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

text:
    ENGLAND et al. v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS et al.
    No. 7.
    Argued October 15, 1963.
    Decided January 13, 1964.

      Bussell Morton Brown argued the cause for appellants. With him on the brief was J. Minos Simon.

      Robert E. LeCorgne, Jr. argued the cause for appellees. With him on the brief were St. Clair Adams, Jr. and Ashton Phelps.

   Mr. Justice Brennan

delivered the opinion of the Court.

Appellants are graduates of schools of chiropractic who seek to practice in Louisiana without complying with the educational requirements of the Louisiana Medical Practice Act, Title 37, La. Rev. Stat. §§ 1261-1290. They brought this action against respondent Louisiana State Board of Medical Examiners in the Federal District Court for the Eastern District of Louisiana, seeking an injunction and a declaration that, as applied to them, the Act violated the Fourteenth Amendment. A statutory three-judge court invoked, sua sponte, the doctrine of abstention, on the ground that “The state court might effectively end this controversy by a determination that chiropractors are not governed by the statute,” and entered an order “staying further proceedings in this Court until the courts of the State of Louisiana shall have been afforded an opportunity to determine the issues here presented, and retaining jurisdiction to take such steps as may be necessary for the just disposition of the litigation should anything prevent a prompt state court determination.” 180 F. Supp. 121, 124.

Appellants thereupon brought proceedings in the Louisiana courts. They did not restrict those proceedings to the question whether the Medical Practice Act applied to chiropractors. They unreservedly submitted for decision, and briefed and argued, their contention that the Act, if applicable to chiropractors, violated the Fourteenth Amendment. The state proceedings terminated with a decision by the Louisiana Supreme Court declining to review an intermediate appellate court’s holding both that the Medical Practice Act applied to chiropractors and that, as so applied, it did not violate the Fourteenth Amendment. 126 So. 2d 51.

Appellants then returned to the District Court, where they were met with a motion by appellees to dismiss the federal action. This motion was granted, on the ground that “since the courts of Louisiana have passed on all issues raised, including the claims of deprivation under the Federal Constitution, this court, having no power to review those proceedings, must dismiss the complaint. The proper remedy was by appeal to the Supreme Court of the United States.” The court saw the case as illustrating “the dilemma of a litigant who has invoked the jurisdiction of a federal court to assert a claimed constitutional right and finds himself remitted to the state tribunals.” The dilemma, said the court, was that “On the one hand, in view of Government & Civic Employees Organizing Committee v. Windsor, 353 U. S. 364, ... he dare not restrict his state court case to local law issues. On the other, if, as required by Windsor, he raises the federal questions there, well established principles will bar a relitigation of those issues in the United States District Court. . . . Since, in the usual case, no question not already passed on by the state courts will remain, he is thereby effectively deprived of a federal forum for the adjudication of his federal claims.” 194 F. Supp. 521, 522. Appellants appealed directly to this Court under 28 U. S. C. § 1253, and we noted probable jurisdiction. 372 U. S. 904. We reverse and remand to the District Court for decision on the merits of appellants’ Fourteenth Amendment claims.

There are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be' compelled, without his consent and through no fault of his own, to accept instead a state court’s determination of those claims. Such a result would be at war with the unqualified terms in which Congress, pursuant to constitutional authorization, has conferred specific categories of jurisdiction upon the federal courts, and with the principle that “When a Federal court is properly appealed to in a case over which it has by law-jurisdiction, it is its duty to take such jurisdiction .... The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.” Willcox v. Consolidated Gas Co., 212 U. S. 19, 40. Nor does anything in the abstention doctrine require or support such a result. Abstention is a judge-fashioned vehicle for according appropriate deference to the “respective competence of the state and federal court systems.” Louisiana P. & L. Co. v. Thibodaux, 360 U. S. 25, 29. Its recognition of the role of state courts as the final expositors of state law implies no disregard for the primacy of the federal judiciary in deciding questions of federal law. Accordingly, we have on several occasions explicitly recognized that abstention “does not, of course, involve the abdication of federal jurisdiction, but only the postponement of its exercise.” Harrison v. NAACP, 360 U. S. 167, 177; accord, Louisiana P. & L. Co. v. Thibodaux, supra, 360 U. S., at 29.

It is true that, after a post-abstention determination and rejection of his federal claims by the state courts, a litigant could seek direct review in this Court. NAACP v. Button, 371 U. S. 415; Lassiter v. Northampton County Board of Elections, 360 U. S. 45. But such review, even when available by appeal rather than only by discretionary writ of certiorari, is an inadequate substitute for the initial District Court determination — often by three judges, 28 U. S. C. § 2281 — to which the litigant is entitled in the federal courts. This is true as to issues of law; it is especially true as to issues of fact. Limiting the litigant to review here would deny him the benefit of a federal trial court’s role in constructing a record and making fact findings. How the facts are found will often dictate the decision of federal claims. “It is the typical, not the rare, case in which constitutional claims turn upon the resolution of contested factual issues.” Townsend v. Sain, 372 U. S. 293, 312. “There is always in litigation a margin of error, representing error in factfind-ing ....” Speiser v. Randall, 357 U. S. 513, 525. Thus in cases where, but for the application of the abstention doctrine, the primary fact determination would have been by the District Court, a litigant may not be unwillingly deprived of that determination. The possibility of appellate review by this Court of a state court determination may not be substituted, against a party’s wishes, for his right to litigate his federal claims fully in the federal courts. We made this clear only last Term in NAACP v. Button, supra, 371 U. S., at 427, when we said that “a party has the right to return to the District Court, after obtaining the authoritative state court construction for which the court abstained, for a final determination of his claim.”

We also made clear in Button, however, that a party may elect to forgo that right. Our holding in that case was that a judgment of the Virginia Supreme Court of Appeals upon federal issues submitted to the state tribunals by parties remitted there under the abstention doctrine was “final” for purposes of our review under 28 U. S. C. § 1257. In so determining, we held that the petitioner had elected “to seek a complete and final adjudication of [its] rights in the state courts” and thus not to return to the District Court, and that it had manifested this election “by seeking from the Richmond Circuit Court ‘a binding adjudication’ of all its claims and a permanent injunction as well as declaratory relief, by making no reservation to the disposition of the entire case by the state courts, and by coming here directly on certio-rari.” 371 U. S., at 427-428. We fashioned the rule recognizing such an election because we saw no inconsistency with the abstention doctrine in allowing a litigant to decide, once the federal court has abstained and compelled him to proceed in the state courts in any event, to abandon his original choice of a federal forum and submit his entire case to the state courts, relying on the opportunity to come here directly if the state decision on his federal claims should go against him. Such a choice by a litigant serves to avoid much of the delay and expense to which application of the abstention doctrine inevitably gives rise; when the choice is voluntarily made, we see no reason why it should not be given effect.

In Button, we had no need to determine what steps, if any, short of those taken by the petitioner there would suffice to manifest the election. The instant case, where appellants did not attempt to come directly to this Court but sought to return to the District Court, requires such a determination. The line drawn should be bright and clear, so that litigants shunted from federal to state courts by application of the abstention doctrine will not be exposed, not only to unusual expense and delay, but also to procedural traps operating to deprive them of their right to a District Court determination of their federal claims. It might be argued that nothing short of what was done in Button should suffice — that a litigant should retain the right to return to the District Court unless he not only litigates his federal claims in the state tribunals but seeks review of the state decision in this Court. But we see no reason why a party, after unreservedly litigating his federal claims in the state courts although not required to do so, should be allowed to ignore the adverse state decision and start all over again in the District Court. Such a rule would not only countenance an unnecessary increase in the length and cost of the litigation; it would also be a potential source of friction between the state and federal judiciaries. We implicitly rejected such a rule in Button, when we stated that a party elects to forgo his right to return to the District Court by a decision “to seek a complete and final adjudication of his rights in the state courts.” We now explicitly hold that if a party freely and without reservation submits his federal claims for decision by the state courts, litigates them there, and has them decided there, then — whether or not he seeks direct review of the state decision in this Court — he has elected to forgo his right to return to the District Court.

This rule requires clarification of our decision in Government Employees v. Windsor, 353 U. S. 364, the case referred to by the District Court. The plaintiffs in Windsor had submitted to the state courts only the question whether the state statute they challenged applied to them, and had not “advanced” or “presented” to those courts their contentions against the statute’s constitutionality. We held that “the bare adjudication by the Alabama Supreme Court that the [appellant] union is subject to this Act does not suffice, since that court was not asked to interpret the statute in light of the constitutional objections presented to the District Court. If appellants’ freedom-of-expression and equal-protection arguments had been presented to the state court, it might have construed the statute in a different manner.” 353 U. S., at 366. On oral argument in the instant case, we were advised that appellants’ submission of their federal claims to the state ¡courts had been motivated primarily by a belief that Windsor required this. The District Court likewise thought that under Windsor a party is required to litigate his federal question in the state courts and “dare not restrict his state court case to local law issues.” 194 F. Supp., at 522. Others have read Windsor the same way. It should not be so read. The case does not mean that a party must litigate his federal claims in the state courts, but only that he must inform those courts what his federal claims are, so that the state statute may be construed “in light of” those claims. See Note, 73 Harv. L. Rev. 1358, 1364-1365 (1960). Thus mere compliance with Windsor will not support a conclusion, much less create a presumption, that a litigant has freely and without reservation litigated his federal claims in the state courts and so elected not to return to the District Court.

We recognize that in the heat of litigation a party may find it difficult to avoid doing more than is required by Windsor. This would be particularly true in the typical case, such as the instant one, where the state courts are asked to construe a state statute against the backdrop of a federal constitutional challenge. The litigant denying the statute’s applicability may be led not merely to state his federal constitutional claim but to argue it, for if he can persuade the state court that application of the statute to him would offend the Federal Constitution, he will ordinarily have persuaded it that the statute should not be construed as applicable to him. In addition, the parties cannot prevent the state court from rendering a decision on the federal question if it chooses to do so; and even if such a decision is not explicit, a holding that the statute is applicable may arguably imply, in view of the constitutional objections to such a construction, that the court considers the constitutional challenge to be without merit.

