author: Mr. Chief Justice Warren

text:
    UDALL, SECRETARY OF THE INTERIOR v. TALLMAN et al.
    No. 34.
    Argued October 22, 26, 1964.
    Decided March 1, 1965.

      Wayne G. Barnett argued the cause for petitioner. With him on the briefs were Solicitor General Cox, Roger P. Marquis and Edmund B. Clark.

      Charles F. Wheatley, Jr., argued the cause for respondents. With him on the brief was Robert L. McCarty.

    Briefs of amici curiae, urging reversal, were filed by Clayton L. Orn, Marvin J. Sonosky, Oscar L. Chapman, Martin L. Friedman and Marion B. Plant for Marathon Oil Company et al., and by Abe Fortas, Joseph A. Ball, Gordon A. Goodwin, Francis R. Kirkham, Turner H. McBaine and Clark M. Clifford for Richfield Oil Corporation et al.
   Mr. Chief Justice Warren

delivered the opinion of the Court.

At issue in this case is the effect of Executive Order No. 8979 and Public Land Order No. 487 upon the Secretary of the Interior’s authority to issue oil and gas leases.

Between October 15, 1954, and January 28, 1955, D. J. Griffin and other persons — hereinafter collectively referred to as the Griffin lessees — filed applications for oil and gas leases on approximately 25,000 acres located in the Kenai National Moose Range in Alaska. On August 14, 1958, the respondents filed offers to lease the same lands. Section 17 of the Mineral Leasing Act of 1920 provides, in relevant part, that “the person first making application for the lease who is qualified to hold a lease . . . shall be entitled to a lease of such lands without competitive bidding. . . .” 41 Stat. 443 (1920), as amended by 60 Stat. 951 (1946), 30 U. S. C. § 226 (1958 ed.). The Bureau of Land Management of the .Department of the Interior determined that the Griffin lessees were the persons who had applied first, and issued to them leases on the tracts, effective September 1, 1958. Respondents’ applications were reached for processing in October 1959, and were rejected on the ground that the lands had been leased to prior applicants.

From the rejection of their applications, respondents appealed to the Director of the Bureau of Land Management and then to the Secretary of the Interior, both of whom affirmed the decision. 68 I. D. 256 (1961). Respondents then brought an action in the nature of mandamus, in the United States District Court for the District of Columbia, to compel the Secretary to issue oil and gas leases to them. The District Court granted summary judgment in favor of the Secretary dismissing the complaint. The Court of Appeals for the District of Columbia Circuit reversed, holding that Executive Order No. 8979, the order creating the Moose Range in 1941, and Public Land Order No. 487, issued by the Secretary in 1948, had withdrawn the lands in controversy from availability for leasing under the Mineral Leasing Act, and that the lands remained closed to leasing until they were reopened by a revised departmental regulation on August 14, 1958. The court therefore held that the Griffin applications, filed while the land was closed, were ineffective, rendering the leases issued on them nullities; the respondents, as the persons first making application after the promulgation of the 1958 regulation, were held to be entitled to the leases. 116 U. S. App. D. C. 379, 324 F. 2d 411 (1963). We granted certiorari, 376 U. S. 961.

We conclude that the District Court correctly refused to issue a writ of mandamus, and accordingly reverse the decision of the Court of Appeals. Since their promulgation, the Secretary has consistently construed both orders not to bar oil and gas leases; moreover, this interpretation has been made a repeated matter of public record. While the Griffin leases and others located in the Moose Range have been developed in reliance upon the Secretary’s interpretation, respondents do not claim to have relied to their detriment upon a contrary construction. The Secretary’s interpretation may not be the only one permitted by the language of the orders, but it is quite clearly a reasonable interpretation; courts must therefore respect it. McLaren v. Fleischer, 256 U. S. 477, 481; Bowles v. Seminole Rock Co., 325 U. S. 410, 413-414.

I.

The Mineral Leasing Act of 1920, 41 Stat. 437, 30 U. S. C. § 181 et seq. (1958 ed.), gave the Secretary of the Interior broad power to issue oil and gas leases on public lands not within any known geological structure of a producing oil and gas field. Although the Act directed that if a lease was issued on such a tract, it had to be issued to the first qualified applicant, it left the Secretary discretion to refuse to issue any lease at all on a given tract. United States ex rel. McLennan v. Wilbur, 283 U. S. 414. The Act excluded from its application certain designated lands, but did not exclude lands within wildlife refuge areas.

The Kenai National Moose Range was created in 1941 by Executive Order No. 8979, 6 Fed. Reg. 6471, by which approximately two million acres of the public domain were set aside "as a refuge and breeding ground for moose.” The order provided that “[n]one of the above-described lands excepting [a defined area] shall be subject to settlement, location, sale, or entry, or other disposition (except for fish trap sites) under any of the public-land laws applicable to Alaska . . . .” On November 8, 1947, the Secretary promulgated the first general regulation dealing with the issuance of oil and gas leases within wildlife refuges. It provided simply that such leases had to be subjected to an approved unit plan and contain a provision prohibiting drilling or prospecting without the advance consent of the Secretary. 12 Fed. Reg. 7334.

On June 16, 1948, the Secretary issued Public Land Order No. 487, 13 Fed. Reg. 3462:

“[T]he public lands within the following-described areas in Alaska [including most of that portion of the Moose Range which had been excepted from Executive Order No. 8979] are hereby temporarily withdrawn from settlement, location, sale or entry, for classification and examination, and in aid of proposed legislation:
"This order shall take precedence over, but shall not modify . . . the reservation for the Kenai National Moose Range made by Executive Order No. 8979 of December 16, 1941 . . . .”

Thus neither Executive Order No. 8979 nor Public Land Order No. 487 expressly withdrew the lands to which it applied from oil and gas leasing. In 1951, however, the Secretary set aside, for uses inconsistent with mineral leasing, minor portions of the lands covered by Public Land Order No. 487:

“[T]he following-described public lands in Alaska are hereby withdrawn from all forms of appropriation under the public-land laws, including the mining laws and the mineral-leasing laws . ...”

Had the Secretary thought that Public Land Order No. 487 had already withdrawn the lands covered by it from appropriation under the mineral-leasing laws, his reference to such laws in the 1951 orders would have been superfluous.

By an intra-agency memorandum dated August 31, 1953, the Director of the Bureau of Land Management advised the Regional Administrators of the Bureau and managers of the local land offices that “a possible revision of policy and regulations” on leasing in wildlife refuges was being studied, and directed them that “[p]ending the completion of this study and the possible revision of existing regulations, you will suspend action on all pending oil and gas lease offers and applications for lands within such refuges.” It is not disputed, and subsequent memoranda make clear, that the 1953 memorandum did not purport to prevent either the issuance of leases with the approval of the national office or the continued filing of lease offers. During late 1954 and early 1955, a number of individuals filed applications for oil and gas leases in the northern half of the Moose Range; among these applications were those of the Griffin lessees. Action on them was suspended in accordance with the 1953 directive, but none was rejected on the ground that the land in question was closed to leasing.

On September 9, 1955, the Secretary issued Public Land Order No. 1212, 20 Fed. Reg. 6795, revoking in its entirety Public Land Order No. 487. After granting certain preferences, it provided:

“6. Any of the lands described in paragraphs 4 (a), 4 (b) or 4 (d) of this order then remaining unappropriated, shall become subject to such application, petition, selection, or other form of appropriation by the public generally as may be authorized by the public-land laws, including the mineral-leasing laws ....
“7. Commencing at 10:00 a. m. on the 182nd day after the date of this order, any of the unsurveyed lands described in paragraph 4 (c) not settled upon by veterans or other persons entitled to credit for service shall become subject to settlement and other forms of appropriation by the public generally, including leasing under the mineral-leasing laws . . . .” (Emphasis added.)

Respondents make much of the italicized language, which does appear to be inconsistent with the Department’s prior interpretation of Public Land Order No. 487 and its actual leasing practices. However, on October 14, 1955 — 35 days after it was promulgated but before it went into effect, and years before the respondents entered the picture — Public Land Order No. 1212 was amended to delete the references to the mineral-leasing laws. 20 Fed. Reg. 7904.

