200 and 300 men, and having an annual output, in and before 1907, of about 300,000 tons. At the time of the filing of the bill, and for a considerable time before and ever since, it operated its mine 'non-union,' under an agreement with its men to the effect that the mine should be run on a non-union basis, that the employes should not become connected with the union while employed by plaintiff, and that if they joined it their employment with plaintiff should cease. The bill set forth these facts, inter alia, alleged that they were known to defendants and each of them, and 'that the said defendants have unlawfully and maliciously agreed together, confederated, combined and formed themselves into a conspiracy, the purpose of which they are proceeding to carry out and are now about to finally accomplish, namely: to cause your orator's mine to be shut down, its plant to remain idle, its contracts to be broken and unfulfilled, until such time as your orator shall submit to the demand of the union that it shall unionize its plant, and having submitted to such demand unionize its plant by employing only union men who shall become subject to the orders of the union,' etc. The general object of the bill was to obtain an injunction to restrain defendants from interfering with the relations existing between plaintiff and its employes in order to compel plaintiff to 'unionize' the mine. A restraining order having been granted, followed by a temporary injunction, the served defendants filed answers, and thereupon made a motion to modify the injunction, which was refused. (C. C.) 172 Fed. 963. An appeal taken by defendants from this order was dismissed by the Circuit Court of Appeals. Lewis v. Hitchman Coal & Coke Co., 176 Fed. 549, 100 C. C. A. 137. Afterwards they applied for and obtained leave to withdraw their answers and file others; the order, however, prescribed that the withdrawn answers were 'not to be removed from the file.' The new answers denied all material averments of the bill, some of which had been admitted in the former answers. Plaintiff, having filed replications, obtained an order that the former answers should be treated as evidence on behalf of the plaintiff upon the issue joined. Upon this evidence and other evidence introduced before the court orally, the case was submitted, with the result that a final decree was made January 18, 1913, granting a perpetual injunction. (D. C.) 202 Fed. 512. This was reversed by the Circuit Court of Appeals June 1, 1914 (214 Fed. 685, 131 C. C. A. 425), but the mandate was stayed pending an application to this court for a writ of certiorari. Afterwards an appeal was allowed. This court dismissed the appeal, but granted the writ of certiorari (241 U. S. 644, 36 Sup. Ct. 450, 60 L. Ed. 1218), the record on appeal to stand as a return. The final decree of the District Court included an award of injunction against John Mitchell, W. B. Wilson, and Thomas Hughes, who while named as defendants in the bill were not served with process and entered no appearance except to object to the jurisdiction of the court over them. Under the federal practice, the appearance to object did not bind these parties to submit to the jurisdiction on the overruling of the objection (Harkness v. Hyde, 98 U. S. 476, 479, 25 L. Ed. 237; Southern Pacific Co. v. Denton, 146 U. S. 202, 206, 13 Sup. Ct. 44, 36 L. Ed. 942; Mexican Central Railway v. Pinkney, 149 U. S. 194, 209, 13 Sup. Ct. 859, 37 L. Ed. 699; Goldey v. Morning News, 156 U. S. 518, 15 Sup. Ct. 559, 39 L. Ed. 517; Davis v. C., C., C. & St. L. Ry., 217 U. S. 157, 174, 30 Sup. Ct. 463, 54 L. Ed. 708, 27 L. R. A. [N. S.] 823, 18 Ann. Cas. 907), and since the injunction operates only in personam, it was erroneous to include them as defendants. It also was erroneous to include personal relief by injunction against certain named parties who, pending suit, were chosen to succeed some of the original defendants as officers of the international, district, and subdistrict unions, but who were not served with process and did not appear, they being included upon the ground that they were 'before the court by representation through service having been had upon their said predecessors in office.' This suit was commenced, and was carried to final decree in the trial court, before the taking effect of the present equity rules (226 U. S. 629, 33 Sup. Ct. xix), and hence is governed by the former rule 48 (210 U. S. 524, 29 Sup. Ct. xxxi), under which the rights of absent parties were expressly reserved. But these procedural difficulties do not affect that part of the decree which awarded an injunction against the answering defendants (Lewis, Green, Sullivan, Savage, Watkins, Zelenka, and Rankin) 'individually' and not as officers of the union or its branches except as to Savage, against whom the decree goes in both his individual and official capacities, he alone having retained at the time of the final decree the same office he held at the beginning of the suit. If there was error in excluding the 'official' responsibility of the others, it was not one of which they could complain, and it was not assigned for error upon their appeal to the Circuit Court of Appeals. If they were subject to injunction at all, they were so in their individual capacities. Whether the decree will bind their successors in office, or their fellow members of the union, is a question to be determined hereafter, if and when proceedings are taken to enforce the injunction against parties other than the answering defendants. We proceed, therefore, to consider the case as it stands against the answering defendants. The District Court based its decision upon two grounds: (1) That the organization known as the United Mine Workers of America, and its branches, as conducted and managed at the time of the suit and for many years before, was a common-law conspiracy in unreasonable restraint of trade, and also and especially a conspiracy against the rights of non-union miners in West Virginia; and (2) that the defendants, in an effort to compel the plaintiff to enter into contractual relations with the union relating to the employment of labor and the production of coal, although having knowledge of express contracts existing between plaintiff and its employes which excluded relations with the union, endeavored by unlawful means to procure a breach of these contracts by the employes. A brief recital of previous transactions between the parties becomes material. The union is a voluntary and unincorporated association which was organized in the year 1890 in the states of Ohio and Indiana, and afterwards was extended to other states. It is made up of national or 'international,' district, subdistrict, and local unions. District No. 6 comprises the coal districts of Ohio and the Panhandle of West Virginia. Subdistrict No. 5 of that district comprises five counties and parts of counties in Ohio, and the Panhandle. The answering defendants were and are active and influential members—leaders—of the union, as well as officers. Savage, Lewis, and Sullivan have been members from its formation in 1890, and have held important offices in it and attended the national conventions. The others are long-time members, and possessed an influence indicated by the offices they held, but not limited to the duties of those offices. From 1897 to 1906 what were known as joint interstate conferences were held annually or biennially between officials of the union and representatives of the operators in the 'Central Competitive Field' (which includes Western Pennsylvania, Ohio, Indiana, and Illinois, but not West Virginia), for the purpose of agreeing upon the scale of wages and the conditions of employment in that field. In addition there were occasional conferences of the same character affecting other states and districts. Plaintiff's mine is within the territorial limits of subdistrict No. 5 of district No. 6. Coal-mining operations were commenced there in the early part of the year 1902, and the mine was operated 'non-union' until April, 1903, when, under threats from the union officials, including defendants Watkins and Sullivan, that a certain unionized mine in Ohio, owned by the same proprietors, would be closed down if the men at the Hitchman were not allowed to organize, plaintiff consented to the unionization of the latter mine. This went into effect on the 1st or April, 1903, and upon the very next day the men were called out on strike because of a disagreement with the company as to the basis upon which mining should be paid for. The strike continued until May 23d, requiring plaintiff to cease operations and preventing it from fulfilling its contracts, the most important of which was one for the daily supply of engine coal to the Baltimore & Ohio Railroad at a coaling station adjoining the mine. The financial loss to plaintiff was serious. The strike was settled, and the men resumed work upon the basis of a modification of the official mining scale applicable to the Hitchman mine. Again, in the spring of 1904, there was difficulty in renewing the scale. A temporary scale, agreed upon between operators and miners for the month of April, 1904, was signed in behalf of the Hitchman Company on the 18th of April. Two days later the men at the Hitchman struck, and the mine remained idle for two months, during which time plaintiff sustained serious losses in business and was put to heavy expense in obtaining coal from other sources to fill its contract with the Baltimore & Ohio Railroad Company. The strike was settled by the adoption of the official scale for the Panhandle District, with amendatory local rules for the Hitchman mine. After this there was little further trouble until April 1, 1906, when a disagreement arose between the union and an association of operators with which plaintiff was not connected the association being in fact made up of its competitors—about arranging the terms of the scale for the ensuing two years. At the same time a similar disagreement arose between the operators and the union officials in the Central Competitive Field. The result was a termination of the interstate conferences and a failure to establish any official scale for the ensuing two years, followed by a widespread strike, or a number of concurrent strikes, involving the most of the bituminous coal-producing districts. There was absolutely no grievance or ground of disagreement at the Hitchman mine, beyond the fact that the mining scale expired by its own terms on March 31st, and the men had not received authority from the union officials either to renew it or to agree to a new one in its place. Plaintiff came to an understanding with the local union to the effect that if its men would continue at work the company would pay them from April 1st whatever the new scale might be, except that if the new scale should prove to be lower than that which expired on March 31st, there should be no reduction in wages, while if the scale was raised the company would pay the increased amount, dating it back to April 1st. This was satisfactory to the men; but as the question of a new scale was then under discussion at a conference between the officials of the union and the representatives of the Operators' Association, and plaintiff's employes wished to get the sanction of their officers, the manager of the Hitchman mine got into communication with those officials, including defendant Green, president of district No. 6, and endeavored to secure their assent to the temporary arrangement, but without success. Then a committee of the local union, including Daugherty, its president, took up the matter with Green and received permission to mine and load engine coal until further notice from him. Under this arrangement the men remained at work for about two weeks. On April 15th, defendant Zelenka, vice president of the subdistrict, visited the mine, called a meeting of the miners, and addressed them in a foreign tongue, as a result of which they went on strike the next day, and the mine was shut down until the 12th of June, when it resumed as a 'non-union' mine, so far as relations with the U. M. W. A. were concerned. During this strike plaintiff was subjected to heavy losses and extraordinary expenses with respect to its business, of the same kind that had befallen it during the previous strikes. About the 1st of June a self-appointed committee of employes called upon plaintiff's president, stated in substance that they could not remain longer on strike because they were not receiving benefits from the union, and asked upon what terms they could return to work. They were told that they could come back, but not as members of the United Mine Workers of America; that thenceforward the mine would be run non-union, and the company would deal with each man individually. They assented to this, and returned to work on a non-union basis. Mr. Pickett, the mine superintendent, had charge of employing the men, then and afterwards, and to each one who applied for employment he explained the conditions, which were that while the company paid the wages demanded by the union and as much as anybody else, the mine was run non-union and would continue so to run; that the company would not recognize the United Mine Workers of America; that if any man wanted to become a member of that union he was at liberty to do so; but he could not be a member of it and remain in the employ of the Hitchman Company; that if he worked for the company he would have to work as a non-union man. To this each man employed gave his assent, understanding that while he worked for the company he must keep out of the union. Since January, 1908 (after the commencement of the suit), in addition to having this verbal understanding, each man has been required to sign an employment card expressing in substance the same terms. This has neither enlarged nor diminished plaintiff's rights, the agreement not being such as is required by law to be in writing. Under this arrangement as to the terms of employment, plaintiff operated its mine from June 12, 1906, until the commencement of the suit in the fall of the following year. During the same period a precisely similar method of employment obtained at the Glendale mine, a property consisting of about 1,200 acres of coal land adjoining the Hitchman property on the south, and operated by a company having the same stockholders and the same management as the Hitchman; the office of the Glendale mine being at the Hitchman Coal & Coke Company's office. Another mine in the Panhandle, known as the Richland, a few miles north of the Hitchman, likewise was run 'non-union.' In fact, all coal mines in the Panhandle and elsewhere in West Virginia, except in a small district known as the Kanawha field, were run 'non-union,' while the entire industry in Ohio, Indiana, and Illinois was operated on the 'closed-shop' basis, so that no man could hold a job about the mines unless he was a member of the United Mine Workers of America. Pennsylvania occupied a middle ground, only a part of it being under the jurisdiction of the union. Other states need not be particularly mentioned. The unorganized condition of the mines in the Panhandle and some other districts was recognized as a serious interference with the purposes of the union in the Central Competitive Field, particularly as it tended to keep the cost of production low, and, through competition with coal produced in the organized field, rendered it more difficult for the operators there to maintain prices high enough to induce them to grant certain concessions demanded by the union. This was the subject of earnest and protracted discussion in the annual international convention of the U. M. W. A. held at Indianapolis, Indiana, in the month of January, 1907, at which all of the answering defendants were present as delegates and participated in the proceedings. The discussion was based upon statements contained in the annual reports of John Mitchell, as president of the union (joined as a defendant in the bill but not served with process), and of defendant Lewis as vice president, respecting the causes and consequences of the strike of 1906, and the policy to be adopted by the union for the future. In these reports it was made to appear that the strike had been caused immediately by the failure of the joint convention of operators and miners representing the central and southwestern competitive fields, held in the early part of the year 1906, to come to an agreement for a renewal of the mining scale; that the strike was widespread, involving not less than 400,000 mine workers, was terminated by 'district settlements,' with variant results in different parts of the territory involved, and had not been followed by a renewal of the former relations between the operators and miners in the Central Competitive Field. Another result of the strike was a large decrease in the membership of the union. Two measures of relief were proposed: First, that steps be taken to re-establish the joint interstate conferences; and, second, the organization of the hitherto unorganized fields, including the Panhandle district of West Virginia, under closed-shop agreements, with all men about the mines included in the membership of the United Mine Workers of America. In the course of the discussion the purpose of organizing West Virginia in the interest of the unionized mine workers in the Central Competitive Field, and the probability that it could be organized only by means of strikes, were repeatedly declared and were disputed by nobody. All who spoke advocated strikes, differing only as to whether these should be nation-wide or sectional. Defendant Lewis, in his report, recommended an abandonment of the policy of sectional settlements which had been pursued in the previous year. This recommendation, interpreted as a criticism of the policy pursued under the leadership of President Mitchell in the settlement of the 1906 strike, was the subject of long and earnest debate, in the course of which Lewis said: 'When we organize West Virginia, when we organize the unorganized sections of Pennsylvania, we will organize them by a strike movement.' And again, towards the close of the debate: 'No one has made the statement that we can organize West Virginia without a strike.' Defendant Green took part, favoring the view of Mr. Lewis that strikes should be treated nationally instead of sectionally. In the course of his remarks he said: 'I say to you, gentlemen, one reason why I opposed the policy that was pursued last year was because over in Ohio we were peculiarly situated. We had West Virginia on the south and Pennsylvania on the east, and after four months of a strike in Eastern Ohio we had reached the danger line. We felt keenly the competition from West Virginia, and during the suspension our miners in Ohio chafed under the object lesson they had. They saw West Virginia coal go by, train-load after train-load passing their doors, when they were on strike. This coal supplied the markets that they should have had. There is no disguising the fact, something must be done to remedy this condition. Year after year Ohio has had to go home and strike in some portion of the district to enforce the interstate agreement that was signed up here. * * * I confess here and now that the overwhelming sentiment in Ohio was that a settlement by sections would not correct the conditions we complained of. Now, something must be done; it is absolutely necessary to protect us against the competition that comes from the unorganized fields east of us.' Mr. Mitchell opposed the view of defendant Lewis, reiterating an opinion, repeatedly expressed before, that West Virginia and the other unorganized fields, 'would not be thoroughly organized except as the result of a successful strike,' but declaring that 'they will not be organized at all, strike or no strike, unless we are able to support the men in those fields from the first day they lay down their tools. * * * Now, I believe it is possible, indeed I believe it is probable, that in the not distant future we will be able to inaugurate a movement in West Virginia and the other unorganized fields that will involve them in a strike, and then we will expect you to furnish the sinews of war, as you have done in the past, to keep these men in idleness.' The discussion continued during three days, and at the end of it the report of a committee which expressed disagreement with Vice President Lewis' opposition to sectional settlements and recommended 'a continuation in the future of the same wise, conservative business-like policies' that had been pursued by President Mitchell, was adopted by a viva voce vote. The plain effect of this action was to approve a policy which, as applied to the concrete case, meant that in order to relieve the union miners of Ohio, Indiana, and Illinois from the competition of the cheaper product of the non-union mines of West Virginia, the West Virginia mines should be 'organized' by means of strikes local to West Virginia, the strike benefits to be paid by assessments upon the union miners in the other states mentioned, while they remained at work. This convention was followed by an annual convention of subdistrict 5 of district 6, held in the month of March, 1907, at which defendants Watkins and Rankin were present as president and secretary of the subdistrict. Defendant Lewis, as national vice president, occupied the chair during several of the sessions. Defendant Zelenka was present as a delegate, and also Thomas Hughes, who, while named as a defendant in the present suit, was not served with process. Watkins and Rankin in their reports recommended the complete unionization of the mines in the Panhandle counties, with particular reference to the Hitchman, the Glendale, the Richland, and two others; and as a result it was resolved 'that the subdistrict officers, together with the district officers, be authorized to take up the work of organizing every mine in the subdistrict as quickly as it can be done.' Evidently in pursuance of this resolution, defendants Green, Zelenka, and Watkins, about July 1, 1907, called at plaintiff's office and laid before its general manager, Mr. Koch, a proposition for the unionization of the mine. He declined to consider it, but at their request laid it before plaintiff's board of directors, who rejected the proposition, and the manager informed Green of this. In one of the interviews Koch informed these defendants of the terms of plaintiff's working agreement with its employes to the effect that the mine was to be run non-union and they were not to become members of the union. About the same time, a Mr. McKinley, who was operating the Richland mine non-union, was interviewed by the union leaders, notified of the resolution adopted by the subdistrict convention, and, having asked that his mine be let alone, was met with the threat that they would secure the support of his men, and that if he did not recognize the union they would shut down his mine. In one of the interviews that ensued he was told that it was their purpose to organize the Glendale, the Hitchman, the Richland, and some other mines; that at the Glendale they had twenty-four men who had joined the organization, 'and that they had sixty men who had signed up or had agreed to join the organization at Hitchman, and that they were going to shut the mine down as soon as they got a few more men.' With respect to their progress at his own mine he was kept in the dark until about the middle of October, 1907, when, through the activities of the organizer Hughes, they succeeded in shutting it down, and it remained closed until a restraining order was allowed by the court, immediately after which it resumed non-union. The evidence renders it clear that Hughes was sent into the Panhandle to organize all the mines there, in accordance with the resolution of the subdistrict convention. The bill made a statement of his activities, and alleged that he was acting as an organizer for the union. Defendants' final answers made a complete denial, but in this are contradicted by admissions made in the earlier answers and by other and undisputed evidence. The only defendant who testified upon the subject declared that Hughes was employed by district No. 6 as an organizer, but denied that he had power or authority to shut down the Hitchman mine. He arrived at that mine some time in September, 1907, and remained there or in that vicinity until the latter part of October, conducting a campaign of organization at the Hitchman and at the neighboring Glendale and Richland mines. The evidence shows that he had distinct and timely notice that membership in the union was inconsistent with the terms of employment at all three mines, and a violation of the express provisions of the agreement at the Hitchman and Glendale. Having unsuccessfully applied to Koch and McKinley for their co-operation, Hughes proceeded to interview as many of the men as he could reach and to hold public meetings in the interest of the union. There is clear and uncontradicted evidence that he did not confine himself to mere persuasion, but resorted to deception and abuse. In his public speeches he employed abusive language respecting Mr. Pickett, William Daugherty, and Jim Jarrett.1 He prophesied, in such a way that ignorant, foreign-born miners, such as he was addressing, naturally might believe him to be speaking with knowledge, that the wages paid by the Hitchman would be reduced unless the mine was unionized. The evidence as to the methods he employed in personally interviewing the miners, while meager, is significant. Myers, a Hitchman miner, testified: 'He told me that he was a good friend of Mr. Koch, and that Mr. Koch had nothing against having the place organized again. He said he was a friend of his, and I made the remark that I would ask Mr. Koch and see if it was so; and he said no, that was of no use because he was telling me the truth.' He did not confine his attentions to men who already were in plaintiff's employ, but in addition dissuaded men who had accepted employment from going to work. A highly significant thing, giving character to Hughes' entire course of conduct, is that while his solicitation of the men was more or less public, as necessarily it had to be, he was careful to keep secret the number and the names of those who agreed to join the union. Myers, being asked to allow his name to be entered on a book that Hughes carried, tried to see the names already entered, 'but he would not show anything; he told me he had it, and I asked him how many names was on it, and he said he had about enough to 'crack off." To Stewart, another Hitchman miner, he said 'he was forming a kind of secret order among the men; he said he had a few men—he did not state the number of them—and he said each man was supposed to give him so much dues to keep it going, and then he said after he got the majority he would organize the place.' Pickett, the mine superintendent, had learned of only five men at the Glendale who were inclined to join Hughes' movement; but when these were asked to remain outside of the mine for a talk, fifteen other men waited with them, and upon being reminded that while the company would not try to prevent them from becoming members of the union, they could not be members and at the same time work for the Glendale Company, they all accepted this as equivalent to a notice of discharge. And, as has been stated, the owner of the Richland, while repeatedly threatened with unionization, was kept in the dark as to the progress made by the organizer amongst his employes until the mine was actually shut down. The question whether Hughes had 'power or authority' to shut down the Hitchman mine is beside the mark. We are not here concerned with any question of ultra vires, but with an actual threat of closing down plaintiff's mine, made by Hughes while acting as agent of an organized body of men who indubitably were united in a purpose to close it unless plaintiff would conform to their wishes with respect to its management, and who lacked the power to carry out that purpose only because they had not as yet persuaded a sufficient number of the Hitchman miners to join with them, and hence employed Hughes as an 'organizer' and sent him to the mine with the very object of securing the support of the necessary number of miners. They succeeded with respect to one of the mines threatened (the Richland), and preparations of like character were in progress at the Hitchman and the Glendale at the time the restraining order was made in this cause. If there be any practical distinction between organizing the miners and organizing the mine, it has no application to this case. Unionizing the miners is but a step in the process of unionizing the mine, followed by the latter almost as a matter of course. Plaintiff is as much entitled to prevent the first step as the second, so far as its own employes are concerned, and to be protected against irreparable injury resulting from either. Besides, the evidence shows, without any dispute, that defendants contemplated no halfway measures, but were bent on organizing the mine, the 'consent' of plaintiff to be procured through such a control of its employes as would render any further independent operation of the mine out of the question. This is evident from the discussions and resolutions of the international and subdistrict conventions, from what was said by defendants Green, Zelenka, and Watkins to plaintiff's manager, and to the operator of the Richland, and from all that was said and done by Hughes in his effort to organize the Hitchman, Glendale, and Richland mines. In short, at the time the bill was filed, defendants, although having full notice of the terms of employment existing between plaintiff and its miners, were engaged in an earnest effort to subvert those relations without plaintiff's consent, and to alienate a sufficient number of the men to shut down the mine, to the end that the fear of losses through stoppage of operations might coerce plaintiff into 'recognizing the union' at the cost of its own independence. The methods resorted to by their 'organizer' were such as have been described. The legal consequences remain for discussion. The facts we have recited are either admitted or else proved by clear and undisputed evidence and indubitable inferences therefrom. The proceedings of the international and subdistrict conventions were shown by the introduction of official verbatim reports, properly authenticated. It is objected that these proceedings, especially in so far as they include the declarations and conduct of others than the answering defendants, are not admissible because the existence of a criminal or unlawful conspiracy is not made to appear by evidence aliunde. The objection is untenable. In order that the declarations and conduct of third parties may be admissible in such a case, it is necessary to show by independent evidence that there was a combination between them and defendants, but it is not necessary to show by independent evidence that the combination was criminal or otherwise unlawful. The element of illegality may be shown by the declarations themselves. The rule of evidence is commonly applied in criminal cases, but is of general operation; indeed, it originated in the law of partnership. It depends upon the principle that when any number of persons associate themselves together in the prosecution of a common plan or enterprise, lawful or unlawful, from the very act of association there arises a kind of partnership, each member being constituted the agent of all, so that the act or declaration of one, in furtherance of the common object, is the act of all, and is admissible as primary and original evidence against them. Pleasants v. Fant, 22 Wall. 116, 119, 22 L. Ed. 780; Connecticut Mutual Life Ins. Co. v. Hillmon, 188 U. S. 208, 218, 23 Sup. Ct. 294, 47 L. Ed. 446; Story, Part. §§ 107, 108; 1 Greenleaf, Ev. §§ 112, 113 (184 b, 184 c); 2 Starkie, Ev. (2d Ed.) 25, 26; King v. Hardwick, 11 East, 578, 585, 589; Sandilands v. Marsh, 2 Barn. & Ald. 673, 679; Wood v. Braddick, 1 Taunt. 104, 105; Van Reimsdyk v. Kane (Story, J.), 1 Gall. 630, 635, 28 Fed. Cas. 1067, 1069; Aldrich v. Warren, 16 Me. 465, 468; Pierce v. Wood, 23 N. H. 519, 531; Page v. Parker, 40 N. H. 47, 62; State v. Thibeau, 30 Vt. 100, 105; Jenne v. Joslyn, 41 Vt. 478, 484; Locke v. Stearns, 1 Metc. (Mass.) 560, 563, 35 Am. Dec. 382; Lowe v. Dalrymple, 117 Pa. 564, 568, 12 Atl. 567; Main v. Aukam, 4 App. D. C. 51, 56. Upon a kindred principle, the declarations and conduct of an agent, within the scope and in the course of his agency, are admissible as original evidence against the principal, just as his own declarations or conduct would be admissible. Barreda v. Silsbee, 21 How. 146, 164, 165, 16 L. Ed. 86; Vicksburg & Meridian R. R. v. O'Brien, 119 U. S. 99, 104, 7 Sup. Ct. 118, 30 L. Ed. 299; La Abra Silver Mining Co. v. United States, 175 U. S. 423, 498, 20 Sup. Ct. 168, 44 L. Ed. 223. And since the evidence of Hughes' agency is clear and undisputed—that as the representative of a voluntary association of which the answering defendants were active members, and in the execution of a purpose to which they all had given consent, and in which some of them were actively co-operating, he was engaged in an effort to organize the coal mines of the Panhandle district—it is equally clear that his declarations and conduct while so doing are evidential against the defendants. What are the legal consequences of the facts that have been detailed? That the plaintiff was acting within its lawful rights in employing its men only upon terms of continuing non-membership in the United Mine Workers of America is not open to question. Plaintiff's repeated costly experiences of strikes and other interferences while attempting to 'run union' were a sufficient explanation of its resolve to run 'non-union,' if any were needed. But neither explanation nor justification is needed. Whatever may be the advantages of 'collective bargaining,' it is not baragining at all, in any just sense, unless it is voluntary on both sides. The same liberty which enables men to form unions, and through the union to enter into agreements with employers willing to agree, entitles other men to remain independent of the union and other employers to agree with then to employ no man who owes any allegiance or obligation to the union. In the latter case, as in the former, the parties are entitled to be protected by the law in the enjoyment of the benefits of any lawful agreement they may make. This court repeatedly has held that the employer is as free to make non-membership in a union a condition of employment, as the working man is free to join the union, and that this is a part of the constitutional rights of personal liberty and private property, not to be taken away even by legislation, unless through some proper exercise of the paramount police power. Adair v. United States, 208 U. S. 161, 174, 28 Sup. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764; Coppage v. Kansas, 236 U. S. 1, 14, 35 Sup. Ct. 240, 59 L. Ed. 441, L. R. A. 1915C, 960. In the present case, needless to say, there is not act of legislation to which defendants may resort for justification. Plaintiff, having in the exercise of its undoubted rights established a working agreement between it and its employes, with the free assent of the latter, is entitled to be protected in the enjoyment of the resulting status, as in any other legal right. That the employment was 'at will,' and terminable by either party at any time, is of no consequence. In Truax v. Raich, 239 U. S. 33, 38, 36 Sup. Ct. 7, 9 (60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283), this court ruled upon the precise question as follows: 'It is said that the bill does not show an employment for a term, and that under an employment at will the complainant could be discharged at any time, for any reason or for no reason, the motive of the employer being immaterial. The conclusion, however, that is sought to be drawn is too broad. The fact that the employment is at the will of the parties, respectively, does not make it one at the will of others. The employe has manifest interest in the freedom of the employer to exercise his judgment without illegal interference or compulsion, and, by the weight of authority, the unjustified interference of third persons is actionable although the employment is at will' (citing many cases). In short, plaintiff was and is entitled to the good will of its employes, precisely as a merchant is entitled to the good will of his customers although they are under no obligation to continue to deal with him. The value of the relation lies in the reasonable probability that by properly treating its employes, and paying them fair wages, and avoiding reasonable grounds of complaint, it will be able to retain them in its employ, and to fill vacancies occurring from time to time by the employment of other men on the same terms. The pecuniary value of such reasonable probabilities is incalculably great, and is recognized by the law in a variety of relations. See Brennan v. United Hatters (cited with approval in Truax v. Raich, supra), 73 N. J. Law, 729, 749, 65 Atl. 165, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727, 9 Ann. Cas. 698; Brown v. Honiss, 74 N. J. Law, 501, 514, 68 Atl. 150 et seq.; Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 767, 53 Atl. 230; Walker v. Cronin, 107 Mass. 555, 565-566; Moran v. Dunphy, 177 Mass. 485, 59 N. E. 125, 52 L. R. A. 115, 83 Am. St. Rep. 289, and cases there cited; L. D. Willcutt & Sons Co. v. Driscoll, 200 Mass. 110, 117, 85 N. E. 897, 23 L. R. A. (N. S.) 1236, etc. The right of action for persuading an employe to leave his employer is universally recognized—nowhere more clearly than in West Virginia—and it rests upon fundamental principles of general application, not upon the English statute of laborers. Thacker Coal Co. v. Burke, 59 W. Va. 253, 255, 53 S. E. 161, 5 L. R. A. (N. S.) 1091, 8 Ann. Cas. 885, 886; Walker v. Cronin, 107 Mass. 555, 567; Angle v. Chicago, St. Paul, etc., Railway, 151 U. S. 1, 13, 14 Sup. Ct. 240, 38 L. Ed. 55; Noice Adm'x v. Brown, 39 N. J. Law, 569, 572. We return to the matters set up by way of justification or excuse for defendants' interference with the situation existing at plaintiff's mine. The case involves no question of the rights of employes. DEFENDANTS HAVE NO AGENCY FOR PLAINTIFF'S employes, nor do they assert any disagreement or grievance in their behalf. In fact, there is none; but, if there were, defendants could not, without agency, set up any rights that employes might have. The right of the latter to strike would not give to defendants the right to instigate a strike. The difference is fundamental. It is suggested as a ground of criticism that plaintiff endeavored to secure a closed non-union mine through individual agreements with its employes, as if this furnished some sort of excuse for the employment of coercive measures to secure a closed union shop through a collective agreement with the union. It is a sufficient answer, in law, to repeat that plaintiff had a legal and constitutional right to exclude union men from its employ. But it may be worth while to say, in addition: First, that there was no middle ground open to plaintiff; no option to have an 'open shop' employing union men and non-union men indifferently; it was the union that insisted upon closed-shop agreements, requiring even carpenters employed about a mine to be members of the union, and making the employment of any non-union man a ground for a strike; and secondly, plaintiff was in the reasonable exercise of its rights in excluding all union men from its employ, having learned, from a previous experience, that unless this were done union organizers might gain access to its mine in the guise of laborers. Defendants set up, by way of justification or excuse, the right of workingmen to form unions, and to enlarge their membership by inviting other workingmen to join. The right is freely conceded, provided the objects of the union be proper and legitimate, which we assume to be true, in a general sense, with respect to the union here in question. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 439, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874. The cardinal error of defendants' position lies in the assumption that the right is so absolute that it may be exercised under any circumstances and without any qualification; whereas in truth, like other rights that exist in civilized society, it must always be exercised with reasonable regard for the conflicting rights of others. Brennan v. United Hatters, 73 N. J. Law, 729, 749, 65 Atl. 165, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727, 9 Ann. Cas. 698. The familiar maxim, 'Sic utere tuo ut alienum non laedas'—literally translated, 'So use your own property as not to injure that of another person,' but by more proper interpretation, 'so as not to injure the rights of another' (Broom's Leg. Max. [8th Ed.] 289)—applies to conflicting rights of every description. For example, where two or more persons are entitled to use the same road or passage, each on in using it is under a duty to exercise care not to interfere with its use by the others, or to damage them while they are using it. And a most familiar application is the action for enticing an employe, in which it never was a justification that defendant wished to retain for himself the services of the employe. 1 Black. Com. 429; 3 Id. 142. Now, assuming defendants were exercising, through Hughes, the right to invite men to join their union, still they had plain notice that plaintiff's mine was run 'non-union,' that none of the men had a right to remain at work there after joining the union, and that the observance of this agreement was of great importance and value both to plaintiff and to its men who had voluntarily made the agreement and desired to continue working under it. Yet defendants, far from exercising any care to refrain from unnecessarily injuring plaintiff, deliberately and advisedly selected that method of enlarging their membership which would inflict the greatest injury upon plaintiff and its loyal employes. Every Hitchman miner who joined Hughes' 'secret order' and permitted his name to be entered upon Hughes' list was guilty of a breach of his contract of employment and acted a lie whenever thereafter he entered plaintiff's mine to work. Hughes not only connived at this, but must be deemed to have caused and procured it, for it was the main feature of defendants' plan, the sine qua non of their programme. Evidently it was deemed to be necessary, in order to 'organize the Panhandle by a strike movement,' that at the Hitchman, for example, man after man should be persuaded to join the union, and having done so to remain at work keeping the employer in ignorance of their number and identity, until so many had joined that by stopping work in a body they could coerce the employer and the remaining miners to 'organize the mine,' that is, to make an agreement that none but members of the union should be employed, that terms of employment should be determined by negotiation not with the employes but with union officers—perhaps residents of other states and employes of competing mines—and that all questions in controversy between the mine operator and the miners should likewise be settled with outsiders. True, it is suggested that under the existing contract an employe was not called upon to leave plaintiff's employ until he actually joined the union and that the evidence shows only an attempt by Hughes to induce the men to agree to join, but no attempt to induce them to violate their contract by failing to withdraw from plaintiff's employment after actually joining. But in a court of equity, which looks to the substance and essence of things and disregards matters of form and technical nicety, it is sufficient to say that to induce men to agree to join is but a mode of inducing them to join, and that when defendants 'had sixty men who had signed up or agreed to join the organization at Hitchman,' and were 'going to shut the mine down as soon as they got a few more men,' the sixty were for practical purposes, and therefore in the sight of equity, already members of the union, and it needed no formal ritual or taking of an oath to constitute them such; their uniting with the union in the plan to subvert the system of employment at the Hitchman mine, to which they had voluntarily agreed and upon which their employer and their fellow employes were relying, was sufficient. But the facts render it plain that what the defendants were endeavoring to do at the Hitchman mine and neighboring mines cannot be treated as a bona fide effort to enlarge the membership of the union. There is no evidence to show, nor can it be inferred, that defendants intended or desired to have the men at these mines join the union, unless they could organize the mines. Without this, the new members would be added to the number of men competing for jobs in the organized districts, while non-union men would take their places in the Panhandle mines. Except as a means to the end of compelling the owners of these mines to change their method of operation, the defendants were not seeking to enlarge the union membership. In any aspect of the matter, it cannot be said that defendants were pursuing their object by lawful means. The question of their intention—of their bona fides—cannot be ignored. It enters into the question of malice. As Bowen, L. J., justly said, in the Mogul Steamship Case, 23 Q. B. Div. 613: 'Intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person's property or trade, is actionable if done without just cause or excuse.' And the intentional infliction of such damage upon another, without justification or excuse, is malicious in law. Bitterman v. Louisville & Nashville R. R., 207 U. S. 205, 223, 28 Sup. Ct. 91, 52 L. Ed. 171, 12 Ann. Cas. 693; Brennan v. United Hatters, 73 N. J. Law, 729, 744, et seq., 65 Atl. 165, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727, 9 Ann. Cas. 698, and cases cited. Of course, in a court of equity, when passing upon the right of injunction, damage threatened, irremediable by action at law, is equivalent to damage done. And we cannot deem the proffered excuse to be a 'just cause or excuse,' where it is based, as in this case, upon an assertion of conflicting rights that are sought to be attained by unfair methods, and for the very purpose of interfering with plaintiff's rights, of which defendants have full notice. Another fundamental error in defendants' position consists in the assumption that all measures that may be resorted to are lawful if they are 'peaceable'—that is, if they stop short of physical violence, or coercion through fear of it. In our opinion, any violation of plaintiff's legal rights contrived by defendants for the purpose of inflicting damage, or having that as its necessary effect, is as plainly inhibited by the law as if it involved a breach of the peace. A combination to procure concerted breaches of contract by plaintiff's employes constitutes such a violation. Flaccus v. Smith, 199 Pa. 128, 48 Atl. 894, 54 L. R. A. 640, 85 Am. St. Rep. 779; South Wales Miners' Federation v. Glamorgan Coal Co., [1905] A. C. 239, 244, 250, 253; Jonas Glass Co. v. Glass Bottle Blowers' Association, 77 N. J. Eq. 219, 223, 79 Atl. 262, 41 L. R. A. (N. S.) 445. The present is not a case of merely withholding from an employer an economic need—as a supply of labor—until he assents to be governed by union regulations. Defendants have no supply of labor of which plaintiff stands in need. By the statement of defendant Lewis himself, made in his formal report to the Indianapolis convention of 1907, out of more than 370,000 coal miners in the states of Pennsylvania, Maryland, Virginia, and West Virginia, less than 80,000 (about 22 per cent.) were members of the Union. Considering the Panhandle separately, doubtless the proportion was even smaller, and the supply of non-union labor ample. There is no reason to doubt that if defendants had been actuated by a genuine desire to increase the membership of the union without unnecessary injury to the known rights of plaintiff, they would have permitted their proselytes to withdraw from plaintiff's employ when and as they became affiliated with the union—as their contract of employment required them to do—and that in this event plaintiff would have been able to secure an adequate supply of non-union men to take their places. It was with knowledge of this, and because of it, that defendants, through Hughes as their agent, caused the new members to remain at work in plaintiff's mine until a sufficient number of men should be persuaded to join so as to bring about a strike and render it difficult if not practically impossible for plaintiff to continue to exercise its undoubted legal and constitutional right to run its mine 'non-union.' It was one thing for plaintiff to find, from time to time, comparatively small numbers of men to take vacant places in a going mine, another and a much more difficult thing to find a complete gang of new men to start up a mine shut down by a strike, when there might be a reasonable apprehension of violence at the hands of the strikers and their sympathizers. The disordered condition of a mining town in time of strike is matter of common knowledge. It was this kind of intimidation, as well as that resulting from the large organized membership of the union, that defendants sought to exert upon plaintiff, and it renders pertinent what was said by this court in the Gompers Case, 221 U. S. 418, 439, 31 Sup. Ct. 492, 497 (55 L. Ed. 797, 34 L. R. A. [N. S.] 874) immediately following the recognition of the right to form labor unions: 'But the very fact that it is lawful to form these bodies, with multitudes of members, means that they have thereby acquired a vast power, in the presence of which the individual may be helpless. This power, when unlawfully used against one, cannot be met, except by his purchasing peace at the cost of submitting to terms which involve the sacrifice of rights protected by the Constitution; or by standing on such rights, and appealing to the preventive powers of a court of equity. When such appeal is made, it is the duty of government to protect the one against the many, as well as the many against the one.' Defendants' acts cannot be justified by any analogy to competition in trade. They are not competitors of plaintiff; and if they were their conduct exceeds the bounds of fair trade. Certainly, if a competing trader should endeavor to draw custom from his rival, not by offering better or cheaper goods, employing more competent salesmen, or displaying more attractive advertisements, but by persuading the rival's clerks to desert him under circumstances rendering it difficult or embarrassing for him to fill their places, any court of equity would grant an injunction to restrain this as unfair competition. Upon all the facts, we are constrained to hold that the purpose entertained by defendants to bring about a strike at plaintiff's mine in order to compel plaintiff, through fear of financial loss, to consent to the unionization of the mine as the lesser evil, was an unlawful purpose, and that the methods resorted to by Hughes—the inducing of employes to unite with the union in an effort to subvert the system of employment at the mine by concerted breaches of the contracts of employment known to be in force there, not to mention misrepresentation, deceptive statements, and threats of pecuniary loss communicated by Hughes to the men—were unlawful and malicious methods, and not to be justified as a fair exercise of the right to increase the membership of the union. There can be no question that plaintiff was threatened with danger of an immediate strike as a result of the activities of Hughes. The effect of his arguments and representations is not to be judged from the testimony of those witnesses who rejected his overtures. Naturally, it was not easy for plaintiff to find men who would testify that they had agreed with Hughes to break their contract with plaintiff. One such did testify. But the true measure of the extent of his operations and the probability of his carrying them to success are indicated by his declaration to Myers that he had about enough names at the Hitchman to 'crack off,' by the statement to McKinley that twenty-four men at the Glendale mine had joined the organization, and sixty at the Hitchman, and by the fact that they actually succeeded in shutting down the Richland about the middle of October. The declaration made concerning the Glendale is corroborated by the evidence of what happened at that mine. That the damage resulting from a strike would be irremediable at law is too plain for discussion. Therefore, upon the undisputed facts of the case, and the indubitable inferences from them, plaintiff is entitled to relief by injunction. Having become convinced by three costly strikes, occurring within a period of as many years, of the futility of attempting to operate under a closed-shop agreement with the union, it established the mine on a non-union basis, with the unanimous approval of its employes—in fact upon their suggestion and under a mutual agreement, assented to by every employe, that plaintiff would continue to run its mine non-union and would not recognize the United Mine Workers of America; that if any man wanted to become a member of that union he was at liberty to do so, but he could not be a member and remain in plaintiff's employ. Under that agreement plaintiff ran its mine for a year and more, and, so far as appears without the slightest disagreement between it and its men, and without any grievance on their part. Thereupon defendants, having full notice of the working agreement between plaintiff and its men, and acting without any agency for those men, but as representatives of an organization of mine workers in other states, and in order to subject plaintiff to such participation by the union in the management of the mine as necessarily results from the making of a closed-shop agreement, sent their agent to the mine, who, with full notice of, and for the very purpose of subverting, the status arising from plaintiff's working agreement and subjecting the mine to the union control, proceeded, without physical violence, indeed, but by persuasion accompanied with threats of a reduction of wages and deceptive statements as to the attitude of the mine management, to induce plaintiff's employes to join the union and at the same time to break their agreement with plaintiff by remaining in its employ after joining; and this for the purpose not of enlarging the membership of the union, but of coercing plaintiff, through a strike or the threat of one, into recognition of the union. As against the answering defendants, plaintiff's right to an injunction is clear; as to the others named as defendants, but not served with process, the decree is erroneous, as already stated. Respecting the sweep of the injunction, we differ somewhat from the result reached by the District Court. So far as it restrains: (1) Interfering or attempting to interfere with plaintiff's employes for the purpose of unionizing plaintiff's mine without its consent, by representing or causing to be represented to any of plaintiff's employes, or to any person who might become an employe of plaintiff, that such person will suffer or is likely to suffer some loss or trouble in continuing in or in entering the employment of plaintiff, by reason of plaintiff not recognizing the union, or because plaintiff runs a non-union mine; (2) interfering or attempting to interfere with plaintiff's employes for the purpose of unionizing the mine without plaintiff's consent, and in aid of such purpose knowingly and willfully bringing about the breaking by plaintiff's employes of contracts of service known at the time to exist with plaintiff's present and future employes; (3) knowingly and willfully enticing plaintiff's employes, present or future, to leave plaintiff's service on the ground that plaintiff does not recognize the United Mine Workers of America or runs a non-union mine, etc.; (4) interfering or attempting to interfere with plaintiff's employes so as knowingly and willfully to bring about the breaking by plaintiff's employes, present and future, of their contracts of service, known to the defendants to exist, and especially from knowingly and willfully enticing such employes, present or future, to leave plaintiff's service without plaintiff's consent; (5) trespassing on or entering upon the grounds and premises of plaintiff or its mine for the purpose of interfering therewith or hindering or obstructing its business, or with the purpose of compelling or inducing, by threats, intimidation, violent or abusive language, or persuasion, any of plaintiff's employes to refuse or fail to perform their duties as such; and (6) compelling or inducing or attempting to compel or induce, by threats, intimidation, or abusive or violent language, any of plaintiff's employes to leave its service or fail or refuse to perform their duties as such employes, or compelling or attempting to compel by like means any person desiring to seek employment in plaintiff's mine and works from so accepting employment therein—the decree is fully supported by the proofs. But it goes further, and awards an injunction against picketing and against acts of physical violence, and we find no evidence that either of these forms of interference was threatened. The decree should be modified by eliminating picketing and physical violence from the sweep of the injunction, but without prejudice to plaintiff's right to obtain an injunction hereafter against these forms of interference if proof shall be produced, either in proceedings supplemental to this action or in an independent action, that such an injunction is needed. The decree of the Circuit Court of Appeals is reversed, and the decree of the District Court is modified as above stated, and as so modified it is affirmed, and the cause is remanded to the District Court for further proceedings in conformity with this opinion.

246.US.335

The First Assistant Postmaster General, in accordance with a decision of the Postmaster General, undertook to terminate an existing contract for automobile mail service at Washington, D. C., to make place for a similar service to be conducted by the Department under a special appropriation, his action being based upon the supposed authority of the contract itself and being purely official, discretionary, and within the scope of his duties. Held, that a suit to restrain him from annulling the contract and from interfering with its further performance was in effect a suit against the United States, and was therefore properly dismissed. 44 App. D. C. 276, affimed.

Messrs. Daniel Thew Wright and T. Morris Wampler, both of Washington, D. C., for appellant. Mr. G. Carroll Todd, Assistant to the Attorney General, for appellee. Mr. Justi e PITNEY delivered the opinion of the Court. This was a suit in equity brought in the Supreme Court of the District of Columbia for an injunction to restrain Daniel C. Roper, First Assistant Postmaster General, from annulling a contract theretofore made between plaintiff and the Postmaster General acting for the United States, and from interfering between plaintiff and the United States in the proper performance and execution of the contract by plaintiff. The Supreme Court sustained a motion to dismiss the bill, its decree to that effect was affirmed by the Court of Appeals of the District of Columbia (44 App. D. C. 276), and plaintiff appeals to this court. The contract was made February 14, 1913, and by it plaintiff agreed for a stated compensation to furnish, during a period of four years a number of automobiles (with chaffeurs) specially equipped according to specifications for use in collecting and delivering mail at Washington, D. C. One of its provisions (the third) was a stipulation that: 'Any or all of the equipments contracted for herein may be discontinued at any time upon ninety days' notice from the said party of the first part,' meaning the Postmaster General. '18. That all acts done by the First Assistant Postmaster General in respect of this contract shall be deemed and taken, for all purposes, to be the acts of the Postmaster General, within the meaning and intent of this contract.' Plaintiff expended considerable sums of money and incurred substantial obligations in providing automobiles and other special equipment necessary for the performance of the contract, and continued to perform it for nearly two years. Then the Postmaster General, acting under a provision of an appropriation act approved March 9, 1914 (chapter 33, 38 Stat. 295, 300), by which he was authorized in his discretion to use such portion of a certain appropriation as might be necessary 'for the purchase and maintenance of wagons or automobiles for and the operation of an experimental combined screened wagon and city collection and delivery service,' determined it to be in the interest of the public service that such an experiment should be conducted at Washington, D. C., and in order to do this deemed it necessary to discontinue the service then being performed by plaintiff. Accordingly the First Assistant Postmaster General notified plaintiff in writing that it was essential for the purpose mentioned that his contract should be canceled, and that 'under the third stipulation of the contract the use of all the automobiles furnished thereunder will be discontinued at the close of business January 31, 1915, and the contract canceled effective on that date.' Notwithstanding protest by plaintiff, this decision was adhered to, and the present suit was commenced. Both courts held it to be essentially and substantially a suit against the United States and therefore beyond the jurisdiction of the court, and in this view we concur. The effect of the injunction asked for would have been to oblige the United States to accept continued performance of plaintiff's contract, and thus prevent the inauguration of the experimental service contemplated by the act of 1914—a direct interference with one of the processes of government. The argument to the contrary assumes to treat defendant, not as an official, but as an individual who, although happening to hold public office, was threatening to perpetrate an unlawful act outside of its functions. But the averments of the bill make it clear that defendant was without personal interest and was acting solely in his official capacity and within the scope of his duties. Indeed, it was only because of his official authority that plaintiff's interests were at all endangered by what he proposed to do. That the interests of the government are so directly involved as to make the United States a necessary party and therefore to be considered as in effect a party, although not named in the bill, is entirely plain. And the case does n t fall within any of the exceptions to the general rule that the United States may not be sued without its consent, nor its executive agents subjected to the control of the courts respecting the performance of their official duties. It cannot successfully be contended that any question of defendant's official authority is involved; it is a mere question of action alleged to be inconsistent with the stipulation under which it purported to be taken; nor can it be denied that the duty of the Postmaster General, and of the defendant as his deputy, was executive in character, not ministerial, and required an exercise of official discretion. And neither the question of official authority nor that of official discretion is affected, for present purposes, by assuming or conceding, for the purposes of the argument, that the proposed action may have been unwarranted by the terms of the contract and such as to constitute an actionable breach of that contract by the United States. See Noble v. Union River Logging Railroad, 147 U. S. 165, 171, 13 Sup. Ct. 271, 37 L. Ed. 123, and cases cited; Belknap v. Schild, 161 U. S. 10, 17, 18, 16 Sup. Ct. 443, 40 L Ed. 599; School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 108, 23 Sup. Ct. 33, 47 L. Ed. 90; Philadelphia Co. v. Stimson, 223 U. S. 605, 620, 32 Sup. Ct. 340, 56 L. Ed. 570. The United States has consented to be sued in the Court of Claims and in the District Courts upon claims of a certain class, and not otherwise. Hence, without considering other questions discussed by the courts below or raised by appellant in this court, we conclude that the dismissal of the bill was not erroneous. Decree affirmed.

246.US.276

A case arising under the Federal Employers' Liability Act between citizens of different States is not removable from a state to a federal District Court on either ground. In the absence of a fraudulent purpose to defeat removal, the status, with respect to removability, of a case alleged to be one arising under the Federal Employers' Liability Act depends not upon what the defendant may allege or prove or what the court may, after hearing upon the merits, in invtum order, but solely upon the form which the plaintiff voluntarily gives to his pleadings initially and as the case progresses. Therefore, where the complaint states a cause under the Federal Act, the failure of the plaintiff to prove that the employee was engaged in interstate commerce when injured will not leave the case rermovable because of diverse citizeship appearing in the complaint. A contention to the contrary is not a claim of federal right of sufficient substance to afford this court jurisdiction to review a state court's judgment. Writ of error to review 51 Montana, 565, dismissed.

This case presents for decision the question whether the nonremovable case stated in the complaint became one subject to removal when the plaintiff rested his case, and, as the defendant claimed, it became apparent that the allegation of the complaint that the deceased was employed in interstate commerce when killed was not sustained by the evidence. We shall designate the parties as they were in the trial court, the defendant in error as plaintiff and the plaintiff in error as defendant. The suit was commenced in a district court of Montana and is one to recover damages for wrongful death. The plaintiff was a citizen of Montana when the case was commenced and he alleges in his complaint that the defendant was an interstate carrier, organized under the laws of the state of Minnesota at the time the accident occurred; that the deceased was a conductor employed by the defendant in interstate commerce at the time he was killed; and that the proximate cause of the accident was the failure of defendant to fence its line, which resulted in the derailing of the car on which plaintiff's decedent was employed, causing his instant death. The defense is a denial that deceased was employed in interstate commerce when injured, and a denial of negligence in the failure to fence, with a plea of assumption of risk. When the plaintiff rested his case the defendant 'moved for a judgment of nonsuit and dismissal upon the merits, * * * based upon the complaint of the plaintiff and upon the testimony adduced.' This motion asserted in various forms that the evidence introduced failed to show any actionable negligence on the part of the defendant and concluded with a fifth paragraph, alleging, in substance, as follows: That there was a fatal variance, amounting to failure of proof, between the allegation of the complaint that the deceased was employed in interstate commerce at the time he was injured and the evidence introduced; * * * that, this variance is substantial in that with the complaint charging that the deceased was killed while engaged in interstate commerce, the defendant could not remove said case to the federal court, whereas if the case as made by the proof had been made, to wit, an intrastate case, it could have been removed; and hence the failure to recognize the variance would operate to deny to the defendant a right under a statute or law of the United States, to wit, the right to remove such a case properly pleaded to the federal court. The trial court having overruled this motion, the defendant introduced its evidence in defense and after the plaintiff's rebuttal was concluded renewed its motion, which was again denied, the defendant reserving its exception, and thereupon the case was submitted to the jury and judgment was entered on the verdict in favor of the plaintiff. On review the Supreme Court of Montana (51 Mont. 565, 154 Pac. 914) held that the trial court had erred, and should have ruled that on the evidence adduced the deceased was not employed in interstate commerce when injured, but holding that the defendant had waived its right to remove by failing to file a petition for removal, as required by law, the court went forward and held, that a case of negligence at common law was stated in the complaint, and that the evidence introduced justified the trial court in submitting the case to the jury, and that the judgment must be affirmed. In disposing of the question presented by this motion for 'nonsuit and dismissal' which we are considering, the Supreme Court of Montana said: 'We recall but one respect in which a defendant can be seriously prejudiced in such a situation, and that is where, by reason of diverse citizenship, removal of the cause to the federal court might be in order. In such a situation, however, the defendant must assert its right, under penalty of waiver, by filing a petition to remove at the first opportunity. * * * This the appellant did not do; instead, and with the knowledge of its right to have the cause removed, it submitted to the jurisdiction of the state court in which the trial occurred, by seeking a dismissal for variance as well as for failure to show the breach by it of any legal duty to the decedent under either state or federal law.' No claim is made that the allegation that the plaintiff's decedent was employed in interstate commerce was incorporated into the complaint fraudulently or in bad faith, for the purpose of defeating the right of the defendant to remove the case to the federal court. The claim now m de in this court by the defendant is that the state Supreme Court correctly held that the evidence introduced failed to show that the deceased was employed in interstate commerce when he was injured, but that it committed reversible error and denied to the defendant the federal right to remove the case when it held that the right to remove had been waived, and affirmed the judgment instead of reversing and remanding the case to the lower court for further proceedings. The plaintiff replies to this claim with the contention that the court is without jurisdiction to review the decision of the state Supreme Court for the reason that no federal right was denied to the plaintiff in error at any stage of the proceeding in the state court. It is, of course, familiar law that the right of removal being statutory, a suit commenced in a state court must remain there until cause is shown for its transfer under some act of Congress. Gold Washing, etc., Co. v. Keyes, 96 U. S. 199, 24 L. Ed. 656; Jud. Code, c. 3, §§ 28, 39. The allegation of the complaint that the deceased was employed in interstate commerce when injured, brought the case within the scope of the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, §§ 8657-8665]) and it would have been removable either for diversity of citizenship or as a case arising under a law of the United States, except for the prohibition against removal contained in the amendment to the act, approved April 5, 1910 (36 Stat. L. 291, c. 143). But this allegation rendered the case, at the time it was commenced, clearly not removable on either ground. Kansas City Southern Ry. Co. v. Leslie, 238 U. S. 599, 35 Sup. Ct. 844, 59 L. Ed. 1478; Southern R. R. Co. v. Lloyd, 239 U. S. 496, 36 Sup. Ct. 210, 60 L. Ed. 402. The removal provisions of the Judicial Code (chapter 3, §§ 28 and 39, inclusive; Act March 3, 1911, c. 231, 36 Stat. 1094, 1099 [Comp. St. 1916, §§ 1010, 1021]), in effect when this case was tried, were substantially the same as they have been since the Removal Act of 1888 was passed, and that a case not removable when commenced may afterwards become removable is settled by Ayers v. Watson, 113 U. S. 594, 5 Sup. Ct. 641, 28 L. Ed. 1093; Martin's Administrator v. B. & O. R. R. Co., 151 U. S. 673, 688, 691, 14 Sup. Ct. 533, 38 L. Ed. 311; Powers v. C. & O. Ry. Co., 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673, and Fritzlen v. Boatmen's Bank, 212 U. S. 364, 29 Sup. Ct. 366, 53 L. Ed. 551. Under the doctrine of these cases the defendant, admitting the nonremovable character of the case at bar when it was commenced, argues that the failure of the plaintiff to prove his allegation that the deceased was employed in interstate commerce when he was injured, left the complaint as if the allegation had not been incorporated into it, and that therefore the case became removable for diversity of citizenship when the plaintiff rested his case. But unfortunately for the validity of this contention it has been frequently decided by this court that whether a case arising, as this one does, under a law of the United States is removable or not, when it is commenced (there being no claim of fraudulent attempt to evade removal), is to be determined by the allegations of the complaint or petition and that if the case is not then removable it cannot be made removable by any statement in the petition for removal or in subsequent pleadings by the defendant. Tennessee v. Union & Planters' Bank, 152 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511; Chappell v. Waterworth, 155 U. S. 102, 15 Sup. Ct. 34, 39 L. Ed. 85; Texas & Pacific Ry. Co. v. Cody, 166 U. S. 606, 17 Sup. Ct. 703, 41 L. Ed. 1132; Taylor v. Anderson, 234 U. S. 74, 34 Sup. Ct. 724, 58 L. Ed. 1218. It is also settled that a case, arising under the laws of the United States, nonremovable on the complaint, when commenced, cannot be converted into a removable one by evidence of the defendant or by an order of the court upon any issue tried upon the merits, but that suc conversion can only be accomplished by the voluntary amendment of his pleadings by the plaintiff or, where the case is not removable because of joinder of defendants, by the voluntary dismissal or nonsuit by him of a party or of parties defendant. Kansas City, etc., Ry. Co. v. Herman, 187 U. S. 63, 23 Sup. Ct. 24, 47 L. Ed. 76; Alabama Great Southern Ry. Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147; Lathrop, Shea & Henwood Co. v. Interior Construction Co., 215 U. S. 246, 30 Sup. Ct. 76, 54 L. Ed. 177; American Car, etc., Co. v. Kettlehake, 236 U. S. 311, 35 Sup. Ct. 355, 59 L. Ed. 594. The obvious principle of these decisions is that, in the absence of a fraudulent purpose to defeat removal, the plaintiff may by the allegations of his complaint determine the status with respect to removability of a case, arising under a law of the United States, when it is commenced, and that this power to determine the removability of his case continues with the plaintiff throughout the litigation, so that whether such a case nonremovable when commenced shall afterwards become removable depends not upon what the defendant may allege or prove or what the court may, after hearing upon the merits, in invitum, order, but solely upon the form which the plaintiff by his voluntary action shall give to the pleadings in the case as it progresses towards a conclusion. The result of the application of this principle to the case at bar is not doubtful. The plaintiff did not at any time admit that he had failed to prove the allegation that the deceased was employed in interstate commerce when injured, and he did not amend his complaint, but, on the contrary, he has contended at every stage of the case and in his brief in this court still contends that the allegation was supported by the evidence. The first holding to the contrary was by the state Supreme Court and the most that can be said of that decision is that the defendant prevailed in a matter of defense which he had pleaded, but, as we have seen, this does not convert a nonremovable case into a removable one, in the absence of voluntary action on the part of the plaintiff, and it therefore results that the defendant did not at any time have the right to remove the case to the federal court, which it claims was denied to it, and that therefore, there being no substance in the claim of denial of federal right, this court is without jurisdiction to review the decision of the Supreme Court of Montana and the writ of error must be Dismissed.

245.US.128

Article IV, § 2, of the Constitution intends, not to express the law of extradition as usually prevailing among independent nations, but to provide a summary executive proceeding whereby the States may promptly aid one another in bringing accused persons to trial. Its provisions, and the statutes passed in execution of them, should be construed liberally to effectuate this purpose. A person indicted in due form for an offense against the laws of a State, who was present in that State at the time when the offense is so alleged to have been committed and subsequently leaves it, becomes, within the meaning of the Federal Constitution and laws, a fugitive from justice; and upon the making of demand, accompanied by certified papers, as required by § 5278 of the Revised Statutes, the governor of the State in which he is found must cause him to be arrested and delivered for extradition into the custody of the authorized agent of the State whose laws are alleged to have been violated. An accused person arrested in interstate extradition proceedings, who sues out habeas corpus to obtain his discharge on the ground that he is not a fugitive from justice, is not entitled to introduce evidence to prove that after the date of the alleged offense he was "usually and publicly resident" within the demanding State for a time sufficient to bar the prosecution under its limitation statutes. The statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases; and this court has frequently decided that matters of defense can not be heard on habeas corpus to test the validity of an arrest in extradition, but must be heard and decided, at the trial, by the courts of the demanding State. Affirmed.

In various indictments returned in the state of Illinois on May 5, 1916, against appellant, Guy B. Biddinger, he was charged with having committed crimes in that state at various times between the 15th day of October, 1908, and the 2d day of September, 1910. Each of these indictments contained the allegation required by the Illinois practice that 'the said Guy B. Biddinger since the 10th day of May, 1911, and from thence hitherto was not usually and publicly a resident within this state of Illinois.' Transmitting the papers required by the United States statutes, duly certified, the Governor of Illinois demanded of the Governor of New York the extradition of Biddinger as a fugitive from justice. The Governor of New York, after according the accused a full hearing, issued to the commissioner of police of the city of New York an executive warrant for his arrest and delivery to the agent authorized to receive and convey him to Illinois, there to be dealt with according to law. Upon this warrant the appellant was taken into custody. Thereupon, on the petition of the appellant, a writ of habeas corpus issued from the District Court for the Southern District of New York, and the commissioner of police, making return thereto, gave the executive warrant as his justification for the imprisonment and detention of the accused. An elaborate traverse was filed to this return, but, upon the hearing, the court discharged the writ and remanded Biddinger to the custody of the appellee. On appeal to this court 25 errors are assigned, but on argument only one is relied upon, viz.: The action of the District Court in excluding evidence offered to prove that the accused had been publicly and usually resident within the state of Illinois continuously for more than three years after the dates on which he was charged with having committed the crimes. This evidence was tendered for the claimed purpose of proving that Biddinger was not a fugitive from justice and therefore was not subject to extradition. This claim of error requires the consideration of section 2 of article 4, of the Constitution, and of section 5278 of the Revised Statutes of the United States, as well as sections 315 and 317 of the statutes of the state of Illinois (Cr. Code), which read as follows: Constitution, art. 4, § 2. A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. United States Revised Statutes, § 5278 (Comp. St. 1916, § 10126). 'Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. * * *' Section 315. For Other Felonies. Section 3. All indictments for other felonies (including the crimes charged) must be found within three years next after the commission of the crime, except as otherwise provided by law. Section 317. Time of Absence Not Counted. Section 5. No period during which the party charged was not usually and publicly resident within this state shall be included in the time of limitation. Relying upon these constitutional and statutory provisions, the argument is pressed upon our attention with much plausibility that one who continues 'usually and publicly' resident within the state of Illinois for a longer period than that within which, under the laws of that state, he may be prosecuted for the crimes charged, cannot, with due regard to the meaning of the language used, be said to 'flee,' or 'to have fled,' from justice, or to be 'a fugitive from justice,' if he afterwards leaves that state and is found in another. Thus is presented the question whether the order remanding the accused into custody to be conveyed to the state of Illinois for trial is in violation of the rights secured to him by the federal Constitution and laws which we have quoted. The provision of the federal Constitution quoted, with the change of only two words, first appears in the Articles of Confederation of 1781, where it was used to describe and to continue in effect the practice of the New England colonies with respect to the extradition of criminals. Commonwealth of Kentucky v. Dennison, 24 How. 66, 16 L. Ed. 717. The language was not used to express the law of extradition as usually prevailing among independent nations but to provide a summary executive proceeding by the use of which the closely associated states of the Union could promptly aid one another in bringing to trial persons accused of crime by preventing their finding in one state an asylum against the processes of justice of another. Lascelles v. Georgia, 148 U. S. 537, 13 Sup. Ct. 687, 37 L. Ed. 549. Such a provision was necessary to prevent the very general requirement of the state Constitutions that persons accused of crime shall be tried in the county or district in which the crime shall have been committed from becoming a shield for the guilty rather than the defense for the innocent, which it was intended to be. Its design was and is, in effect, to eliminate, for this purpose, the boundaries of states, so that each may reach out and bring to speedy trial offenders against its laws from any part of the land. Such being the origin and purpose of these provisions of the Constitution and statutes, they have not been construed narrowly and technically by the courts as if they were penal laws, but liberally to effect their important purpose, with the result that one who leaves the demanding state before prosecution is anticipated or begun, or without knowledge on his part that he has violated any law, or who, having committed a crime in one state, returns to his home in another, is nevertheless decided to be a fugitive from justice within their meaning. Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544; Appleyard v. Massachusetts, 203 U. S. 222, 27 Sup. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1073; Kingsbury's Case, 106 Mass. 223. Courts have been free to give this meaning to the Constitution and statutes because in delivering up an accused person to the authorities of a sister state they are not sending him for trial to an alien jurisdiction, with laws which our standards might condemn, but are simply returning him to be tried, still under the protection of the federal Constitution but in the manner provided by the state against the laws of which it is charged that he has offended. The discussion of these provisions of the Constitution and statutes for now much more than a century has resulted in the formulation of this conclusion, more than once announced by this court (Appleyard v. Massachusetts, 203 U. S. 222, 227, 27 Sup. Ct. 122, 123, 51 L. Ed. 161, 7 Ann. Cas. 1073): 'A person charged by indictment or by affidavit before a magistrate with the commission within a state of a crime covered by its laws, and who, after the date of the commission of such crime leaves the state—no matter for what purpose or with what motive, nor under what belief—becomes, from the time of such leaving, and within the meaning of the Constitution and the laws of the United States, a fugitive from justice, and if found in another state must be delivered up by the Governor of such state to the state whose laws are alleged to have been violated, on the production of such indictment or affidavit, certified as authentic by the Governor of the state from which the accused departed. Such is the command of the supreme law of the land, which may not be disregarded by any state.' The appellant admits that he was in the state of Illinois at the time it is charged that he committed the crimes for which he was indicted; that the indictments are in the form, and are certified as, required by law; and that he was found in the state of New York. This satisfies the requirement of the statute and by its terms makes it the duty of the Governor of New York to cause Biddinger to be arrested and given into the custody of the Illinois authorities. With these facts and this legal history before us, what shall be said of the claim that in a habeas corpus hearing the court erred in not permitting the appellant to introduce evidence tending to prove that the prosecution was barred by showing that he was 'usually and publicly' in the demanding state during the three years next after the date at which the crime is alleged to have been committed, and that he therefore could not be a fugitive from justice and subject to extradition. The scope and limits of the hearing on habeas corpus in such cases has not been, perhaps it should not be, determined with precision. Doubt as to the jurisdiction of the courts to review at all the executive conclusion that the person accused is a fugitive from justice has more than once been stated in the decisions of this court. Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. Ed. 250; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544; Appleyard v. Massachusetts, 203 U. S. 222, 27 Sup. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1073, but the question not being necessary for the disposition of the cases in which it is touched upon, as it is not in this, it is left undecided. This much, however, the decisions of this court make clear: That the proceeding is a summary one, to be kept within narrow bounds, not less for the protection of the liberty of the citizen than in the public interest; that when the extradition papers required by the statute are in the proper form the only evidence sanctioned by this court as admissible on such a hearing is such as tends to prove that the accused was not in the demanding state at the time the crime is alleged to have been committed; and, frequently and emphatically, that defenses cannot be entertained on such a hearing, but must be referred for investigation to the trial of the case in the courts of the demanding state. The statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases (United States v. Cooke, 17 Wall. 168, 21 L. Ed. 538), and the form of the statute in Illinois, which the appellant seeks to rely upon, makes it especially necessary that the claimed defense of it should be heard and decided by the courts of that state (Pierce v. Creecy, 210 U. S. 387, 28 Sup. Ct. 714, 52 L. Ed. 1113; Charlton v. Kelly, 229 U. S. 447, 33 Sup. Ct. 945, 57 L. Ed. 1274, 46 L. R. A. (N. S.) 397; Drew v. Thaw, 235 U. S. 432, 35 Sup. Ct. 137, 59 L. Ed. 302; Reed v. United States, 224 Fed. 378, 140 C. C. A. 64; Depoilly v. Palmer, 28 App. D. C. 324). It results that the decision of the District Court must be Affirmed.

246.US.147

Massachusetts Stats., 1909, c. 490, Pt. HI, § 56, imposed an annual excise upon every foreign corporation, for the privilege of doing local business, of 1/50 of 1% of the par value of its authorized capital stock, subject, however, to a maximum limit of $2,000.00. Held, valid, as applied to corporations doing local as well as interstate business, upon the authority of Baltic Mining Co. v. Massachusetts, 231 U. S. 68. InternationalP aper Co. v. Massachusetts, ante, 135, distinguished. The following activities are held to constitute local business, affording bases for the tax: 1. Keeping up a stock of repair parts at a place of business, and supplying and selling them, in part locally, to users of machines made by the corporation in another State and sold in interstate commerce. Case of Lanston Monotype Co. 2. Repairing automobiles made in another State and disposed of in interstate commerce, and selling second-hand automobiles taken in exchange for new ones so disposed of. Case of Locomobile Co. of America. 3. Where a corporation, to promote local trade in its product manufactured in another State and sold in interstate commerce to wholesalers, maintained a local office with agents who solicited orders from local retailers and turned them over to local wholesalers, who filled them and were paid by the retailers. Case of Northwesterh Consolidated Milling Co. 4. Where a holding company had an office in the taxing State, pursuant to its articles, where it held stockholders' and directors' meetings, kept corporate records and accounts, received and Ideposited in bank regular dividends, and paid the money, less salaries and expenses, regularly as dividends to its stockholders. Case of Copper Range Co. 5. Maintaining a local office, pursuant to corporate articles, where proceeds of operations in another State are received, deposited locally, distributed to shareholders, less salaries and expenses, and where directors hold their regular meetings, elect officers and manage the general business of the corporation. Case of Champion Copper Co. The fact that a local business stimulates interstate business and that its abandonment would have the opposite effect, does not make it any the less local. Case of Locomobile Co. of Ameria. Where a foreign corporation maintains and employs a local office, with a stock of samples and a force of office and traveling salesmen, merely tq obtain orders locally and in other States, subject to approval by its home office, for its goods to be shipped directly to the customers from its home State, the business is part of its interstate commerce and not subject to local excise taxation. Case of Cheney Brothers Co. And the action of such office in obtaining orders from customers residing in the home State of the corporation and in transmitting them to the home State where they are approved and filled, is interstate intercourse, not local business in the State where the office is established. Id. A State may impose a different rate of taxation upon foreign corporations for the privilege of doing local business than it imposes upon the primary franchises of its own corporations; and, by merely permitting or licensing a foreign corporation to engage in local business and acquire local property, it does not surrender or abridge, quoad such corporation, its power'to change and revise its taxing system and tax rates. Hence, where a foreign corporation acquired real property and specially improved it at large cost, but still the property was such that the investment might be retrieved if need be, held, that a subsequent increase in its excise without corresponding change in the tax bearing on domestic corporations would not deny it the equal protection of the laws. Southern Ry. Co. v. Greene, 216 U. S. 400, distinguished. Case of White Co. 218 Massachusetts, 558, reversed in part and affirmed in part. THn case is stated in the opinion.

We here are concerned with an excise tax imposed by Massachusetts in 1913 on each of seven foreign corporations on the ground that each was doing a local business in the state. Objections to the tax based on the commerce clause of the Constitution (article 1, § 8, cl. 3), and the due process and equal protection clauses of the Fourteenth Amendment were overruled by the state court. 218 Mass. 558, 106 N. E. 310. The tax was imposed under St. 1909, c. 490. pt. 3, § 56, before the maximum limit was removed by St. 1914, c. 724, § 1, and in that respect the case is like Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 34 Sup. Ct. 15, 58 L. Ed. 127, and unlike International Paper Co. v. Massachusetts, 246 U. S. 135, 38 Sup. Ct. 292, 62 L. Ed. ——. Whether in other respects it is like Baltic Mining Co. v. Massachusetts is the matter to be determined, and this requires that the business done by each of the seven corporations be considered. Cheney Brothers Company. This is a Connecticut corporation whose general business is manufacturing and selling silk fabrics. It maintains in Boston a selling office with one office salesman and four other salesmen who travel through New England. The salesmen solicit and take orders, subject to approval by the home office in Connecticut, and it ships directly to the purchasers. No stock of goods is kept in the Boston office, but only samples used in soliciting and taking orders. Copies and records of orders are retained, but no bookkeeping is done, and the office makes no collections. The salesmen and the office rent are paid directly from Connecticut and the other expenses of the office are paid from a small deposit kept in Boston for the purpose. No other business is done in the state. We do not perceive anything in this that can be regarded as a local business as distinguished from interstate commerce. The maintenance of the Boston office and the display therein of a supply of samples are in furtherance of the company's interstate business and have no other purpose. Like the employment of the salesmen, they are among the means by which that business is carried on and share its immunity from state taxation. McCall v. California, 136 U. S. 104, 10 Sup. Ct. 881, 34 L. Ed. 391; Norfolk & Western R. R. Co. v. Pennsylvania, 136 U. S. 114, 10 Sup. Ct. 958, 34 L. Ed. 394; Crenshaw v. Arkansas, 227 U. S. 389, 33 Sup. Ct. 294, 57 L. Ed. 565; Rogers v. Arkansas, 227 U. S. 401, 33 Sup. Ct. 298, 57 L. Ed. 569. Nor is the situation changed by inferring, as the state court did, that orders from customers in Connecticut sometimes are taken by salesmen connected with the Boston office and, after transmission to and approval by the home office, are filled by shipments from the company's mill in Connecticut to such customers. In such cases it doubtless is true that the resulting sale is local to Connecticut, but the action of the Boston office in receiving the order and transmitting it to the home office partakes more of the nature of interstate intercourse than of business local to Massachusetts and affords no basis for an excise tax in that state. International Text Book Co. v. Pigg, 217 U. S. 91, 106, 107, 30 Sup. Ct. 481, 54 L. Ed. 678, 27 L. . A. (N. S.) 493, 18 Ann. Cas. 1103. We think the tax on this company was essentially a tax on doing an interstate business and therefore repugnant to the commerce clause. Lanston Monotype Company. This is a Virginia corporation which makes typesetting machines in Philadelphia and sells them in interstate commerce. It has a place of business in Massachusetts where it keeps on hand a stock of the several parts of its machines likely to be required for purposes of repair. The stock is replenished weekly and the parts are sold extensively to those who use the machines in that and adjacent states. It is apparent, as we think, that a considerable portion of the business of selling and supplying the repair parts is purely local and subject to local taxation. Locomobile Company of America. This West Virginia corporation conducts an automobile factory in Connecticut and sells its automobiles in interstate commerce. It does an extensive local business in Massachusetts in repairing cars of its own make after they are sold and in use, and also in selling secondhand cars taken in partial exchange for new ones. This local business has some influence on the volume of interstate business done by the company in the state, and its abandonment would tend to reduce the purchases there of the company's automobiles. But this does not make it any the less a local business. It must be judged by what it is rather than by its influence on another business. See Delaware, Lackawanna & Western R. R. Co. v. Yurkonis, 238 U. S. 439, 444, 445, 35 Sup. Ct. 902, 59 L. Ed. 1397. Northwestern Consolidated Milling Company. This company was incorporated under the laws of Minnesota, operates flour mills there, and sells the flour to wholesale dealers throughout the county. It has an office in Massachusetts where it employs several salesmen for the purpose of inducing local tradesmen to carry and deal in its flour. These salesmen solicit and take orders from retail dealers and turn the same over to the nearest wholesale dealer, who fills the order and is paid by the retailer. Thus the salesman, although not in the employ of the wholesaler, is selling flour for him. Of course this is a domestic business—inducing one local merchant to buy a particular class of goods from another—and may be taxed by the state, regardless of the motive with which it is conducted. Copper Range Company. This is a Michigan corporation whose articles of association contemplate that it shall have an office in Boston. It is a holding company and owns various corporate stocks and bonds and certain mineral lands in Michigan. Its activities in Massachusetts consist in holding stockholders' and directors' meetings, keeping corporate records and financial books of account, receiving monthly dividends from its holdings of stock, depositing the money in Boston banks and paying the same out, less salaries and expenses, as dividends to its stockholders three or four times a year. The exaction of a tax for the exercise of such corporate faculties is within the power of the state. Interstate commerce is not affected. Champion Copper Company. This is another Michigan corporation which maintains an office in Boston pursuant to a provision in its articles of association. It deposits the proceeds of its mining and smelting business in Michigan in Boston banks and, after paying salaries and expenses, distributes the balance in dividends from its Boston office. The management of its mine is under the control of a general manager in Michigan and he in turn is under the control of the company's directors. The meetings of the latter, which occur several times in a year, are held in the Boston office. At these meetings the directors receive reports from the treasurer and general manager, vote dividends, elect officers, and authorize the execution of deeds and the like for lands in Michigan. These corporate activities in Massachusetts are not interstate commerce and may be made the basis of an excise tax by that state. White Com any. This is an Ohio corporation which is conducting a business, conceded to be local, in Massachusetts. On being admitted to do business therein it acquired two pieces of land in Boston and at large cost specially improved and adapted them for use, the one as an automobile service station and the other as a garage. A subsequent change in the statute made the excise tax more onerous than before, without, as it is said, any corresponding change being made in the law relating to domestic corporations. In these circumstances the company insists that by the imposition of the tax, as defined in the statute of 1909, it is denied the equal protection of the laws, and it relies on Southern Ry. Co. v. Greene, 216 U. S. 400, 30 Sup. Ct. 287, 54 L. Ed. 536, 17 Ann. Cas. 1247. In overruling this objection the state court said (218 Mass. 579, 106 N. E. 319): 'The real estate acquired by this petitioner is of a kind adapted to a very considerable and increasing business, in which there is general competition. The storage and care of automobiles and the performance of necessary service for their repair, maintenance and operation is a widespread business in which large amounts of capital are invested and considerable numbers of persons are engaged. Such establishments are frequent subjects for lease and sale. There is nothing to indicate or to warrant the inference that the petitioner's investment in real estate is not readily salable at reasonable prices. It is not property of a nature irretrievably devoted to a limited and monopolistic use, and not readily availably either for other valuable uses or to other persons ready to devote it to the same uses at prices fairly equivalent, subject to the general vicissitudes of business conditions, to the original investment. The Greene Case related to railroad property, which is not susceptible of use for any other purpose without great loss. In that opinion it was said: 'It must always be borne in mind that property put into railroad transportation is put there permanently. It cannot be withdrawn at the pleasure of the investors. * * * The railroad must stay, and, as a permanent investment, its value to its owners may not be destroyed." Assenting, as we do, to what was thus said, it suffices to add, first, that a state does not surrender or abridge its power to change and revise its taxing system and tax rates by merely licensing or permitting a foreign corporation to engage in local business and acquire property within its limits, and, second, that 'a state may impose a different rate of taxation upon a foreign corporation for the privilege of doing business within the state than it applies to its own corporations upon the franchise which the state grants in creating them.' Kansas City, Memphis & Birmingham R. R. Co. v. Stiles, 242 U. S. 111, 118, 37 Sup. Ct. 58, 61 (61 L. Ed. 176). Bearing in mind that the tax of which these corporations are now complaining was imposed under the statute as it stood in 1913, which was before the maximum limit was removed, it follows from our decision in Baltic Mining Co. v. Massachusetts that the several objections based on the Constitution of the United States are all untenable, save in the instance of the Cheney Bros. Company. The tax on that company, as before indicated, was a tax on interstate business and therefore void under the commerce clause. Judgment reversed as to Cheney Bros. Company and affirmed as to the other plaintiffs in error.

245.US.275

In a suit to restrain alleged concerted wrongful conduct upon the part of officials of a labor union, a temporary injunction should not be granted against those who were not served and did not submit themselves to the jurisdiction. The bill alleged that the answering defendants had constituted other persons named as defendants their agents and representatives and had assisted and were supporting them in their alleged wrongful conduct. Held, in view of specific denials and supporting affidavits, not rebutted, that the Circuit Court of Appeals did not err in dissolving the temporary injunction. Where an application for a temporary injunction has been submitted upon affidavits taken ex parte, without opportunity for crossexamination, and without any consent that the court proceed to final determination of the merits, it is error for the Circuit Court of Appeals upon interlocutory appeal to direct a dismissal of the bill unless on its face there is no ground for equitable relief. The plaintiff's bill set up a contract with its employees identical in form with the contract involved in Hitchman Coal & Coke Co. v. Mitchell, ante, 229, and charged defendants with the formation and pursuit of a scheme to "unionize" the plaintiff's shop by interfering with its employees similar in nature, motive and methods to the scheme held illegal in that case. Held, that the bill stated an equitable cause of action, and that it was error for the Circuit Court of Appeals to dismiss it on interlocutory appeal without affording plaintiff an opportunity to prove the allegations upon final hearing, as against the defendants within the jurisdiction. 219 Fed. Rep. 719, affirmed in part and reversed in part.

This case is quite similar to Hitchman Coal & Coke Company v. Mitchell et al., No. 11, this day decided, 245 U. S. 229, 38 Sup. Ct. 65, 62 L. Ed. ——, and was submitted at the time of the argument of that case. It was a suit in equity, commenced July 28, 1913, in the United States District Court for the Northern District of West Virginia. This was after that court had rendered its final decree in the Hitchman Case (202 Fed. 512), and the decree awarding a temporary injunction herein was made before the reversal of the final decree in the Hitchman Case by the Circuit Court of Appeals (214 Fed. 685, 131 C. C. A. 425). The plaintiff, Eagle Glass & Manufacturing Company, is a West Virginia corporation, having its principal office and its manufacturing plant in that state. The object of the bill was to restrain the defendants, officers and members of the American Flint Glass Workers' Union, a voluntary association having its principal office at Toledo, in the state of Ohio, form interfering with the relations existing between plaintiff and its employes for the purpose of compelling plaintiff to 'unionize' its factory. The original defendants, Thomas W. Rowe, Joseph Gillooly, and three others, were among the chief executive officers of the union, and were sued individually and as such officers. The federal jurisdiction was invoked on the ground of diversity of citizenship, it being alleged that all of the defendants were citizens of the state of Ohio. Upon the filing of the bill, with numerous affidavits verifying its averments, and showing that plaintiff's factory was run as a non-union shop under individual agreements with its employes, each employe having signed a paper declaring that he was not a member of the American Flint Glass Workers' Union and would not become a member while an employe of the Eagle Company, that the company agreed that it would run non-union while he was in its employ, that if at any time while so employed he desired to become connected with the union he would withdraw from the employ of the company, and that while in its employ he would not make any effort amongst its employes to bring about the unionizing of the plant against the company's wish; that the defendants, with notice of this, were making efforts through Gillooly as organizer, and threating further efforts to induce some of plaintiff's employes to quit its employ, and to persuade others secretly to join the union and remain at work in plaintiff's factory contrary to the terms of their agreement until a sufficient number had joined so as to be able by threatening to quit in a body to compel the unionization of the shop; and that by the activities of defendants the plaintiff was threatened with irreparable injury; the District Court granted a restraining order. Process requiring defendants to answer the bill was promptly issued, but was served upon Gillooly alone, together with the restraining order. At the request of an attorney, a general appearance was entered for the other defendants. Gillooly filed an answer, amounting to a plea to the jurisdiction of the court, based upon the allegation that he was a resident and citizen of the state of West Virginia, and not of the state of Ohio as alleged in the bill. Upon this answer and affidavits in support of it he moved to dissolve the restraining order and dismiss plaintiff's suit, and thereupon, on the ground that he was a citizen of West Virginia, an order was made dismissing the bill as to him, without prejudice, and retaining the suit as to the other defendants. Plaintiff moved for a temporary injunction against them, whereupon the attorney at whose request their appearance had been entered moved to strike it out on the ground that his request was due to inadvertence and in fact he had no authority to appear for them. His motion was granted; but in the meantime plaintiff obtained leave to file and did file an amended bill, adding as defendants Peter J. Glasstetter and seven other parties named, residents of Steubenville, Ohio, and citizens of that state, and averring that they were members of the American Flint Glass Workers' Union, had constituted the original defendants, including Gillooly, their agents and representatives, and had assisted and were supporting them in their efforts to unionize plaintiff's employes and to force plaintiff to recognize the union. Process to answer the amended bill was issued and was served upon the added defendants, the remaining original defendants being returned 'not found.' Afterwards, and upon proper notice to the served defendants, plaintiff renewed its motion for a temporary injunction, basing it upon the original bill, exhibits, and accompanying affidavits, the amended bill, and some additional affidavits. Meanwhile the served defendants, who may be called the Steubenville defendants, filed answers denying knowledge of the matters alleged in the bill, denying that they had constituted Gillooly and the other original defendants their agents or representatives, or had assisted or supported them in the effort to unionize plaintiff's employes and force plaintiff to recognize the American Flint Glass Workers' Union, admitting that they were members of a local union of glass workers at Steubenville which was affiliated with the principal union, and averring that except their relation as members of the local union they had no connection or relation with the other defendants, were not officers, agents, representatives, or organizers of the union, and even in their capacity as members of their local had not by act, word, or deed authorized, assisted, aided, or encouraged any of the other defendants in doing any of the things alleged in the bill or amended bill. These answers were supported by affidavits of the answering defendants which were not specifically rebutted by the plaintiff. The court, having struck out the entry of appearance for the original defendants other than Gillooly, made a decree granting a temporary injunction to restrain the defendants in the cause from interfering with plaintiff's employes, the form of the injunction being modeled upon that ordered by the final decree made in Hitchman Coal & Coke Co. v. Mitchell et al. The answering defendants appealed to the Circuit Court of Appeals, and that court (219 Fed. 719, 135 C. C. A. 417) reversed the decree; holding that as the Steubenville defendants submitted affidavits that they were only members, not officers, of a local union, that the original defendants, who were the general officers of the union, were not authorized to represent them in the alleged illegal acts and that they knew nothing of the efforts to unionize plaintiff's factory, and as plaintiff had made no showing to the contrary, it was erroneous to issue a temporary injunction against the defendants (other than Gillooly) named in the bill and amended bill; that as Rowe and the other general officers were not served, no relief could be given against them unless it could be said that they were brought before the court by representation when the Steubenville defendants were brought in; and that as plaintiff had no case against the latter defendants for participation in the alleged torts, there was no such common or general interest as authorized a decree against the defendants not served by virtue of the service upon and appearance of the Steubenville defendants. Having said this to show error in the decree awarding a temporary injunction, the court concluded its opinion as follows: 'All the questions involved in the merits of the appeal were decided adversely to the appellee by this court in Mitchell v. Hitchman Coal & Coke Co., 214 Fed. 685 [131 C. C. A. 425].' Thereupon a decree was made reversing the decree of the District Court, and remanding the cause with directions not only to dissolve the injunction, but to 'dismiss the bill in accordance with the opinion of this court.' The mandate was stayed pending application to this court for a writ of certiorari. Afterwards an appeal was allowed by one of the Circuit Court judges, together with a supersedeas. The transcript on appeal having been filed in this court, an application for a writ of certiorari was afterwards presented, consideration of which was postponed to the hearing of the appeal. Since it appears from the averments of the bill and amended bill that the federal jurisdiction was invoked solely upon the ground of diversity of citizenship, it is evident that, as in the Hitchman Case, the appeal must be dismissed. 241 U. S. 644, 36 Sup. Ct. 450, 60 L. Ed. 1218. But, as in that case, we grant the writ of certiorari, the record on appeal to stand as the return to the writ. And, as the case was submitted on the merits, we proceed to dispose of them. So far as the decision of the Circuit Court of Appeals dissolved the temporary injunction upon the ground that the Steubenville defendants had denied, and plaintiff had not adduced sufficient evidence to sustain, the averment of the amended bill that they had constituted Gillooly and the other original defendants their agents and representatives and had assisted and supported them in their efforts to unionize plaintiff's employes and force plaintiff to recognize the American Flint Glass Workers' Union, we see no reason to disturb the decision. But the court went further, and directed a dismissal of the bill. Since the cause had not gone to final hearing in the District Court, the bill could not properly be dismissed upon appeal unless it appeared that the court was in possession of the materials necessary to enable it to do full and complete justice between the parties. Where by consent of parties the case has been submitted for a final determination of the merits, or upon the face of the bill there is no ground for equitable relief, the appellate court may finally dispose of the merits upon an appeal from an interlocutory order. Smith v. Vulcan Iron Works, 165 U. S. 518, 525, 17 Sup. Ct. 407, 41 L. Ed. 810; Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 494, 20 Sup. Ct. 708, 44 L. Ed. 856; Castner v. Coffman, 178 U. S. 168, 184, 20 Sup. Ct. 842, 44 L. Ed. 1021; Harriman v. Northern Securities Co., 197 U. S. 244, 287, 25 Sup. Ct. 493, 49 L. Ed. 739; U. S. Fidelity Co. v. Bray, 225 U. S. 205, 214, 32 Sup. Ct. 620, 56 L. Ed. 1055; Denver v. New York Trust Co., 229 U. S. 123, 136, 33 Sup. Ct. 657, 57 L. Ed. 1101. But in this case the application for a temporary injunction was submitted upon affidavits taken ex parte, without opportunity for cross-examination, and without any consent that the court proceed to final determination of the merits. Hence there was no basis for such a determination on appeal unless it appeared upon the face of the bill that there was no ground for equitable relief. That this was in effect the decision of the Circuit Court of Appeals is evident from the fact that it was rested upon the authority of Mitchell v. Hitchman Coal & Coke Co. In that case the same court had expressed the following opinion (214 Fed. 685, 714, 131 C. C. A. 425, 454): 'The court below also reached the conclusion that the defendants have caused and are attempting to cause the non-union members employed by the plaintiff to break a contract which it has with the nun-union operators. The contract in question is in the following language: "I am employed by and work for the Hitchman Coal & Coke Company with the express understanding that I am not a member of the United Mine Workers of America, and will not become so while an employe of the Hitchman Coal & Coke Company; that the Hitchman Coal & Coke Company is run non-union and agrees with me that it will run non-union while I am in its employ. If at any time while I am employed by the Hitchman Coal & Coke Company I want to become connected with the United Mine Workers of America, or any affiliated organization, I agree* to withdraw from the employment of said company, and agree that while I am in the employ of that company that I will not make any efforts amongst its employes to bring about the unionizing of that mine against the company's wish. I have either read the above or heard the same read.' 'It will be observed that by the terms of the contract that either of the parties thereto may at will terminate the same, and while it is provided that so long as the employe continues to work for the plaintiff he shall not join this organization, nevertheless there is nothing in the contract which requires such employes to work for any fixed or definite period. If at any time after employment any of them should decide to join the defendant organization, the plaintiff could not under the contract recover damages for a breach of the same. In other words, the employes under this contract, if they deem proper, may at any moment join a labor union, and the only penalty provided therefor is that they cannot secure further employment from the plaintiff. Therefore, under this contract, if the nin-union men, or any of them, should see fit to join the United Mine Workers of America on account of lawful and persuasive methods on the part of the defendants, and as a result of such action on their part were to be discharged by the plaintiff, it could not maintain an action against them on account of such conduct on their part. Such being the case, it would be unreasonable to hold that the action of the defendants would render the United Mine Workers of America liable in damages to the plaintiff because they had employed lawful methods to induce the non-union miners to become members of their organization. 'Under these circumstances we fail to see how this contract can be taken as a basis for restraining the defendants from using lawful methods for the purpose of inducing the parties to the contract to join the organization.' This reasoning, essential to the decision reached, is erroneous for several reasons, as we have now held in reversing the Hitchman decree, viz.: (a) Because plaintiff was entitled by law to be protected from interference with the good will of its employes, although they were at liberty to quit the employment at pleasure; (b) because the case involved no question of the rights of employes, and their right to quit the employment gave to defendants no right to instigate a strike; and (c) because the methods pursued by the defendants were not lawful methods. The present case, according to the averments of the bill and amended bill, differs from the Hitchman Case principally in this: That it appeared that Gillooly, as organizer, had used money and had threatened to use dynamite to reinforce his other efforts to coerce plaintiff into agreeing to the unionization of its works. The system of employment at the Eagle Glass Company factory was precisely the same as that at the Hitchman mine. The written contract of employment inaugurated at the Eagle Glass Works more than a month prior to the filing of the bill in this case followed precisely the form established at the Hitchman mine shortly after the filing of the bill in that case. And the activities of Gillooly among the plaintiff's employes, and the motive and purpose behind those activities, as alleged in the bill, show the same elements of illegality to which we have called attention in our opinion in the Hitchman Case. Plaintiff is entitled to an opportunity, on final hearing, to prove these allegations as against those defendants who are within the jurisdiction of the court, and to connect them with the activities of Gillooly. The decree of the Circuit Court of Appeals, so far as it directed that the temporary injunction be dissolved will be affirmed, but so far as it directed a dismissal of the bill it must be reversed, and the cause will be remanded to the District court for further proceedings in conformity to this opinion. Decree reversed.

246.US.88

Under the Supplemental Agreement with the Choctaws and Chickasaws of July 1, 1902, c. 1362, 32 Stat. 641, a homestead allotment of a full-blood Choctaw became free from the restrictions imposed by § 12 at the death of the allottee, and the heir of the allottee, though a full-blood, might alienate the land without approval of the conveyance by the Secretary of the Interior. Mullen v. United States, 224 U. S. 448. But, by virtue of the Act of April 26, 1906, c. 1876, 34 Stat. 137, § 22, the right in such case was again restricted so that the full-blood heir could no longer convey without the Secretary's approval. In determining the effect of the Act of 1906, supra,u pon the right of a full-blood Indian to alienate, no distinction can be made between cases in which restrictions, previously imposed, were existent at the date of the act (Tiger v. Western Investment Co., 221 U. S. 286), and those in which they had expired. Congress was dealing with tribal Indians still under its control and subject to national guardianship; and the act, comprehensive, and applying alike to all the Five. Civilized Tribes, evinces a purpose to substitute a new and uniform scheme controlling alienation as to all the full-blood allottees and their full-blood heirs. Section 22 is to be construed accordingly. In view of the repeated decisions of this court, there can be no doubt of the constitutional authority of Congress to impose the new restriction. United States v. First National Bank, 234 U. S. 245; and United States v. Waller, 243 U. S, 452, distinguished. 49 Oklahoma, 734, affirmed.

This case involves the right of Rachel James, a full-blood Choctaw Indian, to convey certain land. The land was originally allotted to Cerena Wallace under the Supplemental Agreement with the Choctaws and Chickasaws of July 1, 1902. 32 Stat. 641, c. 1362. As to the homestead allotment, which is here in question, section 12 of said agreement provided that it should be inalienable during the lifetime of the allottee, not exceeding 21 years from the date of the certificate of allotment. Cerena Wallace, mother of Rachel James, and herself a full-blood Choctaw Indian, died October 27, 1905, leaving her daugher, Rachel James, sole surviving heir at law. On August 17, 1907, Rachel James, joined by her husband, conveyed the land, embraced in the original homestead allotment with some other lands to Tillie Brader, who conveyed by quitclaim deed of September 13, 1909, to the plaintiff in error. The conveyance by Rachel James to Tillie Brader was not approved by the Secretary of the Interior. Rachel James prosecuted this suit to recover the land, and for use and occupation, thereof, basing her right of recovery on the fact that her conveyance had not been approved by the Secretary of the Interior. She succeeded in the court of original jurisdiction, and the judgment was affirmed by the Supreme Court of Oklahoma. 49 Okl. 734, 154 Pac. 560. The case as brought to our attention involves two questions: (1) Could a full-blood Choctaw Indian after the passage of the Act of April 26, 1906, c. 1876, 34 Stat. 137, convey the lands inherited from a full-blood Choctaw Indian, to whom the lands had been allotted in her lifetime, without the approval of the Secretary of the Interior? (2) If such conveyance were made valid by the act of Congress only with the approval of the Secretary of the Interior, is such legislation constitutional? As to the homestead allotment to the mother, Cerena Wallace, under the Supplemental Choctaw and Chickasaw Agreement of July 1, 1902, Rachel James as her heir at law received the land free from restriction, and had good right to convey the same unless prevented from so doing by the Act of April 26, 1906. Mullen v. United States, 224 U. S. 448, 32 Sup. Ct. 494, 56 L. Ed. 834. As the conveyance here in question was subsequent to the Act of April 26, 1906, if that act covers the case, and is constitutional, Rachel James may not convey without the approval of the Secretary of the Interior, and the judgment below was right. The Act of April 26, 1906, was before this court in Tiger v. Western Investment Co., 221 U. S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738. In that case it was held that a full-blood Indian of the Creek Tribe after the passage of the Act of April 26, 1906, could not convey land which he had inherited, and which was allotted under the Act of Congress known as the Supplemental Creek Agreement of June 30, 1902, c. 1323, 32 Stat. 500, and as to which the five years named in section 16 of that act had not expired when Congress passed the Act of April 26, 1906, without the approval of the Secretary of the Interior. In that case, as in this, a construction of section 22 of the last-named act was directly involved. That section provides:'That the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe to which he or she belongs or belonged, may sell and convey the lands inherited from such decedent; and if there be both adult and minor heirs of such decedent, then such minors may join in a sale of such lands by a guardian duly appointed by the proper United States court for the Indian Territory. And in case of the organization of a state or territory, then by a proper court of the county in which said minor or minors may reside or in which said real estate is situated, upon an order of such court made upon petition filed by guardian. All conveyances made under this provision by heirs who are full-blood Indians are to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe.' The conveyance by Rachel James is within the terms of the section as construed in the Tiger Case, unless the fact that the restriction of the act under which she inherited had expired when the Act of April 22, 1906, was passed, whereas in the Tiger Case the former limitation had not expired when the act was passed, makes such difference as to require a different ruling in the present case. We are of opinion that this fact does not work a difference in result. As set forth in the opinion in the Tiger Case, the Act of April 22, 1906, was a comprehensive one, and intended to apply alike to all of the Five Civilized Tribes, and to make requirements as to conveyances by full-blood Indians and the full-blood heirs of Indians, which should take the place of former restrictions and limitations. The purpose was to substitute a new and uniform scheme controlling alienation in such cases, operating alike as to all the Civilized Tribes. Notwithstanding Rachel James might have conveyed the homestead allotment after it descended to her, she was a tribal Indian, and as such still subject to the legislation of Congress enacted in discharge of the nation's duty of guardianship over the Indians. Congress was itself the judge of the necessity of legislation for this purpose; it alone might determine when this guardianship should cease. The argument that the language in the last sentence of section 22 must be taken to mean that Congress had no intention to deal with restrictions under former acts, certainly not with those which had expired, is answered by the consideration that Congress was dealing with tribal Indians, still under its control and subject to national guardianship. In the terms of this act Congress made no exception as to rights of alienation which had arisen under former legislation, and it undertook, as we held in the Tiger Case, to pass a new and comprehensive act requiring conveyances, of the class herein under consideration, to be valid only when approved by the Secretary of the Interior. In view of the repeated decisions of this court we can have no doubt of the constitutionality of such legislation. While the tribal relation existed the national guardianship continued, and included authority to make limitations upon the ights which such Indians might exercise in respect to such lands as are here involved. This authority did not terminate with the expiration of the limitation upon the rights to dispose of allotted lands; the right and duty of Congress to safeguard the rights of Indians still continued. It has been frequently held by this court that the grant of citizenship is not inconsistent with the right of Congress to continue to exercise this authority by legislation deemed adequate to that end. It is unnecessary to again review the decisions of this court which support that authority. Some of them were reviewed in the Tiger Case. The doctrine is reiterated in Heckman v. United States, 224 U. S. 413, 32 Sup. Ct. 424, 56 L. Ed. 820, and United States v. Nice, 241 U. S. 591, 598, 36 Sup. Ct. 696, 60 L. Ed. 1192. The plaintiff in error relies upon Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941, in which this court sustained a contractual exemption as to taxation of certain Indian lands. In that case the right of exemption was based upon a valid and binding contract, and that decision in no wise militates against the right of Congress to continue to pass legislation placing restrictions upon the right of Indians to convey lands allotted as were those in question here. In United States v. First National Bank, 234 U. S. 245, 34 Sup. Ct. 846, 58 L. Ed. 1298, and United States v. Waller, 243 U. S. 452, 37 Sup. Ct. 430, 61 L. Ed. 843, this court dealt with lands as to which certain mixed-blood Indians by act of Congress had been given full ownership with all the rights which inhere in ownership in persons of full legal capacity. Those decisions do not place limitations upon the right of Congress to deal with a tribal Indian whose relation of ward to the government still continues, and concerning whom Congress has not evidenced its intention to release its authority. We find no error in the judgment of the Supreme Court of Oklahoma, and the same is affirmed. Affirmed.