Despite these uncertainties arising from application of Windsor — which decision, we repeat, does not require that federal claims be actually litigated in the state courts — a party may readily forestall any conclusion that he has elected not to return to the District Court. He may accomplish this by making on the state record the “reservation to the disposition of the entire case by the state courts” that we referred to in Button. That is, he may inform the state courts that he is exposing his federal claims there only for the purpose of complying with Windsor, and that he intends, should the state courts hold against him on the question of state law, to return to the District Court for disposition of his federal contentions. Such an explicit reservation is not indispensable; the litigant is in no event to be denied his right to return to the District Court unless it clearly appears that he voluntarily did more than Windsor required and fully litigated his federal claims in the state courts. When the reservation has been made, however, his right to return will in all events be preserved.

On the record in the instant case, the rule we announce today would call for affirmance of the District Court’s judgment. But we are unwilling to apply the rule against these appellants. As we have noted, their primary reason for litigating their federal claims in the state courts was assertedly a view that Windsor required them to do so. That view was mistaken, and will not avail other litigants who rely upon it after today’s decision. But we cannot say, in the face of the support given the view by respectable authorities, including the court below, that appellants were unreasonable in holding it or acting upon it. We therefore hold that the District Court should not have dismissed their action. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Douglas,

concurring.

The judge-made rule we announce today promises to have such a serious impact on litigants who are properly in the federal courts that I think a reappraisal of Railroad Comm’n v. Pullman Co., 312 U. S. 496, from which today’s decision stems, is necessary. Although the propriety of the Pullman doctrine, either as originally decided or as it has evolved, has not been raised by the parties, I think it is time for the Court, sua sponte, to reevaluate it.

I.

The Pullman case, decided a little over 20 years ago, launched an experiment in the management of federal-state relations that has inappropriately been called the “abstention doctrine.” There are numerous occasions when a federal court abstains, dismissing an action or declining to entertain it because a state tribunal is a more appropriate one for resolving the controversy. A bankruptcy court commonly sends its trustee into state courts to have complex questions of local law adjudicated. Thompson v. Magnolia Co., 309 U. S. 478. A federal court refuses to exercise its equity powers by appointing receivers to take charge of a failing business, where state procedures afford adequate protection to all private rights. Pennsylvania v. Williams, 294 U. S. 176. A federal court will normally not entertain a suit to enjoin criminal prosecutions in state tribunals, with review of such convictions by this Court being restricted to constitutional issues. Beal v. Missouri Pac. R. Co., 312 U. S. 45. A federal court declines to entertain an action for declaratory relief against state taxes because of the federal policy against interfering with them by injunction. Great Lakes Co. v. Huffman, 319 U. S. 293. Where state administrative action is challenged, a federal court will normally not intervene where there is an adequate state court review which is protective of any federal constitutional claim. Burford v. Sun Oil Co., 319 U. S. 315; Alabama Comm’n v. Southern R. Co., 341 U. S. 341. The examples could be multiplied where the federal court adopts a hands-off policy and remits the litigants to a state tribunal.

Railroad Comm’n v. Pullman Co., supra, is a different kind of case. There the federal court does not abstain; it does not dismiss the complaint; it retains jurisdiction while the parties go to a state tribunal to obtain a preliminary ruling — a declaratory judgment — on state law questions. The reason for requiring them to repair to the state tribunal for a preliminary ruling on a question of state law is because the state law is challenged on federal constitutional grounds; if the state law is construed one way, the constitutional issue may disappear; the federal constitutional question will survive only if one of two or more state-law constructions is adopted. The “last word” as to the meaning of local law “belongs neither to us nor to the district court but to the supreme court of Texas,” we said in the Pullman case, 312 U. S., at 500. We concluded:

“In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication. Glenn v. Field Packing Co., 290 U. S. 177; Lee v. Bickell, 292 U. S. 415. The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court. The resources of equity are equal to an adjustment that will avoid the waste of a tentative decision as well as the friction of a premature constitutional adjudication.” Ibid.

We therefore remanded the case “with directions to retain the bill pending a determination of proceedings, to be brought with reasonable promptness, in the state court in conformity with this opinion.” Id., at 501-502.

II.

I was a member of the Court that launched Pullman and sent it on its way. But if I had realized the creature it was to become, my doubts would have been far deeper than they were.

Pullman from the start seemed to have some qualities of a legal research luxury. As I said in Clay v. Sun Ins. Office, 363 U. S. 207, 228 (dissenting opinion):

“Some litigants have long purses. Many, however, can hardly afford one lawsuit, let alone, two. Shuttling the parties between state and federal tribunals is a sure way of defeating the ends of justice. The pursuit of justice is not an academic exercise. There are no foundations to finance the resolution of nice state law questions involved in federal court litigation. The parties are entitled — absent unique and rare situations — to adjudication of their rights in the tribunals which Congress has empowered to act.”

As recently stated by the late Judge Charles E. Clark of the Second Circuit Court of Appeals, “As a result of this doctrine, individual litigants have been shuffled back and forth between state and federal courts, and cases have been dragged out over eight- and ten-year periods.” Federal Procedural Reform and States’ Rights, 40 Tex. L. Rev. 211, 221 (1961).

Professor Charles A. Wright described the results that occurred when this doctrine was applied to a suit to enjoin the enforcement of a state statute restricting the rights of state employees to join unions: “. . . after five years of litigation, including two trips to the Supreme Court of the United States and two to the highest state court, the parties still had failed to obtain a decision on the merits of the statute.” The Abstention Doctrine Reconsidered, 37 Tex. L. Rev. 815, 818 (1959).

This case raises a question so simple that it at least verges on the insubstantial. The question is whether Louisiana’s Medical Practice Act, La. Rev. Stat., § 37:1261 et seg. includes chiropractors as practitioners of medicine. The State Board of Medical Examiners, representing the State, says that they are included. The chiropractors say they are not and, if they are, that the Act is unconstitutional. The case was started in May 1957, and here we are nearly seven years later without a decision on the merits.

That seems like an unnecessary price to pay for our federalism. Referral to state courts for declaratory rulings on state law questions is said to encourage a smooth operation of our federalism, as it may avoid clashes between the two systems. But there always have been clashes and always will be; and the influence of the Pullman doctrine has, I think, been de minimis. Moreover, the complexity of local law to federal judges is inherent in the federal court system as designed by Congress. Resolution of local law questions is implicit in diversity of citizenship jurisdiction. Since Erie R. Co. v. Tompkins, 304 U. S. 64, the federal courts under that head of jurisdiction daily have the task of determining what the state law is. The fact that those questions are complex and difficult is no excuse for a refusal by the District Court to entertain the suit. Meredith v. Winter Haven, 320 U. S. 228. We there said:

“The diversity jurisdiction was not conferred for the benefit of the federal courts or to serve their convenience. Its purpose was generally to afford to suitors an opportunity in such cases, at their option, to assert their rights in the federal rather than in the state courts.” Id,., at 234. And see Allegheny County v. Mashuda Co., 360 U. S. 185, 196.

The question now presented is how and when one who asserts his “option” to sue in “the federal rather than in the state courts,” but who is remitted to the state court for a preliminary ruling, loses his right to return to the federal court for a final adjudication on the constitutional issues.

In Propper v. Clark, 337 U. S. 472, 491, we said that if, on referral of a discrete issue to the state courts, the latter required “complete adjudication of the controversy, the District Court would perhaps be compelled to stay proceedings in the state court to protect its own jurisdiction.” We went on to say, “Otherwise, in sending a fragment of the litigation to a state court, the federal court might find itself blocked by res judicata, with the result that the entire federal controversy would be ousted from the federal courts, where it was placed by Congress.” Id., at 491-492.

Today we put federal jurisdiction in jeopardy. As the Court says there are many advantages in a federally constructed record. Moreover, federal judges appointed for life are more likely to enforce the constitutional rights of unpopular minorities than elected state judges. Madison stated the problem when the creation of lower federal courts was being mooted:

“What was to be done after improper verdicts, in state tribunals, obtained under the biased directions of a dependent judge, or the local prejudices of an undirected jury? To remand the cause for a new trial would answer no purpose. To order a new trial at the supreme bar would oblige the parties to bring up their witnesses, though ever so distant from the seat of the court. An effective judiciary establishment, commensurate to the legislative authority, was essential. A government without a proper executive and judiciary would be the mere trunk of a body, without arms or legs to act or move.” 5 Elliot’s Debates (Lipp. ed. 1941), p. 159.

Federal judges have come in for a share of criticism in this regard, the charge at times being that on racial issues they have too often “suffered the federal law to be flouted.” Lusky, Racial Discrimination and the Federal Law, 63 Col. L. Rev. 1163, 1179 (1963). That at times may be the case. But from this vantage point their devotion to the rule of law over-all seems outstanding. We stand to let federal courts lose their command over critical litigation by what we do today. The Court holds that, though the litigant goes to the state court involuntarily, he loses his right to return to the federal court if he submits the local law question and the constitutional questions to the state tribunal without reserving his right to return to the federal forum for a final adjudication. It will often be necessary to submit the local law question in light of the constitutional questions. Indeed it will be prudent to do so in light of Government Employees v. Windsor, supra, where we'ruled, “The bare adjudication by the Alabama Supreme Court that the union is subject to this Act does not suffice, since that court was not asked to interpret the statute in light of the constitutional objections presented to the District Court.” 353 U. S., at 366.

Yet we now hold that if a party, who is sent by the federal court to the state courts for a preliminary ruling, submits the whole problem to those courts — that is, the constitutional as well as the bare bones of the state law question — he is presumed to have elected to try his case there rather than in the federal courts, unless he expressly reserved the right to return to the federal tribunal. Perhaps the Court does that to avoid the consequences of res judicata. But res judicata is not a constitutional principle; it has no higher dignity than the principle we announce today. In Propper v. Clark, supra, we said that to avoid res judicata the District Court should stay the state proceedings. Better that we approve that judge-made procedure than to overlay the treacherous requirement of the Pullman case with this new judge-made requirement.

What we do today makes the Pullman case something of a Frankenstein. Any presumption should work the other way — that he who is required to go to the state courts and does what we require him to do when he gets there, is not there voluntarily and does not forsake his federal suit, unless he does something in the state courts that he is not required to do and that evinces an election to litigate the matter finally and not preliminarily in the state courts.

