source: Caselaw Access Project

author:
Mr. Justice Clark
      Me. Justice Douglas, Me. Justice Black,

license: Public Domain

text:
    WHITNEY NATIONAL BANK IN JEFFERSON PARISH v. BANK OF NEW ORLEANS & TRUST CO. et al.
    No. 26.
    Argued November 12, 1964.
    Decided January 18, 1965

      Dean Acheson argued the cause for petitioner in No. 26. With him on the briefs were Malcolm L. Monroe, Brice M. Clagett and Walter J. Suthon III.

      Ralph 8. Spritzer argued the cause for petitioner in No. 30. On the brief were Solicitor General Cox, Philip B. Heymann, Morton Hollander and David L. Rose.

      Edward L. Merrigan argued the cause for respondents. With him on the brief for respondent banks were A. J. Waechter, Jr., James W. Bean and Charles W. Lane. With him on the brief for respondent Louisiana State Bank Commissioner was Joseph H. Kavanaugh, Assistant Attorney General of Louisiana.
    Briefs of amici curiae, urging affirmance, were filed by James F. Bell for the National Association of Supervisors of State Banks, and by Horace R. HansenTor the Independent Bankers Association.

      Together with No. 30, Saxon, Comptroller of the Currency v. Bank of New Orleans & Trust Co. et al., also on certiorari to the same court.

   Mr. Justice Clark

delivered the opinion of the Court.

This suit is a facet of the .complicated controversy between the Whitney National Bank of New Orleans (Whitney-New Orleans) and three of its state-chartered banking competitors over the establishment by Whitney-New Orleans of a national bank (Whitney-Jefferson) in Jefferson Parish, Louisiana, which adjoins the Parish of Orleans. In order to avoid the restrictions of the national banking laws as to branch banking and still tap the banking market in Jefferson Parish, Whitney-New Orleans resorted to the organization of a bank holding company. After approval of the plan by the Federal Reserve Board on May 3, 1962, two of the respondent banks filed this declaratory judgment action on June 9,1962, seeking a declaration that the Comptroller of the Currency had no power to grant the necessary authority and praying in addition for injunctive relief restraining him from issuing a certificate of authority for the new bank.

Four days later two of the respondent banks petitioned the Board for reconsideration of its approval of the Whitney application. Their petition was denied, and on June 30, 1962, they sought judicial review of the Federal Reserve Board decision in the Court of Appeals for the Fifth Circuit. That suit is presently pending there awaiting our decision here.

Meanwhile, in this suit the United States District Court for the District of Columbia assumed jurisdiction and held on the merits that § 7. of the Bank Holding Company Act of 1956 reserved to the States final authority to prohibit the opening of subsidiaries of bank holding companies within their borders and that Louisiana had adopted such a law (albeit subsequent to the approval of the plan involved here by the Federal Reserve Board) which prevented the Comptroller from issuing the certificate. . A permanent injunction was issued against the Comptroller restraining the1 issuance of the authority. 211 F. Supp. 576. On appeal the Court of Appeals upheld the jurisdiction of the District Court, rejecting the contention that the competitor banks lacked standing to sue. It related bank charters to semi-exclusive franchises conferring upon their holders a right to be free from the competition of a branch bank the operation of which was vio-lative of the Banking Act of 1933, 12 U. S. C. § 36 (1958 ed.). On the merits it concluded that the proposed Jefferson Parish bank would be but a branch of Whitney-New Orleans which was prohibited by the Act. ' It therefore found it unnecessary to pass upon the effect of Louisiana’s law prohibiting the opening or operation of subsidiaries by bank holding companies. 116 U. S. App. D. C. 285, 323 F. 2d 290. In view of the tangle in which the parties had thus involved themselves and the national banking laws as well, we granted certiorari. 376 U. S. 948. We have concluded that the District Court for the District, of Columbia had no jurisdiction to pass on the merits of the holding company proposal; that appropriate disposition of the controversy cannot be made without further consideration of the case by the Federal Reserve Board, where original exclusive jurisdiction rests; and that since the application for review of its decision is now pending in the Court of Appeals for the Fifth Circuit, reasonable time should be allowed for .that court to act. We, therefore, reverse these judgments and order dismissal of the complaint. But issuance of our judgment is stayed for a period of 60 days in order to give the parties time to move in the Court of Appeals for the Fifth Circuit for an order remanding that case to the Federal Reserve Board; and, in the event of such a remand, to permit the Court of Appeals to issue such orders as will protect its jurisdiction pending final determination of the matter.

I.

The facts are undisputed. Whitney-New Orleans desired to extend its banking business into the expanding urban areas beyond the Parish of Orleans, its home base. It could not open branches beyond the parish line because Louisiana law, La. Rev. Stat. § 6:54 (1950), applicable to national banks, prohibited its operating a branch bank outside of its home parish. After discussions with the Deputy Comptroller of the Currency it was decided that the bank should establish a holding company (Whitney Holding Corporation) under federal law with a capital of $350,000 taken from the bank’s undivided profits and represented by 5,600 shares of stock of the holding company to be distributed to the bank’s shareholders. The holding company would then organize a new national bank, the Crescent City National Bank, with the $350,000 it had on hand. Whitney-New Orleans would then be merged into the Crescent City and the resulting bank would be known as Whitney-New Orleans. The new Whitney-New Orleans bank would declare a dividend of $650,000 from its undivided profits which would go to its owner, the holding company. The latter would then organize, with this $650;000, another national bank, Whitney-Jefferson, which, would be located in Jefferson Parish. The net result of the maneuver would be that the original stockholders of the old Whitney-New Orleans ■would own the holding company which in turn would own and operate both banks, i. e., the new Whitney-New Orleans and Whitney-Jefferson.

Approval of the stockholders of Whitney-New Orleans was first obtained, over 88% of the shares voting for the plan. It. was then submitted to the . Comptroller who on October 3, 1961, gave preliminary approval, subject to the action of the Federal Reserve Board and the consummation of the various transactions outlined. On July 14, 1961, applications were filed with the Board; thereafter notice was published in the Federal Register and three potential competitors expressed opposition. However, none of the respondents appeared or made any filings. After receiving the advice of the Comptroller pursuant to § 3 (b) of the Bank Holding Company Act of 1956, 12 U. S. C. § 1842 (b) (1958 ed.), which was favorable, the Board ordered a public proceeding to be held on January 17, 1962, “to afford further opportunity for ibhe expression of views and opinions by interested persons.” At this hearing testimony was heard and opposition submitted by objecting stockholders and potential competitors but none of the respondents took any part therein. The Board by a 6-1 vote approved the plan on May 3, 1962. This suit was filed on June 9, 1962. Thereafter on June 13, 1962, a petition for reconsideration was filed with the Federal Reserve Board by two of the respondent banks and was later joined by the Bank Commissioner of Louisiana. This application was denied on the ground of untimeliness and because the Board found it “without substantial merit.” The application for judicial review was then filed on June 30, 1962, with the Court of Appeals for the Fifth Circuit pursuant to § 9 of the Bank Holding Company Act of 1956, 12 U. S. C. § 1848 (1958 ed.).. That case, as we have said, awaits our decision here.

II.

The Bank Holding Company Act of 1956 prohibits a bank holding company from acquiring ownership or control of a. national bank, new or existing, without the approval of the Federal Reserve Board. 12 U. S. C. § 1842 (a) (1958 ed.). Provision is made for a full administrative proceeding before the Board in which all interested persons may participate and the views of the interested supervisory authorities may be obtained. 12 U. S. C. § 1842 (b) (1958 ed.). The Board’s determination is subject to judicial review by specified courts of appeals which must accept the administrative findings if they are supported by substantial evidence. 12 U. S. C. § 1848 (1958 ed.).

Thus, if the plan here merely encompassed the acquisition of an existing national bank already enjoying the Comptroller’s certificate of authority to do business, only the approval of the Board would be necessary, and the Comptroller would be involved only to the extent that he provided his views and recommendations.,' But, of course, this is not the case. Here it is a newly created national bank not yet authorized to do business that is sought to be organized and operated by a bank holding company. This authorization is the sole function of the Comptroller, requiring his. appraisal of the bank’s assets, directorate, etc., and his action is therefore necessary in addition to that of the Board approving the organization of the bank by the holding company. It is against , this background that we inquire whether the questions raised by the respondents' in the District Court against the “Comptroller were cognizable, by the Board.

III.

We think it clear that the thrust of respondents’ complaint goes to the organization of Whitney-Jefferson by the holding company rather than merely thé issuance of authority to Whitney-Jefferson to do business. Respondents’ chief contention is that Whitney-Jefferson would be but a branch bank of Whitney-New Orleans. But this #ould not follow simply by virtue of the issuance of authority for the opening of the new bank. Such a situation would occur, if at all, when the Board approved the holding company plan including the organization of Whitney-Jefferson as its subsidiary. Thus, it is the plan of organization by the holding company which lies at the heart of respondents’ argument.

The Bank Holding Company Act of 1956 directs the Board to consider both “the convenience, needs, and welfare of the communities and the area concerned” and “whether or nut the effect of such acquisition . . . would be to expand the size or extent of the bank holding company system involved beyond limits consistent with ( . . the public interest . . . .” 12 U. S. C. §§ 1842 (c)(4) and (5) (1958 ed.). Clearly, if respondents’ argument that Whitney-Jefferson would be a branch bank were sound, the Board would be compelled to disapprove the arrangement, for a plan of organization, violative of federal law would hardly be consistent with the statutory command that no bank holding company should be expanded beyond the limits consistent with the public interest.