243.US.36

The course of business of a company engaged in logging and milling timber consisted in carrying its logs from its own timber-land within a State over its own logging railroad to tidewater, in the same State, in selling there a part to others who towed them away and re-sold them to purchasers within and without the State, and in towing the rest to its mills in the same State, milling them at the latter place and then disposing by sale of their products partly in focal markets and partly in other States and countries. Held, that the transportation of the logs by the railroad was not interstate or foreign commerce, and that an employee of the railroad, injured while engaged in unloading some of them at the tidewater terminus, was not employed in such commerceb:within the Federal Employers'. Liability Act. A plaintiff in an action for personal injuries based on the Federal Employers' Liability Act died while the case was pending in the Circuit Court of Appeals. Writ of error to review an adverse judgment of that court having been subsequently sued out in his name and citation issued and served, attorneys for both sides stipulated that his administrator might be substituted. Substitution, however, was refused by the Court of Appeals upon the ground that the writ had deprived it of jurisdiction. Upon a motion to dismiss upon the ground that the writ was wrongfully allowed and the administrator not properly a party, Held, that the defect of the proceedings was at most an irregularity which, in view of the stipulation, was waived. 218 Fed. Rep. 737, affirmed.

This suit was brought under the Employers' Liability Act to recover damages resulting from injuries suffered by Nordgard while in the employ of the defendant railway company. The trial court directed a verdict for the defendants on the ground that there was no evidence tending to show that the defendants and Nordgard were engaged at the time of the accident in interstate or foreign commerce, and the case is here on writ of error to secure a reversal of the action of the court below, affirming the judgment entered by the trial court, dismissing the suit. 134 C. C. A. 415, 218 Fed. 737. There are the facts: The defendant Stimson Mill Company was engaged in the logging and lumber business and carried its logs on its own logging railroad, the Marysville & Northern Railway, from timber land owned by it in Washington to a point near Marysville in that state, where they were dumped into the waters of Puget Sound. Part of the logs were thereafter sold to mills located on the sound and the balance were rafted and taken by tugs to the Stimson Company's mills at Ballard, Washington, where they were manufactured into timber, which was thereafter sold, about 20 per cent in local markets and the remainder in other states and countries. The logs which were sold after they had been carried to tidewater by the railroad were towed away by the purchasers to their mills or places for storage, and part of them were subsequently resold for piling or poles to purchasers both within and wthout the state. Nordgard was a brakeman on the logging railroad, and suffered the injuries for which he sued while engaged in unloading logs from the cars at tidewater. The conclusion of the court below that, under these facts, the defendants were not engaged in interstate or foreign commerce when the injuries were suffered, was based upon the decisions in Coe v. Errol, 116 U. S. 517, 29 L. ed. 715, 6 Sup. Ct. Rep. 475, and The Daniel Ball, 10 Wall. 557, 19 L. ed. 999, from which the following quotations were made: 'When the products of the farm or the forest are collected and brought in from the surrounding country to a town or station serving as an entrepot for that particular region, whether on a river or a line of railroad, such products are not yet exports, nor are they in process of exportation, nor is exportation begun until they are committed to the common carrier for transportation out of the state to the state of their destination, or have stated on their ultimate passage to that state.' 116 U. S. 525. 'But this movement [that is, interstate commerce movement] does not begin until the articles have been shipped or started for transportation from the one state to the other. The carrying of them in carts or other vehicles, or even floating them, to the depot where the journey is to commence, is no part of that journey. . . . Until actually launched on its way to another state, or committed to a common carrier for transportation to such state, its destination is not fixed and certain. It may be sold or otherwise disposed of within the state, and never put in course of transportation out of the state.' 10 Wall. 565 After pointing out that these rulings had not been modified, but, on the contrary, had been reaffirmed by the subsequent cases relied upon by the plaintiff in error (Texas & N. O. R. Co. v. Sabine Tram Co. 227 U. S. 111, 57 L. ed. 442, 33 Sup. Ct. Rep. 229; Railroad Commission v. Texas & P. R. Co. 229 U. S. 336, 57 L. ed. 1215, 33 Sup. Ct. Rep. 837; Southern P. Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 55 L. ed. 310, 31 Sup. Ct. Rep. 279; Railroad Commission v. Worthington, 225 U. S. 101, 56 L. ed. 1004, 32 Sup. Ct. Rep. 653), the court said: 'In the case at bar there was no initial shipment of the goods. The transportation of the poles from the forest in which they were cut to tidewater, where they were sold, was not a shipment. There was no contract of carriage; there was no bill of lading; there was no consignor or consignee. The goods were not committed to a carrier. The defendant Mill Company simply carried over its own road, on its own cars, its own goods to a market where it sold and delivered them. It had no concern with the subsequent disposition of them. It was under no obligation to deliver them to another carrier, and no other carrier was under obligation to receive them or carry them further. The selling of the poles after the first sale by the Mill Company, or whether they were going outside of the state, depended upon chance or the exigencies of trade. The movement of the poles did not become interstate commerce until, by the act of the purchasers thereof, the poles were started on their way to their destination in another state or country. The beginning of the transit which constitutes interstate commerce 'is defined in Coe v. Errol to be the point of time that an article is committed to a carrier for transportation to the state of its destination, or started on its ultimate passage." General Oil Co. v. Crain, 209 U. S. 211, 229, 52 L. ed. 754, 764, 28 Sup. Ct. Rep. 475.' The conclusion of the court below that the defendants were not engaged in interstate or foreign commerce when the accident occurred is, we think, clearly demonstrated by the reasoning by which it sustained its conclusion and the authorities upon which it relied as above stated, and its judgment should be affirmed. Before concluding we observe that, in view of the stipulation of the parties in the court below, agreeing to the substitution as plaintiff in error of the administrator of Nordgard, who died while the cause was there pending, the motion to dismiss on the ground that the writ of error was wrongfully allowed, and that the administrator is not a proper party, is based upon a mere irregularity which was waived. Affirmed.

243.US.521

Appellant, while United States Attorney for the Southern District of New York, conducted a grand jury investigation which led to the indictment of a member of the House of Representatives. Acting on charges of misfeasance and nonfeasance made by the member against appellant in part before the indictment and renewed with additions afterward, the House by resolution directed its Judiciary Committee to make inquiry and report concerning appellant's liability to impeachment. Such inquiry being in progress through a sub-committee, appellant addressed to the sub-committee's chairman and gave to the press a letter, charging the sub-committee with an' endeavor to prdpe into and frustrate the action of the gran-d jury, and couched in terms calculated to arouse the indignation of the members of that committee and those of the House generally. Thereafter, appellant was arrested in New York by the sergeant-at-arms pursuant to a resolution of the House whereby the letter was characterized as defamatory and insulting and as tending to bring that body into public contempt and ridicule, and whereby appellant in writing and publishing such letter was adjudged to be in contempt of the House in violating its privileges, honor and dignity. He applied for habeas corpus. Held: (1) That the proceedings concerning which the alleged contempt was committed were not impeachment proceedings. (2) That, whether they were impeachment proceedings or not, the House was without power by its own action, as distinct from such action as might be taken under criminal laws, to arrest or punish for such acts as were committed by appellant. No express power to punish for contempt was granted to the House of Representatives save the power to deal with contempts committed by its own members. Constitution, Art. I, § 5. The possession by Congress of the commingled legislative and judicial authority to punish for contempts which was exerted by the House of Commons is at variance with the view and tendency existing in this country when the Constitution was adopted, as evidenced by the manner in which the subject was treated in many state constitutions, beginning at or about that time and continuing thereafter. Such commingling of powers would be destructive of the basic constitutional distinction between legislative, executive and judicial power, and repugnant to' limitations which the Constitution fixes expressly; hence there is no warrant whatever for implying such a dual power in aid of other powers expressly granted to Congress. The House has implied power to deal directly with contempt so far as is necessary to preserve and exercise the legislative authority expressly granted. Being, however, a power of self-preservation, a means and not an end, the power does not extend to infliction of punishment, as such; it is a power to prevent acts which in -and of themselves, inherently, prevent or obstruct the discharge of legislative duty and to compel the doing of those things which are essential to the performance of the legislative functions. As pointed out in Anderson v. Dunn, 6 Wheat. 204, this implied power, in its exercise, is limited to imprisonment during the session of the body affected by the contempt. The authority does not cease when the act complained of has-been committed, but includes the right to determine in the use of legitimate and fair discretion how far from the nature and character of the act there is necessity for repression to prevent immediate recurrence, i. e., the continued existence of the interference or obstruction to the exercise of legislative power. In such case, unless there be manifest an absolute disregard of discretion, and a mere exertion of arbitrary power coming' within the reach of constitutional limitations, the exercise of the authority is not subject to judicial interference. The power is the same in quantity and quality whether exerted on behalf of the impeachment powers or of the others to.which it is ancillary. The legislative power to provide by criminal laws for the prosecution and punishment of wrongful acts-not here involved.

These are the facts: A member of the House of Representatives on the floor charged the appellant, who was the district attorney of the southern district of New York, with many acts of misfeasance and nonfeasance. When this was done the grand jury in the southern district of New York was engaged in investigating alleged illegal conduct of the member in relation to the Sherman Anti-trust Law July 2, 1890, c. 647, 26 Stat. 209 and asserted illegal activities of an organization known as Labor's National Peace Council to which the member belonged. The investigation as to the latter subject not having been yet reported upon by the grand jury, that body found an indictment against the member for a violation of the Sherman Law. Subsequently calling attention to his previous charges and stating others, the member requested that the judiciary committee be directed to inquire and report concerning the charges against the appellant in so far as they constituted impeachable offenses. After the adoption of this resolution a subcommittee was appointed which proceeded to New York to take testimony. Friction there arose between the subcommittee and the office of the district attorney, based upon the assertion that the subcommittee was seeking to unlawfully penetrate the proceedings of the grand jury relating to the indictment and the investigations in question. In a daily newspaper an article appeared charging that the writer was informed that the subcommittee was endeavoring rather to investigate and frustrate the action of the grand jury than to investigate the conduct of the district attorney. When called upon by the subcommittee to disclose the name of his informant, the writer declined to do so and proceedings for contempt of the House were threatened. The district attorney thereupon addressed a letter to the chairman of the subcommittee, avowing that he was the informant referred to in the article, averring that the charges were true, and repeating them in amplified form in language which was certainly unparliamentary and manifestly ill-tempered, and which was well calculated to arouse the indignation not only of the members of the subcommittee, but of those of the House generally. This letter was given to the press so that it might be published contemporaneously with its receipt by the chairman of the subcommittee. The judiciary committee reported the matter to the House and a select committee was appointed to consider the subject. The district attorney was called before that committee and reasserted the charges made in the letter, averring that they were justified by the circumstances, and stating that they would, under the same condition, be made again. Thereupon the select committee made a report and stated its conclusions and recommendations to the House as follows: 'We conclude and find that the aforesaid letter written and published by said H. Snowden Marshall to Hon. C. C. Carlin, chairman of the subcommittee of the judiciary committee of the House of Representatives, on March 4, 1916, . . . is as a whole and in several of the separate sentences defamatory and insulting and tends to bring the House into public contempt and ridicule, and that the said H. Snowden Marshall, by writing and publishing the same, is guilty of contempt of the House of Representatives of the United States because of the violating of its privileges, its honor, and its dignity.' Upon the adoption of this report, under the authority of the House a formal warrant for arrest was issued and its execution by the Sergeant at Arms in New York was followed by an application for discharge on habeas corpus; and the correctness of the judgment of the court below, refusing the same, is the matter before us on this direct appeal. Whether the House had power under the Constitution to deal with the conduct of the district attorney in writing the letter as a contempt of its authority, and to inflict punishment upon the writer for such contempt as a matter of legislative power, that is, without subjecting him to the statutory modes of trial provided for criminal offenses, protected by the limitations and safeguards which the Constitution imposes as to such subject, is the question which is before us. There is unity between the parties only in one respect; that is, that the existence of constitutional power is the sole matter to be decided. As to all else there is entire discord, every premise of law or authority relied upon by the one side being challenged in some respects by the other. We consider, therefore, that the shortest way to meet and dispose of the issue is to treat the subject as one of first impression, and we proceed to do so. Undoubtedly what went before the adoption of the Constitution may be resorted to for the purpose of throwing light on its provisions. Certain is it that authority was possessed by the House of Commons in England to punish for contempt directly, that is, without the intervention of courts, and that such power included a variety of acts and many forms of punishment, including the right to fix a prolonged term of imprisonment. Indubitable also is it, however, that this power rested upon an assumed blending of legislative and judicial authority possessed by the Parliament when the Lords and Commons were one, and continued to operate after the division of the Parliament into two houses, either because the interblended power was thought to continue to reside in the Commons, or by the force of routine the mere reminiscence of the commingled powers led to a continued exercise of the wide authority as to contempt formerly existing long after the foundation of judicial-legislative power upon which it rested had ceased to exist. That this exercise of the right of legislative-judicial power to exert the authority stated prevailed in England at the time of the adoption of the Constitution and for some time after has been so often recognized by the decided cases relied upon and by decisions of this court, some of which are in the margin,1 as to make it too certain for anything but statement. Clear also is it, however, that in the state governments prior to the formation of the Constitution the incompatibility of the intermixture of the legislative and judicial power was recognized and the duty of separating the two was felt, as was manifested by provisions contained in some of the state Constitutions enacted prior to the adoption of the Constitution of the United States, as illustrated by the following articles in the Constitutions of Maryland and Massachusetts: 'That the house of delegates may punish, by imprisonment, any person who shall be guilty of a contempt in their view, by any disorderly or riotous behaviour, or by threats to, or abuse of their members, or by any obstruction to their proceedings. They may also punish, by imprisonment, any person who shall be guilty of a breach of privilege, by arresting on civil process, or by assaulting any of their members, during their sitting, or on their way to, or return from the house of delegates, or by any assault of, or obstruction to their officers, in the execution of any order or process, or by assaulting or obstructing any witness, or any other person, attending on, or on their way to or from the house, or by rescuing any person committed by the house: and the senate may exercise the same power, in similar cases.' Md. Const. 1776, art. 12. 'They [the house of representatives] shall have authority to punish by imprisonment every person, not a member, who shall be guilty of disrespect to the house, by any disorderly or contemptuous behavior in its presence; or who, in the town where the general court is sitting, and during the time of its sitting, shall threaten harm to the body or estate of any of its members, for anything said or done in the house; or who shall assault any of them therefor; or who shall assault or arrest any witness, or other person, ordered to attend the house, in his way in going or returning; or who shall rescue any person arrested by the order of the house. 'And no member of the house of representatives shall be arrested, or held to bail on mean process, during his going unto, returning from, or his attending the general assembly. 'The senate shall have the same powers in the like cases; and the governor and council shall have the same authority to punish in like cases: Provided, That no imprisonment, on the warrant or order of the governor, council, senate, or house of representatives, for either of the above described offenses, be for a term exceeding thirty days.' Const. Mass. 1780, pt. 2, chap. 1, § 3, arts. 10 and 11. The similarity of the provisions points to the identity of the evil which they were intended to reach. Clearly they operate to destroy the admixture of judicial and legis lative power as prevailing in the House of Commons, since the provisions in both the state Constitutions and the limitations accompanying them are wholly incompatible with judicial authority. Moreover, as under state Constitutions all governmental power not denied is possessed, the provisions were clearly not intended to give legislative power as such, for full legislative power to deal with the enumerated acts as criminal offenses and provide for their punishment accordingly already obtained. The object, therefore, of the provisions, could only have been to recognize the right of the legislative power to deal with the particular acts without reference to their violation of the criminal law and their susceptibility of being punished under that law because of the necessity of such a legislative authority to prevent or punish the acts independently, because of the destruction of legislative power which would arise from such acts if such authority was not possessed. How dominant these views were can be measured by the fact that in various other states almost contemporaneously with the adoption of the Constitution similar provisions were written into their Constitutions and continued to be adopted until it is true to say that they became, if not universal, certainly largely predominant in the states.2 No power was expressly conferred by the Constitution of the United States on the subject except that given to the House to deal with contempt committed by its own members. Article 1, § 5. As the rule concerning the Constitution of the United States is that powers not delegated were reserved to the people or the states, it follows that no other express authority to deal with contempt can be conceived of. It comes, then, to this: was such an authority implied from the powers granted? As it is unthinkable that in any case from a power expressly granted there can be implied the authority to destroy the grant made, and as the possession by Congress of the commingled legislative-judicial authority as to contempts which was exerted in the House of Commons would be absolutely destructive of the distinction between legislative, executive, and judicial authority which is interwoven in the very fabric of the Constitution, and would disregard express limitations therein, it must follow that there is no ground whatever for assuming that any implication as to such a power may be deduced from any grant of authority made to Congress by the Constitution. This conclusion has long since been authoritatively settled and is not open to be disputed. Anderson v. Dunn, 6 Wheat. 204, 5 L. ed. 242; Kilbourn v. Thompson, 103 U. S. 168, 26 L. ed. 377. Whether the right to deal with contempt in the limited way provided in the state Constitutions may be implied in Congress as the result of the legislative power granted must depend upon how far such limited power is ancillary or incidental to the power granted to Congress,—a subject which we shall hereafter approach. The rule of constitutional interpretation announced in M'Culloch v. Maryland, 4 Wheat. 316, 4 L. ed. 579, that that which was reasonably appropriate and relevant to the exercise of a granted power was to be considered as accompanying the grant, has been so universally applied that it suffices merely to state it. And as there is nothing in the inherent nature of the power to deal with contempt which causes it to be an exception to such rule, there can be no reason for refusing to apply it to that subject. Thus, in Anderson v. Dunn, supra, which was an action for false imprisonment against the Sergeant-at-Arms of the House for having executed a warrant for arrest issued by that body in a contempt proceeding, after holding, as we have already said, that the power possessed by the House of Commons was incompatible with the Constitution and could not be exerted by the House, it was yet explicitly decided that from the power to legislate given by the Constitution to Congress there was to be implied the right of Congress to preserve itself; that is, to deal by way of contempt with direct obstructions to its legislative duties. In Kilbourn v. Thompson, supra, which was also a case of false imprisonment for arrest under a warrant issued by order of the House in a contempt proceeding, although the want of right of the House of Representatives to exert the judiciallegislative power possessed by the House of Commons was expressly reiterated, the question was reserved as to the right to imply an authority in the House of Representatives to deal with contempt as to a subject-matter within its jurisdiction, the particular case having been decided on the ground that the subject with which the contempt proceedings were concerned was totally beyond the jurisdiction of the House to investigate. But in Re Chapman, 166 U. S. 661, 41 L. ed. 1154, 17 Sup. Ct. Rep. 677, the principle of the existence of an implied legislative authority under certain conditions to deal with contempt was again considered and upheld. The case was this: Chapman had refused to testify in a Senate proceeding, and was indicted under § 102 of the Revised Statutes (Comp. Stat. 1913, § 157) making such refusal criminal. He sued out a habeas corpus on the ground that the subject of the refusal was exclusively cognizable by the Senate, and that therefore the statute was unconstitutional as a wrongful delegation by the Senate of its authority, and because to subject him to prosecution under the statute might submit him to double jeopardy; that is, leave him after punishment under the statute to be dealt with by the Senate as for contempt. After demonstrating the want of merit in the argument as to delegation of authority, the proposition was held to be unsound and the contention as to double jeopardy was also adversely disposed of on the ground of the distinction between the implied right to punish for contempt and the authority to provide by statute for punishment for wrongful acts and to prosecute under the same for a failure to testify, the court saying that 'the two being diverso intuito and capable of standing together,' they were susceptible of being separately exercised. And light is thrown upon the right to imply legislative power to deal directly by way of contempt without criminal prosecution with acts the prevention of which is necessary to preserve legislative authority, by the decision of the Privy Council in Kielley v. Carson, 4 Moore, P. C. C. 63, 13 Eng. Reprint, 225, which was fully stated in Kilbourn v. Thompson, supra, but which we again state. The case was this: Kielley was adjudged by the House of Assembly of Newfoundland guilty of contempt for having reproached a member 'in coarse and threatening language' for words spoken in debate in the House. A warrant was issued and Kielley was arrested. When brought before the House he refused to apologize and indulged in further violent language toward the mamber and was committed. Having been discharged on habeas corpus proceedings, he brought an action for false imprisonment against the Speaker and other members of the House. As a justification the defendants pleaded that they had acted under the authority of the House. A demurrer to the plea was overruled and there was a judgment for the defendants. The appeal was twice heard by the Privy Council, the court on the second argument having been composed of the Lord Chancellor (Lyndhurst), Lords Brougham, Denman, Abinger, Cottenham, and Campbell, the Vice Chancellor (Shadwell), the Lord Chief Justice of the Common Pleas (Tindal), Mr. Justice Erskine, Lushington, and Baron Parke. The opinion on reversal was written by Parke, B., who said: 'The main question raised by the pleadings, . . . was whether the House of Assembly had the power to arrest and bring before them, with a view to punishment, a person charged by one of its members with having used insolent language to him out of the doors of the House, in reference to his conduct as a member of the Assembly,—in other words, whether the House had the power, such as is possessed by both Houses of Parliament in England, to adjudicate upon a complaint of contempt or breach of privilege.' After pointing out that the power was not expressly granted to the local legislature by the Crown, it was said the question was 'whether by law, the power of committing for a contempt, not in the presence of the Assembly, is incident to every local legislature.' 'The statute law on this subject being silent, the common law is to govern it; and what is the common law depends upon principle and precedent. 'Their Lordships see no reason to think that in the principle of the common law any other powers are given them than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment,—an act which, on both sides, it is admitted, it was competent for the Crown to perform. This is the principle which governs all legal incidents.' And after quoting the aphorism of the Roman law to the effect that the conferring of a given power carried with it by implication the right to do those things which were necessary to the carrying out of the power given, the opinion proceeded: 'In conformity to this principle we feel no doubt that such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their legislative functions, they are justified in acting by the principle of the common law. But the power of punishing anyone for past misconduct as a contempt of its authority, and adjudicating upon the fact of such contempt, and the measure of punishment as a judicial body, irresponsible to the party accused, whatever the real facts may be, is of a very different character, and by no means essentially necessary for the exercise of its functions by a local legislature, whether representative or not. All these functions may be well performed without this extraordinary power, and with the aid of the ordinary tribunals to investigate and punish contemptuous insults and interruptions.' There can be no doubt that the ruling in the case just stated upheld the existence of the implied power to punish for contempt as distinct from legislative authority and yet flowing from it. It thus becomes apparent that from a doctrinal point of view the English rule concerning legislative bodies generally came to be in exact accord with that which was recognized in Anderson v. Dunn, 6 Wheat. 204, 5 L. ed. 242, as belonging to Congress; that is, that in virtue of the grant of legislative authority there would be a power implied to deal with contempt in so far as that authority was necessary to preserve and carry out the legislative authority given. While the doctrine of Kielley v. Carson was thus in substantive principle the same as that announced in Anderson v. Dunn, we must not be understood as accepting the application which was made of the rule to the particular case there in question, since, as we shall hereafter have occasion to show, we think that the application was not consistent with the rule which the case announced, and would, if applied, unwarrantedly limit the implied power of Congress to deal with contempt. What does this implied power embrace? is thus the question. In answering, it must be borne in mind that the power rests simply upon the implication that the right has been given to do that which is essential to the execution of some other and substantive authority expressly conferred. The power is therefore but a force implied to bring into existence the conditions to which constitutional limitations apply. It is a means to an end, and not the end itself. Hence it rests solely upon the right of self-preservation to enable the public powers given to be exerted. These principles are plainly the result of what was decided in Anderson v. Dunn, supra, since in that case, in answering the question what was the rule by which the extent of the implied power of legislative assemblies to deal with contempt was controlled, it was declared to be 'the least possible power adequate to the end proposed' (6 Wheat. 231, 5 L. ed. 248), which was but a form of stating that as it resulted from implication, and not from legislative will, the legislative will was powerless to extend it further than implication would justify. The concrete application of the definition and the principle upon which it rests were aptly illustrated in Re Chapman, 166 U. S. 661, 41 L. ed. 1154, 17 Sup. Ct. Rep. 677, where, because of the distinction existing between the two which was drawn, the implied power was decided not to come under the operation of a constitutional limitation applicable to a case resting upon the exercise of substantive legislative power. Without undertaking to inclusively mention the subjects embraced in the implied power, we think from the very nature of that power it is clear that it does not embrace punishment for contempt as punishment, since it rests only upon the right of self-preservation; that is, the right to prevent acts which, in and of themselves, inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is an inherent legislative power to compel in order that legislative functions may be performed. And the essential nature of the power also makes clear the cogency and application of the two limitations which were expressly pointed out in Anderson v. Dunn, supra; that is, that the power, even when applied to subjects which justified its exercise, is limited to imprisonment, and such imprisonment may not be extended beyond the session of the body in which the contempt occurred. Not only the adjudged cases, but congressional action in enacting legislation as well as in exerting the implied power, conclusively sustain the views just stated. Take, for instance, the statute referred to in Re Chapman, where, not at all interfering with the implied congressional power to deal with the refusal to give testimony in a matter where there was a right to exact it, the substantive power had been exerted to make such refusal a crime, the two being distinct the one from the other. So, also, when the difference between the judicial and legislative powers is considered and the divergent elements which, in the nature of things, enter into the determination of what is self-preservation in the two cases, the same result is established by the statutory provisions dealing with the judicial authority to summarily punish for contempt; that is, without resorting to the modes of trial required by constitutional limitations or otherwise for substantive offenses under the criminal law. Act of March 2, 1831 (4 Stat. at L. 487, chap. 99, Comp. Stat. 1913, § 1245). The legislative history of the exertion of the implied power to deal with contempt by the Senate or House of Representatives when viewed comprehensively from the beginning points to the distinction upon which the power rests, and sustains the limitations inhering in it which we have stated. The principal instances are mentioned in the margin,3 and they all, except two or three, deal with either physical obstruction of the legislative body in the discharge of its duties, or physical assault upon its members for action taken or words spoken in the body, or obstruction of its officers in the performance of their official duties, or the prevention of members from attending so that their duties might be performed, or finally with contumacy in refusing to obey orders to produce documents or give testimony which there was a right to compel. In the two or three instances not embraced in the classes we think it plainly appears that for the moment the distinction was overlooked which existed between the legislative power to make criminal every form of act which can constitute a contempt, to be punished according to the orderly process of law, and the accessory implied power to deal with particular acts as contempts outside of the ordinary process of law because of the effect such particular acts may have in preventing the exercise of legislative authority. And in the debates which ensued when the various cases were under consideration it would seem that the difference between the legislative and the judicial power was also sometimes forgotten; that is to say, the legislative right to exercise discretion was confounded with the want of judicial power to interfere with the legislative discretion when lawfully exerted. But these considerations are accidental and do not change the concrete result manifested by considering the subject from the beginning. Thus we have been able to discover no single instance where, in the exertion of the power to compel testimony, restraint was ever made to extend beyond the time when the witness should signify his willingness to testify, the penalty or punishment for the refusal remaining controlled by the general criminal law. So, again, we have been able to discover no instance, except the two or three above referred to, where acts of physical interference were treated as within the implied power unless they possessed the obstructive or preventive characteristics which we have stated, or any case where any restraint was imposed after it became manifest that there was no room for a legislative judgment as to the virtual continuance of the wrongful interferencee which was the subject of consideration. And this latter statement causes us to say, referring to Kielley v. Carson, 4 Moore, P. C. C. 63, 13 Eng. Reprint, 225, 7 Jur. 137, that where a particular act, because of its interference with the right of self-preservation, comes within the jurisdiction of the House to deal with directly under its implied power to preserve its functions, and therefore without resort to judicial proceedings under the general criminal law, we are of opinion that authority does not cease to exist because the act complained of had been committed when the authority was exerted, for to so hold would be to admit the authority and at the same time to deny it. On the contrary, when an act is of such a character as to subject it to be dealt with as a contempt under the implied authority, we are of opinion that jurisdiction is acquired by Congress to act on the subject, and therefore there necessarily results from this power the right to determine, in the use of legitimate and fair discretion, how far from the nature and character of the act there is necessity for repression to prevent immediate recurrence; that is to say, the continued existence of the interference or obstruction to the exercise of the legislative power. And of course in such case, as in every other, unless there be manifest an absolute disregard of discretion and a mere exertion of arbitrary power coming within the reach of constitutional limitations, the exercise of the authority is not subject to judicial interference. It remains only to consider whether the acts which were dealt with in the case in hand were of such a character as to bring them within the implied power to deal with contempt; that is, the accessory power possessed to prevent the right to exert the powers given from being obstructed and virtually destroyed. That they were not would seem to be demonstrated by the fact that the contentions relied upon in the elaborate arguments at bar to sustain the authority were principally rested not upon such assumption, but upon the application and controlling force of the rule governing in the House of Commons. But aside from this, coming to test the question by a consideration of the conclusion upon which the contempt proceedings were based as expressed in the report of the select committee which we have previously quoted, and the action of the House of Representatives, based on it, there is room only for the conclusion that the contempt was deemed to result from the writing of the letter, not because of any obstruction to the performance of legislative duty resulting from the letter, or because the preservation of the power of the House to carry out its legislative authority was endangered by its writing, but because of the effect and operation which the irritating and ill-tempered statements made in the letter would produce upon the public mind, or because of the sense of indignation which it may be assumed was produced by the letter upon the members of the committee and of the House generally. But to state this situation is to demonstrate that the contempt relied upon was not intrinsic to the right of the House to preserve the means of discharging its legislative duties, but was extrinsic to the discharge of such duties, and related only to the presumed operation which the letter might have upon the public mind and the indignation naturally felt by members of the committee on the subject. But these considerations plainly serve to mark the broad boundary line which separates the limited implied power to deal with classes of acts as contempts for self-preservation and the comprehensive legislative power to provide by law for punishment for wrongful acts. The conclusions which we have stated bring about a concordant operation of all the powers of the legislative and judicial departments of the government, express or implied, as contemplated by the Constitution. And as this is considered, the reverent thought may not be repressed that the result is due to the wise foresight of the fathers, manifested in state Constitutions even before the adoption of the Constitution of the United States, by which they substituted for the intermingling of the legislative and judicial power to deal with contempt as it existed in the House of Commons a system permitting the dealing with that subject in such a way as to prevent the obstruction of the legislative powers granted and secure their free exertion, and yet, at the same time, not substantially interfere with the great guaranties and limitations concerning the exertion of the power to criminally punish,—a beneficent result which additionally arises from the golden silence by which the framers of the Constitution left the subject to be controlled by the implication of authority resulting from the powers granted. It is suggested in argument that whatever be the general rule, it is here not applicable because the House was considering and its committee contemplating impeachment proceedings. The argument is irrelevant because we are of opinion that the premise upon which it rests is unfounded. But indulging in the assumption to the contrary, we think it is wholly without merit, as we see no reason for holding that if the situation suggested be assumed, it authorized a disregard of the plain purposes and objects of the Constitution as we have stated them. Besides, it must be apparent that the suggestion could not be accepted without the conclusion that, under the hypothesis stated, the implied power to deal with contempt as ancillary to the legislative power had been transformed into judicial authority and become subject to all the restrictions and limitations imposed by the Constitution upon that authority,—a conclusion which would frustrate and destroy the very purpose which the proposition is advanced to accomplish and would create a worse evil than that which the wisdom of the fathers corrected before the Constitution of the United States was adopted. How can this be escaped, since it is manifest that if the argument were to be sustained those things which, as pointed out in Re Chapman, 166 U. S. 661, 41 L. ed. 1154, 17 Sup. Ct. Rep. 677, were distinct and did not therefore the one frustrate the other,—the implied legislative authority to compel the giving of testimony and the right criminally to punish for failure to do so, would become one and the same and the exercise of one would therefore be the exertion of, and the exhausting of the right to resort to, the other. Again, accepting the proposition, by what process of reasoning could the conclusion be escaped that the right to exert implied authority by way of contempt proceedings in so far as essential to preserve legislative power would become itself an exertion of legislative power and thus at once be subject to the limitations as to modes of trial exacted by the guaranty of the Constitution on that subject? We repeat, out of abundance of precaution, we are called upon to consider not the legislative power of Congress to provide for punishment and prosecution under the criminal laws in the amplest degree for any and every wrongful act, since we are alone called upon to determine the limits and extent of an ancillary and implied authority essential to preserve the fullest legislative power, which would necessarily perish by operation of the Constitution if not confined to the particular ancillary atmosphere from which alone the power arises and upon which its existence depends. It follows from what we have said that the court below erred in refusing to grant the writ of habeas corpus, and its action must be and it is, therefore, reversed, and the case remanded with directions to discharge the relator from custody. And it is so ordered.

244.US.106

Giving weight to the opinion of the District Judge who tried the ease, this court upon reviewing the evidence agrees with his conclusion that, as applied to the appellee railroad company, the two-cent passenger rate fixed by the Arliansas legislature, and freight rates fixed by the Arkansas Railroad Commission, are confiscatory. An objection to evidence as hearsay is too late if not taken when the evidence was introduced. While this cause was pending in the trial court, the appellee railroad company, for the purpose of allocating its expenses to intrastate and interstate freight and passenger traffic in Arkansas, caused minute and specific reports to be made by its employees of all facts that would throw light upon the problem in accordance with prescribed formule and introduced the results in evidence, exhibiting the worksheets and other data to the appellant Railroad Commissioners, who had opportunity to question them and call for further investigation. Held, that the returns were made by the employees in the course of their business and that an objection that the evidence was hearsay could not in justice be entertained. Held, further, that the two months of investigation afforded a basis for argument as to constant conditions. The possible inaccuracy of apportioning general road maintenance expenses between freight and passenger service by engine-tonmiles-considered and held not to affect the result of this case. Whether adoption of the low rates fixed by the State would be followed by increased intrastate traffic and revenue-Held, too remote and conjectural a matter to disturb the conclusion. 222 Fed. Rep. 539, affirmed. THE case is stated in the opinion.

This is a bill in equity, originally brought by Wilbur Boyle as a stockholder in the railroad company, now one of the appellees, to prevent it from paying, and the Railroad Commission of Arkansas from enforcing, freight rates established by the latter, and a 2-cent passenger rate fixed by a statute of 1907, on the ground that both were confiscatory. A temporary injunction was issued, freight rates were adopted higher than those established by the State Commission, and the 3-cent passenger rate previously in force was restored, a bond being given for keeping accounts and refunding the difference if the final decision should uphold the action of the state. Later by agreement the experiment of a 2 1/2-cent passenger rate was tried for eighteen months, and the final hearing of the cause was postponed to await the decision of Allen v. St. Louis, I. M. & S. R. Co. 230 U. S. 553, 57 L. ed. 1625, 33 Sup. Ct. Rep. 1030, in which the same rates were before the court. That decision was rendered on June 16, 1913, and forthwith after that and the others reported in 230 U. S., there was a conference of railroad managers and officials, engineers and others competent to aid, for the purpose of devising formulas for the division of expenses, etc., between local and interstate business in accord with the views of this court, as a step toward determining the constitutionality of this and other rates sought to be imposed by the states. The railroad company then made a laborious attempt to apply the formulas thus reached, and, as a result, the injunction was made perpetual, subject to a change of circumstances, after a careful discussion by the district court. P.U.R. 1916A, 49, 222 Fed. 539. The value of the railroad property for the years 1910-1913 was admitted. The question in dispute is the usual one of the division of expense and income between state and interstate business. The decision below explains in greater detail than it is necessary to repeat the method of investigation adopted by the railroad. For the months of November and December, 1913, it caused the most minute and specific reports to be made of all the facts that, by the formulas prepared, would throw light upon the problem to be solved. Such an investigation is too expensive to be kept up for more than a limited time, but evidence was offered to show that the figures for the two months reflected the previous years as to the material proportions, so far as was possible to judge from the returns previously required by the state. In establishing local rates a state must be assumed to intend to confine its action within the limits set by the Constitution, and not to seek an unjust advantage from the difficulties of dividing income and expense to which we have referred, but in this case the appellants have contented themselves with a purely negative attitude. There is made even a preliminary objection that the evidence is hearsay. We have not observed that the objection was taken when the evidence was introduced, and if not, it would be too late. Diaz v. United States, 223 U. S. 442, 450, 56 L. ed. 500, 503, 32 Sup. Ct. Rep. 250, Ann. Cas. 1913C, 1138. But it is enough to say that the railroad adopted the only practicable mode of presenting its results, that it exhibited its work sheets and data to the appellants, that the returns were made by the employees in the course of their business, and that if the appellants had desired to question any of the data they could have called for further verification. It seems to us that technical rules are satisfied, and that justice plainly requires this objection to be set aside. We hardly can avoid approaching the discussion of the merits in the light of a few facts indicating that the probabilities are on the railroad's side. Weight naturally attaches to the opinion of the judge who heard the case. Apart from that, it is not to be forgotten that this same Commission, with others, recognizing the incongruity between the local passenger rates and those in force between different states, applied to the Interstate Commerce Commission to have the latter changed; that the Commission found that the 3-cent rate was not shown to be unreasonable, and that it dismissed their petition, reminding them that the adjustment properly should come not from the United States, but from themselves. Corporation Commission v. Atchison, T. & S. F. R. Co. 31 Inters. Com. Rep. 532. The average haul in Arkansas is shorter than the average of the road, the density of traffic is less, and the maintenance of the road is more expensive. We are aware that there is some contradiction upon this last point, but we have no doubt of the fact that the cost is greater in Arkansas than the average cost of the line. We do not propose to follow the arguments that have been addressed to us into the elaborate tables of figures. We are satisfied in the main with the discussion the they received below, and shall refer only to one or two details that seem to need mention, without discussing the merits or demerits of the formulas. We are of opinion that the railroad has shown successfully the state rates to be confiscatory, and that even if some errors are detected, they are not enough to change the result. We agree with the district judge that the two months of investigation afforded a basis for argument as to constant conditions. We agree that it is proved that the local expenses are proportionally very much greater than the interstate. In fixing the exact rates it may be that mistakes were made. Perhaps the most important doubt is raised by the fact that the railroad apportioned the cost of maintaining tracks and track structures, so far as not definitely assignable, between freight and passenger service, on the basis of engine ton miles (the weight of the engine in working order, multiplied by the distance it moves in the one service or the other). This criterion, although upheld by the court below, is not regarded as certainly the best by the Interstate Commerce Commission. Western Passenger Fares, 37 Inters. Com. Rep. 1, 13. It gave for the test period 51.19 per cent to freight and 49.31 to passenger, whereas the Commission's figures gave a larger percentage to freight. The result of a difference of eleven per cent would be to convert the deficit alleged by the railroad and found by the court below in intrastate returns into a profit of less than 1 per cent upon the agreed valuation. But the extent of the error, if any, is doubtful, and neither that nor any other possible errors would turn the scale. The railroad, after getting the actual returns at the 3-cent and 2 1/2-cent passenger rate and the freight rates allowed by the court, deducted the sums necessary to bring the revenue down to what it would have been had the state rates been followed. It is objected that this does not allow for the increase of travel that would follow the deduction. The railroad replies and the court below found that the increase in mainly at the expense of interstate revenue when the combined local rates are less than the interstate one. Whether this exhausts the matter or not, we are of opinion that upon this record the supposed increase is too conjectural properly to affect our conclusion. The direct effect of the reduction is plain,—the remote one is at best a guess. Light is thrown upon the position of the state by the decision of the Interstate Commerce Commission in Memphis v. Chicago, R. I. & P. R. Co. 39 Inters. Com. Rep. 256, 265: 'The present unduly low rates within Arkansas are due at least in part to the attempt by the Railroad Commission of Arkansas to protect Arkansas shippers and build up Arkansas jobbing centers.' In that case it was intimated that the carriers would be required to remove discriminations resulting from the unduly low rates, as was done in the Shreveport Case. Houston E. & W. T. R. Co. v. United States, 234 U. S. 342, 58 L. ed. 1341, 34 Sup. Ct. Rep. 833. Upon the whole matter we are of opinion that the decree below was right and it is affirmed. Decree affirmed.

246.US.97

Those decisions do not place limitations upon the right of Congress to deal with a Tribal Indian whose relation of ward to the Government still continues, and concerning whom Congress has not evidenced its intention to release its authority. We find no error in the judgment of the Supreme Court of Oklahoma, and the same is affirmed. Affirmed. Dram Shop Act, Illinois Rev. Stats., c. 43, § 10, upheld as involved in

This suit was brought by Delia Garrity to subject premises in Chicago owned by plaintiffs in error to the payment of a judgment obtained by her against Clarence Green by reason of injury ustained to her means of support through sales of intoxicating liquors to her husband by Green, who was a tenant of the plaintiffs in error occupying and using their premises for the sale of such liquors. In her complaint she sets forth that she was the wife of one William J. Garrity; that Clarence Green on June 18, 1912, and for one year prior thereto, was the owner of and did conduct what is commonly known as a saloon or dramshop, and during such period of time sold intoxicating liquors in such shop in a certain building at 134 North Dearborn street, Chicago, standing upon certain permises described in the bill; that on June 18, 1912, she began a suit in the circuit court of Cook county, Illinois against said Green, under the provisions of statute of the state of Illinois known as the Dramshop Act (Hurd's Rev. St. 1915-16, c. 43), to recover damages for injury to her means of support, and alleged in the declaration in said suit that she was the wife of William J. Garrity on and prior to June 18, 1912; that said Green sold and gave intoxicating liquors to her husband, which liquor in whole or in part caused the said Garrity to become habitually intoxicated, and alleged injury to her means of support resulting therefrom in the sum of $10,000; that summons was duly served on said Green; that he failed to appear, and on September 26, 1912, an order of default was entered against him, and thereupon the case came for trial before the judge and jury for the assessment of damages; that on October 2, 1914, the court and jury having heard the testimony, the jury returned a verdict finding said Green guilty, assessed the plaintiff's damages in the sum of $1,500, and judgment was rendered accordingly. The bill then alleges leasehold ownership of the land and ownership of the building in the plaintiffs in error, and that for a year or more prior to the filing of the suit in the circuit court of Cook county said Green occupied the building on the premises for the purpose of the sale of intoxicating liquors as tenant of the plaintiffs in error, who leased said building and premises to, and knowingly permitted said building and premises to be occupied by said Green for the sale of intoxicating liquors for the period of a year or more prior to the filing of the suit in the circuit court of Cook county; that the liquors sold or given to Garrity on said premises, were the sales or gifts which resulted in the verdict and judgment aforesaid; and such sales or gifts were made or given while the said Green occupied the said building as tenant of the plaintiffs in error, and with their knowledge and consent, for the purpose of keeping a dramshop, and the complainant seeks to have the building and premises charged with a lien for the payment of the judgment and costs, and prays that in default of the payment of the judgment, interest and costs, that said building and the premises described in the bill he sold to satisfy the judgment. A demurrer to the bill was overruled and the court made a decree in substance finding the allegations in the bill to be true, and adjudged that in default of the payment of the judgment, with interest, the said building, leasehold and premises of the plaintiffs in error should be subjected to sale for the payment thereof. Upon appeal the Supreme Court of Illionis affirmed the decree, holding, among other things, that the statute did not deprive the plaintiffs in error of their property without due process of law contrary to the Fourteenth Amendment of the Constitution of the United States. 272 Ill. 127, 111 N. E. 735. The decree was rendered under section 10, chapter 43, of the Revised Statutes of that state, which provides: 'For the payment of any judgment for damages and costs that may be recovered against any person in consequence of the sale of intoxicating liquors under the preceding section, the real estate and personal property of such person, of every kind, except such as may be exempt from levy and sale upon judgment and execution, shall be liable; a d such judgment shall be a lien upon such real estate until paid; and in case any person shall rent or lease to another any building or premises to be used or occupied, in whole or in part, for the sale of intoxicating liquors, or shall knowingly permit the same to be so used or occupied, such building or premises so used or occupied shall be held liable for and may be sold to pay any such judgment against any person occupying such building or premises. Proceedings may be had to subject the same to the payment of any such judgment recovered, which remains unpaid, or any part thereof, either before or after execution shall issue against the property of the person against whom such judgment shall have been recovered; and when execution shall issue against the property so leased or rented, the officer shall proceed to satisfy said execution out of the building or premises so leased or occupied, as aforesaid: Provided, that if such building or premises belong to a minor or other person under guardianship, the guardian or conservator of such person, and his real and personal property, shall be held liable instead of such ward, and his property shall be subject to all the provisions of this section relating to the collection of said judgment.' Construing this section with the preceding section (9) (printed in the margin1) the Supreme Court of Illinois held that the purpose of section 10 was to make the building or premises used for the sale of intoxicating liquors liable for the payment of a judgment rendered against the occupant of the premises wherein the liquor was sold, provided the owner had rented the same to be used or occupied for the sale of intoxicating liquors, or knowingly permitted the same to be so used and occupied. The court held that the judgment against the tenant, in the absence of fraud or collusion, was conclusive in the action under section 10 to subject the building and premises to its payment, except that the owner of the building is entitled to controvert the allegations that he had knowingly rented or knowingly permitted his building to be used for the sale of intoxicating liquor, and that a judgment had been recovered against the occupant for damages arising from the sale of liquor therein. The question in this court is whether the act, as thus construed, deprives the plaintiffs in error of their property without due process of law. The right of the states to pass laws for the regulation of the traffic in intoxicating liquors, and to legislate with a view to repress the evil consequences which may result therefrom, has been frequently affirmed in this court. Cramer v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. ——, decided December 10, 1917. In the opinion in that case the former cases in this court sustaining the authority of the state to deal with the evils resulting from the sale and use of intoxicating liquor are cited, and we need not review them now. Under this broad power over the liquor traffic, and the right to pass legislation to prevent its evils, the state of Illinois has made the premises of an owner in that state subject to a lien for damages recovered by a wife for injury to her means of support against one who has furnished the husband intoxicating liquor which was sold upon the premises sought to be charged, when the owner had rented the same for the purpose of the sale of intoxicating liquor, or had knowingly permitted such sales upon his premises. The owner of such building has no absolute right to rent his property for any and all purposes. The use of property may be regulated under the police power of the state in the public interest in such manner as to safeguard the health and welfare of the community. Certainly there is no right beyond the reach of legislative control, to rent premises for the sale of intoxicating liquor. The state may consistently with due process of law prohibit the rental of premises for such purposes. In this instance it has undertaken to r gulate the right to rent property for the sale of intoxicating liquors by making the premises so used subject to a lien for a judgment for damages because of the deprivation of the means of support of the wife resulting from the intoxication of the husband upon whom she depends for support. Obviously, the state may pass laws to meet this as well as other evil consequences likely to follow from the traffic. See Marvin v. Trout, 199 U. S. 212, 224, 225, 26 Sup. Ct. 31, 50 L. Ed. 157. The stress of the argument for plaintiff in error is laid upon the want of notice to the landlord and the lack of opportunity to be heard as to the right of recovery and the amount thereof, before his property can be subjected to the lien of such judgment. But the effect of this statute is to make the landlord responsible only when he rents his property for the use and sale of intoxicants, or knowingly permits its use for that purpose. The statute has the effect of making the tenant the agent of the landlord for its purposes, and through this agency, voluntarily assumed, the landlord becomes a participant in the sales of intoxicants and is responsible for the consequences resulting from them. It was the owner's privilege to rent the property to a lessee of his own choosing, and to safeguard himself by the amount of the rent reserved, or otherwise, for the possible damages resulting from the traffic in intoxicants which the landlord has agreed may be carried on in his premises. The property is not summarily taken, the owner may be heard to deny the rendition of the judgment against the tenant, the making of the lease authorizing the sale of intoxicating liquor, or, if his knowledge of such use be the issue, he may be heard upon that question. Mullen v. Peck, 49 Ohio St. 447, 31 N. E. 1077; Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323. In view of the broad authority of the states over the liquor traffic, and the established right to prohibit or regulate the sale of intoxicating liquors, we are unable to discover that there has been a deprivation of property rights in the legislation in question in violation of due process of law secured by the Fourteenth Amendment. Judgment affirmed.

246.US.289

If the state supreme court treats federal questions as necessarily involved and to reach its judgment necessarily decides them adversely to the plaintiff in error, this court has jurisdiction to review them, although not specially characterized as federal questions by the plaintiff in error in the state courts. This court has jurisdiction to review a judgment of the supreme court of a State where the issues as to whether lands in question were owned by the State, and whether they, and alleged trespasses upon them, were within the State and so within the state court's jurisdiction, were determined affirmatively through a location of the state boundary based upon interpretation of various treaties and acts of Congress. Whether two States of the Union, either by long acquiescence in a practical location of their common boundary or by agreement otherwise evidenced, have changed the limits of their jurisdiction as laid down by the authority of the general government in treaty or statute, is in its nature a federal question. Whether the state court has correctly followed the rules of erosion, accretion or avulsion applicable to interstate boundary streams so as to give proper effect to treaties and acts of Congress establishing a river as an interstate boundary, is a question of federal law. Upon the merits, which concern the location of the boundary between Tennessee and Arkansas in the Mississippi River, this case is decided upon the authority of Arkansas v. Tennessee, ante, 158. 119 Tennessee, 47, reversed.

The state of Tennessee sued Cissna and others in a court of equity of that state, setting up ownership by the state of that portion of the dry lands formerly a part of the bed of the Mississippi river which lay between low-water mark on the Tennessee side and the middle of the river as it flowed prior to the change in the channel made in the year 1876 by the opening of the Centennial Cut-Off; alleging that the defendant Cissna claiming ownership, but having none, and the Muncie Pulp Company acting under him, were cutting and removing timber from a particularly described portion of those lands; and praying for an injunction against further acts of trespass and against the removal of the timber cut, and a recovery of the value of the timber. Cissna pleaded in abatement that the land described in the bill, except a small portion to which he disclaimed title, was in the state of Arkansas and not in the state of Tennessee, and hence that the court had no jurisdiction over the controversy. His codefendant having raised a similar issue, the cause came on to be heard before a chancellor, who sustained the pleas to the jurisdiction and ordered that the bill be dismissed. Upon appeal, the Supreme Court of Tennessee, disregarding the form of the pleadings, treated the action as brought to recover the land as well as to stay waste in cutting and removing timber; and deeming that the question of jurisdiction which depended upon the location of the boundary line between Tennessee and Arkansas and the question of the right of the former state to recover the land were practically the same question, considered them together. The facts bearing upon the location of the boundary, recited in the opinion of the court, were substantially the same as those upon which this court passed in the boundary suit of Arkansas v. Tennessee, 246 U. S. 158, 38 Sup. Ct. 301, 62 L. Ed. ——, No. 4, Original, recently decided. The state court held, contrary to the rule laid down by this court in Iowa v. Illinois, 147 U. S. 1, 13 Sup. Ct. 239, 37 L. Ed. 55, and still adhered to, that the boundary line did not follow the middle of the channel of commerce, but was fixed and defined as 'a line along the middle of the main channel of the river equidistant from the visible and permanent banks confining its waters.' The court found that the change made in the channel in the year 1876 at Centennial Cut-Off was an avulsion, and declared that 'the limits of Tennessee and Arkansas, their respective rights in the abandoned channel, and those of individuals who owned lands lying and abutting upon it, all remained as they were before the formation of the new channel.' But, not carrying this into effect, it concluded that at the place where the lands sued for are situate the correct boundary between the states was midway between the banks of the river as they existed in the year 1823 as shown by the Humphreys Map, notwithstanding the fact that between that date and the time of the cut-off the river had gradually encroached upon the Tennessee shore, to a large extent in the aggregate; the court holding that the effect of the avulsion was to press back the line between the two states so as to restore to Tennessee what it held before the erosions upon its banks. And since it appeared that complainant had sued only for the land lying on the hither side of the middle of the channel as it was in 1876, and therefore could not recover to the middle of the channel of 1823, the court, on remanding the cause for a hearing upon the answers of defendants, ordered that the bill might be amended so as to make the proper averments to enable the state to recover under the principles laid down n its opinion. State v. Pulp Co., 119 Tenn. 47, 104 S. W. 437. The cause was remanded, the pleadings were amended, and the suit remained pending in the trial court, when the state of Arkansas filed its bill in this court against the state of Tennessee to settle the boundary line between these states along that part of the former bed of the Mississippi river which was left dry as a result of the avulsion of 1876, including the portion in dispute in the present case; this being the same action above mentioned as No. 4, Original. The pendency of that action was brought by Cissna to the attention of the trial court in the present case, and made the basis of an application for a stay of proceedings until the boundary line between the states should have been fixed and located by this court. This application was overruled and the cause proceeded, with the result that the chancellor made a decree against Cissna on the merits in conformity with the opinion of the Supreme Court, subject however to an accounting with respect to the amount and value of the timber cut and removed during the pendency of the suit. Upon appeal to the Supreme Court this decree was affirmed, with modifications not necessary to be mentioned, that court ordered that a writ of possession be issued to place the complainant state in possession of the tract of land in controversy, and retained the case for an accounting respecting the value of the timber. By way or objection to the entry of a decree pursuant to the accounting that followed, Cissna again called the attention of the court to the boundary suit pending in this court, and prayed for a stay of proceedings in the suit against him upon the ground that any determination by that court not in accordance with the determination of this court would be void. This objection was overruled, a final judgment or decree went against him for upwards of $110,000, and the case was brought here by writ of error under section 237, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156), before the amendment of September 6, 1916 (39 Stat. 726, c. 448, § 2 [Comp. St. 1916, § 1214]). It was first argued at the October term, 1916, when, for reasons stated in 242 U. S. 195, 37 Sup. Ct. 108, 61 L. Ed. 243, it was restored to the docket, and thereafter was heard at the same time with the suit of Arkansas v. Tennessee. Our jurisdiction is invoked upon the ground that the decision of the state court of last resort was adverse to the federal rights of plaintiff in error in two respects: (1) In overruling his prayer for a stay of proceedings to await the determination of the suit pending in this court to settle the boundary line between the states; and (2) in coming to an erroneous conclusion upon the merits of the question of the proper location of that boundary. We need not pass upon the first point, since we are of the opinion that we have jurisdiction on the second ground, and that the judgment under review must be reverse. The record does not show that Cissna specially set up in the state courts any contention that the decision of the merits turned upon questions of federal law, except as this may appear by inference from the nature of the grounds upon which the decision was rested. But if the Supreme Court of the state treated federal questions as necessarily involved and decided them adversely to plaintiff in error, and could not otherwise have reached the result that it did reach, it becomes immaterial to consider how they were raised. Miedreich v. Lauenstein , 232 U. S. 236, 243, 34 Sup. Ct. 309, 58 L. Ed. 584; North Carolina R. R. Co. v. Zachary, 232 U. S. 248, 257, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; Mallinckrodt Works v. St. Louis, 238 U. S. 41, 49, 35 Sup. Ct. 671, 59 L. Ed. 1192. The opinion of that court, State v. Pulp Co., 119 Tenn. 47, 104 S. W. 437, shows that it treated the question of jurisdiction presented by the pleas in abatement and the question of the title of the state of Tennessee to the lands in co troversy as both dependent upon the location of the boundary, because the state claimed the lands as a sovereign under the same treaties and acts of Congress by which its western boundary was defined and established; and the court held that the location of this boundary depended upon the interpretation of the Treaty of 1783 between the United States and Great Britain (8 Stat. 80, 82, art. II), the act of cession from North Carolina to the United States made in 1790 (1 Stat. 106, c. 6), the Treaty of 1795 between the United States and Spain (8 Stat. 138, 140, art. IV), the Act of Congress of June 1, 1796, admitting Tennessee into the Union as a State (1 Stat. 491, c. 47), the Louisiana Purchase Treaty of 1803 (8 Stat. 200), and the Act of Congress of June 15, 1836 (5 Stat. 50, c. 100), admitting Arkansas as a State. Upon a consideration of the Treaty of 1783, which employed the expression 'middle of the said river Mississippi' to define the western boundary of the United States, and interpreting this in view of the use of the same expression in the previous Treaty of 1763 between Great Britain, France, and Spain (3 Jenkinson's Treaties, 177), and declaring that the treaty with Spain, which provided that the western boundary of the United States should be 'in the middle of the channel or bed of the river,' was not only an interpretation of the former treaties, but superseded them, and construing the phrase 'middle of the main channel,' employed in the act admitting Arkansas, as introducing no new meaning, the court held that the expression 'middle of the river,' by true interpretation, meant not the middle of the channel of commerce, but a line midway between the visible and fixed banks of the stream, and that any general rule of international law to the contrary must yield to the intent which the court deemed to be expressed in the treaties and acts of Congress referred to. Since the decision adverse to plaintiff in error turned so clearly and essentially upon questions of federal law, we have jurisdiction to review the resulting judgment. And as the conclusion reached by the state court upon the question of interpretation is directly opposed to that reached by us in Arkansas v. Tennessee upon a consideration of the same pertinent treaties and acts of Congress, we need only refer to our opinion in that case for a statement of the grounds upon which we hold that the state court erred. Two additional errors entered into the judgment, so intimately connected with the question of interpretation as to be inseparable from it. The first of these was a decision to the effect that the question of boundary had been settled by the duly constituted authorities of the two states, by judicial decisions, legislation, long acquiescence, exercise of jurisdiction, and other acts amounting to an agreement or convention defining the limit between the states to be the line midway between the visible banks of the river. Obviously, whether two states of the Union, either by long acquiescence in a practical location of their common boundary, or by agreement otherwise evidenced, have definitely fixed or changed the limits of their jurisdiction as laid down by the authority of the general government in treaty or statute, is in its nature a federal question. We have stated briefly, in Arkansas v. Tennessee, the reasons why we are unable to concur with the state court in its decision upon this point. The remaining error arose in the determination of the consequences of the avulsion of 1876. It is a part of the law of interstate boundaries, that where a running stream forms the boundary, if the bed and channel are changed by the natural and gradual processes of erosion and accretion, the boundary follows the varying course of the stream; while if the stream suddenly leaves its old bed and forms a new one, the resulting change of channel works no change of boundary, which remains in the middle of the old channel although no water be flowing in it. Arkansas v. Tennesse , supra. A correct application of this rule to changes in the Mississippi is necessary in order that proper effect may be given to the treaties and acts of Congress by which that river was established as an interstate boundary, and hence this is a question of federal law. The state court acknowledged the rule in theory, but departed from it in fact. Starting with the Humphreys map as showing the location of the banks of the river as they were in 1823, the date to which the earliest records related, and finding from the evidence that between that date and the time of the avulsion there has been gradual erosions from the Tennessee bank at the place where the land in controversy is situate, to an extent sufficient in the aggregate to increase the width of the river from a little less than a mile to between 1 1/4 and 1 1/2 miles, the court held that the subsequent emergence of the bed of the river at this place, consequent upon the avulsion of 1876, had the effect of pressing back the line between the states to the middle of the old channel as it ran in 1823, so as to restore to Tennessee what it held before the erosions from its banks. This result was reached by grafting upon the acknowledged ruel as to boundary streams an exception deduced from the rule of the common law that lands once swallowed by the sea, if afterwards exposed by its recession, are restored to the former owner if they can be identified. As we have pointed out in Arkansas v. Tennessee, it is a misapplication of this doctrine to treat it as forming an exception to the established rule respecting the effect of erosion, accretion, and avulsion upon the course of a boundary stream. We conclude, therefore, that the court erred in awarding to the state of Tennessee a recovery of any land or damages for cutting and removing timber from any land lying without the limits of the state as defined in our opinion in Arkansas v. Tennessee, supra, being a line drawn along the middle of the main channel of navigation of the Mississippi river (as distinguished from a line midway between the visible and fixed banks of the stream) as it was at the time when the current ceased to flow therein as a result of the avulsion of 1876, and without regard to changes in the banks or channel that had occurred through the natural and gradual processes of erosion and accretion prior to the avulsion. It results that the judgment of the state court must be Reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

364.US.281

179 F. Supp. 9, affirmed.

The motion to substitute Harold Murph and Robert C. Wasson in the place of Francis M. Pickney and James W. Crain as parties appellant is granted. The motion to affirm is granted and the judgment is affirmed. Mr. Justice BLACK and Mr. Justice DOUGLAS are of the opinion probable jurisdiction should be noted.

362.US.525

Petitioner was tried and convicted in a Federal District Court of knowingly transporting a woman in interstate commerce for the purpose of prostitution, in violation of 18 U. S. C. § 2421. At the trial, the woman, who had married petitioner since the date of the'offense, was ordered over her objection and that of petitioner to testify for the prosecution. Held: The ruling was correct and the judgment is affirmed. Pp. 525-531. (a) Though the common-law rule of evidence ordinarily permitting a defendant to exclude the adverse testimony of his or her spouse still applies in the federal courts, there is -an exception which permits the defendant's wife to testify against him when she was the victim of a violation of § 2421. Pp. 526-527. (b) The privilege, accorded by the general rule resides in the witness as well as in the defendant. Pp. 527-529. (c) In view of the purpose of § 2421, a prostituted witness-wife may not protect her husband by declining to testify against him. Pp. 529-530. (d) A different conclusion is not required by,t he fact that the marriage took place after the commission of the offense. Pp. 530-531. 263 F. 2d 304, affirmed.

Petitioner was tried and convicted of knowingly transporting a woman in interstate commerce for the purpose of prostitution, in violation of the White Slave Traffic Act, 18 U.S.C. § 2421, 18 U.S.C.A. § 2421. At the trial, the woman, who had since the date of the offense married the petitioner, was ordered, over her objection and that of the petitioner, to testify on behalf of the prosecution.1 The Court of Appeals, on appeal from a judgment of conviction, affirmed the ruling of the District Court. 263 F.2d 304. As the case presented significant issues concerning the scope and nature of the privilege against adverse spousal testimony, treated last Term in Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125, we granted certiorari. 360 U.S. 908, 79 S.Ct. 1299, 3 L.Ed.2d 1259. We affirm the judgment. First. Our decision in Hawkins established, for the federal courts, the continued validity of the common-law rule of evidence ordinarily permitting a party to exclude the adverse testimony of his or her spouse. However, as that case expressly acknowledged, the common law has long recognized an exception in the case of certain kinds of offenses committed by the party against his spouse. Id., 358 U.S. at page 75, 79 S.Ct. at page 137, citing Stein v. Bowman, 13 Pet. 209, 221, 10 L.Ed. 129. Exploration of the precise breadth of this exception, a matter of some uncertainty, see 8 Wigmore, Evidence (3d ed.), § 2239, can await a case where it is necessary. For present purposes it is enough to note that every Court of Appeals which has considered the specific question now holds that the exception, and not the rule, applies to a Mann Act prosecution, where the defendant's wife was the victim of the offense.2 Such unanimity with respect to a rule of evidence lends weighty credentials to that view. While this Court has never before decided the question, we now unhesitatingly approve the rule followed in five different Circuits. We need not embark upon an extended consideration of the asserted bases for the spousal privilege (see Hawkins, supra, 358 U.S. at pages 77—78, 79 S.Ct. at pages 138—139; Wigmore, op. cit., supra, § 2228(3)) and an appraisal of the applicability of each here, id., § 2239, for it cannot be seriously argued that one who has committed this 'shameless offense against wifehood,' id., at p. 257, should be permitted to prevent his wife from testifying to the crime by invoking an interest founded on the marital relation or the desire of the law to protect it. Petitioner's attempt to prevent his wife from testifying, by invoking an asserted privilege of his own, was properly rejected. Second. The witness-wife, however, did not testify willingly, but objected to being questioned by the prosecution, and gave evidence only upon the ruling of the District Court denying her claimed privilege not to testify. We therefore consider the correctness of that ruling.3 The United States argues that, once having held, as we do, that in such a case as this the petitioner's wife could not be prevented from testifying voluntarily, Hawkins establishes that she may be compelled to testify. For, it is said, that case specifically rejected any distinction between voluntary and compelled testimony. 358 U.S. at page 77, 79 S.Ct. at page 138. This argument fails to take account of the setting of our decision in Hawkins. To say that a witness-spouse may be prevented from testifying voluntarily simply means that the party has a privilege to exclude the testimony;4 when, on the other hand, the spouse may not be compelled to testify against her will, it is the witness who is accorded a privilege. In Hawkins, the Government took the position that the spousal privilege should be that of the witness, and not that of the party, so that while the wife could decline to testify, she could not be prevented from giving evidence if she elected not to claim a privilege which, it was said, belonged to her alone. Brief for the United States, No. 20, O.T.1958, pp. 22 43. In declining to hold that the party had no privilege, we manifestly did not thereby repudiate the privilege of the witness. While the question has not often arisen, it has apparently been generally assumed that the privilege resided in the witness as well as in the party. Hawkins referred to 'a rule which bars the testimony of one spouse against the other unless both consent,' supra, 358 U.S. at page 78, 79 S.Ct. at page 138. (Emphasis supplied.) See Stein v. Bowman, supra, 13 Pet. at page 223 (wife cannot 'by force of authority be compelled to state facts in evidence'); United States v. Mitchell, supra, 137 F.2d at page 1008 ('the better view is that the privilege is that of either spouse who chooses to claim it'); Wigmore, op. cit., supra, § 2241; McCormick, Evidence, § 66, n. 3. In its Hawkins brief, the Government, while calling for the abolition of the party's privilege, urged that the commonlaw development could be explained, and its policies fully vindicated, by recognition of the privilege of the witness. Brief, pp. 22—25, 33, 42—43; see Hawkins, supra, 358 U.S. at pages 77, and concurring opinion, at page 82, 79 S.Ct. at pages 139, 141. At least some of the bases of the party's privilege are in reason applicable to that of the witness. As Wigmore puts it, op. cit., supra, at p. 264: '(W)hile the defendant-husband is entitled to be protected against condemnation through the wife's testimony, the witness-wife is also entitled to be protected against becoming the instrument of that condemnation,—the sentiment in each case being equal in degree and yet different in quality.' In light of these considerations, we decline to accept the view that the privilege is that of the party alone. Third. Neither can we hold that, whenever the privilege is unavailable to the party, it is ipso facto lost to the witness as well. It is a question in each case, or in each category of cases, whether, in light of the reason which has led to a refusal to recognize the party's privilege, the witness should be held compellable. Certainly, we would not be justified in laying down a general rule that both privileges stand or fall together. We turn instead to the particular situation at bar. Where a man has prostituted his own wife, he has committed an offense against both her and the marital relation, and we have today affirmed the exception disabling him from excluding her testimony against him. It is suggested, however, that this exception has no application to the witness-wife when she chooses to remain silent. The exception to the party's privilege, it is said, rests on the necessity of preventing the defendant from sealing his wife's lips by his own unlawful act, see United States v. Mitchell, supra, 137 F.2d at pages 1008—1009; Wigmore, op cit., supra, § 2239, and it is argued that where the wife has chosen not to 'become the instrument' of her husband's downfall, it is her own privilege which is in question, and the reasons for according it to her in the first place are fully applicable. We must view this position in light of the congressional judgment and policy embodied in the Mann Act. 'A primary purpose of the Mann Act was to protect women who were weak from men who were bad.' Denning v. United States, 5 Cir., 247 F. 463, 465. It was in response to shocking revelations of subjugation of women too weak to resist that Congress acted. See H.R.Rep. No. 47, 61st Cong., 2d Sess., pp. 10—11. As the legislative history discloses, the Act reflects the supposition that the women with whom it sought to deal often had no independent will of their own, and embodies, in effect, the view that they must be protected against themselves. Compare 18 U.S.C. § 2422, 18 U.S.C.A. § 2422 (consent of woman immaterial in prosecution under that section). It is not for us to re-examine the basis of that supposition. Applying the legislative judgment underlying the Act, we are led to hold it not an allowable choice for a prostituted witness-wife 'voluntarily' to decide to protect her husband by declining to testify against him. For if a defendant can induce a woman, against her 'will,' to enter a life of prostitution for his benefit—and the Act rests on the view that he can—by the same token it should be considered that he can, at least as easily, persuade one who has already fallen victim to his influence that she must also protect him. To make matters turn upon ad hoc inquiries into the actual state of mind of particular women, thereby encumbering Mann Act trials with a collateral issue of the greatest subtlety, is hardly an acceptable solution. Fourth. What we have already said likewise governs the disposition of the petitioner's reliance on the fact that his marriage took place after the commission of the offense. Again, we deal here only with a Mann Act prosecution, and intimate no view on the applicability of the privilege of either a party or a witness similarly circumstanced in other situations. The legislative assumption of lack of independent will applies as fully here. As the petitioner by his power over the witness could, as we have considered should be assumed, have secured her promise not to testify, so, it should be assumed, could he have induced her to go through a marriage ceremony with him, perhaps 'in contemplation of evading justice by reason of the very rule which is now sought to be invoked.' United States v. Williams, D.C., 55 F.Supp. 375, 380. The ruling of the District Court was correctly upheld by the Court of Appeals.5 Affirmed.

363.US.593

Employees were discharged during the term of a collective bargaining agreement containing a provision for arbitration of disputes, including differences "as to the meaning and application" of the agreement, and a provision for reinstatement with back pay of employees discharged in violation of the agreement. The discharges were arbitrated after the agreement had expired, and the arbitratot found that they were in violation of the agreement and that the agreement required reinstatement with back pay, minus pay for a ten-day suspension and such sums as the employees had received from other employment. Respondent refused to comply with the award, and the District Court directed it to do so. The Court of Appeals held that (a) failure of the award to specify the amounts to be deducted from the back pay rendered the award unenforceable, though that defect could be remedied by requiring the parties to complete the arbitration, (b) 4n award for back pay subsequent to the date of expiration of the collective bargaining agreement could not be enforced, and (c) the requirement for reinstatement of the discharged employees was unenforceable because the collective bargaining agreement had expired. Held: The judgment of the District Court should have been affirmed with a modification requiring the specific amounts due the employees to be definitely determined by arbitration. Pp. 594-599. (a) Federal courts should decline to review the merits of arbitration awards under collective bargaining agreements. Steelworkers v. Warrior & Gulf Navigation Co., ante, p. 574. ' P. 596. (b) The opinion of the arbitrator in this case, as it bears upon the award of back pay beyond the date of the agreement's expiration and reinstatement, is ambiguous; but mere ambiguity in the opinion accompanying an award is not a reason for refusing to enforce the award, even when it permits the inference that the * arbitrator may have exceeded his authority. Pp. 597-598. (c) The question of interpretation of the collective bargaining agreement is a question for the arbitrator, and the courts have.no

Petitioner union and respondent during the period relevant here had a collective bargaining agreement which provided that any differences 'as to the meaning and application' of the agreement should be submitted to arbitration and that the arbitrator's decision 'shall be final and binding on the parties.' Special provisions were included concerning the suspension and discharge of employees. The agreement stated: 'Should it be determined by the Company or by an arbitrator in accordance with the grievance procedure that the employee has been suspended unjustly or discharged in violation of the provisions of this Agreement, the Company shall reinstate the employee and pay full compensation at the employee's regular rate of pay for the time lost.' The agreement also provided: '* * * It is understood and agreed that neither party will institute civil suits or legal proceedings against the other for alleged violation of any of the provisions of this labor contract; instead all disputes will be settled in the manner outlined in this Article III—Adjustment of Grievances.' A group of employees left their jobs in protest against the discharge of one employee. A union official advised them at once to return to work. An official of respondent at their request gave them permission and then rescinded it. The next day they were told they did not have a job any more 'until this thing was settled one way or the other.' A grievance was filed; and when respondent finally refused to arbitrate, this suit was brought for specific enforcement of the arbitration provisions of the agreement. The District Court ordered arbitration. The arbitrator found that the discharge of the men was not justified, though their conduct, he said, was improper. In his view the facts warranted at most a suspension of the men for 10 days each. After their discharge and before the arbitration award the collective bargaining agreement had expired. The union, however, continued to represent the workers at the plant. The arbitrator rejected the contention that expiration of the agreement barred reinstatement of the employees. He held that the provision of the agreement above quoted imposed an unconditional obligation on the employer. He awarded reinstatement with back pay, minus pay for a 10-day suspension and such sums as these employees received from other employment. Respondent refused to comply with the award. Petitioner moved the District Court for enforcement. The District Court directed respondent to comply. 168 F.Supp. 308. The Court of Appeals, while agreeing that the District Court had jurisdiction to enforce an arbitration award under a collective bargaining agreement,1 held that the failure of the award to specify the amounts to be deducted from the back pay rendered the award unenforceable. That defect, it agreed, could be remedied by requiring the parties to complete the arbitration. It went on to hold, however, that an award for back pay subsequent to the date of termination of the collective bargaining agreement could not be enforced. It also held that the requirement for reinstatement of the discharged employees was likewise unenforceable because the collective bargaining agreement had expired. 269 F.2d 327. We granted certiorari. 361 U.S. 929, 80 S.Ct. 371. The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards. As we stated in united Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, the arbitrators under these collective agreements are indispensable agencies in a continuous collective bargaining process. They sit to settle disputes at the plant level disputes that require for their solution knowledge of the custom and practices of a particular factory or of a particular industry as reflected in particular agreements.2 When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency. Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. The opinion of the arbitrator in this case, as it bears upon the award of back pay beyond the date of the agreement's expiration and reinstatement, is ambiguous. It may be read as based solely upon the arbitrator's view of the requirements of enacted legislation, which would mean that he exceeded the scope of the submission. Or it may be read as embodying a construction of the agreement itself, perhaps with the arbitrator looking to 'the law' for help in determining the sense of the agreement. A mere ambiguity in the opinion accompanying an award, which permits the inference that the arbitrator may have exceeded his authority, is not a reason for refusing to enforce the award. Arbitrators have no obligation to the court to give their reasons for an award. To require opinions3 free of ambiguity may lead arbitrators to play it safe by writing no supporting opinions. This would be undesirable for a well-reasoned opinion tends to engender confidence in the integrity of the process and aids in clarifying the underlying agreement. Moreover, we see no reason to assume that this arbitrator has abused the trust the parties confided in him and has not stayed within the areas marked out for his consideration. It is not apparent that he went beyond the submission. The Court of Appeals' opinion refusing to enforce the reinstatement and partial back pay portions of the award was not based upon any finding that the arbitrator did not premise his award on his construction of the contract. It merely disagreed with the arbitrator's construction of it. The collective bargaining agreement could have provided that if any of the employees were wrongfully discharged, the remedy would be reinstatement and back pay up to the date they were returned to work. Respondent's major argument seems to be that by applying correct principles of law to the interpretation of the collective bargaining agreement it can be determined that the agreement did not so provide, and that therefore the arbitrator's decision was not based upon the contract. The acceptance of this view would require courts, even under the standard arbitration clause, to review the merits of every construction of the contract. This plenary review by a court of the merits would make meaningless the provisions that the arbitrator's decision is final, for in reality it would almost never be final. This underlines the fundamental error which we have alluded to in United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343. As we there emphasized, the question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his. We agree with the Court of Appeals that the judgment of the District Court should be modified so that the amounts due the employees may be definitely determined by arbitration. In all other respects we think the judgment of the District Court should be affirmed. Accordingly, we reverse the judgment of the Court of Appeals, except for that modification, and remand the case to the District Court for proceedings in conformity with this opinion. It is so ordered. Judgment of Court of Appeals, except for its modification of District Court's judgment, reversed and case remanded to District Court with directions. Mr. Justice FRANKFURTER concurs in the result. Mr. Justice BLACK took no part in the consideration or decision of this case. For opinion of Mr. Justice BRENNAN, joined by Mr. Justice FRANKFURTER and Mr. Justice HARLAN, see 363 U.S. 569, 80 S.Ct. 1363.

361.US.304

Under § 272 (a) (1) of the Internal Revenue Code of 1939, as amended, failure of the Commissioner of Internal Revenue to send to a taxpayer a 90-day notice of a deficiency in his income tax return does not bar an action by the United States to collect such deficiency and statutory interest thereon when the taxpayer had executed and filed, under § 272 (d), a waiver of the restrictions of § 272 (a) on the assessment and collection of deficiencies, since § 272 (d) authorizes the filing of such a waiver "at any time" and not only after the issuance of a 90-day notice of a deficiency. Pp. 304-313. 263 F. 2d 382, reversed.

The United States brought this action against the respondent taxpayer for the collection of a deficiency in taxes for the year 1946, and statutory interest thereon. The respondent defended on the ground that the action could not be maintained because the Commissioner of Internal Revenue had never issued to the taxpayer a notice of deficiency (commonly known as a '90-day letter') for the amount in question. This defense was based on § 272(a)(1) of the Internal Revenue Code of 1939, 53 Stat. 82, as amended, 26 U.S.C.A. § 272(a)(1), providing in pertinent part as follows: 'If in the case of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within ninety days after such notice is mailed * * * the taxpayer may file a petition with The Tax Court of the United States for a redetermination of the deficiency. No assessment of a deficiency in respect of the tax imposed by this chapter and no distraint or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such ninety-day period, nor, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final. * * *' The Government relied on the admitted fact that respondent had executed a Treasury Department form waiving the restrictions on assessment and collection of the deficiency sued for,1 and on § 272(d) of the 1939 Code, 53 Stat. 83, said to authorize such a waiver, which provides: 'The taxpayer shall at any time have the right, by a signed notice in writing filed with the Commissioner, to waive the restrictions provided in subsection (a) of this section on the assessment and collection of the whole or any part of the deficiency.' The District Court held that the waiver was not effective because a 90-day letter had not been issued, and that § 272(a) therefore barred the action. The Court of Appeals affirmed, 263 F.2d 382, and in view of contrary decisions in the First and Sixth Circuits,2 we granted certiorari. 359 U.S. 988, 79 S.Ct. 1120, 3 L.Ed.2d 977. For reasons hereafter stated we think the court below was in error. We start with the language of § 272(d). By its terms, the right of waiver is to be available 'at any time,' and is applicable to 'the restrictions' contained in § 272(a). Those restrictions include the prohibitions on assessment and collection of a deficiency prior to the mailing of a 90-day letter, no less than the same prohibitions relating to the period following the issuance of such a letter during which a petition for a redetermination of a deficiency may be filed or is awaiting decision of the Tax Court. Respondent seeks to support the view that these provisions should be read as applying only to the period following the issuance of the 90-day letter by noting that § 272(d) is limited to waivers of restrictions on the assessment and collection of 'the deficiency,' and asserting that 'the deficiency' does not come into existence, as it were, until a 90-day letter has been mailed. This reading of the statute is said to follow from the first sentence of § 272(a)(1): 'If in the case of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail.' A deficiency, it is argued, is not 'determined' until the statutory notice has been issued. We cannot accept any such fine-spun refinements. The plain sense of this provision contemplates, first, a determination, and then the sending of a notice. No persuasive reason appears for artificially engrafting upon the statutory terms excessively formal conditions.3 Nor do we find any force in the argument that because a determination and assessment of additional deficiencies may follow upon one already made, 'the deficiency' referred to in § 272(d) must be taken as limited to one previously determined. Section 272(d) does not on its face therefore support the view that a waiver of the restrictions on assessment and collection of a tax is effective only if filed after the issuance of a 90-day letter. We think a similar conclusion follows from an examination of the legislative history of the relevant statutory enactments. In creating the Tax Court (originally known as the Board of Tax Appeals), Congress provided a forum in which taxpayers could obtain an 'independent review of the Commissioner of Internal Revenue's determination of additional income * * * taxes by the Board in advance of their paying the tax found by the Commissioner to be due.' Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 721, 49 S.Ct. 499, 501, 73 L.Ed. 918. Section 274(a) of the Revenue Act of 1924, 43 Stat. 297, and the Revenue Act of 1926, § 274(a), 44 Stat. 55 (the predecessors of § 272(a) of the 1939 Code), disabled the Commissioner from assessing or collecting any deficiency until a notice of such deficiency had been issued, and for 60 (later amended to 90) days thereafter, or, in the event that a taxpayer took an appeal to the Board of tax Appeals within such period, until that body had rendered a final decision. However, even though a taxpayer did not wish to contest the Commissioner's determination of a deficiency before the Board, interest on such deficiency continued to accrue from the original due date of the tax until the time for seeking Board review had run, such interest being thereafter collectible upon assessment of the tax. Revenue Act of 1924, § 274(f), 43 Stat. 297. To meet this situation, the 1926 Revenue Act added, in § 274(d), 44 Stat. 56, the waiver provisions re-enacted as § 272(d) of the 1939 Code. At the same time, Congress provided, in § 274(j) (the predecessor of § 292 of the 1939 Code, 26 U.S.C.A. § 292), that the filing of a waiver as provided for by subsection (d) should stop the running of interest on the deficiency upon the expiration of 30 days from such filing or upon the assessment of such deficiency, whichever is the earlier.4 The relation between the two sections of the 1926 Act, and between the comparable sections of the 1939 Code as well, is clear: (1) a waiver is provided for in § 274(d) (1939 Code, § 272(d)) '(i)n order to permit the taxpayer to pay the tax and stop the running of interest,' S.Rep.No. 52, 69th Cong., 1st Sess., p. 27; (2) the Commissioner is thereupon permitted to assess and collect the tax free of the restrictions contained in § 274(a) (1939 Code, § 272(a)); and (3) the taxpayer is protected against the continued running of interest, due to delay in assessment, by the 30-day cutoff provided for by § 274(j) (1939 Code, § 292). We can find in this history and the purpose it discloses no warrant for inferring that it was intended that a taxpayer should be without power to stop the running of interest against him until a formal notice of deficiency has been issued.5 Yet, as will appear, such is the necessary effect of respondent's position. Major reliance is placed on a passage in the Senate Committee Report on the 1926 Act: 'In order to permit the taxpayer to pay the tax and stop the running of interest, the committee recommends in section 274(d) of the bill that the taxpayer at any time be permitted to waive in writing the restrictions on the commissioner against assessing and collecting the tax, but without taking away the right of the taxpayer to take the case to the board.' S.Rep.No. 52, 69th Cong., 1st Sess., p. 27. Respondent claims that the last clause of this passage should be taken as indicating that § 274(d), reenacted as § 272(d) of the 1939 Code, does not sanction waivers prior to the issuance of a 90-day letter, because it is that event which brought the Board's, and now brings the Tax Court's, jurisdiction to review deficiencies into play. To read the passage—the obscurity of which has previously been judicially noted6—so as to apply the clause in question to waivers executed before the issuance of a notice of deficiency would require a holding that, despite a waiver, the issuance by the Commissioner of a notice of deficiency remains a prerequisite to assessment and collection. But since, as the taxpayer acknowledges, it is inconceivable that a waiver would be effective to stop the running of interest, and at the same time be ineffective to permit the Government immediately to assess and collect the deficiency to which the waiver referred, the necessary result of respondent's reading of the Senate Committee Report would be to infer that a taxpayer was to be without power to stop the running of interest until a formal notice of deficiency had issued, often involving not inconsiderable periods of delay. Such an inference does not jibe either with the 'right' the statute gives a taxpayer to file a waiver 'at any time,' or with the purposes of the waiver provisions. Moreover, had Congress desired to require the issuance of a notice of deficiency prior to assessment and collection in all circumstances, it more likely would have accomplished that result directly, as it did in the instance of jeopardy assessments. See Revenue Act of 1926, § 279(b), 44 Stat. 59 (now § 6861(b) of the 1954 Code, 26 U.S.C.A. § 6861(b)). Nor do we think that subsequent legislative developments change the view we have of the statute. Several years after the enactment of the 1926 statute, the Court of Appeals for the Ninth Circuit expressed views similar to those which formed the basis for the decision below. Mutual Lumber Co. v. Poe, 66 F.2d 904; McCarthy Co. v. Commissioner, 80 F.2d 618. In 1938, Congress considered various suggested revisions in the revenue statutes, and a House of Representatives Subcommittee recommended an express repudiation of those decisions. This recommendation was not adopted, and from the failure to act, respondent would have us infer an acceptance by Congress of the Ninth Circuit's position. Such non-action by Congress affords the most dubious foundation for drawing positive inferences. Moreover, the Subcommittee's discussion, which is set out in full in the margin,7 does not support the meaning sought to be derived from it. While certain isolated passages can be so read, taken as a whole what the Subcommittee said appears to us to espouse the position that the Commissioner's long-standing interpretation of the statute was correct, and that clarification was called for only because of the doubts caused by the Ninth Circuit's decisions, which this Court had declined to review. Mutual Lumber Co. v. Poe, 290 U.S. 706, 54 S.Ct. 373, 78 L.Ed. 606; McCarthy v. Commissioner, 298 U.S. 655, 56 S.Ct. 675, 80 L.Ed. 1381. Whether Congress thought the proposal unwise, as respondent argues, or unnecessary, we cannot tell; accordingly, no inference can properly be drawn from the failure of the Congress to act. Finally, we are similarly unable to find support for respondent's position in the history of the 1954 Code. While the recodification settled (for taxable years covered by that Act) the question before us by expressly authorizing a waiver prior to the issuance of a 90-day letter,8 the reports contain no clear statement as to Congress' view of then existing law. What light there is, however, tends to favor the Government's contentions. The new statute amended another subsection of the section containing the waiver provision, and the reports refer to that amendment as the 'only material change from existing law.'9 Respondent argues that the change regarding waiver was probably thought not 'material.' Inferences from legislative history cannot rest on so slender a reed. Moreover, the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one. See United States v. United Mine Workers, 330 U.S. 258, 282, 67 S.Ct. 677, 690, 91 L.Ed. 884. The legislative history, then, does not call for a result contrary to that indicated by the language of the Act. We hold that a waiver given pursuant to § 272(d) of the Internal Revenue Code of 1939 or its predecessor sections, although executed prior to the issuance of a notice of deficiency, is a fully effective instrument. Reversed and remanded.

362.US.1

Petitioners, when employees of a California County, were subpoenaed by and appeared before a Subcommittee 'f the Homs.c •Un-American Activiti.5 Committee; but, in violation of specific orders of the County Board of Supervisors and the requirements of § 1028.1 of the Government Code of California, refused to answer certain questions concerning subversion. The County discharged them on grounds of insubordination and violation of § 1028.1. Nclson, a permanent employee, was given a Civil Service Cornmnission hearing, which resulted in confirmation of his discharge. Globe, a temporary employee, was denied a hearing, since he was not entitled to it tinder the applicable rules. Both sued for reinstatement, contending that § 1028.1 and their discharges violated the Due Process Clause of the Fourteenth Amendment: but their discharges were affirmed by a California State Court. Held: 1. In Nelson's case, the judgment is affirmed by an equally divided Court. P. 4. 2. Globe's discharge did not violate the Due Ptocess Clause of the Fourteenth Amendment, and the judgment in his case is affirmed. Pp. 4-9. (a) Globe's discharge was not based on his invocation before the Subcommittee of his rights under the First and Fifth Amendments; it was based solely on insubordination and violation of § 1028.1. P. 6. (b) Under California law, Globe had no vested right to county employment and was subject to summary discharge. P. 6. (c) Globe's discharge was not, arbitrary and unreasonable. Slochower v. Board of Education, 350 U. S. 551, distinguished. Beilan V. Board of Education, 357 U. S. 399, and Lerner v. Casey. 357 U. S.4 68, followed. Pp. 6-8. (d) The remand on procedural grounds required in Vitarelli v. Seaton, 359 U. S.5 35, has no bearing on this'case. Pp. 8-9. 163 Cal. App. 2d 607, 329 P. 2d 978, affitmed by an equally divided Court. 163 Cal. App. 2d 595, 329 P. 2d .971, affirmed.

Petitioners, when employees of the County of Los Angeles, California, were subpoenaed by and appeared before a Subcommittee of the House Un-American Activities Committee, but refused to answer certain questions concerning subversion. Previously, each petitioner had been ordered by the County Board of Supervisors to answer any questions asked by the Subcommittee relating to his subversive activity, and § 1028.1 of the Government Code of the State of California1 made it the duty of any public employee to give testimony relating to such activity on pain of discharge 'in the manner provided by law.' Thereafter the County discharged petitioners on the ground of insubordination and violation of § 1028.1 of the Code. Nelson, a permanent social worker employed by the County's Department of Charities, was, upon his request, given a Civil Service Commission hearing which resulted in a confirmation of his discharge. Globe was a temporary employee of the same department and was denied a hearing on his discharge on the ground that, as such, he was not entitled to a hearing under the Civil Service Rules adopted pursuant to the County Charter. Petitioners then filed these petitions for mandates seeking reinstatement, contending that the California statute and their discharges violated the Due Process Clause of the Fourteenth Amendment. Nelson's discharge was affirmed by the District Court of Appeal, 163 Cal.App.2d 607, 329 P.2d 978, and Globe's summary dismissal was likewise affirmed, 163 Cal.App.2d 595, 329 P.2d 971. A petition for review in each of the cases was denied without opinion by the Supreme Court of California, three judges dissenting. 163 Cal.App.2d 614, 329 P.2d 983; 163 Cal.App.2d 606, 329 P.2d 978. We granted certiorari. 360 U.S. 928, 79 S.Ct. 1455, 3 L.Ed.2d 1543. The judgment in Nelson's case is affirmed by an equally divided Court and will not be discussed. We conclude that Globe's dismissal was valid. On April 6, 1956, Globe was served with a subpoena to appear before the Subcommittee at Los Angeles. On the same date, he was served with a copy of an order of the County Board of Supervisors, originally issued February 19, 1952, concerning appearances before the Subcommittee. This order provided, among other things, that it was the duty of any employee to appear before the Subcommittee when so ordered or subpoenaed, and to answer questions concerning subversion. The order specifically stated that any 'employee who disobeys the declaration of this duty and order will be considered to have been insubordinate * * * and that such insubordination shall constitute grounds for discharge * * *.'2 At the appointed time, Globe appeared before the Subcommittee and was interrogated by its counsel concerning his familiarity with the John Reid Club. He claimed that this was a matter which was entirely his 'own business,' and, upon being pressed for an answer, he stated that the question was 'completely out of line as far as my rights as a citizen are concerned, (and) I refuse to answer this question under the First and Fifth Amendments of the Constitution of the United States.' On the same grounds he refused to answer further questions concerning the Club, including one relating to his own membership. Upon being asked if he had observed any Communist activities on the part of members of the Club, Globe refused to answer, and suggested to committee counsel 'that you get one of your trained seals up here and ask them.' He refused to testify whether he was 'a member of the Communist Party now' 'on the same grounds' and 'as previously stated for previous reasons.' On May 2, by letter, Globe was discharged, 'without further notice,' on 'the grounds that (he had) been guilty of insubordination and of violation of Section 1028.1 of the Government Code of the State of California * * *.' The letter recited the fact that Globe had been served with a copy of the Board order relating to his 'duty to testify as a County employee * * * before said committee' and that, although appearing as directed, he had refused to answer the question, 'Are you a member of the Communist Party now?' Thereafter Globe requested a hearing before the Los Angeles County Civil Service Commission, but it found that, as a temporary employee, he was not entitled to a hearing under the Civil Service Rules.3 This the petitioner does not dispute. However, Globe contends that, despite his temporary status, his summary discharge was arbitrary and unreasonable and, therefore, violative of due process. He reasons that his discharge was based on his invocation before the Subcommittee of his rights under the First and Fifth Amendments. But the record does not support even an inference in this regard, and both the order and the statute upon which the discharge was based avoided it. In fact, California's court held to the contrary, saying, 'At no time has the cause of petitioner's discharge been alleged to be anything but insubordination and a violation of section 1028.1, nor indeed under the record before us could it be.' 163 Cal.App.2d at page 599, 329 P.2d at page 974. Moreover, this finding is buttressed by the language of the order and of California's statute. Both require the employee to answer any interrogation in the field outlined. Failure to answer 'on any ground whatsoever any such questions' renders the employee 'guilty of insubordination' and requires that he 'be suspended and dismissed from his employment in the manner provided by law.' California law in this regard, as declared by its court, is that Globe 'has no vested right to county employment and may therefore be discharged summarily.' We take this interpretation of California law as binding upon us. We, therefore, reach Globe's contention that his summary discharge was nevertheless arbitrary and unreasonable. In this regard he places his reliance on Slochower v. Board of Higher Education, 1956, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692. However, the New York statute under which Slochower was discharged specifically operated '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.' Id., 350 U.S. at page 558, 76 S.Ct. at page 641. This 'built-in' inference of guilt, derived solely from a Fifth Amendment claim, we held to be arbitrary and unreasonable. But the test here, rather than being the invocation of any constitutional privilege, is the failure of the employee to answer. California has not predicated discharge on any 'built-in' inference of guilt in its statute, but solely on employee insubordination for failure to give information which we have held that the State has a legitimate interest in securing. See Garner v. Board of Public Works of City of Los Angeles, 1951, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Adler v. Board of Education, 1952, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. Moreover it must be remembered that here unlike Slochower—the Board had specifically ordered its employees to appear and answer. We conclude that the case is controlled by Beilan v. Board of Public Education, School Dist. of Philadelphia, 1958, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414, and Lerner v. Casey, 1958, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423. It is not determinative that the interrogation here was by a federal body rather than a state one, as it was in those cases. Globe had been ordered by his employer as well as by California's law to appear and answer questions before the federal Subcommittee. These mandates made no reference to Fifth Amendment privileges. If Globe had simply refused, without more, to answer the Subcommittee's questions, we think that under the principles of Beilan and Lerner California could certainly have discharged him. The fact that he chose to place his refusal on a Fifth Amendment claim puts the matter in no different posture, for as in Lerner, supra, 357 U.S. at page 477, 78 S.Ct. at page 1316, California did not employ that claim as the basis for drawing an inference of guilt. Nor do we think that this discharge is vitiated by any deterrent effect that California's law might have had on Globe's exercise of his federal claim of privilege. The State may nevertheless legitimately predicate discharge on refusal to give information touching on the field of security. See Garner and Adler, supra. Likewise, we cannot say as a matter of due process that the State's choice of securing such information by means of testimony before a federal body4 can be denied. Finally, we do not believe that California's grounds for discharge constituted an arbitrary classification. See Lerner, 357 U.S. at page 478, 78 S.Ct. at page 1316. We conclude that the order of the County Board was not invalid under the Due Process Clause of the Fourteenth Amendment. Nor do we believe that the remand on procedural grounds required in Vitarelli v. Seation, 1959, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012, has any bearing here. First, we did not reach the constitutional issues raised in that case. Next, Vitarelli was a Federal Department of Interior employee who 'could have been summarily discharged by the Secretary at any time without the giving of a reason.' Id., 359 U.S. at page 539, 79 S.Ct. at page 972. The Court held, however, that, since Vitarelli was dismissed on the grounds of national security rather than by summary discharge, and his dismissal 'fell substantially short of the requirements of the applicable departmental regulations,' it was 'illegal and of no effect.' Id., 359 U.S. at page 545, 79 S.Ct. at page 975. But petitioner here raises no such point, and clearly asserts that 'whether or not petitioner Globe was accorded a hearing is not the issue here.'5 He bases his whole case on the claim 'that due process affords petitioner Globe protection against the State's depriving him of employment on this arbitrary ground' of his refusal on federal constitutional grounds to answer questions of the Subcommittee. Having found that on the record here the discharge for 'insubordination' was not arbitrary, we need go no further. We do not pass upon petitioner's contention as to the Privileges and Immunities Clause of the Fourteenth Amendment, since it was neither raised in nor considered by the California courts. The judgments are affirmed. Affirmed. Mr. Chief Justice WARREN took no part in the consideration or decision of this case.

362.US.310

Employees of a large construction contractor engaged in constructing a dam solely to increase the reservoir capacity of the local water system of a city and its vicinity, all within a single State, are not "engaged in commerce or in the production of, goods for commerce" or in "any closely related process or occupation directly essential to the production thereof," within the meaning of §§ 3 (j) and 7 (a) of the Fair Labor Standards Act, as amended in 1949, and, therefore, they are not covered by the overtime requirements of the Act, even though a substantial part of the water will be used by producers of goods for interstate commerce and an insignificant part by interstate instrumentalities. Pp. 310-321. 262 F. 2d 546, affirmed.