As, if, and when he exhausts the state procedure and decides to come here, as was done in NAACP v. Button, 371 U. S. 415, he has elected to abandon the federal for the state forum. Id., at 428. But short of that, he seldom can be said to have made,such an election. For when he pursues the matter through the hierarchy of the state courts, he is doing only what he is required to do. The only time when he goes beyond that requirement is when he takes the fork in the road leading here rather than the one to the District Court.

III.

If the Pullman doctrine is to be preserved, we should lighten rather than make more ponderous the procedures which we have been imposing. We have made Pullman mandatory, not discretionary, with the District Courts. As stated in Louisiana P. & L. Co. v. Thibodaux, 360 U. S. 25, 28, “. . . we have required District Courts, and not merely sanctioned an exercise of their discretionary power, to stay their proceedings pending the submission of the state law question to state determination.” So, no matter the ease with which the whole controversy can be resolved, parties are sent their weary and expensive way into the state tribunals. Whether or not we agree with Mr. Justice Black that the present case involves no substantial federal question, it certainly borders on the insubstantial; and a District Court, if it has that view of a case, should be allowed in its discretion to decide the whole case at once, avoiding the state litigation completely — free of interference here or in the Court of Appeals.

We have, moreover, extended the Pullman doctrine, contrary to our prior decision in Propper v. Clark, supra, at 491-492, to cases that involve no shadow of a substantial constitutional issue but only local law questions in the field of eminent domain. Louisiana P. & L. Co. v. Thibodaux, supra. As my Brother Brennan said in dissent in that case:

“. . . the Court attempts to carve out a new area in which, even though an adjudication by the federal court would not require the decision of federal constitutional questions, nor create friction with the State, the federal courts are encouraged to abnegate their responsibilities in diversity cases.” 360 U. S., at 36-37.

Thus the Pullman doctrine reflects an antipathy to federal courts passing on state law questions.

IV.

There have been historic clashes between the federal courts and the States, some of them needless. See Warren, Federal and State Court Interference, 43 Harv. L. Rev. 345 (1930). The examples are numerous. Thus federal courts, free and easy with injunctions, interfered wholesale with public utility rate orders, with efforts of the States to collect their revenue, and with suits in state courts. Prior to Erie R. Co. v. Tompkins, supra, the “mischievous results” (304 U. S., at 74) of the earlier rule of Swift v. Tyson, 16 Pet. 1, were apparent, federal courts by their formulation of “general law” often defeating legitimate state policies. 304 U. S., at 73-78. Federal courts, inflating the Due Process Clause of the Fourteenth Amendment, became a sort of super-legislature, reviewing the wisdom of a wide variety of state law. See, e. g., Lochner v. New York, 198 U. S. 45; Burns Baking Co. v. Bryan, 264 U. S. 504.

Those chapters have ended, sometimes as a result of judicial housekeeping, at other times as a consequence of federal legislation. What mostly remain are clashes and conflicts between State and Nation inherent in the performance of the functions of a referee in the federal system. Such was the unavoidable consequence of the effort of the Marshall Court, beginning at least with Gibbons v. Ogden, 9 Wheat. 1, to create a great common market within the grand design of the Commerce Clause. Such is the unavoidable consequence today when Negroes claim the full benefits of the Fourteenth (see Brown v. Board of Education, 347 U. S. 483; 349 U. S. 294), and Fifteenth Amendments. See Alabama v. United States, 304 F. 2d 583, aff’d 371 U. S. 37; United States v. Raines, 362 U. S. 17; United States v. McElveen, 180 F. Supp. 10, aff’d sub nom. United States v. Thomas, 362 U. S. 58.

If we are to retain the Pullman doctrine, I think with all deference, we should make it less of a mandatory and more a discretionary procedure and lighten its requirements, rather than make them stricter.

We should permit the District Court to refer the matter to the state court for a declaratory judgment only where the State offers such relief. Otherwise, we should require that the litigation be conducted in the federal court where Congress decided it could be conducted. In any event we should leave it to the District Court to refuse to refer the matter to the state courts, if, as here, there is no local law question tangled in a maze of state statutes and state decisions.

If we are to retain the Pullman doctrine, we should not weight it down by procedures, which, like today’s decision, make it a trap for the unwary.

The Pullman doctrine, as it has evolved, is the least desirable alternative. It is better, I think, for the federal courts to decide local law questions, as they customarily do in the diversity cases, adding at the foot of the decree as Mr. Justice Cardozo, writing for a unanimous Court, did in Lee v. Bickell, 292 U. S. 415, 426:

. . that the parties to the suit or any of them may apply at any time to the court below, by bill or otherwise, as they may be advised, for a further order or decree, in case it shall appear that the statute has been then construed by the highest court of Florida as applicable to the transactions in controversy here.”

Another alternative is for the District Court to follow the certificate route, when one is available. The Florida Supreme Court is authorized to provide by Rule for answering certificates concerning state law questions tendered by the federal courts. We use that procedure on Florida state law perplexities (Dresner v. Tallahassee, 375 U. S. 136; Aldrich v. Aldrich, 375 U. S. 75, 249). We cannot require the States to provide such a procedure; but by asserting the independence of the federal courts and insisting on prompt adjudications we will encourage its use.

Y.

After today’s decision, application of the Pullman doctrine to the field of civil rights, particularly to controversies involving the rights of Negroes, will have, I think, serious effects. Harrison v. NAACP, 360 U. S. 167, and NAACP v. Button, supra, are harbingers of things to come. The complaint in those cases was filed November 28,1956, and our decision on the merits was not announced until January 14, 1963. In other words, nearly seven years elapsed between the institution of the litigation and an adjudication on the merits. The end product could still be described as a sizable collision between Nation and State.

Cases where Negroes are prosecuted and convicted in state courts can find their way expeditiously to this Court, provided they present constitutional questions. Yet instances where Negroes assert their rights in judicial proceedings will continue to be numerous. Those suits will be civil ones and almost always instituted in the Federal District Courts, since those courts have a special competence in the field and a record of independence protective of the rights of unpopular minorities. That litigation more often than not entails construction of state statutes, city ordinances, state court decisions, rulings of state administrative commissions, and the like. Under the Pullman doctrine a Negro who starts in the federal court soon finds himself in the state court and his journey there may be not only weary and expensive but also long and drawn out. There will be no inclination to expedite his case. The whole weight of the status quo will be on the side of delay and procrastination. What we do today adds to the toll that the Pullman doctrine will take of civil rights.

The Bar is now told that if one repairs to the state courts and submits the state law question along with the federal constitutional questions, he will be presumed to have elected to pursue the state remedy, unless he makes clear a purpose to return to the federal court when the state court has made its ruling. I gather that, without that reservation, the record will be taken to mean that “he voluntarily litigated his federal claims in the state courts.” Or, if he forgets or fails to make such a reservation, he can still preserve his right to return to the federal court by doing what the Court now says is required of him by Windsor. For he is told today that instead of submitting his federal claims to be “litigated,” he may submit his state law questions only for consideration “in light of” the federal questions. Those who read this opinion may have adequate warning. But this opinion, like most, will become an obscure one — little known to the Bar. Lawyers do not keep up with all the nuances of court opinions, especially those touching on as exotic a rule of federal procedure as the one which we evolve today. I fear therefore that the rule we announce today will be a veritable trap.

The Court recognizes the value to the litigants of being in the federal court. As it says, “the benefit of a federal trial court’s role in constructing a record and making fact findings” is considerable. Ante, at 416. A litigant trapped in state court proceedings may find himself veritably encased by findings of fact which no appellate court may disturb. The value of the independence of federal judges, and the value of an escape from local prejudices when fact findings are made are considerable ones. Yet under the rule we announce today, those values promise to be lost in important areas of civil rights.

I mention the time element as one of the evils spun by the Pullman doctrine. Time has a particularly noxious effect on explosive civil rights questions, where the problem only festers as grievances pile high and the law takes its slow, expensive pace to decide in years what should be decided promptly.

The late Judge Charles E. Clark made an apt and pertinent observation on the impact of the Pullman doctrine. At times, he said, “the upshot inevitably seems to be a negative decision or, in plain language, a defendant’s judgment.” Delay which the Pullman doctrine sponsors, keeps the status quo entrenched and renders “a defendant’s judgment” even in the face of constitutional requirements. These evils are all compounded by what we do today, making it likely that litigants seeking the protection of the federal courts for assertion of their civil rights will be ground down slowly by the passage of time and the expenditure of money in state proceedings, leaving the ultimate remedy here, at least in many cases, an illusory one.

Mr. Justice Black,

concurring in part and dissenting in part.

I join in the judgment and in the opinion insofar as the Court holds that the District Court erred in the reasons it gave for dismissing appellants’ action. I am of the opinion, however, that the dismissal should be affirmed on the grounds relied upon by Judge J. Skelly Wright sitting alone in the District Court when the action first was brought: that the complaint failed to state a substantial federal question warranting exercise of jurisdiction. See Hitchcock v. Collenberg, 140 F. Supp. 894 (D. C. D. Md.), aff’d, 353 U. S. 919; cf. Ex parte Poresky, 290 U. S. 30. Compare Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, 111 So. 58, aff’d, 274 U. S. 720; Dent v. West Virginia, 129 U. S. 114. See also Judge Wisdom’s opinions dissenting from reversal of Judge Wright’s ruling, 259 F. 2d 626, 627 (C. A. 5th Cir.), and 263 F. 2d 661, 674 (C. A. 5th Cir.). Although a petition for certiorari to review the decision of the Fifth Circuit was denied, 359 U. S. 1012, issues raised at that stage of the litigation which remain dispositive of the case are properly before us. Urie v. Thompson, 337 U. S. 163.

       The action was brought in 1957. The District Court initially dismissed the complaint on the authority of Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, 111 So. 58, aff’d per curiam, 274 U. S. 720. The Court of Appeals for the Fifth Circuit reversed, 259 F. 2d 626, on petition for rehearing, 263 F. 2d 661. We denied certiorari, 359 U. S. 1012. On remand the three-judge District Court was convened.

       Appellants did not challenge the order of abstention by appeal here. See Turner v. City of Memphis, 369 U. S. 350; 28 U. S. C. § 1253. Nor do they now challenge it. Thus there is not before us any question as to either the proper scope of the abstention doctrine or the propriety of its application to this case.

