text:
    TIPTON v. SOCONY MOBIL OIL CO., INC.
    No. 200.
    Decided October 21, 1963.

      Clyde W. Woody for petitioner.

      George B. Matthews for respondent.
   Per Curiam.

Petitioner brought this action in the District Court for the Southern District of Texas against his employer under the Jones Act. 46 U. S. C. § 688. The principal issue was whether, in view of the nature of the work performed at the time of injury, the petitioner was a seaman, hence within the coverage of the Jones Act, or an offshore drilling employee. At the trial before a jury, the District Court admitted evidence, over the objection of petitioner’s counsel, that petitioner had accepted compensation benefits under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq., as applied through the Outer Continental Shelf Lands Act, 43 U. S. C. § 1331 et seq. The latter Act, although extending longshoremen’s compensation to a new group, is explicitly inapplicable to a “member of a crew of any vessel.” 43 U. S. C. § 1333 (c)(1). In response to a special interrogatory the jury found that the petitioner was not a seaman or member of a crew of a vessel within the meaning of the Jones Act. Judgment was then entered upon the verdict for the respondent. The Court of Appeals for the Fifth Circuit unanimously held it error to have admitted the evidence of other compensation benefits but, with one judge dissenting, found the error harmless. We grant the petition for a writ of certiorari and vacate the judgment.

We do not agree that on the record in this case the error may be regarded as harmless. There can be no doubt that the evidence of other benefits was pressed upon the jury. Throughout the trial respondent’s counsel emphasized that the petitioner “has a remedy under a federal compensation act, and in fact received benefits in the form of weekly payments under that act . . . .” The only argued relevance of this evidence was that it indicated what the petitioner had thought to be his legal status. The judge did not, however, frame a cautionary instruction or otherwise charge the jury that the evidence of other compensation might be considered only insofar as it revealed what the petitioner and others thought his status to be — whether seaman or drilling employee — and was not dispositive of the ultimate fact of whether he was a seaman. To the contrary, the judge’s charge, containing an elaborate discussion of the Longshoremen’s and Harbor Workers’ Compensation Act and a restatement of the disputed evidence, only heightened the likelihood of prejudice.

A subsequent exchange between judge and jury did not, in our opinion, negate the cumulative impact of the evidence and the instructions. The jury, while deliberating, sent the following note to the judge:

“If we find Mr. Tipton is not a seaman or a member of the crew of drilling barge No. 1, does he have recourse for compensation under the Outer Continental Shelf or other act?”

The judge immediately replied:

“This is not a matter for the jury’s consideration. You should consider only the questions submitted and the evidence thereon.”

The petitioner contends, correctly we think, that this reply was insufficient to overcome the impact of the evidence of other compensation as submitted to the jury. Although the judge’s reply excluded from the jury’s consideration the availability of alternative benefits in a future action, it did not preclude or restrict consideration of the evidence presented concerning prior receipt of compensation payments. The direction to consider “the questions submitted” was not illuminating and the further reference to “the evidence thereon” necessarily encompassed the admitted evidence of payments received and retained by petitioner.

We disagree with the suggestion of the Court of Appeals that the prejudicial effect of the evidence of other compensation would be restricted to the issue of damages and would not affect the determination of liability. That suggestion ignores that the evidence was presumably considered without qualification as bearing on a basic fact essential to liability. Indeed, the jury’s inquiry to the judge seems to indicate that, under the case as submitted, the jury was led to place undue emphasis on the availability of compensation benefits in determining the ultimate question of whether the petitioner was a seaman within the Jones Act. On such a record the disputed evidence cannot properly be deemed harmless. 28 U. S. C. § 2111; Fed. Rules Civ. Proc., 61. Cf. Kotteakos v. United States, 328 U. S. 750.

The judgment of the Court of Appeals for the Fifth Circuit is vacated and the case remanded to the District Court for the Southern District of Texas for proceedings in accordance with this opinion.

It so ordered.

Mr. Justice Harlan,

dissenting.

I am of the opinion that the petition for certiorari should have been denied in this case, which raises only a question of the admissibility of certain evidence and a ruling of the Court of Appeals that the admission of the evidence, which it thought erroneous, was harmless. See my opinion in Ferguson v. Moore-McCormack Lines, Inc., 352 U. S. 521, 559, and the dissenting opinion of Mr. Justice Frankfurter in the same case, id., at 524.

Since the petition has been granted, I am constrained to say that I am doubtful of the ruling below that evidence probative of the petitioner’s belief as to his status as a seaman or drilling employee was irrelevant to the issue of what his status actually was. His belief to be sure did not amount to a demonstration of the fact; but it seems to me sufficiently relevant to be not clearly inadmissible on the issue of his status, to show which was the purpose for which the evidence was offered. In any event, I find no solid reason for disturbing the view of the Court of Appeals that the admission of this evidence in the circumstances of this case did not prejudice the petitioner and was, therefore, harmless error.

Accordingly, while I believe the case is not “cert-worthy,” I would affirm the judgment below.

       315 F. 2d 660, 662 (Brown, J., dissenting).

       The majority of the Court of Appeals explained its conclusion as follows:
      “[I]n view of the fact that the jury, having decided the question of status adversely to appellant, never reached the issue of damages, we believe that the error did not prejudice appellant and was harmless.” 315 F. 2d 660, at 662.

       Not until after the verdict and after the discharge of the jury did counsel learn of the jury’s inquiry and the judge’s reply. Petitioner’s counsel, when informed, immediately took exception to the procedure and the reply. However, for present purposes we need not question the permissibility of the procedures involved.

       See note 2, supra.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SHENANDOAH VALLEY BROADCASTING, INC., et al. v. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS.
    No. 323.
    Decided October 21, 1963.

      Balstone R. Irvine and Walter R. Mansfield for petitioners.

      Arthur H. Dean, William Piel, Jr., Herman Finkelstein and Lloyd N. Cutler for respondent.
   Per Curiam.

In 1950 the District Court for the Southern District of New York entered an amended consent decree in a government Sherman Act suit requiring ASCAP inter alia to “grant to any user making written application therefor a non-exclusive license to perform all of the compositions in the ASCAP repertory” subject to a reasonable license fee. On request of petitioners for a license ASCAP refused to fix a fee and, as provided by the amended consent decree, this application was filed for an order to fix a reasonable fee. The District Court found that the consent decree did not require ASCAP to issue the type of license petitioners requested and, therefore, dismissed the application. 208 F. Supp. 896. The petitioners took an appeal to the Court of Appeals and also perfected a direct one to this Court under § 2 of the Expediting Act. 15 U. S. C. § 29. We dismissed the appeal filed here for want of jurisdiction, 371 U. S. 540 (1963). Thereafter, the Court of Appeals dismissed the appeal perfected there, 317 F. 2d 90, on the ground that all appeals are “routed” to this Court by the Expediting Act and this petition brings that question here once again.

The dismissal that we heretofore entered was based on our unexpressed view that the appeal from an ancillary order of this type was not within the Expediting Act. Direct appeals to this Court are authorized by that Act only from final judgments where the United States is a complainant. The purpose of the Act is to expedite litigation of “great and general importance” where the Government is the aggrieved party. See 36 Cong. Rec. 1679 (1903). The controversy which is disposed of by the District Court’s order is entirely between private parties and is outside the mainstream of the litigation in which the Government is directly concerned. Compare Terminal R. R. Assn. v. United States, 266 U. S. 17; Aluminum Co. of America v. United States, 302 U. S. 230. In these circumstances, and the order being final rather than interlocutory, we believe that the appeal does lie under 28 U. S. C. § 1291. The petition is therefore granted and the judgment is reversed and the cause remanded to the Court of Appeals for consideration on its merits.

It is so ordered.

Mr. Justice Black acquiesces in the Court’s judgment because of the holding in the prior appeal.


text:
    DUNLAP et al. v. OHIO.
    No. 288.
    Decided October 21, 1963.

      Melvin Schaengold for appellants.

      William S. Mathews and Calvin W. Prem 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:
    STOVER et vir v. NEW YORK.
    No. 313.
    Decided October 21, 1963.

      Morris L. Ernst for appellants.

      Anthony T. Antinozzi for appellee.
   Per Curiam.