Once again we are presented with a nice question concerning the scope of the Fair Labor Standards Act, as amended. 63 Stat. 912, 29 U.S.C. § 207, 29 U.S.C.A. § 207. The respondent, a construction contractor, was engaged by the Lower Nueces River Water Supply District (hereafter to be called the District) to construct a dam and impounding facilities on the lower Nueces River in Texas at a cost of about $6,000,000, in order to increase roughly tenfold the District's then-existing reservoir capacity. The dam is not a multi-purpose project; its sole purpose is to create an expanded reservoir for the District. The water impounded by the District is supplied to consumers locally, within the State of Texas. The site of the new dam was chosen 1,400 feet downstream from the old, with the expectation that upon completion of the new construction the old dam would be inundated and thus replaced by the greatly expanded reservoir. In the interim until completion, the old facilities could serve to assure a continuing water supply. The District, though for some purposes an independent governmental agency under Texas law, may here be dealt with simply as the water supply system of the included City of Corpus Christi. Its contract with the City requires it to supply the City with the entire water output; and the City in turn agrees to operate and maintain the completed dam and impounding facilities and to supply water to consumers within the District, but outside city limits. It is conceded that between 40% and 50% of all water consumption from the system is accounted for by industrial (as distinguished from residential, commercial, hospital, municipal and other) users, most of whom produce goods for commerce, and that water is essential to their operations. Nor is it contested that an unspecified amount of the water supplied by the District is consumed by facilities and instrumentalities of commerce. It is agreed that as to the employees here involved—those actually engaged in construction work on the dam—the respondent failed to comply with the requirements of § 7 of the Act, if it is applicable.1 On the basis of its applicability the Secretary of Labor sought an injunction in the United States District Court for the Southern District of Texas. That court granted the injunction, on two grounds of coverage: (1) since water from the system is supplied to facilities and instrumentalities of commerce, those engaged in building the dam are engaged in the production of goods—water—for commerce; and (2) since the water supplied is essential to industries in Corpus Christi producing goods for commerce, construction of the dam is an occupation 'closely related' and 'directly essential' to the production of goods for commerce. While the District Court conceded 'that Congress intended to narrow the scope of coverage' by the 1949 amendment of the statutory definition of 'produced' in § 3(j), 63 Stat. 911, 29 U.S.C.A. § 203(j),2 it concluded that this employment remained within the coverage of the Act. On appeal the Court of Appeals for the Fifth Circuit reversed. 262 F.2d 546, 550. It disposed of the first ground of the District Court's decision by holding that the building of a dam could not itself constitute the production of goods for commerce, whatever the use to which the impounded water might be put. In disposing of the second, it invoked a rule that 'those engaged in building a plant to be used for the manufacturing of goods do not even come within * * * the * * * statutory definiton * * *.' It concluded that under such a rule there could be no coverage of employees engaged in construction of a facility which was not to engage in, but merely to support, the manufacture of goods for commerce. It concluded further that the 'remoteness' of these jobs from production justified their exclusion from coverage. Both conclusions reflected its general view that 'the amendment of 1949 made even more restrictive the definition of production of goods' than it was under the Act of 1938, when it substituted the words 'directly essential' for the word 'necessary,' and added the requirement that the employment be 'closely related' to production. We brought the case here, 361 U.S. 807, 80 S.Ct. 52, 4 L.Ed.2d 57, because of an asserted conflict between circuits. See Chambers Construction Co. v. Mitchell, 8 Cir., 233 F.2d 717, and Mitchell v. Chambers Construction Co., 10 Cir., 214 F.2d 515. The court below, in applying its rule excluding 'construction,' relied on our per curiam decision in Murphey v. Reed, 335 U.S. 865, 69 S.Ct. 105, 93 L.Ed. 410, and distinguished the more detailed decision in Mitchell v. C. W. Vollmer & Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196, which expressly rejected the 'new construction' rule and held construction of a new lock on the Gulf Intracoastal Waterway to be covered employment. It did so by holding that Vollmer concerned only coverage under the 'in commerce' provision of the Act. The Vollmer decision cannot be so confined. It rejected an inflexible 'new construction' rule, which had developed in cases under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., see 349 U.S. at pages 429, 431—432, 75 S.Ct. at pages 861, 862—863, as inconsistent with the more pragmatic test of coverage under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. As early as Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, we recognized that the penetrating and elusive duty which this Act casts upon the courts to define in particular cases the less-than-constitutional reach of its scope, cannot be adequately discharged by talismanic or abstract tests, embodied in tags or formulas. No exclusion of construction work from coverage can be derived from the per curiam disposition of Murphey v. Reed, supra. There, as here, whether construction work is covered depends upon all the circumstances of the relation of the particular activity to 'commerce' in the statutory sense and setting, the question to which we now turn. By confining the Act to employment 'in commerce or in the production of goods for commerce,' Congress has impliedly left to the States a domain for regulation. For want of a provision for an administrative determination, by an agency like the National Labor Relations Board, the primary responsibility has been vested in courts to apply, and so to give content to, the guiding yet undefined and imprecise phrases by which Congress has designated the boundaries of that domain. Before 1949 the boundary of 'production' coverage was indicated by the statutory requirement that to be included an activity not 'in' production must be 'necessary' to it. 52 Stat. 1061. The interaction and interdependence of the processes and functions of the industrial society within which these definitions must be applied, could easily lead courts to find few activities that were discernibly related to production not to be 'necessary' to it, in a logical sense of that requirement. The statute, as illuminated by its history, see Kirschbaum Co. v. Walling, supra, 316 U.S. at page 522, 62 S.Ct. at page 1119, demanded that such merely logical deduction be eschewed. Courts were to be on the alert 'not to absorb by adjudication essentially local activities that Congress did not see fit to take over by legislation.' 10 East 40th St. Bldg. v. Callus, 325 U.S. 578, 582—583, 65 S.Ct. 1227, 1229, 89 L.Ed. 1806. In Kirschbaum Co. v. Walling, supra (316 U.S. 517, 62 S.Ct. 1121), we added what was deemed a compelled gloss to suggest the limitations of 'necessary.' We found that the jobs of building-maintenance employees, ranging in responsibility from electrician to porter, of a loft building locally owned but tenanted by production facilities of producers for commerce, had 'such a close and immediate tie with the process of production for commerce, and (were) therefore so much an essential part of it,' that the employees' occupations were 'necessary' to production. In Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, precisely the same formulation expressed our conclusion that maintenance employees of a producer-owned office building which was tenanted in part by the producer's central offices, but not by any production facilities, were also within the Act's coverage. In 10 East 40th St. Bldg. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 1229, 89 L.Ed. 1806, however, maintenance employees of an office building were held not to be covered. Although the building contained offices of some producers, it was locally owned, held out for general tenancy, and in fact tenanted by a miscellany of tenants. Regardful of the governing principle that coverage turns upon the nature of the employees' duties, and not upon the nature, local or interstate, of the employer's general business, we held the case distinguishable from Borden and Kirschbaum because the employment, since part of an enterprise which 'spontaneously satisfies the common understanding of what is local business,' was itself sufficiently different, despite identical employee duties, from prior cases to justify regarding it as separate from the 'necessary parts of a commercial process' which are within the Act. These decisions and distinctions were not exercises in lexicography. No niceties in phrasing or formula of words could do service for judgment, could dispense with painstaking appraisal of all the variant elements in the different situations presented by successive cases in light of the purpose of Congress to limit coverage short of the exercise by it of its full power under the Commerce Clause. While attempted formulas of the relationship to production required for coverage cannot furnish automatic or spontaneous answers to specific problems of application as they arise in their protean diversity, general principles of the Act's scope afford direction of inquiry by defining the broad bounds within which decision must move. In Kirschbaum Co. v. Walling, supra, we found that limits on coverage cannot be understood merely in terms of the social purposes of the Act, in light of which any limitations must appear inconsistent. For the Act also manifests the competing concern of Congress to avoid undue displacement of state regulation of activities of a dominantly local character. Accommodation of these interests was sought by the device of confinement of coverage to employment in activities of traditionally national concern. The focus of coverage became 'commerce,' not in the broadest constitutional sense, but in the limited sense of § 3(b) of the statute: 'trade, commerce, transportation, transmission, or communication among the several States * * *.' Employment 'in' such activities is least affected by local interests. A step removed from employment 'in commerce' is employment 'in' production which is 'for' commerce. Under this clause we have sustained coverage whether the product is to be consumed primarily by commerce in the statutory sense, by its 'facilities and instrumentalities,' see Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745, or, as in the case of the products of the industrial consumers of water here, to move in it. Further removed from 'commerce' is employment not 'in' production 'for' commerce but in an activity which is only 'related' to such production. In applying this provision, we have necessarily borne in mind that it is furthest removed in the scheme of the statute from the hub of the national interest in 'commerce' upon which a limited displacement of state power is predicated. The amendment of § 3(j) in 1949 did not alter the basic statutory scheme of coverage, but did reinforce the requirement that in applying the last clause of the section its position at the periphery of coverage be taken into account as a relevant factor in the determination. In revising coverage Congress turned only to the last clause of the section, which it evidently continued to regard as marking the outer limits of applicability. The amendment substantially adopts the gloss of Kirschbaum to indicate the scope of coverage of activities only 'related' to production. But examination of its history discloses that in adopting that gloss the purpose of Congress was not simply to approve everything done here and in the lower courts in what purported to be specific applications of that inevitably elusive formulation. While the approach of Kirschbaum was confirmed, the change manifests the view of Congress that on occasion courts, including this Court, had found activities to be covered, which the law-defining body deemed too remote from commerce or too incidental to it. The House, overriding the contrary action of its Labor Committee which had left § 3(j) unchanged, see H.R. 5856, as reported, and H.R.Rep. No. 267, 81st Cong., 1st Sess., 1949, adopted an amendment proposed by Committee member Lucas from the floor (95 Cong.Rec. 11000), which did amend § 3(j). Representative Lucas made it plain that it was his purpose to constrict coverage. 95 Cong.Rev. 11001. As passed by the House, § 3(j) was identical with the present Act except that for 'directly essential' the House version used 'indispensable.' The Senate substituted its own bill, S. 653, for the House draft, and its version left § 3(j) unchanged. The resulting conference adopted the House bill insofar as it amended § 3(j), with only the change already noted. While the reports presented to the House and Senate by their repective conferees manifest some disagreement as to degree,3 it is apparent that some restraint on coverage was intended by both. In the House, for example, Kirschbaum was approved and our decision in Martino v. Michigan Window Cleaning Co., 327 U.S. 173, 66 S.Ct. 379, 90 L.Ed. 603, was disapproved (H.R.Conf.Rep. No. 1453, 81st Cong., 1st Sess., p. 15); while the Senate conferees, with different emphasis, noted only that the standard applied in 'most' of our decisions was adopted. 95 Cong.Rec. 14874. Both reports use as illustrations of coverage which remains unchanged by the amendment, employment in utilities supplying water to the producers of goods for commerce. H.R.Conf.Rep. No. 1453, p. 14; 95 Cong.Rec. 14875. But no illustration in either statement deals with construction of a dam designed solely for use as an impounding facility for a local water distribution system. The House Report does expressly state that the case of E. C. Schroeder Co. v. Clifton, 10 Cir., 153 F.2d 385, is an instance of an activity not within the amended Act. But the activity there involved was one in support of construction of a dam; it was not the construction of the dam itself. Thus, even were we to accept the illustrations in the House Report as authoritative, we would not be relieved of the duty of deciding where between these boundaries of approval and disapproval the present facts lie. To do so requires that we once again apply the formulation set down in Kirschbaum, which, in light of the 1949 amendment, we must do with renewed awareness of the purpose of Congress to avoid intrusion into withdrawn local activites. To establish coverage the Secretary relies upon Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, 93 L.Ed. 1672, which, he asserts, establishes that employees are covered who are engaged not merely in operation of, but in maintenance and repair of, the facilities of a company distributing water for consumption by producers for commerce.4 He urges that once it is recognized—as the court below failed to do—that construction work is not excluded from the Act's coverage, this concededly essential expansion of facilities is not distinguishable from maintenance and repair in any characteristic made relevant by the standard of 'closely related' and 'directly essential' to production. We do not agree. Assuming arguendo that maintenance and repair of the completed dam would be covered employment, it does not follow that construction of the dam therefore is. The activities are undoubtedly equally 'directly essential' to the producers of goods who depend upon the water supply; but they are not equally remote from production or from the 'commerce' for which production is intended. The distinction between maintenance and repair on the one hand, and replacement or new construction on the other, may often be difficult to delineate but is a practical distinction to which law must not be indifferent. Its relevance here, where our purpose must be to isolate primarily local activities from the flow of commerce to which they invariably relate, lies in the close relation of maintenance and repair to operation, as opposed to replacement or new construction which is a separate undertaking necessarily prior to operation and therefore more remote from the end result of the process. As we held in Vollmer, that an activity is rightly called construction and is therefore distinct from operation, does not per se remove it from coverage. Construction may be sufficiently 'closely related' to production to place it in that proximity to 'commerce' which the Act demands as a predicate to coverage. Here, however, neither a facility of 'commerce' nor a facility of 'production' is under construction. Operation of the completed dam will merely support production facilities; and construction of the dam is yet another step more remote. The Secretary relies upon Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 79 S.Ct. 260, 3 L.Ed.2d 243, and Mitchell v. C. W. Vollmer & Co., supra (349 U.S. 427, 75 S.Ct. 863), to establish that this construction is closely enough related to 'production of goods for commerce' to be within the coverage of the Act. In each of those cases a construction activity was found 'directly and vitally related' to 'commerce' and therefore 'in commerce,' and what we have already said demonstrates that they are not useful guides here. As Lublin, supra, manifests, an activity sufficiently 'directly related' to commerce to be 'in' it is, at most, no further removed from 'commerce' than is the employment 'in production' itself which the Act expressly covers. Compare Mitchell v. Lublin, McGaughy & Associates, supra, with Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745. For this reason, although the Act has never contained even a general definition of the relationship of an activity to commerce necessary to justify its inclusion, such a relationship has been extrapolated by the courts in conformity with the statutory scheme, so as to displace state regulation 'throughout the farthest reaches of the channels of interstate commerce.' Walling v. Jacksonville Paper Co., 317 U.S. 564, 567, 63 S.Ct. 332, 335, 87 L.Ed. 460. No independent vitality attaches to conclusory phrases such as 'directly' or 'vitally related.' What is finally controlling in each case is the relationship of the employment to 'commerce,' in the sense of the statute, and it needs no argument that as to that relationship this case is significantly different from Lublin or Vollmer. Moreover, though construction and operation of this dam are equally 'directly essential' to the producers who require the water impounded and distributed, neither the construction nor the operation of the dam is designed for their use. Water is supplied by the District to a miscellany of users throughout its geographical area, and somewhat less than half of the consumption is by producers. These facilities, and their construction, are thus to be differentiated from the irrigation system in the Farmers Reservoir case, which was dedicated exclusively to supply water to farmers producing for commerce. These are no doubt matters of the nicest degree. They are inevitably so in the scheme and mode of enforcement of this statute. Bearing in mind the cautionary revision in 1949, and that the focal center of coverage is 'commerce,' the combination of the remoteness of this construction from production, and the absence of a dedication of the completed facilities either exclusively or primarily to production, persuades us that the activity is not 'closely related' or 'directly essential' to production for commerce.' The Secretary alternatively urges that because some of the water supplied by the District is consumed by facilities and instrumentalities of commerce, the water should be regarded as 'goods' produced 'for commerce' and the construction of the dam should be found sufficiently related to such production to be within the Act's coverage. He relies on Alstate Construction Co. v. Durkin, supra, and compares the water here to the construction materials there produced primarily for use in road construction. It is a sufficient answer to this contention that the record is devoid of evidence of a purposeful and substantial dedication of otherwise local production to consumption by 'commerce' which was the basis of our decision in Alstate. Indeed, it appears that the water supplied to the facilities and instrumentalities of commerce is but an insignificant portion of the total. Affirmed.

362.US.330

An interstate railroad applied to the public utility commissions of four States for permission to abolish or consolidate many 6f its little-used stations. The labor union which was the bargaining agent of the station agents and telegraphers whose jobs would be abolished notified the railroad under § 6 of the Railway Labor Act of a desire to negotiate for an amendment to its current bargaining agreement which would prevent the railroad from abolishing any position without the union's consent, and it threatened to strike if the railroad refused to negotiate about the amendment. The railroad sued in a Federal District Court to enijoin such a strike. Held: The case involves or grows out of a "labor dispute" within the meaning of the Norris-LaGuardia Act, and the District Court was without jurisdiction to enjoin the strike permanently. Pp. 331-343. (E) This controversy was a "labor dispute," as defined in § 13 (c) of the Norris-LaGuardia Act. Pp. 335-338. (b) The strike here involved could not be enjoined on the theory that it was unlawful for the union to seek to bargain about the consolidation or abandonment of railroad stations, which are within the control of state regulatory commissions. Pp. 338-341. (c) The dispute here involved was not a "minor" one which the Railway Labor Act requires to be heard by the National Railroad Adjustment Board. P. 341. 264 F. 2d 254, reversed.

According to the verified complaint filed in a United States District Court in Illinois by the respondent, Chicago & North Western Railway Company, against the petitioners, the Order of Railroad Telegraphers and its officials, 'This is an action for injunction to restrain and enjoin the calling and carrying out of a wrongful and unlawful strike or work stoppage on plaintiff's railroad.' Section 4 of the Norris-LaGuardia Act provides, however, that 'No court of the United States shall have jourisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons * * * from * * * (a) Ceasing or refusing to perform any work or to remain in any relation of employment; * * *'1 The main question in this case then was, and still is, whether this prohibition of the Norris-LaGuardia Act bars an injunction in the circumstances of this case. Respondent railroad, owning and operating a rail system of over .,000 miles in the States of Illinois, Wisconsin, Iowa, Minnesota, Michigan, Nebraska, South Dakota, North Dakota, and Wyoming, is an integral part of the nationwide railway system important to the transportation of passengers and freight in interstate commerce. When the railroad began operations, about 100 years ago, traffic was such that railroad stations were established about 7 to 10 miles apart. Trucks, automobiles, airplanes, barges, pipelines and modern roads have reduced the amount of railroad traffic so that the work now performed at many of these stations by agents is less than one hour during a normal eight-hour day. Maintenance of so many agencies where company employees do so little work, the complaint alleges, is wasteful and consequently in 1957 the railroad filed petitions with the public utility commissions in four of the nine States in which it operated asking permission to institute a 'Central Agency Plan whereby certain stations would be made central agencies * * *' and others abolished. The plan would necessarily result in loss of jobs for some of the station agents and telegraphers, members of the petitioner union. A few weeks after the state proceedings were filed and before any decision had been made, the petitioner union, the duly recognized, certified and acting collective bargaining agent for the railroad's employees, notified the railroad under § 6 of the Railway Labor Act, 45 U.S.C. § 156, 45 U.S.C.A. § 156, that it wanted to negotiate with the railroad to amend the current bargaining agreement by adding the following rule: 'No position in existence on December 3, 1957, will be abolished or discontinued except by agreement between the carrier and the organization.' The railroad took the position, according to its complaint, that this request did not constitute a 'labor dispute under the Railway Labor Act,' that it did not raise a bargainable issue, and that the union had no right to protest or to seek relief except by appearing before the state public utility commissions which had power to determine whether station agencies could be discontinued, a power which private parties could not thwart by entering into a bargaining agreement. The respondent added that maintenance of the unnecessary agencies was offensive to the national transportation policy Congress adopted in the Interstate Commerce Act, 49 U.S.C. §§ 1—27, 49 U.S.C.A. §§ 1—27, and that the duties that Act imposed on railroads could not be contracted away. The union contended that the District Court was without jurisdiction to grant injunctive relief under the provisions of the Norris-LaGuardia Act because this case involved a labor dispute, and that the railroad had refused to negotiate in good faith on the proposed change in the agreement in violation of § 2, First, of the Railway Labor Act, 45 U.S.C. § 152, First, 45 U.S.C.A. § 152, subd. 1, which requires the railroad to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules and working conditions. Therefore, the union argued, an injunction in federal court is barred if for no other reason because of § 8 of the Norris-LaGuardia Act which provides: 'No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.' 29 U.S.C. § 108, 29 U.S.C.A. § 108. See Brotherhood of Railroad Trainmen v. Toledo, P. & W.R.R., 321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534. After hearings, the District Court found, so far as is relevant here, that the railroad 'refused to negotiate, confer, mediate or otherwise treat with defendant Telegraphers on the proposed change in agreement set forth in the Section 6 notice,' although the railroad 'did show willingness to negotiate upon the central agency plan, including a possibility concerning severance pay'; that the proposed contract change referred to in the § 6 notice 'relates to the length or term of employment as well as stabilization of employment' and that collective bargaining as to the length or term of employment is commonplace; that 'The dispute giving rise to the proposed strike is a major dispute and not a minor grievance under the Railway Labor Act, and no issue involved therein is properly referable to the National Railroad Adjustment Board';2 and that the contract change proposed in the § 6 notice related to 'rates of pay, rules and working conditions,' and was therefore a bargainable issue under the Railway Labor Act. On its findings and conclusions of law, the District Court granted temporary relief but declined to grant a permanent injunction on the ground that it was without jurisdiction to do so. On appeal the Court of Appeals did grant a permanent injunction upon its decision that 'The District Court's finding that the proposed contract change related to 'rates of pay, rules, or working conditions,' and was thus a bargainable issue under the Railway Labor Act, is clearly erroneous.'3 It held that the Norris-LaGuardia Act did not apply to bar an injunction against this strike4 and we granted certiorari, 361 U.S. 809, 80 S.Ct. 56, 4 L.Ed.2d 58, to consider this important question.5 We hold, with the District Court, that this case involves or grows out of a labor dispute within the meaning of the Norris-LaGuardia Act and that the District Court was without jurisdiction permanently to enjoin the strike. Section 4 of the Norris-LaGuardia Act specifically withdraws jurisdiction from a District Court to prohibit any person or persons from '(c)easing or refusing to perform any work or to remain in any relation of employment' 'in any case involving or growing out of any labor dispute' as 'herein defined.'6 Section 13(c) of the Act defines a labor dispute as including, 'any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.'7 Unless the literal language of this definition is to be ignored, it squarely covers this controversy. Congress made the definition broad because it wanted it to be broad. There are few pieces of legislation where the congressional hearings, committee reports, and the language in the legislation itself more clearly point to the necessity for giving an Act a construction that will protect the congressional policy the Act adopted. Section 2 of this Act specifies the public policy to be taken into consideration in interpreting the Act's language and in determining the jurisdiction and authority of federal courts; it is one of freedom of association, organization, representation and negotiation on the part of workers.8 The hearings and committee reports reveal that Congress attempted to write its bill in unmistakable language because it believed previous measures looking toward the same policy against nonjudicial intervention in labor disputes had been given unduly limited constructions by the courts.9 Plainly the controversy here relates to an effort on the part of the union to change the 'terms' of an existing collective bargaining agreement. The change desired just as plainly referred to 'conditions of employment' of the railroad's employees who are represented by the union. The employment of many of these station agents inescapably hangs on the number of railroad stations that will be either completely abandoned or consolidated with other stations. And, in the collective bargaining world today, there is nothing strange about agreements that effect the permanency of employment. The District Court's finding that '(c)ollective bargaining as to the length or term of employment is commonplace,' is not challenged. We cannot agree with the Court of Appeals that the union's effort to negotiate about the job security of its members 'represents an attempt to usurp legitimate managerial prerogative in the exercise of business judgment with respect to the most economical and efficient conduct of its operations.'10 The Railway Labor Act and the Interstate Commerce Act recognize that stable and fair terms and conditions of railroad employment are essential to a well-functioning national transportation system. The Railway Labor Act safeguards an opportunity for employees to obtain contracts through collective rather than individualistic bargaining. Where combinations and consolidations of railroads might adversely affect the interests of employees, Congress in the Interstate Commerce Act has expressly required that before approving such consolidations the Interstate Commerce Commission 'shall require a fair and equitable arrangement to protect the interests of the railroad employees affected.'11 It requires the Commission to do this by including 'terms and conditions' which provide that for a term of years after a consolidation employees shall not be 'in a worse position with respect to their employment' than they would otherwise have been.12 (Emphasis supplied.) In 1942 this Court held that when a railroad abandons a portion of its lines, the Interstate Commerce Commission has power to include conditions for the protection of displaced workers in deciding what 'the public convenience and necessity may require.' We so construed the Interstate Commerce Act specifically on the basis that imposition of such conditions 'might strengthen the national system through their effect on the morale and stability of railway workers generally.' Interstate Commerce Comm. v. Railway Labor Exec. Ass'n, 315 U.S. 373, 375, 62 S.Ct. 717, 720, 86 L.Ed. 904, citing United States v. Lowden, 308 U.S. 225, 60 S.Ct. 248, 84 L.Ed. 208. The brief for the railroad associations there called our attention to testimony previously given to Congress that as early as 1936 railroads representing 85% of the mileage of the country had made collective bargaining agreements with their employees to provide a schedule of benefits for workers who might be displaced or adversely affected by coordinations or mergers.13 In an effort to prevent a disruption and stoppage of interstate commerce, the trend of legislation affecting railroads and railroad employees has been to broaden, not narrow, the scope of subjects about which workers and railroads may or must negotiate and bargain collectively. Furthermore, the whole idea of what is bargainable has been greatly affected by the practices and customs of the railroads and their employees themselves. It is too late now to argue that employees can have no collective voice to influence railroads to act in a way that will preserve the interests of the employees as well as the interests of the railroad and the public at large. The railroad has argued throughout the proceedings that the union's strike here may be enjoined, regardless of Norris-LaGuardia, because its effort to bargain about the consolidation and abandonment of railroad stations is unlawful. It is true that in a series of cases where collective bargaining agents stepped outside their legal duties and violated the Act which called them into being, we held that they could be enjoined.14 None of these cases, however, enjoined conduct which the Norris-LaGuardia Act withdrew from the injunctive power of the federal courts except the Chicago River case which held that a strike could be enjoined to prevent a plain violation of a basic command of the Railway Labor Act 'adopted as a part of a pattern of labor legislation.' 353 U.S. 30, 42, 77 S.Ct. 635, 641. The Court there regarded as inapposite those cases in which it was held that the Norris-LaGuardia Act's ban on federal injunctions is not lifted because the conduct of the union is unlawful under some other, nonlabor statute.15 Here, far from violating the Railway Labor Act, the union's effort to negotiate its controversy with the railroad was in obedience to the Act's command that employees as well as railroads exert every reasonable effort to settle all disputes 'concerning rates of pay, rules, and working conditions.' 45 U.S.C. § 152, First, 45 U.S.C.A. § 152, subd. 1. Moreover, neither the respondent nor anyone else points to any other specific legal command that the union violated here by attempting to bring about a change in its collective bargaining agreement. It would stretch credulity too far to say that the Railway Labor Act, designed to protect railroad workers, was somehow violated by the union acting precisely in accordance with that Act's purpose to obtain stability and permanence in employment for workers. There is no express provision of law, and certainly we can infer none from the Interstate Commerce Act, making it unlawful for unions to want to discuss with railroads actions that may vitally and adversely affect the security, seniority and stability of railroad jobs.16 And for a number of reasons the statepublic utility proceedings, invoked by the railroad to obtain approval of consolidation or abandonment of stations, could not stamp illegality on the union's effort to negotiate this whole question with the railroad. The union merely asked for a contractual right to bargain with the railroad about any voluntary steps it might take to abandon stations or to seek permission to abandon stations and thus abolish jobs. Nothing the union requested would require the railroad to violate any valid law or the valid order of any public agency. There is no testimony and there are no findings that this union has set itself up in defiance of any state mandatory order. In fact, there was no state order of any kind at the time the union first asked to negotiate about the proposed contractual change. Even if a Norris-LaGuardia 'labor dispute' could not arise out of an unlawful bargaining demand, but see Afran Transport Co. v. National Maritime Union, D.C., 169 F.Supp. 416, 1959 A.M.C. 326, the union's proposal here was not unlawful. The union contends that, whether the state rulings were mandatory or permissive, the States are without authority to order an abandonment of stations that would conflict with collective bargaining agreements made or to be made between the railroad and the union. Whether this contention is valid or not we need not decide since there is no such conflict before us. And the District Court expressly refused to find that the union's proposal was prompted by the railroad's action in seeking state authority to put its Central Agency Plan into effect. Instead, the District Court specifically found that the dispute grew out of the failure of the parties to reach an agreement on the contract change proposed by the union. Only a word need be said about the railroad's contention that the dispute here with the union was a minor one relating to an interpretation of its contract and therefore one that the Railway Labor Act requires to be heard by the National Railroad Adjustment Board. We have held that a strike over a 'minor dispute' may be enjoined in order to enforce compliance with the Railway Labor Act's requirement that minor disputes be heard by the Adjustment Board. Brotherhood of Railroad Trainmen v. Chicago River & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622. But it is impossible to classify as a minor dispute this dispute relating to a major change, affecting jobs, in an existing collective bargaining agreement, rather than to mere infractions or interpretations of the provisions of that agreement. Particularly since the collective bargaining agreement which the union sought to change was a result of mediation under the Railway Labor Act, this is the type of major dispute that is not governed by the Adjustment Board. In concluding that the injunction ordered by the Court of Appeals is forbidden by the Norris-LaGuardia Act, we have taken due account of the railroad's argument that the operation of unnecessary stations, services and lines is wasteful and thus runs counter to the congressional policy, expressed in the Interstate Commerce Act, to foster an efficient national railroad system. In other legislation, however, like the Railway Labor and Norris-LaGuardia Acts, Congress has acted on the assumption that collective bargaining by employees will also foster an efficient national railroad service. It passed such Acts with knowledge that collective bargaining might sometimes increase the expense of railroad operations because of increased wages and better working conditions. It goes without saying, therefore, that added railroad expenditures for employees cannot always be classified as 'wasteful.' It may be, as some people think, that Congress was unwise in curtailing the jurisdiction of federal courts in railroad disputes as it did in the Norris-LaGuardia Act. Arguments have even been presented here pointing to the financial debilitation of the respondent Chicago & North Western Railroad and to the absolute necessity for the abandonment of railroad stations. These arguments, however, are addressed to the wrong forum. If the scope of the Norris-LaGuardia Act is to be cut down in order to prevent 'waste' by the railroads, Congress should be the body to do so. Such action is beyond the judicial province and we decline to take it. There are other subsidiary questions raised with reference to the validity of a second 30-day restraining order issued by the district judge and an injunction pending appeal under Rule 62(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. But since we have determined the main controversy between the parties, we think it inadvisable to decide either of these questions now. We intimate no opinion concerning either at this time. The judgment of the Court of Appeals is reversed and that of the District Court is affirmed insofar as it held that the court was without jurisdiction under the Norris-LaGuardia Act to enter the injunction. It is so ordered. Judgment of Court of Appeals reversed and judgment of District Court affirmed in part.

363.US.207

While a citizen and resident of Illinois, petitioner purchased there from respondent, an insurance company licensed to do business in 'Illinois and Florida, an insurance policy covering. "all risks" of loss or damage to certain personal property having no fixed situs. After moving to Florida, petitioner sustained losses there on which respondent denied liability. More than 12 months after discovery of the losses, petitioner sued respondent in a Federal District Court in Florida, basing jurisdiction on diversity of citizenship. That Court awarded a judgment to petitioner after ruling that, (1) under Florida law, the losses were not excluded from "all risks" coverage if they were caused by deliberate acts of petitioner's wife, and (2) the suit was nQt barred by a provision in the policy that suit on any claim for loss must be brought within 12 months of discovery of the loss, apparently because a Florida statute forbade enforcement of such a clause. Without passing on these issues of local law, the Court of Appeals reversed, on the ground that Florida could not consistently with the'requirements of due process, apply its statute to the "suits clause" of this contract- made in Illinois, where such a iause is valid. Held: The Court of Appeals'should *not ha epassed on the constitutional question without first passing. on the two issues of local law and not unless its decision on those -issues made a decisiort on the constitutional question. necessary. Pp. 208-212. 265 F. 2d 522, judgment vacated and cause remanded.

In 1952, petitioner, while a citizen and resident of Illinois, purchased from respondent in Illinois the contract of insurance upon which this suit is based. The respondent is a British company licensed to do business in Illinois, Florida, and nine other States. The policy, which petitioner bought for a lump sum, ran for three years. Designated a 'Personal Property Floater Policy (World Wide),' it provides world-wide coverage against 'all risks' of loss or damage to the property covered, property generally classified as personal property having no fixed situs. A provision of the policy, which has given rise to this controversy, required that suit on any claim for loss must be brought within twelve months of the discovery of the loss. Some months after purchasing the policy the petitioner moved to Florida, where he brought this suit for losses sustained in Florida in the winter of 1954—1955. Petitioner reported the losses to the respondent on February 1, 1955, and on April 1, 1955, respondent denied liability. The action, resting on diversity of citizenship, was instituted in the United States District Court for the Southern District of Florida on May 20, 1957, more than two years after discovery of the losses. The respondent defended on two grounds: (1) that under the time limitation for bringing suit, a restriction concededly valid under Illinois law, the suit was barred; and (2) that the 'all risks' coverage of the policy does not include the losses resulting from willful injury to or appropriation of the insured property by the insured's spouse.1 The jury was charged that if the losses were caused by the deliberate acts of petitioner's wife, they were not therefore excluded from coverage. The jury found for petitioner, and judgment in the amount of $6,800 was entered. The District Court, without opinion, denied a motion for judgment non obstante veredicto, which was based, inter alia, upon the suit clause, apparently believing that Florida Statutes (1957), § 95.03 F.S.A., which is set out in the margin,2 rendered the clause ineffective. On appeal the Court of Appeals for the Fifth Circuit reversed (one judge dissenting), sustaining the defense based upon the suit clause on the ground that Florida could not apply its statute to this Illinois-made contract consistently with the requirements of due process. 265 F.2d 522. The court considered the preliminary question of state law—whether the Florida statute, § 95.03, in fact applies to a contract made in these circumstances. Strangely enough, it did not decide this threshold question because it apparently found it easier to decide the constitutional question that would be presented only if the statute did apply. Such disposition of a serious constitutional issue justified bringing the case here. 361 U.S. 874, 80 S.Ct. 141, 4 L.Ed.2d 113. By the settled canons of constitutional adjudication the constitutional issue should have been reached only if, after decision of two non-constitutional questions, decision was compelled. The lower court should have first considered: (1) whether, under the law of Florida, § 95.03 is applicable to this contract; and (2) whether the losses sued upon were within the 'all risks' coverage of the policy if in fact caused by petitioner's wife. It would be a temerarious man who described the constitutional question decided below as frivolous. The seriousness of the question becomes manifest from a recital of the decisions of this Court relevant to the determination of the issue on which the court below passed. In Home Insurance Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926, the Court held that Texas could not constitutionally apply its own law to invalidate a suit clause in a contract of fire insurance covering a tugboat. The plaintiff was at all pertinent times both a Texas domiciliary and a resident of Mexico. The contract, of which he was an assignee, was made in Mexico between a Mexican insurer which had no contact whatever with Texas, and a Mexican resident. The premium was paid in Mexico, and the policy covered the tug only while it was in Mexican waters. In Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143, 54 S.Ct. 634, 78 L.Ed. 1178, the Court held that Mississippi could not constitutionally apply its own law to invalidate a contract clause limiting the insurer's liability on a surety bond against defalcations by the insured's employees 'in any position, anywhere,' to losses of which notice was given within fifteen months after the termination of coverage. The contract was made in Tennessee where the insured had offices and the insurer was licensed to do business. Mississippi's action was struck down although the contract covered an ambulatory risk, the default giving rise to the claim actually occurred in Mississippi, the insurer was under license doing business there, and the insured was incorporated there. The most recent case in the series is Watson v. Employers Liability Assurance Corp., Ltd., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74. Without questioning either Dick, or Delta & Pine, the Court sustained Louisiana's application, in a suit by a Louisiana citizen, of its own 'direct action' statute although thereby it invalidated an express provision against direct liability of the insurer in a contract negotiated and paid for within Illinois and Massachusetts, in both of which the clause was valid. The contract insured Toni, an Illinois corporation distributing its product nationally, against liabilities arising from the use of the product. The insurer was a British corporation licensed to do business in several States, including Massachusetts, Illinois and Louisiana. Toni had no contact with Louisiana and could not be served there. The Louisiana plaintiff had sustained her injury in Louisiana. The Court found Louisiana's contact with the subject justified its application of the statute to make an insurer doing business in Louisiana amenable to suit by a locally injured citizen. The relevant factors of the present case are not identic either with Dick, or Delta & Pine, or Watson, and not one of them can fairly be deemed controlling here. The bearing of all three on the immediate situation would have to be considered and appropriately evaluated in adjudicating the precise constitutional issue presented by it, were that issue inescapably before us. The disposition of either of two unresolved state law questions may settle this litigation. The Court of Appeals was therefore not called upon initially to reach this constitutional question; nor is this Court. The doctrine that the Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it,' Liverpool, N.Y. & P.S.S. Co. v. Emigration Commissioners, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899, relied on by Mr. Justice Brandeis in his well-known concurring opinion in Ashwander v. T.V.A., 297 U.S. 288, 347—348, 56 S.Ct. 466, 483, 80 L.Ed. 688, is a well-settled doctrine of this Court which, because it carries a special weight in maintaining proper harmony in federal-state relations, must not yield to the claim of the relatively minor inconvenience of postponement of decision. Of course we do not remotely hint at an answer to a question that is prematurely put. While both questions not disposed of by the Court of Appeals are questions of local law, the question whether under Florida law § 95.03 is applicable to this contract is one on which the state court's determination is controlling. But, as the Court of Appeals indicated, it could not, on the available materials, make a confident guess how the Florida Supreme Court would construe the statute. See, e.g., Hoagland v. Railway Express Agency, 75 So.2d 822; Equitable Life Assurance Society of United States v. McRee, 75 Fla. 257, 78 So. 22. The Florida Legislature, with rare foresight, has dealt with the problem of authoritatively determining unresolved state law involved in federal litigation by a statute which permits a federal court to certify such a doubtful question of state law to the Supreme Court of Florida for its decision. Fla.Stat.Ann., 1957, § 25.031.3 Even without such a facilitating statute we have frequently deemed it appropriate, where a federal constitutional question might be mooted thereby, to secure an authoritative state court's determination of an unresolved question of its local law. See Allegheny County v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163, and cases cited; see also Meredith v. City of Winter Haven, 320 U.S. 228, 236, 64 S.Ct. 7, 12, 88 L.Ed. 9. Vacated and remanded.

364.US.277

Petitioner alleges he was denied equal protection because as a pauper he was unable to furnish and pay for transcript of trial required by court rules to be filed with appeal in post-conviction proceeding in state court, and also that he was denied services of public defender. Held: Certiorari granted; order of dismissal vacated; and case remanded for further consideration. 239 Ind. 707, 158 N. E. 2d 292, vacated and remanded.

The motion for leave to proceed in forma pauperis and the writ of certiorari are granted. Petitioner's attempted appeal to the Supreme Court of Indiana from a denial of relief in a post-conviction coram nobis proceeding was dismissed because of his failure to comply with rules of that court, requiring, inter alia, the filing of a transcript of the trial proceedings. He alleges that the dismissal denied him the equal protection of the laws because he was and is unable to pay for the preparation of such a transcript, see Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, and that although he attempted to avail himself of the services of the Indiana Public Defender, who is empowered to secure the preparation of such a transcript in paupers' cases, see Burns' Indiana Stats. (1956 Repl.), § 13—1401 et seq., that officer declined to assist him. The record before us does not disclose whether these allegations were made to, and passed on by, the Indiana Supreme Court in light of Griffin v. People of State of Illinois, supra. Accordingly we vacate the order of dismissal and remand the case to it for further consideration of the appeal. Order vacated and case remanded.

363.US.697

Petitioner and two others were tried before a jury in a North Carolina state court on an indictment jointly charging them with robbery. Petitioner, who was 18 years old, asked the judge to appoint a lawyer to help him in his defense, stating that he was without funds to employ counsel and was incapable of defending himself; but this request was denied. Counsel for one of petitioner's codefendants volunteered to help petitioner and the third defendant; but, iff'the midst of the trial and in the presence of the jury, his client pleaded guilty to petit larceny, that plea was accepted, and the lawyer withdrew from the proceedings. No steps were taken to protect petitioner from the potential prejudice resulting from the guilty plea of his codefendant in the presence of the jury, and petitioner and his other codefendant were convicted of larceny from the person, a felony under North Carolina law. Held: The prejudicial position in which petitioner found himself when his codefendant pleaded guilty before the jury raised problems requiring professional knowledge and experience beyond a layman's ken, and petitioner's conviction in these circumstances without the benefit of counsel deprived him of the due process of law guaranteed by the Fourteenth Amendment. Pp. 697-704. Reversed.

The petitioner and two others were brought to trial before a jury in the Superior Court of Cumberland County, North Carolina, upon an indictment jointly charging them with robbery. When their case was called one of the defendants, David Cain, was represented by a lawyer of his own selection. The petitioner and the other defendant did not have counsel. Before pleading to the indictment, the petitioner, who was eighteen years old, asked the presiding judge to appoint a lawyer to help him with his defense, stating that he was without funds to employ counsel and was incapable of defending himself.1 The prosecutor conceded that the petitioner was unable to employ an attorney.2 The trial judge denied the motion, telling the petitioner that 'The Court will try to see that your rights are protected throughout the case.' All three of the defendants thereupon pleaded not guilty, and the case proceeded immediately to trial. The first witness for the State was the alleged victim of the robbery. Midway through this witness's testimony Cain's lawyer offered to represent all three codefendants 'as long as their interests don't conflict.' At the conclusion of the witness's direct testimony the trial judge advised the lawyer that he should cross-examine only on behalf of Cain, because 'I think you probably have a conflicting interest there.' Thereafter the witness was cross-examined intensely by Cain's lawyer, who brought out the witness's criminal record and previous commitment to a state mental institution. The petitioner and the other codefendant also briefly cross-examined the witness. The only other witnesses for the prosecution were two deputy sheriffs, who testified as to statements made to them by the defendants. They were cross-examined by the lawyer, but not by the two defendants without counsel. At the conclusion of the State's evidence, Cain's lawyer moved that the case be dismissed. When this motion was denied he stated that Cain had no evidence to offer. Thereupon, in the presence of the jury, he tendered on behalf of Cain a plea of guilty to petit larceny. This plea was agreed to by the prosecutor and accepted by the court. The lawyer then withdrew from the proceedings. The trial proceeded. The petitioner and his remaining codefendant each took the stand. Each made a statement denying the robbery. The petitioner was cross-examined at some length, with emphasis upon his previous criminal record. Neither the petitioner nor his codefendant produced any other witnesses or offered any further evidence. They were given an opportunity to argue their case to the jury, but did not do so. The jury found both defendants guilty of larceny from the person, a felony under North Carolina law, and the following day the trial judge pronounced sentence. The petitioner was committed to the penitentiary for a term of three to five years. The codefendant convicted with him was sentenced to a jail term of eighteen months to two years. Cain was given a six months' suspended sentence. The petitioner's subsequent appeal to the Supreme Court of North Carolina was dismissed for want of prosecution. Thereafter he filed in the trial court a 'petition for writ of certiorari,' which urged that the failure of the trial court to provide him with counsel had deprived him of his constitutional rights. This petition was treated as an application for relief under the North Carolina Post-Conviction Hearing Act.3 In the subsequent proceedings the court appointed a lawyer to represent the petitioner,4 and held a hearing at which the petitioner and his counsel were present. After considering the evidence presented, including a transcript of the trial proceedings,5 the court concluded that no special circumstances were shown which required the appointment of trial counsel, that the petitioner had been convicted only after a fair and impartial trial, and that there had consequently been no denial of due process of law. The petition was accordingly dismissed.6 The Supreme Court of North Carolina declined to review the order of dismissal. We granted certiorari to consider the substantial constitutional claim asserted. 361 U.S. 812, 80 S.Ct. 91, 4 L.Ed.2d 60. The judge who presided at the post-conviction proceedings made detailed findings of fact. He found that the trial judge had 'advised the petitioner of his right to challenge when the jury was selected and advised the petitioner of his right to cross examine witnesses and to argue the case to the jury.' He also found that 'during the trial the Court properly excluded evidence which was inadmissible, and the petitioner cross examined the witnesses against him and at his request testified in his own behalf.' In this Court counsel for the petitioner does not take issue with these findings. Counsel's primary emphasis rather is upon the petitioner's comparative youth, relying upon Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647. In that case it was held that the denial of a lawyer's help had resulted in the deprivation of due process where the Federal District Court after a habeas corpus hearing had found that the eighteen-year-old defendant was 'an inexperienced youth unfamiliar with Court procedure, and not capable of adequately representing himself.' 334 U.S., at page 683, 68 S.Ct. at page 1276. Here, by contrast, the post-conviction court found that 'although the petitioner was only eighteen years of age and had been only to the sixth grade in school at the time of his trial, he is intelligent, well informed, and was familiar with and experienced in Court procedure and criminal trials * * *.' Evaluations of this nature are peculiarly within the province of the trier of the facts based upon personal observation. As the Court pointed out in Wade v. Mayo, '(t)here are some individuals who, by reason of age, ignorance or mental capacity, are incapable of representing themselves adequately in a prosecution of a relatively simple nature. This incapacity is purely personal and can be determined only by an examination and observation of the individual.' 334 U.S., at page 684, 68 S.Ct. at page 1276. In view of the findings of the post-conviction court, supported by the record of the trial proceedings, this, in short, is not a case where it can be said that the failure to appoint counsel for the defendant resulted in a constitutionally unfair trial either because of deliberate overreaching by court or prosecutor or simply because of the defendant's chronological are. Moreover, the record shows that up to the time that Cain's lawyer withdrew from the proceedings the petitioner was receiving the effective benefit of the lawyer's activity, and had the trial of all three defendants proceeded to a jury verdict, it is possible that the lawyer could have continued to represent the interests of the petitioner as well as those of the client who had retained him. But that did not happen. Instead, on the advice of his counsel Cain entered a plea of guilt in the presence of the jury midway through the trial. The potential prejudice of such an occurrence is obvious and has long been recognized by the courts of North Carolina. State v. Hunter, 94 N.C. 829, 835; State v. Bryant, 236 N.C. 745, 747, 73 S.E.2d 791, 792; State v. Kerley, 246 N.C. 157, 97 S.E.2d 876. Yet it was precisely at this moment of great potential prejudice that the petitioner and his codefendant were left entirely to their own devices, for it was then that Cain's lawyer withdrew from the case. At that very point the petitioner and his codefendant were left to go it alone. The precise course to be followed by a North Carolina trial court in order to cure the prejudice that may result from a codefendant's guilty plea does not appear to have been made entirely clear by the North Carolina decisions. In the Hunter case the Supreme Court of North Carolina pointed out that while not infrequently a defendant on trial with another is allowed to enter a plea of guilt should exercise care 'to see that such should exercise care cto see that such practice works no undue prejudice to another party on trial.' 94 N.C., at page 835. Later cases have been somewhat more explicit. In the Bryant case curative instructions to the jury given immediately after a codefendant's guilty plea were held sufficient to avoid error prejudicial to the remaining defendant. 236 N.C. at pages 747—748, 73 S.E.2d at page 792. More recently, in the Kerley case, the court said that '(w)hen request therefor is made, it is the duty of the trial judge to instruct the jury that a codefendant's plea of guilty is not to be considered as evidence bearing upon the guilt of the defendant then on trial and that the latter's guilt must be determined solely on the basis of the evidence against him and without reference to the codefendant's plea.' 246 N.C., at page 161, 97 S.E.2d, at page 879. Indeed the court expressed the view that even 'a positive instruction probably would not have removed entirely the subtle prejudice that unavoidably resulted from (a codefendant's) plea * * *.' 246 N.C., at page 162, 97 S.E.2d, at page 880. In the present case the petitioner did not make any request that the jury be instructed to disregard Cain's guilty plea, and the court gave none, either at the time the plea was entered or in finally instructing the jury. A layman would hardly be aware of the fact that he was entitled to any protection from the prejudicial effect of a codefendant's plea of guilt. Even less could he be expected to know the proper course to follow in order to invoke such protection. The very uncertainty of the North Carolina law in this respect serves to underline the petitioner's need for counsel to advise him. The post-conviction court made no finding specifically evaluating the prejudicial effect of Cain's plea of guilt and the trial judge's subsequent failure to give cautionary instructions to the jury. In any event, we cannot escape the responsibility of making our own examination of the record. Spano v. New York, 360 U.S. 315, 316, 79 S.Ct. 1202, 1203, 3 L.Ed.2d 1265. We hold that the circumstances which thus arose during the course of the petitioner's trial made this a case where the denial of counsel's assistance operated to deprive the defendant of the due process of law guaranteed by the Fourteenth Amendment. The prejudicial position in which the petitioner found himself when his codefendant pleaded guilty before the jury raised problems requiring professional knowledge and experience beyond a layman's ken. Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686; Cash v. Culver, 358 U.S. 633, 79 S.Ct. 432, 3 L.Ed.2d 557. Reversed.

363.US.299

No. 55. Argued March 23, 1960.-Decided June' 13, 1960.

This case presents the questions whether a labor union's strike assistance, by way of room rent and food vouchers, furnished to a worker participating in a strike constitutes income to him under § 61(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 61(a);1 and whether the assistance furnished to this particular worker, who was in need, constituted a 'gift' to him, and hence was excluded from income by § 102(a) of the Code, 26 U.S.C.A. § 102(a).2 The respondent was employed by the Kohler Company in Wisconsin. The bargaining representative at the Kohler plant was Local 833 of the United Automobile, Aircraft, and Agricultural Implement Workers of America, CIO (UAW). In April 1954, the Local, with the approval of the International Union of the UAW, called a strike against Kohler in support of various bargaining demands in connection with a proposed renewal of their recently expired collective bargaining contract. The respondent was not a member of the Union, but he went out on strike. He had been earning $2.16 an hour at his job. This was his sole source of income, and when he struck he soon found himself in financial need. He went to the Union headquarters and requested assistance. It was the policy of the Union to grant assistance to the many Kohler strikers simply on a need basis. It made no difference whether a striker was a union member. The Union representatives questioned respondent as to his financial resources, and his dependents. He had no other job and needed assistance with respect to the essentials of life. He was single during the period in question, and the Union provided him with a food voucher for $6 a week, redeemable in kind at a local store; the voucher was later increased to $7.50 a week. The Union also paid his room rent, which amounted to $9 a week. If in need, married strikers and married strikers with children received respectively larger food vouchers.3 The over-all policy of the International Union was not to render strike assistance where strikers could obtain state unemployment compensation or local public assistance benefits. But the former condition does not prevail in Wisconsin,4 and local public assistance was available only on a showing of a destitution evidently deemed extreme by the Union. The Union thought that strikers ought to perform picketing duty, but did not require, advise or encourage strikers who were receiving assistance to picket or perform any other activity in furtherance of the strike; but assistance ceased for strikers who obtained work. Respondent performed some picketing, though apparently no considerable amount. After receiving assistance for several months, he joined the Union. This had in no way been required of him or suggested to him in connection with the continued receipt of assistance. The program of strike assistance was primarily financed through the strike fund of the International Union, which had been raised through crediting to it 25 cents of the $1.25 per capita monthly assessment the International required from the local unions. The Local also had a small strike fund built up through monthly credits of 5 cents of the local members' dues and contributions were received in some degree, not contended to be substantial, from other unions and outsiders. The constitution of the International Union required that it be the authorizing agency for strikes, and imposed on it the general duty to render financial assistance to the members on strike.5 During 1954, the Union furnished respondent assistance in the value of $565.54. In computing his federal income tax for the year, he did not include in gross income any amount in respect of the assistance. The District Director of Internal Revenue informed respondent that the $565.54 should have been added to his gross income and the tax due increased by $108 accordingly. Respondent paid this amount, and after administrative rejection of a refund claim, sued for a refund in the District Court for the Eastern District of Wisconsin. A jury trial was had, and the court submitted to the jury the single interrogatory whether the assistance rendered to respondent was a gift. The jury answered in the affirmative; but the court entered judgment for the Government, n.o.v., on the basis that as a matter of law the assistance was income to the respondent, and did not fall within the statutory exclusion for gifts. 158 F.Supp. 865. By a divided vote, the Court of Appeals for the Seventh Circuit reversed. 262 F.2d 367. It held alternatively that the assistance was not within the concept of income of § 61(a) of the Code, and that in any event the jury's determination that the assistance was a gift, and hence excluded from gross income by § 102(a), had rational support in the evidence and accordingly was within its province as trier of the facts. We granted the Government's petition for certiorari, because of the importance of the issues presented. 359 U.S. 1010, 79 S.Ct. 1150, 3 L.Ed.2d 1035. Later, when the Government petitioned for certiorari in No. 376, Commissioner of Internal Revenue v. Duberstein, and acquiesced in the taxpayer's petition in No. 546, Stanton v. United States, 363 U.S. 278, 80 S.Ct. 1190, it suggested that those cases be set down for argument with the case at bar, because they illustrated in a more general context the 'gift' exclusion issues presented by this case. We agreed, and the cases were argued together. We conclude, on the basis of our opinion in the Duberstein case, 362 U.S. at page 278, 80 S.Ct. at page 1196, that the jury in this case, as finder of the facts, acted within its competence in concluding that the assistance rendered here was a gift within § 102(a). Accordingly, we affirm the judgment of the Court of Appeals. Therefore, we think it unnecessary to consider or express any opinion as to whether the assistance in fact constituted income to the respondent within the meaning of § 61(a). At trial, counsel for the Government did not make objection to any part of the District Court's charge to the jury or the 'gift' exclusion. In this Court, the charge is belatedly challenged, and only as part of the Government's position that there should be formulated a new 'test' for application in this area.6 We have rejected that contention in our opinion in Duberstein. In the absence of specific objection at trial, or of demonstration of any compelling reason for dispensing with such objection, we do not here notice any defect in the charge, in the light of the controlling legal principles as we have reviewed them in Duberstein. We think, also, that the proofs were adequate to support the conclusion of the jury. Our opinion in Duberstein stresses the basically factual nature of the inquiry as to this issue. The factual inferences to be drawn from the basic facts were here for the jury. They had the power to conclude, on the record, taking into account such factors as the form and amount of the assistance and the conditions of personal need, of lack of other sources of income, compensation, or public assistance, and of dependency status, which surrounded the program under which it was rendered, that while the assistance was furnished only to strikers, it was not a recompense for striking. They could have concluded that the very general language of the Union's constitution, when considered with the nature of the Union as an entity and with the factors to which we have just referred, did not indicate that basically the assistance proceeded from any constraint of moral or legal obligation, of a nature that would preclude it from being a gift. And on all these circumstances, the jury could have concluded that assistance, rendered as it was to a class of persons in the community in economic need, proceeded primarily from generosity or charity, rather than from the incentive of anticipated economic benefit. We can hardly say that, as a matter of law, the fact that these transfers were made to one having a sympathetic interest with the giver prevents them from being a gift. This is present in many cases of the most unquestionable charity. We need not stop to speculate as to what conclusion we would have drawn had we sat in the jury box rather than those who did. The question is one of the allocation of power to decide the question; and once we say that such conclusions could with reason be reached on the evidence, and that the District Court's instructions are not overthrown, our reviewing authority is exhausted, and we must recognize that the jury was empowered to render the verdict which it did. Affirmed.

362.US.396

In this action under the Federal Employers' Liability Act to recover from a railroad damages foi injuries sustained by petitioner while working on a private siding owned by one of the railroad's customers, the trial court erred in instructing the jury as to the factors to be considered in determining whether petitioner was an "employee" of the railroad, within the meaning of the Act, during the performance of the work; and affirmance of a judgment entered on the jury's verdict for the railroad is reversed. Pp. 396-400. 265 F. 2d 75, reversed.

In this action under the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. §§ 51—60, 45 U.S.C.A. §§ 51—60, the Court of Appeals for the Fifth Circuit, by a divided court, affirmed a judgment in favor of the respondent railroad entered on a jury verdict in the District Court for the Northern District of Florida. 265 F.2d 75. We granted certiorari, 361 U.S. 861, 80 S.Ct. 126, 4 L.Ed.2d 101, to consider the issues presented in the light of our decisions in Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799, and Baker v. Texas & Pacific R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756. The latter is an intervening decision. The railroad employed the petitioner as a laborer in a section gang with a regular work-week from Monday through Friday. The petitioner was injured on a Saturday, ordinarily the gang's day off, when the gang, supervised by their foreman, using the work tools supplied by the railroad, adn following standard railroad methods for doing the work, were replacing ties under a siding track which ran off the railroad's main line tracks to the plant of the M. & M. Turpentine Company. That company had an agreement with the railroad calling for the railroad to make periodic inspections of the track and for the repairs disclosed to be necessary by such inspections to be made by and at the expense of the Turpentine Company 'to the satisfaction of the (railroad's) Chief Engineer.' When an inspection revealed the need for the work in question, the Turpentine Company engaged the petitioner's foreman to recruit his crew to do the work on their day off under his direction. The foreman offered the crew railroad overtime rates of pay for doing the work, but there is a sharp conflict in the evidence whether he told the crew that they would not be working for the railroad but for someone else. The foreman paid the wages with funds supplied to him by the Turpentine Company. The petitioner contends that the proofs require a holding as a matter of law that the Turpentine Company, in the maintenance of the siding, was the 'agent' of the respondent railroad within the meaning of § 1 of the Federal Employers' Liability Act, 45 U.S.C. § 51, 45 U.S.C.A. § 51, as we construed that term in Sinkler v. Missouri Pacific R. Co., supra. We find no merit in this contention. Indeed, we do not think that the proofs presented a jury question whether the Turpentine Company was the railroad's 'agent' within the meaning of the Act. This was not a situation, as in Sinkler, in which the railroad engaged an independent contractor to perform operational activities required to carry out the franchise. This was a siding privately owned by the Turpentine Company and established to service it alone. In maintaining it, we do not see how it can be said under the proofs that the Turpentine Company was 'engaged in furthering the operational activities of respondent.' Sinkler v. Missouri Pacific R. Co., supra, 356 U.S. at page 331, 78 S.Ct. at page 763. Even the use of the siding by local farmers in harvest time to load respondent's cars with watermelons, a fact heavily relied upon by the petitioner, was, according to uncontradicted testimony, not at the instance of the railroad but because the President of the Turpentine Company 'leased this track—I guess that is what you would call it—anyhow, he let those farmers load watermelons out there on that track and he always repaired it every year before watermelon time.' However, we agree with the petitioner's alternative contention that the trial judge erred in refusing to instruct the jury as requested by the petitioner,1 and in giving the instructions he did,2 as to the factors to be considered by the jury in determining whether the petitioner was an 'employee' of the railroad during the performance of the work within the meaning of the Act. The instructions given in effect limited inquiry to the question whether the petitioner was aware that the railroad considered him not to be working for it but for some third party. But neither the railroad's communication of its concept of petitioner's status to petitioner, nor his acquiescence therein, if shown, is determinative of the issue. Cf. Cimorelli v. New York Central R. Co., 6 Cir., 148 F.2d 575, 578. The parties' characterization is but one factor to be considered among others, see Restatement, Agency 2d, § 220(2)(i), and the issue is one for determination by the jury on the basis of all the relevant factors. Baker v. Texas & Pacific R. Co., supra. Reversed. Mr. Justice FRANKFURTER would dismiss this writ of certiorari as improvidently granted. As the Court's opinion demonstrates, the case solely presents the appropriateness of instructions given by a trial court and the refusal of requested instructions in the light of the unique circumstances of a particular situation. As such it falls outside the considerations which, according to Rule 19 of this Court, 28 U.S.C.A., govern the granting of a petition for certiorari. See Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524, 77 S.Ct. 457, 459, 1 L.Ed.2d 515 (dissenting).

364.US.325

In this suit by a seaman, under the Jones Act and for unseaworthiness under the general maritime law, to recover froni a shipowner for personal injuries sustained while a member of the crew of its ship when an allegedly defectiVe wrench with which he was working slipped off a nut and hit his toe, held: The evidence was sufficient to present a jury question, under the unseaworthiness claim, as to whether the wrench was a reasonably suitable appliance, and, under the Jones Act claim, as to the shipowner's alleged failure to exercise due care in furnishing a wrench which was not a reasonably suitable appliance; and the trial judge erred in directing a verdict for the shipowner. Pp. 325-332. 271 F. 2d 194, reversed.

The petitioner asks damages for personal injuries he allegedly sustained in a shipboard accident while a crew member aboard the respondent's Great Lakes vessel, the tanker Orion. His complaint alleges respondent's liability both for negligence under the Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688, and for unseaworthiness under the general maritime law;1 a claim for maintenance and cure is also alleged. The parties settled the claim for maintenance and cure at the trial, which was before a jury in the District Court for the Northern District of Ohio. Judgment was entered for the respondent on the unseaworthiness and Jones Act claims upon a verdict directed by the trial judge on the ground of insufficiency of the evidence. The Court of Appeals for the Sixth Circuit affirmed. 271 F.2d 194. We granted certiorari, 362 U.S. 909, 80 S.Ct. 661, 4 L.Ed.2d 618. Michalic claims that in a shipboard accident on December 28, 1955, a two-and-one-half-pound wrench dropped on his left great toe. Michalic was afflicted with Buerger's disease when he joined the Orion three months earlier as a fireman in the engine room. We are informed by the testimony of one of the medical witnesses that Buerger's disease 'is a disease of unknown origin * * * it produces a narrowing of the blood supply going to the foot through the arteries, and it runs a very foreseeable course; it is slowly progressive in most cases and leads to progressive loss of blood supply to the extremities involving usually the legs'; for one afflicted with the disease to drop 'a hammer on his toe * * * is a very serious thing and frequently leads to amputation. * * * Because the circulation is already impaired and the wound will not heal properly, and any appreciable trauma will frequently lead to gangrene.' Michalic did not report the accident at the time but continued working until January 6, 1956, a week later, when the vessel was laid up for the winter. Meanwhile he treated the toe every night after work in hot water and Epsom salts. He was at his home from January 6 to March 15 and used hot boric acid soaks 'practically every day.' He was called back to the Orion on March 15. On April 1, 1956, he reported to the Orion's captain that '(m)y leg was so bad, so painful, I couldn't take it no more * * *. I want a hospital ticket.' The captain gave him the ticket after filling out a report in which he stated that Michalic told him that on December 28, 1955, 'While working with pumpman in pumproom man said he dropped a wrench on his foot and his toe has been sore ever since.' This was the first notice respondent had of any accident. At the hospital in April, a diagnosis was made of 'an infected left great toe nail and gangrene of the left great toe secondary to the Buerger's Disease.' During the spring three amputations were performed on the left leg. first the great left toe, next the left leg below the knee and then part of the leg above the knee. Medical experts, three on behalf of the petitioner and one for the respondent, differed whether, assuming that the wrench dropped on Michalic's left great toe on December 28, there was a causal connection between that trauma and the amputations. This plainly presented a question for the jury's determination. Sentilles v. Inter-Caribbean Corp., 361 U.S. 107, 80 S.Ct. 173, 4 A.L.R.2d 142, and we do not understand that the respondent contends otherwise. The basic dispute between the parties is as to the sufficiency of the proofs to justify the jury's finding with reason that respondent furnished Michalic with a wrench which was not reasonably fit for its intended use. Here a distinction should be noticed between the unseaworthiness and Jones Act claims in this regard. The vessel's duty to furnish seamen with tools reasonably fit for their intended use is absolute, Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; Cox v. Esso Shipping Co., 5 Cir., 247 F.2d 629; and this duty is completely independent of the owner's duty under the Jones Act to exercise reasonable care. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. The differences are stated in Cox v. Esso Shipping Co., supra: 'One is an absolute duty, the other is due care. Where * * * the ultimate issue (is) seaworthiness of the gear * * *. The owner has an absolute duty to furnish reasonably suitable appliances. If he does not, then no amount of due care or prudence excuses him, whether he knew, or could have known, of its deficiency at the outset or after use. In contrast, under the negligence concept, there is only a duty to use due care, i.e., reasonable prudence, to select and keep in order reasonably suitable appliances. Defects which would not have been known to a reasonably prudent person at the outset, or arose after use and which a reasonably prudent person ought not to have discovered would impose no liability.' 247 F.2d, at page 637. Thus the question under Michalic's unseaworthiness claim is the single one as to the sufficiency of the proofs to raise a jury question whether the wrench furnished Michalic was a reasonably suitable appliance for the task he was assigned. To support the Jones Act claim, however, the evidence must also be sufficient to raise a jury question whether the respondent failed to exercise due care in furnishing a wrench which was not a reasonably suitable appliance. The wrench dropped on Michalic's foot while he was using it to unscrew nuts from bolts on the casing of a centrifugal pump in the pumproom. He had been assigned this task by the pumpman after the first assistant engineer sent him from the engine room to the pumproom to help ready the pumps for the vessel's winter lay-up. There were about twenty-five 1 5/8 nuts tightly secured to the bolts on the casing. The pumpman gave him a 1 5/8 straight-end wrench weighing two and one-half pounds and ten to eleven inches long, and also a mallet. The pump was located alongside and some inches below a catwalk, and Michalic had to step down from the catwalk to reach the casing. His task required the gripping of each nut in the claw of the wrench and the hammering of the side of the wrench with the mallet to apply pressure to loosen it. Michalic had removed all but a few of the nuts when he 'had hold of a nut' with the wrench and 'I hit it (the wrench) with the mallet and it slipped off the nut and came down the side of the pump and hit my big toe. * * * Yes, she slipped off the nut on the pump and came down the side of the pump and smashed my big toe.' Michalic contends that the proofs were sufficient to justify the jury in finding with reason that there was play in the claw of the wrench which prevented a tight grip on the nut, thus entitling him to the jury's determination of his unseaworthiness claim, and were also sufficient to justify the jury in finding with reason that the respondent negligently furnished him with a defective wrench, thus entitling him also to the jury's determination of his Jones Act claim. The evidence viewed in a light favorable to him was as follows: The wrench and other pumproom tools were kept in the pumproom toolbox and were used only when the vessel was being prepared for lay-up. The tools were four or five years old. Because of the danger of fire, the tools, including the wrench and mallet which Michalic used, were made of a special spark-proof alloy. The second mate, who had left the Orion on December 19,2 testified that the tools were bronze because 'Bronze tools are for non-striking.' It was the practice to inspect the pumproom tools and replace worn ones before their use at lay-up time, but the first assistant engineer who testified to the practice did not say this inspection was made in 1955; and the pumpman testified that 'It could be' that no one looked at the toolbox for nine months before December 28. The second mate testified that the tools 'had been very beaten and battered, perhaps there for some time.' Michalic testified that he noticed when the pumpman gave him the wrench that it was an 'old beat-up wrench * * * all chewed up on the end.' Michalic said that when he started work 'the wrench was slipping off the nuts; it slipped off every one of them.' He 'had a hard time loosening them off.' He protested to the pumpman that 'This wrench keeps slipping off,' and the pumpman answered 'Never mind about that, do the job as best you can.' The trial judge found the evidence to be insufficient to present a jury question whether the wrench was a reasonably suitable appliance, because 'on the theory the grip is worn * * * there is never any mention of the grip in the case * * *.' The Court of Appeals took the same view, saying 'There was no evidence that the open or jaw end of the wrench was in any way deficient * * * (t)he fact that the wrench slipped is not evidence that its slipping was the consequence of some condition in the jaw or handle of the wrench.' 271 F.2d at page 199. We think that both lower courts erred. True, there was no direct evidence of play in the jaw of the wrench, as in Jacob v. New York City, 315 U.S. 752, 754, 62 S.Ct. 854, 855, 86 L.Ed. 1166. But direct evidence of a fact is not required. Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence. Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, 77 S.Ct. 443, 449, 1 L.Ed.2d 493, note 17.3 The jury, on this record, with the inferences permissible from the respondent's own testimony that inspections were necessary to replace tools of this special alloy because of wear which impaired their effectiveness, could reasonably have found that the wrench repeatedly slipped from the nuts because the jaw of the wrench did not properly grip them. Plainly the jury, with reason, could infer that the colloquy between Michalic and the pumpman, and Michalic's testimony as to slipping, related to the function of the jaw of the wrench in gripping the nuts and that there was play in it which caused the wrench to slip off. Thus the proofs sufficed to raise questions for the jury's determination of both the unseaworthiness and Jones Act claims. 'It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes * * *.' Rogers v. Missouri Pacific R. Co., supra, 352 U.S. at page 506, 77 S.Ct. at page 448.4 The Jones Act claim is double-barreled. Michalic adds a charge of negligent failure to provide him with a safe place to work to the charge of negligence in furnishing him with a defective wrench. However, the case was not tried, nor is it argued here, on the basis that the charge of negligence in failing to provide a safe place to work rests solely on evidence tending to show a cramped and poorly lighted working space, regardless of the suitability of the wrench. On the contrary, Michalic also makes the allegedly defective wrench the basis of this charge, arguing in effect that the described conditions under which he was required to do the work increased the hazard from the use of the defective wrench. Under that theory, the relevance of the testimony is only to the charge of furnishing a defective wrench and the causal connection between that act and his injury. Phrasing the claim as a failure to provide a safe place to work therefore adds nothing to Michalic's case, and he was not entitled to have that claim submitted to the jury as an additional ground of the respondent's alleged liability. The judgment of the Court of Appeals is reversed and the cause remanded to the District Court for a new trial. It is so ordered. Judgment of Court of Appeals reversed and cause remanded to the District Court for new trial. For the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493, MR. JUSTICE FRANKFURTER is of the view that the writ of certiorari was improvidently granted.

362.US.389

252 F. 2d 554, affirmed by an equally divided Court.

The judgment is affirmed by an equally divided Court. Mr. Justice STEWART took no part in the consideration or decision of this case.

362.US.308

Certiorari granted; judgment vacated; and case remanded. Reported below: - So. 2d -.

The motion for leave to proceed in forma pauperis is granted. The motion for leave to file a petition for writ of habeas corpus is denied. Treating the papers submitted as a petition for writ of certiorari, certiorari is granted. In view of the representations of the Attorney General of Florida that the cause has become moot, the judgment of the Supreme Court of Florida is vacated and the cause is remanded for such further proceedings as that Court may deem appropriate. See N. A. A. C. P. v. Committee on Offenses Against Administration of Justice, 358 U.S. 40, 79 S.Ct. 24, 3 L.Ed.2d 46.

364.US.76

The Internal Revenue Code of 1939 permitted taxpayers to deduct as a depletion allowance a percentage of "gross income from mining" and defined "mining" as including the "ordinary treatment processes normally applied by mine owners ... to obtain the commercially marketable mineral product or products." Respondent mines fire clay and shale for which there is a market but which it utilizes to manufacture sewer pipe and other vitrified articles. It claims that it could not profitably market its raw fire clay and shale without processing them into finished products. Held: Respondent's depletion allowance must be based, not upon the value of the sewer pipe and other vitrified products which it manufactures, but upon the value of its raw fire clay and shale after application of ordinary treatment processes normally applied in the recovery of those materials by miners not engaged in the manufacture of finished products. Pp. 77-90. (a) Congress intended to grant miners a depletion allowance based on the constructive income from the raw mineral product, if marketable in that form, and not on the value of finished articles. Pp. 81-86. (b) A depletion allowance is an allowance for the exhaustion of capital assets-not a subsidy to manufacturers or to high-cost mine operators. P. 86. (c) That respondent is both a miner and a manufacturer does not entitle it to treatment different from that accorded miners of the same raw materials who are not manufacturers. Pp. 86-88. (d) That respondent's underground method of mining prevents it from selling its raw fire clay and shale does not entitle it to treatment different from that .accorded to the other miners c* the same raw materials. Pp. 88-89. 268 F. 2d 334, reversed.

This income tax refund suit involves the statutory percentage depletion allowance to which respondent, an integrated miner-manufacturer of burnt clay products from fire clay and shale, is entitled under the Internal Revenue Code of 1939.1 The percentage granted by the statute is on respondent's 'gross income from mining.' It defines 'mining' to include the 'ordinary treatment processes normally applied by mine owners * * * to obtain the commercially marketable mineral product or products.' Respondent claimed that its first 'commercially marketable mineral product' is sewer pipe and other vitrified articles. Alternatively, it contended that depletion should be based on the price of 80 tons of ground fire clay and shale actually sold during the tax year in question. The District Court agreed with respondent's first claim. The Court of Appeals affirmed, holding that respondent could not profitably sell its raw fire clay and shale without processing it into finished products, and that its statutory percentage depletion was therefore properly based on its gross sales of the latter. 268 F.2d 334. The Government contends that the product from which 'gross income from mining' is computed is an industry-wide test and cannot be reduced to a particular operation that a taxpayer might find profitable. The Government further argues that, while the statute permits ordinary treatment processes normally applied by miners to the raw product of their mines to produce a commercially marketable mineral product, it does not embrace the fabrication of the mineral product into finished articles. In view of the importance of the question to taxpayers as well as to the Government, we granted certiorari. 361 U.S. 923, 80 S.Ct. 294, 4 L.Ed.2d 239. We disagree with respondent's contention that the issue is not presented by this record, and we therefore reach the merits. We have concluded that, under the mandate of the statute, respondent's 'gross income from mining' under the findings here is the value of its raw fire clay and shale, after the application of the ordinary treatment processes normally applied by nonintegrated miners engaged in the recovery of those minerals.2 During the tax year ending November 30, 1951, the respondent owned and operated an underground mine from which it produced fire clay and shale in proportions of 60% fire clay and 40% shale. It transported the raw mineral product by truck to its plant at Cannelton, Indiana, about one and one-half miles distant. There it processed and fabricated the fire clay and shale into vitrified sewer pipe, flue lining and related products. In this process, the clay and shale is first ground into a pulverized form about as fine at talcum powder. The powder is then mixed with water in a pug mill and becomes a plastic mass, which is formed by machines into the shape of the finished ware desired. The ware is then placed in dryers where heat of less than 212 is applied to remove all of the water. This process takes from 12 hours to 3 weeks, depending on the size of the ware. Thereafter the ware is vitrified in kilns at 2,200 Fahrenheit, requiring from 60 to 210 hours. It is then cooled, graded and either shipped or stored. Not all clays and shales are suitable for respondent's operations. They must have plasticity, special drying qualities and be able to withstand high temperatures. Respondent's clay, known as Cannelton clay, is the deepest clay mined in Indiana and, respondent says, yields, the best sewer pipe. Its cost of removing and delivering the same to its plant was $2.418 per ton in 1951. Respondent used some 38,473 tons of clay and shale in its operations that year and sold approximately 80 tons of ground fire clay and shale in bags at a price of $22.88 per ton. Net sales of its finished wares amounted to approximately one and a half million dollars. In connection with its tax assessment for the year in question, respondent filed a document in which it stated that 'we used as a basis for calculating the gross income from our mining operations of shale and fire clay the point in our manufacturing operations at which we first arrive with a commercially marketable product, which is ground fire clay. This product arrives after the raw mineral is crushed and granulated to such extent that by the addition of water it can be made into a mortar for use in laying or setting fire or refractory brick. This ground fire clay has a definite market and an ascertainable market value at any particular time and is the same product from which our end product, sewer tile, is made simply by the addition of water adn the necessary baking process'. In this return it based the value of the ground fire clay at $22.81 per ton, the price for which it sold some 80 tons of that material in bags during 1951. At this figure the depletion allowance would have been slightly above $2 per ton. Thereafter respondent claimed error and asserted that its mineral product, rather than being commercially marketable when it reached the stage of ground fire clay, only became commercially marketable when it became a finished product, e.g., sewer pipe. On this basis, the depletion allowance on petitioner's gross income would be approximately $4 per ton, since the mineral would have a value of about $40 per ton. On the other hand, if the mineral it used in 1951 was valued at $1.60 to $1.90 per ton, the going price elsewhere in Indiana, the depletion allowance would be approximately 20¢ per ton. The record shows and the District Court found that in 1951 there were substantial sales of raw fire clay and shale in Indiana, mostly in the vicinity of Brazil, about 140 miles from Cannelton. The average price there was $1.60 to $1.90 per ton for fire clay and $1 per ton for shale. Transportation costs from Brazil to Cannelton ran from $4.58 to $5.50 per ton. In Kentucky, across the river from respondent's plant, it appears that fire clay and shale of the same grade were mined and sold3 before, during and subsequent to 1951. In fact, since 1957 respondent has secured all of its mineral requirements from this source on a lease basis under which the lessor mines and delivers the raw material to its plant. The exact cost is not shown, but the haul in 1957 from pit to plant, including the ferry crossing, was some seven miles. We have carefully studied the legislative history of the depletion allowance, including the voluminous materials furnished by the parties, not only in their briefs but in the exhaustive appendices and the record.4 We shall not burden this opinion with its repetition. In summary, mineral depletion for tax purposes is an allowance from income for the exhaustion of capital assets. Anderson v. Helvering, 1940, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277. In addition, it is based on the belief that its allowance encourages extensive exploration and increasing discoveries of additional minerals to the benefit of the economy and strength of the Nation. We are not concerned with the validity of this theory or with the statutory policy. Our sole function is application of the congressional mandate. A study of the materials indicates that percentage depletion first came into the tax structure in 1926, when the Congress granted it to oil and gas producers. The percentage allowed was based on 'gross income from the property,' which was described as 'the gross receipts from the sale of oil and gas as it is delivered from the property.' Preliminary Report, Joint Committee on Internal Revenue Taxation, Vol. I, Part 2 (1927). The report continued that, as to the integrated operator, 'the gross income from the property must be computed from the production and posted price of oil, as the gross receipts from a refind and transported product can not be used in determining the income as relating to an individual tract or lease.' The Treasury Regulations confirmed this understanding. Treas.Reg. 74 (1929 ed.), Arts. 221(i), 241. Thereafter, in 1932, percentage depletion was extended to metal mines, coal, and sulphur. The mining engineer of the Joint Committee, Alex. R. Shepherd, urged in a report to the Congress5 that depletion for metal mines be computed, as in the oil and gas industry, on a percentage-of-income basis, and the Revenue Act of 1932 was so drawn. The Shepherd Report pointed out that the percentage basis for oil and gas depletion had been in force for over a year and had 'functioned satisfactorily both from economical and administrative viewpoints and without loss of revenue.' It added that 'careful study of this method as applied to metal mines indicates that the same results will be attained in practice as in the case of oil and gas,' but that, because of varied practices in the mining industry, it would be necessary to determine 'the point in accounting at which' gross income from the property mined could be calculated. It recommended that 'it is logical to peg 'gross income from the property' f.o.b. cars at mine,' i.e., net smelter returns, recognizing that processing beyond this point should not be included in calculating 'gross income from the property.' While as to certain metals, viz., gold, silver, or copper, the report suggested that gross income should be based on receipts from 'the sale of the crude, partially beneficiated or refined' product, this was but to make provision for the specific operations of miners in those metals. In this regard the report also proposed that the depreciation base 'in the case of all other metals, coal and oil and gas, (should be) the competitive market receipts, or its e uivalent, received from the sale of the crude products, or concentrates on an f.o.b. mine, mill or well basis.' The Congress in fashioning the 1932 Act took into account these recommendations. It incorporated a provision in the Act allowing percentage depletion for coal and metal mines and sulphur, based on the 'gross income from the property.' § 114(b)(4), Revenue Act of 1932, 47 Stat. 169. On the following February 10, 1933, the Treasury issued its Regulations 77, which defined 'gross income from the property' as 'the amount for which the taxpayer sells (a) the crude mineral product of the property or (b) the product derived therefrom, not to exceed in the case of (a) the representative market or field price * * * or in the case of (b) the representative market or field price * * * of a product of the kind and grade from which the product sold was derived, before the application of any processes * * * with the exception of those listed * * *.' Treas.Reg. 77, Art. 221(g). These exceptions listed processes normally in use in the mining industry for preparing the mineral as a marketable shipping product. The regulation was of unquestioned validity and, in 1943, at the instance of the industry, the Congress substantially embodied it into the statute itself, 58 Stat. 21, 44, including the basic definition of the term 'gross income from the property.'6 Since that time the section on percentage depletion—s 114(b)(4)(B) of the 1939 Code has remained basically the same.7 Additional minerals have been added from time to time—shale and fire clay in 1951—until practically all minerals are included. As now enacted, the section provides that 'mining' includes 'not merely the extraction of the ores or minerals from the ground but also the ordinary treatment processes normally applied by mine owners or operators in order to obtain the commercially marketable mineral product or products,' plus transportation from the place of extraction to the 'plants or mills in which the ordinary treatment processes are applied thereto,' not exceeding 50 miles.8 It then defines 'ordinary treatment processes' by setting out specifically in four categories those covering some 17 named minerals. Fire clay and shale are not within these specific enumerations. The Government, however, contends that they should come within clause (iii) of the section, which provides that, 'in the case of iron ore, bauxite, ball and sagger clay, rock asphalt, and minerals which are customarily sold in the form of a crude mineral product—sorting, concentrating, and sintering to bring to shipping grade and form, and loading for shipment * * *' are included in 'ordinary treatment processes.' (Italics added.) Clause (iv) lists specific metals such as lead, zinc, copper, etc., 'and ores which are not customarily sold in the form of the crude mineral product,' and specifically excludes from the permissible processes certain ones used in connection with these metals. To recapitulate, the section contains four categories of 'ordinary treatment processes': the first enumerating those permissible as to the mining of coal; the second, as to sulphur; the third, as to minerals customarily sold in the form of the crude mineral product; and the fourth, as to those ores not customarily so sold. We note that the Congress even states the steps in each permissible pro ess, and in addition specifically declares some processes not to be 'ordinary treatment' ones, viz., 'electrolytic deposition, roasting, thermal or electric smelting, or refining.' Furthermore, none of the permissible processes destroy the physical or chemical identity of the minerals or permit them to be transformed into new products. From this legislative history, we conclude that Congress intended to grant miners a depletion allowance based on the constructive income from the raw mineral product, if marketable in that form, and not on the value of the finished articles. The findings are that three-fifths of the fire clay produced in Indiana in 1951 was sold in its raw state. This indicates a substantial market for the raw mineral. In addition, large sales of raw fire clay and shale were made across the river in Kentucky. This indicates that fire clay and shale were 'commercially marketable' in their raw state unless that phrase also implies marketability at a profit. We believe it does not. Proof of these sales is significant not because it reveals an ability to sell profitably—which the respondent could not do—but because the substantial tonnage being sold in a raw state provides conclusive proof that, when extracted from the mine, the fire clay and shale are in such a state that they are ready for industrial use or consumption—in short, they have passed the 'mining' state on which the depletion principle operates. It would be strange, indeed, to ascribe to the Congress an intent to permit each miner to adopt processes peculiar to his individual operation. Depletion, as we have said, is an allowance for the exhaustion of capital assets. It is not a subsidy to manufacturers or the high-cost mine operator. The value of respondent's vitrified clay products, obtained by expensive manufacturing processes, bears little relation to the value of its minerals. The question in depletion is what allowance is necessary to permit tax-free recovery of the capital value of the minerals. Respondent insists that its miner-manufacturer status makes some difference. We think not. It is true that the integrated miners in Indiana outnumbered the nonintegrated ones. But in each of the three basic percentage depletion Acts the Congress indicated that integrated operators should not receive preferred treatment. Furthermore, in Regulations 77, discussed above, the Treasury specifically provided that depletion was allowable only on the crude mineral product. And, as we have said, this regulation was substantially enacted into the 1943 Act. We need not tarry to deal with any differences which are said to have existed in administrative interpretation, for here we have authoritative congressional action itself. Ever since the first percentage depletion statute, the cut-off point where 'gross income from mining' stopped has been the same, i.e., where the ordinary miner shipped the product of his mine. Respondent's formula would not only give it a preference over the ordinary nonintegrated miner, but also would grant it a decided competitive advantage over its nonintegrated manufacturer competitor. Congress never intended that depletion create such a discriminatory situation. As we see it, the miner-manufacturer is but selling to himself the crude mineral that he mines, insofar as the depletion allowance is concerned. We now reach what 'ordinary treatment processes' are available to respondent under the statute. As the principal industry witness put it at hearings before the Congress: 'Obviously it was not the intent of Congress that those processes which would take your products and make them into different products having very different uses should be considered, as the basis of depletion.'9 But respondent says that the processes it uses are the ordinary ones applied in the industry. As to the miner-manufacturer, that is true. But they are not the 'ordinary' normal ones applied by the nonintegrated miner. It was he whom the Congress made the object of the allowance. The fabrication processes used by respondent in manufacturing sewer pipe would not be employed by the run-of-the-mill miner—only an integrated miner-manufacturer would have occasion to use them. Respondent further contends, however, that it must utilize these processes in order to obtain a 'commercially marketable mineral product or products.' It points out that its underground method of mining prevents it from selling its raw fire clay and shale. This position leads to the conclusion that respondent's mineral product has no value to it in the ground. If this be true, then there could be no depletion. One cannot deplete nothing. On the other hand, respondent alleges that its minerals yield 'the best sewer pipe which is made in Indiana.' If this be true, then respondent's problem is one purely of cost of recovery, an item which, as we have said, has nothing to do with value in the depletion formulae. Depletion, as we read the legislative history, was designed not to recompense for costs of recovery but for exhaustion of mineral assets alone. If it were extended as respondent asks, the miner-manufacturer would enjoy, in addition to a depletion allowance on his minerals, a similar allowance on his manufacturing costs, including depreciation on his manufacturing plant, machinery and facilities. Nor do we read the use by the Congress of the plural word 'products' in the 'commercially marketable' phrase as indicating that normal processing techniques might include the fabrication of different products from the same mineral. We believe that the Congress was only r cognizing that in mining operations often more than one mineral product was recovered in its raw state. In view of the finding that substantial quantities—in fact, the majority—of the tonnage production of fire clay and shale were sold in their raw state, we believe that respondent's mining activity during the year in question would come under clause (iii) of the section here involved. That clause includes 'minerals which are customarily sold in the form of a crude mineral product.' We believe that the Congress intended integrated mining-manufacturing operations to be treated as if the operator were selling the mineral mined to himself for fabrication. It would, of course, be permissible for such an operator to calculate his 'gross income from mining' at the point where 'ordinary' miners—not integrated disposed of their product. All processes used by the nonintegrated miner before shipping the raw fire clay and shale would under such a formula be available to the integrated miner-manufacturer to the same extent but no more. Nor do we believe that the District Court and Court of Appeals cases involving percentage depletion and cited by respondent are apposite here.10 We do not, however, indicate any approval of their holdings. It is sufficient to say that on their facts they are all distinguishable. In view of these considerations, neither of respondent's alternate claims for depletion allowance is appropriate. The judgment of the Court of Appeals is therefore reversed, and the cause remanded for further proceedings in conformity with this opinion. It is so ordered. Reversed and remanded.

362.US.610

Subpoenaed to testify before a federal grand jury, petitioner refused, on grounds of possible self-incrimination, to answer questions relevant to the grand jury's inquiry. The grand jury sought the aid of the district judge, who heard arguments on the subject, ruled that petitioner would be accorded immunity as extensive as the privilege he had asserted, and ordered him to answer the questions. After returning to the grand jury room, petitioner persisted in his refusal, and he was again brought before the district judge, who addressed the same questions to him in the presence of the grand jury, explicitly directed him to answer them, and, upon his refusal to do so, adjudged him guilty of criminal contempt and sentenced him to imprisonment for one year. During these proceedings, everyone was excluded from the courtroom except petitioner, his counsel, the grand jury, government counsel, the judge and the court reporter; but no objection to the exclusion of the general public was made at any stage of the proceedings. Held: In the circumstances of this case, exclusion of the public from the courtroom when petitioner was adjudged guilty of criminal contempt and-sentenced did not invalidate his conviction. Pp. 611-620. (a) A proceeding for criminal contempt under Rule 42 (a) of the Federal Rules of Criminal Procedure is not a "criminal prosecution" within the meaning of the Sixth Amendment, which explicitly guarantees the right to a "public trial" only for "criminal prosecutions." P. 616. (b) It was not error for the judge to clear the courtroom initially when the grand jury appeared before him for the second time seeking his assistance in compelling petitioner to testify; and, in light of the presence of petitioner's counsel and his failure to object to the continued exclusion of the public, failure of the judge to reopen the courtroom to the general public on his own motion before adjudging petitioner in contempt and sentencing him did not violate the Due Process Clause of the Fifth Amendment. Pp. 616-620. 267 F. 2d 335, affirmed.

This is a prosecution for contempt arising from petitioner's refusal to answer a series of questions propounded to him by a federal grand jury. In every respect but one, this case is a replica of Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609, and as to all common issues it is controlled by that case. In Brown, however, we expressly declined to decide the effect of claimed 'secrecy' upon proceedings culminating in the petitioner's sentencing for contempt, 'because the record does not show this to be the fact.' 359 U.S. at page 51, 79 S.Ct. at page 547, note 11. Here, it appears that the contemptuous conduct, the adjudication of guilt, and the imposition of sentence all took place after the public had been excluded from the courtroom, in what began and was continued as 'a Grand Jury proceeding.' The effect of this continuing exclusion in the circumstances of the case is the sole question presented. On the morning of April 18, 1957, pursuant to a subpoena, petitioner appeared as a witness before a federal grand jury in the Southern District of New York engaged in investigating violations of the Interstate Commerce Act. He was asked six questions relevant to the grand jury's investigation. After consultation with his attorney, who was in an anteroom, he refused to answer them on the ground that they might tend to incriminate him. He persisted in this refusal after having been directed to answer by the foreman of the grand jury and advised by government counsel that applicable statutes gave him complete immunity from prosecution concerning any matter as to which he might testify. See 49 U.S.C. § 305(d), 49 U.S.C.A. § 305(d). Later that day the grand jury, government counsel, petitioner and his attorney appeared before Judge Levet, sitting in the District Court for the Southern District of New York, the grand jury having sought 'the aid and assistance of the Court, in a direction to a witness, Morry Levine, who has this morning appeared before the Grand Jury and declined to answer certain questions that have been put to him.' The record of the morning's proceedings before the grand jury was read. After argument by counsel, the judge ruled that the adequate immunity conferred by statute deprived petitioner of the right to refuse to answer the questions put to him. Petitioner was ordered to appear before the grand jury on April 22, and was directed by the court then to answer the questions. On the morning of April 22 petitioner appeared before the grand jury. The questions were again put to him and he again refused to answer. Once again the grand jury, government counsel, petitioner and his counsel went before Judge Levet, for 'the assistance of the Court in regard to the witness Morry Levine.' At this time the record shows the following: 'The Court: Will those who have no other business in the courtroom please leave now? I have a Grand Jury proceeding. 'The Clerk: The Marshal will clear the court room. '(Court room cleared by the Marshals.)' Petitioner, his counsel, the grand jury, government counsel and the court reporter remained. Petitioner objected to further participation by the court in the process of compelling his testimony, except according to the procedures prescribed by Rule 42(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. That provision, which relates to contempts generally, excluding those 'committed in the actual presence of the court' as to which the judge certifies 'that he saw or heard the conduct constituting the contempt,' provides in effect for a conventional trial. In petitioner's view the court was compelled to regard his contempt, if any, as having already been committed out of the presence of the court, through petitioner's disobedience before the grand jury that morning of the court's order of April 18. The judge, however, did not treat petitioner's renewed refusal to answer the grand jury's questions as a definitive contempt. He chose to proceed just as he had two weeks earlier in the case of Brown, reviewed here as Brown v. United States, supra, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609. The morning's grand jury proceedings, showing petitioner's refusals to answer, were read, and petitioner was ordered by the judge to take the stand. The court indicated it was proceeding as '(t)he Court and the Grand Jury' 'in accordance with Rule 42(a),' which relates to the procedure in cases of contempt 'committed in the actual presence of the court.' Over objection, the court then put to petitioner the six questions which he had refused to answer when propounded by the grand jury. Petitioner again refused to answer these questions on the claim of the privilege against self-incrimination. In answer to a question by the court he stated that he would continue to refuse on that ground should the grand jury again put the questions to him. Government counsel asked that petitioner be adjudged in contempt 'committed in the physical presence of the Judge.' The court asked for reasons 'why I should not so adjudicate this witness in contempt.' Petitioner's counsel made three points: (1) that the procedures had not been in accordance with 'the requirements of due process'; (2) that the procedures had not followed the requirements of Rule 42(b) of the Federal Rules of Criminal Procedure; and (3) that, on the merits of the charge, the statutory immunity was not sufficiently extensive to deprive petitioner of his privilege not to answer. No reference was made to the exclusion of the general public from the proceedings. Petitioner was adjudicated in contempt and, after submission by counsel of views regarding sentence, one year's imprisonment was imposed. The conviction was affirmed by the Court of Appeals, 267 F.2d 335, and we granted certiorari, 361 U.S. 860, 80 S.Ct. 118, 4 L.Ed.2d 101, limiting our grant to the question left open in Brown v. United States, namely, whether the 'secrecy' of the proceedings offended either the Due Process Clause of the Fifth Amendment of the Constitution or the public-trial requirement of the Sixth Amendment. The course of proceeding followed by the District Court in this case for compelling petitioner's testimony was the one approved in Brown. Specifically, it was established by that case that, after petitioner had disobeyed the court's direction to answer the grand jury's questions before that body, it was proper for the court, upon application of the grand jury, (1) to disregard any contempt committed outside its presence; (2) to put the questions directly to petitioner in the court's presence as well as in the presence of the grand jury; and (3) to punish summarily under Rule 42(a) as a contempt committed 'in the actual presence of the court' petitioner's refusal thereupon to answer. It was surely not error for the judge initially to have cleared the courtroom on April 22 when the grand jury appeared before him for the second time seeking his 'assistance * * * in regard to the witness Morry Levine.' The Secrecy of grand jury proceedings is enjoined by statute (see 18 U.S.C. § 1508, 18 U.S.C.A. § 1508, and Federal Rules of Criminal Procedure 6(d) and (e)), and a necessary initial step in the proceedings was to read the record of the morning's grand jury proceedings. The precise question involved in this case, therefore, is whether it was error, once the courtroom had been properly, indeed necessarily, cleared, for petitioner's contempt, summary conviction and sentencing to occur without inviting the general public back into the courtroom. From the very beginning of this Nation and throughout its history the power to convict for criminal contempt has been deemed an essential and inherent aspect of the very existence of our courts. The First Congress, out of whose 95 members 20, among them some of the most distinguished lawyers, had been members of the Philadelphia Convention, explicitly conferred the power of contempt upon the federal courts. Section 17 of the Judiciary Act of 1789, 1 Stat. 73, 83, 18 U.S.C.A. § 401. That power was recognized by this Court as early as 1812, in a striking way. United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259. As zealous a guardian of the procedural safeguards of the Bill of Rights as the first Mr. Justice Harlan, in sustaining the power summarily to punish contempts committed in the face of the court, described the power in this way: 'the offender may, in (the court's) discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; * * * such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions.' Ex parte Terry, 1888, 128 U.S. 289, 313, 9 S.Ct. 77, 83, 32 L.Ed. 405. It is a particular exercise of this power of summary punishment of contempt committed in the court's presence which is at issue in this case. This Court has not been wanting in effective alertness to check abusive exercises of that power by federal judges. See Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767; Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11. It would, however, be throwing the baby out with the bath to find it necessary, in the name of the Constitution, to strangle a power 'absolutely essential' for the functioning of an independent judiciary, which is the ultimate reliance of citizens in safeguarding rights guaranteed by the Constitution. Procedural safeguards for criminal contempts do not derive from the Sixth Amendment. Criminal contempt proceedings are not within 'all criminal prosecutions' to which that Amendment applies. Ex parte Terry, 128 U.S. 289, 306—310, 9 S.Ct. 77, 80—82, 32 L.Ed. 405; Cooke v. United States, 267 U.S. 517, 534—535, 45 S.Ct. 390, 394, 69 L.Ed. 767; Offutt v. United States, 348 U.S. 11, 14, 75 S,.ct. 11, 13, 99 L.Ed. 11. But while the right to a 'public trial' is explicitly guaranteed by the Sixth Amendment only for 'criminal prosecutions,' that provision is a reflection of the notion, deeply rooted in the common law, that 'justice must satisfy the appearance of justice.' Offutt v. United States, 348 U.S. 11, at page 14, 75 S.Ct. 11, at page 13. Accordingly, due process demands appropriate regard for the requirements of a public proceeding in cases of criminal contempt, see In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, as it does for all adjudications through the exercise of the judicial power, barring narrowly limited categories of exceptions such as may be required by the exigencies of war, see Amendment to Rule 46 of the Admiralty Rules, June 8, 1942, 316 U.S. 717, revoked May 6, 1946, 328 U.S. 882, 28 U.S.C.A., or for the protection of children, see 18 U.S.C. § 5033, 18 U.S.C.A. § 5033. Inasmuch as the petitioner's claim thus derives from the Due Process Clause and not from one of the explciitly defined procedural safeguards of the Constitution, decision must turn on the particular circumstances of the case, and not upon a question-begging because abstract and absolute right to a 'public trial.' Cf. Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 114—117, 54 S.Ct. 330, 335—336, 78 L.Ed. 674. The narrow question is whether, in light of the facts that the grand jury, petitioner and his counsel were present throughout and that petitioner never specifically made objection to the continuing so-called 'secrecy' of the proceedings or requested that the judge open the courtroom, he was denied due process because the general public remained excluded from the courtroom. The grand jury is an arm of the court and its in camera proceedings constitute 'a judicial inquiry.' Hale v. Henkel, 201 U.S. 43, 66, 26 S.Ct. 370, 375, 50 L.Ed. 652. 'The Constitution itself makes the grand jury a part of the judicial process. It must initiate prosecution for the most important federal crimes. It does so under general instructions from the court to which it is attached and to which, from time to time, it reports its findings.' Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 542, 84 L.Ed. 783. Unlike an ordinary judicial inquiry, where publicity is the rule, grand jury proceedings are secret. In the ordinary course, therefore, contempt of the court committed through a refusal to answer questions put before the grand jury does not occur in a public proceeding. Publicity fully satisfying the requirements of due process is achieved in such a case when a public trial upon notice is held on the charge of contempt under Rule 42(b) of the Federal Rules of Criminal Procedure. Brown v. United States, supra, established that a grand jury as an arm of the court has available to it another course to vindicate its authority over a lawlessly recalcitrant witness. Appeal may be made to the court under whose aegis the grand jury sits to have the witness ordered to answer the grand jury's inquiries in the judge's physical presence, so that the court's persuasive exertion to induce obedience, and its power summarily to commit for contempt should its authority be ignored, may be brought to bear upon him. Since such a summary adjudication of contempt occurs in the midst of a grand jury proceeding, a clash may arise between the interest, sanctioned by history and statute, in preserving the secrecy of grand jury proceedings, and the interest, deriving from the Due Process Clause, in preserving the public nature of court proceedings. In the present case grand jury secrecy freely gave way insofar as petitioner's counsel was present and was permitted to be fully active in behalf of his client throughout the proceedings before Judge Levet. Petitioner had ample notice of the court's intention to put the grand jury's questions directly to him, and to proceed against him summarily should he persist in his refusal to answer. Had petitioner requested, and the court denied his wish, that the courtroom be opened to the public before the final stage of these proceedings we would have a different case. Petitioner had no right to have the general public present while the grand jury's questions were being read. However, after the record of the morning's grand jury proceedings had been read, and the six questions put to petitioner with a direction that he answer them in the court's presence, there was no further cause for enforcing secrecy in the sense of excluding the general public. Having refused to answer each question in turn, and having resolved not to answer at all, petitioner then might well have insisted that, as summary punishment was to be imposed, the courtroom be opened so that the act of contempt, that is, his definitive refusal to comply with the court's direction to answer the previously propounded questions, and the consequent adjudication and sentence might occur in public. See Cooke v. United States, 267 U.S. 517, 534—536, 45 S.Ct. 390, 394—395, 69 L.Ed. 767. To repeat, such a claim evidently was not in petitioner's thought, and no request to open the courtroom was made at any stage of the proceedings. The continuing exclusion of the public in this case is not to deemed contrary to the requirements of the Due Process Clause without a request having been made to the trial judge to open the courtroom at the final stage of the proceeding, thereby giving notice of the claim now made and affording the judge an opportunity to avoid reliance on it. This was not a case of the kind of secrecy that deprived petitioner of effective legal assistance and rendered irrelevant his failure to insist upon the claim he now makes. Counsel was present throughout, and it is not claimed that he was not fully aware of the exclusion of the general public. The proceedings properly began out of the public's presence and one stage of them flowed naturally into the next. There was no obvious point at which, in light of the presence of counsel, it can be said that the onus was imperatively upon the trial judge to interrupt the course of proceedings upon his own motion and establish a conventional public trial. We cannot view petitioner's untenable general objection to the nature of the proceedings by invoking Rule 42(b) as constituting appropriate notice of an objection to the exclusion of the general public in the circumstances of this proceeding under Rule 42(a). This case is wholly unlike In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682. This is not a case where it is or could be charged that the judge deliberately enforced secrecy in order to be free of the safeguards of the public's scrutiny; nor is it urged that publicity would in the slightest have affected the conduct of the proceedings or their result. Nor are we dealing with a situation where prejudice, attributable to secrecy, is found to be sufficiently impressive to render irrelevant failure to make a timely objection at proceedings like these. This is obviously not such a case. Due regard generally for the public nature of the judicial process does not require disregard of the solid demands of the fair administration of justice in favor of a party who, at the appropriate time and acting under advice of counsel, saw no disregard of a right, but raises an abstract claim only as an afterthought on appeal. Affirmed.