       Appellants’ petition in the Louisiana trial court appended a copy of the abstention order and opinion and recited that the state proceeding was brought “in pursuance of and obedience to” the abstention order. Like the complaint filed in the federal court, the petition sought both declaratory and injunctive relief. The allegations were that the Medical Practice Act was inapplicable to chiropractors and also “In the alternative, in the event the court should hold that the Medical Practice Act does apply to your plaintiffs . . . said Act is unconstitutional” because in violation of the Fourteenth Amendment. The petition challenged the statute’s validity under that Amendment in terms substantially identical to those in the federal court complaint. The trial court, on the basis of the same documentary evidence that had been submitted to the three-judge District Court, sustained appellees’ defense of “no cause of action.”

       Appellants made no attempt to obtain appellate review of the state court decision in this Court. See Lassiter v. Northampton County Board of Elections, 360 U. S. 45; NAACP v. Button, 371 U. S. 415; 28 U. S. C. § 1257 (2).

       At least this is true in a ease, like the instant one, not involving the possibility of unwarranted disruption of a state administrative process. Compare Burford v. Sun Oil Co., 319 U. S. 315; Alabama Public Service Comm’n v. Southern R. Co., 341 U. S. 341.

       See Kurland, Toward a Co-operative Judicial Federalism: The Federal Court Abstention Doctrine, 24 F. R. D. 481, 487.

       The doctrine contemplates only “that controversies involving unsettled questions of state law [may] be decided in the state tribunals preliminary to a federal court’s consideration of the underlying federal constitutional questions,” City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639, 640; “that decision of the federal question be deferred until the potentially controlling state-law issue is authoritatively put to rest,” United Gas Pipe Line Co. v. Ideal Cement Co., 369 U. S. 134, 135-136; “that federal courts do not decide questions of constitutionality on the basis of preliminary guesses regarding local law,” Spector Motor Service, Inc., v. McLaughlin, 323 U. S. 101, 105; “that these enactments should be exposed to state construction or limiting interpretation before the federal courts are asked to decide upon their constitutionality,” Harrison v. NAACP, 360 U. S. 167, 178.

       Even where fact findings on federal constitutional contentions are for state tribunals to make in the first instance, as in state criminal prosecutions, they are not immune, when brought into question in federal habeas corpus, from District Court consideration and, in proper cases, from de novo consideration. Townsend v. Sain, 372 U. S. 293, 312-319.

       Cf. Wright, The Abstention Doctrine Reconsidered, 37 Tex. L. Rev. 815, 825 (1959).

       One case has even permitted the litigant to return to the District Court although review was sought and denied here. See Tribune

        Review Publishing Co. v. Thomas, 153 F. Supp. 486, aff’d, 254 F. 2d 883, where the litigant’s federal claims were decided by the District Court following decision upon the same claims by the Pennsylvania Supreme Court and denial by us of certiorari to that court’s judgment. Mack v. Pennsylvania, 386 Pa. 251,126 A. 2d 679, cert. denied, 352 U. S. 1002.

       See Note, 59 Col. L. Rev. 749, 773 (1959); Note, 73 Harv. L. Rev. 1358, 1364 (1960), quoting brief for appellant, p. 5, in Lassiter v. Northampton County Board of Elections, 360 U. S. 45.

       It has been suggested that state courts may “take no more pleasure than do federal courts in deciding cases piecemeal . . .” and “probably prefer to determine their questions of law with complete records of cases in which they can enter final judgments before them.” Clay v. Sun Ins. Office, 363 U. S. 207, 227 (dissenting opinion). We are confident that state courts, sharing the abstention doctrine’s purpose of “furthering the harmonious relation between state and federal authority,” Railroad Comm’n v. Pullman Co., 312 U. S. 496, 501, will respect a litigant’s reservation of his federal claims for deci- . sion by the federal courts. See Spector Motor Service, Inc., v. Walsh,
        135 Conn. 37, 40-41, 61 A. 2d 89, 92. However, evidence that a party has been compelled by the state courts to litigate his federal claims there will of course preclude a finding that he has voluntarily done so. And if the state court has declined to decide the state question because of the litigant’s refusal to submit without reservation the federal question as well, the District Court will have no alternative but to vacate its order of abstention.

       The reservation may be made by any party to the litigation. Usually the plaintiff will have made the original choice to litigate in the federal court, but the defendant also, by virtue of the removal jurisdiction, 28 U. S. C. § 1441 (b), has a right to litigate the federal question there. Once issue has been joined in the federal court, no party is entitled to insist, over another’s objection, upon a binding state court determination of the federal question. Thus, while a plaintiff who unreservedly litigates his federal claims in the state courts may thereby elect to 'forgo his own right to return to the District Court, he cannot impair the corresponding right of the defendant. The latter may protect his right by either declining to oppose the plaintiff’s federal claim in the state court or opposing it with the appropriate reservation. It may well be, of course, that a refusal to litigate or a reservation by any party will deter the state court from deciding the federal question.

       The District Court’s abstention order, in instructing appellants to obtain a state court determination not of the state question alone but of “the issues here presented,” was also misleading.

        Government Employees v. Windsor, 353 U. S. 364.

       Some federal courts have used the doctrine to shuttle over to state courts cases properly in the federal court yet not involving constitutional issues dependent on the meaning of state law (see Mottolese v. Kaufman, 176 F. 2d 301; Beiersdorf & Co. v. McGohey, 187 F. 2d 14) — decisions which baldly deny a suitor the remedy granted by Congress because it is not convenient to the district judge to decide the case.

       See S. Rep. No. 701, 72d Cong., 1st Sess., pp. 2-4; H. R. Rep. No. 1194, 73d Cong., 2d Sess., pp. 2-3; S. Rep. No. 125, 73d Cong., 1st Sess., pp. 3-9 on the Johnson Act of 1934, 28 U. S. C. § 1342.

       See S. Rep. No. 1035, 75th Cong., 1st Sess., p. 2, on the Tax Injunction Act of 1937. 28 U. S. C. § 1341.

       See Toucey v. New York Life Ins. Co., 314 U. S. 118; 28 U. S. C. § 2283. '

       See, e. g., Day-Brite Lighting, Inc., v. Missouri, 342 U. S. 421; Giboney v. Empire Storage Co., 336 U. S. 490; Ferguson v. Skrupa, 372 U. S. 726.

       See notes 3, 4, and 5, supra.

       Thirty-six States, plus Puerto Rico and the Virgin Islands, have adopted the Uniform Declaratory Judgments Act. See 9A Uniform L. Ann. (1962 Cum. Ann. Pt.), p. 9. Other States have special declaratory judgment statutes restricted to a litigation of a specified issue or issues. See I Anderson, Actions for Declaratory Judgments (1959 Supp.), §6.
      In Meridian v. Southern Bell T. & T. Co., 358 U. S. 639, in which the District Court was ordered to stay its hand while the parties repaired to the state court, the State involved, Mississippi, lacked a declaratory judgment procedure. See IV Martindale-Hubbell (1963), p. 979. A state court determination was obtained only when the parties switched roles, with the city — a defendant in the federal court declaratory judgment action — suing the telephone company for noncompliance with the law originally challenged as unconstitutional. The state action was resolved in the telephone company’s favor. Southern Bell T. & T. Co. v. Meridian, 241 Miss. 678, 131 So. 2d 666.

       Fla. Stat. Ann., 1955, §25.031, provides:
      “The supreme court of this state may, by rule of court, provide that, when it shall appear to the supreme court of the United States, to any circuit court of appeals of the United States, or to the court of appeals of the District of Columbia, that there are involved in any proceeding before it questions or propositions of the laws of this state, which are determinative of the said cause, and there are no clear controlling precedents in the decisions of the supreme court of this state, such federal appellate court may certify such questions or propositions of the laws of this state to the supreme court of this state for instructions concerning such questions or propositions of state law, which certificate the supreme court of this state, by written opinion, may answer.”
      See Kurland, Toward A Co-operative Judicial Federalism, 24 F. R. D. 481, 489-490 (1959); Note, 73 Harv. L. Rev. 1358, 1368 (1960).

       Rule 4.61 of the Florida Appellate Rules provides:
      “When it shall appear to the Supreme Court of the United States, or to any of the Courts of Appeal of the United States that there are involved in any proceeding before it questions or propositions of law of this state which are determinative of said cause and that there are no clear controlling precedents in the decisions of the Supreme Court of this state, such federal appellate court may certify such questions or propositions of law of this state to the Supreme Court of Florida for instructions concerning such questions or propositions of state law.”

       As respects certificates from state courts on cases coming here, see Herb v. Pitcairn, 324 U. S. 117, 325 U. S. 77; King v. Order of Travelers, 333 U. S. 153, 160; Hart and Wechsler, The Federal Courts and the Federal System (1953), pp. 444r-446.

         Clark, The Limits of Judicial Objectivity, 12 Am. II. L. Rev. 1, 5 (1963).

       See Wechsler, Federal Jurisdiction'and the Revision of the Judicial Code, 13 L. & Cont. Problems, 216, 229-230 (1948) discussing a proposed codification of the Pullman doctrine whereby the federal court would retain jurisdiction only in limited situations:
      “These observations call for qualification in one instance: the rights of action specially conferred by Congress in the Civil Rights Laws. There Congress has declared the historic judgment that within this precious area, often calling for a trial by jury, there is to be no slightest risk of nullification by state process. The danger is unhappily not past. It would be moving in the wrong direction to reduce the jurisdiction in this field — not because the interest of the state is smaller in such cases, but because its interest is outweighed by other factors of the highest national concern. Needless to say, to formulate the scope of the exception is no drafting problem; its measure is the rights of action given by the Civil Rights Laws.” Id., at 230.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    BRAZOSPORT SAVINGS & LOAN ASSOCIATION et al. v. PHILLIPS et al.
    No. 565.
    Decided January 13, 1964.

      John J. McKay for appellants.

      Waggoner Carr, Attorney General of Texas, Joe R. Long and Howard W. Mays, Assistant Attorneys General, Edward Clark and Martin Harris for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    STICKLER v. OHIO.
    No. 601.
    Decided January 13, 1964.

      Jack G. Day for appellant.

      Fred Cartolano for appellee.
   Per Curiam.

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


text:
    BLAIKIE v. POWER et al., CONSTITUTING BOARD OF ELECTIONS, CITY OF NEW YORK, et al.
    No. 617.
    Decided January 13, 1964.

      Harry H. Lipsig for appellant.