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


text:
    HUMBLE OIL & REFINING CO. et al. v. MALE, COMMISSIONER, DEPARTMENT OF LABOR & INDUSTRY, NEW JERSEY.
    No. 326.
    Decided October 21, 1963.

      T. Girard Wharton and John W. Fritz for appellants.

      Arthur J. Sills, Attorney General of New Jersey, and Theodore I. Botter, First Assistant Attorney General, for appellee.
   Per Curiam.

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


text:
    DAVIS et al. v. CITY OF BOWLING GREEN, KENTUCKY, et al.
    No. 331.
    Decided October 21, 1963.

      Albert O. Scafuro for appellants.

      Squire R. Ogden for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.


text:
    FIELDS et al. v. SOUTH CAROLINA.
    No. 335.
    Decided October 21, 1963.

      Jack Greenberg, Constance Baker Motley, Matthew J. Perry and Lincoln C. Jenkins, Jr. for petitioners.

      Daniel R. McLeod, Attorney General of South Carolina, Everett N. Brandon, Assistant Attorney General, and Julian 8. Wolfe for respondent.
   Per Curiam.

The petition for a writ of certiorari is granted. The judgment is reversed. Edwards v. South Carolina, 372 U. S. 229.


text:
    CADE v. LOUISIANA.
    No. 340.
    Decided October 21, 1963.

      James Sharp, Jr. for appellant.
   Per Curiam.

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.

Mr. Justice Black is of the opinion that probable jurisdiction should be noted.


text:
    HESS et al. v. KRIZ et al.
    No. 318,
    Misc.
    Decided October 21, 1963.
    Appellants pro se.

      Tom W. Oarrett for appellee's.
   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:
    LUOMALA v. SHORE, CHIEF EXECUTIVE OF UNITED STATES BOARD OF PAROLE.
    No. 426,
    Misc.
    Decided October 21, 1963.
    Appellant pro se.

      Solicitor General Cox for appellee.
   Per Curiam.

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:
    JACOBS v. ARIZONA.
    No. 420,
    Misc.
    Decided October 21, 1963.
   Per Curiam.

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:
    CHODOROV v. NEW YORK.
    No. 477,
    Misc.
    Decided October 21, 1963.

      Arnold Schildhaus for appellant.

      Leo A. Larkin, Seymour B. Quel and John A. Murray 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:
    SIMMONS v. OSWALD, CHAIRMAN, et al.
    No. 500,
    Misc.
    Decided October 21, 1963.
    Appellant pro se.

      Louis J. Lefkowitz, Attorney General of New York, Paxton Blair, Solicitor General, and Winifred C. Stanley, Assistant 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:
    THOMPSON v. MISSOURI.
    No. 551,
    Misc.
    Decided October 21, 1963.

      Eugene H. Buder for appellant.
   Per Curiam.

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:
    ARISTEGUIETA, CONSUL GENERAL OF THE REPUBLIC OF VENEZUELA, v. FIRST NATIONAL BANK OF NEW YORK et al.
    No. 1.
    Decided October 21, 1963.

      Howard C. Westwood for petitioner.

      John A. Wilson, Alexis C. Coudert and Melber Chambers for respondents.
   Per Curiam.

The motion to vacate the judgment is granted. The judgment is vacated and the case is remanded to the United States District Court for the Southern District of Florida with instructions to dismiss the cause as moot.

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


text:
    ARISTEGUIETA, CONSUL GENERAL OF THE REPUBLIC OF VENEZUELA, v. FIRST NATIONAL BANK OF NEW YORK et al.
    No. 2.
    Decided October 21, 1963.

      Howard C. Westwood for petitioner.

      John A. Wilson, Alexis C. Coudert and Melber Chambers for respondents.
   Per Curiam.

The motion to vacate the judgment is granted. The judgment is vacated and the case is remanded to the United States District Court for the Southern District of New York with instructions to dismiss the cause as moot.

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


text:
    CREWS v. WAINWRIGHT, CORRECTIONS DIRECTOR.
    No. 59,
    Misc.
    Decided October 21, 1963.
    Petitioner pro se.

      Richard W. Ervin, Attorney General of Florida, and James O. Mahorner, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Florida for further consideration in light of Gideon v. Wainwright, 372 U. S. 335.

Mr. Justice Douglas and Mr. Justice Clark dissent for the reason that the judgment rests on an adequate state ground.


text:
    BANKS v. WAINWRIGHT, CORRECTIONS DIRECTOR.
    No. 76,
    Misc.
    Decided October 21, 1963.
    Petitioner pro se.

      Richard W. Ervin, Attorney General of Florida, and A. G. Spicola, Jr., Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Florida for further consideration in light of Gideon v. Wainwright, 372 U. S. 335.

Mr. Justice Douglas and Mr. Justice Clark dissent for the reason that the judgment rests on an adequate state ground.


author: Per Curiam. Mr. Justice Clark,

text:
    BARTONE v. UNITED STATES.
    No. 337.
    Decided October 28, 1963.

      O. B. Cline, Jr. and Nicholas J. Capuano for petitioner.

      Solicitor General Cox for the United States.
   Per Curiam.

Although there were other questions before the Court of Appeals, the sole question presented by this petition is stated as follows:

“May a United States District Judge orally revoke the probation of a Defendant in open court and in the presence of the Defendant and his counsel and impose a sentence of confinement for a specific period of time and thereafter enter a formal written judgment and commitment in which a larger and longer sentence of confinement is imposed and set forth?”

It appears that on September 14, 1962, petitioner and his counsel appeared in the District Court, at which time a sentence of confinement of one year was imposed. Subsequently, and in petitioner’s absence, the court enlarged the penalty by one day.

The propriety of this enlargement of the sentence, along with other questions, was presented on the appeal to the Court of Appeals, which made no mention of it in its opinion. 317 F. 2d 608. The Court of Appeals did, however, deny a motion of the United States to remand the cause for the purpose of correcting the sentence — relief to which the United States concedes petitioner is entitled. See Rakes v. United States, 309 F. 2d 686. The only question is whether the error will be corrected here and now or whether petitioner will be remitted to his remedy under Rule 35 of the Federal Rules of Criminal Procedure ; and whether petitioner will be advantaged by one procedure or another is not our concern.

This error, in enlarging the sentence in the absence of petitioner, was so plain in light of the requirements of Rule 43 that it should have been dealt with by the Court of Appeals, even though it had not been alleged as error.

As seen from our Miscellaneous Docket for 1962, the use of collateral proceedings for relief from federal judgments of conviction is considerable:

October Term, 1962. — Miscellaneous Docket.
totals.
Federal prisoners:
Direct attack. 109
28 U. S. C. § 2255. 93
Habeas corpus through federal courts. 38
Original habeas corpus (in this Court). 40
Rule 35, Fed. Rules Crim. Proc. 4
284

Where state procedural snarls or obstacles preclude an effective state remedy against unconstitutional convictions, federal courts have no other choice but to grant relief in the collateral proceeding. See Fay v. Noia, 372 U. S. 391. But the situation is different in federal proceedings, over which both the Courts of Appeals and this Court (McNabb v. United States, 318 U. S. 332) have broad powers of supervision. It is more appropriate, whenever possible, to correct errors reachable by the appeal rather than remit the parties to a new collateral proceeding.

We grant certiorari and reverse the judgment denying correction of the sentence.

Mr. Justice Clark,

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

dissenting.

Petitioner was convicted of attempting to export munitions of war from the United States to a foreign state without a license in violation of § 414 of the Mutual Security Act of 1954, 68 Stat. 848, as amended, 22 U. S. C. § 1934. This statute provides a maximum penalty of two years’ imprisonment and $25,000 fine. Imposition of sentence of confinement was withheld and petitioner was placed on probation for three years and fined $10,000 (later reduced to $7,500). Thereafter, the Probation Officer petitioned the District Court to issue a warrant and revoke petitioner’s probation, alleging that petitioner had violated probation by participating in a contract to sell arms to the Republic of Honduras. After hearing, the court revoked the probation and orally sentenced petitioner to one year imprisonment. Bail was denied by the District Court but granted by the Court of Appeals pending petitioner’s appeal. Before submission on the merits, the Government called the Court of Appeals’ attention to the fact that the sentence was recorded as one year and one day rather than one year only and moved that the case be remanded to correct the sentence. The court denied the motion and thereafter affirmed the case on the merits. Petitioner sought rehearing, suggesting that the Court of Appeals “failed to consider” the sentencing error, which petitioner had not argued “fully.” The petition was denied and the case came here on this issue alone.