On December 8, 1955, the anticipated revision of the 1947 refuge-leasing regulation was promulgated. 20 Fed. Reg. 9009. It was more restrictive than the old regulation, and gave increased power to the Fish and Wildlife Service to approve or disapprove oil and gas development of refuges. It listed in an Appendix A a number of refuges (not including Kenai) in which, because of their importance to the preservation of rare species of plant and animal life, no leasing at all would be permitted. In Appendix B it listed certain areas (including a small part of the Moose Range not involved here) “with respect to which the Fish and Wildlife Service reports that oil and gas development might seriously impair or destroy the usefulness of the lands for wildlife conservation purposes . . . .” In such Appendix B areas, leasing was to be permitted only upon the approval by the Director of the Fish and Wildlife Service of “a complete and detailed operating program for the area.” In all other wildlife areas the regulation provided that “[o]il and gas leases may be issued” provided they contain specified conditions requiring approval by the Fish and Wildlife Service of the type of prospecting to be conducted, and adoption by the lessee of a unit plan approved by the Service. Respondents argue that even if it be assumed that (as is clearly the case) the 1955 regulation treated the lands in controversy as open to leasing, the regulation is not probative of the availability of the lands for leasing prior to 1955, and is therefore no evidence that the Secretary viewed the lands as open to leasing at the time the Griffin applications were filed. We think, however, that if the Secretary had been of the opinion that he was changing the status of that part of the Moose Range not covered by Appendix B, rather than merely imposing additional restrictions on leasing therein, he would have done so in terms more express than those used in the 1955 regulation. He did not refer to the Range as a whole; the only reference by name was to those parts of the Range which were specified in order to except them from the general provision that “[o]il and gas leases may be issued” in wildlife refuges. Though this specification supports the inference that the regulation was drafted on the assumption that the remainder of the Range was open to leasing, such indirect implication — however clearly it confirms the preexisting availability of the Range — would have been a technique inappropriate for effecting a change of the Range’s status. Moreover, the President’s 1952 delegation to the Secretary of power to make or modify withdrawals had directed that “[a] 11 orders issued by the Secretary of the Interior under the authority of this order shall be designated as public land orders and shall be submitted . . . for filing and for publication in the Federal Register.” Executive Order No. 10355, 17 Fed. Reg. 4831 (emphasis added). It may be that a document not labeled a public land order could in legal effect constitute an exercise of that power; however, if the Secretary had meant to exercise such power, it is likely that he would have done so in the manner directed by the President’s delegation.

When bills were introduced in Congress early in 1956 to restrict oil and gas leasing in wildlife refuges, the House Committee on Merchant Marine and Fisheries and the Subcommittee on Merchant Marine and Fisheries of the Senate Committee on Interstate and Foreign Commerce held extensive hearings thereon. The bills as introduced only forbade the Secretary to “dispose of” lands in wildlife refuges, and the question arose during the hearings whether that language would apply to the issuance of oil and gas leases. A representative of the Department asserted, without contradiction, that the granting of an oil and gas lease was not a “disposition” and would not be affected by the language as proposed. Hearings before the House Committee on Merchant Marine and Fisheries on H. R. 5306, etc., 84th Cong., 2d Sess., p. 98. An amendment was accordingly proposed specifically restricting oil and gas leasing. Neither committee reported favorably on the bills. However, the House Committee submitted a report stating that it had been decided to try, for an experimental period of time, an arrangement whereby each proposed alienation or relinquishment of any interest the Fish and Wildlife Service had in lands under its jurisdiction would be submitted to the Committee, which would within 60 days approve or disapprove the action contemplated. H. R. Rep. No. 1941, 84th Cong., 2d Sess., pp. 12-13. This resolution of the issue suggests that the Committee accepted the Department’s view that the Secretary had pre-existing authority to grant oil and gas leases in the Moose Range, and was concerned only with the way in which he exercised his discretion.

Pursuant to the agreement, the House Committee on Merchant Marine and Fisheries held public hearings on July 20 and 25, 1956, on a proposal from the Fish and Wildlife Service for the issuance of 30 oil and gas leases on 71,680 acres in the northern half of the Moose Range— located within the area encompassed by Executive Order No. 8979 — for which lease applications had been filed in 1954 by amicus curiae Richfield Oil Corporation and others. The proposal contemplated that the leases would be subject to the Swanson River Unit plan of operation, which had been approved by the Bureau of Land Management, the Geological Survey and the Fish and Wildlife Service, all branches of the Department of the Interior. At the hearing on the proposal a spokesman for the National Wildlife Federation urged that Executive Order No. 8979 precluded the issuance of the leases. Transcript of Hearings before the House Committee on Merchant Marine and Fisheries, July 20 and 25, 1956, Lease of Portions of Kenai National Moose Range, pp. 17, 19, 24-26. But see id., pp. 35-36; letter, July 24, 1956, Deputy Solicitor, Department of the Interior, to Hon. E. L. Bartlett, Delegate to Congress from Alaska, following id., p. 30. On July 25,1956, however, the Committee’s Chairman advised the Director of the Fish and Wildlife Service that the Committee unanimously had concluded that issuance of the leases would not be detrimental to the wildlife values of the Moose Range, and had concurred in the proposal to issue the leases.

Following the Committee’s approval the leases were issued, an exploratory well was drilled and oil was discovered in commercial quantities in July 1957. See Rep. Alaska Gov. 88 (1957); Rep. Secy. Int. 356 (1957); Rep. Secy. Int. 104, 199, 258, 356 (1958). The Swanson River leases soon became again a subject of congressional concern, when the Secretary of the Interior — realizing that although he had authority to issue leases on dry land, he lacked such authority with respect to lands beneath Alaskan inland navigable waters — asked Congress for authority to issue leases on Alaskan water bottoms, and to add to the leases already issued in Alaska and to applications pending there the water bottoms within their boundaries. The Senate Committee reported favorably on the proposed bill, saying:

“In Alaska, there is at the present time only one area which is now subject to the Mineral Leasing Act where oil and gas is known to exist in paying quantities, this being on the Kenai Peninsula as previously described. If prior to the effective date of this act, the producing structure on the Kenai is defined, then the holders of upland leases in such areas might be forced to compete for areas beneath adjacent lakes and streams. The committee felt that this result would work to the disadvantage of those lessees and developers who have gone ahead and developed this area . . . .” S. Rep. No. 1720, 85th Cong., 2d Sess., p. 5.

The bill was subsequently enacted into law. 72 Stat. 322 (1958), 48 U. S. C. § 456 and 30 U. S. C. § 251 (1958 ed.).

Meanwhile, the controversy over the leasing policies to be followed in wildlife refuges was resolved by the adoption, on January 8, 1958, of another complete revision of the regulation. 23 Fed. Reg. 227, 43 CFR § 192.9. The revision represented a near-total victory for the conservationists. It altogether prohibited oil and gas leasing, unless necessary to prevent draining, in wildlife refuges — with two exceptions: lands withdrawn for a dual purpose, and wildlife refuges located in Alaska. As to lands falling within these two excepted categories, the Bureau of Land Management and the Fish and Wildlife Service were to reach agreements specifying the lands which “shall not be subject to oil and gas leasing” and to decide on provisions to be required in leases issued on the remaining lands. The agreements were to become effective upon approval by the Secretary and publication in the Federal Register. The regulation further provided that “[a] 11 pending offers or applications heretofore filed for oil and gas leases covering game ranges, coordination lands, and Alaska wildlife areas, will continue to be suspended until the agreements referred to . . . shall have been completed,” and that no new lease applications would “be accepted for fifing until the tenth day after the agreements . . . are noted on the land office records.”

Pursuant to the regulation, there was published in the Federal Register on August 2,1958, an order of the Secretary announcing the agreement reached with respect to the Moose Range. 23 Fed. Reg. 5883. The order decreed that certain lands within the Range (essentially the southern half) “are hereby closed to oil and gas leasing because such activities would be incompatible with management thereof for wildlife purposes.” It then provided:

“The balance of the lands within the Kenai National Moose Range are subject to the fifing of oil and gas lease offers .... Offers to lease covering any of these lands which have been pending and upon which action was suspended in accordance with the regulation 43 CFR 192.9 (d) will now be acted upon and adjudicated in accordance with the regulations.
. . [L] ease offers for lands which have not been excluded from leasing will not be accepted for filing until the tenth day after the agreement and map are noted on the records of the land office . . .

The agreement was noted in the Anchorage land office on August 4, 1958, and 10 days later respondents filed their applications.

Soon after the issuance of the regulation and the implementing order, the pending applications were acted upon; within the next two months, 294 leases covering 621,234 acres were issued in the area subject to Executive Order No. 8979, in response to applications (including those of the Griffin lessees) filed in 1954 and 1955. When these figures are added to those covering leases issued prior to 1958 (primarily those in the Swanson River area), it appears that in the area subject to Executive Order No. 8979, the Secretary issued a total of 331 leases covering 696,680 acres on applications filed during the period the Court of Appeals held that the area was closed to leasing. Thus, prior to the commencement of the instant suit, the Secretary had leased substantially the entire area in controversy; the Solicitor General further assures us that the lessees and their assignees had, in turn, expended tens of millions of dollars in the development of the leases.

II.

When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. “To sustain the Commission’s application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.” Unemployment Comm’n v. Aragon, 329 U. S. 143, 153. See also, e. g., Gray v. Powell, 314 U. S. 402; Universal Battery Co. v. United States, 281 U. S. 580, 583. “Particularly is this respect due when the administrative practice at stake 'involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.’ ” Power Reactor Co. v. Electricians, 367 U. S. 396, 408. When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order.

“Since this involves an interpretation of an administrative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. . . . [T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock Co., 325 U. S. 410, 413-414.

In the instant case, there is no statutory limitation involved. While Executive Order No. 8979 was issued by the President, he soon delegated to the Secretary full power to withdraw lands or to modify or revoke any existing withdrawals. See Executive Order No. 9146, 7 Fed. Reg. 3067; Executive Order No. 9337, 8 Fed. Reg. 5516; Executive Order No. 10355, 17 Fed. Reg. 4831. Public Land Order No. 487 was issued by the Secretary himself.

Moreover, as the discussion in Section I of this opinion demonstrates, the Secretary has consistently construed Executive Order No. 8979 and Public Land Order No. 487 not to bar oil and gas leases.

“It may be argued that while these facts and rulings prove a usage they do not establish its validity. But government is a practical affair intended for practical men. Both officers, law-makers and citizens naturally adjust themselves to any long-continued action of the Executive Department — on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle but the basis of a wise and quieting rule that in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself — even when the validity of the practice is the subject of investigation.” United States v. Midwest Oil Co., 236 U. S. 459, 472-473.