      Leo A. Larkin, Seymour B. Quel and Joel L. Cohen for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    PENNINGTON et al. v. CITY OF CORPUS CHRISTI et al.
    No. 621.
    Decided January 13, 1964.

      Sidney P. Chandler for appellants.

      I. M. Singer for appellees.
   Per Curiam.

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


author: Mr. Justice Clark

text:
    REISMAN et al., doing business as TRAMMELL, RAND & NATHAN, v. CAPLIN et al.
    No. 119.
    Argued December 12, 1963.
    —Decided January 20, 1964.

      Warren E. Magee argued the cause for petitioners. With him on the briefs was Hans A. Nathan.

      Assistant Attorney General Oberdorfer argued the cause for respondents. With him on the brief for respondent Caplin were Solicitor General Cox, Stephen J. Poliak, Joseph M. Howard and Norman Sepenuk.

   Mr. Justice Clark

delivered the opinion of the Court.

Petitioners, attorneys for taxpayers Martin J. and Allyn Bromley, seek declaratory and injunctive relief against respondent Caplin, the Internal Revenue Commissioner, and the accounting firm of Peat, Marwick, Mitchell & Co., which at the instance of petitioners has been working on the financial records of the Bromleys. Petitioners claim as null and void summonses issued by the Commissioner, under § 7602 of the Internal Revenue Code of 1954, to Peat, Marwick, Mitchell & Co., directing the production of “all audit reports, work papers and correspondence” in that firm’s custody pertaining to Mr. Bromley and his several business interests. The contention is that the enforced production of the papers is an unlawful appropriation of petitioners’ work product and trial preparation as well as an unreasonable seizure requiring the Bromleys to incriminate themselves and depriving them of the effective assistance of counsel. The District Court concluded that petitioners had no standing to sue; that the complaint failed to state a cause of action; that none of the papers were the work product of the petitioners; and, that the papers did not fall within the attorney-client privilege. The Court of Appeals affirmed, but on the entirely different theory that the suit was, in substance, one against the United States to which it had not consented. 115 U. S. App. D. C. 59, 317 F. 2d 123. We granted certiorari, 374 U. S. 825, and have concluded that petitioners have an adequate remedy at law and that the complaint is therefore subject to dismissal for want of equity. This obviates our passing upon any of the other questions presented.

I.

Petitioner Reisman, an attorney of California, had for several years represented the Bromleys. In April 1960 he associated with himself the three other attorney petitioners of Washington, D. C., as counsel in connection with the Bromleys’ tax matters. Petitioners employed the accounting firm of Peat, Marwick, Mitchell & Co. to assist them in connection with certain civil and criminal tax proceedings arising from the alleged tax liability of the Bromleys. Under the supervision of the petitioners, the accountants analyzed various original records of Mr. Bromley and his business interests and made periodic reports thereof. The products of the joint work of the accountants together with all of the records and papers of Bromley furnished them by the petitioners were kept separate in the accounting firm’s files and labeled as the property of petitioners.

The subpoenas were served on June 13, 1961, after Bromley had refused to make his papers available upon being informed that a criminal investigation against him was pending. The subpoenas were directed to three separate branches of Peat, Marwick, Mitchell & Co., located in Los Angeles, Chicago, and New York. They required the accountants to testify before a special agent of the Commissioner on the work performed and also to produce all documents, work papers and other material in their possession with regard to the Bromley matters. At the time of service there were four civil tax cases pending in the Tax Court contesting alleged deficiencies in income tax returns of the Bromleys. In addition, a criminal investigation of Mr. Bromley on the tax matters was in progress. None of the parties involved here had prepared the tax returns under scrutiny nor advised the Bromleys with regard to the same.

On July 7,1961, petitioners filed the complaint involved here. They alleged that Peat, Marwick, Mitchell & Co. intended to comply with the subpoenas. This would result, they claimed, in an unlawful appropriation of their work product and trial preparation as well as an unconstitutional seizure of confidential and privileged documents for future use in civil and criminal litigation against petitioners’ clients, the Bromleys. They moved for and obtained a temporary restraining order which was later dissolved when the complaint was dismissed. On appeal the Court of Appeals for the District of Columbia held that the complaint was properly dismissed because “it is not within the court’s jurisdiction because it is in substance a suit against the United States to which it has not consented.” 115 U. S. App. D. C. 59, 61, 317 F. 2d 123, 125.

The case reaches us at a stage when the only affirmative action taken by the Commissioner is the issuance of the summonses for the accountants to appear before a hearing officer, i. e., a special agent of the Internal Revenue Service, to testify and produce records. The accountants have not yet refused to do so. It is therefore necessary that we first consider the statutory scheme which Congress has provided for the issuance and enforcement of the summonses.

II.

Section 7602 authorizes the Secretary of the Treasury, or his delegate, for “the purpose of ascertaining the correctness of any return . . . , determining the liability of any person for any internal revenue tax ... , or collecting any such liability . . . [t]o summon the person liable for tax ... , or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax ... , or any other person the Secretary or his delegate may deem proper, to appear . . . and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry . . . .” The petitioners make no claim that this provision suffers any constitutional infirmity on its face. This Court has never passed upon the rights of a party summoned to appear before a hearing officer under § 7602. However, the Government concedes that a witness or any interested party may attack the summons before the hearing officer. There are cases among the circuits which hold that both parties summoned and those affected .by a disclosure may appear or intervene before the District Court and challenge the summons by asserting their constitutional or other claims. In re Albert Lindley Lee Memorial Hospital, 209 F. 2d 122 (C. A. 2d Cir.); Falsone v. United States, 205 F. 2d 734 (C. A. 5th Cir.); and Corbin Deposit Bank v. United States, 244 F. 2d 177 (C. A. 6th Cir.). We agree with that view and see no reason why the same rule would not apply before the hearing officer. Should the challenge to the summons be rejected by the hearing examiner and the witness still refuse to testify or produce, the examiner is given no power to enforce compliance or to impose sanctions for noncompliance.

If the Secretary or his delegate wishes to enforce the summons, he must proceed under § 7402 (b), which grants the District Courts of the United States jurisdiction “by appropriate process to compel such attendance, testimony, or production of books, papers, or other data.”

Any enforcement action under this section would be an adversary proceeding affording a judicial determination of the challenges to the summons and giving complete protection to the witness. In such a proceeding only a refusal to comply with an order of the district judge subjects the witness to contempt proceedings.

III.

It is urged that the penalties of contempt risked by a refusal to comply with the summonses are so severe that the statutory procedure amounts to a denial of judicial review. The leading cases on this question are Ex parte Young, 209 U. S. 123 (1908), and Oklahoma Operating Co. v. Love, 252 U. S. 331 (1920). However, we do not believe that this point is well taken here. In Young certain railroad rates could be tested only by a failure to comply, which occasioned a risk of both imprisonment and large fines, regardless of the willfulness of the refusal to comply. And in Oklahoma Operating Co. the laundry rate fixed by the Oklahoma Corporation Commission could be tested only by contempt with a penalty of $500 per day, each day being a separate violation.

On the other hand, in tax enforcement proceedings the hearing officer has no power of enforcement or right to levy any sanctions. It is true that any person summoned who “neglects to appear or to produce” may be prosecuted under § 7210 and is subject to a fine not exceeding $1,000, or imprisonment for not more than a year, or both. However, this statute on its face does not apply where the witness appears and interposes good faith challenges to the summons. It only prescribes punishment where the witness “neglects” either to appear or to produce. We need not pass upon the coverage of this provision in light of the facts here. It is sufficient to say that noncompliance is not subject to prosecution thereunder when the summons is attacked in good faith.

Petitioners also point to § 7604 (b) as posing the risk of arrest should the Commissioner proceed under that section for an “attachment ... as for a contempt.” Arguably, such a sanction, even though temporary, might be a penalty severe enough to bring the section within the rationale of Young, supra, but we do not so read § 7604 (b). This section provides that where “any person summoned . . . neglects or refuses to obey such summons” the Commissioner may proceed before the United States Commissioner or the judge of the District Court “for an attachment against him, as for a contempt.” Upon a showing of “satisfactory proof,” an attachment for the person so refusing is issued and he is brought before the United States Commissioner or the district judge who proceeds “to a hearing of the case.” Upon the hearing the United States Commissioner or the district judge may “make such order as he shall deem proper, not inconsistent with the law for the punishment of con-tempts . . . .” The predecessor of § 7604 (b) was adopted by the Congress in 1864 (13 Stat. 226) at a time when Congress was greatly concerned with tax collection delay. Cong. Globe, 38th Cong., 1st Sess. 2440-2441 (1864). The proponents of the bill emphasized that after arrest the witness could assert his objections to the summons. Cong. Globe, 38th Cong., 1st Sess. 2997 (1864). It appears to us that the provision was intended only to cover persons who were summoned and wholly made default or contumaciously refused to comply. Section 7402 (b) came into the statute in 1913 (38 Stat. 179) and has been uniformly used since that time. As we read the legislative history, § 7604 (b) remains in this comprehensive procedure provided by Congress to cover only a default or contumacious refusal to honor a summons before a hearing officer. But even in such cases, just as in a criminal prosecution under § 7210, the witness may assert his objections at the hearing before the court which is authorized to make such order as it “shall deem proper.” § 7604 (b).

Furthermore, we hold that in any of these procedures before either the district judge or United States Commissioner, the witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, Boren v. Tucker, 239 F. 2d 767, 772-773, as well as that it is protected by the attorney-client privilege, Sale v. United States, 228 F. 2d 682. In addition, third parties might intervene to protect their interests, or in the event the taxpayer is not a party to the summons before the hearing officer, he, too, may intervene. See In re Albert Lindley Lee Memorial Hospital, supra, and Corbin Deposit Bank v. United States, supra. And this would be true whether the contempt be of a civil or criminal nature. Cf. McCrone v. United States, 307 U. S. 61 (1939); Brody v. United States, 243 F. 2d 378. Finally, we hold that such orders are appealable. See O’Connor v. O’Connell, 253 F. 2d 365 (C. A. 1st Cir.) ; In re Albert Lindley Lee Memorial Hospital, supra; Falsone v. United States, supra; Bouschor v. United States, 316 F. 2d 451 (C. A. 8th Cir.); Martin v. Chandis Securities Co., 128 F. 2d 731 (C. A. 9th Cir.); D. I. Operating Co. v. United States, 321 F. 2d 586 (C. A. 9th Cir.). Contra, Application of Davis, 303 F. 2d 601 (C. A. 7th Cir.). It follows that with a stay order a witness would suffer no injury while testing the summons.