The Court summarily reverses and directs that the sentence be corrected. I believe that this is error. The petitioner never presented this question to the District Court and that court has not passed upon it. Under Rule 35 of the Federal Rules of Criminal Procedure, an application to correct an illegal sentence may be made to the District Court at any time. In addition, Rule 36, as to clerical errors (which apparently this is), likewise places power in the District Court to make correction. This Court, however, by its action today makes this an appealable error even though it has never been called to the attention of the trial court. The Court has thereby created an additional remedy for obtaining relief from a sentencing error, despite the existence of the adequate relief already provided in Rule 35 or Rule 36 of the Federal Rules of Criminal Procedure. Heretofore, claims of this nature have been prosecuted in the District Court by motion under Rule 35. The Court’s new method of relief not only prevents the District Court from correcting its own error but also delays the final disposition of the case and creates confusion in the administration of justice. I would require petitioner, as the Rules provide, to apply to the District Court.

Moreover, petitioner may not understand the practical effect of the error on his term of prison sentence. Under 18 U. S. C. § 4161, petitioner is allowed six days per month deduction for good behavior if his sentence is a year and a day. Sentence of a year or less permits only five days per month deduction from the term of sentence. In practical effect, under this Court’s order, petitioner may have to serve 11 days’ additional time. The Court should require petitioner to proceed in the regular way by Rule 35 rather than force him to serve a longer sentence, especially since his petition may result from lack of familiarity with “good behavior” regulations. For these reasons I dissent.

       Rule 43 of the Federal Rules of Criminal Procedure provides:
      “The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. In prosecutions for offenses not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes. In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial and imposition of sentence in the defendant’s absence. The defendant’s presence is not required at a reduction of sentence under Rule 35.”

         Supra, note 1.


text:
    SOUTH COAST FISHERIES, INC., et al. v. DEPARTMENT OF FISH AND GAME.
    No. 372.
    Decided October 28, 1963.

      John J. Real for appellants.

      Stanley Mosk, Attorney General of California, Dan Kaufmann, Assistant Attorney General, and Neal J. Gobar, Deputy Attorney General, for appellee.
   Per Curiam.

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


text:
    ORKIN EXTERMINATING CO., INC., v. GULF COAST RICE MILLS.
    No. 424.
    Decided October 28, 1963.

      John D. Richardson for appellant.

      Lamar Carnes for appellee.
   Per Curiam.

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


text:
    CANTON CO. OF BALTIMORE v. COMPTROLLER OF THE TREASURY, RETAIL SALES TAX DIVISION, MARYLAND.
    No. 365.
    Decided October 28, 1963.

      Francis D. Mumaghan, Jr. for appellant.

      Thomas B. Finan, Attorney General of Maryland, Robert C. Murphy, Deputy Attorney General, and Franklin Goldstein, Assistant Attorney General, for appellee.
   Per Curiam.

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


author: Mr. Justice Harlan

text:
    UNITED STATES v. ZACKS et ux.
    No. 44.
    Argued October 21, 1963.
    —Decided November 12, 1963.

      J. Mitchell Reese, Jr. argued the cause for the United States. With him on the briefs were Solicitor General Gox, Assistant Attorney General Oberdorfer, I. Henry Kutz and Mildred L. Seidman.

      Scott P. Crampton argued the cause for respondents. With him on the brief were Stanley Worth and Robert F. Conrad.

    Briefs of amici curiae were filed by Robert H. Reiter and Otto L. Walter for Anton Lorenz et al., and by Grant W. Wiprud and Robert T. Molloy for the New York, Chicago & St. Louis Railroad Company.
   Mr. Justice Harlan

delivered the opinion of the Court.

The question in this case is whether § 117 (q) of the Internal Revenue Code of 1939, a 1956 amendment to the Code which effected retroactive changes in the tax treatment of transfers of patent rights, gives rise to a claim for refund barred by the statute of limitations generally applicable to tax refund claims.

In 1952, Mrs. Zacks received royalties of about $37,000 on patents all substantial rights under which she had transferred by way of an exclusive license to a manufacturing corporation. In accordance with the then prevailing rulings of the Commissioner, the royalties were reported as ordinary income in the 1952 joint federal income tax return filed by Mrs. Zacks and her husband in 1953. The last payment of the taxes due was made in 1953. Under the statute of limitations governing a claim for refund of such taxes, the claim was barred in 1956. § 322 (b)(1), Internal Revenue Code of 1939, 26 U. S. C. (1952 ed.) § 322 (b)(1), 53 Stat. 91. By Act of June 29, 1956, 70 Stat. 404, Congress amended the provisions of the 1939 Code governing the taxability of amounts received in consideration for the transfer of patent rights. The amendment, made applicable to tax years beginning after May 31, 1950, provided that in the circumstances present here such amounts should be taxed as capital gains rather than as ordinary income.

In reliance on this amendment, the taxpayers, on June 23, 1958, filed a claim for a pro tanto refund of their 1952 income taxes. No action having been taken on the claim, they then commenced a refund suit in the Court of Claims. The United States asserted as a defense that the suit was barred by limitations under § 7422 (a) of the Internal Revenue Code of 1954, 26 U. S. C. § 7422 (a), 68A Stat. 876. The Court of Claims granted the taxpayers’ motion to strike this defense, 150 Ct. Cl. 814, 280 F. 2d 829, and, other issues in the case being settled by stipulation, entered judgment for the taxpayers.

Because of the recurring importance of the problem in the administration of the tax laws and a conflict between the decision below and those of some of the Courts of Appeals, we granted certiorari. 371 U. S. 961. For reasons given hereafter, we hold that the taxpayers’ claim was barred by limitations and, accordingly, reverse the judgment below.

Section 117 (q) here in question provides in pertinent part:

“(q) Transfer of Patent Rights.—
“(1) General Rule. — A transfer (other than by gift, inheritance, or devise) of property consisting of all substantial rights to a patent, or an undivided interest therein which includes a part of all such rights, by any holder shall be considered the sale or exchange of a capital asset held for more than 6 months, regardless of whether or not payments in consideration of such transfer are—
“(A) payable periodically over a period generally coterminous with the transferee’s use of the patent, or
“(B) contingent on the productivity, use, or disposition of the property transferred.
“(4) Applicability. — This subsection shall apply with respect to any amount received, or payment made, pursuant to a transfer described in paragraph (1) in any taxable year beginning after May 31,1950, regardless of the taxable year in which such transfer occurred.”

Since our sole concern is the intent of Congress in adding this section -to the Code, it is necessary to look to the administrative and legislative background of the enactment. In 1946, the Commissioner of Internal Revenue announced his acquiescence in Edward C. Myers, 6 T. C. 258, in which the Tax Court held, as to a so-called “amateur” inventor, that the transfer by exclusive license of all substantial rights under a patent was a sale or exchange of a capital asset, notwithstanding that the consideration for the license was royalties based on a percentage of the selling price of articles sold under the patent, and paid annually. 1946-1 Cum. Bull. 3. On March 20, 1950, the Commissioner reversed his position and announced the withdrawal of his acquiescence in Myers, stating that royalties measured or paid as in that case would be taxed as ordinary income. Mim. 6490, 1950-1 Cum. Bull. 9. The new ruling was declared applicable to tax years beginning after May 31, 1950. In the years following 1950, the Commissioner adhered to his new position, despite its rejection by several courts. The issue was settled for the future in 1954 by the enactment of § 1235 of the 1954 Code, 26 U. S. C. § 1235, 68A Stat. 329. Section 1235, applicable only prospectively, contains provisions identical in relevant part to those quoted above from § 117 (q) . Thus, prior to May 31,1950, with exceptions noted hereafter, and again from the beginning of 1954, the law has been that for which the taxpayers contend in their refund suit.