The Secretary’s interpretation had, long prior to respondents’ applications, been a matter of public record and discussion. The agreement worked out with the House Committee on Merchant Marine and Fisheries in 1956, and the approval of the Swanson River leases pursuant thereto, though probably constituting no “legislative ratification” in any formal sense, serve to demonstrate the notoriety of the Secretary’s construction, and thereby defeat any possible claim of detrimental reliance upon another interpretation. Finally, almost the entire area covered by the orders in issue has been developed, at very great expense, in reliance upon the Secretary’s interpretation. In McLaren v. Fleischer, 256 U. S. 477, 480-481, it was held:

“In the practical administration of the act the officers of the land department have adopted and given effect to the latter view. They adopted it before the present controversy arose or was thought of, and, except for a departure soon reconsidered and corrected, they have adhered to and followed it ever since. Many outstanding titles are based upon it and much can be said in support of it. If not the only reasonable construction of the act, it is at least an admissible one. It therefore comes within the rule that the practical construction given to an act of Congress, fairly susceptible of different constructions, by those charged with the duty of executing it is entitled to great respect and, if acted upon for a number of years, will not be disturbed except for cogent reasons.”

If, therefore, the Secretary’s interpretation is not unreasonable, if the language of the orders bears his construction, we must reverse the decision of the Court of Appeals.

III.

Executive Order No. 8979, 6 Fed. Reg. 6471, provided:

“None of the above-described lands excepting [a described area] shall be subject to settlement, location, sale, or entry, or other disposition (except for fish trap sites) under any of the public-land laws applicable to Alaska, or to classification and lease under the provisions of the act of July 3, 1926, entitled ‘An Act to provide for the leasing of public lands in Alaska for fur farming, and for other purposes’, 44 Stat. 821, U. S. C., title 48, secs. 360-361, or the act of March 4, 1927, entitled ‘An Act to provide for the protection, development, and utilization of the public lands in Alaska by establishing an adequate system for grazing livestock thereon’, 44 Stat. 1452, U. S. C., title 48, secs. 471-471o

“Settlement,” “location,” “sale” and “entry” are all terms contemplating transfer of title to the lands in question. It was therefore reasonable for the Secretary to construe “or other disposition” to encompass only dispositions which, like the four enumerated, convey or lead to the conveyance of the title of the United States — for example, “grants” and “allotments.” Cf. Opinion of the Solicitor, 48 I. D. 459 (1921). An oil and gas lease does not vest title to the lands in the lessee. See Boesche v. Udall, 373 U. S. 472, 477-478. Moreover, the term “public-land laws” is ordinarily used to refer to statutes governing the alienation of public land, and generally is distinguished from both “mining laws,” referring to statutes governing the mining of hard minerals on public lands, and “mineral leasing laws,” a term used to designate that group of statutes governing the leasing of public lands for gas and oil. Compare Title 43 U. S. C., Public Lands, with Title 30 U. S. C., Mineral Lands and Mining.

The reference in Executive Order No. 8979 to the 1926 and 1927 statutes also lends support to the Secretary’s interpretation. For both statutes relate to leasing rather than alienation of title; it would be reasonable to infer from their specific addition that “disposition” was not intended to encompass leasing. The Secretary also might reasonably have been influenced by a belief that in view of his overriding discretionary authority to refuse to issue an oil and gas lease on a given tract whenever he thought that granting a lease would undercut the purposes of the withdrawal, inclusion of such leases in the withdrawal order would have been unnecessary. Cf. Haley v. Seaton, 108 U. S. App. D. C. 257, 281 F. 2d 620 (1960).

Respondents’ reliance upon Wilbur v. United States ex rel. Barton, 60 App. D. C. 11, 46 F. 2d 217 (1930), aff’d sub nom. United States ex rel. McLennan v. Wilbur, 283 U. S. 414, is misplaced. Involved in Wilbur was the meaning of language contained in the Pickett Act, 36 Stat. 847 (1910), 43 U. S. C. § 141 (1958 ed.).

“[T]he President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska . . .

It is true that the Court of Appeals for the District of Columbia Circuit squarely held this language to be sufficient to authorize withdrawals from oil and gas leasing. Moreover, this Court affirmed, albeit on an alternative theory: that the Mineral Leasing Act merely authorized and did not compel the issuance of prospecting permits. 283 U. S., at 419. However, a word of history will place Wilbur in context and thereby demonstrate its irrelevance to the problem here. Prior to 1920, oil and gas rights in public lands were acquired in the same way as rights in other minerals — by a form of “location.” One staked out a location and prospected for oil or other minerals; upon making a discovery, he became entitled to a patent to the land as well as the minerals. In 1909, responding to rapid reserve depletion in certain areas, the Interior Department issued an order pursuant to Presidential authorization:

“In aid of proposed legislation affecting the use and disposition of the petroleum deposits on the public domain, all public lands in [a defined area of over 3 million acres in California and Wyoming] are hereby temporarily withdrawn from all forms of location, settlement, selection, filing, entry, or disposal under the mineral or nonmineral public land laws. . . U. S. Geological Survey, Bull. 623, H. R. Doc. No. 868, 64th Cong., 1st Sess., 135 (1916); quoted, 236 U. S., at 467.

The power of the executive to make the withdrawal was upheld by this Court in 1915 in United States v. Midwest Oil Co., 236 U. S. 459. In the meantime, however, Congress had, pursuant to the President’s request, sought to remove all doubts about the legality of such orders by granting to him, in the Pickett Act, discretionary authority to withdraw public lands from “settlement, location, sale, or entry.”

The Mineral Leasing Act of 1920 changed the procedure for acquiring oil and gas rights in public lands: the Secretary was empowered to issue prospecting permits and required, in the event a discovery was made under the permit, to issue a lease which entitled the lessee to extract the mineral, but gave him no right in the land itself. Prom 1920 on, therefore, the language of the Pickett Act no longer technically encompassed leasing. Nonetheless, it was clear that the Act had been specifically designed to legitimize orders like the 1909 withdrawal order. The Court of Appeals reasonably concluded in Wilbur that the fact that Congress had in 1920 changed the procedure— from “location” to “leasing” — for acquisition of oil and gas rights afforded no reason for concluding that they had thereby intended to cut back the power granted in 1910. 60 App. D. C., at 14-15, 46 F. 2d, at 220-221. Thus neither that holding by the Court of Appeals nor this Court’s affirmance in any way casts doubt upon the reasonableness of the Secretary’s interpretation of the orders at bar, which were drafted long after the Mineral Leasing Act had done away with location as a means of acquiring oil and gas rights.

The placement of the fish trap exception — “(except for fish trap sites)” — a phrase admittedly not relating to alienation of title to land, does tend to cut against the Secretary’s interpretation of Executive Order No. 8979. However, it appears that the exception was designed to assure the Alaskans, whose livelihood is largely dependent on the salmon catch, that they could continue — despite the order — to use fish traps. Cf. Organized Village of Kake v. Egan, 369 U. S. 60. Since it was a reassurance not technically necessary and therefore not functionally related to- any part of the regulation, it is no surprise to find it carelessly placed. Compare Executive Order No. 8857, 6 Fed. Reg. 4287, establishing the Kodiak National Wildlife Refuge. We do not think the position of the fish trap exception is sufficient to justify a court’s overturning the Secretary’s construction as unreasonable.

Public Land Order No. 487 withdrew the lands it covered from “settlement, location, sale or entry,” but contained no reference to “other disposition.” Nor did it contain anything analogous to the fish trap exception. The reasonableness of the Secretary’s interpretation of Public Land Order No. 487 therefore follows a fortiori from the reasonableness of his construction of Executive Order No. 8979.

Reversed.

Mr. Justice Douglas and Mr. Justice Harlan took no part in the decision of this case.

       Lease offers are processed in the order of filing and a lease on a given tract is' issued as soon as an acceptable offer is reached. In the instant case, the Secretary’s order of August 2, 1958, 23 Fed. Reg. 5883, directed that all lease offers filed within 10 days of August 14, 1958, would be treated as simultaneously filed, and that a public drawing would be held to determine the priorities among them. See 43 CFR §295.8 (1964). The drawing was held on September 4, 1959, and respondents prevailed. Thus their offers were processed before all other offers filed between August 14 and August 24, 1958; upon processing, however, it was discovered that the land was already covered by the leases issued to the Griffin lessees.

       Public Land Order No. 487 encompassed the land for which respondent Coyle applied; the land for which the other nine respondents filed is covered by Executive Order No. 8979.

       Section 1 of the Act excludes “lands acquired under the Act known as the Appalachian Forest Act, approved March 1, 1911 (36 Stat. 961), and those in incorporated cities, towns, and villages and in national parks and monuments, those acquired under other Acts subsequent to February 25, 1920, and lands within the naval petroleum and oil-shale reserves, except as hereinafter provided . . . 41 Stat. 437-438 (1920), as amended, 60 Stat. 950 (1946), 30 U. S. C. §181 (1958 ed.).

       See Public Land Order No. 751 of August 29, 1951, 16 Fed. Reg. 9044, which withdrew 160 acres for the Civil Aeronautics Administration, and 88.86 acres for townsite purposes, and Public Land Order No. 778 of December 29, 1951, 17 Fed. Reg. 159, which withdrew a number of tracts, aggregating 4,280 acres, for the use of the Army.