Nor would there be a difference should the witness indicate — as has Peat, Marwick, Mitchell & Co. — that he would voluntarily turn the papers over to the Commissioner. If this be true, either the taxpayer or any affected party might restrain compliance, as the Commissioner suggests, until compliance is ordered by a court of competent jurisdiction. This relief was not sought here. Had it been, the Commissioner would have had to proceed for compliance, in which event the petitioners or the Brom-leys might have intervened and asserted their claims.

Finding that the remedy specified by Congress works no injustice and suffers no constitutional invalidity, we remit the parties to the comprehensive procedure of the Code, which provides full opportunity for judicial review before any coercive sanctions may be imposed. Cf. United States v. Babcock, 250 U. S. 328, 331 (1919).

Affirmed.

       “§ 7602. Examination of books and witnesses.
      “For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized—
      “(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry;
      “(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and
      “(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry.”

       These have been heard and are now under advisement in the Tax Court.

       In their answer Peat, Marwick, Mitchell & Co. admitted the essential allegations in the complaint, except the one alleging that they would voluntarily comply with the subpoenas. As to this they said compliance “could compromise trial preparations” in the Tax Court cases. They joined the prayer of petitioners for relief.

       Section 7604 (a) and (b) gives an additional remedy which is considered hereafter.

       Internal Revenue Code of 1954, § 7210: “Any person who, being duly summoned to appear to testify, or to appear and produce books, accounts, records, memoranda, or other papers, as required under sections 6420 (e) (2), 6421 (f) (2), 7602, 7603, and 7604 (b), neglects to appear or to produce such books, accounts, records, memoranda, or other papers, shall, upon conviction thereof, be fined not more than $1,000, or imprisoned not more than 1 year, or both, together with costs of prosecution.”

       The only prosecution under § 7210 is United States v. Becker, 259 F. 2d 869. There the word “neglect” was equated with willfulness. The Government admits that the section is inapplicable to persons who appear and in good faith interpose defenses as a basis for noncompliance. Brief for the Respondent Caplin, pp. 9, 22. Cf. Federal Power Comm’n v. Metropolitan Edison Co., 304 U. S. 375, 387 (1938).

       Internal Revenue Code of 1954, § 7604 (b): “Enforcement.— Whenever any person summoned under section 6420 (e)(2), 6421 (f)(2), or 7602 neglects or refuses to obey such summons, or to produce books, papers, records, or other data, or to give testimony, as required, the Secretary or his delegate may apply to the judge of the district court or to a United States commissioner for the district within which the person so summoned resides or is found for an attachment against him as for a contempt. It shall be the duty of the judge or commissioner to hear the application, and, if satisfactory proof is made, to issue an attachment, directed to some proper officer, for the arrest of such person, and upon his being brought before him to proceed to a hearing of the case; and upon such hearing the judge or the United States commissioner shall have power to make such order as he shall deem proper, not inconsistent with the law for the punishment of contempts, to enforce obedience to the requirements of the summons and to punish such person for his default or disobedience.”

       It is true that the attachment procedure of § 7604 (b) has been occasionally used even where the person summoned refused to testify because of a claimed privilege. E. g., Sale v. United States, 228 F. 2d 682, and Brownson v. United States, 32 F. 2d 844. We believe that the use of §'7604 (b) in that context is inappropriate. Attachment of a witness who has neither defaulted nor contumaciously refused to comply would raise constitutional considerations, which need not be considered at this time under our reading of the statute.


text:
    LANZA et al. v. NEW JERSEY.
    No. 560.
    Decided January 20, 1964.

      Jacob Green for appellants.

      Arthur J. Sills, Attorney General of New Jersey, and Bernard Hellring for appellee.
   Per Curiam.

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


text:
    ARONOFF et al. v. FRANCHISE TAX BOARD OF CALIFORNIA et al.
    No. 639.
    Decided January 20, 1964.

      Thomas W. LeSage for appellants.

      Stanley Mosk, Attorney General of California, Dan Kaufmann, Assistant Attorney General, and Ernest P. Goodman, Deputy Attorney General, for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    ARROW CARRIER CORP. v. UNITED STATES et al.
    No. 467.
    Decided January 20, 1964.

      Christian V. Graf for appellant.

      Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum, Robert W. Ginnane and H. Neil Garson for the United States and the Interstate Commerce Commission.

      William A. Goichman, Joseph C. Bruno and Edward Munce for the Pennsylvania Public Utility Commission.

      Ernest R. von Starch, Robert H. Young and Carl Hel-metag, Jr. for the Pennsylvania Railroad Co. et al.
   Per Curiam.

The motion of Pennsylvania Public Utility Commission to be added as a party appellee is granted. The motion to correct the caption to include the Pennsylvania Railroad Company, Highway Express Lines, Inc., and Modern Transfer Co., Inc., as parties appellee is granted. The motions to affirm are granted and the judgment is affirmed.


text:
    No. 125,
    Misc.
    Harvey v. Supreme Court of Washington.
    July 10, 1963.
   Motion for leave to file petition for writ of mandamus.

Dismissed pursuant to Rule 60 of the Rules of this Court.


text:
    No. 160.
    Landau v. Best et al.
    September 3, 1963.

      Justin M. Oolenbock and Leonard W. Wagman for appellant. Robert Roy Dann for appellees.
   Appeal from the Supreme Court of Delaware.

Dismissed pursuant to Rule 60 of the Rules of this Court.


text:
    October 8, 1963.
    No. 316.
    No. 431,
    Misc.
    In re Grand Jury Investigation of Violations of 18 U. S. C. § 1621 (General Motors Corp.); and General Motors Corp. v. Edelstein, U. S. District Judge.

      Bruce Bromley, Aloysius F. Power, Robert A. Nitschke and John W. Barnurn for General Motors Corp. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Jerome M. Feit for the United States et al.
   Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit in No. 316, and motion for leave to file petition for writ of certiorari and/or mandamus in No. 431, Misc., dismissed pursuant to Rule 60 of the Rules of this Court.

Reported below: 318 F. 2d 533, 32 F. R. D. 175.


text:
    October 9, 1963.
    No. 3,
    Misc.
    James et al. v. Texas.
   On petition for writ of certiorari to the Court of Criminal Appeals of Texas. Petition dismissed pursuant to Rule 60 of the Rules of this Court.


text:
    October 14, 1963.
    No. 520,
    October Term, 1962.
    Chamberlin et al. v. Dade County Board of Public Instruction et al.,

      E. F. P. Brigham on the motions.
   374 U. S. 487. The motion of the intervening appellees to dispense with printing the motion to vacate the judgment is granted. The motion of intervening appellees to vacate the judgment is denied.


text:
    No. 14,
    Original.
    Louisiana v. Mississippi et al.

      Jack P. F. Gremillion, Attorney General of Louisiana, Carroll Buck, First Assistant Attorney General, and Edward, M. Carmouche and John L. Madden, Assistant Attorneys General, for plaintiff. Joe T. Patterson, Attorney General of Mississippi, Martin B. McLendon and James Neville Patterson, Assistant Attorneys General, and Landman Teller, Special Assistant to the Attorney General, for Mississippi et al., and M. M. Roberts for Humble Oil & Refining Co., defendants.
   The case is set for oral argument on the motion for leave to file the bill of complaint and answer. Two hours are allowed for oral argument.


text:
    No. 13.
    Retail Clerks International Association, Local 1625, AFL-CIO, et al. v. Schermerhorn et al.
   Certiorari, 371 U. S. 909, to the Supreme Court of Florida. Argued April 18,1963. Decided in part June 3,1963, and retained on the calendar for reargument on the remaining issue. 373 U. S. 746. The motion of Claude Pepper for leave to withdraw his appearance as counsel for petitioners is granted.

Mr. Justice Goldberg took no part in the consideration or decision of this motion.


text:
    No. 16.
    Banco Nacional de Cuba v. Sabbatino, Receiver, et al.
   Certiorari, 372 U. S. 905, to the United States Court of Appeals for the Second Circuit. The motion of John A. Wilson for leave to withdraw his appearance as counsel for Compania Azucarera Vertientes-Camaguey de Cuba is granted.


text:
    No. 39.
    New York Times Co. v. Sullivan.

      William P. Rogers, Gerald W. Siegel and Stanley Godofsky on the motion.
   Certiorari, 371 U. S. 946, to the Supreme Court of Alabama. The motion of the Washington Post Co. for leave to file a brief, as amicus curiae, is granted.


text:
    No. 28.
    Foti v. Immigration and Naturalization Service.

      Jack Wasserman and David Carliner on the motions.
   Certiorari, 371 U. S. 947, to the United States Court of Appeals for the Second Circuit. The motion of the Association of Immigration and Nationality Lawyers for leave to file a brief, as amicus curiae, is granted. The motion for leave to participate in the oral argument is denied.


text:
    No. 61.
    Meyer v. United States.

      Richard Katcher on the motion.
   Certiorari, 372 U. S. 934, to the United States Court of Appeals for the Second Circuit. The motion of Lillian Wintner for leave to file a brief, as amicus curiae, is granted.


text:
    No. 71.
    No. 73.
    Federal Power Commission v. Southern California Edison Co. et al.; and City of Colton v. Southern California Edison Co. et al.

      Northcutt Ely and C. Emerson Duncan II on the motion. Harry W. Sturges, Jr. and Boris H. Lakusta for Southern California Edison Co., and /. Thomason Phelps for Public Utilities Commission of California, respondents, in opposition to the motion.
   Certiorari, 372 U. S. 958, to the United States Court of Appeals for the Ninth Circuit. The motion of American Public Power Assn, for leave to file a brief, as amicus curiae, is granted.


text:
    No. 75.
    Aro Manufacturing Co., Inc., et al. v. Convertible Top Replacement Co., Inc.

      Elliott I. Pollock on the motion. David Wolf and Charles Hieken for petitioners in opposition to the motion.
   Certiorari, 372 U. S. 958, to the United States Court of Appeals for the First Circuit. Further consideration of the motion of respondent to settle the record is postponed to the hearing of the case on the merits.


text:
    No. 72.
    Smith v. California.