The respondents also argue that the operation of Whitney-Jefferson is barred by a valid state law prohibiting any subsidiary of a bank holding company from opening for business “whether or not, a charter, permit, license or certificate to open for business has already been issued.” Here, as with their first argument, respondents’ quarrel is in actuality not merely with the opening of the bank, but rather with its opening as a subsidiary of Whitney Holding Corporation. Otherwise, the opening would not be prohibited by Louisiana law. Again, the Board could not approve a holding company arrangement involving the organization and opening of a new bank if the opening of the bank, by reason of its ownership by a bank holding company, would be prohibited by a valid state law.

We therefore conclude that respondents’ complaint tenders issues cognizable by the Federal Reserve Board, and we turn to the question of whether such objections must first be raised there.

IY.

We believe Congress intended the statutory proceedings before the Board to be the sole means by which questions as to the organization or operation of a new bank by a. bank holding company may be tested. Admittedly the acquisition of an existing bank is exclusively within the jurisdiction of the Board. We know of no persuasive reason for finding a different procedure required where it is a new bank that is sought to be organized and operated simply because the Comptroller there performs a function in addition to that of the Board, i. e., the issuance of the certificate to do business.

Moreover, the Bank Holding Company Act makes the Board’s approval of a holding company arrangement binding upon the Comptroller. A provision designed to make the decision of the Comptroller, rather than that of the Board, final was rejected when the Act was being framed. 101 Cong. Réc. 8186-8187. This legislative history clearly indicates that Congress had no intention to give the Comptroller a veto over the Board in such cases. It follows that it is the exclusive function of the Board to act in such cases and contests must be pursued before it, not before the Comptroller. This position is also supported by legislative history which shows that Congress rejected a proposal for a de novo review in the district courts of Board decisions on holding company proposals. Compare 12 U. S. C. § 1848 (1958 ed.) and S. Rep. No. 1095, pt. 1, 84th Cong., 1st Sess., 9, and pt. 2, 84th Cong., 2d Sess., 5, with § 9 of H. R. 6227, 101 Cong. Rec. 8187, and H. R. Rep. No. 609, 84th Cong., 1st Sess., 22, 25-26. Such a procedure would have been similar to that employed here against the Comptroller by respondents. However, the Congress decided otherwise, providing instead for review in the courts of appeals based on the facts found by the Board supported by substantial evidence. We think these congressional actions point clearly to the conclusion that it intended that challenges to Board approval of the organization and operation of a new bank by a bank holding company be pursued solely as provided in the statute.

This view is confirmed by our cases holding that where Congress has provided statutory review procedures designed to permit agency expertise to be brought to bear on particular problems, those procedures are to be exclusive. See, e. g., Callanan Road Improvement Co. v. United States, 345 U. S. 507 (1953); Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41 (1938); Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (1907). Congress has set out in the Bank Holding Company Act of 1956 a carefully planned ánd comprehensive method for challenging Board determinations. That action by Congress was designed to permit an agency, expert in banking matters, to explore and pass on the ramifications of a proposed bank holding company arrangement. To permit a district court to make the initial determination of a plan’s propriety would substantially decrease the effectiveness of the statutory design. As we stated in Far East Conference v. United States, 342 U. S. 570 (1952):

“[I]n cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.” At 574-575.

Here the Court of Appeals held that the relationship of Whitney-Jefferson to Whitney-New Orleans woüld be that of a branch bank notwithstanding the fact that they were organized under a bank holding company arrangement. The District Court found the proposal barred by Louisiana Act No. 275 of 1962. We believe that these are the very types of questions that Congress has committed to the Board, and we hold that the Board should make the determination of the plan’s propriety in the first instance. The soundness of this conclusion is especially evident when it is remembered that the Board has played a vital role in the development of the national banking laws, a role which makes its views of particular benefit to the courts where ultimately the validity of the arrángement will be tested.

Moreover, we reject the notion that the Board’s determination may be collaterally attacked in the District Court by a suit against the Comptroller. Opponents of the opening of a new bank by a bank holding company must first attack the arrangement before the Board, subject only to review by the Courts of Appeals. City of Tacoma v. Taxpayers of Tacoma, 357 U. S. 320 (1958); United States v. Corrick, 298 U. S. 435 (1936). That Congress has not expressly provided that the statutory procedure is to be exclusive does not require a different conclusion. For Congress has expressly rejected proposed provisions for review in these cases in the district, courts. Moreover, it has enacted a specific statutory scheme for obtaining review, and where Congress has directed such a procedure as that found in the Bank Holding Company Act of 1956, the doctrine of exhaustion of administrative remedies comes into play and requires that the statutory mode of review be adhered to notwithstanding the absence of an express statutory command of exclusiveness.

A rejection of this doctrine here would result in unnecessary duplication and conflicting litigation. Some opponents might participate before the Board; others might well wait for termination of the Board’s activities and then sue in the district courts for an injunction accomplishing the same ultimate end. The different records, applications of different standards and conflicting determinations that Tyould surely result from such duplicative procedures all militate in favor of the conclusion that the statutory steps provided in the Act are exclusive.

Respondents attempt to ground support for the District Court’s asserted jurisdiction on the Administrative Procedure Act, 5 U. S. C. §§ 1001, 1009 (1958 ed.), which provides that “Every . . . final agency action for which there is no other adequate remedy in any court shall be subject to judicial review, . . .” The short answer to this, of course, is, as we have pointed out, that the Comptroller’s action in issuing a certificate is not “final”; it is the action of the Board permitting consummation of the organization of the new bank by the holding company that is final, and its decision is subject to review only in the courts of appeals, not before the Comptroller or in the district courts.

Furthermore, the respondents contend that no provisions for review of the Comptroller’s decision are included in any of the pertinent Acts; indeed, they say, he has admitted as much in this case. Respondents again overlook the fact that the decision here approving the organization of the Whitney-Jefferson Bank is not for the Comptroller. He only checks the condition of the new bank, its capital, directorate, etc., as provided by the National Bank Act. 12 U. S. C. § 26 (1958 ed.). That, the action of the Comptroller is not final is made crystal-' clear here where, assuming he should issue the desired authority to Whitney-Jefferson to open for business, it would be completely negated in the event that on review the Board’s approval of the holding company plan was reversed. As we have said, it is the ownership of Whitney-Jefferson by the holding company that is at the heart of the project, not the permission to open for business which is acted upon routinely by the Comptroller once the authority to organize is given by the Board.

We do not say that under no circumstances may the Comptroller be restrained in equity from issuing a certificate to a new bank. We do hold, however, that where a bank holding company seeks to open a new bank pursuant to a plan of organization the propriety of which must, under the Bank Holding Company Act, be determined by the Board, the statutory review procedure set out in the Act must be utilized by those dissatisfied with, the Board’s ruling despite the fact that the Comptroller’s certificate is a necessary prerequisite to the opening of the bank. Otherwise the commands of the Congress would be completely frustrated.

V.

It is for this reason that the Fifth Circuit case reviewing the Board’s former action should be remanded to it. Section 3 (5) of Louisiana Act No. 275 of 1962, La. Rev. Stat. § 6:1003 (.5) (1962 Supp.), provides that “It shall be unlawful ... for any bank holding company or subsidiary thereof tct open for business any bank not now opened for business, whether or not, a charter, permit, license or certificate to open for business has already been issued. ...” This Act was passed on July 10, 1962, several days after the Board denied respondents’ petition for reconsideration. It was not considered by the Board as one of the factors in the application for registration as a bank holding company. The petition for review, attacking the Board’s determination before the Fifth Circuit, is, of course, not before this Court. Nevertheless it is perfectly obvious that the two cases are closely related. We have discussed earlier the importance which Congress has attached in the Bank Holding Company Act of 1956 to the principle that the Federal Reserve Board, with its expertise in the banking field, should make the initial determination of the propriety of the plan of organization giving full consideration to thp legislative guidelines set out in the Act. Section 7 of the Bank Holding Company Act of 1956, 12 U. S. C. § 1846 (1958 ed.), provides:

<fThe enactment by the Congress of this chapter shall not be construed as preventing any State from exercising such powers and jurisdiction which it now has or may hereafter have with respect to banks, bank holding companies, and subsidiaries thereof.”

Here the Board has not had an opportunity to determine the applicability and effect of the new Louisiana statute. We are of the opinion that this is the very type of question that Congress envisioned as being resolved in the first instance by the Board. In line with this legislative policy, and in the interest of judicial economy and proper administrative practice, the Board should have an opportunity to act in the light of Louisiana’s new law. It is for this reason that we give the parties not exceeding 60 days to proceed before the Court of Appeals for the Fifth Circuit to secure such a remand.

It appears from the record that the Comptroller advised the District Court that “if the preliminary injunction entered herein is vacated, and if Whitney National Bank in Jefferson Parish so requests, inasmuch as upon a careful examination of the facts within my knowledge it appears that such association is lawfully entitled to commence the business of banking, it is my present intention to issue such certificate.” R. 310. Our disposition, however, does not free the Comptroller to authorize the opening of the bank, for the Court of Appeals has the power to prevent the issuance of the certificate pending final disposition of the matter. As the Comptroller himself notes, the certificate may issue only when the applicant is “lawfully entitled to commence the business of banking.” . It would not be “lawfully entitled” to open in the event the Court of Appeals stayed the order of approval of the Federal Reserve Board pending final disposition of the review proceeding. The court, of course, is empowered under 28 U. S. C. § 1651 (1958 ed.) to do so. See Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4 (1942); Board of Governors of Federal Reserve System v. Transamerica Corp., 184 F. 2d 311 (1950). In the event such a stay were issued we feel certain that the Comptroller would not attempt to issue the certificate. But if he did and the Court of Appeals should find it necessary to take direct action to maintain the status quo and prevent the opening of the bank, it has ample power to do so. The Whitney Holding Corporation, a party presently before the Fifth Circuit, owns and controls both banks and through it the court could reach the technical applicant, Whitney-Jefferson. We think it clear that the Court of Appeals can appropriately fashion an order designed to compel Whitney Holding Corporation not only to refrain from acting itself but to require that its subsidiary. refrain from requesting the certificate and from opening the bank. - Indeed, upon proper application by the respondents the Court of Appeals could stay the hand of Whitney-Jefferson itself since it is within the jurisdiction of that court.. It is sufficient to say. here that the Fifth Circuit’s power to protect its jurisdiction is beyond question.