364.US.137

kn independent producer of natural gas contracted to sell to an, interstate pipeline company from. specified reserves a specified amount of gas each year at specified prices for a term of 20 years, and it applied to the Federal Power Commission under the Natural Gas Act for a certificate of convenience and necessity authorizing it to make such sales for a term of 20 years only. Instead, the Commission tendered a certificate without any time limitation. The producer accepted it, reserving the right to object, on review, to the unlimited nature of the certificate. Held: The Commission did not exceed its authority in issuing a certificate unlimited as to time. Pp. 138-158. (a) To hold that the Commission must place a time limitation upon such a certificate (1) would greatly impair its control under § 7 (b) over the abandonment by natural gas companies of their facilities and services subject to the jurisdiction of the Commission, and (2) would make unavailable the procedural safeguards under §§ 4 (d) and 4 (e) which are applicable to rate changes. Pp. 141-147. (b) A different conclusion is not required by the language of § 7 (e) authorizing the Commission to issue a certificate "authorizing the whole or any part of the operation, sale, service, construction, extension, or acquisition covered by the application." Pp. 147-151. (c) The authority of the Commission to issue a certificate utimited- as to time should not be denied on the theory that it aould accomplish the sime result indirectly, either (1) by denying.all applications for limited certificates, or (2) by prescribing conditions under § 7 (e) that the certificates be permanent. Pp. 151-152. (d) The conclusion here rdached is supported by the consisient administrative practice of the Commission in making a clear distinction between the underlying '"service" to the public and the contractual means by which it is implemented. Pp. 152-154. (e) The conclusion here reached is not inconsistent with that reached in United Gas Pipe Line Co. v. Mobile Ga. Service Corp., 350 U. S. 332. Pp. 154-156. (f) An initial application of an independent producer to sell natural gas in interstate commerce leads to a certificate of public convenience and necessity under which the Commission controls the basis on which the gas may be initially dedicated to interstate use, Atlantic Refining Co. v. Public Service Commission, 360 U. S. 378; and once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval. P. 156. (g) Other objections to the Commission's order either are not properly before this Court or are without merit. Pp. 156-158. 267"F. 2d 471, affirmed.

This case presents an important question under the Natural Gas Act.1 This question , central to the case, is: When a company, proposing to make, under contract, jurisdictional sales2 of natural gas in interstate commerce, applies for a certificate of public convenience and necessity as required by the Act, and requests that the certificate be limited in time to the duration of a contract for the sale of gas which it has entered, does the Federal Power Commission have the authority to tender it, instead, a certificate without time limitation? Petitioner Sunray Mid-Continent Oil Company, an independent producer of natural gas, entered into a contract with United Gas Pipeline Company, an interstate transmission company. The contract covered considerable acreage owned by, or under mineral least to, petition in Vermilion and Lafayette Parishes, Louisiana, in and about what is called the Ridge field. Under it, United agreed to take an annual amount of gas from petition equivalent to 4.5625 per cent of petitioner's gas reserves in the area covered by the agreement;3 and United had the right, in addition, to call for any amount up to 150 per cent of the amount it had annually agreed to take. The term of the agreement was 20 years. The initial price provided was 20.5 cents per thousand cubic feet (Mcf.); and the price was to increase one cent per Mcf. every five years.4 Section 7(c) of the Natural Gas Act provides that "no natural-gas company * * * shall engage in the transportation or sale of natural gas, subject to the jurisdiction of the Commission * * * unless there is in force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commissioner authorizing such acts or operations." This Court held in Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 796, 98 L.Ed. 1035, that by virtue of § 1(b) of the Act, sales of gas by an independent producer to a pipeline "in interstate commerce * * * for resale for ultimate public consumption" came within the scope of the Act.5 Petitioner had no certificate of public convenience and necessity authorizing sales in interstate commerce from the field in question. Accordingly, in order to carry out its contract with United, it was necessary for petitioner to apply for a certificate from the Commission, which it did. Petitioner's application for the certificate contained the request that the certificate sought "provide for its own expiration on the expiration of the * * * contract term so as to authorize Applicant to cease the delivery and sale of gas thereunder at that time." The Commission, upholding its examiner's recommendations, rejected the contentions of petitioner that there should be issued to cover the contract only a certificate limited to the term of the contract itself, and tendered it a certificate without time limitations.6 19 F.P.C. 618. Petitioner applied for a rehearing of the Commission's order. Basic to this application was the contention that "The Commission is without authority to issue a certificate to an applicant authorizing more than the whole or some part of the sale covered by the application for certificate of public convenience and necessity * * *." The Commission denied the rehearing application. 19 F.P.C. 1107. Petitioner did not avail itself of its undoubted right to stand firm on its own application, and reject the proffered certificate. Cf. Atlantic Refining Co. v. Public Services Comm., 360 U.S. 378, 387-88, 79 S.Ct. 1246, 1252, 1253, 3 L.Ed.2d 1312.7 Instead it accepted the Commission's certificate and commenced deliveries of gas under it, reserving its right to object, on review, to the certificate's unlimited nature. The Court of Appeals for the Tenth Circuit rejected petitioner's objections, and affirmed the order of the Commission, 267 F.2d 471. In view of the importance of the central question presented, to which we have already alluded, we granted certiorari. 361 U.S. 880, 80 S.Ct. 151, 4 L.Ed.2d 118. We are in agreement with the Court of Appeals, and affirm its judgment. The practical reasons behind petitioner's superficially self-abnegating desire to have a limited rather than an unlimited authorization from the Commission are obvious from a study of the Natural Gas Act's provisions. Obvious also is the damaging effect that acceptance of petitioner's central contention would have upon the policies of the Act. Section 7(b) of the Natural Gas Act regulates the abandonment by natural-gas companies of their facilities and services subject to the jurisdiction of the Commission.8 The section follows a common pattern in federal utility regulation9 in forbidding such abandonment "without the permission and approval of the Commission first had and obtained." The Commission is to extend permission for an abandonment of service only on a finding "that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment." The proposal of petitioner was for a certificate that would by its own terms expire when the contract with United expired. Thus at the end of the period, petitioner would become free to cease supplying gas to the interstate market from the Ridge area without further leave of the Commission, and without there having been made the findings that Congress deemed necessary. If petitioner's contentions, as to the want of authority in the Commission to grant a permanent certificate where one of limited duration has been sought for, were to be sustained, the way would be clear for every independent producer of natural gas to seek certification only for the limited period of its initial contract with the transmission company, and thus automatically be free at a future date, untrammeled by Commission regulation, to reassess whether it desired to continue serving the interstate market. And contracts—as did the 1947 contract in the companion case to the one at bar, Sun Oil Co. v. Federal Power Comm., 364 U.S. 170, 80 S.ct. 1388, might provide for termination in the event of a rate reduction by the Commission. Petitioner's theory, by tying the term of the certificate to the contract, would mean that such a reduction of rates would under those circumstances enable the producer to cease supplying gas, without obligation to justify its cessation of this service as being consistent with the public convenience and necessity. The consequences of petitioner's argument do not stop there. The identical provisions of the Natural Gas Act regulate pipeline companies as well as independent producers. If producers can insist in their certificates on the inclusion of a provision relieving them in advance from their obligation to continue the supply of gas, as of a date certain, pipeline companies—whose dealings with local distributing companies generally also take the form of a "sale" of gas to them—could insist on a similar provision. If an individual producer were thus left free to discontinue his supply, the transmission company would be forced to find a supplier of gas elsewhere, and make connection with him, to continue its service; and the consumer ultimately would pay the bill for the rearrangement. If the pipeline company were left free to cease its service to the local distribution company, a local economy which had grown dependent on natural gas as a fuel would be at its mercy. And this, though the primary practical problem that led to the passage of the Act was the great economic power of the pipeline companies as compared with that of communities seeking natural gas service. See Federal Power Comm. v. Hope Natural Gas Co., 320 U.S. 591, 610, 64 S.ct. 281, 291, 88 L.Ed. 333. And there are practical consequences, related to rate control, which are even more concrete. The companion case, sun Oil Co. v. Federal Power Comm., 364 U.S. at page 170, 80 S.Ct. at page 1388, illustrates them. If petitioner's certificate of public convenience must expire with its first contract with United, service after then—under a new contract or otherwise—will require a new certificate. And under that certificate, petitioner may file, pursuant to § 4(c) of the Act,10 its rates for the "new" service. The only power the Commission would have, under the Act, with respect to those rates, would be to bear the burden of proof in an investigation under § 5 of the Act,11 that the rates are unjust or unreasonable, and thereupon order a new rate, solely for prospective application. Last Term in the so-called Catco case, Atlantic Refining Co. v. Public Service Comm., supra, 360 U.S. at page 389, 79 S.ct. at page 1254, 3 L.Ed.2d 1312, we had occasion to remark that "the delay incident to determination in § 5 proceedings through which initial certificated rates are reviewable appears nigh interminable." At oral argument, counsel for the Commission confirmed that no contested major producer's § 5 case had been finally adjudicated by the Commission in the six years since this Court's decision in the Phillips case. In contrast to § 5 are the protections that would be available if at the conclusion of the original contract the producer's certificate remained in full force and effect. Then the rates to be charged under a new contract or otherwise would have to be filed as rate changes under § 4(d) of the Act, with 30 days' notice to the Commission and the public.12 Under § 4(e), the Commission, on complaint of any State, state commission, or municipality, or sua sponte, may order a hearing on the new rate, and suspend the effectiveness of the rate for five months.13 At the hearing, the gas company would have to shoulder the burden of proving that its new rates were just and reasonable. If the hearing were not concluded by the end of the suspension period, the increased rate could be collected ad interim; but the Commission is empowered to require the company to collect the increment under bond and accounting, and refund it if it could not make out its case for the increase. Clearly, the rate of change provisions of §§ 4(d) and 4(e), rather than the "initial rate" provisions of § 4(c), are better tailored to the situation that exists when an initial contract of sale of natural gas terminates, and the supply of gas continues, whether under a new contract or without one. When a producer commences interstate sales from a particular field, or when an interstate transmission company commences sales to a local distributing company, there are by definition no existing rates, and accordingly the protective provisions of §§ 4(d) and (e), which are bottomed on delaying the effectiveness of, and suspending, changes, are not relevant. But of course this is not the case where one sales contract expires and service continues; in this situation, where a rate change is proposed, the protective provisions fit as well as they do in the case of a rate change made pursuant to a contract, during its term. Thus it is apparent that petitioner's position would enable it to make what in practical effect would be rate changes, but without compliance with the procedures of §§ 4(d) and 4(e), and subject to revision only in procedures which are likely to "provide a windfall for the natural gas company with a consequent squall for the consumers," as we said in Catco. 360 U.S., at page 390, 79 S.ct. at page 1254. When attached to the leverage of a power to abandon service, at a contract's termination, without contemporaneous Commission approval, this power to exercise contractual control not only over rates but over the mode of their regulation, would be a substantial one indeed. And, like the power to force an advance license for the abandonment of the continued supply of gas, the power would be one enjoyed by pipeline companies and producers alike. Further, declaration today of a want of authority in the Commission to issue a certificate of longer duration than that of a sales contract attached to the application would have a retroactive effect; it would at least furnish a guide to the construction of certificates issued previously on such applications. See Sun Oil Co. v. Federal Power Comm., 364 U.S. at page 170, 80 S.Ct. at page 1388. This Court declared as early as the Hope Natural Gas case that the primary aim of the Natural Gas Act was "to protect consumers against exploitation at the hands of natural gas companies." 320 U.S. 591, 610, 64 S.Ct. 281, 291, 88 L.Ed. 333. We reiterated that declaration last Term in Catco, and observed that "The Act was so framed as to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges." 360 U.S., at page 388, 79 S.Ct. at page 1253. Against the backdrop of the practical consequences of the petitioner's claim and the purposes of the Act, we look to the details of its argument that the Commission is limited, in granting its certificate of public convenience and necessity, to a term certificate of the duration petitioner has proposed. First. Petitioner's argument is based primarily on its construction of § 7(e) of the Act. That section provides that a certificate of public convenience and necessity shall be issued "to any qualified applicant therefor, authorizing the whole or any part of the operation, sale, service, construction, extension or acquisition covered by the application."14 This petitioner urges, makes it clear that the outside limit of what the Commission may authorize is what the applicant proposes. Further, petitioner urges that the language requiring a finding "that the applicant is able and willing properly to do the acts and to perform the service proposed" negates the Commission's authority to go beyond the time limitations the applicant inserts in its proposal; for it is claimed that it cannot be found that petitioner is willing to do more than what it has proposed. Under petitioner's theory, the abandonment provisions of § 7(b) would have application only if it was desired to abandon service while the contract was still in effect. The argument seems to us unpersuasive even on the face of the statutory language. It depends in the first instance upon freightening the phrase "the whole or any part," obviously intended to give the Commission power to grant less than the whole of an application with a load of negative meaning which nothing in the legislative history indicates that it was to bear. Even without the illumination of the purpose of the Act, it could be argued with equal force that all that was meant was that the certificate to be granted be one sufficient to authorize the specific "sale" proposed; which an unlimited certificate clearly is, in any case. But apart from this, petitioner's contention depends on the assumption that the provisions relied upon speak only in terms of the specific "sale" contemplated by the parties and not in terms of a "service" in the movement of gas in interstate commerce, of which "service" the initial "sale" is the commencement. For under § 7(e) the Commission is authorized to issue a certificate authorizing the "service" covered by the application, as well as a "sale"; and since § 7(c),15 which details the acts for which a certificate is a prerequisite, sets forth no specific antecedent for the "service" to which § 7(e) refers, it might well be thought that one who "engage[s] in the transportation or sale of natural gas," which § 7(c) does refer to, is performing a "service" within the meaning of § 7(e). Certainly there is no more likely antecedent in § 7(c). The structure of § 4(c) presents the same feature,16 and that of the abandonment provisions of § 7(b) themselves17 looks the same way. Furthermore, within § 7(e) itself, there is found the further requirement to which petitioner itself points—that with respect to an application for a certificate of any nature, a two-part finding must be made: that the applicant is willing and able "to do the acts and to perform the service proposed." Thus, it is evident that all matters for which a certificate is required—the construction of facilities or their extension, as well as the making of jurisdictional sales—must be justified in terms of a "service" to which they relate. Accordingly, § 7(e) itself gives positive indication that the "service" which the Commission's certificate may authorize is something quite apart from simply the specific sales which § 7(c) forbids without a certificate sufficient to authorize them. To be sure, § 7(e) requires that the applicant be found willing to perform the "service" in question; but surely such willingness can be inferred from its willingness to enter into a long-term sales contract. To say that the finding cannot be made in view of the applicant's declared desire to stop and have a look in 20 years as to its continued desire to be subject to regulation, and that this is a limit on its willingness to perform the service that the certificates must respect, is to make effective regulation turn on the desire of the regulated enterprise to be subject to it.18 The willingness to make the proposed "sale" thus must imply willingness to perform the "service" which it represents. Thus even as a verbal argument, petitioner's contentions lack persuasiveness. Second. Once we pass beyond parsing the Act to a consideration of its purpose, and of the practice under it, the construction we have given it becomes inescapable. We have outlined the serious consequences for the regulatory scheme that acceptance of the petitioner's argument would entail. These consequences cannot readily be averted by other means suggested by the Act. It is urged that if it is in the public interest to award only an unlimited certificate, the Commission might attain this end by refusing all applications for a limited one, intimating that an unlimited application would be favorably regarded. But the action of the Commission is refusing the certificate as originally applied for would be subject to judicial review; and once it were held that the Commission had no authority to award a certificate of longer duration than that prayed for, such an indirect method of attaining the same end might well meet judicial condemnation as arbitrary. There is also some suggestion that the Commission might use its power, under § 7(e), of attaching to the certificate "such reasonable terms and conditions as the public convenience and necessity may require," to attach the "condition" that the certificate be permanent. But again, once want of power to do this directly were established, the existence of power to achieve the same end indirectly through the conditioning power might well be doubted; and the acceptance of a certificate for a longer duration than requested might not be said properly to be a "term or condition" of a limited one at all.19 We think the Commission's power to protect the public interest under § 7(e) need not be restricted to these indirect and dubious methods. The Commission's practice supports its authority here in the terms of § 7(e). It has long drawn a distinction between the underlying service to the public a natural gas company performs and the specific manifestation—the contractual relationship—which that service takes at a given moment. For example, an independent producer may file as its rate schedule its contract of sale with a pipeline company. That contract may provide in explicit terms for an adjustment of rates at a future time—even one foreordained in a precise amount. Yet when the adjustment is made pursuant to the contract, the adjustment is subject, as a "change" in rates, to the procedures of §§ 4(d) and 4(e)—however explicit the upward adjustment was in the contract from the start. Cr. Texas Gas Transmission Corp. v. Shell Oil Co., 363 U.S. 263, 80 S.Ct. 1122. This position of the Power Commission is evidence that the service in which the producer engages is distinct from the contract which regulates his relationship with the transmission company in performing the service. And it has been upheld in every Court of Appeals case on the question. Episcopal Theological Seminary of the Southwest v. Federal Power Comm., 106 U.S.App.D.C. 37, 269 F.2d 228; Bel Oil Corp. v. Federal Power Comm., 5 Cir., 255 F.2d 548, and companion cases; Continental Oil Co. v. Federal Power Comm., 5 Cir., 236 F.2d 839; Cities Service Gas Producing Co. v. Federal Power Comm., 10 Cir., 233 F.2d 726; Mississippi River Fuel Corp. v. Federal Power Comm., 8 Cir., 121 F.2d 159. See United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., 358 U.S. 103, 110, 79 S.Ct. 194, 198, 3 L.Ed.2d 153. If the Act does not contemplate that in a seller's contract there may inhere the power, of the contract's own accord, to effect a rate change at a future date unchecked by the regulatory scheme, it is hard to believe that it contemplated that contracts would of necessity have the effect of providing for a discontinuance of service, without further leave of the Commission. Further, the Power Commission has from an early date taken the view that there is a continuing obligation to perform "service" imposed by the Act which outlasts the term of a seller's original contract of sale. As early as 1942 it held that an abandonment of service after the expiry of such a contract had to have Commission approval under § 7(b). United Gas Pipe Line Co., 3 F.P.C. 3, 9. This ruling was made by Commissioners who had been in office during the passage of the Act.20 It was not a fundamental ruling on a broad question of jurisdiction as to which a court might enjoy a wider latitude of review. See Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 678, 74 S.Ct. 794, 796, 98 L.Ed. 1035. It was rather an early implementation and application of a detail of the statutory scheme by the Commission in a regulatory setting before it. The ruling has been followed, see Panhandle Eastern Pipe Line Co., 11 F.P.C. 167, 172, and we think this contemporaneous and consistent construction, pointing again to a distinction between the underlying "service" to the public and the contractual means by which it is implemented, is to be afforded weight in the construction we make. Third. But against these considerations, it is urged that United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373, establishes dominant factors which impel one to the construction petitioner would put on the Act. Petitioner claims that Mobile establishes a principle that the Act (unlike many other regulatory schemes)21 in general preserves the integrity of private contracts, and that the judgment below is in conflict with that principle. The petitioner states accurately enough the principle that Mobile establishes. See 350 U.S., at pages 338, 344, 76 S.Ct. at pages 377, 380. But the conclusion petitioner asserts does not follow. In Mobile, this Court held that where a seller of gas had entered into a contract for the sale, it could not, by virtue of the provision in § 4 for rate changes, file an increase in rates that violated the terms of the contract. This was because the scheme of the Act was one which built the regulatory system on a foundation of private contracts. It was held in the Memphis case, United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., supra, that the corollary of Mobile was that where the contract left the seller free to act, he could act unilaterally under § 4. It is apparent that the Commission's order in no way violates the integrity of petitioner's contract with United. During its term, both parties are bound by it to the same extent as any members of this regulated industry. When it expires, petitioner, to be sure, will be under an obligation to continue to deliver gas to United on the latter's request unless it can justify an abandonment before the Commission; but we do not see how this in any way disturbs the integrity of the contract during its term. The obligation that petitioner will be under after the contract term will not be one imposed by contract but by the Act. It will be free then, as it was not free during the contract term under the contract here in question, to make rate changes under § 4 without United's consent. It is said that petitioner will be in a position of inequality, because it must supply gas then to United without a corresponding obligation on United to take it. But United, subject to the Act in its sales to local distributors, has its obligations too; and if in fulfilling them it desires to have a continuing supply of gas with the stability of price protection which a contract furnishes under Mobile, it may be discovered that each side has its bargaining strength. In any event, we do not see how the prospect of this situation after the term of petitioner's contract in any way impairs the integrity of any contract. Mobile is thus simply beside the point. The short of the matter is that Mobile recognized that there were two sources of price and supply stability inherent in the regulatory system established by the Natural Gas Act—the provisions of private contracts and the public regulatory power. See 350 U.S., at page 344, 76 S.Ct. at page 380. Petitioner now urges an application of that decision that could make private contracts the only stabilizing factor under the Act. Not only does this reading have nothing to do with the integrity of private contracts which Mobile underwrote, but it makes a severe incursion into the sources of that stability of natural-gas prices and supply to which that decision gave confirmation. Our consideration of this, as well as the rest of petitioner's arguments, leads us to reiterate as our holding the clear implication of what we recently said in Catco: An initial application of an independent producer, to make movements of natural gas in interstate commerce, leads to a certificate of public convenience and necessity under which the Commission controls the basis on which "gas may be initially dedicated to interstate use. Moreover, once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval. The gas operator, although to this extent a captive subject to the jurisdiction of the Commission, is not without remedy to protect himself." 360 U.S. at page 389, 79 S.Ct. at page 1254, 3 L.Ed.2d 1312. That remedy he has, as the Court there said, in the "change" power under § 4(d) when his contract has expired or where his contract permits its use during its term. Under a similar Act, this Court has held to the same effect as we hold today. Pennsylvania Water & Power Co. v. Federal Power Comm., 343 U.S. 414, 423-424, 72 S.Ct. 843, 847-848, 96 L.Ed. 1042. Once the power of the Commission to issue the certificate without time limitation is established, the other objections of the petitioner fall readily. It is contended that the Commission's order, by requiring the petitioner to supply gas beyond the term of its contract, may, by requiring petitioner to produce more gas than it has contemplated, offend the provision of § 1(b) of the Act that the Act does not apply "to the production or gathering of natural gas." The point was not raised before the Commission, and accordingly is not for our consideration here,22 and we might say in any event that the point is not for evaluation in this certification proceeding, but rather on the specific facts presented in the context of an abandonment application by petitioner under § 7(b), after the expiration of its contract, when and if it desires to make one. We intimate no view as to its merit.23 Other objections seem primarily directed to the point that the Commission imposed the burden of proof on the petitioner to show that the certificate should be limited, in the public interest, rather than itself taking on the burden of supporting its issuance of an unlimited certificate. There is no contention that the Commission was again indulging in the erroneous notion that it had no power to issue a limited certificate. Cf. Sunray Mid-Continent Oil Co. v. Federal Power Comm., 10 Cir., 239 F.2d 97, reversed on other grounds 353 U.S. 944, 77 S.Ct. 792, 1 L.Ed.2d 794. This procedural formulation seems to us well within the Commission's discretion as an implementation of the Act's protective provisions which we have discussed. And, though much urged by petitioner, the fact that the Commission has certificated pipeline operations despite their showing of gas resources of a shorter duration than petitioner's contract term is not inconsistent with the Commission's approach here.24 From the fact that the Commission has issued certificates in the presence of what may prove to be physical limitations on the service to be rendered under them,25 it does not follow that the Commission cannot take care lest these physical problems in the continuation of supply become further complicated by the legal certificate term limitations for which the petitioner contends. Finally it is suggested that for various reasons which petitioner claims to be related to the public interest, it would be more advantageous if gas producers were given a free hand, after the completion of each contract, to determine for themselves whether they should continue to serve the interstate market. These considerations were not urged before the Commission, and hence we are not called upon to decide whether they would compel a different approach by the Commission to the question of time limitations in certificates, or even whether, in the light of the Act's provisions—particularly the policy expressed in § 7(b)—it would be proper for it so to rely on them. There is no contention made that petitioner demonstrated any specific circumstances in its own case indicating that, despite the Commission's general policy, the public convenience and necessity warranted a limited certificate for it. Affirmed.

362.US.456

Certiorari dismissed as improvidently granted. Reported below: 6 N. Y. 2d 788, 159 N. E. 2d 677.

After hearing oral argument and fully examining the record which was only partially set forth in the petition for certiorari, we conclude that the totality of circumstances as the record makes them manifest did not warrant bringing the case here. Accordingly, the writ is dismissed as improvidently granted.

364.US.279

Judgment vacated and case remanded for determination of specified questions of state law. Reported below: 54 Wash. 2d 508, 342 P. 2d 607.

The respondent's motion to dismiss the writ of certiorari is denied. The judgment of the Supreme Court of Washington is vacated and the case is remanded for determination of the following questions of Washington law now involved in the case: (1) whether the case is moot as a habeas corpus proceeding; and (2) if it is, whether, to avoid mootness, it can properly be treated as an application for some other form of appropriate relief.

363.US.603

Section 202 (n) of the Social Security Act, as amended, provides for the termination of old-age benefits payable to an alien who, after the date of its enactment (September 1, 1954), is deported under § 241 (a) of the Immigration and Nationality Act on any, one of certain grounds specified in § 202 (n). Appellee, an alien who had become eligible for old-age benefits in 1955, was deported in 1956, pursuant to § 241 (a) of the Immigration and Nationality Act, for having been a member of the Communist Party from 1933 to 1939. Since this was one of the grounds specified in § 202 (n), his old-age benefits were terminated shortly thereafter. He commenced this action in a single-judge District Court, under § 205 (g) of the Social Security Act, to secure judicial review of that administrative decision. The District Court held that § 202 (n) deprived appellee of an accrued property right and, therefore, violated the Due Process Clause of the Fifth Amendment. Held: 1. Although this action drew into question the constitutionality of § 202 (n), it did not involve an injunction or otherwise interdict the operation of the statutory scheme; 28 U. S. C. § 2282, forbidding the issuance of an injunction restraining the enforcement, operation or execution of an Act of Congress for repugnance to the Constitution, except by a three-judge District Court, was not applicable; and jurisdiction over the action was properly exercised by the single-judge District Court. Pp. 606-608. 2. A person covered by the Social Security Act has not such a right in old-age benefit payments as would make every defeasance of "accrued" interests violative of the Due Process Clause of the Fifth Amendment. Pp. 608-611. (a) The noncontractual interest of an employee covered by the Act cannot be soundly analogized to that of the holder of an annuity, whose right .to benefits are based on his contractual premium payments. Pp. 608-610. (b) To engraft upon the Social Security System a concept of "accrued property rights". would deprive it of the flexibility and boldness in adjustment to ever-changing conditions -which it demands and which Congress probably had in mind when it expressly reserved the right to alter, amend or repeal any provision of the Act. Pp. 610-611. 3. Section 202 (n) of the Act cannot be condemned as so lacking in rational justification as to offend due process. Pp. 611-612. 4. Termination of appellee's benefits under §'202 (n) does not amount to punishing him without a trial, in violation of Art. III, § 2, el. 3, of the Constitution or the Sixth Amendment; nor is § 202 (n) a bill of attainder or ex post facto law, since its purpose is not punitive. Pp. 612-621. 169 F. Supp. 922, reversed.

From a decision of the District Court for the District of Columbia holding § 202(n) of the Social Security Act (68 Stat. 1083, as amended, 42 U.S.C. § 402(n), 42 U.S.C.A. § 402(n)) unconstitutional, the Secretary of Health, Education, and Welfare takes this direct appeal pursuant to 28 U.S.C. § 1252, 28 U.S.C.A. § 1252. The challenged section, set forth in full in the margin,1 provides for the termination of old-age, survivor, and disability insurance benefits payable to, or in certain cases in respect of, an alien individual who, after September 1, 1954 (the date of enactment of the section), is deported under § 241(a) of the Immigration and Nationality Act (8 U.S.C. § 1251(a), 8 U.S.C.A. § 1251(a)) on any one of certain grounds specified in § 202(n). Appellee, an alien, immigrated to this country from Bulgaria in 1913, and became eligible for old-age benefits in November 1955. In July 1956 he was deported pursuant to § 241(a)(6)(C)(i) of the Immigration and Nationality Act for having been a member of the Communist Party from 1933 to 1939. This being one of the benefit-termination deportation grounds specified in § 202(n), appellee's benefits were terminated soon thereafter, and notice of the termination was given to his wife, who had remained in this country.2 Upon his failure to obtain administrative reversal of the decision, appellee commenced this action in the District Court, pursuant to § 205(g) of the Social Security Act (53 Stat. 1370, as amended 42 U.S.C. § 405(g), 42 U.S.C.A. § 405(g)), to secure judicial review.3 On cross-motions for summary judgment, the District Court ruled for appellee, holding § 202(n) unconstitutional under the Due Process Clause of the Fifth Amendment in that it deprived appellee of an accrued property right. 169 F.Supp. 922. The Secretary prosecuted an appeal to this Court, and, subject to a jurisdictional question hereinafter discussed, we set the case down for plenary hearing. 360 U.S. 915, 79 S.Ct. 1433, 3 L.Ed.2d 1532. The preliminary jurisdictional question is whether 28 U.S.C. § 2282, 28 U.S.C.A. § 2282, is applicable, and therefore required that the case be heard below before three judges, rather than by a single judge, as it was. Section 2282 forbids the issuance, except by a three-judge District Court, of any 'interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution * * *.' Neither party requested a three-judge court below, and in this Court both parties argue the inapplicability of § 2282. If the provision applies, we cannot reach the merits, but must vacate the judgment below and remand the case for consideration by a three-judge District Court. See Federal Housing Administration v. The Darlington, Inc., 352 U.S. 977, 77 S.Ct. 381, 1 L.Ed.2d 363. Under the decisions of this Court, this § 205(g) action could, and did, draw in question the constitutionality of § 202(n). See, e.g., Anniston Mfg. Co. v. Davis, 301 U.S. 337, 345 346, 57 S.Ct. 816, 820, 81 L.Ed. 1143. However, the action did no more. It did not seek affirmatively to interdict the operation of a statutory scheme. A judgment for appellee would not put the operation of a federal statute under the restraint of an equity decree; indeed, apart from its effect under the doctrine of stare decisis, it would have no other result than to require the payment of appellee's benefits. In these circumstances we think that what was said in International Ladies' Garment Workers' Union v. Donnelly Garment Co., 304 U.S. 243, 58 S.Ct. 875, where this Court dealt with an analogous situation, is controlling here: '(The predecessor of § 2282) does not provide for a case where the validity of an act of Congress is merely drawn in question, albeit that question be decided, but only for a case where there is an application for an interlocutory or permanent injunction to restrain the enforcement of an act of Congress. * * * Had Congress intended the provision * * *, for three judges and direct appeal, to apply whenever a question of the validity of an act of Congress became involved, Congress would naturally have used the familiar phrase 'drawn in question' * * *.' Id., 304 U.S. at page 250, 58 S.Ct. at page 879. We hold that jurisdiction over the action was properly exercised by the District Court, and therefore reach the merits. We think that the District Court erred in holding that § 202(n) deprived appellee of an 'accrued property right.' 169 F.Supp., at page 934. Appellee's right to Social Security benefits cannot properly be considered to have been of that order. The general purposes underlying the Social Security Act were expounded by Mr. Justice Cardozo in Helvering v. Davis, 301 U.S. 619, 640—645, 57 S.Ct. 904, 908—911, 81 L.Ed. 1307. The issue here, however, requires some inquiry into the statutory scheme by which those purposes are sought to be achieved. Payments under the Act are based upon the wage earner's record of earnings in employment or self-employment covered by the Act, and take the form of old-age insurance and disability insurance benefits inuring to the wage earner (known as the 'primary beneficiary'), and of benefits, including survivor benefits, payable to named dependents ('secondary beneficiaries') of a wage-earner. Broadly speaking, eligibility for benefits depends on satisfying statutory conditions as to (1) employment in covered employment or self-employment (see § 210(a), 42 U.S.C. § 410(a), 42 U.S.C.A. § 410(a)); (2) the requisite number of 'quarters of coverage'—i.e., three-month periods during which not less than a stated sum was earned—the number depending generally on age (see §§ 213—215, 42 U.S.C. §§ 413—415, 42 U.S.C.A. §§ 413—415); and (3) attainment of the retirement age (see § 216(a), 42 U.S.C. § 416(a), 42 U.S.C.A. § 416(a)). § 202(a), 42 U.S.C. § 402(a), 42 U.S.C.A. § 402(a).4 Entitlement to benefits once gained is partially or totally lost if the beneficiary earns more than a stated annual sum, unless he or she is at least 72 years old. § 203(b, e), 42 U.S.C. § 403(b, e), 42 U.S.C.A. § 403(b, e). Of special importance in this case is the fact that eligibility for benefits, and the amount of such benefits, do not in any true sense depend on contribution to the program through the payment of taxes, but rather on the earnings record of the primary beneficiary. The program is financed through a payroll tax levied on employees in covered employment, and on their employers. The tax rate, which is a fixed percentage of the first $4,800 of employee annual income, is set at a scale which will increase from year to year, presumably to keep pace with rising benefit costs. I.R.C. of 1954, §§ 3101, 3111, 3121(a), 26 U.S.C.A. §§ 3101, 3111, 3121(a). The tax proceeds are paid into the Treasury 'as internal-revenue collections,' I.R.C., § 3501, 26 U.S.C.A. § 3501, and each year an amount equal to the proceeds is appropriated to a Trust Fund, from which benefits and the expenses of the program are paid. § 201, 42 U.S.C. § 401, 42 U.S.C.A. § 401. It was evidently contemplated that receipts would greatly exceed disbursements in the early years of operation of the system, and surplus funds are invested in government obligations, and the income returned to the Trust Fund. Thus, provision is made for expected increasing costs of the program. The Social Security system may be accurately described as a form of social insurance, enacted pursuant to Congress' power to 'spend money in aid of the 'general welfare," Helvering v. Davis, supra, 301 U.S. at page 640, 57 S.Ct. at page 908, whereby persons gainfully employed, and those who employ them, are taxed to permit the payment of benefits to the retired and disabled, and their dependents. Plainly the expectation is that many members of the present productive work force will in turn become beneficiaries rather than supporters of the program. But each worker's benefits, though flowing from the contributions he made to the national economy while actively employed, are not dependent on the degree to which he was called upon to support the system by taxation. It is apparent that the noncontractual interest of an employee covered by the Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments. It is hardly profitable to engage in conceptualizations regarding 'earned rights' and 'gratuities.' Cf. Lynch v. United States, 292 U.S. 571, 576—577, 54 S.Ct. 840, 842, 78 L.Ed. 1434. The 'right' to Social Security benefits is in one sense 'earned,' for the entire scheme rests on the legislative judgment that those who in their productive years were functioning members of the economy may justly call upon that economy, in their later years, for protection from 'the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near.' Helvering v. Davis, supra, 301 U.S. at page 641, 57 S.Ct. at page 909. But the practical effectuation of that judgment has of necessity called forth a highly complex and interrelated statutory structure. Integrated treatment of the manifold specific problems presented by the Social Security program demands more than a generalization. That program was designed to function into the indefinite future, and its specific provisions rest on predications as to expected economic conditions which must inevitably prove less than wholly accurate, and on judgments and preferences as to the proper allocation of the Nation's resources which evolving economic and social conditions will of necessity in some degree modify. To engraft upon the Social Security system a concept of 'accrued property rights' would deprive it of the flexibility and boldness in adjustment to everchanging conditions which it demands. See Wollenberg, Vested Rights in Social-Security Benefits, 37 Ore.L.Rev. 299, 359. It was doubtless out of an awareness of the need for such flexibility that Congress included in the original Act, and has since retained, a clause expressly reserving to it '(t)he right to alter, amend, or repeal any provision' of the Act. § 1104, 49 Stat. 648, 42 U.S.C. § 1304, 42 U.S.C.A. § 1304. That provision makes express what is implicit in the institutional needs of the program. See Analysis of the Social Security System, Hearings before a Subcommittee of the Committee on Ways and Means, House of Representatives, 83d Cong., 1st Sess., pp. 920—921. It was pursuant to that provision that § 202(n) was enacted. We must conclude that a person covered by the Act has not such a right in benefit payments as would make every defeasance of 'accrued' interests violative of the Due Process Clause of the Fifth Amendment. This is not to say, however, that Congress may exercise its power to modify the statutory scheme free of all constitutional restraint. The interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause. In judging the permissibility of the cut-off provisions of § 202(n) from this standpoint, it is not within our authority to determine whether the Congressional judgment expressed in that section is sound or equitable, or whether it comports well or ill with the purposes of the Act. 'Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II, it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom.' Helvering v. Davis, supra, 301 U.S. at page 644, 57 S.Ct. at page 910. Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification. Such is not the case here. The fact of a beneficiary's residence abroad—in the case of a deportee, a presumably permanent residence—can be of obvious relevance to the question of eligibility. One benefit which may be thought to accrue to the economy from the Social Security system is the increased over-all national purchasing power resulting from taxation of productive elements of the economy to provide payments to the retired and disabled, who might otherwise be destitute or nearly so, and who would generally spend a comparatively large percentage of their benefit payments. This advantage would be lost as to payments made to one residing abroad. For these purposes, it is, of course, constitutionally irrelevant whether this reasoning in fact underlay the legislative decision, as it is irrelevant that the section coes not extend to all to whom the postulated rationale might in logic apply.5 See United States v. Petrillo, 332 U.S. 1, 8—9, 67 S.Ct. 1538, 1542—1543, 91 L.Ed. 1877; Steward Machine Co. v. Davis, 301 U.S. 548, 584—585, 57 S.Ct. 883, 889—890, 81 L.Ed. 1279; cf. Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 510—513, 57 S.Ct. 868, 872—874, 81 L.Ed. 1245. Nor, apart from this, can it be deemed irrational for Congress to have concluded that the public purse should not be utilized to contribute to the support of those deported on the grounds specified in the statute. We need go no further to find support for our conclusion that this provision of the Act cannot be condemned as so lacking in rational justification as to offend due process. The remaining, and most insistently pressed, constitutional objections rest upon Art. I, § 9, cl. 3, and Art. III, s 2, cl. 3, of the Constitution, and the Sixth Amendment.6 It is said that the termination of appellee's benefits amounts to punishing him without a judicial trial, see Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140; that the termination of benefits constitutes the imposition of punishment by legislative act, rendering § 202(n) a bill of attainder, see United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252; Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356; and that the punishment exacted is imposed for past conduct not unlawful when engaged in, thereby violating the constitutional prohibition on ex post facto laws, see Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366.7 Essential to the success of each of these contentions is the validity of characterizing as 'punishment' in the constitutional sense the termination of benefits under § 202(n). In determining whether legislation which bases a disqualification on the happening of a certain past event imposes a punishment, the Court has sought to discern the objects on which the enactment in question was focused. Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected. The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified. In the earliest case on which appellee relies, a clergyman successfully challenged a state constitutional provision barring from that profession—and from many other professions and offices—all who would not swear that they had never manifested and sympathy or support for the cause of the Confederacy. Cummings v. Missouri, supra. The Court thus described the aims of the challenged enactment: 'The oath could not * * * have been required as a means of ascertaining whether parties were qualified or not for their respective callings or the trusts with which they were charged. It was required in order to reach the person, not the calling. It was exacted, not from any notion that the several acts designated indicated unfitness for the callings, but because it was thought that the several acts deserved punishment * * *.' Id., 4 Wall. at page 320. (Emphasis supplied.) Only the other day the governing inquiry was stated, in an opinion joined by four members of the Court, in these terms: 'The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession.' De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1155 (plurality opinion). In Ex parte Garland, supra, where the Court struck down an oath—similar in content to that involved in Cummings—required of attorneys seeking to practice before any federal court, as also in Cummings, the finding of punitive intent drew heavily on the Court's first-hand acquaintance with the events and the mood of the then recent Civil War, and 'the fierce passions which that struggle aroused.' Cummings v. Missouri, supra, 4 Wall. at page 322.8 Similarly, in United States v. Lovett, supra, where the Court invalidated, as a bill of attainder, a statute forbidding subject to certain conditions—the further payment of the salaries of three named government employees, the determination that a punishment had been imposed rested in large measure on the specific Congressional history which the Court was at pains to spell out in detail. See 328 U.S. at pages 308—312, 66 S.Ct., at pages 1075—1077. Most recently, in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630, which held unconstitutional a statute providing for the expatriation of one who had been sentenced by a court-martial to dismissal or dishonorable discharge for wartime desertion, the majority of the Court characterized the statute as punitive. However, no single opinion commanded the support of a majority. The plurality opinion rested its determination, at least in part, on its inability to discern any alternative purpose which the statute could be thought to serve. Id., 356 U.S. at page 97, 78 S.Ct. at page 596. The concurring opinion found in the specific historical evolution of the provision in question compelling evidence of punitive intent. Id., 356 U.S. at pages 107—109, 78 S.Ct. at pages 601—602. It is thus apparent that, though the governing criterion may be readily stated, each case has turned on its own highly particularized context. Where no persuasive showing of a purpose 'to reach the person, not the calling,' Cummings v. Missouri, supra, 4 Wall. at page 320, has been made, the Court has not hampered legislative regulation of activities within its sphere of concern, despite the often-severe effects such regulation has had on the persons subject to it.9 Thus, deportation has been held to be not punishment, but an exercise of the plenary owner of Congress to fix the conditions under which aliens are to be permitted to enter and remain in this country. Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 1028, 37 L.Ed. 905; see Galvan v. Press, 347 U.S. 522, 530—531, 74 S.Ct. 737, 742 743, 98 L.Ed. 911. Similarly, the setting by a State of qualifications for the practice of medicine, and their modification from time to time, is an incident of the State's power to protect the health and safety of its citizens, and its decision to bar from practice persons who commit or have committed a felony is taken as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment of ex-felons. Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002. See De Veau v. Braisted, supra (regulation of crime on the waterfront through disqualification of ex-felons from holding union office). Cf. Helvering v. Mitchell, 303 U.S. 391, 397—401, 58 S.Ct. 630, 632—634, 82 L.Ed. 917, holding that, with respect to deficiencies due to fraud, a 50 percent addition to the tax imposed was not punishment so as to prevent, upon principles of double jeopardy, its assessment against one acquitted of tax evasion. Turning, then, to the particular statutory provision before us, appellee cannot successfully contend that the language and structure of § 202(n), or the nature of the deprivation, requires us to recognize a punitive design. Cf. Wong Wing v. United States, supra (imprisonment, at hard labor up to one year, of person found to be unlawfully in the country). Here the sanction is the mere denial of a noncontractual governmental benefit. No affirmative disability or restraint is imposed, and certainly nothing approaching the 'infamous punishment' of imprisonment, as in Wong Wing, on which great reliance is mistakenly placed. Moreover, for reasons already given (363 U.S. at pages 611—612, 80 S.Ct. at pages 1372—1373), it cannot be said, as was said of the statute in Cummings v. Missouri, supra, 4 Wall. at page 319; see Dent v. West Virginia, 129 U.S. 114, 126, 9 S.Ct. 231, 235, 32 L.Ed. 623, that the disqualification of certain deportees from receipt of Social Security benefits while they are not lawfully in this country bears no rational connection to the purposes of the legislation of which it is a part, and must without more therefore be taken as evidencing a Congressional desire to punish. Appellee arrgues, however, that the history and scope of § 202(n) prove that no such postulated purpose can be thought to have motivated the legislature, and that they persuasively show that a punitive purpose in fact lay behind the statute. We do not agree. We observe initially that only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground. Judicial inquiries into Congressional motives are at best a hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed. Moreover, the presumption of constitutionality with which this enactment, like any other, comes to us forbids us lightly to choose that reading of the statute's setting which will invalidate it over that which will save it. '(I)t is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void.' Fletcher v. Peck, 6 Cranch 87, 128, 3 L.Ed. 162. Section 202(n) was enacted as a small part of an extensive revision of the Social Security program. The provision originated in the House of Representatives. H.R. 9366, 83d Cong., 2d Sess., § 108. The discussion in the House Committee Report, H.R.Rep. No. 1698, 83d Cong., 2d Sess., pp. 5, 25, 77, does not express the purpose of the statute. However, it does say that the termination of benefits would apply to those persons who were 'deported from the United States because of illegal entry, conviction of a crime, or subversive activity * * *.' Id., at 25. It was evidently the thought that such was the scope of the statute resulting from its application to deportation under the 14 named paragraphs of § 241(a) of the Immigration and Nationality Act. Id., at 77.10 The Senate Committee rejected the proposal, for the stated reason that it had 'not had an opportunity to give sufficient study to all the possible implications of this provision, which involves termination of benefit rights under the contributory program of old-age and survivors insurance * * *.' S.Rep. No. 1987, 83d Cong., 2d Sess., p. 23; see also id., at 76. However, in Conference, the proposal was restored in modified form,11 and as modified was enacted as § 202(n). See H.R.Conf.Rep. No. 2679, 83d Cong., 2d Sess., p. 18. Appellee argues that this history demonstrates that Congress was not concerned with the fact of a beneficiary's deportation—which it is claimed alone would justify this legislation as being pursuant to a policy relevant to regulation of the Social Security system—but that it sought to reach certain grounds for deportation, thus evidencing a punitive intent.12 It is impossible to find in this meagre history the unmistakable evidence of punitive intent which, under principles already discussed, is required before a Congressional enactment of this kind may be struck down. Even were that history to be taken as evidencing Congress' concern with the grounds, rather than the fact, of deportation, we do not think that this, standing alone, would suffice to establish a punitive purpose. This would still be a far cry from the situations involved in such cases as Cummings, Wong Wing, and Garland (see 363 U.S. at page 617, 80 S.Ct. at page 1376), and from that in Lovett, supra, where the legislation was on its face aimed at particular individuals. The legislative record, however, falls short of any persuasive showing that Congress was in fact concerned alone with the grounds of deportation. To be sure Congress did not apply the termination provision to all deportees. However, it is evident that neither did it rest the operation of the statute on the occurrence of the underlying act. The fact of deportation itself remained an essential condition for loss of benefits, and even if a beneficiary were saved from deportation only through discretionary suspension by the Attorney General under § 244 of the Immigration and Nationality Act (66 Stat. 214, 8 U.S.C. § 1254, 8 U.S.C.A. § 1254), § 202(n) would not reach him. Moreover, the grounds for deportation referred to in the Committee Report embrace the great majority of those deported, as is evident from an examination of the four omitted grounds, summarized in the margin.13 Inferences drawn from the omission of those grounds cannot establish, to the degree of certainty required, that Congressional concern was wholly with the acts leading to deportation, and not with the fact of deportation.14 To hold otherwise would be to rest on the 'slight implication and vague conjecture' against which Chief Justice Marshall warned. Fletcher v. Peck, supra, 6 Cranch at page 128. The same answer must be made to arguments drawn from the failure or Congress to apply § 202(n) to beneficiaries voluntarily residing abroad. But cf. § 202(t), ante, note 5. Congress may have failed to consider such persons; or it may have thought their number too slight, or the permanence of their voluntary residence abroad too uncertain, to warrant application of the statute to them, with its attendant administrative problems of supervision and enforcement. Again, we cannot with confidence reject all those alternatives which imaginativeness can bring to mind, save that one which might require the invalidation of the statute. Reversed.

362.US.511

nder 18 U. S. C. §2314, three persons named Stracuzza, who admittedly were the common center of a scheme to transport stolen goods, were indicted in a single indictment with the four petitioners for transporting in interstate commerce goods known to have been stolen and having, a value in excess of $5,000. Count 1 charged two of the petitioners and the Stracuzzas with transporting stolen goods from New York to Penn.;ylvania; Count 2 charged another petitioner and the Stracuzzas with transporting stolen goods from New York to West Virginia; Count 3 charged another petitioner and the Stracuzzas with transporting stolen goods from New York to Massachusetts; and Count 4 charged all the defendants with a conspiracy to commit the substantive offenses. On motion of petitioners for acquittal at the close of the Government's case, the court dismissed the conspiracy count for failure of proof; but it found that no prejudice would result from a joint trial and submitted the substantive counts to the jury under careful detailed instructions. Petitioners were convicted and the Court of Appeals affirmed, finding that no prejudice resulted from the joint trial. Held: The judgments are affirmed. Pp. 512-518. (a) The joinder of all the defendants in the original indictment was proper under Rule 8 (b) of the Federal Rules of Criminal Procedure; even after dismissal of the conspiracy count, severancewas not required under Rule 14 unless the joinder prejudiced the defendants; and, on the record, this Court cannot say that both the trial court and the Court of Appeals erred in finding that petitioners were not prejudiced by.a joint trial. Pp. 514-517. (b) Though each individual shipment amounted to less than $5,000, the trial court did not err in permitting the series of related shipments to each petitioner to be aggregated in o: ier. to meet the statutory minimum of $5,000, since 18 U. S. C. § 2311 providec that "the aggregate value of all goods . . . referred to in a single indictment shall constitute the value thereof." Pp. 517-518. (c) The prosecutor's remarks in his summation to the jury were not prejudicial. P. 518. 266 F. 2d'435, affirmed.

Involved here are questions concerning joinder of defendants under Rule 8(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.,1 and whether shipments of stolen goods in interstate commerce may be aggregated as to value in order to meet the statutory minimum of $5,000, under 18 U.S.C. § 2314, 18 U.S.C.A. § 2314.2 The indictment charged transportation in interstate commerce of goods known to have been stolen and having a value in excess of $5,000. In contained three substantive counts. Count 1 charged the two Schaffers (petitioners in No. 111) and the three Stracuzzas (defendants below, who either pleaded guilty or had the charges against them nolle prossed at trial) with transporting stolen ladies' and children's wearing apparel from New York to Pennsylvania. Count 2 charged petitioner Marco and the Stracuzzas with a similar movement of stolen goods from New York to West Virginia. Count 3 charged petitioner Karp and the Stracuzzas with like shipments from New York to Massachusetts. The fourth and final count of the indictment charged all of these parties with a conspiracy to commit the substantive offenses charged in the first three counts. The petitioners here were tried on the indictment simultaneously in a single trial. On motion of petitioners for acquittal at the close of the Government's case, the court dismissed the conspiracy count for failure of proof. This motion was denied, however, as to the substantive counts, the court finding that no prejudice would result from the joint trial. Upon submission of the substantive counts to the jury on a detailed charge, each petitioner was found guilty and thereafter fined and sentenced to prison. The Court of Appeals affirmed the convictions, likewise finding that no prejudice existed by reason of the joint trial. 266 F.2d 435. We granted certiorari. 361 U.S. 809, 80 S.Ct. 58, 4 L.Ed.2d 58. The allegations of the indictment having met the explicit provisions of Rule 8(b) as to joinder of defendants, we cannot find clearly erroneous the findings of the trial court and the Court of Appeals that no prejudice resulted from the joint trial. As to the requirements of value, we hold that the shipments to a single defendant may be aggregated. The judgments are therefore affirmed. We first consider the question of joinder of defendants under Rule 8(b) of the Federal Rules of Criminal Procedure. It is clear that the initial joinder of the petitioners was permissible under that Rule, which allows the joinder of defendants 'in the same indictment * * * if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.' It cannot be denied that the petitioners were so charged in the indictment. The problem remaining is whether, after dismissal of the conspiracy count before submission of the cases to the jury, a severance should have been ordered under Rule 143 of the Federal Rules of Criminal Procedure. This Rule requires a separate trial if 'it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together * * *.' Under the circumstances here, we think there was no such prejudice. It is admitted that the three Stracuzzas were the common center of the scheme to transport the stolen goods. The four petitioners here participated in some steps of the transactions in the stolen goods, although each was involved with separate interstate shipments. The separate substantive charges of the indictment employed almost identical language and alleged violations of the same criminal statute during the same period and in the same manner. This made proof of the over-all operation of the scheme competent as to all counts. The variations in the proof related to the specific shipments proven against each petitioner. This proof was related to each petitioner separately and proven as to each by different witnesses. It included entirely separate invoices and other exhibits, all of which were first clearly identified as applying only to a specific petitioner and were so received and shown to the jury under painstaking instructions to that effect. In short, the proof was carefully compartmentalized as to each petitioner. The propriety of the joinder prior to the failure of proof of conspiracy was not assailed.4 When the Government rested, however, the petitioners filed their motion for dismissal and it was sustained as to the conspiracy count. The petitioners then pressed for acquittal on the remaining counts, and the court decided that the evidence was sufficient on the substantive counts. The case was submitted to the jury on each of these counts, and under a charge which was characterized by petitioners' counsel as being 'extremely fair.' This charge meticulously set out separately the evidence as to each of the petitioners and admonished the jury that they were 'not to take into consideration any proof against one defendant and apply it by inference or otherwise to any other defendant.' Petitioners contend that prejudice would nevertheless be implicit in a continuation of the joint trial after dismissal of the conspiracy count. They say that the resulting prejudice could not be cured by any cautionary instructions, and that therefore the trial judge was left with no discretion. Petitioners overlook, however, that the joinder was authorized under Rule 8(b) and that subsequent severance was controlled by Rule 14, which provides for separate trials where 'it appears that a defendant * * * is prejudiced * * * by such joinder for trial * * *.' It appears that not only was no prejudice shown, but both the trial court and the Court of Appeals affirmatively found that none was present. We cannot say to the contrary on this record. Nor can we fashion a hard-and-fast formula that, when a conspiracy count fails, joinder is error as a matter of law. We do emphasize, however, that, in such a situation, the trial judge has a continuing duty at all stages of the trial to grant a severance if prejudice does appear. And where, as here, the charge which originally justified joinder turns out to lack the support of sufficient evidence, a trial judge should be particularly sensitive to the possibility of such prejudice. However, the petitioners here not only failed to show any prejudice that would call Rule 14 into operation but even failed to request a new trial. Instead they relied entirely on their motions for acquittal. Moreover, the judge was acutely aware of the possibility of prejudice and was strict in his charge—not only as to the testimony the jury was not to consider, but also as to that evidence which was available in the consideration of the guilt of each petitioner separately under the respective substantive counts. The terms of Rule 8(b) having been met and no prejudice under Rule 14 having been shown, there was no misjoinder. This case is not like United States v. Dietrich,5 where a single-count indictment against two defendants charged only a single conspiracy offense, or McElroy v. United States,6 where no count linked all the defendants and all the offenses. Neither is Kotteakos v. United States,7 on which the petitioners place their chief reliance, apposite. That case turned on the harmless-error rule, and its application to a serious variance between the indictment and the proof. There the Court found 'it highly probable that the error had substantial and injurious effect.' 328 U.S. at page 776, 66 S.Ct. at page 1253. The dissent agreed that the test of injury resulting from joinder 'depends on the special circumstances of each case,' id., 328 U.S. at page 777, 66 S.Ct. at page 1254; but it reasoned that the possibility was 'nonexistent' that evidence relating to one defendant would be used to convict another, and declared that the 'dangers which petitioners conjure up are abstract ones.' Id., 328 U.S. at page 778, 66 S.Ct. at page 1254. The harmless-error rule, which was the central issue in Kotteakos, is not even reached in the instant case, since here the joinder was proper under Bule 8(b) and no error was shown. Petitioners also contend that, since the individual shipments with which they were connected amounted to less than $5,000 each, the requirements of the statute as to value were not present. However, it appeared at the trial that the total merchandise shipped to each petitioner during the period charged in the several counts was over $5,000, even though each individual shipment was less. The trial court permitted the aggregation of the value of these shipments to meet the statutory limit,8 and it is this that is claimed to be error. A sensible reading of the statute properly attributes to Congress the view that where the shipments have enough relationship so that they may properly be charged as a single offense, their value may be aggregated. The Act defines 'value' in terms of that aggregate.9 The legislative history makes clear that the value may be computed on a 'series of transactions.'10 It seems plain that the Stracuzzas and each of the petitioners were engaged in a series of transactions, and therefore there is no error on that phase of the case.11 Petitioners in No. 122 further contend that certain of the prosecutor's remarks in his summation to the jury were improper and prejudicial. We agree with the treatment of this issue by the Court of Appeals, and see no need for further elaboration. The judgments are therefore affirmed. Affirmed.

361.US.281

1. Article 2 (11) of the Uniform Code of Military Justice, providing for the trial by court-martial of "all persons serving with, employed by, or accompanying the armed forces" of the United States in foreign countries, cannot constitutionally be applied in peacetime to the trial of a civilian employee of the armed forces serving with the armed forces in a foreign country and charged with having committed a noneapital 'offense there. Kinsella v. Singleton. ante. p. 234; Grisham v. Hagan, ante, p. 278. Pp. 282-287. 2. Article 2 (11) is severable, and legal effect can be given to each category standing alone. P. 283. 104 U. S. App. D. C. 112, 259 F. 2d 927, affirmed. 167 F. Supp. 791, reversed.

These are companion cases to Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, and Grisham v. Hagan, 361 U.S. 278 80 S.Ct. 310. All the cases involve the application of Article 2(11)1 of the Uniform Code of Military Justice. Here its application to noncapital offenses committed by civilian employees of the armed forces while stationed overseas is tested. In No. 21 the respondent, a civilian employee of the Air Force performing the duties of an electrical lineman, was convicted by court-martial at the Nouasseur Air Depot near Casablanca, Morocco, of larceny and conspiracy to commit larceny from the supply house at the Depot. Before being transferred to the United States Disciplinary Barracks, New Cumberland, Pennsylvania, respondent filed a petition for a writ of habeas corpus in the District Court for the District of Columbia alleging that the military authorities had no jurisdiction to try him by court-martial. This petition was dismissed. D.C., 158 F.Supp. 171. The Court of Appeals reversed and ordered respondent discharged. It held that Reid v. Covert, 1957, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, was binding as to all classes of persons included within the section and that each class was nonseverable. 104 U.S.App.D.C. 112, 259 F.2d 927. We granted certiorari, 359 U.S. 904, 79 S.Ct. 580, 3 L.Ed.2d 570, in view of the conflict with Grisham v. Taylor, 3 Cir., 261 F.2d 204. In No. 37, petitioner, a civilian auditor employed by the United States Army and stationed in Berlin, was convicted by a general court-martial on a plea of guilty to three acts of sodomy. While serving his five-year sentence, petitioner filed a petitioner for a writ of habeas corpus in the United States District Court for Colorado. The petition was dismissed, 167 F.Supp. 791, and appeal was perfected to the Court of Appeals for the Tenth Circuit. Prior to argument we granted certiorari.2 359 U.S. 906, 79 S.Ct. 601, 3 L.Ed.2d 571. We first turn to respondent Guagliardo's contention that Article 2(11) is nonseverable. As desirable as it is to avoid constitutional issues, we cannot do so on this ground. The Act provides for severability of the remaining section if 'a part of this Act is invalid in one or more of its applications.' 70A Stat. 640. The intention of Congress in providing for severability is clear, and legal effect can be given to each category standing alone. See Dorchy v. State of Kansas, 1924, 264 U.S. 286, 290, 44 S.Ct. 323, 324, 68 L.Ed. 686. We believe that these cases involing the applicability of Article 2(11) to employees of the armed services while serving outside the United States are controlled by our opinion in Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, and Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, announced today. In Singleton we refused, in the light of Reid v. Covert, 1957, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, to apply the provisions of the article to noncapital offenses committed by dependents of soldiers in the armed services while overseas; in Grisham we held that there was no constitutional distinction for purposes of court-martial jurisdiction between dependents and employees insofar as application of the death penalty is concerned. The rationale of those cases applies here. Although it is true that there are materials supporting trial of sutlers and other civilians by courts-martial, these materials are 'too expisodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution, for constitutional adjudication.' Concurring opinion, Covert, 354 U.S. at page 64, 77 S.Ct. at page 1255. Furthermore, those trials during the Revolutionary Period, on which it is claimed than court-martial jurisdiction rests, were all during a period of war, and hence are inapplicable here. Moreover, the materials are not by any means one-sided. The recognized authority on court-martial jurisdiction, after a careful consideration of all the historical background, concluded: 'That a civilian, entitled as he is, by Art. VI of the Amendments to the Constitution, to trial by jury, cannot legally be made liable to the military law and jurisdiction, in time of peace, is a fundamental principle of our public law * * *.'3 But it is contended that Ex parte Reed, 1879, 100 U.S. 13, 25 L.Ed. 538, is controlling because the forces covered by Article 2(11) are overseas and therefore 'in the field.' Examination of that case, as well as Johnson v. Sayre, 1895, 158 U.S. 109, 15 S.Ct. 773, 39 L.Ed. 914, however, shows them to be entirely inapposite. Those cases permitted trial by courts-martial of paymasters' clerks in the navy. The Court found that such a position was 'an important one in the machinery of the navy,' the appointment being made only upon approval of the commander of the ship and for a permanent tenure 'until discharged.' Also the paymaster's clerk was required to agree in writing 'to submit to the laws and regulations for the government and discipline of the navy.' Moreover, from time immemorial the law of the sea has placed the power of disciplinary action in the commander of the ship when at sea or in a foreign port. None of these considerations are present here. As we shall point out subsequently, a procedure along the lines of that used by the navy as to paymasters' clerks might offer a practical alternative to the use of civilian employees by the armed services. As was stated in the second Covert case, supra, 354 U.S. at page 23, 77 S.Ct. at page 1233, 'there might be circumstances where a person could be 'in' the armed services for purposes of Clause 14 even though he had not formally been inducted into the military * * *.' The only other authorities cited in support of court-martial jurisdiction over civilians appear to be opinions by the Attorney General and the Judge Advocate General of the Army. However, the 1866 opinion of the Judge Advocate General (cited in support of the Government's position) was repudiated by subsequent Judge Advocate Generals.4 To be sure, the 1872 opinion of the Attorney General, dealing with civilians serving with troops in the building of defensive earthworks to protect against threatened Indian uprisings, is entitled to some weight. However, like the other examples of frontier activities based on the legal concept of the troops' being 'in the field,' they are inapposite here. They were in time of 'hostilities' with Indian tribes or were in 'territories' governed by entirely different considerations. See second Covert, 354 U.S. at pages 12—13, 77 S.Ct. at page 1228. Such opinions, however, do not have the force of judicial decisions and, where so 'episodic,' have little weight in the reviewing of administrative practice. Moreover, in the performance of such functions as were involved there, the military service would today use engineering corps subject to its jurisdiction. This being entirely practical, as we hereafter point out, as to all civilians serving with the armed forces today, we believe the Toth doctrine, United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8, that we must limit the coverage of Clause 14 to 'the least possible power adequate to the end proposed,' 350 U.S., at page 23, 76 S.Ct. at page 8, to be controlling. In the consideration of the constitutional question here we believe it should be pointed out that, in addition to the alternative types of procedure available to the Government in the prosecution of civilian dependents and mentioned in Kinsella v. Singleton, supra, additional practical alternatives have been suggested in the case of employees of the armed services. One solution might possibly be to follow a procedure along the line of that provided for paymasters' clerks as approved in Ex parte Reed, supra. Another would incorporate those civilian employees who are to be stationed outside the United States directly into the armed services, either by compulsory induction or by voluntary enlistment. If a doctor or dentist may be 'drafted' into the armed services, 50 U.S.C.Appendix § 454(i), extended, 73 Stat. 13, 50 U.S.C.A.Appendix § 454(i); Orloff v. Willoughby, 1953, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842, there should be no legal objection to the organization and recruitment of other civilian specialists needed by the armed services. Moreover, the armed services presently have sufficient authority to set up a system for the voluntary enlistment of 'specialists.' This was done with much success during the Second World War. 'The Navy's Construction Battalions, popularly known as the Seabees, were established to meet the wartime need for uniformed men to perform construction work in combat areas.' 1 Building the Navy's Bases in World War II (1947) 133. Just as electricians, clerks, draftsmen, and surveyors were enlisted as 'specialists' in the Seabees, id., at 136, provisions can be made for the voluntary enlistment of an electrician (Guagliardo), an auditor (Wilson), or an accountant (Grisham). It likewise appears entirely possible that the present 'specialist' program conducted by the Department of the Army5 could be utilized to replace civilian employees if disciplinary problems require military control. Although some workers might hesitate to give up their civilian status for government employment overseas, it is unlikely that the armed forces would be unable to obtain a sufficient number of volunteers to meet their requirements. The increased cost to maintain these employees in a military status is the price the Government must pay in order to comply with constitutional requirements. The judgment in No. 21 is affirmed and the judgment in No. 37 is reversed. No. 21, affirmed. No. 37, reversed. For dissenting and concurring opinions see 361 U.S. 234, 80 S.Ct. 311.

362.US.17

Under authority of R. S. § 2004, as amended by the Civil Rights Act of 1957, the Attorney General bronght this civil action on behalf of the United States in a Federal District Court to enjoin certain public officials of the State of Georgia from discriminating against Negro citizens who desired to register to vote in elections in Georgia. 'The District Court dismissed the complaint on the ground that subsection (c), which authorizes the Attorney General to bring. such an action, is unconstituti6nal. Although the complaint involved only offiiial actions, the Court construed subsection (c) as authorizing suits to enjoin purely private actions and held that this went beyond the permissible scope of the Fifteenth Amendment and that the Act must be considered unconstitutional in all its applications. On direct appeal to this Court, held: The judgment is reversed. Pp. 19-28. 1. The case is properly here on direct appeal under 28 U. S. C. § 1252, since the basis of the decision below was that the Act of Congress was unconstitutional, no matter what the contentions of the parties might be as to what its proper basis should have been. P. 20. 2. The District Court erred in dismissing the complaint on the theory that the Act would exceed the permissible limits of the Fifteenth Amendment if applied to purely private actions by private persons, since that question was not properly before that Court on the record in this case. Pp. 20-24. (a) One to whom application of a statute is constitutional will not be heard to attack it on the ground that it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. P. 21. (b) The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases. P. 22. (e) In this case therp are no countervailing considerations sufficient to warrant the District Court's action in considering the constitutionality of this Act in applications not presented by the facts before it. Pp. 22-24. (d) To the extent that United States v. Reese, 92 U. S. 214, depended on an approach inconsistent with what this Court considers the better one and the one established by the weightiest of the subsequent cases, it cannot be followed here. P. 24. 3. Insofar as it authorizes the Attorney General to bring this action to enjoin racial discrimination by public officials in the performance of their official duties pertaining to elections, the Act is clearly constitutional. Pp. 24-28. (a) Whatever precisely may be the reach of the Fifteenth Amendment, the conduct charged here-discrimination by state officials, within the course of their official duties, against the voting rights of citizens, on grounds of race or color-is certainly subject to the ban of that Amendment, and legislation designed to deal with such discrimination is "appropriate legislation" under it. P. 25. (b) It cannot be said that appellees' action was not "state action" merely because the aggrieved parties had not exhausted their administrative or other remedies under state law, since Congress has power to provide for the correction of the constitutional violations of every state official, high and low, without regard to the presence of other authority in the State that might possibly revise their actions. P. 25. (c) Insofar as Barney v. City of New York, 193 U. S. 430, points to a different conclusion, its authority has been so restricted by later decisions that it might be regarded as having been worn away by the erosion of time and of contrary authority. Pp..25-26. (d) It is not beyond the power of Congress to authorize the United States to bring this action to vindicate the public interest in the due observance of private constitutional rights. P. 27. 172 F. Supp. 552, reversed.

The United States brought this action in the United States District Court for the Middle District of Georgia against the members of the Board of Registrars and certain Deputy Registrars of Terrell County, Georgia. Its complaint charged that the defendants had through various devices, in the administration of their offices, discriminated on racial grounds against Negroes who desired to register to vote in elections conducted in the State. The complaint sought an injunction against the continuation of these discriminatory practices, and other relief. The action was founded upon R.S. § 2004, as amended by § 131 of the Civil Rights Act of 1957, 71 Stat. 637, 42 U.S.C. § 1971, 42 U.S.C.A. § 1971. Subsections (a) and (c), which are directly involved, provide:1 '(a) All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding. '(c) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) * * *, the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order. * * *' On the defendants' motion, the District Court dismissed the complaint, holding that subsection (c) was unconstitutional. 172 F.Supp. 552. The court held that the statutory language quoted allowed the United States to enjoin purely private action designed to deprive citizens of the right to vote on account of their race or color. Although the complaint in question involved only official action, the court ruled that since, in its opinion, the statute on its face was susceptible of application beyond the scope permissible under the Fifteenth Amendment, it was to be considered unconstitutional in all its applications. The Government appealed directly to this Court and we postponed the question of jurisdiction to the hearing of the case on the merits. 360 U.S. 926, 79 S.Ct. 1448, 3 L.Ed.2d 1541. Under the terms of 28 U.S.C. § 1252, 28 U.S.C.A. § 1252, the case is properly here on appeal since the basis of the decision below in fact was that the Act of Congress was unconstitutional, no matter what the contentions of the parties might be as to what its proper basis should have been. The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them. This was made patent in the first case here exercising that power—'the gravest and most delicate duty that this Court is called on to perform.'2 Marbury v. Madison, 1 Cranch 137, 177— 180, 2 L.Ed. 60. This Court, as is the case with all federal courts, 'has no jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508; Heald v. District of Columbia, 259 U.S. 114, 123, 42 S.Ct. 434, 435, 66 L.Ed. 852; Yazoo & Mississippi Valley R. Co. v. .jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193; Collins v. State of Texas, 223 U.S. 288, 295—296, 32 S.Ct. 286, 288, 56 L.Ed. 439; People of State of New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160—161, 27 S.Ct. 188, 190—191, 51 L.Ed. 415. Cf. Voeller v. Neilston Warehouse Co., 311 U.S. 531, 537, 61 S.Ct. 376, 379, 85 L.Ed. 322; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 513, 57 S.Ct. 868, 874, 81 L.Ed. 1245; Virginian R. Co. v. System Federation, 300 U.S. 515, 558, 57 S.Ct. 592, 605, 81 L.Ed. 789; Blackmer v. United States, 284 U.S. 421, 442, 52 S.Ct. 252, 257, 76 L.Ed. 375; Roberts & Schaefer Co. v. Emmerson, 271 U.S. 50, 54 55, 46 S.Ct. 375, 376—377, 70 L.Ed. 827; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 576, 35 S.Ct. 167, 169, 59 L.Ed. 364; Tyler v. Judges of the Court of Registration, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347—348, 56 S.Ct. 466, 483—484, 80 L.Ed. 688 (concurring opinion). In Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586, this Court developed various reasons for this rule. Very significant is the incontrovertible proposition that it 'would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.' Id., 346 U.S. at page 256, 73 S.Ct. at page 1035. The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined. The Court further pointed to the fact that a limiting construction could be given to the statute by the court responsible for its construction if an application of doubtful constitutionality were in fact concretely presented. We might add that application of this rule frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy. The District Court relied on, and appellees urge here, certain cases which are said to be inconsistent with this rule and with its closely related corollary that a litigant may only assert his own constitutional rights or immunities. In many of their applications, these are not principles ordained by the Constitution, but constitute rather 'rule(s) of practice,' Barrows v. Jackson, supra, 346 U.S. at page 257, 73 S.Ct. at page 1035, albeit weighty ones; hence some exceptions to them where there are weightly countervailing policies have been and are recognized. For example, where, as a result of the very litigation in question, the constitutional rights of one not a party would be impaired, and where he has no effective way to preserve them himself, the Court may consider those rights as before it. N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 459—460, 78 S.Ct. 1163, 1170—1171, 2 L.Ed.2d 1488; Barrows v. Jackson, supra. This Court has indicated that where the application of these rules would itself have an inhibitory effect on freedom of speech, they may not be applied. See Smith v. People of State of California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205; Thornhill v. State of Alabama, 310 U.S. 88, 97—98, 60 S.Ct. 736, 741—742, 84 L.Ed. 1093. Perhaps cases can be put where their application to a criminal statute would necessitate such a revision of its text as to create a situation in which the statute no longer gave an intelligible warning of the conduct it prohibited. See United States v. Reese, 92 U.S. 214, 219—220, 23 L.Ed. 563; cf. Winters v. People of State of New York, 333 U.S. 507, 518—520, 68 S.Ct. 665, 671—672, 92 L.Ed. 840. And the rules' rationale may disappear where the statute in question has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of the cases it was originally designed to cover. See Butts v. Merchants & Miners Transportation Co., 230 U.S. 126, 33 S.Ct. 964, 57 L.Ed. 1422. The same situation is presented when a state statute comes conclusively pronounced by a state court as having an otherwise valid provision or application inextricably tied up with an invalid one, see Dorchy v. State of Kansas, 264 U.S. 286, 290, 44 S.Ct. 323, 325, 68 L.Ed. 686;3 or possibly in that rarest of cases where this Court can justifiably think itself able confidently to discern that Congress would not have desired its legislation to stand at all unless it could validly stand in its every application. Cf. The Trade-Mark Cases, 100 U.S. 82, 97—98, 25 L.Ed. 550; The Employers' Liability Cases, 207 U.S. 463, 501, 28 S.Ct. 141, 146, 52 L.Ed. 297. But we see none of the countervailing considerations suggested by these examples, or any other countervailing consideration, as warranting the District Court's action here in considering the constitutionality of the Act in applications not before it.4 This case is rather the most typical one for application of the rules we have discussed. There are, to be sure, cases where this Court has not applied with perfect consistency these rules for avoiding unnecessary constitutional determinations,5 and we do not mean to say that every case we have cited for various exceptions to their application was considered to turn on the exception stated, or is perfectly justified by it. The District Court relied primarily on United States v. Reese, supra. As we have indicated, that decision may have drawn support from the assumption that if the Court had not passed on the statute's validity in toto it would have left standing a criminal statute incapable of giving fair warning of its prohibitions. But to the extent Reese did depend on an approach inconsistent with what we think the better one and the one established by the weightiest of the subsequent cases, we cannot follow it here. Accordingly, if the complaint here called for an application of the statute clearly constitutional under the Fifteenth Amendment, that should have been an end to the question of constitutionality. And as to the application of the statute called for by the complaint, whatever precisely may be the reach of the Fifteenth Amendment, it is enough to say that the conduct charged—discrimination by state officials, within the course of their official duties, against the voting rights of United States citizens, on grounds of race or color—is certainly, as 'state action' and the clearest form of it, subject to the ban of that Amendment, and that legislation designed to deal with such discrimination is 'appropriate legislation' under it. It makes no difference that the discrimination in question, if state action, is also violative of state law. Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 403, 88 L.Ed. 497. The appellees contend that since Congress has provided in subsection (d) of the statutory provision in question here that the District Courts shall exercise their jurisdiction 'without regard to whether the party aggrieved shall have exhausted any administrative or other remedies that may be provided by law,' and since such remedies were not exhausted here, appellees' action cannot be ascribed to the State. The argument is that the ultimate voice of the State has not spoken, since higher echelons of authority in the State might revise the appellees' action. It is, however, established as a fundamental proposition that every state official, high and low, is bound by the Fourteenth and Fifteenth Amendments. See Cooper v. Aaron, 358 U.S. 1, 16—19, 78 S.Ct. 1401, 1408—1410, 3 L.Ed.2d 5. We think this Court has already made it clear that it follows from this that Congress has the power to provide for the correction of the constitutional violations of every such official without regard to the presence of other authority in the State that might possibly revise their actions. The appellees can draw no support from the expressions in Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737, on which they so much rely.6 The authority of those expressions has been 'so restricted by our later decisions,' see Snowden v. Hughes, supra, 321 U.S. at page 13, 64 S.Ct. at page 403, that Barney must be regarded as having 'been worn away by the erosion of time,' Tigner v. State of Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124, and of contrary authority. See Raymond v. Chicago Union Traction Co., 207 U.S. 20, 37, 28 S.Ct. 7, 13, 52 L.Ed. 78; Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 283—289, 294, 33 S.Ct. 312, 313—315, 317, 57 L.Ed. 510; Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 247, 52 S.Ct. 133, 136, 76 L.Ed. 265; Snowden v. Hughes, supra; Screws v. United States, 325 U.S. 91, 107—113, 116, 65 S.Ct. 1031, 1038—1041, 1043, 89 L.Ed. 1495. Cf. United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368. It was said of Barney's doctrine in Home Telephone & Telegraph Co. v. City of Los Angeles, supra, 227 U.S. at page 284, 33 S.Ct. at page 314, by Mr. Chief Justice White: '(its) enforcement * * * would * * * render impossible the performance of the duty with which the Federal courts are charged under the Constitution.' The District Court seems to us to have recognized that the complaint clearly charged a violation of the Fifteenth Amendment and of the statute, and that the statute, if applicable only to this class of cases, would unquestionably be valid legislation under that Amendment. We think that under the rules we have stated, that court should then have gone no further and should have upheld the Act as applied in the present action, and that its dismissal of the complaint was error. The appellees urge alternative grounds on which they seek to support the judgment of the District Court dismissing the complaint.7 We do not believe these grounds are well taken. It is urged that it is beyond the power of Congress to authorize the United States to bring this action in support of private constitutional rights. But there is the highest public interest in the due observance of all the constitutional guarantees, including those that bear the most directly on private rights, and we think it perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief. See United Steelworkers of America v. United States, 361 U.S. 39, 43, 80 S.Ct. 1, 4, 4 L.Ed.2d 12, and cases cited. Appellees raise question as to the scope of the equitable discretion reserved to the courts in suits under § 2004. Cf. Id., 361 U.S. at pages 41—42, 80 S.Ct. at pages 3—4. We need not define the scope of the discretion of a District Court in proceedings of this nature, because, exercising a traditional equity discretion, the court below declined to dismiss the complaint on that ground, and we do not discern any basis in the present posture of the case for any contention that it has abused its discretion. Questions as to the relief sought by the United States are posed, but remedial issues are hardly properly presented at this stage in the litigation. The parties have engaged in much discussion concerning the ultimate scope in which Congress intended this legislation to apply, and concerning its constitutionality under the Fifteen Amendment in these various applications. We shall not compound the error we have found in the District Court's judgment by intimating any views on either matter. Reversed. Mr. Justice FRANKFURTER, with whom Mr. Justice HARLAN concurs, joining in the judgment. The weighty presumptive validity with which the Civil Rights Act of 1957, like every enactment of Congress, comes here is not overborne by any claim urged against it. To deal with legislation so as to find unconstitutionality is to reverse the duty of courts to apply a statute so as to save it. Here this measure is sustained under familiar principles of constitutional law. Nor is there any procedural hurdle left to be cleared to sustain the suit of the United States. Whatever may have been the original force of Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737, that decision has long ceased to be an obstruction, nor is any other decision in the way of our result in this case. And so I find it needless to canvass the multitude of opinions that may generally touch on, but do not govern, the issues now before us.

362.US.403

Appeal dismissed and certiorari denied.

The appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.

364.US.59

Petitioner, who claims to be a conscientious objector, was convicted of violating § 12 (a) of the Universal Military Training and Service Act by refusing to be inducted into the armed forces. He claims that he was denied due process of law in violation of the Fifth *A mendmeiit, because (1) at a hearing before a hearing officer of the Department of Justice, he was not permitted to rebut statements attributed to him by the local board, and (2) at the trial, he was denied the right to have the hearing officer's report and the original report of the Federal Bureau of Investigation as to his claim. Held: On the record in this case, the administrative procedures prescribed by the Act were fully complied with; petitioner was not denied due process; and his conviction is sustained. Pp. 60-66. (a) Petitioner was not denied due process in the administrative proceedings, because the statement in question was in his file, to which he had access, and he had opportunities to rebut it both before the hearing Officer of the Department of Justice and before the appeal board. Pp. 62-63. (b) Petitioner was not entitled to have the hearing officer's notes and report, especially since he failed to show any particular need for them and he did have a copy of the Department of Justice's recommendation to the appeal board. Pp. 63-64. (c) Petitioner was pot entitled, either in the administrative hearing at the Department of Justice or at his trial, to inspect the original report of the Federal Bureau of Investigation, since he was furnished a t sum6 of it, did not challenge its accuracy, and showed no particular need for the original report. ,Pp. 64-66. 269 F. 2d 613, affirmed.

This is a prosecution for refusal to be inducted into the armed services, in violation of the provisions of the Universal Military Training and Service Act, 62 Stat. 604, 622, 50 U.S.C.App. § 462(a), 50 U.S.C.A.Appendix, § 462(a). Petitioner, who claims to be a conscientious objector, contends that he was denied due process, both in the proceedings before a hearing officer of the Department of Justice and at trial. He says that he was not permitted to rebut before the hearing officer statements attributed to him by the local board, and, further, that he was denied at trial the right to have the Department of Justice hearing officer's report and the original report of the Federal Bureau of Investigation as to his claim—all in violation of the Fifth Amendment. The trial judge decided that the administrative procedures of the Act were fully complied with and refused to require the production of such documents. Petitioner was found guilty and sentenced to 15 months' imprisonment. The Court of Appeals affirmed. 269 F.2d 613. We granted certiorari in view of the importance of the questions in the administration of the Act. 361 U.S. 899, 80 S.Ct. 206, 4 L.Ed.2d 155. We have concluded that petitioner's claims are controlled by the rationale of Gonzales v. United States, 1955, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467, and United States v. Nugent, 1953, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417, and therefore affirm the judgment. Petitioner registered with Local Board No. 9, Boulder, Colorado, on March 17, 1952. His answers to the classification questionaire reflected that he was a minister of Jehovah's Witnesses, employed at night by a sugar producer. He claimed IV—D classification as a minister of religion, devoting a minimum of 100 hours a month to preaching. On November 13, 1952, he was classified in Class I—A. On November 22, 1952, he wrote the Board, protesting this classification. He again stated that he was 'a regular minister'; that he was 'devoting an average of 100 hours a month to actual preaching publicly,' in addition to 50 to 75 hours in other ministerial duties, and that he opposed war in any form. Thereafter he was classified I—O. On April 1, 1953, after some six months of full-time 'pioneering,' petitioner discontinued devoting 100 hours a month to preaching, but failed to so notify his local board. In a periodic review, the local board on July 30, 1953, r classified him I—A and upheld this classification after a personal appearance by petitioner, because of his willingness to kill in defense of his church and home. Upon administrative approval of the reclassification, he was ordered to report for induction on June 11, 1956, but failed to do so. He was not prosecuted, however, and his case was subsequently reopened, in the light of Sicurella v. United States, 1955, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436. He was again reclassified I—A by the local board. There followed a customary Department of Justice hearing, at which petitioner appeared. In his report to the Attorney General, the hearing officer suggested that the petitioner be exempt only from combatant training and service. On March 21, 1957, however, the Department recommended approval of the I—A classification. Its ground for this recommendation was that, while petitioner claimed before the local board on August 17, 1956 (as evidenced by its memorandum in his file of that date), that he was devoting 100 hours per month to actual preaching, the headquarters of the Jehovah's Witnesses reported that he was no longer doing so and, on the contrary, had relinquished both his Pioneer and Bible Student Servant positions. It reported that he now devoted only some 6 1/2 hours per month to public preaching and from 20 to 25 hours per month to church activities. His claim was therefore 'so highly exaggerated,' the Department concluded, that it 'cast doubt upon his veracity and, consequently, upon his sincerity and good faith.' The appeal board furnished petitioner a copy of the recommendation. In his answer thereto, he advised the Board that he had made no such statement in 1956, and asserted that his only claim to 'pioneering' was in 1952. The appeal board, however, unanimously concurred in the Department's recommendation. Upon return of the file to the local board, petitioner was again ordered to report for induction and this prosecution followed his failure to do so. Petitioner first contends that the Department denied him procedural due process by not giving him timely opportunity, before its final recommendation to the appeal board, to answer the statement of the local board as to his claim of devoting 100 hours to actual preaching. But the statement of the local board attributing this claim to petitioner was in his file. He admitted that he knew it was open to him at all times, and he could have rebutted it before the hearing officer. This he failed to do, asserting that he did not know it to be in his file. Apparently he never took the trouble to find out. Nevertheless he had ample opportunity to contest the statement before the appeal board. After the recommendation of the Department is forwarded to the appeal board, that is the appropriate place for a registrant to lodge his denial. This he did. We found in Gonzales v. United States, supra, that this was the controlling reason why copies of the recommendation should be furnished a registrant. We said there that it was necessary 'that a registrant be given an opportunity to rebut (the Department's) recommendation when it comes to the Appeal Board, the agency with the ultimate responsibility for classification.' 348 U.S. at page 412, 75 S.Ct. at page 412. We fail to see how such procedure resulted in any prejudice to petitioner's contention, which was considered by the appeal board and denied by it. As was said in Gonzales, 'it is the Appeal Board which renders the selective service determination considered 'final' in the courts, not to be overturned unless there is no basis in fact. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567.' 348 U.S., at pages 412—413, 75 S.Ct. at page 412. But there are other contentions which might be considered more difficult. At his trial, petitioner sought to secure through subpoena duces tecum the longhand notes of the Department's hearing officer, Evensen, as well as his report thereon. Petitioner also claimed at trial the right to inspect the o iginal Federal Bureau of Investigation reports to the Department of Justice. He alleged no specific procedural errors or evidence withheld; nor did he elaborate just what favorable evidence the Federal Bureau of Investigation reports might disclose. Section 6(j) of the Act, as we have held, does require the Department's recommendation to be placed in a registrant's file. Gonzales v. United States, supra. But there is nothing in the Act requiring the hearing officer's report to be likewise turned over to the registrant. While the regulations formerly required that the hearing officer's report be placed in the registrant's file, this requirement was eliminated in 1952. Moreover, the hearing officer's report is but intradepartmental, is directed to the Attorney General and, of course, is not the recommendation of the Department. It is not essentially different from a memorandum of an attorney in the Department of Justice, of which the Attorney General receives many, and to which he may give his approval or rejection. It is but part of the whole process within the Department that goes into the making of the final recommendation to the appeal board. It is also significant that neither this report nor the hearing officer's notes were furnished to the appeal board. Hence the petitioner had full opportunity to traverse the only conclusions of the Department on file with the Board. Petitioner knew that the Department's recommendation was based not on the hearing officer's report but on the statement of the local board in his file. Having had every opportunity to rebut the finding of the local board before both the hearing officer and the appeal board, petitioner cannot now claim that he was denied due process because he did not succeed.1 It appears to us that the same reasoning applies to the production of the hearing officer's report and notes at the trial. In addition, petitioner has failed to show any particular need for the report and notes. While there are now allegations of the withholding of 'favorable evidence developed at the hearing' and a denial of a 'full and fair hearing,' no such claim was made by petitioner at any stage of the administrative process. Moreover, his testimony at trial never developed any such facts. In the light of these circumstances, as well as the fact that the issue at trial in this respect centered entirely on the Department's recommendation, which petitioner repudiated but which both the appeal board and the courts below found supported by the record, we find no relevancy in the hearing officer's report and notes. Finally petitioner says that he was entitled to inspect the FBI report during the proceedings before the hearing officer as well as at the trial. He did receive a re sume of it—the same that was furnished the appeal board—and he made no claim of its inaccuracy. Even now no such claim is asserted. He bases his present contention on the general right to explore, indicating that he hopes to find some discrepancy in the re sume . But this is fully answered by United States v. Nugent, supra. There we held 'that the statutory scheme for review, within the selective service system, * * * entitles (conscientious objectors) to no guarantee that the FBI reports must be produced for their inspection.' 346 U.S., at pages 5—6, 73 S.Ct. at page 994. Even if we were not bound by Nugent, petitioner here would not be entitled to the eport. The recommendation of the Department—as well as the decision of the appeal board—was based entirely on the local board file, not on an FBI report. As to the production of the report at the trial, it is true that, while that issue was raised in Nugent,2 the Court gave it no separate treatment. However, it would be an act of folly not to require the production of such reports before the appeal boards, whose actions 'are final' and to be overturned 'only if there is no basis in fact for the classification,' Estep v. United States, 1946, 327 U.S. 114, 122, 66 S.Ct. 423, 427, 90 L.Ed. 567, and subsequently to require their production at the trials in the District Courts. We note that the Courts of Appeals have uniformly rejected such claims. This is not to say that there might not be circumstances in a particular case where fairness in the proceeding would require production. No such circumstances, as foundation for a claim of actual unfairness, are before us. Contrariwise, the re sume fully set out petitioner's statement before the local board as to his ministerial activity. Since this is not disputed, and since the Department's recommendation was based on a disparity between petitioner's representations before the local board—not on the FBI report—it follows that the reasoning of Nugent controls. Petitioner raises other points, such as the fact that the prosecutor did not call the members and clerk of the local board to testify at his trial. We find no substance in any of them. Petitioner could have subpoenaed any witnesses he wished at the trial. It was he who was challenging the classification. The Government relied only on the record in the file, all of which was available to petitioner. He makes much of the identity of the language of the statement he is found to have made before the local board on August 17, 1956, as to his ministerial activity, and his earlier letter to the Board in 1952. But all of this was before the appeal board. Moreover, he could have called witnesses to bring out the circumstances surrounding the statement and the letter; the FBI files would have been to no avail. He contented himself, however, with offering only his own denial. The appeal board resolved this issue against him. It found that his claim as to ministerial activity was exaggerated and cast doubt on his sincerity. Both courts below have found 'that the record is not without evidence to support these conclusions.' We will not set aside their findings here. Affirmed.

362.US.390

On the record in this case, the evidence was sufficient to support the conclusion of the District Court, affirmed by the Court of Appeals, that petitioner, an alien, had become a member of the Communist Party after entering the United States and, therefore, was deportable under the Act of October 16, 1918, as amended by § 22 of the Internal Security Act of 1950. Pp. 390-391. 265 F. 2d 825, affirmed.

The petitioner sought relief from an order directing his deportation on the ground that as an alien he had become, after entering the United States, a member of the Communist Party within the meaning of the Act of October 16, 1918, as amended by § 22 of the Internal Security Act of 1950, 64 Stat. 987, 1006.1 The District Court, after hering, denied the petition, Niukkanen v. Boyd, 148 F.Supp. 106, and the Court of Appeals affirmed. 9 Cir., 241 F.2d 938. Invoking Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140, decided after the order for his deportation, petitioner sought an administrative reconsideration of his status. Upon its denial by the Board of Immigration Appeals he began the judicial proceeding immediately before us for review. After a hearing, the District Court again denied his petition for relief and the Court of Appeals affirmed the order of the District Court. 9 Cir., 265 F.2d 825. The ultimate question is whether petitioner is subject to deportation under Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911, or is saved from it under Rowoldt v. Perfetto, supra. The determination of this issue turns on evaluation of the testimony before the District Court, in light of Galvan v. Press, supra, and Rowoldt v. Perfetto, supra. Such assessment largely depends on the credibility of the testimony on which the district judge based his judgment, particularly that of the petitioner himself, whom the judge saw and heard. An able judge found that petitioner in denying membership in the Communist Party, unlike Rowoldt who admitted membership, see 355 U.S., at pages 116—117, 78 S.Ct. at page 181, but accounted for its innocence, 'perjured himself before, and I believe that he perjured himself today.' We cannot say that his findings, affirmed by the Court of Appeals, were clearly erroneous and do not support the conclusion of both the lower courts. Judgment affirmed.

363.US.536

The Federal Trade Commission found that respondent, a leading national brewer which sells a so-called premium beer at higher prices than the beers of regional and local breweries in the great majority of markets, had reduced its prices only to those customers in the St. Louis area while maintaining higher prices to all purchasers outside the St. Louis area, and thereby had "discriminated in price" as between purchasers differently located, and that this had diverted substantial business from respondent's St. Louis competitors, had substantially lessened competition and tended to create a monopoly, in violation of § 2 (a) of the Clayton Act, as amended by the Robinson-Patman Act; and it ordered respondent to cease and desist. The Court of Appeals concluded that the statutory element of price discrimination had not been, established, and it set aside the Commission's order on this ground alone. Held: The Court of Appeals erred in its construction of § 2 (a); the evidence warranted the Commission's finding of price discrimination; and the judgment is reversed and the case is remanded for further proceedings. Pp. 537-554. (a) Section 2 (a) is violated when there is a price discrimination which deals the requisite injury to sellers' or "primary-line" competition, even though buyers' or "secondary-line" and "tertiaryline" competition are unaffected. Pp. 542-545. (b) The Court of Appeals erred in concluding that, since all competing purchasers paid respondent the same price, so far as the record disclosed, respondent's price cuts were not discriminatory. Pp. 545-546. (c) A price discrimination within the meaning of the portion of § 2 (a) here involved is merely a price difference; and, in order to establish such a price discrimination, it is not necessary to show that the lower price is below cost or unreasonably low for the purpose or design to eliminate competition and thereby obtain a monopoly. Pp. 546-553. 265 F. 2d 677, reversed.