      Stanley Fleishman for petitioner. Roger Arnebergh, Philip E. Grey and Wm. E. Doran for respondent.
   Certiorari, 373 U. S. 901, to the Appellate Department, Superior Court of California, County of Los Angeles. The motion of the petitioner to dispense with printing the record is granted.


text:
    No. 81.
    National Equipment Rental, Ltd., v. Szukhent et al.

      David Hartfield, Jr., Allen F. Maulsby, Merrell E. Clark, Jr. and Henry L. King on the motion.
   Certiorari, 372 U. S. 974, to the United States Court of Appeals for the Second Circuit. The motion of the Bankers Trust Co. et al. for leave to file a brief, as amici curiae, is granted.


text:
    No. 82.
    Italia Societa Per Azioni di Navigazione v. Oregon Stevedoring Co., Inc.

      J. Ward O’Neill, Charles B. Howard, Scott H. Elder and J. Stewart Harrison on the motion.
   Certiorari, 372 U. S. 963, to the United States Court of Appeals for the Ninth Circuit. The motion of the American Merchant Marine Institute, Inc., et al. for leave to file a brief, as amici curiae, is granted.


text:
    No. 107.
    United States v. Barnett et al.

      Osmond K. Fraenkel, Norman Dorsen and Melvin L. Wulf on the motion.
   On certificate from the United States Court of Appeals for the Fifth Circuit. The motion of the American Civil Liberties Union for leave to file a brief, as amicus curiae, is granted.


text:
    No. 209.
    Stoner v. California.
   Certiorari, 374 U. S. 826, to the District Court of Appeal of California, Second Appellate District. The motion for the appointment of counsel is granted and it is ordered that William H. Dempsey, Jr., Esquire, of Washington, D. C., a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for the petitioner in this case.


text:
    No. 210.
    Fallen v. United States.
   Certiorari, 374 U. S. 826, to the United States Court of Appeals for the Fifth Circuit. The motion for the appointment of counsel is granted and it is ordered that William B. Killian, Esquire, of Miami, Florida, be, and he is hereby, appointed to serve as counsel for the petitioner in this case.


text:
    No. 294,
    Misc.
    Burkey v. Russell, Correctional Superintendent.
   Motion for leave to file petition for writ of certiorari denied without prejudice to an application to the appropriate United States District Court for relief in light of Fay v. Noia, 372 U. S. 391.


text:
    No. 190,
    No. 210,
    No. 235,
    No. 241,
    No. 264,
    No. 283,
    No. 326,
    No. 331,
    No. 340,
    No. 354,
    No. 364,
    No. 444,
    No. 449,
    No. 457,
    No. 470,
    Misc.
    Misc.
    Misc.
    Misc.
    Misc.
    Misc.
    Misc.
    Misc.
    Misc.
    Misc.
    Misc.
    Misc.
    Misc.
    Misc.
    Misc.
    Streit v. Bennett, Warden; Perry v. Pate, Warden, et al.; Ex parte Schlette; Hamlin v. Wilson, Correctional Superintendent, et al.; Turpin v. Maxwell, Warden; Ellis v. Cunningham, Penitentiary Superintendent; Ex parte Lee; Chase v. Rosellini, Governor of Washington, et al.; Maddox v. Alabama; Ellis v. Clemmer, Corrections Director, et al.; Chapman v. Maxwell, Warden; Patton v. Maxwell, Warden; Oughton v. Taylor, Warden; Dodge v. Eyman, Warden; and Price v. Maryland.
   Motions for leave to file petitions for writs of habeas corpus denied.


text:
    No. 130,
    Misc.
    Biggs v. Will et al.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 9,
    Misc.
    Mantzouranis v. Heinze, Warden.
    Petitioner pro se. Stanley Mosk, Attorney General of California, and Doris H. Maier, Assistant Attorney General, for respondent.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 28,
    Misc.
    Smith v. Nebraska.
    Petitioner pro se. Clarence A. H. Meyer, Attorney General of Nebraska, and C. C. Sheldon, Assistant Attorney General, for respondent.
   Motion for leave to file petition for writ of habeas corpus denied. Treating the papers submitted as a petition for writ of certiorari, certiorari is denied.


text:
    No. 31,
    Misc.
    Jackson v. Warden, Maryland Penitentiary.
    Petitioner pro se. Thomas B. Finan, Attorney General of Maryland, and Robert F. Sweeney, Assistant Attorney General, for respondent.
   Motion for leave to file petition for writ of habeas corpus denied. Treating the papers submitted as a petition for -writ of certiorari, certiorari is denied.


text:
    No. 271,
    Misc.
    Chipman v. Burke, Warden.
   Motion for leave to file petition for writ of habeas corpus denied. Treating the papers submitted as a petition for writ of certiorari, certiorari is denied.


text:
    No. 228,
    Misc.
    Parker v. Waterman, U. S. Circuit Judge, et al.
    Petitioner pro se. Solicitor General Cox, Assistant Attorney General Orrick and Irwin A. Seibel for respondents.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 275,
    Misc.
    Draper et al. v. Powell, U. S. District Judge, et al.
   Motion for leave to file petition for writ of mandamus and for other relief denied.


text:
    No. 268,
    Misc.
    Cauer et al. v. Justices of the United States Court of Customs and Patent Appeals.

      Robert H. Riñes and Nelson H. Shapiro for petitioners. Solicitor General Cox, Assistant Attorney General Douglas and Alan S. Rosenthal for respondents.
   Motion for leave to file petition for writ of mandamus and/or prohibition denied.


text:
    No. 185.
    United States et al. v. Boyd, Commissioner.

      Solicitor General Cox, Assistant Attorney General Oberdorfer, I. Henry Kutz, George F. Lynch and R. R. Kramer for the United States et al. George F. McCanless, Attorney General of Tennessee, and Milton P. Rice and Walker T. Tipton, Assistant Attorneys General, for appellee.
   Appeal from the Supreme Court of Tennessee. Probable jurisdiction noted.


text:
    No. 204.
    United States v. Aluminum Co. of America et al.

      Solicitor General Cox, Assistant Attorney General Loevinger, Robert B. Hummel, Donald F. Melchior and Charles D. Mahaffie, Jr. for the United States. Herbert A. Bergson, Howard Adler, Jr., Hugh Latimer and William K. Unverzagt for appellees.
   Appeal from the United States District Court for the Northern District of New York. Probable jurisdiction noted.


text:
    No. 220.
    Baggett et al. v. Bullitt et al.

      Arval A. Morris and Kenneth A. MacDonald for appellants. John J. O’Connell, Attorney General of Washington, Herbert H. Fuller, Deputy Attorney General, and Dean A. Floyd, Assistant Attorney General, for appellees.
   Appeal from the United States District Court for the Western District of Washington. Probable jurisdiction noted.


text:
    No. 167.
    Ungar v. Sarafite, Judge.

      Emanuel Red field for appellant. Frank S. Hogan and H. Richard Uviller for appellee.
   Appeal from the Court of Appeals of New York. Probable jurisdiction noted.


text:
    No. 116.
    Hostetter et al. v. Idlewild Bon Voyage Liquor Corp.

      Louis J. Lefkowitz, Attorney General of New York, George D. Zuckerman, Assistant Attorney General, and Irving Galt, Assistant Solicitor General, for appellants. Charles H. Tuttle and John F. Kelly for appellee.
   Appeal from the United States District Court for the Southern District of New York. Probable jurisdiction noted.

Mr. Justice Brennan took no part in the consideration or decision of this case.


text:
    No. 235.
    United States v. Welden.

      Assistant Attorney General Orrick, Ralph S. Spritzer, Robert B. Hummel and Irwin A. Seibel for the United States. Edward B. Hanify for appellee.
   Appeal from the United States District Court for the District of Massachusetts. Probable jurisdiction noted.


text:
    No. 137.
    Massachusetts Trustees of Eastern Gas & Fuel Associates v. United States.

      J. Franklin Fort, James S. Eastham
      and T. S. L. Perlman for petitioners. Solicitor General Cox for the United States.
   C. A. 1st Cir. Certiorari granted.


text:
    No. 169.
    National Association for the Advancement of Colored People v. Alabama ex rel. Flowers, Attorney General.

      Robert L. Carter, Fred D. Gray and Arthur D. Shores for petitioner. Richmond M. Flowers, Attorney General of Alabama, and Gordon Madison, Assistant Attorney General, for respondent.
   Supreme Court of Alabama. Cer-tiorari granted.


text:
    No. 253.
    Marks v. Esperdy, District Director, Immigration and Naturalization Service.

      Murray A. Gordon for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Sidney M. Glaser for respondent.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 273.
    Federal Power Commission v. Hunt et al.

      Solicitor General Cox, Ralph S. Spritzer, Richard A. Solomon, Howard E. Wahr-enbrock, Robert L. Russell and Josephine H. Klein for petitioner. Robert E. May and Richard F. Generelly for respondents.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 157.
    Parden et al. v. Terminal Railway of the Alabama State Docks Department et al.

      Al G. Rives for petitioners. Richmond M. Flowers, Attorney General of Alabama, and Willis C. Darby, Jr. for respondents.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 287.
    Rabinowitz et al. v. Kennedy, Attorney General.

      David Rein for petitioners. Solicitor General Cox, Assistant Attorney General Yeagley and George B. Searls for respondent.
   United States Court of Appeals for the District of Columbia Circuit. Certiorari granted.


text:
    No. 292.
    Missouri Pacific Railroad Co. v. Elmore & Stahl.

      Thurman Arnold, Abe Fortas, Abe Krash, Dennis G. Lyons and T. Gilbert Sharpe for petitioner. John C. North, Jr. for respondent. John B. Prizer for Pennsylvania Railroad Co., and Ballinger Mills for Atchison, Topeka & Santa Fe Railway Co. et al., as amici curiae, in support of the petition.
   Supreme Court of Texas. Certiorari granted.


text:
    No. 168.
    Shuttlesworth v. City of Birmingham.

      Jack Greenberg, James M. Nabrit III, Peter A. Hall and Orzell Billingsley, Jr. for petitioner. J. M. Breckenridge for respondent.
   Court of Appeals of Alabama. Certiorari granted.

Mr. Justice White took no part in the consideration or decision of this petition.


text:
    No. 389.
    Department of Revenue v. James B. Beam Distilling Co.