In the instant proceedings, the judgments of the Court of Appeals are reversed and the case is remanded to the District Court with direction to dismiss the complaint. Issuance of our judgment is stayed for 60 days to afford the parties opportunity to proceed as outlined in this opinion.

It is so ordered.

Me. Justice Douglas,

dissenting.

I dissent from the ruling of the Court that the District Court for the District of Columbia has no jurisdiction over this present controversy with the Comptroller of the Currency.

Two federal agencies are involved in this bank acquisition program:

The Federal Reserve Board has jurisdiction under the Bank Holding Company Act of 1956 to grant or deny an application by a holding company of the right to acquire the shares of any bank. 12 U. S. C. § 1842.

The Comptroller of the Currency has jurisdiction under the National Bank Act to license the opening of a banking operation where it appears that the applicant “is lawfully entitled to commence the business of banking.” 12 U. S. C. § 27.

It is thus apparent, that the two administrative proceedings involve different,.though related, matters; different, though related, applicants; and different, though related, issues.

The decision of the Board is subject to review in the Court of Appeals as provided in 12 U. S. C. § 1848. But, as stated by the Solicitor General, “The National Bank Act. . . makes no provision for an administrative hearing or for judicial review, and the Comptroller’s decisions are made informally, without an administrative record.” The courts, however, have held that judicial cognizance of a controversy with the Comptroller may be taken and judicial power exercised to keep the Comptroller within statutory bounds. Camden Trust Co. v. Gidney, 112 U. S. App. D. C. 197, 301 F. 2d 521; Union Savings Bank v. Saxon, 118 U. S. App. D. C. 296, 298, 335 F. 2d 718, 720, and cases cited. That conclusion is consistent with our holding in Columbia Broadcasting System, Inc. v. United States, 316 U. S. 407, 423-424, that, absent a congressional design to bar all judicial review (Switchmen’s Union v. National Mediation Board, 320 U. S. 297), injunctive relief is available where administrative remedies are either inapplicable or inadequate. This rule keeps the Comptroller from being a free-wheeling agency dispensing federal favors; and it gives some assurance that he will render principled decisions within the rule of law laid down by Congress.

The facts of this case dramatize the importance of the jurisdiction of the District Court. Shortly after the Board’s final action, in this case, and before review of its action by the Court of Appeals had been sought, Louisiana passed a law (La. Rev. Stat. §§ 6:1001 to 6:1006 (1962 Supp.)) which provides in pertinent part: “It shall be. unlawful ... for any bank holding company or subsidiary thereof to open for business any bank not now opened for business . . . .” The Bank Holding 'Company Act, 12 U. S. C. § 1846, specifically reserves to the States a broad power seemingly sufficient to bar bank holding companies or their subsidiaries from extending their domains.

In spite of the pending review of the Board’s order in the Court of Appeals and in spite of the intervening Louisiana law, the Comptroller on August 9, 1962, advised the District Court in affidavit form:

“Upon consideration of these subsequent developments, and after careful examination of the Louisiana statute, I have concluded that there has occurred no reason to alter the Comptroller’s prior determination that a certificate of authority should be issued to Whitney National Bank in Jefferson Parish, pursuant to 12 U. S. C. § 27.
“Accordingly, if the preliminary injunction entered herein is vacated, and if Whitney National Bank in Jefferson Parish so requests, inasmuch as upon a careful examination of the facts within my knowledge it appears that such association is lawfully entitled to commence the business of banking, it is my present intention to issue such certificate.”

This threat makes a mockery , of the Solicitor General’s assurancé that the parties have a full and adequate remedy in the Court of Appeals review of the Board’s order and of his position that the present suit is designed as a collateral attack on the review of that order. For without the injunction issued by the District Court the Comptroller candidly states that the new branch bank would be in business, flouting the new Louisiana law, whose prototype we have already sustained.

The ruling of the Court that the District Court had no jurisdiction in this case promises serious consequences. It means there may be an hiatus during which the Comptroller can take the law into his own hands without restraint from anyone. The Court looks to the Court of Appeals to give protection during that hiatus. In this case the Board of Governors of the Federal Reserve System approved the holding company application on May 3, 1962. The action in the District Court was filed on June 9, 1962. But judicial review of the Board’s action by the Court of Appeals was not sought until June 30, 1962.

If respondents had accelerated their review of the Board’s action, they still would not have had any protection against the Comptroller for he was not a party to the action in the Court of Appeals; and as the record shows if he had been freed from the restraint of the District Court, his alliance with Whitney-Jefferson would have resulted in a flouting of the law.

Whitney-Jefferson, moreover, was not a party in the Fifth Circuit proceeding. Nor will either the applicant “branch bank” or the holding company normally be a party to the appeal in the Court of Appeals. The statute providing for judicial review of a Board order at the instance of the “party aggrieved” does not make them parties. 12 U. S. C. § 1848. The governing rule of the Court of Appeals for the Fifth Circuit says that the “agency, board, commission or officer concerned shall be named as respondent”; but it is nowhere provided that those who were successful before the board or agency shall also be made respondents. Rule 39, 28 U. S. C. A. As it happens, Whitney Holding Corporation seems to have intervened in ‘the appeal to support the Board. But this is a fortuitous circumstance. After today’s decision it will no doubt occur to those who find themselves in Whitney’s position that possibly they, may, with the help of the Comptroller, be able to open their doors for business in defiance of state law simply by staying out of the review proceeding in the Court of Appeals and keeping their holding company master out of it also. Perhaps, as the Court suggests, the Court of Appeals will always be able to find the means to prevent such an eventuality by resort to 28 U. S. C. § 1651; perhaps it will not. But there can be no doubt that maintenance of the jurisdiction of the District Court is essential both for keeping the dual jurisdiction of the Board and of the Comptroller from a collision course and for keeping the Comptroller within bounds of the law.

I also dissent from remitting the constitutionality of the Louisiana Act to the Federal Reserve Board and thus giving administrative “expertise” new and surprising dimensions.

Heretofore we have remitted causes to federal agencies where “issues of fact not within the conventional experience of judges” are raised or where the case requires “the exercise of administrative discretion.” Far East Conference v. United States, 342 U. S. 570, 574. Here the facts are known and the bare, bald question of the constitutionality of Louisiana’s law is tendered. It is presented in this action in the District Court; the Comptroller threatens to flout that law; yet if it is a valid law, the new bank is not “lawfully entitled to commence the business of banking” within the meaning of the National Bank Act, 12 U. S. C. § 27. I would decide that issue here and. now.

Me. Justice Black,

dissenting.

For the reasons given in his dissenting opinion, I agree with my Brother Douglas that the District Court has jurisdiction over this controversy and that the question .of the Louisiana Act's constitutionality should not be remitted to the Federal Reserve Board, and I join his dissent on both those points. I would go further, however, and affirm the District Court’s judgment. As pointed out in Mr. Justice Douglas’ dissent, Louisiana now has .a law making it unlawful for any bank holding company to open for business in that State and Congress has consented for States to pass such a law. Accordingly, neither the Comptroller nor the Federal Reserve Board has power to permit the Whitney Holding Corporation to open a bank in Louisiana. Under these circumstances there is no reason whatever, except an entirely technical one, to let the litigation over this matter proceed any further. I would therefore end it by affirming the judgments of the Court of Appeals affirming the judgment of the District Court, a disposition which would, of course, call for a dismissal of the related controversy now pending in the Court of Appeals for the Fifth Circuit.

       La. Rev. Stat. § 6:54 (1950) prohibits banks from opening branch offices in parishes other than their home parish, and these geographical limitations are. made applicable to national banks by §23 of the Banking Act of 1933, 12 U. S'. C. § 36 (c) (2) (1958 ed.).

       Section 9 of the Bank Holding Company Act of 1956, 12 U. S. C. § 1848 (1958 ed.) provides for review of Federal Reserve Board action in the Court of Appeals.

       12 U. S. C. §1846 (1958 ed.) provides:
      “The enactment by the Congress of this chapter shall not be construed as preventing any State from exercising such powers and jurisdiction which it now has or ma^ hereafter have with respect to banks, bank holding companies, and subsidiaries thereof.”

         The Board approval was on May 3, 1962, while Louisiana Act No. 275 of 1962, La. Rev. Stat. §§6:1001-6:1006 (1962 8upp.), did not become effective until July 10, 1962, .at which time the Board’s approval was not final, being on review in the Court of Appeals for the Fifth Circuit in Bank of New Orleans & Trust Co. et al. v. Board of Governors of the Federal Reserve System, No. 19788 (C. A. 5th Cir.).

       The Board has indicated that in its view §7 of the Act permits the States to prohibit the formation of bank holding companies. See Trans-Nebraska Co., 49 Fed. Res. Bull. 633 (1963).

       Our disposition obviates the necessity of passing upon the contention of the petitioners that Louisiana’s law is invalid under the Supremacy Clause and the Equal Protection Clause.

       Aá we have said there may be exceptional circumstances under which equity may stay the hand of the Comptroller in issuing a certificate to a new bank. Obviously if the holding company application has not been acted upon by the Board, the Comptroller would have no power to issue the certificate and his persistence in doing so would subject him to the temporary orders of a court of competent jurisdiction.
      Such an action would not require an impermissible collateral attack on the merits of the proposal, which are reserved for the Board. Its sole purpose would be to prevent the Comptroller from acting without the Board’s approval — an objective that would protect the jurisdiction of the reviewing court of appeals rather than run afoul of it.