In 1955, the Commissioner issued a further ruling declaring that he would adhere to his 1950 ruling for tax years beginning after May 31, 1950, and prior to 1954. Rev. Rule 55-58, 1955-1 Cum. Bull. 97. As a result, the Commissioner’s position was that during the period from May 31, 1950 to 1954 there was a gap in the consistent application of the law as administratively and judicially established in 1946. It is evident that Congress intended to fill this gap when it enacted § 117 (q) in 1956. But we are not able to say that Congress intended thereby to reopen for retroactive adjustment tax years with respect to which refund claims were already barred by limitations.

Section 117 (q) does not in terms waive the application of the statute of limitations to refund claims then finally barred. On its face, § 117 (q) does no more than overrule the Commissioner’s position on a matter of substantive law respecting the years 1950-1954. Nor is there anything in the legislative history which suggests that such a waiver is to be implied. On the contrary, such indications as there are suggest that Congress intended only to terminate litigation then pending. Representative Cooper, then Chairman of the House Ways and Means Committee, stated on the floor of the House:

“The relief provided by section 1235 [of the 1954 Code] is available only with respect to amounts received in any taxable year to which the 1954 Code applies. As the result of this and the announced policy of the Internal Revenue Service to continue its insistence on its position for years beginning after May 31, 1950, and prior to effective date of the 1954 Code taxpayers are still confronted with litigation for taxable years falling in this period in order to secure the rights to which the courts, with practical unanimity, have held they are entitled.
“H. R. 6143 [the original version of § 117 (q)] eliminates the necessity for such litigation by making the provisions of the 1954 Code available to years beginning after May 31, 1950.” 101 Cong. Rec. 12708 (Aug. 1, 1955).

There are other indications that Congress had only this limited intention. It is abundantly clear that Congress is aware of the limitations problem as it affects retroactive tax legislation. On numerous occasions, Congress has included an express provision reopening barred tax years. We need refer here to only a few examples. Section 14 of the Technical Amendments Act of 1958, 26 U. S. C. § 172 (f)(3), (4), (g)(3), 72 Stat. 1606, 1611, provided rules for computing net operating loss deductions for tax years starting in 1953 and extending into 1954 and short tax years wholly within 1954. Subsection (c), added to the House bill by the Senate, provided expressly for a six-month period during which barred claims could be made. The addition was explained in the Senate report as follows:

“Your committee did amend the House provision, however, in one respect because 3 years have now elapsed since 1954 and many of the transitional years with which this provision is concerned are now closed years. To prevent relief from being denied in such cases, your committee amends this provision to provide that if a refund or credit with respect to this provision is prevented on the date of enactment of this bill or within 6 months after that time by the operation of any law or rule of law (except closing agreements or compromises) refund or credit, nevertheless, is to be allowed if the claim is filed within 6 months of the date of enactment of this bill.” S. Rep. No. 1983, 85th Cong., 2d Sess. 24.

Again, by Act of August 9, 1955, 69 Stat. 607, Congress provided a one-year grace period for filing otherwise barred claims based on § 345 of the Revenue Act of 1951, 65 Stat. 452, 517, a retroactive relief measure affecting trust income accumulated for members of the Armed Services dying in active service on or after December 7, 1941, and before January 1, 1948. The House report on the bill stated:

“No relief was provided in the 1961 act, however, for cases where refunds or credits were barred by the expiration of the period of limitations, by prior court decisions, or for other similar reasons. Your committee is of the opinion that this failure was an oversight, and it believes that it is only equitable to extend treatment equivalent to that provided in section 345 of the Revenue Act of 1951 to cases where refunds or credits were barred by operation of law or rule of law (other than closing agreements or compromises).” H. R. Rep. No. 1438, 84th Cong., 1st Sess. l-2.

The most striking evidence of this sort, however, which we think is all but conclusive, is found in § 2 of the very Act here in dispute. That section, retroactively modifying § 106 of the 1939 Code, affected the taxation of payments received by a taxpayer from the United States with respect to a claim arising out of a construction contract for the Armed Services. Subsection (b) deals with the limitations problem as follows:

“(b) The amendment made by this section shall apply with respect to taxable years ending after December 31, 1948, notwithstanding the operation of any law or rule of law (other than section 3760 of the Internal Revenue Code of 1939 or section 712). of the Internal Revenue Code of 1954, relating to closing agreements, and other than section 3761 of the Internal Revenue Code of 1939 or section 7122 of the Internal Revenue Code of 1954, relating to compromises). Notwithstanding the preceding sentence, no claim for credit or refund of any overpayment resulting from the amendment made by this section shall be allowed or made after the period of limitation applicable to such overpayment, except that such period shall not expire before the expiration of one year after the date of the enactment of this Act.” 70 Stat. 405.

Section 2 went to the Conference Committee without such a provision. The Committee added the provision but made no comparable addition to § 1, with which we are concerned, or for that matter to § 3, which also made retroactive changes in the 1939 Code. It is plain, therefore, that the Congress had the limitations problem in mind at the very time that § 117 (q) was enacted. The taxpayers offer no justification for disregarding the difference in this respect between §§ 1 and 2, disrespect for which would render the carefully drawn limitations provisions of the latter section surplusage.

Both the taxpayers and the Government rely on United States v. Borden Co., 308 U. S. 188, 198, where this Court said: “It is a cardinal principle of construction that repeals by implication are not favored. When there are two acts upon the same subject, the rule is to give effect to both if possible.” The correctness of this statement is not to be doubted. But the paucity of its assistance here is illustrated by the fact that both parties rely on it. The taxpayers place the second sentence in italics, and urge that § 117 (q) and the general statute of limitations are both given effect if the limitations period is made to run from the date of enactment of § 117 (q). The Government presses the first sentence, and urges that the taxpayers’ position, in effect, repeals the statute of limitations pro tanto. There are difficulties with both of these analyses. Obviously, neither of them does more than cast a conclusion in terms of the general rules isolated from the particular circumstances of this case. Nor can the doctrine that remedial legislation is entitled to liberal construction, upon which the taxpayers also rely, be stretched to expand the reach of a statute of such evident limited purpose as this one.

A more difficult question is presented by the fact that § 117 (q) goes beyond the problem created by the Commissioner’s vacillation affecting tax years between 1946 and 1954. By treating royalty payments as capital gains without regard to whether the patent rights transferred were capital assets, § 117 (q) made the favorable treatment available to professional as well as amateur inventors. In addition, all royalties are treated as long-term capital gains whether or not the rights transferred had been held for the requisite period. These provisions made clear changes in the law as it was in 1950 and subsequent years up to 1954. Insofar as they are applicable to years for which most claims for refund were barred in 1956, the Government’s position renders the provisions without effect.

It is, of course, our duty to give effect to all portions of a statute if that is possible. E. g., United States v. Menasche, 348 U. S. 528, 538-539. But this general principle is meant to guide the courts in furthering the intent of the legislature, not overriding it. When rigid adherence to the general rule would require disregard of clear indications to the contrary, the rule must yield. Two considerations compel that result here. First, not only the administrative and legislative history of § 117 (q), discussed above, but also the selection of May 31, 1950, as the operative date leave no doubt that Congress was primarily concerned to settle the large volume of pending litigation arising out of the Commissioner’s 1950 position, reaffirmed in 1955. The date selected has no relevance either to the status of professional inventors or to the period for which patent rights must be held. Second, there is a ready explanation for the inclusion of the additional provisions. With irrelevant exceptions, § 117 (q) tracks the language of § 1235 of the 1954 Code. Pp. 61-62 and note 6, supra. It was wholly natural for Congress to deal with the pre-1954 period by adopting the language of the 1954 Code on the same subject. The House report on the bill leaves no doubt that this is what actually occurred. H. R. Rep. No. 1607, 84th Cong., 1st Sess. 1-2. It is a fair inference that but for the Commissioner’s obduracy respecting amateur inventors, § 117 (q) would not have been conceived. There is nothing to indicate that for some other reason Congress in 1956 had second thoughts about its failure in 1954 to make these identical provisions of § 1235 retroactive. To give the provisions in question the controlling weight that is claimed for them on the issue before us, would allow the tail to wag the dog. Of course, all of the amendatory provisions of§117(q) are fully effective with respect to years and claims not barred.