       See memorandum, February 15, 1954, Director, Bureau of Land Management, to Assistant Secretary of the Interior; memorandum, August 12, 1955, Director, Bureau of Land Management, to Area Administrator, Area 4 (Alaska); 102 Cong. Rec. A6582.

       In his report for the fiscal year ending June 30, 1955, the Governor of Alaska stated:
      “Residents of Alaska and major oil companies have continued to file lease applications and send exploratory parties into various parts of the Territory. The Kenai Moose Reserve on the Kenai Peninsula is covered with 325 lease applications awaiting decision of the Secretary of the Interior as to what stipulations for the protection of wildlife should be inserted in leases, if they are issued.”
      Rep. Alaska Gov. 60-61 (1955); see also Rep. Secy. Int. 65 (1953).

       It appears that the Bureau regarded the amended regulations as automatically vacating the 1953 suspension order; however, upon the almost immediate introduction in Congress of bills further to restrict leasing in wildlife refuges, the field offices were directed once again to withhold final action on lease applications. See Richard K. Todd et al., 68 I. D. 291, 298 (1961).
      In further support of the claim that the 1955 regulation is worthless as an indication of the pre-existing status of the lands covered thereby, respondents urge that Appendix B listed “wildlife refuges which were closed by the terms of the orders creating them.” However, of the 176 refuges listed in Appendix B, respondents point to only one: the Salt Plains in Oklahoma. Moreover, only a small part of the Salt Plains (543 acres out of over 30,000) was specifically withdrawn from appropriation under the mining and mineral-leasing laws. Public Land Order No. 144, 8 Fed. Reg. 9430. It is therefore doubtful that a simple listing in Appendix B of the “Salt Plains,” large parts of which were admittedly open to leasing prior to 1955, was intended to open the small area closed by Public Land Order No. 144.

       Respondents seek to capitalize on the fact that although the Swanson River Unit was not located in any of the areas designated in Appendix B of the 1955 regulation, the applicants submitted, and obtained Service approval of, a detailed operating program for the unit. There are at least two possible explanations for the submission of the plan. First, the Fish and Wildlife Service could at any time designate areas not listed in Appendix B in which leasing “might seriously impair or destroy” conservation purposes and accordingly require advance approval of operating programs for them. Submission of a plan as to the Swanson River Unit might have been regarded as a means of insuring that the Service would not so designate the area. Second, the Secretary had directed his subordinates to withhold final action on lease applications pending a further revision of the regulations. The applicants may have submitted the plan in order to persuade the Department and the House Committee that the proposed leasing was consistent not only with existing regulations but also with any that were likely to be adopted.

       In tlie hearings before the Senate Committee on Interior and Insular Affairs on the proposed bill, Mr. Gordon Goodwin, attorney for amicus curiae Richfield Oil Corporation, testified:
      “Well, we have pending, and have had for 2 or 3 or more years, applications for leases in the Kenai moose range, and a few leases were issued in there, and that is where the discovery was made. But, shortly after that time, the Secretary suspended all leasing in the moose range . . . and he has never lifted it yet .... So we have not been able to do much business up there except to a very limited extent.”
      Hearings before the Senate Committee on Interior and Insular Affairs on H. R. 8054,85th Cong., 2d Sess., p. 77.

       In announcing the order, the Secretary warned that there would be little land available to new applicants: “Most of these lands are now covered by applications that will be adjudicated under the regulations of the Department.” Department of the Interior Press Release, July 25, 1958.
      Respondents point to the fact that in a Press Release dated January 29, 1958, announcing the forthcoming (August) order, the Secretary had indicated that he was “opening” a part of the Moose Range to leasing. The choice of this term is wholly understandable in view of the facts that general instructions to local offices not to take final action on lease applications had been outstanding since 1953, and that the regulations of January 8, 1958, had provided that no new applications would be accepted for filing until a subsequent order was issued specifying the lands which would not be subject to leasing. Therefore, the order of August 2, 1958, did, in these two senses, “open” the Range to leasing.

       In the area excepted from Executive Order No. 8979 but encompassed by Public Land Order No. 487, the total number of leases issued on applications filed before the revocation of the latter order was 74 covering 116,878 acres.

       See Ex parte Endo, 323 U. S. 283, 303, n. 24; Boesche v. Udall, 373 U. S. 472, 482-483; cf. Peters v. Hobby, 349 U. S. 331, 345; but cf. Brooks v. Dewar, 313 U. S. 354, 360-361.

       The failure of the court below to attach proper significance to the administrative practice seems to be attributable to the fact that it was misinformed concerning that practice. The respondents’ brief in the Court of Appeals stated that “[n]o leases issued for any lands within the Kenai Range between 1941 and 1958” (p. 30), and that “[t]he discovery as well as the increased activity were in areas of the Peninsula outside of the Kenai National Moose Range” (p. 40).

       This view is taken in Hoffman, Oil and Gas Leasing on the Public Domain, p. 33 (1951).

       Reference to the language of other withdrawal orders is not very fruitful. Amici curiae list 173 Executive and Public Land Orders issued between 1940 and 1952 which contained language expressly barring mineral leasing. Brief for Marathon Oil Co. and Union Oil Co. of California as amici curiae, pp. 6A-7A. However, respondents list 146 orders issued between 1936 and 1959 expressly permitting mineral leasing. Brief for Respondents, pp. 7a-10a.

       The Court of Appeals sought to explain the reference to the 1926 and 1927 Acts by construing the phrase “any of the public-land laws applicable to Alaska” to mean laws applicable both throughout the country and in Alaska, and opined that the 1926 and 1927 Acts were specifically added because they had application only in Alaska. However, the Secretary’s interpretation of “any of the public-land laws applicable to Alaska” (as including, inter alia, laws relating to public lands located only in Alaska) is at least as natural as the Court of Appeals’ interpretation (limiting the phrase to laws applicable throughout the country) and is beyond cavil a “reasonable” interpretation, which is the test the Court of Appeals should have been applying. Moreover, the Court of Appeals’ conclusion that “disposition” was meant to include leasing renders the words “or to classification and lease,” initiating the reference to the Acts of 1926 and 1927, superfluous.

         In 1935, the prospecting permit procedure was eliminated and the present direct leasing procedure substituted. Act of August 21, 1935, 49 Stat. 676-677, 30 IT. S. C. §§ 223, 226 (1958 ed.).


source: Caselaw Access Project

license: Public Domain

text:
    SINGER v. UNITED STATES.
    No. 42.
    Argued November 18, 1964.
    Decided March 1, 1965.

      Sidney Dorfman argued the cause and filed a brief for petitioner.

      Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Cox, Assistant Attorney General Miller and Sidney M. Glazer.

    Briefs of amici curiae were filed by Victor Rabinowitz and Leonard Boudin for Joni Rabinowitz, and by Justin A. Stanley for Nicholas Jacop Uselding.
   Mr. Chief Justice Warren

delivered the opinion of the Court.

Rule 23 (a) of the Federal Rules of Criminal Procedure provides:

“Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.”

Petitioner challenges the permissibility of this rule, arguing that the Constitution gives a defendant in a federal criminal case the right to waive a jury trial whenever he believes such action to be in his best interest, regardless of whether the prosecution and the court are willing to acquiesce in the waiver.

Petitioner was charged in a federal district court with 30 infractions of the mail fraud statute, 18 U. S. C. § 1341 (1958 ed.). The gist of the indictment was that he used the mails to dupe amateur songwriters into sending him money for the marketing of their songs. On the opening day of trial petitioner offered in writing to waive a trial by jury “[f]or the purpose of shortening the trial.” The trial court was willing to approve the waiver, but the Government refused to give its consent. Petitioner was subsequently convicted by a jury on 29 of the 30 counts and the Court of Appeals for the Ninth Circuit affirmed. We granted certiorari, 377 U. S. 903.

Petitioner’s argument is that a defendant in a federal criminal case has not only an unconditional constitutional right, guaranteed by Art. Ill, § 2, and the Sixth Amendment, to a trial by jury, but also a correlative right to have his case decided by a judge alone if he considers such a trial to be to his advantage. He claims that at common law the right to refuse a jury trial preceded the right to demand one, and that both before and at the time our Constitution was adopted criminal defendants in this country had the right to waive a jury trial. Although the Constitution does not in terms give defendants an option between different modes of trial, petitioner argues that the provisions relating to jury trial are for the protection of the accused. Petitioner further urges that since a defendant can waive other constitutional rights without the consent of the Government, he must necessarily have a similar right to waive a jury trial and that the Constitution’s guarantee of a fair trial gives defendants the right to safeguard themselves against possible jury prejudice by insisting on a trial before a judge alone. Turning his attention to Rule 23 (a), petitioner claims that the Fifth, Sixth, Ninth, and Tenth Amendments are violated by placing conditions on the ability to waive trial by jury.

We have examined petitioner’s arguments and find them to be without merit. We can find no evidence that the common law recognized that defendants had the right to choose between court and jury trial. Although instances of waiver of jury trial can be found in certain of the colonies prior to the adoption of the Constitution, they were isolated instances occurring pursuant to colonial “constitutions” or statutes and were clear departures from the common law. There is no indication that the colonists considered the ability to waive a jury trial to be of equal importance to the right to demand one. Having found that the Constitution neither confers nor recognizes a right of criminal defendants to have their cases tried before a judge alone, we also conclude that Rule 23 (a) sets forth a reasonable procedure governing attempted waivers of jury trials.