       Section 7 of the Act reads as follows:
      “The enactment by the Congress of this chapter shall not be construed as preventing any State from exercising such powers and jurisdiction which it now has or may hereafter have with respect to banks, bank holding companies, and subsidiaries thereof.” 12 U. S. C. § 1846.

       The Comptroller and the applicant bank, Whitney-Jefferson, made a speedy accommodation as shown in Whitney-Jefferson’s brief in this Court:
      “On May 10, 1962, Whitney-Jefferson executed and delivered to the new Comptroller of the Currency, its articles, of association and its certificate of organization, thereby establishing its corporate existence as a national banking association in accordance with 12 U. S. C. § 24. On May 18, 1962, the Comptroller approved the final corporate fonnalities necessary to complete the program. On May '24, 1962, the duly elected and -qualified directors of Whitney-Jefferson adopted by-laws and took action by which the new bank became a member of the Federal Reserve System.
      “Thereafter, the sole remaining legal step necessary to permit the opening of Whitney-Jefferson for business was the issuance to it by the Comptroller, under 12 U. S. C. § 27, of a certificate authorizing it to commence the business of banking. The Comptroller was about to issue such a certificate when this action was commenced on June 9, 1962. Whitney-Jefferson was prepared to open its doors for business, and would have commenced operations virtually as soon as it received a certificate.”

       See Braeburn Securities Corp. v. Smith, 15 Ill. 2d 55, 153 N. E. 2d 806, where a state statute forbade holding-company shareholders from acquiring stock of national banks. We dismissed the appeal “for want of a substantial federal question.” 359 U. S. 311. Accord: Trans-Nebraska Co., 49 Fed. Res. Bull. 633, 638 (1963). That decision was in line with federal policy of making state law the standard when it comes to certain kinds of branch banking. See United States v. Philadelphia National Bank, 374 U. S. 321, 328.


author: Mr. Justice Brennan Mr. Justice Harlan, Mr. Justice Douglas,

text:
    FORTSON, SECRETARY OF STATE OF GEORGIA v. DORSEY et al.
    No. 178.
    Argued December 10, 1964.
    Decided January 18, 1965.

      Paul Rodgers, Assistant Attorney General of Georgia, argued the cause for appellant. With him on the brief was Eugene Cook, Attorney General of Georgia.

      Edwin F. Hunt argued the cause for appellees. With him on the brief were William C. O’Kelley and Charles A, Moye, Jr.

   Mr. Justice Brennan

delivered the opinion of the Court.

Georgia’s 1962 Senatorial Reapportionment Act appor- . tions the 54 seats of the Georgia Senate among the State’s 159 counties. The 54 senatorial districts created by the Act are drawn, so far as possible, along existing , county lines; Thirty-three of the senatorial districts are made up of from one to eight counties each, and voters in these districts elect their senators by a district-wide vote. The remaining 21 senatorial districts are allotted in groups of from two to seven among the seven most populous counties, but voters in these districts do not elect a senator by a district-wide vote; instead they join with the voters of the other districts of the county in electing all the county’s senators by á county-wide vote.

The appellees, registered voters of Georgia, brought this action in the District Court for the Northern District of Georgia against the Secretary of State of Georgia and local election officials seeking a decree that the requirement of county-wide voting in the seven multi-district counties violates the Equal Protection Clause of the Fourteenth Amendment. A three-judge court granted appellees’ motion for summary judgment, stating that “The statute causes a clear difference in the treatment accorded voters in each of the two classes of senatorial districts. It is the same law applied differently to different" persons. The voters select their own senator in one class of districts. In the other they do not. They must join with others in selecting a group of senators and their own choice of a senator may be nullified by what voters in other districts of the group desire. This difference is a discrimination as between voters in the two classes. . . . The statute here is nothing more than a classification of voters in senatorial districts on the basis of homesite, to the end that some are allowed to select their representatives while others are not. It is an invidious discrimination tested by any standard.” 228 F. Supp. 259, 263. We noted probable jurisdiction, 379 U. S. 810. We reverse.

Only last Term, in our opinion in Reynolds v. Sims, 377 U. S. 533, decided after the decision below, we rejected the notion that equal protection necessarily requires the formation of single-member districts. In discussing the impact on bicameralism of the equal-protection standards, we said, “One body could be composed of single-member districts while the other could have at least some multi-member districts.” 377 U. S., at 577. (Emphasis supplied.) Again, in holding that a State might legitimately desire to maintain the integrity of various political subdivisions, such as counties, we said: “Single-member districts may be the rule in one State, while another State might desire to achieve some flexibility by creating multi-member or floterial districts. Whatever the means of accomplishment, the overriding objective must-be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.” 377 U. S., at 579. (Emphasis supplied.)

It is not contended that there is not “substantial equality of population” among the 54 senatorial districts. The equal protection argument is focused solely upon the question whether county-wide voting in the seven multi-district counties results in denying the residents therein a vote “approximately equal in weight to that of” voters resident in the single-member constituencies. Contrary to the District Court, we cannot say. that it does. There is .clearly no mathematical disparity. Fulton County, the State’s largest constituency, has a population nearly seven times larger than that of a single-district constituency and for that reason elects seven senators. Every Fulton County voter, therefore, may vote for seven senators to represent his interests in the legislature. But the appellees assert that this scheme is defective because county-wide voting in multi-district counties could, as a matter of mathematics, result in the nullification of the unanimous choice of the voters of a district, thereby thrusting upon them a senator for whom no one in the district had voted. But this is only a highly hypothetical assertion that, in any event, ignores the practical realities of representation in a multi-member constituency. It is not accurate to treat a senator from a multi-district county as the representative of only that district within the county wherein he resides. The statute uses districts in multi-district counties merely as the basis of residence for candidates, not for voting or representation. Each district’s senator must be a resident of that district, but since his tenure depends upon the county-wide electorate he must be vigilant to serve the interests of all the people in the county, and not merely those of people in his home district; thus in. fact he is the county’s and not merely the district’s senator. If the weight of the vote of any voter in a Fulton County district, when he votes for seven senators to represent him in the Georgia Senate, is not the exact equivalent of that of a. resident of a single-member constituency, we cannot say that his vote is not “approximately equal in weight to that of any other citizen in the State*”

In reversing the District Court we should emphasize that the equal-protection claim below was based upon an alleged infirmity that attaches to the statute on its face. Agreeing with appellees’ contention that the multi-mem-ber constituency feature of the Georgia scheme was per se bad, the District Court entered the decree on summary judgment. We treat the question as presented in that context, and our opinion is not to be understood to say that in all instances or under all circumstances such a system as Georgia has will comport with the dictates of . the Equal Protection Clause. It might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular casé, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. When this is demonstrated it will be time enough to consider whether the system still passes constitutional muster. This question, however, is not presented by the record before us. It is true that appel-lees asserted in one Short paragraph of their brief in this Court that the county-wide election method was resorted to by Georgia in order to minimize the strength of racial and political minorities in the populous urban counties. But appellees never seriously pressed , this point below and offered no proof to support it,, the District Court did not consider or rule on its merits, and in oral argument here counsel for appellees stressed that they do not rely on this argument. The record thus does not contain any substantiation of the bald assertion in appellees’ brief. Since, under these circumstances, this issue has "not been formulated to bring it into focus, and the evidence has not been offered or appraised to decide it, our holding has no bearing on that' wholly separate question.” Wright v. Rockefeller, 376 U. S. 52, 58.

Reversed.

Mr. Justice Harlan,

concurring.

Under the compulsion of last Term’s reapportionment decisions I join the opinion and judgment of the Court, but with one reservation. There is language in today’s opinion, unnecessary to the Court’s resolution of this case, that might be taken to mean that the constitutionality of state legislative apportionments must, in the last analysis, always be judged in terms of simple arithmetic.

As this Court embarks on the difficult business of putting flesh on the bones of Reynolds v. Sims, 377 U. S. 533, and its companion decisions of last June, I desire expressly to reserve for a case which squarely presents the issue, the question of whether the principles announced in those decisions require such a sterile approach to the concept of equal protection in the political field.

Mr. Justice Douglas,

dissenting.

Georgia — whose political hierarchy was long constructed on the county-unit basis — has made an important change. The Georgia Constitution was amended to read:

“The Senate shall consist of 54 members. The General Assembly shall have authority’to create, rearrange and change senatorial districts and to provide for the election of Senators from each senatorial district, or from several districts embraced within one county, in such manner as the General Assembly may deem advisable.” (Italics added.) Art. III, § II, par. I.

, The “senatorial district” is thus made the unit in the election of senators. But the Senatorial Reapportionment Act provides in relevant part:

“Each Senator must be a resident of his own senatorial district and'shall be elected by the voters of his own district, except that the Senators from those senatorial districts, consisting of less than one county shall be elected by all the voters of the county in which such senatorial district is located.”

Thus “senatorial districts” are put into two classifications: first, those, comprising one or more counties; second, those consisting of less than one county. The “equal protection” problem under the Fourteenth Amendment arises by reason of the fact that all electors of the districts in the first group choose their own senators, while the electors of the districts in the second group must share the choice of their senators with all the other electors in their county. I agree with the District Court: . . voters in some senatorial districts cannot be treated differently from voters in other senatorial districts. The statute here is nothing more than a classification of voters in senatorial districts on the basis of. homesite, to the end that some are allowed to select their representatives while others are not.” 228 F. Supp. 259, 263.

There are seven senatorial districts within Fulton County:

District 34 containing 82,195 voters.
District 35 containing 82,888 voters.
District 36 containing 79,023 voters.
District 37 containing 78,540 voters.
District 38 containing 78,953 voters.
District 39 containing 79,713 voters.
District 40 containing 74,834 voters.