Finally, the taxpayers suggest that unless the statute of limitations is deemed waived, a premium is placed on taxpayer opposition to administrative rulings, since only those taxpayers who contested the Commissioner’s position will now be able to claim a refund. But in view of the doubt surrounding the rulings involved in this case, emphasized by the cases overruling the Commissioner, this argument has less force than it might in another context. In any event, this problem always attends retroactive legislation of this sort, and acceptance of the taxpayers’ argument would lead to the automatic waiver of the statute of limitations in every case. Whether or not this should be done is a matter for Congress to decide. Where Congress has decided otherwise, this Court has but one course.

Reversed.

Mr. Justice Black agrees with the Court of Claims and would affirm its judgment.

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

       Section 322 (b)(1) provides:
      “Unless a claim for credit or refund is filed by the taxpayer within three years from the time the return was filed by the taxpayer or within two years from the time the tax was paid, no credit or refund shall be allowed or made after the expiration of whichever of such periods expires the later. If no return is filed by the taxpayer, then no credit or refund shall be allowed or made after two years from the time the tax was paid, unless before the expiration of such period a claim therefor is filed by the taxpayer.”
      Similar provisions are contained in §6511 (a), (b) of the Internal Revenue Code of 1954, 26 U. S. C. § 6511 (a), (b), 68A Stat. 808.

       Section 7422 (a) provides:
      “No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof.”

       Compare United States v. Dempster, 265 F. 2d 666 (C. A. 6th Cir.), and Tobin v. United States, 264 F. 2d 845 (C. A. 5th Cir.), with the decision in this case and Hollander v. United States, 248 F. 2d 247 (C. A. 2d Cir.), involving a. similar problem.

       One not engaged i'n holding patent rights “ 'primarily for sale to customers in the ordinary course of his trade or business,’ ” 6 T. C. 266, as distinguished from a “professional” inventor who is so engaged.

       See Kronner v. United States, 126 Ct. Cl. 156, 110 F. Supp. 730; Allen v. Werner, 190 F. 2d 840 (C. A. 5th Cir.). The Commissioner’s position was sustained by the Second Circuit in Bloch v. United States, 200 F. 2d 63.
      Prior to 1946, several courts had taken the same position. Commissioner v. Celanese Corp., 78 U. S. App. D. C. 292, 140 F. 2d 339; Commissioner v. Hopkinson, 126 F. 2d 406 (C. A. 2d Cir.).

       The relevant portions of § 1235 are:
      “A transfer (other than by gift, inheritance, or devise) of property consisting of all substantial rights to a patent, or an undivided interest therein which includes a part of all such rights, by any holder shall be considered the sale or exchange of a capital asset held for more than 6 months, regardless of whether or not payments in consideration of such transfer are—
      “(1) payable periodically over a period generally coterminous with the transferee’s use of the patent, or
      “(2) contingent on the productivity, use, or disposition of the property transferred.”

       Section 1235 of the 1954 Code, and § 117 (q) of the 1939 Code which follows § 1235, made changes in the prior law with respect to the status of professional inventors and the “holding period” for both amateur and professional inventors. See pp. 67-69, infra.

       For other examples of retroactive tax measures in which express provision was made for the limitations problem, see Technical Amendments Act of 1958, §§92, 93, 100, 72 Stat. 1606, 1667, 1668, 1673; Act of September 14, 1960, § 5, 74 Stat. 1010, 1013; Revenue Act of 1962, §§ 26, 27, 76 Stat. 960, 1067.
      For examples of such measures in which no provision was made to extend the period of limitations, see Act of February 11, 1958, 72 Stat. 3; Act of February 11, 1958, 72 Stat. 4; Technical Amendments Act of 1958, § 103, 72 Stat. 1606, 1675; Revenue Act of 1962, §30, 76 Stat. 960, 1069.
      Contrary to fears seemingly entertained by one of the amici in this case, we do not suggest that congressional practice in this regard gives rise to a presumption that where Congress has not provided expressly for a special limitations period in a retroactive tax statute, the relevant general statute of limitations was intended to apply. The significance of such congressional silence is to be judged on a case-by-case basis, as with all questions of statutory construction.

       Such rights would not be capital assets if the patents were held for sale in the ordinary course of business. Internal Revenue Code of 1954, § 1221, 26 U. S. C. § 1221, 68A Stat. 321.
      The taxpayers make much of the asserted fact that Mrs. Zacks was a professional inventor, reasoning therefrom that, as to her at least, § 117 (q) clearly established a new right. Cf. Lorenz v. United States,-Ct. Cl.-, 296 F. 2d 746. The Court of Claims made no finding as to whether Mrs. Zacks was an amateur or professional inventor. Whatever may be the validity and significance in other contexts of the distinction between creation of new rights and clarification of existing rights, we think that distinction is not controlling here, since Congress has evidenced its intent more directly.

       The existence of a substantial amount of such litigation is not questioned in this case. Some of it has been collected at pages 35-36 of the Government’s brief.


text:
    PARSONS, UNITED STATES DISTRICT JUDGE, v. CHESAPEAKE & OHIO RAILWAY CO.
    No. 32.
    Argued October 23, 1963.
    —Decided November 12, 1963.

      John J. Naughton argued the cause and filed briefs for petitioner.

      Charles J. O’Laughlin argued the cause for respondent. With him on the brief was Philip W. Tone.

   Per Curiam.

The question presented by this case is whether a federal district judge in an action brought under the Federal Employers’ Liability Act is divested of all discretion to deny a § 1404 (a) transfer motion, when a suit upon the same cause of action, earlier brought in a state court in the same city, was dismissed by the state court on the ground of forum non conveniens.

Jack Filbrun commenced a Federal Employers’ Liability Act suit for personal injuries against the respondent railroad in the Circuit Court of Cook County, Illinois. On the respondent’s motion the state court dismissed the action on the ground of jorum non conveniens. Filbrun did not appeal. Instead, he filed a complaint grounded on the same cause of action in the United States District Court for the Northern District of Illinois, sitting in Chicago. The respondent filed a motion pursuant to 28 U. S. C. § 1404 (a), requesting that the case be transferred to the United States District Court for the Western District of Michigan, sitting in Grand Rapids. The district judge denied the motion, and the respondent sought mandamus from the Court of Appeals for the Seventh Circuit to compel the judge to order the transfer. On rehearing, the Court of Appeals, one judge dissenting, vacated a previous judgment refusing mandamus, and issued a writ directing the transfer. 307 F. 2d 924. We granted certiorari, 371 U. S. 946, to review the action of the Court of Appeals. We reverse the judgment for the reasons stated below.

Under Illinois law a state court’s determination to dismiss a case on the ground of jorum non conveniens requires consideration of similar factors — convenience of the parties and of witnesses and the interests of justice— to those to be considered by a federal court in applying § 1404 (a). The Court of Appeals accordingly reasoned that every point necessary to be passed upon by the federal district judge on respondent’s § 1404 (a) transfer motion had already been adjudicated adversely to the plaintiff in the state court, and concluded that “the district court had no discretion but to recognize the authoritative value of the state court’s ruling, made in a case commenced there by plaintiff.” 307 F. 2d, at 926.

The discretionary determinations of both the state and federal courts in this case required, to be sure, evaluations of similar, but by no means identical, objective criteria. However, since the material facts underlying the application of these criteria in each forum were different in several respects, principles of res judicata are not applicable to the situation here presented.

Thus, for example, in determining that Cook County was an inconvenient forum, the state court in this case could appropriately consider the availability of a state forum at Ludington, Michigan, where Filbrun’s alleged injury had occurred. But since there is no federal court in Ludington, the federal district judge in making his determination was limited to consideration of the alternative of a trial in the federal court in Grand Rapids, a city some 60 miles from Ludington. Obviously, the question whether the convenience of the parties and of the witnesses would be better served by a trial in a state court in Ludington is not the same question as whether those interests would be better served by a trial in a federal court in Grand Rapids. Similarly, a trial judge weighing the interests of justice could legitimately consider the condition of his court’s docket an important factor. While docket congestion is a problem facing all trial courts in large metropolitan areas, there is nothing to show that the problem in the federal court in Chicago is identical in either nature or quantity to the problem in the Cook County court system.