The question presented is whether certain pricing activities of respondent, Anheuser-Busch, Inc., constituted price discrimination within the meaning of § 2(a) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13(a), 15 U.S.C.A. § 13(a). 'That it shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them * * *.' This controversy had its genesis in a complaint issued by the Federal Trade Commission in 1955, which charged respondent, a beer producer, with a violation of § 2(a). The complaint alleged that respondent had 'discriminated in price between different purchasers of its beer of like grade and quality by selling it to some of its customers at higher prices than to other(s)'; that, more specifically, respondent had lowered prices in the St. Louis, Missouri, market, without making similar price reductions in other markets; that this discrimination had already diverted substantial business from respondent's St. Louis competitors; that it was 'sufficient' to have the same impact in the future; that there was a 'reasonable probability' it would substantially lessen competition in respondent's line of commerce; and that it might also tend to create a monopoly or to injure, destroy, or prevent competition with respondent. Thus the complaint described a pricing pattern which had adverse effects only upon sellers' competition, commonly termed primary-line competition, and not upon buyers' competition, commonly termed secondary-line competition. Both the hearing examiner and, on appeal, the Commission held that the evidence introduced at the hearing established a violation of § 2(a). The Commission found the facts to be as follows: Respondent, a leading national brewer,1 sells a so-called premium beer, which is priced higher than the beers of regional and local breweries in the great majority of markets, although both the price of respondent's beer and the premium differential vary from market to market and from time to time. During the period relevant to this case, respondent had three principal competitors in the St. Louis area, all regional breweries: Falstaff Brewing Corporation, Griesedieck Western Brewing Company, and Griesedieck Brothers Brewery Company.2 In accord with the generally prevailing price structure, these breweries normally sold their products at a price substantially lower than respondent's. In 1953, most of the national breweries, including respondent, granted their employees a wage increase, and on October 1,1953, they put into effect a general price increase.3 Although many regional and local breweries throughout the country followed suit by raising their prices, Falstaff, Griesedieck Western, and Griesedieck Brothers maintained their pre-October price of $2.35 per standard case. Although respondent's sales in the St. Louis area did not decline, its national sales fell, along with industry sales in general. On January 4, 1954, respondent lowered its price in the St. Louis market from $2.93 to $2.68 per case, thereby reducing the previous 58$ differential to 33$. A second price cut occurred on June 21, 1954, this time to $2.35, the same price charged by respondent's three competitors. On January 3, 1954, the day before the first price cut, respondent's price in the St. Louis market had been lower than its price in other markets,4 and during the period of the price reductions in the St. Louis area, respondent made no similar price reductions in any other market. In March, 1955, respondent increased its St. Louis price 45$ per case, and Falstaff, Griesedieck Western, and Griesedieck Brothers almost immediately raised their prices 15$, which re-established a substantial differential. This ended the period of alleged price discrimination. 'As a result of maintaining higher prices to all purchasers outside of the St. Louis area and charging the lower prices, as reduced in 1954, to only those customers in the St. Louis area, respondent discriminated in price as between purchasers differently located.' Since, as will appear, it is this aspect of the decision which concerns us, it is necessary only to sketch summarily the remaining elements in the Commission's decision. The Commission's finding of competitive injury was predicated to a substantial degree upon what it regarded as a demonstrated diversion of business to respondent from its St. Louis competitors during the period of price discrimination. For example, by comparing that period with a similar period during the previous year, the Commission determined that respondent's sales had risen 201.5%, Falstaff's sales and dropped slightly, Griesedieck Western's sales had fallen about 33%, and Griesedieck Brothers' sales had plummeted about 41%. In tabular form, the relative market positions of the St. Louis sellers were as follows: The Commission rejected respondent's contention that its price reductions had been made in good faith to meet the equally low price of a competitor within the meaning of the proviso to § 2(b) of the Act, 49 Stat. 1526, 15 U.S.C. § 13(b), 15 U.S.C.A. § 13(b), and also found respondent's attack upon the examiner's cease-and-desist order to be meritless. The Commission thereupon adopted and issued that order, with only slight modification.5 On review, the Court of Appeals set aside the order. 265 F.2d 677. We granted certiorari 361 U.S. 880, 80 S.Ct. 151, 4 L.Ed.2d 117, because a conflict had developed among the Courts of Appeals on a question of importance in the administration of the statute. See Atlas Building Products Co. v. Diamond Block & Gravel Co., 10 Cir., 269 F.2d 950. The limited nature of our inquiry can be fully appreciated only in the light of the correspondingly narrow decision of the Court of Appeals, which rested entirely upon the holding that the threshold statutory element of price discrimination had not been established. Thus the Court of Appeals did not consider whether the record supported a finding of the requisite competitive injury, whether respondent's good faith defense was valid, or whether the Commission's order was unduly broad. We have concluded that the Court of Appeals erred in its construction of § 2(a) and that the evidence fully warranted the Commission's finding of price discrimination. Respondent would have us affirm nonetheless on any of the alternative grounds it strongly urged below. While this is, to be sure, an appropriate course of action under proper circumstances, we believe that it would be unwise for us to grapple with these intricate problems, the solution to which requires a careful examination of a voluminous record, before they have been dealt with by the Court of Appeals. Therefore, the case will be remanded, and of course nothing in this opinion should be interpreted as intimating a view upon the remaining aspects of the controversy. A discussion of the import of the § 2(a) phrase 'discriminate in price,' in the context of this case, must begin with a consideration of the purpose of the statute with respect to primary-line competition. The Court of Appeals expressed some doubt that § 2(a) was designed to protect this competition at all, but respondent has not undertaken to defend that position here. This is entirely understandable. While 'precision of expression is not an outstanding characteristic of the Robinson-Patman Act,' Automatic Canteen Co. of America v. Federal Trade Comm., 346 U.S. 61, 65, 73 S.Ct. 1017, 1020, 97 L.Ed. 1454, it is certain at least that § 2(a) is violated where there is a price discrimination which deals the requisite injury to primary-line competition, even though secondary-line and tertiary-line competition are unaffected. The statute could hardly be read any other way, for it forbids price discriminations 'where the effect * * * may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.' (Emphasis added.) The legislative history of § 2(a) is equally plain. The section, when originally enacted as part of the Clayton Act in 1914, was born of a desire by Congress to curb the use by financially powerful corporations of localized price-cutting tactics which had gravely impaired the competitive position of other sellers.6 It is, of course, quite true—and too well known to require extensive exposition—that the 1936 Robinson-Patman amendments to the Clayton Act were motivated principally by congressional concern over the impact upon secondary line competition of the burgeoning of mammoth purchasers, notably chain stores.7 However, the legislative history of these amendments leaves no doubt that Congress was intent upon strengthening the Clayton Act provisions, not weakening them, and that it was no part of Congress' purpose to curtail the pre-existing applicability of § 2(a) to price discriminations affecting primary-line competition.8 The federal courts, both before and after the amendment of § 2(a), have taken this view of the scope of the statute in cases involving impairment of primary-line competition. See Porto Rican American Tobacco Co. of Porto Rico v. American Tobacco Co., 2 Cir., 1929, 30 F.2d 234; E. B. Muller & Co. v. Federal Trade Comm., 6 Cir., 1944, 142 F.2d 511; Maryland Baking Co. v. Federal Trade Comm., 4 Cir., 1957, 243 F.2d 716; Atlas Building Products Co. v. Diamond Block & Gravel Co., supra (1959). In fact, the original focus of § 2(a) on sellers' competition was so evident that this Court was compelled to hold explicitly, contrary to lower court decisions,9 that the statute was not restricted to price discriminations impeding primary-line competition, but protected secondary-line competition as well. Van Camp & sons v. American Can Co., 1929, 278 U.S. 245, 49 S.Ct. 112, 73 L.Ed. 311. And more recently, in Moore v. Mead's Fine Bread Co., 1954, 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145, the Court sustained a treble damage judgment in favor of a competing seller which was based partly upon a violation of § 2(a). Thus neither the language of § 2(a), its legislative history, nor its judicial application countenances a construction of the statute which draws strength from even a lingering doubt as to its purpose of protecting primary-line competition. But the rationale of the Court of Appeals appears to have been shaped by precisely this type of doubt. The view of the Court of Appeals was that, before, there can be a price discrimination within the meaning of § 2(a), '(t)here must be some relationship between the different purchasers which entitles them to comparable treatment.' 265 F.2d, at page 681. Such a relationship would exist, the court reasoned, if different prices were being charged to competing purchasers. But the court observed that in this case all competing purchasers paid respondent the same price, so far as the record disclosed. Consequently, the court concluded that, even assuming the price cuts 'were directed at (Anheuser-Busch's) local competitors, they were not discriminatory.'10 Ibid. This qualification upon the applicability of § 2(a) to primary-line-competition cases is in no way adumbrated by the prevailing line of relevant decisions. In Mead's Fine Bread Co., supra, in Maryland Baking Co., supra, and in Porto Rican American Tobacco Co., supra, violations of § 2(a) were predicated upon injury to primary-line competition without reliance upon the presence or absence of competition among purchasers as a relevant factor. And in E. B. Muller & Co., supra, while there was evidence that the purchasers in question were competing, the court explicitly rejected the notion that this was a necessary element of a violation in a primary-line case. 142 F.2d, at page 518. But cf. Balian Ice Cream Co. v. Arden Farms Co., 9 Cir., 231 F.2d 356. More important, however, is the incompatibility of the Circuit Court's rule with the purpose of § 2(a). The existence of competition among buyers who are charged different prices by a seller is obviously important in terms of adverse effect upon secondary-line competition, but it would be merely a fortuitous circumstance so far as injury to primary-line competition is concerned. Since, as we have indicated, an independent and important goal of § 2(a) is to extend protection to competitors of the discriminating seller, the limitation of that protection by the alien factor of competition among purchasers would constitute a debilitating graft upon the statute. Although respondent's starting point is the same as that of the Court of Appeals—that a price discrimination is not synonymous with a price difference—its test of price discrimination is somewhat broader.11 Respondent concedes that a competitive relationship among purchasers is not a prerequisite of price discrimination, but maintains that at least there must be 'proof that the lower price is below cost or unreasonably low for the purpose or design to eliminate competition and thereby obtain a monopoly.' Since such a finding is lacking here, respondent argues that it cannot be said that there was price discrimination. Respondent asserts that its view is supported by legislative history, court decisions, and reason. Respondent relies heavily, as did the Court of Appeals, upon a statement made during Congress' consideration of the Robinson-Patman legislation by Representative Utterback, a manager of the conference bill which became § 2(a). In this rather widely quoted exegesis of the section, Representative Utterback declared that 'a discrimination is more than a mere difference,' and exists only when there is 'some relationship * * * between the parties to the discrimination which entitles them to equal treatment.' Such a relationship would prevail among competing purchasers, according to the Congressman, and also 'where * * * the price to one is so low as to involve a sacrifice of some part of the seller's necessary costs and profit,' so that 'it leaves that deficit inevitably to be made up in higher prices to his other customers.' 80 Cong.Rec. 9416.12 Respondent also cites expressions in the legislative history of the Clayton Act which reflect Congress' concern over classic examples of predatory business practices. See H.R.Rep. No. 627, 63d Cong., 2d Sess. 8; S.Rep. No. 698, 63d Cong., 2d Sess. 2—4. Moreover, respondent maintains that the principle it advances has found expression in the decisions of the federal courts in primary-line-competition cases, which consistently emphasize the unreasonably low prices and the predatory intent of the defendants.13 Respondent also urges that its view is grounded upon the statutory scheme of § 2(a), which penalizes sellers only if an anticompetitive effect stems from a discriminatory pricing pattern, not if it results merely from a low price. Thus, the argument goes, unless there is proof that high prices in one area have subsidized low prices in another, the price differential does not fall within the compass of the section. In such a case, it is contended, § 3 of the Robinson-Patman Act, 49 Stat. 1528, 15 U.S.C. § 13a, 15 U.S.C.A. § 13a, may be applicable, but not § 2(a).14 Finally, respondent argues that, unless its position is accepted, the law will impose rigid price uniformity upon the business world, contrary to sound economics and the policy of the antitrust laws The trouble with respondent's arguments is not that they are necessarily irrelevant in a § 2(a) proceeding, but that they are misdirected when the issue under consideration is solely whether there has been a price discrimination. We are convinced that, whatever may be said with respect to the rest of §§ 2(a) and 2(b) and we say nothing here—there are no overtones of business buccaneering in the § 2(a) phrase 'discriminate in price.' Rather, a price discrimination within the meaning of that provision is merely a price difference. When this Court has spoken of price discrimination in § 2(a) cases, it has generally assumed that the term was synonymous with price differentiation. In Federal Trade Comm. v. Cement Institute, 333 U.S. 683, 721, 68 S.Ct. 793, 813, 92 L.Ed. 1010, the Court referred to 'discrimination in price' as 'selling the same kind of goods cheaper to one purchaser than to another.' And in Federal Trade Comm. v. Morton Salt Co., 334 U.S. 37, 45, 68 S.Ct. 822, 827, 92 L.Ed. 1196, the Court said, 'Congress meant by using the words 'discrimination in price' in § 2 that in a case involving competitive injury between a seller's customers the Commission need only prove that a seller had charged one purchaser a higher price for like goods than he had charged one or more of the purchaser's competitors.'15 The commentators have generally shared this view.16 These assumptions, we now conclude, were firmly rooted in the structure of the statute, for it is only by equating price discrimination with price differentiation that § 2(a) can be administered as Congress intended. As we read that provision, it proscribes price differences, subject to certain defined defenses,17 where the effect of the differences 'may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit' of the price differential, 'or with customers of either of them.' See Federal Trade Comm. v. Morton Salt Co., 334 U.S. 37, 45—47, 68 S.Ct. 822, 827—828, 92 L.Ed. 1196. In other words, the statute itself spells out the conditions which make a price difference illegal or legal, and we would derange this integrated statutory scheme were we to read other conditions into the law by means of the nondirective phrase, 'discriminate in price.' Not only would such action be contrary to what we conceive to the the meaning of the statute, but, perhaps because of this, it would be thoroughly undesirable. As one commentator has succinctly put it, 'Inevitably every legal controversy over any price difference would shift from the detailed governing provisions—'injury,' cost justification, 'meeting competition,' etc.—over into the 'discrimination' concept for ad hoc resolution divorced from specifically pertinent statutory text.' Rowe, Price Differentials and Product Differentiation: The Issues Under the Robinson-Patman Act, 66 Yale L.J. 1, 38.18 In the face of these considerations, we do not find respondent's arguments persuasive. The fact that activity which falls within the civil proscription of § 2(a) may also be criminal under § 3 is entirely irrelevant. The partial overlap between these sections, which was to a significant extent the by-product of the tortuous path of the Robinson-Patman bills through Congress,19 has been widely recognized. '(T)his section (§ 3) does not restrict the operation of the prohibitions, with civil sanctions, of the Robinson-Patman amendments to § 2(a) of the Clayton Act.' Corn Products Refining Co. v. Federal Trade Comm., 324 U.S. 726, 734, 65 S.Ct. 961, 965, 89 L.Ed. 1320.20 The other materials adduced by respondent do no more than indicate that the factors in question—predatory intent and unreasonably low local price cuts—may possibly be relevant to other matters which may be put in issue in a § 2(a) proceeding. For example, it might be argued that the existence of predatory intent bears upon the likelihood of injury to competition,21 and that a price reduction below cost tends to establish such an intent.22 Practically all of the legislative materials and court decisions relied upon by respondent are explicable on this basis, since hardly any of them are concerned specifically with the meaning of price discrimination.23 Moreover, many of the legislative expressions cited by respondent may merely be descriptive of the prototype of the evil with which Congress dealt in § 2(a) rather than delineative of the outer reach of that section. A possible exception is the statement of Representative Utterback. But the primary function of statutory construction is to effectuate the intent of Congress, and that function cannot properly be discharged by reliance upon a statement of a single Congressman, in the face of the weighty countervailing considerations which are present in this case.24 Nothing that we have said, of course, should be construed to be the expression of any view concerning the relevance of the factors stressed by respondent to statutory standards other than price discrimination. We wish merely to point out, on the one hand, why respondent's arguments in our view are not pertinent to the issue at bar, and, on the other, that we are not foreclosing respondent from urging in the Court of Appeals that such arguments are material to issues not now before us. What we have said makes it quite evident, we believe, that our decision does not raise the specter of a flat prohibition of price differentials, inasmuch as price differences constitute but one element of a § 2(a) violation. In fact, as we have indicated, respondent has vigorously contested this very case on the entirely separate grounds of insufficient injury to competition and good faith lowering of price to meet competition. Nor is it relevant that the Commission did not proceed upon the basis of the respondent's price differentials which existed prior to the period in question in this case. This choice is committed to the discretion of the Commission; and it may well be that the Commission did not believe the remaining statutory elements could be established with respect to other differentials. Our interest is solely with this case, and at this stage of the litigation that interest is confined exclusively to identifying and keeping distinct the various statutory standards which are part of the § 2(a) complex. The judgment of the Court of Appeals is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion. Reversed.

362.US.257

1. While petitioner was in an apartment which he testified later was not his but that of a friend who permitted him to use it, the apartment was searched by federal officers armed with a search warrant, narcotics were found and seized, and petitioner was arrested and cl'-rged with violating the narcotics laws. He moved to suppress the evidence so seized on the ground that the search was illegal. Held: Petitioner was a "person aggrieved" within the meaning of Rule 41 (e) of the Federal Rules of Criminal Procedure, and he had standing to make the motion under that Rule. Pp. 260-267. 2. Issuance of the search warrant here involved was based solely on an affidavit by a federal narcotics officer reciting that: (1) he had received information from an unnamed informer that petitioner and another person were involved in illicit narcotics traffic and kept a supply of heroin on hand in the apartment and that the informer had purchased narcotics from them in the apartment; (2) information previously received from this informer had been correct; (3) the same information had been received from other sources; (4) petitioner and his associate were known to be drug addicts; and (5) the affiant believed that illicit drugs were being secreted in the apartment by petitioner and another person. Held: This was sufficient evidence of probable cause to justify issuance of the search warrant. Pp. 267-272, 3. Without having done so in the District Court, petitioner attacked in the Court of Appeals the legality of the search, on the ground that the warrant was not executed in conformity with 18 U. S. C. § 3109. The Court of Appeals fully considered the claim and rejected it. The Government did not contend that the issue was not properly before this Court. Held: The question is open to decision by this Court; but it cannot be resolved satisfactorily on the record. Therefore, the judgment of the Court of Appeals sustaining petitioner's conviction is vacated, and the case is remanded to the District Court to consider this issue. Pp. 272-273. 104 U. S. App. D. C. 345, 262 F. 2d 234, judgment vacated and case remanded.

This is a prosecution for violation of federal narcotics laws. In the first count of a two-count indictment petitioner was charged with having 'purchased, sold, dispensed and distributed' narcotics in violation of 26 U.S.C. § 4704(a), 26 U.S.C.A. § 4704(a), that is, not in or from the 'original stamped package.' In the second count petitioner was charged under 21 U.S.C. § 174, 21 U.S.C.A. § 174, with having 'facilitated the concealment and sale of' the same narcotics, knowing them to have been imported illegally into the United States. Petitioner was found guilty on both counts and sentenced to seven years' imprisonment. The Court of Appeals, one judge dissenting, affirmed the conviction. 104 U.S.App.D.C. 345, 262 F.2d 234. Since the case presented important questions in the administration of criminal justice, more particularly a defendant's standing to challenge the legality of a search in the circumstances of this case, as well as the legality of the particular search should standing be established, we granted certiorari. 359 U.S. 988, 79 S.Ct. 1125, 3 L.Ed.2d 978. Both statutory provisions under which petitioner was prosecuted permit conviction upon proof of the defendant's possession of narcotics, and in the case of 26 U.S.C. § 4704(a), 26 U.S.C.A. § 4704(a), of the absence of the appropriate stamps. Possession was the basis of the Government's case against petitioner. The evidence against him may be briefly summarized. He was arrested in an apartment in the District of Columbia by federal narcotics officers, who were executing warrant to search for narcotics. Those officers found narcotics, without appropriate stamps, and narcotics paraphernalia in a bird's nest in an awning just outside a window in the apartment. Another officer, stationed outside the building, had a short time before seen petitioner put his hand on the awning. Upon the discovery of the narcotics and the paraphernalia petitioner had admitted to the officers that some of these were his and that he was living in the apartment. Prior to trial petitioner duly moved to suppress the evidence obtained through the execution of the search warrant on the ground that the warrant had been issued without a showing of probable cause. The Government challenged petitioner's standing to make this motion because petitioner alleged neither ownership of the seized articles nor an interest in the apartment greater than that of an 'invitee or guest.' The District Court agreed to take evidence on the issue of petitioner's standing. Only petitioner gave evidence. On direct examination he testified that the apartment belonged to a friend, Evans, who had given him the use of it, and a key, with which petitioner had admitted himself on the day of the arrest. On cross-examination petitioner testified that he had a suit and shirt at the apartment, that his home was elsewhere, that he paid nothing for the use of the apartment, that Evans had let him use it 'as a friend,' that he had slept there 'maybe a night,' and that at the time of the search Evans had been away in Philadelphia for about five days. Solely on the basis of petitioner's lack of standing to make it, the district judge denied petitioner's motion to suppress. When the case came on for trial before a different judge, the motion to suppress was renewed and was denied on the basis of the prior ruling. An unsuccessful objection was made when the seized items were offered in evidence at the trial. In affirming petitioner's conviction the Court of Appeals agreed with the District Court that petitioner lacked standing, but proceeded to rule that even if it were to find that petitioner had standing, it would hold the evidence to have been lawfully received. A challenge to the search which petitioner had not made in the District Court, namely, that the method of executing the warrant had been illegal, was considered by the Court of Appeals and rejected, while the contention petitioner had made below, that there had been insufficient cause to issue the warrant, was rejected without discussion. The issue of petitioner's standing is to be decided with reference to Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. This is a statutory direction governing the suppression of evidence acquired in violation of the conditions validating a search. It is desirable to set forth the Rule. 'A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, or (2) the warrant is insufficient on its face, or (3) property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial. The motion to suppress evidence may also be made in the district where the trial is to be had. The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.' In order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. Rule 41(e) applies the general principle that a party will not be heard to claim a constitutional protection unless he 'belongs to the class for whose sake the constitutional protection is given.' People of State of N.Y. ex rel. Hatch v. Reardon, 204 U.S. 152, 160, 27 S.Ct. 188, 190, 51 L.Ed. 415. The restrictions upon searches and seizures were obviously designed for protection against official invasion of privacy and the security of property. They are not exclusionary provisions against the admission of kinds of evidence deemed inherently unreliable or prejudicial. The exclusion in federal trials of evidence otherwise competent but gathered by federal officials in violation of the Fourth Amendment is a means for making effective the protection of privacy. Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy. But prosecutions like this one have presented a special problem. To establish 'standing,' Courts of Appeals have generally required that the movant claim either to have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched. Since narcotics charges like those in the present indictment may be established through proof solely of possession of narcotics, a defendant seeking to comply with what has been the conventional standing requirement has been forced to allege facts the proof of which would tend, if indeed not be sufficient, to convict him. At the least, such a defendant has been placed in the criminally tendentious position of explaining his possession of the premises. He has been faced, not only with the chance that the allegations made on the motion to suppress may be used against him at the trial, although that they may is by no means an inevitable holding, but also with the encouragement that he perjure himself if he seeks to establish 'standing' while maintaining a defense to the charge of possession. The dilemma that has thus been created for defendants in cases like this has been pointedly put by Judge Learned Hand: 'Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at one to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.' Connolly v. Medalie, 2 Cir., 58 F.2d 629, 630. Following this holding, several Courts of Appeals have pinioned a defendant within this dilemma. See, e.g., Scoggins v. United States, 92 U.S.App.D.C. 29, 30, 202 F.2d 211, 212; United States v. Eversole, 7 Cir., 209 F.2d 766, 768; Accardo v. United States, 101 U.S.App.D.C. 162, 163—164, 247 F.2d 568, 569—570; Grainger v. United States, 4 Cir., 158 F.2d 236. A District Court has held otherwise. United States v. Dean, D.C.Mass., 50 F.2d 905, 906. The Government urges us to follow the body of Court of Appeals' decisions and to rule that the lower courts, including the courts below, have been right in barring a defendant in a case like this from challenging a search because of his failure, when making his motion to suppress, to allege either that he owned or possessed the property seized or that he had a possessory interest in the premises searched greater than the interest of an 'invitee or guest.' Judge Hand's dilemma is not inescapable. It presupposes requirements of 'standing' which we do not find compelling. Two separate lines of thought effectively sustain defendant's standing in this case. (1) The same element in this prosecution which has caused a dilemma, iE., that possession both convicts and confers standing, eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized, which ordinarily is required when standing is challenged. (2) Even were this not a prosecution turning on illicit possession, the legally requisite interest in the premises was here satisfied, for it need not be as extensive a property interest as was required by the courts below. As to the first ground, we are persuaded by this consideration: to hold to the contrary, that is, to hold that petitioner's failure to acknowledge interest in the narcotics or the premises prevented his attack upon the search, would be to permit the Government to have the advantage of contradictory positions as a basis for conviction. Petitioner's conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government. The possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41(e). The Government's argument to the contrary essentially invokes elegantia juris. In the interest of normal procedural orderliness, a motion to suppress, under Rule 41(e), must be made prior to trial, if the defendant then has knowledge of the grounds on which to base the motion. The Government argues that the defendant therefore must establish his standing to suppress the evidence at that time through affirmative allegations and may not wait to rest standing upon the Government's case at the trial. This provision of Rule 41(e), requiring the motion to suppress to be made before trial, is a crystallization of decisions of this Court requiring that procedure, and is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt. See Nardone v. United States, 308 U.S. 338, 341 342, 60 S.Ct. 266, 267—268, 84 L.Ed. 307; Segurola v. United States, 275 U.S. 106, 111—112, 48 S.Ct. 77, 79, 72 L.Ed. 186; Agnello v. United States, 269 U.S. 20, 34, 46 S.Ct. 4, 7, 70 L.Ed. 145; Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575. As codified, the rule is not a rigid one, for under Rule 41(e) 'the court in its discretion may entertain the motion (to suppress) at the trial or hearing.' This qualification proves that we are dealing with carrying out an important social policy and not a narrow, finicky procedural requirement. This underlying policy likewise precludes application of the Rule so as to compel the injustice of an internally inconsistent conviction. In cases where the indictment itself charges possession, the defendant in a very real sense is revealed as a 'person aggrieved by an unlawful search and seizure' upon a motion to suppress evidence prior to trial. Rule 41(e) should not be applied to allow the Government to deprive the defendant of standing to bring a motion to suppress by framing the indictment in general terms, while prosecuting for possession.1 As a second ground sustaining 'standing' here we hold that petitioner's testimony on the motion to suppress made out a sufficient interest in the premises to establish him as a 'person aggrieved' by their search. That testimony established that at the time of the search petitioner was present in the apartment with the permission of Evans, whose apartment it was. The Government asserts that such an interest is insufficient to give standing. The Government does not contend that only ownership of the premises may confer standing. It would draw distinctions among various classes of possessors, deeming some, such as 'guests' and invitees' with only the 'use' of the premises, to have too 'tenuous' an interest although concededly having 'some measure of control' through their 'temporary presence,' while conceding that others, who in a 'realistic sense, have dominion of the apartment' or who are 'domiciled' there, have standing. Petitioner, it is insisted, by his own testimony falls in the former class. While this Court has never passed upon the interest in the searched premises necessary to maintain a motion to suppress, the Government's argument closely follows the prevailing view in the lower courts. They have denied standing to 'guests' and 'invitees' (e.g., Gaskins v. United States, 95 U.S.App.D.C. 34, 35, 218 F.2d 47, 48; Gibson v. United States, 80 U.S.App.D.C. 81, 84, 149 F.2d 381, 384; In re Nassetta, 2 Cir., 125 F.2d 924; Jones v. United States, 104 U.S.App.D.C. 345, 262 F.2d 234), and employees, who though in 'control' or 'occupancy' lacked 'possession' (e.g., Connolly v. Medalie, 2 Cir., 58 F.2d 629, 630; United States v. Conoscente, 2 Cir., 63 F.2d 811). The necessary quantum of interest has been distinguished as being, variously, 'ownership in or right to possession of the premises' (e.g., Jeffers v. United States, 88 U.S.App.D.C. 58, 61, 187 F.2d 498, 501, affirmed Jeffers v. United States, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59), the interest of a 'lessee or licensee' (United States v. De Bousi, D.C., 32 F.2d 902, 903), or of one with 'dominion' (McMillan v. United States, 8 Cir., 26 F.2d 58, 60; Steeber v. United States, 10 Cir., 198 F.2d 615, 617, 33 A.L.R.2d 1425). We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private properly law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of these distinctions in th homeland of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between 'lessee,' 'licensee,' 'invitee' and 'guest,' often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards. We rejected such distinctions as inappropriate to the law of maritime torts in Kermarec v. Compagnie Generale, 358 U.S. 625, 630—632, 79 S.Ct. 406, 409—410, 3 L.Ed.2d 550. We found there to be a duty of ordinary care to one rightfully on the ship, regardless of whether he was a 'licensee' rather than an 'invitee.' 'For the admiralty law at this late date to import such conceptual distinctions would be foreign to its traditions of simplicity and practicality.' 358 U.S., at page 631, 79 S.Ct. at page 410. A fortiori we ought not to bow to them in the fair administration of the criminal law. To do so would not comport with our justly proud claim of the procedural protections accorded to those charged with crime. No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched. As petitioner's testimony established Evans' consent to his presence in the apartment, he was entitled to have the merits of his motion to suppress adjudicated. We come to consider the grounds upon which the search is alleged to have been illegal. The attack which was made in the District Court was one of lack of probable cause for issuing the search warrant. The question raised is whether sufficient evidence to establish probable cause to search was put before the Commissioner by the officer, Didone, who applied for the warrant. The sole evidence upon which the warrant was issued was an affidavit signed by Didone. Both parties urge us to decide the question here, without remanding it to the District Court which, because it found lack of standing, did not pass on it. We think it appropriate to decide the question. The affidavit is set out in the margin.2 Didone was a member of the Narcotic Squad in the District of Columbia. His affidavit claimed no direct knowledge of the presence of narcotics in the apartment. He swore that on the day before making the affidavit he had been given information, by one unnamed, that petitioner and another 'were involved in the illicit narcotic traffic' and 'kept a ready supply of heroin on hand' in the apartment. He swore that his informant claimed to have purchased narcotics at the apartment from petitioner and another 'on many occasions,' the last of which had been the day before the warrant was applied for. Didone swore that his informant 'has given information to the undersigned on previous occasion and which was correct,' that '(t)his same information' regarding petitioner had been given the narcotic squad by 'other sources of information' and that the petitioner and the other implicated by the informant had admitted being users of narcotics. On this basis Didone founded his oath that he believed 'that there is now illicit narcotic drugs being secreated (sic) in the above apartment by Cecil Jones.' This affidavit was, it is claimed, insufficient to establish probable cause because it did not set forth the affiant's personal observations regarding the presence of narcotics in the apartment, but rested wholly on hearsay. We held in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159, that an affidavit does not establish probable cause which merely states the affiant's belief that there is cause to search, without stating facts upon which that belief is based. A fortiori this is true of an affidavit which states only the belief of one not the affiant. That is not, however, this case. The question here is whether an affidavit which sets out personal observations relating to the existence of cause to search is to be deemed insufficient by virtue of the fact that it sets out not the affiant's observations but those of another. An affidavit is not to be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented. In testing the sufficiency of probable cause for an officer's action even without a warrant, we have held that he may rely upon information received through an informant, rather than upon his direct observations, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. We there upheld an arrest without a warrant solely upon an informant's statement that the defendant was peddling narcotics, as corroborated by the fact that the informant's description of the defendant's appearance, and of where he would be on a given morning (matters in themselves totally innocuous) agreed with the officer's observations. We rejected the contention that an officer may act without a warrant only when his basis for acting would be competent evidence upon a trial to prove defendant's guilt. Quoting from Brinegar v. United States, 338 U.S. 160, 172, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879, we said that such a contention 'goes much too far in confusing and disregarding the difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search. * * * There is a large difference between the two things to be proved (guilt and probable cause) * * * and therefore a like difference in the quanta and modes of proof required to establish them.' 358 U.S., at pages 311—312, 79 S.Ct. at page 332. The dictum to the contrary in Grau v. United States, 287 U.S. 124, 128, 53 S.Ct. 38, 40, 77 L.Ed. 212, was expressly rejected in Draper. 358 U.S. at page 312, note 4, 79 S.Ct. at page 332. See also Judge Learned Hand in United States v. Heitner, 2 Cir., 149 F.2d 105, 106. What we have ruled in the case of an officer who acts without a warrant governs our decision here. If an officer may act upon probable cause without a warrant when the only incriminating evidence in his possession is hearsay, it would be incongruous to hold that such evidence presented in an affidavit is insufficient basis for a warrant. If evidence of a more judicially competent or persuasive character than would have justified on officer in acting on his own without a warrant must be presented when a warrant is sought, warrants could seldom legitimatize police conduct, and resort to them would ultimately be discouraged. Due regard for the safeguards governing arrests and searches counsels the contrary. In a doubtful case, when the officer does not have clearly convincing evidence of the immediate need to search, it is most important that resort be had to a warrant, so that the evidence in the possession of the police may be weighed by an independent judicial officer, whose decision, not that of the police, may govern whether liberty or privacy is to be invaded. We conclude therefore that hearsay may be the basis for a warrant. We cannot say that there was so little basis for accepting the hearsay here that the Commissioner acted improperly. The Commissioner need not have been convinced of the presence of narcotics in the apartment. He might have found the affidavit insufficient and withheld his warrant. But there was substantial basis for him to conclude that narcotics were probably present in the apartment, and that is sufficient. It is not suggested that the Commissioner doubted Didone's word. Thus we may assume that Didone had the day before been told, by one who claimed to have bought narcotics there, that petitioner was selling narcotics in the apartment. Had that been all, it might not have been enough; but Didone swore to a basis for accepting the informant's story. The informant had previously given accurate information. His story was corroborated by other sources of information. And petitioner was known by the police to be a user of narcotics. Corroboration through other sources of information reduced the chances of a reckless or prevaricating tale; that petitioner was a known user of narcotics made the charge against him much less subject to scepticism than would be such a charge against one without such a history. Petitioner argues that the warrant was defective because Didone's informants were not produced, because his affidavit did not even state their names, and Didone did not undertake and swear to the results of his own independent investigation of the claims made by his informants. If the objections raised were that Didone had misrepresented to the Commissioner his basis for seeking a warrant, these matters might be relevant. Such a charge is not made. All we are here asked to decide is whether the Commissioner acted properly, not whether Didone did. We have decided that, as hearsay alone does not render an affidavit insufficient, the Commissioner need not have required the informants or their affidavits to be produced, or that Didone have personally made inquiries about the apartment, so long as there was a substantial basis for crediting the hearsay. In the Court of Appeals petitioner presented an additional attack upon the legality of the search, namely, that the warrant was not executed in conformity with 18 U.S.C. § 3109, 18 U.S.C.A. § 3109.3 Since petitioner did not, with ample opportunity to do so, make this claim in the District Court, we should not ordinarily consider it here had the Court of Appeals refused for that reason to entertain it. The Court of Appeals, however, fully considered the claim and rejected it; nor does the Government contend that it is not properly before us. In these circumstances we hold that the question of the legality of the execution of the search warrant under 18 U.S.C. § 3109, 18 U.S.C.A. § 3109, is open for our decision. Unlike the claim of lack of probable cause, this contention is not one which can satisfactorily be resolved upon the record before us. As Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332, demonstrated, a claim under 18 U.S.C. § 3109, 18 U.S.C.A. § 3109, depends upon the particular circumstances surrounding the execution of the warrant. The trial revealed a direct conflict in testimony on this matter. We cannot yield to the Government's suggestion that we ignore that conflict and consider the question on the version of the warrant's execution given at the trial most favorable to the prosecution. We therefore vacate the decision of the Court of Appeals and remand the case to the District Court to consider petitioner's contention under 18 U.S.C. § 3109, 18 U.S.C.A. § 3109, in light of our decision that petitioner had standing to make it. Vacated and remanded. Mr. Justice DOUGLAS. I join the part of the opinion which holds that petitioner had 'standing' to challenge the legality of the search. But I dissent from the ruling that there was 'probable cause' for issuance of the warrant. The view that there was 'probable cause' finds some support in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. But my dissent in Draper gives, I think, the true dimensions of the problem. This is an age where faceless informers have been reintroduced into our society in alarming ways. Sometimes their anonymity is defended on the ground that revelation of their names would ruin counter-espionage or cripple an underground network of agents. Yet I think in these Fourth Amendment cases the duty of the magistrate is nondelegable. It is not sufficient that the police think there is cause for an invasion of the privacy of the home. The judicial officer must also be convinced; and to him the police must go except for emergency situations. The magistrate should know the evidence on which the police propose to act. Unless that is the requirement, unless the magistrate makes his independent judgment on all the known facts, then he tends to become merely the tool of police interests. Though the police are honest and their aims worthy, history shows they are not appropriate guardians of the privacy which the Fourth Amendment protects.

364.US.280

Judgment with respect to suspension of rates vacated and case remanded; judgment affirmed with respect to antitrust question. Reported below: 179 F. Supp. 605.

The judgment of the United States District Court for the District of Delaware, so far as it relates to the suspension of rates phase of the dispute, is vacated and the case is remanded to the District Court with instructions to dismiss the cause as moot. United States v. Amarillo-Borger Express, 352 U.S. 1028, 77 S.Ct. 594, 1 L.Ed.2d 598; Atchison, T. & S. F. R. Co. v. Dixie Carriers, 355 U.S. 179, 78 S.Ct. 258, 2 L.Ed.2d 186. With respect to the antitrust phase of the dispute, the judgment of the District Court is affirmed. Mr. Justice BLACK and Mr. Justice DOUGLAS dissent on the holding of Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051.

362.US.600

Since the record does not adequately present the questions tendered in the petition, the writ of certiorari is dismissed as improvidently granted. Reported below: 261 F. 2d 802.

After hearing oral argument, and further study of the record, we conclude that the record does not adequately present the questions tendered in the petition. Accordingly the writ is dismissed as improvidently granted. Mr. Justice FRANKFURTER, whom Mr. Justice CLARK and Mr. Justice HARLAN join. Considering the volume of cases which invoke the Court's discretionary jurisdiction—as of today 1,092 such cases have been passed on during this Term—it would be indeed surprising if in each Term there were not two or three instances of petitions which, after passing through the preliminary sifting process, did not survive the scrutiny of oral argument. See the cases collected in Rice v. Sioux City Cemetery, 349 U.S. 70, 77-78, 75 S.Ct. 614, 99 L.Ed. 897, and, more recently, Triplett v. Iowa, 357 U.S. 217, 78 S.Ct. 1358, 2 L.Ed.2d 1361; Joseph v. Indiana, 359 U.S. 117, 79 S.Ct. 720, 3 L.Ed.2d 673; and Phillips v. New York, 362 U.S. 456, 80 S.Ct. 874. But this is not one of them. The specific questions which were presented by the petition for certiorari are not now found to be frivolous nor do they raise disputed questions of fact, nor does the record otherwise appropriately preclude answers to them. In my view they call for answers against the claims of the petitioner and I would therefore affirm the judgment. In view of the disposition of the case elaboration is not called for.

361.US.231

In view of ambiguities in the record as to the issues, certiorari dismissed as improvidently granted. Reported below: 254 F. 2d 116.

In view of ambiguities in the record as to the issues sought to be tendered, made apparent in oral argument and the memoranda of counsel subsequently filed at the Court's request, the writ of certiorari is dismissed as improvidently granted. Mr. Justice BLACK took no part in the consideration or decision of this case.

362.US.373

Under the Copyright Act, 17 U. S. C. § 24, when the author of a copyrighted musical composition dies testate, leaving no widow, w*dower or child, before time to apply for renewal of the copyright, his executor is entitled to the renewal rights-even though the author had previously sold and assigned his renewal rights to a music publisher. Pp. 373-378. 265 F. 2d 925, affirmed.

Petitioner, a music publisher, sued respondent, another music publisher, for infringement of petitioner's rights through one Ben Black, as coauthor, in the renewal copyright of the song 'Moonlight and Roses.' Respondent's motion for summary judgment was granted, D.C., 158 F.Supp. 188, and the Court of Appeals affirmed by a divided vote. 2 Cir., 265 F.2d 925. The case is here on a petition for a writ of certiorari which we granted. 361 U.S. 809, 80 S.Ct. 77, 4 L.Ed.2d 58. The facts are stipulated. Ben Black and Charles Daniels composed the song and assigned it to Villa Moret, Inc., which secured the original copyright. Prior to the expiration of the 28-year term, Black assigned to petitioner his renewal rights in this song in consideration of certain royalties and the sum of $1,000. Black had no wife or child; and his next of kin were three brothers. Each of them executed a like assignment of his renewal expectancy and delivered it to petitioner. These assignments were recorded in the copyright office. Before the expiration of the original copyright, Black died, leaving no widow or child. His will contained no specific bequest concerning the renewal copyright. His residuary estate was left to his nephews and nieces. One of the brothers qualified as executor of the will and renewed the copyright for a further term of 28 years. The probate court decreed distribution of the renewal copyright to the residuary legatees. Respondent then obtained assignments from them. The question for decision is whether by statute the renewal rights accrue to the executor in spite of a prior assignment by his testator. Section 23 of the Copyright Act of 1909, 35 Stat. 1075, now 17 U.S.C. § 24, 17 U.S.C.A. § 24, after stating that 'the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years,' goes on to provide: 'That * * * the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright.' An assignment by an author of his renewal rights made before the original copyright expires is valid against the world, if the author is alive at the commencement of the renewal period. Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 63 S.Ct. 773, 87 L.Ed. 1055, so holds. It is also clear, all questions of assignment apart, that the renewal rights go by statute to an executor, absent a widow or child. Fox Film Corp. v. Knowles, 261 U.S. 326, 43 S.Ct. 365, 67 L.Ed. 680, so holds. Petitioner argues that the executor's right under the statute can be defeated through a prior assignment by the testator. If the widow, widower, and children were the claimants, concededly no prior assignment could bar them. For they are among those to whom § 24 has granted the renewal right, irrespective of whether the author in his lifetime has or has not made any assignment of it. See De Sylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415. Petitioner also concedes—and we see no rational escape from that conclusion—that where the author dies intestate prior to the renewal period leaving no widow, widower, or children, the next of kin obtain the renewal copyright free of any claim founded upon an assignment made by the author in his lifetime. These results follow not because the author's assignment is invalid but because he had only an expectancy to assign;1 and his death, prior to the renewal period, terminates his interest in the renewal which by § 24 vests in the named classes. The right to obtain a renewal copyright and the renewal copyright itself exist only by reason of the Act and are derived solely and directly from it. We fail to see the difference in this statutory scheme between widows, widowers, children, or next of kin on the one hand and executors on the other. The hierarchy of people granted renewal rights by § 24 are first, the author if living; second, the widow, widower, or children, if he or she is not living; third, his or her executors if the author and the widow, widower, or children are not living; fourth, in absence of a will, the next of kin. True, these are disparate interests. Yet Congress saw fit to treat them alike. It seems clear to us, for example, that by the force of § 24, if Black had died intestate, his next of kin would take as against the assignee of the renewal right. Congress in its wisdom expressed a preference for that group against the world, if the author, the widow, the widower, or children are not living. By § 24 his executors are placed in the same preferred position, unless we refashion § 24 to suit other policy considerations. Of course an executor usually takes in a representative capacity. He 'represents the person of his testator' as Fox Film Corp. v. Knowles, supra, 261 U.S. at page 330, 43 S.Ct. at page 366, states. And that normally means that when the testator has made contracts, the executor takes cum onere. Yet it is also true, as pointed out in Fox Film Corp. v. Knowles, supra, 261 U.S. at page 330, 43 S.Ct. at page 366, that 'it is no novelty' for the executor 'to be given rights that the testator could not have exercised while he lived.' It is clear that under this Act the executor's right to renew is independent of the author's rights at the time of his death. What Congress has done by § 24 is to create contingent renewal rights. Congress has provided that, when the author dies before the renewal period arrives, special rules in derogation of the usual rules of succession are to apply for the benefit of three classes of people (1) widows, widowers, and children; (2) executors, and (3) next of kin. We think we would redesign § 24 if we held that executors, named as one of the preferred classes, do not acquire the renewal rights, where there has been a prior assignment, though widows, widowers, and children or next of kin would acquire them. Certainly Fox Film Corp. v. Knowles, supra, 261 U.S. 329—330, 43 S.Ct. 365, states that what one of the three could have done, either of the others may do. Mr. Justice Holmes speaking for the Court said: 'No one doubts that if Carleton had died leaving a widow she could have applied as the executor did, and executors are mentioned alongside of the widow with no suggestion in the statute that when executors are the proper persons, if anyone, to make the claim, they cannot make it whenever a widow might have made it. The next of kin come after the executors. Surely they again have the same rights that the widow would have had.' The legislative history supports that view: 'Instead of confining the right of renewal to the author, if still living, or to the widow or children of the author, if he be dead, we provide that the author of such work, if still living, may apply for the renewal, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or, in the absence of a will, his next of kin. It was not the intention to permit the administrator to apply for the renewal, but to permit the author who had no wife or children to bequeath by will the right to apply for the renewal.'2 The category of persons entitled to renewal rights therefore cannot be cut down and reduced as petitioner would have us do. Section 24 reflects, it seems to us, a consistent policy to treat renewal rights as expectancies until the renewal period arrives. When that time arrives, the renewal rights pass to one of the four classes listed in § 24 according to the then-existing circumstances. Until that time arrives, assignees of renewal rights take the risk that the rights acquired may never vest in their assignors. A purchaser of such an interest is deprived of nothing. Like all purchasers of contingent interests, he takes subject to the possibility that the contingency may not occur. For example, an assignment from an author and his wife will be ineffective, if on his death another woman is the widow. Examples could be multiplied. We have said enough, however, to indicate that there is symmetry and logic in the design of § 24. Whether it works at times an injustice is a matter for the Congress, not for us. Affirmed.

364.US.507

While serving a sentence for a federal narcotics offense, petitioner Was summoned before a federal grand jury and asked questions concerning his crime, particularly as to the persons involved with him and their activities in smuggling narcotics into this country from Europe. He invoked his privilege against self-incrimination under the Fifth Amendment and refused to answer. Acting pursuant to 18 U. S. C. § 1406, which grants immunity from prosecution to a witness compelled to testify before a grand jury, the United States Attorney, with the approval of the Attorney General, obtained a court order directing petitioner to testify. He again refused to do so and was adjudged guilty of criminal contempt. Held: The conviction is sustained. 'Pp. 508-515. 1. The immunity provided by § 1406 covers state, as well as federal, prosecutions. P. 510. 2. As so construed, § 1406 is constitutional, since the grant of immunity from state prosecution is necessary and proper to the more effective execution -of the undoubted power of Congress to enact the narcotics laws. Pp. 510-512. 3. The grant of immunity from future state and federal prosecution was at least coextensive with petitioner's constitutional privilege against self-incrimination, and it was not necessary that he be pardoned or granted amnesty covering the unserved portion of his sentence and his fine for the offense of which he had previously been convicted. Pp. 512-514. 4. Since the District Court provided that petitioner's sentence to two years' imprisonment for criminal contempt should be vacated if petitioner should purge himself of his contempt by appearing before the grand jury and answering the questions within 60 days from the date of the judgment, and this Court construes the 60-day period as running from the effective date of this Court's mandate, it is not necessary to pass on the questions whether the sentence was excessive or whether the conviction was invalid because the District Court did not advise petitioner of the extent of the immunity conferred by § 1406. Pp. 514-515. 273 F. 2d 234, affirmed.

The Narcotic Control Act of 1956,1 18 U.S.C. § 1406, 18 U.S.C.A. § 1406, legislates immunity from prosecution for a witness compelled under the section by court order to testify before a federal grand jury investigating alleged violations of the federal narcotics laws. The questions presented are, primarily, whether the section grants immunity from state, as well as federal, prosecution, and, if state immunity, whether the section is constitutional. The petitioner was serving a five-year sentence for a federal narcotics offense2 when, on December 5, 1958, he was subpoenaed before a federal grand jury sitting in the Southern District of New York. A number of questions were asked him concerning his crime, particularly as to the persons involved with him and their activities in the smuggling of narcotics into this country from Europe. The petitioner invoked the provision of the Fifth Amendment against being compelled to be a witness against himself3 and refused to answer any of the questions. The United States Attorney with the approval of the Attorney General obtained a court order pursuant to § 1406 directing him to answer. When he returned before the grand jury he again refused to testify. Proceedings against him in criminal contempt resulted in the judgment under review adjudging him guilty as charged. D.C., 170 F.Supp. 592. The Court of Appeals for the Second Circuit affirmed. 273 F.2d 234. Because of the importance of the questions of the construction and constitutionality of § 1406 raised by the case, we granted certiorari, 362 U.S. 939, 80 S.Ct. 805, 4 L.Ed.2d 769. Petitioner's main argument in both courts below and here challenges § 1406 as granting him only federal immunity, and not state immunity, either because Congress meant the statute to be thus limited, or because the statute, if construed also to grant state immunity, would be unconstitutional. Both courts below passed the question whether the statute grants state immunity because, assuming only federal immunity is granted, they held that United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, settled that the Fifth Amendment does not protect a federal witness from answering questions which might incriminate him under state law. D.C., 170 F.Supp. at page 595; 2 Cir., 273 F.2d at page 235. Petitioner contends that Murdock should be re-examined and overruled. We have no occasion to consider this contention, since in our view § 1406 constitutionally grants immunity from both federal and state prosecutions. We consider first whether the immunity provided by § 1406 cover state, as well as federal, prosecutions. We have no doubt the section legislates immunity from both. The relevant words of the section have appeared in other immunity statutes have been construed by this Court to cover both state and federal immunity. In Adams v. State of Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608, a like provision in 18 U.S.C. § 3486, 18 U.S.C.A. § 3486, that the compelled testimony shall not 'be used as evidence in any criminal proceeding against him in any court' was held to cover both federal and state courts. (Emphasis supplied.) The 'Language could be no plainer,' 347 U.S. at page 181, 74 S.Ct. at page 445. In Ullmann v. United States, 350 U.S. 422, 434—435, 76 S.Ct. 497, 504—505, 100 L.Ed. 511, 18 U.S.C. § 3486(c), 18 U.S.C.A. § 3486(c), added by the Immunity Act of 1954, of which § 1406 is virtually a carbon copy, was given the same construction. Moreover, the adoption of § 1406 followed close upon the Ullmann decision. That decision came down on March 26, 1956. Section 1406 was reported out of the House Ways and Means Committee only three months later on June 19, 1956, H.R.Rep.No.2388, 84th Cong., 2d Sess. It became law on July 18, 1956. 70 Stat. 574. We cannot believe that Congress would have used in § 1406 the very words construed in Ullmann to cover both state and federal prosecutions without giving the words the same meaning. We turn then to the petitioner's argument that, so construed, § 1406 encroaches on the police powers reserved to the States under the Tenth Amendment. The petitioner recognizes that in Ullmann the Court upheld the authority of Congress to grant state immunity as 'necessary and proper' to carry out the power to provide for the national defense; and in Adams v. Maryland upheld the power of Congress to preclude the States from using testimony that was compelled under former § 3486 before a congressional investigating committee. He insists, however, that the congressional authority to enact narcotics laws—rested on the Commerce Clause, Brolan v. United States, 236 U.S. 216, 218, 35 S.Ct. 285, 59 L.Ed. 544; Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904; or the taxing power, United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493; Alston v. United States, 274 U.S. 289, 47 S.Ct. 634, 71 L.Ed. 1052; Nigro v. United States, 276 U.S. 332, 351—354, 48 S.Ct. 388, 394—395, 72 L.Ed. 600; United States v. Sanchez, 340 U.S. 42, 71 S.Ct. 108, 95 L.Ed. 47—is not broad enough to encompass the legislation of immunity against state prosecution under state narcotics laws, 'a subject that has traditionally been within the police power of the state.' But the petitioner misconceives the reach of the principle applied in Ullmann and Adams v. Maryland. Congress may legislate immunity restricting the exercise of state power to the extent necessary and proper for the more effective exercise of a granted power, and distinctions based upon the particular granted power concerned have no support in the Constitution. See Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, in which the Court upheld a federal immunity statute passed in the name of the Commerce Clause and construed that statute to apply to state prosecutions. The relevant inquiry here is thus simply whether the legislated state immunity is necessary and proper to the more effective enforcement of the undoubted power to enact the narcotics laws. It can hardly be questioned that Congress had a rational basis for supposing that the grant of state as well as federal immunity would aid in the detection of violations and hence the more effective enforcement of the narcotics laws. The Congress has evinced serious and continuing concern over the alarming proportions to which the illicit narcotics traffic has grown. The traffic has far-reaching national and international roots. See S.Rep.No.1997, 84th Cong., 2d Sess., pp. 3—6. The discovery and apprehension of those engaged in it present particularly difficult problems of law enforcement. The whole array of aids adopted in 1956, of which immunity is but one, was especially designed to 'permit enforcement officers to operate more effectively.' H.R.Rep.No.2388, 84th Cong., 2d Sess., p. 10. The grant of both federal and state immunity is appropriate and conducive to that end, and that is enough. Even if the grant of immunity were viewed as not absolutely necessary to the execution of the congressional design, '(T)o undertake here to inquire into the degree of * * * necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.' McCulloch v. State of Maryland, 4 Wheat. 316, 423, 4 L.Ed. 579. And the supersession of state prosecution is not the less valid because the States have traditionally regulated the traffic in narcotics, although that fact has troubled one court. See Tedesco v. United States, 6 Cir., 255 F.2d 35. Madison said, 'Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.' II Annals of Cong. 1897 (1791). Or as the Court has said concerning federal immunity statutes, '* * * since Congress in the legitimate exercise of its powers enacts 'the supreme Law of the Land,' state courts are bound by (§ 1406), even though it affects their rules of practice.' Adams v. State of Maryland, supra, 347 U.S. at page 183, 74 S.Ct. at page 446. The petitioner urges that in any event he should not have been ordered to answer the grand jury's questions unless he first received a 'general pardon or amnesty' covering the unserved portion of his sentence and his fine. This is a surprising contention, in light of the traditional purpose of immunity statutes to protect witnesses only as to the future. It suggests that the witness who has been convicted is entitled to ask more of the Government than the witness who has not but who may be compelled under § 1406 to reveal criminal conduct which, but for the immunity, would subject him to future federal or state prosecution. Yet the petitioner in his brief says that 'the ordinary rule is that once a person is convicted of a crime, he no longer has the privilege against self-incrimination as he can no longer be incriminated by his testimony about said crime * * *.' There is indeed weighty authority for that proposition. United States v. Romero, 2 Cir., 249 F.2d 371; 8 Wigmore, Evidence (3d ed. 1940), § 2279; cf. Brown v. Walker, supra, 161 U.S. 597—600, 16 S.Ct. 647—648. Under it, immunity, at least from federal prosecution, need not have been offered the petitioner at all. The petitioner does not argue that remission of his penalty was his due as a quid pro quo for further exposing himself to personal disgrace or opprobrium. That reason would not be tenable under Brown v. Walker, supra, in which the Court rejected the argument that the validity of an immunity statute should depend upon whether it shields 'the witness from the personal disgrace or opprobrium attaching to the exposure of his crime.' 161 U.S. at page 605, 16 S.Ct. at page 650. Nor does he support his contention with the argument that the prison sentence imposed for disobedience of the order directing him to testify is actually an additional punishment for his crime. His argument is the single one that the 'said order was not a proper basis upon which to bottom a contempt proceeding in the face of a claim of privilege against self incrimination as it did not grant this petitioner immunity coextensive with the constitutional privilege it sought to replace * * *.' (Emphasis supplied.) The complete answer to this is that in safeguarding him against future federal and state prosecution 'for or on account of any transaction, matter, or thing concerning which he is compelled' to testify, the statute grants him immunity fully coextensive with the constitutional privilege. Some language in Brown v. Walker, 161 U.S. at page 601, 16 S.Ct. at page 648, to which petitioner refers, compares immunity statutes to the traditional declarations of amnesty or pardon. But neither in that opinion nor elsewhere is it suggested that immunity statutes, to escape invalidity under the Fifth Amendment, need do more than protect a witness from future prosecutions. This § 1406 does. The petitioner complains finally that his sentence is excessive. The District Court sentenced him to two years' imprisonment to commence at the expiration of the sentence he was then serving. However, the court also allowed the petitioner 60 days from the date of the judgment to purge himself of his contempt by appearing within that period before the grand jury and answering the questions. It was further provided that if he did so, 'the sentence imposed herein shall be vacated.' The District Court took this action because it found in effect that the petitioner asserted his legal position in good faith and was not contumaciously disrespectful of the court's order or obstinately flouting it. D.C., 170 F.Supp. at page 596. There is no occasion for us to consider the claim of excessiveness of the sentence, or the petitioner's companion claim that the conviction was invalid because the District Court did not advise him of the extent of the immunity conferred by § 1406. We construe the 60-day purge period as running from the effective date of this Court's mandate and the petitioner may avoid imprisonment by answering. Now that this Court has held that his fears of future state or federal prosecution are groundless, he knows that the only reason he gave for claiming his privilege has no substance. No question of an admixture of civil criminal contempt having been raised below or here, we do not reach the issues it might present. Affirmed.

361.US.459

Respondent is a party to a collective bargaining agreement between coal operators and the United Mine Workers providing for a union welfare fund meeting the requirements of § 302 (c) (5) of the TaftHartley Act and requiring each coal operator to pay into a trust fund "for the sole and exclusive benefit" of the employees, their families and dependents a stipulated royalty on each ton of coal produced. Respondent withheld royalties in an amount claimed to equal damages which it had sustained as a result of strikes alleged to be in violation of the same agreement, and the trustees sued to recover such royalties. Respondent defended on the ground that performance of its duty to pay the royalties to the trustees, as third-party beneficiaries of the agreement, was excused when the union violated the agreement, and it cross-claimed against the union for damages resulting from the strikes. The District Court awarded respondent a judgment on its claim against the union and awarded the trustees a judgment for the unpaid royalties, but provided that the trustees' judgment should be paid only out of the proceeds of respondent's judgment. The Court of Appeals affirmed except as to the amount of the damages awarded respondent. Held: 1. So far as it sustains the holding of the District Court that the union violated the collective bargaining agreement, the judgment of the Court of Appeals is affirmed by an equally divided Court. P. 464. 2. The judgment of the Court of Appeals is modified to provide that the District Court shall amend the judgment in favor of the trustees to allow immediate and unconditional execution, and interest, on the full amount of the trustees' judgment against respondent. Pp. 464-471. (a) The collective bargaining agreement here involved is not to be construed as making performance by the union of its promises a condition precedent to respondent's promise to pay royalties to the trustees, notwithstanding a provision to the effect that the agreement "is an integrated instrument and its provisions are interdependent." Pp. 464-466. (b) Regardless of the inferences which may be drawn from other third-party beneficiary contracts, the parties to a collective bargaining agreement must express their meaning in unequivocal words before they can be said to have agreed that the union's breaches of its promises should give rise to a defense against the duty assumed by an employer to contribute to a welfare fund meeting the requirements of § 302 (c) (5) ; and the agreement here involved contains no such words. Pp. 466-471. 259 F. 2d 346, judgment modified.

The National Bituminous Coal Wage Agreement of 1950, a collective bargaining agreement between coal operators and the United Mine Workers of America, provides for a union welfare fund meeting the requirements of § 302(c)(5) of the Taft-Hartley Act.1 The fund is the 'United Mine Workers of America Welfare and Retirement Fund of 1950.' Each signatory coal operator agreed to pay into the fund a royalty of 30¢, later increased to 40¢, for each ton of coal produced for use or for sale. Benedict Coal Corporation, the respondent in both No. 18 and No. 19, is a signatory coal operator. From March 5, 1950, through July 1953, Benedict produced coal upon which the amount of royalty was calculated to be $177,762.92. Benedict paid $101,258.68 of this amount but withheld $76,504.24. The petitioners in No, 18, who are the trustees of the fund, brought this action to recover that balance in the District Court for the eastern District of Tennessee.2 Benedict's main defense was that the performance of the duty to pay royalty to the trustees, regarding them as third-party beneficiaries of the collective bargaining agreement, was excused when the promisee contracting party, the union and its District 28—who are the petitioners in No. 19 and who will be referred to as the union violated the agreement by strikes and stoppages of work. Benedict also cross-claimed against the union for damages sustained from the strikes and stoppages. By its answer to the cross-claim, the union denied that its conduct violated the agreement. The jury, using a verdict form provided by the trial judge, found that the trustees were entitled to recover the full amount of the unpaid royalty but that Benedict was entitled to a setoff of $81,017.68; the jury also gave a verdict to Benedict for that sum on its cross-claim against the union. In a single entry, two judgments were entered on this verdict. One was a judgment in favor of Benedict on its cross-claim on which immediate execution was ordered, but with direction that the sum collected from the union be paid into the registry of the court. The other was a judgment in favor of the trustees for the unpaid balance of the royalty. However, effect was given to Benedict's defense in the trustees' suit by refusing immediate execution, and interest, on the trustees' judgment and ordering instead that that judgment be satisfied only out of the proceeds collected by Benedict on its judgment and paid into the registry of the court.3 The union and the trustees prosecuted separate appeals to the Court of Appeals for the Sixth Circuit. The union alleged that the District Court erred in holding that the strikes and stoppages violated the collective bargaining agreement, contending that, properly construed, the agreement did not forbid the strikes and stoppages; in the alternative, the union urged that the damages awarded were excessive. The trustees alleged as error, primarily, the refusal of the trial court to allow them immediate and unconditional execution, and interest, on their judgment against Benedict. The Court of Appeals affirmed the District Court except as to the amount of damages awarded to Benedict on its cross-claim, which the court adjudged was excessive. The court held that, under the evidence, Benedict's damages would not equal the amount of the trustees' judgment of $76,504.26. The case was remanded for a redetermination of Benedict's damages, with instructions that '(t)he judgment in favor of the Trustees will then be amended by the district court to allow execution and interest on that part of the said judgment which is in excess of the set-off in favor of Benedict as so redetermined.' 6 Cir., 259 F.2d 346, 355. This left unaffected so much of the District Court's order as predicated the trustees' recovery, to the extent of the amount of Benedict's judgment as finally determined, upon Benedict's recovery of that judgment. The trustees and the union filed separate petitions for certiorari. We granted the trustee's petition, No. 18, and also the union's petition, No. 19, except that we limited the latter grant to the question whether the strikes and stoppages complained of by Benedict violated the collective bargaining agreement. 359 U.S. 905, 79 S.Ct. 580, 581, 3 L.Ed.2d 570. In No. 19, the Court is equally divided. The judgment of the Court of Appeals, so far as it sustains the holding of the District Court that the union violated the collective bargaining agreement, is therefore affirmed. We turn to the question presented in No. 18, whether the lower courts were correct in holding in effect that Benedict might assert the union's breaches as a defense to the trustees' suit, for to the extent Benedict (the promisor) does not collect from the union (the promisee) the union's liability is set off against Benedict's liability to the third-party beneficiary. The answer to that question requires, we think, our consideration of the nature of the interests of the union, the company, and the trustees in the fund under the collective bargaining agreement. The provisions of the collective bargaining agreement creating the fund include the express provision that 'this Fund is an irrevocable trust created pursuant to Section 302(c) of the 'Labor-Management Relations Act, 1947." Another provision specifies that the purposes of the fund shall be all purposes 'provided for or permitted in Section 302(c).'4 In this way the agreement plainly declares what the statute requires, namely, that the fund shall be used 'for the sole and exclusive benefit' of the employees, their families and dependents. Thus, the fund is in no way an asset or property of the union. Benedict does not, however, base its claim of setoff on any contention that the royalty was owing to the union and might because of this be applied to the payment of its damages. Benedict's position is that in an amount equal to the amount of the damages sustained from the union's breaches, no fund property came into existence under the terms of the collective bargaining agreement. This depends upon whether the agreement is to be construed as making performance by the union of its promises a condition precedent to Benedict's promise to pay royalty to the trustees. Benedict argues that the contracting parties expressed this meaning in an article at the close of the agreement—' This Agreement is an integrated instrument and its respective provisions are interdependent'—and in the provision in another article that the no-strike clauses are 'part of the consideration of this contract.' However, the specific provisions of the article creating the fund provide: (1) 'During the life of this (collective bargaining) Agreement, there shall be paid into such Fund by each operator signatory * * * (a royalty) on each ton of coal produced for use or for sale.' (2) The operator is required to make payment 'on the 10th day of each * * * calendar month covering the production of all coal for use or sale during the preceding month.' (3) 'This obligation of each Operator signatory hereto, which is several and not joint, to so pay such sums shall be a direct and continuing obligation of said Operator during the life of this Agreement * * *.' (4) 'Title to all the moneys paid into and or due and owing said Fund shall be vested in and remain exclusively in the Trustees of the Fund * * *.'5 (Emphasis added.) These provisions, rather than the stipulations of general application, are controlling. Their clear import is that the parties meant that the duty to pay royalty should arise on the production of coal independent of the union's performance. Indeed, Benedict's conduct was not consistent with the interpretation which it is now urging. Benedict continued despite the breaches to perform all of its several promises under the contract, including the promise to pay royalty, paying over $100,000 on coal produced during the period in dispute and withholding only the portion in suit. But our conclusion that the union's performance of its promises is not a condition precedent to Benedict's duty to pay royalty does not fully answer the question we are to decide. For it may reasonably be argued that the damages sustained by Benedict may nevertheless affect the amount of the trustees' recovery. Professor Corbin, while acknowledging that 'No case of the sort has been discovered,'6 states: 'It may perhaps be regarded as just to make the right of the beneficiary not only subject to the conditions precedent but also subject (as in the case of an assignee) to counter-claims against the promisee—at least if they arise out of a breach by the promisee of his duties created by the very same contract on which the beneficiary sues.'7 Using terms like 'counterclaim' or 'setoff' in a third-party beneficiary context may be confusing. In a two-party contract situation, when a promisor's duty to perform is absolute, the promisee's breaches will not excuse performance of that duty; the promisor has an independent claim against the promisee in damages. Formerly the promisor was required to bring a separate action to recover his damages. Under modern practice, when the promises are to pay money, or are reducible to a money amount, the promisor, when sued by the promisee, offsets the damages which he has sustained against the amount he owes, and usually obtains a judgment for any excess.8 However, a third-party beneficiary has made no promises and therefore has breached no duty to the promisor. Accordingly, to hold, as the lower courts in this case did, that a promisor may 'set off' the damages caused by the promisee's breach is actually to read the contract, which is the measure of the third party's rights, as so providing. In other words, although the promisor's duty to perform has become fixed by the occurrence of applicable conditions precedent, the parties may be taken to have agreed that the extent of the promisor's duty to the third party will be affected by the promisee's breach of contract. When it is said that 'it may be just' to make the third party subject to the counterclaim, what must be meant is that a court should infer an intention of the promisor and promisee that the third party's rights be so limited. This may be a desirable rule of construction to apply to third-party beneficiary contract where the promisor's interest in or connection with the third party, in contrast with the promisee's, begins with the promise and ends with its performance. Of course, in entering into such a contract, the promisor may be held to have given up some defense against the third party's claim to performance of the promise, for example, the right to defeat that claim by rescinding the contract at any time he and the promisee agree. Nevertheless it may be fair to assume that had the parties anticipated the possibility of a breach by the promisee they would have provided that the promisor might protect himself by such means as would be available against the promisee under a two-party contract.9 This suggestion has not been crystallized into a rule of construction. Our problem is whether we should infer such an intention in this contract because there may be reasons making it appropriate to do so in the generality of third-party beneficiary contracts. This collective bargaining agreement, however, is not a typical third-party beneficiary contract. The promisor's interest in the third party here goes far beyond the mere performance of its promise to that third party, i.e., beyond the payment of royalty. It is a commonplace of modern industrial relations for employers to provide security for employees and their families to enable them to meet problems arising from unemployment, illness, old age or death. While employers in may other industries assume this burden directly, this welfare fund was jointly created by the coal industry and the union for that purpose. Not only has Benedict entered into a longterm relationship with the union in this regard, but in compliance with § 302(c)(5)(B) it has assumed equal responsibility with the union for the management of the fund. In a very real sense Benedict's interest in the soundness of the fund and its management is in no way less than that of the promisee union. This of itself cautions against reliance upon language which does not explicitly provide that the parties contracted to protect Benedict by allowing the company to set off its damages against its royalty obligation. Moreover, unlike the usual third-party beneficiary contract, this is an industry-wide agreement involving many promisors. If Benedict and other coal operators having damage claims against the union for its breaches may curtail royalty payments, the burden will fall in the first instance upon the employees and their families across the country. Ultimately this might result in pressures upon the other coal operators to increase their royalty payments to maintain the planned schedule of benefits. The application of the suggested rule of construction to this contract would require us to assume that the other coal operators who are parties to the agreement were willing to risk the threat of diminution of the fund in order to protect those of their number who might have become involved in local labor difficulties. Furthermore, Benedict promised in the collective bargaining agreement to pay a specified scale of wages to the employees. It would not be contended that Benedict might recoup its damages by decreasing these wages. This could be rationalized by saying that the covenant to pay wages is included in separate contracts of hire entered into with each employee. The royalty payments are really another form of compensation to the employees,10 and as such the obligation to pay royalty might be thought to be incorporated into the individual employment contracts. This is not to say that the same treatment should necessarily be accorded to royalty payments as is accorded to wages, but the similarity militates against the inference that the parties intended that the trustees' claim be subject to offset. Finally a consideration which is not present in the case of other third-party beneficiary contracts is the impact of the national labor policy. Section 301(b) of the Taft-Hartley Act, 29 U.S.C.A. § 185(b), provides that '(a)ny 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.' At the least, this evidences a congressional intention that the union as an entity, like a corporation, should in the absence of agreement be the sole source of recovery for injury inflicted by it.'11 Although this policy was prompted by a solicitude for the union members, because they might have little opportunity to prevent the union from committing actionable wrongs,12 it seems to us to apply with even greater force to protecting the interests of beneficiaries of the welfare fund, many of whom may be retired, or may be dependents, and therefore without any direct voice in the conduct of union affairs. Thus the national labor policy becomes an important consideration in determining whether the same inferences which might be drawn as to other third-party agreements should be drawn here. Section 301 authorizes federal courts to fashion a body of federal law for the enforcement of collective bargaining agreements. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. In the discharge of this function, having appropriate regard for the several considerations we have discussed, including the national labor policy, we hold that the parties to a collective bargaining agreement must express their meaning in unequivocal words before they can be said to have agreed that the union's breaches of its promises should give rise to a defense against the duty assumed by an employer to contribute to a welfare fund meeting the requirements of § 302(c)(5). We are unable to find such words in the general provisions already mentioned—'This Agreement is an integrated instrument and its respective provisions are interdependent,' and 'The contracting parties agree that (the no-strike clauses are) * * * part of the consideration of this contract'—or elsewhere in the agreement. The judgment of the Court of Appeals is therefore modified to provide that the District Court shall amend the judgment in favor of the trustees to allow immediate and unconditional execution, and interest, on the full amount of the trustees' judgment for $76,504.26 against Benedict. It is so ordered. Judgment of the Court of Appeals modified. Mr. Justice STEWART took no part in the consideration or decision of this case.

363.US.641

A Federal District Court sitting in admiralty has no power to order the taking of oral depositions for the purpose of discovery only; and Rule 32 of the Admiralty Rules of the District Court for the Northern District of Illinois, purporting to authorize the taking of such depositions, is invalid for want of authority in the District Court to promulgate it. Pp. 641-652. (a) A court of admiralty' has no inherent power, independent of any statute or rule, to order the taking of depositions for the purpose of discovery. Pp. 643-644. (b) Rule 32C of this Court's General Admiralty Rules does not impliedly empower a district judge to order the taking of such depositions. Pp. 644-646. (c) Rule 32 of the District Court's Admiralty 'Rules is not a valid exercise of its power to regulate local practice, conferred by Rule 44 of the General Admiralty Rules. Pp. 646-652. 265 F. 2d 312, affirmed.

Certiorari was granted in this case, 361 U.S. 807, 80 S.Ct. 66, 41 L.Ed.2d 57, to review the decision of the Court of Appeals holding that a District Court sitting in admiralty lacked power to order the taking of oral depositions for the purpose of discovery only, and that Rule 32 of the Admiralty Rules of the District Court for the Northern District of Illinois, purporting to authorize the taking of such depositions,1 was invalid for want of authority in the District Court to promulgate it. The issue arose in the following manner: The respondent filed a petition in admiralty seeking exoneration from or limitation of liability for the death by drowning of two seamen employed on a yacht owned by him. The representatives of the deceased seamen, having appeared as claimants, applied to the District Court for an order granting leave to take the depositions of several named persons, including respondent, for the purpose of discovery only. Respondent opposed the motion on the ground that the court had no power to order the taking of depositions in any case not meeting the conditions of R.S. §§ 863—865, the de bene esse statute.2 After argument, petitioner Miner, D.J., granted the claimants' motion, pursuant to local Admiralty Rule 32. Respondent then sought a writ of mandamus or prohibition requiring the vacation of the order of the District Court, and prohibiting Judge Miner, or any other district judge to whom the case might be assigned, from further proceeding under it. A rule to show cause was issued by the Court of Appeals and, after a hearing, the application for extraordinary relief, whose availability in the particular circumstances involved is not challenged before us, was granted. 7 Cir., 265 F.2d 312. For reasons presently to be stated, we have concluded that the Court of Appeals' conclusion was correct, and we affirm its judgment. Counsel for the claimants, representing the petitioners here, undertake to support the discovery-deposition order on the grounds that: (1) a court of admiralty has inherent power, not dependent on any statute or rule, to order the taking of depositions for the purpose of discovery; (2) Rule 32C of this Court's General Admiralty Rules, 28 U.S.C.A., impliedly empowers a district judge to order the taking of such depositions; (3) Rule 32 of the District Court's Admiralty Rules is a valid exercise of its power to regulate local practice, conferred by Rule 44 of the General Admiralty Rules. We consider each contention in turn. The reliance on an asserted inherent power is based almost exclusively on the decision of the Court of Appeals for the Third Circuit in Dowling v. Isthmian S.S. Corp., 184 F.2d 758. In an exhaustive discussion, Judge Fee, for that court, expressed the view that the traditionally flexible and adaptable admiralty practice empowers a court to order a party to submit to pretrial oral examination. Whether or not the decision was intended to embrace examinations solely for discovery purposes is not entirely clear. Compare Standard Steamship Co. v. United States, D.C., 126 F.Supp. 583, with Darling's Estate v. Atlantic Contracting Corp., D.C., 150 F.Supp. 578, 579; 1950 Annual Survey of American Law 523. None of the historical data adduced in the Dowling case seems to go beyond the area of testimony for use at the trial. The opinion states no more than that history discloses no overt rejection of the power to order depositions taken for discovery purposes. 184 F.2d at page 771, note 36. There is no affirmative indication of the exercise of such a power, if any was thought to exist, and the 1940 edition of Benedict on Admiralty unequivocally asserts that '(a)n admiralty deposition may only be taken for the purpose of securing evidence; it may not be taken for the purpose of discovery.' 3 Benedict, Admiralty (Knauth ed.), 34. This statement by a leading work in the field hardly bespeaks the existence of traditional inherent power, and we find none. Cf. Cary v. Curtis, 3 How. 236, 245, 11 L.Ed. 576. Neither can we find in this Court's Admiralty Rules warrant for the entry by a district judge of an order of the character granted below. The deposition practice authorized by the Civil Rules does not of its own force provide the authority sought, since those rules are expressly declared inapplicable to proceedings in admiralty. Civil Rule 81(a)(1). Certain of the Civil Rules were adopted by this Court as part of the Admiralty Rules in the 1939 amendments, 307 U.S. 653. Thus, Civil Rules 33 through 37 were made part of the Admiralty Rules as Rules 31, 32, 32A, 32B, and 32C, respectively.3 However, the remainder of the Civil Rules in Part V, dealing with 'Depositions and Discovery,' including Rule 26, the basic authority for discovery-deposition practice (see note 1, ante), was not adopted. We cannot of course regard this significant omission as inadvertent, cf. 76 A.B.A.Ann.Rep. 565—566; rather, it goes far to establish the lack of any provision for discovery by deposition in the General Admiralty Rules. However, petitioners contend, and some courts have agreed, that the existence of such a power is to be inferred from Rule 32C, the counterpart of Civil Rule 37, entitled, 'Refusal to make discovery: consequences.' That rule details the procedures which are to be followed if 'a party or other deponent refuses to answer any question propounded upon oral examination * * *.' It has been held that the inclusion of this rule must be taken as the expression of an assumption by the Court that the discovery-deposition practice existed or was to be followed in admiralty, for the reason that '(i)t is inconceivable that the Supreme Court, by means of the elaborate and detailed terms of Rule 32C would have given a suitor in admiralty a method of enforcing a right that did not exist.' Brown v. Isthmian S.S. Corp., D.C.E.D.Pa., 79 F.Supp. 701, 702. In accord with the Brown decision are Bunge Corp. v. The Ourania Gournaris, D.C.S.D.N.Y., 1949 A.M.C. 744; Galperin v. United States, D.C.E.D.N.Y., 1949 A.M.C.1907; The Ballantrae, D.C.N.J., 1949 A.M.C. 1999. The dilemma thus suggested—either that we must regard Civil Rule 26 as inadvertently omitted from the Admiralty Rules4 or that we should consider that part of Civil Rule 37 which refers to oral examinations as inadvertently included—is more seeming than real. The reference to 'discovery' in the title to Rule 32C can well have been simply to the modes of discovery authorized by those of the Civil Rules which were carried into the Admiralty Rules in the 1939 amendments, see note 3, ante, and we think it should so be taken. As to the reference to 'oral examination,' we are in agreement with the explanation offered by Judge Rifkind in Mulligan v. United States, D.C., 87 F.Supp. 79, 81, that it comprehends only those forms of oral examinations traditionally recognized in admiralty, primarily the deposition de bene esse (see note 2, ante).5 By this construction, both actions of this Court—the adoption of Civil Rule 37 and the omission of Civil Rule 26—are given harmonious effect. Petitioners' third contention is that, although admiralty courts were not given authority by the General Admiralty Rules to order the taking of depositions for discovery purposes, the District Court in the present case acted pursuant to its own local Admiralty Rule 32 (see note 1, ante) granting such authority, and that such rule was a valid exercise of power conferred on the District Court by Rule 44 of the General Rules. See Ludena v. The Santa Luisa, D.C.S.D.N.Y., 95 F.Supp. 790; Application of A. Pellegrino & Son, D.C.S.D.N.Y., 11 F.R.D. 209; cf. Republic of France v. Belships Co., Ltd., D.C., 91 F.Supp. 912; Prudential Steamship Corp. v. Curtis Bay Towing Co., D.C.Md., 20 F.R.D. 356. Rule 44, entitled 'Right of trial courts to make rules of practice,' provides: 'In suits in admiralty in all cases not provided for by these rules or by statute, the District Courts are to regulate their practice in such a manner as they deem most expedient for the due administration of justice, provided the same are not inconsistent with these rules.' (Emphasis added.) We may assume, without deciding, that, the proviso apart, the affirmative grant of authority contained in Rule 44 is sufficiently broad and unqualified, in light of the traditional liberality and flexibility of admiralty practice, to embrace the 'practice' of taking depositions for discovery purposes. Cf. Galveston Dry Dock & Const. Co. v. Standard Dredging Co., 2 Cir., 40 F.2d 442. However, we feel constrained to hold that this particular practice is not consistent with the present General Admiralty Rules and therefore that in this respect local Rule 32 falls within the proviso.6 As we have noted, the determination of this Court in 1939 to promulgate some but not all of the Civil Rules relating to discovery must be taken as an advertent declination of the opportunity to institute the discovery-deposition procedure of Civil Rule 26(a) throughout courts of admiralty. It may be, see 76 A.B.A.Ann.Rep. 565—566,7 that one reason for this failure was the belief that this Court could not take over into Admiralty in its entirety Civil Rule 26. The Enabling Act did not then, R.S. § 913, although it does now, 28 U.S.C. § 2073, 28 U.S.C.A. § 2073, authorize the Court to supersede statutes, and the limitations of the de bene esse statute would therefore have overridden Civil Rule 26(d) to the extent the statute was more restrictive. Nevertheless it does seem clear that the part of Civil Rule 26 with which we are now concerned could have been promulgated in admiralty, cf. note 6, ante. But for whatever reason, no action was taken. It is of course true that the failure to adopt Civil Rule 26 implies no more than that this Court did not wish to impose the practice on the District Courts, and does not necessarily bespeak an intention to foreclose each District Court from exercising a 'local option' under Rule 44. We do not deny the logic of this contention; neither do we hold that whenever the General Admiralty Rules deal with part, but not all, of a subject, those practices left unprovided for by the General Rules may not in any circumstances be dealt with by the District Courts under General Rule 44. Unlike many state practice statutes, this Court's rules of admiralty practice for the District Courts are not comprehensive codes regulating every detail of practice, and we would be slow to hold that the interstices may not be the subject of appropriate local regulation. For example, rules fixing the time for doing certain acts are of the essence of orderly procedure. So long as the time set be not unreasonable, it is less important what the limit be than that there be a rule whereby some timetable may be known to the profession. Thus, the failure of the General Admiralty Rules to prescribe a time within which motions for rehearing may be filed should not bar a District Court from fixing such a time limit. See Papanikolaou v. Atlantic Freighters, 4 Cir., 232 F.2d 663, 665. Similarly, the General Admiralty Rules provide no answer to the question whether one sued for a certain sum, who contests his liability for but a portion of that sum, may be required to suffer a judgment for the remainder prior to trial on the contested portion, and there is no compelling reason why that lack should be held to prevent a District Court from supplying an answer by local rule. See Galveston Dry Dock & Const. Co. v. Standard Dredging Co., supra. We deal here only with the procedure before us, and our decision is based on its particular nature and history. Discovery by deposition is at once more weighty and more complex a matter than either of the examples just discussed or others that might come to mind. Its introduction into federal procedure was one of the major achievements of the Civil Rules, and has been described by this Court as 'one of the most significant innovations' of the rules. Hickman v. Taylor, 329 U.S. 495, 500, 67 S.Ct. 385, 388, 91 L.Ed. 451. Moreover, the choice of procedures adopted to govern various specific problems arising under the system was in some instances hardly less significant than the initial decision to have such a system. It should be obvious that we are not here dealing either with a bare choice between an affirmative or a negative answer to a narrow question, or even less with the necessary choice of a rule to deal with a problem which must have an answer, but need not have any particular one. Rather, the matter is one which, though concededly 'procedural,' may be of as great importance to litigants as many a 'substantive' doctrine, and which arises in a field of federal jurisdiction where nationwide uniformity has traditionally always been highly esteemed. The problem then is one which peculiarly calls for exacting observance of the statutory procedures surrounding the rule-making powers of the Court, see 28 U.S.C. § 331, 28 U.S.C.A. § 331 (advisory function of Judicial Conference), 28 U.S.C. § 2073, 28 U.S.C.A. § 2073 (prior report of proposed rule to Congress), designed to insure that basic procedural innovations shall be introduced only after mature consideration of informed opinion from all relevant quarters with all the opportunities for comprehensive and integrated treatment which such consideration affords. Having already concluded that the discovery-deposition procedure is not authorized by the General Admiralty Rules themselves, we should hesitate to construe General Rule 44 as permitting a change so basic as this to be effectuated through the local rule-making power, especially when that course was never reported to Congress8 as would now be required under 28 U.S.C. § 2073, 28 U.S.C.A. § 2073. We are strongly reinforced in our conclusion by the post-1939 history of the question of adoption of discovery-deposition rules in the General Admiralty Rules. In the 1948 revision of the Judicial Code this Court was given the power to supersede statutes, which it lacked in 1939. In 1951 a joint committee representing several leading bar associations proposed the adoption of a rule permitting the taking of the deposition of a party for discovery purposes. See 76 A.B.A.Ann.Rep. 181; Maritime Law Assn., Doc. No. 348 (Sept. 1951). No action was taken. In 1953 it was recommended that Rule 26(a) be made applicable to proceedings in admiralty, with two minor modifications; this would of course have permitted discovery by deposition of witnesses as well as parties. Maritime Law Assn., Doc. No. 369 (Apr. 1953). Again no action was taken. We do not think this failure to enact the proposed amendments can be explained away by suggesting that the widespread local adoption of rules similar to the local rule now before us9 was thought to render amendment of the General Rules unnecessary, for local rules, by virtue of the inability of the District Courts to supersede statutes, cannot deal with the matter of the taking and use of depositions as an integrated whole. See Mercado v. United States, 2 Cir., 184 F.2d 24. It hardly need be added that our decision here in no way implies any view as to the desirability or undesirability of having a discovery-deposition procedure in admiralty cases. Those who advise the Court with respect to the exercise of its rule-making powers—more particularly of course the Judicial Conference of the United States (28 U.S.C. § 331, 28 U.S.C.A. § 331) and the newly created Advisory Committee on the General Admiralty Rules, which it is to be hoped will give the matter their early attention—are left wholly free to approach the question of amendment of the discovery provisions of the rules in the light of whatever considerations seem relevant to them, including of course the experience gained by the District Courts which have had rules similar to the Local Rule here challenged. Nor would anything we have said prevent those bodies from recommending that the matter of discovery-depositions be left to local rule making. All we decide in the existing posture of affairs is that the matter of discovery-depositions is not presently provided for in the General Admiralty Rules or encompassed within the local rule-making power under General Rule 44. Affirmed.

362.US.482

In a suit by the United States, the District Court found that respondents, who operate mills for the production of iron and related products, had, without first obtaining permits from the Chief of Engineers of the Army providing conditions for their removal, discharged through sewers into a navigable river of the United States industrial waste solids which, on settling out, had substantially reduced the depth of the channel; and it enjoined them from continuing to do so and ordered them to restore the depth of the channel by removing the deposits. Held: On the findings of the District Court, the deposit of industrial solids in the river by respondents created an "obstruction" to the "navigable capacity" of the river forbidden by § 10 of the Rivers and Harbors Act of 1899; they weie discharges forbidden by, and not exempt under, § 13; and the District Court was authorized to grant injunctive relief. Pp. 483-493. (a) The discharge into a navigable river of industrial solids which reduce the depth of the channel creates an "obstruction" to the "navigable capacity" of the river within the meaning of § 10 of the Act. Pp. 486-489. (b) The discharge of such industrial solids suspended in water flowing into a river through sewers is a discharge forbidden by § 13 and is not exempted as "refuse matter . . . flowing from-. sewers and passing therefrom in a liquid state." Pp. 489-491. (c) The District Court was authorized to grant injunctive relief in a suit by the United States. Pp. 491-492. 264 F. 2d 289, reversed.

This is a suit by the United States to enjoin respondent companies from depositing industrial solids in the Calumet River (which flows out of Lake Michigan and connects eventually with the Mississippi) without first obtaining a permit from the Chief of Engineers of the Army providing conditions for the removal of the deposits and to order and direct them to restore the depth of the channel to 21 feet by removing portions of existing deposits. The District Court found that the Calumet was used by vessels requiring a 21-foot draft, and that that depth has been maintained by the Corps of Engineers. Respondents, who operate mills on the banks of the river for the production of iron and related products, use large quantities of the water from the river, returning it through numerous sewers. The processes they use create industrial waste containing various solids. A substantial quantity of these solids is recovered in settling basins but, according to the findings, many fine particles are discharged into the river and they flocculate into larger units and are deposited in the river bottom. Soundings show a progressive decrease in the depth of the river in the vicinity of respondents' mills. But respondents have refused, since 1951, the demand of the Corps of Engineers that they dredge that portion of the river. The shoaling conditions being created in the vicinity of these plants were found by the District Court to be created by the waste discharged from the mills of respondents.1 This shoaling was found to have reduced the depth of the channel to 17 feet in some places and to 12 feet in others. The District Court made findings which credited respondents with 81.5% of the waste deposited in the channel, and it allocated that in various proportions among the three respondents. See D.C., 155 F.Supp. 442. The Court of Appeals did not review the sufficiency of evidence. It dealt only with questions of law and directed that the complaint be dismissed. 7 Cir., 264 F.2d 289. The case is here on a petition for a writ of certiorari which we granted because of the public importance of the questions tendered. 359 U.S. 1010, 79 S.Ct. 1150, 3 L.Ed.2d 1035. Section 10 of the Rivers and Harbors Act of 1899, 30 Stat. 1121, 1151, as amended, 33 U.S.C. § 403, 33 U.S.C.A. § 403, provides in part:2 'That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; * * *' (Italics added.) The section goes on to outlaw various structures 'in' any navigable waters except those initiated by plans recommended by the Chief of Engineers and authorized by the Secretary of the Army. Section 10 then states that 'it shall not be lawful to excavate or fill, or in any manner to alter or modify the * * * capacity of * * * the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.' A criminal penalty is added by § 12, 33 U.S.C.A. § 406; and § 12 further provides that the United States may sue to have 'any structures or parts of structures erected' in violation of the Act removed. Section 17, 33 U.S.C.A. § 413, directs the Department of Justice to 'conduct the legal proceedings necessary to enforce' the provisions of the Act, including § 10. Section 13, 33 U.S.C.A. § 407 forbids the discharge of 'any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States'; but § 13 grants authority to the Secretary of the Army to permit such deposits under conditions prescribed by him. Our conclusions are that the industrial deposits placed by respondents in the Calumet have, on the findings of the District Court, created an 'obstruction' within the meaning of § 10 of the Act and are discharges not exempt under § 13. We also conclude that the District Court was authorized to grant the relief. The history of federal control over obstructions to the navigable capacity of our rivers and harbors goes back to Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8, 8 S.Ct. 811, 815, 31 L.Ed. 629, where the Court held 'there is no common law of the United States' which prohibits 'obstructions' in our navigable rivers. Congress acted promptly, forbidding by § 10 of the Rivers and Harbors Act of 1890, 26 Stat. 426, 454, 'the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity' of any waters of the United States. The 1899 Act followed a report3 to Congress by the Secretary of War, which at the direction of Congress, 29 Stat. 234, contained a compilation and revision of existing laws relating to navigable waters. The 1899 Act was said to contain 'no essential changes in the existing law.'4 Certainly so far as outlawry of any 'obstructions' in navigable rivers is concerned there was no change relevant to our present problem. It is argued that 'obstruction' means some kind of structure. The design of § 10 should be enough to refute that argument, since the ban of 'any obstruction,' unless approved by Congress, appears in the first part of § 10, followed by a semicolon and another provision which bans various kinds of structures unless authorized by the Secretary of the Army. The reach of § 10 seems plain. Certain types of structures, enumerated in the second clause, may not be erected 'in' any navigable river without approval by the Secretary of the Army. Nor may excavations or fills, described in the third clause, that alter or modify 'the course, location, condition, or capacity of' a navigable river be made unless 'the work' has been approved by the Secretary of the Army. There is, apart from these particularized invasions of navigable rivers, which the Secretary of the Army may approve, the generalized first clause which prohibits 'the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity' of such rivers. We can only conclude that Congress planned to ban any type of 'obstruction,' not merely those specifically made subject to approval by the Secretary of the Army. It seems, moreover, that the first clause being specifically aimed at 'navigable capacity' serves an end that may at times be broader than those served by the other clauses. Some structures mentioned in the second clause may only deter movements in commerce, falling short of adversely affecting navigable capacity. And navigable capacity of a waterway may conceivably be affected by means other than the excavations and fills mentioned in the third clause. We would need to strain hard to conclude that the only obstructions banned by § 10 are those enumerated in the second and third clauses. In short, the first clause is aimed at protecting 'navigable capacity,' though it is adversely affected in ways other than those specified in the other clauses. There is an argument that § 10 of the 1890 Act, 26 Stat. 454, which was the predecessor of the section with which we are now concerned, used the words 'any obstruction' in the narrow sense, embracing only the prior enumeration of obstructions in the preceding sections of the Act. The argument is a labored one which we do not stop to refute step by step. It is unnecessary to do so, for the Court in United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 708, 19 S.Ct. 770, 777, 43 L.Ed. 1136, decided not long after the 1890 Act became effective, gave the concept of 'obstruction,' as used in § 10, broad sweep: 'It is not a prohibition of any obstruction to the navigation, but any obstruction to the navigable capacity, and anything, wherever done or however done, within the limits of the jurisdiction of the United States, which tends to destroy the navigable capacity of one of the navigable waters of the United States, is within the terms of the prohibition.' This broad construction given § 10 of the 1890 Act was carried over to § 10 of the 1899 Act in Sanitary District Co. of Chicago v. United States, 266 U.S. 405, 429, 45 S.Ct. 176, 179, 69 L.Ed. 352, the Court citing United States v. Rio Grande Dam & Irrigation Co., supra, with approval and saying that § 10 of the 1899 Act was 'a broad expression of policy in unmistakable terms, advancing upon' § 10 of the 1890 Act. The decision in Sanitary District Co. of Chicago v. United States, supra, seems to us to be decisive. There the Court affirmed a decree enjoining the diversion of water from Lake Michigan through this same river. Mr. Justice Holmes, writing for the Court, did not read § 10 narrowly but in the spirit in which Congress moved to fill the gap created by Willamette Iron Bridge Co. v. Hatch, supra. That which affects the water level may, he said, amount to an 'obstruction' within the meaning of § 10: 'Evidence is sufficient, if evidence is necessary, to show that a withdrawal of water on the scale directed by the statute of Illinois threatens and will affect the level of the Lakes, and that is a matter which cannot be done without the consent of the United States, even were there no international covenant in the case.' Sanitary District Co. of Chicago v. United States, supra, 266 U.S. at page 426, 45 S.Ct. at page 179. 'There is neither reason nor opportunity for a construction that would not cover the present case. As now applied it concerns a change in the condition of the Lakes and the Chicago River, admitted to be navigable, and, if that be necessary, an obstruction to their navigable capacity * * *.' Id., 266 U.S. at page 429, 45 S.Ct. at page 179. It is said that that case is distinguishable because it involved the erections of 'structures,' prohibited by the second clause of § 10. The 'structures' erected, however, were not 'in' navigable waters. The Sanitary District had reversed the flow of the Chicago River, 'formerly a little stream flowing into Lake Michigan,' 266 U.S. at page 424, 45 S.Ct. at page 178, and used it as a sluiceway to draw down the waters of the Great Lakes to a dangerous degree. Moreover, the Court did not rely on the second clause of § 10 but on the first and the third. Id., 266 U.S. at page 428, 45 S.Ct. at page 179. The decree in that case did not run against any 'structure'; it merely enjoined the diversion of water from Lake Michigan in excess of 250,000 cubic feet per minute. That broad construction of § 10 was reaffirmed in State of Wisconsin v. State of Illinois, 278 U.S. 367, 414, 49 S.Ct. 163, 170, 73 L.Ed. 426, another case involving the reduction of the water level of the Great Lakes by means of withdrawals through the Chicago River. And the Court, speaking through Chief Justice Taft (id., 278 U.S. at pages 406, 414, 417, 49 S.Ct. at pages 167, 170, 171), made clear that it adhered to what Mr. Justice Holmes had earlier said, 'This withdrawal is prohibited by Congress, except so far as it may be authorized by the Secretary of War.' Sanitary District Co. of Chicago v. United States, supra, 266 U.S. at page 429, 45 S.Ct. at page 180. The teaching of those cases is that the term 'obstruction' as used in § 10 is broad enough to include diminution of the navigable capacity of a waterway by means not included in the second or third clauses. In the Sanitary District case it was caused by lowering the water level. Here it is caused by clogging the channel with deposits of inorganic solids. Each affected the navigable 'capacity' of the river. The concept of 'obstruction' which was broad enough to include the former seems to us plainly adequate to include the latter. As noted, § 13 bans the discharge in any navigable water of 'any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state.' The materials carried here are 'industrial solids,' as the District Court found. The particles creating the present obstruction were in suspension, not in solution. Articles in suspension, such as organic matter in sewage, may undergo chemical change. Others settle out. All matter in suspension is not saved by the exception clause in § 13. Refuse flowing from 'sewers' in a 'liquid state' means to us 'sewage.' Any doubts are resolved by a consistent administrative construction which refused to give immunity to industrial wastes resulting in the deposit of solids in the very river in question.5 The fact that discharges from streets and sewers may contain some articles in suspension that settle out and potentially impair navigability6 is no reason for us to enlarge the group to include these industrial discharges. We follow the line Congress has drawn and cannot accept the invitation to broaden the exception in § 13 because other matters 'in a liquid state' might logically have been treated as favorably as sewage is treated. We read the 1899 Act charitably in light of the purpose to be served. The philosophy of the statement of Mr. Justice Holmes in State of New Jersey v. State of New York, 283 U.S. 336, 342, 51 S.Ct. 478, 479, 75 L.Ed. 1104, that 'A river is more than an amenity, it is a treasure,' forbids a narrow, cramped reading either of § 13 or of § 10. The Court of Appeals concluded that even if violations were shown, no relief by injunction is permitted. Yet § 17 provides, as we have seen, that 'the Department of Justice shall conduct the legal proceedings necessary to enforce' the provisions of the Act, including § 10. It is true that § 12 in specifically providing for relief by injunction refers only to the removal of 'structures' erected in violation of the Act (see United States v. Bigan, 3 Cir., 274 F.2d 729), while § 10 of the 1890 Act provided for the enjoining of any 'obstruction.' Here again Sanitary District Co. of Chicago v. United States, supra, is answer enough. It was argued in that case that relief by injunction was restricted to removal of 'structures.' See 266 U.S. at page 408, 45 S.Ct. at page 177. But the Court replied. 'The Attorney General by virtue of his office may bring this proceeding and no statute is necessary to authorize the suit.'7 Id., 266 U.S. at page 426, 45 S.Ct. at page 178. The authority cited was United States v. San Jacinto Tin Co., 125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. 747, where a suit was brought by the Attorney General to set aside a fraudulent patent to public lands. The Court held that the Attorney General could bring suit, even though Congress had not given specific authority. The test was whether the United States had an interest to protect or defend. Section 10 of the present Act defines the interest of the United States which the injunction serves. Protection of the water level of the Great Lakes through injunctive relief. Sanitary District Co. of Chicago v. United States, supra, is precedent enough for ordering that the navigable capacity of the Calumet River be restored. The void which was left by Willamette Iron Bridge Co. v. Hatch, supra, need not be filled by detailed codes which provide for every contingency. Congress has legislated and made its purpose clear; it has provided enough federal law in § 10 from which appropriate remedies may be fashioned even though they rest on inferences. Otherwise we impute to Congress a futility inconsistent with the great design of this legislation. This is for us the meaning of Sanitary District Co. of Chicago v. United States, supra, on this procedural point.8 Since the Court of Appeals dealt only with these questions of law and not with subsidiary questions raised by the appeal, we remand the case to it for proceedings in conformity with this opinion. Reversed.

362.US.207

Appellant, a Georgia corporation, has no office or place of business in Florida and no property or regular full-time employees there; but it does have in Florida ten brokers, wholesalers or jobbers who solicit sales of appellant's products on a commission basis and forward orders to Georgia, where they are accepted and whence the goods are shipped to Florida residents. Held: A Florida statute which levies a tax on the use of such products in Florida and makes appellant responsible for its collection from Florida purchasers is not repugnant either to the Commerce Clause of the Constitution or to the Due Process Clause of the Fourteenth Amendment. General Trading Co. v. State Tax Comm'n, 322 U. S. 335, followed. Miller Bros. Co. v. Maryland, 347-U. S. 340, distinguished. Pp. 207-213. 105 So. 2d 775, affirmed.