There are three senatorial districts in De.Kalb County:

District 41 containing 75,117 voters.
District 42 containing 95,032 voters.
District 43 containing 86,633 voters.

As appellees point out, even if a candidate for one of those districts obtained all of the votes in that district, he could still be defeated by the foreign vote, while he would of course be elected if he were running in á district in the first group. I have no idea how this weighted voting might produce prejudice race-wise, religion-wise, politics-wise. But to allow some candidates to be chosen by the electors in their districts and others to be defeated by the voters of foreign districts is in my view an “invidious discrimination” — the test of unequal protection under the Fourteenth Amendment. Baker v. Carr, 369 U. S. 186, 244. I had assumed we had settled this question in Gray v. Sanders, 372 U. S. 368, 379, where we said: “Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — ^whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be. in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment.”

       Ga. Laws, Sept.-Oct. 1962, Extra. Sess., pp. 7-31; Ga. Code Ann. §47-102 (Cum. Supp. 1963). Section 9, the provision in question here, provides in pertinent part that:
      “Each Senator must be a resident of his own Senatorial District and shall be elected by the voters of his own District, .except that the Senators from those Senatorial Districts consisting of less than one county shall be elected by all the voters of the county in which such Senatorial District is located.” (Emphasis supplied.)
      Shortly after the enactment of this statute, and prior to the election of senators under it in.the 1962 general elections, an action was brought in a state court that challenged the validity of the above provision under the Georgia Constitution. The state court held that the exception in' the 1962 statute was unconstitutional as a matter of state law under the then-existing Georgia Constitution. Finch v. Gray, No. A 96441 (Fulton County Super. Ct., Oct. 30, 1962). The court entered a permanent injunction requiring that elections in Fulton and DeKalb Counties-be held on a district-wide basis only. Appeal was taken from this decision but was withdrawn. In its opinion the Georgia Court noted that the Georgia Legislature had authorized the submission of a constitutional amendment to the people ratifying the 1962 reapportionment statute with its multi-district-voting exception and all elections held under that statute. (The amendment was ratified. See Ga. Const. Art. III, § II, par. I; Ga. Code Ann. § 2-1401 (Cum. Supp. 1963).) The court stated concerning the proposed amendment:
      “It. is to be observed that by Paragraph (b) of said proposed Amendment to the Constitution, the -General Assembly submitted to the people the question whether they would ratify the Reapportionment Act and elections thereunder. This proposed Amendment, of course, is prospective and will become a part of the Constitution only if ratified by the voters in the coming general election.
      “The effect of ratification by the people of the Reapportionment Act containing the unconstitutional exception aforesaid is not now before the Court for determination. See, however, on this subject: Walker v. Wilcox Co., 95 Apps. 185; Hammond v. Clark, 136 Ga. 313; Bailey v. Housing Authority of City, of Bainbridge, 214 Ga. 790; Grayson-Robinson Stores, Inc. v. Oneida, Ltd., 209 Ga. 613; 9 Mercer L. Rev. 194, 195; 11 Am. Juris., page 832, section 151. The importance here of the aforesaid proposed constitutional Amendment is simply for the light .it sheds upon the intention of the General Assembly in enacting the Reapportionment statute.”
      The question of Georgia law raised by the decisions cited by the court as to whether a statute declared unconstitutional under Georgia law may be revived by a subsequent constitutional amendment was not raised below and has not been urged here. Of course, this question of Georgia law is not for us; our decision concerns only the federal constitutional question presented and argued.

       These 33 senatorial districts embrace 152 of the State’s 159 counties. Of the 33 districts, only two consist of single counties; the remaining 31 districts are comprised of from two to eight counties each.

       Appellees take as their example Senatorial District 34, in which there are 82,195 of Fulton County’s total of 556, 326 voters. They say, as a matter of mathematics, that even if every voter in District 34 voted for the same candidate from that district, less than 18% of the voters in the other six districts within the county (i. e., approximately 85,000 of the remaining 474, 131 voters in the county) could outvote the unanimous choice of District 34 voters. First of. all, there is no demonstration that this is likely in- light of the political composition of District 34 vis-a-vis that of the rest of the county. (In fact, the 1962 elections .in both Fulton and DeKalb Counties— wherein all appellees reside — were conducted on a district-wide basis rather than a county-wide basis. See note 1, supra.) But apart from this, appellees’ mathematics are misleading, for not only will the 18%, or 85,000, of the remaining Fulton County voters vote for a senatorial candidate resident in District 34, but,, also the remaining 389,131 voters will presumably participate in his election. Assuming these additional vot.ers split their votes almost evenly between two candidates running from District 34 — the most “favorable” assumption-for appellees in that it will produce the smallest possible percentage of voters who can outvote the unanimous choice of the voters in District 34 — there will be approximately 280,000 votes against the choice- of the voters in the 34th District, or about 59% of the remaining, out-of-district vote. This is a far cry from the 18% figure calculated by appellees. And, even if, on some odd chance, only 85,000 voters outside of District 34 participate in the selection of a senator from that district, and all vote against the unanimous choice of District 34 voters, the 18% figure is still misleading. For in this eventuality, the relevant voting constituency consists of something under 170,000 voters, and close to 100% — not 18% — of the out-of-district vote has to be cast against-the choice of the in-district vote in order to outvote the latter. Our decision should not be read, however, as resting upon the misleading aspects of appellees’ calculations;

        South v. Peters, 339 U. S. 276.


author: Mr. Justice Brennan Mr. Justice Black, Mr. Justice Hablan,

text:
    HENRY v. MISSISSIPPI.
    No. 6.
    Argued October 13, 1964.
    Decided January 18, 1965.

      Barbara A. Morris argued the cause, for petitioner. With her on the brief were Robert L. Carter, Jack H. Young,. R. Jess Brown, Jr., and Alvin K. Hellerstein.

      G. Garland Lyell, Jr., Assistant Attorney General of Mississippi, argued the cause for respondent. With him on the brief was Joe T. Patterson, Attorney General of Mississippi.
   Mr. Justice Brennan

delivered the opinion of the Court, .

Petitioner was convicted of disturbing the peace, by indecent proposals to and offensive contact with an 18-year-old hitchhiker to whom he is said to have given a ride in his car. The trial judge charged the jury that “you cannot find the defendant guilty on the unsupported and uncorroborated testimony of the complainant alone.” The petitioner’s federal claim derives from the admission of a police officer’s testimony, introduced to corroborate the' hitchhiker’s testimony. The Mississippi Supreme Court held that the officer’s testimony was improperly admitted as the fruit of “an unlawful search and was in violation of § 23, Miss. Constitution 1890.” 154 So. 2d 289, 294. The tainted evidence tended to substantiate the hitchhiker’s testimony by showing its accuracy in a detail which could have been seen only by one inside the car. In particular, it showed that the right-hand ashtray of the car in which the incident took place was full of Dentyne chewing gum wrappers, and that the cigarette lighter did not function. The police officer testified that after petitioner’s arrest he had returned to the petitioner’s home and obtained the permission of petitioner’s wife to look in petitioner’s- car. The wife provided the officer with the keys, with which the officer opened the car. He testified that he tried the lighten and it would not work, and also that the ashtray “was filled with red dentyne chewing gum wrappers.”

The Mississippi Supreme Court first filed an opinion which reversed petitioner’s conviction and remanded for a new trial. The court held that the wife’s consent to the search of the car did not waive petitioner’s constitutional rights, and noted that the “ [t] estimony of the State’s witness"... is, in effect, uncorroborated without the evidence disclosed by the inspection of defendant’s automobile.” 154 So. 2d, at 296 (advance sheet). Acting .in the belief that petitioner had been represented by nonresident counsel unfamiliar with local procedure, the court reversed despite petitioner’s failure to comply with the Mississippi requirement that an objection to illegal evidence be made at the time it is introduced. The court noted that petitioner had moved for a directéd verdict at the close of the State’s case, assigning as one ground the use of illegally obtained evidence; it did not mention petitioner’s renewal of his motion at the close of all evidence.

After the first opinion was handed down, the State filed a Suggestion of Error, pointing out that petitioner was in fact 'represented at his trial by competent local counsel, as well as by out-of-state lawyers. Thereupon the Mississippi Supreme Court withdrew its first opinion and filed a new opinion in support of a judgment affirming petitioner’s conviction. The new opinion is ' identical with , the first save for the result, the statement that petitioner had local counsel, and the discussion of the effect of failure for whatever reason to make timely objection to the evidence. “In such circumstances, even if honest mistakes of counsel in respect to policy or strategy or otherwise occur, they are binding upon the client as a part of the hazards of courtroom battle.” 154 So. 2d, at 296 (bound volume). Moreover, the court reasoned, petitioner’s cross-examination of the State’s witness before the initial motion for directed verdict, and introduction of other evidence of the car’s interior appearance afterward, “cured” the original error and estopped petitioner from complaining of the tainted evidence. We granted certiorari, 376 U. S. 904. We vacate the judgment of conviction and remand for a hearing on the question whether the petitioner is to be deemed to have knowingly waived decision of his federal claim when timely objection was not made to the admission of the illegally seized evidence.

It is, of course, a familiar principle that this Court will decline to review state court judgments which rest on independent and adequate state grounds, even where those judgments also decide federal questions. The principle applies not only in cases involving state substantive grounds, Murdock v. City of Memphis, 20 Wall. 590, but also in cases involving state procedural grounds. Compare Herb v. Pitcairn, 324 U. S. 117, 125-126, with Davis v. Wechsler, 263 U. S. 22. But it is important to distinguish between state substantive grounds and state procedural grounds. Where the ground involved is substantive, the determination of the federal question cannot affect the disposition if the state court decision on the state law question is allowed to stand. Under the view taken in Murdock of the statutes conferring appellate jurisdiction tin this Court, we have no power to revise judgments on questions of state law. Thus, the adequate nonfederal ground doctrine is necessary to avoid advisory opinions.