I.

English Common Law. The origin of trial by jury in England is not altogether clear. At its inception it was an alternative to one of the older methods of proof — trial by compurgation, ordeal or battle. I Holdsworth, A History of English Law 326 (7th ed. 1956). Soon after the thirteenth century trial by jury had become the principal institution for criminal cases, Jenks, A Short History of English Law 52 (5th ed. 1938); yet, even after the older procedures of compurgation, ordeal and battle had passed into disuse, the defendant technically retained the right to be tried by one of them. Before a defendant could be subjected to jury trial his “consent” was required, but the Englishmen of the period had a concept of “consent” somewhat different from our own. The Statute of Westminster I, 1275, 3 Edw. 1, c. 12, which described defendants who refused to submit to jury trial as “refusing] to stand to the Common Law of the Land,” marks the beginning of the horrendous practice known as -peine forte et dure by which recalcitrant defendants were tortured until death or until they “consented” to a jury trial.

It is significant that defendants who refused to submit to a jury were not entitled to an alternative method of trial, and it was only in 1772 that peine forte et dure was officially abolished in England. By a statute enacted in that year, 12 Geo. 3, c. 20, a defendant who stood mute when charged with a felony was deemed to have pleaded guilty. Not until 1827, long after the adoption of our Constitution, did England provide by statute, 7 & 8 Geo. 4, c. 28, for the trial of those who stood mute. Even this statute did not give the defendant the right to plead his case before a judge alone, but merely provided that he would be subject to jury trial without his formal consent.

Thus, as late as 1827 the English common law gave criminal defendants no option as to the mode of trial. The closest the common law came to such a procedure was that of the “implied confession,” described briefly in 2 Hawkins, Pleas of the Crown, c. 31 (6th ed. 1787), by which defendants accused of minor offenses did not explicitly admit their guilt but threw themselves on the King’s mercy and expressed their willingness to submit to a small fine. Despite the “implied confession,” the court heard evidence and could discharge the defendant if it found the evidence wanting. Griswold, The Historical Development of Waiver of Jury Trial in Criminal Cases, 20 Va. L. Rev. 655, 660 (1934). It cannot seriously be argued that this obscure and insignificant procedure, having no applicability to serious offenses, establishes the proposition that at common law defendants had the right to choose the method of trial in all criminal cases. On the contrary, “[b]y its intrinsic fairness as contrasted with older modes, and by the favor of the crown and the judges, [trial by jury] grew fast to be regarded as the one regular common-law mode of trial, always to be had when no other was fixed.” Thayer, A Preliminary Treatise on Evidence at the Common Law 60 (1898).

The Colonial Experience. The colonies which most freely permitted waiver of jury trial as a matter of course were Massachusetts and Maryland. The “first constitution” of Massachusetts — The Body of Liberties of 1641— contained as Liberty XXIX the following:

“In all actions at law, it shall be the liberty of the plaintiff and defendant, by mutual consent, to choose whether they will be tried by the Bench or by a Jury, unless it be where the law upon just reason has otherwise determined. The like liberty shall be granted to all persons in Criminal cases.”

It should be noted that Liberty XXIX’s language explicitly provided that the right to choose trial by judge alone was subject to change “where the law upon just reason has otherwise determined.” Moreover, those drafting and administering the Liberty recognized that it was a departure from the English common law. Grinnell, To What Extent is the Right to Jury Trial Optional in Criminal Cases in Massachusetts? 8 Mass. L. Q. No. 5, 7, 23-25 (1923). Several cases can be cited, at least up until 1692, in which defendants in Massachusetts waived jury trial and were tried by the bench. See Grinnell, supra, at 27-29; Griswold, supra, at 661-664. However, from 1692 on, in light of increasing hostility to the Crown, the colonists of Massachusetts stressed their right to trial by jury, not their right to choose between alternate methods of trial. Instead of being a settled part of the jurisprudence of Massachusetts at the time of the Constitutional Convention, the ability to choose between judge and jury had become a forgotten option in Massachusetts:

“With the state of mind then existing among the colonists, presumably nobody bothered about this question of any one’s wanting to waive a jury. The General Court was then concerned with the question of a man’s right to a jury when he asked for it, which they thought in danger. The ‘Body of Liberties’ never having been printed and the nineteen original official manuscript copies having doubtless been lost or forgotten, the ‘bar’ (which did not begin to develop until the beginning of the 18th century) and the 18th century people, probably grew up without any general knowledge of the expressly optional character of the right to a jury established as a 'fundamentar by the common law of Massachusetts in the colonial period.”

It appears that from the early days of Maryland’s colonization minor cases were tried by judges sitting alone. Bond, The Maryland Practice of Trying Criminal Cases by Judges Alone, Without Juries, 11 A. B. A. J. 699, 700 (1925). But the defendant who submitted his case to the judge was not considered on a par with the defendant who chose to have a jury hear his case, as is evidenced by a Maryland statute of 1793 which provided that submission to a judge would be considered an admission of crime (analogous to the "implied confession” of minor offenses under English common law) at least insofar as to render the person submitting his case to a judge liable for the costs of prosecution. In 1809, Maryland declared by statute that waiver of jury trial was to be encouraged and the willing defendant was to suffer no increased liability for so doing. It was not until 1823, however, that major cases began also to be submitted to judges alone, and the first major case so submitted caused some surprise and sharp comment in Maryland legal circles. See Bond, supra, at 701.

Other possible examples of optional jury trial procedures can be cited in colonial New Hampshire, Vermont, Connecticut, New Jersey and Pennsylvania. See Gris-wold, supra, at 664-667. The most that can be said for these examples is that they are evidence that the colonists believed it was possible to try criminal defendants without a jury. They in no way show that there was any general recognition of a defendant’s right to be tried by the court instead of by a jury. Indeed, if there had been recognition of such a right, it would be difficult to understand why Article III and the Sixth Amendment were not drafted in terms which recognized an option.

The Constitution and Its Judicial Interpretation. The proceedings at the Constitutional Convention give little insight into what was meant by the direction in Art. Ill, § 2, that the “Trial of all Crimes . . . shall be by jury.” The clause was clearly intended to protect the accused from oppression by the Government, see III Farrand, Records of the Federal Convention 101 (James Wilson), 221-222 (Luther Martin) (1911); but, since the practice of permitting defendants a choice as to the mode of trial was not widespread, it is not surprising that some of the framers apparently believed that the Constitution designated trial by jury as the exclusive method of determining guilt, see The Federalist, No. 83 (Alexander Hamilton) (Cooke ed. 1961); IV Elliot’s Debates 145, 171 (James Iredell) (2d ed. 1876); III Elliot’s Debates 521 (Edmund Pendleton) (2d ed. 1876).

In no known federal criminal case in the period immediately following the adoption of the Constitution did a defendant claim that he had the right to insist upon a trial without a jury. Indeed, in United States v. Gibert, 25 Fed. Cas. 1287 (No. 15204) (C. C. D. Mass. 1834), Mr. Justice Story, while sitting on circuit, indicated his view that the Constitution made trial by jury the only permissible method of trial. Similar views were expressed by other federal judges. See Ex parte McClusky, 40 F. 71, 74-75 (C. C. D. Ark. 1889) (by implication); United States v. Taylor, 11 F. 470, 471 (C. C. D. Kan. 1882) (dictum).

Although not necessary to the holding in the case, in Thompson v. Utah, 170 U. S. 343, this Court also expressed a view that the Constitution made jury trial the exclusive method of determining guilt in all federal criminal cases. However, in Schick v. United States, 195 U. S. 65, the Court decided there was no constitutional requirement that petty offenses be tried by jury. These two decisions were construed by the lower federal courts as establishing a rule that in all but petty offenses jury trial was a constitutional imperative. See Coates v. United States, 290 F. 134 (C. A. 4th Cir. 1923); Blair v. United States, 241 F. 217, 230 (C. A. 9th Cir. 1917); Frank v. United States, 192 F. 864, 867-868 (C. A. 6th Cir. 1911) (dictum); Low v. United States, 169 F. 86 (C. A. 6th Cir. 1909); Dickinson v. United States, 159 F. 801 (C. A. 1st Cir. 1908), cert. denied, 213 U. S. 92.

The issue whether a defendant could waive a jury trial in federal criminal cases was finally presented to this Court in Patton v. United States, 281 U. S. 276. The Patton case came before the Court on a certified question from the Eighth Circuit. The wording of the question, id., at 287, is significant:

“After the commencement of a trial in a Federal Court before a jury of twelve men upon an indictment charging a crime, punishment for which may involve a penitentiary sentence, if one juror becomes incapacitated and unable to further proceed with his work as a juror, can defendant or defendants and the Government through its official representative in charge of the case consent to the trial proceeding to a finality with eleven jurors, and can defendant or defendants thus waive the right to a trial and verdict by a constitutional jury of twelve men?”