Florida, by statute,1 required appellant, a Georgia corporation, to be responsible for the collection of a use tax on certain mechanical writing instruments which appellant sells and ships from its place of business in Atlanta to residents of Florida for use and enjoyment there. Upon Scripto's failure to collect the tax, the appellee Comptroller levied a use tax liability of $5,150.66 against it. Appellant then brought this suit to test the validity of the imposition, contending that the requirement of Florida's statute places a burden on interstate commerce and violates the Due Process Clause of the Fourteenth Amendment to the Constitution. It claimed, in effect, that the nature of its operations in Florida does not form a sufficient nexus to subject it to the statute's exactions. Both the trial court and the Supreme Court of Florida held that appellant does have sufficient jurisdictional contacts in Florida and, therefore, must register as a dealer under the statute and collect and remit to the State the use tax imposed on its aforesaid sales. 105 So.2d 775. We noted probable jurisdiction. 361 U.S. 806, 80 S.Ct. 52, 4 L.Ed.2d 54. We agree with the result reached by Florida's courts. Appellant operates in Atlanta an advertising speciality division trading under the name of Adgif Company. Through it, appellant is engaged in the business of selling mechanical writing instruments which are adapted to advertising purposes by the placing of printed material thereon. In its Adgif operation, appellant does not (1) own, lease, or maintain any office distributing house, warehouse or other place of business in Florida, or (2) have any regular employee or agent there.2 Nor does it own or maintain any bank account or stock of merchandise in the State. Orders for its products are solicited by advertising specialty brokers or, as the Supreme Court of Florida called them, wholesalers or jobbers, who are residents of Florida. At the time of suit, there were 10 such brokers—each having a written contract and a specific territory. The somewhat detailed contract provides, inter alia, that all compensation is to be on a commission basis on the sales made, provided they are accepted by appellant; repeat orders, even if not solicited, also carry a commission if the salesman has not become inactive through failure to secure acceptable orders during the previous 60 days. The contract specifically provides that it is the intention of the parties 'to create the relationship * * * of independent contractor.' Each order is to be signed by the solicitor as a 'salesman'; however, he has no authority to make collections or incur debts involving appellant. Each salesman is furnished catalogs, samples, and advertising material, and is actively engaged in Florida as a representative 'of Scripto for the purpose of attracting, soliciting and obtaining Florida customers' for its mechanical advertising specialties. Orders for such products are sent by these salesmen directly to the Atlanta office for acceptance or refusal. If accepted, the sale is consummated there and the salesman is paid his commission directly. No money passes between the purchaser and the salesman although the latter does occasionally accept a check payable to the appellant, in which event he is required to forward it to appellant with the order. As construed by Florida's highest court, the impost levied by the statute is a tax 'on the privilege of using personal property * * * which has come to rest * * * and has become a part of the mass of property' within the State. 105 So.2d at page 781. It is not a sales tax, but 'was developed as a device to complement (such a tax) in order to prevent evasion * * * by the completion of purchases in a non-taxing state and shipment by interstate commerce into a taxing forum.' Id., at page 779. The tax is collectible from 'dealers' and is to be added to the purchase price of the merchandise 'as far as practicable.' In the event that a dealer fails to collect the tax, he himself is liable for its payment. The statute has the customary use tax provisions 'against duplication of the tax, an allowance to the dealer for making the collection, and a reciprocal credit arrangement which credits against the Florida tax any amount up to the amount of the Florida tax which might have been paid to another state.' Id., at page 782. Florida held appellant to be a dealer under its statute. 'The application by that Court of its local laws and the facts on which it founded its judgment are of course controlling here.' General Trading Co. v. State Tax Comm., 1944, 322 U.S. 335, 337, 64 S.Ct. 1028, 1029, 88 L.Ed. 1309. The question remaining is whether Florida, in the light of appellant's operations there, may collect the State's use tax from it on the basis of property bought from appellant and shipped from its home office to purchasers in Florida for use there. Florida has well stated the course of this Court's decisions governing such levies, and we need but drive home its clear understanding. There must be, as our Brother Jackson stated in Miller Bros. Co. v. State of Maryland, 1954, 347 U.S. 340, 344 345, 74 S.Ct. 535, 539, 98 L.Ed. 744, 'some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.' We believe that such a nexus is present here. First, the tax is a nondiscriminatory exaction levied for the use and enjoyment of property which has been purchased by Florida residents and which has actually entered into and become a part of the mass of property in that State. The burden of the tax is placed on the ultimate purchaser in Florida and it is he who enjoys the use of the property, regardless of its source. We note that the appellant is charged with no tax—save when, as here, he fails or refuses to collect it from the Florida customer. Next, as Florida points out, appellant has 10 wholesalers, jobbers, or 'salesmen' conducting continuous local solicitation in Florida and forwarding the resulting orders from that State to Atlanta for shipment of the ordered goods. The only incidence of this sales transaction that is nonlocal is the acceptance of the order. True, the 'salesmen' are not regular employees of appellant devoting full time to its service, but we conclude that such a fine distinction is without constitutional significance. The formal shift in the contractual tagging of the salesman as 'independent' neither results in changing his local function of solicitation nor bears upon its effectiveness in securing a substantial flow of goods into Florida. This is evidenced by the amount assessed against appellant on the statute's 3% basis over a period of but four years. To permit such formal 'contractual shifts' to make a constitutional difference would open the gates to a stampede of tax avoidance. See Thomas Reed Powell, Sales and Use Taxes: Collection from Absentee Vendors, 57 Harv.L.Rev. 1086, 1090. Moreover, we cannot see, from a constitutional standpoint, 'that it was important that the agent worked for several principals.' Chief Judge Learned Hand, in Bomze v. Nardis Sportswear, 2 Cir., 165 F.2d 33, 36. The test is simply the nature and extent of the activities of the appellant in Florida. In short, we conclude that this case is controlled by General Trading Co., supra. As was said there, 'All these differentiations are without constitutional significance. Of course, no State can tax the privilege of doing interstate business. See Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823. That is within the protection of the Commerce Clause and subject to the power of Congress. On the other hand, the mere fact that property is used for interstate commerce or has come into an owner's possession as a result of interstate commerce does not diminish the protection which he may draw from a State to the upkeep of which he may be asked to bear his fair share.' 322 U.S. at page 338, 64 S.Ct. at page 1029. Nor do we believe that Florida's requirement that appellant be its tax collector on such orders from its residents changes the situation. As was pointed out in General Trading Co., this is 'a familiar and sanctioned device.' Ibid. Moreover, we note that Florida reimburses appellant for its service in this regard. Appellant earnestly contends that Miller Bros. Co. v. State of Maryland, supra, is to the contrary. We think not. Miller had no solicitors in Maryland; there was no 'exploitation of the consumer market'; no regular, systematic displaying of its products by catalogs, samples or the like. But, on the contrary, the goods on which Maryland sought to force Miller to collect its tax were sold to residents of Maryland when personally present at Miller's store in Delaware. True, there was an 'occasional' delivery of such purchases by Miller into Maryland, and it did occasionally mail notices of special sales to former customers; but Marylanders went to Delaware to make purchases—Miller did not go to Maryland for sales. Moreover, it was impossible for Miller to determine that goods sold for cash to a customer over the counter at its store in Delaware were to be used and enjoyed in Maryland. This led the Court to conclude that Miller would be made 'more vulnerable to liability for another's tax than to a tax on itself.' 347 U.S. at page 346, 74 S.Ct. at page 539. In view of these considerations, we conclude that the 'minimum connections' not present in Miller are more than sufficient here. The judgment is therefore affirmed. Affirmed. Mr. Justice FRANKFURTER, deeming this case to be nearer to General Trading Co. v. State Tax Commission, 322 U.S. 335, 64 S.Ct. 1028, 88 L.Ed. 1309, than it is to Miller Bros. Co. v. State of Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744, concurs in the result. Mr. Justice WHITTAKER, believing that Florida's action denies to appellant due process of law and also directly burdens interstate commerce as held in Miller Bros. Co. v. State of Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744, and in McLeod v. J. E. Dilworth Co., 322 U.S. 327, 64 S.Ct. 1023, 88 L.Ed. 1304, and adhering to his views expressed in Northwestern States Portland Cement Co. v. State of Minnesota, 358 U.S. 450, 477, 79 S.Ct. 357, 368, 3 L.Ed.2d 421, would reverse the judgment.

363.US.522

Certain general contractors were adjudicated bankrupts after having defaulted both on the payment of federal taxes and on the payment of amounts due to certain subcontractors on the construction of buildings in North Carolina. The owners of the buildings paid to the trustee in bankruptcy the amount remaining due under the contract, and it was agreed that the subcontractors could assert the same rights against the trustee as they could have asserted against the owners. Under §§ 6321 and 6322 of the Internal Revenue Code of 1954, the United States claimed priority for its tax'lien on the "property and rights to property" belonging to the general contractors. The Federal Court of Appeals held that, under North Carolina law, the general contractors had no property interest in the amount due under the general construction contract, except to the extent that such amount exceeded the aggregate of all amounts due to subcontractors, and that, therefore, the Government could recover only so much of the construction prie as would remain unpaid after deduction of a sum sufficient to pay the subcontractors. Held: Since the Court of Appeals is much closer to North Carolina law than is this Court, and since this Court cannot say that the Court of Appeals' characterization of the taxpayers' property interests under that law is clearly erroneous or unreasonable, the judgment is affirmed. Pp. 523-527. 257 F. 2d 570, affirmed.

This case involves the competing claims of the Federal Government and certain subcontractors to a sum of money owed to the taxpayers under a general construction contract. The taxpayers, Michael & Embree, were general contractors doing business at Durham, North Carolina. Early in 1954, they agreed to construct certain buildings for persons herein referred to as the 'owners.' This work was completed on July 15, 1954, but because the owners disputed the amount due under the contract, payment to the taxpayers was delayed. In completing the construction work, the taxpayers had utilized the services and materials of numerous subcontractors, most of whom had not been compensated. The respondents are two such subcontractors, who in January and February 1955, gave the owners notice of their respective claims against the taxpayers. On January 18, 1955, the taxpayers were adjudicated bankrupts. At that time, there was an unpaid balance of $5,250 due from the owners under the construction contract. After extensive negotiations between the owners, the trustee in bankruptcy, and the subcontractors, it was agreed that the owners would absolve themselves from further liability by paying the $5,250 to the trustee, and that the subcontractors could thereafter assert the same rights against the trustee as they could have asserted against the owners. This arrangement was approved by both the Superior Court for Durham County, North Carolina, and the federal bankruptcy court. Another claimant of the money deposited with the trustee was the Federal Government, which on August 13, 1954, and November 22, 1954, had assessed the taxpayers for uncollected withholding and unemployment insurance taxes. By virtue of Sections 63211 and 63222 of the Internal Revenue Code of 1954, 26 U.S.C.A §§ 6321, 6322, a federal tax lien attached to all 'property and rights to property' belonging to the taxpayers at the time the assessments were made. The Government contended that the money owing under the construction contract was property of the taxpayers to which the tax lien attached. The referee in bankruptcy, attempting to resolve the competing claims against the fund as if the parties were before a state court, decided that the rights of the Federal Government under its tax lien were superior to those of the respondents. The District Court for the Middle District of North Carolina disagreed, and held that the respondents were entitled to payment of their claims before the Government could satisfy its tax lien. On appeal, the Court of Appeals for the Fourth Circuit affirmed, 257 F.2d 570. We granted certiorari. 359 U.S. 905, 79 S.Ct. 582, 3 L.Ed.2d 571. In affirming the judgment of the District Court, the Court of Appeals stated that the nature and extent of the general contractors' property rights, to which the tax lien attached, must be ascertained under state law. The court then undertook an extensive analysis of the relevant North Carolina statutes3 and cases. It found that the North Carolina law provides as follows: Subcontractors who have not been paid by the general contractor have a direct, independent cause of action against the owner to the extent of any amount due under the general construction contract, and any money owed by the owner under the construction contract must first be used to satisfy subcontractors' claims of which the owner has notice. Moreover, to insure that the owner will receive notice of outstanding subcontractors' claims, the North Carolina statute, N.C.Gen.Stat.1950, § 44—8, requires the general contractor, before receiving any payment, to furnish the owner with a statement of all sums due subcontractors, and if the general contractor fails to supply the required statement, he is guilty of a misdemeanor. N.C.Gen.Stat.1950, § 44—12. Finally, the court found further evidence of the direct and independent nature of the subcontractors' claims against the owner in N.C.Gen.Stat.1950, § 44—9, which provides that should the owner pay the general contractor after receiving notice of a subcontractor's claim, he will nevertheless be liable to the subcontractor to the extent of the amount which was due under the construction contract at the time notice was received. Based upon these considerations, the Court of Appeals held that, under North Carolina law, the general contractor did not have a property interest in the face amount, as such, of the general construction contract. Specifically, the court said that 'except to the extent the claim of the general contractor exceeds the aggregate of the claims of the subcontractors, the general contractor has no right which is subject to seizure under the tax lien.' Id., 257 F.2d at page 574. Therefore, concluded the court, since under North Carolina law the taxpayers possessed merely a right to the residue of the fund, and since the Government's tax lien attached to the property interests of the taxpayers as defined by state law, the Government can recover only 'so much of the construction price as will remain unpaid after the owners have deducted a sum sufficient to pay the subcontractors.' Id., at page 575. The Court of Appeals was correct in asserting that the Government's tax lien attached to the taxpayers' property interests in the fund as defined by North Carolina law. Aquilino v. United States, 363 U.S. 509, 80 S.Ct. 1277, 1285;4 United States v. Bess, 357 U.S. 51, 55, 78 S.Ct. 1054, 1057; cf. Morgan v. Commissioner, 309 U.S. 78, 82, 60 S.Ct. 424, 426, 84 L.Ed. 585. It is suggested that the courts of North Carolina have never specifically described the nature of the property rights created by the North Carolina statutes involved in this case, and that the Court of Appeals' interpretation of those statutes is probably incorrect. However, where '(t)he precise issue of state law involved * * * is one which has not been decided by the * * * (state) courts,' this Court has said that, '(i)n dealing with issues of state law that enter into judgments of federal courts, we are hesitant to overrule decisions by federal courts skilled in the law of particular states unless their conclusions are shown to be unreasonable.' Propper v. Clark, 337 U.S. 472, 486—487, 69 S.Ct. 1333, 1341—1342, 93 L.Ed. 1480. Since the Court of Appeals is much closer to North Carolina law than we are, and since we cannot say that the court's characterization of the taxpayers' property interests under that law is clearly erroneous or unreasonable,5 the judgment is affirmed. Affirmed.

362.US.539

In an action by a seaman who was a member of the crew of a fishing trawler to recover damages for personal injuries sustained as a result of unseaworthiness due to the temporary presence on the ship's rail of slime and fish gurry remaining there from recent unloading operations, the shipowner's actual or constructive knowledge of the temporary unseaworthy condition is not an essential element of the seaman's case. Pp. 539-550. (a) A shipowner's duty to furnish a seaworthy ship is absolute and it is not limited by concepts of. common-law negligence. Pp. 542-549. (b) Liability of the shipowner for a temporary unseaworthy condition is not different from the liability which attaches when the unseaworthy condition is permanent. Pp. 549-550. 265 F. 2d 426, reversed.

The petitioner was a member of the crew of the Boston fishing trawler Racer, owned and operated by the respondent. On April 1, 1957, the vessel returned to her home port from a 10-day voyage to the North Atlantic fishing grounds, loaded with a catch of fish and fish spawn. After working that morning with his fellow crew members in unloading the spawn,1 the petitioner changed his clothes and came on deck to go ashore. He made his way to the side of the vessel which abutted the dock, and in accord with recognized custom stepped onto the ship's rail in order to reach a ladder attached to the pier. He was injured when his foot slipped off the rail as he grasped the ladder. To recover for his injuries he filed this action for damages in a complaint containing three counts: the first under the Jones Act, 46 U.S.C.A. § 688, alleging negligence; the second alleging unseaworthiness; and the third for maintenance and cure. At the trial there was evidence to show that the ship's rail where the petitioner had lost his footing was covered for a distance of 10 or 12 feet with slime and fish gurry, apparently remaining there from the earlier unloading operations. The district judge instructed the jury that in order to allow recovery upon either the negligence or unseaworthiness count, they must find that the slime and gurry had been on the ship's rail for a period of time long enough for the respondent to have learned about it and to have removed it.2 Counsel for the petitioner requested that the trial judge distinguish between negligence and unseaworthiness in this respect, and specifically requested him to instruct the jury that notice was not a necessary element in proving liability based upon unseaworthiness of the vessel. This request was denied.3 The jury awarded the petitioner maintenance and cure, but found for the respondent shipowner on both the negligence and unseaworthiness counts. An appeal was taken upon the sole ground that the district judge had been in error in instructing the jury that constructive notice was necessary to support liability for unseaworthiness. The Court of Appeals affirmed, holding that at least with respect to 'an unseaworthy condition which arises only during the progress of the voyage,' the shipowner's obligation 'is merely to see that reasonable care is used under the circumstances * * * incident to the correction of the newly arisen defect.' 265 F.2d 426, 432. Certiorari was granted, 361 U.S. 808, 80 S.Ct. 70, 4 L.Ed.2d 57, to consider a question of maritime law upon which the Courts of Appeals have expressed differing views. Compare Cookingham v. United States, 3 Cir., 184 F.2d 213, with Johnson Line v. Maloney, 9 Cir., 243 F.2d 293, and Poignant v. United States, 2 Cir., 225 F.2d 595. In its present posture this case thus presents the single issue whether with respect to so-called 'transitory' unseaworthiness the shipowner's liability is limited by concepts of common-law negligence. There are here no problems, such as have recently engaged the Court's attention, with respect to the petitioner's status as a 'seaman.' Cf. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541, or as to the status of the vessel itself. Cf. West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161. The Racer was in active maritime operation, and the petitioner was a member of her crew.4 The origin of a seaman's right to recover for injuries caused by an unseaworthy ship is far from clear. The earliest codifications of the law of the sea provided only the equivalent of maintenance and cure—medical treatment and wages to a mariner wounded or falling ill in the service of the ship. Markedly similar provisions granting relief of this nature are to be found in the Laws of Oleron, promulgated about 1150 A.D. by Eleanor, Duchess of Guienne; in the Laws of Wisbuy, published in the following century; in the Laws of the Hanse Towns, which appeared in 1597; and in the Marine Ordinances of Louis XIV, published in 1681.5 For many years American courts regarded these ancient codes as establishing the limits of a shipowner's liability to a seaman injured in the service of his vessel. Harden v. Gordon, Fed.Cas. No. 6,047, 2 Mason 541; The Brig George, Fed.Cas. No. 5,329, 1 Sumn. 151; Reed v. Canfield, Fed.Cas. No. 11,641, 1 Sumn. 195.6 During this early period the maritime law was concerned with the concept of unseaworthiness only with reference to two situations quite unrelated to the right of a crew member to recover for personal injuries. The earliest mention of unseaworthiness in American judicial opinions appears in cases in which mariners were suing for their wages. They were required to prove the unseaworthiness of the vessel to excuse their desertion or misconduct which otherwise would result in a forfeiture of their right to wages. See Dixon v. The Cyrus, 7 Fed.Cas. page 755, No. 3,930; Rice v. The Polly & Kitty, 20 Fed.Cas. page 666, No. 11,754; The Moslem, 17 Fed.Cas. page 894, No. 9,875. The other route through which the concept of unseaworthiness found its way into the maritime law was via the rules covering marine insurance and the carriage of goods by sea. The Caledonia, 157 U.S. 124, 15 S.Ct. 537, 39 L.Ed. 644; The Silvia, 171 U.S. 462, 19 S.Ct. 7, 43 L.Ed. 241; The Southwark, 191 U.S. 1, 24 S.Ct. 1, 48 L.Ed. 65; I Parsons on Marine Insurance (1868) 367—400. Not until the late nineteenth century did there develop in American admiralty courts the doctrine that seamen had a right to recover for personal injuries beyond maintenance and cure. During that period it became generally accepted that a shipowner was liable to a mariner injured in the service of a ship as a consequence of the owner's failure to exercise due diligence. The decisions of that era for the most part treated maritime injury cases on the same footing as cases involving the duty of a shoreside employer to exercise ordinary care to provide his employees with a reasonably safe place to work. Brown v. The D.S. Cage, Cage, 4 Fed.Cas. page 367, No. 2,002; Halverson v. Nisen, 11 Fed.Cas. page 310, No. 5,970; The Noddleburn, D.C., 28 F. 855; The Neptuno, D.C., 30 F. 925; The Lizzie Frank, D.C., 31 F. 477; The Flowergate, D.C., 31 F. 762; The A. Heaton, C.C., 43 F. 592; The Julia Fowler, D.C., 49 F. 277; The Concord, D.C., 58 F. 913; The France, 2 Cir., 59 F. 479; The Robert C. McQuillen, D.C., 91 F. 685. Although some courts held shipowners liable for injuries caused by 'active' negligence, The Edith Godden, D.C., 23 F. 43; The Frank & Willie, D.C., 45 F. 494, it was held in The City of Alexandria, D.C., 17 F. 390, in a thorough opinion by Judge Addison Brown, that the owner was not liable for negligence which did not render the ship or her appliances unseaworthy. A closely related limitation upon the owner's liability was that imposed by the fellow-servant doctrine. The Sachem, D.C., 42 F. 66.7 This was the historical background behind Mr. Justice Brown's much quoted second proposition in The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760: 'That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship.' In support of this proposition the Court's opinion noted that '(i)t will be observed in these cases that a departure has been made from the Continental Codes in allowing an indemnity beyond the expense of maintenance and cure in cases arising from unseaworthiness. This departure originated in England in the Merchants' shipping act of 1876 * * * and in this country, in a general consensus of opinion among the circuit and district courts, that an exception should be made from the general principle before obtaining, in favor of seamen suffering injury through the unseaworthiness of the vessel. We are not disposed to disturb so wholesome a doctrine by any contrary decision of our own.' 189 U.S. at page 175, 23 S.Ct. at page 487. It is arguable that the import of the above-quoted second proposition in The Osceola was not to broaden the shipowner's liability, but, rather, to limit liability for negligence to those situations where his negligence resulted in the vessel's unseaworthiness. Support for such a view is to be found not only in the historic context in which The Osceola was decided, but in the discussion in the balance of the opinion, in the decision itself (in favor of the shipowner), and in the equation which the Court drew with the law of England, where the Merchant Shipping Act of 1876 imposed upon the owner only the duty to use 'all reasonable means' to 'insure the seaworthiness of the ship.' This limited view of The Osceola's pronouncement as to liability for unseaworthiness may be the basis for subsequent decisions of federal courts exonerating shipowners from responsibility for the negligence of their agents because that negligence had not rendered the vessel unseaworthy. The Henry B. Fiske, D.C., 141 F. 188; Tropical Fruit S.S. Co. v. Towle, 5 Cir., 222 F. 867; John A. Roebling's Sons Co. of New York v. Erickson, 2 Cir., 261 F. 986. Such a reading of the Osceola opinion also finds arguable support in several subsequent decisions of this Court. Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069; Plamals v. The Pinar Del Rio, 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827; Pacific S.S. Co. v. Peterson, 278 U.S. 130, 49 S.Ct. 75, 73 L.Ed. 220.8 In any event, with the passage of the Jones Act in 1920, 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688, Congress effectively obliterated all distinctions between the kinds of negligence for which the shipowner is liable, as well as limitations imposed by the fellow-servant doctrine, by extending to seamen the remedies made available to railroad workers under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.9 The first reference in this Court to the shipowner's obligation to furnish a seaworthy ship as explicitly unrelated to the standard of ordinary care in a personal injury case appears in Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927. There it was said 'we think the trial court might have told the jury that without regard to negligence the vessel was unseaworthy when she left the dock * * * and that if thus unseaworthy and one of the crew received damage as the direct result thereof, he was entitled to recover compensatory damages.' 259 U.S. at page 259, 42 S.Ct. at page 477. This characterization of unseaworthiness as unrelated to negligence was probably not necessary to the decision in that case, where the respondent's injuries had clearly in fact been caused by failure to exercise ordinary care (putting gasoline in a can labeled 'coal oil' and neglecting to provide the vessel with life preservers). Yet there is no reason to suppose that the Court's language was inadvertent.10 During the two decades that followed the Carlisle decision there came to be a general acceptance of the view that The Osceola had enunciated a concept of absolute liability for unseaworthiness unrelated to principles of negligence law. Personal injury litigation based upon unseaworthiness was substantial. See, Gilmore and Black, The Law of Admiralty (1957), p. 316. And the standard texts accepted that theory of liability without question. See Benedict, The Law of American Admiralty (6th Ed., 1940), Vol. I, § 83; Robinson, Admiralty Law (1939), p. 303 et seq. Perhaps the clearest expression appeared in Judge Augustus Hand's opinion in The H. A. Scandrett, 2 Cir., 87 F.2d 708: 'In our opinion the libelant had a right of indemnity for injuries arising from an unseaworthy ship even though there was no means of anticipating trouble. 'The ship is not freed from liability by mere due diligence to render her seaworthy as may be the case under the Harter Act (46 U.S.C.A. §§ 190—195) where loss results from faults in navigation, but under the maritime law there is an absolute obligation to provide a seaworthy vessel and, in default thereof, liability follows for any injuries caused by breach of the obligation.' 87 F.2d at page 711. In 1944 this Court decided Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. While it is possible to take a narrow view of the precise holding in that case,11 the fact is that Mahnich stands as a landmark in the development of admiralty law. Chief Justice Stone's opinion in that case gave an unqualified stamp of solid authority to the view that The Osceola was correctly to be understood as holding that the duty to provide a seaworthy ship depends not at all upon the negligence of the shipowner or his agents. Moreover, the dissent in Mahnich accepted this reading of The Osceola and claimed no more than that the injury in Mahnich was not properly attributable to unseaworthiness. See 321 U.S. at pages 105—113, 64 S.Ct. at pages 460—463. In Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, the Court effectively scotched any doubts that might have lingered after Mahnich as to the nature of the shipowner's duty to provide a seaworthy vessel. The character of the duty, said the Court, is 'absolute.' 'It is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character. * * * It is a form of absolute duty owing to all within the range of its humanitarian policy.' 328 U.S. at pages 94—95, 66 S.Ct. at page 877. The dissenting opinion agreed as to the nature of the shipowner's duty. '(D)ue diligence of the owner,' it said, 'does not relieve him from this obligation.' 328 U.S. at page 104, 66 S.Ct. at page 822. From that day to this, the decisions of this Court have undeviatingly reflected an understanding that the owner's duty to furnish a seaworthy ship is absolute the completely independent of his duty under the Jones Act to exercise reasonable care. Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798; Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120; Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354; Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413; United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541. There is no suggestion in any of the decisions that the duty is less onerous with respect to an unseaworthy condition arising after the vessel leaves her home port, or that the duty is any less with respect to an unseaworthy condition which may be only temporary. Of particular relevance here is Alaska Steamship Co. v. Petterson, supra. In that case the Court affirmed a judgment holding the shipowner liable for injuries caused by defective equipment temporarily brought on board by an independent contractor over which the owner had no control. That decision is thus specific authority for the proposition that the shipowner's actual or constructive knowledge of the unseaworthy condition is not essential to his liability. That decision also effectively disposes of the suggestion that liability for a temporary unseaworthy condition is different from the liability that attaches when the condition is permanent.12 There is ample room for argument, in the light of history, as to how the law of unseaworthiness should have or could have developed. Such theories might be made to fill a volume of logic. But, in view of the decisions in this Court over the last 15 years, we can find no room for argument as to what the law is. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence. To hold otherwise now would be to erase more than just a page of history. What has been said is not to suggest that the owner is obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service. Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354. The judgment must be reversed, and the case remanded to the District Court for a new trial on the issue of unseaworthiness. Reversed and remanded.

364.US.40

Upon default by a shipbuilder on its contract to construct. certain boats for the United States, the Government, exercising an option under the contract, required the shipbuilder to transfer to the Government title to the uncompleted boats and the materials on hand for their construction. This made it impossible for petitioners to enforce their materialmen's liens which had attached under state law to the boats and materials when the materials were furnished to the shipbuilder. Petitioners sued in the Court of Claims for compensation for the taking of their liens by the Government. Held: Petitioners are entitled to recover whatever value their liens had when the Government took title to the boats and materials. Pp. 41-49. (a) Under the terms of the contract here involved, title to the property was in the shipbuilder when the materials were furnished, and the mere fact that it was contemplated that title eventually would vest in the Government did not prevent the materialmen's liens from attaching. Pp. 42-44. (b) On the record in this case, petitioners had compensable property interests within the meaning of the Fifth Amendment in their liens on the boats and materials prior to transfer of title to the Government. Pp. 44-46. (c) Since the Government's action destroyed the Value of petitioners' liens, there was, under the circumstances of this case, a "taking" of these liens by the Government, for which compensation is due under the Fifth Amendment. Pp. 46-49. - Ct. C.-, 169 F. Supp. 259, reversed.

In this action petitioners assert materialmen's liens under state law for materials furnished to a prime contractor building boats for the United States, and seek just compensation under the Fifth Amendment for the value of their liens on accumulated materials and uncompleted work which have been conveyed to the United States. The United States entered into a contract with the Rice Shipbuilding Corporation for the construction of 11 navy personnel boats. The contract provided that in the event of default by Rice, the Government could terminate the contract and require Rice to transfer title and deliver to the Government all completed and uncompleted work together with all manufacturing materials acquired by Rice for building the boats. Petitioners furnished various materials to Rice for use in construction of the boats. Upon Rice's default, the Government exercised its option as to 10 of the boat hulls still under construction; Rice executed an itemized 'Instrument of Transfer of Title' conveying to the United States the hulls and all manufacturing materials then on hand; and the Government removed all of these properties to out-of-state naval ship-yards for use in the completion of the boats. When the transfer occurred, petitioners had not been paid for their materials and they have not been paid since. Petitioners therefore contended that they had liens under Maine law which provides that '(w)hoever furnishes labor or materials for building a vessel has a lien on it therefor, which may be enforced by attachment thereof within 4 days after it is launched * * *. He also has a lien on the materials furnished before they become part of the vessel, which may be enforced by attachment * * *.' Maine Rev.Stat.1954, c. 178, § 13. Claiming valid liens on the hulls and manufacturing materials at the time they were transferred by Rice to the United States, petitioners asserted that the Government's action destroyed their liens by making them unenforceable and that this constituted a taking of their property without just compensation in violation of the Fifth Amendment.1 The Court of Claims, relying on United States v. Ansonia Brass & Copper Co., 218 U.S. 452, 31 S.Ct. 49, 54 L.Ed. 1107, held that petitioners never acquired valid liens on the hulls or the materials transferred to the Government and that therefore there had been no taking of any property owned by them. Ct.Cl., 169 F.Supp. 259. We granted certiorari. 361 U.S. 812, 80 S.Ct. 86, 4 L.Ed.2d 60. The Court of Claims reached its conclusion from the correct premise that laborers and materialmen can acquire no liens on a 'public work.' United States for Use of Hill v. American Surety Co., 200 U.S. 197, 203, 26 S.Ct. 168, 170, 50 L.Ed. 437; Equitable Surety Co. v. United States, to Use of W. McMillan & Son, 234 U.S. 448, 455, 34 S.Ct. 803, 805, 58 L.Ed. 1394; United States v. Munsey Trust Co., 332 U.S. 234, 241, 67 S.Ct. 1599, 1602, 91 L.Ed. 2022. It reasoned that because the contract between Rice and the United States contemplated that title to the vessels would eventually vest in the Government, the Government had 'inchoate title' to the materials supplied by petitioners, rendering such materials 'public works' immune from the outset to petitioners' liens. We cannot agree that a mere prospect that property will later be owned by the United States renders that property immune from otherwise valid liens. The sovereign's immunity against materialmen's liens has never been extended beyond property actually owned by it. The Ansonia case itself, upon which the Court of Claims relied, makes this clear, here in dealing with one aspect of the issues there involved, the Court said: 'We are not now dealing with the right of a state to provide for such liens while property to the chattel in process of construction remains in the builder, who may be constructing the same with a view to transferring title therein to the United States upon its acceptance under a contract with the government. We are now treating of property which the United States owns. Such property, for the most obvious reasons of public policy, cannot be seized by authority of another sovereignty against the consent of the government.' 218 U.S. at page 471, 31 S.Ct. at page 54. The terms of the contract between Rice and the United States show conclusively that Rice, not the United States, had title to the property when petitioners furnished their materials. The agreement provided for delivery, preliminary acceptance, and final acceptance of the boats, the contractor to remain responsible for all supplies until delivery. The contractor was required to insure the property for the Government's benefit only to the extent of progress payments made and materials furnished by the Government. The very clause here invoked by the Government provided that upon default and termination of the contract the Government might 'require the Contractor to transfer title and deliver' the work, supplies and materials on hand. (Emphasis added.) While the Government was obliged to make progress payments based on the percentage of the work completed, nothing in the contract provided that ownership of the portion of the work paid for should vest in the United States. On the contrary, it was stipulated that all progress payments should be secured by a paramount government lien on the property. And finally, the contractor was required to discharge immediately any lien or right in rem asserted against the property. In their totality, these provisions clearly recognize that title was to remain in Rice during performance of the work, and show that private liens could attach to the property while Rice owned it. We think, therefore, that the Court of Claims was in error in holding as it did. This, however, does not end the case in petitioners' favor since the United States urges other grounds to support its judgment. It is contended that petitioners' asserted liens gave them no compensable property interests within the meaning of the Fifth Amendment. Under Maine law, materialmen become entitled to a lien when they furnish supplies; however, the lien must subsequently be enforced by attachment of the vessel or supplies. There is no allegation that any of the petitioners had taken steps to attach the uncompleted work. Nevertheless, they were entitled to resort to the specific property for the satisfaction of their claims. That such a right is compensable by virtue of the Fifth Amendment was decided in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593. In that case, a bank acquired a mortgage which under state law constituted a lien enforceable only by suit to foreclose. Subsequently, Congress amended the Bankruptcy Act so as to deprive mortgagees of substantial incidents of their rights to resort to mortgaged property. This Court held that the bank's property had been taken without just compensation in violation of the Fifth Amendment. No reason has been suggested why the nature of the liens held by petitioners should be regarded as any different, for this purpose, from the interest of the bank held compensable in the Radford case. The Government, however, suggests that because it held a paramount lien on the property to secure its progress payments, petitioners' claimed liens were in fact worthless. Petitioners, on the other hand, argue that when the Government chose to acquire title to the property rather than to enforce its lien, the lien merged with the title, thus making petitioners' liens paramount, and that even if it did not, and th ir liens remained subordinate to that of the Government, the value of the hulls and materials would have been sufficient to satisfy the Government's claims and some or all of petitioners' claims as well. We need not decide whether, as a matter of law, the Government's lien 'merged' in its title. At the very least, petitioners, prior to the transfer of title, had the right to whatever proceeds the property might bring over and above the Government's claim to the amount of its progress payments.2 By the date of default, Rice had expended some $198,000, while the Government had advanced only about $141,000 in progress payments. We have no way of knowing what the property would have brought had it been sold, but it cannot be said with certainty that it would have brought no more than the amount of the Government's claim. Moreover, petitioners themselves might have been able to purchase the property and realize some amount on their claims after the Government's claims had been satisfied. While these factors may present a difficult problem of valuation, we cannot say on this record that petitioners' interests were valueless.3 The Government also seems to suggest that because the contract between Rice and the United States expressly gave the Government the option of requiring a conveyance of title upon default, petitioners' liens attached subject to that limitation. Petitioners, however, were not parties to the contract. Furthermore, their liens attached by operation of law and nothing in the record indicates that the scope of such liens is affected by contractual arrangements into which the owner of the property may have entered. We conclude, therefore, that on this record petitioners must be considered to have had compensable property interests within the meaning of the Fifth Amendment prior to transfer of title to the Government. The final question is whether the Government's action constituted a 'taking' of petitioners' property interests within the meaning of the Fifth Amendment. Before the United States compelled Rice to transfer the hulls and all materials held for future use in building the boats, petitioners had valid liens under Maine law against both the hulls and whatever unused materials which petitioners had furnished. Before transfer these lines were enforceable by attachment against both the hulls and all materials. After transfer to the United States the liens were still valid, United States v. State of Alabama, 313 U.S. 274, 281 282, 61 S.Ct. 1011, 1013—1014, 85 L.Ed. 1327, but they could not be enforced because of the sovereign immunity of the Government and its property from suit.4 The result of this was a destruction of all petitioners' property rights under their liens, although, as we have pointed out, the liens were valid and had compensable value. Petitioners contend that destruction of their liens under the circumstances here is a 'taking.' The United States denies this, largely on the premise that inability of petitioners to enforce their liens because of immunity of the Government and its property from suit cannot amount to a 'taking.' The Government argues that the Ansonia case is dispositive of this Fifth Amendment issue. In that case, the contract between the shipbuilder and the United States provided, as to one of the ships contracted for, the dredge Benyuard, that as progress payments were made, the portion of the work paid for should become the property of the United States. Subcontractors claimed liens on the uncompleted vessel under the Virginia supply-lien law. This Court merely held that, as the property had passed to the United States by virtue of the terms of the contract, no lien could be enforced against it. No question was raised as to the rights possessed by the subcontractors prior to the acquisition of title by the United States nor as to whether that event entitled them to just compensation under the Fifth Amendment. There is, to be sure, reason to believe that the subcontractors' liens in that case, like those of petitioners here, did attach as soon as materials were furnished, which would necessarily be prior to the making of a progress payment for the portion of the work incorporating those materials and the consequent passage of title to the United States. See Hawes & Co. v. Wm. R. Trigg Co., 110 Va. 165, 185—186, 199, 65 S.E. 538, 546—547, 551—552. But the Fifth Amendment question was not raised or passed upon. In these circumstances we cannot regard the court's decision as dispositive on the precise point now under consideration, and must proceed to decide that question.5 We hold that there was a taking of these liens for which just compensation is due under the Fifth Amendment. It is true that not every destruction or injury to property by governmental action has been held to be a 'taking' in the constitutional sense. Omnia Commercial Co. v. United States, 261 U.S. 502, 508—510, 43 S.Ct. 437, 438, 67 L.Ed. 773. This case and many others reveal the difficulty of trying to draw the line between what destructions of property by lawful governmental actions are compensable 'takings' and what destructions are 'consequential' and therefore not compensable. See, e.g., United States v. Central Eureka Mining Co., 357 U.S. 155, 78 S.Ct. 1097, 2 L.Ed.2d 1228; United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311; United States v. Sponenbarger, 308 U.S. 256, 60 S.Ct. 225, 84 L.Ed. 230; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322; Louisville & Nashville R. Co. v. Mottley, 219 U.S. 467, 31 S.Ct. 265, 55 L.Ed. 297; Legal Tender Cases, 12 Wall. 457, 551, 20 L.Ed. 287. The total destruction by the Government of all value of these liens, which constitute compensable property, has every possible element of a Fifth Amendment 'taking' and is not a mere 'consequential incidence' of a valid regulatory measure. Before the liens were destroyed, the lienholders admittedly had compensable property. Immediately afterwards, they had none. This was not because their property vanished into thin air. It was because the Government for its own advantage destroyed the value of the liens, something that the Government could do because its property was not subject to suit, but which no private purchaser could have done. Since this acquisition was for a public use, however accomplished, whether with an intent and purpose of extinguishing the liens or not, the Government's action did destroy hem and in the circumstances of this case did thereby take the property value of those liens within the meaning of the Fifth Amendment. Neither the boats' immunity, after being acquired by the Government, from enforcement of the liens nor the use of a contract to take title relieves the Government from its constitutional obligation to pay just compensation for the value of the liens the petitioners lost and of which loss the Government was the direct, positive beneficiary. The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. A fair interpretation of this constitutional protection entitles these lienholders to just compensation here. Cf. Thibodo v. United States, 9 Cir., 187 F.2d 249. The judgment is reversed and the cause is remanded to the Court of Claims for further proceedings to determine the value of the property taken. Reversed and remanded. Mr. Justice STEWART concurs in the result.

364.US.505

Certiorari granted and judgment reversed as to Counts 1, 11 and III of the indictment, and case remanded for new trial on said counts. Reported below: 281 F. 2d 93.

Upon consideration of the entire record and the suggestion of the Solicitor General, the petition for writ of certiorari is granted limited to that part of the judgment concerned with Counts I, II, and III of the indictment and that part of the judgment is reversed and the case is remanded to the District Court for a new trial on Counts I, II, and III. In all other respects the petition for writ of certiorari is denied.

362.US.474

In a declaratory judgment action, a State Supreme Court sustained the validity of a state statute providing for the immediate dismissal of any employee of the State or any of its political subdivisions who refuses to swear that he is not presently a member of the Communist Party or any other subversive organization. In this Court, appellants contended that no hearing is afforded at which an employee can explain or defend his refusal to take the oath and that this violates the Due Process Clause of the Fourteenth Amendment; but the State Supreme Court had not passed on the question whether such a hearing is afforded. Held: The judgment is vacated and the case is remanded to the State Supreme Court for further consideration. Pp. 474-476. 53 Wash. 2d 460, 335 P. 2d 10, judgment vacated and case remanded.

Washington requires every public employee to subscribe to an oath that he is 'not a subversive person or a member of the Communist Party or any subversive organization, foreign or otherwise, which engages in or advocates, abets, advises, or teaches the overthrow, destruction or alteration of the constitutional form of the government of the United States, or of the State of Washington, or of any political subdivision of either of them, by revolution, force or violence; * * *.' Refusal so to do 'on any ground(s) shall be cause for immediate termination of such employee's employment.'1 Appellants brought this declaratory judgment action claiming the Act to be violative of due process as well as other provisions of the Federal Constitution. One of the claims is that no hearing is afforded at which the employee can explain or defend his refusal to take the oath. The Supreme Court of Washington did not pass on this point. The Attorney General suggests in his brief that prior to any decision thereon here, 'the Supreme Court of Washington should be first given the opportunity to consider and pass upon' it. Moreover, appellants point to a recent case of the Washington Supreme Court, City of Seattle v. Ross, 1959, 54 Wash.2d 655, 344 P.2d 216, as analogous. There that court overturned an ordinance because it established a presumption of guilt without affording the accused an opportunity of a hearing to rebut the same. In the light of these circumstances we cannot say how the Supreme Court of Washington would construe this statute on the hearing point. The declaratory nature of the case, the fact that the State's statute here under attack supplements previous statutory provisions raising questions concerning the applicability of the latter, and the principle of comity that should be afforded the State with regard to the interpretation of its own laws, bring us to the conclusion that we must remand the case for further consideration. Cf. Williams v. State of Georgia, 1955, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161. Vacated and remanded.

362.US.73

Appellants, who are engaged in the business of growing, packing and marketing Florida avocados in interstate commerce, sued in a Federal District Court to enjoin appellees, state officers of California, from enforcing § 792 of the California Agricultural Code, which prohibits the importation or sale in California of avocados containing less than 8% of oil by weight. Appellants claimed that § 792 violated the Commerce and Equal Protection Clauses of the Federal Constitution as well as the Federal Agricultural Marketing Agreement Act of 1937 and Florida Avocado Order No. 69 issued thereunder. A three-judge District Court convened to hear the case dismissed the action, and a direct appeal was taken to this Court. Held: 1. Since the complaint sought an injunction against enforcement of the state statute on grounds of federal unconstitutionality, the action was required to be heard by a three-judge District Court under 28 U. S. C. § 2281, and this Court has jurisdiction of this direct appeal under 28 U. S. C. § 1253-notwithstanding the fact that the complaint also alleged that the state sfatute conflicted with the federal Act. Pp. 75-85. 2. In view of the allegation of the complaint that appellants have made more than a score of shipments of Florida avocados to California and that appellees have consisiently condemned them for failure to contain 8% or more of oil by weight, thus forcing appellants to reship them and sell them in other States to prevent their destruction and complete loss, there is an existing dispute between the parties as to present legal rights amounting to a justiciable controversy; and the fact that appellants did not contest the validity of § 792 or seek abatement of appellees' condemnation of 'the avocados in California state courts does not bar their right to seek an injunction in the federal courts agz. "st its enforcement on the ground that it violates both the Federal Constitution and the Federal Agricultural Marketing Agreement Act of 1937. Pp. 85-86. 169 F. Supp. 774, reversed.

Appellants, engaged in the business of growing, packing, and marketing in commerce, Florida avocados, brought this action in the District Court of the United States for the Northern District of California to enjoin respondents, state officers of California, from enforcing § 792 of the California Agricultural Code.1 Section 792 prohibits, among other things, the importation into or sale in California of avocados containing 'less than 8 per cent of oil, by weight of the avocado excluding the skin and seed.' The complaint alleged, inter alia, that the varieties of avocados grown in Florida do not normally, or at least not uniformly, contain at maturity as much as 8% of oil by weight; that in each year since 1954 appellants have shipped in interstate commerce, in full compliance with the Federal Agricultural Marketing Agreement Act of 19372 and Florida Avocado Order No. 69 issued under that Act by the Secretary of Agriculture on June 11, 1954, Florida avocados into the State of California and have attempted to sell them there; that appellees, or their agents, have consistently barred the sale of appellants' avocados in California for failure uniformly to contain not less than 8% of oil by weight, resulting in denial to appellants of access to the California market, and forcing reshipment of the avocados to and their sale in other States, to the injury of appellants, all in violation of the Commerce and Equal Protection Clauses of the United States Constitution, art. 1, § 8, cl. 3; Amend. 14, as well as of the Federal Agricultural Marketing Agreement Act of 1937 and Florida Avocado Order No. 69 issued thereunder. Inasmuch as the complaint alleged federal unconstitutionality of the California statute, appellants requested the convening of, and there was convened, a three-judge District Court pursuant to 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, to hear the case. After hearing, the court concluded that, because appellants had not contested the validity of § 792 nor sought abatement of appellees, condemnation of the avocados in the California state courts, the case presented 'no more than a mere prospect of interference posed by the bare existence of the law in question,' and that it had 'no authority to take jurisdiction (and was) left with no course other than to dismiss the action,' which it did. D.C., 169 F.Supp. 774, 776. Appellants brought the case here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, and we postponed the question of our jurisdiction to the hearing on the merits. 360 U.S. 915, 79 S.Ct. 1432, 3 L.Ed.2d 1532. The first and principal question presented is whether this action is one required by § 2281 to be heard by a District Court of three judges and, hence, whether we have jurisdiction of this direct appeal under § 1253. Section 2281 provides3 that an injunction restraining the enforcement of a state statute may not be granted upon the ground of unconstitutionality of such statute 'unless the application therefor is heard and determined by a district court of three judges * * *,' and § 1253 provides4 that any order, granting or denying an injunction in any civil action required by any Act of Congress to be heard and determined by a District Court of three judges, may be appealed directly to this Court. Appellees concede that if the complaint had attacked § 792 solely on the ground of conflict with the United States Constitution, the action would have been one required by § 2281 to be heard and determined by a District Court of three judges. But appellees contend that because the complaint also attacks § 792 on the ground of conflict with the Federal Agricultural Marketing Agreement Act of 1937 and the Secretary's Florida Avocado Order No. 69, it is possible that the action could be determined on the statutory rather than the constitutional ground, and, therefore, the action was not required to be heard by a District Court of three judges under § 2281 and, hence, a direct appeal does not lie to this Court under § 1253. Section 2281 seems rather plainly to indicate a congressional intention to require an application for an injunction to be heard and determined by a court of three judges in any case in which the injunction may be granted on grounds of federal unconstitutionality. The reason for this is quite clear. The impetus behind the first three-judge court statute was the decision in Ex parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, in which it was held that a federal court could enjoin a state officer from enforcing a state statute alleged to be unconstitutional, despite the prohibition of the Eleventh Amendment concerning suits against a State. Debate was immediately launched in the Senate with regard to cushioning the impact of the Young case, the principal concern being with the power thus activated in one federal judge to enjoin the operation or enforcement of state legislation on grounds of federal unconstitutionality.5 The result of the debates on this subject was passage of a three-judge-court statute in 1910, 36 Stat. 557, which was codified as § 266 of the Judicial Code, 36 Stat. 1162.6 This statute prohibited the granting of an interlocutory injunction against a state statute upon grounds of federal unconstitutionality unless the application for injunction was heard and determined by a court of three judges. The statute also contained its own provision for direct appeal to this Court from an order granting or denying an interlocutory injunction. The objective of § 266 was clearly articulated by Mr. Chief Justice Taft in Cumberland Telephone & Telegraph Co. v. Louisiana Public Service Commission, 260 U.S. 212, 43 S.Ct. 75, 67 L.Ed. 217: 'The legislation was enacted for the manifest purpose of taking away the power of a single United States Judge, whether District Judge, Circuit Judge, or Circuit Justice holding a District Court of the United States, to issue an interlocutory injunction against the execution of a state statute by a state officer or of an order of an administrative board of the state pursuant to a state statute, on the ground of the federal unconstitutionality of the statute. Pending the application for an interlocutory injunction, a single judge may grant a restraining order to be in force until the hearing of the application, but thereafter, so far as enjoining the state officers, his power is exhausted. The wording of the section leaves no doubt that Congress was by provisions ex industria seeking to make interference by interlocutory injunction from a federal court with the enforcement of state legislation regularly enacted and in course of execution, a matter of the adequate hearing and the full deliberation which the presence of three judges, one of whom should be a Circuit Justice or Judge, was likely to secure. It was to prevent the improvident granting of such injunctions by a single judge, and the possible unnecessary conflict between federal and state authority always to be deprecated.' 260 U.S. at page 216, 43 S.Ct. at page 76. In 1925, § 266 was amended to require a three-judge court for issuance of a permanent as well as an interlocutory injunction, and § 238 of the Judicial Code (a broad statute governing direct appeals to this Court from District Courts) was amended, so far as here pertinent, to incorporate the provision for direct appeals to this Court from the orders of three-judge courts granting or denying an injunction in a § 266 case. 43 Stat. 938. Such is the present scheme of §§ 2281 and 1253. With this background, it seems entirely clear that the central concern of Congress in 1910 was to prevent one federal judge from granting an interlocutory injunction against state legislation on grounds of federal unconstitutionality. And the 1925 amendment requiring a court of three judges for issuance of a permanent as well as an interlocutory injunction 'was designed to end the anomalous situation in which a single judge might reconsider and decide questions already passed upon by three judges on the application for an interlocutory injunction.' Stratton v. St. Louis Southwestern R. Co., 282 U.S. 10, 14, 51 S.Ct. 8, 10, 75 L.Ed. 135. Section 2281, read in the light of this background, seems clearly to require that when, in any action to enjoin enforcement of a state statute, the injunctive decree may issue on the ground of federal unconstitutionality of the state statute, the convening of a three-judge court is necessary; and the joining in the complaint of a nonconstitutional attack along with the constitutional one does not dispense with the necessity to convene such a court. To hold to the contrary would be to permit one federal district judge to enjoin enforcement of a state statute on the ground of federal unconstitutionality whenever a nonconstitutional ground of attack was also alleged, and this might well defeat the purpose of § 2281. Cases in this Court since Louisville & Nashville R. Co. v. Garrett, 1913, 231 U.S. 298, 34 S.Ct. 48, 58 L.Ed. 229, have consistently adhered to the view that, in an injunction action challenging a state statute on substantial federal constitutional grounds, a three-judge court is required to be convened and has just as we have on a direct appeal from its action—jurisdiction over all claims raised against the statute.7 These cases represent an unmistakable recognition of the congressional policy to provide for a three-judge court whenever a state statute is sought to be enjoined on grounds of federal unconstitutionality, and this consideration must be controlling.8 Appellees place some reliance on Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036, and Lemke v. Farmers Grain Co. of Embden, N.D., 258 U.S. 50 (Lemke I), 42 S.Ct. 244, 66 L.Ed. 458, in support of their position. Buder held merely that a claim of conflict between a state statute and a federal statute was not a constitutional claim requiring the convening of a three-judge court under § 266, and thus there could be no direct appeal here. Buder did not, however, require that a constitutional claim be the sole claim before the three-judge court. Lemke I held that it was permissible to appeal to the Court of Appeals rather than directly to this Court from the final order of a single district judge in a case in which a state statute was attacked on the grounds that it was both unconstitutional and in conflict with a federal statute. The case was decided under § 238, which, until 1925, was a broad statute calling for a direct appeal to this Court from the action of a District Court 'in any case that involves the construction or application of the Constitution of the United States * * * and in any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States.' The breadth of § 238 had led the Court on several occasions to construe this provision to mean that a direct appeal to this Court was required only when the sole ground of District Court jurisdiction was the federal constitutional claim involved, Union & Planters' Bank of Memphis v. City of Memphis, 189 U.S. 71, 73, 23 S.Ct. 604, 605, 47 L.Ed. 712; Carolina Glass Co. v. State of South Carolina, 240 U.S. 305, 318, 36 S.Ct. 293, 298, 60 L.Ed. 658, but if jurisdiction was based both on a constitutional ground and some other federal ground the appeal might properly be taken either to this Court or to the Court of Appeals. Spreckels Sugar Refining Co. v. McClain, 192 U.S. 397, 407—408, 24 S.Ct. 376, 378 379, 48 L.Ed. 496; Macfadden v. United States, 213 U.S. 288, 293, 29 S.Ct. 490, 491, 53 L.Ed. 801. Lemke I, decided in 1922, merely followed this line of decisions, and was not in any way concerned with a direct appeal to this Court under § 266 from the order of a three-judge court—the question now before us. The distinction between the scope of our direct appellate jurisdiction under § 238 and § 266 prior to 1925 was effectively illustrated by the differing course of events in Lemke I and Lemke v. Homer Farmers Elevator Co., 258 U.S. 65 (Lemke II), 42 S.Ct. 250, 66 L.Ed. 467. Both cases involved an attack on a state statute on grounds of federal unconstitutionality and conflict with a federal statute. In both, interlocutory injunctions were sought before three-judge courts, and the injunctions were granted. Lemke I, however, also sought a permanent injunction before a single district judge, and, from his order denying the injunction, the case was appealed to the Court of Appeals before coming here. Lemke II, on the other hand, was directly appealed to this Court under § 266 from the interlocutory order of the three-judge court. As indicated, this Court held that the final order of the single judge in Lemke I was properly appealed to the Court of Appeals under § 238 because of the additional nonconstitutional basis for District Court jurisdiction. But in Lemke II this Court took jurisdiction over all issues presented in the direct appeal under § 266 from the interlocutory order of the three-judge court. See also Shafer v. Farmers Grain Co. of Embden, 268 U.S. 189, 45 S.Ct. 481, 69 L.Ed. 909, a case virtually identical with Lemke II, in which this Court also took jurisdiction over all questions in a § 266 direct appeal from an interlocutory injunction granted by a three-judge court. The problem was greatly simplified in 1925 when § 266 was amended to require three-judge courts for the granting of both interlocutory and permanent injunctions on grounds of federal unconstitutionality, and § 238, while substantially amended to reduce the scope of our general appellate jurisdiction, so far as here pertinent, merely incorporated the provision for direct appeals to this Court from injunctions granted or denied under § 266. We do not find in these amendments any intention to curtail either the jurisdiction of three-judge courts or our jurisdiction on direct appeal from their orders. Indeed, the cases since 1925 have continued to maintain the view that if the constitutional claim against the state statute is substantial, a three-judge court is required to be convened and has jurisdiction, as do we on direct appeal, over all grounds of attack against the statute. E.g., Sterling v. Constantin, 287 U.S. 378, 393—394, 53 S.Ct. 190, 193—194, 77 L.Ed. 375; Railroad Commission of State of California v. Pacific Gas & Electric Co., 302 U.S. 388, 391, 58 S.Ct. 334, 336, 82 L.Ed. 319; Public Service Commission of State of Missouri v. Brashear Freight Lines, 312 U.S. 621, 625, note 5, 61 S.Ct. 784, 786, 85 L.Ed. 1083. To hold that only one judge may hear and decide an action to enjoin the enforcement of a state statute on both constitutional and nonconstitutional grounds would be to ignore the explicit language and manifest purpose of § 2281, which is to provide for a three-judge court whenever an injunction sought against a state statute may be granted on federal constitutional grounds. Where a complaint seeks to enjoin a state statute on substantial grounds of federal unconstitutionality, then even though nonconstitutional grounds of attack are also alleged, we think the case is one that is required by * * * Act of Congress to be heard and determined by a district court of three judges.' 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. (Emphasis added.) We, therefore, hold that we have jurisdiction of this direct appeal. We turn now to the merits. The Court is of the view that the District Court was in error in holding that, because appellants had not contested the validity of § 792 nor sought abatement of appellees' condemnation of their avocados, there was no 'existing dispute as to present legal rights,' but only 'a mere prospect of interference posed by the bare existence of the law in question (§ 792).' and in accordingly dismissing the action for want of jurisdiction. (169 F.Supp. 776) As earlier stated, the complaint alleges that, since the issuance of the Secretary's Florida Avocado Order No. 69 in 1954, appellants have made more than a score of shipments in interstate commerce of Florida avocados to and for sale in California, and appellees, or their agents, have in effect consistently condemned those avocados for failure to contain 8% or more of oil by weight, thus requiring appellants—to prevent destruction and complete loss of their shipments—to reship the avocados to and sell them in other States, all in violation of the Commerce and Equal Protection Clauses of the United States Constitution as well as the Marketing Agreement Act of 1937. It is therefore evident that there is an existing dispute between the parties as to present legal rights amounting to a justiciable controversy which appellants are entitled to have determined on the merits. In these circumstances, the fact that appellants did not contest the validity of § 792 nor seek abatement of appellees' condemnation of the avocados in the California state courts—which, because of the time period necessarily involved, would have resulted in the complete spoilage and loss of the product—does not constitute an impediment to their right to seek an injunction in the federal court against enforcement of § 792 on the ground that it violates both the Constitution of the United States and the Federal Agricultural Marketing Agreement Act of 1937. The judgment is therefore reversed and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion. Reversed and remanded. Mr. Justice DOUGLAS joins in the part of the opinion that passes on the merits, the Court having held, contrary to his view, that the case is properly here on direct appeal from a three-judge court.

362.US.458

The United States brought a civil antitrust action against an agricultural cooperative marketing association composed of about 2,000 t-Maryland and Virginia dairy farmers supplying about 86% of the milk purchased by all milk dealers in the Washington, D. C., metropolifan area. The complaint charged that the association had (1) monopolized and attempted to monopolize interstate trade and commerce in fluid milk in Maryland, Virginia and the District of Columbia, in violation of § 2 of the Sherman Act; (2) through contracts and agreements combined and conspired with Embassy Dairy and others to eliminate and foreclose competition in the same milk market area, in-violation of § 3 of the Sherman Act; and (3) bought all assets of Embassy Dairy, (the largest milk dealer in the area which competed with the asso iation's dealers), the effect of which might be to substantially W§M4n competition or tend to create a monopoly in violation of § 7 _f the Clayton Act. The District • J Court dismissed the charge under § 2 of the Sherman Act; but it found for the Government on the charges under § 3 of the Sherman Act and § 7 of the Clayton Act and granted part, but not all, of the relief sought by the.Government with respect to those charges. Held: 1. Section 2 of the Capper-Volstead Act, which authorizes the Secretary of Agriculture to issue a cease-and-desist order upon finding that a cooperative has monopolized or restrained trade to such an extent that the price of an agricultural commodity has been "unduly enhanced," does not exclude all prosecutions under the Sherman Act. United States v. Borden Co., 308 U. S. 188. Pp. 462-463. 2. Neither § 6 of the Clayton Act nor § 1 of the Capper-Volstead Act leaves agricultural c6operatives free to engage in practices against others which are designed to monopolize trade or to restrain and suppress competition. Pp. 463-468. 3. The allegations of the complaint and the statement of particulars in this case charge anticompetitive activities which are so far outside the legitimate objects of a c6operative that, if proved, they would constitute clear violations of § 2 of the Sherman Act; and the District Court erred in dismissing the charge of violating §2. P. 468. 4. On the record in this case, the District Court properly found that the acquisition of Embassy Dairy by the association tended to create a monopoly or to substantially lessen competition, in violation of § 7 of the Clayton Act. Pp. 468-469. 5. The acquisition of Embassy Dairy by the association was not exempted from the provisions of § 7 of the Clayton Act by the last paragraph of that section, since there is no "statutory provision" that vests power in the Secretary of Agricultufe to approve a transaction and thereby exempt a cooperative from the antitrust laws under the circumstances of this case, which involves no agricultural marketing agreement, with the Secretary. Pp. 469-470. 6. The privilege the Capper-Volstead Act grants producers to conduct their affairs collectively does not include a privilege to combine with competitors so as to use a monopoly position as a lever further to suppress competition by and among independent producers and processors; and the record sustains the District Court's finding that the association had violated § 3 of the Sherman Act. Pp. 470-472. 7. Having entered a decree ordering the association to divest itself of all assets acquired from Embassy Dairy and to cancel all contracts ancillary to their acquisition, and having retained jurisdiction to grant such further relief as might be appropriate, the District Court did not err in denying part of the relief sought by the Government. Pp. 472-473. 167 F. Supp. 45, reversed. 167 F. Supp. 799, 168 F. Supp. 880, affirmed.

This is a civil antitrust action brought by the United States in a Federal District Court against an agricultural co-operative, the Maryland and Virginia Milk Producers Association, Inc. The Association supplies about 86% of the milk purchased by all milk dealers in the Washington, D.C., metropolitan area, and has as members about 2,000 Maryland and Virginia dairy farmers. The complaint charged that the Association had: (1) attempted to monopolize and had monopolized interstate trade and commerce in fluid milk in Maryland, Virginia and the District of Columbia in violation of § 2 of the Sherman Act;1 (2) through contracts and agreements combined and conspired with Embassy Dairy and others to eliminate and foreclose competition in the same milk market area in violation of § 3 of that Act;2 and (3) bought all the assets of Embassy Dairy, the largest milk dealer in the area which competed with the Association's dealers, the effect of which acquisition might be substantially to lessen competition or to tend to create a monopoly in violation of § 7 of the Clayton Act.3 The chief defense set up by the Association was that, because of its being a cooperative composed exclusively of dairy farmers, § 6 of the Clayton Act4 and §§ 1 and 2 of the Capper-Volstead Act5 completely exempted and immunized it from the antitrust laws with respect to the charges made in the Government's complaint. The District Court concluded after arguments that 'an agricultural cooperative is entirely exempt from the provisions of the antitrust laws, both as to its very existence as well as to all of its activities, provided it does not enter into conspiracies or combinations with persons who are not producers of agricultural commodities.' 167 F.Supp. 45, 52. Accordingly the court dismissed the Sherman Act § 2 monopolization charge, where the Association was not alleged to have acted in combination with others, but upheld the right of the Government to go to trial on the Sherman Act § 3 and Clayton Act § 7 charges because they involved alleged activities with the owners of Embassy and other persons who were not agricultural producers. After trial the court found for the United States on the latter two charges and entered a decree ordering the Association to divest itself within a reasonable time of all assets acquired from Embassy and to cancel all contracts ancillary to the acquisition. 167 F.Supp. 799; 168 F.Supp. 880. The court refused to grant additional relief the United States asked for. It is from this refusal and the dismissal of its Sherman Act § 2 monopolization charge that the Government appealed directly to this Court under the Expediting Act.6 The Association similarly appealed to review the judgments against it on the Sherman Act § 3 charge and the Clayton Act § 7 charge. We noted probable jurisdiction, 360 U.S. 927, 79 S.Ct. 1447, 1450, 3 L.Ed.2d 1541, and treat both appeals in this opinion. The Association's chief argument for antitrust exemption is based on § 2 of the Capper-Volstead Act, which authorizes the Secretary of Agriculture to issue a cease-and-desist order upon a finding that a cooperative has monopolized or restrained trade to such an extent that the price of an agricultural commodity has been 'unduly enhanced.'7 The contention is that this provision was intended to give the Secretary of Agriculture primary jurisdiction, and thereby exclude any prosecutions at all under the Sherman Act. This Court unequivocally rejected the same contention in United States v. Borden Co., 308 U.S. 188, 206, 60 S.Ct. 182, 191, 84 L.Ed. 181, after full consideration of the same legislative history that we are now asked to review again. We adhere to the reasoning and holding of the Borden opinion on this point. The Association also argues that without regard to § 2 of the Capper-Volstead Act, § 1 of that Act and § 6 of the Clayton Act demonstrate a purpose wholly to exempt agricultural associations from the antitrust laws. In the Borden case this Court held that neither § 6 of the Clayton Act nor the Capper-Volstead Act granted immunity from prosecution for the combination of a co-operative and others to restrain trade there charged as a violation of § 1 of the Sherman Act. Although the Court was not confronted with charges under § 2 of the Sherman Act in that case we do not believe that Congress intended to immunize cooperatives engaged in competition-stifling practices from prosecution under the antimonopolization provisions of § 2 of the Sherman Act, while making them responsible for such practices as violations of the antitrade-restraint provisions of §§ 1 and 3 of that Act. These sections closely overlap, and the same kind of predatory practices may show violations of all.8 The reasons underlying the Court's holding in the Borden case that the cooperative there was not completely exempt under § 1 apply equally well to §§ 2 and 3. The Clayton and Capper-Volstead Acts, construed in the light of their background, do not lend themselves to such an incongruous immunity-distinction between the sections as that urged here. In the early 1900's, when agricultural cooperatives were growing in effectiveness, there was widespread concern because the mere organization of farmers for mutual help was often considered to be a violation of the antitrust laws. Some state courts had sustained antitrust charges against agricultural cooperatives,9 and as a result eventually all the States passed Acts authorizing their existence.10 It was to bar such prosecutions by the Federal Government as to interstate transactions that Congress in 1914 inserted § 6 in the Clayton Act exempting agricultural organizations, along with labor unions, from the antitrust laws. This Court has held that the provisions of that section, set out below,11 relating to labor unions do not manifest 'a congressional purpose wholly to exempt' them from the antitrust laws,12 and neither the language nor the legislative history of the section indicates a congressional purpose to grant any broader immunity to agricultural cooperatives. The language shows no more than a purpose to allow farmers to act together in cooperative associations without the associations as such being 'held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws,' as they otherwise might have been. This interpretation is supported by the House and Senate Committee Reports on the bill.13 Thus, the full effect of § 6 is that a group of farmers acting together as a single entity in an association cannot be restrained 'from lawfully carrying out the legitimate objects thereof' (emphasis supplied), but the section cannot support the contention that it gives such an entity full freedom to engage in predatory trade practices at will. See United States v. King, D.C., 229 F. 275; D.C., 250 F. 908, 910. Cf. United States v. Borden Co., 308 U.S. 188, 203—205, 60 S.Ct. 182, 190—191, 84 L.Ed. 181. The Capper-Volstead Act of 1922 extended § 6 of the Clayton Act exemption to capital stock agricultural cooperatives which had not previously been covered by that section.14 Section 1 of the Capper-Volstead Act also provided that among 'the legitimate objects' of farmer organizations were 'collectively processing, preparing for market, handling, and marketing' products through common marketing agencies and the making of 'necessary contracts and agreements to effect such purposes.' We believe it is reasonably clear from the very language of the Capper-Volstead Act, as it was in § 6 of the Clayton Act, that the general philosophy of both was simply that individual farmers should be given, through agricultural cooperatives acting as entities, the same unified competitive advantage—and responsibility—available to businessmen acting through corporations as entities. As the House Report on the Capper-Volstead Act said: 'Instead of granting a class privilege, it aims to equalize existing privileges by changing the law applicable to the ordinary business corporations so the farmers can take advantage of it.'15 This indicates a purpose to make it possible for farmer-producers to organize together, set association policy, fix prices at which their cooperative will sell their produce, and otherwise carry on like a business corporation without thereby violating the antitrust laws. It does not suggest a congressional desire to vest cooperatives with unrestricted power to restrain trade or to achieve monopoly by preying on independent producers, processors or dealers intent on carrying on their own businesses in their own legitimate way. In the Senate hearings on the Capper-Volstead Act the Secretary of Agriculture, who was given a large measure of authority under this Act, and the Solicitor of his Department, testified that the Act would not authorize cooperatives to engage in predatory practices in violation of the Sherman Act.16 And the House Committee Report assured the Congress that: 'In the event that associations authorized by this bill shall do anything forbidden by the Sherman Antitrust Act, they will be subject to the penalties imposed by that law.'17 Although contrary inferences could be drawn from some parts of the legislative history, we are satisfied that the part of the House Committee Report just quoted correctly interpreted the Capper-Volstead Act, and that the Act did not leave co-operatives free to engage in practices against other persons in order to monopolize trade, or restrain and suppress competition with the cooperative. Therefore, we turn now to a consideration of the District Court's judgments in this case. Sherman Act § 2 Dismissal.—The complaint charging monopolization alleged that the Association had '(t)hreatened and undertaken diverse actions to induce or compel dealers to purchase milk from the defendant (Association), and induced and assisted others to acquire dealer outlets' which were not purchasing milk from the Association. It also alleged that the Association '(e)xcluded, eliminated, and attempted to eliminate others, including producers and producers' agricultural cooperative associations not affiliated with defendant, from supplying milk to dealers.' Supporting this charge the statement of particulars listed a number of instances in which the Association attempted to interfere with truck shipments of nonmembers' milk, and an attempt during 1939—1942 to induce a Washington dairy to switch its non-Association producers to the Baltimore market. The statement of particulars also included charges that the Association engaged in a boycott of a feed and farm supply store to compel its owner, who also owned an Alexandria dairy, to purchase milk from the Association, and that it compelled a dairy to buy its milk by using the leverage of that dairy's indebtedness to the Association. We are satisfied that the allegations of the complaint and the statement of particulars, only a part of which we have set out, charge anticompetitive activities which are so far outside the 'legitimate objects' of a cooperative that, if proved, they would constitute clear violations of § 2 of the Sherman Act by this Association, a fact, indeed, which the Association does not really dispute if it is subject to liability under this section. It was error for the District Court to dismiss the § 2 charge. Clayton Act § 7 Judgment.—In 1954 the Association purchased the assets of Embassy Dairy in Washington. The complaint charged that this acquisition constituted a violation of § 7 of the Clayton Act, which prohibits a corporation engaged in commerce from acquiring all or any part of the assets of another corporation so engaged where the effect may be to tend to create a monopoly or substantially lessen competition. A trial was had before the District Court on this charge and the court found that the motive for and result of the Embassy acquisition was to: eliminate the largest purchaser of non-Association milk in the area; force former Embassy non-Association producers either to join the Association or to ship to Baltimore, thus both bringing more milk to the Association and diverting competing milk to another market; eliminate the Association's prime competitive dealer from government contract milk bidding; and increase the Association's control of the Washington market. On these findings, amply supported by evidence, the District Court could properly conclude, as it did, that the Embassy acquisition tended to create a monopoly or substantially lessen competition, and was therefore a violation of § 7.18 This leaves the contention that the acquisition of Embassy was protected by the last paragraph of § 7 of the Clayton Act which in pertinent part provides that: 'Nothing contained in this section shall apply to transactions duly consummated pursuant to authority given by * * * the Secretary of Agriculture under any statutory provision vesting such power in such * * * Secretary * * *.'19 The Association contends that its purchase of Embassy Dairy was 'consummated pursuant to authority given by * * * the Secretary of Agriculture.' The trouble with this contention is that there is no 'statutory provision' that vests power in the Secretary of Agriculture to approve a transaction and thereby exempt a cooperative from the anti-trust laws under the circumstances of this case. While there is a 'statutory provision' vesting power in the Secretary of Agriculture to enter into agricultural marketing agreements which 'shall be deemed to be lawful' and 'not * * * be in violation of any of the antitrust laws of the United States,' no such marketing agreement is involved here.20 Sherman Act § 3 Judgment.—The complaint charged that the Association, Embassy and others had violated § 3 of the Sherman Act by engaging in a combination and conspiracy to eliminate and foreclose competition with the Association and with dealers purchasing milk from the Association. The District Court, with the consent of the parties, considered and decided this § 3 charge on the evidence offered on the § 7 Clayton Act charge. A crucial element in this charge of concerted action was the Association's purchase of Embassy's assets under a contract containing an agreement by the former owners of Embassy not to compete with the Association in the milk business in the Washington area for 10 years, and to attempt to have all former Embassy producers either join the Association or ship their milk to the Baltimore market. Also, particularly pertinent to the charge of a § 3 combination, was evidence showing a long and spirited business rivalry between the Association and its producers on the one hand and Embassy and its independent producers on the other. The Association had been 'unhappy' about Embassy's price cutting and its generally 'disruptive' competitive practices that had made Embassy a 'thorn in the side of the Association for many years.' There was also evidence emphasized by the court in its Clayton Act § 7 opinion that 'the price paid by the Association for the transfer was far in excess of the actual and intrinsic value of the property purchased.' 167 F.Supp. 799, 806. After readopting its Clayton Act § 7 findings regarding the anticompetitive motives and results of the Embassy acquisition, see 80 S.Ct. at page 854, supra, the District Court made the three following additional findings on the Sherman Act § 3 charge: (1) 'that the result of the transaction complained of was a foreclosure of competition,' (2) 'that the transaction complained of was entered into with the intent and purpose of restraining trade,'21 and (3) 'that an unreasonable restraint of trade, violative of the Sherman Act, has resulted from the acquisition of Embassy Dairy by the defendant (Association).' (168 F.Supp. 881.) On the basis of its findings and opinion the court then concluded that 'the transaction involving the acquisition of Embassy Dairy by the defendant constitutes a violation of Section 3 of the Sherman Act.' 168 F.Supp. 880, 881, 882. The facts found by the court show a classic combination or conspiracy to restrain trade, unless, as the Association contends, 'the transaction involving the acquisition of Embassy' upon which the judgment against it was based is protected against Sherman Act prosecutions by the Capper-Volstead Act's provisions that cooperatives can lawfully make 'the necessary contracts and agreements' to process, handle and market milk for their producer-members. The Embassy assets the Association acquired are useful in processing and marketing milk, and we may assume, as it is contended, that their purchase simply for business use, without more, often would be permitted and would be lawful under the Capper-Volstead Act. But even lawful contracts and business activities may help to make up a pattern of conduct unlawful under the Sherman Act.22 The contract of purchase here, viewed in the context of all the evidence and findings, was not one made merely to advance the Association's own permissible processing and marketing business; it was entered into by both parties, according to the court's findings as we understand them, because of its usefulness as a weapon to restrain and suppress competitors and competition in the Washington metropolitan area. We hold that the privilege the Capper- Volstead Act grants producers to conduct their affairs collectively does not include a privilege to combine with competitors23 so as to use a monopoly position as a lever further to suppress competition by and among independent producers and processors. Adequacy of Relief.—The Government's appeal in this case is directed in part at the relief granted it by the District Court. The judgment requires the Association to 'dispose of as a unit and as a going dairy business all (Embassy) assets * * * tangible or intangible, which it acquired on July 26, 1954, and replacements therefor,' and to do so in 'good faith' to preserve the business in 'as good condition as possible.' The District Court refused to go further and require the Association to dispose of 'all assets used' in the Embassy operation, to prohibit the Association from operating as a dealer in the Washington market for a period after divestiture, to prevent the future acquisition of distributors without prior approval of the Government, and to grant the Government general 'visitation rights' as to the Association's records and employees. The District Court was of the view that the Government would either be adequately protected as to these matters by the 'good faith' requirement or by subsequent orders of the District Court when the occasion necessitated. The formulation of decrees is largely left to the discretion of the trial court, and we see no reason to reject the judgment of the District Court that the relief it granted will be effective in undoing the violation it found in view of the fact that it also retains the cause for future orders, including the right of visitation if deemed appropriate. See Associated Press v. United States, 326 U.S. 1, 22—23, 65 S.Ct. 1416, 1425—1426, 89 L.Ed. 2013. Accordingly, the judgment of the District Court finding violations of § 7 of the Clayton Act and § 3 of the Sherman Act is affirmed, and its dismissal of the charges under § 2 of the Sherman Act is reversed and remanded for a trial. Affirmed in part, reversed and remanded in part.

364.US.296

The Report of the Commissioner heretofore designated to run, locate and mark the boundary between the States of New Mexico and Colorado, as determined by this Court's decree of April 13, 1925 (268 U. S. 108), is confirmed; and the boundary line delineated in said Report and on the accompanying maps is established and declared to be the true boundary between those States. Opinion reported: 267 U. S. 30.

Upon consideration of the Report filed June 27, 1960, by Joseph C. Thoma, Commissioner, heretofore designated to run, locate and mark the boundary between the States of New Mexico and Colorado as determined by the decree of this Court of April 13, 1925 (268 U.S. 108, 45 S.Ct. 388, 69 L.Ed. 503), showing that he has run, located and marked such boundary; And no objection or exception to such Report being presented, and the time therefor having expired; It is now adjudged, ordered and decreed as follows: (1) The said Report is in all things confirmed. (2) The boundary line delineated and set forth in said Report and on the accompanying maps is established and declared to be the true boundary between the States of New Mexico and Colorado. (3) The Clerk of this Court shall transmit to the Chief Magistrates of the States of New Mexico and Colorado and to the Secretary of the Interior copies of this decree, duly authenticated under the Seal of this Court, together with copies of said Report and of the accompanying maps. (4) As it appears that the said Commissioner has completed his work conformably to said decree, he is hereby discharged.

362.US.214

Certiorari dismissed as improvidently granted.

The writ of certiorari was improvidently granted and must be dismissed. When the case was brought here, on the meager documentation which so often is all that is presented by indigent prisoners seeking review on their own behalf, we assumed that a question involving the construction of 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, called for adjudication. After argument, it became clear that the question of construction is not appropriately presented by the record because petitioner's claim upon the merits was fully considered and decided below, and we find his challenge of that action to be so insubstantial as not to have warranted bringing the case here. Writ dismissed.

362.US.574

This Court granted certiorari to review dismissal of petitioner's application for habeas corpus, in which he claimed that his conviction in a state court violated the Due Process Clause of the Fourteenth Amendment. Before the case could be heard here, petitioner was released from imprisonment after having served his sentence less time off for good behavior. Held: The case has become moot; this Court is without jurisdiction to deal with the merits of petitioner's claim; and the writ of certiorari is dismissed for want of jurisdiction. Pp. 574-576. Reported below: 258 F. 2d 937.

This is an application for a writ of habeas corpus brought in the United States District Court for the Southern District of Texas alleging unlawful detention under a sentence of imprisonment following a trial in the state court in which petitioner was, according to his claim, denied due process of law as guaranteed by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. After hearing, the District Court dismissed the petition. The Court of Appeals for the Fifth Circuit, with one judge dissenting, affirmed the order of dismissal, 258 F.2d 937, to which opinion reference is made for the facts. A petition for certiorari to review this judgment presented so impressive a showing for the exercise of this Court's discretionary jurisdiction that the case was brought here with leave to the petitioner to proceed in forma pauperis, 359 U.S. 924, 79 S.Ct. 610, 3 L.Ed.2d 627, and his motion for the assignment of counsel was duly granted. 359 U.S. 951, 79 S.Ct. 741, 3 L.Ed.2d 759. Before the case could come to he heard here, the petitioner was released from the state prison after having served his sentence with time off for good behavior. The case has thus become moot, and the Court is without jurisdiction to deal with the merits of petitioner's claim. 'The purpose of the proceeding defined by the statute (authorizing the writ of habeas corpus to be issued) was to inquire into the legality of the detention, and the only judicial relief authorized was the discharge of the prisoner or his admission to bail.' McNally v. Hill, 293 U.S. 131, 136, 55 S.Ct. 24, 26, 79 L.Ed. 238. 'Without restraint of liberty, the writ will not issue.' Id., 293 U.S. 138, 55 S.Ct. 27. See also Johnson v. Hoy, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497.* 'It is well settled that this court will not proceed to adjudication where there is no subject-matter on which the judgment of the court can operate.' Ex parte Baez, 177 U.S. 378, 390, 20 S.Ct. 673, 677, 44 L.Ed. 813. We have applied these principles to deny the writ of certiorari for mootness on the express ground that petitioner was no longer in respondent's custody in at least three cases not relevantly different from the present one. Weber v. Squier, 315 U.S. 810, 62 S.Ct. 800, 86 L.Ed. 1209; Tornello v. Hudspeth, 318 U.S. 792, 63 S.Ct. 990, 87 L.Ed. 1158; Zimmerman v. Walker, 319 U.S. 744, 63 S.Ct. 1027, 87 L.Ed. 1700. In all these cases there was custody as the basis for habeas corpus jurisdiction until the cases reached here. In Weber, the respondent's custody ceased because the petitioner had received the benefits of the United States Parole Act, 18 U.S.C.A. § 4201 et seq. In Tornello the petitioner had been pardoned, and was no longer in the custody of anyone. In Zimmerman petitioner had been unconditionally released and was also no longer in the custody of anyone. These cases demonstrate that it is a condition upon this Court's jurisdiction to adjudicate an application for habeas corpus that the petitioner be in custody when that jurisdiction can become effective. It is precisely because a denial of a petition for certiorari without more has no significance as a ruling that an explicit statement of the reason for a denial means what it says. Accordingly, the writ of certiorari is dismissed for want of jurisdiction. Since the case has become moot before the error complained of in the judgment below could be adjudicated, the case is remanded to the Court of Appeals to vacate its judgment and to direct the District Court to vacate its order and dismiss the application. Case remanded to Court of Appeals with directions. Mr. Justice HARLAN, joined by Mr. Justice CLARK, also considers this case moot on a further ground. It appears that petitioner has outstanding against him felony convictions in a number of other States. Under Texas law any one of those convictions would carry the same consequences with respect to petitioner's exercise of civil rights in Texas (Election Code Art. 5.01) V.A.T.S., as his conviction in this case. See Harwell v. Morris, Tex.Civ.App., 143 S.W.2d 809, 812—813. This Court is as much bound by constitutional restrictions on its jurisdiction as it is by other constitutional requirements. The 'moral stigma of a judgment which no longer affects legal rights does not present a case or controversy for appellate review.' St. Pierre v. United States, 319 U.S. 41, 43, 63 S.Ct. 910, 911, 87 L.Ed. 1199.

361.US.529

In a case where double jeopardy was the sole question presented, based on separate indictments and convictions in two different United States District Courts for the same criminal conduct, the Solicitor General moved to vacate the second judgment and to dismiss the second indictment, on the ground that it is. the general policy of the Federal Government. that. several offenses arising out of a single transaction should not be made the basis of multiple prosecutions. Counsel for petitioner joined in and consented to the motion. Held: Without passing on the merits of the question of double je-opardy, the case is remanded to the Court of Appeals to vacate its judgment and to direct the District Court to vacate its judgment and dismiss the indictment. Pp. 529-531. 262 F. 2d 788, remanded with directions to vacate judgments and dismiss indictment.

Petitioner was indicted, with others, in the Eastern District of Pennsylvania for conspiring to make false statements to an agency of the United States at hearings held in Philadelphia and Baltimore under proceedings for the deportation of an alien. Petitioner was also separately indicted for suborning perjury at the Philadelphia hearings. Petitioner's co-defendants pleaded guilty to the conspiracy charged. Petitioner went to trial on both indictments, but at the close of the Government's case he changed his plea to nolo contendere to the conspiracy charge, and the Government dismissed the subornation indictment. He was fined $500 and sentenced to two months' imprisonment, which he served. Petitioner was subsequently indicted in the District of Maryland for suborning the perjury of two witnesses at the Baltimore hearings. Among the overt acts which had been relied upon in the Pennsylvania conspiracy indictment was the testimony of these two witnesses. Because of this, petitioner moved to dismiss the Maryland indictment on the ground of double jeopardy, but his motion was denied, D.C., 147 F.Supp. 791, and the conviction which resulted was affirmed by the Court of Appeals for the Fourth Circuit, 262 F.2d 788. Thereupon a petition for a writ of certiorari was filed with the double jeopardy issue as the single question presented, and certiorari was granted. 360 U.S. 908, 79 S.Ct. 1293, 3 L.Ed.2d 1259. The Government did not oppose the granting of this petition, but informed the Court that the case was under consideration by the Department of Justice to determine whether the second prosecution in the District of Maryland was consistent with the sound policy of the Department in discharging its responsibility for the control of government litigation wholly apart from the question of the legal validity of the claim of double jeopardy. In due course the Government filed this motion for an order vacating the judgment below and remanding the case to the United States District Court for the District of Maryland with directions to dismiss the indictment. It did so on the ground that it is the general policy of the Federal Government 'that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement.' The Solicitor General on behalf of the Government represents this policy as closely related to that against duplicating federal-state prosecutions, which was formally defined by the Attorney General of the United States in a memorandum to the United States Attorneys. (Department of Justice Press Release, Apr. 6, 1959.) Counsel for petitioner 'joins in and consents' to the Government's motion. The case is remanded to the Court of Appeals to vacate its judgment and to direct the District Court to vacate its judgment and to dismiss the indictment. In the interest of justice, the Court is clearly empowered thus to dispose of the matter, 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, and we do so with due regard for the settled rule that the Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. By thus disposing of the matter, we are of course not to be understood as remotely intimating in any degree an opinion on the question of double jeopardy sought to be presented by the petition for certiorari. Case remanded with directions.

364.US.517

Appeal dismissed and certiorari denied. Reported below: 336 S. W. 2d 251.

The motion to dismiss is granted and the appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for certiorari, certiorari is denied. Mr. Justice DOUGLAS is of the opinion that further consideration of the question of jurisdiction should be postponed to the hearing of the case on the merits.

364.US.339

Negro citizens sued in a Federal District Court in Alabama for a declaratory judgment that an Act of the State Legislature changing the boundaries of the City of Tuskegee is unconstitutional and for an injunction against its enforcement. They alleged that the Act alters the shape of Tuskegee from a square to an irregular 28-sided figure; that it would eliminate from the City all but four or five of its 400 Negro voters without eliminating any white voter; and that its effect was to deprive Negroes of their right to vote in Tuskegee elections on account of their race. The District Court dismissed the complaint, on the ground that it had no authority to declare the Act invalid or to change any boundaries of municipal corporations fixed by the State Legislature. Held: It erred in doing so, since the allegations, if proven, would establish that the inevitable effect of the Act would be to deprive Negroes of their right to vote on account of their race, contrary to the Fifteenth Amendment. Pp. 340-348. (a) Even the broad power of a State to fix the boundaries of its municipalities is limited by the Fifteenth Amendment, which forbids a State to deprive any citizen of the right to vote because of his race. Hunter v. Pittsburgh, 207 U. S.1 61, and related cases distinguished. Pp. 342-345. (b) A state statute which is alleged to have the inevitable effect of depriving Negroes of their right to vote in Tuskegee because of their race is not immune to attack simply because the mechanism employed by the Legislature is a "political" redefinition of municipal boundaries. Colegrove v. Green, 328 U. S. 549, distinguished. Pp. 346-348. 270 F. 2d 594, reversed.

This litigation challenges the validity, under the United States Constitution, of Local Act No. 140, passed by the Legislature of Alabama in 1957, redefining the boundaries of the City of Tuskegee. Petitioners, Negro citizens of Alabama who were, at the time of this redistricting measure, residents of the City of Tuskegee, brought an action in the United States District Court for the Middle District of Alabama for a declaratory judgment that Act 140 is unconstitutional, and for an injunction to restrain the Mayor and officers of Tuskegee and the officials of Macon County, Alabama, from enforcing the Act against them and other Negroes similarly situated. Petitioners' claim is that enforcement of the statute, which alters the shape of Tuskegee from a square to an uncouth twenty-eight-sided figure, will constitute a discrimination against them in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution and will deny them the right to vote in definance of the Fifteenth Amendment. The respondents moved for dismissal of the action for failure to state a claim upon which relief could be granted and for lack of jurisdiction of the District Court. The court granted the motion, stating, 'This Court has no control over, no supervision over, and no power to change any boundaries of municipal corporations fixed by a duly convened and elected legislative body, acting for the people in the State of Alabama.' 167 F.Supp. 405, 410. On appeal, the Court of Appeals for the Fifth Circuit, affirmed the judgment, one judge dissenting. 270 F.2d 594. We brought the case here since serious questions were raised concerning the power of a State over its municipalities in relation to the Fourteenth and Fifteenth Amendments. 362 U.S. 916, 80 S.Ct. 669, 4 L.Ed.2d 737. At this stage of the litigation we are not concerned with the truth of the allegations, that is, the ability of petitioners to sustain their allegations by proof. The sole question is whether the allegations entitle them to make good on their claim that they are being denied rights under the United States Constitution. The complaint, charging that Act 140 is a device to disenfranchise Negro citizens, alleges the following facts: Prior to Act 140 the City of Tuskegee was square in shape; the Act transformed it into a strangely irregular twenty-eight-sided figure as indicated in the diagram appended to this opinion. The essential inevitable effect of this redefinition of Tuskegee's boundaries is to remove from the city all save four or five of its 400 Negro voters while not removing a single white voter or resident. The result of the Act is to deprive the Negro petitioners discriminatorily of the benefits of residence in Tuskegee, including, inter alia, the right to vote in municipal elections. These allegations, if proven, would abundantly establish that Act 140 was not an ordinary geographic redistricting measure even within familiar abuses of gerrymandering. If these allegations upon a trial remained uncontradicted or unqualified, the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote. It is difficult to appreciate what stands in the way of adjudging a statute having this inevitable effect invalid in light of the principles by which this Court must judge, and uniformly has judged, statutes that, howsoever speciously defined, obviously discriminate against colored citizens. 'The (Fifteenth) Amendment nullifies sophisticated as well as simple-minded modes of discrimination.' Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281. The complaint amply alleges a claim of racial discrimination. Against this claim the respondents have never suggested, either in their brief or in oral argument, any countervailing municipal function which Act 140 is designed to serve. The respondents invoke generalities expressing the State's unrestricted power unlimited, that is, by the United States Constitution—to establish, destroy, or reorganize by contraction or expansion its political subdivisions, to wit, cities, counties, and other local units. We freely recognize the breadth and importance of this aspect of the State's political power. To exalt this power into an absolute is to misconceive the reach and rule of this Court's decisions in the leading case of Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151, and related cases relied upon by respondents. The Hunter case involved a claim by citizens of Allegheny, Pennsylvania, that the General Assembly of that State could not direct a consolidation of their city and Pittsburgh over the objection of a majority of the Allegheny voters. It was alleged that while Allegheny already had made numerous civic improvements, Pittsburgh was only then planning to undertake such improvements, and that the annexation would therefore greatly increase the tax burden on Allegheny residents. All that the case held was (1) that there is no implied contract between a city and its residents that their taxes will be spent solely for the benefit of that city, and (2) that a citizen of one municipality is not deprived of property without due process of law by being subjected to increased tax burdens as a result of the consolidation of his city with another. Related cases, upon which the respondents also rely, such as City of Trenton v. State of New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937; City of Pawhuska v. Pawhuska Oil & Gas Co., 250 U.S. 394, 39 S.Ct. 526, 63 L.Ed. 1054, and Laramie County Com'rs v. Albany County Com'rs, 92 U.S. 307, 23 L.Ed. 552, are far off the mark. They are authority only for the principle that no constitutionally protected contractual obligation arises between a State and its subordinate governmental entities solely as a result of their relationship. In short, the cases that have come before this Court regarding legislation by States dealing with their political subdivisions fall into two classes: (1) those in which it is claimed that the State, by virtue of the prohibition against impairment of the obligation of contract (Art. I, § 10) and of the Due Process Clause of the Fourteenth Amendment, is without power to extinguish, or alter the boundaries of, an existing municipality; and (2) in which it is claimed that the State has no power to change the identity of a municipality whereby citizens of a pre-existing municipality suffer serious economic disadvantage. Neither of these claims is supported by such a specific limitation upon State power as confines the States under the Fifteenth Amendment. As to the first category, it is obvious that the creation of municipalities—clearly a political act—does not come within the conception of a contract under the Dartmouth College case. 4 Wheat. 518, 4 L.Ed. 629. As to the second, if one principle clearly emerges from the numerous decisions of this Court dealing with taxation it is that the Due Process Clause affords no immunity against mere inequalities in tax burdens, nor does it afford protection against their increase as an indirect consequence of a State's exercise of its political powers. Particularly in dealing with claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts. Thus, a correct reading of the seemingly unconfined dicta of Hunter and kindred cases is not that the State has plenary power to manipulate in every conceivable way, for every conceivable purpose, the affairs of its municipal corporations, but rather that the State's authority is unrestrained by the particular prohibitions of the Constitution considered in those cases. The Hunter opinion itself intimates that a state legislature may not be omnipotent even as to the disposition of some types of property owned by municipal corporations, 207 U.S. at pages 178 181, 28 S.Ct. at pages 46—47. Further, other cases in this Court have refused to allow a State to abolish a municipality, or alter its boundaries, or merge it with another city, without preserving to the creditors of the old city some effective recourse for the collection of debts owed them. Shapleigh v. City of San Angelo, 167 U.S. 646, 17 S.Ct. 957, 42 L.Ed. 310; Port of Mobile v. United States ex rel. Watson, 116 U.S. 289, 6 S.Ct. 398, 29 L.Ed. 620; Town of Mount Pleasant v. Beckwith, 100 U.S. 514, 25 L.Ed. 699; Broughton v. City of Pensacola, 93 U.S. 266, 23 L.Ed. 896. For example, in Port of Mobile v. United States ex rel. Watson the Court said: 'Where the resource for the payment of the bonds of a municipal corporation is the power of taxation existing when the bonds were issued, any law which withdraws or limits the taxing power, and leaves no adequate means for the payment of the bonds, is forbidden by the constitution of the United States, and is null and void.' Port of Mobile v. United States ex rel. Watson, supra, 116 U.S. at page 305, 6 S.Ct. at page 405. This line of authority conclusively shows that the Court has never acknowledged that the States have power to do as they will with municipal corporations regardless of consequences. Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution. The observation in Graham v. Folsom, 200 U.S. 248, 253, 26 S.Ct. 245, 247, 50 L.Ed. 464, becomes relevant: 'The power of the state to alter or destroy its corporations is not greater than the power of the state to repeal its legislation.' In that case, which involved the attempt by state officials to evade the collection of taxes to discharge the obligations of an extinguished township, Mr. Justice McKenna, writing for the Court, went on to point out, with reference to the Mount Pleasant and Mobile cases: 'It was argued in those cases, as it is argued in this, that such alteration or destruction of the subordinate governmental divisions was a proper exercise of legislative power, to which creditors had to submit. The argument did not prevail. It was answered, as we now answer it, that such power, extensive though it is, is met and overcome by the provision of the Constitution of the United States which forbids a state from passing any law impairing the obligation of contracts. * * *' 200 U.S. at pages 253—254, 26 S.Ct. at page 247. If all this is so in regard to the constitutional protection of contracts, it should be equally true that, to paraphrase, such power, extensive though it is, is met and overcome by the Fifteenth Amendment to the Constitution of the United States, which forbids a State from passing any law which deprives a citizen of his vote because of his race. The opposite conclusion, urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions. 'It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.' Frost & Frost Trucking Co. v. Railroad Commission of California, 271 U.S. 583, 594, 46 S.Ct. 605, 607, 70 L.Ed. 1101. The respondents find another barrier to the trial of this case in Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432. In that case the Court passed on an Illinois law governing the arrangement of congressional districts within that State. The complaint rested upon the disparity of population between the different districts which rendered the effectiveness of each individual's vote in some districts far less than in others. This disparity came to pass solely through shifts in population between 1901, when Illinois organized its congressional districts, and 1946, when the complaint was lodged. During this entire period elections were held under the districting scheme devised in 1901. The Court affirmed the dismissal of the complaint on the ground that it presented a subject not meet for adjudication.* The decisive facts in this case, which at this stage must be taken as proved, are wholly different from the considerations found controlling in Colegrove. That case involved a complaint of discriminatory apportionment of congressional districts. The appellants in Colegrove complained only of a dilution of the strength of their votes as a result of legislative inaction over a course of many years. The petitioners here complain that affirmative legislative action deprives them of their votes and the consequent advantages that the ballot affords. When a legislature thus singles out a readily isolated segment of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment. In no case involving unequal weight in voting distribution that has come before the Court did the decision sanction a differentiation on racial lines whereby approval was given to unequivocal withdrawal of the vote solely from colored citizens. Apart from all else, these considerations lift this controversy out of the so-called 'political' arena and into the conventional sphere of constitutional litigation. In sum, as Mr. Justice Holmes remarked, when dealing with a related situation, in Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759, 'Of course the petition concerns political action,' but 'The objection that the subject-matter of the suit is political is little more than a play upon words.' A statute which is alleged to have worked unconstitutional deprivations of petitioners' rights is not immune to attack simply because the mechanism employed by the legislature is a redefinition of municipal boundaries. According to the allegations here made, the Alabama Legislature has not merely redrawn the Tuskegee city limits with incidental inconvenience to the petitioners; it is more accurate to say that it has deprived the petitioners of the municipal franchise and consequent rights and to that end it has incidentally changed the city's boundaries. While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights. That was no Colegrove v. Green. When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right. This principle has had many applications. It has long been recognized in cases which have prohibited a State from exploiting a power acknowledged to be absolute in an isolated context to justify the imposition of an 'unconstitutional condition.' What the Court has said in those cases is equally applicable here, viz., that 'Acts generally lawful may become unlawful when done to accomplish an unlawful end, United States v. Reading Co., 226 U.S. 324, 357, 33 S.Ct. 90, 57 L.Ed. 243, and a constitutional power cannot be used by way of condition to attain an unconstitutional result.' Western Union Telegraph Co. v. Foster, 247 U.S. 105, 114, 38 S.Ct. 438, 439, 62 L.Ed. 1006. The petitioners are entitled to prove their allegations at trial. For these reasons, the principal conclusions of the District Court and the Court of Appeals are clearly erroneous and the decision below must be reversed. Reversed. Mr. Justice DOUGLAS, while joining the opinion of the Court, adheres to the dissents in Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, and South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834.

361.US.516

Petitioners, custodians of the records of local branches of the National Association for the Advancement of Colored People, were tried, convicted and fined for violating identical occupational license tax ordinances of two Arkansas cities by refusing to furnish the city officials with lists of the names of the members of the local branches of the Association. Held: On the record in this case, compulsory disclosure of the membership lists would work unjustified interference with the members' freedom of association, which is protected by the Due Process Clause of the Fourteenth Amendment from invasion by the States; and the convictions are reversed. Pp. 517-527. (a) It is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the Fourteenth Amendment from invasion by the States. Pp. 522-523. (b) On the record in this case, it sufficiently appears that compulsory disclosure of the membership lists of the local branches of the Association would work a significant interference with the freedom of association of their members. Pp. 523-524. (c) The cities here, as instrumentalities of the State, have not demonstrated so cogent an interest in obtaining and making. public the membership lists of these organizations as to justify the substantial abridgment of associational freedom which such disclosures would effect, since the record discloses no relevant correlation between the power of the municipalities to impose occupational license taxes and the compulsory disclosure and publication of these membership lists. Pp. 524-527. 229 Ark. 819, 319 S. W. 2d 37, reversed.

Each of the petitioners has been convicted of violating an identical ordinance of an Arkansas municipality by refusing a demand to furnish city officials with a list of the names of the members of a local branch of the National Association for the Advancement of Colored People. The question for decision is whether these convictions can stand under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Municipalities in Arkansas are authorized by the State to levy a license tax on any person, firm, individual, or corporation engaging in any 'trade, business, profession, vocation or calling' within their corporate limits.1 Pursuant to this authority, the City of Little Rock and the City of North Little Rock have for some years imposed annual license taxes on a broad variety of businesses, occupations, and professions.2 Charitable organizations which engage in the activities affected are relieved from paying the taxes. In 1957 the two cities added identical amendments to their occupation license tax ordinances. These amendments require that any organization operating within the municipality in question must supply to the City Clerk, upon request and within a specified time, (1) the official name of the organization; (2) its headquarters or regular meeting place; (3) the names of the officers, agents, servants, employees, or representatives, and their salaries; (4) the purpose of the organization; (5) a statement as to dues, assessments, and contributions paid, by whom and when paid, together with a statement reflecting the disposition of the funds and the total net income; (6) an affidavit stating whether the organization is subordinate to a parent organization, and if so, the latter's name. The ordinances expressly provide that all information furnished shall be public and subject to the inspection of any interested party at all reasonable business hours.3 Petitioner Bates was the custodian of the records of the local branch of the National Association for the Advancement of Colored People in Little Rock, and petitioner Williams was the custodian of the records of the North Little Rock branch. These local organizations supplied the two municipalities with all the information required by the ordinances, except that demanded under § 2E of each ordinance which would have required disclosure of the names of the organizations' members and contributors. Instead of furnishing the detailed breakdown required by this section of the North Little Rock ordinance, the petitioner Williams wrote to the City Clerk as follows: 'E. The financial statement is as follows: January 1, 1957 to December 4, 1957. contributors $252.00. (to National Office)

364.US.454

For refusing to leave the section reserved for white people in a restaurant in a bus terminal, petitioner, a Negro interstate bus passenger, was convicted in Virginia courts of violating a state statute making it a misdemeanor for any person "without authority of law" to remain upon the premises of another after having been forbidden to do so. On appeal, he contended that his conviction violated the Interstate Commerce Act and the Equal Protection, Due Process and Commerce Clauses of the Federal Constitution; but his conviction was sustained by the State Supreme Court. On petition for certiorari to this Court, he raised only the constitutional questions. Held: 1. Notwithstanding the fact that the petition for certiorari presented only the constitutional questions, this Court will consider the statutory issue, which involves essentially the same problem-racial discrimination in interstate commerce. P. 457. 2. Under § 216 (d) of the Interstate Commerce Act, which forbids' avv interstate common carrier by motor vehicle to subject any person to uinjust discrimination, petitioner had a federal right to remain in the white portion of the restaurant, he was there "under authority of law," and it was -error to affirm his conviction. Pp. 457-463. (a) When a bus carrier has volunteered to make terminal and restaurant facilities and services available to its interstate passengers as a regular part of their transportation, and the terminal and restaurant have acquiesced and cooperated in this undertaking, the terminal and restaurant must perform these services without* discriminations prohibited by the Act. Pp. 457-461. (b) Although -the courts below made no 'findings of fact, the evidence in this case shows such a situation here. Pp. 461-463. Reversed.