These justifications have no application where the state ground is purely procedural. A procedural default which is held to bar challenge to a conviction in state courts, even on federal constitutional grounds, prevents implementation of the federal right. Accordingly, we have consistently held that the question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question. Cf. Lovell v. City of Griffin, 303 U. S. 444, 450. As Mr. Justice Holmes said:

“When as here there is a plain assertion of federal rights in the lower court, local rules as to how far it shall be reviewed on appeal do not necessarily prevail. . . . Whether the right was denied or not given due recognition by the [state court] ... is a question as to which the plaintiffs are entitled to invoke our judgment.” Love v. Griffith, 266 U. S. 32, 33-34.

Only last Term, we reaffirmed this principle, holding that a state appellate court’s refusal, on the ground of mootness, to consider a federal claim,. did not preclude our independent determination of the question of mootness; that is itself a question of federal law which this. Court must ultimately decide. Liner v. Jafco, Inc., 375 U. S. 301. These cases settle the proposition that a litigant’s procedural defaults in state proceedings do not prevent vindication of his federal rights unless the State’s insistence on compliance with its procedural rule serves a legitimate state interest. In every case we must' inquire whether the enforcement of a procedural forfeiture serves such a state interest. If it does not, the state procedural rule ought not be permitted to bar vindication of important federal rights.

The Mississippi rule requiring contemporaneous objection to the introduction of illegal evidence clearly does serve a legitimate state interest. By immediately apprising the trial judge of the objection, counsel gives the court the opportunity to conduct the trial without using the tainted evidence. If the objection is well taken the fruits of the illegal search may be excluded from jury consideration, and a reversal and new-trial avoided. But on the record before us it appears that this purpose of the contemporaneous-objection rule may have been substantially served by petitioner’s motion at the close of the State’s evidence asking for a directed verdict because of the erroneous admission of the officer’s testimony. For at this stage the trial judgé could have called for elaboration of the search and seizure argument and, if persuaded, could have stricken the tainted testimony or have taken other, appropriate corrective action. For example, if there was sufficient competent evidence without this testimony to go to the jury, the motion for a directed verdict might have been denied, and the case submitted to the jury with a properly worded appropriate cautionary instruction. In these circumstances, the delay until the close of the State’s case in presenting the objection cannot be said to have frustrated the State’s interest in avoiding delay and waste of time in the disposition of the case. If this is so, and enforcement of the rule here would serve no substantial state interest, then settled principles would preclude treating the state ground as adequate; giving effect.to the contemporaneous-objection rulé for its own sake “would be to force resort to an arid ritual of meaningless form.” Staub v. City of Baxley, 355 U. S. 313, 320; see also Wright v. Georgia, 373 U. S. 284, 289-291.

We have no reason, however, to decide that question now or to express any view on the merits of petitioner’s substantial constitutional claim. For even assuming that the making of the objection on the motion for a directed verdict satisfied the state interest served by the contemporaneous-objection rule, the record suggests a possibility that petitioner’s counsel deliberately bypassed the opportunity to make timely objection in the state court, and thus that the petitioner should be. deemed to have forfeited his state court remedies. Although the Mississippi Supreme Court characterized the failure to object as an “honest mistake,” 154 So. 2d, at 296 (bound volume), the State, in the brief in support of its Suggestion of Error in the Supreme Court of Mississippi asserted its willingness to agree that its Suggestion of Error “should not be sustained if either of the three counsel [for petitioner] participating in this trial would respond hereto with an affidavit that he did not know that at some point in a trial in criminal court in Mississippi that an objection to such testimony must have been made.” The second opinion of the Mississippi Supreme Court does not refer to the State’s proposal and thus it appears that the Court did not believe that the issue was properly presented for decision. Another indication of possible waiver appears in an affidavit attached to the State’s brief in this Court; there, the respondent asserted that one of petitioner’s lawyers stood up as if to object to. the officér’s. tainted testimony, and was pulled down by co-counsel. Again, this furnishes an insufficient basis for decision qf the waiver questions at this time. But, together with the proposal in the Suggestion of Error, it is enough to justify an evidentiary hearing to determine whether petitioner “after' consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of 'seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures . . . .” Fay v. Noia, 372 U. S. 391, 439.

The evidence suggests reasons for a strategic move. Both the complaining witness and the police officer testified that the cigarette lighter in the car did not work. After denial of its motion for a directed verdict the defense called a mechanic who had repaired the cigarette lighter. The defense might have planned to allow the complaining witness and the officer to testify that the cigarette lighter did not work, and then, if the motion for directed verdict were not granted, to discredit both witnesses by showing that it did work, thereby persuading the jury to acquit. Or, by delaying objection to the evidence, the defense might have hoped to invite error and lay the foundation for a subsequent reversal. If either reason motivated the action of petitioner’s counsel, and their plans backfired, counsel’s deliberate choice of the strategy would amount to a waiver binding on petitioner and would preclude him from a decision on the merits of his federal claim either in the state courts or here. Although trial strategy adopted by counsel without prior consultation with an accused will not, where the circumstances are exceptional, preclude the accused from asserting constitutional claims, see Whitus v. Balkcom, 333 F. 2d 496 (C. A. 5th Cir. 1964), we think that the deliberate bypassing by counsel of the contemporaneous-objection rule as a part of trial strategy would have that effect in this case.

Only evidence extrinsic to the record before us can establish the fact of waiver, and the State should have an opportunity to establish that fact.. In ~ comparable cases arising in federal courts we have vacated the judgments of conviction and remanded for a hearing, suspend.-ing the determination of the validity of the conviction pending the outcome of the hearing. See United States v. Shotwell Mfg. Co., 355 U. S. 233; Campbell v. United States, 365 U. S. 85. We recently adopted a similar procedure to determine an issue essential to the fairness of a state conviction. See Jackson v. Denno, 378 U. S. 368, 393-394; Boles v. Stevenson, 379 U. S. 43. We think a similar course is particularly desirable here, since a dismissal on the basis of an adequate state ground would not end this case; petitioner might still pursue vindication of his federal claim in a federal habeas corpus pioceeding in which the procedural default will not alone preclude consideration of his claim, at least unless it is shown that petitioner deliberately bypassed the orderly procedure of the state courts. Fay v. Noia, supra, at 438.

Of course, in so remanding we neither hold nor even remotely imply that the State must forgo insistence on its procedural requirements if it finds no waiver. Such a finding would only mean that petitioner could have a federal court apply settled principles to test the effectiveness of the procedural default to foreclose consideration of his constitutional claim. If it finds the procedural default ineffective, the federal court will itself decide the merits of his federal claim, at least so long as the state court does not wish to do so. By permitting the Mississippi courts to make an initial determination of waiver, we serve the causes of efficient administration of criminal justice, and of harmonious federal-state judicial relations. Such a disposition may make unnecessary the processing of the case through federal courts already laboring under congested dockets, or it may make unnecessary the reliti-gation in a federal forum of certain issues. See Townsend v. Sain, 372 U. S. 293, 312-319. The Court is not blind to the fact that the federal habeas corpus jurisdiction has been a source of irritation between the federal and state judiciaries. It has been suggested that this friction might be ameliorated if the States would look upon our decisions in Fay v. Noia, supra, and Townsend v. Sain, supra, as affording them an opportunity to provide state procedures, direct or collateral, for a full airing of federal claims. That prospect is better served by a remand than by relegating petitioner to his federal habeas remedy. Therefore, the judgment is vacated and the case is remanded to the Mississippi Supreme Court for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Black,

dissenting.

Petitioner contends that his conviction was based in part on evidence obtained by an allegedly unlawful search in violation of the United States Constitution. I would decide this federal question here and now. I do not believe that the Mississippi procedural trial rule relied on by the State can shut off this Court’s review, nor do I find a particle of support for the Court’s suggestion that petitioner knowingly waived his right to have this constitutional question decided by the state trial court.

As far as the issue of waiver is concerned, I agree with the Mississippi Supreme Court, which considered the failure to object one of the “honest mistakes” which any lawyer might nciake, since I believe that the record is completely barren of evidence to. support a finding of a conscious and intentional waiver of petitioner’s due process right to have the trial court decide whether evidence uged against him had been unconstitutionálly seized. Therefore I would not remand for a hearing by the State Supreme Court or the trial court on the issue of waiver. And even if I considered that á real issue of waiver had been shown and was properly before us, I would decide it here. I cannot agree to the Court’s judgment remanding the case to the state courts for a hearing on that issue alone, thereby giving the State a chance to supplement the trial record to saye its conviction from constitutional challenge in a summary hearing before a court without a jury; This is the kind of piecemeal prosecution invented and used by this Court several years ago in United States v. Shotwell Mfg. Co., 355 U. S. 233. I expressed my dissent from such an unjust, if not unconstitutional, frag-mentizing technique in Shotwell, 355 U. S., at 246-252, arid again last year when the Court again applied it in Jackson v. Denno, 378 U. S. 368, dissenting opinion at 401, 409-410. See also Boles v. Stevenson, 379 U. S. 43, dissent noted at 46. I have the same objections to “Shotwellmg” the present casé. And I do not think this dangerous Shotwellmg device should be expanded so that the State may invoke it merely by challenging petitioner’s counsel here to deny knowledge of Mississippi’s procedural rule.