These considerations no more than illustrate the many variables which might affect the exercise of discretion by a state court, as contrasted to a federal court, in any given case. Since different factual considerations may be involved in each court’s determination, we hold that a prior state court dismissal on the ground of jorum non con- veniens can never serve to divest a federal district judge of the discretionary power vested in him by Congress to rule upon a motion to transfer under § 1404 (a).

In its original opinion in this case, the Court of Appeals found that there had been no abuse of discretion by the district judge in denying the motion for transfer. We do not read the opinion on rehearing as having disturbed that finding, but only as having determined that the district judge had been divested of power to exercise his discretion at all — a determination we have now found to be erroneous. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for further proceedings.

It is so ordered.

       28 U. S. C. § 1404 (a) provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”

       In addition, the state court was required to determine whether plaintiff's selection of that court was dictated by a desire to vex and harass the defendant. Cotton v. L. & N. R. Co., 14 Ill. 2d 144, 174, 152 N. E. 2d 385, 400.

       The Supreme Court of Illinois has observed that a serious court congestion problem exists in the Cook County courts. 14 Ill. 2d, at 171, 152 N. E. 2d, at 398.


text:
    ALDRICH v. ALDRICH et al.
    No. 55.
    Argued October 24, 1963.
    —Decided November 12, 1963, that questions be certified to Supreme Court of Florida.

      Herman D. Rollins for petitioner.

      Charles M. Love for respondents.
   Per Curiam.

It appearing that there are questions of Florida law that are determinative of this cause, with respect to which questions there seem to be no clear controlling precedents in the decisions of the Supreme Court of Florida, this Court desires to certify to the Supreme Court of Florida, pursuant to Rule 4.61 of the Florida Appellate Rules, the following questions:

1. Is a decree of alimony that purports to bind the estate of a deceased husband permissible, in the absence of an express prior agreement between the two spouses authorizing or contemplating such a decree?

2. If such a decree is not permissible, does the error of the court entering it render that court without subject matter jurisdiction with regard to that aspect of the cause?

3. If subject matter jurisdiction is thus lacking, may that defect be challenged in Florida, after the time for appellate review has expired, (i) by the representatives of the estate of the deceased husband or (ii) by persons to whom the deceased husband has allegedly transferred part of his property without consideration?

4. If the decree is impermissible but not subject to such attack in Florida for lack of subject matter jurisdiction by those mentioned in subparagraph 3, may an attack be successfully based on this error of law in the rendition of the decree?

The petitioner, within 20 days of the date of this opinion, is directed to file with the Clerk of this Court a proposed certificate consistent with this opinion and conforming to the requirements of Rule 4.61, supra, with proof of service of a copy thereof on counsel for the respondents. Within 10 days thereafter the respondents may file with the Clerk of this Court proposed amendments. When the certificate has been settled it will be transmitted by the Clerk of this Court to the Clerk of the Supreme Court of Florida for appropriate action.

It is so ordered.


text:
    BARKER et ux. v. METROPOLITAN LIFE INSURANCE CO.
    No. 388.
    Decided November 12, 1963.
    Appellants pro se.

      Kenneth E. Roberts 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:
    MISSISSIPPI POWER & LIGHT CO. et al. v. CAPITAL ELECTRIC POWER ASSOCIATION et al.
    No. 403.
    Decided November 12, 1963.

      Shefwood W. Wise, Fred B. Smith, Garner W. Green and Joshua Green for appellants.

      T. Harvey Hedgepeth for appellees.
   Per Curiam.

The motions to dismiss are 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:
    COURTESY SANDWICH SHOP, INC., et al. v. PORT OF NEW YORK AUTHORITY et al.
    No. 399.
    Decided November 12, 1963.

      Edward S. Greenbaum, Morris L. Ernst, Leo Rosen, W. Bernard Richland and Jerome M. Alper for appellants.

      Sidney Goldstein and Daniel B. Goldberg for appellees.

      Louis J. Lejkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, Daniel M. Cohen, Assistant Attorney General, Arthur J. Sills, Attorney General of New Jersey, and Theodore I. Botter, First Assistant Attorney General, for intervenor-appellees.
   Per Curiam.

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


author:
Per Curiam.
      Mr. Justice Douglas,

text:
    GOTTHILF v. SILLS et al.
    No. 50.
    Argued October 24, 1963.
    —Decided November 18, 1963.
    O. John Rogge argued the cause and filed briefs for petitioner.

      Theodore Chamas argued the cause and filed a brief for respondents.

      Louis J. Lefkowits, Attorney General of New York, filed a brief as amicus curiae, urging dismissal of the writ as improvidently granted or, in the alternative, affirmance. With him on the brief was Paxton Blair, Solicitor General.
   Per Curiam.

The Supreme Court of New York County issued an order granting body execution (N. Y. Civ. Prac. Act § 764) against petitioner for failure to pay a money judgment which had been finally entered against him in that court in an action premised on fraud and deceit. On appeal to the Appellate Division, First Judicial Department, petitioner attacked § 764 as being violative of both the state and federal constitutions. The order was affirmed, 17 App. Div. 2d 723. Petitioner then filed a motion in the Court of Appeals of New York for leave to appeal (N. Y. Civ. Prac. Act § 589) which was dismissed for want of jurisdiction because “the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.” 12 N. Y. 2d 761, 186 N. E. 2d 563. See Chase Watch Corp. v. Heins, 283 N. Y. 564, 27 N. E. 2d 282 (1940); cf. Knickerbocker Trust Co. v. Oneonta, C. & R. S. R. Co., 197 N. Y. 391, 90 N. E. 1111 (1910). An appeal to the Court of Appeals as of right (N. Y. Civ. Prac. Act § 588) was dismissed on the same ground. 12 N. Y. 2d 792, 186 N. E. 2d 811. Certiorari was granted to review the judgment of the Appellate Division, First Judicial Department. 372 U. S. 957.

Section 589 of the New York Civil Practice Act provides inter alia that appeals from nonfinal orders can only be taken to the Court of Appeals by leave of the Appellate Division upon certified questions. The petitioner at no time applied to the Appellate Division for such permission. It therefore appears that the Appellate Division, First Judicial Department, “was not the last state court in which a decision of that [constitutional] question could be had.” Gorman v. Washington University, 316 U. S. 98, 100 (1942). The judgment of the Appellate Division is not that of the “highest court of a State in which a decision could be had” within the meaning of 28 U. S. C. § 1257. Whether, under the same section, that judgment is “final,” a question of purely federal law, involves entirely different considerations. The petition for certiorari was therefore improvidently granted and the writ is

Dismissed.

Mr. Justice Douglas,

with whom The Chief Justice and Mr. Justice Black concur,

dissenting.

The majority concludes that petitioner is not seeking review of the decision of the “highest court of a State in which a decision could be had” within the meaning of 28 U. S. C. § 1257. It is said that petitioner could have, by employment of the certified question procedure, obtained a full review of his constitutional questions by the New York Court of Appeals, but instead chose a route that resulted in the dismissal of his appeal.

The determination of the Court of Appeals that this body execution order is a nonfinal order subject to appeal only via the certified question route came as a surprise. Theretofore, the one and only New York case involving a body execution order and the question of how one should obtain review in the Court of Appeals was Chase Watch Corp. v. Heins, 283 N. Y. 564, 27 N. E. 2d 282, decided in 1940. The creditor took an appeal from an order of the Appellate Division vacating an order authorizing body execution. 258 App. Div. 968, 17 N. Y. S. 2d 880. The Court of Appeals dismissed on the ground that the order was not final, giving the creditor, however, 20 days within which to seek certification of a question from the Appellate Division. This was done (259 App. Div. 888, 18 N. Y. S. 2d 742) and the creditor ultimately prevailed (284 N. Y. 129, 29 N. E. 2d 646). It is argued that the Chase Watch case clearly established the type of procedure that petitioner should have followed. The vacation of a body execution order, however, as in Chase Watch, is far less final than the converse, which is the present case. In Chase Watch, the order determined nothing finally; the creditor was merely momentarily frustrated in his collection efforts, and was forced to rely on other devices. Here, on the other hand, the debtor faces incarceration; he has fought for his right to remain out of jail; and he has lost. If he lacks money with which to pay the judgment, nothing further is available for him by New York law. The case illustrates that concepts of finality in one context cannot always be transferred to another.