      John B. Breckinridge, Attorney General of Kentucky, William S. Riley, Assistant Attorney General, and Hal O. Williams. for petitioner. George R. Beneman for respondent.
   Court of Appeals of Kentucky. Cer-tiorari granted.

Mr. Justice Brennan took no part in the consideration or decision of this petition.


text:
    No. 223.
    Rugendorf v. United States.

      Melvin B. Lewis and Julius Lucius Echeles for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Jerome M. Feit for the United States.
   C. A. 7th Cir. Certiorari granted.


text:
    No. 138.
    Murphy et al. v. Waterfront Commission of New York Harbor.

      Harold Krieger for petitioners. William P. Sirignano and Irving Malchman for respondent.
   Supreme Court of New Jersey. Certiorari granted.


text:
    No. 39,
    Misc.
    Aguilar v. Texas.

      Clyde W. Woody for petitioner. Carl E. F. Dally for respondent.
   Motion for leave to proceed in forma pauperis and petition for writ of cer-tiorari to the Court of Criminal Appeals of Texas granted. Case transferred to the appellate docket.


text:
    No. 118.
    Baron v. Valleton, Administrator.

      Christ D. Lillions for petitioner.
   Supreme Court of Washington. Certiorari denied.


text:
    No. 121.
    Mattox v. Hertwig, Trustee in Bankruptcy.

      W. M. Nicholson and Cubbedge Snow for petitioner.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 63.
    Allied Paint & Color Works, Inc., v. United States.

      Robert D. Witte and Daniel H. Greenberg for petitioner. Solicitor General Cox for the United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 103.
    No. 166.
    Gulf/Mediterranean Ports Conference et al. v. Federal Maritime Commission et al.; and Far East Conference et al. v. United States et al.

      Joseph M. Rault and Walter Carroll for petitioners in No. 103. Herman Goldman, Elkan Turk and Elkan Turk, Jr. for petitioners in No. 166. Solicitor General Cox, Assistant Attorney General Loevinger, Robert B. Hummel and Irwin A. Seibel for the United States. Robert E. Mitchell for the Federal Maritime Commission, and Shelby Fitze, Delmar W. Holloman and James T. Welch for Kempner et al., respondents.
   United States Court of Appeals for the District of Columbia Circuit. Certiorari denied.

Reported below: 114 U. S. App. D. C. 196, 313 F. 2d 586.


text:
    No. 124.
    Jakobson v. Levin et al.

      David W. Kahn for petitioner. George C. Levin for respondents.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 125.
    Lamb et al. v. Blau et al.

      Jerome M. Stember for petitioners. Morris J. Levy for respondents.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 126.
    Chesapeake & Ohio Railway Co. et al. v. Cruz.

      Russel J. Wildman and Stanley A. Tweedle for petitioners. Saul I. Ruman for respondent.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 129.
    Pittsburgh & Lake Erie Railroad Co. v. Carney.

      Carl E. Clock for petitioner.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 130.
    Rossetti v. United States.

      Peter J. Hughes for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and J. F. Bishop for the United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 131.
    M. J. Uline Co. v. Washington Sportservice, Inc.

      David G. Bress and Leonard Braman for petitioner.
   United States Court of Appeals for the District of Columbia Circuit. Certiorari denied.


text:
    No. 133.
    Clemson Agricultural College of South Carolina et al. v. Gantt.

      Eugene Gressman for petitioners.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 135.
    Silverstein et al. v. Phelps.

      Julius Lucius Echeles for petitioners. John H. Bishop for respondent.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 139.
    Pennsylvania Railroad Co. v. United States et al.

      Edward A. Kaier and William F. Zearfaus for petitioner. Solicitor General Cox, Alan S. Rosenthal and Kathryn H. Baldwin for the United States et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 143.
    Leatherhide Industries, Inc., et al. v. Gutman, Trustee in Bankruptcy, et al.

      Jacob W. Friedman for petitioners.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 142.
    General Aggregates Corp. v. Commissioner of Internal Revenue.

      Walter Powers for petitioner. Solicitor General Cox, Assistant Attorney General Oberdorfer, Meyer Rothwacks and L. W. Post for respondent.
   C. A. 1st Cir. Certio-rari denied.


text:
    No. 144.
    Rabin v. United States.

      Richard E. Gorman for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Jerome Nelson for the United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 146.
    Nickerson v. Bearfoot Sole Co., Inc., et al.
    Petitioner pro se. Everett R. Hamilton for respondents.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 147.
    Portnoy v. United States.

      Paul T. Smith for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Julia P. Cooper for the United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 148.
    Owens Generator Co., Inc., et al. v. H. J. Heinz Co.

      Carl Hoppe for petitioners. Moses Lasky for respondent.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 149.
    Lee et al. v. Louisville & Nashville Railroad Co. et al.

      Blakey Helm for petitioners. Joseph E. Stopher, A. J. Deindoerfer, H. G. Breetz, W. L. Grubbs, M. D. Jones and Joseph L. Lenihan for respondent Louisville & Nashville Railroad Co.; Richard R. Lyman and Robert E. Hogan for respondents other than the railroad company.
   Court of Appeals of Kentucky. Cer-tiorari denied.


text:
    No. 150.
    No. 265.
    Gemex Corporation v. A. C. Becken Co.; and A. C. Becken Co. v. Gemex Corporation.

      Edward A. Haight for Gemex Corp. Lorentz B. Knouff for A. C. Becken Co.
   C. A. 7th Cir. Certiorari denied.

Reported below: 314 F. 2d 839.


text:
    No. 151.
    Byrd et al. v. United States.

      Wesley R. Asinof for petitioners. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Kirby W. Patterson for the United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 152.
    DiPierro v. Ohio.

      Aaron H. Zychick for petitioner. John T. Corrigan for respondent.
   Supreme Court of Ohio. Certiorari denied.


text:
    No. 154.
    Fabre v. Reserve Insurance Co.

      J. Minos Simon for petitioner.
   Supreme Court of Louisiana. Certiorari denied.


text:
    No. 156.
    DeLeo et al. v. New York.

      Frances Kahn for petitioners.
   Court of Appeals of New York. Certiorari denied.


text:
    No. 158.
    M. W. Zack Metal Co. v. The Birmingham City et al.

      Anthony B. Cataldo for petitioner.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 161.
    McGarrh v. Mississippi.

      James P. Coleman for petitioner.
   Supreme Court of Mississippi. Certiorari denied.


text:
    No. 165.
    Glass v. Bendix Aviation Corp.

      Leonard L. Kalish for petitioner. C. Brewster Rhoads, Joseph W. Swain, Jr. and Dexter N. Shaw for respondent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 171.
    Teitelbaum v. Curtis Publishing Co.

      Abraham Teitelbaum, petitioner, pro se. Robert L. Stem for respondent.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 172.
    Johnson, Administrator, v. Livingston.

      Henry H. Edens, Henry Hammer and Julian S. Wolfe for petitioner. N. Welch Morrisette, Jr. for respondent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 174.
    Metz v. United States.

      John Y. Brown for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Kirby W. Patterson for the United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 175.
    Congress Construction Corp. v. United States.

      John T. Koehler and John Paulding Brown for petitioner. Solicitor General Cox and Roger P. Marquis for the United States.
   Court of Claims. Certiorari denied.


text:
    No. 176.
    Marydale Products Co., Inc., v. National Labor Relations Board.

      Morris Wright and J. V. Ferguson II for petitioner. Solicitor General Cox, Dominick L. Manoli, Norton J. Come and Melvin Pollack for respondent.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 173.
    Davis v. Tennessee Valley Authority.

      John P. Witsil for petitioner. Solicitor General Cox and Charles J. McCarthy for respondent.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 179.
    Uptagrafft et al. v. United States.

      Harry E. McCoy for petitioners. Solicitor General Cox, Assistant Attorney General Douglas and Morton Hollander for the United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 180.
    Wheeler et ux. v. United States.

      F. W. Baker for petitioners. Solicitor General Cox for the United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 181.
    Slater et al. v. Stoffel, Administrator, et al.

      Winslow Van Horne for petitioners. Alexander M. Campbell for respondents.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 182.
    Newberry Mills, Inc., v. United Textile Workers of America, AFL-CIO, Local Union No. 120.

      Alva M. Lumpkin, Jr. for petitioner. Theodore W. Law, Jr. for respondent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 183.
    Sheaffer et al., Executors, et al. v. Commissioner of Internal Revenue.

      Karl D. Loos and Aaron Holman for petitioners. Solicitor General Cox, Assistant Attorney General Oberdorfer, Robert N. Anderson and Morton K. Rothschild for respondent.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 184.
    Grant v. United States.

      Wesley R. Asinoj for petitioner. Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg for the United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 186.
    Isthmian Lines, Inc., v. Street.

      Joseph M. Cunningham and Vernon S. Jones for petitioner. Israel G. Seeger and Albert V. Testa for respondent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 187.
    Brotherhood of Locomotive Engineers et al. v. Chicago & North Western Railway Co.

      V. C. Shuttleworth and H. E. Wilmarth for petitioners. Jordan Jay Hillman for respondent.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 189.
    Atlantic Mutual Insurance Co. v. Poseidon Schiffahrt, G.m.b.H.

      Paul H. Heineke for petitioner.
   C. A. 7th Cir. Certio-rari denied.


text:
    No. 190.
    Connecticut Fire Insurance Co. v. Allen N. Spooner & Son, Inc.

      Leonard J. Matteson for petitioner. Hervey C. Allen for respondent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 202.
    Mills et al., doing business as Mills Dairy Products Co., et al. v. Freeman, Secretary of Agriculture, et al.

      George Cochran Doub for petitioners. Solicitor General Cox, Assistant Attorney General Douglas, Alan S. Rosenthal and Neil Brooks for respondents.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 191.
    International Shoe Machine Corp. v. United Shoe Machinery Corp.

      Breck P. McAllister for petitioner. Ralph M. Carson and Robert Proctor for respondent.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 192.
    Binion v. Ryan, U. S. Marshal.

      Leon H. Kline for petitioner. Solicitor General Cox, Assistant Attorney General Marshall, Harold H. Greene and Gerald P. Choppin for respondent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 193.
    Rubinger et al. v. International Telephone & Telegraph Corp.

      William J. Rooney and Leonard F. Manning for petitioners. Ernest S. Meyers for respondent.
   C. A. 2d Cir. Certiorari denied.