The question explicitly stated that the Government had agreed with the defendant that his trial should proceed with 11 jurors. The case did not involve trial before a judge alone, but the Court believed that trial before 11 jurors was as foreign to the common law as was trial before a judge alone, and therefore both forms of waiver “in substance amount[ed] to the same thing.” Id., at 290. The Court examined Art. Ill, § 2, and the Sixth Amendment and concluded that a jury trial was a right which the accused might “forego at his election.” Id., at 298. The Court also spoke of jury trial as a “privilege,” not an “imperative requirement,” ibid., and remarked that jury trial was principally for the benefit of the accused, id., at 312. Nevertheless, the Court was conscious of the precise question that was presented by the Eighth Circuit, and concluded its opinion, id., at 312-313, with carefully chosen language that dispelled any notion that the defendant had an absolute right to demand trial before a judge sitting alone:

“Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.”

In Adams v. United States ex rel. McCann, 317 U. S. 269, 277-278, this Court reaffirmed the position taken in Patton that “one charged with a serious federal crime may dispense with his Constitutional right to jury trial, where this action is taken with his express, intelligent consent, where the Government also consents, and where such action is approved by the responsible judgment of the trial court.”

II.

Thus, there is no federally recognized right to a criminal trial before a judge sitting alone, but a defendant can, as was held in Patton, in some instances waive his right to a trial by jury. The question remains whether the effectiveness of this waiver can be conditioned upon the consent of the prosecuting attorney and the trial judge.

The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right. For example, although a defendant can, under some circumstances, waive his constitutional right to a public trial, he has no absolute right to compel a private trial, see United States v. Kobli, 172 F. 2d 919, 924 (C. A. 3d Cir. 1949) (by implication); although he can waive his right to be tried in the State and district where the crime was committed, he cannot in all cases compel transfer of the case to another district, see Platt v. Minnesota Mining & Mfg. Co., 376 U. S. 240, 245; Kersten v. United States, 161 F. 2d 337, 339 (C. A. 10th Cir. 1947), cert. denied, 331 U. S. 851; and although he can waive his right to be confronted by the witnesses against him, it has never been seriously suggested that he can thereby compel the Government to try the case by stipulation. Moreover, it has long been accepted that the waiver of constitutional rights can be subjected to reasonable procedural regulations: Rule 7 (b) of the Federal Rules of Criminal Procedure sets forth the procedure to be followed for waiver of the right to be prosecuted by indictment; Rule 20 describes the procedure for waiver of the right to be tried in the district in which an indictment or information is pending against a defendant; and Rule 44 deals with the waiver of the right to counsel.

Trial by jury has been established by the Constitution as the “normal and . . . preferable mode of disposing of issues of fact in criminal cases.” Patton v. United States, 281 U. S. 276, 312. As with any mode that might be devised to determine guilt, trial by jury has its weaknesses and the potential for misuse. However, the mode itself has been surrounded with safeguards to make it as fair as possible — for example, venue can be changed when there is a well-grounded fear of jury prejudice, Rule 21 (a) of the Federal Rules of Criminal Procedure, and prospective jurors are subject to voir dire examination, to challenge for cause, and to peremptory challenge, Rule 24 (a) and (b).

In light of the Constitution’s emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is> simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him. The Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result. This recognition of the Government’s interest as a litigant has an analogy in Rule 24 (b) of the federal rules, which permits the Government to challenge jurors peremptorily.

We are aware that the States have adopted a variety of procedures relating to the waiver of jury trials in state criminal cases. Some have made waiver contingent on approval by the prosecutor, e. g., California (Cal. Const. Art. I, § 7), Indiana (Ind. Ann. Stat. § 9-1803 (1956 Repl. vol.), Alldredge v. Indiana, 239 Ind. 256, 156 N. E. 2d 888 (1959)), and Virginia (Va. Const. § 8, Va. Code Ann. § 19.1-192 (1950 Repl. vol.), Boaze v. Commonwealth, 165 Va. 786, 183 S. E. 263 (1936)). Others, while not giving the prosecutor a voice, have made court approval a prerequisite for waiver, e. g., Georgia (Ga. Code Ann. § 102-106 (1955), Palmer v. State, 195 Ga. 661, 25 S. E. 2d 295 (1943)), and Washington (Wash. Rev. Code § 10.01.060 (1963 Supp.)). Still others have provided that the question of waiver is a matter solely for the defendant’s informed decision, e. g., Connecticut (Conn. Gen. Stat. Rev. §54-82 (1958)), and Illinois (Ill. Ann. Stat. c. 38, § 103-6 (Smith-Hurd ed. 1964), Illinois v. Spegal, 5 III. 2d 211, 125 N. E. 2d 468 (1955)). However, the framers of the federal rules were aware of possible alternatives when they recommended the present rule to this Court, see Orfield, Trial by Jury in Federal Criminal Procedure, 1962 Duke L. J. 29, 69-72; this Court promulgated the rule as recommended; and Congress can be deemed to have adopted it, 18 U. S. C. § 3771 (1958 ed.).

In upholding the validity of Rule 23 (a), we reiterate the sentiment expressed in Berger v. United States, 295 U. S. 78, 88, that the government attorney in a criminal prosecution is not an ordinary party to a controversy, but a “servant of the law” with a “twofold aim . . . that guilt shall not escape or innocence suffer.” It was in light of this concept of the role of prosecutor that Rule 23 (a) was framed, and we are confident that it is in this light that it will continue to be invoked by government attorneys. Because of this confidence in the integrity of the federal prosecutor, Rule 23 (a) does not require that the Government articulate its reasons for demanding a jury trial at the time it refuses to consent to a defendant’s proffered waiver. Nor should we assume that federal prosecutors would demand a jury trial for an ignoble purpose. We need not determine in this case whether there might be some circumstances where a defendant’s reasons for wanting to be tried by a judge alone are so compelling that the Government’s insistence on trial by jury would result in the denial to a defendant of an impartial trial. Petitioner argues that there might arise situations where “passion, prejudice . . . public feeling” or some other factor may render impossible or unlikely an impartial trial by jury. However, since petitioner gave no reason for wanting to forgo jury trial other than to save time, this is not such a case, and petitioner does not claim that it is.

Petitioner has also raised questions involving the instructions to the jury and alleged misconduct by the prosecuting attorney. We have examined the record and find that the jury was adequately instructed. In any event, no timely objection was made as required by Rule 30 of the Federal Rules of Criminal Procedure and, in the absence of plain error, the Court of Appeals correctly affirmed the judgment of the trial court. Similarly without merit are petitioner’s specifications of misconduct by the prosecuting attorney during the trial, since the record reveals that the misconduct, if any, was neither purposeful nor flagrant, and the trial court’s admonitions to the jury seem to have been well designed to cure whatever prejudicial impact some of the prosecutor’s remarks may have had in this case.

The judgment of the Court of Appeals is

Affirmed.

       R.17.

       Art. III, § 2, of the United States Constitution provides:
      “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”
      The Sixth Amendment provides:
      “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

       It appears that many hardy defendants were willing to be tortured to death rather than submit to a jury trial, not because of any inherent distrust of the jury system but because of their desire to avoid a conviction and thereby prevent forfeiture of their lands and the resultant hardships for their descendants. Cf. I Holdsworth, supra, at 326.

       Grinnell, supra, at 33.

       The Pennsylvania case of Proprietor v. Wilkins, Pennypacker’s Pennsylvania Colonial Cases 88 (1892), decided in 1685-1686, is of interest in that the court tried a fornication case without a jury over the objection of the prosecution. The punishment involved in the case was a 10-pound fine. The case is, therefore, little authority for the proposition that defendants had the right to waive jury trials in all cases.

       In construing their own constitutions, which generally had clauses designed to preserve the common-law right to trial by jury, the state courts took a similarly limited view of the ability of a defendant to waive jury trial. Some state courts ruled that in the absence of a statute there could be no waiver of jury trial. See, e. g., Wilson v. State, 16 Ark. 601 (1855); State v. Maine, 27 Conn. 281 (1858); People v. Smith, 9 Mich. 193 (1861). Several other courts determined that the State could by statute prohibit waiver of jury trials. See, e. g., Arnold v. Nebraska, 38 Neb. 752, 57 N. W. 378 (1894) ; In re McQuown, 19 Okla. 347, 91 P. 689 (1907); State v. Battey, 32 R. I. 475, 80 A. 10 (1911); State v. Hirsch, 91 Vt. 330, 100 A. 877 (1917); Mays v. Commonwealth, 82 Va. 550 (1886). Some state courts interpreted their constitutions to say that under no circumstances could waiver be allowed. See, e. g., State v. Holt, 90 N. C. 749 (1884); Williams v. State, 12 Ohio St. 622 (1861). Several courts, of course, held that waiver of a jury was permissible, even in the absence of enabling legislation. See, e. g., State ex rel. Warner v. Baer, 103 Ohio St. 585, 134 N. E. 786 (1921) (overruling Williams v. State, supra); Ex parte King, 42 Okla. Cr. 46, 274 P. 682 (Okla. Crim. App. 1929). In Hallinger v. Davis, 146 U. S. 314, this Court held that a state statute permitting waiver of jury trial in criminal cases did not violate the Due Process Clause of the Fourteenth Amendment.

       Petitioner’s Brief, p. 24.


author: Mr. Justice Douglas Mr. Justice Goldberg,

text:
    CRIDER v. ZURICH INSURANCE CO.
    No. 116.
    Argued January 19, 1965.
    Decided March 1, 1965.

      Max C. Pope, pro hac vice, by special leave of Court, argued the cause for petitioner. With him on the brief was J. Terry Huffstutler.