In my opinion, petitioner might reasonably have concluded that a final order had been entered in this case and that Chase Watch did not control. Therefore, his action in docketing an appeal in the Court of Appeals, and not invoking the certification procedures applicable only to nonfinal orders, was justifiable as a matter of federal law. The decision of the Court of Appeals in this case establishes, of course, as a matter of state law that the order was not final. While that determination is binding on us, it does not preclude us from holding that the decision was sufficiently unexpected so as not to bar, in the interests of justice, the certiorari route here. See NAACP v. Alabama, 357 U. S. 449, 457-458:

“Novelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal constitutional rights.”

The current decision was a surprise which could not reasonably be anticipated, and it was then too late for petitioner to avail himself of the new procedure.

While 28 U. S. C. § 1257 also requires that judgments brought here for review be “final,” we have recognized an exception — sometimes even to the point of reviewing interlocutory decrees — where the controversy has proceeded to a point where the “losing party [will] ... be irreparably injured if review [is] . . . unavailing.” Republic Natural Gas Co. v. Oklahoma, 334 U. S. 62, 68. Unless the case is reviewed now, petitioner goes to jail— or stays outside New York.

In my opinion the case is properly here and the Court should consider, on the merits, the constitutional questions presented.

      There is no suggestion that after the Court of Appeals dismissed the appeal, petitioner should have repaired once more to the Appellate Division for a certificate or in the words of Section 592, 5 (c) of the New York Civil Practice Act “for permission to appeal.” It should be noted, however, that this procedure is available only with qualifications, as that sub-section makes the granting of the application contingent not only on the discretion of the Appellate Division but also on the explicit proviso “that the proceedings have not been improperly delayed.”


text:
    CERTIFIED CREDIT CORP. v. BOWERS, TAX COMMISSIONER OF OHIO.
    No. 430.
    Decided November 18, 1963.

      Robert L. Barton, Joseph B. DeVennish and Joseph R. Hague for appellant.

      William B. Saxbe, Attorney General of Ohio, and Daronne R. Tate, Assistant Attorney General, for appellee.
   Per Curiam.

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


author: Mr. Chief Justice Warren Mr. Justice Harlan,

text:
    FAHY v. CONNECTICUT.
    No. 19.
    Argued October 16, 1963.
    —Decided December 2, 1963.

      Francis J. McNamara, Jr. argued the cause for petitioner. With him on the brief were Raymond T. Benedict and John F. Spindler.

      John F. McGowan, Assistant State’s Attorney for Connecticut, argued the cause for respondent. With him on the brief was Otto J. Saur, State’s Attorney.
   Mr. Chief Justice Warren

delivered the opinion of the Court.

Petitioner waived trial by jury and was convicted in a Connecticut state court of wilfully injuring a public building in violation of Connecticut General Statutes § 53-45 (a). Specifically, petitioner and his codefendant Arnold were found guilty of having painted swastikas on a Norwalk, Connecticut, synagogue. The trial took place before our decision in Mapp v. Ohio, 367 U. S. 643, but the conviction was affirmed on appeal after that decision. Connecticut v. Fahy, 149 Conn. 577, 183 A. 2d 256 (1962). At the trial of the case, a can of black paint and a paint brush were admitted into evidence over petitioner’s objection. On appeal, the Connecticut Supreme Court of Errors held that the paint and brush had been obtained by means of an illegal search and seizure. It further held that the Mapp decision applies to cases pending on appeal in Connecticut courts at the time that decision was rendered, and, therefore, the trial court erred in admitting the paint and brush into evidence. However, the court affirmed petitioner’s conviction because it found the admission of the unconstitutionally obtained evidence to have been harmless error. We granted certiorari, 372 U. S. 928 (1963).

On the facts of this case, it is not now necessary for us to decide whether the erroneous admission of evidence obtained by an illegal search and seizure can ever be subject to the normal rules of “harmless error” under the federal standard of what constitutes harmless error. Compare Ker v. California, 374 U. S. 23. We find that the erroneous admission of this unconstitutionally obtained evidence at this petitioner’s trial was prejudicial; therefore, the error was not harmless, and the conviction must be reversed. We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. To decide this question, it is necessary to review the facts of the case and the evidence adduced at trial.

On February 1, 1960, between the hours of 4 and 5 a. m., swastikas were painted with black paint on the steps and walls of a Norwalk synagogue. At about 4:40 a. m., Officer Lindwall of the Norwalk police saw an automobile being operated without lights about a block from the synagogue. Upon stopping the car, Lindwall found that Fahy was driving and Arnold was a passenger. Lindwall questioned Fahy and Arnold about their reason for being out at that hour, and they told him they had been to a diner for coffee and were going home. Lindwall also checked the car and found a can of black paint and a paint brush under the front seat. Having no reason to do otherwise, Lindwall released Fahy and Arnold. He followed the car to Fahy’s home. Later the same morning, Lindwall learned of the painting of the swastikas. Thereupon, he went to Fahy’s home and — without having applied for or obtained an arrest or search warrant— entered the garage under the house and removed from Fahy’s car the can of paint and the brush. About two hours later, Lindwall returned to the Fahy home, this time in the company of two other Norwalk policemen. Pursuant to a valid arrest warrant, the officers arrested Fahy and Arnold.

At trial, the court admitted the paint and brush into evidence over petitioner’s objection. We assume, as did the Connecticut Supreme Court of Errors, that doing so was error because this evidence was obtained by an illegal search and seizure and was thus inadmissible under the rule of Mapp v. Ohio. Examining the effect of this evidence upon the other evidence adduced at trial and upon the conduct of the defense, we find inescapable the conclusion that the trial court’s error was prejudicial and cannot be called harmless.

Obviously, the tangible evidence of the paint and brush was itself incriminating. In addition, it was used to corroborate the testimony of Officer Lindwall as to the presence of petitioner near the scene of the crime at about the time it was committed and as to the presence of a can of paint and a brush in petitioner’s car at that time. When Officer Lindwall testified at trial concerning that incident, the following transpired:

“Q. Will you tell the Court what you found in the car?
“A. Checking on the passengers’ side, under the front seat I found a small jar of paint and a paint brush.
“Q. Are you able to identify this object I show you?
“A. Yes.
“Q. What is it?
“A. A jar of paint I found in the motor vehicle.
“Q. I show you this object and ask you if you can identify that.
“A. Yes, sir.
“Q. What is it?
“A. A paint brush.
“Q. Where did you first see this paint brush?
“A. Under the front seat of Mr. Fahy’s car.”

The brush and paint were offered in evidence and were received over petitioner’s objection. The trial court found: “13. The police found the same can of black paint and the brush in the car which the defendants had been operating when stopped by Officer Lindwall earlier in the morning.” It can be inferred from this that the admission of the illegally seized evidence made Lindwall’s testimony far more damaging than it would otherwise have been.

In addition, the illegally obtained evidence was used as the basis of opinion testimony to the effect that the paint and brush matched the markings on the synagogue, thus forging another link between the accused and the crime charged. At trial, Norwalk Police Officer Tigano testified that he had examined the markings on the synagogue and had determined that they were put on with,black paint. He further testified that he had examined the contents of the can illegally seized from Fahy’s car and had determined that it contained black paint. Even more damaging was Tigano’s testimony that he had taken the illegally seized brush to the synagogue “to measure the width of the brush with the width of the paintings of the swastikas.” Over objection, Tigano then testified that the brush “fitted the same as the paint brush in some drawings of the lines and some it did not due to the fact the paint dripped.” Thus the trial court found: “14. The two-inch paint brush matched the markings made with black paint upon the synagogue.” In relation to this testimony, the prejudicial effect of admitting the illegally obtained evidence is obvious.