Nor do I believe that Mississippi’s procedural rule concerning the stage of a trial at which constitutional objections should be made is the kind of rule that we should accept as an independent, adequate ground for the State Supreme Court’s refusal to decide the constitutional question raised by petitioner. In Williams v. Georgia, 349 U. S. 375, this Court held that where a State allows constitutional questions “to be raised at a late stage and be determined by its courts as a matter of discretion, we are not concluded from assuming jurisdiction and deciding whether the state court action in the particular circumstances is, in effect, an avoidance of the federal right.” No Mississippi court opinions or state statutes have been called to our attention that I read as denying power of the State Supreme Court, should that court wish to do so, to consider and determine constitutional questions presented at the time this one was. In fact, as I understand counsel for the State, the Supreme Court of Mississippi does have power in its discretion to consider such questions regardless of when they are presented. As that court has said most persuasively:

“Constitutional rights in serious criminal cases rise above mere rules of procedure. . . . Errors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal.” Brooks v. State, 209 Miss. 150, 155, 46 So. 2d 94, 97.

After stating this to be the rule it followed, and citing a number of its past decisions which stated and applied the same rule, the highest court of Mississippi, in the opinion quoted from, because of that rule reversed a con-yiction obtained through the use of unconstitutionally seized evidénce, even though as in the present case there had been no objection made at the time the evidence was_ presented. The court noted that it had applied this same rule in other cases where proper objection had not been made at the trial, citing its holdings in Fisher v. State, 145 Miss. 116, 110 So. 361, and Carter v. State, 198 Miss. 523, 21 So. 2d 404. In all of those cases the defendant appears to have been represented by local counsel. Yet this Court now apparently holds that the state court may, if it chooses to do so, depart from its prior cases and apply a new, stricter rule against this defendant and thereby prevent this Court from reviewing the case to see that his federal constitutional rights were safeguarded. I do not believe the cherished federal constitutional right of a defendant to object to unconstitutionally seized evidence offered against him can be cut off irrevocably by state-court discretionary rulings which might be different in particular undefined circumstances in other cases. I think such a procedural device for shutting off our review of questions involving constitutional rights is too dangerous to be tolerated.

For these reasons I dissent from the disposition of this case.

Mr. Justice Hablan,

with whom Me. Justice Clark and Me. Justice Stewart join,

dissenting.

Flying banners of federalism, the Court’s opinion actually raises storm signals of a most disquieting nature. While purporting to recognize the traditional principle that an adequate procedural, as well as substantive, state ground of decision bars direct review here of any federal claim asserted in the state litigation, the Court, unless I wholly misconceive what is lurking in today’s opinion,, portends a severe dilution, if not complete abolition, of the concept of “adequacy” as pertaining to state procedural grounds.

In making these preliminary observations I do not believe I am seeing ghosts. For I cannot account for the remand of this case in the face of what is a demonstrably adequate state procedural ground of decision by the Mississippi Supreme Court except as an early step toward extending in one way or another the doctrine of Fay v. Noia, 372 U. S. 391, to direct review. In that case, decided only two Terms ago, the Court turned its back on history (see dissenting opinion of this writer, at 448 et seq.), and did away with the adequate state ground doctrine in federal habeas corpus proceedings.

Believing that any step toward extending Noia to direct review should be flushed out and challenged at its earliest appearance in an opinion óf this Court, I respectfully dissent.

I.

The Mississippi Supreme Court did not base its ultimate decision upon petitioner’s federal claim that his wife’s consent could not validate an otherwise improper police search of. the family car, but on the procedural ground that petitioner (who was represented by Three experienced lawyers) had not objected at the time the fruits of this search' were received in evidence. This Court now strongly implies, but does not decide (in view of its remand on the “waiver” issue) that enforcement of the State’s “contemporaneous-objection” rule was inadequate as a state ground of decision because the petitioner’s motion for a directed verdict of acquittal afforded the trial judge a satisfactory opportunity to take “appropriate corrective action” with reference to the allegedly inadmissible evidence. Thus, it is suggested, this may be a situation where “giving effect to the contemporaneous-objection rule for its own sake ‘would be to force resort to an arid ritual of meaningless form.’ ” (Ante, p. 449.)

From the standpoint of the realities of the courtroom, I can only regard the Court’s analysis as little short of fanciful. The petitioner’s motion for a verdict could have provoked one of three courses of action by the trial judge, none of which can reasonably be considered as depriving the State’s contemporaneous-objection rule of its capacity to serve as an adequate state ground.

1. The trial judge might have granted the directed verdict. But had this action been appropriate, the Supreme Court of Mississippi,.in its first opinion, would have ordered the prosecution dismissed. Since it did not, and the matter is entirely one of state law, further speculation by this Court should be foreclosed.

2. The trial judge might have directed a mistrial. The State’s interest in preventing mistrials through the contemporaneous-objection requirement is obvious.

3. The remaining course of action is the example given by the Court; the trial judge could have denied the motion .for a directed verdict, but, sua sponte, called for elaboration of the argument, determined that the search of the automobile was unconstitutional, and given, cautionary instructions to the jury to disregard the inadmissible evidence when the case was submitted to it.

The practical difficulties with this approach are manifestly sufficient to show a substantial state interest in their avoidance, and thus to show an “adequate” basis for the State’s adherence to the contemporaneous-objection rule. To make my point I must quote the motion for directed verdict in full.

“Atty Carter: We’re going to make a motion, your Honor, for a directed-verdict in this case. We are going to base our motion on several grounds. First, we think that this whole process by which this defendant was brought or attempted to be brought into the jurisdiction of this Court is illegal and void. There is nothing in the record in this case to show that the warrant that was issued against this defendant was based upon — it must be based in this State and any other State on an affidavit, on a proper affidavit or a proper complaint by any party. True, there is.-Some testimony that some affidavit was made, and the complaining witness said so, but in the record in this case which is before the Court, no such affidavit is present and there is a verification from the Justice of the Peace , that no such • affidavit. is present in this case; therefore, we contend that the warrant under which this defendant was subjected to arrest was illegal and without force and effect. Secondly, we contend that , the warrant having been issued and the testimony of this Mr. Collins on the stand to the effect that after he had placed this man under arrest, he then proceeded to go and search his car, and clearly, this is a violation of his rights under the Fourth Amendment, and it is unlawful search and seizure so the evidence that they have secured against this defendant is illegal and unlawful. Finally, we contend that on the basis of these facts that the affidavit under which the defendant was tried before the Justice of the Peace Court, as we contended yesterday, based upon the statement that was sworn to by the County Attorney, not on information and belief, but directly that this is void and defective and could give the Justice of the Peace no jurisdiction in this case. We contend under these circumstances that the State — that this is an illegal process; that this man’s rights have been violated under the Fourteenth Amendment, and finally, we contend that the State has failed to prove beyond a reasonable doubt to any extent to implicate this man in this case. Now, on these basis [sic] we contend that this whole process is illegal and void, and that it has permeated and contended [sic] the whole process insofar as the jurisdiction of this - Court is concerned or jurisdiction over this individual is concerned; therefore, he should be released, and we move for a directed verdict.
“Court: Motion overruled. Bring the jury back.”

-The motion was renewed at the completion of the defense in the following language:

“Atty Carter: Your Honor, at this time at the close of the case we want to make a motion for a directed verdict. We bas,e it on the grounds arid the reasons which we set forth in our motion for a directed verdict at the close of the State’s case. We make it now at the close of the entire case on those grounds and on the grounds that the evidence has not shown beyond any reasonable doubt under the law that the defendant is guilty of the charge. We therefore make a motion for a directed verdict at this time.
“Court: Motion is overruled.”

The single sentence in the first motion (supra, p. 460) is the only direct reference to the search and seizure question from beginning to end of the trial.

As every trial lawyer of any experience knows, motions for directed verdicts are generally made as a matter of course at the close of the prosecution’s case, and are generally denied without close consideration Unless the case is clearly borderline. It is simply unrealistic in this context to have expected the trial judge to pick out the single vague sentence from the . directed verdict motion and to have acted upon it with the refined imagination the Court would require of him. Henry’s three lawyers apparently regarded the search and seizure claim as makeweight. They had not mentioned it earlier in the trial and gave no explanation for their laxity in raising it. And when they did mention it, they did so in a cursory and conclusional sentence placed in a secondary position in a directed verdict motion. The theory underlying the search and seizure argument — that a wife’s, freely given permission to search the family car is invalid — is subtle to say the very least, and as the matter was presented to the trial judge it would have been extraordinary had he caught it, or even realized that there was a serious problem to catch. But this is not all the Court would require of him. He must, in addition, realize that despite the inappropriateness of granting the directed verdict requested of him, he could partially serve the cause of the defense by taking it upon himself to frame and give cautionary instructions to the jury to disregard the evidence obtained as fruits of the search.

Contrast with this the situation presented by a contemporaneous objection. The objection must necessarily be directed to the single question of admissibility; the judge must inevitably focus on it; there would be no doubt as to the appropriate form of relief, and the effect of the trial judge’s decision would be immediate rather than remote. Usually the proper timing of an objection will force an elaboration of it. Had objection been made in this case during the officer’s testimony about the search, it would have called forth of its own force the specific answer that the wife had given her permission and, in turn, the assertion that the permission was ineffective. The issue, in short, would have been advertently faced by the trial judge and the likelihood of achieving a correct result maximized.

Thus the state interest which so powerfully supports the contemporaneous-objection rule is that of maximizing correct decisions and concomitantly minimizing errors requiring mistrials and retrials. The alternative for the State is to reverse a trial judge who, from a long motion, fails to pick out and act with remarkable imagination upon a single vague sentence relating to admissibility of evidence long since admitted. A trial judge is a decision-maker, not an advocate. To force him out of his proper rolé by requiring him to coax out the arguments and imaginatively reframe the requested remedies for the counsel before him is to place upon him more responsibility than a trial judge can be expected to discharge.

There was no “appropriate corrective action'' that could have realistically satisfied the. purposes of the contemporaneous-objection rule. Without question the State had an interest in maintáining the integrity of its procedure, and thus without doubt reliance on the rule in question is “adequate” to bar direct review of petitioner’s federal claim by this Court.