The basic question presented in this case is whether an interstate bus passenger is denied a federal statutory or constitutional right when a restaurant in a bus terminal used by the carrier along its route discriminates in serving food to the passenger solely because of his color. Petitioner, a Negro law student, bought a Trailways bus ticket from Washington, D.C., to Montgomery, Alabama. He boarded a bus at 8 p.m. which arrived at Richmond, Virginia, about 10:40 p.m. When the bus pulled up at the Richmond 'Trailways Bus Terminal' the bus driver announced a forty-minute stopover there. Petitioner got off the bus and went into the bus terminal to get something to eat. In the station he found a restaurant in which one part was used to serve white people and one to serve Negroes. Disregarding this division, petitioner sat down on a stool in the white section. A waitress asked him to move over to the other section where there were 'facilities' to serve colored people. Petitioner told her he was an interstate bus passenger, refused to move and ordered a sandwich and tea. The waitress then brought the Assistant Manager, who 'instructed' petitioner to 'leave the white portion of the restaurant and advised him he could be served in the colored portion.' Upon petitioner's refusal to leave an officer was called and petitioner was arrested and later tried, convicted and fined ten dollars in the Police Justice's Court of Richmond on a charge that he 'Unlawfully did remain on the premises of the Bus Terminal Restaurant of Richmond, Inc. after having been forbidden to do so' by the Assistant Manager. (Emphasis supplied.) The charge was based on § 18—225 of the Code of Virginia of 1950, as amended (1958), which provides in part: 'If any person shall without authority of law go upon or remain upon the lands or premises of another, after having been forbidden to do so by the owner, lessee, custodian or other person lawfully in charge of such land, * * * he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one hundred dollars or by confinement in jail not exceeding thirty days, or by both such fine and imprisonment.' (Emphasis supplied.) Petitioner appealed his conviction to the Hustings Court of Richmond, where, as in the Police Court, he admitted that he had remained in the white portion of the Terminal Restaurant although ordered not to do so. His defense in both courts was that he had a federal right as an interstate passenger of Trailways to be served without discrimination by this restaurant used by the bus carrier for the accommodation of its interstate passengers. On this basis petitioner claimed he was on the restaurant premises lawfully, not 'unlawfully' as charged, and that he remained there with, not 'without authority of law.' His federal claim to this effect was spelled out in a motion to dismiss the warrant in Hustings Court, which was overruled both before and after the evidence was heard. Pointing out that the restaurant was an integral part of the bus service for interstate passengers such as petitioner, and asserting that refusal to serve him was a discrimination based on color, the motion to dismiss charged that application of the Virginia law to petitioner violated the Interstate Commerce Act and the Equal Protection, Due Process and Commerce Clauses of the Federal Constitution. On appeal the Virginia Supreme Court held that the conviction was 'plainly right' and affirmed without opinion, thereby rejecting petitioner's assignments of error based on the same grounds of discrimination set out in his motion to dismiss in Hustings Court but not specifically charging that the discrimination violated the Interstate Commerce Act. We think, however, that the claims of discrimination previously made under the Act are sufficiently closely related to the assignments that were made to be considered within the scope of the issues presented to the State Supreme Court. We granted certiorari because of the serious federal questions raised concerning discrimination based on color. 361 U.S. 958, 80 S.Ct. 584, 4 L.Ed.2d 541. The petition for certiorari we granted presented only two questions: first, whether the conviction of petitioner is invalid as a burden on commerce in violation of Art. I, § 8, cl. 3 of the Constitution; and second, whether the conviction violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Ordinarily we limit our review to the questions presented in an application for certiorari. We think there are persuasive reasons, however, why this case should be decided, if it can, on the Interstate Commerce Act contention raised in the Virginia courts. Discrimination because of color is the core of the two broad constitutional questions presented to us by petitioner, just as it is the core of the Interstate Commerce Act question presented to the Virginia courts. Under these circumstances we think it appropriate not to reach the constitutional questions but to proceed at once to the statutory issue. The Interstate Commerce Act, as we have said, uses language of the broadest type to bar discriminations of all kinds. United States v. Baltimore & Ohio R. Co., 333 U.S. 169, 175, 68 S.Ct. 494, 497, 92 L.Ed. 618, and cases cited. We have held that the Act forbids railroad dining cars to discriminate in service to passengers on account of their color. Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302; see also Mitchell v. United States, 313 U.S. 80, 97, 61 S.Ct. 873, 878, 85 L.Ed. 1201. Section 216(d) of Part II of the Interstate Commerce Act, 49 U.S.C. § 316(d), 49 U.S.C.A. § 316(d), which applies to motor carriers, provides in part: 'It shall be unlawful for any common carrier by motor vehicle engaged in interstate or foreign commerce to make, give, or cause any undue or unreasonable preference or advantage to any particular person * * * in any respect whatsoever; or to subject any particular person * * * to any unjust discrimination or any unjust or unreasonable prejudice or disadvantage in any respect whatsoever * * *.' So far as relevant to our problem, the provisions of § 216(d) quoted are the same as those in § 3(1) of the Act, 49 U.S.C. § 3(1), 49 U.S.C.A. § 3(1), except that the latter refers to railroads as defined in Part I of the Act instead of motor carriers as defined in Part II. Section 3(1) was the basis for this Court's holding in Henderson v. United States, supra, that it was an 'undue or unreasonable prejudice' under that section for a railroad to divide its dining car by curtains, partitions and signs in order to separate passengers according to race. The Court said that under § 3(1) '(w)here a dining car is available to passengers holding tickets entitling them to use it, each such passenger is equally entitled to its facilities in accordance with reasonable regulations.' Id., 339 U.S. at page 824, 70 S.Ct. at page 847. The Henderson case largely rested on Mitchell v. United States, supra, which pointed out that while the railroads might not be reguired by law to furnish dining car facilities, yet if they did, substantial equality of treatment of persons traveling under like conditions could not be refused consistently with § 3(1). It is also of relevance that both cases upset Interstate Commerce Commission holdings, the Court stating in Mitchell that since the 'discrimination shown was palpably unjust and forbidden by the Act' no room was left for administrative or expert judgment with reference to practical difficulties. Id., 313 U.S. at page 97, 61 S.Ct. at page 878. It follows from the Mitchell and Henderson cases as a matter of course that should buses in transit decide to supply dining service, discrimination of the kind shown here would violate § 216(d). Cf. Williams v. Carolina Coach Co., D.C., 111 F.Supp. 329, affirmed 4 Cir., 207 F.2d 408, and Keys v. Carolina Coach Co., 64 M.C.C. 769. Although this Court has not decided whether the same result would follow from a similar discrimination in service by a restaurant in a railroad or bus terminal, we have no doubt that the reasoning underlying the Mitchell and Henderson cases would compel the same decision as to the unlawfulness of discrimination in transportation services against interstate passengers in terminals and terminal restaurants owned or operated or controlled by interstate carriers. This is true as to railroad terminals because they are expressly made carriers by § 1(3)(a) of the Act,1 49 U.S.C. § 1(3)(a), 49 U.S.C.A. § 1(3)(a), and as to bus terminals because § 203(a)(19) of the Act, 49 U.S.C. § 303(a)(19), 49 U.S.C.A. § 303(a)(19), specifically includes interstate transportation facilities and property operated or controlled by a motor carrier within the definition of the 'services' and 'transportation' to which the motor carrier provisions of the Act apply.2 Respondent correctly points out, however, that whatever may be the facts, the evidence in this record does not show that the bus company owns or actively operates or directly controls the bus terminal or the restaurant in it. But the fact that § 203(a)(19) says that the protections of the motor carrier provisions of the Act extend to 'include' facilities so operated or controlled by no means should be interpreted to exempt motor carriers from their statutory duty under § 216(d) not to discriminate should they choose to provide their interstate passengers with services that are an integral part of transportation through the use of facilities they neither own, control nor operate. The protections afforded by the Act against discriminatory transportation services are not so narrowly limited. We have held that a railroad cannot escape its statutory duty to treat its shippers alike either by use of facilities it does not own or by contractual arrangement with the owner of those facilities. United States v. Baltimore & Ohio R. Co., supra. And so here, without regard to contracts, if the bus carrier has volunteered to make terminal and restaurant facilities and services available to its interstate passengers as a regular part of their transportation, and the terminal and restaurant have acquiesced and cooperated in this undertaking, the terminal and restaurant must perform these services without discriminations prohibited by the Act. In the performance of these services under such conditions the terminal and restaurant stand in the place of the bus company in the performance of its transportation obligations. Cf. Derrington v. Plummer, 240 F.2d 922, 925—926, certiorari denied, 353 U.S. 924, 77 S.Ct. 680, 1 L.Ed.2d 719. Although the courts below made no findings of fact, we think the evidence in this case shows such a relationship and situation here. The manager of the restaurant testified that it was not affiliated in any way with the Trailways Bus Company and that the bus company had no control over the operation of the restaurant, but that while the restaurant had 'quite a bit of business' from local people, it was primarily or partly for the service of the passengers on the Trailways bus. This last statement was perhaps much of an understatement, as shown by the lease agreement executed in writing and signed both by the 'Trailways Bus Terminal, Inc.,' as lessor, and the 'Bus Terminal Restaurant of Richmond, Inc.,' as lessee. The first part of the document showed that Trailways Terminal was then constructing a 'bus station' with built-in facilities 'for the operation of a restaurant, soda fountain, and news stand.' Terminal covenanted to lease this space to Restaurant for its use; to grant Restaurant the exclusive right to sell foods and other things usually sold in restaurants, newsstands, soda fountains and lunch counters; to keep the terminal building in good repair and to furnish certain utilities. Restaurant on its part agreed to use its space for the sale of commodities agreed on at prices that are 'just and reasonable'; to sell no commodities not usually sold or installed in a bus terminal concession without Terminal's permission; to discontinue the sale of any commodity objectionable to Terminal; to buy, maintain, and replace equipment subject to Terminal's approval in writing as to its quality; to make alterations and additions only after Terminal's written consent and approval; to make no 'sales on buses operating in and out said bus station' but only 'through the windows of said buses'; to keep its employees neat and clean; to perform no terminal service other than that pertaining to the operation of its restaurant as agreed on; and that neither Restaurant nor its employees were to 'sell transportation of any kind or give information pertaining to schedules, rates or transportation matters, but shall refer all such inquiries to the proper agents of' Terminal. In short, as Terminal and Restaurant agreed, 'the operation of the restaurant and the said stands shall be in keeping with the character of service maintained in an up-to-date, modern bus terminal.' All of these things show that this terminal building, with its grounds, constituted one project for a single purpose, and that was to serve passengers of one or more bus companies certainly Trailways' passengers. The restaurant area was specifically designed and built into the structure from the beginning to fill the needs of bus passengers in this 'up-to-date, modern bus terminal.' Whoever may have had technical title or immediate control of the details of the various activities in the terminal, such as waiting-room seating, furnishing of schedule information, ticket sales, and restaurant service, they were all geared to the service of bus companies and their passengers, even though local people who might happen to come into the terminal or its restaurant might also be accommodated. Thus we have a well-coordinated and smoothly functioning plan for continuous cooperative transportation services between the terminal, the restaurant and buses like Trailways that made stopovers there. All of this evidence plus Trailways' use on this occasion shows that Trailways was not utilizing the terminal and restaurant services merely on a sporadic or occasional basis. This bus terminal plainly was just as essential and necessary, and as available for that matter, to passengers and carriers like Trailways that used it, as though such carriers had legal title and complete control over all of its activities.3 Interstate passengers have to eat, and the very terms of the lease of the built-in restaurant space in this terminal constitute a recognition of the essential need of interstate passengers to be able to get food conveniently on their journey and an undertaking by the restaurant to fulfill that need. Such passengers in transit on a paid interstate Trailways journey had a right to expect that this essential4 transportation food service voluntarily provided for them under such circumstances would be rendered without discrimination prohibited by the Interstate Commerce Act. Under the circumstances of this case, therefore, petitioner had a federal right to remain in the white portion of the restaurant. He was there under 'authority of law'—the Interstate Commerce Act—and it was error for the Supreme Court of Virginia to affirm his conviction. Because of some of the arguments made here it is necessary to say a word about what we are not deciding. We are not holding that every time a bus stops at a wholly independent roadside restaurant the Interstate Commerce Act requires that restaurant service be supplied in harmony with the provisions of that Act. We decide only this case, on its facts, where circumstances show that the terminal and restaurant operate as an integral part of the bus carrier's transportation service for interstate passengers. Under such circumstances, an interstate passenger need not inquire into documents of title or contractual arrangements in order to determine whether he has a right to be served without discrimination. The judgment of the Supreme Court of Virginia is reversed and the cause is remanded to that Court for proceedings not inconsistent with this opinion. Reversed and remanded.

364.US.477

Certiorari granted; judgment vacated; and cause remanded to Court of Appeals for a hearing of the appeal. Reported below: 278 F. 2d 214.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. In light of the circumstances pointed out by the Government surrounding the alleged inability of the petitioner to secure the services of his own handwriting expert, the error which occurred in the 'Agreed Statement of the Case' and which was repeated by the Government in its brief and the Court of Appeals in its opinion, the failure to subpoena witnesses with respect to petitioner's alibi, and the dispute which arose with respect to representation of petitioner by his appointed counsel on appeal, the judgment is vacated and the cause is remanded to the Court of Appeals for a hearing of the appeal.

364.US.506

Appeal dismissed and certiorari denied. Reported below: 147 Conn. 153, 157 A. 2d 914.

The motion to dismiss is granted and the appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.

364.US.177

Appellants and other Negroes obtained from a Federal District Court an injunction against the operation on a racially discriminatory basis of a golf course owned by a North Carolina City but leased and operated by a club. Appellants had previously been charged with, and were subsequently tried in a-s tate court for, violating a state criminal trespass statute by persisting in playing on the course after having been denied- permission to do so and after having been ordered to leave. The jury was clearly instructed that appellants could not be found guilty if they were excluded because of their race; but they were convicted. At this trial, the unpublished findings and judgment of the Federal Court were offered in evidence but were excluded, Appellants omitted these facts from the record on appeal to -the State Supreme Court, wherein they contended that, notwithstanding the jury's verdict, the Supremacy Clause and the Fourteenth Amendment required a holding'that the findings and judgment of the Federal Court conelusively established that the criminal trespass statute was used to enforce a practice of racial discrimination by a state agency. The State Supreme Court declined to rule on that contention on the ground that, under state law, the findings and judgment of the Federal Court were not before it,.and ita,f firmed the convictions. Held: An appeal to this Court is dismissed and certiorari is denied for want of a substantial federal question, since the judgment of the State Supreme Court was independently and adequately supported on state procedural. grounds. Pp. 178-196. (a) Even if the judgment and findings of the Federal Court were offered in evidence and excluded by the trill judge, these facts did ,not appear in the record filed by appellants in the State Supreme Court and, therefore, were not properly cognizable by that Court under state praatice. Pp. 185-187. (b) In declining to go outside the record in order to ascertain the true facts, the State Supreme Court did not discriminate against appellants; it acted in accordance with a practice which it had followed consistently for many years in.c onsidering appeals in criminal cases. Pp. 187-192. (c) The Federal Court's findings and judgment in the civil case were not properly brought before the state courts by appellants' motion to quash at the outset of the trial, which alleged the effect of the Federal Court's proceedings and requested leave to offer the record of that Court in evidence in support of the motion, since the settled state practice does not permit consideration of extraneous evidence in passing upon such a motion. Pp. 192-193. (d) Under established state practice, the Federal Court's findings and judgment in the civil case were not properly brought before the state courts by appellants' motion at the end of the trial to set aside the verdict. Pp. 193-194. (e) The State Supreme Court did not arbitrarily deny appellants an opportunity to present their federal claim. Pp. 194-195. 248 N. C. 485, 103 S. E. 2d 846, appeal dismissed.

The appellants were convicted of violating a North Carolina criminal trespass statute,1 and their convictions were upheld by the Supreme Court of North Carolina, 248 N.C. 485, 103 S.E.2d 846. This appeal, grounded on 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2),2 attacks the constitutional validity of the statute as applied in this case. Because of doubt as to whether any substantial federal question was presented to or decided by the state courts, we postponed further consideration of the question of jurisdiction until the hearing of the case on the merits. 358 U.S. 925, 79 S.Ct. 312, 3 L.Ed.2d 299; 359 U.S. 951, 79 S.Ct. 737, 3 L.Ed.2d 759. For reasons to be stated, we have concluded that the appeal must be dismissed.3 There is no dispute as to the basic circumstances which led to the prosecution and ultimate conviction of the appellants. In December, 1955, Gillespie Park Golf Club, Inc., operated an 18-hole golf course on land which it leased from the City of Greensboro, North Carolina, and the Board of Trustees of the Greensboro City Administrative Unit. The bylaws of the lessee limited the use of the golf course to its 'members' and persons in certain other specifically restricted categories.4 On December 7, 1955, the appellants, who are Negroes, entered the club's golf shop and requested permission to play on the course. Their request was refused. Nevertheless, after placing some money on a table in the golf shop, the appellants proceeded to the course and teed off. After they had played several holes the manager of the golf course ordered them to leave. They refused. The manager then summoned a deputy sheriff, and, after the appellants were again ordered to leave the course and they had again refused, they were arrested upon warrants sworn to by the manager. The appellants were tried and convicted of violating the state criminal trespass statute. Pending their appeal to the Supreme Court of North Carolina they and others commenced an action against the City of Greensboro, the Greensboro Board of Education, and the Gillespie Park Golf Club, Inc., in the Federal District Court for the Middle District of North Carolina, asking for a declaratory judgment and an injunction forbidding the defendants from operating the golf course on a racially discriminatory basis. The federal court granted the injunction. Simkins v. City of Greensboro, D.C., 149 F.Supp. 562. Its judgment was affirmed by the Court of Appeals for the Fourth Circuit on June 28, 1957. City of Greensboro v. Simkins, 246 F.2d 425. On the same date the Supreme Court of North Carolina, acting on the appeal from the criminal convictions in the state court, held that there had been a fatal variance in amendments to the warrants under which the appellants had been tried, and arrested the judgments against them. State v. Cooke, 246 N.C. 518, 98 S.E.2d 885. The appellants were again tried de novo in the Superior Court of Guilford County, North Carolina, for violating the state criminal trespass statute. At the outset they made a motion to quash, which was denied. The State presented evidence as to what had happened on the golf course on December 7, 1955. At the conclusion of the evidence the trial judge instructed the jury explicitly and at length that the defendants could not be convicted if they had been excluded from the golf course because of their race. Specifically, the trial judge charged the jury that '* * * the law would not permit the City and, therefore, would not permit its lessee, the Gillespie Park Golf Club, Inc., to discriminate against any citizen of Greensboro in the maintenance and operation and use of a golf course. It could not exclude either defendant because of his race or for any other reason applicable to them alone; that is to say, they were entitled to the same rights to use the golf course as any other citizen of Greensboro would be provided they complied with the reasonable rules and regulations for the operation and maintenance and use of the golf course. They would not be required to comply with any unreasonable rules and regulations for the operation and maintenance and use of the golf course.'5 The jury returned a verdict of guilty. A motion to set aside the verdict was denied. The Supreme Court of North Carolina affirmed the convictions. In doing so the court recognized that '(s)ince the operator of the golf club was charged with making a public or semipublic use of the property, it could not deny the use of the property to citizens simply because they were Negroes. * * * Since the decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, separation of the races in the use of public property cannot be required.' 248 N.C., at page 491, 103 S.E.2d 850—851. The court quoted with approval the trial judge's instructions to the jury on this aspect of the case. It is from this judgment of the Supreme Court of North Carolina that the present appeal was taken. The appellants contend that the Supremacy Clause, U.S.Const. art. 6 and the Fourteenth Amendment required the North Carolina Court to hold that the findings of fact and judgment of the federal court in the civil case of Simkins v. City of Greensboro, D.C., 149 F.Supp. 562, conclusively established, contrary to the verdict of the jury in this case, that the state statute was used here to enforce a practice of racial discrimination by a state agency. The Supreme Court of North Carolina took cognizance of the federal court's published opinion in the Simkins case and commented with respect to it: 'Examining the opinion, it appears that ten people, six of whom are defendants in this action, sought injunctive relief on the assertion that Negroes were discriminated against and were not permitted to play on what is probably the property involved in this case. We do not know what evidence plaintiffs produced in that action. It is, however, apparent from the opinion that much evidence was presented to Judge Hayes (in the Federal District Court) which was not before the Superior Court when defendants were tried. It would appear from the opinion that the entry involved in this case was one incident on which plaintiffs there relied to support their assertion of unlawful discrimination, but it is manifest from the opinion that that was not all of the evidence which Judge Hayes had. We are left in the dark as to other incidents happening prior or subsequent to the conduct here complained of, which might tend to support the assertion of unlawful discrimination. On the facts presented to him, Judge Hayes issued an order enjoining racial discrimination in the use of the golf course. Presumably that order has and is being complied with. No assertion is here made to the contrary.' 248 N.C., at page 493, 103 S.E.2d at page 852. The North Carolina court did not decide, however, whether it was bound under the Constitution to give to the federal court's unpublished findings and judgment in the prior civil action the conclusive effect urged by the appellants in the present criminal case, because it held that as a matter of state law the findings and judgment were not before it.6 It is settled that a state court may not avoid deciding federal questions and thus defeat the jurisdiction of this Court by putting forward nonfederal grounds of decision which are without any fair or substantial support. N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 455, 78 S.Ct. 1163, 1168, 2 L.Ed.2d 1488; Staub v. City of Baxley, 355 U.S. 313, 318 320, 78 S.Ct. 277, 280, 281, 2 L.Ed.2d 302; Ward v. Board of County Com'rs of Love County, 253 U.S. 17, 22, 40 S.Ct. 419, 421, 64 L.Ed. 751. Invoking this principle, the appellants urge that the independent state grounds relied upon for decision by the Supreme Court of North Carolina were untenable and inadequate, and that the question whether the Federal Constitution compelled that the findings and judgment in the federal case operated as a collateral estoppel in this case was properly before the state court for decision. It thus becomes this Court's duty to ascertain whether the procedural grounds relied upon by the state court independently and adequately support its judgment. The Supreme Court of North Carolina stated in its opinion of affirmance that the 'defendants for reasons best known to themselves elected not to offer in evidence the record in the Federal court case.' 248 N.C., at page 493, 103 S.E.2d, at page 852. This statement is borne out by the record before that court,7 the so-called 'case on appeal' prepared by the appellants themselves.8 The appellants now advise us that in fact the federal court's findings and judgment were offered in evidence at the trial and excluded by the trial judge. They ascribe to 'some quirk of inadvertence' their failure to include in their 'case on appeal' the part of the transcript which would so indicate.9 And they assert that, since the Supreme Court of North Carolina has 'wide discretion' to go outside the record in order to get at the true facts, the Court's refusal to do so here amounted to a refusal to exercise its discretion 'to entertain a constitutional claim while passing upon kindred issues raised in the same manner.' Williams v. State of Georgia, 349 U.S. 375, 383, 75 S.Ct. 814, 818, 99 L.Ed. 1161. The difficulty with this argument, beyond the fact that the appellants apparently did not ask the North Carolina court to go outside the record for this purpose, is that that court has consistently and repeatedly held in criminal cases that it will not make independent inquiry to determine the accuracy of the record before it.10 Illustrative decisions are: State v. Robinson, 229 N.C. 647, 50 S.E.2d 740; State v. Wolfe, 227 N.C. 461, 42 S.E.2d 515; State v. Gause, 227 N.C. 26, 40 S.E.2d 463; State v. Stiwinter, 211 N.C. 278, 189 S.E. 868; State v. Dee, 214 N.C. 509, 199 S.E. 730; State v. Weaver, 228 N.C. 39, 44 S.E.2d 360; State v. Davis, 231 N.C. 664, 58 S.E.2d 355; State v. Franklin, 248 N.C. 695, 104 S.E.2d 837. Thus in the Robinson case the court reversed a criminal conviction for insufficiency of the evidence, although noting that: 'The court below, in its charge * * * (referred) to * * * incriminating facts and circumstances which do not appear in the testimony included in the record before us. This would seem to indicate that the record fails to include all the evidence offered by the State. 'Be that as it may, the record on appeal imports verity, and this Court is bound thereby. (Citing cases.) This is true even though the case is settled by counsel (citing cases); and not by the judge (citing cases) * * *. 'The Supreme Court is bound by the case on appeal, certified by the clerk of the Superior Court, even though the trial judge has had no opportunity to review it, and must decide questions presented upon the record as it comes here, without indulging in assumptions as to what might have occurred.' 229 N.C., at pages 649—650, 50 S.E.2d, at pages 741—742. In State v. Wolfe the court reversed a criminal conviction on the ground of error in the trial court's instructions to the jury, although pointing out that: 'The quoted excerpts from the charge do not reflect the clarity of thought and conciseness of statement usually found in the utterances of the eminent and experienced jurist who presided at the trial below. * * * Even so, it (the record) is certified as the case on appeal. We are bound thereby and must decide the question presented upon the record as it comes here, without indulging in assumptions as to what might have occurred.' 227 N.C., at page 463, 42 S.E.2d at pages 516—517. In the Gause case the court also reversed a conviction upon the ground of error in the charge, although noting that: 'Doubtless the use of the words 'greater weight of evidence' instead of 'beyond reasonable doubt' was a slip of the tongue or an error in transcribing. Nevertheless, it appears in the record, and we must accept it as it comes to us.' 227 N.C., at page 30, 40 S.E.2d, at page 466. In the Stiwinter case, involving a similar issue, the court said: 'We are constrained to believe that this instruction has been erroneously reported, but it is here in a record duly certified * * * which imports verity, and we are bound by it.' 211 N.C., at page 279, 189 S.E., at page 869. The Dee case involved similar issues. There the court noted: 'It is suggested by the Attorney-General that, in all probability, a typographical error has crept into the transcript and that the word 'disinterested' was used where the word 'interested' appears. In this he is supported by a letter from the judge who presided at the trial, and upon this letter a motion for certiorari to correct the record has been lodged on behalf of the State * * *. (T)he transcript is not now subject to change or correction. State v. Moore, 210 N.C. 686, 188 S.E. 421. It imports verity, and we are bound by it. * * * 'Under C.S. § 643, if the case on appeal as served by the appellant be approved by the respondent or appellee, it becomes the case and a part of the record on appeal, and, in connection with the record (proper), may alone be considered in determining the rights of the parties interested in the appeal. * * * The appeal must be heard and determined on the agreed case appearing in the record." 214 N.C., at page 512, 199 S.E., at page 732. It is thus apparent that the present case is not of a pattern with Williams v. State of Georgia, supra. Even if the North Carolina Supreme Court has power to make independent inquiry as to evidence proffered in the trial court but not included in the case on appeal, its decisions make clear that it has without exception refused to do so.11 This is not a case, therefore, where the state court failed to exercise discretionary power on behalf of appeallants' 'federal rights' which it had on other occasions exercised in favor of 'kindred issues.' The appellants contend additionally that they brought the federal court's findings and judgment in the Simkins case before the state courts in two other ways: (a) by their motion to quash at the outset of the trial, and (b) by their motion to set aside the verdict at the trial's conclusion. The motion to quash set out the existence and alleged effect of the federal court proceedings, and requested leave to offer in evidence in support of the motion 'the full record and judgment roll in said case.' The motion to set aside the verdict incorporated by reference the motion to quash and also contained an independent summary of the federal court proceedings, requesting the court to take judicial notice of the same. Both motions were denied by the trial court without opinion. As to the motion to quash, the Supreme Court of North Carolina sustained the trial court's ruling on the ground that the "court, in ruling on the motion, is not permitted to consider extraneous evidence. Therefore, when the defect must be established by evidence aliunde the record, the motion must be denied." 248 N.C. at page 489, 103 S.E.2d at page 849. In upholding the denial of the second motion, the Supreme Court of North Carolina declined to take judicial notice of the federal court's findings and judgment, for reasons discussed at some length in its opinion, and concluded that the appellants 'were not, as a matter of right, entitled to have the verdict set aside.' 248 N.C. at page 495, 103 S.E.2d at page 854. An independent examination of North Carolina law convinces us that the state court in both instances was following well-established local procedural rules; it did not make an ad hoc determination operating discriminatorily against these particular litigants. At least since the decision in State v. Turner, 170 N.C. 701, 86 S.E. 1019, in 1915, it has been the settled rule in North Carolina that '(a) motion to quash * * * lies only for a defect on the face of the warrant or indictment.' 170 N.C., at page 702, 86 S.E., at page 1020. The rule that a motion to quash cannot rest on matters dehors the record proper has, so far as investigation reveals, been rigidly adhered to in all subsequent North Carolina decisions.12 See State v. Brewer, 180 N.C. 716, 717, 104 S.E. 655, 656; State v. Cochran, 230 N.C. 523, 524, 53 S.E.2d 663, 665; State v. Andrews, 246 N.C. 561, 565, 99 S.E.2d 745, 748. In the present case the state court simply followed this settled rule of local practice. A similar conclusion must be reached as to the denial of the motion made at the end of the trial. That motion requested '(t)hat the verdict rendered by the jury * * * be set aside, that the Court withhold and arrest judgment and discharge the defenadants notwithstanding the verdict, or grant the defendants a new trial * * *.' Whether the motion be technically considered as one to set aside the verdict and grant a new trial or as one to arrest the judgment and dismiss the defendants, the action of the North Carolina Supreme Court in upholding its denial was clearly in conformity with established state law. 'A motion to set aside the verdict and grant a new trial is addressed to the discretion of the court and its refusal to grant such motion is not reviewable on appeal.' State v. McKinnon, 223 N.C. 160, 166, 25 S.E.2d 606, 610; State v. Chapman, 221 N.C. 157, 19 S.E.2d 250; State v. Johnson, 220 N.C. 252, 17 S.E.2d 7. See also State v. Wagstaff, 219 N.C. 15, 19, 12 S.E.2d 657, 660; State v. Brown, 218 N.C. 415, 422, 11 S.E.2d 321, 325; State v. Caper, 215 N.C. 670, 2 S.E.2d 864. 'A motion in arrest of judgment can be based only on matters which appear on the face of the record proper, or on matters which schould, but do not, appear on the face of the record proper. * * * The record proper in any action includes only those essential proceedings which are made of record by the law itself, and as such are self-preserving. * * * The evidence in a case is no part of the record proper. * * * In consequence, defects which appear only by the aid of evidence cannot be the subject of a motion in arrest of judgment.' State v. Gaston, 236 N.C. 499, 501, 73 S.E.2d 311, 313; State v. Foster, 228 N.C. 72, 44 S.E.2d 447; State v. Brown, 218 N.C. 415, 422, 11 S.E.2d 321, 325; State v. McKnight, 196 N.C. 259, 145 S.E. 281; State v. Shemwell, 180 N.C. 718, 721, 104 S.E. 885. Examination of the whole course of North Carolina decisions thus precludes the inference that the Supreme Court of North Carolina in this case arbitrarily denied the appellants an opportunity to present their federal claim. The judgment before us for review is the judgment which the Supreme Court of North Carolina made on the record before it, not the action of the state trial court. 'Without any doubt it rests with each State to prescribe the jurisdiction of its appellate courts, the mode and time of invoking that jurisdiction, and the rules of practice to be applied in its exercise; and the state law and practice in this regard are no less applicable when Federal rights are in controversy than when the case turns entirely upon questions of local or general law. Callan v. Bransford, 139 U.S. 197, 11 S.Ct. 519, 35 L.Ed. 144; Brown v. Commonwealth of Massachusetts, 144 U.S. 573, 12 S.Ct. 757, 36 L.Ed. 546; Jacobi v. State of Alabama, 187 U.S. 133, 23 S.Ct. 48, 47 L.Ed. 106; Hulbert v. City of Chicago, 202 U.S. 275, 281, 26 S.Ct. 617, 618, 50 L.Ed. 1026; Newman v. Gates, 204 U.S. 89, 27 S.Ct. 220, 51 L.Ed. 385; Chesapeake & Ohio Railway Co. v. McDonald, 214 U.S. 191, 195, 29 S.Ct. 546, 548, 53 L.Ed. 963.' John v. Paullin, 231 U.S. 583, 585, 34 S.Ct. 178, 58 L.Ed. 381. '(W)hen as here there can be no pretence that the (state) Court adopted its view in order to evade a constitutional issue, and the case has been decided upon grounds that have no relation to any federal question, this Court accepts the decision whether right or wrong.' Nickel v. Cole, 256 U.S. 222, 225, 41 S.Ct. 467, 468, 65 L.Ed. 900.13 A word of emphasis is appropriate, before concluding, to make entirely explicit what it is that is involved in this case, and what is not. There is no issue here as to the constitutional right of Negroes to use a public golf course free of racial discrimination. From first to last the courts of North Carolina fully recognized that under the Constitution these appellants could not be convicted if they were excluded from the golf course because of their race. The trial judge so instructed the jury, and the Supreme Court of North Carolina so held. Cf. Constantian v. Anson County, 244 N.C. 221, 93 S.E.2d 163. Upon the evidence in this case the jury's verdict established that no such racial discrimination had in fact occurred. 'On review here of State convictions, all those matters which are usually termed issues of fact are for conclusive determination by the State courts and are not open for reconsideration by this Court. Observance of this restriction in our review of State courts calls for the utmost scruple.' Watts v. State of Indiana, 338 U.S. 49, 50, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801. What is involved here is the assertion of a quite different constitutional claim—that the Supremacy Clause and the Fourteenth Amendment require a state criminal court to give conclusive effect to fact findings made in a civil action upon different evidence by a Federal District Court. While intimating no view as to the merits of this constitutional claim, we note only that it is a completely novel one. Cf. Hoag v. State of New Jersey, 356 U.S. 464, 470—471, 78 S.Ct. 829, 833—834, 2 L.Ed.2d 913. The North Carolina Supreme Court did not decide this asserted federal question. We have found that it did not do so because of the requirements of rules of state procedural law within the Constitutional power of the States to define, and here clearly delineated and even-handedly applied. We have no choice but to determine that this appeal must be dismissed because no federal question is before us. That determination is required by principles of judicial administration long settled in this Court, principles applicable alike to all litigants, irrespective of their race, color, politics, or religion. Dismissed.

363.US.190

Certiorari is granted and a decision of the Court of Appeals of New York, holding that, under the common law of New York, petitioners, as the appointees of the Patriarch of Moscow., may not exercise the right -conferred under canon law to use and occupy St. Nicholas Cathedral of the Russian Orthodox Church in New York City, is reversed on the authority of Kedroff v. St. Nicholas Cathedral, 344 U. S. 94, since the constitutional principles there applied forbid the judiciary, as well as the legislature, of a State to interfere with the free exercise of religion. Pp. 190-191. 7 N. Y. 2d 191, 164 N. E. 2d 687, reversed.

The motion for leave to proceed upon the record in No. 3, October Term 1952, and the petition for certiorari, are granted. In a prior decision in this litigation, we held that the right conferred under canon law upon the Archbishop of the North American Archdiocese of the Russian Orthodox Greek Catholic Church, as the appointee of the Patriarch of Moscow, to the use and occupancy of the St. Nicholas Cathedral in New York City, owned by respondent corporation, was 'strictly a matter of ecclesiastical government,' and as such could not constitutionally be impaired by a state statute, New York Religious Corporations Law, McKinney's Consol.Laws, c. 51, Art. 5—C, purporting to bestow that right on another. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120. We reversed a judgment of the New York Court of Appeals against the petitioners' predecessors in office, and remanded the case for 'further action * * * not in contravention' of our opinion. Id., 344 U.S. at page 121, 73 S.Ct. at page 157. The Court of Appeals ordered a retrial of the question of petitioners' right to use and occupancy, on a common-law issue assertedly left open by our invalidation of the statutory basis for the former decision. 306 N.Y. 38, 114 N.E.2d 197. After trial, the Court of Appeals directed the entry of judgment against petitioners, holding that, by reason of the domination—so found by that court to be the fact—of the Patriarch by the secular authority in the U.S.S.R., his appointee could not under the common law of New York validly exercise the right to occupy the Cathedral. 7 N.Y.2d 191, 196 N.Y.S.2d 655, 164 N.E.2d 687. As the opinions of the Court of Appeals make evident, compare 302 N.Y. 1, at pages 29—33, 96 N.E.2d 56, at pages 72—74, with 7 N.Y.2d at pages 209—216, 196 N.Y.S.2d at pages 667—673, 164 N.E.2d at pages 696—700, the decision now under review rests on the same premises which were found to have underlain the enactment of the statute struck down in Kedroff. 344 U.S. at pages 117—118, 73 S.Ct. at page 155. But it is established doctrine that '(i)t is not of moment that the State has here acted solely through its judicial branch, for whether legislative or judicial, it is still the application of state power which we are asked to scrutinize.' N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 463, 78 S.Ct. 116o, 1172, 2 L.Ed.2d 1488. See Shelley v. Kraemer, 334 U.S. 1, 14—16, 68 S.Ct. 836, 842—843, 92 L.Ed. 1161, and cases there cited. Accordingly, our ruling in Kedroff is controlling here, and requires dismissal of the complaint. Reversed.

364.US.310

the Government sued respondents to recover civil damages under § 26 (b) (1) of the Surplus Property Act of 1944 for obtaining surplus government property by fraud. Later it moved to file an amended complaint seeking instead to recover damages under § 26 (b) (2). That motion was withdrawn, and the Government filed a second amended complaint again seeking damages under § 26 (b) (1). After trial, the District Court awarded the Government damages under § 26 (b) (1). Both sides appealed, and the Court of Appeals affirmed. While the appeal was pending, the Government accepted from respondents promissory notes totalling the amount of the judgment, and it released only its judgment liens in two counties. Held: 1. By accepting payment of an amount equal to the judgment appealed from as inadequate and releasing only its judgment liens in two counties in the circumstances of this case, the Government did not lose its right to press its claim for the full amount of the damages it believed to be due. Pp. 312-313. 2. Recoveries under § 26 (b) are not penalties, and the claims asserted by. the Government were not barred by the statute of limitations. P. 313. 3. In the circumstances of this case, in which the issue was preserved in a pretrial order pursuant to Rule 16 of the Federal Rules of Civil Procedure, the Government did not waive its contention that it was entitled to change its election of remedies and to recover under § 26 (b)(2), instead of §26 (b)(1). Pp. 313-316. 4. The Government's original complaint seeking. damages under § 26 (b) (1) did not constitute an irrevocable election of remedies; and, in the circumstances of this case, the Government had a right to amend its pleadings so as to seek damages under § 26 (b) (2). Pp. 316-317. 5. Section 26 (b) did not empower the District Court to determine according to the evidence which of the three subsections would be the most appropriate and to require the Government to accept judgment under that subsection. P. 317. 6. In the circumstances of this case, respondents are not entitled to a new trial. Pp. 317-318. 270 F. 2d 290, reversed.

Section 16 of the Surplus Property Act of 19441 gave priority preferences to veterans in the purchase of surplus war materials. 58 Stat. 765. Section 262 authorized the United States to recover damages against any person who obtains such property from the Government by 'fraudulent trick, scheme, or device * * *.' The complaint in this case charged that respondent Hougham, a nonveteran, combined with the other respondents, who are veterans, and obtained for his own business purposes hundreds of items of surplus property, including trucks, trailers and other equipment, by fraudulent use of the veteran respondents' priority certificates. After hearings, the District Court found respondents guilty of fraud as charged and awarded damages in the amount of $8,000. Both sides appealed. The Court of Appeals affirmed, rejecting both the Government's contention that the damages awarded were inadequate and the respondents' contentions that the finding of fraud was clearly erroneous and that the claims were barred by the statute of limitations. 9 Cir., 270 F.2d 290. Because the case raises important questions concerning the interpretation and application of the Surplus Property Act, we granted the Government's petition for certiorari. 361 U.S. 958, 80 S.Ct. 590, 4 L.Ed.2d 541. The respondents first contend that the entire controversy here has been settled, is therefore moot, and that the Government is estopped from further pressing claims against them. This contention rests upon the fact—set out in respondents' brief and not disputed by the Government—that after the trial court judgment was entered and before it was affirmed by the Court of Appeals, the Government accepted from respondents promissory notes totalling $8,000, the amount of the trial court judgment. The contention is that this fact alone renders the case moot or at least creates some sort of estoppel against the Government. We disagree. It is a generally accepted rule of law that where a judgment is appealed on the ground that the damages awarded are inadequate, acceptance of payment of the amount of the unsatisfactory judgment does not, standing alone, amount to an accord and satisfaction of the entire claim. See, for example, Embry v. Palmer, 107 U.S. 3, 2 S.Ct. 25, 27 L.Ed. 346; Erwin v. Lowry, 7 How. 172, 183—184, 12 L.Ed. 655. This case provides a perfect example of the good sense underlying that rule. For here it was the respondents themselves who proposed payment of the $8,000, asserting expressly as their purpose in so doing the obtaining of a 'Full Release of Judgment Liens' filed in the Counties of Los Angeles and Kern. The Government did nothing more in the entire transaction than accept the notes and execute the requested release. Since that release was expressly denominated only as a 'Full Release of Judgment Liens' for the Counties of Los Angeles and Kern, it simply is not and cannot properly be interpreted to constitute a full release of all the Government's claims against respondents. Moreover, since the transfer of the notes occurred prior to the decision of the Court of Appeals, it is clear that neither of the parties regarded that transfer as an accord and satisfaction of the entire controversy for both pursued their appeals in that court. Thus respondents' contention here is totally inconsistent with their position in the Court of Appeals where they sought to avoid all liability to the Government, including liability for the $8,000 they had already paid. For that position must necessarily have been predicated upon the view that the payment was without prejudice to the rights of either party as those rights might come to be established by subsequent judicial decree. Under such circumstances, the contention that the Government has lost its right to press its claim for the full amount of damages it believes due is wholly untenable. We find it unnecessary to discuss at length respondents' second contention—that the claims asserted by the Government are barred by the statute of limitations. It is sufficient to say that the courts below were entirely correct in rejecting that contention for, resting as it does upon the assumption that recoveries under § 26(b) are penalties, it is inconsistent with our holding in Rex Trailer Co. v. United States, 350 U.S. 148, 76 S.Ct. 219, 100 L.Ed. 149. We therefore proceed to the principal controversy—the question of the adequacy of the damages awarded to the Government. Section 26(b) provides in relevant part that those who obtain property by the kind of fraud established here: '(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 United 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.' In its complaint as originally filed, the Government claimed recovery as authorized by § 26(b)(1)—$2,000 for each fraudulent act plus double the amount of any actual damages. Subsequently, the Government attempted to file a First Amended Complaint claiming liquidated damages under § 26(b)(2). Upon indication of the trial judge that the claim in the original complaint under § 26(b)(1) amounted to an irrevocable election of remedies, but without any formal ruling to that effect, the Government withdrew the First Amended Complaint and filed a Second Amended Complaint in which it reverted to its original claim under 26(b)(1). Still later, however, following pretrial proceedings under Rule 16 of the Federal Rules of Civil Procedure, 28 U.S.C.A., the district judge, with the approval of counsel for both parties, entered a pretrial conference order which provided, '(T)his order shall supplement the pleadings and govern the course of the trial of this cause, unless modified to prevent manifest injustice.' And the order expressly enumerated the 'issues of law' that remained 'to be litigated upon the trial.' One of the issues so reserved was the legal correctness of the Government's argument that it was entitled to recover 'double the amount of the sales price of the vehicles described in the Second Amended Complaint,' that it was 'entitled to make its election (as between § 26(b)(1) and § 26(b)(2)) at any time prior to judgment' and that it did then elect 'in the event of judgment in its favor, to receive as liquidated damages a sum equal to twice the consideration agreed to be given to the United States.' The District Court ultimately decided this legal issue against the Government, holding that the original complaint constituted an irrevocable election, and proceeded to award damages of $8,000 under § 26(b) (1). The Court of Appeals affirmed this judgment on a different ground. It held that the refusal of the District Court to permit recovery under § 26(b)(2) was within its power to determine the appropriate remedy under § 26(b), asserting that no issue as to election of remedies was even involved in the case. 270 F.2d at page 293. The Government contends that denial of recovery under § 26(b)(2) cannot be justified on either of the theories adopted below. Respondents contend that the Government waived its right to urge this contention by voluntarily proceeding to judgment on the Second Amended Complaint. This contention is predicated upon the failure of the Government to get a formal ruling on its First Amended Complaint before withdrawing it and filing the Second Amended Complaint. But, as shown above, the pretrial order and the conclusions of law of the District Court both show that the Government urged its right to change its election up to the time judgment was rendered. That pretrial order, as authorized by Rule 16, conclusively established the issues of fact and law in the case and declared that the issues so established should 'supplement the pleadings and govern the course of the trial * * *.' One of these supplementary issues was the Government's contention that it was entitled to recover under § 26(b)(2), rather than under § 26(b)(1) as claimed in the Second Amended Complaint. Thus the pretrial order changed the claim in that complaint from § 26(b)(1) to § 26(b)(2) insofar as the Government had the power to change its election, and posed an issue which required adjudication by the District Court. That such was the effect of the order is clear from the language of Rule 16 which provides that the court, after pretrial conference, 'shall make an order which recites * * * the amendments allowed to the pleadings * * * and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.' Since the pretrial order here reserved the legal question as to the Government's right to change its election and since the court expressly decided that question against the Government,* the question most certainly was not waived and must here be determined. Thus, we come to the question whether the courts below were correct in holding that the Government was not entitled to damages under § 26(b)(2). With respect to the theory adopted by the District Court that the Government's original complaint constituted an irrevocable election of remedies, we can find nothing either in the language of § 26(b) or in its legislative history which lends the slightest support to such a construction. This fact leads naturally to the conclusion that the ordinary liberal rules governing the amendment of pleadings are applicable. The applicable rule is Rule 15 of the Federal Rules of Civil Procedure, which was designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result. Despite respondents' argument to the contrary, we see this case as one where there plainly was no such prejudice. In such a situation, acceptance of respondents' contention on this point would subvert the basic purpose of the Rule. 'The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.' Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80. We therefore conclude that under the circumstances of this case the Government had a right to amend its pleadings and that the District Court erred in refusing to permit such amendment. The alternative theory of the Court of Appeals appears, upon examination, to be equally untenable. The Court of Appeals interpreted § 26(b) as placing power in the District Court to determine, according to the evidence presented in any particular case, which of the three subsections would be most appropriate and to require the Government to accept judgment under that subsection. That interpretation collides with the express language of § 26(b) which provides for recovery under any one of the three subsections 'if the United States shall so elect.' (Emphasis supplied.) Since the language of the section is conclusive on this point, the theory adopted by the Court of Appeals must also be rejected. The respondents' final contention is that in any event they are entitled to a new trial. Obviously, there need be no new trial on the fraud issue. But respondents also urge that there is no support in the record for a judgment fixing the Government's recovery under § 26(b)(2) and 'twice the consideration agreed to be given' for the vehicles. There was no consideration 'agreed to be given,' the argument proceeds, because all the transactions involved cash sales at a price fixed by the Government. This argument, while ingenious, is not sound. Cash sales, like others, must follow an agreement of the parties with regard to consideration 'to be given.' Respondents' contention to the contrary would, if accepted, allow any purchaser from the Government to effectively avoid liability under § 26(b)(2) simply by being careful to make all of its fraudulent dealings in cash. Plainly, however, the Government suffers just as much from a fraudulent cash sale as from a fraudulent credit sale. An interpretation of § 26(b)(2) which allows recovery for the one but not for the other cannot be accepted. The respondents' contention for a new trial must be rejected. The judgment is therefore reversed and the cause remanded to the District Court with directions to enter judgment for the United States under § 26(b)(2). It is so ordered. Judgment reversed and cause remanded to the District Court with directions.

363.US.1

Invoking the original jurisdiction of this Court under Art. III' § 2 of 'the Constitution, the United States brought suit against the States of Louisiana, Texas, Mississippi, Alabama and Florida, seeking a declaration that it is entitled to exclusive possession of, and full dominion and power over, the lands, minerals and other natural resources underlying the waters of the Gulf of Mexico more than three geographical miles seaward from the coast of each State and extending to the edge of the Continental Shelf. It also asked that the States be enjoined from interfering with the rights of the United States in that area and that they be required to account for all sums of money derived by them therefrom since June 5, 1950. Held: 1. The Submerged Lands Act grants to each coastal State the ownership of submerged lands within three geographical miles from its coast; but no boundary in excess of three miles was fixed ipso facto for any State. Pp. 13, 20-25. 2. The Act preserved the right of each Gulf State to prove boundaries extending more than three geographical miles (but not more than three marine leagues) into the Gulf; but each State must establish the existence of such a boundary in judicial proceedings. Pp. 25-26. 3. To satisfy the requirements of the Act, a State's seaward boundary beyond three geographical miles from its coast must be one which, by virtue of congressional action, would have been 550582 0-60-4 1 legally effective to carry, as between the State and the Nation, submerged land rights under the doctrine of Pollard's Lessee v. Hagan, 3 How. 212, as Congress conceived that rule to have been prior to this Court's decision in United States v. California, 332 U. S. 19. The mere existence of such a boundary prior to the time the State was admitted to the Union is not alone sufficient. Pp. 24-36. 4. The fact that, in the field of foreign relations, the policy of the Executive Branch of the Government may have been to refuse to assert territorial jurisdiction more than three miles from shore would not impair the effectiveness of a State's seaward boundary fixed by Congress more than three miles from shore, so far as the purely domestic purposes of the Submerged Lands Act are concerned. Pp. 30-36. 5. Texas having claimed a maritime boundary at three marine leagues from her coast when she was an independent republic prior to admission to the Union, and this boundary having been confirmed pursuant to the Annexation Resolution of 1845, Texas is entitled under the Submerged Lands Act to a gran't of three marine leagues from her coast for domestic purposes. Pp. 36-65. 6. Louisiana is entitled to submerged-land rights to a distance no greater than three geographical miles from its coastlines, wherever those lines may ultimately be shown to be. Pp. 66-79. 7. Mississippi is not entitled to rights in submerged lands lying beyond three geographical miles from its coast. Pp. 79-82. 8. Alabama is not entitled to rights in submerged lands lying beyond three geographical miles from its coast. P. 82. 9. As to the States of Louisiana, Mississippi and Alabama, a decree will be entered (1) declaring that the United States is entitled, as against these States, to all the lands, minerals and other natural resources underlying the Gulf of Mexico more than three geographical miles from the.coast of each such State, that is, from the line of ordinary low-water mark and outer limit of inland waters, and extending seaward to the edge of the Continental Shelf; (2) declaring that none of these States is entitled to any interest in such lands, minerals and resources; (3) enjoining these States from interfering with the rights of the United States therein; (4) directing each such State appropriately to account to the United States for all sums of money derived therefrom subsequent to June 5, 1950; and (5) dismissing Alabama's cross bill. P. 83. 10. As to the 9fate of Texas, a decree will be entered (1) declaring that the State is entitled, as against the United States, to the lands, minerals and other natural resources underlying the Gulf of Mexico to a distance of three marine leagues from Texas' coast, that is, from the line of ordinary low-water mark and outer limit of inland waters; (2) declaring that the United States is entitled, as against Texas, to no interest therein; (3) declaring that the United States is entitled, as against Texas, to.all such lands, minerals and resources lying beyond that area and extending to the edge of the Continental Shelf; (4) enjoining the State from interfering with the rights of the United States therein; and (5) directing Texas appropriately to account to the United States for all sums of money derived since June 5, 1950, from the area to which the United States is declared to be entitled. P. 84. 11. Jurisdiction is retained for such further proceedings as may be necessary to effectuate the rights herein adjudicated. P. 84. 12. The motions of Louisiana and Mississippi to take depositions are denied, without prejudice to their renewal in such further pro.ceedings as may be had in connection with matters left open by this opinion. Pp. 84-85. 13. The same disposition is made of the similar averment in Alabama's answer. P. 84, n. 142. 14. Texas' motion for similar relief and for a 'severance is rendered moot by the decision as to it. P. 84, n. 142. 15.' The alternative motion of Louisiana, contained in its answer to the original complaint, to transfer the case as to it to the United States District Court in Louisiana is denied. P. 85, n. 143.

The United States, invoking our original jurisdiction under Art. III, § 2, of the Constitution, brought this suit against the States of Louisiana, Texas, Mississippi, Alabama, and Florida, seeking a declaration that it is entitled to exclusive possession of, and full dominion and power over, the lands, minerals, and other natural resources underlying the waters of the Gulf of Mexico more than three geographical miles seaward from the coast of each State and extending to the edge of the Continental Shelf.1 The complaint also asks that the States be enjoined from interfering with the rights of the United States in that area, and that they be required to account for all sums of money derived by them therefrom since June 5, 1950.2 The case is now before us on the motions of the United States for judgment on the pleadings and for dismissal of Alabama's cross bill seeking to establish its rights to such submerged lands and resources within three marine leagues of its coast. The controversy is another phase of the more than 20 years' dispute between the coastal States and the Federal Government over their respective rights to exploit the oil and other natural resources of offshore submerged lands. In 1947 this Court held that, as against California, the United States possessed paramount rights in such lands underlying the Pacific Ocean seaward of the low-water mark on the coast of California and outside of inland waters. United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889; 332 U.S. 804, 68 S.Ct., 20, 92 L.Ed. 382. And on June 5, 1950, the Court, following the principles announced in the California case, made like holdings with respect to submerged lands in the Gulf of Mexico similarly lying off the coasts of Louisiana and Texas, and directed both States to account to the United States for all sums derived from natural resources in those areas after that date. United States v. State of Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216; 340 U.S. 899, 71 S.Ct. 275, 95 L.Ed. 651; United States v. State of Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221;340 U.S. 900, 71 S.Ct. 276, 95 L.Ed. 652.3 On May 22, 1953, Congress, following earlier repeated unsuccessful attempts at legislation dealing with state and federal rights in submerged lands,4 passed the Submerged Lands Act, 67 Stat. 29, 43 U.S.C. §§ 1301—1315, 43 U.S.C.A. §§ 1301 1315. By that Act the United States relinquished to the coastal States all of its rights in such lands within certain geographical limits, and confirmed its own rights therein beyond those limits. The Act was sustained in State of Alabama v. State of Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689, as a constitutional exercise of Congress' power to dispose of federal property, Const.Art. IV, § 3, cl. 2. Since the Act concededly did not impair the validity of the California, Louisiana, and Texas cases, which are admittedly applicable to all coastal States, this case draws in question only the geographic extent to which the statute ceded to the States the federal rights established by those decisions. The purposes of the Submerged Lands Act are described in its title as follows: 'To confirm and establish the titles of the States to lands beneath navigable waters within State boundaries and to the natural resources within such lands and waters, to provide for the use and control of said lands and resources, and to confirm the jurisdiction and control of the United States over the natural resources of the seabed of the Continental Shelf seaward of State boundaries.' To effectuate these purposes the Act, in pertinent part— 1. relinquishes to the States the entire interest of the United States in all lands beneath navigable waters within state boundaries (§ 3, 43 U.S.C. § 1311, 43 U.S.C.A. § 1311);5 2. defines that area in terms of state boundaries 'as they existed at the time (a) State became a member of the Union, or as heretofore approved by the Congress,' not extending, however, seaward from the coast of any State more than three marine leagues6 in the Gulf of Mexico or more than three geographical miles in the Atlantic and Pacific Oceans (§ 2, 43 U.S.C. § 1301, 43 U.S.C.A. § 1301);7 3. confirms to each State a seaward boundary of three geographical miles, without 'questioning or in any manner prejudicing the existence of any State's seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress' (§ 4, 43 U.S.C. § 1312, 43 U.S.C.A. § 1312);8 and 4. For purposes of commerce, navigation, national defense, and international affairs, reserves to the United States all constitutional powers of regulation and control over the areas within which the proprietary interests of the States are recognized (§ 6(a), 43 U.S.C. § 1314, 43 U.S.C.A. § 1314);9 and retains in the United States all rights in submerged lands lying beyond those areas to the seaward limits of the Continental Shelf (§ 9, 43 U.S.C. § 1302, 43 U.S.C.A. § 1302).10 The United States concedes that the statute grants to each of the defendant States submerged land rights in the Gulf of Mexico to the extent of three geographical miles, but contends that none of them is entitled to anything more. The States, conceding that three leagues is the limit of the statute's grant in the Gulf contend that each of them is entitled to that much. The wide-ranging arguments of the parties, reflecting no doubt the magnitude of the economic interests at stake,11 can be reduced to the following basic contentions: The Government starts with the premise that the Act grants submerged land rights to a distance of more than three miles only to the extent that a Gulf State can show, in accordance with § 2(b) of the Act, either that it had a legally established seaward boundary in excess of three miles at the time of its admission to the Union, or that such a boundary was thereafter approved for it by Congress prior to the passage of the Submerged Lands Act. It is contended that the Act did not purport to determine, fix, or change the boundary of any State, but left it to the courts to ascertain whether a particular State had a seaward boundary meeting either of these requirements. The Government then urges, as to any State relying on its original seaward boundary, that the Act contemplates as the measure of the grant a boundary which existed subsequent to a State's admission to the Union, and not one which existed only prior to admission—in other words, a boundary carrying the legal consequences of the event of admission. It reasons from this that since a State's seaward boundary cannot be greater than the national maritime boundary, and since the national boundary was at all relevant times never greater than three miles, no State could have had a seaward boundary in excess of three miles, regardless of what it may have claimed prior to admission. Further, the Government undertakes to show that, irrespective of the extent of the national maritime boundary, none of these States ever had a valid seaward boundary in excess of three miles, even prior to admission, and that no such boundary was thereafter approved by Congress for any State. The States, on the other hand, make several alternative arguments. At one extreme, they contend that the Submerged Lands Act ipso facto makes a three-league grant to all the Gulf States, or at least that the Act by its terms establishes the seaward boundary of some States, notably Texas and Florida, at three leagues. Alternatively, they argue that if the extent of such state boundaries 'at the time' of admission was left to judicial determination, then the controlling inquiry is what seaward boundary each State had just prior to admission. If, however, the Act contemplates a boundary as fixed by the event of admission, each State contends that Congress fixed for it a three-league Gulf boundary, and that whatever may have been the extent of the national maritime boundary at the time is an irrelevant factor. Florida further contends that when it was readmitted to the Union in 1868, Congress approved for it a three-league Gulf boundary. And finally the States argue that if the national boundary is in any way relevant, it has at all material times in fact been at three leagues in the Gulf of Mexico. Both sides have presented in support of their respective positions a massive array of historical documents, of which we take judicial notice, and substantially agree that all the issues tendered can properly be disposed of on the basis of the pleadings and such documents. In this opinion we consider the issues arising in common between the Government and all the defendant States, and the particular claims of Texas, Louisiana, Mississippi, and Alabama, all of which depend upon their original admission boundaries. The particular claims of Florida, which involve primarily its readmission boundary, are considered in a separate opinion. 363 U.S. 121, 80 S.Ct. 1026. The Common Issues. A. The Statute On Its Face. The States' contention that the Act ipso facto grants them submerged land rights of three leagues in the Gulf may be shortly answered. The terms of the statute require rejection of such a construction. Rather the measure of the grant in excess of three miles is made to depend entirely upon the location of a State's original or later Congressionally approved maritime boundary, subject only to the three-league limitation of the grant. We turn next to the question whether, as the States contend, the first of the two alternative requirements of § 2—a boundary which 'existed at the time such State became a member of the Union'—is satisfied merely by a showing a preadmission boundary, or whether, as the Government claims, that requirement contemplates only a boundary that carries the legal consequences of the event of admission. While it is manifest that the second requirement of § 2—a boundary which was 'heretofore approved by the Congress'—must take into account the effect of Congressional action, it is not clear from the face of the statute that the same is true of the first requirement—a boundary 'as it existed at the time (a) State became a member of the Union.' The Government argues that in construing the first requirement of § 2 the effect of Congressional action cannot be ignored because to do so would be to measure the boundary prior to the time a State became a member of the Union, and 'at the time' cannot mean 'prior to the time.' However, it might be contended with equal force that to take account of the effect of Congressional action would be to measure the boundary after the time the State became a member of the Union, and 'at the time' cannot mean 'after the time.' Indeed, if 'at the time' were to be taken in a perfectly literal sense, it could refer only to the timeless instant before which the consequences of not being a State would obtain, and after which the consequences of statehood would follow, leaving unanswered the question whether the effect of Congressional action was to be considered or not. In short, if the term is to be given content it must be read as referring either to some time before or after the instant of admission, or to both times. As an aid to construction of 'at the time' in § 2, the Government points to § 4, the last sentence of which states: 'Nothing in this section is to be construed as questioning or in any manner prejudicing the existence of any State's seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress.' (Emphasis supplied.) It is urged that the disjunctive use of the terms 'prior to' and 'at the time' shows that the latter must have been used to refer to the time after admission, since the phraseology would otherwise be redundant, and that such meaning should also be attributed to the same term in § 2, thereby including the effect of Congressional action. But, as has already been indicated, 'at the time' inherently can also be taken as referring to the preadmission period, thereby excluding the effect of such action. And on that basis there would be no redundancy in the phrase 'prior to or at the time' if 'at the time' meant immediately before the instant of admission and 'prior to' referred to times substantially prior to admission; yet this would nonetheless exclude the effect of Congressional action. So far as the statute itself is concerned, the Government's argument is thus inconclusive. Nor do the States' arguments upon the face of the statute illumine the meaning of 'at the time' as used in § 2. They contend that the meaning of § 2 is explained or clarified by the last sentence of § 4. According to them, a boundary 'existed at the time (a) State became a member of the Union' (§ 2) if 'it was so provided by its constitution or laws prior to or at the time such State became a member of the Union * * *.' § 4. Under this view, whatever the meaning of 'at the time,' the existence of a state constitutional or statutory three-league provision prior to admission would conclusively establish the boundary contemplated by the Act, irrespective of the character of Congressional action upon admission. However, this provision appears not in the definitional or granting sections of the statute (§§ 2 or 3), but in § 4, the purpose of which is to approve and confirm the boundaries of all States at three miles, and to negative any prejudice which might thereby result to claims in excess of three miles. It thus does not define the grant, but at most describes the claims protected from prejudice by § 4 in terms of their most likely nature. A fair reading of the section does not point to the conclusion that claims of this nature were deemed to be self-proving. Finally, there is no indication on the face of the statute whether the Executive policy of the United States on the extent of territorial waters is a relevant circumstance in ascertaining the location of state seaward boundaries for purposes of the Act. Because the statute on its face is inconclusive as to these issues, we turn to the legislative history. B. The Legislative History. This Court early held that the 13 original States, by virtue of the sovereignty acquired through revolution against the Crown, owned the lands beneath navigable inland waters within their territorial boundaries, and that each subsequently admitted State acquired similar rights as an inseparable attribute of the equal sovereignty guaranteed to it upon admission. Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565.12 It was assumed by many, and not without reason,13 that the same rule would be applied to lands beneath navigable waters of the marginal sea, that is, beyond low-water mark and the outer limit of inland waters. However, beginning in the 1930's, the Federal Government, while conceding the validity of the Pollard rule as to inland waters, disputed its applicability to submerged lands beyond that limit, and claimed ownership of those lands for the United States.14 The controversy centered primarily on the ownership of the oil-rich submerged lands off the coast of California. The State maintained that its original constitution, adopted in 1849 before it was admitted to the Union, established a seaward boundary three English miles from the coast,15 that this boundary was ratified by the Act of Congress admitting it to the Union, and that therefore under the Pollard rule, it was entitled to all submerged lands lying within three English miles of its coast. This Court refused so to apply Pollard, and held in the California case and the subsequent Louisiana and Texas cases, supra, that paramount rights in the marginal sea are an attribute of national rather than state sovereignty, irrespective of the location of state seaward boundaries. Meanwhile an extended series of attempts was underway to secure Congressional legislation vesting in the States the ownership of those lands which would be theirs under an application of the Pollard rule to the marginal sea.16 It was strongly urged, both before and after the California decision that because the States had for many years relied on the applicability of the Pollard rule to the marginal sea, it was just and equitable that they be definitively given the rights which follow from such an application of the rule, and the California, Louisiana, and Texas cases were severely criticized for not having so applied it.17 Thus virtually every 'quitclaim' measure introduced between 1945 and 1953, when the Submerged Lands Act was ultimately enacted, framed the grant in terms of 'lands beneath navigable waters within State boundaries.' This framework was employed because the sponsors understood this Court to have established, prior to the California decision, a rule of state ownership itself defined in terms of state territorial boundaries, whether located at or below low-water mark.18 Since, however, none of the cases which had applied that rule involved lands below low-water mark, and since the California and subsequent Louisiana and Texas cases adopted for such lands a rule which does not depend upon state boundaries, this Court has never had occasion to consider the precise nature and method of determining state territorial boundaries in the open sea, such as would circumscribe the extent of state ownership of offshore lands under an application of the Pollard rule. Because Congress, in the exercise of its constitutional power to dispose of federal property, has chosen so to frame its grant, we are now called on to resolve such questions in light of the Act's history and purposes. From the very outset, the sponsors of 'quitclaim' legislation believed that all States were entitled to at least three miles of coastal submerged lands.19 The earliest bills confirmed to the States all lands beneath navigable waters within their boundaries, and defined 'lands beneath navigable waters' to include at least all lands lying within three geographical miles of the coast of each State.20 However, they contained no definition of'boundaries,' and it was apparently assumed that the boundaries of all States extended at least three miles.21 Opponents of such legislation quickly pointed out that while California based its three-mile claim on an expressly defined maritime boundary, many, if not most, of the coastal States lacked such a boundary,22 and that therefore, such States could not avail themselves of the Pollard rule, the applicability of which is restricted to areas within the actual territorial boundaries of the State, even assuming the rule to be capable of application beyond low-water mark.23 Proponents of the legislation alleged it to be defective in that it granted only those lands beneath navigable waters which lay within state boundaries, and that this Court in the California case, while not expressly passing on the question, had cast doubt on whether any of the original States ever had a boundary beyond its coast.24 As a result, a new section was added, substantially similar to the second and third sentences of § 4 of the present Act (see note 8, 363 U.S. 10, 80 S.Ct. 968), which permitted each State which had not already done so to extend its boundary seaward three miles and approved all such extensions theretofore or thereafter made, without prejudice to any State's claim that its boundary extended beyond three miles.25 It is not entirely clear on what theory Congress thus concluded that each State owned the submerged lands within three miles of its coast, irrespective of the existence of an expressly defined seaward boundary to that distance. It was substantially agreed that the 13 original Colonies owned the lands within three miles of their coasts because of their sovereignty and the alleged international custom which permitted a nation to extend its territorial jurisdiction that far.26 Some proponents of the legislation seem to have concluded that therefore, not only did the original States retain such rights after formation of the Union, but that subsequently admitted States acquired similar rights within three miles, irrespective of the location of their boundaries, by the operation of the equal-footing clause.27 It was also suggested that state ownership within three miles came about by operation of federal law because of the Federal Government's assumed adherence to the three-mile limit of territorial waters.28 While some speakers maintained that these factors in effect gave each State a three-mile maritime boundary,29 others eschewed technical reliance on the matter of boundaries and thought it sufficient that the Pollard rule had always been thought to confer ownership on the State of lands within three miles of the coast and that the States ought to be restored to the position they believed they had formerly occupied.30 And there is some suggestion that since many States, under the Congressional view of Pollard, had indisputable claims to three miles of submerged lands, the remainder ought to be treated on a parity whether or not their claims were technically justified.31 The upshot of all of these differing views was the confirmation of each coastal State's seaward boundary at three geographical miles. Whatever may have been the uncertainty attending the relevance of state boundaries with respect to rights in submerged lands within three miles of the coast, we find a clear understanding by Congress that the question of rights beyond three miles turned on the existence of an expressly defined state boundary beyond three miles. Congress was aware that several States claimed such a boundary. Texas throughout repeatedly asserted its claim that when an independent republic its statutes established a three-league maritime boundary, and that the United States ratified that boundary when Texas was admitted to the Union and permitted Texas to retain its own public lands.32 Florida repeatedly asserted its claim that subsequent to its secession at the time of the Civil War, it framed a constitution which established a three-league boundary along its Gulf coast, and that such boundary was ratified when Congress in 1868, 15 Stat. 73, approved the State's constitution and readmitted it to the Union.33 Louisiana asserted that the Act of Congress admitting it to the Union in 1812, 2 Stat. 701, fixed for it a three-league maritime boundary by virtue of the provision which includes within the State 'all islands within three leagues of the coast.'34 And it was suggested that Mississippi and Alabama might claim boundaries six leagues in the Gulf because of similar provisions in the Acts admitting them to the Union.35 It was recognized that if the legal existence of such boundaries could be established, they would clearly entitle the respective States to submerged land rights to that distance under an application of the Pollard rule to the marginal sea. Hence, while a three-mile boundary was expressly confirmed for all coastal States, the right of the Gulf States to prove boundaries in excess of three miles was preserved. This treatment of the matter was carried into all the numerous 'quitclaim' bills by language similar to that found in § 4 of the present Act, confirming all coastal state boundaries at three miles and negating any prejudice to boundary claims in excess of that.36 Repeated expressions of the Act's sponsors make it absolutely clear that no boundary in excess of three miles was fixed for any State, but that a State would have to establish the existence of such a boundary in judicial proceedings.37 The many individual expressions of views as to the location of particular state boundaries—notably statements that the effect of the Act would be to give Texas and Florida three leagues of submerged land rights38—while undoubtedly representing the sincere beliefs of the speakers, cannot serve to relieve this Court from making an independent judicial inquiry and adjudication on the subject, as contemplated by Congress. The earlier 'quitclaim' bills defined the grant in terms of presently existing boundaries,39 since such boundaries would have circumscribed the lands owned by the States under an application of Pollard to the marginal sea. However, the sponsors of these measures soon recognized that present boundaries could be ascertained only by reference to historic events. The claims advanced by the Gulf States during consideration of earlier bills were identical to those subsequently asserted.40 The theory of those claims, as we have noted, depended either, as in the cases of Texas and Florida, upon a constitutional or statutory provision allegedly ratified by Congressional acquiescence, or, as in the cases of Louisiana, Mississippi, and Alabama, upon express Congressional action. Indeed, it could hardly have been contended that Congressional action surrounding the event of admission was not relevant to the determination of present boundaries. Some suggestions were made, however, that States might by their own action have effectively extended, or be able to extend, their boundaries subsequent to admission.41 To exclude the possibility that States might be able to establish present boundaries based on extravagant unilateral extensions, such as those recently made by Texas and Louisiana,42 subsequent drafts of the bill introduced the twofold test of the present Act—boundaries which existed at the time of admission and boundaries heretofore approved by Congress.43 It is apparent that the purpose of the change was not to alter the basic theory of the grant, but to assure that the determination of boundaries would be made in accordance with that theory—that the States should be 'restored' to the ownership of submerged lands within their present boundaries, determined, however, by the historic action taken with respect to them jointly by Congress and the State.44 It was such action that the framers of this legislation conceived to fix the States' boundaries against subsequent change without their consent and therefore to confer upon them the long-standing equities which the measure was intended to recognize.45 Somewhat later, the last sentence of the present Act's § 4 was added, for the specific purpose of assuring that the boundary claims of Texas and Florida would be preserved.46 The first part of the sentence (see note 8, 363 U.S. 10, 80 S.Ct. 968), intended to refer to Texas alone, protects the State's claim to a three-league boundary as 'provided by its constitution or laws prior to or at the time such State became a member of the Union.' That claim, however, was asserted to rest not only on its statute but also on the action of Congress in admitting it to the Union.47 If any doubt could remain that the event of admission is a vital circumstance in ascertaining the location of boundaries which existed 'at the time' of admission within the meaning of the Submerged Lands Act, it is conclusively dispelled by repeated statements of its proponents to that effect.48 We conclude, therefore, that the States' contention that preadmission boundaries, standing alone, suffice to meet the requirements of the statute is not tenable. 3. The Question of Executive Policy Respecting the 'Three-Mile Limit.' During consideration of the various 'quitclaim' bills between 1945 and 1953, the suggestion that international questions might be raised by the bill constantly recurred. It was asserted that the United States might be embarrassed in its dealings with other nations, first, by permitting States to exercise rights in submerged lands beyond three miles,49 and, second, by recognizing that the boundaries of some States might extend beyond three miles from the coast.50 The first objection was laid to rest by the testimony of Jack B. Tate, Deputy Legal Adviser to the State Department. Mr. Tate stated that exploitation of submerged lands involved a jurisdiction of a very special and limited character, and he assured the Committee that assertion of such a jurisdiction beyond three miles would not conflict with international law or the traditional United States position on the extent of territorial waters. He concluded that since the United States had already asserted exclusive rights in the Continental Shelf as against the world, the question to what extent those rights were to be exercised by the Federal Government and to what extent by the States was one of wholly domestic concern within the power of Congress to resolve.51 The second objection, however—that to recognize by the Act the possible existence of some state maritime boundaries beyond three miles would embarrass this country in its dealings with other nations—was persistently pressed by the State Department and by opponents of the bill. The bill's supporters consistently took the position that under the Pollard rule as they understood it, the extent of a State's submerged land rights in excess of three miles depended entirely upon the location of its maritime boundary as fixed by historical events,52 and that to the extent a State's boundary had been so fixed beyond three miles, it constituted an exception to this country's assumed adherence to the three-mile limit. The admission of Texas and the readmission of Florida were repeatedly asserted as instances where Congress had made exceptions to the three-mile policy, purportedly based on the shallowness of waters in the Gulf and the alleged Spanish custom of claiming three leagues of territorial waters.53 The State Department, confronted with this argument, tenaciously maintained that it had never recognized any boundaries in excess of three miles.54 It insisted that by virtue of federal supremacy in the field of foreign relations, the territorial claims of the States could not exceed those of the Nation, and that, therefore, if the bill recognized the effectiveness of the relied-on historical events to fix boundaries beyond three miles despite the State Department's refusal so to recognize them, the bill would violate this country's consistent foreign policy. The Government now urges in this case a closely similar contention. It says that the Submerged Lands Act did not establish any formula for the ascertainment of state boundaries but left them to be judicially determined, and that because of federal supremacy in the field of foreign relations, this Court must hold that the Executive policy of claiming no more than three miles of territorial waters—allegedly in force at all relevant times, and evidenced by the State Department's consistent refusal to recognize boundaries in excess of three miles—worked a decisive limitation upon the extent of all state maritime boundaries for purposes of this Act.55 We agree that the Submerged Lands Act does not contain any formula to be followed in the judicial ascertainment of state boundaries, and that therefore, we must determine, as an independent matter, whether boundaries, for purposes of the Act, are to be taken as fixed by historical events such as those pointed to in the Congressional hearings and debates, or whether they must be regarded as limited by Executive policy on the extent of territorial waters, as contended by the Government. However, in light of the purely domestic purposes of the Act, we see no irreconcilable conflict between the Executive policy relied on by the Government and the historical events claimed to have fixed seaward boundaries for some States in excess of three miles. We think that the Government's contentions on this score rest on an oversimplification of the problem. A land boundary between two States is an easily understood concept. It marks the place where the full sovereignty of one State ends and that of the other begins. The concept of a boundary in the sea, however, is a more elusive one. The high seas, as distinguished from inland waters, are generally conceded by modern nations to be subject to the exclusive sovereignty of no single nation.56 It is recognized, however, that a nation may extend its national authority into the adjacent sea to a limited distance for various purposes. For hundreds of years, nations have asserted the right to fish, to control smuggling, and to enforce sanitary measures within varying distances from their seacoasts.57 Early in this country's history, the modern notion had begun to develop that a country is entitled to full territorial jurisdiction over a belt of waters adjoining its coast.58 However, even this jurisdiction is limited by the right of foreign vessels to innocent passage.59 The extent to which a nation can extend its power into the sea for any purpose is subject to the consent of other nations, and assertions of jurisdiction to different distances may be recognized for different purposes.60 In a manner of speaking, a nation which purports to exercise any rights to a given distance in the sea may be said to have a maritime boundary at that distance. But such a boundary, even if it delimits territorial waters, confers rights more limited than a land boundary. It is only in a very special sense, therefore, that the foreign policy of this country respecting the limit of territorial waters results in the establishment of a 'national boundary.' The power to admit new States resides in Congress. The President, on the other hand, is the constitutional representative of the United States in its dealings with foreign nations. From the former springs the power to establish state boundaries; from the latter comes the power to determine how far this country will claim territorial rights in the marginal sea as against other nations. Any such determination is, of course, binding on the States. The exercise of Congress' power to admit new States, while it may have international consequences, also entails consequences as between Nation and State. We need not decide whether action by Congress fixing a State's territorial boundary more than three miles beyond its coast constitutes an overriding determination that the State, and therefore this country, are to claim that much territory against foreign nations. It is sufficient for present purposes to note that there is no question of Congress' power to fix state land and water boundaries as a domestic matter. Such a boundary, fully effective as between Nation and State, undoubtedly circumscribes the extent of navigable inland waters and underlying lands owned by the State under the Pollard rule. Were that rule applicable also to the marginal sea—the premise on which Congress proceeded in enacting the Submerged Lands Act—it is clear that such a boundary would be similarly effective to circumscribe the extent of submerged lands beyond low-water mark, and within the limits of the Continental Shelf, owned by the State. For, as the Government readily concedes, the right to exercise jurisdiction and control over the seabed and subsoil of the Continental Shelf is not internationally restricted by the limit of territorial waters. We conclude that, consonant with the purpose of Congress to grant to the States subject to the three-league limitation, the lands they would have owned had the Pollard rule been held applicable to the marginal sea, a state territorial boundary beyond three miles is established for purposes of the Submerged Lands Act by Congressional action so fixing it, irrespective of the limit of territorial waters. We turn now to the task of ascertaining what boundary was was so fixed for each of the defendant States. The Particular Claims of Texas. Texas, the only one of the defendant States which had the status of an independent nation immediately prior to its admission, contends that it had a three-league maritime boundary which 'existed at the time (it) became a member of the Union' in 1845. Whether that is so for the purposes of the Submerged Lands Act depends upon a proper construction of the Congressional action admitting the State to the Union. Texas declared its independence from Mexico on March 2, 1836, 1 Laws, Republic of Texas, 3—7, Vernon's Ann.St.Const. and on December 19, 1836, the Texan Congress passed an Act to define its boundaries, which were described in part as 'beginning at the mouth of the Sabine river, and running west along the Gulf of Mexico three leagues from land, to the mouth of the Rio Grande, thence up the principal stream of said river. * * *' Id., 133. (Emphasis added.) See diagram at 363 U.S. 65, 80 S.Ct. 998.61 In March 1837 this country recognized the Republic of Texas.62 On April 25, 1838, the United States entered into a convention with the Republic to establish a boundary between the two countries and to provide for a survey of part of it.63 On April 12, 1844, President Tyler concluded a Treaty of Annexation with the Republic, but on June 8, 1844, the Senate refused to retify it.64 On March 1, 1845, President Tyler signed a Joint Resolution of Congress for the annexation of Texas, which provided: 'That Congress doth consent that the territory properly included within, and rightfully belonging to the Republic of Texas, may be erected into a new State, to be called the State of Texas * * *. Said State to be formed, subject to the adjustment by this government of all questions of boundary that may arise with other governments * * *.'65 (Emphasis added.) Pursuant to this Resolution, the people of Texas adopted a constitution, Const. 1845, Vernon's Ann.St., which was submitted to Congress, and by Joint Resolution of December 29, 1845, Texas was admitted to the Union in accordance with the terms of the previous Joint Resolution.66 The 1836 Texas Boundary Act remained in force up to the time of admission, and the State Constitution expressly continued in force from that time forward all laws of the Republic not repugnant to the Federal or State Constitution or the Joint Resolution of Annexation.67 The Government, while conceding that Texas continuously asserted by statute a three-league seaward boundary, contends that at no time before, during, or after admission did the United States or any other country recognize the validity of that boundary. It follows, therefore, the Government says, that since Texas upon entering the Union became subject to the foreign policy of the United States with respect to the 'three-mile limit,' the State's seaward boundary became immediately and automatically fixed at three miles. Texas, on the other hand, argues that it effectively established, and that the United States repeatedly recognized, the State's three-league boundary before, during, and after admission, and that therefore such a boundary existed 'at the time' of its admission within the meaning of the Submerged Lands Act. For reasons already discussed, 363 U.S. at pages 24—36, 80 S.Ct. at pages 976—982, we consider that the only relevant inquiry is what boundary was fixed for the State of Texas by virtue of the Congressional action admitting it to the Union in accordance with the terms of the Joint Resolution of March 1, 1845. This inquiry first takes us back to some earlier history. By the Treaty of Paris, signed April 30, 1803,68 France ceded to the United States the Louisiana Territory. The extent of the territory thus conveyed was left uncertain, the description in the Treaty referring only to a previous treaty by which France had acquired the territory from Spain, which in turn described the area only as 'the colony or province of Louisiana.'69 It was asserted by some that the territory acquired did not stop at the Sabine River the present boundary between the States of Louisiana and Texas—but extended westward to the Rio Grande so as to include Texas.70 However, by the Treaty of February 22, 1819, between the United States and Spain, the boundary line between the two countries was established at the Sabine.71 Those who had believed that the Louisiana Territory extended west of the Sabine decried this Treaty as a breach of faith by the United States in violation of the covenant in the 1803 Treaty which required the inhabitants of all the Louisiana Territory to be incorporated as soon as possible into the Union.72 Subsequently, the United States attempted unsuccessfully on several occasions to acquire the territory west of the Sabine by purchase.73 Meanwhile, Mexico had revolted from Spain, had been recognized by this country in 1822, and had proclaimed a federal constitution in 1824. Texas was made part of the compound province of Coahuila-Texas, with the indication that it would eventually be given a separate constitution as a sovereign state. After a series of difficulties with the central government, however, Texas in 1836 proclaimed its own independence from Mexico. It immediately sent diplomatic representatives to the United States to negotiate for annexation, but nothing was consummated at that time.74 Shortly thereafter, it promulgated the 1836 boundary statute referred to above. It was against this background that President Tyler negotiated and sent to the Senate the 1844 Treaty for the annexation of Texas. That document provided: 'The Republic of Texas * * * cedes to the United States all its territories, to be held by them in full property and sovereignty * * *.'75 One of the objections made to the Treaty on the floor of the Senate was that it purported to cede to the United States all the territory claimed by Texas under her 1836 Boundary Act, to large parts of which Texas allegedly had no title, those parts assertedly having always been under the domination and control of Spain and Mexico.76 This objection was countered by several proponents of the Treaty who insisted that since it contained no delineation of boundaries and since the Republic of Texas was referred to by a general designation, the clause 'all its territories' ceded only that which properly and rightfully belonged to Texas, its Boundary Act notwithstanding.77 The proponents pointed also to a letter of instructions written by Secretary of State Calhoun to the United States Charge d'Affaires in Mexico a week after the Treaty was signed, which enjoined the latter, in making the Treaty known to Mexico, 'to assure the Mexican Government that it is his (the President's) desire to settle all questions between the two countries which may grow out of this treaty, or any other cause, on the most liberal and satisfactory terms, including that of boundary * * *. (The United States) has taken every precaution to make the terms of the treaty as little objectionable to Mexico as possible; and, among others, has left the boundary of Texas without specification, so that what the line of boundary should be might be an open question, to be fairly and fully discussed and settled according to the rights of each, and the mutual interest and security of the two countries.'78 Despite these controversial aspects of the Treaty, it is quite apparent that its supporters desired to press Texas' boundary claims to the utmost degree possible. President Tyler, in response to the Senate's request, transmitted to it a map showing the western and southwestern boundaries of Texas, and according generally with the Texas Boundary Act.79 Senator Walker of Mississippi, while insisting that the Treaty ceded 'only * * * the country embraced within its (Texas') lawful boundaries,' asserted that in fact her lawful boundary extended to the Rio Grande, that it had extended that far when she was ceded away by the United States in 1819, that the United States had acquiesced in those boundaries when it recognized Texas in 1837, and that Mexico had never protested the Convention of 1838 which allegedly validated that boundary.80 Senator Breese of Illinois, while assuring the Treaty's opponents that the boundary was left open to future determination, avowed that the United States had acknowledged the Texas boundaries as asserted in her 1836 statute, and that he was in favor of the recovery not only of the old province of Texas as it existed in 1803 and 1819, but also 'for as much more as the 'republic' of Texas can lawfully claim.'81 Senators Woodbury of New Hampshire and Buchanan of Pennsylvania, while expressing doubt about the validity of the Texas Boundary Act to the extent that it claimed portions of New Mexico, thought it was valid so far as it pressed beyond the Nueces to the Rio Grande and ought to be maintained.82 After the failure of the Treaty, which would have annexed Texas as a territory of the United States, several proposals were introduced in the next session of Congress for the annexation of Texas by a Joint Resolution admitting it immediately as a State.83 The doubts which had been raised in 1844 as to the validity of certain Texan pretensions to territory on her western and southwestern frontiers were reiterated during consideration of the various Resolutions, and reference was made to the fact that the rejected Treaty had been assailed as purporting to embrace such territory.84 In 1844, supporters of the Treaty had considered the general designation 'all its territories' as ceding only territory which rightfully, properly, or lawfully belonged to Texas, and as leaving to the Executive the duty of settling the extent of that territory by amicable negotiation.85 The two clauses of the 1845 Annexation Resolution (363 U.S. 37, 80 S.Ct. 983), appear, against this background, to be an express formulation of precisely the same thing. The first makes it clear that the grant is of initially undefined scope, governed by the truism that only 'the territory properly included within, and rightfully belonging to the Republic of Texas' is ceded. The second expressly contemplates future negotiation to settle the exact extent of such territory, by making it 'subject to the adjustment by this government of all questions of boundary that may arise with other governments.' In short, it is clear that the 'properly' and 'rightfully' clause was intended neither as a legislative determination that the entire area claimed by Texas was legitimately hers, nor to serve, independently of the 'adjustment' clause, as a self-operating standard for measuring Texas' boundaries. Rather, the precise fixation of the new State's boundaries was left to future negotiations with Mexico. The circumstances surrounding the Resolution's passage make it clear that this was the understanding of Congress. Congressional attention was focused primarily on the great political questions attending annexation—primarily the extent to which slavery would be permitted in the new territory and the possibility that annexation would embroil this country with Mexico and the matter of boundary received little consideration except as it was related to the larger issues. Public agitation over annexation had become so great that some bills had proposed annexation virtually in the abstract, with all details to be worked out later.86 Although the Resolution as ultimately passed did settle the details of certain matters—notably slavery, the Texan debt, and the mode of annexation—the manifest purport of it and all the many other annexation bills introduced was to postpone the fixing of boundaries for the sake of achieving immediate annexation, and no apparent importance was attached to the particular verbal formula used to achieve such postponement.87 The general tenor of opposition to annexation changed from a fear that the cession covered too much to criticisms of the indefinite treatment of boundary and concern over whether Texas really owned as much as some supporters asserted.88 It is true that isolated statements were made which seem to indicate that the speaker thought the Resolutions would admit Texas with the boundary defined in her 1836 boundary statute, subject to possible subsequent readjustment.89 However, read in context, these statements may have meant no more than that the United States, in its negotiations with Mexico, would attempt to sustain the full extent of Texas' declared boundaries, rather than that those boundaries were in fact proper. Be that as it may, in view of the overwhelming evidence of Congressional understanding and of the express language of the Annexation Resolution as ultimately passed, the conclusion is inescapable that Texas at least as to its land area, was admitted with undefined boundaries subject to later settlement. While this conclusion appears unavoidable as regards Texas' land boundaries, a question does exist as to whether it applies also to the State's seaward boundary. For we are unable to find in the Congressional debates either on the 1844 Treaty or the 1845 Annexation Resolution a single instance of significant advertence to the problem of seaward boundaries. Furthermore, a series of other events manifests a total lack of concern with the problem. Prior to Texan independence, the United States had entered into successive treaties with Spain and Mexico,90 which provided that 'The boundary line between the two countries, west of the Mississippi, shall begin on the Gulph of Mexico, at the mouth of the river Sabin, in the sea, continuing north, along the western bank of that river * * *.' (Emphasis added.) Just after Texas had proclaimed its independence from Mexico, the two countries, on May 14, 1836, concluded 'Articles of Agreement and Solemn Compact,' acknowledging Texan independence and setting its boundary as follows: 'The line shall commence at the estuary or mouth of the Rio Grande, on the western bank thereof, and shall pursue the same bank up the said river * * *.'91 (Emphasis added.) Thereafter a minister was sent to the United States to seek recognition and broach the subject of annexation. With respect to the latter, he was instructed on November 18, 1836: 'As regards the boundaries of Texas * * * (w)e claim and consider that we have possession to the Rio Bravo del Norte. Taking this as the basis, the boundary of Texas would be as follows. Beginning at the mouth of said River on the Gulf of Mexico, thence up the middle thereof * * *.'92 (Emphasis added.) Yet a month later, on December 19, 1836, the Texan Congress passed the Boundary Act which inexplicably, so far as we can find, provided that the boundary should run along the Gulf of Mexico at three leagues from land.93 Quite in contrast, in the subsequent Convention of 1838 to establish the boundary between the United States and Texas, Texas reaffirmed the 1819 and 1828 Treaties with Spain and Mexico regarding that boundary and agreed to the running and marking of 'that portion of the said boundary which extends from the mouth of the Sabine, where that river enters the Gulph of Mexico, to the Red river.'94 (Emphasis added.) Again, as previously mentioned (note 79, 363 U.S. 41, 80 S.Ct. 985), during its consideration of the unratified Treaty of April 12, 1844, the Senate requested President Tyler to transmit any information he possessed concerning the southern, southwestern, and western boundaries of Texas. On April 26, 1844, he sent a map and a memoir by its compiler. The memoir flagrantly misquoted the 1836 Boundary Act by describing the Texas boundary as "Beginning at the mouth of the Rio Grande, thence up the principal stream of said river * * *."95 The foregoing circumstances make it abundantly plain that at the time Texas was admitted to the Union, its seaward boundary, though expressly claimed at three leagues in the 1836 Texas Boundary Act, had not been the subject of any specific concern in the train of events leading to annexation. Given this state of affairs, we must initially dispose of an argument made by Texas. The State urges, in effect, that whether or not its maritime boundary was actually considered by the Congress or the Executive during the course of the annexation proceedings, it was incumbent upon the United States to protest or reject in some manner Texas' claim in this regard, and that failure to do so constituted in law a validation or ratification of that boundary claim upon admission. Whatever the merit of this proposition may be in the abstract, the controlling factor for purposes of this case must be the terms of the Joint Resolution of Annexation. There is, indeed, a strong argument that the 'properly,' 'rightfully,' and 'adjustment' clauses of that Resolution should be read as applying only to the land boundaries disputed with Mexico, which give rise to those qualifications, and that the Resolution was meant to validate any boundary asserted by Texas without protest. However, in light of the fact that the language employed in the Resolution is of general applicability, we should hesitate to limit its effect by reading into it such an additional unexpressed test respecting the extent of Texas' boundaries. We think that its language must be taken as applying to Texas' maritime boundary as well as to its land boundary. On this basis an argument of the Government must now be met. It is contended that since Texas was admitted to the Union with its maritime boundary not yet settled, United States foreign policy on the extent of territorial waters, to which Texas was admittedly subject from the moment of admission, automatically upon admission operated to fix its seaward boundary at three miles. This contention must be rejected. As we have noted, the boundaries contemplated by the Submerged Lands Act are those fixed by virtue of Congressional power to admit new States and to define the extent of their territory, not by virtue of the Executive power to determine this country's obligations via-a -vis foreign nations. 363 U.S. at pages 30—36, 80 S.Ct. at pages 979—982. It may indeed be that the Executive, in the exercise of its power, can limit the enjoyment of certain incidents of a Congressionally conferred boundary, but it does not fix that boundary. If, as in the case of Texas, Congress employs an uncertain standard in fixing a State's boundaries, we must nevertheless endeavor to apply that standard to the historical events surrounding admission. We are brought back, then, to a twofold inquiry: First, whether the three-league maritime boundary asserted by the Republic of Texas embraced an area which was 'properly included within, and rightfully belonging to' the Republic. Second, whether such a boundary was ever fixed for the State of Texas pursuant to the power reserved by Congress to adjust 'all questions of boundary that may arise with other governments.' As we have observed, it is evident that the first clause, independently of the second, was not intended to operate as a self-executing standard for determining the disputed western and southwestern boundaries of Texas. To attempt to apply that clause as fixing the extent of Texas' maritime boundary, immediately upon admission to the Union, no less than in so fixing its land boundaries, would be illusory at best. The parties devote considerable discussion to the validity or invalidity of the asserted three-league maritime boundary under international law. It is true that the propriety of a nation's seaward boundary must be viewed in the context of its obligations vis-a -vis the family of nations. But surely the Joint Resolution of Annexation could not have been meant to import such an elusive inquiry into the determination of Texas' maritime boundary, especially when that question was never even considered and when the Resolution was expressly drawn to leave undefined the land boundaries which did receive consideration. And we are unable to say that Congress might have deemed the three-league maritime boundary 'proper' or 'rightful' in some other sense. It is necessary, therefore, to look to other events to ascertain where the Texan maritime boundary was fixed pursuant to the Joint Resolution of Annexation. Congress' failure to carry into the Annexation Resolution the boundaries fixed by the 1836 Texas Boundary Act did not, of course, foreclose the possibility that the State's boundary might ultimately be fixed in accordance with that statute. It is significant in this regard to note the opinions ventured in Congress on the probable settlement of the boundary with Mexico which would occur subsequent to annexation. One group asserted that the Texan claims to the Rio Grande, particularly the portion which encompassed New Mexico, could not possibly be maintained.96 But such remarks were made primarily by opponents of annexation and were intended as warnings against assuming that enough land would be included in the cession to pay the Texan debt or to form free States. Much more significant than opinions as to where the boundary might ultimately be fixed are observations made regarding the basis on which the boundary question might be pressed against Mexico. Supporters and opponents alike acknowledged that the United States would probably negotiate on the basis of the Texan boundaries as declared in her own boundary statute, even though some parts of that boundary might not be maintainable. Some thought this was so because those boundaries were in fact her proper and rightful boundaries.97 Others thought it was so because the United States, having acquiesced in the Boundary Act after receiving notice of it, was bound, upon admitting Texas to the Union, to maintain those claims on her behalf.98 Whatever the reasons given, it is clear that Congress, although it purposely refused to settle the question, anticipated that the Texas Boundary Act should and would be insisted on to the greatest degree possible in negotiations with Mexico. This prediction was borne out by subsequent events. After the Annexation Resolution had been passed the transmitted to Texas for its assent, the Mexican army threatened to cross the Rio Grande and invade Texas. On June 15, 1845, President Polk wrote an informal and confidential letter to the United States Charge d'Affairs in Texas which indicated that Polk intended to repel such an invasion and to maintain the Texan claim at least to the lower portion of the Rio Grande: 'In the contingency * * * that a Mexican army should cross the Rio Grande * * * then in my judgment, —the public necessity for our interposition—will be such, that we should not stand—quietly by—and permit—an invading foreign enemy—either to occupy or devastate any portion of the Texian territory. Of course I would maintain the Texan title to the extent which she claims it to be, and not permit an invading enemy—to occupy a foot of the soil East of the Rio Grande.' Andrew Donelson Papers (Library of Congress), Vol. 10, folios 2068—2070. Nine days before, Polk had manifested a similar intention in a letter to Sam Houston, former President of the Republic of Texas and an influential spokesman for annexation: 'You may have no apprehensions in regard to your boundary. Texas once a part of the Union and we will maintain all your rights of territory and will not suffer them to be sacrificed.' Polk Papers (Library of Congress) (1845), Vol. 84. The attitude of the Executive at this time toward the Texan boundary is made even more explicit by an account of an interview between the United States Charge d'Affaires in Texas and Sam Houston, written by the former to his superior, the Secretary of State: 'I stated at large the general policy of the United States as justifying no doubt of the tenacity with which they would maintain not only the present claim of Texas, but reenforce it with the preexisting one derived from France in 1803 * * * 'I brought also to his view the fact that this latter feature of the proposals did not interfere with the right of Texas to define her limits as she claimed them, in her statutes—that the specification of the Rio Grande as the western boundary would be proper enough as shewing the extent to which the United States would maintain her claim as far as it could be done without manifest injustice to Mexico, and to the portion of the inhabitants of Mexico that had never yet acknowledged the jurisdiction of Texas—that practically the United States would take the place of Texas, and would be obligated to do all, in this respect, that Texas could do, were she to remain a separate nation.'99 After Texas consented to annexation and Congress had finally admitted her to statehood, the Mexican army crossed the Rio Grande and declared war upon the United States. On May 11, 1846, President Polk called on Congress to declare war against Mexico. He said in part: 'Texas, by the final action of our Congress, had become an integral part of our Union. The Congress of Texas, by its act of December 19, 1836, had declared the Rio del Norte to be the boundary of that republic. Its jurisdiction had been extended and exercised beyond the Nueces. The country between that river and the Del Norte had been represented in the congress and in the convention of Texas; had thus taken part in the act of annexation itself; and is now included within one of our congressional districts. Our own Congress had, moreover, with great unanimity, by the act approved December 31, 1845, recognized the country beyond the Nueces as a part of our territory, by including it within our own revenue system; and a revenue officer, to reside within that district, has been appointed, by and with the advice and consent of the Senate. It became, therefore, of urgent necessity to provide for the defence of that portion of our country.' H.R.Exec.Doc. No. 60, 30th Cong., 1st Sess. 4, 7. In a later message to Congress on December 8, 1846, Polk manifested the same disposition, H.R.Exec.Doc. No. 4, 29th Cong., 2d Sess. 13—14. And on December 7, 1847, he explained that the United States had rejected a treaty proposal by Mexico because 'It required the United States to dismember Texas, by surrendering to Mexico that part of the territory of that State lying between the Nueces and the Rio Grande, included within her limits by her laws when she was an independent republic, and when she was annexed to the United States and admitted by Congress as one of the States of our Union.' H.R.Exec.Doc. No. 8, 30th Cong., 1st Sess. 9. However, there is absolutely nothing to indicate that the Executive, any more than the Congress, was interested in, or was at all aware of any problem presented by, the seaward boundary of Texas claimed in its 1836 Boundary Act. The Government urges, by way of explanation, that the United States had, by this time, firmly established a policy of claiming no more than three miles of territorial waters. But the Executive's responsibility for fixing the Texan boundary derived from a delegation of Congressional power to admit new States, not from the Executive's own power to fix the extent of territorial waters. As we have already pointed out, the two powers can operate independently, and only the first is determinative in this case. To the extent it may be argued that the Executive would naturally take account of its own policy toward territorial waters in fixing the Congressionally mandated boundary, the data presented to us are utterly devoid of any suggestion that such was the case. On the contrary, it is evident that the overwhelming concern of the President and his subordinates was to maintain to the greatest extent possible the land boundaries claimed by Texas and disputed with Mexico, as anticipated by Congress. The settlement of that matter remained for future events, to which we now turn. On April 15, 1847, Nicholas P. Trist was appointed Commissioner to Mexico to negotiate a peace treaty. Among his instructions was a project of the proposed treaty, which provided: 'The boundary line between the two Republics shall commence in the Gulf of Mexico three leagues from land opposite the mouth of the Rio Grande, from thence up the middle of that river * * *.' 5 Miller, Treaties and Other International Acts of the United States of America (1937), 265. (Emphasis added.) This language was incorporated verbatim into Article V of the Treaty of Guadalupe Hidalgo as finally signed on February 2, 1848, 9 Stat. 922, which fixed the boundary between the United States and Mexico from the Gulf of Mexico to the Pacific coast.100 While there was considerable disagreement in the negotiations over the various land boundaries, the proposals of both parties never departed from the three-league provision. See 5 Miller, op. cit. supra, at 270, 288, 289, 315, 317, 325. Tirst stated in his notes that one object of instructions given to his predecessor, substantially identical in relevant part to those given him, was to get Mexico to agree to a boundary which 'would throw within the territory of the United States the country lying east of the Rio Grande. Or, as said object stands in said instructions, specifically stated & expressed, it was the object of prevailing upon Mexico 'to agree that the line shall be established along the boundary defined by the act of Congress of Texas, approved December 19, 1836, to wit: beginning at 'the mouth of the Rio Grande; thence up the principal stream of said river * * *.'"101 While this misquotation of the Texas Boundary Act again demonstrates total insensitivity to any problem of a seaward boundary, the passage does indicate that the United States was attempting to follow the Texas statute in negotiating the boundary.102 More important for the purposes of this case are the circumstances that the three-league provision was made an express part of the Treaty of Guadalupe-Hidalgo, that such boundary was reaffirmed five years later in the Gadsden Treaty of December 30, 1853103 and subsequently in a long line of international conventions,104 and that it has never been repudiated. The Treaty unquestionably established the Rio Grande from New Mexico to the Gulf as the land boundary not only of the United States but also of Texas, since the Executive, acting pursuant to the power given by Congress to 'adjust' Texas' boundaries in dealings with other nations, pressed that boundary against Mexico on the theory that it embraced territory rightfully belonging to the State of Texas. There is nothing to indicate that the extension of that boundary three leagues into the Gulf, pursuant to the very same Boundary Act, was treated on any different basis. The portion of the boundary extending into the Gulf, like the rest of the line, was intended to separate the territory of the two countries, and to recognize that the maritime territory of Texas extended three leagues seaward. Whether the Treaty be deemed to constitute an exercise of the power to adjust the boundaries left unsettled by the 1845 Joint Resolution of Annexation, or a post hoc recognition of a seaward boundary which was actually fixed for Texas upon its admission in 1845, or a fixation of boundaries which related back to the time of admission, is of no moment. Although the Submerged Lands Act requires that a State's boundary in excess of three miles must have existed 'at the time' of its admission, that phrase was intended, in substance, to define a State's present boundaries by reference to the events surrounding its admission. As such, it clearly includes a boundary which was fixed pursuant to a Congressional mandate establishing the terms of the State's admission, even though the final execution of that mandate occurred a short time subsequent to admission. The Government contends that the Treaty of Guadalupe Hidalgo is of no significance in this case because the line drawn three leagues out to sea was not meant to separate territory of the two countries, but only to separate their rights to exercise certain types of 'extraterritorial' jurisdiction with respect to customs and smuggling. We believe the conclusion is clear that what the line, denominated a 'boundary' in the Treaty itself, separates is territory of the respective countries. No reference to 'extraterritorial' jurisdiction is made in the Treaty, and no such concept can be gleaned from the context of the negotiations. Being based on the three-league provision of the 1836 Texas Boundary Act, which itself denotes a territorial boundary, the obvious and common-sense meaning of the analogous treaty provision is that it separates the maritime territory of the United States and Mexico. The Government relies on certain diplomatic correspondence as evidencing a subsequent construction of the Treaty contrary to this conclusion. In 1848, when Great Britain protested the three-league provision of the Treaty, both the United States and Mexico replied that the Treaty defined rights only as between the two countries and was not intended to impair the rights of any other nation in the marginal sea.105 In 1875, Secretary of State Hamilton Fish made a similar explanation to Lord Derby of England, but added a new contention that the boundary provision was 'probably' suggested by the Acts of Congress permitting revenue officials to board vessels bound for the United States within four leagues of the coast.106 And in 1936, after Mexico had asserted a three-league belt of territorial water along its entire coast, the United States, in denying that the Treaty gave Mexico such a right, adopted both rationales relied on in 1875, and in addition contended that the boundary provision did recognize the territory of the two countries as extending three leagues from the coast, but only in the 'one area' adjacent to the international boundary.107 It seems evident from the shifting and uncertain grounds upon which these pronouncements relied that they should be taken as reflecting no more than after-the-fact attempts to limit the effect of a provision which patently purported to establish a three-league territorial boundary, so as to bring it into accord with this country's international obligations. Undoubtedly the Executive has the right to limit the effect to be accorded a treaty provision in its dealings with other countries. But where, as here, that Treaty touches upon relationships between the Nation and a State created pursuant to a Congressional mandate, the original purport of the Treaty must control, and the dealings of the Executive with other nations cannot affect the State's rights in any way as a domestic matter. We conclude, therefore, that pursuant to the Annexation Resolution of 1845, Texas' maritime boundary was established at three leagues from its coast for domestic purposes. Of course, we intimate no view on the effectiveness of this boundary as against other nations. Accordingly, Texas is entitled to a grant of three leagues from her coast under the Submerged Lands Act. Louisiana's claims, like those of Texas, are based on the contention that it had a three-league maritime boundary which existed "at the time" it was admitted to the Union, and must be judged by the same standards. The Act of Congress admitting the State to the Union in 1812107a described the new State's boundaries as follows: "beginning at the mouth of the river Sabine; thence, by a line to be drawn along the middle of said river, including all islands to the thirty-second degree of latitude; thence, due north, to the northernmost part of the thirty-third degree of north latitude; thence, along the said parallel of latitude, to the river Mississippi; thence, down the said river, to the river Iberville; and from thence, along the middle of the said river, and lakes Maurepas and Ponchartrain, to the gulf of Mexico; thence, bounded by the said gulf, to the place of beginning, including all islands within three leagues of the coast...." (Emphasis added.) Louisiana claims that the concluding clause "including all islands within three leagues of the coast" should be read to mean that Congress fixed as the State's seaward boundary a line three leagues from its coast, and that such a reading is supported both by the State's preadmission history and by subsequent events. The Government, on the other hand, insists that the phrase includes only the islands themselves lying within three leagues of the coast, and not all water within that distance as well.108 The language of the Act itself appears clearly to support the Government's position. The boundary line is drawn down the middle of the river Iberville 'to the gulf of Mexico,' not into it for any distance. The State is thence to be bounded 'by the said gulf,' not by a line located three leagues out in the Gulf, 'to the place of beginning,' which is described as 'at the mouth of the river Sabine,' not somewhere beyond the mouth in the Gulf. (Emphasis added.) And while 'all islands' within three leagues of the coast were to be included, there is no suggestion that all waters within three leagues were to be embraced as well. In short, the language of the Act evidently contemplated no territorial sea whatever. Similar language was employed in the Treaty of Paris of September 3, 1783, by which Great Britain recognized the independence of the United States.109 After describing the boundary of the United States from the mouth of the St. Croix River in the Bay of Fundy to the mouth of the St. Mary's River between Georgia and Florida, the parties added: 'comprehending all islands within twenty leagues of any part of the shores of the United States * * *.' In the light of Jefferson's observation, only 10 years later, that national claims to control of the sea beyond approximately 20 miles from the coast had not therefore been generally recognized among maritime powers;110 his accompanying proposal that a three-mile limit should be placed upon the extent of territorial waters;111 and subsequent American and British policy in this regard, see note 54, supra, it is hardly conceivable that this provision of the Treaty was intended to establish United States territorial jurisdiction over all waters lying within 20 leagues (60 miles) of the shore.112 No reason appears for reading the Louisiana statute differently. The conclusion that language claiming all islands within a certain distance of the coast is not meant to claim all the marginal sea to that distance is further confirmed by the Act defining the boundaries of Georgia,113 which claims three miles of marginal sea but all islands within 20 leagues of the coast. That Act provides: 'along the middle of (the St. Mary's) river to the Atlantic Ocean, and extending therein three English miles from low-water mark; thence running in a northeasterly direction and following the direction of the Atlantic coast to a point opposite the mouth, or inlet, of said Savannah River; and from thence to the mouth or inlet of said Savannah River, to the place of beginning; including all the lands, waters, islands, and jurisdictional rights within said limits, and also all the islands within 20 marine leagues of the seacoast.' Nothing in the case of Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138, tends toward a contrary construction. The Court there held that an Act of Congress designating as an Indian reservation 'the body of lands known as Annette Islands' included the intervening and surrounding waters and submerged lands, which were inland waters admittedly under the control of the United States, whether actually part of the reservation or not. The Court, construing the statute in light of the Indians' historic use of these waters as fishing grounds, merely concluded that Congress intended to include in the area reserved the waters and water bed, as well as the islands, referring to both 'as a single body of lands.' Id., 248 U.S. 89, 39 S.Ct. 42. The construction here contended for by Louisiana would, in contrast, sweep within the State's jurisdiction waters and submerged lands which bear no proximate relation to any islands, and which would otherwise be part of the high seas. Louisiana also contends, relying on United States v. State of Texas, 162 U.S. 1, 16 S.Ct. 725, 40 L.Ed. 867; State of Louisiana v. State of Mississippi, 202 U.S. 1, 26 S.Ct. 408, 50 L.Ed. 913, that this Court has already determined that its boundary includes three leagues of marginal sea. The Texas case, however, involved only the question whether Greer County, in the northwest part of the State, was properly a part of Texas. And even if that case had effectively established a three-league maritime boundary for Texas, which quite evidently it did not, that would not establish a similar boundary for Louisiana. The Mississippi case involved only the issue of the boundary between Louisiana and Mississippi. Louisiana relies on the holding of the Court that because the eastern boundary of Louisiana was a water boundary along the middle of the river Iberville, extending to the Gulf, it went on to include a deep-water sailing channel in the Gulf adjacent to Mississippi. It also relies on a rough map included in the Court's opinion showing a line drawn all the way around the State's coast at some distance in the Gulf. There is, however, no indication whatever that the line so indicated bore any relation to the three-league provision in the Louisiana Act of Admission. Furthermore, if there could be any doubt that only the portion of the water boundary adjacent to Mississippi was considered by the Court, it is dispelled by the Court's statement that 'Questions as to the breadth of the maritime belt or the extent of the sway of the riparian states require no special consideration here. The facts render such discussion unnecessary.' Id., 202 U.S. 52, 26 S.Ct. 422. See also United States v. State of California, supra, 332 U.S. at page 37, 67 S.Ct. at page 1667. Preliminarily, it should be observed that in light of what has already been said, 363 U.S. at pages 24—30, 80 S.Ct. at pages 976—979, Louisiana's preadmission history is relevant in this case only to the extent that it aids in construing the Louisiana Act of Admission. The thrust of the State's argument on this score is that the boundaries fixed by the Act of Admission comprised the entire area acquired by the United States from France through the Louisiana Purchase, effected by the Treaty of Paris in 1803; that the extent of this area traces back, through cessions by France to Spain in 1762 and Spain to France in 1800, to what was first claimed by France in 1682; and that such area originally extended some 120 miles into the Gulf of Mexico, and in any case, by virtue of other events, at least three leagues into the Gulf. For reasons now to be discussed we think that this historical thesis is not borne out by any of the documents or events on which Louisiana relies, but that to the contrary what has been shown us leads to the conclusion that Louisiana's preadmission territory, consistently with the Act of Admission, stopped at its coast and did not embrace any marginal sea. 1. The area which includes the present State of Louisiana was first claimed for France by La Salle in 1682, extending southward 'as far as (the Mississippi's) * * * mouth in the sea, or gulf of Mexico, about the twenty-seventh degree of the elevation of the North Pole * * *.'114 It is apparent from the face of La Salle's proclamation that it was the mouth of the Mississippi which defined the southerly limit of his claim. His expression of belief that the river mouth was at 'about' the 27th parallel does not indicate an intent to claim to that parallel, which is in fact some 120 miles south of the Mississippi's mouth. In any event, the proce s-verbal of Jacques de la Me tairie, notary of the La Salle expedition,115 shows that the proclamation was issued after the mouth of the Mississippi had been reached and the party had returned upstream only far enough to find solid ground for the erection of a monument, and that La Salle then thought, mistakenly in fact, that they were at about the 27th parallel. Other documents also indicate that the river mouth defined the extent of the claim and that the territory included no marginal sea whatever.116 2. By a secret Treaty executed at Fontainebleau on November 3, 1762, France ceded to Spain 'all the country known under the name of Louisiana, as well as New Orleans and the island in which the place stands.'117 By the secret Treaty of San Ildefonso, signed October 1, 1800, Spain retroceded the 'colony and province of Louisiana' to France.118 Certainly there is nothing on the face of either of these Treaties to indicate that France or Spain claimed any territorial sea. 3. Louisiana argues, however, that certain treaties between France, Spain, and other nations evidence such an intent. Four of these treaties concern the right of the French to fish within certain distances of the coasts of the British possessions in North America, varying from three to 30 leagues. The relevant portions do not relate to French or Spanish territory at all.119 In another, Great Britain undertook not to permit its subjects to navigate or fish within 10 leagues of coasts occupied by Spain 'in the Pacific Ocean, or in the South Seas,' so as to prevent illicit trade with Spanish settlements.120 The Treaty does not relate to the area in question, and, far from being an assertion of a territorial claim by Spain, imposed an obligation of a limited nature on Great Britain alone. The same reasoning applies to another of these treaties, the Treaty between Spain and Tripoli, signed September 10, 1794, prohibiting the capture of any vessel within 10 leagues from coasts of the dominions of Spain.121 Reliance is also placed on an ordinance promulgated by Philip II of Spain in October 1565, asserting rights within the visual horizon of the coasts of Spain and its possessions.122 It may be questioned whether this ordinance even constituted an assertion of territorial jurisdiction as it is known today, especially in view of the fact that the concept of the territorial sea did not arise in international law until after this country achieved its independence. See United States v. State of California, supra, 332 U.S. 32—33, 67 S.Ct. 1665. Even if it did, the ordinance can hardly be taken as applying to a territory not acquired by Spain until 200 years later or as affecting the construction of the Act admitting Louisiana to the Union 250 years later.123 4. By the Treaty of Paris, signed April 30, 1803, France ceded to the United States the Louisiana Territory with all its rights and appurtenances 'as fully and in the same manner as they have been acquired by the French Republic, in virtue of the above-mentioned treaty (Treaty of San Ildefonso, Oct. 1, 1800), concluded with his Catholic Majesty,' including 'the adjacent islands belonging to Louisiana.'124 To show that the Act admitting Louisiana to the Union must be construed as referring to the Union must Treaty, Louisiana relies on Article III of the Treaty, which required the United States to admit 'the ceded territory' to statehood as soon as possible. But since the historic documents to which our attention has been called fail to show that the ceded territory included any territorial sea, taking the Treaty as defining the scope of the Act of Admission only confirms the view that Louisiana's maritime boundary was fixed at, and not somewhere in, the Gulf of Mexico. 5. Louisiana also asserts that about the time of its admission, the United States was claiming three leagues of territorial waters in the Gulf, and that the Act of Admission was framed with reference to that claim. However, from the great variety of documentation presented by the parties, the most that could possibly be said is that the United States, contrary to the Government's contention, had not unequivocally asserted the applicability of the three-mile limit in the Gulf of Mexico. Assuming, as the defendants have here argued, that it would have been reasonable under international law for the United States to claim three leagues of territorial waters in the Gulf had it so chosen, we nevertheless cannot conclude that Congress meant to define Louisiana's boundaries by reference to a rule which was the subject of so much difference among nations and which had never been adopted by this country. The terms of the Act of Admission seem to point so strongly to the contrary that it would require much more convincing evidence than this to persuade us that the construction advanced by Louisiana is correct. Furthermore, it is significant that only a few years later, Congress admitted Mississippi and Alabama to the Union, describing their boundaries as including all islands within six leagues of the shore. See 363 U.S. at pages 81, 82, 80 S.Ct. at pages 1005 and 1006. If the three-league provision in Louisiana's Act of Admission was intended to reflect a policy of claiming three leagues of territorial waters, it is difficult to understand why Congress, so shortly thereafter, should have incorporated a six-league limit in an otherwise identical provision. 3. Postadmission Events. To the extent that Louisiana's reliance on postadmission events is for the purpose of showing that the United States established a three-league 'national boundary' in the Gulf, they cannot help her case, for reasons previously discussed. 363 U.S. at pages 30—36, 80 S.Ct. at pages 979—982. We need not decide whether the United States ever claimed three leagues of territorial waters along the entire Gulf coast, which could in a sense be said to constitute a national boundary, or whether, if it did, Louisiana would have been entitled to extend its own boundary to that distance. Under the Submerged Lands Act, Louisiana's boundary must be measured at the time of her admission, unless a subsequent change was approved by Congress. If the Act of Admission fixed the boundary at the shore, neither action by Congress fixing greater boundaries for other States nor Executive policy on the extent of territorial waters could constitute Congressional approval of a maritime boundary for Louisiana. Louisiana, however, insists that certain of these events subsequent to admission must be considered in construing the Act of Admission. 1. We are urged to infer that since, as the Court today holds, three-league boundaries were fixed for Texas (363 U.S. at page 64, 80 S.Ct. at page 996) and Florida (363 U.S. at page 121, 80 S.Ct. at page 1026), and since, after Texas' admission, the Treaty of Guadalupe Hidalgo fixed the starting point of the boundary between the United States and Mexico at three leagues in the Gulf, Congress must have meant to treat Louisiana equally. The inference must be based primarily on the existence of the Texas and Florida boundaries, for the Treaty of Guadalupe Hidalgo relates only to the boundary between Texas and Mexico, and tends to prove nothing more than the existence of a three-league boundary for Texas. In view of the fact that shortly after Louisiana's admission, Congress fixed maritime boundaries for Mississippi and Alabama which, even on Louisiana's construction, would be different than three leagues, we can discern no consistent Congressional policy toward the maritime boundaries of the Gulf States at the time of Louisiana's admission, even if the much later actions with respect to Texas and Florida could be thought to have established such a policy. Cf. State of Louisiana v. State of Mississippi, supra, 202 U.S. at page 41, 26 S.Ct. at page 418. It would require clear evidence that such a policy was operative at the time Congress passed the Act admitting Louisiana to overcome language in that Act which points so strongly against the construction urged by Louisiana. Nor does the concept of equal footing require such a construction. While the ownership of certain lands within state boundaries has been held to be an inseparable attribute of the political sovereignty guaranteed equally to all States, see United States v. State of Texas, supra, 339 U.S. at page 716, 70 S.Ct. at page 922, the geographic extent of those boundaries, and thus of the lands owned, clearly has nothing to do with political equality. A fortiori this is true in the case of maritime boundaries beyond low-water mark, since, except as granted by Congress, the States do not own the lands beneath the marginal seas. See United States v. State of California, supra; State of Alabama v. State of Texas, supra. 2. Certain treaties successively entered into from 1819 to 1838 by the United States with Spain, Mexico, and the Republic of Texas establishing the boundary between Texas and the United States are relied on as indicating that the State and Federal Governments thought that Congress had fixed a threeleague maritime boundary for Louisiana.125 Louisiana contends that the treaties fixed the beginning of the international boundary at a point three leagues from land, and that therefore the southwestern corner of Louisiana as well as the southeastern corner of Texas must have been regarded as extending seaward to that distance. Whether or not such reasoning is valid, the language of the treaties refutes the premise that the international boundary began three leagues from land. Both the 1819 and the 1828 treaties recited that '(t)he boundary line between the two countries, west of the Mississippi, shall begin on the Gulph of Mexico, at the mouth of the river Sabine, in the sea * * *.' The Treaty of 1838 referred to the Treaty of 1828, and provided for a survey of 'that portion of the said boundary which extends from the mouth of the Sabine, where that river enters the Gulph of Mexico, to the Red river.'126 3. In its answer to the original complaint, Louisiana alleged certain acts of sovereignty over the marginal sea and seabed and the acquiescence of the Federal Government therein.127 Although it has now abandoned its ear contention that these acts establish its title by prescription and estoppel apart from the Submerged Lands Act, it now urges that they indicate a subsequent practical construction of Louisiana's Act of Admission. Taking these facts as proved, they do not have the effect urged by Louisiana. They indicate only that until the 1930's, the Federal Government may have believed that lands beneath the marginal sea belonged to the States. There is no allegation that the geographical extent of Louisiana's assertions, assuming that such assertions were made beyond three miles, was drawn in question, or that the question of Louisiana's boundary was considered. Some of the acts alleged constituted police power measures which a State can enforce it has now abandoned its earlier contention Skiriotes v. State of Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193. As to acts touching the development of the submerged lands themselves, the United States would have had no reason to object to activity beyond Louisiana's boundary, since not until 1945 did the Federal Government assert any rights in the Continental Shelf for itself. If any of the other acts alleged conflicted with this Nation's policy toward territorial waters, objection would have lain regardless of the location of the State's boundary, and lack of objection is therefore, for the purposes of this case, inconclusive. 4. Finally, Louisiana relies on a 1954 statute of its own establishing the State's boundary at three leagues seaward of the line between inland and open waters. Act 33 of 1954, LSA-Rev.Stat. 49:1. It is said that in so legislating Louisiana followed the coastline as defined in regulations promulgated by the Commandant of the Coast Guard, pursuant to the Federal Act of February 19, 1895, 28 Stat. 672, 33 U.S.C. § 151, 33 U.S.C.A. § 151, and that because of this, and also on considerations of convenience and certainty, this state enactment should be accepted as establishing Louisiana's coast. We think the consideration of this contention should be postponed to a later stage of this case. We decide now only that Louisiana is entitled to submerged-land rights to a distance no greater than three geographical miles from its coastlines, wherever those lines may ultimately be shown to be. Mississippi's claim to a three-league seaward boundary must fail largely for the same reasons that have led us to reject the similar claim of Louisiana. The territory which now comprises the part of Mississippi lying south of the 31st parallel was originally ceded by France to Great Britain by the Treaty of Paris of February 10, 1763.128 Great Britain designated this territory part of West Florida, and by proclamation of October 7, 1763, King George III described West Florida as 'bounded to the southward by the gulf of Mexico, including all islands within six leagues of the coast, from the river Apalachicola to Lake Pontchartrain * * *.'129 On September 3, 1783, Great Britain and Spain signed a treaty by which Great Britain ceded this area to Spain as part of a cession embracing all of western and eastern Florida.130 By the Treaty of San Ildefonso, signed October 1, 1800, Spain ceded to France 'the colony and province of Louisiana.' See 363 U.S. at page 72, 80 S.Ct. at page 1001. In the Treaty of Paris of April 30, 1803, France ceded Louisiana to the United States to the same extent as France had acquired it by virtue of the Treaty of San Ildefonso. See 363 U.S. at page 74, 80 S.Ct. at page 1002. A dispute arose between the United States and Spain as to whether, by the Treaty of San Ildefonso, Spain had conveyed to France any land east of the Mississippi River (including any part of West Florida), and therefore whether France could have subsequently passed that territory to the United States in the Treaty of Paris. On October 27, 1810, President Madison claimed the right to possession of the area,131 and on May 14, 1812, Congress made it part of the Mississippi Territory.132 On March 1, 1817, Congress authorized the creation of the State of Mississippi, specifically setting out its boundaries, in part as follows: 'thence due south to the Gulf of Mexico, thence westwardly, including all the islands within six leagues of the shore, to the most eastern junction of Pearl river with Lake Borgne * * *.'133 (Emphasis added.) The Mississippi Constitution, approved by the Act admitting the State to the Union on December 10, 1817,134 contained an identical provision. Finally, by the Treaty of February 22, 1819, Spain purported to cede East and West Florida to the United States. 8 Stat. 254. It was determined, however, in Foster v. Neilson, 2 Pet. 253, 7 L.Ed. 415, that the portion of the State of Mississippi south of the 31st parallel passed to the United States as part of the Louisiana Purchase under the Treaty of Paris in 1803, and not as part of West Florida under the Spanish Treaty of 1819. We have already held with respect to Louisiana's claim to a three-league maritime boundary that an Act of Admission which refers to all islands within a certain distance of the shore does not appear on its face to mean to establish a boundary line that distance from the shore, including all waters and submerged lands as well as all islands. There is nothing in Mississippi's history, just as there is nothing in Louisiana's, to cause us to depart from that conclusion in this instance. Indeed, Mississippi relies almost entirely on the fact that the very language which defeats its contention was repeatedly used, in the 1763 Proclamation by King George III, in the Congressional Enabling Act, and in the State Constitution, and was implicitly incorporated in mesne conveyances. Mississippi also urges that the draftsmen of the provision must have intended to include all waters and submerged lands within six leagues from shore because the waters are very shallow and the islands are constantly shifting. This argument, however, appears only to strengthen the conclusion that it was islands upon which the provision focused, and not waters where there were no islands. We must told that Mississippi is not entitled to rights in submerged lands lying beyond three geographical miles from its coast.135 The preadmission history of Alabama is essentially the same as that of Mississippi, the portion of the State lying south of the 31st parallel having passed by the same mesne conveyances from France to the United States. That portion was incorporated into the Mississippi Territory by the Act of May 14, 1812,136 and became a part of the State of Alabama formed out of that territory. Its Act of Admission137 incorporated the Enabling Act, which described its boundary in part as follows: 'thence due south, to the Gulf of Mexico, thence eastwardly, including all the islands within six leagues of the shore, to the Perdido river * * *.'138 The same reasons applicable to the claims of Louisiana and Mississippi compel us to hold that Alabama is not entitled to rights in submerged lands lying beyond three geographical miles from its coast.139 Conclusions. On the basis of what has been said in this opinion, we reach the following conclusions: 1. As to the States of Louisiana, Mississippi, and Alabama, a decree will be entered (1) declaring that the United States is entitled, as against these States, to all the lands, minerals, and other natural resources underlying the Gulf of Mexico more than three geographical miles from the coast of each such State, that is, from the line of ordinary low-water mark and outer limit of inland waters, and extending seaward to the edge of the Continental Shelf; (2) declaring that none of these States is entitled to any interest in such lands, minerals, and resources; (3) enjoining these States from interfering with the rights of the United States therein; (4) directing each such State appropriately to account to the United States for all sums of money derived therefrom subsequent to June 5, 1950:140 and (5) dismissing the cross bill of the State of Alabama.141 2. As to the State of Texas, a decree will be entered (1) declaring that the State is entitled, as against the United States, to the lands, minerals, and other natural resources underlying the Gulf of Mexico to a distance of three leagues from Texas' coast, that is, from the line of ordinary low-water mark and outer limit of inland waters; (2) declaring that the United States is entitled, as against Texas, to no interest therein; (3) declaring that the United States is entitled, as against Texas, to all such lands, minerals, and resources lying beyond that area, and extending to the edge of the Continental Shelf; (4) enjoining the State from interfering with the rights of the United States therein; and (5) directing Texas appropriately to account to the United States for all sums of money derived since June 5, 1950, from the area to which the United States is declared to be entitled. 3. Jurisdiction over this case will be retained for such further proceedings as may be necessary to effectuate the rights adjudicated herein. 4. The motions of Louisiana and Mississippi to take depositions and present evidence are denied, without prejudice to their renewal in such further proceedings as may be had in connection with matters left open by this opinion.142 In so deciding we have not been unmindful of this Court's liberality in original cases of 'allowing full development of the facts.' See United States v. State of Texas, 339 U.S. 707, 715, 70 S.Ct. 918, 922, 94 L.Ed. 1221. We think, however, that the conclusions to be drawn from the historical documents relied on by Louisiana, Mississippi, and Alabama are so clear as to leave no issue presently involved open to dispute, and that we would not be justified in postponing the granting of the relief to which we find the United States entitled as against these three States.143 By the same token we see no need to postpone the adjudication of the issues now presented as between the United States and Texas, and we do not understand the Government indeed to contend otherwise. The parties may submit an appropriate form of decree giving effect to the conclusions reached in this opinion. It is so ordered. Decree in accordance with opinion. The CHIEF JUSTICE and Mr. Justice CLARK took no part in the consideration or decision of these cases. (For opinion of Mr. Justice FRANKFURTER, joined by Mr. Justice BRENNAN, Mr. Justice WHITTAKER and Mr. Justice STEWART see 363 U.S. 129, 80 S.Ct. 1030.)