      Foster Etheredge argued the cause and filed a brief for respondent.
   Mr. Justice Douglas

delivered the opinion of the Court.

Petitioner, a resident of Alabama and employed there by Lawler Construction Co., Inc., a Georgia corporation, was injured. Both he and Lawler were under Georgia’s Workmen’s Compensation Act at the time. Petitioner sued in an Alabama court under the Georgia Act and obtained a judgment by default against Lawler. Respondent, the insurer of Lawler, was sued in the Federal District Court by petitioner on his Alabama judgment, federal jurisdiction being based on diversity of citizenship. The District Court granted respondent’s motion to dismiss (224 F. Supp. 87) and the Court of Appeals affirmed. 324 F. 2d 499. The case is here on a writ of certiorari. 377 U. S. 942.

The District Court and the Court of Appeals stood on Green v. J. A. Jones Construct. Co., 161 F. 2d 369, which held that a Mississippi state court had no jurisdiction to award damages under the Georgia Workmen’s Compensation Act and that the Federal District Court for Mississippi was under the same disability, Georgia decisions settling the point that the remedy provided by the Georgia Act is “an exclusive one which can be afforded only” by the Georgia Compensation Board. Ibid.

We assume that the lower courts were correct in stating what the Georgia law is. But the mere fact that petitioner, if he had sued in Georgia, would have had to follow that course does not necessarily mean that the Alabama state court was in error in taking jurisdiction of the cause.

The Alabama state court dealt with an injury occurring to an Alabama resident while working in Alabama. Under Bradford Electric Co. v. Clapper, 286 U. S. 145, a State could fix one exclusive remedy for personal injuries involving its residents wherever the accident happened and the Full Faith and Credit Clause (Art. IV, § 1) required the other States to refuse to enforce any inconsistent remedy. That case would have been on all fours with the present' one had petitioner been a resident of Georgia, rather than Alabama. Alaska Packers Assn. v. Commission, 294 U. S. 532, and Pacific Employers Ins. Co. v. Commission, 306 U. S. 493, mark a break with the Clapper philosophy. Alaska Packers allowed the State of residence of the injured employee to supply a remedy different from the Compensation Act of the place of the injury, even though the employee had agreed to be bound by the latter remedy. Pacific Insurance held that a person injured while working in California could recover under California’s Compensation Act even though the injured person was a Massachusetts resident, regularly employed there by a Massachusetts corporation and even though the Massachusetts Compensation Act purported to give an exclusive remedy. In Carroll v. Lanza, 349 U. S. 408, Arkansas, the place where the injury occurred, was allowed to grant common-law damages even though Missouri, the home State, had a Compensation Act that purported to be exclusive. As we stated in that case:

“Missouri can make her Compensation Act exclusive, if she chooses, and enforce it as she pleases within her borders. Once that policy is extended into other States, different considerations come into play. Arkansas can adopt Missouri’s policy if she likes. Or, as the Pacific Employers Insurance Co. case teaches, she may supplement it or displace it with another, insofar as remedies for acts occurring within her boundaries are concerned. Were it otherwise, the State where the injury occurred would be powerless to provide any remedies or safeguards to nonresident employees working within its borders. We do not think the Full Faith and Credit Clause demands that subserviency from the State of the injury.” Id., pp. 413-414.

The State where the employee lives and where he was injured has a large and considerable interest in the event. As we said in Carroll v. Lanza, supra, p. 413, “The State where the tort occurs certainly has a concern in the problems following in the wake of the injury. The problems of medical care and of possible dependents are among these . . . .” The State where the employee lives has perhaps even a larger concern, for it is there that he is expected to return; and it is on his community that the impact of the injury is apt to be most keenly felt. Certainly when the injury occurs in the home State of the employee, the interest of that State is at least commensurate with the interest, of the State in which an injury occurs involving a nonresident, as in Carroll v. Lanza. If Arkansas had a sufficient interest there to override Missouri's exclusive remedy, Alabama may override Georgia’s here.

The Alabama policy in that regard is reflected in the judgment rendered by the Alabama court on which this federal suit was instituted. That Alabama judgment adopted and enforced the remedy provided by Georgia — a procedure we indicated in Pacific Employers Ins. Co. v. Commission, supra, p. 500, a State might follow. Here as in Alaska Packers Assn. v. Commission, supra, p. 544, “. . . the compensation acts of either jurisdiction may, consistently with due process, be applied in either . . . .” We were consistent with that view in Carroll v. Lanza, supra, when we said, in what we have already quoted, that the State of the forum may “supplement” or “displace” the remedy of the other State, consistently with constitutional requirements. 349 U. S., p. 414.

It is earnestly argued by the dissent that the Green decision, supra, which the Court of Appeals followed in the present case, “did not rest on constitutional grounds,” post, p. 46. Rather it is said that Green expresses merely a state conflicts rule. We do not so read Green. There the court said that its decision was controlled by the principle that “where the provision for the liability claimed is coupled with a provision for a special remedy to be afforded not by a court but by a commission, that remedy and that alone must be employed . . . .” 161 F. 2d 359. This principle is almost a verbatim restatement of the rule adverted to in Tennessee Coal Co. v. George, 233 U. S. 354, 359: “ ‘where the provision for the liability is coupled with a provision for a special remedy, that remedy, and that alone, must be employed.’ ” And our older cases assumed that this broad rule was compelled by the Full Faith and Credit Clause. See, e. g., ibid., and cases cited; Atchison, T. & S. F. R. Co. v. Sowers, 213 U. S. 55; and also the discussion in Pearson v. Northeast Airlines, Inc., 309 F. 2d 553. But, as we have demonstrated, that rule has been eroded by the line of cases beginning with Alaska Packers and Pacific Insurance. Our holding frees the Court of Appeals on remand to reconsider its holding free from any supposed constitutional compulsion.

Reversed.

Mr. Justice Goldberg,

with whom Mr. Justice Harlan and Mr. Justice Stewart join,

dissenting.

The resolution of the issue before the Court in this case necessitates setting out the history of this litigation in more detail than does the Court. Petitioner originally brought his action against the employer in an Alabama court in a three-count complaint, the first count relying on Alabama’s Workmen’s Compensation Act and the other two on Alabama common law. He then voluntarily dismissed these counts and reinstituted the action in the Alabama court with sole and express reliance on the Georgia Workmen’s Compensation Act. A default judgment was then entered in petitioner’s favor on the basis of this new complaint. No appeal was taken from this default judgment.

Petitioner then filed a complaint in an Alabama court against respondent, the employer’s insurance company, to enforce the previously obtained default judgment. Respondent asserted in defense that, since the Georgia Act upon which the action was based provides for primary jurisdiction in an administrative board and precludes original court jurisdiction, the Alabama court lacked subject matter jurisdiction to enter the default judgment. The default judgment, therefore, respondent contended, was void and could be collaterally attacked in the enforcement proceeding. Petitioner’s demurrer to this defense was overruled by the Alabama court. Following this, petitioner voluntarily dismissed the action in the Alabama court and the next day filed the diversity suit here before us, identical to the previous Alabama action. Respondent again asserted the defense of lack of subject matter jurisdiction to enter the default judgment. Based on this defense, and after the submission of briefs and oral argument, Judge Grooms dismissed the complaint. In holding that there had not been subject matter jurisdiction to enter the default judgment, Judge Grooms relied on Green v. J. A. Jones Construct. Co., 161 F. 2d 359, a decision of the Fifth Circuit. 224 F. Supp. 87, 88. He then went on to hold, relying on Alabama cases, that since there had been no subject matter jurisdiction in the original action, the default judgment was, under Alabama law, subject to collateral attack. The Court of Appeals affirmed per curiam on the basis of its prior decision in Green v. J. A. Jones Construct. Co., supra. 324 F. 2d 499.

This case does not present the issue of whether Alabama could have applied its own compensation act or its own common law. Respondent concedes that, on the facts of this case, it could have applied either and our decisions plainly so hold. See Pacific Employers Ins. Co. v. Commission, 306 U. S. 493; Carroll v. Lanza, 349 U. S. 408. But, as I have already noted, petitioner, who originally sued under both Alabama’s Workmen’s Compensation Act and common law, dismissed those counts and based his action solely on the Georgia Workmen’s Compensation Act. The federal issue raised by respondent is whether, consistently with the Full Faith and Credit Clause, a State may enforce in its courts the liability claims created by another State in violation of that other State’s fixed policy to have those claims enforced only by an administrative board. There is no decision of this Court which settles this federal issue and, in my view, the question is not free from difficulty. See Tennessee Coal Co. v. George, 233 U. S. 354, 359, and cases there cited; but cf. Pearson v. Northeast Airlines, Inc., 309 F. 2d 553 (C. A. 2d Cir.); Kilberg v. Northeast Airlines, Inc., 9 N. Y. 2d 34, 172 N. E. 2d 526.

On the record here presented it seems clear to me that the Court should not reach this constitutional question. In the case before us, if Alabama’s own law independently forbids the piecemeal borrowing of Georgia statutes and denies to the Alabama courts jurisdiction to entertain petitioner’s suit on the Georgia statute, the question of whether the Federal Constitution forbids such piecemeal borrowing need not be reached. The Court recognizes, ante, at 42-43, that this issue is in the case, but bypasses this threshold state law issue and reaches the ultimate federal constitutional problem. In so doing, the Court disregards the long-settled rule that this Court will not pass upon federal constitutional questions if there are state law grounds presented upon which the case may be disposed of. See Siler v. Louisville & Nashville R. Co., 213 U. S. 175; Ashwander v. Valley Authority, 297 U. S. 288, 347 (Brandeis, J., concurring), and cases there cited.