Other incriminating evidence admitted at trial concerned admissions petitioner made when he was arrested and a full confession made at the police station later. Testifying at trial, Norwalk Police Lieutenant Virgulak recounted what took place when Fahy, who was just waking up at the time, was arrested:

“I told him I [sic, he] was under arrest for painting swastikas on the synagogue. He said, 'Oh, that?’ and he appeared to lay back in bed.
“Q. Did you have any further conversation with Fahy before you reached the police station that you remember?
“A. I asked him what the reason was for painting the swastikas and he said it was only a prank and I asked him why and he said for kicks.”

At the police station, there was further questioning, and Fahy told Lieutenant Virgulak that he, Fahy, would take the responsibility for painting the swastikas. In addition, some hours after the arrest Arnold was asked to give a statement of the events, and he complied, dictating a complete confession of two typewritten pages. After this confession was admitted against Arnold at trial, Lieutenant Virgulak testified that he had read the confession to Fahy and:

“Q. After you finished reading it, will you tell us whether or not he [Fahy] made any comment?
“A. I asked him what his version was and he said the story was as I had it from Mr. Arnold. I asked him if he would like to give a written statement and he declined.”

The record does not show whether Fahy knew that the police had seized the paint and brush before he made his admissions at the time of arrest and en route to the police station. In oral argument, however, counsel for the State told the Court that Fahy “probably” had been told of the search and seizure by then. Of course, the full confession was more damaging to the defendants, and unquestionably the defendants knew the police-had obtained the paint and brush by the time they confessed. But the defendants were not allowed to pursue the illegal search and seizure inquiry at trial, because, at the time of trial, the exclusionary rule was not applied in Connecticut state courts. Thus petitioner was unable to claim at trial that the illegally seized evidence induced his admissions and confession. Petitioner has told the Court that he would so claim were he allowed to challenge the search and seizure as illegal at a new trial. And we think that such a line of inquiry is permissible. As the Court has noted in the past: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” See Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392; see also Nardone v. United States, 308 U. S. 338; Wong Sun v. United States, 371 U. S. 471. Thus petitioner should have had a chance to show that his admissions were induced by being confronted with the illegally seized evidence.

Nor can we ignore the cumulative prejudicial effect of this evidence upon the conduct of the defense at trial. It was only after admission of the paint and brush and only after their subsequent use to corroborate other state’s evidence and only after introduction of the confession that the defendants took the stand, admitted their acts, and tried to establish that the nature of those acts was not within the scope of the felony statute under which the defendants had been charged. We do not mean to suggest that petitioner has presented any valid claim based on the privilege against self-incrimination. We merely note this course of events as another indication of the prejudicial effect of the erroneously admitted evidence.

From the foregoing it clearly appears that the erroneous admission of this illegally obtained evidence was prejudicial to petitioner and hence it cannot be called harmless error. Therefore, the conviction is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Harlan,

whom Mr. Justice Clark, Mr. Justice Stewart and Mr. Justice White join,

dissenting.

The only question in this case which merits consideration by this Court, and which alone accounts for the case being here at all, is that which the majority does not reach: Does the Fourteenth Amendment prevent a State from applying its harmless-error rule in a criminal trial with respect to the erroneous admission of evidence obtained through an unconstitutional search and seizure? The majority avoids this issue only by disregarding the finding of the Connecticut Supreme Court of Errors that the erroneously admitted evidence was without prejudicial effect on the outcome of petitioner’s trial.

Evidentiary questions of this sort are not a proper part of this Court’s business, particularly in cases coming here from state courts over which this Court possesses no supervisory power. This is not the rare instance of a state conviction which rests upon a record that is devoid of any evidence to support the charge against the defendant, see Thompson v. Louisville, 362 U. S. 199; Garner v. Louisiana, 368 U. S. 157. The most that can be said is that the record leaves the issue of harmless error open to differing conclusions. That, however, furnishes no ground for this Court’s intervention, even in the name of avoiding the constitutional question which brought the case here.

Furthermore, taking the Court’s opinion on its own bottom, I feel compelled to say, with due respect, that I am unable to understand its evaluation of the record. The opinion below provides the full answer to the petitioner’s claim that the admission into evidence of the can of paint and paint brush prejudiced him:

“. . . The defendants do not claim, nor, as the transcript shows, could they claim, that the illegal search and seizure induced their admissions or confessions. Their claim is that, ‘[h]ad they been able to preclude the admission of the illegally seized evidence, [their] confessions would not have been admissible,’ under the rule of State v. Doucette, 147 Conn. 95, 98, 157 A. 2d 487, because there was, apart from the confessions, insufficient evidence of the corpus delicti, that is, that the crime charged had been committed by someone. In other words, their claim is that the state, in order to prove that a crime had been committed, had to rely solely on the admission in evidence of the paint jar and the brush. The answer to that claim is that there was ample evidence besides the defendants’ confessions and the jar of paint and the brush to prove that swastikas had been painted on the synagogue between the hours of 4 and 5 o’clock on the morning of February 1, 1960. This was sufficient to establish that the crime charged had been committed by someone. The confessions were not inadmissible on the ground claimed, and no other ground of inadmissibility is advanced.
“The paint jar and the brush, which were exhibits, were, at most, cumulative. The transcript of the evidence of the state’s case, in chief, discloses overwhelming evidence of the guilt of the defendants. They were observed a block from the scene of the crime at approximately the time when it was committed, riding in an automobile without lights, and were brought to a stop only after a police officer had pursued them for upwards of a mile. When the police later in the morning came with warrants to arrest them, they admitted their guilt at once and attempted to excuse their conduct as a ‘prank.’ Both later freely confessed. . . .” 149 Conn. 577, 587-588, 183 A. 2d 256, 261-262.

The Court’s discussion of corroborative and cumulative evidence and its effect on the conduct of the defense is surely beside the point in a case in which both before and during trial it was not disputed that the petitioner had committed the acts in question and the only defense raised was that the acts were not criminal as charged.

This brings me to the question which the Court does not reach: Was it constitutionally permissible for Connecticut to apply its harmless-error rule to save this conviction from the otherwise vitiating effect of the admission of the unconstitutionally seized evidence? I see no reason why not. It is obvious that there is no necessary connection between the fact that evidence was unconstitutionally seized and the degree of harm caused by its admission. The question of harmless error turns not on the reasons for inadmissibility but on the effect of the evidence in the context of a particular case. Erroneously admitted “constitutional” evidence may often be more prejudicial than erroneously admitted “unconstitutional” evidence. Since the harmless-error rule plainly affords no shield under which prosecutors might use damaging evidence, unconstitutionally obtained, to secure a conviction, there is no danger that application of the rule will undermine the prophylactic function of the rule of inadmissibility.

Cases in which this Court has held that the sufficiency of other evidence will not validate a conviction if an unconstitutionally obtained confession is introduced at trial, e. g., Malinski v. New York, 324 U. S. 401, are inapposite. It may well be that a confession is never to be considered as nonprejudicial. In any event, the standard applied here required a determination that exclusion of the unconstitutional evidence could not have changed the outcome of the trial. That is a much stricter standard than that of independently sufficient evidence, which leaves open the possibility that the trier of fact did rely on the unconstitutional evidence and, therefore, would have reached a different conclusion if the evidence had been excluded.

I would affirm.

       Arnold was tried and convicted with petitioner Fahy, and their appeals were heard and decided together. Arnold also filed a petition for certiorari; however, that petition was dismissed on Arnold’s motion before we granted Fahy’s petition.

       Connecticut’s statutory harmless error rule states that the Supreme Court of Errors need not reverse a judgment below if it finds the errors complained of “have not materially injured the appellant.” Connecticut General Statutes §52-265 (1958).

       The Connecticut Supreme Court of Errors rejected petitioner’s argument that painting swastikas on a synagogue was “defacement,” not “injury,” to a public building. The statute involved was passed in 1832 and made it illegal to “injure or deface” a public building. In 1875, the words “or deface” were omitted, and the statute remained essentially unchanged thereafter. The Connecticut Supreme Court of Errors held that “injure” includes defacement and thus includes petitioner’s acts.

       As the quoted portion of the opinion below shows, our Court, by relying on the petitioner’s statement that he would claim at a new trial that the unlawfully seized evidence induced his admissions and confession, accepts a claim which, apart from its lack of foundation in the record, is made for the first time here.

       There is no need to consider whether a state or federal standard of harmless error governs, since the state standard applied here is as strict as any possible federal standard.