II.

The real reason for remanding this case emerges only in the closing pages of-the Court’s opinion. It is pointed out that even were the contemporaneous-objection rule considered to be an adequate state ground, this would not, under Fay v. Noia, preclude consideration of Henry’s federal claim in federal habeas corpus unless it were made to appear that Henry had deliberately waived his federal claim in the state proceedings. It is then said that in the interest of “efficient administration of criminal justice” and “harmonious” relations between the federal and state judiciaries the Mississippi courts should be given the opportunity to pass, in the first instance, on the waiver issue; the prospect is entertained that such action on the part of this Court will encourage the States to grasp the “opportunity” afforded by Fay v. Noia and Townsend v. Sain by providing “state procedures, direct or collateral, for a .full airing of federal claims.” It is “suggested” that were this to be done “irritation” and “friction” respecting the exercise of federal habeas corpus power vis-á-vis state convictions “might be ameliorated.”

What does all this signify? The States are being invited to voluntarily obliterate all state procedures, however conducive they may be to the orderly conduct of litigation, which might thwart state-court consideration of federal claims. But what if the States do not accept the invitation? Despite the Court's soft-spoken assertion that “settled principles” will be applied in the future, I do not think the intimation will be missed by any discerning reader of the Court’s opinion that at the least a substantial dilution of the adequate state-ground doctrine may be expected. A contrary prediction is belied by the implication of the opinion that under “settled principles,” the contemporaneous-objection rule, relied upon in this case could be declared inadequate.

To me this would not be a move toward “harmonious” federalism; any further disrespect for state procedures, no longer cognizable at all in federal habeas corpus, would be the very antithesis of it. While some may say that, given Fay v. Noia, what the Court is attempting to do is justifiable as a means of promoting “efficiency’' in the administration of criminal justice,, it is the sort of efficiency which, though perhaps appropriate in some, watered-down form of federalism, is not congenial to the kind of federalism I had supposed was ours. I venture to say that to all who believe the federal system as we have known it to be a priceless aspect of our Constitutionalism, the spectre implicit in today’s decision will be no less disturbing than what the Court has already done in Fay v. Noia.

Believing that the judgment below rests on an adequate independent state ground, I would dismiss the writ issued in this case ás improvidently granted.

       The Mississippi Supreme Court wrote two opinions. The first is reported in the July 11, 1963, issue of the Southern Reporter advance sheets, 154 So. 2d 289. This was withdrawn when the court filed the second opinion, which appears at the. same page in the bound volume of the Southern Reporter; Citations hereinafter will designate the bound volume or the advance sheet if the cited material appears in only one opinion. The material referred to at this point in the'text,appears in both opinions.

       The complaining witness also testified as to the last four digits of petitioner’s license plate, and to the fact that the first three digits were obscured; these facts were independently substantiated. Since the license plate could be seen from outside the par, and petitioner denied that the complaining witness had ever been in his car, the Mississippi Supreme Court apparently accepted the officer’s testimony concerning the Dentyne wrappers and cigarette lighter as the only cogent corroborative evidence.

       This will not lead inevitably to a plethora of attacks on the application of state procedural-rules; where the state rule is a reasonable one and clearly announced to defendant and counsel, application of the waiver doctrine will yield the same result as that of the adequate nonfederal ground doctrine in the vast majority of cases.

         The view-of the Mississippi court in its first opinion seems to have been that there was insufficient evidence apart from the tainted testimony to support the conviction. Hence, appropriate corrective action as a matter of state law might have included granting petitioner’s motion. We have not overlooked the .fact that the first opinion remanded for a new trial, although the usual practice of the Mississippi Supreme Court where a motion for directed verdict, renewed at the close of all the evidence, is improperly denied is to dismiss the prosecution. See Lewis v. State, 198 Miss. 767, 23 So. 2d 401; Adams v. State, 202 Miss. 68, 30 So.2d 593; Smith v. State, 205 Miss. 170, 38 So. 2d 698. The opinion offers no explanation, of the mandate; the answer is probably that the court refers only to the' motion at the end of the State’s case, 154 So. 2d, at 294, 295, and overlooks the fact that it was renewed at the close of all the evidence,, just as it overlooks the .presence of local counsel. If the motion were not renewed, the appellate court could not dismiss the prosecution. See Smith v. State, supra.

       We do not rely on the principle that our review is not precluded when the .state court has failed to exercise discretion to disregard the procedural default. See Williams v. Georgia, 349 U. S. 375. We read the second Mississippi Süpreme Court opinion as holding that there is no such discretion where it appears that petitioner was represented by competent local counsel familiar with local procedure.

       Thus, consistently with the policy of avoiding premature decision oh the merits of-constitutional questions, we intimate no view whether the pertinent controlling federal standard governing the legality of a search'or seizure, see Ker v. California, 374 U. S. 23, is the same as the Mississippi standard applied here, which holds that the wife’s consent cannot validate a search as against her husband. Nor do we ride at this time on the question whether petitioner’s cross-examination of the officer, before, raising any objection, “cured” the effect of the inadmissible testimony; this Court has not yet ruled on the roíe • of' harmless error in search and seizure cases. Cf. Jackson v. Denno, 378 U. S. 368, 376. Of course, nothing occurring after the judge’s refusal to honor petitioner’s objection could have this curative effect.

       The state court’s holding that petitioner was estopped because his counsel brought up the question of the.car’s interior appearance on direct examination and cross-examination, see p. 446, supra, amounts to a holding that petitioner waived his federal right. In the absence of a showing that this was prompted by litigation strategy, the present record is insufficient to support such a holding. The cross-examination during the. State’s case, amounting to little more than a half-page in the printed record, adds little to petitioner’s failure to make contemporaneous objection. The evidence brought in on direct examination was only after petitioner had moved for a directed verdict, pointing to the illegal evidence. This would scarcely support a finding of waiver.

       Habeas corpus petitions filed by state prisoners in federal district courts increased from 1, 903 to 3, 531, or 85.5%, from the 1963 to the 1964 fiscal year. Annual Report of the Director, Administrative Office of the United States Courts, p. 46 (1964); our own Miscellaneous Docket, where cases of state prisoners are primarily fisted, continues to show substantial increases. The number has increased from 878 for the 1956 Term to 1, 532 for the 1963 Term.

       See Meador, Accommodating State Criminal Procedure and Federal Postconviction Review, 50 A. B. A. J. 928 (October 1964). And see Brennan, Some Aspects of Federalism, 39 N. Y. U. L. Rev. 945, 957-959 (1964).

       154 So. 2d 289, 296 (bound volume).

       I think that the very “evidence” cited ip the Court’s opinion points up the fact that there was no evidence from which it can be inferred that a conscious waiver was made. I cap find no support, ,as the Court does, from an affidavit filed for the first time as an appendix to -the State’s brief in this Court, stating that the district attorney who tried the case had seen one of petitioner’s counsel start to rise from his chair when the evidence from the search was introduced, but that another of petitioner’s counsel gave a “jerk on the coat tail” of the lawyer, “returning him to his seat.” It is hard for me to see how one could infer'from this “jerk on the coat tail” even a suspicion that petitioner had consciously and knowingly waived hi' right to object to the evidence offered against him.

       349 U. S., at 383 (footnote omitted).

       The attorneys for the State of Mississippi have no doubt that the State Supreme Court has this power. • When the case was argued before this Court,' the following exchange took place between a Justice and counsel for the. State:
      “Q. Does that mean there is a discretion in the [state] court where it can waive [a failure to object] if it sees fit under the-circumstances?
      “A. It did so in that case I’m talking about [Brooks v. State, infra in text] where in several respects the defendant’s rights were just completely trampled.
      “Q. It means that it’s not an absolutely rigid, unbreakable, irrevocable rule?
      “A. That’s right. That’s right, your honor.
      . “Q. And that the court can waive it if the circumstances in its judgment justify?
      “A. That’s correct.”

       The court, as a matter of state law, could have found (a) that there was sufficient corroborative evidence, (b) that none was necessary; or (c) that retrial was necessary to prevent defendants in erim-inal eases from hanging back until the completion of the State s case and then for the first time moving to strike a piece of evidence crucial to getting the case to the jury.
      The Court’s suggestion (ante, p. 449, n. 4) that we may proceed on the speculation that the Mississippi Supreme Court "overlooked”, the renewal of the motion for directed verdict made at the completion of the case hardly requires comment.

       Furthermore, even if counsel had fully elaborated the argument and had made it in the context of a motion to strike rather than a motion for directed verdict, the trial judge could properly have exercised his discretion (as the Mississippi Supreme Court did) and denied any relief. This power is recognized in trial judges in the federal system in order to prevent the “ambushing” of a trial through the withholding of "an objection that should have been made when questionable evidence was first introduced. Federalism is turned upside down if it is denied to judges in' the state systems. See Fed. Rules Crim. Proc. 41 (e) and 26; United States v. Milanovich, 303 F. 2d 626, cert. denied, 371 U. S. 876; Hollingsworth v. United States, 321 F. 2d 342, 350; Isaacs v. United States, 301 F. 2d 706, 734-735, cert. denied, 371 U. S. 818; United States v. Murray, 297 F. 2d 812, 818, cert. denied, 369 U. S. 828; Metcalf v. United States, 195 F. 2d 213, 216-217.

       As the first opinion by the Mississippi Supreme Court shows, there is discretion in certain circumstances to lower the procedural bar. It does not follow that this Court is completely free to exercise that discretion. Even in cases from lower federal courts we do so only if there has been an abuse. If, in order to insulate its decisions from reversal by this Court, a state court must strip itself of the discretionary power to differentiate between different sets of circumstances, the rule operates in a most pervérse way.