The sole basis for the Court’s inversion of this long-settled rule of reaching state law issues before constitutional ones, is that it reads the decisions below as based upon “supposed constitutional compulsion,” ante, at 43, and not upon independent state law. I believe that the lower courts did rest their decisions upon independent state law and that they determined that the default judgment was void under Alabama law.

The opinion of Judge Grooms, an experienced Alabama lawyer, makes it clear that he relied upon Alabama law in deciding that the original default judgment could be collaterally attacked. The Court apparently does not dispute this. It, however, reads the opinions below as relying upon federal and not upon independent state law for the determination that the Alabama court was without subject matter jurisdiction to enter the default judgment. In reaching this conclusion, the Court relies upon the fact that both Judge Grooms and the Court of Appeals cited as controlling the Fifth Circuit’s prior decision in Green v. J. A. Jones Construct. Co., supra. Ante, at 40. The Court then reads Green as resting upon full faith and credit compulsion. A careful reading of Green, however, discloses that it did not rest on constitutional grounds.

The Court of Appeals in Green had affirmed the dismissal by the United States District Court in Mississippi of a diversity action based upon the same Georgia statute which is involved in this case. The Green court stated its conclusion that “it is quite clear that the case is ruled by the principle that where the provision for the liability claimed is coupled with a provision for a special remedy to be afforded not by a court but by a commission, that remedy and that alone must be employed and resort to court action may not be had for relief.” Id., at 359. As authority for this “principle” the court cited the Restatement of the Law, Conflict of Laws, § 618, Comment a, an Arkansas and a Missouri case, both resting on state law, and two federal court diversity cases, clearly applying state law.

While the language of this general principle stated by the Green court is similar to that of Tennessee Coal Co. v. George, supra, at 359, quoted in the Court’s opinion, ante, at 43, there is no indication whatsoever that this general state law principle was conceived to be based on federal compulsion emanating from the dictum in the George case. Nowhere in the Green opinion is there any mention of the Full Faith and Credit Clause, the George case, or, indeed, any federal law. Moreover, the authorities cited by the Green court for this general principle similarly do not rest on any concept of federal compulsion. The Restatement’s position is not conceived to be based on full faith and credit grounds. Neither of the federal court cases cited has any reference at all to any federal law, including the George case. The same is true of the Missouri case cited, and the Arkansas case cited only refers to the George case for a different point in the George case. Finally, the text writers are in accord with these authorities in not basing the general state law principle on the Full Faith and Credit Clause.

The Green case is not a case like those in which the opinion as a whole “leaves the impression that the court probably felt constrained to rule as it did because of [decisions of this Court],” Minnesota v. National Tea Co., 309 U. S. 551, 554-555, or “because it felt under compulsion of federal law as enunciated by this Court so to hold,” Missouri v. Mayfield, 340 U. S. 1, 5. See Jankovich v. Indiana Toll Road Comm’n, 379 U. S. 487, 492.

Thus the Green court clearly seems to have decided the case not on full faith and credit principles, but on the assumption that Mississippi law was in accord with the general independent state law rule. When Judge Grooms and the Court of Appeals in the instant case, referred to Green, they were not therefore, referring to it as stating constitutional compulsion, but as stating the general state law rule to which both Mississippi and Alabama adhere. Again, as in Green there is nothing in either opinion below that might be taken as even a remote reference to the Full Faith and Credit Clause or any other federal rule or authority. I would not presume that the lower federal courts, particularly in a diversity case, would, in light of the settled decisions of this Court, decide a case by determining constitutional issues without first deciding threshold issues of state law. See Alma Motor Co. v. Timken Co., 329 U. S. 129,136-137. It seems clear to me, therefore, that the dismissal of petitioner’s action was based on independent state law and not on federal grounds.

Even if I am wrong on this point, however, and the Court is correct in assuming that the lower courts here did not rule on the question of independent state law, this would not justify the Court’s ignoring the fact that the decision below is clearly supported by independent state law and, as a consequence, the constitutional issue should not be reached and decided. Cf. Neese v. Southern R. Co., 350 U. S. 77.

In Singleton v. Hope Engineering Co., 223 Ala. 538, 540, 137 So. 441, 442-443, the Alabama Supreme Court held that the Alabama courts do not have subject matter jurisdiction to enforce the identical Georgia Workmen’s Compensation Act here in issue, on the grounds that the enforcement of the Georgia Act is vested exclusively in the Georgia Workmen’s Compensation Commission. In reaching this conclusion of state law the Alabama Supreme Court did not cite the Full Faith and Credit Clause, Tennessee Coal Co. v. George, supra, or indeed any federal authority whatsoever. While Singleton arose on direct appeal, this fact is not significant. In the instant case, Judge Grooms expressly held that where the court that entered the default judgment lacked subject matter jurisdiction of the controversy, Alabama law permits collateral attack on the validity of the default judgment. As noted above, Singleton is in accord with the general state rule on this point and there is no claim that its vitality as a precedent has been impaired in any way. Finally, while it is true that the Alabama enforcement action was dismissed without prejudice, the Alabama court in that case, in overruling the demurrer to this asserted defense, necessarily held that under Alabama law the default judgment was subject to collateral attack as it was entered by a court that lacked subject matter jurisdiction of the controversy. For these reasons I believe the decision below is clearly supported by independent Alabama law.

Certiorari was granted in this case on the assumption that it necessitated deciding the constitutional issue involving the Full Faith and Credit Clause. Since, in my view, it is unnecessary and improper to teach that issue in this case, I would dismiss the writ as improvidently granted.

But even if my analysis of the decisions below is erroneous and the Alabama law is not as clear as I conceive it to be, I would still not agree that it is appropriate to determine the ultimate constitutional issue. There is no doubt, as even the Court recognizes, that there exists here at least a lurking question of independent state law. Under such circumstances, the least that should be done is to vacate the judgment below and remand the case to the District Court for clarification of its opinion as to the status of Alabama law. Cf. Alma Motor Co. v. Timken Co., supra.

For these reasons, I respectfully dissent from the Court’s disposition of this case.

      We stated in Wells v. Simonds Abrasive Co., 345 U. S. 514, 516:
      “The states are free to adopt such rules of conflict of laws as they choose, Kryger v. Wilson, 242 U. S. 171 (1916), subject to the Full Faith and Credit Clause and other constitutional restrictions. The Full Faith and Credit Clause does not compel a state to adopt any particular set of rules of conflict of laws; it merely sets certain minimum requirements which each state must observe when asked to apply the law of a sister, state.”

       As the Court points out, ante, at 39, 40, petitioner was an Alabama resident, and was injured while working in Alabama.

       Judge Grooms stated, 224 F. Supp., at 88:
      “Since the DeKalb County Circuit Court did not have jurisdiction of the subject matter, the issue of jurisdiction is open to inquiry and where, as here, the record discloses a lack of jurisdiction, the judgment is void. City of Birmingham v. Reed, 35 Ala. App. 31, 44 So. 2d 607; Murphy v. Louisville & N. R. Co., 258 Ala. 138, 61 So. 2d 3; Crump v. Knight, 256 Ala. 601, 56 So. 2d 625; Freeman v. McBroom, 11 Ala. 943.
      “A party or his privies may assail such a judgment. Fife v. Pioneer Lumber Co., 237 Ala. 92, 185 So. 759; Cobbs v. Norville, 227 Ala. 621, 151 So. 576.”

       The cases cited at 359, n. 2, were: Elliott v. De Soto Crude Oil Purchasing Corp., 20 F. Supp. 743; Franzen v. E. I. Du Pont De Nemours & Co., 146 F. 2d 837; Logan v. Missouri Valley Bridge & Iron Co., 157 Ark. 528, 249 S. W. 21; and Oren v. Swift & Co., 330 Mo. 869, 51 S. W. 2d 59.

       This is clear when § 618, Comment a, is read in conjunction with §§ 1, 2, and 5 and the Comments thereto. In this regard, §§ 1171 and 117m of Restatement Second, Conflict of Laws, Tentative Draft No. 4 (1957), should also be compared.

         See 2 Larson, Workmen’s Compensation Law 356 (1961); Goodrich, Conflict of Laws 189 (1964); Ehrenzweig, Conflict of Laws 145, nn. 23, 32 (1962).

       In addition to the cases cited in note 2, supra, and Singleton v. Hope Engineering Co., 223 Ala. 538, 137 So. 441, discussed infra, see Mosely v. Empire Gas & Fuel Co., 313 Mo. 225, 281 S. W. 762; Davis v. Swift & Co., 175 Tenn. 210, 133 S. W. 2d 483; Grenier v. Alta Crest Farms, Inc., 115 Vt. 324, 58 A. 2d 884.

       See note 2, supra. It should be noted that the cases cited by Judge Grooms all concerned situations where the lack of subject matter jurisdiction was a matter of state law similar to the Singleton situation.

       It is significant in this regard that the tentative draft of the Second Restatement of the Law of Conflict of Laws reaffirms this general rule. See Restatement Second, Conflict of Laws, Tentative Draft No. 4, § 117m (1957).