363.US.405

Petitioner, an alien whose deportation had been ordered, applied under § 19 (c) of the Immigration Act of 1917, as amended, for an order suspending his deportation or permitting his voluntary departure. In an administrative heating on his application, he was asked whether he was a member of the Communist Party. He refused to answer, claiming the Fifth Amendment privilege against selfincrimination. His application was denied on the ground that he had failed to prove his eligibility under § 19 and the Internal Security Act of 1950. Held: Denial of his application is sustained, since § 19 (d) and the -Internal Security Act of 1950 make Communists ineligible for suspension of deportation, and the burden was on petitioner to show that he was eligible for such suspension. Pp. 405-408. 263 F. 2d 773, affirmed.

Petitioner applied for suspension of an order directing his deportation to Korea or permitting his voluntary departure. He does not question the validity of the deportation order, but contends that he is within the eligible statutory class whose deportation may be suspended at the discretion of the Attorney General. § 19(c) of the Immigration Act of 1917, as amended. Relief on this score was denied on the basis that the Attorney General has no power to exercise his discretion in that regard since petitioner failed to prove his eligibility under that section and the Internal Security Act of 1950. Before the hearing officer, petitioner was asked if he was a member of the Communist Party. He refused to answer, claiming the Fifth Amendment privilege against self-incrimination. The officer refused the suspension on the grounds that petitioner had failed to prove that he was a person of good moral character and that he had not met the statutory requirement of showing that he was not a member of or affiliated with the Communist Party. The Board of Immigration Appeals affirmed on the latter ground, as did the Court of Appeals. Kimm v. Hoy, 263 F.2d 773. Petitioner contends that he presented 'clear affirmative evidence' as to eligibility which stands uncontradicted and that the burden was on the Government to show his affiliations, if any, with the Party. He contends that the disqualifying factor of Communist Party membership is an exception to § 19(c) which the Government must prove. We think not. Rather than a proviso, it is an absolute disqualification, since that class of aliens is carved out of the section at its very beginning by the words 'other than one to whom subsection (d) of this section is applicable.1 Subsection (d)2 referred to aliens deportable under the Act of October 16, 1918. Section 22 of the Internal Security Act of 1950 amended the 1918 Act to include Communists,3 and thus terminated the discretionary authority under § 19(c) as to any alien who was deportable because of membership in the Communist Party. Petitioner offered no evidence on this point, although the regulations place on him the burden of proof as to 'the statutory requirements precedent to the exercise of discretionary relief.' 8 CFR, 1949 ed., § 151.3(e), as amended, 15 Fed.Reg. 7638. This regulation is completely consistent with § 19(c). The language of that section, in contrast with the statutory provisions governing deportation, imposes the general burden of proof upon the applicant. It follows that an applicant for suspension, 'a matter of discretion and of administrative grace,' U.S. ex rel. Hintopoulos v. Shaughnessy, 1957, 353 U.S. 72, 77, 77 S.Ct. 618, 621, 1 L.Ed.2d 652, must, upon the request of the Attorney General, supply such information that is within his knowledge and has a direct bearing on his eligibility under the statute. The Attorney General may, of course, exercise his authority of grace through duly delegated agents. Jay v. Boyd, 1956, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242. Perhaps the petitioner was justified in his personal refusal to answer—a question we do not pass upon—but this did not relieve him under the statute of the burden of establishing the authority of the Attorney General to exercise his discretion in the first place. Affirmed.

362.US.216

Certiorari granted; judgment vacated; and case remanded.

The motion for leave to proceed in forma pauperis is granted. Upon the suggestion of the Solicitor General that the case be remanded to the Court of Appeals in light of what we are informed is the present practice of that court 'to appoint an attorney in all cases in direct appeal where the trial judge's certificate of bad faith is attacked' the petition for writ of certiorari is granted. The judgment of the Court of Appeals for the District of Columbia Circuit is vacated and the case is remanded to that court for further proceedings.

364.US.361

maturity deferred annuity savings bonds with an aggregate face value of $4,000,000 from a life insurance company, paying only a nominal sum in cash, giving nonrecourse notes secured bythe bonds for the balance and paying a substantial amount as "interest" in advance on that "indebtedness." A few days later, he borrowed from the company nearly all of the excess of the cash-surrender value which the bonds would have at the end of the first contract year over the amount of the existing "indebtedness" and again paid in ad'-ance the "interest" on such additional "indebtedness." These borrowings and "interest" payments were repeated in 1954 and 1955, and the bonds were surrendered and the indebtedness was cancelled in 1956. Held: The amounts paid as "interest" in 1953 and 1954 were not deductible from the gross income of the taxpayer and his wife in their joint income tax returns for those years as "interest paid . . . on indebtedness," within the meaning of § 23 (b) of the Internal Revenue Code of 1939 and § 163 (a) of the Internal Revenue Code of 1954. Pp. 362-370. (a) On the record in this case, it is patent that the transaction between the taxpayer and the insurance company was a sham which created no "indebtedness" within the meaning of those sections of the Codes. Pp. 362-366. (b) Congress did not authorize deduction of such payments by enacting § 264 (a) (2) of the Internal Revenue Code of 1954, which expressly denies a deduction for amounts paid on indebtedness incurred to purchase or carry a single-premium annuity contract, but only as to contracts purchased after March 1, 1954. Pp. 307370. 272 F. 2d 200, affirmed.

This case presents the question of whether deductions from gross income claimed on petitioners' 1953 and 1954 joint federal income tax returns, of § 143,465 in 1953 and of $147,105 in 1954, for payments made by petitioner, Karl F. Knetsch, to Sam Houston Life Insurance Company, constituted 'interest paid . . . on indebtedness' within the meaning of § 23(b) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 23(b), and § 163(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 163(a).1 The Commissioner of Internal Revenue disallowed the deductions and determined a deficiency for each year. The petitioners paid the deficiencies and brought this action for refund in the District Court for the Southern District of California. The District Court rendered judgment for the United States, and the Court of Appeals for the Ninth Circuit affirmed, 272 F.2d 200. Because of a suggested conflict with the decision of the Court of Appeals for the Fifth Circuit in United States v. Bond, 258 F.2d 577, we granted certiorari 361 U.S. 958, 80 S.Ct. 589, 4 L.Ed.2d 541. On December 11, 1953, the insurance company sold Knetsch ten 30-year maturity deferred annuity savings bonds, each in the face amount of $400,000 and bearing interest at 2 1/2% compounded annually. The purchase price was $4,004,000. Knetsch gave the Company his check for $4,000, and signed $4,000,000 of nonrecourse annuity loan notes for the balance. The notes bore 3 1/2% interest and were secured by the annuity bonds. The interest was payable in advance, and Knetsch on the same day prepaid the first year's interest, which was $140,000. Under the Table of Cash and Loan Values made part of the bonds, their cash or loan value at December 11, 1954, the end of the first contract year, was to be $4,100,000. The contract terms, however, permitted Knetsch to borrow any excess of this value above his indebtedness without waiting until December 11, 1954. Knetsch took advantage of this provision only five dats after the purchase. On December 16, 1953, he received from the company $99,000 of the $100,000 excess over his $4,000,000 indebtedness, for which he gave his notes bearing 3 1/2% interest. This interest was also payable in advance and on the same day he prepaid the first year's interest of $3,465. In their joint return for 1953, the petitioners deducted the sum of the two interest payments, that is $143,465, as 'interest paid * * * within the taxable year on indebtedness,' under § 23(b) of the 1939 Code. The second contract year began on December 11, 1954, when interest in advance of $143,465 was payable by Knetsch on his aggregate indebtedness of $4,099,000. Knetsch paid this amount on December 27, 1954. Three days later, on December 30, he received from the company cash in the amount of $104,000, the difference less $1,000 between his then $4,099,000 indebtedness and the cash or loan value of the bonds of $4,204,000 on December 11, 1955. He gave the company appropriate notes and prepaid the interest thereon of $3,640. In their joint return for the taxable year 1954 the petitioners deducted the sum of the two interest payments, that is $147,105, as 'interest paid * * * within the taxable year on indebtedness,' under § 163(a) of the 1954 Code. The tax years 1955 and 1956 are not involved in this proceeding, but a recital of the events of those years is necessary to complete the story of the transaction. On December 11, 1955, the start of the third contract year, Knetsch became obligated to pay $147,105 as prepaid interest on an indebtedness which now totalled $4,203,000. He paid this interest on December 28, 1955. On the same date he received $104,000 from the company. This was $1,000 less than the difference between his indebtedness and the cash or loan value of the bonds of $4,308,000 at December 11, 1956. Again he gave the company notes upon which he prepaid interest of $3,640. Petitioners claimed a deduction on their 1955 joint return for the aggregate of the payments, or $150,745. Knetsch did not go on with the transaction for the fourth contract year beginning December 11, 1956, but terminated it on December 27, 1956. His indebtedness at that time totalled $4,307,000. The cash or loan value of the bonds was the $4,308,000 value at December 11, 1956, which had been the basis of the 'loan' of December 28, 1955. He surrendered the bonds and his indebtedness was canceled. He received the difference of $1,000 in cash. The contract called for a monthly annuity of $90,171 at maturity (when Knetsch would be 90 years of age) or for such smaller amount as would be produced by the cash or loan value after deduction of the then existing indebtedness. It was stipulated that if Knetsch had held the bonds to maturity and continued annually to borrow the net cash value less $1,000, the sum available for the annuity at maturity would be $1,000 ($8,388,000 cash or loan value less $8,387,000 of indebtedness), enough to provide an annuity of only $43 per month. The trial judge made findings that '(t)here was no commercial economic substance to the * * * transaction,' that the parties did not intend that Knetsch 'become indebted to Sam Houston,' that '(n)o indebtedness of (Knetsch) was created by any of the * * * transactions,' and that '(n)o economic gain could be achieved from the purchase of these bonds without regard to the tax consequences * * *.' His conclusion of law, based on this Court's decision in Deputy v. du Pont, 308 U.S. 488, 60 S.Ct. 363, 84 L.Ed. 416, was that '(w)hile in form the payments to Sam Houston were compensation for the use or forbearance of money, they were not in substance. As a payment of interest, the transaction was a sham.' We first examine the transaction between Knetsch and the insurance company to determine whether it created an 'indebtedness' within the meaning of § 23(b) of the 1939 Code and § 163(a) of the 1954 Code, or whether, as the trial court found, it was a sham. We put aside a finding by the District Court that Knetsch's 'only motive in purchasing these 10 bonds was to attempt to secure an interest deduction.'2 As was said in Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 596: 'The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted. * * * But the question for determination is whether what was done, apart from the tax motive, was the thing which the statute intended.' When we examine 'what was done' here, we see that Knetsch paid the insurance company $294,570 during the two taxable years involved and received $203,000 back in the form of 'loans.' What did Knetsch get for the out-of-pocket difference of $91,570? In form he had an annuity contract with a so-called guaranteed cash value at maturity of $8,388,000, which would produce monthly annuity payments of $90,171, or substantial life insurance proceeds in the event of his death before maturity. This, as we have seen, was a fiction, because each year Knetsch's annual borrowings kept the net cash value, on which any annuity or insurance payments would depend, at the relative pittance of $1,000.3 Plainly, therefore, Kentsch's transaction with the insurance company did 'not appreciably affect his beneficial interest except to reduce his tax * * *.' Gilbert v. Commissioner, 2 Cir., 248 F.2d 399, 411 (dissenting opinion). For it is patent that there was nothing of substance to be realized by Knetsch from this transaction beyond a tax deduction. What he was ostensibly 'lent' back was in reality only the rebate of a substantial part of the so-called 'interest' payments. The $91,570 difference retained by the company was its fee for providing the facade of 'loans' whereby the petitioners sought to reduce their 1953 and 1954 taxes in the total sum of $233,297.68. There may well be single premium annuity arrangements with nontax substance which create an 'indebtedness' for the purposes of § 23(b) of the 1939 Code and § 163(a) of the 1954 Code. But this one is a sham.4 The petitioners contend, however, that the Congress in enacting § 264 of the 1954 Code, 26 U.S.C.A. § 264, authorized the deductions. They point out that § 264(a)(2) denies a deduction for amounts paid on indebtedness incurred to purchase to carry a single-premium annuity contract, but only as to contracts purchased after March 1, 1954.5 The petitioners thus would attribute to Congress a purpose to allow the deduction of pre-1954 payments under transactions of the kind carried on by Knetsch with the insurance company without regard to whether the transactions created a true obligation to pay interest. Unless that meaning plainly appears we will not attribute it to Congress. 'To hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose.' Gregory v. Helvering, supra, 293 U.S. at page 470, 55 S.Ct. at page 268. We, therefore, look to the statute and materials relevant to its construction for evidence that Congress meant in § 264(a)(2) to authorize the deduction of payments made under sham transactions entered into before 1954. We look in vain. Provisions denying deductions for amounts paid on indebtedness incurred to purchase or carry insurance contracts are not new in the revenue acts. A provision applicable to all annuities, but not to life insurance or endowment contracts, was in the statute from 1932 to 1934, 47 Stat. 179. It was added at a time when Congress was developing a policy to deny a deduction for interest allocable to tax-exempt income;6 the proceeds of annuities were excluded from gross income up to the amount of the consideration paid in by the annuitant. See H.R.Rep. No. 708, 72d Cong., 1st Sess., p. 11. The provision was repealed by the Revenue Act of 1934, 48 Stat. 688, when the method by which annuity payments were taken into gross income was changed in such way that more would be included. 48 Stat. 687. See S.Rep. No. 558, 73d Cong., 2d Sess., p. 24. Congress then in 1942 denied a deduction for amounts paid on indebtedness incurred to purchase single-premium life insurance and endowment contracts. This provision was enacted by an amendment to the 1939 Code, 56 Stat. 827, 'to close a loophole' in respect of interest allocable to partially exempt income. See Hearings before Senate Finance Committee on H.R. 7378, 77th Cong., 2d Sess., p. 54; § 22(b)(1) of the 1939 Code, 26 U.S.C.A. § 22(b)(1) (now § 101(a) (1) of the 1954 Code, 26 U.S.C.A. § 101(a)(1)). The 1954 provision extending the denial to amounts paid on indebtedness incurred to purchase or carry single-premium annuities appears to us simply to expand the application of the policy in respect of interest allocable to partially exempt income. The proofs are perhaps not as strong as in the case of life insurance and endowment contracts, but in the absence of any contrary expression of the Congress, their import is clear enough. There is first the fact that the provision was incorporated in the section covering life insurance and endowment contracts, which unquestionably was adopted to further that policy. There is second the fact that Congress' attention was directed to annuities in 1954; the same 1954 statute again changed the basis for taking part of the proceeds of annuities into gross income. See § 72(b) of the 1954 Code, 26 U.S.C.A. § 72(b). These are signs that Congress' long-standing concern with the problem of interest allocable to partially exempt income, and not any concern with sham transactions, explains the provision. Moreover, the provision itself negates any suggestion that sham transactions were the congressional concern, for the deduction denied is of certain interest payments on actual 'indebtedness.' And we see nothing in the Senate Finance and House Ways and Means Committee Reports on § 264, H.R.Rep. No. 1337, 83d Cong., 2d Sess., p. 31; S.Rep. No. 1622, 83d Cong., 2d Sess., p. 38, to suggest that Congress in exempting pre-1954 annuities intended to protect sham transactions.7 Some point is made in an amicus curiae brief of the fact that Knetsch in entering into these annuity agreements relied on individual ruling letters issued by the Commissioner to other taxpayers. This argument has never been advanced by petitioners in this case. Accordingly, we have no reason to pass upon it. The judgment of the Court of Appeals is affirmed. Affirmed.

362.US.607

Certiorari granted; judgment vacated; and case remanded for hearing on petitioner's allegations in his petition for writ of habeas corpus that he "had no counsel present" when he pleaded guilty t, second-degree murder and that the prosecutor suppressed testimony favorable to petitioner.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. In petitions for writ of habeas corpus, filed with the Second Judicial District Court of the State of Wyoming and with the Wyoming Supreme Court, the petitioner alleged, among other grounds for relief, that his plea of guilty to second degree murder in December 1945, upon which he received a life sentence, was induced when he 'had no counsel present' and that the prosecutor wilfully suppressed the testimony of two eyewitnesses to the alleged crime which would have exonerated the petitioner. It does not appear from the record that an adequate hearing on these allegations was held in the District Court, or any hearing of any nature in, or by direction of, the Supreme Court. We find nothing in our examination of the record to justify the denial of hearing on these allegations. The judgment is therefore vacated and the case is remanded for a hearing thereon. Com. of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Sublett v. Adams, 362 U.S. 143, 80 S.Ct. 527, 4 L.Ed.2d 527. Judgment vacated and case remanded.

364.US.282

Certiorari granted; judgment vacated and case remanded. Reported below: 266 F. 2d 88.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for consideration in light of Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437.

364.US.426

Petitioner's citizenship was revoked in a proceeding under § 338 (a) of the Nationality Act of 1940. The District Court found that, within ten years preceding his petition for naturalization, he had been a member of the Communist Party, that the Party was an organization which was then advocating the forcible overthrow of the Government, and that, therefore, petitioner was ineligible for citizenship under § 305. Pursuant to a stipulation of petitioner's counsel, his appeal was dismissed with prejudice. Four years later petitioner moved under Rule 60 (b) of the Federal Rules of Civil Procedure to vacate the judgment, on the ground that it was voidable under this Court's subsequent decisions in Nowak v. United States, 356 U. S. 660, and Maisenberg v. United States, 356 U. S. 670. Held: Regardless of whether relief under Rule 60 (b) is available to petitioner in the circumstances, those decisions were not effective to alter the law controlling petitioner's case. Pp. 426-437. 272 F. 2d 709, affirmed.

Petitioner is a native of Greece who came to this country in 1916. In 1942 he became a naturalized citizen by decree of the United States District Court of Detroit, under the provisions of the Nationality Act of 1940.1 In 1952 the United States brought proceedings under § 338(a) of the 1940 Act to revoke his citizenship.2 These proceedings culminated in a judgment of denaturalization, D.C., 127 F.Supp. 768. An appeal from that judgment was docketed in the Court of Appeals for the Sixth Circuit. Subsequently, under circumstances to be related, counsel for the petitioner stipulated to dismissal of the appeal with prejudice, and the appeal was dismissed in accordance with the stipulatiom. Four years later the petitioner moved to vacate the judgment of denaturalization, relying upon Rule 60(b), Fed.Rules Civ.Proc., 28 U.S.C.A.3 The District Court denied the motion, 24 F.R.D. 401, and the Court of Appeals affirmed, 272 F.2d 709. Certiorari was granted to consider the availability of Rule 60(b) relief in the circumstances here presented, 361 U.S. 958, 80 S.Ct. 594, 4 L.Ed.2d 541. Section 305 of the Nationality Act of 1940 provided that no person should be eligible for naturalization who at any time within ten years preceding his application had been a member of any organization that advocated the overthrow by force or violence of the Government of the United States.4 The Government's complaint in the 1952 denaturalization proceedings charged that the petitioner's citizenship had been illegally procured because within ten years immediately preceding his application for naturalization he had been a member of the Communist Party of the United States, an organization which, it was alleged, advised, advocated, or taught the overthrow by force and violence of the Government of the United States.5 At the denaturalization hearing the petitioner, who was represented by counsel, testified that he had been a member of the Communist Party of the United States from 'around' 1931 until 1938. He stated that he had attended closed Party meetings about once a month, that he had been secretary of the 'Greek Fraction' of the Party in Detroit, and that he had left the Party in 1938 only because of a directive that all aliens resign from the Party at that time. Other witnesses described the petitioner as a 'high functionary' of the Party, who at closed meetings had advocated the overthrow of existing government by force and violence.6 Based upon this and other testimony, the District Court found that the Government had proved by clear, unequivocal, and convincing evidence that the petitioner had been a member of the Communist Party of the United States within the statutory period, and that the Party was an organization which 'was then advising, advocating or teaching forcible or violent overthrow of this government.' 127 F.Supp. at page 770. Accordingly, the court held that the petitioner had illegally procured his citizenship, because he had not been eligible to become a citizen at the time his certificate of naturalization was issued.7 A judgment cancelling the petitioner's citizenship was entered, 127 F.Supp. 768, 770—772.8 From this judgment the petitioner promptly appealed to the United States Court of Appeals for the Sixth Circuit. At the time there were pending in that court appeals from three other denaturalization judgments by the same District Court. United States v. Sweet, 106 F.Supp. 634; United States v. Chomiak, 108 F.Supp. 527; and United States v. Charnowola, 109 F.Supp. 810. Petitioner's counsel appeared and argued for the appellants in each of those three cases. Before the petitioner's brief was due, the Court of Appeals affirmed the judgments in all three of them, 6 Cir., 211 F.2d 118. The petitioner thereafter obtained an extension of time for filing briefs on the appeal of his case until thirty days after disposition by this Court of petitioner for certiorari filed in the other three cases. When those petitions for certiorari were denied, 348 U.S. 817, 75 S.Ct. 28, 99 L.Ed. 644, the petitioner by his counsel stipulated in the Court of Appeals that his appeal should be dismissed with prejudice, and the appeal was dismissed on November 10, 1954. On August 6, 1958, the petitioner filed his motion under Rule 60(b)(5) and (6) to set aside the 1953 denaturalization decree. The ground for the motion, supported by an affidavit of counsel, was that in the light of this Court's opinions in two cases which had recently been decided, Nowak v. United States, 356 U.S. 660, 78 S.Ct. 955, 2 L.Ed.2d 1048, and Maisenberg v. United States, 356 U.S. 670, 78 S.Ct. 960, 2 L.Ed.2d 1056, 'it now appears that the * * * judgment of cancellation is voidable' and 'that it is no longer equitable that said judgment should have prospective application.' In denying the motion the District Court held that the Nowak and Maisenberg decisions 'do not as contended by Polites clearly control the instant case warranting relief from judgment,' (24 F.R.D. 403) and that, in any event, the doctrine of Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207, precludes reopening a judgment under Rule 60(b) where the movant has voluntarily abandoned his appeal, and the only ground for the motion to reopen is an asserted later change in the judicial view of applicable law. 24 F.R.D. 401. The Court of Appeals affirmed 'for the reasons set forth' by the District Court, 272 F.2d 709. It is the contention of the Government that the 'instant case is squarely controlled by the decision of this Court in Ackermann v. United States, 340 U.S. 193 (71 S.Ct. 209, 95 L.Ed. 207), that a freely made decision not to appeal a denaturalization judgment may not be excused by permitting recourse to Rule 60(b)(6) as a substitute for appeal.' In that case Mr. and Mrs. Ackermann and a relative, Keilbar, had been denaturalized after a joint hearing. Keilbar appealed. The Ackermanns did not. On appeal the judgment of denaturalization against Keilbar was reversed upon a stipulation by the Government that the evidence was insufficient to support it. Keilbar v. United States, 5 Cir., 144 F.2d 866. The Ackermanns thereafter filed a motion under Rule 60(b) to vacate the denaturalization judgments against them. They alleged that they had failed to appeal from the judgments because of financial inability and in reliance upon the advice of a government official whom they trusted, the official who was in charge of the detention camp in which they had been placed following their denaturalization. After reviewing these allegations the Court held that the District Court has been correct in denying the motion to reopen the judgments, holding that '(s)ubsection 6 of Rule 60(b) has no application to the situation of petitioner.' 340 U.S. at page 202, 71 S.Ct. at page 213. What the Court said in Ackermann is of obvious relevance here: 'Petitioner made a considered choice not to appeal, apparently because he did not feel that an appeal would prove to be worth what he thought was a required sacrifice of his home. His choice was a risk, but calculated and deliberate and such as follows a free choice. Petitioner cannot be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong, considering the outcome of the Keilbar case. There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from.' 340 U.S. at page 198, 71 S.Ct. at page 211. In the present case it is not claimed that the decision not to appeal was anything but 'free, calculated, and deliberate.' Indeed, there is not even an indication in this case, as there was in ackermann, that the choice was influenced by reliance upon the advice of a government officer. The only claim is that upon the advice of the petitioner's own counsel the appeal was abandoned because there seemed at the time small likelihood of its success, and that some four years later the applicable law was 'clarified' in the petitioner's favor. Despite the relevant and persuasive force of Ackermann, however, we need not go so far here as to decide that when an appeal has been abandoned or not taken because of a clearly applicable adverse rule of law, relief under Rule 60(b) is inflexibly to be withheld when there has later been a clear and authoritative change in governing law. The fact of the matter is that that situation is not presented by this case. Without assaying by hindsight how hopeless the prospects of the petitioner's appeal may have appeared at the time it was abandoned,9 it is clear that the later decisions of this Court upon which his motion to vacate relied did not in fact work the controlling change in the governing law which he asserted. The decisions in question are Nowak v. United States, 356 U.S. 660, 78 S.Ct. 955, 2 L.Ed.2d 1048, and Maisenberg v. United States, 356 U.S. 670, 78 S.Ct. 960, 2 L.Ed.2d 1056. Petitioner contends that the Nowak and Maisenberg decisions reject the grounds relied upon by the District Court in revoking petitioner's citzenship in 1953. In the petitioner's denaturalization proceeding, the court held that a charge of illegal procurement of citzenship under the Nationality Act of 1940 could be sustained by clear, unequivocal and convincing evidence that (a) petitioner had been a member of the Communist Party within ten years immediately preceding the day he filed his citizenship application, and (b) the Communist Party had advised, advocated, or munist Party had advised, advocated, or taught overthrow of the Government by force or violence during that period. Petitioner claims that this interpretation of the statute is erroneous because it fails to take into account the question of the petitioner's knowledge of the Party's activities. It was the claim of the petitioner's motion that Nowak and Maisenberg establish that '(a) charge of illegal procurement of citizenship based upon alleged membership in the Communist Party, cannot be sustained where the evidence fails to show * * * that the defendant was aware that the organization was engaged in the kind of illegal advocacy proscribed by law during the period of his membership therein.' But the Nowak and Maisenberg decisions neither support nor oppose this interpretation of the 1940 Act. Those cases simply do not deal with the question. In Nowak the petitioner had acquired his citizenship under the Nationality Act of 1906. That statute did not specifically prohibit citizenship to a member of an organization which advocated overthrow of the Government by force and violence. It did require an alien to have been 'attached to the principles of the Constitution of the United States' for at least five years preceding his application for citizenship.10 In order to show that Nowak had illegally procured his citizenship because during the five years preceding his naturalization he had not been 'attached' to constitutional principles, the Government undertook to prove that he had been a member of the Communist Party with knowledge that the Party advocated the overthrow of the Government by force and violence. This Court found that the record contained adequate proof that Nowak had been a member of the Party during the pertinent five-year period, and it proceeded on the assumption that the evidence of the Party's illegal advocacy was sufficient. The Court held, however, that the Government had not established, under the standard required in denaturalization cases, that Nowak had known of the Party's advocacy of forcible governmental overthrow. Accordingly, the Court concluded that the Government had failed to prove Nowak's 'state of mind,' 356 U.S. at page 666, 78 S.Ct. at page 959, his lack of 'attachment' to constitutional principles, by the clear, unequivocal, and convincing evidence which is required. Cf. Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796. Maisenberg was different in that the ultimate issue involved was whether the petitioner's citizenship had been obtained 'by concealment of a material fact (and) willful misrepresentation.'11 356 U.S. at page 671, 78 S.Ct. at page 961. But there, too, the Court held that the Government had failed to prove the petitioner's state of mind, her lack of 'attachment' to the constitutional principles required by the 1906 Act, by its proof of her Communist Party membership and of the Party's vocacy.12 In the present case, by contrast, the District Court held that determination of the issue of illegal procurement did not involve an inquiry into the petitioner's state of mind. Unlike Nowak and Maisenberg, the petitioner was naturalized under the Nationality Act of 1940, which withheld the right of citizenship to any alien who had been a member of a particular kind of organization during the statutory period.13 The evidence that the petitioner was a 'member of the Party' in every meaningful sense was abundantly shown. Cf. Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140; Niukkanen v. McAlexander, 362 U.S. 390, 80 S.Ct. 799, 4 L.Ed.2d 816. The District Court found that the proof was also clear, unequivocal, and convincing that the organization to which the petitioner had belonged was in the category proscribed by the 1940 Act.14 Those findings remain completely unaffected by anything that was decided or said in either Nowak or Maisenberg. As the District Court viewed the issue of illegal procurement in this case, there was no occasion, as in Nowak and Maisenberg, to establish by inference or imputation the petitioner's personal beliefs, his 'attachment' or lack of it. The court was concerned only with objective facts—the petitioner's membership and the Party's purpose. Upon the basis of its findings as to these factual issues, the Court held that the 'government must prevail on the jurisdictional question that defendant was not eligible to become a citizen either when he filed his naturalization petition or when he took the oath * * *.' 127 F.Supp. at page 772. As the issue was determined, therefore, the case was consistent with many decisions in which this Court has ruled that a certificate of citizenship is cancellable on the basis of illegal procurement if there has not been strict compliance with the conditions imposed by Congress as prerequisites to acquisition of citizenship. See Maney v. United States, 278 U.S. 17, 49 S.Ct. 15, 73 L.Ed. 156; United States v. Ness, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321; United States v. Ginsberg, 243 U.S. 472, 37 S.Ct. 422, 61 L.Ed. 853; cf. Schneiderman v. United States, 320 U.S. 118, 163, 63 S.Ct. 1333, 1355, 87 L.Ed. 1796 (concurring opinion). The validity of the District Court's interpretation of § 305 is not before us; we are not here directly reviewing the 1953 decision. We hold only that the decisions in Maisenberg and Nowak were not effective to alter the law controlling the petitioner's case. Affirmed.

404.US.388

ber 12, 1960-Supplemental Decrees Entered December 13, 1965, and December 20, 1971.

It appearing to the Court that its opinion herein of March 3, 1969, 394 U.S. 11, 89 S.Ct. 773, 22 L.Ed.2d 44, rejected every ground asserted by the State of Louisiana in support of its claim to rights in the area of the continental shelf hereinafter described, and that no issue as to said area is now pending before the Special Master appointed herein by order of May 19, 1969, 395 U.S. 901, 89 S.Ct. 1737, 23 L.Ed.2d 215; and It further appearing that substantial revenues derived from lands lying wholly within said area are now being held impounded by the United States pursuant to the parties' Interim Agreement of October 12, 1956, as amended, on file herein, and that there is no reason why the Court should not at this time enter a supplemental decree declaring the rights of the United States in the described area and terminating the obligation of the United States to hold impounded the revenues heretofore or hereafter derived from leases of lands lying wholly within the described area: 1. As against the defendant State of Louisiana and all persons claiming under it, the United States has exclusive rights to explore the area of the continental shelf lying more than one foot seaward of the line described in paragraph 3 hereof, and to exploit the natural resources of said area. The State of Louisiana is not entitled to any interest in such lands, minerals, or resources, and said State, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the United States in such lands, minerals and resources. 2. All sums now held impounded by the United States under the Interim Agreement of October 12, 1956, as amended, derived from leases of lands lying wholly within the area referred to in paragraph 1 hereof are hereby released to the United States absolutely, and the United States is hereby relieved of any obligation under said agreement to impound any sums hereafter received by it from leases of lands lying wholly within said area. 3. The line referred to in paragraph 1 hereof is described by coordinates in the Louisiana Plane Coordinate System, South Zone, as follows: X Y BEGINNING AT.................. 2769356.556 575649.806 BY STRAIGHT LINE TO........... 2790257.937 526389.980 BY ARC CENTERED AT............ 2779032.000 512013.000 TO............................ 2791384.930 525434.041 BY STRAIGHT LINE TO........... 2793118.930 523838.041 BY ARC CENTERED AT............ 2780766.000 510417.000 TO............................ 2794593.837 522312.804 BY STRAIGHT LINE TO........... 2795886.837 520809.804 BY ARC CENTERED AT............ 2782059.000 508914.000 TO............................ 2796579.124 519954.164 BY STRAIGHT LINE TO........... 2799209.124 516495.164 BY ARC CENTERED AT............ 2784689.000 505455.000 TO............................ 2800440.568 514653.224 BY STRAIGHT LINE TO........... 2804269.568 508096.224 BY ARC CENTERED AT............ 2788518.000 498898.000 TO............................ 2804494.998 507698.840 BY STRAIGHT LINE TO........... 2806027.998 504915.840 BY ARC CENTERED AT............ 2790051.000 496115.000 TO............................ 2807013.645 502822.304 BY STRAIGHT LINE TO........... 2808652.645 498677.304 BY ARC CENTERED AT............ 2791690.000 491970.000 TO............................ 2809151.167 497245.118 BY STRAIGHT LINE TO........... 2812250.167 486987.118 BY ARC CENTERED AT............ 2794789.000 481712.000 TO............................ 2812519.378 485996.033 BY STRAIGHT LINE TO........... 2813932.378 480148.033 BY ARC CENTERED AT............ 2796202.000 475864.000 TO............................ 2814261.901 478425.093 BY STRAIGHT LINE TO........... 2815268.901 471324.093 BY ARC CENTERED AT............ 2797209.000 468763.000 TO............................ 2815426.129 469687.898 BY STRAIGHT LINE TO........... 2815673.129 464822.898 BY ARC CENTERED AT............ 2797456.000 463898.000 TO............................ 2815696.593 463894.844 BY STRAIGHT LINE TO........... 2815695.593 458115.844 BY ARC CENTERED AT............ 2797455.000 458119.000 TO............................ 2815656.660 456927.864 BY STRAIGHT LINE TO........... 2815268.660 450998.864 BY ARC CENTERED AT............ 2797067.000 452190.000 TO............................ 2815170.804 449960.314 BY STRAIGHT LINE TO........... 2813956.804 440103.314 BY ARC CENTERED AT............ 2795853.000 442333.000 TO............................ 2813808.964 439123.233 BY STRAIGHT LINE TO........... 2812677.964 432796.233 BY ARC CENTERED AT.............2794722.000 436006.000 TO............................ 2812418.508 431584.141 BY STRAIGHT LINE TO........... 2810956.508 425733.141 BY ARC CENTERED AT............ 2793260.000 430155.000 TO............................ 2810698.968 424806.950 BY STRAIGHT LINE TO........... 2807853.968 415529.950 BY ARC CENTERED AT............ 2790415.000 420878.000 TO............................ 2807571.652 414683.766 BY STRAIGHT LINE TO........... 2805321.652 408451.766 BY ARC CENTERED AT............ 2788165.000 414646.000 TO............................ 2805227.217 408196.195 BY STRAIGHT LINE TO........... 2803786.217 404384.195 BY ARC CENTERED AT............ 2786724.000 410834.000 TO............................ 2803319.235 403263.173 BY STRAIGHT LINE TO........... 2799845.235 395648.173 BY ARC CENTERED AT............ 2783250.000 403219.000 TO............................ 2798970.928 393968.505 BY STRAIGHT LINE TO........... 2795393.928 387889.505 BY ARC CENTERED AT............ 2779673.000 397140.000 TO............................ 2795310.866 387749.772 BY STRAIGHT LINE TO........... 2793559.866 384833.772 BY ARC CENTERED AT............ 2777922.000 394224.000 TO............................ 2792248.791 382934.080 BY STRAIGHT LINE TO........... 2790813.791 381113.080 BY ARC CENTERED AT............ 2776487.000 392403.000 TO............................ 2789360.151 379480.105 BY ARC CENTERED AT............ 2774670.000 390293.000 TO............................ 2788262.435 378128.916 BY STRAIGHT LINE TO........... 2786553.159 375044.826 BY ARC CENTERED AT............ 2770599.000 383887.000 TO............................ 2785045.121 372750.177 BY STRAIGHT LINE TO........... 2783941.664 371318.828 BY STRAIGHT LINE TO........... 2783791.761 371061.536 BY ARC CENTERED AT............ 2768031.000 380244.000 TO............................ 2780548.119 366975.957 BY STRAIGHT LINE TO........... 2775735.205 360552.955 BY ARC CENTERED AT............ 2761138.000 371491.000 TO............................ 2775111.280 359766.382 BY STRAIGHT LINE TO........... 2773031.020 357287.149 BY ARC CENTERED AT............ 2757465.000 366796.000 TO............................ 2771721.145 355417.004 BY STRAIGHT LINE TO........... 2770633.235 354054.018 BY STRAIGHT LINE TO........... 2770504.786 353847.463 BY ARC CENTERED AT............ 2755015.000 363480.000 TO............................ 2767787.706 350457.818 BY STRAIGHT LINE TO........... 2761993.706 344774.818 BY ARC CENTERED AT............ 2749221.000 357797.000 TO............................ 2760702.849 343623.561 BY STRAIGHT LINE TO........... 2757790.849 341264.561 BY ARC CENTERED AT............ 2746309.000 355438.000 TO............................ 2756371.988 340224.338 BY STRAIGHT LINE TO........... 2773418.101 206994.932 BY ARC CENTERED AT............ 2755325.000 204680.000 TO............................ 2773307.767 201623.969 BY STRAIGHT LINE TO........... 2773160.767 200758.969 BY ARC CENTERED AT............ 2755178.000 203815.000 TO............................ 2773015.068 199999.475 BY STRAIGHT LINE TO........... 2772420.179 188058.433 BY ARC CENTERED AT............ 2754263.000 186316.000 TO............................ 2772345.899 183922.675 BY STRAIGHT LINE TO........... 2771967.899 181066.675 BY ARC CENTERED AT............ 2753885.000 183460.000 TO............................ 2766173.905 169980.310 BY STRAIGHT LINE TO........... 2764758.905 168690.310 BY ARC CENTERED AT............ 2752470.000 182170.000 TO............................ 2763667.122 167770.566 BY STRAIGHT LINE TO........... 2740620.854 137484.221 BY ARC CENTERED AT............ 2726105.000 148530.000 TO............................ 2735648.943 132985.471 BY STRAIGHT LINE TO........... 2719764.466 115956.608 BY ARC CENTERED AT............ 2701773.000 118961.000 TO............................ 2717763.031 110183.863 BY STRAIGHT LINE TO........... 2717662.031 109999.863 BY ARC CENTERED AT............ 2701672.000 118777.000 TO............................ 2714989.110 106312.097 BY ARC CENTERED AT............ 2701104.000 118141.000 TO............................ 2714747.154 106033.830 BY STRAIGHT LINE TO........... 2714613.154 105882.830 BY ARC CENTERED AT............ 2700970.000 117990.000 TO............................ 2712654.457 103983.120 BY ARC CENTERED AT............ 2699658.000 116782.000 TO............................ 2699042.141 98551.807 BY STRAIGHT LINE TO........... 2614267.867 73928.355 BY ARC CENTERED AT............ 2609180.000 91445.000 TO............................ 2597415.825 77505.006 BY STRAIGHT LINE TO........... 2595525.825 79100.006 BY ARC CENTERED AT............ 2607290.000 93040.000 TO............................ 2589264.969 90244.022 BY STRAIGHT LINE TO........... 2573559.774 191491.823 BY STRAIGHT LINE TO........... 2572517.559 191919.643 BY ARC CENTERED AT............ 2576174.000 209790.000 TO............................ 2567199.659 193909.810 BY ARC CENTERED AT............ 2574890.000 210450.000 TO............................ 2566471.962 194268.039 BY STRAIGHT LINE TO........... 2564468.949 194806.822 BY ARC CENTERED AT............ 2565940.000 212988.000 TO............................ 2559750.152 195829.765 BY STRAIGHT LINE TO........... 2559111.844 196060.036 BY ARC CENTERED AT............ 2562149.000 214046.000 TO............................ 2557271.764 196469.544 BY STRAIGHT LINE TO........... 2557018.765 196539.748 BY STRAIGHT LINE TO........... 2552324.142 197552.879 BY ARC CENTERED AT............ 2556172.000 215383.000 TO............................ 2551363.075 197787.732 BY STRAIGHT LINE TO........... 2414966.738 172672.945 BY STRAIGHT LINE TO........... 2410270.288 168699.151 BY STRAIGHT LINE TO........... 2406006.195 164748.910 BY ARC CENTERED AT............ 2393610.000 178130.000 TO............................ 2404971.660 163860.034 BY STRAIGHT LINE TO........... 2397194.660 157668.034 BY ARC CENTERED AT............ 2385833.000 171938.000 TO............................ 2396858.180 157406.495 BY STRAIGHT LINE TO........... 2392712.390 154261.048 BY STRAIGHT LINE TO........... 2389824.019 151967.545 BY ARC CENTERED AT............ 2376485.000 164409.000 TO............................ 2387438.051 149823.051 BY STRAIGHT LINE TO........... 2385828.051 148614.051 BY ARC CENTERED AT............ 2374875.000 163200.000 TO............................ 2382739.005 146741.669 BY STRAIGHT LINE TO........... 2382462.756 146609.674 BY STRAIGHT LINE TO........... 2379481.241 144717.970 BY ARC CENTERED AT............ 2369709.000 160120.000 TO............................ 2378912.544 144371.540 BY STRAIGHT LINE TO........... 2376898.544 143194.540 BY ARC CENTERED AT............ 2367695.000 158943.000 TO............................ 2374966.704 142214.534 BY STRAIGHT LINE TO........... 2373711.682 141668.989 BY ARC CENTERED AT............ 2364392.000 157349.000 TO............................ 2367742.517 139418.767 BY STRAIGHT LINE TO........... 2365248.314 138184.960 BY ARC CENTERED AT............ 2354070.000 152599.000 TO............................ 2349744.041 134878.805 BY STRAIGHT LINE TO........... 2348371.940 134393.582 BY STRAIGHT LINE TO........... 2346096.020 133533.975 BY ARC CENTERED AT............ 2339651.000 150598.000 TO............................ 2344530.100 133022.061 BY STRAIGHT LINE TO........... 2342882.004 132564.548 BY STRAIGHT LINE TO........... 2341883.034 132218.265 BY STRAIGHT LINE TO........... 2334774.627 129342.086 BY ARC CENTERED AT............ 2327933.000 146251.000 TO............................ 2333793.990 128977.667 BY STRAIGHT LINE TO........... 2328326.990 127122.667 BY ARC CENTERED AT............ 2322466.000 144396.000 TO............................ 2326958.626 126717.325 BY STRAIGHT LINE TO........... 2326905.790 126703.898 BY ARC CENTERED AT............ 2319608.000 143421.000 TO............................ 2324588.088 125873.409 BY STRAIGHT LINE TO........... 2322643.088 125321.409 BY ARC CENTERED AT............ 2317663.000 142869.000 TO............................ 2322367.586 125245.547 BY STRAIGHT LINE TO........... 2318606.586 124241.547 BY ARC CENTERED AT............ 2313902.000 141865.000 TO............................ 2314460.343 123632.954 BY STRAIGHT LINE TO........... 2312762.343 123580.954 BY ARC CENTERED AT............ 2312204.000 141813.000 TO............................ 2311215.315 123599.221 BY STRAIGHT LINE TO........... 2309557.315 123689.221 BY ARC CENTERED AT............ 2310546.000 141903.000 TO............................ 2308711.076 123754.934 BY ARC CENTERED AT............ 2300326.000 139954.000 TO............................ 2308388.131 123591.809 BY STRAIGHT LINE TO........... 2306600.131 122710.809 BY ARC CENTERED AT............ 2298538.000 139073.000 TO............................ 2302488.899 121265.428 BY STRAIGHT LINE TO........... 2299991.899 120711.428 BY ARC CENTERED AT............ 2296041.000 138519.000 TO............................ 2295410.988 120289.290 BY STRAIGHT LINE TO........... 2294513.988 120320.290 BY ARC CENTERED AT............ 2295144.000 138550.000 TO............................ 2288531.687 121550.101 BY STRAIGHT LINE TO........... 2287770.687 121846.101 BY ARC CENTERED AT............ 2294383.000 138846.000 TO............................ 2287412.160 121989.944 BY STRAIGHT LINE TO........... 2284138.223 122399.427 BY ARC CENTERED AT............ 2286402.000 140499.000 TO............................ 2283007.179 122577.102 BY STRAIGHT LINE TO........... 2277807.179 123562.102 BY ARC CENTERED AT............ 2281202.000 141484.000 TO............................ 2276614.048 123829.824 BY STRAIGHT LINE TO........... 2270161.048 125506.824 BY ARC CENTERED AT............ 2274749.000 143161.000 TO............................ 2267618.118 126372.023 BY STRAIGHT LINE TO........... 2263074.118 128302.023 BY ARC CENTERED AT............ 2270205.000 145091.000 TO............................ 2262735.940 128449.715 BY STRAIGHT LINE TO........... 2256980.940 131032.715 BY ARC CENTERED AT............ 2264450.000 147674.000 TO............................ 2255335.199 131874.012 BY STRAIGHT LINE TO........... 2251881.284 133866.529 BY STRAIGHT LINE TO........... 2250291.214 134590.217 BY STRAIGHT LINE TO........... 2229997.048 129637.207 BY STRAIGHT LINE TO........... 2228299.063 128761.074 BY ARC CENTERED AT............ 2219935.000 144971.000 TO............................ 2227466.216 128357.751 BY STRAIGHT LINE TO........... 2225677.216 127546.751 BY ARC CENTERED AT............ 2218146.000 144160.000 TO............................ 2222547.419 126458.397 BY STRAIGHT LINE TO........... 2219572.429 125718.680 BY STRAIGHT LINE TO........... 2212203.201 123742.459 BY STRAIGHT LINE TO........... 2203721.663 121100.023 BY ARC CENTERED AT............ 2198296.000 138515.000 TO............................ 2202940.874 120875.715 BY STRAIGHT LINE TO........... 2196974.874 119304.715 BY ARC CENTERED AT. 2192330.000 136944.000 TO............................ 2195302.266 118947.198 BY STRAIGHT LINE TO........... 2189988.208 118069.554 BY STRAIGHT LINE TO........... 2188596.458 117772.421 BY ARC CENTERED AT............ 2184788.000 135611.000 TO............................ 2185155.886 117374.117 BY ARC CENTERED AT............ 2182166.000 135368.000 TO............................ 2181100.490 117158.554 BY STRAIGHT LINE TO........... 2179579.490 117247.554 BY ARC CENTERED AT............ 2180645.000 135457.000 TO............................ 2177978.852 117412.309 BY STRAIGHT LINE.............. 2172699.849 117308.349 BY STRAIGHT LINE TO........... 2171638.111 117082.068 BY ARC CENTERED AT............ 2167836.000 134922.000 TABLE CONTINUED TO............................. 2168752.572 116704.450 BY STRAIGHT LINE TO............ 2165393.572 116535.450 BY ARC CENTERED AT..............2164477.000 134753.000 TO............................. 2161326.081 116786.616 BY STRAIGHT LINE TO............ 2160026.671 117014.505 BY STRAIGHT LINE TO............ 2156272.569 117354.955 BY ARC CENTERED AT............. 2157920.000 135521.000 TO............................. 2155033.394 117510.260 BY STRAIGHT LINE TO............ 2149319.763 118425.992 BY ARC CENTERED AT............. 2147751.000 136599.000 TO............................. 2149162.352 118413.090 BY STRAIGHT LINE TO............ 2145000.352 118090.090 BY ARC CENTERED AT............. 2143589.000 136276.000 TO............................. 2143589.000 118035.407 BY STRAIGHT LINE TO............ 2139529.000 118035.407 BY ARC CENTERED AT............. 2139529.000 136276.000 TO............................. 2137974.807 118101.740 BY STRAIGHT LINE TO............ 2136687.713 118211.811 BY STRAIGHT LINE TO............ 2132677.620 118549.888 BY ARC CENTERED AT............. 2134210.000 136726.000 TO............................. 2130789.620 118808.962 BY STRAIGHT LINE TO............ 2129668.620 119022.962 BY ARC CENTERED AT............. 2133089.000 136940.000 TO............................. 2126158.210 120067.437 BY STRAIGHT LINE TO............ 2122636.540 121514.043 BY STRAIGHT LINE TO............ 2122090.600 121683.588 BY STRAIGHT LINE TO............ 2118739.612 122394.088 BY ARC CENTERED AT............. 2122523.000 140238.000 TO............................. 2114775.806 123724.363 BY STRAIGHT LINE TO............ 2111081.806 125457.363 BY ARC CENTERED AT............. 2118829.000 141971.000 TO............................. 2108033.001 127268.427 BY STRAIGHT LINE TO............ 2107269.901 127829.427 BY ARC CENTERED AT............. 2118065.000 142532.000 TO............................. 2103682.105 131313.642 BY STRAIGHT LINE TO............ 2103291.338 131814.638 BY STRAIGHT LINE TO............ 2063551.901 176572.248 BY ARC CENTERED AT............. 2075295.000 190530.000 TO............................. 2059950.518 180667.643 BY ARC CENTERED AT............. 2071131.000 195080.000 TO............................. 2058843.067 181599.424 BY ARC CENTERED AT............. 2062055.000 199555.000 TO............................. 2057133.878 181990.781 BY STRAIGHT LINE TO............ 2053778.878 182930.781 BY ARC CENTERED AT............. 2058700.000 200495.000 TO............................. 2053474.211 183019.006 BY STRAIGHT LINE TO............ 2052967.358 183053.121 BY STRAIGHT LINE TO............ 2051871.023 183006.136 BY ARC CENTERED AT............. 2051090.000 201230.000 TO............................. 2050844.853 182991.054 BY STRAIGHT LINE TO............ 2048984.853 183016.054 BY ARC CENTERED AT............. 2049230.000 201255.000 TO............................. 2048033.279 183053.706 BY STRAIGHT LINE............... 2044865.110 183262.011 BY STRAIGHT LINE............... 2041482.009 183446.456 BY ARC CENTERED AT............. 2042475.000 201660.000 TO............................. 2037472.505 184118.784 BY STRAIGHT LINE TO............ 2033138.620 185354.743 BY STRAIGHT LINE TO............ 2032933.709 185387.056 BY ARC CENTERED AT............. 2035775.000 203405.000 TO............................. 2029790.979 186173.902 BY STRAIGHT LINE TO............ 2027400.979 187003.902 BY ARC CENTERED AT............. 2033385.000 204235.000 TO............................. 2026833.971 187211.391 BY STRAIGHT LINE TO............ 2023509.988 188490.527 BY STRAIGHT LINE TO............ 2020958.847 189326.687 BY ARC CENTERED AT............. 2026640.000 206660.00 TO............................. 2019189.740 190010.289 BY STRAIGHT LINE TO............ 2016613.211 191163.211 BY STRAIGHT LINE TO............ 2015795.894 191414.427 BY ARC CENTERED AT............. 2021155.000 208850.000 TO............................. 2013823.478 192147.664 BY STRAIGHT LINE TO............ 2010121.478 193772.664 BY ARC CENTERED AT............. 2017453.000 210475.000 TO............................. 2007660.073 195086.114 BY STRAIGHT LINE TO............ 2006450.073 195856.114 BY ARC CENTERED AT............. 2016243.000 211245.000 TO............................. 2002812.039 198902.856 BY STRAIGHT LINE TO............ 2001329.365 200516.331 BY STRAIGHT LINE TO............ 1998627.524 203118.747 BY STRAIGHT LINE TO............ 1996876.875 204647.104 BY ARC CENTERED AT............. 2008873.000 218388.000 TO............................. 1994484.382 207176.983 BY STRAIGHT LINE TO............ 1993669.382 208222.983 BY ARC CENTERED AT............. 2008058.000 219434.000 TO............................. 1992024.459 210736.599 BY STRAIGHT LINE TO............ 1991723.504 211291.404 BY STRAIGHT LINE TO............ 1991392.007 211653.006 BY STRAIGHT LINE TO............ 1987526.734 215291.902 BY ARC CENTERED AT............. 2000030.000 228573.000 TO............................. 1985880.690 217061.430 BY STRAIGHT LINE TO............ 1984418.690 218858.430 BY ARC CENTERED AT............. 1998568.000 230370.000 TO............................. 1982725.876 221328.633 BY STRAIGHT LINE TO............ 1981279.040 223863.752 BY ARC CENTERED AT............. 1987818.000 240892.000 TO............................. 1978538.859 225187.963 BY STRAIGHT LINE TO............ 1913512.136 252159.733 BY ARC CENTERED AT............. 1914373.000 270380.000 TO............................. 1902085.015 256899.471 BY STRAIGHT LINE TO............ 1899965.772 257778.490 BY ARC CENTERED AT............. 1896827.000 275747.000 TO............................. 1895099.636 257588.381 BY ARC CENTERED AT............. 1882306.000 270590.000 TO............................. 1867537.422 259884.472 BY ARC CENTERED AT............. 1872418.000 277460.000 TO............................. 1858533.650 265630.205 BY ARC CENTERED AT............. 1843467.000 275912.000 TO............................. 1848728.806 258446.816 BY ARC CENTERED AT............. 1835344.000 270839.000 TO............................. 1842206.261 253938.450 BY STRAIGHT LINE TO............ 1840881.261 253400.450 BY ARC CENTERED AT............. 1834019.000 270301.000 TO............................. 1817313.904 262975.771 BY STRAIGHT LINE TO............ 1816821.904 264097.771 BY ARC CENTERED AT............. 1833527.000 271423.000 TO............................. 1815531.092 274400.671 BY ARC CENTERED AT............. 1820994.000 291804.000 TO............................. 1808996.684 278064.144 BY ARC CENTERED AT............. 1809845.000 296285.000 TO............................. 1792971.196 289357.232 BY ARC CENTERED AT............. 1791584.000 307545.000 TO............................. 1773422.454 305848.689 BY ARC CENTERED AT............. 1783067.000 321331.000 TO............................. 1771283.720 307407.152 BY ARC CENTERED AT............. 1782391.000 321876.000 TO............................. 1769316.873 309156.470 BY ARC CENTERED AT............. 1778769.000 324757.000 TO............................. 1763171.778 315299.416 BY ARC CENTERED AT............. 1763190.000 333540.000 TO............................. 1762008.035 315337.742 BY STRAIGHT LINE TO............ 1761238.035 315387.742 BY ARC CENTERED AT............. 1762420.000 333590.000 TO............................. 1761003.510 315404.490 BY ARC CENTERED AT............. 1758630.000 333490.000 TO............................. 1751584.928 316664.834 BY STRAIGHT LINE TO............ 1749526.738 316597.235 BY STRAIGHT LINE TO............ 1745677.439 316238.492 BY STRAIGHT LINE TO............ 1741756.932 315744.746 BY STRAIGHT LINE TO............ 1738097.906 314155.450 BY ARC CENTERED AT............. 1730831.000 330886.000 TO............................. 1737269.265 313819.425 BY STRAIGHT LINE TO............ 1733961.536 312571.604 BY STRAIGHT LINE TO............ 1733064.913 312109.811 BY ARC CENTERED AT............. 1724713.000 328326.000 TO............................. 1729983.294 310863.376 BY STRAIGHT LINE TO............ 1729556.701 310734.628 BY STRAIGHT LINE TO............ 1727510.374 309315.183 BY ARC CENTERED AT............. 1717114.000 324303.000 TO............................. 1726647.410 308752.009 BY STRAIGHT LINE TO............ 1721462.901 305573.687 BY STRAIGHT LINE TO............ 1721351.205 305467.060 BY ARC CENTERED AT............. 1708756.000 318661.000 TO............................. 1715564.505 301738.722 BY STRAIGHT LINE TO............ 1713598.505 300947.722 BY ARC CENTERED AT............. 1706790.000 317870.000 TO............................. 1711470.692 300240.186 BY STRAIGHT LINE TO............ 1707760.692 299255.186 BY ARC CENTERED AT............. 1703080.000 316885.000 TO............................. 1706764.569 299020.421 BY STRAIGHT LINE TO............ 1704364.569 298525.421 BY ARC CENTERED AT............. 1700680.000 316390.000 TO............................. 1702465.472 298237.002 BY STRAIGHT LINE TO............ 1698144.472 297812.002 BY ARC CENTERED AT............. 1696359.000 315965.000 TO............................. 1696238.714 297724.804 BY STRAIGHT LINE TO............ 1692447.714 297749.804 BY ARC CENTERED AT............. 1692568.000 315990.000 TO............................. 1691302.392 297793.367 BY STRAIGHT LINE TO............ 1688714.392 297973.367 BY ARC CENTERED AT............. 1689980.000 316170.000 TO............................. 1687709.313 298071.292 BY STRAIGHT LINE TO............ 1684999.313 298411.292 BY ARC CENTERED AT............. 1687270.000 316510.000 TO............................. 1683392.698 298686.259 BY STRAIGHT LINE TO............ 1674667.698 300584.259 BY ARC CENTERED AT............. 1678545.000 318408.000 TO............................. 1674182.260 300696.825 BY STRAIGHT LINE TO............ 1670983.260 301484.825 BY ARCH CENTERED AT............ 1675346.000 319196.000 TO............................. 1670472.396 301618.537 BY STRAIGHT LINE TO............ 1666144.396 302818.537 BY ARC CENTERED AT............. 1671018.000 320396.000 TO............................. 1665216.208 303102.694 BY STRAIGHT LINE TO............ 1663698.256 303611.957 BY STRAIGHT LINE TO............ 1662427.081 303960.024 BY STRAIGHT LINE TO............ 1661678.585 304151.016 BY STRAIGHT LINE TO............ 1659494.422 304615.679 BY ARC CENTERED AT............. 1663290.000 322457.000 TO............................. 1659476.114 304619.584 BY STRAIGHT LINE TO............ 1658119.984 304909.541 BY ARC CENTERED AT............. 1658887.000 323134.000 TO............................. 1656353.874 305070.155 BY ARC CENTERED AT............. 1655896.000 323305.000 TO............................. 1652649.679 305355.609 BY STRAIGHT LINE TO............ 1650183.679 305801.609 BY ARC CENTERED AT............. 1653430.000 323751.000 TO............................. 1648634.766 306151.995 BY STRAIGHT LINE TO............ 1647050.638 306583.626 BY ARC CENTERED AT............. 1649308.000 324684.000 TO............................. 1643681.190 307332.970 BY STRAIGHT LINE TO............ 1636292.049 308606.828 BY STRAIGHT LINE TO............ 1627130.174 309806.774 BY STRAIGHT LINE TO............ 1620756.645 310390.406 BY ARCH CENTERED AT............ 1622420.000 328555.000 TO............................. 1619894.970 310490.021 BY STRAIGHT LINE TO............ 1614564.970 311235.021 BY ARC CENTERED AT............. 1617090.000 329300.000 TO............................. 1613147.762 311490.508 BY STRAIGHT LINE TO............ 1611814.388 311591.352 BY ARC CENTERED AT............. 1613190.000 329780.000 TO............................. 1609959.518 311827.752 BY STRAIGHT LINE TO............ 1606069.518 312527.752 BY ARC CENTERED AT............. 1609300.000 330480.000 TO............................. 1604701.693 312828.518 BY STRAIGHT LINE TO............ 1604290.346 312866.444 BY ARC CENTERED AT............. 1605965.000 331030.000 TO............................. 1601324.800 313389.485 BY STRAIGHT LINE TO............ 1601195.452 313403.353 BY ARC CENTERED AT............. 1603140.000 331540.000 TO............................. 1598672.218 313855.030 BY STRAIGHT LINE TO............ 1596369.924 314436.662 BY STRAIGHT LINE TO............ 1596179.536 314483.099 BY STRAIGHT LINE TO............ 1592424.426 315063.358 BY ARC CENTERED AT............. 1595210.000 333090.000 TO............................. 1591478.647 315235.134 BY ARC CENTERED AT............. 1594075.000 333290.000 TO............................. 1589693.705 315583.406 BY ARC CENTERED AT............. 1593010.000 333520.000 TO............................. 1589432.725 315633.627 BY STRAIGHT LINE TO............ 1588107.725 315898.627 BY ARC CENTERED AT............. 1591685.000 333785.000 TO............................. 1585928.488 316476.568 BY STRAIGHT LINE TO............ 1584286.461 317022.681 BY STRAIGHT LINE TO............ 1582201.158 317563.459 BY ARC CENTERED AT............. 1586780.000 335220.000 TO............................. 1581595.826 317731.616 BY STRAIGHT LINE TO............ 1576265.826 319311.616 BY ARC CENTERED AT............. 1581450.000 336800.000 TO............................. 1575360.430 319605.920 BY STRAIGHT LINE TO............ 1570080.430 321475.920 BY ARC CENTERED AT............. 1576170.000 338670.000 TO............................. 1569889.483 321544.746 BY STRAIGHT LINE TO............ 1565349.483 323209.746 BY ARC CENTERED AT............. 1571630.000 340335.000 TO............................. 1563529.454 323991.794 BY STRAIGHT LINE TO............ 1563104.470 324202.438 BY STRAIGHT LINE TO............ 1561073.459 324993.694 BY ARC CENTERED AT............. 1567695.000 341990.000 TO............................. 1558882.014 326019.699 BY STRAIGHT LINE TO............ 1558878.845 326020.658 BY ARC CENTERED AT............. 1564160.000 343480.000 TO............................. 1556225.264 327055.652 BY STRAIGHT LINE TO............ 1556065.664 327132.756 BY STRAIGHT LINE TO............ 1553511.012 327893.991 BY ARC CENTERED AT............. 1558720.000 345375.000 TO............................. 1551769.032 328510.740 BY STRAIGHT LINE TO............ 1549575.133 329415.002 BY ARC CENTERED AT............. 1553840.000 347150.000 TO............................. 1546080.537 330642.124 BY STRAIGHT LINE TO............ 1543910.537 331662.124 BY ARC CENTERED AT............. 1551670.000 348170.000 TO............................. 1541402.425 333093.656 BY STRAIGHT LINE TO............ 1540010.551 333646.129 BY ARC CENTERED AT............. 1546740.000 350600.000 TO............................. 1537926.517 334629.973 BY STRAIGHT LINE TO............ 1531757.270 337418.384 BY ARC CENTERED AT............. 1539270.000 354040.000 TO............................. 1530263.411 338178.077 BY STRAIGHT LINE TO............ 1527498.411 339748.077 BY ARC CENTERED AT............. 1536505.000 355610.000 TO............................. 1526511.279 340350.748 BY STRAIGHT LINE TO............ 1526495.252 340356.351 BY ARC CENTERED AT............. 1532515.000 357575.000 TO............................. 1523958.793 341465.669 BY ARC CENTERED AT............. 1531240.000 358190.000 TO............................. 1522812.853 342012.780 BY STRAIGHT LINE TO............ 1516478.301 345312.618 BY STRAIGHT LINE TO............ 1505571.538 350398.247 BY ARC CENTERED AT............. 1513280.000 366930.000 TO............................. 1504778.049 350791.968 BY STRAIGHT LINE TO............ 1493968.049 356486.968 BY ARC CENTERED AT............. 1502470.000 372625.000 TO............................. 1493740.316 356609.013 BY STRAIGHT LINE TO............ 1488240.052 359606.990 BY STRAIGHT LINE TO............ 1483854.587 361809.134 BY ARC CENTERED AT............. 1492040.000 378110.000 TO............................. 1483320.003 362088.736 BY STRAIGHT LINE TO............ 1481463.717 363099.069 BY STRAIGHT LINE TO............ 1472522.370 367321.496 BY STRAIGHT LINE TO............ 1464631.664 370388.555 BY ARC CENTERED AT............. 1471240.000 387390.000 TO............................. 1464432.797 370467.198 BY STRAIGHT LINE TO............ 1461367.007 371700.413 BY STRAIGHT LINE TO............ 1455040.915 373829.471 BY STRAIGHT LINE TO............ 1449141.552 375497.695 BY ARC CENTERED AT............. 1454105.000 393050.000 TO............................. 1447393.776 376088.906 BY STRAIGHT LINE TO............ 1443223.776 377738.906 BY ARC CENTERED AT............. 1449935.000 394700.000 TABLE CONTINUED TO............................. 1442769.075 377925.950 BY STRAIGHT LINE TO............ 1437906.346 380003.323 BY STRAIGHT LINE TO............ 1435141.472 381047.641 BY STRAIGHT LINE TO............ 1431147.160 382502.176 BY ARC CENTERED AT............. 1431465.000 400740.000 TO............................. 1426148.360 383291.431 BY STRAIGHT LINE TO............ 1423703.360 384036.431 BY ARC CENTERED AT............. 1429020.000 401485.000 TO............................. 1421665.109 384792.942 BY STRAIGHT LINE TO............ 1421218.470 384903.464 BY ARC CENTERED AT............. 1425600.000 402610.000 TO............................. 1417427.962 386302.424 BY STRAIGHT LINE TO............ 1411695.359 388053.764 BY STRAIGHT LINE TO............ 1406674.661 389181.191 BY STRAIGHT LINE TO............ 1400158.431 390267.229 BY STRAIGHT LINE TO............ 1395814.598 390680.732 BY STRAIGHT LINE TO............ 1390918.652 390971.488 BY ARC CENTERED AT............. 1392000.000 409180.000 TO............................. 1390574.806 390995.170 BY STRAIGHT LINE TO............ 1386957.975 390976.807 BY STRAIGHT LINE TO............ 1385797.206 390941.712 BY STRAIGHT LINE TO............ 1383281.102 390515.548 BY ARC CENTERED AT............. 1380235.000 408500.000 TO............................. 1382826.840 390444.486 BY STRAIGHT LINE TO............ 1380530.215 390114.809 BY STRAIGHT LINE TO............ 1379792.836 389886.779 BY ARC CENTERED AT............. 1363392.000 397870.000 TO............................. 1364287.995 379651.426 BY STRAIGHT LINE TO............ 1363311.995 379603.426 BY ARC CENTERED AT............. 1362416.000 397822.000 TO............................. 1348021.258 386618.846 BY STRAIGHT LINE TO............ 1347740.102 386685.385 BY STRAIGHT LINE TO............ 1339580.030 387874.310 BY STRAIGHT LINE TO............ 1332310.668 388693.581 BY STRAIGHT LINE TO............ 1328040.717 388886.344 BY STRAIGHT LINE TO............ 1323345.435 388897.040 BY STRAIGHT LINE TO............ 1318623.382 388813.567 BY STRAIGHT LINE TO............ 1313960.559 388548.345 BY STRAIGHT LINE TO............ 1309176.109 388113.641 BY STRAIGHT LINE TO............ 1299212.104 386971.530 BY STRAIGHT LINE TO............ 1294263.747 386188.550 BY ARC CENTERED AT............. 1291413.000 404205.000 TO............................. 1293947.880 386141.401 BY STRAIGHT LINE TO............ 1288688.880 385403.401 BY ARC CENTERED AT............. 1286154.000 403467.000 TO............................. 1288273.366 385349.949 BY STRAIGHT LINE TO............ 1282879.366 384718.949 BY ARC CENTERED AT............. 1280760.000 402836.000 TO............................. 1282342.694 384664.200 BY STRAIGHT LINE TO............ 1277049.694 384203.200 BY ARC CENTERED AT............. 1275467.000 402375.000 TO............................. 1276973.676 384196.739 BY STRAIGHT LINE TO............ 1266567.571 383334.246 BY STRAIGHT LINE TO............ 1261753.853 382854.687 BY STRAIGHT LINE TO............ 1256844.970 382176.061 BY STRAIGHT LINE TO............ 1252081.894 381444.329 BY STRAIGHT LINE TO............ 1247119.827 380488.609 BY ARC CENTERED AT............. 1243670.000 398400.000 TO............................. 1246625.928 380400.508 BY STRAIGHT LINE TO............ 1243865.458 379947.175 BY STRAIGHT LINE TO............ 1240510.889 379144.329 BY STRAIGHT LINE TO............ 1238894.264 378640.306 BY STRAIGHT LINE TO............ 1234691.701 377218.487 BY ARC CENTERED AT............. 1228846.000 394497.000 TO............................. 1233981.468 376994.252 BY ARC CENTERED AT............. 1225768.000 393281.000 TO............................. 1230677.055 375713.405 BY STRAIGHT LINE TO............ 1229077.217 374979.877 BY ARC CENTERED AT............. 1219065.000 390227.000 TO............................. 1227370.800 373987.144 BY STRAIGHT LINE TO............ 1226184.927 373380.635 BY STRAIGHT LINE TO............ 1227213.819 367277.089 BY ARC CENTERED AT............. 1209227.000 364245.000 TO............................. 1214917.815 346914.857 BY STRAIGHT LINE TO............ 1213303.815 346384.857 4. Pending further order of the Court or agreement of the parties, leases of lands lying partly within the area above described and partly landward of that area shall be in no way affected by anything contained in this decree, and revenues derived from such leases shall remain subject to impoundment under the Interim Agreement of October 12, 1956, as amended, in the same manner as heretofore. 5. The Court retains jurisdiction to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to its previous orders or decrees herein or to this decree or to effectuate the rights of the parties in the premises.

364.US.299

Certiorari granted; judgment vacated; and case remanded. Reported below: 279 F. 2d 289.

On petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit. Petition for writ of certiorari granted. On writ of certiorari, judgment vacated and case remanded for consideration in light of Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218. Mr. Justice BLACK dissents.